Ratheniska Timahoe and Spink (RTS) Substation Action Group and Another v an Bord Pleanála and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Haughton
• Judgment Date: 14 January 2015
• Neutral Citation: [2015] IEHC 18
• Court: High Court
• Date: 14 January 2015

Timahoe & Ors v Bord Pleanala

JUDICIAL REVIEW

COMMERCIAL

No Redaction Needed

Approved Judgment

BETWEEN

RATHENISKA TIMAHOE AND SPINK (RTS) SUBSTATION ACTION GROUP AND ENVIRONMENTAL ACTION ALLIANCE IRELAND

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

EIRGRID PLC

NOTICE PARTY

[2015] IEHC 18

[No. 340 J.R./2014]

THE HIGH COURT

Administrative & constitutional law – Planning – Electricity works – Grant of approval for works– Whether grant susceptible to review

Facts: The applicants sought to challenge the decision of the respondent to grant approval for works planned by the notice party in respect of electricity supply. Their challenge ran on a number of grounds. The applicants now sought judicial review of the decision to grant approval.

Haughton J, having considered the statutory framework, applicable case law and submissions of the parties, stated that the main five grounds of the challenge were not successful. Firstly, the public notices of the application were sufficient for the Board considering the matter to adjudicate upon. Secondly, the Board did undertake a proper assessment of the environmental impact. Thirdly, the reasons for the Board”s decision were sufficiently set out. Fourthly, an appropriate assessment under the Habitats Directive was not required as the Board was entitled to decide the development would not impact sufficiently to justify it. Finally, the Board had correctly exercised its discretion as to costs in the matter. The application would be dismissed.

1 1. The applicants in this judicial review seek an order of certiorari quashing the decision of the respondent dated 23 ^rd April, 2014, whereby An Bord Pleanála ("the Board") purported to make a determination pursuant to s. 182A(1) of the Planning and Development Act 2000, as amended (PDA, 2000), granting approval for a development comprising electricity transmission infrastructure and associated works comprising the Laois-Kilkenny Reinforcement Project ("the Development").

2 2. The first named applicant is a group of people local to the area in which the proposed infrastructural and associated works are intended to be carried out and who, as individuals or as a group, raised objections to the application for approval or made observations/submissions to the Board.

3 3. The second named applicant is an unincorporated body of whom David Malone, an environmental consultant, is a member. The second named applicant through Mr. Malone also objected to approval for the Development and made submissions/observations. The principal affidavits grounding the application were sworn by Mr. Malone.

4 4. Although the notice party initially put the applicants on proof of their locus standi, this was not pursued at hearing and their locus standi was therefore accepted.

5 5. The notice party, EirGrid Plc ("EirGrid") was joined in these proceedings as it was the party applying to the Board for approval of the Development.

Background

6 6. EirGrid is the statutorily designated electricity transmission system operator and holds the only license granted by the Commission for Energy Regulation to operate the Irish electricity transmission system. In October, 2008, EirGrid published "A Strategy for the Development of Ireland's Electricity Grid for a Sustainable and Competitive Future", known as "Grid 25". This was a high level strategy outlining how EirGrid intended to undertake the electricity transmission grid in the short, medium and long term to support a long term sustainable and reliable electricity supply. The "Grid 25 Implementation Programme 2011-2016" was a practical strategic overview of how the early stages of Grid 25 would be implemented. It was subjected to Strategic Environmental Assessment (SEA) under the SEA Directive 2001/42/EC 1. This involved a systematic process of identifying and evaluating the likely significant environmental affects of Grid 25 and avoidance of those adverse effects which could not be sustainably accommodated.

7 7. At p. 119 of the SEA there is specific reference to "Laois/Kilkenny Reinforcement" with the following description:-

"New 400/110kV transmission station in Co. Laois. The station will be looped into the existing Dunstown-Moneypoint 400kV line and Carlow-Portlaoise 100kV line. A new 110kV circuit from the new station to Kilkenny using the existing Ballyragget-Kilkenny 38kV line which is built to 110kV standards. A new 110/38kV station at Ballyragget to cater for loss of the Kilkenny-Ballyragget 38kV line."

