Killross Properties Ltd v Electricity Supply Board

 
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[2016] IECA 207

THE COURT OF APPEAL

Hogan J.

2015 No. 214

Peart J.

Hogan J.

Cregan J.

BETWEEN/
KILLROSS PROPERTIES LTD.
PLAINTIFFS/RESPONDENTS
- AND -
ELECTRICITY SUPPLY BOARD
DEFENDANT/APPELLANT

Planning and development – Unauthorised development – Planning permission – Appellant seeking an order restraining unauthorised development on the part of the respondent – Whether planning permission was required

2015/214 - Hogan - Appeal - 11/7/2016 - 2016 IECA 207

Facts: The appellant, Killross Properties Ltd, sought an order pursuant to s. 160 of the Planning and Development Act 2000 restraining what it contended was unauthorised development on the part of the respondent, 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. In the motion seeking s. 160 relief, Killross contended that the upgrading of the capacity of six electricity lines in the general East Kildare area amounted to unauthorised development for which separate planning permission was 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 the works was to replace existing overhead lines with higher conducting capacity. All of the works were the subject of references to the relevant planning authority or An Bord Pleanála. Three of the 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 Bord Pleanála in all six such references at the time of the commencement of the s. 160 proceedings that the developments in question constituted exempted development. Three of those determinations were challenged in subsequent judicial review proceedings heard by Hedigan J in conjunction with the s. 160 application. On 28th August 2014, he rejected the challenge to the validity of those determinations and did not grant leave to the appellant to appeal in respect of those three judicial review applications to the Court of Appeal pursuant to s. 50 of the 2000 Act. Hedigan J took the view that the High Court could not in s. 160 proceedings determine matters which had in substance already been determined in the s. 5 references. The appellant appealed to the Court of Appeal against Hedigan J?s High Court decision.

Held by Hogan J that the High Court cannot go behind an otherwise valid s. 5 determination to the effect that the development in question represented exempted development in the course of a s.160 application; the effect of such a determination is that planning permission is not required, so that by definition the development cannot be unauthorised. Hogan J held that the High Court cannot grant the relief claimed in the s. 160 proceedings. Hogan J held that the developments at issue must be adjudged to have been lawful so that no planning permission was required. In those circumstances, Hogan J held that the High Court was correct not to grant the s. 160 relief sought by Killross.

Hogan J held that he would dismiss the appeal and affirm the decision of Hedigan J.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 11th day of July 2016
1

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 to 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 28th August 2014.

2

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.

3

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.

4

A critical fact, however, is that all of the works which are the subject of the s. 160 application were the subject of references 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 Bord Pleanála (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 the applicant 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
5

The six individual s. 5 determinations can be summarised as follows:

Reference FS5W/08/2012 (Corduff-Ryebrook, Fingal)
6

Fingal County Council issued a s. 5 determination on 6th 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 the Board and the time for challenge to the validity of such decision in judicial review proceedings has expired.

Reference ED/00439 (Corduff-Ryebrook. Kildare)
7

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

Reference ED/00440 (Maynooth-Ryebrook)
8

Kildare County Council issued a s. 5 determination on 1st 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 the applicant), An Bord Pleanala decided on 25th 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 the this reference was subsequently challenged in judicial review proceedings, this was rejected by Hedigan J. As I have indicated, no leave to appeal to this Court was granted by the High Court pursuant to s. 50 of the 2000 Act.

Reference ED/00441 (Rinawade Tee)
9

Kildare County Council issued a s. 5 determination on 1st. March 2013 to the effect that the renewing and altering of the existing equipment within Rinawade 110kV substation, and the renewing and associated alternation of the existing busbar equipment along the Rinawade Tee 110kV overhead line, is development and is exempted development under s. 4(1)(g) and s. 4(|)(h) of the 2000 Act. This decision was not referred to the Board for its review and the time for challenge by way of judicial review has long since expired.

Reference ED/00451 (Maynooth-Ryebrook)
10

On 24th April 2014 the Board determined pursuant to s. 5 that the renewal and alteration of the Maynooth-Ryebrook 110kV 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. A challenge to the validity of this determination was refused by Hedigan J. in the judicial review proceedings. Again, no leave to appeal to this Court pursuant to s. 50 of the 2000 Act was granted by the High Court.

Reference ED/00464 (Temporary Line Diversion)
11

This was an application for a determination made by Mr. Lar McKenna on behalf of the appellant to Kildare County Council relating to the status of the proposed 0.5 kilometre temporary diversion (or by-pass) line on double wood polesets in connection with Maynooth-Ryebrook 110kV line update. This matter was subsequently referred to the...

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