High Court dismisses applicants' claims for injunctions against pylons, ruling they lack standing as non-landowners.

[2017] IEHC 338

THE HIGH COURT

2017 No. 151JR

IN THE MATTER OF AN APPLICATION PURSUANT TO THE PLANNING AND DEVELOPMENT ACT 2000

– and –

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000

– and –

IN THE MATTER OF AN APPROVAL GRANTED UNDER SECTION 182B OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS

AMENDED)

BETWEEN:

NORTH EAST PYLON PRESSURE CAMPAIGN LIMITED

First-Named Applicant

– and –

MAURA SHEEHY

Second-Named Applicant

– and –

AN BORD PLEANÁLA

First-Named Respondent

– and –

THE MINISTER FOR COMMUNICATIONS, CLIMATE ACTION AND ENVIRONMENT

Second-Named Respondent

– and –

IRELAND AND THE ATTORNEY GENERAL

Third and Fourth-Named Respondents

– and –

EIRGRID PLC

Notice Party

JUDGMENT of Mr Justice Max Barrett delivered on 22nd August, 2017.

TABLE OF CONTENTS

(Numbers in square brackets are paragraph numbers).

I. Introduction [1]

II. Reliefs Sought [2]

III Some General Points Arising [3]

IV. Consent [4]

(i) Critical Issue Arising. [4]

(ii) Legislative Requirements. [5]

(iii) Frescati, et al. [9]

a. Overview. [9]

b. The decision in Frescati. [10]

c. Section 53 and Gormley. [16]

d. The Form and the Letter. [20]

A. Overview. [20]

B. The Form. [21]

C. The Letter. [25]

V. Entitlement to Make Application? [29]

(i) Critical Issue Arising. [29]

(ii) The Act of 1999 and the Regulations of 2000. [30]

(iii) A Consideration of Certain of the Affidavit Evidence. [32]

(iv) The Infrastructure Agreement. [35]

(v) Some Conclusions. [36]

(vi) The East-West Interconnector. [38]

(vii) Section 53 of the Act of 1927. [43]

a. Overview. [43]

b. The decision in Killross. [44]

(viii) Some Further Conclusions. [48]

VI. Designation, Bias, and Validity of Decision [49]

(i) Overview. [49]

(ii) The Question of Designation. [51]

a. The PCI Regulation. [51]

b. The European Union Law Dimension. [52]

(iii) Some Particular Aspects of the Case at Hand. [59]

VII. Bias [82]

VIII. What if the Court is wrong? [88]

(i) Overview. [88]

(ii) Issuance of Consent pursuant to s.182B. [89]

(iii) De Facto Designation. [91]

IX. Delay [95]

X. ‘Brexit’ [98]

(i) Concerns Raised by Applicants. [98]

(ii) Uncertainty as to the Future. [100]

(iii) Listing of Project. [104]

1. The PCI Regulation. [104]

2. The 2015 Regulation. [106]

(iv) Some Conclusions. [109]

XI. Error on the Face of the Record [111]

XII. The Inspector’s Report [113]

XIII. Access [115]

(i) Overview. [115]

(ii) The Substance of the Inspector’s Report. [124]

(iii) Question as to Consideration of Access. [141]

(iv) Complaints about information provided. [144]

(v) The Agricultural Liaison Officer/s. [151]

(vi) Boland et al.[153]

(vii) Some Further Observations as to Access. [161]

XIV. Alternatives [168]

(i) Overview. [168]

(ii) The Consideration of Alternatives Undertaken. [169]

a. Route Alternatives. [169]

b. Consideration of Technology, including Undergrounding. [176]

c. Cost-Benefit Analysis. [182]

(iii) Some Legal Issues Presenting. [183]

XV. Health Impacts [185]

(i) Electric and electro-magnetic fields. [185]

(ii) Childhood leukaemia. [187]

(iii) Other cancers. [188]

(iv) Non-cancerous diseases. [189]

(v) Children with Autism. [190]

(vi) Compliance with the ICNIRP Guidelines. [191]

XVI. The Whooper Swan [195]

XVII. Closing Submissions [198]

(i) Section 182B(10)(f). [199]

(ii) Ordinary and legal intent. [201]

(iii) ‘Brexit’ as an issue of need. [202]

(iv) Vires. [203]

(v) Which Routes Were Approved? (The ‘Yellow and Purple’ Issue) [206]

XVIII. Jus Tertii [219]

XIX. Closing [220]

I. Introduction

1. These proceedings concern a challenge to the decision of An Bord Pleanála on 19th December last to grant planning approval to

EirGrid under s.182B of the Planning and Development Act 2000 for the proposed North-South 400kV Interconnector development

located in counties Monaghan, Cavan and Meath. The overall North-South Interconnector project comprises a 400kV overhead line

circuit that is approximately 138km long, inclusive of approximately 34km in the North, linking an existing 400kV substation in

Woodland, County Meath with a planned substation in Turleenan, County Tyrone. If it proceeds, the North-South Interconnector

project will provide a second high-capacity all-Ireland electricity interconnector. (The existing interconnector, a 275kV double circuit

overhead line (such lines being sometimes referred to in the documentation before the court as ‘OHLs’) connects existing substations

in counties Louth and Armagh).

II. Reliefs Sought

2. The principal reliefs sought by the applicants in their application are as follows:

(1) an order of certiorari quashing the decision of An Bord Pleanála, on 18th December, 2016, to grant approval under

s.182A(1) of the Planning and Development Act 2000 for an interconnector of 138km length (inclusive of 34km located in

Northern Ireland which will link the existing electricity network of Northern Ireland between Turleenan in County Tyrone

and Woodland (near Batterstown) County Meath, which interconnector has been designated as a project of common

interest (PCI) pursuant to the provisions of Regulation (EU) No. 347/2013 of the European Parliament and of the Council of

17th April, 2013, on guidelines for trans-European energy infrastructure (O.J. L115/39, 25.4.2013) (the ‘PCI Regulation’),

and in particular a new single circuit 400kV overhead transmission line between Crossbane, County Armagh and Lengare,

County Monaghan to the townland of Bogganstown, County Meath, which transmission line crosses the jurisdictional

border between Ireland and the United Kingdom in the townlands of Lengare, County Monaghan and Crossbane, County

Armagh and comprises 299 new lattice steel support structures ranging in height from 26 to 51 metres above ground and

associated conductor, insulators and other apparatus, which determination was approved pursuant to s.182B of the Act

of 2000; (notwithstanding the applicants’ contention to the contrary the impugned decision of An Bord Pleanála, as per

the court’s analysis later below, extends solely to the portion of the North-South Interconnector that sits south of the

border between this State and Northern Ireland);

(2) a declaration that in making its decision of 19th December, 2016, An Bord Pleanála failed to have regard (and/or

sufficient regard) to the designation (pursuant to Commission Delegated Regulation (EU) 2016/89 of 18 November 2015

amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects

of common interest (O.J. L19, 27.1.2016, 1) (the ‘2015 Regulation’)) of the proposed development as a Cluster-Ireland-

United Kingdom interconnection, including one or more of the following PCIs: Ireland-United Kingdom interconnection

between Woodland (IE) and Turleenan (UK) and Ireland-United Kingdom interconnection between Srananagh (IE) and

Turleenan (UK);

(3) an order of certiorari quashing the “purported” decision of An Bord Pleanála of 19th December, 2016, granting

approval under s.182B of the Act of 2000 for the proposed development of a 400kV electricity transmission interconnector

linking the electricity transmission networks in Ireland and Northern Ireland;

(4) a declaration that the “purported” decision of An Bord Pleanála of 19th December, 2016, is contrary to and in breach

of Council Directive 2011/92/EU of the European Parliament and of the Council of 13th December, 2011, on the

assessment of the effects of certain public and private projects on the environment (O.J. L26, 28.1.2012, 1), as amended

(the ‘EIA Directive’);

(5) a declaration that An Bord Pleanála failed properly to consider and/or comply with the EIA Directive and failed to carry

out an EIA, failed to ensure that the documentation lodged complied with the obligations under the said directive and

failed to ensure appropriate public participation and/or failed to consider and/or apply any or any appropriate mitigation

measures in respect of the EIA process;

(6) a declaration that the “purported” decision of An Bord Pleanála of 19th December, 2016 is contrary to and in breach

of Council Directive 92 /43 /EEC of 21 May, 1992, on the conservation of natural habitats and of wild fauna and flora (O.J.

L206, 22.7.1992, 7) (the ‘Habitats Directive’);

(7) a declaration that the “purported” decision of An Bord Pleanála of 19th December, 2016, infringes and/or violates the

applicants’ rights pursuant to Arts. 40.3, 43 and 40.5 of the Constitution;

(8) a declaration that the said “purported” decision is contrary to Art. 6, Art. 8 and Protocol 1 of the European

Convention on Human Rights as given effect by the European Concvention on Human Rights Act 2003;

(9) an order of certiorari quashing the decision of An Bord Pleanála of 19th December, 2016, as a “purported” competent

authority under the PCI Regulation and/or the 2015 Regulation to grant the approval aforesaid;

(10) a declaration that An Bord Pleanála was not lawfully designated as a competent authority (as described in the PCI

Regulation) in the “purported” decision of An Bord Pleanála of 19th December, 2016;

(11) a declaration that the decision of An Bord Pleanála of 19th December, 2016, is null and void (and/or voidable) as An

Bord Pleanála was not, it is claimed by the applicants, lawfully designated as a competent authority as described in the

PCI Regulation (and/or the 2015 Regulation);

(12) a declaration that the decision of An Bord Pleanála of 19th December, 2016, contains an error of law on the face of

the record of the decision, as An Bord Pleanála was not, it is claimed by the applicants, lawfully designated as a

competent authority as described in the PCI Regulation (and/or the 2015 Regulation);

(13) in the alternative, a declaration that the decision of An Bord Pleanála of 19th December, 2016, is ultra vires as An

Bord Pleanála, it is claimed by the applicants, was not lawfully designated as a competent authority as described in the

PCI Regulation and/or the 2015 Regulation;

(14) a declaration that the decision of An Bord Pleanála of 19th December, 2016, is ultra vires, in that there was no

lawful basis for An Bord Pleanála to exercise decision-making powers in relation to a permit-granting procedure for PCIs

and/or clusters of PCI;

(15) a declaration that the decision of 19th December, 2016, whereby An Bord Pleanála stated that it confined its

decision to the matters pertinent to the Strategic Infrastructure Development (‘SID’) application and in particular issues

arising in respect of appropriate assessment, environmental impact assessment and the consideration of the proper

planning and sustainable development and did not consider that it was conflicted in any way by the separate

administrative role fulfilled by An Bord Pleanála as the competent authority for PCIs constitutes an error of law on the

face of the record; and

(16) an order of certiorari quashing the entirety of the decision of An Bord Pleanála considered, dealt with and/or

determined the application in its decision of 19th December, 2016, gives rise to a reasonable apprehension of bias.

III Some General Points Arising

3. Before proceeding further, the court pauses to make some general remarks:

(1) the burden of proof to establish the grounds on which judicial review is sought rests on the applicants. (See, inter

alia, Harrington v. An Bord Pleanála [2014] IEHC 232).

(2) the decision of An Bord Pleanála enjoys a presumption of validity. (See, inter alia, Ratheniska Timahoe and Spink (RTS)

Substation Action Group & anor v. An Bord Pleanála [2015] IEHC 18).

(3) the applicable standard of review, in particular relating to the decision of An Bord Pleanála, for the purposes of the EIA

Directive and in relation to the Appropriate Assessment is that identified in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.

(4) it is a significant feature of the case as pleaded that no leave has been granted to challenge the accuracy of any

matter in the inspector's report.

(5) although the applicants have put affidavit evidence before the court that addresses matters of visual impact, health

and property values, no leave has been granted to raise any challenge in relation to those matters save in respect of two

identified landowners.

(6) the effect of the permission is not to grant any interest in property, nor indeed to authorise anything other than the

development, the subject of the of the application. Although, as counsel for the applicants noted, “permission is an

appendage to the title to…property” (per Henchy J. in Readymix Éire Ltd v. Dublin County Council (Unreported, Supreme

Court, 30th July, 1974), 6) that observation was made in the context of a decision that the terms of the permission had

to be clearly ascertainable and identifiable and nothing more.

(7) although the amount of material before the court was extensive, the court cannot but note the vastness of the

enterprise that has preceded the within application. Thus (i) the oral hearings in this case were preceded by an extremely

detailed environmental impact statement that extended over five volumes and comprised some 14,000 pages of text and

maps; (ii) some 903 sets of submissions from members of the public were responded to by detailed submissions or replying

submissions from EirGrid; (iii) those (entirely proper) public submissions, as one would instinctively expect, presented a

wide range of issues from matters affecting the particular situations of particular landowners to very general issues; (iv)

there were 35 days of oral hearing over a period of eleven weeks, with some 204 people addressing the inspector; and (v)

the inspector’s report features over 600 pages of analysis.

IV. Consent

(i) Critical Issue Arising.

4. So far as the issue of consent is concerned, the critical issue arising is whether there is any rule (a) in legislation, (b) at common

law, or (c) pursuant to the Constitution or the European Convention on Human Rights which mandates that EirGrid can only seek

approval pursuant to s.182A of the Act of 2000 with the consent of the owners of an affected property?

(ii) Legislative Requirements.

5. Section 182A of the Act of 2000 provides, inter alia, as follows:

“(1) Where a person (hereafter referred to in this section as the ‘undertaker’) intends to cary out development

comprising or for the purposes of electricity transmission, (hereafter referred to in this section and section 182B as

‘proposed development’), the undertaker shall prepare, or cause to be prepared, an application for approval of the

development under section 182B and shall apply to the Board for such approval accordingly.

(2) In the case of development referred to in subsection (1) which belongs to a class of development identified for the

purposes of section 176, the undertaker shall prepare, or cause to be prepared, an environmental impact statement or

Natura impact statement or both of those statements, as the case may be, in respect of the development.

(3) The proposed development shall not be carried out unless the Board has approved it with or without modifications….”

[Emphasis added].

6. By way of initial observation, it is perhaps notable that the requirement to prepare an application for approval (or to cause same to

be prepared) rests on the person who intends to carry out a development within the meaning of s.182A.

7. As to what constitutes “transmission”, this is defined in s.182A(9) by reference to the Electricity Regulation Act 1999 and reflects

the division of function which is provided for under the regulations envisioned in that earlier legislation. Per s.182A(9):

“In this section ‘transmission’, in relation to electricity, shall be construed in accordance with section 2(1) of the

Electricity Regulation Act 1999 but, for the purposes of this section, the foregoing expression in relation to electricity,

shall also be construed as meaning the transport of electricity by means of –

(a) a high voltage line where the voltage would be 110 kilovolts or more, or

(b) an interconnector, whether ownership of the interconnector will be vested in the undertaker or not.” [Emphasis

added].

8. A number of points might usefully be made at this juncture:

(1) the above-quoted provisions make no reference to, nor are they obviously or necessarily consistent with a

requirement of landowner consent as an element of a successful development consent application.

(2) in contrast to applications made under s.34 of the Act of 2000, there is no provision in the regulations governing

applications of the kind now in issue that demonstrates any intention that consent from owners of property affected by

development is required for the purposes of such an application.

(3) on a more general note, if one steps back for a moment from the detail of the legislative provisions in issue, it is

unsurprising that there would be a want of provision making landowner consent a pre-requisite to, or a necessary

component of, a successful development consent application. There are a range of applications that can be brought

under the legislation involving public utility works which would conceivably involve development on the lands of many

different persons. (Another example of such an application is an application under s.182C of the Act of 2000 which is

concerned with strategic gas infrastructure developments.) Were the consent of all of those persons to be a mandatory

element of such applications, the applicable application process would quickly become unworkable. Thus, regrettably but

almost certainly necessarily, and not without regard for individual rights, but concomitant with that concern for the

overall public good which central government invariably and properly brings to the formulation of national policy and

legislation, individual landowner consent is neither a pre-requisite to, nor a necessary component of, a successful

development consent application, whether by virtue of primary or secondary legislation.

(iii) Frescati, et al.

a. Overview.

9. To sustain the contention that the court should interpolate into the applicable legislation a requirement for landowner consent,

counsel for the applicants has sought (a) to rely upon the decision of the Supreme Court in Frescati Estates v. Walker [1975] I.R.

177, and (b) to deduce from An Bord Pleanála’s standard application form and a letter written by ESB in the course of the events

under consideration, an implied obligation to obtain landowner consent even in the context of an application made under s.182A. Both

propositions, the court respectfully concludes, are without foundation.

b. The decision in Frescati.

10. Frescati House is one of the lost gems of 18th-century Irish architecture, allowed by an earlier generation to fall into decay and

eventual ruin despite its architectural merit and, as importantly (perhaps even more importantly), its historical significance as the

onetime favourite residence of Lord Edward Fitzgerald, the prominent United Irishman. In the case that went before the Supreme

Court in Frescati Estates v. Walker, the plaintiffs were the owners of the house and surviving demesne. They proposed to demolish it

and to build in its place a shopping centre wanting in aesthetic merit. Ms. Walker, the defendant, was an activist concerned about

the demolition of the house. Despite having no estate or interest in the plaintiff’s property, she applied for planning permission that

would have required the retention of the house had it been granted. The Supreme Court decided that in those circumstances Ms

Walker’s application for permission was not a valid application on the basis that although the Local Government (Planning and

Development) Act 1963 did not require Ms Walker to have an estate or interest in the property described in her application, it did

require that her application should have the imprimatur of the owner of an estate in the property sufficient to enable such applicant

to carry out the proposed development. Per Henchy J., at 185-187:

“Not alone has the defendant no legal estate or interest in it but the trial judge found as a fact that "she has no

intention or hope of acquiring any estate of any kind in the property or of developing it."

…

The sweep of the argument of counsel for the defendant, however, carries with it the further submission that because

no limiting qualifications are laid down by the relevant sections for an applicant, anyone can be an applicant for

development permission. An applicant may not be debarred, the argument runs, not alone because he has no legal

estate or interest in the property but also irrespective of the genuineness or otherwise of the proposed development, or

whether the applicant is acting in good faith or not, or whether those with a legal estate or interest know or approve of

the application, or whether other (and possibly conflicting) applications have been made or are pending. There is nothing

in the Act, it is said in effect, to debar a pauper from making an application for permission for a multi-million pound

development of a property which he has only read about in a newspaper.

…

That the proposition that virtually anyone may apply for permission to develop a particular property could lead to

strange incongruities was shown by instances raised in the course of the argument. However, it is a matter of principle

that a statute - particularly a statute like the present one which makes substantial inroads on pre-existing rights -

should not be construed as intending to confer unqualified and indiscriminate rights on people generally in respect of

another's property such as the right to avail themselves of the legal processes of a planning application so as to gratify

what may be merely an idle or perverse whim. The long title of this Act proclaims its purpose to be ‘…to make provision

in the interests of the common good, for the proper planning and development of cities, towns and other areas…’ The

powers given by the Act must be read as being exercisable in the interests of the common good and the Courts should

lean against a construction which would make the exercise of such powers available to an individual for the purpose of

advancing a purely personal motive at the expense of the general purpose of the Act.

Apart from the irreconcilability with the general principle of the proposition put forward on behalf of the defendant, a

number of specific provisions of the Act clearly show its unsoundness. For the sake of brevity I shall confine myself to a

selection of those provisions for the purpose of showing that the operation of the Act requires that an applicant for

permission must have a particular degree of standing….”

11. A couple of points might be made in connection with the above-quoted text:

(1) the “Not alone…developing it” element of same provides a significant and obvious point of distinction between the

circumstances that pertained in Frescati and the type of situation with which the court is now concerned, where a

legislative provision (s.182A) is directly engaged by an application by a party (EirGrid) which intends to carry out the

relevant development.

(2) the “That the proposition…perverse whim” element of same is also significant. In this segment of his judgment

Henchy J. formulates and/or applies a common law rule of statutory construction as to how statute-law falls properly to

be construed – and unsurprisingly elects to construe the applicable statute as a whole, and to have the effect that it

does not permit an application by a party who is gratifying an idle or perverse whim or seeking an unqualified and

indiscriminate right over somebody else’s property. The court cannot but note in passing that that is a long way from the

facts of the within proceedings where the court is confronted with a body (EirGrid) that is designated by statute with

particular purposes concerning the operation of the State’s electricity transmission system and seeking development

consent under a self-contained legislative code designed for that end.

12. Henchy J. moves on in his judgment to consider a selection of provisions from the Act of 1963 that he believes to show that the

operation of that Act (and the judgment has equal applicability in the context of current planning legislation) requires that an

applicant for planning permission have a particular degree of standing. Per Henchy J., at 188-190:

“Section 25, sub-s. 1, of the Act of 1963 requires the Minister to make permission regulations and enacts that

permission shall be granted on application being made in accordance with the regulations and subject to the

requirements of the regulations. Sub-section 2 of that section proceeds to set out what the regulations may require

from applicants. The regulations may require any applicants ‘to furnish to the Minister and to any other specified

persons any specified information with respect to their applications’ (para. c) and ‘to submit any further information

relative to their applications (including any information as to any estate or interest in or right over land)’ and ‘the

production of any evidence to verify any particulars of information given by any applicants’ – see paras. (d) and (e).

Since applications cannot be successful unless they comply with the requirements of the regulations (s. 25, sub-s. 1),

the legislature must be credited with the intention of delineating the range of eligible applicants by the extent of the

permitted requirements. Thus, a total stranger to the property, who has no liaison with those interested in it, could

scarcely have been envisaged as a successful applicant, for normally he could not furnish the specified information

(including any estate or interest in or right over the land) or produce evidence to verify particulars given as to such

information.

Furthermore. when we turn to s. 9, sub-s. 1, of the Act of 1963 we find that a planning authority may, for any purpose

arising in relation to their functions under the Act, require the occupier or the person receiving the rent to state in

writing within a specified period particulars of the estate, interest or right by virtue of which he is an occupier or

receives the rent and the name and address (so far as they are known to him) of every person who to his knowledge

has any estate or interest in or right over or in respect of the property. Sub-section 2 of that section makes it an

offence punishable on summary conviction with a fine not exceeding £20 for a person from whom such information is

required to fail to state it within the time specified, or to make a statement in writing which is to his knowledge false or

misleading in a material respect.

The effect of s. 9 is that when an application for permission to develop is made, the planning authority, in order to carry

out their functions under the Act, may find it necessary to serve on the occupier or the person receiving the rent the

notice referred to in sub-s. 1 of the section; if the person so served does not comply with the notice in the way

specified in sub-s. 2, he will become liable to the sanction of the criminal law. If, as counsel for the defendant contends,

applications for development permission may be made in multiplicity and indiscriminately by persons at large, obligations

would be cast on occupiers of or persons receiving rent out of property and failure to comply with those obligations

would subject such people to a fine with a liability to imprisonment in default of payment. The fundamental rule that a

statute must be construed so as to keep its operation within the ambit of the broad purpose of the Act rules out such

an interpretation; otherwise it would be possible for persons, by means of frivolous or perverse applications, to cause

the imposition of duties and liabilities which would be wholly unnecessary for the operation of the Act in the interests of

the common good.

Section 83 of the Act of 1963 provides an equally cogent reason why the Act does not envisage persons unconnected

with any real interest in property or its development being allowed to apply for development permission. That section

provides that an authorised person (i.e. , a person so authorised for the purposes of the section by the planning

authority or the Minister) may enter, subject to an order of the District Court prohibiting or restricting the entry, on any

land for any purpose connected with the Act and may do all things reasonably necessary for the purpose for which the

entry is made and, in particular, may survey, make plans, take levels, make excavations, and examine the depth and

nature of the subsoil. If the Act had to be read as allowing that degree of intrusion at the behest of any individual who

chooses to make a development application in respect of another person's property, the constitutionality of the statute

would be very much in question.

The inequities and anomalies that would follow if there is to be an unrestricted right to apply for permission to develop

another person's property is shown by the terms of many provisions of the Act. For example, since the planning

authority must investigate and deal with each application with sufficient care to ensure that their decision will have due

regard to the development plan required by Part III of the Act, a group of people making multiple applications in respect

of properties in which they have no legal interest, and which they have no intention or hope of developing, could put

such a strain on the resources of the planning authority as to stifle the operation of the Act in delay and confusion.

Since s. 41 requires particulars of all applications for development permission to be entered on the register (which s. 8

requires the planning authority to keep), and since s. 28, sub-s. 5, provides that a grant of permission will normally inure

for the benefit of the property and all persons interested in it, the register (which incorporates documents by reference)

would become encumbered with bulk and detail if applications without restriction were allowed, and consequently might

prove confusing or misleading for those who would be required to consult it.If there need never be a connexion between

the applicant and those who have a legal estate or interest in the property, the period for appealing against the decision

of the planning authority would be, for the applicant, one month from the receipt of the decision, but for others (who, if

the argument on behalf of the defendant is correct, could include those with a legal estate or interest) it would be 21

days from the day of the giving of the decision (s. 28, sub-s. 5) – thus giving preferential treatment to someone who

may be merely a meddlesome interloper. It is no answer to this complaint to say that a grant or refusal of an

application for development permission cannot prejudice a subsequent application. As I have shown, the mere making of

an application by a person with no legal interest can operate to the detriment of the owner or occupier. And in any

case, I find nothing in the scheme of the Act that would allow interfering, if well-intentioned, outsiders to intrude into the

rights of those with a legal interest to the extent of lumbering the property with unwanted grants or refusals of

permission, thus cluttering the title.

To sum up, while the intention of the Act is that persons with no legal interest (such as would-be purchasers) may apply

for development permission, the operation of the Act within the scope of its objects and the limits of constitutional

requirements would be exceeded if the word ‘applicant’ in the relevant sections is not given a restricted connotation.

The extent of that restriction must be determined by the need to avoid unnecessary or vexatious applications, with

consequent intrusions into property rights and demands on the statutory functions of planning authorities beyond what

could reasonably be said to be required, in the interests of the common good, for proper planning and development.

Applying that criterion, I consider that an application for development permission, to be valid, must be made either by or

with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the

proposed development, or so much of the proposed development as relates to the property in question. There will thus

be sufficient privity between the applicant (if he is not a person entitled) and the person entitled to enable the applicant

to be treated, for practical purposes, as a person entitled.

As for the present case, the defendant's application was invalid and should not have been entertained for she had no

legal estate or interest in the property and her application was made without the knowledge or approval of the plaintiffs

who, as the owners of the fee simple, are the only persons who would be legally competent to carry out the

development for which the defendant sought permission.”

