New Appeal: Allegation of apparent bias against An Bord Pleanála re North-South Interconnector decision

In this determination, North East Pylon Pressure Campaign Limited & Anor v An Bord Pleanála & Ors, the Supreme Court granted the NEPPC leave to appeal the High Court decision dismissing their challenge to the process for granting of approval for a proposed North-South Interconnector (electrical). The Court determined that the NEPPC had raised questions of general public importance regarding An Bord Pleanála’s lawful designation as a “compotent authority”, its appearance of bias in the process, and of whether the Environmental Impact Assessment Directive required that Environmental Impact Statements (EIS) for alternatives to the proposed development be carried out.

 

Background

Some important background facts on the process are set out in the determination:

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.

 

Additional background facts are outlined in the High Court judgment (here).

On March 4th 2016, the NEPPC brought its first High Court application, seeking on order to restrain the Board’s oral hearing. The High Court dismissed that challenge. The NEPPC brought two further applications to the High Court. The first challenging EirGrid’s changing of temporary access routes from those examined in the EIS; the second seeking a declaration that the Board’s designation as a compotent authority was invalid.

The High Court allowed for amended pleadings. NEPPC sought 12 remedies on 46 grounds. The High Court refused to grant NEPPC any of the remedies sought.

Supreme Court

Granting leave for appeal, the Court determined that the NEPPC had raised points of general public importance, stating:

Leave will accordingly be granted on the questions 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 are any legal consequences for its decision in this case. Leave will also be granted on the issue concerning the obligation, if any, to provide an EIA for alternative proposals considered by the developer. The parameters of the issues may the subject of further refinement at case management.

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