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Since the issuing of notices to quarry owners and operators there has been a lot of queries about substitute consent, what it involves and what needs to be done next.

The first decision that needs to be made if the Council have directed an owner/operator to apply to An Bord Pleanala for substitute consent is if the Council’s decision needs to be challenged. The owner/operator has 21 days from the notice to seek a review and this stops the clock in terms of the substitute consent deadline (12 weeks). The reason for seeking a review would want to be very solid as there is a risk that the Board could decide that the Council’s decision to require a substitute consent application was wrong. This could ultimately lead to the closure of the quarry.

If the decision is to proceed with making a substitute consent application to An Bord Pleanala then further decisions need to be made about seeking a pre-planning meeting with An Bord Pleanala (no fee), scoping of the remedial EIS (significant fee) and the need to extend the 12 week period. The latter requires a genuine reason for an extension. The key issue is not to miss the deadline whether it be 12 weeks or the extended version as this would be fatal in terms of the application.

Local Authorities across the country have recently completed issuing notices to quarry owners.  These notices will inform the owners to either seek substitute consent from An Bord Pleanala or that they will be the subject of enforcement action by the council who will seek to close the operation.  Quarry owners have the right to seek a review of the Council’s decision within 21 days from An Bord Pleanala. The substitute consent process is subject to a tight timeframe of 12 weeks given that a remedial EIS or Appropriate Assessment will be required to be completed as part of the application. These notices arose from significant changes to the planning acts and are an effort to retrospectively address situations where development which was likely to have a significant impact on the environment was never actually assessed at the time.  The implications for quarry owners are serious as many face closure.  The benefit for those quarry owners that manage to go through the process and come out the far side is that there will be far less operators to compete against.

The Minister signed the Planning and Development (Amendment) Act 2010 (Commencement) (No.3) (Order 2011) on the 16^th November 2011. This Order commences sections 74 and 75 of the Planning and Development Act (Amendment) Act 2010 which amends section 261, and insert a new section 261A, into the Planning and Development Act 2000. 

This new legislation arises from the Derrybrien windfarm case where in 2008, the European Court of Justice ruled that Ireland was in breach of EU law in permitting retention permission for projects accompanied by an Environmental Impact Assessment. Following the ruling, the Minister issued a Circular which advised that retention permission for developments requiring EIA should not be granted after 3^rd July 2008. 

The “Substitute Consent” procedure in the 2010 Act seeks to provide a mechanism whereby the position in respect of EIA development can be regularized – however leave to apply for consent from An Bord Pleanala is only allowed in exceptional circumstances (i.e. a planning permission found defective by a court).

In the specific case of quarries there will be a sunset period whereby quarry owners will be given a last opportunity to regularize any unauthorized works without having to meet the exceptional circumstances test.  The Act also seeks to require that such works are regularized under s.74 and s.75 of the Act. Read the rest of this entry »