13. Perhaps five points might usefully be made in connection with the just-quoted text:

(1) Henchy J.’s observations concerning s.25(2) of the Act of 1963 are of no relevance in the context of the within

application because, as mentioned previously above, the regulations applicable to the form of application now in issue do

not require the provision of such information as falls to be provided in applications under s.34 of the Act of 2000. That

this is so inclines the court to the conclusion that s.182A, properly construed, does not envision, let alone require, that

landowner consent be provided as a pre-requisite to, or a necessary element of a successful development consent

application.

(2) Henchy J.’s observations regarding s.9 of the Act of 1963 (a provision reflected but not repeated in s.8 of the Act of

2000) are not of relevance to the within application because the application in issue does not even begin to approach, let

alone occupy the realm of frivolity and/or perversity.

(3) Henchy J.’s observations concerning s.83 of the Act of 1963 (as reflected in s.252 of the Act of 2000) are not of

relevance in the context of the within application for much the same reason as was just touched upon in the last point,

being that the court is not concerned here with an application that is made by, to borrow a colloquialism ‘any old person’

but rather by an entity that is an ‘undertaking’ both within the meaning of s.182A of the Act of 2000 and for the purposes

provided for in that legislation.

(4) as to Henchy J.’s points concerning “[t]he inequities and anomalies that would follow if there is to be an unrestricted

right to apply for permission to develop another person’s property…”, again his reasoning is not of relevance in the

context of the circumstances now presenting, where the court is confronted with an entity that is an ‘undertaking’ within

the meaning of s.182A and for the purposes provided for in that legislation. Here the court is not dealing with an entity

that, to use the terminology of Henchy J., though the court suspects that even in his day it was the terminology of a

bygone era, can properly be described as a “meddlesome interloper”.

(5) as to Henchy J.’s summation of his analysis and, in particular, his observation that “while the intention of the Act is

that persons with no legal interest (such as would-be purchasers) may apply for development permission, the operation

of the Act within the scope of its objects and the limits of constitutional requirements would be exceeded if the word

‘applicant’ in the relevant sections is not to be given a restricted connotation”, the court would merely observe that

when it comes to s.182A one is dealing necessarily and solely with a restricted class of would-be applicant.

14. By way of overall observation, it can be seen from the preceding analysis that Frescati is a case the rationale of which is

applicable to applications for permission of the kind now reflected in s.34 of the Act of 2000; it has no application to s.182A for at

least three reasons:

(1) the regulations applicable to permission granted under s.34 of the Act of 2000 specifically require information as to

interest or estate in land; by contrast, the regulations applicable to s.182A do not (a point that is returned to again later

below).

(2) the legislation governing what might be styled applications for planning permission (as opposed to s.182A approval)

was found by the Supreme Court in Frescati to be inconsistent with a scenario in which persons not having a legal

interest in lands could be allowed make an application. By contrast, the legislation which governs the application made by

EirGrid is consistent (and consistent only) with EirGrid being entitled to bring an application of the form that it has

brought, and not requiring the consent or agreement of any other party so to do.

(3) none of the reasoning of the Supreme Court in Frescati, insofar as it is directed towards intermeddlers applies in the

context of a statutory body empowered to undertake public utility works of a very specific kind such as those in issue

here.

15. The court respectfully considers that the foregoing analysis suffices to deal with the consent issue raised by the applicants: there

is no consent requirement in applicable legislation (it would perhaps be surprising if there were); and the decision in Frescati, pointed

to by the applicants as a source of such a requirement, has no application to the construction of the provisions with which the court

is now concerned. The court does not consider that it is necessary to address in detail the decision of the Supreme Court in Keane v.

An Bord Pleanála [1998] 2 I.L.R.M. 241, beyond noting that nothing therein detracts from the court’s uncontroversial reading and

application, in the foregoing pages, of the decision of the Supreme Court in Frescati.

c. Section 53 and Gormley.

16. Section 53 of the Electricity Supply Act 1927, as amended by the Electricity (Supply) (Amendment) Act 1945 – it has been

amended again since – provided, inter alia, as follows in respect of wayleaves:

“(1). The Board and also any authorised undertaker may, subject to the provisions of this section, and of regulations

made by the Board under this Act place any electric line above or below ground across any land not being a street,

road, railway, or tramway….

(3). Before placing an electric line across any land or attaching any fixture to any building under this section the Board

or the authorised undertaker (as the case may be) shall serve on the owner and on the occupier of such land or building

a notice in writing stating its or his intention so to place the line or attach the fixture (as the case may be) and giving a

description of the nature of the line or fixture and of the position and manner in which it is intended to be placed or

attached….

(4). If within seven days after the service of such notice the owner and the occupier of such land or building give their

consent to the placing of such line or the attaching of such fixture (as the case may be) in accordance with such notice

either unconditionally or with conditions acceptable to the Board, or to the authorised undertaker and approved by the

Board (as the case may require), the Board or the authorised undertaker may proceed to place such line across such

land or to attach such fixture to such building in the position and manner stated in such notice.

(5). If the owner or occupier of such land or building fails within the seven days aforesaid to give his consent in

accordance with the foregoing sub-section the Board or the authorised undertaker with the consent of the Board but not

otherwise may place such line across such land or attach such fixture to such building in the position and manner stated

in the said notice….

(9). Where the Board or an authorised undertaker is authorised by or under this section to place or retain any electric

line across any land or to attach or retain any fixture on any building the Board or such authorised undertaker (as the

case may be) may at any time enter on such land or building for the purpose of placing, repairing, or altering such line

or such fixture or any line or apparatus supported by such fixture.”

17. In Electricity Supply Board v. Gormley [1985] I.R. 129, Mrs. Gormley had acquired property after ESB obtained planning permission

for development comprising the development of a transmission system which crossed her land. Wayleave notices were served under

section 53 as it then stood. Mrs Gormley raised a number of objections to what was to be done by ESB, one of which was that the

applicable legislation was unconstitutional because it did not provide any mechanism for the payment of compensation for what was in

effect the imposition of a wayleave on her property. She failed in this contention in the High Court but she succeeded on appeal to

the Supreme Court, that court deciding that the planning permission in issue was invalid consequent upon the absence of any facility

for compensation. As mentioned in the above-mentioned report of the judgment, at 158, as a consequence of the decision of the

Supreme Court, the Oireachtas subsequently enacted the Electricity Supply (Amendment) Act 1985 which substituted a new s.53(5)

into the Act of 1927, which new provision provided as follows:

“(5). If the owner or occupier of such land or building fails within the seven days aforesaid to give his consent in

accordance with the foregoing subsection, the Board or the authorised undertaker with the consent of the Board but not

otherwise may place such line across such land or attach such fixture to such building in the position and manner stated

in the said notice, subject to the entitlement of such owner or occupier to be paid compensation in respect of the

exercise by the Board or authorised undertaker of the powers conferred by this subsection and of the powers conferred

by subsection (9) of this section, such compensation to be assessed in default of agreement under the provisions of the

Acquisition of Land (Assessment of Compensation) Act, 1919, the Board for this purpose being deemed to be a public

authority.”

18. Although Gormley is a renowned decision in terms of the conclusions arrived at by the Supreme Court as to the entitlement to

compensation, its particular significance in the context of the within application is that, in the High Court, Mrs Gormley raised an issue

by reference to Frescati, being that although she had acquired the property after the ESB obtained planning permission for the

development, nonetheless the ESB did not have her consent to the development. Dealing with this aspect of matters, at 141, Carroll

J. observes as follows:

“I am satisfied that the ESB had sufficient interest to support their application for planning permission. In Frescati

Estates v. Walker [1975] I.R. 177 Henchy J. said the word ‘applicant’ must be given a restricted connotation and the

extent of that restriction must be determined by the need to avoid unnecessary and frivolous applications for planning

permission. The test which Mr. Justice Henchy laid down in that context at p. 190 of the report was that in order to be

valid an application must be made:-‘either by or with the approval of a person who is able to assert sufficient legal

estate or interest to enable him to carry out the proposed development, or so much of the proposed development as

relates to the property in question. There will thus be sufficient privity between the applicant (if he is not a person

entitled) and the person entitled to enable the applicant to be treated, for practical purposes, as a person entitled.’

When this is applied to the present case, the ESB had sufficient interest given by statute to enable it to carry out the

proposed development on the property in question. It is also obvious that the application was neither frivolous nor

unnecessary. Therefore the ESB falls within the restricted meaning of the word ‘applicant’ as set out in that judgment.”

19. The reasoning of Carroll J. in the above-quoted text applies with equal vigour to the within proceedings. Yes, there are

differences between that case and this because (i) in Gormley, ESB was carrying out the development and was the party which

sought planning permission, whereas (ii) (and in truth this is just the ‘flip-side’ of (i)) the impugned application in the within

proceedings has been brought by EirGrid and the only body with powers under s.53 of the Act of 1927 is the ESB. However, to focus

on those differences is, to borrow a colloquialism, ‘to miss the wood for the trees’. The critical points to note are that (a) EirGrid is in

a position whereby it can procure ESB to do the works and ESB is in a position where it can exercise the powers, and (b) s.53 is

directed to and concerned with the intent of the undertaker – and the undisputed evidence before the court (and the planning

inspector) is (was) that EirGrid intends to carry out the development, it intends to do so with ESB constructing the development, and

ESB has the requisite powers, insofar as the need arises, to allow that development to be done where there is no landowner consent.

So while it is certainly the case that there is a difference, and an obvious one, between ESB as repository of the statutory power and

EirGrid as applicant, it is a distinction without a difference.

d. The Form and the Letter.

A. Overview.

20. If applicable legislation does not require landowner consent (and here it does not) and if Frescati is inapplicable (and for the

reasons identified previously above it is inapplicable), on what legal basis can the applicants construct a requirement that landowner

consent be obtained by EirGrid? Perhaps surprisingly, the applicants have pointed in this regard, inter alia, to (a) An Bord Pleanála’s

standard ‘Application Form for Permission/Approval in respect of a Strategic Infrastructure Development’ and (b) a letter of 14th May,

2015, from the ESB to An Bord Pleanála.

B. The Form.

21. As to An Bord Pleanála’s ‘Application Form for Permission/Approval in respect of a Strategic Infrastructure Development’ there is:

(i) no such form prescribed by law; (ii) for the reasons stated previously above, no requirement that a person making application

under s.182A of the Act of 2000 obtain landowner consent; and (iii) no way that the said form could change this legal position – in

and of itself the form is something of a legal nothing. Be that as it may, the applicants have pointed to Box 7 of the said form as

support of their argument as to the need for landowner consent. The detail of that box, as completed, is replicated below:

“7. Legal Interest of Applicant in respect of the site the subject of the application:

Please tick appropriate Owner Occupier

box to show applicant’s

legal interest in the

land or structure:

Other

Where legal interest is ‘Other’, please expand further on your interest in the

land or structure.

EirGrid plc is the licensed Transmission Service Operator for Ireland pursuant to

the provisions of the Electricity Regulation Act 1999. Pursuant to the provisions

of S.I. N. 445/2000, EirGrid plc has the exclusive function to operate and ensure

the maintenance of and, if necessary, develop a safe, secure, reliable,

economical and efficient electricity transmission system.

The Electricity Supply Board is the licensed Transmission System Owner for

Ireland pursuant to Section 14 of the Electricity Regulation Act 1999.

The proposed transmission infrastructure will be constructed by the Electricity

Supply Board pursuant to statutory powers.

If you are not the legal owner, please state the name and address of the

owner and supply a letter from the owner of consent to make the application as

listed in the accompanying documentation.

The owner of Woodland 400 kV Substation is the Electricity Supply Board. A

letter of consent and approval to the making of the application from the

Electricity Supply Board of 27 Lower Fitzwilliam Street, Dublin 2 is included in

Schedule 2 attached to this Application Form. The Electricity Supply Board

is the licensed Transmission System Owner for Ireland pursuant to Section 14 of

the Electricity Regulation Act, 1999.

The owner of the Temporary Construction Material Storage Yard to be

located in the townlands of Monaltyuff and Monaltybane, Carrickmacross,

County Monaghan is [Name and Address Stated]. A letter of consent and

approval to the making of the application form from [the person aforesaid] is

included in Schedule 2 attached to this Application Form.

Does the applicant own or have a beneficial interest in adjoining, abutting or

adjacent lands? If so, identify the lands and state the interest.

EirGrid plc, the applicant for approval, does not have a beneficial interest in

adjoining, abutting or adjacent lands. However, EirGrid Interconnector Limited (a

wholly owned subsidiary of EirGrid plc) has an interest in lands within and

adjacent to the southern portion of the overall 400 kV Substation, in the

townland of Woodland, in the Barony of Ratoath, in the Electoral Division of

Dunshaughlin, County Meath which comprises the western termination node of

the existing East West Interconnector (EWIC).

22. Try as it has, the court does not see in the text inserted by EirGrid in the above-quoted segments of the application form

anything other than a description of EirGrid’s interest that conforms with (i) the requirements of s.182A of the Act of 2000 and (ii) the

decision of the High Court in Gormley. EirGrid commences by identifying itself as the licensed transmission system operator which,

pursuant to the Act of 1999, has the exclusive function to operate, ensure the maintenance of and, if necessary, develop a safe,

secure, reliable, economical and efficient electricity transmission system. That is its interest. It is its statutory interest in pursuing the

development and it is properly recorded in the context in which the question is asked. By contrast, the ESB is (correctly) described as

the licensed transmission system owner pursuant to the Act of 1999 Act. And that is where the ESB comes into the process, not just

because of its sub-station ownership but because it is the transmission system owner for Ireland. Of final note in this regard is that

the proposed transmission infrastructure will be constructed by the ESB pursuant to its statutory powers, being the very interest that

Carroll J. found to be sufficient in Gormley, having regard to her construction of Frescati. As to identifying the legal owner and

providing a suitable consent letter, the owner of the Woodland substation is (correctly) identified as the ESB; reference is made to a

letter of consent but again it is made clear that the ESB is the licensed transmission system owner for Ireland under s.14 of the Act

of 1999. So the application form in its own terms makes it clear that ESB is being referenced, not merely in the context of ownership

of the substation, but also in the context of its ownership of the transmission system.

23. At the end of An Bord Pleanála’s ‘Application Form for Permission/Approval in respect of a Strategic Infrastructure Development’,

the following “General Guidance Note” (in the version as furnished to the court) appears:

“The range and format of material required to be compiled/submitted with any application in respect of a proposed

strategic infrastructure development shall generally accord with the requirements for a planning application as set out in

the Planning and Development Regulations, 2001 to 2011 and those Regulations should therefore be consulted prior to

submission of any application.”

24. As the court understands the applicant’s contentions, they include the contention that this general guidance note creates a legal

obligation which does not otherwise exist under the legislation on EirGrid to obtain landowner consent. But if the court might borrow

from the Ronseal man, this “General Guidance Note” ‘does exactly what it says on the tin’…and no more. Thus it is general guidance

(so it is not specific), it is merely guidance (so it is not prescriptive), and it neither purports to, nor could, establish a legal obligation

of the type contended for.

C. The Letter.

25. Turning to the letter of 14th May, 2015, from the ESB to An Bord Pleanála, it is, with respect, very hard to see how this letter

adds to the legal analysis one way or the other. Nonetheless it was the focus of some attention on the part of the applicants at

hearing and thus falls to be considered here. The letter commences with a statement of the statutory background and role of each of

the ESB and EirGrid, then continues as follows:

“Pursuant to Regulation 18.1(a) of [the European Communities (Internal Market in Electricity) Regulations 2000 (S.I. No. 445 of 2000)]

…ESB and EirGrid are required to enter into an agreement for the purpose of enabling EirGrid as Transmission System

Operator to discharge its functions under S.I. No. 445/2000. On 16th March, 2006, ESB and EirGrid accordingly entered

into such an agreement, known as the Infrastructure Agreement.

Pursuant to clause 7.6 of the Infrastructure Agreement, all activities connected with, seeking and/or obtaining planning

permission/approval (if required) and any other consents required by the Transmission System Operator to discharge its

functions as such, shall be the sole responsibility of the Transmission System Operator, i.e. EirGrid.

ESB is obliged under the legislation and the Infrastructure Agreement cited above to facilitate EirGrid’s planning intentions in the

furtherance of EirGrid’s functions as Transmission System Operator. Therefore, pursuant to the Infrastructure Agreement and for the

purposes of the Planning and Development Act 2000, as amended, ESB, as the licensed Transmission System Owner (and a person

with a legal interest in the lands the subject-matter of the enclosed application for planning approval) hereby consents to the making

by EirGrid of this application for planning approval, which EirGrid considers necessary.”

26. The most sensible reading of this letter as a whole is that its provision is referable (a) to its interest in the Woodland substation,

and (b) to ESB’s status as licensed transmission system owner. Any suggestion that the letter is referable solely to (a) is patently

wrong when one has regard to the substance of the letter. After all, were it not for (b), there would be no need to repeatedly state,

as the letter does, that ESB is the licensed transmission system owner under Section 14 of the Act of 1999.

27. In passing – and the court will return to the EirGrid-ESB Infrastructure Agreement in more detail later below – the court notes the

reference in the above-quoted text to cl. 7.6 of that agreement. Though the significance of that agreement was somewhat

underplayed at the hearing of the within application, it seems to the court notable that the Infrastructure Agreement itself provides in

cl. 7.6 for EirGrid’s function in seeking a consent of the kind that was in fact provided by ESB in the context of the now-impugned

application process. The ESB, in other words, is obliged under, inter alia, the Infrastructure Agreement to facilitate EirGrid’s planning

intentions. Hence, in the letter, pursuant to the Infrastructure Agreement, and for the purposes of the Act of 2000, ESB (as licensed

transmission system owner) consents to the making by EirGrid of the now-impugned application; and on its own terms the letter is

provided to facilitate EirGrid’s planning intentions and in furtherance of EirGrid’s functions as transmission system operator.

28. The court began this section of its judgment by posing the question whether there is any rule (a) in legislation, (b) at common

law, or (c) pursuant to the Constitution or the European Convention on Human Rights which mandates that EirGrid can only seek

approval pursuant to s.182A of the Act of 2000 with the consent of the owners of an affected property? In this regard, the following

conclusions, it seems to the court, may reasonably be stated by reference to the foregoing analysis:

(1) the question of whether a person needs a legal or beneficial interest to make an application for development consent

is determined by the statutory provisions governing that consent.

(2) the decision of the Supreme Court in Frescati establishes a rule of statutory construction which, when brought to

bear on the Act of 2000 yields the result that that Act allows EirGrid to make the now-impugned application and imposes

no constraint by reference to landowner consent.

(3) the decision in Frescati is limited in scope to an applicant for permission who is seeking to assert an indiscriminate and

unqualified right in order to gratify a whim. Thus it is not applicable to a body such as EirGrid that is discharging a function

in the public interest and common good.

(4) having regard to the fact that ESB will construct the interconnector, having regard to the fact that it has the

statutory power to acquire interests and having regard to the relationship between ESB and EirGrid under the internal

electricity market regulations, the requisite interest under Gormley exists (if it is necessary indeed to proceed to an

application of Gormley and, for the reasons stated elsewhere above, the court is not persuaded that it is).

(5) no part of the application form can or does change the legal position as described by the court in the preceding

pages; nor does the letter from the ESB.

(6) no provision of the Constitution or the European Convention on Human Rights alters the foregoing conclusions.

V. Entitlement to Make Application?

(i) Critical Issue Arising.

29. The next issue that the court considers is whether EirGrid is entitled to make an application for approval for the North-South

Interconnector under s.182A of the Act of 2000. Although counsel for the applicants suggested at hearing that this issue was not

being pressed, it seems that it may continue to be a live issue and the court will therefore address it. In essence, the issue ‘boils

down’ to the meaning of the phrase “carry out development” in s.182A. The court will also consider hereafter (i) the wayleave

powers of the ESB under s.53 of the Act of 1927 and (ii) the issue contended to present as regards the East-West connector, both

of which matters were referenced by counsel for the applicants in this context, though neither of which, the court respectfully

concludes, is relevant to the issue of entitlement.

(ii) The Act of 1999 and the Regulations of 2000.

30. Mention has already been made of the text of s.182A, the reference therein to “electricity transmission”, the definition of that

term in s.182A(9) by reference to the Electricity Regulation Act 1999, and the express provision in that subsection that “for the

purposes of this section, the foregoing expression [i.e. ‘electricity transmission’], in relation to electricity, shall also be construed as

meaning the transport of electricity by means of [inter alia]…(b) an interconnector, whether ownership of the interconnector will be

vested in the undertaker or not”. But perhaps especially worth remembering in the context of the issues now under consideration is

the emphasis placed on the concept of ‘development’ in s.182A. It will be recalled that that provision commences “Where a person…

intends to carry out development comprising or for the purposes of electricity transmission…[that person] shall prepare, or cause to

be prepared, an application for approval of the development…”. Indeed, it would not be an overstatement to assert that the notion of

‘development’ dominates s.182 and, as will be seen hereafter, the function of development has been vested by statute in EirGrid. Also

notable in this context are the European Communities (Internal Market in Electricity) Regulations 2000 (S.I. No. 445 of 2000) which

provide as follows, at regs. 8(1), 8(6)(a), 18(1)(a) and 19:

“(1) Subject to paragraph (2), the transmission system operator shall have the following exclusive functions:

(a) to operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and

efficient electricity transmission system, and to explore and develop opportunities for interconnection of its

system with other systems, in all cases with a view to ensuring that all reasonable demands for electricity are

met and having due regard for the environment….

…

8(6)(a) Within such time that the Commission may direct, the transmission system operator shall prepare a plan (in

these Regulations referred to as the ‘development plan’) for the development of the transmission system in order to

guarantee security of supply, which shall relate to a period of 5 calendar years from the date on which the plan is

prepared by the transmission system operator.

…

18(1)(a) EirGrid and the Board shall, no later than the effective date and subject to the approval of the Commission,

enter into an agreement (in these Regulations referred to as the ‘infrastructure agreement’) for the purpose of enabling

the transmission system operator to discharge its functions under these Regulations.

…

19. The transmission system owner shall –

(a) as asset owner, maintain the transmission system and carry out construction work in accordance with the

transmission system operator’s development plan, subject to the provisions of Regulation 18(3),

(b) in accordance with the infrastructure agreement with the transmission system operator under Regulation 18

implement any other works required under the development plan, and carry out any other requirement applicable

to it under these Regulations, having due regard for the environment,

(c) provide to the transmission system operator such information as the transmission system operator requires to

ensure the secure and efficient operation, development and maintenance of the transmission system or otherwise

in order to discharge its functions under these Regulations,

(d) have a duty to indicate to the transmission system operator and the Commission, within such period as shall

be specified by the direction of the Commission, the measures which it proposes to take to implement the

development plan in accordance with the infrastructure agreement,

(e) have a duty not to dispose of any assets constituting part of the transmission system or to create any

encumbrance over the transmission system without prior notification, in writing, to the transmission system

operator and the Commission.

(f) have a duty not to dispose of to an extent considered material by the Commission, any assets constituting part

of the transmission system or create to an extent considered material by the Commission, any encumbrance over

the transmission system, without the prior written consent of the transmission system operator and the

Commission,

(g) comply with any regulations or directions applicable to it made by the Commission under these Regulations or

under the Act of 1999, and

(h) otherwise comply with the licence issued under section 14(1)(f) of the Act of 1999.”

31. So EirGrid is the transmission system operator and has the exclusive function of developing the grid, whereas ESB, as transmission

system owner, has the function of carrying out construction, as well of course as owning the grid.

(iii) A Consideration of Certain of the Affidavit Evidence.

32. How the legislative scheme plays out in practice is helpfully teased out in detail in some of the affidavit evidence before the court

and certain of that affidavit evidence is worth reciting here. Thus Mr John Fitzgerald, the Director of Grid Development and

Interconnection at EirGrid, avers, inter alia, as follows:

“EirGrid plc is a public limited company and is the licensed Transmission System Operator [TSO] for Ireland. EirGrid plc

has the exclusive function to operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable,

economical and efficient electricity transmission system. The functions of EirGrid as TSO and the Electricity Supply Board

(as Transmission Asset Owner or TAO) are prescribed in legislation and in their respective licences. In terms of the

relationship between EirGrid as TSO and ESB as TAO, ESB as asset owner maintains the transmission system and carries

out construction work in accordance with EirGrid’s development plan. ESB has no function in respect of the development

of transmission lines other than constructing same and the construction of the North-South 400kV Interconnector,

which is the subject-matter of these proceedings will be undertaken by the ESB….

I say further that it is EirGrid’s intention to carry out the development the subject of these proceedings. EirGrid

conceives, designs, [and] procures the construction of the infrastructure, and has the supervisory role provided for

under the infrastructure agreement in respect of that construction. The construction itself shall be undertaken by the

ESB….”.

33. This aspect of matters is subsequently taken up by Ms Aimee Treacy, a director and the company secretary of the first-named

applicant, who avers, inter alia, that “Mr Fitzgerald states that the development shall be carried out by the ESB.” However, this, with

respect, is a mis-casting of what Mr Fitzgerald in fact avers. He avers, and this is most certainly not a distinction without a difference

that “The construction…shall be undertaken by the ESB”. But returning to Mr Fitzgerald’s affidavit evidence, he further avers as

follows:

“[Ms] Treacy asserts that EirGrid has no legal interest in privately-owned lands and is incapable of acquiring any interest

in same.

Whilst the issue of EirGrid’s interest and the lawfulness of the application for approval are more properly matters for

legal submission. I am advised by EirGrid’s solicitor and so believe that the following points should be noted:

the application for approval in respect of the proposed development was made under section 182A of the 2000

Act, which does not require the applicant for approval to assert any interest in respect of the lands the subject-

matter of the application;

the Electricity Supply Board [ESB] is the licensed Transmission Asset Owner [TAO] and owns the transmission

system and is responsible for its construction in accordance with EirGrid’s development plan and is further

responsible for the execution of maintenance;

EirGrid is solely responsible for making applications for planning approval or permission;

the application for approval was made by EirGrid, with the consent and approval of the Electricity Supply Board;

the application documentation…expressly stated that…EirGrid is the licensed TSO for Ireland and ‘has the

exclusive function to operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable,

economical and efficient electricity transmission system’, and that ‘the proposed transmission infrastructure will

be constructed by the Electricity Supply Boatd pursuant to statutory powers….

Accordingly, I am advised and so believe that EirGrid could and did lawfully make the application for approval….

