The High Court has refused Lighthouse Networks Limited’s application to overturn a 2019 decision that its broadband network at Kilchreest, County Galway, did not meet the technical criteria for recognition as a Next Generation Access network under the National Broadband Plan.
In a judgment delivered on 14 July 2023, Ms Justice Bolger refused certiorari and related declaratory relief. She held that the challenge was an unacceptable collateral attack on a separate, unchallenged decision refusing approval for the company’s entire network. Alternatively, she said, quashing the Kilchreest decision would be futile because the wider network had already been refused approval. The court did not quash either decision.
The Kilchreest application was a threshold application concerning one of the company’s sites. Lighthouse argued that the Minister’s technical advisers, Analysys Mason, had departed from the published assessment criteria, applied an unannounced 10:1 concurrency ratio and failed to provide a promised site meeting. It also alleged unfair procedures, frustrated legitimate expectations and bias against fixed wireless access technology. The Minister disputed those claims.
The judge found the separate application for the entire network included Kilchreest, despite Lighthouse’s contention that the site had been excluded. That other decision was not challenged and retained its presumption of validity. The judge also said the company had not pleaded a damages claim and had not been given leave to pursue one.
Considering the assessment in the alternative, the judge found that the 2015 criteria applied to existing networks as well as planned ones. They required specified link budget information, including a minimum 98% cell area probability. Lighthouse reported 50% for that measure, and the judge found it had not supplied the required link budget despite repeated requests.
The judge also found that assessing network capacity could include a concurrency ratio under the criteria. She concluded that the applicant had opportunities to provide further information and clarification, but did not establish that the assessment was irrational, unfair or unlawful. The promised site visit had been conditional on receiving information that was not provided, including details needed to assess the applicant’s testing.
The judgment said Analysys Mason considered the technology capable of delivering the required speeds, but the Minister concluded that the site’s network design did not meet the technical criteria. The court refused the application. Its indicative view was that the Minister should receive costs; the matter was listed for 28 July 2023 to address costs and any final orders.