New planning rules allow quarries to apply to An Bord Pleanála (ABP) for permission for future development in conjunction with ‘substitute consent’ applications for historic development.
If you have spent the last five years getting to grips with the planning rules applicable to historic quarry development, you may not be pleased to learn that new planning rules have recently been introduced. Look closer, however, and you should be pleasantly surprised. The new rules are not intended to inflict more hardship on quarry owners for historic development, but to facilitate them in securing planning consent for future development.
In 2010, significant changes to planning law, including changes relevant to quarries, were introduced under the Planning and Development (Amendment) Act 2010. The changes were to respond to a judgment of the European Court that criticised the State for historic failures to control development requiring environmental impact assessment and, specifically, for allowing retention permission for unauthorised development that should have been subject to environmental impact assessment (Case C-215/06).
The main changes relevant to quarries were to:
- Oblige planning authorities to refuse applications for retention permission for development that would have required impact assessment or screening for impact assessment.
- Limittheso-called‘sevenyearrule’so thatitdoesnotoperatetoprotectquarry developmentcommencedforoverseven yearsfromenforcementaction.
- Clarifytheprovisionsrelatingtothe registrationofquarriesundersection261.
- Allow for regularisation of quarry development that should have been but was not subject to impact assessment or screening for impact assessment by way of application to ABP for ‘substitute consent’ under section 261A. 261A was upheld by the High Court in McGrath Limestone Works Limited v An Bord Pleanála (2014/78 JR) (under appeal).
261A was not designed to permit further development of quarries to deepen or extend existing areas of extraction. Therefore, the best outcome you could hope to achieve was to secure substitute planning consent for existing hole/s in the ground. In order to extend your quarry, until recently, once you got a grant of substitute consent, you were expected to start afresh by making an application for permission in the ordinary way.
Now, under the new section 37L of the Planning and Development Act, quarry owners going through the 261A process may apply directly to ABP for permission to “further develop a quarry” which application will be assessed in conjunction with their 261A application. Section 37L and related provisions were introduced under the European Union (Environmental Impact Assessment and Habitats) Regulations 2015 and the Planning and Development (Amendment) No. 2 Regulations 2015.
In essence, 37L creates a fast-track planning application process for quarry owners / operators going through the 261A substitute consent process
Here are the key points:
- You can only apply under 37L where a 261A application is or was required to be made to ABP and ABP has not yet decided your 261A application.
- 37L applications are made directly to ABP.
- Notify ABP in writing of your intention to apply under 37L as soon as possible, in order to prevent ABP from making a decision on your 261A application.
- You can only apply for further development “of a quarry as a quarry”. It is unclear what precisely “as a quarry” means but “quarry” is defined under the Planning and Development Act to include places occupied “for the purposes of a process ancillary to the getting of minerals” and presumably, this means that activities ancillary to quarying would also be allowed.
- If your 261A application has not yet been made, you have 6 weeks from the date of making your 261A application to make your 37L application. If you made a 261A application before 14 July 2015, but a decision has not been made by ABP, you have 6 months from 14 July 2015 to apply for permission under section 37L.
This 6 month timeline may seem unfair to prospective 261A applicants who are due to lodge their application very shortly, as it appears there is no provision to extend time to make a 37L application. If you fall into this category and you need more time to prepare a 37L application, the solution may be to seek an extension of time for lodgement of your 261A application.
- You can request a pre-application consultation with ABP which has the discretion to accept or reject your request.
- ABP must consider your 37L application in conjunction with your 261A application.
- The ordinary rules apply to 37L applications, including that ABP may request further information and/or submissions from you, make any information relating to the application available for inspection, and invite submissions or observations from the planning authority and/or third parties.
- ABP may attach conditions to your 37L permission, including requiring the payment of development contributions.
- ABP must endeavour to make a decision on your application within 18 weeks (but this period may be extended)
Other changes relevant to quarries were introduced under the European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2015 on 22 July 2015.
- If you are one of the quarries that missed out on the opportunity to apply for 261A substitute consent first time around, because you were in the process of seeking permission under 261(7), you may now have that opportunity. This change applies to quarries that were not admitted to the 261A process because they were already the subject of a notice and decision of the planning authority to grant permission under 261(7). However, where the planning authority’s decision to grant a 261(7) permission was later refused on appeal or the 261(7) permission was quashed in Court, the only option open to those quarries before was to seek leave to apply for substitute consent under section 177C. The recent changes mean that quarries in this category may now be permitted into the 261A process (and, in turn, into the 37L process).
- If your application for substitute consent arises from an unlawful, invalid and/or materially defective planning permission, the recent changes mean that your application may now encompass, not only development already carried out, but also any development permitted under the flawed permission but not yet carried out.