North East Pylon Pressure Campaign Ltd v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 12 May 2016 |
| Neutral Citation | [2016] IEHC 300 |
| Court | High Court |
| Docket Number | [2016 No. 150 JR] |
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED
AND
AND
[2016] IEHC 300
Humphreys J.
[2016 No. 150 JR]
THE HIGH COURT
JUDICIAL REVIEW
Planning & Development – S.50 of the Planning and Development Act 2000 – Regulation No. 347/2013 on trans-European energy infrastructure – Bias – O.84, r. 21 (1) as amended by the Rules of the Superior Courts (Judicial Review) 2011 – Leave to seek judicial review
Facts: The applicants sought leave for a judicial review of the decision of the second named respondent designating the first named respondent as a competent authority under art.8 of the reg. 347/2013 on trans-European energy infrastructure in relation to the proposed development. The notice party contended that a challenge to the validity of the ministerial designation should have been instituted by way of a declaration in the plenary proceedings. The first named respondent argued that s.50 of the Planning and Development Act, 2000, did not apply to the judicial review proceedings. The notice party asserted that the present application was time barred under o.84 of the Rules of Superior Courts 2011.
Mr. Justice Richard Humphreys refused to grant leave to the applicants with liberty to file an application for certiorari against the final outcome of the decision of the first named respondent on substantial grounds, if any. The Court, while giving a narrow interpretation to s. 50 (2) of the Act of 2000, held that only substantive decisions of the Board were amendable to judicial review under that section and not the intermediate or subordinate steps in the development consent process. The Court opined that judicial intervention during an ongoing consent procedure of an administrative body would be warranted only in exceptional circumstances occasioned by gross breach of rights. The Court observed that notwithstanding the inapplicability of s. 50 of the Act of 2000 to the present application, the Court retained the discretion to grant leave under said o.84 subject to the condition that the applicants met the required threshold needed to grant the relief by establishing that the issue in question was arguable. The Court opined that a challenge to ministerial designation would not be out of time as it was a challenge to a measure of a general and legislative or regulatory nature. The Court found that the present application was premature as there had been no substantive decision made by the Board in relation to the proposed development which had adversely affected the applicants. The Court propounded that said o.84 must be given wide interpretation encompassing an applicant's right of effective remedy under art. 40.3 of the Constitution, art. 13 of ECHR and art. 47 of the EU Charter.
When does time begin to run in a judicial review application? When should an applicant be required to await the final outcome of a process rather than challenge it mid-stream? When is the appropriate time in a process to challenge a statute, statutory instrument or instrument-like measure of general application, by way of judicial review? And what types of acts or decisions are encompassed by the more demanding rules for judicial review of planning matters? These procedural questions are easy to state but are of momentous practical importance across the whole field of judicial review.
At issue in the present leave application is a challenge to the development consent process for a 400kV North/South electricity interconnector from Woodlands Station, Co. Meath, passing through Cavan and Monaghan, to a proposed substation at Turleenan, Moy, Co. Tyrone.
The first named applicant was established in November 2007, following the announcement of a proposed North/South Electricity Interconnector Project. It represents a large number of interested parties and local property owners, of which the second named applicant is one.
Regulation No. 347/2013 of the European Parliament and of the Council of 17th April, 2013 on guidelines for trans-European energy infrastructure and repealing Decision No. 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No. 714/2009 and (EC) No. 715/2009 (energy infrastructure regulation) was adopted to make provision for the European Energy Infrastructure. The regulation envisaged a category of infrastructural development referred to as projects of common interest, which were to be managed in two phases, a pre-application procedure and a statutory phase. The regulation came into force in June, 2013. Article 8 of the regulation requires Member States to designate a competent authority for the purposes of that regulation by 16th November, 2013.
The North/South Interconnector was designated a ' project of common interest' under the regulation on 14th October, 2013.
On 11th December, 2013, the board provided what EirGrid describes as a scoping opinion which set out the board's opinion on what information had to be included in the environmental impact statement, apparently furnished by virtue of s. 182E of the Planning and Development Act 2000 as inserted by s. 4 of the Planning and Development (Strategic Infrastructural Development) Act 2006 (in Appendix 1.4 to vol. 3B of the environmental impact statement submitted on 9th June, 2015).
On 4th December, 2013 (after the EU deadline had expired), An Bord Pleanála was designated by the Minister for Communications, Energy and Natural Resources as the competent authority pursuant to art. 8 of the regulation. This designation was effected by means of a letter from Mr. Ken Spratt, Assistant Secretary General in the Department of Communications, Energy and Natural Resources to Dr. Mary Kelly of the board. The letter itself was not formally published and its text only became available to the applicants in the course of the hearing.
An issue apparently arose as to whether the transitional provisions in art. 19 of the 2013 regulation applied to the proposed project. The board's inspector prepared a report dated 2nd May, 2014 recommending that they did not so apply. That report was published in May, 2014.
On 15th May, 2014, the board published a manual of permit granting process procedures, setting out its role in projects of common interest.
In June, 2014, EirGrid provided the board with a detailed outline of its project.
On 2nd July, 2014, the submission of the project outline was acknowledged by the board.
On 28th July, 2014, EirGrid informed the first named applicant that the board was the competent authority for projects of common interest in Ireland.
On 31st July, 2014, EirGrid submitted a concept for public participation to the board, which referred to the past consultations which had taken place.
On 10th September, 2014, the board informed EirGrid that it had modified the concept requiring EirGrid to publish an information leaflet and place an advertisement in national newspapers.
On 24th September, 2014 the board appears to have prepared an updated 'Projects of Common Interest Manual of Permit Granting Process Procedures' which stated inter alia that the board had been designated as a competent authority. The manual was then published on the board's website.
A draft application file was submitted to the board on 7th November, 2014.
On 18th November, 2014 the first named applicant wrote to the European Commission complaining about the proposed project on a number of grounds, one of which was an alleged conflict, or bias, arising from the dual role of the board as both an approving body for strategic infrastructure under the Planning and Development (Strategic Infrastructural Development) Act 2006, as well as its role as a designated competent authority under the 2013 energy infrastructure regulation.
The board specified certain missing information that it required from EirGrid, on 16th December, 2014. This was responded to on 13th March, 2015.
A previous application for the development gave rise to an oral hearing at which the applicants say net costs in the region of €530,000 were incurred. The application was then withdrawn and the applicants instituted proceedings for recovery of costs, which were settled on payment of a contribution.
The formal process of development consent was put in motion on 9th June, 2015 when EirGrid applied to the board under s. 182A of the Planning and Development Act 2000 for approval of proposed development consisting of the intended North/South Electricity Transmission Interconnector. This formal application marked the transition between the pre-statutory phase and the statutory phase of project consent.
The application was acknowledged by the board on the 11th June, 2015. Between 16th June, and 24th August, 2015 over 900 submissions from over 1,500 persons were made in connection with the application.
The solicitors for the first named applicant made a submission regarding preliminary issues on 24th August, 2015 and requesting an oral hearing.
The board indicated that it would consider the applicants' submissions when determining the application rather than as a preliminary issue, on 22nd September, 2015.
On 19th October, 2015, EirGrid submitted its response to the submissions made.
On 21st January, 2016, the board informed the parties of its intention to hold an oral hearing.
The precise proposed time and date for the commencement of that hearing (11:00am on 7th March, 2016) was communicated to the...
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