What is substituted consent?
Substituted consent is a form of retention permission, whereby a person can obtain planning permission for a building or development after that building has already been erected. It has a long and colourful history in Irish law, having first been officially introduced by Section 27 of the Local Government (Planning and Development) Act of 1963.
In essence it is retrospective planning permission, granted by An Bord Pleanala (ABP), in instances where a valid environmental impact statement (EIS) should have been carried out, but was not.
What made it very attractive for developers was that it could be obtained without many of the usual prerequisites of a planning permission application, namely the lodging of a valid EIS, and perhaps more importantly, without the usual period of public notice and consultation. This allowed many unscrupulous developers to start up businesses illegally (quarries seem to be the favourite) and then apply for planning permission as an afterthought, usually after the damage to the environment had occurred.
The relevant legislation is Part XA of the Planning and Development Act of 2000 (“the 2000 Act”), which was added to the Act in 2010 by an amendment Act. This amendment was an effort to appease the European Court, which found against Ireland in 2006 because the relatively easy manner in which retention planning could be obtained in this country was inconsistent with the European Impact Assessment (EIA) Directive.
The amendment Act was clearly a rush job, as it is a sloppy piece of drafting.
The (most) important section introduced by the amendment Act is Section 177 of the 2000 Act, which consists of a whopping seventeen subsections (Sections 177A-177Q).
The applicant for substituted consent must still jump through a few hoops. For the purposes of this piece, one of the hoops that needs to be navigated is that the applicant must apply to ABP for permission to apply, which is known as applying for leave to apply. This is governed by Section 177D of the Act:
(1) The Board shall only grant leave to apply for substitute consent in respect of an application under section 177C where it is satisfied that an environmental impact assessment, a determination as to whether an environmental impact assessment is required, or an appropriate assessment, was or is required in respect of the development concerned and where it is further satisfied—
(a) that a permission granted for development by a planning authority or the Board is in breach of law, invalid or otherwise defective in a material respect whether by reason of a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union, or otherwise, by reason of—
(i) any matter contained in or omitted from the application for the permission including omission of an environmental impact statement or a Natura impact statement or both of those statements as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or
(ii) any error of fact or law or procedural error,
(b) that exceptional circumstances exist such that the Board considers it appropriate to permit the opportunity for regularisation of the development by permitting an application for substitute consent.
(2) In considering whether exceptional circumstances exist the Board shall have regard to the following matters:
(a) whether regularisation of the development concerned would circumvent the purpose and objectives of the Environmental Impact Assessment Directive or the Habitats Directive;
(b) whether the applicant had or could reasonably have had a belief that the development was not unauthorised;
(c) whether the ability to carry out an assessment of the environmental impacts of the development for the purpose of an environmental impact assessment or an appropriate assessment and to provide for public participation in such an assessment has been substantially impaired;
(d) the actual or likely significant effects on the environment or adverse effects on the integrity of a European site resulting from the carrying out or continuation of the development;
(e) the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated;
(f) whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development;
(g) such other matters as the Board considers relevant.
(3) In deciding whether it is prepared to grant leave to apply for substitute consent under this section the Board shall have regard to any information furnished by the applicant under section 177C(3) and any information furnished by the planning authority under section 177C(5).
(4) The Board shall decide whether to grant leave to apply for substitute consent or to refuse to grant such leave.
(5) The decision of the Board under subsection (4) shall be made—
(a) 6 weeks after the receipt of an application under section 177C(1),
(b) 6 weeks after receipt of additional information from the applicant under section 177C(3)(b), or
(c) 6 weeks after receipt of information from the planning authority under section 177C(5),
whichever is the later.
(6) The Board shall give notice in writing to the applicant of its decision on the application for leave to apply for substitute consent and of the reasons therefor.
