A quarry operating in Co Meath for almost 150 years has lost its High Court claim it is beyond the reach of EU environmental directives and does not have to seek development consent.
The gravel and sand quarry at Murrens, Olcastle, which began operating in 1875, was registered in 2005 with Meath County Council under section 261 of the Planning and Development Act 2000.
In 2005, its total area was 36.4 hectares, including an extraction area of 25.4 hectares, and it had traffic averaging 100 HGV trips per day.
A planning inspector reported the extraction area had increased by at least 13.5 hectares since 1990 and she considered development carried out on dates after 1990 and 1997, when the Environmental Impact Assessment and Habitats Directives were respectively transposed into Irish law, would have required assessments under those Directives but such were not done.
Under Section 261, a quarry owner or operator must provide the planning authority with information including the quarry area, the material being extracted or processed, hours of operation, traffic and noise levels and planning permissions.
Meath County Council had in 2007 imposed 23 conditions under section 261 on the quarry’s future operations and gave a permission duration of 20 years.
In 2012, the Council, as required under section 261A (as amended in 2010), conducted a review and directed the quarry to apply for substitute consent on foot of findings including, having regard to the scale and characteristics of the quarrying development since 1990 and 1997, it was likely to have had significant effects on the environment.
It said an EIA, and an Appropriate Assessment, under the Habitats Directive, was required for reasons including the site’s proximity to the White Lough, Ben Loughs and Lough Doo candidate Special Areas of Conservation.
The quarry operator - JJ Flood & Sons (Manufacturing) Ltd and David Food, a director of that company - argued the Council’s decision was invalid. They claimed a quarry which stays within its pre-1964 use does not require development consent and, as a result, is not subject to the two Directives.
After An Bord Pleanála in June 2013 upheld the Council decision, the applicants appealed to the High Court.
In a judgment on Monday, Ms Justice Una Ní Raifeartaigh dismissed the appeal.
She disagreed a quarry which commenced operations before 1964 which stays within its pre-1964 use is by virtue of that automatically rendered immune from the Directives. Insofar as government guidelines published in 2012 suggested otherwise, those were “erroneous”.
“If you fall within the Directives, you need development consent,” she said.
EU law imposes “a positive obligation” on member states to ensure domestic law complies with the Directives.
The Council was entitled in 2012 to direct the applicants under section 261A to apply for substitute consent even where it previously imposed conditions which envisaged quarrying for another 20 years, she held.
The purpose of Section 261A was “to remedy” the State’s own failures in transposing the Directives. The statutory scheme on substitute consent is premised on the view a developer may be operating lawfully under domestic law but the situation may be defective from an EU law perspective and development consent therefore needs to be obtained retrospectively.
She disagreed section 261A is unconstitutional because it did not provide for adequate procedures in a process which, it was claimed, wrongly and unfairly removed rights “vested” in the quarry pre-1964.
A direction under Section 261A to apply for substitute consent amounted to a decision the quarry was not in compliance with EU law as set out in the Directives and, in order to comply, it must apply for substitute consent, she said. A section 261A direction did not amount to a finding of unauthorised development and rather gave an operator a “gateway” to regularising the planning status of the lands.