[A]t the oral hearing, on March 23 2016, Aidan Geoghegan (EirGrid’s Project Manager for the North-South 400kV

Interconnection Development) gave uncontroverted evidence explaining the respective functions of EirGrid and the ESB

and the legal and contractual relationship between these entities, insofar as is relevant to this application. Mr Geoghegan

explained what ESB does in relation to the works and precisely why it is EirGrid that carries out the development; EirGrid

conceives the plan, designs the project, procures construction and has a supervisory role during that construction. ESB’s

role is to build and fix the transmission system to specifications set by EirGrid. EirGrid specify what, where and how; ESB

acts under direction from EirGrid”.

34. In a separate affidavit, Mr Fitzgerald further avers as follows in this regard:

“EirGrid’s principal role as TSO is to plan the development of and operate the transmission system, and to ensure its

maintenance. Under article 8(1) of the Regulations of 2000, EirGrid has the exclusive function to operate and ensure

maintenance of, and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission

system. EirGrid further has the obligation to prepare a development plan for the development of the transmission

system in order to guarantee security of supply….

The functions of both EirGrid as TSO and ESB as TAP are prescribed in legislation and in their respective licenses. In

terms of the relationship between EirGrid as TSO and ESB as TAO…ESB as asset owner maintains the transmission

system and carries out construction work in accordance with EirGrid’s development plan. ESB has no function in respect

of the development of transmission lines other than constructing same….

The relationship between EirGrid and ESB is managed via an ‘Infrastructure Agreement’ which was entered into between

the parties on the 16th March 2006….This agreement can only be amended with the approval of the CER….

Section 7 of the Infrastructure Agreement deals with ‘Development and Construction Activities’ and the following

provisions are of particular importance to the issue which the Applicants seek to raise in the proceedings:

(i) EirGrid has the sole and exclusive right to determine and identify which development projects will be undertaken

and the timing requirements for the development of such projects (clause 7.3.1)

(ii) It is Eirgrid’s decision to proceed with any project (clause 7.4.2);

(iii) Design standards and designs are a matter for EirGrid (clause 7.5)

(iv) Where a project is to proceed, the ESB must give EirGrid a project implementation plan with all details of how

the project will be implemented, method statements, etc. EirGrid is given the power to reject the draft Project

Implementation Plan with any disagreement between ESB and EirGrid being determined through dispute resolution

(clause 7.7.4);

(v) EirGrid appoints a client engineer – and that description is itself significant – who are agents of EirGrid and who

have rights of inspection of all aspects of a project (clause 7.9.1);

(vi) The client engineer then, representing EirGrid, has the power to monitor progress and ensure that ESB carries

out the project in accordance with the Project Agreement (para. 7.9.3)

(vii) EirGrid has an input into procurement through its members of the Procurement Strategy Committee (7.10)

(viii) EirGrid has an ongoing role of review and assessment over delivery of the project (clause 7.11)

(ix) EirGrid has, subject to clause 11 (Access to transmission assets), unrestricted access and rights of inspection

with respect to all aspects of the execution and completion of construction works carried out on the Transmission

System and to ensure that such construction works comply with the Project Agreement (clause 7.12.2);

(x) Commissioning of the Development is undertaken in accordance with EirGrid’s procedures and the certificate of

acceptance issues from EirGrid (clause 7.13.9)…”.

(iv) The Infrastructure Agreement.

35. Following on from the foregoing, the court would but note in passing, clauses 7.13.9 and 21.1 of the Infrastructure Agreement,

with clause 7.13.9 of that agreement providing that “When the Board considers that a Project or section has been substantially

completed in accordance with the Project Agreement and a Certificate of Acceptance has been issued for that Project or section,

the Board may apply to the TSO for a Certificate of Completion in respect of that Project or section, stating the date on which it

considers the Project or section to be substantially complete”, and clause 21 giving EirGrid various step-in rights where it “considers

that the Board is in delay or default of its construction or maintenance obligations” under the Infrastructure Agreement. In essence,

on the transmission side, the ESB’s role is to be a contractor, building whatever is decided by EirGrid to the specification set by

EirGrid.

(v) Some Conclusions.

36. In the preceding pages the court has described at some length the legal framework that governs, and the infrastructure

agreement that exists between, EirGrid and ESB, and how that legislative and infrastructural schema operates in practice. Taking all

of the foregoing together, the legal issue that presents when it comes to deciding eligibility to make an application under s.182A is

not who is constructing the development, but who is carrying out the development? And looming through the preceding pages is the

clearest of answers to this question: EirGrid is carrying out the development. It is the body which designs the development, as only

legally it can do. It decides that the development is necessary. It identifies the route. It decides on voltage. It chooses the pylons. It

determines their location. Yes, having done all of that, having obtained the necessary approvals, EirGrid then instructs and requires

ESB to construct the infrastructure, though with a significant measure of control and oversight, including step-in rights. But with

every respect to the applicants, they have never really elucidated how it is, as it must be if they are to be right in their contentions

in this regard, that EirGrid is not the person that, to borrow from the wording of s.182A(1) “intends to carry out [the] development”.

There is reference by the applicants, it is true, to the fact that ESB is doing the construction work; and some reliance is placed by

them on the fact that it is ESB that has the power to obtain wayleaves under s.53 of the Act of 1927. But does the fact that ESB is

doing the construction work change the fact that it is EirGrid which is the party that intends to carry out the development and

procures the various steps that are required to achieve that end? The short answer, unfortunately for the applicants, is that it does

not.

37. Some reference was made in this context, by counsel for EirGrid, to the decision of the High Court of England and Wales in

Blaenau Gwent Borough Council v. Khan (1993) 35 Con LR 65. The case is perhaps something of a distraction in that the proposition

for which counsel seeks to pray it in aid is not especially adventurous; indeed it might even be suggested to be fairly obvious – a

suggestion from which counsel for EirGrid would himself perhaps be unlikely to demur. Thus Blaenau Gwent is an example of a case in

which a building owner who hired a contractor was held, for the purposes of building regulations, to be the person who carried out

building work for the purposes of particular enforcement provisions. It therefore offers support for the proposition, if support is

required, that the notion of ‘carrying out development’ is, properly construed, a notion that is apt to cover the person who authorises

and procures the relevant works, that person being EirGrid in the context of the within proceedings. How then can the applicants

contend that EirGrid is not the person carrying out the works? Aside from the suggestion that one has to be the person actually doing

the physical work of construction, a proposition which both everyday experience and the decision in Blaenau Gwent suggest to be

(and is considered by the court, with respect to be) misconceived, great emphasis has been placed by the applicants on s.53 of the

Act of 1927. Some emphasis was placed too, by counsel for the applicants, on the example offered by the East-West Interconnector,

which the court now proceeds to consider.

(vi) The East-West Interconnector.

38. Perhaps the best way to introduce the issue of the East-West Interconnector is to flag certain aspects of the respective written

submissions of the applicants and EirGrid. The East-West Interconnector is a 500 megawatt link between the electricity transmission

grids of Ireland and Britain. It plays an important role in transferring power between Ireland and the the United Kingdom. At para. 119

of the applicants’ written submissions, the following appears:

“The actual practice carried out by EirGrid in relation to the previous East West Interconnector between…Britain and

Ireland can be seen in the application for a special order which was made by EirGrid to the Commission for Energy

Regulation (‘the CER’) in relation to private lands affected by that development….As can be seen from same, EirGrid

therein stated that it (i.e. EirGrid and not the ESB) had engaged the contractor (ABB) to carry out the construction in

question…and confirmed that it could not use a section 53 wayleave notice under the 1927 Electricity Supply Act since

the road in question was a private road. In light of the foregoing, there is no reason to suspect that any different

methodology would be used in the current development and that Mr Fitzgerald is incorrect in asserting that ESB would

construct the interconnector and simply cannot state same as he has no basis for such assertion and no authority to

state same on behalf of the ESB which is independent of EirGrid. It is submitted that the Applicant herein has [not]

obtained any such special orders of the type sought in relation to the East-West Interconnector in relation to this

scheme and such orders are not within its control.”

39. The court cannot but note in passing that in fact Mr. Fitzgerald, in his evidence before the court and, as it happens, before the

Inspector, has stated in the clearest terms that, pursuant to the infrastructure agreement (to which EirGrid is a party and which it

has the power to invoke) ESB will be doing the construction of the North-South Interconnector. But leaving that not insignificant

detail to one side, it is worth reciting the following detail that appears at para. 84 of EirGrid’s written submissions:

“The submissions of the Applicants…refer to the purported practice of EirGrid in relation to the East West Interconnector

between Britain and Ireland….[T]he issue of the use of wayleave notices in particular circumstances or special orders is

entirely irrelevant to the validity of the Board’s decision which is the subject-matter of these proceedings. The East-

West Interconnector has significant differences to the proposed North South Interconnector. For example, the East-

West Interconnector is owned by EirGrid and not ESB and accordingly, is not part of the transmission system. Rather,

EirGrid was authorised to construct the East-West Interconnector by the Commission for Energy Regulation [CER],

pursuant to section 16 of the Electricity Regulation Act, 1999. The CER also consented, pursuant to section 49 of the

Electricity Regulation Act 1999, to the exercise by EirGrid of the powers conferred on ESB by subsections (1) to (5) and

(9) of section 53 of the Electricity (Supply) Act, 1927. Moreover, Special Orders were sought from the CER under section

45 of the Electricity (Supply) Act, 1927 as the development required the breaking up of a private road for the laying of

cables under the road. As this was a private road, there was some doubt whether section 51 of [the] Electricity (Supply)

Act, 1927 applied. In respect of the North-South Interconnector project, there is no breaking up of private roads to lay

underground cables.”

40. Where does the truth lie when it comes to these competing submissions? To answer this, it is worth turning briefly to the

Transmission System Operator Licence granted by the Commission for Energy Regulation to EirGrid in March, 2017 and, in the first

instance, to the definitions of “North/South Circuits” and “Republic of Ireland Interconnector” therein, which definitions show that a

distinction falls to be drawn between the North-South Circuit, which is part of the transmission system on the island of Ireland single

electricity market and the Republic of Ireland Interconnector, which is a connector between this State and another jurisdiction:

“‘North/South Circuits’ means the electric lines and electrical plant and meters used for conveying electricity directly

to or from a substation or converter station within the Republic of Ireland directly to or from a substation or converter

station within Northern Ireland (and not for conveying electricity elsewhere);

…

“‘Republic of Ireland Interconnector’ means for the purpose of this Licence, equipment used to link the transmission

system to electricity systems outside of the island of Ireland, and (for the avoidance of doubt) does not include the

North/South Circuits”.

41. Moving on, the term “transmission system” is defined in the Transmission System Operator Licence as meaning:

“the system of electric lines comprising wholly or mainly the Board’s high voltage lines and electric plant and which is

used for conveying electricity from a generating station to a substation, from one generating station to another, from

one substation to another or to or from any Republic of Ireland Interconnector or to final customers (including such part

of the North/South Circuits as is owned by the Board) (but shall not include any such lines which the Board may, with

the approval of the Commission, specify as being part of the distribution system), and shall include any Republic of

Ireland Interconnector owned by the Board”.

42. So as far as the East-West Interconnector is concerned, the ownership of this ‘Republic of Ireland Interconnector’, as that term is

defined in the Transmission System Operator Licence, rests (as is recognised in the authorisation to construct that interconnector) in

EirGrid. In the North-South Interconnector context, by contrast, what one is dealing with is a transmission system which will not be

owned by EirGrid but rather by the ESB. And that is why, in essence, the two situations (North-South versus East-West) are not

analogous and why, when it comes to the manner in which the two projects have been described, there has not been any sleight of

words, let alone dishonesty, on the part of EirGrid or, so far as the court can see, any of the respondents in this regard. The two

projects are, to use a metaphor, ‘chalk and cheese’.

(vii) Section 53 of the Act of 1927.

a. Overview.

43. The substance and thrust of s.53 of the Act of 1927 has already been touched upon in the court’s consideration of Gormley and

need not be repeated here. Suffice it to note that, regrettably for the applicants, their reliance on s.53 is misplaced insofar as they

see in that provision a means of advancing their argument that EirGrid does not intend to carry out the development. It is quite clear

from the evidence before the court that as a matter of fact EirGrid does intend to carry out the development, it intends to require

ESB to construct it in accordance with the infrastructure agreement, and ESB has the statutory power to acquire wayleaves – and

the fact that it is ESB that has that power, and not EirGrid, does not in any way affect the question of whether EirGrid intends to

carry out the North-South Interconnector development.

b. The decision in Killross.

44. The court turns to consider briefly the decision of the Court of Appeal in Electricity Supply Board v. Killross Properties Limited

[2016] IECA 210. Though Killross represents precedent binding on this Court at this time, it is perhaps worth noting in passing that, at

the time of writing, the Supreme Court has recently given liberty for an appeal to be brought against the decision of the court below.

As a result the decision in that case, though fully binding in all respects on this Court, nonetheless occupies at this time that

netherworld in which appealed judgments are generally perceived to dwell pending adjudication on appeal.

45. The respondents in Killross brought a wide ranging challenge to wayleave notices issued under s.53 by the ESB. One of these is

described as follows in the judgment of Cregan J., under the heading “Improper Delegation of Power Pursuant to Section 53 –

Delegatus Non Potest Delegare [‘One to whom power is delegated cannot himself further delegate that power’]”, at para. 38:

“The appellant also makes a number of arguments under this heading. These are as follows:

(i) That ESB, in effect, delegated its power and/or discretion to issue wayleave notices to EirGrid and/or ESB Networks

Ltd to such an extent that it no longer has any ability to exercise a discretion as to whether to issue a wayleave notice

or not;

(ii) That Mr Waldron [the man authorised by the Chief Executive of ESB to issue the wayleave notice] is, in effect,

directed and controlled by ESB Networks Ltd and therefore he is not in a position to exercise his power to issue a

wayleave notice for [and] on behalf of ESB;

(iii) That the delegation by the Board to the Chief executive and by the Chief Executive to Mr Waldron of the Board’s

power to issue wayleave was ultra vires s.9 of the 1927 Act, was an unlawful delegation of power and was a breach of

the principle delegatus non potest delegare.”

46. One slight point of confusion that can arise on reading the judgment, and that is worth noting before proceeding further with a

consideration of the decision of the Court of Appeal, is that there is a division within ESB called ESB Networks and a legal entity,

separate from ESB, known as ESB Networks Limited. In any event. Cregan J. observes as follows, at paras. 39-43, 46-50, 59 and 61-

64:

“The regulatory structure of the electricity transmission system.

39. It appears that under the current regulatory structure in Ireland the following is the division of responsibility for the

transmission of electricity:

ESB – Transmission Asset Owner (TAO)

Eirgrid Plc – Transmission System Operator (TSO)

ESB Networks Ltd – Transmission Asset Manager

40. The division in responsibility in relation to the distribution of electricity is as follows:-

ESB – Distribution Asset Owner (DAO)

ESB Networks Ltd – Distribution Systems Operator (DSO)

ESB Networks Ltd – Distribution System Manager.

41. Mr. Padraig Ó hIceadha in these proceedings swore an affidavit on behalf of ESB and Eirgrid to set out:

(1) who ESB is, who ESB Networks is, who ESB Network Ltd is, and who Eirgrid Plc is

(2) the relationship between these entities;

(3) who gave what direction in relation to the notice of 28th June 2013.

42. In the course of that affidavit Mr. Ó hIceadha explained that ESB owns the electricity transmission system, that the

Commission for Energy Regulation (CER) has granted it the Transmission Asset Owner (TAO) licence and that ESB’s

functions and duties as TAO include the carrying out of maintenance tasks on the transmission network in accordance

with the specifications of the Transmissions System Operator (TSO), namely, Eirgrid. As a condition of its TAO licence

ESB was required to designate an internal division of its business to carry out its TAO functions. Accordingly ESB

designated a division of its business called ESB Networks for this purpose. (Indeed much of the confusion in relation to

this issue is caused because there is an internal division of ESB called ‘ESB Networks’ and a separate company called ‘ESB

Networks Ltd’.)

43. Mr. Ó hIceadha’s affidavit also sets out the fact that ESB Networks Ltd is the electricity distribution system operator

(DSO) and that ESB Network Limited fulfils the same role in respect of the electricity distribution system as that which

Eirgrid fulfils in respect of the transmission system. Article 15 of EU Directive 2003/54/EC requires that the DSO must be

independent in terms of its legal form from other activities of ESB not relating to distribution. ESB remains the owner of

the distribution system (the distribution asset owner) (DAO) but ESB Networks Ltd, as a wholly owned subsidiary, was

established to discharge the DSO function. ESB Networks Ltd. is independent of ESB and is the holder of the DSO licence

in its own right, not as the agent of ESB. Thus, decisions in respect of operating and ensuring the maintenance and

development of the distribution systems are in the remit of the ESB Networks Ltd as DSO….

…

(1) The appellant’s first argument – that ESB delegated its power to issue wayleaves to Eirgrid and ESB Networks Ltd and

that ESB does not exercise any discretion in relation to service of notices.

46. The appellant submits that ESB has essentially delegated its statutory functions to issue wayleave notices under the

Act to Eirgrid, that Eirgrid directed the operation of the particular project in this case, that Eirgrid then appointed ESB

Networks International to carry out this project, that Mr. Waldron is under the control and direction of ESB Networks Ltd

and that therefore Mr. Waldron in signing the wayleave notice is in effect ‘cut adrift’ from the Board and the Board can

exercise no supervisory powers over him. As a result therefore it submits that the wayleave notice was invalid.

47. In order to assess this submission it is necessary to consider each link in the chain of this argument.

48. Firstly, the appellant says that the ESB delegated its power to create wayleave notices to Eirgrid. It makes this

argument based on clause 7.6.2 of an Infrastructure Agreement dated 14th March 2006 between the ESB and Eirgrid.

Clause 7.6.2 provides as follows:

‘The Board, irrevocably for as long as this agreement exists, hereby appoints the TSO [Eirgrid] as its agent to

(a) ……

(b) make and process all applications for the acquisition of wayleaves and rights of entry on behalf of

the Board and

(c) exercise all rights of entry on lands vested in the Board pursuant to regulation 29 of the statutory

instrument or any other relevant statutory provision.

Insofar as these rights may be required for the development of the transmission system.’

49. The appellant seeks to argue that under this contractual agreement the ESB has in effect delegated its power to

serve all wayleave notices to Eirgrid.

50. However Clause 7.6.4 of the agreement provides as follows:

‘Following receipt of relevant landowner details from the TSO under clause 7.6.2 the Board will issue wayleave

notices, survey notices, borehole notices and similar instruments in accordance with the terms and arrangements

agreed between the TSO and the relevant landowner and make all necessary payment arising under those terms.’

…

59. I am satisfied, therefore, that the submissions of the appellant in this regard are, in effect, mischaracterising or

misinterpreting the legal reality of what was going on between ESB, Eirgrid, ESB Networks Business Unit and ESB

Networks Limited. Given the degree of overlap between names, functions and agreements it is hardly any surprise that

there should be such a miasma of confusion over the roles, functions and legal responsibilities of the various parties

involved. However I am satisfied that there is a clear legal distinction between ESB and ESB Networks Limited and that

there is a clear distinction between the ESB Networks Business Unit (as a division within ESB) and ESB Networks Limited.

It is also clear that ESB and ESB Networks Limited carry out different functions under the regulatory structure now in

place in Ireland. It is clear that ESB and ESB Networks Limited have entered into various agreements required by the

regulatory structure and it is also clear that ESB and ESB Networks Limited have entered into an Asset Management

Agreement whereby ESB Networks Limited manage the ESB Networks Business Unit of ESB for and on behalf of ESB.

However, this does not change the fundamental legal fact that nowhere in any of the arrangements or agreements

between ESB and ESB Networks Limited can it be said that ESB has delegated the power of issuing wayleave notices to

ESB Networks Limited. Indeed, it is clear that the Board of ESB has specifically retained the power to issue wayleave

notices not only in its infrastructure agreement with Eirgrid but also in its agreement with ESB Networks Limited.

…

61. The appellant also submits in the alternative, that even if neither EirGrid nor ESB Networks Ltd have the power to

acquire wayleaves under s. 53, that ‘this dilemma has been addressed and practiced by a very troubling three card

trick: where EirGrid decide, as in the present case, to develop or ‘operate’ an electricity line and to acquire a wayleave

for that purpose, it directs ESB Networks Ltd to effect the acquisition by serving a notice describing itself as ESB

Networks so that it can argue that wearing its wayleave acquisition hat it is actually part of the ESB. This is despite the

fact that all works are actually carried out by ESB Networks Ltd at the direction of EirGrid’.

62. However, in my view, the description of this issue as a ‘three card trick’ is not correct. First, it is not correct to say

that where EirGrid decide to ‘acquire a wayleave” it directs ESB Networks to effect the acquisition…’ because EirGrid has

no legal power to ‘acquire’ a wayleave for that purpose; secondly, EirGrid cannot direct ESB Networks Ltd to effect the

acquisition by serving a notice describing itself as ESB Networks as it does not have the legal authority to issue a

wayleave notice in the first place and therefore it could not direct any other party to serve a wayleave notice; thirdly

the notice describing itself as ESB Networks is in fact a reflection that ESB Networks is an internal business unit of ESB

which has retained the power to issue wayleave notices.

63. One of the errors which pervades the appellant’s submissions in this regard appears to be its unwillingness to accept

the distinction between the role of ESB Networks Ltd as the separate contractual entity carrying out certain functions

under the new regulatory structure and the entirely separate and distinct role of ESB Networks Ltd in managing the ESB

Networks Business Unit of the ESB. The appellant has conflated both of these roles and sought to argue that ESB has

delegated its power to issue wayleave notices to ESB Networks Ltd when there is simply no evidence that this is so and

indeed all the contractual documents appear to point in the opposite direction.

64. In summary, therefore, the argument that ESB has delegated its statutory power to issue wayleave notices to

EirGrid and/or ESB Networks Ltd is wrong as a matter of law and is misconceived. The appellant’s argument that EirGrid

has a right to issue wayleave notices and, in effect, is directing ESB Networks Ltd to issue wayleave notices is also

incorrect as a matter of law.”

47. That then is the up-to-date legal position on the points addressed in the above-quoted extracts from the judgment of Cregan J.

in the Court of Appeal, and is noted by the court.

(viii) Some Further Conclusions.

48. The court began this section of its judgment by posing the question whether EirGrid is entitled to make an application for approval

for the North-South Interconnector under s.182A of the Act of 2000. In this regard, the following conclusions, it seems to the court,

may reasonably be stated by reference to the foregoing analysis:

(1) the applicable legislation entitles EirGrid to apply if it intends to carry on a development (which it does). Legislation

does not require that EirGrid intend to do the construction work. Given that EirGrid is the person designing and for whom

the work is being done, it clearly intends in every sense to carry out the development.

(2) the applicable legislation must be construed in the light of the statutory function of the transmission system operator

(EirGrid). It is the person in charge of the development. It would make no sense that the legislation would deprive the

body with the statutory function of development of the legal power to develop.

(3) the position in relation to the East-West Interconnector is completely different from that arising in respect of the

North-South Interconnector. The East-West Interconnector was not concerned with a development that formed part of

the transmission network and s.53 and the other powers of the ESB do not affect any of that. ESB is entitled to exercise

those powers and its entitlement to do so does not affect, one way or another, the inquiry as to who intends to carry out

the development.

VI. Designation, Bias, and Validity of Decision

(i) Overview.

49. Three more issues arise now to be addressed and their inter-relationship is such that they are perhaps best addressed under a

single heading, viz. (1) is it correct to say that legislation is required to vest in An Bord Pleanála the function of competent authority

under the PCI Regulation? (2) does the vesting of such a dual function in An Bord Pleanála present an appearance of bias such as

gives rise to an entitlement to legal relief on the part of the applicants? and (3) if there is a legal infirmity attendant upon the

designation of An Bord Pleanála, does that affect the validity of the decision granting approval under s.182B of the Act of 2000?

50. When it comes to the just-mentioned issues, the court is dealing with what might be described as the State dimension of the

within application. Insofar as that dimension of the proceedings is concerned, the claims made by the applicants are directed to no

little extent at the designation of An Bord Pleanála as competent authority. So, for example, the applicants allege that:

(1) that designation should have been done by way of legislation, whether primary or secondary. In support of this

contention, the applicants make the point that An Bord Pleanála is a creature of statute and thus can only act ‘within the

four corners’ of statute. In support of this contention, reference was made by the applicants to: (a) the Planning and

Development (Amendment) Act 2006, and the conferral of powers thereby in relation to railway orders and road schemes

(with a contrast being drawn between the situation in the case at hand where there is no domestic legislation conferring

additional powers on the Board in relation to its role as a competent authority); and (b) the decisions in Dellway

Investments Ltd v. NAMA [2011] 4 I.R. 1 and Murphy v. Cobh Town Council [2006] IEHC 324. But underplayed in the

applicants’ contentions, or so it seemed to the court, is the fact that the impugned designation of An Bord Pleanála has

been done pursuant to European Union regulation, a fact that, as will be seen hereafter, carries with it certain legal

consequences so far as the contentions made by the plaintiffs are concerned.

(2) there is a conflict of interest between the one entity, An Bord Pleanála, acting as competent authority and

development consent authority. But what was, with respect, notably missing from the applicants’ submissions, was any

explanation as to how that alleged conflict arises: they have not pointed to anything that is required to be done by the

competent authority which impinges on the role of An Bord Pleanála as a consent authority. Moreover, the role of An Bord

Pleanála becomes clearer when one has regard not just to the monochrome of what it is doing in the within proceedings

but the full colour of what it might be called upon to do in other proceedings. In essence, the role of An Bord Pleanála as

competent authority is what might be styled a ‘case management’ role. There is not a lot of case management to be done

when, as here, there is only one development consent required. However, matters would be different and the case

management role of An Bord Pleanála more apparent in a case where there was a number of consent authorities involved,

as, for example, would be the case in a gas project where a battery of bodies have a role to play. In that latter context,

An Bord Pleanála would play the role of ‘clock-watcher’ and would seek to ensure that applicable timelines were observed

by all. When it comes to its interpretation of legislation, the court must ever be careful not to be blinkered by the

monochromatic version of events represented in a single set of proceedings, but instead to keep its eyes open to the full

colour of what particular legislation seeks generally to achieve, so that the court’s interpretation of that legislation holds

good both in the general and in the particular. Just as a person may do wrong but be good, so legislation may appear

wrong yet hold good.

(3) the vesting of a dual function in An Bord Pleanála presents an appearance of bias such as gives rise to an entitlement

to legal relief on the part of the applicants, an allegation which, it seems to the court, is roundly met by the decision of

the High Court in Callaghan v. An Bord Pleanála [2015] IEHC 357, considered later below.

(ii) The Question of Designation.

a. The PCI Regulation.

