North East Pylon Pressure Campaign Ltd v an Bord Pleanála

JurisdictionIreland
JudgeO'Donnell J.,O'Malley J.,Finlay Geoghegan J.
Judgment Date25 June 2018
Neutral Citation[2018] IESCDET 82
Docket NumberS:AP:IE:2018:000046
CourtSupreme Court
Date25 June 2018

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

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000

AND

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

BETWEEN:
NORTH EAST PYLON PRESSURE CAMPAIGN LIMITED
FIRST NAMED APPLICANT
AND
MAURA SHEEHY
SECOND NAMED APPLICANT
AND
AN BORD PLEANÁLA
FIRST NAMED RESPONDENT
AND
THE MINISTER FOR COMMUNICATIONS, CLIMATE ACTION AND ENVIRONMENT
SECOND NAMED RESPONDENT
AND
IRELAND

AND

THE ATTORNEY GENERAL
THIRD AND FOURTH NAMED RESPONDENTS

AND

EIRGRID PLC
NOTICE PARTY

[2018] IESCDET 82

S:AP:IE:2018:000046

THE SUPREME COURT

DETERMINATION

Judicial review – Planning and development – Environmental Impact Assessment – Applicants seeking leave to appeal to the Supreme Court from an order of the High Court refusing reliefs sought in judicial review proceedings – Whether the issues raised gave rise to points of general public importance

Facts: The applicants, North East Pylon Pressure Campaign Ltd and Ms Sheehy, sought leave to appeal to the Supreme Court from an order of the High Court made on the 22nd August 2017 refusing reliefs sought in judicial review proceedings. The applicants sought: (i) an order setting aside the High Court order; (ii) an order of certiorari quashing the decision of the first respondent, An Bord Pleanála, to grant approval under s. 182A(1) of the Planning and Development Act 2000 on the 19th December 2016 to the notice party, EirGrid plc; (iii) a declaration that the purported decision of the first respondent was contrary to and in breach of Council Directive 2011/92/EU on the Assessment of the Effects of certain public and private projects on the Environment; (iv) a declaration that the first respondent failed to properly consider and/or comply with the Directive, failed to carry out an Environmental Impact Assessment (EIA), failed to ensure that the documentation lodged complied with the obligations under the Directive, failed to ensure appropriate public participation and failed to consider and/or apply any or any appropriate mitigation measures in respect of the EIA process; (v) an order for the applicants’ costs of the proceedings before the High Court and the Supreme Court. The following issues were raised by the applicants as of exceptional public importance in the application for leave to appeal: 1) whether EirGrid could make a valid application for approval; 2) whether approval granted under s. 182A is to be deemed to be “an appendage to title”; 3) the identification and assessment of access routes; 4) the lawfulness of the designation of An Bord Pleanála as the “competent authority” under the PCI Regulation (1391/2013); 5) the application of the “de facto doctrine”; 6) Brexit and ISEM; 7) alternatives.

Held by O’Donnell, O’Malley and Finlay Geoghegan JJ that the applicants failed, in respect of a number of the arguments sought to be made, to address the reasoning of the trial judge and to indicate a basis for a finding that such reasoning was incorrect. The Court held that, in relation to the first issue raised, the applicants did not forward the basis for an argument that the trial judge was incorrect in holding that the reasoning in Frescati Estates v Walker [1975] IR 177 did not apply to the provisions under consideration. Similarly, in relation to the third issue, the Court held that the applicants had not engaged with the consequences found to flow from the fact that no permission was sought in respect of access routes. The Court held that the second issue arose from an observation in the course of general remarks made by the trial judge, upon which no part of the substantive rulings could be said to turn. In relation to the “Brexit” point, the Court held that no argument had been put forward as to how a planning decision made before the Article 50 notice could be said to be invalid. In those circumstances the Court found that the applicants had not put forward a stateable case, and therefore had not made out a case that met the constitutional criteria, as regards the issues at 1), 2), 3) and 6).

