On the 15th November, the Minister signed the order commencing the relevant provisions under Section 74 & 75 of the Planning & Development (Amendment) Act 2010. These sections amend Section 261 & insert a new Section 261A to the Planning & Development Act 2000.
Section 261 of the 2000 Act was titled "Control of Quarries" and was introduced in order to bring all quarries within the remit of planning, at a time when a considerable number of quarries were operating without the benefit of planning permission. However, Section 261 was found to have a number of weaknesses, not lease the fact that conditions attached throughout the registration process were not enforceable.
These weaknesses in Section 261, together with the ECJ Judgement in the Derrybrien Windfarm Case, necessitated new provisions to deal with these matters. This is now referred to as the ‘substitute consent process’ and within this, specific provision has been made for certain quarry developments, referred to as “sunset provisions”. In effect this means that, whereas other projects would only qualify for the substitute consent facility in exceptional circumstances, quarries do not have to prove exceptional circumstances. It should be noted that the sunset provisions do not apply to all quarries and are the last opportunity for those which satisfy the criteria to regularise their status.
There are a number of relevant dates as part of the substitute consent process, one of which is the 1st February 1990 when the Environmental Impact Assessment Directive came into effect and the second is the 26th February 1997 when the Habitats Directive came into effect. The third relevant date in this regard is 3rd July 2008, which was the date of the ECJ (Derrybrien) Judgment. Those in the industry, who went through the registration process under Section 261 of the 2000 Act, would have understood that their planning issues had been regularised, but this is not necessarily the case arising from the ECJ Judgement.
Within 4 weeks of the commencement of Sections 74 & 75, the Planning Authority must publish a notice stating its intention to examine every quarry in its area. The Planning Authority has a maximum of 9 months from the date of commencement of Section 261A to make a determination with respect to the EIA Directive and the Habitats Directive which will determine if substitute consent is required or indeed whether a particular quarry is eligible for the substitute consent process. Those quarries which have planning issues arising from the determination under Section 261A and do not qualify for the substitute consent facility, will ultimately have to close. These new provisions therefore have far reaching implications for the quarry industry and indeed for developments generally as the retention route is no longer available in many cases, arising from the ECJ judgement.