51. As mentioned previously, the decision challenged in these proceedings is a decision made by An Bord Pleanála, on 19th December

last, to grant approval under s.182B of the Act of 2000 for the proposed construction and development of the North-South

Interconnector. The relevant application for approval was made by EirGrid on or about 9th June, 2015. The proposed development

was classified as a strategic infrastructure development (or ‘SID’). (Under s.2 of the Act of 2000, the definition of SID includes “any

proposed development referred to in s.182A(1)”). In granting approval for the project under s.182B of the Act of 2000, An Bord

Pleanála was carrying out its role as the decision-making body in applications for strategic infrastructure consents under Irish planning

law. However, An Bord Pleanála also carried out a related role, namely that of national “competent authority” under the PCI

Regulation, a European Union law measure, and it is to certain aspects of European Union law that the court now turns.

b. The European Union Law Dimension.

52. Article 288(2) of the Treaty on the Functioning of the European Union (‘TFEU’) provides that “[A] regulation shall have general

application. It shall be binding in its entirety and directly applicable in all Member States”. In O’Neill, A., EU Law for UK Lawyers

(2011), a work which is useful also to non-UK lawyers, the learned author observes, at 36, that “The ‘direct applicability’ of EU

regulations means that no national legislation is required to implement the regulations in order to give them legal effect in the

domestic legal systems of Member States. Regulations bind the Member States and have the force of law within the national

territories without the intervention of national parliaments”. In a similar vein, Craig, P. and G. de Búrca observe, in EU Law and

Materials (5th ed., 2011), at 190, that “[R]egulations will immediately become part of the domestic law of Member States, without

needing transposition”.

53. It is well established by the Court of Justice of the European Union (‘CJEU’) that, when it comes to European Union regulations,

member states are not required to adopt implementing domestic legislation, not least because such domestic measures might contain

changes which affect the uniform application of the relevant regulation. In Case C-39/72 Commission v. Italy (1973), the European

Court of Justice observes as follows, para. 17:

“Regulations are, as such, directly applicable in all Member States and come into force solely by virtue of their

publication in the Official Journal of the Communities, as from the date specified in them, or in the absence thereof, as

from the date provided in the Treaty.

Consequently all methods of implementation are contrary to the Treaty which would have the result of creating an

obstacle to the direct effect of Community Regulations and of jeopardizing their simultaneous and uniform application in

the whole of the Community.”

54. It is clear, therefore, that the CJEU wishes to guard against the fragmentary impact of unnecessary implementing measures. The

various member states are also, of course, bound by the duty of sincere cooperation that presents under Art. 4(3) of the Treaty on

European Union whereby:

“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist

each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations

arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could

jeopardise the attainment of the Union's objectives.”

55. In Case C-34/73, Variola v. Amministrazione Italiana delle Finanze (1973), a preliminary ruling was sought of the European court

of Justice as to whether a regulation could be implemented by domestic measures which effectively reproduce the provisions of the

regulation. In its judgment, the European Court of Justice explained as follows, at paras. 10-11:

“10. The direct application of a Regulation means that its entry into force and its application in favour of or against

those subject to it are independent of any measure of reception into national law.

By virtue of the obligations arising from the Treaty and assumed on ratification, Member States are under a duty not to

obstruct the direct applicability inherent in Regulations and other rules of Community law.

Strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of Community

Regulations throughout the Community.

11. More particularly, Member States are under an obligation to introduce any measure which might affect the

jurisdiction of the Court to pronounce on any question involving the interpretation of Community law or the validity of an

act of the institutions of the Community, which means that no procedure is permissible whereby the Community nature

of a legal rule is concealed from those subject to it.”

56. The decision in Variola, cited with approval in numerous subsequent judgments of the CJEU, is clear authority that the provisions

of a European Union regulation should not be replicated in a national measure, particularly if the effect would be to obscure from

citizens the fact that it is the regulation which is the direct source of obligations. One such later judgment is the judgment of the

CJEU in Joined Cases C-539/10P and C-550/10P Stichtung Al-Aqsa v. Council of the European Union (2012), in which the CJEU

considered whether a freezing of funds imposed by national provisions against a person who is also subject to a freezing of funds

imposed by a European Union regulation may affect the scope of a regulation. Per the CJEU, at para. 87:

“Member States are under a duty not to obstruct the direct applicability inherent in regulations, given that the

scrupulous observation of this duty is an indispensable requisite for the simultaneous and uniform application of European

Union regulations throughout the Union (see, to that effect, Case 34/73 Variola [1973] ECR 981, paragraph 10; Case

94/77 Zerbone [1978] ECR 99, paragraphs 24 and 25; and Case 272/83 Commission v Italy [1985] ECR 1057, paragraph

26). In particular, Member States must not adopt a measure by which the Community nature of a legal rule and the

consequences which arise from it are concealed from the persons concerned (see Variola, paragraph 11; Zerbone,

paragraph 26; Case C 113/02 Commission v Netherlands [2004] ECR I 9707, paragraph 16; and Case C 316/10 Danske

Svineproducenter [2011] ECR I 13721, paragraph 41).”

57. Closer to home, in Maher v. Minister for Agriculture and Food [2001] 2 I.R. 139 what was in issue was a rule that had been

introduced in relation to milk quotas by a statutory instrument that was implementing Community regulations, which statutory

instrument was contended unsuccessfully by the applicants (both at first instance and on appeal) to violate the Constitution in that it

did not come within the “necessitated” text of Art. 29, yielding the resut that the respondent minister had effectively been legislating

contrary to Art. 15 of the Constitution. Keane C.J., at 181, observed that there were two routes by which to approach adjudication

on these contentions:

“One can initially decide whether the making of the regulation in the form of a statutory instrument rather than an Act

of the Oireachtas was ‘necessitated’ by the obligations of membership. If it was, then it is clearly unnecessary to

consider whether it is in conflict with Article 15.2 or, for that matter the Articles guaranteeing the private property

rights of the applicants. Alternatively, one can determine first whether it violates either Article 15.1 or the private

property rights or both of them. If the latter course were adopted, and the conclusion were reached that no breach of

the Constitution had been established, it would be unnecessary to consider whether enactment in the form of a

regulation rather than by an Act was necessitated by the obligations of membership.”

58. The Supreme Court as a whole preferred the second approach. Fennelly J. was of the view, at 254-5, that “[T]he essential

question is whether the first respondent was in breach of Article 15.2.1 of the Constitution. If he was, the Regulations of 2000 will be

invalid, since unlike those involved in Meagher [v. Minister for Agriculture [1994] 1 I.R. 329]…they are not ‘necessitated’.” (The Chief

Justice had already made a finding on this last point in his preceding judgment). Fennelly J., at 260, identified the test applicable to

be “whether the scope of the discretion conferred by Community law in regulations which become part of national law was so

independent of principles and policies laid down by those Community regulations, as to place the State in conflict with Article 15.2.1

of the Constitution.” This, of course, is akin to the test identified by O’Higgins C.J. in Cityview Press v. An Chomhairle Oiliúna [1980] 1

I.R. 381, 399, save that Maher involves the substitution of the European law measure for the parent statute referred to in Cityview,

and a possible stretching of the Cityview language so as to require not only independence but a large degree of independence (“so

independent”) before implementing legislation would be held to be in breach of Art. 15.2.1̊. The implications of Maher in the context of

the within application are touched upon further hereafter.

(iii) Some Particular Aspects of the Case at Hand.

59. Perhaps nine points might usefully be made at this juncture.

60. (1) In Maher the Supreme Court was concerned with the principles and policies test under Article 15 of the Constitution. What

the court ultimately decided was that the principles and policies presenting could legitimately be found in the relevant European

legislation and hence there was no breach of Article 15. In effect, the Supreme Court treated the European legislation as they would

a piece of primary legislation for the purpose of the Cityview test, though subject to the differences that have been touched upon

previously above. So far as independence from the principles and policies of the PCI Regulation is contended, if it is contended, to

present in what the State has done as regards designation of An Bord Pleanála as a national “competent authority” under Regulation

(EU) No. 347/2013, the court sees none.

61. (2) Here the second-named respondent contends, and the court accepts, that if one were to regard the PCI Regulation as if it

were equivalent to a domestic piece of legislation and then to ask ‘what would happen if a piece of primary legislation allowed the

designation of a competent authority?’ it becomes clear that, absent some requirement to the contrary in the primary legislation, no

further legislation would be required. To put a practical gloss on the foregoing, it is often the case that legislation will empower a

minister or some other body to designate a person as say, a competent authority or an authorised officer (such authorised officers

often enjoying quite extensive powers). That power to designate/authorise derives directly from the parent legislation, and clearly a

ministerial edict will issue whereby the designation/authorisation is effected. That is all that presents here, save that the legislation in

question is a European Union regulation, i.e. the PCI Regulation.

62. (3) The court notes the following observations of Denham J. in her judgment in Maher, at 206-7, under the heading “European

Regulations”:

“Community regulations are binding on member states and are directly applicable within member states. They are of

general application. They are norms created by the Community. They are used extensively in relation to agriculture. As

they are directly applicable they are part of national domestic law automatically: see Variola SPA v. Amministrazione

Italiana delle Finanze (Case 34/73) [1973] E.C.R. 981 at p. 990….Regulations, being part of domestic law of the State,

may be treated as instruments setting out policies and principles for subordinate legislation. If the principles and policies

are set out in the Community Regulations then there may be no role for the national parliament to determine principles

and policies. If the principles and policies are established in law in the State, albeit in Community regulations rather than

domestic legislation, then it is open to the first respondent to make the required and technically detailed statutory

instruments.”

63. In the above-quoted text one sees Denham J., in dealing with an Article 15 argument, viewing a European Union regulation as akin

to a piece of national legislation. That analogy also holds good in the within case – and in circumstances where the PCI Regulation did

not in fact require detailed implementing measures because it is itself prescriptive, nothing further, it seems to the court, was required

other than the designation by way of administrative act.

64. (4) The court notes too the following observations of Fennelly J. in his judgment in Maher, at 249:

“Community regulations are directly applicable, in that their entry into force and their application are "independent of

any measure adopting [them] into national law." ( Zerbone v. Amministrazione delle Finanze dello Stato (Case 94/77)

[1978] E.C.R. 99, para. 23.) As Denham J. explains in different words, they do not require any national act of

implementation for their binding effect. Indeed, where they are, in their own terms, capable of being directly applied, it

has been said that:- "Member States must not adopt or allow national institutions with a legislative power to adopt a

measure by which the Community nature of a legal rule and the consequences which arise from it are concealed."

…Where, however, as frequently happens, especially in the case of a common organisation of the market, regulations, in

addition to being directly applicable, allow member states discretion in their implementation, some national act of

implementation or transposition will be required.”

65. Simply put, what flows from the foregoing is that it is a question of fact and degree in respect of any individual European Union

regulation, as to whether or not implementing measures are required. Here, in circumstances where the PCI Regulation did not in fact

require detailed implementing measures because it is itself prescriptive, nothing further, it seems to the court, was required other than

the designation by way of administrative act.

66. (5) Turning to the text of the PCI Regulation, one can see the very limited effect of the impugned designation process. So, for

example, Article 7(1), (2) and (8) of the PCI Regulation provide as follows, under the heading “‘Priority status’ of projects of common

interest”:

“1. The adoption of the Union list shall establish, for the purposes of any decisions issued in the permit granting process,

the necessity of these projects from an energy policy perspective, without prejudice to the exact location, routing or

technology of the project.[1]

[[1] Under Article 3 of the PCI Regulation, inter alia, the European Commission is empowered to adopt delegated acts in

accordance with Art.16 of the Regulation that establish a Union list of projects of common interest, the characteristics of

which projects include that the project is of a particular significance in the energy realm and involves at least two

member states by directly crossing the border of two or more member states.]

2. For the purpose of ensuring efficient administrative processing of the application files related to projects of common

interest, project promoters and all authorities concerned shall ensure that the most rapid treatment legally possible is

given to these files.

…

8. With regard to the environmental impacts addressed in Article 6(4) of [the Habitats] Directive 92/43/EEC and Article

4(7) of Directive 2000/60/EC, projects of common interest shall be considered as being of public interest from an energy

policy perspective, and may be considered as being of overriding public interest, provided that all the conditions set out

in these Directives are fulfilled.

Should the opinion of the Commission be required in accordance with Directive 92/43/EEC, the Commission and the

competent authority referred to in Article 9 of this Regulation shall ensure that the decision with regard to the overriding

public interest of a project is taken within the time limit pursuant to Article 10(1) of this Regulation.”

67. It is clear from Art. 7(1) that the effect of designation is relatively limited: it simply establishes “the necessity of…projects from

an energy policy perspective, without prejudice to the exact location, routing or technology of the project” So all of those ‘without

prejudice’ issues are, to use a colloquialism, ‘up for grabs’, i.e. they are not predetermined in any way by, inter alia, the fact that that

An Bord Pleanála is acting as a competent authority.

68. As to Art. 7(2), perhaps two aspects of that provision might usefully be noted. First, the desired-for rapidity is subject to what is

legally possible. So this is not a regulation that ‘rides roughshod’ over the ordinary processing of these applications: it merely requires

that applications are to be given some level of swiftness of despatch. Second, Art.7(2) requires that “all authorities concerned shall

ensure…the most rapid treatment legally possible”. And that is important, because it applies not only to the competent authority as

designated, it applies to other consent authorities – and while there are none other in this case, in other cases, such as for example

in a gas infrastructure development, there would be a clutch of them.

69. As to Art. 7(8), Article 6(4) of the Habitats Directive only comes into play after a screening assessment (and, if required, an

appropriate assessment) has been undertaken pursuant to Article 6(3) of the Habitats Directive. So all has to be done in the ordinary

way: the consent authority must carry out its functions in the ordinary way; An Bord Pleanála must carry out its Habitats Directive

assessment; and nought in this regard is affected by the provisions of the PCI Regulation. The PCI Regulation in this regard only

comes into play if the consent authority decides that a project does adversely affect the integrity of the site. But on the facts of this

case, An Bord Pleanála decided that there was no adverse effect on the integrity of the site.

70. (6) Continuing with its consideration of the PCI Regulation, the court turns next to Art. 8 of same, in particular Art. 8(1) and (3),

which provide as follows under the heading “Organisation of the permit granting process”:

“1. By 16 November 2013, each Member State shall designate one national competent authority which shall be

responsible for facilitating and coordinating the permit granting process for projects of common interest.

…

3. Without prejudice to relevant requirements under international and Union law, the competent authority shall take

actions to facilitate the issuing of the comprehensive decision. The comprehensive decision shall be issued within the

time limit referred to in Article 10(1) and (2) and according to one of the following schemes:

(a) integrated scheme: the comprehensive decision shall be issued by the competent authority and shall be the sole

legally binding decision resulting from the statutory permit granting procedure. Where other authorities are concerned

by the project, they may, in accordance with national law, give their opinion as input to the procedure, which shall be

taken into account by the competent authority;

(b) coordinated scheme: the comprehensive decision comprises multiple individual legally binding decisions issued by

several authorities concerned, which shall be coordinated by the competent authority. The competent authority may

establish a working group where all concerned authorities are represented in order to draw up a permit granting

schedule in accordance with Article 10(4)(b), and to monitor and coordinate its implementation. The competent

authority shall, in consultation with the other authorities concerned, where applicable in accordance with national law,

and without prejudice to time limits set in accordance with Article 10, establish on a case-by-case basis a reasonable

time limit within which the individual decisions shall be issued. The competent authority may take an individual decision

on behalf of another national authority concerned, if the decision by that authority is not delivered within the time limit

and if the delay cannot be adequately justified; or, where provided under national law, and to the extent that this is

compatible with Union law, the competent authority may consider that another national authority concerned has either

given its approval or refusal for the project if the decision by that authority is not delivered within the time limit. Where

provided under national law, the competent authority may disregard an individual decision of another national authority

concerned if it considers that the decision is not sufficiently substantiated with regard to the underlying evidence

presented by the national authority concerned; when doing so, the competent authority shall ensure that the relevant

requirements under international and Union law are respected and shall duly justify its decision;

(c) collaborative scheme: the comprehensive decision shall be coordinated by the competent authority. The competent

authority shall, in consultation with the other authorities concerned, where applicable in accordance with national law,

and without prejudice to time limits set in accordance with Article 10, establish on a case-by-case basis a reasonable

time limit within which the individual decisions shall be issued. It shall monitor compliance with the time limits by the

authorities concerned.

If an individual decision by an authority concerned is not expected to be delivered within the time limit, that authority

shall inform the competent authority without delay and include a justification for the delay. Subsequently, the

competent authority shall reset the time limit within which that individual decision shall be issued, whilst still complying

with the overall time limits set in accordance with Article 10.

Acknowledging the national specificities in planning and permit granting processes, Member States may choose among

the three schemes referred to in points (a), (b) and (c) of the first subparagraph to facilitate and coordinate their

procedures and shall opt to implement the most effective scheme. Where a Member State chooses the collaborative

scheme, it shall inform the Commission of its reasons therefor. The Commission shall undertake an evaluation of the

effectiveness of the schemes in the report referred to in Article 17.”

71. Perhaps three observations flow from the above-quoted text:

(i) Art. 8(1) is clearly directly applicable: it is the provision that allows and allowed the designation of An Bord Pleanála

without any further legislative measure being required. It is akin to an Act of the Oireachtas for this purpose, and it is

open for the competent authority to be designated: nothing further is required other than an administrative step.

(ii) of the three schemes identified in Art. 8(3), viz. the integrated scheme, the coordinated scheme and the collaborative

scheme, the integrated and coordinated schemes are far more invasive. Under the collaborative scheme there is a much

less invasive role for the competent authority; it effectively cajoles the other consent authorities to meet time limits and,

if necessary, re-sets those time limits.

(iii) by virtue of the final (“Acknowledging…Article 17”) sub-paragraph, if a member state elects to go for the collaborative

scheme, a rationale for that election must be provided to the European Commission. Notably, in the letter of designation

of 4th December 2013 (considered later below) the explanation given as to why Ireland has chosen the collaborative

scheme is the, frankly laudable, desire to preserve the independence other consent authorities. In other words, Ireland

has deliberately chosen the system which best ensures independence and that each of the individual consent authorities

gets to have its say in relation to the matter. And that matters should be so reinforces the point that the competent

authority’s role is very limited in the Irish context, being essentially a co-ordinating role.

72. (7) Turning next to Arts. 9 and 10 of the PCI Regulation (and it makes sense to consider them in reverse), Art.10 introduces a

two-stage permit-granting process which operates subject to particular time limits, providing, inter alia, as follows, under the heading

“Duration and implementation of the permit granting process”:

“1. The permit granting process shall consist of two procedures:

(a) The pre-application procedure, covering the period between the start of the permit granting process and the

acceptance of the submitted application file by the competent authority, shall take place within an indicative period of

two years.

This procedure shall include the preparation of any environmental reports to be prepared by the project promoters.

For the purpose of establishing the start of the permit granting process, the project promoters shall notify the project

to the competent authority of the Member States concerned in written form, and shall include a reasonably detailed

outline of the project. No later than three months following the receipt of the notification, the competent authority shall,

including on behalf of other authorities concerned, acknowledge or, if it considers the project as not mature enough to

enter the permit granting process, reject the notification in written form. In the event of a rejection, the competent

authority shall justify its decision, including on behalf of other authorities concerned. The date of signature of the

acknowledgement of the notification by the competent authority shall serve as the start of the permit granting process.

Where two or more Member States are concerned, the date of the acceptance of the last notification by the competent

authority concerned shall serve as the date of the start of the permit granting process.

(b) The statutory permit granting procedure, covering the period from the date of acceptance of the submitted

application file until the comprehensive decision is taken, shall not exceed one year and six months. Member States may

set an earlier date for the time-limit, if considered appropriate.”

73. What is perhaps most significant about Art. 10, at least in the context of the within application, is that Art.10(1)(b) preserves

existing statutory permit-granting procedures in the member states, being in this case the classic SID procedure. What is new is the

pre-application procedure. What is comprised in that pre-application procedure is set out in Art. 9 which makes due obeisance to the

demos, containing lengthy provision as regards public consultation/participation and general transparency of process – and there is

not, and could be on the facts of this case, any complaint that An Bord Pleanála did not ensure public participation. There is,

however, a not unrelated contention that An Bord Pleanála, as competent authority, is required to promote the North-South

Interconnector Project and that this in some way has given rise to bias on the part of the An Bord Pleanála. But a close consideration

of Art. 9 shows this contention, with respect, to be both unfounded and wrong. Thus Article 9(4) provides as follows:

“At least one public consultation shall be carried out by the project promoter, or, where required by national law, by the

competent authority, before submission of the final and complete application file to the competent authority pursuant to

Article 10(1)(a). This shall be without prejudice to any public consultation to be carried out after submission of the

request for development consent according to Article 6(2) of Directive 2011/92/EU. The public consultation shall inform

stakeholders referred to in Annex VI.3(a) about the project at an early stage and shall help to identify the most suitable

location or trajectory and the relevant issues to be addressed in the application file. The minimum requirements

applicable to this public consultation are specified in Annex VI.5. The project promoter shall prepare a report

summarising the results of activities related to the participation of the public prior to the submission of the application

file, including those activities that took place before the start of the permit granting process. The project promoter shall

submit that report together with the application file to the competent authority. Due account shall be taken of these

results in the comprehensive decision.”

74. Shortly put, Art.9(4) requires public consultation to be carried out by the promoter or competent authority before the submission

of the application file. Thereafter, the project promoter must prepare a report summarising the results of activities related to the

participation of the public prior to the submission of the application file, including those activities that took place before the start of

the permit-granting process. This report must then be submitted together with the application file to the competent authority, with

due account to be taken of the said results in the comprehensive decision. If one turns then to Annex VI, as referenced in the above-

quoted text, one finds at para. 3(a), under the general heading “Guidelines for Transparency and Public Participation” the following

provision:

“(3) To increase public participation in the permit granting process and ensure in advance information and dialogue with

the public, the following principles shall be applied:

(a) The stakeholders affected by a project of common interest, including relevant national, regional and local

authorities, landowners and citizens living in the vicinity of the project, the general public and their associations,

organisations or groups, shall be extensively informed and consulted at an early stage, when potential concerns by

the public can still be taken into account and in an open and transparent manner. Where relevant, the competent

authority shall actively support the activities undertaken by the project promoter.”

75. Any suggestion, and there is suggestion, in the applicants’ submissions that the word “activities” in the last line of the above-

quoted text must be read as requiring a competent authority actively to support a project is, with respect, incorrect: the activities

being referred to there are the activities referenced in Article 9(4) and they are the public participation activities. So through Art.

9(4) and Annex VI, para. 3(a) a competent authority is being required ‘merely’ to make sure that public participation is effective, e.g.,

by making documents available on its website. In no sense is a competent authority being required to promote or support a project.

76. (8) Turning next to the letter of designation of 4th December, 2013, that issued to An Bord Pleanála from the Assistant Secretary

General of what was then the Department of Communications, Energy and Natural Resources and is now the Department of

Communications, Climate Action and the Environment, the substantive portion of which reads as follows under the heading

“Designation of Competent Authority under EU Regulation 347/2013 on Guidelines for trans-European Energy Infrastructure”:

“I am writing to you in the context of the above-mentioned Regulation, concerning guidelines for the assessment,

approval and permitting of cross-border energy infrastructure projects. As you may be aware, one of its requirements is

the designation by Member States of a Competent Authority to oversee the permit granting process for these projects,

known as projects of common interest (PCIs). Specifically, Article 8.1 of the Regulation provides that each Member State

should designate a Competent Authority to facilitate and co-ordinate the permit granting process for PCIs. The purpose

of this letter is to inform you that, following discussions with the Department of Environment, Community and Local

Government, An Bord Pleanála is hereby designated as Competent Authority for the purposes of the Regulation. I am

aware from discussions with officials from that Department that the Board is prepared to undertake the role.

You may also be aware of the other provisions in Article 8 of the Regulation which provide for a number of options that a

Member State can take in relation to the decision-making process as regards the issuing of consents. Included in these

options is the ‘collaborative scheme’….Under this option, the Competent Authority would co-ordinate decisions in respect

of the relevant consents, which would be left to the existing bodies or bodies with the requisite technical expertise. Both

Departments and the Board kept in close contact during the negotiations with the advice and insights from officials of

the Department of Environment, Community and Local Government and from the Board being very helpful in that

process. During those discussions the strong view emerged that such an approach is the most workable for Ireland in

terms of maintaining the effectiveness of the existing domestic legislation; both Departments agreed that the

‘collaborative scheme’ would prove the most workable for Ireland in that it allowed the State to retain the existing

balance it has between the different permitting authorities, while respecting the statutory independence they each

have. It is on that basis that this Department is designating An Bord Pleanála as Competent Authority.

With the enactment of the Planning and Development (Strategic Infrastructure) Act 2006 (SIA Act), it is clear that many

of the requirements for streamlined planning and permitting processes under the Regulation are already in place.

However, it would be useful to hold a meeting of officials from this Department, from the Department of Environment,

Community and Local Government and from An Bord Pleanála to discuss any additional legislative or administrative

arrangements that need to be put in place….

The PCI projects relevant to Ireland that are now agreed at European level have the potential to make a very significant

contribution to Ireland’s energy infrastructure, security of supply and competitiveness; I very much welcome An Bord

Pleanála’s designation as Competent Authority, given your experience, trustworthiness and effectiveness when

interfacing with all stakeholders. I can assure you of the full support and co-operation of this Department and the

Commission for Energy Regulation to ensure the successful operation of the PCI process in Ireland.

Yours sincerely…

cc. [Name]…Department of Environment, Community and Local Government

[Name], European Commission

[Name], Commission for Energy Regulation”.

77. There are a number of points to note about this letter:

(i) in designating An Bord Pleanála the letter complies fully with Art. 8(1) of the PCI Regulation.

(ii) the letter is copied to the European Commission, thereby discharging the obligation under Art. 8 of the PCI Regulation

for a member state to give reasons if it opts for the collaborative scheme.

(iii) the reasons aforesaid, as mentioned previously, are precisely related to ensuring the independence of the decision-

making authorities.

(iv) it will be recalled that under Art. 8(1) designation of a national competent authority was required to be done by 16th

November, 2013, whereas the above-quoted letter of designation issued on 4th December, 2013. However, two points

might be made in this regard. The first is that too often in litigation one or more parties comes to court pointing to some

contended-for deficiency in process and suggests that as a consequence of that deficiency the ‘house of cards’

constructed on same must of necessity collapse. But houses can stand on imperfect foundations: law is an instrument of

government, and government is ever an exercise in the practicable, not in perfection; a failure to do something strictly as

required by law may not have any practical consequence. The second point is that a legal requirement to do something

need not evaporate because the required is not in fact done by a prescribed date. Of course, legislation can provide to

the contrary, but here it does not: the duty to designate contained in Art.8(1) subsisted beyond 16th November, 2013,

and was satisfied by Ireland on 4th December, 2013.

