The s.34(11)/s.37 Interface Clarified: No Automatic Stay of an Issued Planning Grant Pending An Bord Pleanála Appeal

Introduction

This judicial review arises from the complex procedural history of a quarry expansion by Breedon Cement Ireland Ltd (formerly Lagan Cement) in County Meath and the Applicant’s efforts to halt implementation pending appellate oversight by An Bord Pleanála. The Applicant, a neighbouring farmer, sought a stay on planning permission Ref. 22/1184, alleging wide-ranging environmental, personal, and agricultural harms, and asserting that a later-granted appeal to the Board should make the planning authority’s grant inoperable.

The case presents two central issues:

• Whether an appeal to An Bord Pleanála—granted out of sequence due to a successful judicial review of an earlier refusal of leave—operates as a stay or otherwise prevents the implementation of a planning grant already issued under s.34(11).
• Whether, on the interim relief test (Okunade), the balance of justice warranted a stay given the Applicant’s allegations and the development’s progress.

The judgment addresses a statutory lacuna created when a planning grant and a Board appeal exist simultaneously, and clarifies the boundary between judicial interpretation and legislative policy-making in planning law.

Summary of the Judgment

• No stay by construction of the Act: The Planning and Development Act 2000, read as a whole, creates a two-step process (decision to grant, then the grant of permission). Section 34(11) mandates the grant where no appeal is taken within the period. Section 37(1)(b) provides that an appeal’s decision annuls the planning authority’s decision. The Act does not provide that the making of an appeal (including under s.37(6)) annuls or stays an already issued grant.
• Lacuna acknowledged, but no judicial insertion: Although the situation—simultaneous existence of a grant and a Board appeal—was likely not envisaged by the Oireachtas, the court cannot rewrite the statute to create a stay. Any fix is legislative.
• Interim relief refused on the merits: Applying the Okunade framework (with leave/substantial grounds already granted earlier), the balance of justice did not favour a stay:
  • No expert or independent evidence substantiated alleged environmental or personal harms.
  • Significant delay and lack of candour (including a demonstrably inaccurate averment about the development “encircling” the applicant’s property).
  • Futility: a stay would likely intensify operations in already permitted areas, with no net environmental benefit.
  • Existing planning permission remains valid and operative; no demonstrated breach of EU law.
• Result: Application for a stay refused.

Analysis

Procedural and Statutory Context

Breedon applied in September 2022 to deepen part of its existing limestone quarry. The planning authority decided to grant, and in the absence of a valid appeal within time, issued the grant on 20 December 2022 (s.34(11)). The Applicant’s attempt to access s.37(6) (adjacent landowner’s leave to appeal) was initially refused by the Board on 15 December 2022. That refusal was later quashed by the High Court on 23 January 2024, and the Board granted leave to appeal on 26 February 2024, with an appeal lodged on 11 March 2024. By then, Breedon had commenced the development (April 2023).

This sequence produced an unusual—and legally consequential—state: a valid grant was already in force when the Board appeal came into being. The Applicant argued that the appeal must render the grant inoperable; the Notice Party argued that the statutory scheme makes annulment a function of the Board’s decision, not of the lodging of an appeal.

