Nolan and Others v Min Environment
| Jurisdiction | Ireland |
| Judge | O'FLAHERTY J.,FINLAY C.J,HEDERMAN J. |
| Judgment Date | 10 July 1991 |
| Neutral Citation | 1991 WJSC-SC 2215 |
| Docket Number | 289, 340, 342/89 |
| Court | Supreme Court |
| Date | 10 July 1991 |
1991 WJSC-SC 2215
THE SUPREME COURT
Finlay C.J.
Hederman J.
O'Flaherty J.
and
Citations:
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S10
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 – 1983
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S10(2)
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S8(2)
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S8(3)
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S8(4)
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S4(1)
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S6
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S4
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S2
EAST DONEGAL CO-OPERATIVE V AG 1970 IR 317
O'BRIEN V BORD NA MONA 1983 IR 255
EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (MOTORWAYS) REGS 1988 SI 221/1988
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S10(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(f)
LOCAL GOVT (PLANNING & DEVELOPMENT) (EXEMPTED DEVELOPMENT) REGS 1977 SI 65/1977 SCHED 3
LOCAL GOVT (PLANNING & DEVELOPMENT) (EXEMPTED DEVELOPMENT) REGS 1977 SI65/1977 SCHED 2
LOCAL GOVT (ROADS & MOTORWAYS) ACT 1974 S8
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4
Synopsis:
LOCAL GOVERNMENT
Roads
Motorway - Lands - Development - Electricity pylons - Relocation - Consent of Minister - Absence of planning permission - Planning code - Irrelevance - Statute - Minister of State - Powers - Exercise - Fair procedures - Local Government (Planning & Development) Act, 1963, s.26 - Local Government (Roads & Motorways) Act, 1974, ss. 4, 8, 10 - (239,340,342/89 - Supreme Court - 10/7/91) - [1991] 2 I.R. 548 - [1991] ILRM 705
|Nolan v Minister for the Environment|
MINISTER OF STATE
Powers
Exercise - Citizen - Notice - Entitlement - Electricity - Pylons - Relocation - Consent of Minister - Consent granted without notice to householder - (239,340,342/89 - Supreme Court — 10/7/91) - [1991] 2 I.R. 548 - [1991] ILRM 705
|Nolan v Minister for the Environment|
NATURAL JUSTICE
Fair procedures
Minister of State - Consent - Citizen - Notice - Entitlement - Electricity - Pylons - Relocation - Consent of Minister - Consent granted without notice to householder - (239,340,342/89 - Supreme Court - 10/7/91) - [1991] 2 I.R. 548 - [1991] ILRM 705
|Nolan v Minister for the Environment|
NOTICE
Necessity
Minister of State - Powers - Exercise - Public utility - Electricity pylons - Relocation - Consent of Minister required - Consent given without notice to householder - Fair procedures - (239,340,342/89 - Supreme Court - 10/7/91) - [1991] 2 I.R. 548
|Nolan v. Minister for the Environment|
JUDGMENT delivered on the 10th day of July 1991by FINLAY C.J
This is an appeal brought by each of the Defendants against an Order made in the High Court by Costello J. on the 18th July 1989, granting to the Plaintiffs a declaration that a purported consent given by the first-named Defendant (the Minister) to the second-named Defendant (the ESB), on the 18th May 1988, pursuant to Section 10 of the Local Government (Roads and Motorways) Act 1974, was invalid.
The said purported consent was to the relocation by the ESB of overhead high voltage power lines, from the western to the eastern side of the proposed new motorway, for a distance in the area of Castleknock.
The grounds on which the learned trial Judge held that the consent was invalid were that the provisions of Section 10 of the Act of 1974 empowered the Minister only to grant consent to the ESB to erect power lines over the land comprised in the motorway if but for the provisions of that Section they were legally entitled so to do, and that by reason of the fact that the particular power lines intended to be relocated constituted a development which is not an exempted development within the meaning of the Local Government (Planning and Development) Acts, it was not a development which the ESB could lawfully carry out but for the provisions of Section 10.
In the Court below, and again repeated in the grounds of appeal filed for hearing before this Court, each of the Defendants contended under various alternativeheadings, that the proposed development by the ESB which was the subject matter of the purported consent by the Minister under Section 10 of the Act of 1974, was exempted development under the provisions of the Planning Code, and was therefore, but for Section 10, a legal right of the ESB.