(v) the applicants contend that the designation of An Bord Pleanála as a competent authority and that its role as such

ought to have been done by way of primary or secondary legislation. The court admits that it harboured some initial doubt

as to whether the principle of legal certainty (the principle that the law must provide those subject to it with the ability

to regulate their conduct – a central tenet of any system based on the rule of law) could be satisfied where designation

took place by private letter. And, in passing, the court respectfully does not accept the contention by counsel for the

second-named respondent that had designation taken place by way of legislation this would necessarily have contravened

the principle identified, inter alia, in Variola whereby the Community nature of a legal rule must not be concealed from

those subject to it: Variola was concerned with the effective replication of Community provisions in the domestic context;

the unvarnished designation of a competent authority consequent upon European Union regulation, so as to do what such

regulation expressly requires, is but the plain and simple discharge of a European law obligation, nothing more. Indeed, it is

notable in this regard that Malta, the only other member state to designate its planning authority as the competent

authority in that jurisdiction for the purposes of the PCI Regulation, did so by way of secondary legislation, viz. the

Environment and Development Planning Act (Amendment No. 2) Order 2014 (L.N. No. 362 of 2014) and nobody before the

court has suggested that Malta is somehow in breach of European Union law in this regard – not that the court is

competent, or would presume, to make any adjudication, or comment, upon such a suggested breach in any event. But,

on reflection, it seems to the court that there must be and is a point at which the necessity for legislation may properly

end and continuation by administrative mechanism may properly commence. That point, it seems to the court, was

reached in the within context with the adoption of the PCI Regulation. What An Bord Pleanála has to do as competent

authority is laid out in black-and-white in that regulation, especially Art.9 of same, there is no need to supplement that

with domestic legislation (and to replicate in domestic law the provisions of, e.g., Art.9, would, as stated, have placed

Ireland in breach of Variola).

As to the act of designation simpliciter, the court accepts the analogy advanced by counsel for the second-named

respondent, and touched upon previously above, that here one is down to something akin to the designation of those

‘authorised officers’ whose appointment is so often contemplated by domestic legislation and who often have extensive

powers, yet whose designation can quite properly take place other than by way of primary or secondary legislation. Nor

does the court see any constitutional basis for the contention made as to the need for primary or secondary legislation:

such a contention is not supported by Art. 15, this is not a case where legislation is required, the PCI Regulation is

directly applicable, it gives the Minister (acting for the Government and consistent with Article 28 of the Constitution) the

power to designate, such designation has been effected and that is an end of matters. And, returning to Maher, so far as

any independence from the principles and policies of the PCI Regulation is contended, if it is contended, to present in

what the State has done as regards designation of An Bord Pleanála as a national competent authority under the PCI

Regulation, the court sees none.

78. (9) There is some suggestion made by the applicants that the Minister for Communications, Climate Change and Environment is

not the correct Minister to make the designation. In this they are, with respect, wrong. Tracing the authority of the present minister

and department back to the Ministers and Secretaries Act 1924 involves a somewhat byzantine trek through a myriad of primary and

secondary legislation but, having regard to the legislative stepping-stones that take one through that journey (as identified below),

there can be no doubt but that the correct minister has designated An Bord Pleanála as the national competent authority for the

purposes of the PCI Regulation:

Ministers and Secretaries Act 1924

Establishes the Department of Industry and Commerce with responsibility for the administration and business generally of

public services in connection with trade, commerce, industry, and labour, industrial and commercial organisations and

combinations, industrial and commercial statistics, transport, shipping, natural resources, and all powers, duties and

functions connected with the same, including the promotion of trade and commerce by means of educational grants,

including in particular the business, powers, duties and functions of the branches and officers of the public services

specified in the Sixth Part of the Schedule to the Act of 1924, and of which Department the head is stated to be the

Minister for Industry and Commerce. (The Sixth Schedule includes the Electricity Commissioners).

Ministers and Secretaries (Amendment) Act 1959

Establishes the Department of Transport and Power.

Transport, Fuel and Power (Transfer of Departmental Administration and Ministerial Functions) Order, 1959

(S.I. No. 125/1959)

Transfers from the Department of Industry and Commerce to the Department of Transport and Power the administration

and business in connection with the exercise, performance or execution of the functions under various Acts, including

Acts in relation to electricity, gas, turf and oil. The functions of the Minister for Industry and Commerce under these Acts

are transferred to the Minister for Transport and Power.

Energy (Transfer of Departmental Administration and Ministerial Functions) Order, 1977

(S.I. No. 295 of 1977)

Transfers from the Minister for Transport and Power to the Department of Industry and Commerce the administration and

business in connection with the exercise, performance or execution of functions under various Acts, including Acts in

relation to electricity, gas and turf. The functions of the Minister for Transport and Power under the said Acts are also

transferred to the Minister for Industry and Commerce.

Industry and Commerce (Alteration of Name of Department and Title of Minister) Order, 1977

(S.I. No. 306 of 1977)

Alters: the name of the Department of Industry, Commerce and Tourism to that of the Department of Industry, Commerce

and Energy; the title of the Minister for Industry and Commerce to Minister for Industry, Commerce and Energy.

Energy (Transfer of Departmental Administration and Ministerial Functions) Order, 1980

(S.I. No. 9 of 1980)

Transfers from the Department of Industry, Commerce and Energy to the Department of Energy, the administration and

business in connection with the exercise, performance or execution of functions under various Acts, including Acts in

relation to electricity, gas and turf. The functions vested in the Minister for Industry, Commerce and Energy are

transferred to the Minister for Energy.

Energy (Transfer of Departmental Administration and Ministerial Functions) (No. 2) Order, 1993

(S.I. No. 12 of 1993)

Transfers from the Department of Energy to the Department of Tourism, Transport and Comunications the administration

and business in connection with the exercise, performance or execution of functions under various Acts, including Acts in

relation to electricity, gas and turf. The functions vested in the Minister for Energy are transferred to the Minister for

Tourism, Transport and Communications.

Tourism, Transport and Communications (Alteration of Name of Department and Title of Minister) Order, 1993

(S.I. No. 17 of 1993)

Alters: the name of the Department of Tourism, Transport and Communications to that of the Department of Transport,

Energy and Communications; the title of the Minister of Tourism, Transport and Communications to that of the Minister for

Transport, Energy and Communications.

Communications, Energy and Geological Survey of Ireland (Transfer of Departmental Administration and Ministerial

Functions) Order 2002

(S.I. No. 300 of 2002)

Transfers from the Department of Public Enterprise to the Department of Marine and Natural Resources the administration

and business in connection with the exercise, performance or execution of functions under various Acts, including Acts in

relation to electricity, gas and turf. The functions vested in the Minister for Public Enterprise are transferred to the

Minister for the Marine and Natural Resources.

Marine and Natural Resources (Alteration of Name of Department and Title of Minister) Order 2002

(S.I. No. 307 of 2002)

Alters: the name of the Department of Marine and Natural Resources to that of the Department of Communications,

Marine and Natural Resources; the title of the Minister of Marine and Natural Resources to that of the Minister for

Communications, Marine and Natural Resources.

Communications, Marine and Natural Resources (Alteration of Name of Department and Title of Minister) Order 2007

(S.I. No. 706 of 2007)

Alters: the name of the Department of Communications, Marine and Natural Resources to that of the Department of

Communications, Energy and Natural Resources; the title of the Minister for Communications, Marine and Natural

Resources to that of the Minister of Communications, Energy and Natural Resources.

Communications, Energy and Natural Resources (Alteration of Name of Department and Title of Minister) Order 2016

(S.I. No. 421 of 2016)

Alters: the name of the Department of Communications, Energy and Natural Resources to that of the Department of

Communications, Climate Action and Environment; the title of the Minister for Communications, Energy and Natural

Resources to that of the Minister for Communications, Climate Action and Environment.

79. The applicants complain that the designation of An Bord Pleanála was effected by a letter from a senior civil servant (the letter of

4th December, 2013) , without any evidence as to the status or nature of the decision and, per the applicants’ written submissions,

“[p]resumably (though this is not clear), on the application of the Carltona principle” (so-called after the decision of the Court of

Appeal of England and Wales in Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560, which, though devised by reference to

the exigencies of wartime conditions, is now perceived as having recognised as a practical reality of modern government that it would

be unworkable that a minister, as political head of a government department could personally take every decision given by law to that

minister).

80. The suggestion that there is any deficiency from a Carltona perspective with the manner in which An Bord Pleanála was

designated as a competent authority in the circumstances at issue in the within application is not well-founded and is perhaps best

addressed by reference to the relatively recent decision of the Supreme Court in W.T. v. Minister for Justice and Equality [2015] IESC

73. That case was concerned with an issue which had for some time troubled judges tasked with working on the Immigration List,

specifically whether a deportation order under s.3 of the Immigration Act of 1999 had to be signed individually by the Minister. The

Supreme Court found that this was not a requirement of the Act of 1999. In his judgment, MacMenamin J., at para. 1, identifies, in

the following terms, the substance of the Carltona principle:

“It is now well recognised in the law that each minister must both bear political responsibility to the Dáil, and legal

responsibility in the courts, for actions taken by their own departments. In law, ministers are regarded as being one and

the same as the government departments of which they are the political heads. Conversely, departmental officials act

in the name of the minister. In making administrative decisions, therefore, discretion is conferred on a minister, not

simply as an individual, but rather as the person who holds office as head of a government department, which

collectively holds a high degree of collective corporate knowledge and experience, all of which is imputed to the political

head of the department. Frequently a minister’s officials will prepare documents for consideration, consider objections,

summarise memoranda, and outline a policy approach to be taken by the Minister as an integral part of the decision-

making process. Part of this arrangement, identified as the eponymous Carltona principle, is that the functions entrusted

to departmental officials are performed at an appropriate level of seniority, and within the scope of responsibility of their

government department. No express act of delegation is necessary. When the principle became a recognised part of

Irish law, it was characterised as being a ‘common law constitutional power’ (see Carltona Ltd v Commissioners of Public

Works [1943] 2 All E.R. 560; Bushell v Secretary for State for the Environment [1981] A.C. 75; R. v Home Secretary, ex

p.Oladehinde [1991] 1 A.C. 254 at 282 approved by Hamilton C.J. in Tang v Minister for Justice [1996] 2 I.L.R.M. 46 and

in Devanney v Minister for Justice [1998] 1 I.R. 230; [1998] 1 I.L.R.M. 81). The constitutional origins of the power

derived from the executive power of the State, identified, inter alia, in Art.28 of the Constitution”,

and then concludes as follows, at para. 39, as to the issues raised before the court:

“I am not persuaded that the appellants have succeeded in demonstrating that the decision-making power in question

has been negatived, confined, or restricted by express statutory provision, or by clear necessary implication. The

statute of 1999 simply does not allow for such an interpretation. It is true that the Carltona doctrine can sometimes be

criticised as imposing an exception of uncertain scope to what is sometimes called the rule against ‘sub-delegation’. But

what is in question in this appeal is clearly devolved power to an official, rather than delegation per se. Effectively, the

principle is that departmental officials are the alter-ego of the Minister and their decisions are, legally and

constitutionally, the Minister’s acts and decisions. The decisions here cannot be impugned on the basis of the case

made. But this is not to ignore the principle of vires. I would dismiss the appeal therefore.”

81. Likewise in the within case, what the applicants have sought to impugn, as somehow inconsistent with the Carltona principle,

devolved power exercised by a very senior official (an Assistant Secretary General). The court respectfully does not see any

deficiency to arise in this regard.

VII. Bias

82. So far as the applicants’ allegation of bias against An Bord Pleanála is concerned, the court understands that what is contended

for is what might be styled a ‘pre-determination’ argument, i.e. that An Bord Pleanála as competent authority has some bias in favour

of the North-South Interconnector proceeding. Such a contention is not borne out by what is required under the PCI Regulation. The

regulation involves, in effect, a form of case management and a form of public participation, and there is no criticism made of the

public participation dimension of the application process that EirGrid underwent. The proposition that a body whose function it is to

facilitate the efficient disposition of planning applications or any other sort of applications is, by reason of exercising that function,

disabled from dispassionately deciding upon the application is, with respect, unusual. The court has been referred, inter alia, in this

regard, to the decision of the Supreme Court in Reid v. IDA [2015] IESC 82. One of the many interesting aspects of McKechnie J.’s

judgment in that case is his recitation in the context of his consideration under the heading “The Bias Argument”, at para. 78, of the

information of which he considered the notional reasonable person or “observer” would stand possessed. It is instructive to

undertake, in the context of the case now presenting, a like analysis of what information the notional reasonable person would stand

possessed. It seems to the court that that information would comprise, at the least, that: (i) contrary to what the applicants have

contended, An Bord Pleanála is not the promoter of the project; (ii) EirGrid is the promoter; (iii) An Bord Pleanála’s role as competent

authority is effectively administrative; (iv) within An Bord Pleanála its competent authoritity-related functions are discharged by a

separate unit; and (v) the object of the PCI Regulation is to expedite the consent process (something which is surely in the interests

of all stakeholders).

83. In the context of bias, the court has been referred to the decision of Callaghan v. An Bord Pleanála [2015] IEHC 357. The

statutory focus of that case was the Planning and Development (Strategic Infrastructure) Act 2006, under which applications in

respect of strategic infrastructure development may be made directly to An Bord Pleanála. Before An Bord Pleanála can accept such

applications, it must, under s.37A(2) of the Act of 2006, be satisfied as to certain matters, viz. that the development (i) would be of

strategic economic or social importance to the State or the region in which it is situate, (ii) would contribute substantially to the

fulfilment of any of the objectives in the National Spatial Strategy or in any regional planning guidelines in force in respect of the

area/s in which it would be situate, and (iii) would have a significant effect on the area of more than one planning authority. So what

happens in practice is that application is made to An Bord Pleanála, with that part of the process being essentially a bilateral process,

i.e. it occurs between the developer and An Bord Pleanála, with the public having no opportunity to make submissions at that stage of

the process. If An Bord Pleanála forms the opinion that a proposed development satisfies the criteria aforesaid, it will admit it into the

Strategic Infrastructure Development (or ‘SID’ process) and then progress it accordingly. Among the many different arguments made

in Callaghan was an argument that in addressing its mind to the factors aforesaid for the purposes of admission to the SID process,

the Board was prejudging part of the elements of the final application and the reason why that was stated to be the case, inter alia,

was because s.143 of the Act of 2006 requires that:

“The Board shall, in performing its functions, have regard to:-

(a) the policies and objectives for the time being of the Government, a State authority, the Minister, planning

authorities, and any other body which is a public authority whose functions have, or may have, a bearing on the proper

planning and sustainable development of cities, towns or other areas, whether urban or rural,

(b) the national interest and any effect the performance of the Board’s functions may have on issues of strategic

economic or social importance to the State, and

(c) the National Spatial Strategy and any regional planning guidelines for the time being in force.”

84. There is an echo in the just-quoted text of the matters (mentioned previously above) that An Bord Pleanála has to consider at

the ‘admission to SID’ stage. So one of the arguments advanced in Callaghan was that because An Bord Pleanála had received this

information ex parte, without any opportunity for the public to be involved, and had adopted a view for the purposes of admission,

when it then came to look at, inter alia, those factors for the purposes of determining the substantive planning application, it had

effectively prejudged part of the considerations of proper planning and sustainable development. That argument was rejected by

Costello J., who states as follows, at para.75 of her judgment:

“It is argued that it necessarily follows, either as a matter of fact or perception, that the Board predetermines the issue

as to whether or not the proposed development is of strategic economic or social importance in the State before the

application for planning permission is submitted. In my opinion, this falls very short of the position in Tomlinson.

[Brief consideration of the just-mentioned case ensues. Then Costello J. continues as follows.]

…In my opinion, the cases of Dublin And County Broadcasting Limited v. Independent Radio and Television Commission

(Unreported, High Court, Murphy J., 12th May, 1989) and Spin Communications Ltd v. Independent Radio and Television

Commission [2000] IEHC 128 are of more relevance. The test there established is that the question of bias must be

determined on the basis of what a right-minded person would think of the real likelihood of prejudice and not on the basis

of a suspicion that might dwell in the minds of a person who is ill-informed and who did not seek to direct his mind

properly to the facts. Applying this test, it cannot be said that such a reasonable well-informed person would reach the

conclusion that the board was biased and had predetermined the planning consent application on the basis of the Section

37(B) opinion….

In this case, the Board's decision pursuant to Section 37(B) is not determinative of socio-economic aspects of the

application for planning permission and the decision it has to make pursuant to Section 37(G) [that being the decision on

the substantive application]. The Board will re-visit some of the material which it considered in the context of Section

37(B) when reaching the different decision required of it pursuant to s.37(G) [i.e. to grant or refuse]. In addition, of

course, at this stage, the Applicant and others will have had full opportunity to present such information or arguments

to the Board in relation to this aspect and other aspects of the application as they see fit. This applies in all applications

under the scheme. These matters must be considered by the Board when exercising its discretion in respect of the

application for permission. In those circumstances, I do not accept that it can fairly be argued that every case which

goes before the Board pursuant to the statutory scheme must appear tainted by bias and pre-determination. As the

applicant’s case is based on the statutory scheme and not on any particular facts, I am not persuaded by this

argument.”

85. Notably, Costello J. does not, in the just-quoted text, require applicants to put their faith blindly in the inherent or natural

goodness of public administration. She merely points to the fact that the scheme as constructed by statute does not yield the

necessary conclusion that “that every case which goes before the Board pursuant to the statutory scheme…[is] tainted by bias and

pre-determination”. If, of course, an applicant can establish “particular facts” which do show a contended-for prejudice to arise then

the possibility presents that they will receive discretionary relief pursuant to any ensuing judicial review application.

86. Applying the decision in Callaghan to the facts at hand, in that earlier case An Bord Pleanála had to form at least a preliminary ex

parte view on matters which were relevant to the ultimate grant or refusal of permission. Yet that dual role, on the facts presenting

before Costello J. was not sufficient to lead to a reasonable apprehension of bias. The facts of the case before this Court seem even

weaker than those at issue in Callaghan because at the competent authority stage of the process, An Bord Pleanála looks at no

matters of substance and no matters of procedure turn upon the fact that there even was a competent authority PCI process prior to

the permit in this case.

87. The applicants’ case, so far as bias is concerned, ‘boils down’ to the following issue: does the fact that An Bord Pleanála, as

competent authority, has a coordinating role (whereby effectively it tries to keep other consent authorities, if there are other

consent authorities on track in terms of time limits) impinge in some way upon its impartiality? The short answer to that question is

‘no’. There is nothing that An Bord Pleanála is required to do as competent authority that in any way directs it to grant planning

approval for the North-South Interconnector project. It is simply required to ensure that there is an outcome one way or the other

within the timeframes envisaged. That is all that is required. There is nothing in the PCI Regulation that presupposes that An Bord

Pleanála will not duly carry out assessment in terms of the environmental impact assessment, in terms of appropriate assessment, or

in terms of the national law test of proper planning and sustainable development. Even in a more complicated case with a number of

consent authorities, there is a striking limit to what An Bord Pleanála is empowered or able to do. As counsel for the second-named

respondent colourfully put it in the course of argument, in that multi-party situation “all that An Bord Pleanála can do is effectively

herd cats”. In other words An Bord Pleanála can attempt, to use a colloquialism, to ‘put some order’ on the other consent authorities;

however, it cannot sanction them, it cannot make their decisions for them, and it cannot overrule their decisions. There is nothing in

any of the foregoing or in the evidence before the court which suggests that either generally or on the facts of the case at hand, An

Bord Pleanála can promote or has been promoting the North-South Interconnector project. In truth, notwithstanding the vigour with

which the allegation of bias was contended for, it is striking that the court was never pointed to a particular provision of the PCI

Regulation which creates the inevitable conflict posited to arise…and with good reason, for there is no such provision. Viewed as

aforesaid, viewed through the prism of what the reasonable observer knows, it seems to the court that the claim of objective bias

must and does fail.

VIII. What if the Court is wrong?

(i) Overview.

88. What if the court is wrong and the designation of An Bord Pleanála as competent authority ought, whether by virtue of the

principle of legal certainty or otherwise, to have been effected by way of primary or secondary legislation? The court does not

consider that it is wrong in this regard; however, if it is, the proper legal conclusion is not that everything that An Bord Pleanála has

done vis-à-vis EirGrid’s application collapses for want of validity, with the court having to press a notional re-set button that will cast

everyone involved in the within matter back to the beginning of what has already been a long and challenging process. Rather it

seems to the court that the circumstances identified at (ii) below and the consequences identified at (iii) would then present.

(ii) Issuance of Consent pursuant to s.182B.

89. If it is the case (which the court does not accept) that An Bord Pleanála’s appointment as competent authority under PCI is in

some sense irregular because that designation was not done by way of primary or secondary legislation, what does that mean for the

development consent? The answer to that question is ‘nothing’. The development consent has issued under s.182B and stands on its

own two feet. In this regard it seems to the court to be important to note the terms in which An Bord Pleanála expressed its decision

having regard to the requirements of the PCI Regulation. Thus if one has regard to the Board Order that issued consequent upon the

application, it states as follows, in the “Notes” section, under the heading “Project of Common Interest (PCI) – Regulation (EU) No.

347/2013”:

“The Board acknowledged that the matter of PCI was raised by observers and was referred to in the Inspector’s report.

The Board considered that, even in the absence of PCI status, the need for the project and the need to improve the

quality of energy transmission in the island of Ireland has been clearly established, as set out in the reasons and

considerations.

In reaching the decision in this case the Strategic Infrastructure Division of An Bord Pleanála confined its decision to the

matters pertinent to the SID application and in particular issues arising in respect of Appropriate Assessment,

Environmental Impact Assessment and the consideration of the proper planning and sustainable development. The Board

did not consider that it was conflicted in any way by the separate administrative role fulfilled by An Bord Pleanála as the

Competent Authority for Projects of Common Interest.”

90. In light of the foregoing, it appears to the court, with respect, that there is a significant disconnect between (a) the complaint

that there has been some irregularity in the appointment of the Board as competent authority and (b) the challenge to the planning

decision. The planning decision stands on its own; the Board was entitled (and indeed required) to reach that decision.

(iii) De Facto Designation.

91. Just as the acts of an officer or judge may be held to be valid in law even though her appointment is invalid and in truth she has

no legal power at all, the court considers that in the event (not accepted by the court to present) that primary or secondary

legislation was necessary for a valid designation of An Bord Pleanála as competent authority, the acts of An Bord Pleanála which it

has been sought to impugn in the within proceedings would nonetheless remain extant and lawful. In reaching this conclusion, the

court recalls, inter alia, the decision of the Court of Appeal of England and Wales in Fawdry & Co. v. Murfitt [2002] 3 WLR 1354. That

was a case in which the principal issue was when could a judge who had been assigned to the Technology and Construction Court

(‘TCC’) sit and hear a regular case in the Queen’s Bench decision (of which the TCC is, apparently, a specialist division)? Much of the

judgment is given up to analysing the applicable rules and regulations and is of no interest in the context of the within proceedings.

However, what is of note is that ultimately the Court of Appeal did find that the judge was properly authorised to sit in the regular

division of the Queen’s Bench, with an obiter but still persuasive consideration of the concept and standing of a de facto officer (and

in truth, when it comes to authority that is but persuasive, the standing of particular elements of a judgment as part of the ratio

decidendi or as obiter dicta seems to the court to matter less than would be the case if it were treating with binding precedent:

ultimately persuasive authority is but that, i.e. logic deployed in one context that the court may find persuasive in another context,

and nothing more). In any event, at 1361-2, Lady Justice Hale, as she then was, makes the following observations:

“18…[W]e have heard argument on whether, even if the case had not been validly transferred to the TCC, the judge's

order is valid as the act of a de facto officer. This longstanding doctrine of the common law is summarised thus in Wade

and Forsyth, Administrative Law , 8th edition, at pp 291–292:

‘The acts of an officer or judge may be held to be valid in law even though his own appointment is invalid and in

truth he has no legal power at all. The logic of annulling all his acts has to yield to the desirability of upholding

them where he has acted in the office under a general supposition of his competence to do so.’

19. It was held by Sir Jocelyn Simon P in Adams v Adams [1971] P 188 that despite the lack of modern English authority

applying the doctrine, it was still part of the English common law (and had been overlooked in R v Cronin [1940] 1 All ER

618). He referred to 'two masterly judgments of great learning', State v Carroll (1871) 38 Conn 448 , in the Supreme

Court of Connecticut, and In re Aldridge (1897) 15 NZLR 361 , in the Court of Appeal of New Zealand, and also to an even

more learned article by Sir Owen Dixon, later Chief Justice of Australia, 'De Facto Officers' (first published in Res

Judicatae, Melbourne, 1938, reproduced in S Woinarski, ed., Jesting Pilate, 1965).

20.Sir Owen explains that the doctrine has its origin in the medieval conception of an office as property, an incorporeal

thing, to which the usual principles of the law of property applied. Thus a person who dispossessed another of his office,

a disseisor, was nevertheless entitled to exercise the authority of that office, unless and until the disseisee exercised his

right of re-entry. Nowadays, the rule is based not on that technicality but on public policy. Sir Owen quotes from Curtis

v Barton (1893) 139 NY 505 , at p 511:

‘When a court of competent jurisdiction is duly established, a suitor who resorts to it for the administration of

justice and the protection of private rights should not be defeated or embarrassed by questions relating to the

title of the judge, who presides in the court, to his office.’

21. Despite its technical rationale in the notion of disseisin, the authorities show that the de facto officer must have

some basis for his assumption of office, variously expressed as 'colourable title' or 'colourable authority'. Quite what

suffices for that purpose has been debated, a particularly broad view being taken in State v Carroll (1871) 38 Conn 448 .

In that case, the elected judge of the city court not being available, the clerk of the court invited a justice of the peace

to act in his place. The report does not reveal whether or not that justice knew that he had no lawful authority to sit.

After an extensive review of the authorities, Butler CJ summarised the circumstances in which the doctrine would apply

thus, at p 427:

‘An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and

justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the

office were exercised, First, without a known appointment or election, but under such circumstances of reputation

or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing

him to be the officer he assumed to be. Second, under color of a known and valid appointment or election, but

where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a

bond, or the like. Third, under color of a known election or appointment, void, because the officer was not eligible,

or because there was a want of power in the electing or appointing body, or by reason of some defect or

irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth, [under

an unconstitutional statute, not relevant here]…’

The first was sufficient to validate the justice's acts.”

