North East Pylon Pressure Campaign Ltd v an Bord Plean?la

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 22 August 2017
• Neutral Citation: [2017] IEHC 338
• Court: High Court
• Docket Number: 2017 No. 151JR
• Date: 22 August 2017

[2017] IEHC 338

THE HIGH COURT

Barrett J.

2017 No. 151JR

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 PLEAN�LA

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

Environment, Construction & Planning – S. 182 of the Planning & Development Act 2000 – Commission Regulation (EU) 2016/89 – Public interest – Single Electricity Market Operator (‘SEMO’) – Consent of landowners whether mandatory before carrying out developments in public interest

Facts: The applicants sought an order of certiorari for quashing the decision of the first respondent (‘Board’) for granting permission for the construction of an interconnector to the notice party. The applicants argued that the impugned decision was in breach of various European Regulations and Directives. The applicants put reliance on the decision of the Supreme Court in Frescati Estates v Walker [1975] I.R. 177 to the effect that there was an implied obligation to obtain the landowner's consent in the context of an application made under s. 182A of the Act of 2000.

Mr. Justice Max Barrett refused to grant the desired relief to the applicants. The Court held that the individual landowner's consent was not a pre-requisite for making a development application. The Court noted that the Frescati had no applicability to s. 182A of the 2000 Act as the notice party was a statutory body empowered to undertake public utility works and such bodies were not expected to abide by consent requirements as it would make the proposed developments almost unworkable. The Court found that the notice party was entitled to make an application for approval under s. 182A as it was clear from the words ‘intends to carry the developments’ appearing under s. 182A(1). The Court noted that the fact that the notice party had contract with another body for the construction of infrastructure would not snatch the notice party's entitlement to make such an application.

JUDGMENT of Mr Justice Max Barrett delivered on 22nd August, 2017.

TABLE OF CONTENTS

(Numbers in square brackets are paragraph numbers).

I. Introduction [1]

II. Reliefs Sought [2]

III Some General Points Arising [3]

IV. Consent [4]

(i) Critical Issue Arising. [4]

(ii) Legislative Requirements. [5]

(iii) Frescati, et al. [9]

a. Overview. [9]

b. The decision in Frescati. [10]

c. Section 53 and Gormley. [16]

d. The Form and the Letter. [20]

A. Overview. [20]

B. The Form. [21]

C. The Letter. [25]

V. Entitlement to Make Application? [29]

(i) Critical Issue Arising. [29]

(ii) The Act of 1999 and the Regulations of 2000. [30]

(iii) A Consideration of Certain of the Affidavit Evidence. [32]

(iv) The Infrastructure Agreement. [35]

(v) Some Conclusions. [36]

(vi) The East-West Interconnector. [38]

(vii) Section 53 of the Act of 1927. [43]

a. Overview. [43]

b. The decision in Killross. [44]

(viii) Some Further Conclusions. [48]

VI. Designation, Bias, and Validity of Decision [49]

(i) Overview. [49]

(ii) The Question of Designation. [51]

a. The PCI Regulation. [51]

b. The European Union Law Dimension. [52]

(iii) Some Particular Aspects of the Case at Hand. [59]

VII. Bias [82]

VIII. What if the Court is wrong? [88]

(i) Overview. [88]

(ii) Issuance of Consent pursuant to s.182B. [89]

(iii) De Facto Designation. [91]

IX. Delay [95]

X. “Brexit” [98]

(i) Concerns Raised by Applicants. [98]

(ii) Uncertainty as to the Future. [100]

(iii) Listing of Project. [104]

1 The PCI Regulation. [104]

2 The 2015 Regulation. [106]

(iv) Some Conclusions. [109]

XI. Error on the Face of the Record [111]

XII. The Inspector's Report [113]

XIII. Access [115]

(i) Overview. [115]

(ii) The Substance of the Inspector's Report. [124]

(iii) Question as to Consideration of Access. [141]

(iv) Complaints about information provided. [144]

(v) The Agricultural Liaison Officer/s. [151]

(vi) Boland et al.[153]

(vii) Some Further Observations as to Access. [161]

XIV. Alternatives [168]

(i) Overview. [168]

(ii) The Consideration of Alternatives Undertaken. [169]

a. Route Alternatives. [169]

b. Consideration of Technology, including Undergrounding. [176]

c. Cost-Benefit Analysis. [182]

(iii) Some Legal Issues Presenting. [183]

XV. Health Impacts [185]

(i) Electric and electro-magnetic fields. [185]