Precedents Cited and Their Influence

• Friends of the Irish Environment CLG v Legal Aid Board [2023] IECA 19 (Murray J): Reaffirmed that statutory interpretation engages language, context, and purpose together, with language central but not isolated. In Payne, this anchored the court’s approach: begin with the text of ss.34 and 37, read within the Act’s architecture.
• DPP v Brown; Minister for Justice v Vilkas; Dunnes Stores v Revenue; Bookfinders; DPP v AC: Cited (via FIE) for the modern Irish interpretive method—language-context-purpose triad. The court applied this triad but found no ambiguity permitting judicial insertion of a stay.
• McGlinchy v Governor of Portlaoise Prison [1988] IR 671; Frescati Estates Ltd v Walker [1975] IR 177; Twil Ltd v Kearney [2001] 4 IR 476; O v M [1977] 1 IR 33: Authorities for purposive construction and avoiding absurdity. The Applicant leaned on these to argue that the Act should be read to prevent co-existence of a grant and an appeal. The court accepted purposive tools but concluded the statutory language was neither obscure nor ambiguous; purposive interpretation cannot rewrite the scheme.
• Interpretation Act 2005, s.5: Permits non-literal construction if literal reading is obscure/ambiguous or absurd or fails to reflect clear legislative intent. The court found the wording clear and the “absurdity” insufficient to justify judicial redrafting.
• Murphy v GM; Gilligan v Criminal Assets Bureau [2001] 4 IR 113: A construction yielding absurd or unintended results should be avoided, but only where language allows an alternative. Here, it did not.
• Heather Hill v An Bord Pleanála [2022] IESC 43 (Murray J): Burden lies on the party challenging the plain meaning to show why the provision does not have that effect. The Applicant could not displace the plain reading that annulment flows from the Board’s decision, not from the lodging of an appeal.
• Okunade v Minister for Justice [2012] IESC 49: Test for interim relief—arguable case and balance of justice. As leave/substantial grounds had already issued, the focus was the balance. Lack of evidence, delay, and futility tipped the scales against a stay.
• Hanrahan v Merck Sharp & Dohme [1988] ILRM 629: Referenced as analogous nuisance litigation, underscoring the need for expert evidence to connect alleged harm with industrial activity. The Applicant furnished no such evidence here.
• Kirwan v Connors [2025] IESC 21: Supreme Court’s reiteration of the duty to prosecute litigation with expedition. The Applicant’s litigation conduct weighed against interim relief.

Legal Reasoning

The court’s analysis rests on the internal architecture of the Planning and Development Act 2000:

• Two-step architecture (s.34): The Act distinguishes between (i) the decision to grant permission and (ii) the making of the grant (s.34(11)). Appeals are open after the decision is notified. If an appeal is then brought, the planning authority must not make the grant unless certain events occur (withdrawal, dismissal, or direction: s.34(11)(a)(ii)). In the present case, no valid appeal prevented the grant when the decision period expired; therefore, the authority had to issue the grant.
• Annulment mechanism (s.37(1)(b)): Where an appeal “is brought and is not withdrawn,” the Board determines the application as if at first instance; the “decision of the Board” then “operate[s] to annul” the planning authority’s decision “as from the time when it was given.” The plain text makes annulment the consequence of the Board’s decision, not of the appeal’s mere existence.
• Adjacent landowner appeals (s.37(6)): This subsection allows a person with an interest in the relevant land to seek leave to appeal. Critically, s.37(6)(g) provides that “where an application is made under this subsection a planning authority shall not make a grant of permission unless the application is refused.” This presupposes a timely s.37(6) application lodged before the grant issues. Here, the grant issued after the Board had refused leave; only later was that refusal quashed and leave granted, creating the anomaly of a grant and an appeal co-existing.

The Applicant’s core contention—that the Act should be read to nullify or stay an already-issued grant once leave to appeal is subsequently allowed—was rejected for three reasons:

1. Textual clarity: The annulling effect is expressly tied to the Board’s decision (s.37(1)(b)). Reading a suspensory effect into the making of an appeal or into the quashing of an earlier refusal of leave would contradict the structure of s.34(11) and unravel the machinery permitting grants to issue after the appeal period lapses.
2. Separation of roles: Courts interpret statutes; they do not legislate. While acknowledging a lacuna (grant and appeal co-existing), the court held that inserting a stay power would be a legislative act.
3. Systemic coherence: If an appeal’s lodging annulled the decision or stayed the grant retrospectively, provisions dealing with the consequences of withdrawal, dismissal, or directions under s.139 would be deprived of function, undermining the Act’s coherence.

Application to the Interim Relief (Okunade) Factors

• Evidence of harm: Despite serious allegations about health, environmental pollution, and agricultural loss, the Applicant furnished no independent or expert evidence. The facility operates under an EPA licence and the permission followed a technical process that engaged statutory consultees.
• Delay and litigation conduct: Multiple proceedings were issued without expedition, and the Applicant failed to notify the Notice Party in advance of key steps. The Supreme Court’s emphasis on expedition in Kirwan weighed against relief.
• Futility: A stay would not reduce output; it could intensify blasting and extraction in pre-existing permitted zones, increasing heavy traffic without environmental gain—an argument the court found persuasive.
• Public interest / EU law: With a valid grant in force and no proof of harm or non-compliance with the Habitats or EIA Directives, there was no public-law basis to halt the development pending appeal. The court cautioned against presuming EU law requires an automatic standstill in these circumstances absent statutory direction and evidence of risk.
• Candour: The Applicant’s sworn claim that the new development “encircles” his property was untrue, undermining credibility and further counting against equitable relief.

