Supreme Court rules ‘substitute consent’ inconsistent with EU environmental law

Large number of applications for retention planning permission on hold pending ruling

Substitute consent allows developers ‘in exceptional circumstances’ to make a retrospectve application for a project that should have had an environmental impact assessment carried out before planning but did not. Photograph: iStock

Substitute consent allows developers ‘in exceptional circumstances’ to make a retrospectve application for a project that should have had an environmental impact assessment carried out before planning but did not. Photograph: iStock

 

The Supreme Court has declared “substitute consent”, a form of retention permission in Irish planning law, inconsistent with the Environmental Impact Assessment (EIA) Directive.

The substitute consent procedure is inconsistent with the directive because it does not provide for public participation at the stage of leave to apply for substitute consent and does not provide for an “exceptionality” test for substitute consent as demanded by the Court of Justice of the EU (ECJ), the five-judge court declared.

Substitute consent allows applicants “in exceptional circumstances” to make a retrospectve application for a project that should have had an environmental impact assessment carried out before planning but did not.

It is provided for in Section 177 of the Planning and Development Act, 2000, as amended in 2010. That legislation was part of Ireland’s bid to rectify deficiencies identified in 2006 by the ECJ after the European Commission won proceedings against Ireland over the State’s retention planning permission rules.

The Supreme Court judgment on Wednesday was given on separate appeals by An Taisce and environmentalist Peter Sweetman concerning two quarries.

Decision

One appeal by An Taisce concerned An Bord Pleanála’s decision to grant substitute consent in 2014 to J McQuaid Quarries Ltd for a quarry at Lemgare, Co Monaghan. That appeal was against the board, the State and the quarry company.

A second appeal by An Taisce concerned the board’s refusal to accept submissions from it opposing Sharon Browne’s application for leave to apply for substitute consent for a quarry at Ballysax, The Curragh, Co Kildare, owned and operated by her. Mr Sweetman also appealed the planning board’s refusal to accept submissions from him.

An Bord Pleanála said it could not lawfully accept the submissions because there was no provision in law under which members of the public could make submissions at the leave stage of the substitute consent process, as opposed to the substantive stage of the process.

The Ballysax appeals were against the board and State, with Ms Browne as a notice party.

The Supreme Court had agreed to hear all three appeals on grounds they raised issues of public importance, with a large number of applications on hold pending the outcome.

Allowed

In a 104-page detailed judgment delivered by Mr Justice William McKechnie, the court allowed the appeals.

The judge noted the the 2006 ECJ judgment found that widespread availability of retention planning permission here, even for projects which required but did not have an EIA, was not consistent with the EIA Directive.

The Oireachtas sought to amend the law to comply with the directive. That included the creation of the concept of “substitute consent”.

The judge said these appeals raised important issues of EU law, including whether the State’s response was adequate in upholding the requirements of the EIA Directive.

He found the substitute consent provisions do not sufficiently implement the EIA Directive in light of various decisions of the ECJ. The essential elements required for an application for leave for substitute consent, including the development at issue required an EIA, could not fairly be described as being exceptional and were rather “quite general and quite broad”, he said.

Having considered the scope and meaning of the public right to participate under the Directive, he also held the exclusion in domestic law of public participation at the stage of seeking leave to apply for substitute consent is inconsistent with the public participation rights conferred by the directive.