92. It seems to the court that (a) the above reasoning can be applied by analogy to the circumstance (not accepted by the court to

arise) that An Bord Pleanála ought to have been designated as competent authority by primary or secondary legislation, (b) in that

non-presenting circumstance the third instance identified by Butler C.J. and referred to above is what would then present, (c) to

borrow from the above-quoted wording of Wade & Forsyth, the logic of annulling all of An Bord Pleanála’s acts as competent authority

would have to yield to the desirability (in the public interest) of upholding them under a general supposition of An Bord Pleanála’s

competence so to act.

93. The court has also been referred in this regard to still another decision of the Court of Appeal of England and Wales, being

Coppard v. Customs and Excise Commissioners (Lord Chancellor intervening) [2003] Q.B. 1428. There, a case was heard by a circuit

judge who knew that he had not been authorised under statute to sit as a judge of the High Court but wrongly believed that he had

authority to sit in the Queen’s Bench Division by virtue of his appointment under statute to sit in the TCC. On appeal, it was held by

the Court of Appeal, inter alia, that (a) the doctrine that acts of a de facto officer were valid in law did not operate to validate the

acts of a person who, though believed by the world to be a judge of a court in which he sat, knew that he was not, (b) a person who

knew he lacked authority included one who shut his eyes to that fact when it was obvious, but not one who had simply neglected to

find out, (c) the judge in this case neither knew not ought to have known that he was not authorised to sit as a judge of the High

Court, (d) therefore, on established principles of common law, the judge was a de facto judge of the High Court and his judgment was

a valid judgment of the High Court.

94. Reasoning akin to that brought to bear by the Court of Appeal in Coppard falls to be applied, by analogy, in the circumstance –

not accepted by the court to arise – that An Bord Pleanála ought to have been designated as competent authority by primary or

secondary legislation. Thus: (a) An Bord Pleanála has hitherto been generally believed to be a validly designated competent authority

and did not know that it was not; (b) An Bord Pleanála has neither shut its eyes to a want of validity in its designation as competent

authority nor neglected to find out – it (rightly) is simply not an issue that has been considered to present; (c) applying established

principles of common law to the analogous circumstance then presenting, An Bord Pleanála’s designation and actions as competent

authority would fall to be treated as valid de facto. As Hale L.J. notes in her judgment in Fawdry, at 1366, “As Mr [now Lord Justice]

Sales has been at pains to remind us throughout, the other party to this case has an interest in not being deprived of the benefit of

his order and not being made to go through the whole process again unless there was something materially wrong with it. There

was nothing materially wrong with this trial and it would be wrong to set it aside.” Likewise, in this case, EirGrid has an interest in not

being deprived of the benefit of what it has attained through the application process, unless there was something materially wrong

with that process…and there was nothing materially wrong with the process brought to bear and operated by An Bord Pleanála.

IX. Delay

95. The issue of delay was addressed by the judge who granted leave to bring the within application. It is clear, however, from the

decision of the Supreme Court in O’Flynn v. Mid-Western Health Board [1991] 2 I.R. 223 that the judge hearing the full judicial review

ought to re-visit the issue of delay. And, in any event, the judge who acted at the leave stage was only concerned with delay as a

preliminary point, the argument there being that there had been a failure to comply with the time limit presenting under O.84 of the

Rules of the Superior Courts (1986), as amended. At the trial stage, by contrast, delay also feeds in as a factor, that the court is

entitled to take into account as regards the exercise of its discretion.

96. When it comes to the issue of delay, it is worth turning to consider certain of the exhibits furnished to the court as part of the

affidavit evidence before it:

– on 15th May, 2014, An Bord Pleanála issued a document entitled “Projects of Common Interest, Manual of Permit

Granting Process Procedures” which states as follows, at para. 1.3, under the heading “Competent Authority and Ireland”:

“The [PCI] Regulation seeks to facilitate the permit granting process for PCI by requiring Member States to appoint

a Competent Auhtority responsible for making the comprehensive decision and to ensure that the comprehensive

decision is made within the time limits specified in the Regulation. An Bord Pleanála was designated the Competent

Authority in the Irish State on 4th December, 2013.”

So the fact of An Bord Pleanála’s designation was publicly available knowledge from at least 15th May, 2014.

– in point of fact, the applicants in this case were alive to the fact of An Bord Pleanála’s designation from November,

2014. Thus among the exhibits before the court is a letter from North East Pylon Pressure to the European Commission,

signed by Ms Aimée Treacy, one of the deponents in the within proceedings and headed “Formal complaint to EU

Commission by North East Pylon Pressure Campaign Group in relation to EirGrid’s planning applications for the North-

South interconnector project, Ireland…”. This letter states, at p.39, that “DCENR [the Department of Communications,

Energy and Natural Resources] appointed ABP [An Bord Pleanála] as Competent Authority for PCIs on 4th December 2013.

ABP confirmed its appointment as Competent Authority (CA) for PCI on 20th December 2013”.

– also exhibited in the evidence before the court is a planning inspector’s report of 2nd May, 2014. This report arose from

the fact that an application previous to that which led to the within application was submitted on behalf of EirGrid to An

Bord Pleanála but withdrawn; an issue then arising was whether the new application was to be treated as an entirely new

or a continuation of the withdrawn application. At para. 1.1 of the inspector’s report, the following observation appears:

“The Board will be aware that on the 4th December 2013 the Department of Communications, Energy and Natural

Resources wrote to the Chairperson to confirm An Bord Pleanála’s appointment as the Competent Authority for purposes

of implementation of the permit granting and other procedures for PCI’s established under Regulation (EU) 347/2013.

This appointment was accepted by the Chairperson on 20 December 2013.”

So again one has in this document a publicly available document clearly confirming that An Bord Pleanála is and has been

designated as the competent authority.

– finally, if one turns to the pleadings, one finds included among them a verifying affidavit of a Principal Officer in the

Department of Communications, Climate Change and the Environment which includes the averment that “On the 12th June

2014, the then Minister for Communications, Energy and Natural Resources, Minister Rabbitte, stated on the Dáil record

that the Board was designated as the competent authority for Projects of Common Interest in Ireland, in response to

two Parliamentary questions”. So the suggestion that in some way it was a secret that An Bord Pleanála had been

designated, with respect, does not bear scrutiny.

97. Be all the above as it may, the court concludes later below that it is not minded to grant any of the reliefs sought by the

applicants. That is a conclusion that can safely be arrived at whether or not there has been any delay on the part of the applicants.

So to the extent that delay presenting on the part of the applicants can now be counted against them, in truth it has no

consequence to the within application, at least as regards the reliefs sought: the court cannot make them any more refused than

they are.

X. ‘Brexit’

(i) Concerns Raised by Applicants.

98. The issue of ‘Brexit’ is touched upon at paras. 59-61 of the applicants’ written submissions and it is as well to begin by quoting

these so as to understand the complaint made by the applicants in this regard:

“59. The Single Electricity Market Operator (SEMO) aims to facilitate the continuous operation and administration of the

Single Electricity Market. It is a joint venture between the two applicants for the development, the subject-matter of

these proceedings, namely the Notice Party (EirGrid plc) and the System Operator for Northern Ireland (SONI Limited).

The organisation is managed as a contractual joint venture between EirGrid plc, the Transmission System Operator for

Ireland, and SONI, the Transmission System Operator for Northern Ireland. It is licensed and regulated by both the

Commission for Energy Regulation in Ireland and the Utility Regulator for Northern Ireland. It identified in September

2016 and February 2017 as a rising high or top risk what it described as ‘BREXIT Impact: Risk that Government revisits I-

SEM decision, or National Grid/Ofgem choose not to comply with the European Network Codes or not actively support

the Target Model cross border arrangements, resulting in changes to scope, project delays, cost overruns, reduced

quality, or potentially undermine I-SEM’ and inter alia recommended close liaison between the Regulatory Authorities and

the Departments (of Government) as part of the mitigating controls.

60. By virtue of Article 4(3) TEU and the principle of sincere cooperation, national courts are required, so far as possible,

to interpret and apply procedural rules governing the exercise of rights of action in a way that achieves that result.

Article 19(1) TEU…provides that Member States shall provide remedies sufficient to ensure effective legal protection in

the fields covered by European Union law.

61. The First Named Respondent on page 9 of the decision dated the 19th December 2016 stated that the proposed

development is likely to have significant effects on the environment of Northern Ireland which is described by the First

Named Respondent as ‘an area of a Member State of the European Union (i.e. [the] United Kingdom of Great Britain and

Northern Ireland).’ As a matter of EU law, the First Named Respondent by the manner in which it made its decision on

the 19th December, 2016, has failed to consider the application of Article 3(4) and/or Article 5 of Regulation (EU) No.

347/2013 either as a PCI under Regulation (EU) No 347/2013 and/or as a Cluster as per Regulation (EU) 2016/89 and in

circumstances where part of the said PCI and/or Cluster is within the United Kingdom and/or having regard to the

consequences of the referendum held in the United Kingdom on the 23rd June 2016 (and/or in the alternative having

regard to the consequences of any irrevocable withdrawal by the United Kingdom pursuant to Article 50 of the TEU.”

99. It appears from the foregoing that two separate points are made by the applicants. First, concerns are expressed about the

consequences of the ‘Brexit’ referendum in the neighbouring jurisdiction for the North-South Interconnector project, the suggestion

being that those concerns ought to have been addressed by An Bord Pleanála in its decision. Second, it is queried whether or not An

Bord Pleanála was correct in concluding that the proposed development would have significant effects on the environment of another

Member State in circumstances where the United Kingdom may or will at some point in the future be a non-EU member state, following

on its ‘Brexit’ referendum of last year.

(ii) Uncertainty as to the Future.

100. A number of points might be made as regards the issues touched upon in the preceding paragraph:

(1) the general consequences of ‘Brexit’ are speculative at this time.

(2) the consequences of ‘Brexit’ for the implementation of the European internal energy market are speculative at this

time.

(3) the consequences of ‘Brexit’ for the implementation of the North-South interconnector are speculative at this time.

(4) what can be stated with certainty is that: the United Kingdom was a member state of the European Union when An

Bord Pleanála made its now-impugned decision, and the United Kingdom continues at this time to be so.

101. Additionally, the court notes that although the applicants indicate that there could be certain risks arising from Brexit, they do

not appear to contend that those risks mean that the North-South Interconnector project should not be treated as a PCI. Insofar as

there is a criticism of An Bord Pleanála having taken the view that the proposed development could have a significant effect on

another Member State, that seems, with respect, a criticism that is hard to bring home. In fact, if one were to ‘flip’ An Bord Pleanála’s

reasoning, i.e. if An Bord Pleanála was to have decided that it would not have any regard to any effects on another member state (on

the basis that Northern Ireland is part of the United Kingdom which is a member state that appears to be on the path to exiting the

European Union) that course of action, it seems to the court, would offer a valid avenue of complaint as regards An Bord Pleanála’s

actions…but that is not what An Bord Pleanála did; in fact the opposite pertains.

102. It seems to the court that An Bord Pleanála was correct to approach matters as it did. As a matter of practical reality, no-one

knows what the United Kingdom’s future status vis-à-vis the European Union will mean for the United Kingdom or Ireland or the

internal energy market. What is known is that the ‘Brexit’ referendum did not have any de facto effect as regards removing the United

Kingdom or any part of same from the European Union. Nor did it have any de facto effect as regards removing the North-South

Interconnector project from the European Union’s list of PCI projects: the North-South Interconnector project was on the list, is on

the list and will remain on the list unless and until steps are taken to remove it therefrom and those steps are completed. The

applicants merely make the point that it is not clear what the United Kingdom’s future relationship with the European Union will be,

and one need merely read each day’s newspapers to see the uncertainty that continues at this time to present in this regard,

especially following the United Kingdom’s recent general election. But, when it comes to the particular subject-matter of the within

application, matters are actually clearer than they were, even in December, 2016, thanks to the publication, in February 2017, by the

United Kingdom Government, of a White Paper entitled “The United Kingdom’s exit from and new partnership with the European

Union” (Cm 9417), in which that Government’s commitment to the concept and reality of a single electricity market on the island of

Ireland is manifest. Thus, at p.43 of the White Paper, the following observations appear:

“With respect to energy, EU legislation underpins the coordinated trading of gas and electricity through existing

interconnectors with Member States, including Ireland, France, Belgium and the Netherlands. There are also plans for

further electricity interconnections between the UK and EU Member States and EEA Members. These coordinated energy

trading arrangements help to ensure lower prices and improved security of supply for both the UK and EU Member

States by improving the efficiency and reliability of interconnector flows, reducing the need for domestic back-up power

and helping balance power flows as we increase the level of intermittent renewable electricity generation. We are

considering all options for the UK’s future relationship with the EU on energy, in particular, to avoid disruption to the all-

Ireland single electricity market operating across the island of Ireland, on which both Northern Ireland and Ireland rely

for affordable, sustainable and secure electricity supplies.”

103. In terms of chronology, the White Paper was published after the circumstances that are the focus of the within application.

However, as counsel for the applicants properly conceded at the hearing of the within application, it is appropriate for the court,

when considering whether and how to apply a discretionary relief, to have regard to matters that are known to it now: though

focusing on the past in its considerations it need not be entirely blind to the contemporary. But even if the court were to ignore the

White Paper, the time to judge the validity of the impugned decision of An Bord Pleanála is the date of that decision (19th December,

2016), and at that date all that had occurred was that the Brexit referendum had taken place on 23rd June, 2016. That, of course,

was a non-binding referendum. Indeed the very limited effect of same can be seen from the fact that in R. (Miller) v. Secretary of

State for Exiting the European Union [2017] UKSC 5, the United Kingdom Supreme Court determined that even following the ‘Brexit’

referendum the United Kingdom could not initiate its withdrawal pursuant to Art. 50 TEU without an Act of Parliament permitting it so

to do. It is true that Parliament later gave the necessary assent, leading to the ‘triggering’ of Art. 50 on 29th March, 2017, with the

presently likely result of that ‘triggering’ being that there will be some kind of ‘Brexit’ in 2019. But at the time that An Bord Pleanála

made its decision, the Miller case, the need for the intervention of the Westminster Parliament and the ‘triggering’ of Art. 50 all lay in

the future. All that was known when An Bord Pleanála made its decision was that there had been a non-binding referendum of

uncertain consequence in the United Kingdom, and nothing more.

(iii) Listing of Project.

1. The PCI Regulation.

104. It is instructive too when it comes to the ‘Brexit’ aspect of matters to look at the text of the PCI Regulation in this regard.

Articles 3 and 5 of that Regulation provide, inter alia, as follows:

“Article 3

Union list of projects of common interest

1. This Regulation establishes twelve Regional Groups (‘Groups’) as set out in Annex III.1. The membership of each Group

shall be based on each priority corridor and area and their respective geographical coverage as set out in Annex I.

Decision-making powers in the Groups shall be restricted to Member States and the Commission, who shall, for those

purposes, be referred to as the decision-making body of the Groups.

[Court Note: Annex I of the PCI Regulation, under the heading “PRIORITY ELECTRICITY CORRIDORS” references, at (2),

“North-South electricity interconnections in Western Europe” and mentions Ireland among the “Member States

concerned”].

…

3. The decision-making body of each Group shall adopt a regional list of proposed projects of common interest drawn up

according to the process set out in Annex III.2, according to the contribution of each project to implementing the

energy infrastructure priority corridors and areas and according to their fulfilment of the criteria set out in Article 4.

When a Group draws up its regional list: (a) each individual proposal for a project of common interest shall require the

approval of the Member States, to whose territory the project relates; if a Member State decides not to give its

approval, it shall present its substantiated reasons for doing so to the Group concerned; (b) it shall take into account

advice from the Commission that is aimed at having a manageable total number of projects of common interest.

4. The Commission shall be empowered to adopt delegated acts in accordance with Article 16 that establish the Union

list of projects of common interest (‘Union list’), subject to the second paragraph of Article 172 of the TFEU. The Union

list shall take the form of an annex to this Regulation. In exercising its power, the Commission shall ensure that the

Union list is established every two years, on the basis of the regional lists adopted by the decision-making bodies of the

Groups as established in Annex III.1(2), following the procedure set out in paragraph 3 of this Article. The first Union list

shall be adopted by 30 September 2013.

5. The Commission shall, when adopting the Union list on the basis of the regional lists:

(a) ensure that only those projects that fulfil the criteria referred to in Article 4 are included…

Article 5

Implementation and monitoring…

8. A project of common interest may be removed from the Union list according to the procedure set out in Article 3(4) if

its inclusion in that list was based on incorrect information which was a determining factor for that inclusion, or the

project does not comply with Union law.

9. Projects which are no longer on the Union list shall lose all rights and obligations linked to the status of project of

common interest arising from this Regulation.

However, a project which is no longer on the Union list but for which an application file has been accepted for

examination by the competent authority shall maintain the rights and obligations arising from Chapter III, except where

the project is no longer on the list for the reasons set out in paragraph 8.”

105. The North-South Interconnector project was first listed in Commission Delegated Regulation (EU) No 1391/2013 of 14 October,

2013, amending Regulation (EU) No 347/2013 of the European Parliament and of the Council on guidelines for trans-European energy

infrastructure as regards the Union list of projects of common interest (O.J. L349, 21.12.2013, 28). To argue, by reference to Art.

5(8) of the PCI Regulation that a project listed on information that was correct at the time of listing under the Commission Delegated

Regulation but which later changed, thanks to ‘Brexit’, would be information that would then come within the ambit of the phrase

“incorrect information” seems to the court, with respect, to be a most tenuous contention. However, even in the event that that

such a contention was found to be correct, it would still not avail the applicants. This is because the North-South Interconnector

Project would come within the saving embrace of the second paragraph of Art. 5(9) of the PCI Regulation.

2. The 2015 Regulation.

106. Commission Delegated Regulation (EU) 2016/89 of 18 November, 2015, amending Regulation (EU) No 347/2013 of the European

Parliament and of the Council as regards the Union list of projects of common interest [i.e. the PCI Regulation] (O.J. L19, 27.1.2016,

1) commences, inter alia, with the following recitals:

“(3) Projects proposed for the inclusion in the Union list have been assessed by the regional groups and meet the criteria

laid down in Article 4 of Regulation (EU) No 347/2013.

(4) The draft regional lists of PCIs were agreed by the regional groups at technical-level meetings. Following positive

opinions of the Agency for the Cooperation of Energy Regulators (‘ACER’) on 30 October 2015 on the consistent

application of the assessment criteria and the cost/benefit analysis across regions, the regional groups' decision-making

bodies adopted the regional lists on 3 November 2015. Pursuant to Article 3(3)(a) of Regulation (EU) No 347/2013, prior

to the adoption of the regional lists, all proposed projects were approved by the Member States to whose territory the

projects relate.

(5) Organisations representing relevant stakeholders, including producers, distribution system operators, suppliers, and

consumer and environmental protection organisations were consulted on the projects proposed for inclusion in the Union

list.”

107. The Regulation then moves on to insert a new Annex VII into the PCI Regulation, identifying the Union list of projects and then

makes, at para. 3 of the new Annex VII, the following provision in relation to the Union list that had been established by Commission

Delegated Regulation (EU) No 1391/2013 (referenced previously above).

“(3) Definition of ‘No longer considered a PCI’

The phrase ‘No longer considered a PCI’ refers to projects from the Union list established by Regulation (EU) No

1391/2013 that are no longer considered PCIs for one or more of the following reasons:

- according to the new data the project does not satisfy the eligibility criteria;

- a promoter has not re-submitted it in the selection process for this Union list;

- it has already been commissioned or is to be commissioned in the near future and so it would not benefit from the

provisions of Regulation (EU) No 347/2013; or

- it was ranked lower than other candidate PCIs in the selection process.

Such projects are not PCIs, but are listed with their original PCI numbers on the Union list for the sake of transparency

and clarity.

They may be considered for inclusion in the next Union list if the reasons for not-inclusion in the current Union list no

longer apply.”

108. The North-South Interconnector does not come within the definition of ‘No longer considered a PCI’ but continues to be listed at

Annex VII, Section B, Category (2), para.2.13, under the principal heading “Priority Corridor North-South Electricity Interconnections

in Western Europe (‘NSI West Electricity’)” and the sub-heading “Cluster of projects increasing the integration of renewable energy

between Ireland and Northern Ireland”.

(iv) Some Conclusions.

109. The North-South Interconnector, at the time that An Bord Pleanála assessed it, was on the Union list. In accordance with Arts.

5(8) and (9) of the PCI Regulation, it was appropriate for An Bord Pleanála to progress the application as it did, concerning (as it did)

a project on the Union list. The impugned decision of An Bord Pleanála reflects the legal position as of the date of that decision. As of

that time (and this time), the United Kingdom remains part of the European Union, with all of the legal consequences that follow from

that; and it will remain a full member until, at the very least, March, 2019. The precise implications for the single electricity market

after the United Kingdom leaves the European Union, if it leaves the European Union, are not clear. However, although the future can

never be mapped with complete certainty, at this time it appears, by reference to the United Kingdom Government’s White Paper of

February, 2017, as quoted from above, that the United Kingdom government is committed to the concept and reality of a single

electricity market on the island of Ireland.

110. In truth, although ‘Brexit’ is put up by the applicants as a significant part of their case, at no stage in their oral or written

submissions have they identified a single authority which suggests that an event of this kind, i.e. a referendum result that has

uncertain consequences and which will not change the law for a period of time after an administrative decision is made, nonetheless

has the effect of vitiating that administrative decision. Is it the case that every administrative decision made in this State by bodies

which may or may not be affected by what ‘Brexit’ may or may not involve are now to be declared unlawful because decision-makers

apply the status quo and the legal position as it prevails today to the facts before them? The answer to that question is simply

stated: of course it is not. None of the risks that might be attributable to ‘Brexit’ have yet crystallised, it is not clear what those risks

even are, it is not clear what the effect of those risks may be for the interconnector project. Thus it is premature for any challenge

to be made to the decision of An Bord Pleanála by reference to ‘Brexit’; it was not a matter which An Bord Pleanála ought to have

considered and it was appropriate for An Bord Pleanála not to do so.

XI. Error on the Face of the Record

111. The applicants contend, inter alia, that An Bord Pleanála acted ultra vires and without jurisdiction in purporting to grant approval

for a proposed development inclusive of approximately 34km located in Northern Ireland (with the alleged error of law also appearing

on various pages of the impugned record/decision). This assertion, with respect, does not withstand even the scantest of scrutiny. If

one looks to the Board Order, it states as follows under the heading “Proposed Development”:

The overall interconnector (approximately 138 kilometres long inclusive of approximately 34 kilometres located in

Northern Ireland) will link the existing electricity transmission networks of Northern Ireland and Ireland between

Turleenan, County Tyrone and Woodland, near Batterstown, County Meath. This interconnector has been designated as

a Project of Common Interest (PCI) pursuant to the provisions of Regulation (EU) No. 347/2013 of the European

Parliament and of the Council of 17th April 2013 on guidelines for trans-European energy infrastructure.

he proposed North-South 400 kilovolt Interconnection Development located in Counties Monaghan, Cavan and Meath,

which will be the subject of the application for approval, is approximately 103.35 kilometres long and consists of the

following principal elements…”

112. In essence, what is stated in the above-quoted text is not so very removed from saying, to use a loose analogy, ‘Ms X’s farm

straddles Counties Donegal and Tyrone. She is applying for planning permission to build a house on the Donegal end of her farm.’ The

notion that in describing matters so, such an application assumes an extra-jurisdictional dimension is, with respect, fantastic. Putting

an application in its cross-border context does not render that application a cross-border application. Returning to the facts at hand,

EirGrid did not seek approval for development in Northern Ireland and An Bord Pleanála did not purport to grant approval for

development in Northern Ireland, notwithstanding that the North-South Interconnector project in its entirety, and as its name would

suggest, will reach into Northern Ireland. The decision of An Bord Pleanála on its face cannot reasonably be read as representing

anything other than what it says it is, being a decision to accede to the application made by EirGrid, which application did not seek

approval for any development in Northern Ireland, albeit that is it part of a wider development that in its joined-up form will straddle

Northern Ireland.

XII. The Inspector’s Report

113. It is contended by the applicants that certain matters were not dealt with adequately by An Bord Pleanála. It may be useful in

this regard to quote a portion of the applicants’ submissions so as to get a sense of what is contended in this regard:

134. Article 3(d) of the EIA Directive (2011/92/EU) requires information to be

provided by the developer to include ‘an outline of the main alternatives studied by the developer and an indication of

the main reasons for his choice, taking into account the environmental effects.’ This requirement is replicated with

identical wording, in paragraph 1(d) of Schedule 6 of the Planning and Development Regulations, 2001, as amended.

135. The First Named Respondent erred in failing to assess the alternatives to the proposed development, including: (i)

failing to properly and comprehensively consider the undergrounding option or partial undergrounding option of the

proposed development; (ii) erred in determining that the overhead power line was more appropriate and cost effective

when compared to other alternatives, including undergrounding; (iii) had no and/or insufficient regard to the rights of

affected landowners and the potential health hazards associated with the overhead lines when assessing alternatives to

the project; (iv) failed to ensure that a proper cost/benefit analysis of the proposed development was completed; (v)

had no or insufficient regard to alternative interconnectors and PCIs, specifically the First Named Respondent had no

regard to the potential alternative interconnector between Ireland and the United Kingdom of Great Britain (including

Northern Ireland) namely the Interconnection between Srananagh (IE) and Turleenan (UK).”

114. The court proceeds with a consideration of these lines of objection hereafter. In passing, however, the court notes that it does

not understand complaint to be made by the applicants by reference to the judgment of the court in Connolly v. An Bord Pleanála

[2016] IEHC 322. However, even had such complaint been made, the court would in any event have found ample ground for

distinction between that case and this in that in Connolly, unlike here, An Bord Pleanála placed reliance on an inspector’s report

notwithstanding that (i) the development in issue had changed, and changed substantially, following the issuance of the inspector's

report; and (ii) notably, even confusingly, the inspector's report was not favourable, or in material parts was not favourable, to the

relevant development. In those circumstances, the court came to the conclusion that it did. In this case, by contrast, there has been

no like change to the development and there is no ‘clear blue water’ between the inspector's findings and that of An Bord Pleanála.

XIII. Access

(i) Overview.

115. Before looking at the specific arguments that have been raised around access, it is helpful briefly to analyse what the relevance

of access is to the North-South Interconnector project and to the within application. This is because the notion of access can refer

to a number of different things, and it is important to identify what they are and what An Bord Pleanála was and was not concerned

with.

