Supreme Court strikes down two provisions of Irish planning law for being in breach of the Environmental Impact Assessment (EIA) Directive in An Taisce’s Kildare and Monaghan quarrying cases.

1st July 2020
Press Release

An Taisce initiated two cases in relation to the regulation of quarries in Ireland, a sector which has a major environmental impact [1], and is regulated under the EU Environmental Impact Assessment (EIA) Directive.

In the case of the Derrybrien Windfarm, the European Court of Justice has already held that that retention of unauthorised or unregulated development coming under the EIA Directive should only be granted in “exceptional circumstances”. In addressing this finding, Ireland introduced a provision under Section 177 of the Planning and Development Act 2000 (as amended) which allows quarries to seek retrospective or “substitute consent” as an entitlement.

An Taisce, which is a prescribed body under Irish planning regulations, has repeatedly argued in submissions to An Bord Pleanála in respect of quarry applications for substitute consent that such applications must be subjected to a case-by-case exceptional circumstances or “exceptionality” test.

The principal challenge by An Taisce in the McQuaid Quarries case related to the alleged failure of An Bord Pleanála and the Irish planning legislation to consider exceptional circumstances.

In a unanimous decision of five Justices of the Supreme Court delivered this morning, the Court held: “that section 177C(2)(a) and its corresponding provision, section 177D(1)(a) of the Planning and Development Acts 2000, as amended, are inconsistent with the EIA Directive as interpreted by the Court of Justice, in that they fail to provide for an exceptionality test as demanded by that court”.

The effect of this finding by the Supreme Court, in support of the submissions made to the Court by Counsel for An Taisce, is that a significant provision in Irish legislation has been struck down as being in breach of the EIA Directive.

On a parallel issue, An Taisce queried the legality of the provision by which a quarry operator, or other party, could seek leave to lodge a substitute consent application via internal communication with An Bord Pleanála. Currently prospective applicants can engage with An Bord Pleanála through this internal process that is not subject to public consultation or the provisions of the UN Aarhus Convention, which have been incorporated into the EIA Directive.

An Taisce alongside another litigant, Peter Sweetman, raised this issue with regard to the pre-application communication between Sharon Brown and An Bord Pleanála in relation to approving substitute consent for an unauthorised quarry at Ballysax, on the Curragh, Co. Kildare. Following the failure of An Bord Pleanála to have regard to An Taisce’s submission, High Court proceedings were initiated and that Judgment appealed to the Supreme Court.

In the Judgment handed down this morning it was unanimously held that: “the failure to make provision for public participation at the leave application stage for substitute consent is inconsistent with the public participation rights conferred by and outlined in the EIA Directives”

The effect of this finding is that the Supreme Court has struck down another provision of Irish Planning law as contravening the EIA Directive. This has major implications for other applications in the process of seeking leave to apply for substitute consent, including an application by Bord na Mona for substitute consent for its historic peat extraction activity on 41 individual bog units. It also has implications for future peat extraction activities on selected individual bog units situated across counties Offaly, Westmeath, Laois, Meath, Kildare and Longford.

The Judgment delivered by the Supreme Court this morning clearly vindicates An Taisce’s public interest watchdog role in environmental protection in Ireland and further advances the prominence and protection of European environmental law.

As a result of this morning’s Supreme Court Judgment, An Taisce will be seeking urgent intervention by the newly appointed Minister for Housing, Local Government and Heritage, Darragh O’Brien, to ensure that Irish legislation is brought into line with the requirements of the EIA Directive and the public participation rights of the Aarhus Convention.

Ends

Contact: Ian Lumley, Head of Advocacy for An Taisce, 083 153 2384

NOTES:

[1] Quarrying processes have multiple environmental impacts, particularly when they operate outside of the regulatory system. Many quarries are unauthorised with their operators blasting without planning permission, and digging into the landscape of rural Ireland, sparking angry protests. Permission for quarries is given or refused on a number of grounds including how much environmental damage they’re likely to cause. However, the system is full of loopholes, delays and grey areas. This results in Ireland’s environment – the air we breathe, the wildlife around us, our water, trees and grass – being put at risk.