On the hearing of the appeal, however, the real grounds of appeal put forward by each of the Appellants is best illustrated at Ground 1 of the Notice of Appeal filed on behalf of the first-named Appellant, the Minister, which reads as follows:
"The learned trial Judge erred in law in holding that the Local Government (Planning and Development) Acts 1963to 1983had any relevance to the application made by the ESB to the Minister for the exercise by him of his power contained in Section 10(2) of the Local Government (Roads and Motorways) Act 1974."
Section 10 of the Act of 1974 provides as follows:
"(1) The powers conferred on any State authority or statutory undertaker by or under any enactment toexcavate, lay down or erect any apparatus along, adjoining, in, on, under or over any land shall not be exercised by that State authority of statutory undertaker in relation to any land comprised in a motorway otherwise than with the consent of the Minister."
At the time of the application to the Minister for his consent in this case the only development which could have been carried out by the ESB alongside a roadway, without planning permission, was as follows:
a "(a) The carrying out of works for the purpose of inspecting, repairing, renewing, altering or removing any cables, overhead wires or other apparatus which is exempted pursuant to Section 4(1)(f) of the Act of 1963.
(b) The carrying out of development consisting of the laying underground of mains, pipes, cables or other apparatus for the purpose of the ESB, being exempted development under class 22 of column 1 of the Third Schedule to the Exempted Development Regulations (S.I. No. 65 of1977).
(c) The carrying out of development consisting of the construction of overhead transmission or distribution lines for conducting electricity at a voltage not exceeding 10 kv, being class 23 in thesaid column and schedule, but being subject to the qualification that it is not an exempted development in an amenity area.
(d) The carrying out of development consisting of the erection or construction of an overhead transmission line not more than 40 metres from a position in respect of which permission for such line was granted, being class 24 of the said column and schedule and being subject to the same qualification as to amenity.
(e) The carrying out by any electricity undertaking of development consisting of the erection or construction of a 10 kv unit sub-station, having a bulk of less than 8 cubic metres above ground level", being class 25 of column 1 of the said Second Schedule.
The relocation proposed in this case was more than the 40 metres provided for in the exemption, and the lines carried a voltage significantly in excess of 10 kv.
In the case of the placing by the ESB of an overhead power cable of this description, either by relocation or first placing, in a position on the side of an ordinary roadway, the adjoining owners and occupiers ofpropertywould have the right to be heard in the necessary application for planning permission which the ESB would be obliged to make in order to carry out the development, and if unsuccessful in any objection that one or more of them should have made, would have had a right of appeal to An Bord Pleanala against any decision granting permission.
If the contention of the Appellants in this case, however, is correct, by reason of the fact that the provision of this overhead electricity cable is being made on the land of a motorway (though, our course, it is not in any way associated with the convenience of the users of the motorway) necessarily involves, having regard to the terms of the statute, that no such formalised procedure of application for planning permission to a planning authority obliged to act in accordance with the requirements of proper planning and development of the area, and no procedure for appeal from an unsuccessful objection before such planning authority exists, but the only right which may exist is a right to makerepresentations in some form to the Minister, prior to his granting of consent under Section 10, even though the statute does not appear to provide for the giving by the Minister of any notice of his intention to make an order under Section 10, nor does it appear to impose upon the ESB any obligation to give public notice of its intention to apply for such consent.
It would appear clear that if such a drastic alteration in the rights of persons who may be affected by the erection of an overhead power line along a motorway, in either a new or in some significantly different position from where it previously had been is to be affected by a statute, the statute would require very clearly so to provide.
It is against that background and consequence that I would examine the provisions of the Act of 1974 which are relied upon on behalf of the Appellants as creating this statutory position.
I am satisfied that under no circumstances canSection 10 itself be read as in any way amending or making wholly inapplicable the provisions of the Planning and Development Acts 1963to 1983with regard to the obligations of the ESB to apply for planning permission in regard to development. It is an entirely negative provision and imposes a restriction on statutory undertakers which was not there before. That is the restriction that if they happen to want to exercise their statutory powers in relation to the land occupied by a...
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