North East Pylon Pressure Campaign Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay,O'Donnell J.
• Judgment Date: 19 February 2019
• Neutral Citation: [2019] IESC 8
• Court: Supreme Court
• Docket Number: [Appeal No: 2018/000046],[S.C. No. 46 of 2018]
• Date: 19 February 2019

IN THE MATTER OF AN APPLICATION PURSUANT TO THE PLANNING AND DEVELOPMENT ACT 2000, AND

IN THE MATTER OF AN APPLICATION PURSUANT TO S. 50 AND S. 50B OF THE PLANNING AND DEVELOPMENT ACT 2000, AND

IN THE MATTER OF AN APPROVAL GRANTED UNDER S. 182B OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

Between/

North East Pylon Pressure Campaign Limited

First Named Applicant / Appellant

and

Maura Sheehy

Second Named Applicant/Appellant

and

An Bord Pleanála

First Named Respondent

and

The Minister for Communications, Climate Action and the Environment

Second Named Respondent

and

Ireland

and

the Attorney General

Third and Fourth Named Respondents

and

EirGrid Plc

Notice Party / Respondent

[2019] IESC 8

O'Donnell Donal J.

Finlay Geoghegan J.

Clarke C.J.

O'Donnell Donal J.

Charleton J.

O'Malley Iseult J.

Finlay Geoghegan J.

[Appeal No: 2018/000046]

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Planning and development – Planning permission – Judicial review – Appellants seeking judicial review of the decision of the respondent to grant planning permission to the notice party – Whether the respondent was lawfully designated as the competent authority

Facts: The appellants, North East Pylon Pressure Campaign Ltd and Ms Sheehy, appealed from an order of the High Court (Barrett J) of 30 January 2018 which dismissed the application for judicial review of the decision of the first respondent, An Bord Pleanála, of 19 December 2016 to grant planning permission to the notice party, EirGrid plc, pursuant to s. 182B of the Planning and Development Act 2000 for the proposed North-South 400 kV Interconnector Development. The determination of the Supreme Court made on 25 June 2018 granted leave to appeal on the following issues: (i) whether the Board was lawfully designated as the “competent authority” pursuant to Council and Parliament Regulation (EU) No. 347/2013 on guidelines for trans-European energy infrastructure, as amended by Commission Delegated Regulation (EU) 2016/89 of 18 November 2015 (the PCI Regulation); (ii) whether the Board’s role as competent authority created a conflict (or a situation of objective bias) in respect of its role determining the planning application under the 2000 Act; (iii) if the designation of the Board as competent authority was invalid, whether there were legal consequences for the impugned decision of 19 December 2016 to grant planning approval, pursuant to s. 182B of the 2000 Act; and (iv) whether an obligation existed to conduct an environmental impact assessment of alternative proposals considered by EirGrid.

Held by Finlay Geoghegan J that the purported designation of the Board as competent authority for the purposes of the PCI Regulation made on behalf of the Minister and communicated by letter of 4 December 2013 did not validly confer on the Board the functions of a competent authority under the PCI Regulation. Finlay Geoghegan J held that the Board is a statutory body which may only act in accordance with the powers conferred by statute; hence, any addition to its powers must also be by a legislative act, either an Act of the Oireachtas or a regulation made under the European Communities Act 1972. Finlay Geoghegan J held that it was a combination of the designation and the PCI Regulation which purported to extend the statutory powers assigned to the Board, and the former was not done by a legislative act. Finlay Geoghegan J held that the planning decision issued by the Board on 19 December 2016 to approve the proposed development under s. 182B of the 2000 Act was not vitiated by an apprehension of objective bias. Finlay Geoghegan J held that a reasonable person knowing all relevant facts, including the provisions of the PCI Regulation, would not have had a reasonable apprehension that the Board might be biased in the performance of its functions or in deciding the planning application under the 2000 Act by reason of its designation as competent authority for the purposes of the PCI Regulation. Finlay Geoghegan J held that even if her conclusion that the Board was not validly designated as a competent authority for the purposes of Article 8(1) of the PCI Regulation were the majority view of the Court (which it was not), that would not vitiate the validity of the order made by the Board on 19 December 2016 granting approval for the proposed development under s. 182B of the 2000 Act; that decision stood on its own and no step taken by the Board as competent authority in any way affected the consideration given by the Board in the statutory permit granting procedure pursuant to s. 182A of the 2000 Act. Finlay Geoghegan J held that there was no obligation on the Board to conduct an environmental impact assessment of alternative proposals considered by EirGrid; this followed from the Judgment of the Court of Justice of the European Union of 7 November 2018, Holohan v An Bord Pleanála, C-461/17, ECLI:EU:C:2018:883. Finlay Geoghegan J held that the applicant should not be granted leave to pursue a new ground of appeal in relation to an interpretation of Article 5(3)(d) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment in reliance upon the applicability of the Convention on Environmental Impact Assessment in a Transboundary Context (adopted 25 February 1991, entered into force 10 September 1997) 1989 UNTS 209 to the project for which planning permission was applied and granted.

