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Cite as: [2020] IEHC 133

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THE HIGH COURT

[2020] IEHC 133

[2018 No. 929 JR]

IN THE MATTER OF SECTION 50 AND SECTION 50A OF THE PLANNING AND

DEVELOPMENT ACT 2000 AS AMENDED

BETWEEN

LAURENCE BEHAN

APPLICANT

– AND –

AN BORD PLEANÁLA

RESPONDENTS

JUDGMENT of Mr Justice Max Barrett delivered on 12th March 2020.

1. These judicial review proceedings arise out of a deficient application for substitute consent

and a related further development application in respect of a quarry at Rathcoole, Co.

Dublin. It is useful to begin with a summary chronology of some key events:

1710 - Quarrying begins on applicant’s lands at Windmill Hill, Rathcoole.

09.07.1968 - Permission granted for stone quarrying at Windmill Hill.

24.10.2013 - Application for substitute consent lodged with An Bord Pleanála (“Board”).

16.04.2014 - Inspector issues memo. to Board identifying flawed nature of application.

11.05.2015 - Inspector carries out site inspection and prepares related report of

14.05.2015.

25.11.2015 - Application for continued development made under s.37L of the Planning

and Development Act 2000 (as amended) (“PADA”).

23.05.2018 - Board holds meeting to consider substitute consent and s.37L applications.

21.09.2018 - Board decides to refuse said applications.

16.11.2018 - Within proceedings commence.

2. Section 177E(2)-(3) of the PADA provide, inter alia, as follows:

“(2) An application to the Board for substitute consent shall - …

177B(2), section 261A(3)(c)…shall be accompanied by a remedial

environmental impact assessment report or remedial Natura impact

statement or both that report and that statement, as the case may be…

(f) comply with any requirements prescribed under section 177N…

(3) An application for substitute consent which does not comply with the requirements

of subsection (2) shall be invalid.”

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3. Section 177N(1) of the PADA, as referred to in s.177E(2)(f) empowers the Minister “by

regulations [to] make provision for such matters of procedure and administration as

appear to the Minister to be necessary or expedient in respect of this Part”.

4. The Planning and Development (Amendment) (No 3) Regulations 2011 (“2011

Regulations”) were made, inter alia, under s.177N of the PADA. Article 227(2) of those

regulations provides, inter alia, as follows:

“An application for substitute consent shall, in addition to the requirements of section

177E…(b) be accompanied by 6 copies of a location map…marked so as to identify

clearly:

(i) the land or structure to which the application relates and the boundaries thereof in

red,

(ii) any land which adjoins, abuts or is adjacent to the site the subject of the

application and which is under the control of the applicant or the person who owns

the land which is the subject of the application in blue…”.

5. Unfortunately, when one has regard to the foregoing there is a fundamental defect in the

application in issue in these proceedings: the six copies of the location map presented

redline the wrong lands or, more accurately, a parcel of land (40.875 hectares) that far

exceeds the parcel of land (5.95 hectares) to which the application for substitute consent

relates. This was not just a slip of the red pen; it was a serious and material defect. What

presented, therefore, was, to borrow from s.177E(2)(f) of the PADA an application for

substitute consent that did not comply with “requirements prescribed under section 177N”

and hence, per s.177E(3) of the PADA an invalid application for substitute consent.

6. Article 228 of the 2011 Regulations provides, inter alia, as follows:

“(1) On receipt of an application, the Board shall consider whether the applicant has

complied with the requirements of…[Art. 227].

(2) Where the Board considers that an application for substitute consent complies with

the requirements of section 177E(2) of the Act and…[Art. 227] it shall send to the

applicant an acknowledgement of the application, stating the date of its receipt.

(3) Where, following consideration of an application for substitute consent under sub-

article (1), the Board considers that the application for does not comply with the

requirements of s.177E(2) of the Act or…[Art. 227], and that such non-compliance

constitutes a material defect in the application which cannot be readily rectified

through the submission of additional documentation, the application for substitute

consent shall be invalid and the Board shall return the application to the applicant

with a notice stating that the application is invalid and stating the reason or reasons

that the application is invalid and shall return to the applicant any fee paid with the

application.”