O’Donnell, O’Malley and Finlay Geoghegan JJ held that the issues raised in respect of 4), 5) and 7) did give rise to points of general public importance. The Court accordingly granted leave on the questions as to whether the Board was lawfully designated as the “competent authority”, whether its functions in that role created a conflict in respect of its role in approving the proposed development and whether, should the designation be found to have been invalid, there were any legal consequences for its decision in this case. The Court also granted leave on the issue concerning the obligation, if any, to provide an EIA for alternative proposals considered by the developer.

Leave to appeal granted.

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The Court grants leave to the Applicants to appeal to this Court directly from the High Court
ORDER SOUGHT TO BE APPEALED
COURT: High Court
DATE OF JUDGMENT: 22nd August, 2017
DATE OF ORDER: 30th January, 2018
DATE OF PERFECTION OF ORDER: 5th March, 2018
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON THE 29th MARCH, 2018, AND WAS IN TIME.
REASONS GIVEN:
General Considerations
1

The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2

The application for leave filed, and the respondent's notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

Background
3

The proposed development of the North-South Interconnector is a ‘strategic infrastructure development’ for the purposes of the Planning and Development (Strategic Infrastructure) Act 2006, as amended and is a ‘project of common interest’ for the purposes of the TEN-E Regulation (347/2013) and the PCI Regulation (1391/2013). The process for seeking approval for such a project is governed by s. 182A and 182B of the Planning and Development Act 2000, as amended (‘The PDA’).

4

The application for approval in this case was made by EirGrid. It is the licensed transmission system operator with, under statute, the exclusive function ‘to operate, ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system’ (the Internal Market in Electricity Regulations). Under those regulations the ESB, the transmission system owner, is obliged to enter into an agreement with EirGrid for the purpose of enabling the latter to discharge its functions under the Regulations. Pursuant to the agreement, it was for EirGrid to seek planning permission/approval for any projected development. The ESB is obliged to implement any planned project designed by EirGrid, and has the requisite statutory powers to carry out construction without the consent of landowners. The ESB is also the owner of the substation in this jurisdiction which will be linked to an equivalent substation in Northern Ireland.

5

Pursuant to the regulations the State is required to designate ‘one national competent authority’ to be responsible for facilitating and coordinating the permit granting process for projects of common interest.

6

The competent authority is to take actions to facilitate the issuing of the comprehensive decision within a time limit specified in the regulation. The regulation gives member states a choice of three schemes or models, under which the competent authority plays a greater or lesser role. The third model, which is the one chosen in this jurisdiction, is the collaborative scheme – the process leading to the comprehensive decision is coordinated by the competent authority, in consultation with other authorities concerned where relevant.

7

The regulation obliges a project promoter to facilitate public participation and report to the competent authority on the results thereof. Where relevant, the competent authority is to ‘actively support the activities undertaken by the project promoter.’

8

By letter dated the 4th December, 2013, copied to the Commission, An Bord Pleanála (‘the Board’) was informed that it was thereby designated the competent authority for the purposes of the regulation.

Issues raised in the application for leave to appeal
1

) Whether EirGrid could make a valid application for approval

9

Section 182A of the PDA does not expressly refer to a need for an applicant for approval to have either an interest in the lands or...

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2 cases
  • North East Pylon Pressure Campaign Ltd v an Bord Pleanála
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    ...set out in a written judgment delivered on 11 January 2018: [2018] IEHC 3. 9 The determination of this Court made on 25 June 2018: [2018] IESCDET 82, only granted leave to appeal on the following issues:- (i) Whether the Board was lawfully designated as the ‘competent authority’ pursuant t......
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    • 30 d2 Outubro d2 2018
    ...the Supreme Court granted leave to bring a leapfrog appeal to that court ( North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála [2018] IESCDET 82). That appeal was heard by the Supreme Court on 15th October, 2018 and judgment has been reserved. Meanwhile, the costs of the substantive......

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