The High Court has refused Rossmore Properties Limited and Killross Properties Limited leave to appeal to the Supreme Court in a judicial review concerning An Bord Pleanála and EirGrid plc.
In a judgment delivered on 24 November 2014, Mr Justice Hedigan considered the applicants’ request for a certificate under the Planning and Development Act. Such a certificate requires a point of law of exceptional public importance and a finding that an appeal is desirable in the public interest. The judge said the law must also be uncertain and the point’s importance must extend beyond the individual case.
The applicants proposed four questions. The first concerned the standard courts should apply when reviewing decisions on screening for an appropriate assessment. They argued that the judgment in this case was inconsistent with decisions in Kelly v An Bord Pleanála and Meadows. Justice Hedigan found no inconsistency or uncertainty. He distinguished a Stage One screening decision, which decides whether a fuller assessment is needed, from the more detailed Stage Two assessment considered in Kelly.
The second question asked whether a mere possibility of significant effects was enough to require an appropriate assessment. The judge said the applicable test was likelihood or probability, rather than possibility, and found no uncertainty in the law.
The third concerned whether mitigation measures could be considered at the screening stage. The court had found that the proposed measures were an intrinsic part of the works. Relying on Hart and a Northern Ireland High Court decision, Justice Hedigan said such measures could be considered at Stage One. He also observed that the issue was, in a sense, moot because the work had already been carried out.
The final question concerned whether powers under the Electricity (Supply) Act 1927 had transferred from the ESB to EirGrid, and whether that determined EirGrid’s status as a statutory undertaker for planning exemptions. Justice Hedigan said the legislation made clear that EirGrid was a statutory undertaker and found no public uncertainty on the point.
The court refused certification on all four questions. The order was a refusal of leave to appeal; the judgment did not grant an appeal or certify any question for the Supreme Court.