The Court of Appeal has dismissed Killross Properties Ltd.’s appeal over Electricity Supply Board works to upgrade existing 110kV electricity lines, ruling that it could not revisit planning authorities’ determinations that the works were exempt development.
The appeal concerned an application under section 160 of the Planning and Development Act 2000. Killross sought an order restraining what it said was unauthorised development on its lands in the general East Kildare area. The works involved renewing or restringing existing overhead lines to increase their conducting capacity. The voltage remained at 110kV. Some pylons were replaced, but their lower portions and foundations remained; in some cases, pylons were moved to immediately adjacent locations.
Before the section 160 proceedings began, all six works references had resulted in determinations that the development was exempt. The determinations were made by Fingal and Kildare county councils or An Bord Pleanála. Three were challenged in judicial review proceedings heard with the original section 160 application. The High Court rejected those challenges and refused leave to appeal them under section 50. The other three determinations were not challenged, and the time to do so had expired.
Writing the Court of Appeal’s judgment, Mr Justice Gerard Hogan said the determinations therefore had to be presumed valid and unimpeachable. He said a section 160 application could not be used to ask the court to revisit the merits of a section 5 determination or indirectly challenge its validity outside the judicial review procedure.
The court held that where a valid determination classifies works as exempt development, planning permission is not required. The works therefore cannot, by definition, be unauthorised for the purpose of section 160. The High Court had been correct not to grant the order Killross sought.
The Court of Appeal dismissed the appeal and affirmed the High Court decision. It did not grant the requested restraint; its ruling addressed whether the court could go behind the existing exemption determinations in the section 160 proceedings.