Kelly v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

The Applicant challenged a decision made by the first-named Defendant, a planning authority ("ABP"), seeking an order of certiorari to quash ABP's decision dated 9 October 2013. The proceedings originally involved multiple issues and respondents, but the matter before the Court was confined to the Applicant's claim against ABP. The Applicant's claim centered on whether planning permission had been granted "in respect of" a quarry, with the Applicant relying on planning permissions granted in 2006 and 2007 for ancillary structures (a stone bagging shed and a waste-water treatment facility) related to the quarry. The Applicant contended that these permissions satisfied the statutory requirement under section 261A(3) of the Planning and Development Act 2000, as amended, thus entitling him to apply for substitute consent from ABP. The local authority had imposed conditions on the quarry’s operation and had registered the quarry under section 261. However, ABP determined that no planning permission had been granted in respect of the quarry itself and declined to direct the Applicant to apply for substitute consent, effectively leading to an imminent enforcement notice requiring cessation of quarry operations.

The legislative background involves the Planning and Development Act 2000 and its amendments, particularly sections 261 and 261A, enacted to ensure compliance with the European Union's Environmental Impact Assessment (EIA) Directive following a European Court of Justice ruling against the State. The Act requires quarry owners to register their quarries and enables local authorities to impose operational conditions. Section 261A introduced a substitute consent process for quarries operating without appropriate EIA screening or planning permission.

Legal Issues Presented

1. Whether planning permission granted for ancillary structures (a stone bagging shed and a waste-water treatment facility) constitutes planning permission "in respect of" the quarry within the meaning of section 261A(3) of the Planning and Development Act 2000, as amended.
2. Whether ABP provided adequate reasons for departing from the Inspector's recommendation and for its decision not to follow the statutory guidelines issued in January 2012 under section 261A.

Arguments of the Parties

Applicant's Arguments

• The planning permissions granted in 2006 and 2007 for the bagging shed and waste-water treatment facilities fall within the scope of planning permission "in respect of" the quarry as required by section 261A(3)(a)(i).
• The Guidelines issued in January 2012 and the Court of Appeal decision in Diamrem Limited v Cliffs of Moher Visitor's Centre Limited support a wide interpretation of the phrase "in respect of," which should include the permissions for ancillary structures related to the quarry.
• ABP erred in concluding that no planning permission had been granted in respect of the quarry, leading to an imminent enforcement notice without proper basis.
• ABP failed to provide adequate reasons for rejecting the Inspector's recommendation and for its interpretation of the statutory provisions and guidelines.

Defendant's Arguments (ABP)

• The planning permission for the shed and ancillary works does not equate to planning permission "in respect of" the quarry itself under section 261A(3)(a)(i).
• Section 261(6)(a)(ii) and the broader legislative context indicate that planning permission must relate specifically to the operation of the quarry, not merely to ancillary structures on the site.
• The Guidelines of January 2012 do not support the Applicant's broad interpretation; rather, they require that the permission be directly related to quarry operations.
• ABP provided clear reasons for departing from the Inspector's recommendation, grounded in statutory interpretation and relevant jurisprudence, including the necessity to comply with EU law requirements.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by examining the statutory framework of sections 261 and 261A of the Planning and Development Act 2000, focusing on the interpretation of the phrase "in respect of" as it applies to planning permission for quarries. The Court noted that section 261(6)(a)(ii) explicitly relates planning permission to the operation of the quarry, suggesting that permissions for ancillary structures do not satisfy this requirement.

While acknowledging the wide meaning of "in respect of" as established in Diamrem and other case law, the Court emphasized the importance of context and legislative purpose, particularly the need to comply with EU environmental law as reiterated in An Taisce and Shillelagh Quarries. The Court rejected a liberal or broad interpretation of substitute consent provisions that would allow retrospective permissions to circumvent EU law obligations.

The Court considered the Guidelines of January 2012 but found that they do not support the Applicant's argument that planning permission for ancillary activities suffices for the statutory requirement. The Court also found that ABP's reasons for rejecting the Inspector's recommendation were clear and adequate, grounded in the statutory scheme and relevant case law.

Consequently, the Court concluded that the planning permission required under section 261A(3)(a)(i) must be directly related to the operation of the quarry, and the permissions for the bagging shed and wastewater treatment facility did not meet this threshold.

Holding and Implications

The Court REFUSED the Applicant's application for certiorari to quash ABP's decision of 9 October 2013.

The direct effect of this decision is that ABP's determination that no planning permission had been granted in respect of the quarry stands, permitting the imminent enforcement notice requiring cessation of quarry operations. The Court did not set any new precedent beyond affirming existing interpretations of the statutory provisions and the necessity to comply with EU law. Costs are provisionally awarded to ABP, with an opportunity for the Applicant to make submissions.