Impact and Implications

The judgment clarifies a recurrent practical concern in Irish planning litigation and sets a consequential precedent:

• No automatic suspensive effect for late s.37(6) appeals: Once a grant has issued, it remains operative unless and until the Board annuls the decision on appeal. Objectors cannot rely on a later appeal (even one enabled by quashing an earlier refusal of leave) to freeze implementation.
• Legislative gap highlighted: The court expressly identifies a lacuna. In rare sequences where the Board’s refusal of leave is quashed after a grant issues, there is no statutory standstill. The judgment signals that any policy choice to stay the grant in such cases must be made by the Oireachtas, not fashioned judicially.
• Practice guidance for stakeholders:
  • Objectors/adjacent owners: Engage early (submit observations), lodge timely s.37(1) appeals or s.37(6) applications, and provide expert evidence for interim relief. Seek undertakings promptly and give fair notice of litigation steps.
  • Developers: Once the grant issues and no timely appeal prevents it, implementation may proceed. However, be alert to prospective appeals and consider risk management (e.g., phased works, undertakings) where litigation is reasonably foreseeable.
  • Planning authorities: Maintain strict adherence to s.34(11) timelines; note that the existence of a later appeal does not retrospectively disable the grant absent Board determination.
  • An Bord Pleanála/The Commission: Be conscious that granting leave after a grant has issued does not create an automatic standstill; expedition in determining such appeals may mitigate practical tensions.
• Interim relief rigor: Allegations of environmental harm require cogent evidence. The court will scrutinize delay, candour, and practical consequences (including futility) when asked to restrain permitted development.

Complex Concepts Simplified

• Decision to grant vs. Grant of permission: The planning authority first makes a “decision to grant” (notifying parties and triggering appeal rights). Only later does it “make the grant” (the formal permission). Appeals are intended to be lodged between these steps; if lodged, the grant is generally held back.
• Annulment under s.37(1)(b): If the Board upholds or varies the application on appeal, its decision annuls the planning authority’s decision, effectively substituting the Board’s decision. Annulment is an effect of decision, not appeal filing.
• Leave to appeal (s.37(6)): Adjacent landowners who did not make submissions can ask the Board for leave to appeal. While that application is pending, the planning authority cannot make the grant unless the application is refused. This assumes the application is made before a grant has issued.
• Stay vs. Injunction: A “stay” pauses the effect of a decision; often courts are asked to grant an interlocutory injunction to restrain implementation. The Okunade test guides whether to grant such interim relief pending the full hearing.
• Lacuna: A gap in the statutory scheme. Here, the Act did not foresee an appeal arising after a grant had issued due to earlier judicial review, leaving no express mechanism to pause the grant.
• Futility in interim relief: Courts may refuse interim orders that would not achieve a meaningful protective effect or would produce counterproductive outcomes.

Conclusion

Payne v Meath County Council delivers a clear, practice-oriented rule in Irish planning law: the issuance of a grant of permission under s.34(11) is not suspended by the later lodging of an appeal to An Bord Pleanála under s.37, even if leave to appeal emerges following the quashing of an earlier refusal. Annulment occurs only when the Board determines the appeal. The High Court declined to engage in judicial legislation to plug an acknowledged statutory gap, signalling that any suspensive mechanism in these rare circumstances must come from the Oireachtas.

On interim relief, the judgment stands as a reminder that the balance of justice turns on evidence, expedition, candour, and practical efficacy. Unsupported assertions of environmental harm and litigation delay will not carry the day, particularly where a stay could be futile or counterproductive.

In the broader legal context, this decision reinforces:

• The primacy of statutory text in the planning code’s carefully staged processes.
• The limits of purposive interpretation where language is clear and policy choices remain for the legislature.
• The necessity for early, evidence-based engagement by neighbours seeking to restrain development.

Practical takeaway: Until legislative change, parties should plan for the possibility that development may lawfully continue under an issued grant while a Board appeal is pending, unless and until the Board decides otherwise or a court, applying Okunade, grants a tailored interlocutory injunction on robust evidence.