116. As should now be clear, the intended pylons are to be constructed on private land and the relevant contractors will have to get

themselves and their equipment onto the land so as to engage in the act of construction. A number of access-related issues then

arise:

(1) as the land is private land, how do the contractors legally obtain access to the private land?

(2) does whatever the contractors are doing in the course of getting themselves and their equipment to the location of

the pylon require development consent/planning permission?

(3) whether or not such consent/permission is required, insofar as An Bord Pleanála is considering an application for

approval under Section 182A, is the access in the sense of getting from the road to the pylon something which needs to

be assessed as part of the EIA?

(4) whatever the answer to (1)-(3), is An Bord Pleanála entitled in granting development consent to have regard to the

question of access when fashioning conditions attached to that consent?

117. There does not appear to be any dispute between the parties, and at law there is no uncertainty, that an application for

development consent does not allow a party to do anything except construct the development for which consent is obtained. Issues

of access in the sense of getting a legal entitlement to get on the land are independent of that and are resolved in one of two ways:

either (a) a landowner agrees to allow a developer onto affected land or (b) a contractor resorts to the use of such statutory powers

as it may possess to achieve that access.

118. As to whether planning permission is required to get contractors from road to site of construction, EirGrid’s submission and

position is that it is not required. It has presented methods of access which it believes can be achieved using existing entrances and

using equipment which will not require the undertaking of works that would require development consent. EirGrid is either right or

wrong in this regard. (It believes itself to be right). The way the inspector rationalised matters was to say, quite correctly, that An

Bord Pleanála was concerned with the application before it, the developer maintained that they could obtain the necessary access

and if the developer was wrong, that was for another place and day.

119. As to the third issue touched upon above – did access need to be assessed as part of the environmental impact assessment in

any event? – the developer adopted the view that the information should be put before An Bord Pleanála so as to allow that

assessment to occur and An Bord Pleanála, as it was entitled to do, agreed with that view and properly proceeded with its

assessment.

120. Finally, if no development consent is sought in relation to access can there properly be any conditions that relate to access? At

first glance, it seems almost counter-intuitive that the answer to this question would be ‘yes’. Indeed, counsel for the applicants

contended that where an application does not include an application for access and a condition in the permission refers to access,

that is unlawful. However, if one pauses to consider this last proposition, it just cannot be true or, at the very least, it cannot always

be true. Suppose, for example, that a homeowner is having a rear extension built on to her house for which she needs planning

permission. Suppose too that she does not seek any permission for access (because she does not need planning approval to get

contractors and materials from the front of her house to the back). She may find that such permission as issues nonetheless comes

subject to access-related conditions. She may, for example, be living on a very busy road and the local authority or An Bord Pleanála

may condition the planning permission by providing, for example, that the homeowner during the period that the development is being

constructed is not to have any lorries outside her house before ten o'clock in the morning or after four o’clock in the afternoon,

perhaps because her house is situate on the main road to the local airport. That is a condition relating to access. But, with respect,

no-one could reasonably, let alone correctly, suggest that such a condition was necessarily unlawful.

121. Returning to the conditions imposed in the case at hand, it will be recalled that these provide, inter alia, as follows:

“Prior to the commencement of development, a construction and environmental management plan, a traffic

management plan and a waste management plan shall be submitted to, and agreed in writing with, the relevant planning

authority following consultations with relevant statutory agencies….This plan shall incorporate the mitigation measures

indicated in the environmental impact statement and shall provide details of intended construction practice for the

proposed development, including…

(c) site specific arrangements for each temporary access route, to include, where necessary:

(i) arrangements for stepping down vehicle size,

(ii) arrangements for off-loading of materials,

(iii) short-term road closures,

(iv) the phasing of construction works which are accessed by single-lane carriageways, and

(v) the arrangements for the transfer and management of concrete, including wash out facilities.”

122. The criteria for conditions such as those just quoted, subject to the normal rules of vires, is that they are viewed by the permit

granting authority as appropriate in the interests of proper planning and sustainable development and there is no evidence that in this

case they were not so viewed (and the mere fact that they were included is evidence that they were so viewed). They are not

affected, and their legality cannot be affected, by reason of the fact, to go back to the formulation that counsel for the applicants

presented, that where an application does not include access, a condition in the ensuing consent which refers to access is unlawful.

123. So if the court stands back from the access issue and tries to analyse it element by element, matters reduce themselves to this:

(1) the application before the court is for development consent; (2) if, in the course of undertaking a development for which consent

is required, a developer is going to do something which does not require consent or permission, then the consent or permission need

not be sought; (3) if the developer then breaches the planning laws by obtaining or seeking to obtain access in a manner which in

fact requires consent or permission there are recognised methods in law for dealing with that: it is not a matter for the court to

resolve before development commences. Viewed so, the vires objection now raised in relation to the above-quoted conditions

concerning access is, with respect, an argument without merit.

(ii) The Substance of the Inspector’s Report.

124. “Access routes” are first considered by the inspector at p.98 of her report, in the following terms:

“The applicant proposes using existing access routes to agricultural land to access tower sites, stringing locations and

guarding areas. Mr Keane [counsel for the applicants] queried why these temporary access routes did not form part of

the planning application.

In the Board’s pre-application meeting with the applicant, the Board advised the then prospective applicant that ‘the

planning application drawings should indicate access to tower locations for construction and servicing purposes at the

point of the public road’ (Record of Meeting, December 2013).

I would also note that the Board advised the applicant (minutes of the Board’s pre-application meeting with the applicant

held on the 23rd December 2013) in respect of the access to construction towers that the drawings ‘could be similar to

those submitted in the application for the Laois-Kilkenny Reinforcement Project’ (VA0015). Statutory drawings for this

route did not identify temporary access routes to tower sites.

It was confirmed by the applicant on numerous occasions during the oral hearing that the access roads do not form

part of the planning application, but are presented in an indicative manner in order to allow environmental impact

assessment of the development. In this context, it would not appear inappropriate that the access routes are omitted

from the statutory drawings. The Board can only adjudicate on the application as so presented and should it transpire at

some future date that works, constituting development, are required to facilitate access, then EirGrid will be constrained

by the provisions of the planning acts. There is no substantial evidence before the Board at this time that any such

works are likely to be required.”

125. It seems to the court that this last-quoted passage is a notable one. What An Bord Pleanála makes clear in this passage is that:

it is not giving permission for any of the access roads; it is considering those access roads purely for the purposes of its

environmental impact assessment; and should it transpire in the future that the temporary access routes require works such as to

constitute development within the context of the planning legislation, that that is something which will have to be dealt with at

another date. So in no sense are the temporary access routes being permitted by An Bord Pleanála.

126. There follows next in the inspector’s report a segment headed “Access routes in sensitive locations”, which reads as follows:

“Mr Keane SC also raised issues regarding ‘works’ including the laying down of matting to form a road which he argued

constituted development under section 3 of the Planning and Development Act. He also noted the provisions of section

4(1)(ia) which states:

(ia) development (other than where the development consists of provision of access to a public road) consisting of the

construction, maintenance or improvement of a road (other than a public road) or works ancillary to such road

development, where the road serves forestry and woodland.

He stated that the type of access routes proposed by the applicant do not qualify for an exemption under this section.

He also brought the attention of the Board to the provisions of Section 4(4) which de-exempts development where an

environmental impact assessment of the development is required.

It was confirmed by EirGrid that the temporary access roads will not involve ‘works’ as defined under Section 2 of the

Act. There will be no construction and no excavation. There are no proposals to develop stone roads and no timber

sleepers will be installed. In the vast majority of cases, access will be along existing tracks and where this is not

possible, mats will be placed on the ground surface to facilitate construction machinery.

I would again draw the attention of the Board to Class of the Regulation referred to above. It would appear that the

placing of the temporary matting on the access routes, being land adjoining land where development is to take place

pursuant to a permission, is exempt under the provisions of the Regulations. With regard to the removal of exemption

under section 4(4), where an EIS is required, I note the development (works to temporary access roads) is not

development of a class set out in Part 1 and 2 of Schedule 5 of the Planning and Development Regulations 2001, as

amended, requiring EIA in its own right, and accordingly the matter of EIA does not apply.”

127. What is afoot (again) in this text is the following: if the pylons are to be built then, in certain cases, access from the public road

to build those pylons will be required. In many cases it can be done directly from the public road but in other cases it will be

necessary to secure assess by means of existing access routes, some of which will traverse over private lands. In that particular

context, An Bord Pleanála thought it important to assess what the environmental effects of those access routes would be at the time

of the granting or withholding of consent for the project. Again, An Bord Pleanála does not, in its impugned order, grant consent for

those access routes; rather it assesses what would be the effect of same when and if the North-South Interconnector project is

constructed.

128. As to the issue of works, which is also touched upon in the above-quoted text, it appears from the environmental impact

statement that, in general terms, there will be three different kinds of lands that need to be traversed: first, good quality lands where

no temporary tracks are required; second, relatively dry or peaty land where a defined track is required and in which case temporary

rubber matting or aluminium in road panels will be used to distribute the weight evenly; and third, poor, boggy, undulating land. The

environmental impact statement identifies that: the vast majority of the access routes for the building of the pylons along the North-

South Interconnector route will be of the first type, i.e. land which can be traversed without any special provision being made; the

remainder of the access routes are of the second type, where all that would be required would be aluminium matting or aluminium road

panels; and no land has been identified as falling within the third category (where there might be excavation of topsoil or other

matters required). However, all that will require to be assessed at another point; it is not something that An Bord Pleanála has

decided in this case; and the Board has granted no permission for these access routes.

129. Turning then to the segment of the inspector’s report entitled “Construction”, the court notes the following observations:

“Access to construction sites, guarding locations and stringing areas will be via the public road network and the

temporary use of existing private access lanes/lands which currently provide access to property and lands within the

project area. The applicant is not seeking to consent for these routes but they are put forward to enable the Board to

carry out its environmental impact assessment of the proposed development.”

130. Immediately following the above-quoted text, reference is made to various drawings and documents. Certain of these documents

were handed in to court and the court’s attention drawn to the fact that the temporary access routes were marked thereon in

yellow. These yellow lines and other purple lines were to play a prominent part in the closing stages of the hearing and will be

returned to later below.

131. Under the heading “Temporary Access Routes”, the planning inspector makes the following observations:

“During the oral hearing, NEPPC [the North-East Pylon Pressure Campaign], CMAPC [the County Monaghan Anti-Pylon

Committee] and many individual landowners raised concerns regarding:

The outdated aerial photography used by the applicant in the application documentation,

The absence of access to lands and the ability of the applicant to identify and assess the suitability of access routes,

and

The adequacy of the proposed temporary access routes to accommodate the construction traffic associated with the

development.

The concerns raised regarding the adequacy of access routes included the minor nature, inaccessibility and severe slope

of some of the proposed routes, inadequate structure/width of some routes to accommodate the weight and size of

construction vehicles and damage to drains, bridges and soils as a consequence of the large construction vehicles.

Other issues in respect of access routes are discussed in other sections of this report notably Legal and Procedural

Issues, Human Beings – Land Use and Material Assets – Traffic.”

132. What follows next is a treatment by the planning inspector of each of these points. Under the heading “Viability and Adequacy of

Access Routes”, the following text appears:

“In response to the site specific concerns raised by observers regarding the viability and adequacy of each access route

the applicant (a) described the applicant’s approach to the use of access routes and (b) uploaded more recent, detailed

aerial photography and Google street view to demonstrate the ability of a temporary access route to accommodate

construction traffic. The following was emphasised in relation to the construction methodology:

It is not the intention of the applicant to create any new entrance onto the public road but to use existing access

routes, preferably those which provide direct access to lands but if necessary, via existing accesses to farm yards.

Typically, agricultural scale equipment would be used to access construction sites (for example, using a tractor and

trailer to transport bundles of steel for tower construction). However, for minor access routes or those with poor

ground conditions, equipment would be scaled down to suit the nature of the access route. For example, use of a 26

tonne concrete lorry instead of [a] 32 tonne lorry, use of a 6 tonne wheeled dumper to transfer concrete from the

concrete lorry to the construction site, use of a mini piling rug where necessary (applicant’s submission No 53).

Use of temporary matting or aluminium tracks for more sensitive access routes (Type 2), or if required by

landowners, with the matting or aluminium tracks laid (by the transporting vehicle) at a width to suit the width of the

access route e.g. less than 4m if required.

Use of temporary aluminium bridges to facilitate access over ditches etc. and to protect existing bridges (see visual

image of bridge provided in submission No 26 presented to oral hearing).

Over sensitive ground, tracked, low pressure vehicles would be used to traverse sites to prevent damage to lands.

Use of tracked vehicles to traverse steep ground.

The assessment of temporary access routes allowed for bad weather conditions…Construction sites would not be

accessed in storm conditions.

For the majority of cases referred to by the observers, I would accept that the applicant was able to demonstrate a

viable access to each construction site, guarding location or stringing area. For example, by identifying existing

gateways at the public road, existing agricultural tracks that would be followed to access tower sites and existing gaps

in hedgerows to allow access between fields. Furthermore, the applicant was able to demonstrate appropriate ‘step

down’ equipment (as described above) for some of the minor access routes proposed and tracked equipment for some

of the steep routes proposed.”

133. There follows next a discussion of the fact that access there were alterations to certain of the access routes and consideration

of those alterations. Thus, under the heading “Alterations to Access Routes”, one finds the following text:

“Notwithstanding the above, during the oral hearing the applicant brought forward a large number of changes to the

proposed access routes, with 50 alterations and 23 minor deviations. These are set out in the applicant’s submissions to

the oral hearing….

The proposed alterations are brought forward by the applicant in response to, or as a consequence of the following:

a. Issues raised by observers, for example, to make use of existing farm tracks/existing gaps in hedgerows, to

avoid banks/fences or structures…

b. ‘Mapping discrepancies’ or ‘minor deviations’ where the mapped access point differed from the intended point…

i.e. the access was incorrectly identified when moved from one scale of map to another.

The alterations brought forward under ‘a’ above would suggest that the survey of access routes was in a number of

cases less than robust. Whilst some of this can be explained by a lack of access to lands for survey work, in other cases

it arose due to the use of outdated aerial photography and in others because aerial photography could not pick up

changes in levels e.g. banks etc. Alterations brought forward under ‘b’ were generally not substantial. Whilst these were

deemed to be mapping anomalies, for an application at an advanced stage these discrepancies are remiss.

Whilst the above alterations are made late in the application process, as noted in the section on Legal/Procedural Issues,

the applicant is not seeking approval for the temporary access routes. They are simply presented, in an indicative

manner, to enable environmental impact assessment. Within this context, the submission of alternative routes to

overcome issues raised by observers in response to the application or oral hearing, is acceptable.

Furthermore, in bringing forward the alterations to proposed access routes or alternative access routes, the applicant

has ultimately demonstrated a viable access route to each tower site, guarding location or stringing area for the entire

route corridor. As argued by the observers, it is possible that other issues may arise which prevent use of a proposed

access route e.g. a bank or wall which a landowner has not drawn to the Board’s attention. However, in these instances,

the applicant’s construction methodology and principles in respect of the use of access routes can be relied on to assess

any environmental effects which may arise. It is considered therefore that the applicant has provided sufficient

information in respect of access routes to enable environmental impact assessment.”

134. What one can see in all of the foregoing is the clarity that there was in the inspector’s report concerning access routes and

that, decidedly, permission was not given and was not purported to be given for the access routes. Under the heading “Summary and

Conclusion”, many of the points touched upon previously above were considered again in the following terms:

“The key issues arising in his section of the report [i.e. Section 5, “Planning Assessment”] relate to the ability of the

applicant to predict ground conditions and assess the viability of access routes, based on the limited access to lands for

survey.

It is considered that the applicant has demonstrated that the use of primarily desk top survey work (which includes

LiDAR survey), supplemented by walkover survey, shallow augers and vantage point survey where possible, is consistent

with the approach taken by the applicant in respect of other electricity transmission projects in the State and is

sufficient to predict ground conditions for the design of foundations.

It is noted that the methodology adopted in respect of the proposed access routes (which was not subject to LiDAR

survey) has resulted in alterations to access routes during the course of the oral hearing. As the applicant is not seeking

approval for the proposed access routes, it is considered that this approach is acceptable. Furthermore, it is considered

that the applicant has demonstrated a viable access route to each tower site, guarding location or stringing area for the

entire route corridor and has set out clear principles regarding the proposed use of access routes for environmental

impact assessment, should the indicative routes change.”

135. Further mention of access then appears at 287 et seq., under the headings “Disruption Arising from the Temporary Use of

Access Routes” and “Adequacy of Access Routes and Damage to Lands”:

“As stated in the Construction section of this report it is the applicant’s intention to access construction sites, guarding

locations and stringing areas via the public road network and the temporary use of existing private access lands/roads

which currently provide access to property and lands within the project area. For the farming community, this could

mean the temporary use of existing agricultural access tracks within their landholding and the movement of

construction traffic through their working farm yards and the movement of vehicles across agricultural land.

I would accept in many cases that the use of such tracks, in particular if routed through a working farmyard, could

impact on the day to day operation of the farm. However, whilst inconvenient, I am mindful of the applicant’s mitigation

measures…which include liaison with landowners prior to construction and, as stated in the course of the oral hearing,

agreements regarding the use of access lanes to enable farming practices to continue and use of an observer for HGV

movements through sensitive sites (including farm yards). I would consider therefore that the shared use of access

routes could be managed for the short duration of the construction phase by liaison between the parties to facilitate the

on-going operation of the farm….

Many landowners draw the Board’s attention to the inadequate nature of…some of the proposed temporary routes which

the applicant proposes to use, with heavy construction equipment damaging the lane or proposed route, for example

surface condition, underlying drains, culverts etc. In addition, having regard to the nature of land within the study area,

in particular, typically heavy soils, wet ground conditions and the steep topography of some of the tower sites…the

observers argue that construction equipment would also damage agricultural land over which it traverses with long term

effects.”

136. However, the inspector notes that in the “Construction” section of her report, she had concluded that, having regard to the

proposed construction methodology, the applicant had demonstrated that the proposed temporary access routes would be adequate

to accommodate the proposed development, the said construction methodology including: use of existing entrances from the public

road; use of agricultural scale equipment or ‘stepping down’ vehicles to match the scale of the access route; means to minimise

damage to access lanes/land/vulnerable soils; and proposals to engage with landowners prior to construction works so as to identify

concerns and to repair or compensate for any damage caused.

137. Under the heading “Control of Contractors”, the inspector notes the mitigation elements of the outline construction

environmental management plan (CEMP) and observes as follows:

“The above arrangements are acceptable and consistent with good practice, and should ensure the adherence to

mitigation measures. However, I note that the outline CEMP does not refer to the appointment of agricultural liaison

officers. I consider that due to the potential for impacts on the farming industry and the importance, therefore, of

mitigation measures, I consider that this specific aspect of the development should be further controlled by condition (if

the Board are minded to grant approval for the development) i.e. that prior to the commencement of construction the

applicant shall appoint an Agricultural Liaison Officer who shall be responsible for liaison with landowners during the

construction phase of the project, and thereafter, to identify issues of concern to individual landowners and to agree a

detailed methodology for construction, in accordance with the measures set out in the application for approval.”

138. The mooted condition now appears as Condition 2 of the Board’s Order, requiring as follows:

“Prior to the commencement of development, an Agricultural Liaison Officer or Officers shall be appointed and shall be

responsible for liaison with landowners, prior to and during the construction phase of the project, to identify and address

issues of concern to individual landowners including disease protocols, if relevant, in accordance with the measures set

out in the application for approval, and thereafter for the operational phase of the development.”

139. Then, under the heading “Impact of Temporary Access Routes”, the planning inspector concludes as follows:

“Having regard to the mitigation measures proposed in respect of the use of temporary access routes (as discussed in

the Construction and Traffic sections of this report), it is considered that the use of temporary access tracks to

construction sites, guarding locations or stringing areas will not give rise to significant environmental effects on soils,

geology or hydrogeology receptors.”

140. Later in the inspector’s report, there is consideration of the “Use of Temporary Access Routes by Construction Traffic” which it

does not seem necessary for the court to consider in detail herein.

(iii) Question as to Consideration of Access.

141. One point that arose at hearing is whether, why and when An Bord Pleanála would consider the issue of access at all when

access (as here) was not being applied for. In this regard, the court was referred to the decision of the High Court in O’Grianna & ors

v. An Bord Pleanála [2014] IEHC 632. There, Peart J. found that connection of a proposed wind farm to the national grid was an

integral part of an overall development of which the construction of turbines was the first part and, in effect, that by neglecting to

undertake an environmental impact assessment in respect of that integral part of the overall development, there had been project

splitting which had precluded a cumulative assessment of the likely impact on the environment of the entire project presenting. In the

subsequent related case of Ó Gríanna v. An Bord Pleanála (No.2) [2017] IEHC 7, An Bord Pleanála had gone on to carry out the

cumulative assessment of the wind turbines, wind farm and grid connection. However, the applicants then contended that that

further assessment was ineffective and/or inadequate and that any mitigation measures arising were incapable of being effected

because the grid connection did not form part of what might be styled ‘the permission envelope’. That argument (which is not

advanced in these proceedings) was rejected by McGovern J., whose thinking in this regard is perhaps best captured by McGovern J.

in his own later decision in North Kerry Wind Turbine Awareness Group v. An Bord Pleanála & ors [2017] IEHC 12 where he observes

as follows, at para.9:

[T]here is no necessity that a grid connection must be included in the planning application for the purpose of seeking

consent in order for an EIA to be carried out; rather, the EIA requires information on the grid connection to enable a full

EIA to be carried out and for the Board to assess the likely significant impact of the wind farm and grid connection as a

whole.”

142. Here, access is not integral to the North-South Interconnector project in the same way that the grid connection was perceived

by Peart J. in O’Grianna (No. 1) to be integral to the project before him. The reason access is not perceived to be integral is because,

as counsel for An Bord Pleanála indicated at hearing:

“[I]n Ó Gríanna the grid connection would have to be built and would have to be there for ever and all time, whereas

[here] the access is a very temporary arrangement that will occur for the purposes of construction effectively. I don't

think one could necessarily say that it has the same integral nature. Be that as it may the Board did embark on a full EIA

of the access insofar as same could have environmental effects.”

143. There will, it seems to the court, likely always be some element of legitimate divergence between professionals, acting in good

faith, as to the proper parameters of an environmental impact statement, at least at the outer limits of those parameters; however,

as will be clear from the balance of this judgment, the court does not see that any legal deficiency or issue presents in the fact that

access was considered by An Bord Pleanála in the case at hand.

(iv) Complaints about information provided.

144. In his affidavit evidence, Mr John Fitzgerald, the previously mentioned Director of Grid Development and Interconnection with

EirGrid, who avers, inter alia, as follows:

“It is…patently incorrect for [the applicants’ principal witness]…to assert [in her affidavit evidence]…that none of ‘the

planning documents describe the works or give details of the specification of the works to the 299 separate structures’.

On the contrary, the works are extensively described in the documents which were submitted with the application to the

Board and which include the Planning Report…the Public and Landowner Consultation Report…and multitudinous

references in the EIS…and in the Outline Construction and Environmental Management Plan. I say that, in addition,

details were also furnished at the oral hearing in response to each individual landowner who made submissions.

‘Development’ as defined in the Planning Acts will only be carried out within a corridor of 19 metres in width, save at

angle towers where the width extends to 24 metres. In addition, as set out in the application documentation, there are

4 no. tower locations where, due to specific excavation requirements, this standard corridor width is exceeded. The

corridor within which the development is to take place is delineated by a red line in the planning application drawings. I

reiterate that no new entrances onto the public road are required to be created for the proposed development; rather

existing entrances and/or direct access (for example where there is no boundary hedgerow or wall) will be used. In

certain limited instances, rubber matting or aluminium road panels will be laid on the ground such as where there are

poor ground conditions or sensitive land use. In these cases there will be no excavation or construction works involved.

Furthermore, there will be no construction of roads….

[The same witness also]…asserts that the application amounts to an infringement of the constitutional rights of the

landowners on whose behalf NEPPC advocates, none of whom have given their consent. However, for the reasons set

out in the Statement of Opposition, I am advised by counsel and so believe that NEPPC does not have standing and/or a

sufficient interest to advance grounds purporting to arise from alleged breaches of the interests or rights of individual

landowners. Moreover, there is no requirement under the Planning Acts or Regulations that an electricity transmission

development under section 182A requires the consent of the owners or occupiers of land. In addition, all landowners

were extensively consulted with in advance of the making of the application. As a result whereof, and in response to

such engagement as did occur, certain pylons were moved and alterations were considered to the proposed temporary

access routes in respect of certain landholdings (as was described in the documentation submitted with the application

for approval and at the oral hearing). Finally, and again prior to the submission of the application for approval,

landowners on whose lands a pylon was to be located were furnished with indicative details of the temporary access

routes in respect of those structures. Indeed, such prior consultation is noted in the Inspector's report in the following

terms..:

‘Consultation with landowners, identified through the PRAI database, took place in phases between 2011 and 2013,

with letters to landowners on the 12th December 2013, advising them of the final line design….Subsequently,

following a final technical review of the line design, 16 landowners were advised of changes affecting them in

March 2015 (changes were made to tower locations not to the route alignment). All landowners were also advised

of the proposed application in May 2015 and provided with details of the application in June 2015 (the application

was lodged on the 9th June 2016)….

Moreover…the Inspector stated:

‘…it would appear to me from the documentation on file and oral hearing proceedings, that the applicant has been

able to identify the vast majority of landowners along the route and has made significant efforts to engage with

them.’

…The extent of landowner engagement is detailed in the Public and Landowners Consultation Report…which was before

the Board…..

It must also be stressed that the access routes are merely temporary access routes required only for the limited

duration of the works at any one pylon location. Also, as was noted previously, the EIS also contained a suite of

numerous mitigation measures and commitments by EirGrid…which are relevant to individual landowners which involve

notification to landowners, addressing the concerns of landowners in advance of any construction works or construction

traffic coming onto their land and indeed after the completion of the works. Indeed, such mitigation measures and

commitments have now been incorporated as part of the approval granted pursuant to Condition 1(b) attached to the

decision to grant approval….

I further say that landowners and members of the public were afforded the opportunity to make submissions or

observations on any issue which they deemed appropriate and, as noted in the Inspector's report, circa 900 observers

made observations, including observations made by Eileen and Maura Sheehy…and on behalf of…[NEPPC]. Thereafter, by

way of its response document dated 19th October 2015, EirGrid responded to those submissions and observations.