(ii) Childhood leukaemia. [187]

(iii) Other cancers. [188]

(iv) Non-cancerous diseases. [189]

(v) Children with Autism. [190]

(vi) Compliance with the ICNIRP Guidelines. [191]

XVI. The Whooper Swan [195]

XVII. Closing Submissions [198]

(i) Section 182B(10)(f). [199]

(ii) Ordinary and legal intent. [201]

(iii) “Brexit” as an issue of need. [202]

(iv) Vires. [203]

(v) Which Routes Were Approved? (The “Yellow and Purple” Issue) [206]

XVIII. Jus Tertii [219]

XIX. Closing [220]

I. Introduction

1 These proceedings concern a challenge to the decision of An Bord Plean�la on 19th December last to grant planning approval to EirGrid under s.182B of the Planning and Development Act 2000 for the proposed North-South 400kV Interconnector development located in counties Monaghan, Cavan and Meath. The overall North-South Interconnector project comprises a 400kV overhead line circuit that is approximately 138km long, inclusive of approximately 34km in the North, linking an existing 400kV substation in Woodland, County Meath with a planned substation in Turleenan, County Tyrone. If it proceeds, the North-South Interconnector project will provide a second high-capacity all-Ireland electricity interconnector. (The existing interconnector, a 275kV double circuit overhead line (such lines being sometimes referred to in the documentation before the court as “OHLs”) connects existing substations in counties Louth and Armagh).

II. Reliefs Sought

2 The principal reliefs sought by the applicants in their application are as follows:

(1) an order of certiorari quashing the decision of An Bord Plean�la, on 18th December, 2016, to grant approval under s.182A(1) of the Planning and Development Act 2000 for an interconnector of 138km length (inclusive of 34km located in Northern Ireland which will link the existing electricity network of Northern Ireland between Turleenan in County Tyrone and Woodland (near Batterstown) County Meath, which interconnector has been designated as a project of common interest (PCI) pursuant to the provisions of Regulation (EU) No. 347/2013 of the European Parliament and of the Council of 17th April, 2013, on guidelines for trans-European energy infrastructure (O.J. L115/39, 25. 4.2013) (the “PCI Regulation”), and in particular a new single circuit 400kV overhead transmission line between Crossbane, County Armagh and Lengare, County Monaghan to the townland of Bogganstown, County Meath, which transmission line crosses the jurisdictional border between Ireland and the United Kingdom in the townlands of Lengare, County Monaghan and Crossbane, County Armagh and comprises 299 new lattice steel support structures ranging in height from 26 to 51 metres above ground and associated conductor, insulators and other apparatus, which determination was approved pursuant to s.182B of the Act of 2000; (notwithstanding the applicants' contention to the contrary the impugned decision of An Bord Plean�la, as per the court's analysis later below, extends solely to the portion of the North-South Interconnector that sits south of the border between this State and Northern Ireland);

(2) a declaration that in making its decision of 19th December, 2016, An Bord Plean�la failed to have regard (and/or sufficient regard) to the designation (pursuant to Commission Delegated Regulation (EU) 2016/89 of 18 November 2015 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest (O.J. L19, 27.1.2016, 1) (the “2015 Regulation”)) of the proposed development as a Cluster-Ireland-United Kingdom interconnection, including one or more of the following PCIs: Ireland-United Kingdom interconnection between Woodland (IE) and Turleenan (UK) and Ireland-United Kingdom interconnection between Srananagh (IE) and Turleenan (UK);

(3) an order of certiorari quashing the ‘ purported’ decision of An Bord Plean�la of 19th December, 2016, granting approval under s.182B of the Act of 2000 for the proposed development of a 400kV electricity transmission interconnector linking the electricity transmission networks in Ireland and Northern Ireland;

(4) a declaration that the ‘ purported’ decision of An Bord Plean�la of 19th December, 2016, is contrary to and in breach of Council Directive 2011/92/EU of the European Parliament and of the Council of 13th December, 2011, on the assessment of the effects of certain public and private projects on the environment (O.J. L26, 28.1.2012, 1), as amended (the “EIA Directive”);

(5) a declaration that An Bord Plean�la failed properly to consider and/or comply with the EIA Directive and failed to carry out an EIA, failed to ensure that the documentation lodged complied with the obligations under the said directive and failed to ensure appropriate public participation and/or failed to consider and/or apply any or any appropriate mitigation measures in respect of the EIA process;

(6) a declaration that the ‘ purported’ decision of An Bord Plean�la...