Killross Properties Ltd v Electricity Supply Board

 
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[2016] IECA 207

Court of Appeal

Peart J.

[C.A. No. 214 of 2015]

Killross Properties Limited,
Applicant
and
Electricity Supply Board and Eirgrid plc,
Respondents

Michael O'Donnell (with him Conleth BradleyS.C.) for the applicant.

Paul Sreenan S.C. (with him Jarlath FitzsimonsS.C. and Stephen Dodd) for the respondents.

Cur. adv. vult.

Cases mentioned in this report:-

Grianán an Aileach Centre v. Donegal County Council (No. 2) [2004] IESC 43, [2004] 2 I.R. 625; [2005] 1 I.L.R.M. 106.

O'Connor v. Kerry County Council [1988] I.L.R.M. 660.

Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1.

Roadstone Provinces Ltd. v. An Bord Pleanála [2008] IEHC 210, (Unreported, High Court, Finlay Geoghegan J., 4 July 2008).

Tormey v. Ireland [1985] I.R. 289; [1985] I.L.R.M. 375.

Wicklow County Council v. Fortune [2013] IEHC 397, (Unreported, High Court, Hogan J., 5 September 2013).

Wicklow County Council v. O'Reilly [2015] IEHC 667, (Unreported, High Court, O'Malley J., 29 October 2015).

Planning and development — Enforcement — Unauthorised development — Exempted development — Determination by planning authority that works constituted exempted development — Application to restrain as unauthorised development — Jurisdiction of court in s. 160 proceedings — Whether court could declare development unauthorised notwithstanding planning authority determination that development exempted — Whether s.160 proceedings formed impermissible collateral challenge to planning authority determination — Planning and Development Act 2000 (No. 30), ss. 4(1)(g), 4(1)(h), 5 and 160.

Peart J. 11 July 2016

[1] I have read the judgment about to be delivered by Hogan J. and I agree with it.

Hogan J.

[2] Where a planning authority or, as the case may be, An Bord Pleanála, determines pursuant to s. 5 of the Planning and Development Act 2000 (“the 2000 Act”) that certain works constitute exempted development and, accordingly, do not require planning permission, is it open to this court in the course of an application to restrain unauthorised development pursuant to s. 160 of the 2000 Act to arrive at a different conclusion? This, in essence, is the important legal issue which arises on this appeal from the decision of Hedigan J. in the High Court delivered on 28 August 2014.

[3] The background to these proceedings is as follows: the appellant, Killross Properties Ltd. (“Killross”), seeks an order pursuant to s. 160 of the 2000 Act restraining what it contends is unauthorised development on the part of the respondent, namely, the Electricity Supply Board. The development in question consisted of the entry by the respondents onto lands of Killross for the purposes of upgrading certain pre-existing electricity lines.

[4] In the motion seeking s. 160 relief, Killross contends that the upgrading of the capacity of six electricity lines in the general East Kildare area amounts to unauthorised development for which separate planning permission is required. These electricity lines were, however, already situated on these lands at the time they were acquired by Killross in 2007. The main object of these works was to replace (or to “restring”) existing overhead lines with higher conducting capacity. These works do not affect the voltage which remains at 110kV. The existing pylons were, it is true, replaced in some cases. But where this happened the lower portions and the foundations of the pylons remained unaltered, although admittedly in some instances the pylons themselves were moved to immediately adjacent locations.

[5] A critical fact, however, is that all of the works which are the subject of the s. 160 application were the subject of references under s. 5 of the 2000 Act to the relevant planning authority or, as the case may be, An Bord Pleanála. Three of these six references had been instigated either by Killross or by its agents. It had, accordingly, been determined by either the relevant planning authority or An BordPleanála (as the case may be) in all such six such references at the time of the commencement of the s. 160 proceedings that the developments in question constituted exempted development. Three of these determinations were challenged in subsequent judicial review proceedings heard by Hedigan J. in conjunction with the present s. 160 application. He rejected the challenge to the validity of those determinations and did not grant leave to Killross to appeal in respect of these three judicial review applications to this court pursuant to s. 50 of the 2000 Act.

The individual s. 5 determinations

[6] The six individual s. 5 determinations can be summarised as follows:-

Reference FS5W/08/2012 (Corduff-Ryebrook, Fingal)

[7] Fingal County Council issued a s. 5 determination on 6 November 2012 to the effect that the renewing and altering of the portion of the 110kV overhead electricity transmission line within its administrative area was exempted development for the purposes of s. 4(1)(g) and s. 4(1)(h) of the 2000 Act. This decision was not referred to An Bord Pleanála and the time for challenge to the validity of such decision in judicial review proceedings has expired.

Reference ED/00439 (Corduff-Ryebrook, Kildare)

[8] Kildare County Council issued a s. 5 determination on 1 March 2013 to the effect that the proposed renewing and altering of the portion of the existing Corduff/Ryebrook 110kV overhead electricity transmission line situated within the administrative area of Kildare County Council constitutes development and is exempted development under s. 4(1)(g) and s.4(1)(h) of the 2000 Act. This decision was not referred to An Bord Pleanála for its review and is outside the time for any challenge by way of judicial review.

Reference ED/00440 (Maynooth-Ryebrook)

[9] Kildare County Council issued a s. 5 determination on 1 March 2013 to the effect that the proposed renewing and altering of the existing Maynooth-Ryebrook 110kV overhead electricity transmission line is development and is exempted development under s. 4(1)(g) and s. 4(1)(h) of the 2000 Act. Following an appeal by Rossmore Properties Ltd. (a sister company of Killross), An Bord Pleanála decided on 25 April 2014 that the development was exempted development under s. 4(1)(g) of the 2000 Act and that neither an appropriate assessment nor an environmental impact assessment was required. Although the validity of this reference was subsequently challenged in judicial...

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