Cablelink Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Justice Carroll
• Judgment Date: 23 February 1999
• Neutral Citation: [1999] IEHC 113
• Docket Number: No. 150 J.R./1998,[1998 No. 150 J.R.]
• Date: 23 February 1999

[1999] IEHC 113

THE HIGH COURT

No. 150 J.R./1998

CABLELINK LTD v. AN BORD PLEANALA

BETWEEN

CABLELINK LIMITED

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

Abstract:

Planning — Judicial review — Television deflector system — Permission granted to third party — Appeal by applicant — Grounds — Licensed television retransmission services — Appeal dismissed — Planning inspector's report relied on by respondent — Whether issues related to licensing arrangements as set down by central government — Planning and development of area — Whether respondent under duty under duty to keep itself informed of policies and objectives of government — Whether respondent supporting unlawful activity — Wireless Telegraphy Act (No 45), s.3(1) — Broadcasting and Wireless Telegraphy Act 1988 (No 19), s.31 — Wireless Telegraphy (Television Programme Retransmission) Regulations 1989 (S I 39 of 1989) — Local Government (Planning and Development) Act 1963 (No 28), s. 27(1) — Local Government (Planning and Development) Act 1976 (No 20),s.5 — Local Government Act 1991 (No 11),s.7(1)(e) — Local Government (Planning and Development) Act 1992 (No 14), s.14(1)

While the respondent was entitled to take the view that the enforcement of the Wireless Telegraphy Acts was a matter for central government, this did not amount to failing to take into account the absence of a licence to operate a television deflector system by a third party or government objectives when it dismissed an appeal by the applicant against the grant by Kilkenny County Council of planning permission to the third party for the erection of such a deflector system. The grant of planning permission did not entitle the owner of the land to operate or own a deflector if it would be in breach of any other statutory regulation. The High Court so held in refusing the relief sought.

1 Justice Carroll delivered on the 23rd day of February, 1999

2 This is an application for Judicial Review of decision of An Bord Pleanala dated 5th February, 1998 on appeal from a decision of Kilkenny County Council.

3 The County Council granted planning permission on 11th September, 1997 to Stephen Hartley "for retention of existing poles with application or completion, retention of existing pump house and permission for erection of a television deflector system on lands at Ballinclare, Glenmore, Co. Kilkenny" subject to five conditions.

4 The Applicant, Cablelink Limited, is the owner of an MMDS (Multipoint Microwave Distribution Service) Licence under the Wireless Telegraphy (Television Programme Retransmission) Regualtions, 1989 for cell 27, being part of Counties Waterford and Kilkenny which included the area at Ballinclare, Glennore, Co. Kilkenny. Unlicensed television retransmission services which operate a deflector system are found in number of parts of the country. The parents of Mr. Hartley were involved in litigation with the Applicant regarding the operation of a deflector system at Ballindare, which was settled. The details of that litigation are not relevant to the point I have to decide.

5 The Applicant appealed to An Bord Pleanala against the grant of planning permission on the grounds:-

6 1. Lack of technical information supplied.

7 2. Lack of operation details.

8 3. No reference to the availability of a licence to operate.

9 The first two grounds are not relied on in these judicial review proceedings.

10 On 5th February, 1998, An Board Pleanala dismissed the appeal in exercise of the powers conferred by Section 14(1) of the Local Government (Planning and Development) Act, 1992(the 1992 Act).

11 Section 14(1) of the 1992 Act provides:-

"Subject to subsection (2) the Board shall in the following circumstances have an absolute discretion to dismiss an appeal:-"

12 a (a)Where, having considered the grounds of appeal, the Board is of opinion that the appeal is vexatious, frivolous or without substance or foundation; or

13 b (b)Where having regard to:-

14 i (i)the nature of the appeal (including any question which in the Board's opinion is raised by the appeal); and

15 ii (ii)any previous permission or approval which in its opinion is relevant, the Board is satisfied that in the particular...