Finlay Geoghegan J held that she would dismiss the appeal.

Appeal dismissed.

Judgment of O'Donnell J. delivered the 19th day of February 2019

1 I have read the judgment about to be delivered by Finlay Geoghegan J., and I agree with her that the appeal should be dismissed. I also agree that if there was any invalidity in the designation of An Bord Pleanála (‘the Board’) as competent authority, that in itself would not invalidate the permission granted by the Board pursuant to s.182B of the Planning and Development Act 2000 (as amended) (‘the 2000 Act’). I also agree that there was no obligation to conduct an EIA of the alternative proposals considered by EirGrid, and, finally, that the appellant should not be permitted to raise any issue under the Convention on Environmental Impact Assessment in a Transboundary Context (‘the Espoo Convention’) at this stage. However, I respectfully differ from Finlay Geoghegan J. on the initial question of the validity of the designation of the Board as competent authority, and since the matter may be of continuing importance, I will briefly set out my views.

2 I gratefully adopt the lucid account of both the facts and relevant law contained in the judgment of Finlay Geoghegan J. The central issue in this appeal arises here because Article 8 of Regulation (EU) 347/2013 on guidelines for trans-European energy infrastructure (as amended) (‘the PCI Regulation’) requires each Member State to designate one national competent authority to be responsible for facilitating and coordinating the permit granting process for projects of common interest, and to choose the form of scheme to be applied to the issuing of the comprehensive decision as to whether the building of energy infrastructure to realise a project will be authorised. Designation of the Board as competent authority was purported to be effected here by a letter of 4 December 2013, which was signed by an assistant secretary in the Department of Communications, Energy and Natural Resources and sent to the chair of the Board. The letter informed the chair that the Board ‘is hereby designated as competent authority for the purposes of the [PCI] Regulation’, and also indicated that the designation was on the basis of the operation of the collaborative scheme referred to in Article 8(3)(c) of the PCI Regulation. The letter was copied to the European Commission. There is no doubt, therefore, that the letter purported to effect a decision on the choice of scheme as contemplated by the PCI Regulation. However, it is argued that, because the body being designated is one created by statute (in this case, by the Local Government (Planning and Development) Act 1976, and continued in existence pursuant to ss. 102 and 103 of the 2000 Act, s.102(2) of which provides that the Board shall perform the functions assigned to it by the 2000 Act), such a body can only have powers conferred by statute, and cannot enlarge its jurisdiction in any way: see the judgment of McKechnie J. in County Louth Vocational Education Committee v. The Equality Tribunal [2016] IESC 40, (Unreported, Supreme Court, 13 July 2016), at para. 35. It is agreed that the question of validity of designation is a matter of national law. It is argued, and Finlay Geoghegan J. agrees, that the designation could only be lawfully effected by primary legislation, or, in this case, since the designation is pursuant to a regulation of the European Union, by a statutory instrument made under the European Communities Act 1972, which for present purposes is the functional equivalent of primary legislation.

3 There is no doubt that the designation could have been effected by primary legislation amending the 2000 Act, either expressly or by implication, and there are perhaps good reasons of policy regarding the promulgation of laws and decisions having effect on citizens which might suggest that this course or some more formal procedure would have been preferable. Furthermore, familiarity with the procedures of limited companies or corporations, may lead to a healthy regard for the perils of the ultra vires doctrine, and a consequent caution in ensuring all possible enabling provisions are in place. However, the issue which arises in this case is whether primary legislation is the only method of possible designation of the Board as competent authority.

4 Since the matter is accepted to be one of...