8 8. The following additional comments in relation to this reinforcement project appear on the same page:-

"Alternative for the new 400/110kV transmission station in Co. Laois should first examine locations to the east of Portlaoise and to the north of the south Laois plateau - away from most of the county's ecological and landscape sensitivities. Looping the station into the existing Dunstown-Moneypoint 400kV and Carlow-Portlaoise 110kV lines is likely to involve crossing the River Barrow and River Nore cSAC; looping will need to take into account this designation and planning authorities should be consulted in order to facilitate the identification of crossing points in Development Plans as appropriate. Linking the station to the existing Ballyragget-Kilkenny line in order to link the station to Kilkenny is likely to involve crossing the Nore/Barrow catchment limit and would therefore need to consider, in particular, visual impacts and their mitigation."

9 9. Upon completion, the SEA was circulated to various environmental authorities such as the EPA and certain government ministries and was published in a newspaper notice which indicated that a copy of the SEA Statement and Implementation Programme were available for inspection. Both the draft Implementation Programme and the SEA Environmental Report went on public display at the end of March, 201 land the public was entitled to take part in the consultation process.

10 10. It was in this context and subsequent to the SEA, and pursuant to statutory function, that EirGrid applied to the Board on 25 ^th January, 2013 for the approval of the Development.

11 11. Prior to making the application and pursuant to relevant statutory provisions concerning strategic infrastructure development, the Board convened four pre-application consultations with representatives of EirGrid on 5 ^th August, 2009, 13 ^th July, 2012, 3 ^rd August, 2012 and 15 ^th October, 2012. By a decision made on 21 ^st November, 2012, the Board decided that the Development was a "strategic infrastructure development" (PL11.VC0035). While this preliminary decision of the Board also determined that an Environmental Impact Statement (EIS) was unnecessary, subsequent to the submission of the application for approval to the Board, by letter dated 29 ^th April, 2013, the Board requested further information from EirGrid, namely, the submission of an EIS.

12 12. The EIS, running to over 800 pages plus two folders of Appendices was duly submitted to and received by the Board on 16 ^th August, 2013. This led to a further round of public notices in September, 2013 over six weeks prior to the planning hearing. An oral hearing was subsequently convened by the Board relating to the proposed Development and was held on 4 ^th, 5 ^th, 6 ^th, 7 ^th, 14 ^th and 15 ^th November, 2013, before Senior Planning Inspector Andrew C. Boyle, whose report is dated 31 ^st January, 2014. The Inspector's Report runs to 114 pages and it is apparent from it that submissions and observations were received from numerous parties including the first named applicant and Mr. Malone.

13 13. As part of the process, EirGrid also carried out Screening Reports to enable the Board to determine whether an "appropriate assessment" (AA) was required in the context of possible adverse impacts of the Development on conservation interests protected under the Natura 2000 Networking Programme ("Natura 2000"). In fact, EirGird accepted in the Screening Reports submitted with the application that there was potential for adverse affects on the River Barrow and River Nore candidate Special Area of Conservation (cSAC). Accordingly, as required by law, a Natura Impact Statement (NIS) was prepared which was, in fact, submitted with the application for approval.

14 14. At the screening stage, EirGrid also considered the River Nore Special Protection Area (SPA) (an area of special protection concerned with Kingfishers and breeding sites). The report concluded that this would not be impacted upon either directly or indirectly by the proposed Development and that therefore no AA of that aspect was required to be carried out by the Board before granting approval. The Screening Reports and the NIS relating to the River Barrow and River Nore cSAC were materials before the Inspector and considered at the planning hearings.

15 15. The Board "Direction" in the matter dated 14 ^th April, 2014, indicates that meetings of the Strategic Infrastructure Division of the Board were held on 26 ^th February, 2014, 5 ^th, 12 ^th and 25 ^th March, 2014 and 3 ^rd April, 2014. The Direction was unanimously to approve the Development. The actual approval decision of the Board, impugned in these proceedings, is dated 23 ^rd April, 2014.

Grounds of Challenge

16 16. By order of Peart J. made on 23 ^rd June, 2014, pursuant to ex parte application, leave was granted to the applicants to apply for certiorari of the decision of the Board dated 23 ^rd April, 2014, on the grounds set forth at para. (e) in the statement of grounds. Paragraph (e) in the statement of grounds runs to some 28 paragraphs. The essential grounds appear in paras. 1-5 inclusive:-

2 "1. The statutory notifications of the application for approval were deficient as they did not properly or completely identify or describe the proposed development contrary to...