Supreme Court rules operation of Co Galway quarry is unauthorised
Six month stay put on court order handed down for material breach of planning code and in public interest
The fate of a Co Galway quarry hangs in the balance after the Supreme Court ruled An Taisce is entitled to an order restraining its operation because it constitutes an unauthorised development.
A six month stay applies on the order concerning the stone quarry operated by McTigue Quarries about 7km from Tuam.
The order was made for reasons including “material” breach of the planning code, the public interest in upholding the integrity of the planning process and the courts’ obligation to give effect to the national law, Mr Justice John MacMenamin said.
While planning is supposed to have a “strong public participation aspect”, the planning laws are “an untidy patchwork confusing almost to the point of being impenetrable to the public”, he observed.
If suggestions that Galway County Council, the relevant planning authority, had been a customer of the quarry were true, there was a risk of “conflict of roles”, he added.
Mr Justice MacMenamin was giving the five judge court’s unanimous judgment involving important findings concerning planning obligations under Irish and EU law.
The High Court found in 2016 the quarry was an unauthorised development but refused to grant an injunction under Section 160 of the Planning and Development Act 2000 restraining its operation, instead remitting the matter for further enforcement to Galway Co Council.
An Taisce appealed the refusal to make the Section 160 order and McTigue appealed the finding its quarry was unauthorised.
On Wednesday, the Supreme Court agreed the quarry was unauthorised and reversed the High Court refusal to make the Section 160 order. For reasons including lack of information about the consequences for the quarry operation, it applied a six month stay on that order.
The judgment was welcomed by Ian Lumley of An Taisce as an important “vindication” of the organisation’s involvement in the planning process.
The case centred on interpretation of Section 1770 of the Planning and Development Act 2010, relating to enforcement and enacted to give effect to the Environmental Impact Assessment (EIA) Directive.
The 2010 Act followed a 2008 judgment of the Court of Justice of the EU on proceedings by the European Commission against Ireland concerning a windfarm development at Derrybrien, Co Galway, without an EIA having been carried out.
Galway Co Council had granted a “retention” permission for the windfarm development and the State accepted a system of retention permission was common in planning matters.
The European court warned a system of regularisation by retention permissions could mean developers would be encouraged to forego the process of ascertaining whether certain developments required an EIA.
All member states were required to adopt all measures to ensure, before planning consent is given, that projects likely to have a significant effect on the environment were made subject to an EIA with regard to those effects, it said.
Mr Justice MacMenamin said the general statement of principles set out by the CJEU could not be reconciled with the interpretation of Section 1770 urged by Mc Tigue.
The quarry, which had operated for at least 10 years, was never a development for which planning permission was granted by either Galway Co Council or An Bord Pleanála, he noted.
After the 2008 CJEU judgment, local authorities were directed to register and assess quarries so as to consider their legal status. After McTigue engaged in three planning “procedures” by Galway Co Council, the latter decided in 2012 the quarry was eligible to apply for a substitute consent.
An Bord Pleanála decided, in a 2015 decision with “puzzling” aspects, to grant that substitute consent, the judge said.
He rejected McTigue’s arguments it received a “substitute consent” for the development within the meaning of Section 1770 which had the same legal effect as if it got a planning permission under Section 34 of the PDA 2000. There is “a world of difference” between the procedures adopted here and a true development consent, he said.
The 2010 Act was enacted to give effect to the EIA Directive and was limited to developments where previously permission was granted, where an EIA or Appropriate Assessment was not carried out and where the CJEU had decided the permission breached law due to omission of an EIA, he said.
For there to be a valid planning permission, there must have either been a valid EIA or the development must come within the category of development identified in Section 1770, he said. “Neither of these is true in this case.”