(7) Where the Board decides to grant leave to apply for substitute consent, the notice under subsection (6) shall also contain a direction—
(a) to apply for substitute consent not later than 12 weeks after the giving of the notice, and
(b) to furnish with the application a remedial environmental impact statement or a remedial Natura impact statement, or both of those statements as the Board considers appropriate.
(8) The Board shall give a copy of the notice of its decision under subsection (6) and direction under subsection (7) to the planning authority for the administrative area in which the development the subject of the application for leave to apply for substitute consent is situated and details of the decision and direction shall be entered by the authority in the register.
As with many applications, it is the leave to apply that is the main battleground, as the authority concerned has to consider essentially the very things that they will be called on to deliberate when considering the application itself. In other words, if one is granted leave to apply, there is a good chance that the ultimate permission (in this case substituted consent) will be granted.
All this has dramatically changed with the decision of the Supreme Court in An Taisce/Peter Sweetman v An Bord Pleanala. Paragraph numbers refer to the paragraphs of the original judgment: 01.07.2020-An-Taisce-v.-An-Bord-Pleanála-Peter-Sweetman-v.-An-Bord-Pleanála.
The judgment of the Supreme Court
On the one side were the Applicants, An Taisce and Mr. Peter Sweetman, and on the other side was the ABP with the owner of one of the quarries in question, Ms. Sharon Browne, as Notice Party (not a litigant per se, but with a recognised interest in the outcome).
For the purpose of the Supreme Court hearing, three appeals were heard together, as they all concerned quarries applying for substituted consent in similar circumstances, with two of the appeals concerning the same quarry and the same decision by the ABP.
The first matter before the Supreme Court was the appeal by An Taisce against the decision of the ABP to grant substitute consent in 2014 to J McQuaid Quarries Ltd for a quarry at Lemgare, Co Monaghan.
A second and third appeal by An Taisce and Mr. Sweetman respectively was against the decision of the ABP to refuse to accept written submissions from them opposing Sharon Browne’s application for leave to apply for substitute consent for a quarry at Ballysax, The Curragh, Co Kildare. Ms. Brown was the owner and operator of the quarry.
The ABP had ruled that it could not lawfully accept the submissions from An Taisce and Mr. Sweetman because there was no provision in the Act allowing this. While members of the public could make submissions at the ‘substantive stage’ of the process (once leave to apply had been granted), there was no provision in the Act which allowed public submissions at the leave stage of the substitute consent process, (which is when the real battle is fought).
The Issue to be decided
Was the current Irish legislation consistent with the demands of the European Impact Assessment (EIA) Directive (and the many rulings of the European Court when interpreting and applying that Directive)?
McKechnie J. said these appeals raised important issues of EU law, including whether the State’s response was adequate in upholding the requirements of the EIA directive.
He found that the substitute consent provisions do not sufficiently implement the EIA directive in light of various decisions of the CJEU.
“When the Court of Justice refers to retrospective regularisation as having to remain the exception, its justification is that otherwise developers may be incentivised to ignore or disregard the requirements of a prior consent/EIA: in other words, national measures cannot act as an inducement to avoid EIA compliance (para. 74 above). Therefore, such regularisation must remain the exception, rather than rule. Consequently, the relevant provisions of domestic law cannot permit, allow or facilitate a situation whereby the obtaining of, as in this jurisdiction, a retention permission becomes common, normal or general. Given this approach, how therefore does s. 177C(2)(a) meet the exceptionality requirement? “
It is instructive now to look at what an applicant must assert and what the Board must be satisfied of on any application for leave under C(2)(b) and D(1)(b) of section 177. When considering whether exceptional circumstances exist, under this pathway, the matters identified in subpara (2) must be taken into account:-
(i) would the grant of retention permission circumvent the objectives of the Directive,
(ii) could the developer have had a bona fide belief that the development was not unauthorised,
(iii) would the existing circumstances permit the conducting of an effective assessment of the environmental impact of the development from its commencement,
(iv) can any significant effects on the environment, occurring to date, be remedied, and
(v) what in the past has been the developer’s attitude to planning compliance.
