Planning & Environment Update: Supreme Court Grants Leave to Appeal on North-South Interconnector
04 July 2018
The Interconnection Project
The North South Interconnection Development proposes the addition of new 400kV overhead line to the grid. It will connect the electricity grids of Ireland and Northern Ireland. This proposed line runs through counties Monaghan, Cavan and Meath in the Republic of Ireland and through Armagh and Tyrone in Northern Ireland.
As with all major projects, EirGrid has undertaken an extensive process of public consultation on this project. The state-owned company has received planning permission for the project in both jurisdictions however a number of judicial review proceedings are currently underway.
The proposed development of the North-South Interconnector is a “strategic infrastructure development” and is a “project of common interest” for the purposes of the TEN-E Regulation (347/2013) and the PCI Regulation (1391/2013). The application for approval under these Regulations was made by EirGrid in its capacity as the transmission system operator. In this capacity, it was also incumbent on EirGrid to seek planning permission/approval for any projected development. ESB, the state-owned electricity company, is obliged to implement any planned project designed by EirGrid, and has the necessary 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.
Under the Regulations the State is required to designate “one national competent authority” to be responsible for coordinating the permit granting process for projects of common interest. An Bord Pleanála, the statutory planning authority in the Republic of Ireland, was designated the competent authority in Ireland (the Board).
Under Section 182A of the Planning and Development Acts as amended, there is no express need for EirGrid to have an interest in the lands or the consent of the landowner for the land on which the structures would be erected. The applicants argued that in the absence of some of the landowners’ consent, EirGrid did not have sufficient legal interest in the lands to make a valid application.
High Court proceedings
In one set of proceedings, North East Pylon Pressure Campaign Ltd & anor v An Bord Pleanála & ors, the High Court judge found that EirGrid did have sufficient legal interest having regard to its statutory functions and to the relationship between it and the ESB. This is because it was deemed that EirGrid intended to carry out the development and was in a position to procure ESB to do the works. It was also held that the relevant legislative provisions did not expressly demonstrate that consent of landowners was required.
Issues raised in the application for leave to appeal
EirGrid believed that it did not require planning permission for access to the sites where the pylons were being constructed because it had identified methods of temporary access that would not entail development works. However, it did consider that the Board was required to carry out an environmental impact assessment, or EIA, that would include an assessment of the proposed accesses.
For that purpose, it put forward a list of “indicative accesses” to the tower sites, stringing locations, etc. On foot of the oral hearing for the development, the inspector concluded that the use of the temporary routes would not give rise to a significant environmental impact.
The Board agreed with this and imposed certain conditions for each of the temporary access routes. In the High Court, the trial judge held that the Board had properly carried out its obligations in respect of EIA. There was an emphasis on the fact that the Board was not dealing with an application for permission for the access routes.
The applicants contended that basing the EIA on indicative routes raises a doubt as to whether environmental impacts were properly assessed. They also claimed that the Board had unlawfully delegated authorisation of accesses to the local authorities. Local authorities have no legal authority to carry out an EIA and/or an appropriate assessment for the interconnector development. They are also not authorised to issue a “comprehensive decision” under the PCI regulation. The applicants also asserted that landowners and the public will remain unaware of what is being proposed and will have no right to participate or make submissions.
The Court found that the applicants had not put forward a stateable case, and therefore had not made out a case that meets the constitutional criteria, as regards the issues relating to:
- Whether EirGrid could make a valid application for approval
- Whether approval granted under the section is to be deemed to be an appendage to title
- Identification and assessment of access routes
- BREXIT and ISEM
However, the Court considered that the following issues gave rise to points of general public importance:
- Lawfulness of designation of An Bord Pleanála as the “Competent Authority” under the PCI regulation
- The application of the “de facto doctrine”
- Alternatives, being consideration of any alternatives included in the Environmental Impact Statement
Leave was accordingly granted 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 there are any legal consequences for its decision in this case if the designation was found to be invalid.
Leave was also granted on the issue concerning the obligation, if any, to provide an EIA for alternative proposals considered by the developer.
For more information on the application of planning law in similar circumstances, contact a member of our Planning & Environment team.
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