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7. The court respectfully does not see that the Board could properly have concluded that it

had before it an application that complied with Art. 227, for the simple reason that the

application patently did not so comply. As it happens, the Board was advised of the

difficulties presenting in a memorandum of 16 April 2014 from a planning inspector. The

court accepts that the Board is not bound by the inspector and that an inspector’s report

is but one piece of evidence before the Board which falls to be taken into account by the

Board (see, e.g., M & F Quirke & Sons v. An Bord Pleanála [2009] IEHC 426; Craig v. An

Bord Pleanála [2013] IEHC 402). However, the court does not see that it is open to the

Board to conclude that it has an application before it which complies with Art. 227 when

such application (pursuant to Art. 227(2)(b)) includes six copies of a location map which

is, on its face, patently and materially defective, referring to a parcel of land (40.875

hectares) that far exceeds the parcel of land (5.95 hectares) to which the application for

substitute consent relates. Discretion in decision-making does not entitle a decisionmaker

to decide that night is day; deference to expert decisionmakers does not require a court

engaged in judicial review to defer to the utterly wrong; in any administrative or judicial

proceedings certain undeniable and unalterable facts present; here one such fact is that,

when it came to the six location maps supplied in purported compliance with Art. 227(2),

to borrow a colloquialism, the Board was confronted with such a ‘mess’ as to place the

applicant in the type of terrain anticipated by, e.g., R. v. Rochdale MBC, ex parte Tew

[2000] Env. LR 1.

8. The result of all the foregoing is, again, that under s.177E(3) of the PADA the Board had

before it an application for substitute consent that was invalid and pursuant to which a

substitute consent could not lawfully issue.

9. Art. 228(4) of the 2011 Regulations provides, inter alia, as follows:

“Where, on inspection of the land to which the application for substitute consent relates,

the Board considers that…the information submitted in the application is

substantially incorrect…the application shall notwithstanding the fact that an

acknowledgement has been sent to an applicant in accordance with sub-article (2)

be invalid and the Board shall return the application to the applicant with a notice

stating that the application is invalid and stating the reason or reasons that the

application is invalid and shall return to the applicant any fee paid with the

application.”

10. The court respectfully does not see that the Board could properly have concluded, after

the doing of the inspector’s site inspection, that it had before it an application that was

other than substantially incorrect, for the simple reason that the said application was

patently and substantially incorrect. Again, the court accepts that the Board is not bound

by the inspector and that an inspector’s input is but one piece of evidence before the

Board which falls to be taken into account by the Board. However, in all the

circumstances presenting, the court does not see that the Board could properly conclude

that it had before it an application that was other than substantially incorrect: rather, it

had before it an application which, in purported compliance with Art. 227(2), included six

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copies of a map that on its face, was patently substantially incorrect, referring to a parcel

of land (40.875 hectares) that far exceeded the parcel of land (5.95 hectares) to which

the application for substitute consent related (and where, as it happens the patent/glaring

material deficiency had expressly been drawn to the Board’s attention).

11. In passing, the court notes that it is contended by the applicant, and rightly accepted by

the Board, that all of the above-quoted provisions are mandatory in substance and effect.

That this is so is clear, e.g., from Sweetman v. An Bord Pleanála [2020] IEHC 39;

however, the point is conceded and does not require to be decided.

12. Section 126(1) of the PADA provides, inter alia, that “[i]t shall be the duty of the Board to

ensure that appeals and referrals are disposed of as expeditiously as may be and…to take

all such steps as are open to it to ensure that, in so far as is practicable, there are no

avoidable delays”. Section 177P states that “Section 126 shall apply in relation to the

duty of the Board to dispose of applications for substitute consent”. Mr Behan submitted

his (invalid) substitute consent on 24.10.2013. From late-April 2014 it should have been

obvious to the Board (it was patently obvious from the documentation submitted) that it

had before it an invalid substitute application. Yet it was not until 21 September 2018

that the Board decided the (invalid) substitute consent application. Even if matters were

otherwise, even if there was no legal issue presenting (and the court is of the view that

there is legal issue presenting) in the fact that An Bord Pleanála proceeded with the

(invalid) substitute consent application despite the mandatory provisions referred to

above, there was in any event a 17-month period from 22 December 2016 to 23 May

2018 when the Board did nothing to progress the (invalid) application, with no final

decision being made until 21 September 2018. So, no matter how one looks at matters, a

delay presents (in the court’s view from sometime around late-April 2014 – when what

presented was, by virtue of 177E(3) of the PADA, an invalid substitute consent application

