Court rejects State’s bid to stop challenge of ’substituted consent’ planning law

The five judge court’s unanimous decision means Mr Sweetman’s case, which raises important legal issues concerning the Board’s obligations under the consent process, including whether that process is contrary to Euroopean law, can proceed.

A hearing date for that will be fixed later.

In his action, Mr Sweetman challenged the Board’s November 2014 "substituted consent" for a quarry in Co Donegal.

The system of substituted consent was introduced after the former system of retention permission for existing developments built without appropriate planning permission was found to be inconsistent with European law.

There are a number of "gateways" to enter the substituted consent system and the final decision is made by the Board.

In his action against An Bord Pleanala and the State, to which An Taisce was joined as an assistant to the court on legal issues, Mr Sweetman argued the Board was requried to assess whether "exceptional circumstances", as defined by the Court of Justice of the EU, could be shown to exist in the Donegal case.

He also argued, if the relevant legislation was found not to oblige the Board to consider whether exceptional circumstances existsed, then the overall consent process was contrary to European law.

In opposing his case, the State argued his judicial review was inadmissible because, it contended, the decision which allowed the Board to grant substituted consent in November 2014 was made by Donegal County Council about June 2012 and therefore he was outside the relevant time limits for judicial review.

It argued, in seeking to quash the Board’s substituted consent, Mr Sweetman was engaged in an impermissible collateral attack on the earlier decision of Donegal County Council and such an attack was time barred.

The State brought a preliminary application seeking to have the proceedings struck out on that basis. Mr Sweetman opposed that, arguing he was not seeking to bring a collateral challenge to the Council’s decision and was rather arguing it was the Board’s decision granting substituted consent which was contrary to European law.

After the High Court rejected the State’s bid to strike out the case and the Court of Appeal dismissed the State’s appeal over the High Court refusal, the State appealed to the Supreme Court.

Today the Supreme Court unanimously dismissed the appeal.

Delivering the court’s judgment, the Chief Justice, Mr Justice Frank Clarke, said the collateral attack jurisprudence should only be used to prevent a substantive case being heard when it is clear an earlier decision taken at some point is intended as final and definitive concerning the issue in question.

This case was not such a clear case, he said. Rather, it is a case where it is necessary to decide at least some of the substantive issues raised in order to properly analyse the substituted consent scheme as a whole and to determine at what point, if any, the question of indivudual exceptionality must be assessed.

The court was upholding the decisions of the High Court and Court of Appeal that the substantive case should proceed, he said.