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High Court: Challenge to North-South 400 kilovolt Interconnector rejected

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The pressure group set up to contest the grant of planning approval for 300 pylons from Tyrone to Meath have had their challenge dismissed in the High Court.

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About this case:

Dismissing the application which involved 16 reliefs being sought, Mr Justice Max Barrett sympathised with the applicants but stated that the Court was “coerced as a matter of law” into concluding that there was no lawful basis for any of the reliefs.

Background

The Applicants in the present case - North East Pylon Pressure Campaign Limited and Maura Sheehy sought to challenge the decision of An Bord Pleanála on 19th December 2016, 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 connects existing substations in counties Louth and Armagh).

Consent

After outlining the 16 reliefs sought by the applicants, Justice Barrett stated that the critical issue as to consent in the proceedings was whether there was any rule mandating that EirGrid could only seek approval pursuant to s.182A of the Planning and Development Act 2000 with the consent of the owners of an affected property: (a) in legislation, (b) at common law, or (c) pursuant to the Constitution or the European Convention on Human Rights.

In this regard, the Court reached the following conclusions:

  1. the question of whether a person needs a legal or beneficial interest to make an application for development consent is determined by the statutory provisions governing that consent.

  2. the decision of the Supreme Court in Frescati establishes a rule of statutory construction which, when brought to bear on the Act of 2000 yields the result that that Act allows EirGrid to make the now-impugned application and imposes no constraint by reference to landowner consent.

  3. the decision in Frescati is limited in scope to an applicant for permission who is seeking to assert an indiscriminate and unqualified right in order to gratify a whim. Thus it is not applicable to a body such as EirGrid that is discharging a function in the public interest and common good.

  4. having regard to the fact that ESB will construct the interconnector, having regard to the fact that it has the statutory power to acquire interests and having regard to the relationship between ESB and EirGrid under the internal electricity market regulations, the requisite interest under Gormley exists (if it is necessary indeed to proceed to an application of Gormley and, for the reasons stated elsewhere above, the court is not persuaded that it is).

  5. no part of the application form can or does change the legal position as described by the court in the preceding pages; nor does the letter from the ESB.

  6. no provision of the Constitution or the European Convention on Human Rights alters the foregoing conclusions.

    7. Jus Tertii

    Justice Barrett stated that in broad terms, the applicants had standing to bring the within proceedings; nevertheless, when considering the observations as to standing made in Cahill v. Sutton I.R. 269 as applied in the context of Lancefort Ltd. v. An Bord Pleanála (No. 2) 2 I.R. 270, he could not see that either of the applicants, neither of them being landowners, has the requisite standing to make such claims as were made in their pleadings and submissions concerning allegedly affected landowners – as per Cahill v Sutton, this was a near-classic example of allowing “one litigant to present and argue what is essentially another person’s case”.

    Conclusion

    Sympathising with the applicants, Justice Barrett stated “…few if any of us would welcome the news that a great line of electricity pylons and linking wires was due to be erected on or across property that we chanced to own or otherwise enjoyed. The applicants… living in a beautiful part of Ireland and enjoying some of the best of the Irish countryside, understandably object to the fact that the North-South Interconnector development, as proposed, is to be built upon their properties, by their homesteads, or across their townlands”.

    Notwithstanding this observation, Justice Barrett stated “…when it comes to the decision of An Bord Pleanála, on 19th December last, to grant approval to EirGrid for the proposed North-South Interconnector development, the court… is coerced as a matter of law into concluding that there is no lawful basis presenting that would justify it granting any of the reliefs that the applicants now seek. It follows that all of the reliefs sought by the applicants at this time must be and are respectfully refused by the court”.

    • by Seosamh Gráinséir for Irish Legal News

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