Dunne v Kildare County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 17 February 2023
• Neutral Citation: [2023] IEHC 73
• Court: High Court
• Docket Number: [2022 No. 293 JR]

Between

Ann Marshall, Roderick Ryan and Peter Walsh (As Executors of the Estate of Frank Dunne Deceased) (By Order), Ann Marshall and Hamwood Stud Unlimited Company

Applicants

and

Kildare County Council, Meath County Council, Eirgrid Plc, Ireland, and The Attorney General

Respondents

and

Electricity Supply Board (By Order)

Notice Party

[2023] IEHC 73

[2022 No. 293 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on the 17 ^th day of February, 2023

1 . The first to fourth-named applicants are the legal owners of Hamwood Stud in Dunboyne, County Meath. (Ms Marshall is named twice, as first-named applicant in her capacity as one of the executors, and as fourth-named applicant in her own right.) The fifth-named applicant is a company carrying on business as the stud.

2 . ESB/Eirgrid's existing Maynooth-Woodland 220 kV line crosses the applicants' lands. It is 22.5 km long in total and involves 71 steel tower structures. Structures numbers 1 to 45 were constructed in 1968. Numbers 46 to 71 were added in 1985. Only one pylon, number 47, affects the applicants' lands.

3 . On 2nd March, 2020, EirGrid submitted an application under s. 5 of the Planning and Development Act 2000 seeking to ascertain whether proposed works to the line were exempted development. A similar letter was written on the same date to Kildare County Council.

4 . The latter council decided on 20th March, 2020 that the project was exempted development. The reasoning in that decision states that the works come within s. 4(1)(g) of the 2000 Act. That is closer to asserting a conclusion than setting out reasoning, but it is certainly better than nothing. On 23rd July, 2020, Meath County Council also declared the works to be exempted development. However, the form of that decision doesn't have any meaningful reasons at all that are immediately apparent.

5 . Pursuant to s. 5(7B)(a) of the 2000 Act (as inserted by the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 ( S.I. No. 296 of 2018)), details of and documents relating to a s. 5 request must be published on the local authority's website. This was not done by either council

6 . The applicants have suggested that non-compliance with the terms of s. 5(7B) is relatively widespread. While that is not something that needs to be decided and therefore not something that needs to be established evidentially in the present case, such a suggestion is naturally of concern, as it would no doubt be to the European Commission. Furthermore, the statutory procedure involves no requirement for notice to affected landowners. Consequently these applicants were not given either actual or constructive notice of the application or its outcome or allowed any specific role in that regard.

7 . ESB/EirGrid engaged with the applicants since March 2020 in relation to possible works on the line project. An initial drone inspection of the lands took place in September 2020. Works commenced on the line project on 11th October, 2021, although the works carried out so far do not affect the applicants' land. On 21st January, 2022 the applicants' solicitors wrote querying the status of the project, the applicants having had the benefit of legal advice and expert advice since November 2021. On 10th February, 2022, the ESB for the first time expressly informed the applicants that s. 5 declarations had been made although that letter did not enclose copies of these declarations. Nor did the applicants seek copies in their reply.

8 . The applicants' advisers obtained a copy of the Kildare County Council declaration on 15th February, 2022 and obtained access to the planning file on 9th March, 2022, although the applicants' planning adviser did not contact Kildare County Council for this purpose until two or three days beforehand. While the applicants' adviser had a medical difficulty, it had not been explained why somebody else did not attend for that purpose. The applicants' planning adviser obtained a copy of the Meath County Council decision on 25th March, 2022 and a copy of the file on 5th April, 2022.

Procedural history

9 . It is apparent inferentially from para. 4 of the affidavit of the applicants' solicitor of 20th January, 2023 that the applicants were aware on 5th April, 2022 that in the normal course of events the grounding affidavit for the present proceedings should be sworn by the applicants or one of them. On 5 ^th April, 2022, the applicants' solicitors contacted the registrar assigned to the Non-Jury/Judicial Review List to request that the court facilitate an application on 6th April, 2022 to the effect that someone else be permitted to swear the grounding affidavit.

10 . That application was facilitated to the extent that on the morning of 6th April, 2022, an application was made to the List Judge for that purpose. Meenan J. gave leave for the applicants' solicitor to swear the affidavit and envisaged that the applicants' lawyers could return to court later in the day to formally move the application for leave to seek judicial review.

