Eco Advocacy CLG v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

This judgment concerns a contested application for leave to apply for judicial review under section 50 of the Planning and Development Act 2000 ("the 2000 Act") in relation to a decision by the respondent, a planning authority ("the Board"), dated 17 November 2021. The Board granted permission for a development to restore a disused quarry in County Meath to agricultural use, involving use of existing stockpiles, importation of inert excavation spoil, temporary offices, ancillary buildings, and site works adjacent to the Blackwater River.

The applicant is an environmental non-governmental organisation ("the Applicant") established to advocate on planning and environmental law issues, represented by a verified affidavit. The first notice party is a quarry operator ("Company A") who owns the quarry site. The Board did not participate in the leave hearing, which was contested by Company A.

Previously, the Board granted substitute consent for an unauthorised quarry at the site in October 2014, subject to a restoration plan to be completed within 24 months. The Applicant contends that no restoration occurred and that Company A continued quarrying beyond the scope of the 2014 consent, constituting unauthorised development without required planning permissions or environmental assessments. Company A acknowledges quarrying continued post-2014 but argues it was a continuation of pre-1964 quarrying and denies unauthorised development. Enforcement proceedings were initiated by the local authority in 2015 but are now considered moot except for restoration issues.

Company A also contends that the Applicant is motivated by animus and has opposed multiple developments involving Company A, although the court regarded these matters as irrelevant to the leave application. The local authority granted Company A a waste permit licence in August 2022 related to restoration works involving inert material importation. The Applicant has separately sought judicial review of that waste permit licence.

At the time of the hearing, phase one of the permitted works had been completed, including infilling the quarry void and infrastructural works such as a wheel wash and weighbridge.

Legal Issues Presented

1. Whether the Board erred in law by granting permission that effectively amounted to retention of unauthorised post-2014 development requiring an Environmental Impact Assessment (EIA) and Appropriate Assessment (AA) which were not conducted.
2. Whether the Board lawfully conducted an Appropriate Assessment under the Habitats Directive, specifically whether a stage 2 AA was required due to likely significant effects on protected species (otters) and whether reliance on mitigation measures at the screening stage was lawful.
3. Whether the Board complied with public notification and consultation obligations, including the adequacy of site notices regarding waste licensing requirements and the sufficiency of plans and particulars submitted with the planning application.

Arguments of the Parties

Applicant's Arguments

• Company A engaged in unauthorised quarrying after the 2014 substitute consent, requiring a fresh EIA and AA, which were not conducted, rendering the Board's permission unlawful.
• The Board erred in AA by improperly relying on a 65-metre setback mitigation measure at the screening stage, thereby failing to conduct a legally required stage 2 AA concerning otters, a protected species.
• The permission relates to activities requiring a waste licence rather than a waste permit, yet the site notice failed to indicate this and no consultation with the Environmental Protection Agency occurred. Further, the plans submitted lacked necessary detail about landfill structure and emissions control.
• The Applicant asserts it either raised these grounds during the appeal process or that they arise from legal errors manifest in the decision, justifying their inclusion in the judicial review.

Company A's Arguments

• Many grounds were not raised before the Board during the appeal and no explanation was given for this omission, rendering them inadmissible at judicial review stage, relying on established case law.
• The grounds improperly challenge the merits of the Board’s factual findings, which are unimpeachable absent allegations of irrationality.
• The challenge to post-2014 unauthorised development is an impermissible collateral attack on the 2014 substitute consent decision, which was not challenged at the time.
• Regarding AA, the Applicant conflates mitigation measures from the Environmental Impact Assessment with the AA screening process; the Board’s findings on otter disturbance are factual and not subject to irrationality challenge.
• Waste licence issues raised now were not adequately raised before the Board; condition 7(a) sensibly conditions implementation, and the waste permit issued limits waste to clean material, negating grounds based on alleged breaches.
• Separate proceedings concerning the waste permit licence should preclude re-litigation of those issues in this judicial review.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the leave application by reference to three groups of grounds advanced by the Applicant, focusing on whether they disclosed substantial grounds within the meaning of applicable law.

First group (Unauthorised development and EIA/AA requirements): The court found the Applicant raised substantial grounds and had sufficient interest to challenge the Board’s decision on the basis that post-2014 unauthorised quarrying occurred requiring environmental assessments and substitute consent which were not obtained. The court rejected the contention that this amounted to an impermissible collateral attack on the 2014 consent, noting the focus was on subsequent developments and legal consequences. The court granted leave to advance these grounds, leaving full factual and legal assessment to the substantive hearing.

Second group (Appropriate Assessment): The court accepted the Applicant’s argument that the Board erred by relying on a mitigation measure (a 65-metre setback) at the AA screening stage to conclude no stage 2 AA was required. The court found these grounds substantial and the Applicant had sufficient interest, given the involvement of protected species (otters) and EU law obligations under the Habitats Directive. The court granted leave to advance these grounds, reserving full evaluation for the hearing.

Third group (Public notification and waste licensing): The court found that the grounds concerning alleged failure to properly notify the need for a waste licence, absence of proper plans and particulars, and failure to consult with the Environmental Protection Agency disclosed substantial grounds. The Applicant had sufficient interest, having raised waste-related issues broadly at the appeal stage. The court granted leave to advance these grounds, noting that detailed assessment and any overlap with separate waste permit proceedings would be determined at the full hearing.

The court emphasised that the grant of leave does not imply entitlement to a stay of works on site; any such application would require a separate affidavit-based application and consideration of circumstances.

The court also noted that Company A and the Board remain entitled to raise all appropriate defences at the substantive hearing, including challenges based on whether grounds were properly raised during the appeal process.

Holding and Implications

The court’s final decision is to GRANT LEAVE to the Applicant to apply for judicial review on grounds E2 to E15 as detailed in the application. This permits the Applicant to pursue a full hearing on the substantive legal and factual issues raised.

The direct effect is that the judicial review proceedings may proceed on the identified grounds. No stay of site works is granted by this ruling. The decision does not establish new precedent but follows established principles on leave to apply for judicial review, environmental NGO standing, and judicial review of planning decisions.