Patrick McCaffrey and Sons Ltd v An Bord Pleanala (Approved)

Factual and Procedural Background

The Applicant Company, owner of a limestone quarry in The State, sought to quash two decisions of the Planning Appeals Board: one dismissing an application for substitute consent to continue quarrying operations, and another refusing conventional planning permission for further development at the same site. The High Court previously ruled against the Applicant on these matters in a judgment dated 14^th June 2024. The current opinion concerns the Applicant's request for leave to appeal that decision, which the Court refused. The Court emphasized that the direction to apply for substitute consent referred to the entire quarry, not just a part of it, rendering arguments about the quarry being a pre-1964 development irrelevant. The Applicant’s repeated submissions and assertions of confusion regarding the law were also rejected.

Legal Issues Presented

1. Does the Environmental Impact Assessment (EIA) Directive apply retrospectively to a quarry operating prior to 1 February 1990?
2. Does the Habitats Directive apply retrospectively to a quarry operating prior to 26 February 1997?
3. If affirmative to the above, can the EIA/Habitats Directives lawfully apply retrospectively to activity before the operative dates such that pre-existing development could be subject to assessment and/or restoration?
4. Does the Irish presumption against retrospective legislation preclude the retrospective application of the EIA/Habitats Directives to established development (commenced before 1 October 1964) or otherwise operating prior to the transposition dates?
5. Is an Environmental Impact Assessment required for a quarry operating under a pre-1964 established user?
6. Is an Appropriate Assessment required for a quarry operation under a pre-1964 established user?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9	Statutory test for leave to appeal under s.50A(7) PDA 2000	Relied upon to explain the cumulative requirements for leave to appeal
Fursey Maguire and Ors. v. An Bord Pleanála [2023] IEHC 209	Rejection of assertions of confusion and misapplication of law regarding quarries	Rejected Applicant's similar arguments as previously decided in this case
Rushe v ABP [2020] IEHC 429	Finality of High Court decisions on leave to seek judicial review in planning cases	Confirmed that High Court decisions on leave applications should generally be final
Hellfire Massy (No.2) [2021] IEHC 636	Leave to appeal applications must not be used to recalibrate the case	Applied to reject new arguments not raised at initial hearing
Flood v. An Bord Pleanála [2020] IEHC 195	Application of Environmental Directives to quarry developments	Followed as well-established precedent supporting the Court's reasoning
Worldport [2005] IEHC 189	Distinguishing factual applications of law in planning cases	Referenced to explain why Flood was not distinguishable
Westland and Bulrush [2018] IEHC 58	Relevant planning law principles	Impugned by Applicant but not accepted as relevant to this appeal
Case C-268/06 Impact (ECLI:EU:C:2008:223)	Principle that retrospective application of laws depends on clear domestic provisions	Rejected as inapplicable due to factual circumstances and statutory provisions
Phoenix Rock Enterprises v. An Bord Pleanála & Ors [2023] IESCDET 97	Supreme Court refusal of leave to appeal on similar grounds	Applied to support refusal of leave to appeal in current case
Liscannor Stone Limited [2020] IEHC 651 and [2021] IEHC 258	Rejection of retrospective application arguments and refusal of leave to appeal	Referenced as consistent authority rejecting Applicant’s grounds
McMonagle [2023] IEHC 487	Rejection of similar retrospective application arguments	Relied upon to support refusal of leave to appeal

Court's Reasoning and Analysis

The Court began by emphasizing the statutory framework under s.50A(7) of the Planning and Development Act 2000, which restricts appeals from decisions on leave applications to cases involving points of law of exceptional public importance and where it is in the public interest to allow an appeal. The Court found that the Applicant’s factual basis was rejected by the Court’s findings, particularly that the substitute consent application concerned the entire quarry, not just a pre-1964 portion. This factual rejection undermined the purported legal points raised.

The Court noted that the Applicant’s questions were hypothetical, abstract, and unrelated to the factual findings, effectively seeking advisory opinions rather than addressing issues arising from the case. The law concerning retrospective application of the Environmental Impact Assessment and Habitats Directives was held to be well-established and not uncertain. The Court rejected attempts to recalibrate the case by introducing new arguments or misrepresenting the state of the law, referencing prior decisions that consistently applied the same principles.

Furthermore, the Court addressed the Applicant’s reliance on a case concerning trade unions to argue against retrospective application, finding it inapplicable given the statutory scheme expressly contemplates retrospective environmental assessments as part of regulatory oversight. The Court also dismissed unsupported claims of confusion within the industry regarding the law, emphasizing the absence of evidence to substantiate such claims.

In sum, the Court applied established legal principles consistently with precedent, declined to certify the questions posed for appeal, and underscored the finality of its factual and legal determinations.

Holding and Implications

The application for leave to appeal is refused.

The direct consequence is that the High Court's earlier decision stands as final with no further appeal permitted on the grounds presented. No new precedent was established by this refusal. The ruling reinforces the principle that leave to appeal will only be granted in cases involving points of law of exceptional public importance and where it is in the public interest, particularly emphasizing the finality of judicial review decisions in planning matters under the relevant statutory provisions.