The Supreme Court dismissed an appeal by North East Pylon Pressure Campaign Limited and Maura Sheehy over An Bord Pleanála’s approval of the proposed North-South 400 kV Interconnector. The judgment says the planning approval stands even if the Board’s separate designation as the project’s EU competent authority was invalid.
The appeal challenged a High Court order that dismissed the applicants’ judicial review of the Board’s 19 December 2016 planning approval for EirGrid plc’s proposed electricity link between Ireland and a planned substation in Northern Ireland. The Supreme Court had granted leave to appeal on four issues, including the Board’s designation, alleged objective bias and environmental assessment of alternatives.
In her judgment, Ms Justice Finlay Geoghegan concluded that the Board’s designation as competent authority, communicated by a ministerial department letter in December 2013, did not lawfully confer the EU regulation’s functions on the statutory body. She said an addition to the Board’s statutory powers required a legislative act, such as an Act or regulation. The judgment records that this conclusion was not the majority view of the Court.
On the bias challenge, the judge concluded that a reasonable person aware of the relevant facts would not have a reasonable apprehension that the Board was biased in deciding the planning application. She described its role under the collaborative permit scheme as administrative, involving coordination and monitoring time limits.
The judge also concluded that the alleged defect in the Board’s designation did not invalidate the separate planning approval made under the Planning and Development Act 2000. She said no step taken in the Board’s competent-authority role affected its consideration of the statutory planning application. The judgment did not decide whether the approval could also count as the EU regulation’s “comprehensive decision” without a validly appointed competent authority.
On environmental alternatives, the Court said EU law did not require the alternatives studied to receive an impact assessment equivalent to that of the approved project. It refused to let the appellants introduce a new argument relying on the Espoo Convention, finding that raising it at that stage risked prejudice to EirGrid and the Board. The appeal was dismissed.