The High Court has refused an application by North East Pylon Pressure Campaign Limited and Maura Sheehy to certify points of law for an appeal from an earlier judgment concerning approval of the proposed North-South 400kV interconnector.
Mr Justice Max Barrett delivered the ruling on 11 January 2018. The application was made under section 50A(7) of the Planning and Development Act 2000. That provision requires the High Court to find both that its earlier decision involves a point of law of exceptional public importance and that an appeal would be desirable in the public interest.
The earlier judgment, delivered in August 2017, concerned an approval granted by An Bord Pleanála under section 182B of the Act. The applicants put forward 19 proposed points of law for certification. They addressed matters including designation of An Bord Pleanála as a competent authority under an EU regulation, access routes, environmental assessment, landowner interests, alternatives to the project, standing and delay.
The judge said certification is limited to legal issues that arise from the earlier judgment. They must be precisely framed, involve uncertainty in the law, transcend the specific facts and have practical consequences for the case. He found that the proposed points did not satisfy those requirements. Some were new issues that had not been argued in the original proceedings; others rested on factual assumptions contrary to findings in the earlier judgment or raised matters that would not affect its outcome.
On the proposed points about the project’s access routes, the judge said the earlier judgment had found that An Bord Pleanála considered the routes and carried out an environmental impact assessment. He also said some arguments about delegation and conditions had not been advanced at the original hearing. The court’s comments on “de facto” designation were obiter, and the related proposed appeal points were moot after certification was refused on designation.
The judge also refused certification under the separate public-interest limb. He considered an affidavit from EirGrid’s director, which described expected benefits including improved security of electricity supply and estimated annual market benefits of €20 million in 2020, rising to between €40 million and €60 million by 2030. The judge concluded that the public interest described in that affidavit outweighed the claimed public interest in an appeal. He acknowledged the impact of the project on affected landowners, while noting that opposition to a project alone did not establish a public-interest basis for an appeal.
The application failed. The court did not grant a certificate for an appeal; the judgment does not determine any further appeal.