Ballyedmond v Commission for Energy Regulation and Ward

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 22 June 2006
• Neutral Citation: [2006] IEHC 206
• Court: High Court
• Date: 22 June 2006

BALLYEDMOND v COMMISSION FOR ENERGY REGULATION & WARD

JUDICIAL REVIEW

BETWEEN

LORD BALLYEDMOND

APPLICANT

AND

THE COMMISSION FOR ENERGY REGULATION AND MICHAEL WARD

RESPONDENTS

AND

BGE (UK) LIMITED

NOTICE PARTY

[2006] IEHC 206

[No. 52 JR/2006]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Fair procedures - Audi alteram partem - Gas pipeline - Inquiry into proposed route for gas pipeline - Order for compulsory acquisition arising therefrom - Curial deference -Whether decision irrational - Whether evidence before decision maker to support conclusion reached - Whether disproportionate interference with property rights - Whether breach of fair procedures - European Convention on Human Rights - Gas Act 1976 (No 30) - James v UK (1986) 8 EHRR 123, Crosbie v Custom House Dock Development Authority [1996] 2 IR 531 and Ashford Castle Ltd v SIPTU [2006] IEHC 201 (Unrep, Clarke J, 21/6/2006) considered - Application dismissed (2006/52JR - Clarke J - 22/6/2006) [2006] IEHC 206 Lord Ballyedmond v Commission for Energy Regulation

: The respondent acquired the land of the applicant by way of order pursuant to the Gas Act 1976. The aplicant sought to quash the order on the grounds that it was disproportionate and/ or irrational, that it violated the applicant’s property rights and the inquiry that resulted in the acquisition order being adopted had not provided for fair procedures.

Held by Clarke J. in dismissing the applicants claim, that evidence had been provided to support the views reached. It had been open to the applicant to adduce evidence to the contrary which he had failed to do. The applicant had had a reasonable opportunity to address the issues at stake. No procedural unfairness was evident here in the procedures adopted.

Reporter: E.F.

GAS ACT 1976 S8(1)

GAS ACT 1976 S39A

GAS (INTERIM) (REGULATION) ACT 2002 S12

GAS ACT 1976 S32

GAS (INTERIM) (REGULATION) ACT 2002 S7(2)

ASHFORD CASTLE LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION (SIPTU) UNREP CLARKE 21.6.2006 2006 IEHC 201

HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

ORANGE LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION 2002 4 IR 159

HAVERTY, STATE v BORD PLEANALA 1987 IR 485

JAMES v UNITED KINGDOM (UK) 1986 8 EHRR 123

SHANNON ATLANTIC FISHERIES LTD, STATE v MIN FOR TRANSPORT 1976 IR 93

MERCHANT SHIPPING ACT 1894 S465

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

CROSBIE v CUSTOM HOUSE DOCK DEVELOPMENT AUTHORITY 1996 2 IR 531

1 JUDGMENT of Mr. Justice Clarke delivered on the 22nd day of June, 2006

1. Introduction

2 2 1.1 The notice party is a subsidiary of Bord Gáis Éireann ("BGE"). It is engaged in a project for the construction of a natural gas transmission pipeline from Gormanstown in Co. Meath to the border with Northern Ireland. The purpose of the pipeline is to provide security of supply for natural gas in Northern Ireland and to facilitate the supply of natural gas to certain towns along the route. BGE is mandated, under s. 8(1) of the Gas Act, 1976 to develop a gas supply network.

3 3 1.2 A number of permissions are required in order that the project can go ahead. Firstly consent is required from the first named respondent ("the Commission") for the construction of the pipeline under the procedure regulated by s. 39A of the Gas Act, 1976, as inserted by s. 12 of the Gas (Interim) (Regulation) Act, 2002. Secondly, it was, in practice, necessary for the notice party to seek to acquire compulsorily rights over land along the proposed route in order that the pipeline might be constructed. Such orders are governed by s. 32 of the Gas Act, 1976 as amended and adopted by s. 7(2) of the Gas (Interim Regulation) Act, 2002. In substance the rights to be acquired consisted of an entitlement to enter onto the lands for the purposes of constructing the pipeline together with a permanent way-leave in respect of the pipeline once constructed. Finally, a licence will require to be granted by the Commission in order to operate the pipeline.