In addition, the Board may take into account any other matter it considers relevant.
It is striking now to compare the matters which I have listed with the essential elements of an application under s. 177C(2)(a). The core constituents of that section are as follows:
(i) the completed development, in respect of which an EIA “was or is” required has been the subject matter of a permission,
(ii) that permission may be invalid or otherwise defective in a “material respect”,
(iii) as so determined by the Court of Justice or domestic court “or otherwise”,
(iv) by reason of the “omission” to carry out an EIS or its “inadequacy” or,
(v) by reason of “any error of fact or law or a procedural error” (emphasis added)
It is not readily apparent how these points, considered either individually or collectively, could be fairly described as being exceptional. The development in question required an EIA: the permission obtained is in a material respect in breach of law, invalid or “otherwise defective”, as so found by a judgment of the Court of Justice or a court in this jurisdiction by reason of the absence of a required EIA, or the inadequacy of same or as a result of “any error of fact or law or a procedural error”. These factors, in the context under discussion, can only be considered quite general and quite broad.”
(Paragraphs 87-91)(my emphasis)
The judge went on to say that, to make matters worse, once leave to apply for substitute consent has been given, the exceptionality test (or rather the ‘general and quite broad test”) “forms no part” of the decision on the substantive application for substitute consent.
As previously mentioned, it is really at the application for leave to apply that the battle is lost and won, as it is here that the “exceptionality” test, whatever that means, must be passed. Accordingly, it is here that the public should be able to make submissions arguing that the applicant has not met that (not very onerous) substantive threshold. This public participation at the leave to apply stage becomes even more important when one considers that the substantive stage (the actual application) is not as onerous as the leave stage.
These findings confirm my criticisms of this process that I made over four years ago. I would say that the judge was quite generous in his use of the words “general” and “broad”. A number of stronger adjectives spring to mind when reading Section 177D(2)(a)-(g).
With respect to the second complaint of both An Taisce and Mr Sweetman, namely ABP’s refusal to accept their written submissions at the application for leave stage, the judge considered the scope and meaning of the public right to participate under the directive.
Again, this is an important aspect of our law that the government and the planning authorities consistently try to play down and restrict. The judge was having none of that here and held that the exclusion in domestic law of public participation at the stage of seeking leave to apply for substitute consent is inconsistent with the public participation rights conferred by the Directive.
“The evident legislative intention as expressed in the Act is to the effect that the leave stage is intended to be carried out without a general right of public input. As such, I agree with the respondents that what is intended at the application for leave stage is what has been referred to in these proceedings as a “closed” process.” (Paragraph 109).
“In this regard, the following recitals to the EIA Directive should be noted:
“(16) Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken.
(17) Participation, including participation by associations, organisations and groups, in particular non-governmental organisations promoting environmental protection, should accordingly be fostered, including, inter alia, by promoting environmental education of the public.
(19) Among the objectives of the Aarhus Convention is the desire to guarantee rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being.
(20) Article 6 of the Aarhus Convention provides for public participation in decisions on the specific activities listed in Annex I thereto and on activities not so listed which may have a significant effect on the environment.
(21) Article 9(2) and (4) of the Aarhus Convention provides for access to judicial or other procedures for challenging the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of Article 6 of that Convention.”
Accordingly, the judge held that the clear intent of the Oireachtas was to make the leave for application stage a ‘closed’ stage. This exclusion of the public was contrary to the provisions of the EIA Directive and the Aarhus Convention.
Well done indeed to Peter Sweetman and An Taisce in pursuing this fight. It has taken a long time, with numerous obstacles put in their path, both political and legal, but in the end their tenacity and bravery won the day. Respect!
Let this be an end to the secret shenanigans that always seemed to haunt applications for substituted consent. We can only hope that this judgment finally closes a particularly shameful chapter of Irish planning law history.