– to May 2018; and in the Board’s best-case scenario – which the court does not accept

to be the scenario presenting – from December 2016 to May 2018) that is in breach of

s.126(1), that violates Mr Behan’s constitutional right to fair procedures and which

contravenes Art. 41 of the Charter of Fundamental Rights of the European Union and/or

the right to good administration that was recognised as a general principle of European

Union law in H.N. v. Minister for Justice, Equality and Law Reform (Case C-604/12)

[ECLI:EU:C:2014:302]. The court respectfully does not see it as a mitigant, certainly not

much of a mitigant, that there was a shortage of Board members for a while sometime

around mid-2017; and there is no rule of law that staffing issues within an administrative

body must inexorably rebound to the detriment of a person making application to same,

even if that detriment is ‘but’ that that person must wait an inordinate/unreasonable time

for a decision on such application (here on a patently invalid application).

13. The court does not see that the decision on the s.37 application can stand if the substitute

consent decision falls (and it must fall in light of the foregoing findings of the court). The

whole concept of further development rests on there being at some point a substitute

consent in respect of a related quarry substitute application. Here, a refusal of further

development followed (as in truth it had to) once the substitute consent was refused

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(though as has become clear in these proceedings, the whole process was infected by the

fact that what went before the Board was an invalid substitute consent application which

could never lawfully have been successful).

14. So far in the within judgment, the court has largely (and respectfully) agreed with the

submissions made by the applicant. However, there are also certain elements of the

submissions of the respondent with which the court respectfully agrees, viz:

(1) the applicant claims that a further deficiency which presented in his substitute

consent application was a breach of Art. 224(c)(ii) of the 2011 Regulations in that it

failed to mention that the application related “to development consisting of or

comprising the carrying out of works to a protected structure….” However, the

application on its own terms did not relate to any carrying out of any works to a

protected structure (here a ruined windmill). With the benefit of hindsight, it may

now appear arguable that perhaps some of the land that was the subject of the

substitute consent process was within the curtilage of the ruined windmill (if one

makes the assumption that an entire field comprises the curtilage of the ruined

windmill). However, An Bord Pleanála can only ever determine such applications as

are before it, not such applications as might be before it;

(2) much the same point can be made in relation to the applicant’s suggestion that his

own site notice was deficient, by reference to Art. 223(1)(b)/225. An image/copy of

the site notice, as displayed, has not been placed in evidence. However, the

evidence that is before the court suggests that what went into that site notice was

that what was proposed were quarrying works, with no mention of development of

the windmill or its curtilage. There is, however, good reason why the site notice

would have been worded so, if it was worded so (again there is a slight lacuna in

the evidence in this regard), in that what the applicant understood himself to be

proposing was quarrying works, not development of the ruined windmill or its

curtilage. Neither An Bord Pleanála nor the court can determine matters by

reference to an application that might have been made; they can only proceed by

reference to such application as was made.

(3) the court does not accept that where a party purporting to act pursuant to a

s.177E(2) submits a remedial Environmental Impact Statement (“rEIS”) that is

later found to be deficient, it follows that what was initially submitted was not a

rEIS: what was submitted in such a scenario is a rEIS that has later been found to

be possessed of one or more deficiencies. In a situation where one or more serious

deficiencies was found to present, the Board would presumably refuse the

substitute consent by reference (inter alia or otherwise) to same.

Conclusion

15. Having regard to the foregoing, the court will grant reliefs (i), (iii), (iv), (vii) (save that it

proposes to add the words ‘and also in breach of s.126 of the Planning and Development

Act 2000, as amended’ to the end of the text in the notice of motion, though it will hear

the parties in this regard) and (viii) (save that it proposes to add the words ‘and also in

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breach of the right to good administration, a general principle of European Union law’ to

the end of the text in the notice of motion, though it will hear the parties in this regard).

As to proposed relief (vi), given what was before the Board was an invalid substitute

consent application that could never have been successful, it seems more appropriate for

the court simply to grant an order of certiorari in respect of the decision refusing

permission for continued development at the site having An Bord Pleanála Reference No.

PL 06S.QD.0003.

Result: Judgment in favour of the applicant