The High Court has dismissed Lord Ballyedmond’s judicial review challenge to an order granting BGE (UK) Limited rights over his land for a proposed gas pipeline.
In a judgment delivered on 22 June 2006, Mr Justice Clarke rejected claims that the Commission for Energy Regulation had acted irrationally or disproportionately, breached Lord Ballyedmond’s property rights, or denied him fair procedures when it made the acquisition order.
The order, made on 7 December 2005, concerns land in Dungooley, Co Louth, along a proposed pipeline route from Gormanstown in Co Meath to the Northern Ireland border. It allows rights needed to construct the pipeline and provides a permanent wayleave once it is built. The challenge concerned the route across Lord Ballyedmond’s land, not whether the pipeline project as a whole should proceed.
Lord Ballyedmond preferred Route B, which would take the pipeline farther from his house but was longer than the company’s preferred Route A and crossed land owned by other people. A compromise, Route C, was also proposed but was not accepted by Lord Ballyedmond. Following an oral inquiry on 27 and 28 September 2005, an inspector recommended Route A, citing construction difficulties and cost implications associated with Route B.
The judge said the Commission could rely on the materials before it and apply its own expertise in reaching an overall decision. The relevant question was whether the alternative route had demonstrated advantages sufficient to make the acquisition order unreasonable or disproportionate. The Commission could consider that Route B crossed poorly drained land, was 25 per cent longer, and would affect other landowners.
No witness for BGE (UK) Limited gave evidence quantifying the additional construction costs. The judge said the Commission had not relied on figures mentioned by the company’s counsel in closing submissions. He concluded that the evidence about the terrain, engineering difficulties and extra length supported the narrower conclusion that Route B would have significant adverse cost implications; the Commission did not need to assign a precise monetary value.
The judgment also noted that Lord Ballyedmond had been aware before the inquiry that cost could be a factor and could have presented evidence to contest its significance. The court was not satisfied that the inquiry, viewed as a whole, was procedurally unfair.
The judge separately held that the inspector’s report was not open to judicial review because it was one step in the process and had no binding effect or formal consequence. The Commission’s decision was the operative decision. Having found none of the grounds established, the court dismissed the claim.