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Supreme Court: State refused application to prevent challenge to quarry development

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The State has been unsuccessful in its application to prevent a challenge to planning permission granted by An Bord Pleanala for the development of a quarry in Donegal.

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About this case:

The State argued that the challenge amounted to an impermissible collateral attack on an earlier decision by Donegal County Council, however Chief Justice Frank Clarke held that this was impossible to determine without hearing the substantive issues in the case. As such, the Supreme Court upheld the decisions of the High Court and Court of Appeal, and dismissed the State’s appeal.

Underlying proceedings

The former system of retention permission given for existing developments which had been carried out without an appropriate planning permission was found to be inconsistent with European law. As a result, a new system of substituted consent was introduced.

At issue in the underlying proceedings was the validity of a substituted consent decision made by An Bord Pleanala, in relation to the development of a quarry in Co. Donegal.

Mr Peter Sweetman sought two alternative remedies:

  1. Whether the Board was required, as part of its consideration, to assess whether “exceptional circumstances” could be shown to exist. The “gateway” to an assessment by the Board in a case such as this involves an initial decision by the relevant local authority (i.e. Donegal Co. Council) which, if positive, permits the matter, in circumstances which it will be necessary to set out in more detail, to go to the Board. There is thus an initial determination by the relevant local authority and a further determination by the Board.

  2. In the event that the legislation in question, properly construed, did not place an obligation on the Board to consider exceptional circumstances, it followed that the overall consent process was contrary to European law.

    3. Impermissible collateral challenge

    Ireland and the Attorney General (the State) brought an application before the High Court contending that Mr Sweetman’s challenge to the decision of the Board amounted to an impermissible collateral challenge to the earlier decision of Donegal County Council, which challenge had been brought it was said, at a time which was well outside the period during which such a challenge was required to be initiated.

    The High Court disagreed and dismissed the State’s application. The Court of Appeal dismissed the State’s appeal.

    Supreme Court

    The Supreme Court considered the following issues:

    1. Whether, having regard to the provisions of the Planning and Development Acts 2000-2010, and having regard to the events and circumstances involved in this case, it could properly be said that the challenge brought on behalf of Mr Sweetman to the decision of the Board amounted to a collateral challenge to the earlier decision of Donegal County Council; and

    2. Consequently, whether the decision of the Court of Appeal to refuse to dismiss Mr Sweetman’s application as against the State should be overturned.

      3. Collateral Attack

      Considering K.S.K. Enterprises Ltd. v. An Bord Pleanála 2 I.R. 128; Goonery v. Meath County Council IEHC 15; Lennon v. Cork City Council IEHC 438; and Nawaz v. Minister for Justice, Equality and Law Reform 1 I.R. 142; Chief Justice Clarke said the rationale behind the collateral attack jurisprudence was that a “party who has the benefit of an administrative decision which is not challenged within any legally mandated timeframe should not be exposed to the risk of having the validity of that decision subsequently challenged in later proceedings which seek to quash the validity of a subsequent decision on the basis that the earlier decision was invalid”

      Chief Justice Clarke said that it was impossible to determine whether Mr Sweetman’s challenge amounted to a collateral attack without deciding the substantive issues in the case.

      On Mr Sweetman’s case it was necessary that there be an assessment of individual exceptionality in every application for substitute consent; and if so there must be some stage in the process where that individual exceptionality must be determined.

      There was nothing obvious in the legislation that, should it be found necessary as a matter of European law to imply an obligation to assess exceptionality in each individual case, as to which stage in the process that exercise should be carried out.

      Chief Justice Clarke concluded that collateral attack jurisprudence should only be deployed to prevent a substantive case being heard in circumstances where it was obvious that, on a proper analysis of the relevant scheme, an earlier decision taken at some point in the process in question was intended to be final and definitive. In such a case, it would follow that an attempt to challenge the validity of the earlier decision, as grounds against the validity of a subsequent decision in the same process, outside of the time limit for challenging the original decision, amounts to an impermissible out of time collateral challenge to the decision earlier made and is in breach of the principle of legal certainty.

      Dismissing the State’s appeal, Chief Justice Clarke said that he was not satisfied that this was a clear case, and it was therefore not appropriate to prevent a substantive hearing as it was “necessary to determine at least some of the substantive issues which would arise in these proceedings in order properly to analyse the scheme as a whole and determine at what point, if any, the question of individual exceptionality must be assessed”.

      • by Seosamh Gráinséir for Irish Legal News

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