An Taisce and environmentalist Peter Sweetman have been refused permission to appeal An Bord Pleanála’s decision it could not legally accept their submissions on an application for “leave to apply” for substitute consent for an unauthorised quarry in Co Kildare.
The board’s decision on whether or not to actually grant substitute consent for the quarry at Ballysax remains outstanding as that had been deferred pending the legal proceedings.
The High Court’s Mr Justice Robert Eagar ruled on Monday the applicants had not met the necessary legal criteria entitling them to appeal his rejection of their case against the board. They had not shown his October 2017 judgment in the case raised points of law of exceptional public importance requiring clarification, in the public interest, by the Court of Appeal, he found.
In October 2017, the judge had said planning permission was never obtained for the quarry and no environmental impact assessment (EIA), or appropriate assessment, were carried out for it.
In light of Circuit Court enforcement proceedings by Kildare County Council concerning the quarry, the quarry owner and operator, Ms Sharon Browne, had applied for leave to apply for substitute consent for the quarry under Section 177 of the Planning and Development Act 2000.
An Taisce and Mr Sweetman forwarded submissions on the application but the board returned those, saying the law did not entitle it to receive or consider any submissions from the public on an application for “leave to apply” for substitute consent. Substitute consent is an alternative planning consent for certain types of development.
The applicants challenged that interpretation in judicial review proceedings but those were dismissed by Mr Justice Eagar in his October 2017 judgment. Among various findings, the judge ruled that input concerning an application for leave to apply for substituted consent is limited to the developer and the planning authority. When leave to apply for substituted consent is granted, the actual substitute consent application itself involves “the full panoply” of participation, he said.
He rejected arguments that the lack of public participation rights at the application for leave stage breaches European law. The applicants sought leave to appeal his findings but their application was opposed by lawyers for the board and Attorney General.
In his further judgment on Monday, the judge refused leave to appeal.
He said the applicants, in seeking leave to appeal, had sought to raise a different issue which he was not asked to decide in his main judgment. That issue concerned the extent to which the entitlement to apply for substitute consent can be revisited by the board once leave to apply has been granted.
In this case, the only matter that has been “finally determined” by the board is the entitlement to apply for substitute consent, he said. In those circumstances, he rejected the applicants’ claims that issues concerning an EIA had been determined without public input.
He also rejected arguments that his reference to “full panoply” of participation was unclear and required clarification by the Court of Appeal. There was no uncertainty raised by his judgment and the relevant law and jurisprudence is clear, he said.
