THE SUPREME COURT has today struck down two aspects of Irish planning legislation which were found to be in breach of EU law. 

Ireland’s national trust, An Taisce, launched two cases in relation to the regulation of quarries in Ireland, a sector which it says has a major environmental impact in Ireland and one which is also regulated under the EU Environmental Impact Assessment (EIA) Directive.

Environmental assessment is a procedure that ensures that the environmental implications of decisions are taken into account before the decisions are made.

Ireland introduced a provision under Section 177 of the Planning and Development Act 2000 which allows quarries to seek retrospective or “substitute consent” as an entitlement. 

Substitute consent is essentially a form of retrospective consent for developments requiring environmental impact assessments.

An Taisce argued in submissions to An Bord Pleanála in respect of quarry applications for substitute consent that these applications must be subjected to a case-by-case exceptional circumstances or “exceptionality” test.

The principle challenge by An Taisce in the case of one of the quarries 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”.

What all this means is that a significant provision in Irish legislation has been struck down as being in breach of a European environment directive.

In relation to a similar issue, An Taisce also queried the legality of the provision by which a quarry operator could seek leave to lodge a substitute consent application via internal communication with An Bord Pleanála.

At this moment in time, prospective applicants can contact An Bord Pleanála through this internal process that is not subject to public consultation.

An Taisce 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 Supreme Court rulings have major implications for other applications in the process of seeking leave to apply for substitute consent, including an application by Bord na Móna for substitute consent for its historic peat extraction activity on 41 individual bog units.

An Taisce said the decisions also have implications for future peat extraction activities on selected individual bog units situated across counties Offaly, Westmeath, Laois, Meath, Kildare and Longford.