4 4 1.3 The applicant ("Lord Ballyedmond") is a landowner along the route of the proposed pipeline. After a process, which I will describe in the course of this judgment, the Commission made the Acquisition (Right Over Land) (No. SN 154) Order 2005 ("the order") on 7 ^th December, 2005. That order was made under the Gas Act, 1976 as a result of an application by the notice party for an acquisition order over the land set out in the schedule to the order. The lands are situate in the townland of Dungooley, Co. Louth and are owned by Lord Ballyedmond. Other land owners along the proposed route were the subject of other acquisition orders as a result of a similar process. It would appear that separate orders were made in respect of each land holding.

5 5 1.4 Lord Ballyedmond seeks to quash the order on three grounds:-

6 (a) It is contended that the decision to grant the order was disproportionate and/or irrational in that it was based on a proposition for which no evidence was given, namely, that the increased costs associated with an alternative route proposed by Lord Ballyedmond were of such significance that it was preferable to follow the route sought by the notice party;

7 (b) It is contended that the interference with the applicant's property rights as guaranteed by Article 40.3.2 and Article 43 of the Constitution and as interpreted in the light of the European Convention on Human Rights Act, 2003, was unjustified and disproportionate in the absence of evidence being given at the inquiry held to consider the project, to support the proposition upon which the interference was based. The underlying basis for this ground is substantially the same as that referred to at (a) above.

8 (c) The applicant contends that there was an absence of fair procedures in the inquiry hearing referred to, as the cost issue (to which I have referred under grounds (a) and (b)) was not adequately notified or dealt with in such a manner to give Lord Ballyedmond a reasonable opportunity of dealing with same.

9 6 1.5 It can be seen, therefore, that each of the three grounds stems from a contention arising out of the decision of the Commission on what might be termed the "costs issue". It is therefore necessary to set out the course of the acquisition proceedings with particular reference to the emergence of that issue. It should also be noted that Lord Ballyedmond challenges the report of the second named respondent ("the inspector") who was an inspector appointed to conduct the inquiry hearing and report on it to the Commission. An additional issue arises as to whether it is open, in the circumstances, to challenge the report of the inspector, in addition to challenging the final decision of the Commission made subsequent to the hearing conducted by and report of the inspector.

2. The Acquisition Process

10 2 2.1 Under the second schedule of the Gas Act, 1976, where an application is made by Bord Gáis Éireann to the Commission for an acquisition order, and where an objection is received, the Commission is required (if requested by the objector) to direct that an oral hearing be conducted. The statutory scheme further provides that in the event of there being an oral hearing, the Commission is to appoint a person to conduct the hearing and to report to the Commission on the hearing. As a result of, amongst other things, the objection of Lord Ballyedmond, the Commission appointed the inspector to conduct an oral hearing.

11 3 2.2 By way of background it should be noted that prior to the formal process for acquisition, there had been contact between Lord Ballyedmond and the notice party. During an initial meeting and consultation between the parties the notice party informed Lord Ballyedmond that its preferred route for the pipeline was the most direct route across Lord Ballyedmond's property. This route became known as route A. Lord Ballyedmond in turn proposed an alternative route which became known as route B. That route was undoubtedly longer than route A but took the pipeline further away from Lord Ballyedmond's house. Route B also required that the pipeline travel through the lands of other adjoining landowners. In reply the notice party proposed a compromise route (which became known as route C) which, it was suggested, represented an acceptable balance of both the notice parties and Lord Ballyedmond's rights. The compromise route was not acceptable to Lord Ballyedmond.

12 4 2.3 With the permission of Lord Ballyedmond, the notice party entered onto the property for the purposes of carrying out an ecological, archaeological and engineering survey of route B. On 1 ^st July, 2005, the notice party sent a report dated June 2005, (which had been prepared by Kirk McClure Morton) ("the report") to Lord Ballyedmond advisors. The report assessed the feasibility of routes A, B and C. It would also appear that the report was sent to the Commission on the same date. The report contained a comparative analysis of each of the three routes based on the results of the surveys. The report recommended route A. It should be noted that the report was concerned with the optimum route for the whole of the pipeline and sets out the range of factors such as safety, environmental construction, cost and the like taken into account.

13 5 2.4 Thereafter an oral hearing took place on 27 ^th and 28 ^th September, 2005, for the purposes of hearing objections to a number of acquisition orders sought in relation to the construction of the pipeline, including the objection of Lord Ballyedmond.

14 6 2.5 The factual contention which lies behind each of the three grounds upon which it is sought to have both the inspector's report and the Commission's order quashed, suggests that the entire focus of the hearing, insofar as it related to Lord Ballyedmond's...