The Supreme Court dismissed an appeal by North East Pylon Pressure Campaign Limited and Maura Sheehy over an approval granted to EirGrid for energy infrastructure. In a separate judgment delivered on 19 February 2019, Justice Donal O’Donnell agreed with the outcome and several conclusions in the lead judgment, while taking a different view on how An Bord Pleanála had been designated as competent authority.
The appeal concerned approval under section 182B of the Planning and Development Act 2000. The judgment describes the designation as having been made by a letter dated 4 December 2013, sent to the Board’s chair and copied to the European Commission. The letter said the Board was designated under the EU regulation on trans-European energy infrastructure and identified a collaborative permit-granting scheme.
The appellants argued that because the Board was created by statute, its expanded functions as competent authority could only be conferred through primary legislation or a statutory instrument. Justice Finlay Geoghegan agreed with that argument in the lead judgment. Justice O’Donnell disagreed: he considered that the regulation conferred the relevant powers, while the designation triggered those powers and could be effected by a valid instrument, including the ministerial decision represented by the letter.
Justice O’Donnell said a more formal route might have been preferable, but he did not consider a statutory designation essential. He also left open whether the “de facto” officer doctrine could validate the designation, saying that its application in Irish law would require focused argument and detailed consideration.
The disagreement did not change the result. Justice O’Donnell agreed that any invalidity in the designation would not, by itself, invalidate the Board’s permission. He also agreed there was no obligation to conduct an environmental impact assessment of EirGrid’s alternative proposals and that the appellants could not raise an issue under the Espoo Convention at that stage. The appeal was dismissed.