11 . The papers were not apparently ready to go at that point and were worked on during the day. The applicants' solicitors then attended the Central Office at 15.48 and simultaneously informed the registrar by email that they were in the process of filing papers to obtain a record number and hoped to make an application to open the matter imminently.

12 . Unfortunately, the Central Office then informed the applicants' solicitors that they would not provide a record number because the statement of grounds was not stamped. The Stamping Office in Áras Uí Dhálaigh closes at 16.00 “and would have been closed by the time we attended” (para. 12 of the affidavit of the applicants' solicitor of 20th January, 2023).

13 . At 16.01 counsel appeared again before Meenan J. and the position was explained. He noted that the matter was mentioned and matters were left over until the following morning. On 7th April, 2022, papers were duly filed and the matter was then opened to the court. Meenan J. adjourned the matter and later granted leave on 1st June, 2022. The order doesn't extend time for the bringing of the proceedings.

14 . Leave was granted in separate proceedings on the same date [2022 No. 424 JR] challenging the validity of related wayleave notices, along with a stay on the notices preventing the ESB from entering on the applicants' lands pending further order.

15 . The substantive notice of motion in the present proceedings was issued on 3rd June, 2022. On 18th July, 2022, a notice of motion was issued to enter the matter in the Commercial List. On 19th July, 2022, the ESB were joined as a notice party. On 25th July, 2022, the matter was entered into the Commercial List and transferred to the Commercial Planning and Strategic Infrastructure Development List.

16 . On 29th July, 2022, directions were given and a hearing date for a proposed motion to set aside leave was fixed for 20th December, 2022. The formal motion to set aside leave was issued by EirGrid on 9th September, 2022 and is now before the court, being supported by the other opposing parties. Directions were amended on 10th October, 2022. The applicants issued a notice of motion seeking an extension of time if necessary on 21st October, 2022. On 12th December, 2022 the title of proceedings was amended to refer to the executors of the first named applicant, following his unfortunate recent passing. The matter was heard on 20 ^th and 21st December, 2022. At the end of the hearing I gave liberty to the applicants to put further details on affidavit regarding the events of 6th April, 2022. It was also agreed or at least wasn't objected to that the applicants would seek the DAR of the events of that date from Meenan J. and the matter was adjourned for that purpose. The DAR has now been exhibited.

Materials before the court

17 . Materials placed before the court by being uploaded to the ShareFile platform for this case included pleadings, exhibits, authorities, correspondence, a core book and submissions running to a total of 5,671 pages.

Reliefs sought in the proceedings

18 . The substantive reliefs sought in the proceedings are as follows:

• (i) An order of certiorari quashing the Declaration of Development & Exempted Development under s.5 of the Planning and Development Act 2000 (as amended) (“the PDA 2000”) of Kildare County Council declaring the works the subject of the application by EirGrid plc (Ref. No. ED/00786) to be exempted development, being made on or around 20 March 2020 (“the Kildare County Council Section 5 Declaration”).

• (ii) An order of certiorari quashing the Declaration of Meath County Council declaring the works the subject of the application by EirGrid plc (Ref. No. RA/S52021) to be exempted development, being made on 23 July 2020 (“the Meath County Council Section 5 Declaration”).

• (iii) Such declaration(s) of the legal rights and/or legal position of the applicant[s] and (if and insofar as legally permissible and appropriate) persons similarly situated and/or the legal duties and/or legal position of the Respondents as the Court considers appropriate.

• (iv) A declaration that each of the Kildare County Council Section 5 Declaration and the Meath County Council Section 5 Declaration is invalid and ultra vires.

• (v) A declaration that s.5 PDA 2000 is an unjustified interference with the Applicants' property rights as protected by Articles 40.3.2 and 43 of, and repugnant to the right to be heard under, the Constitution of Ireland.

• (vi) A declaration that s.5 PDA 2000, read together with s.50 PDA 2000, is contrary to the right to be heard and to the right to an effective hearing and/or is contrary to the right to public participation under Article 6 of Directive 2011/92 (“the EIA Directive”) and the analogous provisions requiring public participation under ...