Moreover, as a result of EirGrid's consideration of the submissions and observations made to the Board and in response

to issues raised by certain landowners, certain modifications were proposed by EirGrid to a number of the temporary

access routes….

[In her affidavit evidence, the same witness for the applicants]…again addresses the ‘red line’ boundary issue. As noted

above the corridor within which the development is to take place is delineated by a red line in the planning application

drawings. It should also be observed that, as set out in the Statement of Opposition, the requirements of the Planning

Regulations in relation to planning applications are not applicable to application to an application for approval under

section 182A of the 2000 Act. Nonetheless the application complies with the advice contained in the General Guidance

note of the Board that applications for strategic infrastructure development should ‘generally accord’ with the

requirements for a planning application set out in the Regulations….

It is also asserted by [the same witness]…that no details relating to access arrangements were included in the

application. This statement is manifestly incorrect. Access arrangements are extensively described in the documentation

submitted with the application for approval…as well as indicative access routes for each tower being included in figures

with the application. In order to carry out the works for which approval was sought, access to the relevant lands will be

required and accordingly temporary access routes were included within the application documentation so as to enable

the Board to conduct an EIA of all aspects of the project, whether or not development consent was required for any

aspect of the project. In this respect, a total of 584 no. temporary access routes have been identified within the EIS on

1:5000 scale mapping. Modifications to certain of those temporary access routes were presented by EirGrid as part of

EirGrid’s review of temporary access routes and in some cases, in order to respond to issues raised at the oral hearing,

EirGrid presented those modifications on 7 March 2016, 22nd March 2016, 19 April 2016, 26 April 2016 and 10 May

2016….

Maps were sent to the landowners affected which show the modified access route on each land holding with the revised

section of the access route delineated in purple. These maps and accompanying letters were sent during the course of

the oral hearing and landowners were subsequently facilitated to make submissions in respect of these alterations.

Further, information on all the alterations to access routes was made publicly available during the course of the oral

hearing. Under the heading ‘Access Routes’…it was stated as follows:

‘In the Board’s pre-application meeting with the applicant, the Board advised the then prospective applicant that

‘the planning application drawings should indicate access to tower locations for construction and servicing

purposes at the point of the public road’.

I would also note [the Inspector says] that the Board advised the applicant…in respect of the access to

construction towers that drawings ‘could be similar to those submitted in the application for the Laois-Kilkenny

Reinforcement Project’. Statutory drawings for this project did not identify temporary access routes to tower

sites.

It was confirmed by the applicant on numerous occasions during the oral hearing that the access roads do not

form part of the planning application, but are presented in an indicative manner in order to allow environmental

impact assessment of the development. In this context, it would not appear inappropriate that the access routes

are omitted from the statutory drawings. The Board can only adjudicate on the application as so presented and,

should it transpire at some future date that works constituting development are required to facilitate access, then

EirGrid will be constrained by the provisions of the Planning Acts. There is no substantial evidence before the Board

at this time that any such works are likely to be required’.

[The same witness for the applicants, in her affidavit evidence,] incorrectly asserts that there was ‘a lack of any

approximate detail’ relating to access routes. It is worth emphasising that Part 2 of the oral hearing was entirely

devoted to site-specific issues which included temporary access routes. It is clear from an overview of the

documentation previously referred to in this Affidavit that the contention that the likely effects of the development are

impossible to discern is completely mistaken. Moreover, the viability of the project is underscored by the accepted need

for a second North-South interconnector, a summary of which was contained in the Planning Report referred to

previously.”

145. Ms Sheehy, the second-named applicant, also made comment, in her affidavit evidence, about the access routes insofar as they

affect her property. Mr Fitzgerald touches on those averments in the following way:

“At paragraph 4 of her Second Affidavit, Ms. Sheehy refers to two pylons on lands in the ownership of her sister, with

whom she resides, and also says that certain planning drawings in respect of the cables are unclear and other matters.

Towers 308 and 309 straddle the hedgerow of lands in the ownership of Eileen Sheehy, the sister of Maura Sheehy, with

whom she resides….I say and believe that Tower 308 is located approximately 123 metres from the residence of Ms.

Sheehy whilst Tower 309 is located approximately 392 metres away. Towers 306 and 307, which are not located on

lands belonging to Ms. Sheehy but on adjacent lands, are located at distances of 339 metres and 149 metres

respectively from the residence of Ms. Sheehy. Whilst the assertions made by Ms. Sheehy in relation to the planning

drawings go to the merits of the application for substantive judicial review as opposed to addressing the issue of the

discharge, Ms. Sheehy's contentions in this regard are not accepted by EirGrid.”

146. This is picked up by Mr Fitzgerald, at a later point in his affidavit evidence when he avers as follows:

“Insofar as Ms. Sheehy says, at paragraph 4 of her Affidavit, that the application was made without her consent or that

of her sister, as noted earlier in this Affidavit, there is no legal requirement for such consent. Furthermore, where a

tower or pylon is to be located on a person’s lands, the landowner will receive compensation plus an annual interference

payment per tower to ensure the landowner is not at a financial loss. In addition, EirGrid has recently established a

proximity payment scheme whereby payments are to be made to homeowners within 200 metres or closer to a new line

of towers or a new transmission system, and this scheme will apply in respect of the residence shared by Ms. Sheehy….

At paragraph 5 of the Affidavit under reply, Ms. Sheehy states that the proposed development will involve a conductor

‘within eleven metres of the curtilage’ of residence. I say the lands owned by Ms. Sheehy's sister and the distance from

the nearest point of the overhead line to her dwelling were identified [he then gives the map reference]…[on a map]

included…with the documentation submitted to the Board. As appears therefrom, the distance provided in the drawing

was 58.4 metres from the nearest point of the residence to the outer conductor and 67.9 metres to the centre line.

The Line Route Map…also shows the configuration of the conductors which is clearly explained in the drawing legend

information regarding the proposed alterations of the existing line which is located approximately 60 metres from Ms.

Sheehy’s residence.…

In her affidavit, at paragraphs 7 and 8, Ms. Sheehy refers to a number of environmental impacts arising from the

proposed development. I am advised and so believe that these are planning matters which were extensively addressed

in the documentation submitted to the Board and at the oral hearing convened by the Board and extensively considered

in the Inspector’s report. I am further advised that it is not appropriate for the Applicants to seek to re-argue such

issues in these proceedings, which do not institute an appeal on the merits of the Board's decision….

At paragraph 9 of the Affidavit under reply, it is asserted that Ms. Sheehy and her sister are in an uncertain position of

not knowing how access to lands will be achieved. However, this statement is incorrect. [Mr Fitzgerald then exhibits

certain correspondence sent to Ms Sheehy and continues as per the below]….

In relation to the content of paragraph 10 of [Ms]…Sheehy, wherein issues are raised in relation to matters such as

long-term effects of pylons on machinery, dangers of electrocution and potential for pollution during construction such

as through spillages. I say that all of these matters were addressed in very considerable detail in the documentation

submitted to the Board on the application and, in particular, in the EIS (and the Outline Construction and Environmental

Management Plan appended thereto) and indeed these issues were discussed at length at the oral hearing. As noted

earlier, the EIS contains a schedule of mitigation measures and commitments which addresses many of these concerns

and these mitigation measures and commitments have been incorporated into the grant of approval by way of Condition

1(b)….Accordingly, Ms. Sheehy is incorrect in her assertion that the conditions of the Board give EirGrid a ‘charter of

flexibility permitted by agreement to do as they like’. Moreover, given that these matters have been set out in the

application documentation, which has been publicly available since June 2015, and that there was a ten-week period in

which parties could (and did) make submissions and observations on those matters, followed by a 35-day oral hearing at

which these issues were considered, she is incorrect in her reference to affected parties being excluded from the terms

of the decision made by the Board to grant approval. Finally, EirGrid does not an accept that a sterile corridor is created

by the positioning of the alignment, whether in the manner suggested by Ms.Sheehy or at all….

At paragraph 11, Ms. Sheehy refers to the previous application for approval which was withdrawal in 2010. However, as

set out in detail in an earlier section of this affidavit, subsequent to the withdrawal of the application, EirGrid engaged in

a detailed re-evaluation of the project, which included three round of public and landowner consultation….

The characterisation of the oral hearing set out in paragraph 12 of Ms. Sheehy’s Affidavit is inaccurate. Insofar as there

were modifications to the proposed temporary access routes during the oral hearing, it is important to emphasise again

that information on the proposed access routes was included with the application documentation as to enable the Board

to conduct the required assessment of all aspects of the project, regardless of whether or not development consent is

required for any particular aspect of the project. The proposed access routes do not form part of the development.

Therefore, no part of the development was changed in any way in the course of the oral hearing. A total of 584 no.

access routes were identified within the EIS. Following submissions to the Board in the period June to August 2015, in

relation to temporary access routes, EirGrid carried out a review of certain access routes, and an alternative access

route was identified in respect of 6 no. locations, which alternative access routes were identified on Day 1 of the oral

hearing (7 March 2016). Subsequently, following the submission of a number of observations to the Board in relation to

temporary access mutes, EirGrid carried out a further review of all proposed access routes described within the EIS

and, as a result, a number of mapping anomalies were identified. An evaluation was conducted of these anomalies and

19 no. redrawn access routes were presented to the oral hearing on 22 March 2016. As the oral hearing progressed,

EirGrid carefully considered the submissions made by landowners and other parties to the oral hearing, and continued to

keep the issue of access routes under review. EirGrid considered all potential deviations or mapping discrepancies,

whether those issues arose from the EIS access route mapping or the larger-scale landowner mapping. The review

process revisited aerial imagery, landowner access mapping and EIS figures with follow-up vantage surveys, as

necessary. In this context, EirGrid brought a number of access routes to the attention of the attendees at the hearing

in order to enable the Board to assess the modifications proposed to those access routes and those modifications were

brought to the attention of affected landowners and were all assessed. Furthermore, and contrary to a statement at

paragraph 13 of the Affidavit of Maura Sheehy, none of these modifications involved the creation of new entrances or

accesses….

The suggestion made at paragraph 14 of the Affidavit under reply that the development has not been properly been

properly assessed because of the limitation on access of lands…is completely unfounded and rejected. The Board’s

Inspector addressed this issue in the following terms:

‘The majority of the route is situated on lands classified as improved agricultural grassland i.e. with a uniform land

cover. It has been selected to avoid sensitive receptors and to ensure that the siting of the towers etc. minimises

potential impacts. The appraisal of the existing environment was not limited to desk top studies as contended by

the observers. I would point out to the Board that EirGrid were granted access to c. 25% of the lands and were in

a position to conduct visual assessment of another c. 38%, resulting in an assessment of c. 63% in total of the

lands along the alignment. The appraisal was assisted by the use of LiDAR (recognised to have a high degree of

accuracy), high resolution aerial photography, the use of third party published data sets/on line mapping, vantage

point surveys, extended ecological surveys etc., allowing a comprehensive and detailed evaluation of existing

environmental conditions to be established.

Whilst many of the observers query the efficacy of such measures, and I accept that it was not possible, for example,

to obtain the level of detail required to identify specific species types in woodland in the Brittas estate, EirGrid were able

to demonstrate the accuracy of the information provided during the various modules of the oral hearing. The Board will

note from the various sections of this report the level of detail obtained and presented on the existing

environment….Having reviewed the EIS, NIS and all the supporting documentation to the application, the observers’

submissions, applicant’s response and having considered the matters raised at the oral hearing, I am satisfied that the

information is sufficiently detailed and comprehensive to allow the Board to carry out the robust and accurate

assessment of the development for the purposes of EIA and EIS.”

147. It is useful at this point to turn to the environmental impact statement and the point at which it sets out an explanation of the

locations and terrain relevant to the access routes, stating, inter alia, as follows:

“Temporary access routes capable of accommodating construction plant, construction materials and personnel are

required for the construction of each tower, installation of the conductor and the setting up of guarding locations….

There are three locations along the proposed route where vehicular access is typically required for construction of OHL:

Access to tower sites….

Access to stringing locations….

Access to guarding locations….

Access routes to tower sites enable the deployment of excavators or piling rigs together with foundation materials…and

for the removal of excess spoil. For tower erection, approximately 10 tonnes for an intermediate tower to 32.5 tonnes

for an angle tower of steelwork will be delivered to each tower location site and erected using a gin/derrick pole….

As noted previously, appropriate route and site selection is the most effective method of avoiding or minimising the

environmental effects of development….

The first part of the identification process is to develop some general principles to guide the decisions about identifying

potentially suitable temporary access routes to construct the proposed development.”

148. The general guidelines are identified and the text of the environmental impact statement then continues as follows:

“Temporary access tracks tend only to be laid where there may be poor ground conditions, a sensitive receptor or

sensitive land use….While the terrain of the proposed development is generally undulating with favourable ground

conditions likely to be encountered for a vast majority of the proposed route, construction techniques and

machinery may vary to accommodate localised ground conditions along specific parts of the route and/or as a

result of weather conditions during the construction period. For the purposes of this appraisal, all temporary

access routes have been assessed based on very wet weather conditions, expansive construction techniques with

heavy machinery/equipment.

Details of the alternative types of temporary access route for wet conditions relative to land use, condition and

having regard to specific environmental conditions are set out below. It is noted that these are not mutually

exclusive in all cases and that a particular temporary access route may incorporate different track types along its

length.

Type 1.

Good quality land…: In general, the laying of temporary tracks is not required. Using tracked machinery (low

ground pressure vehicles where possible) usually means that access to tower sites can be achieved with relative

ease using existing roadways where available and the crossing of fields.

Type 2

Relatively dry/peat land or very sensitive areas: Where a defined track is required, temporary rubber matting or

aluminium road panels would be used to distribute the weight evenly. Low ground pressure vehicles would also be

used where possible.

Type 3

Very poor, soft, wet boggy and/or undulating land with unfavourable ground conditions: In such conditions roads

with stone or wooden sleepers may need to be constructed. This involves the excavation of the topsoil and

storage of this to one side of the track. A geotextile reinforcement would be placed on the subsoil surface and

stone placed on top and compacted to form the track….

Based on the assessment criteria…the vast majority of access routes identified…will be Type 1. The access routes or

part of the routes to the following tower locations and associated ancillary works have been identified as Type 2 which

potentially require rubber matting or aluminium tracks….Type 3 roads constructed with stone or wooden sleepers will

not be required at any of the proposed tower locations, stringing areas or guarding locations, stringing areas or guarding

locations.”

149. Over the next number of pages of the environmental impact statement there follows a detailed appraisal of the methodology that

will be used.

150. So built into the environmental impact statement, all of which has been assessed, is a very considerable amount of detail which

in turn is supplemented by the draft construction management plan, which was also submitted as part of the environmental impact

statement. The sheer level of information that was provided and addressed in the course of the development consent process,

coupled with the opportunity that was given to anybody who wished so to do, to make submissions in relation to the access routes

means that the applicants’ contention as to any information deficiency in this regard must fail: the information was there and a proper

assessment was duly carried out.

(v) The Agricultural Liaison Officer/s.

151. Condition 2 contained in the Board Order provides as follows:

“Prior to the commencement of development, an Agricultural Liaison Officer or Officers shall be appointed and shall be

responsible for liaison with landowners, prior to and during the construction phase of the project, to identify and address

issues of concern to individual landowners including disease protocols, if relevant, in accordance with the measures set

out in the application for approval, and thereafter for the operational phase of the development.

Reason: To ensure the satisfactory completion and operation of the development in the context of agricultural

activities.”

152. To the extent that there is any suggestion that the creation of the Agricultural Liaison Officer is somehow objectionable, this is

not accepted by the court. The above-quoted condition was suggested by the Inspector and adopted by An Bord Pleanála, not

having been proposed by the developer. It does no more than to vest one or more officers with the function of liaising with the

landowners, identifying their issues of concerns, and addressing them. It creates a conduit for ongoing engagement. It is not obvious

how this could conceivably prejudice anybody, and in point of fact it does not prejudice anybody: rather than being an exclusion from

dialogue, the requirement as to the establishment of the role of the said Officer/s involves the landowners in a continuing dialogue

concerning matters of importance to them.

(vi) Boland et al.

153. It seems to the court that the conditions as to access come within what were referred to at hearing as ‘the Boland criteria’ as

they (the conditions) pertain to matters of detail in the context of the development as a whole. It is as well to pause at this point

and deal briefly with the principal case-law to which the court was referred in this regard, being the decisions in Keleghan and Ors v.

Corby and Dublin Corporation (1976) 110 I.L.T.R. 144, Houlihan v. An Bord Pleanála (Unreported, High Court, Murphy J., 4th October,

1993) and Boland v. An Bord Pleanála [1996] 3 I.R. 435.

154. At issue in Keleghan was an application by the Holy Faith Sisters for the erection of three fabricated classrooms at St Brigid’s

Secondary School in Killester. The application included plans for access. Those plans for access were not approved but when the

permission was granted details were required to be resubmitted for agreement. The case focused on the adequacy of the notice of

intention to apply for planning permission (which had made no mention that the issue of access was going to be part of the

application). So the ratio of the case is not at all on point when one comes to identifying the relevance of Keleghan to the within

application. However, the court’s attention has been drawn to the following obiter observation of McMahon J. in the next-to-

penultimate paragraph of his judgment:

“I think it is better to reserve any decision on the third point made by Mr. Gaffney, namely assuming that the application

had in fact been made as it was constructed by the planning authority, to include access or change of user of the

land....Whether permission has been validly granted by imposing a condition that details of the access be submitted for

agreement, I can see serious difficulties about that from the point of view of planning law. A planning authority is

entitled to grant permission, subject to conditions requiring work to be done, but when that is done the planning

permission must specify the work to be done, and any person, who thinks he is prejudiced by it, can appeal because he

has before him details of the work to be done, but in this case what was granted was permission for access subject to

the details to be submitted for agreement. The public would have no knowledge what details were in fact being agreed

and no way of appealing against the details agreed between the applicants and the planning authority.”

155. The critical difference, and it is a very significant difference, between the facts at play in Keleghan and those here presenting, is

that, in Keleghan, permission was granted for the relevant access, subject to agreement with the planning authority; here, by

contrast, permission for access has neither been sought not granted. A second difference is that in Keleghan the public were to have

no knowledge of what details were being agreed; here there is transparency as to what is to be agreed – and what is to be agreed is

more detail than substance. So in truth when one gets down to the detail of Keleghan, it is, on its facts, far removed from the

circumstances at play in the within application.

156. In Houlihan, Kerry County Council granted permission for the erection of 22 holiday homes, a reception block and the diversion of

a road close by Ballyferriter. Mr. Houlihan objected to the development and an oral hearing was conducted into the application by An

Bord Pleanála who granted permission for the development subject to nine conditions. Mr. Houlihan sought and obtained leave to apply

for an order of certiorari quashing the said decision on a number of grounds. The ground relevant to the within proceedings was that

the conditions attaching to the issue of the planning permission by An Bord Pleanála contained so many matters which were to be

agreed between the developer and the Council that they could result in a totally different development from that originally sought and

that by leaving so many matters to be agreed between the developer and the Council the statutory right of appeal from such

decisions had been removed. In the course of his judgment, Murphy J. observes, at 5-7.

‘[T]he conditions attached to the permission granted by the Board do call for discussion and agreement between the

planning authority and the developer on many issues….[C]ondition (6) requires that a public access road along the

western boundary of the site should be constructed to the requirements of the planning authority. There are, therefore,

approximately twelve matters on which the agreement or approval of the planning authority is required before one can

say with complete certainty what is entailed in the conditions annexed to the permission granted by the Board.

Notwithstanding the number of matters on which agreement is outstanding and the subject matter thereof, counsel on

behalf of the Board contends that these are essentially technical matters which in the interests of all parties, that is to

say, the developer, the planning authority and the local residents, can and should be delegated by the Board to the local

authority and their resolution postponed to a later date. Undoubtedly some degree of flexibility must be left to any

developer who is hoping to engage in a complex enterprise. The issue then is whether the nature or quantity of the

matters left undefined is such as to render the permission granted invalid. In my view - and as I understand it neither

party would disagree - the extent to which flexibility or uncertainty is permissible in a planning permission is largely a

matter of degree. I have little difficulty in concluding that the Board was justified in stipulating that the new access road

should be completed in accordance with the requirements of the planning authority. Again I take the view, though in this

case with a lesser degree of confidence, that the matters stipulated in condition (4) [which was not concerned with

access] are essentially technical matters or matters of detail, decisions on which could be left to the planning authority

and developer without invalidating the statutory decision of the Board. However, it does seem to me that the condition

in relation to the effluent discharge mains deals with a matter which is rather more serious and delegates a discretion

which is very wide in its scope.’”

157. So the condition as to access, at least on the facts before him in Houlihan, was a condition that Murphy J. appears more

wholeheartedly to have embraced than various other conditions that were before him.

158. In Boland, application had been made for the extension and refurbishment of the ferry terminal at Dún Laoghaire. The permission

was granted with an array of matters being left for agreement with the planning authority. These included such matters as plans for

the management of ferry traffic, arrangements for monitoring post-development traffic flows, the new design plans for traffic and

egress arrangements, and plans for the carrying out of certain pedestrian works. Mr Boland applied for an order of certiorari in respect

of the decision of An Bord Pleanála on the ground that the conditions attached to it constituted an improper abdication of its

functions to the local planning authority, thus depriving interested parties of an opportunity to be heard. He was unsuccessful in both

the High Court and the Supreme Court, Hamilton J. observing, inter alia, as follows, at 466-7:

“In imposing a condition that a matter be left to be agreed between the developer and the planning authority, the Board

is entitled to have regard to:

(a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited

degree of flexibility having regard to the nature of the enterprise;

(b) the desirability of leaving technical matters or matters of detail to be agreed between the developer and the

planning authority, particularly when such matters or such details are within the responsibility of the planning

authority and may require re-design in the light of the practical experience;

(c) the impracticability of imposing detailed conditions having regard to the nature of the development;

(d) the functions and responsibilities of the planning authority;

(e) whether the matters essentially are concerned with off-site problems and do not affect the subject lands;

(f) whether the enforcement of such conditions require monitoring or supervision.”

159. In the application now before this Court, the “limited degree of flexibility”, to borrow from the phraseology of Hamilton C.J. (itself

borrowing from the phraseology of Keane J. in the court below) is very limited indeed, because there is already extant here the draft

construction and environmental management plan, waste management plan and traffic management plan, all of which, together with

the mitigation measures, have to be adhered to in any event. Moreover, the matters to be left over for agreement under Condition

3(c) fall properly to be construed as matters of detail, including, it will be recalled, “(i) arrangements for stepping down vehicle size,

(ii) arrangements for off-loading of materials, (iii) short-term road closures, (iv) the phasing of construction works which are

accessed by single lane carriageways, and (v)…arrangements for the transfer and management of concrete, including wash out

facilities.” These are clearly but matters of detail in the context of a major development and thus come within the embrace of item

(a) in the above-quoted segment of the judgment of Keane J. in Boland (with items (b) and (c) being variations on the theme of

detail) and are also justifiable by reference to items (d), (e) and (f).

160. In the course of argument, the court was also referred to the decisions in Sweetman v. An Bord Pleanála [2016] IEHC 277,

Dunnes Stores v. An Bord Pleanála [2016] IEHC 226, and People over Wind v. An Bord Pleanála [2015] IEHC 271, [2015] IECA 272, the

court’s attention being drawn to how the imposition of conditions was treated in those cases as well as to such comments as were

made therein regarding the limited role of the court in a judicial review application. The court notes, and has had regard to, those

decisions but does not consider that it is necessary to engage in a detailed consideration of them; they merely buttress the court in

its assessment of the applicable law, as outlined above.

(vii) Some Further Observations as to Access.

161. It seems to the court that the following further observations can be stated as regards the issue of access, some of which have

been touched upon above.

162. First, as to the issue of how one can have a condition in relation to access if access is not sought, it seems to the court that

the real question is not a ‘how’ but a ‘why’, i.e. ‘why is there a condition for access when access is not sought?’ The reason ‘why’ is

because (i) as part of the EIA, An Bord Pleanála looked at access and (ii) for the reasons specified at the end of condition 3 (“In the

interest of protecting the amenities of the area, sustainable waste management, preventing pollution of surface waters, protection

of existing habitats, and traffic safety”), it has seen fit to impose conditions in relation to access – and those conditions are clearly

relevant to proper planning and sustainable development. So access is neither sought nor granted; however, the manner in which

access can be exercised, if it is obtained, has been restricted, even if (as may prove to be the case) that access transpires to be

exempted development. As to the question whether, assuming that one is not dealing with exempted development, the ‘right’ public

have been afforded the opportunity to participate in the planning process (or more exactly whether the public as they exist at any

one time have been offered the opportunity to participate at the right time – public views and objections being varying and

inconstant) that is something which, it seems to the court, is met through the due application of the full rigours of the applicable

approval/permission process at the time when and if access does fall to be sought.

163. Second, the applicants complain that they (and presumably the rest of the public) have been excluded from the process leading

to, or emanating from, condition 3(c). But the fact of any (if any) such exclusion is only relevant if it has a particular legal context.

Here, the public were entitled to and did participate in the environmental impact assessment process, the public was extensively

consulted in relation to the proposed access arrangements (with two rounds of public consultations, even before the application was

lodged, and a split oral hearing, the second part of which was devoted to a seriatim examination of each access route and each

access point. Some of the amendments and objections and difficulties of the land owners were taken into account during that

process and changes made). When matters are viewed in that context it seems to the court that one is far removed from the facts

that presented in Holohan & ors v. An Bord Pleanála [2017] IEHC 268, a case on which the applicants placed some reliance and which

is considered below, with the contention as to exclusion becoming even weaker (to the extent that it has any strength at all, and the

court respectfully does not consider that it does) when one recalls that, pursuant to condition 2, as touched upon previously above,

one or more agricultural liaison officers are to be appointed who “shall be responsible for liaison with landowners, prior to and during

the construction phase of the project, to identify and address issues of concern to individual landowners”, which concerns will

doubtless include issues as to access.

164. Third, it will be recalled that Condition 3(c) of the Board Order provides as follows:

“Prior to the commencement of the development, a construction and environmental management plan, a traffic

management plan and a waste management plan shall be submitted to, and agreed in writing with, the relevant planning

authority following consultations with [named] relevant statutory agencies….This plan shall incorporate the mitigation

measures indicated in the Environmental Impact Statement and shall provide details of the intended construction

practice for the proposed development, including:

…(c) site specific arrangements for each temporary access route to include, where necessary:

(i) arrangements for stepping down vehicle size,

(ii) arrangements for off-loading of materials,

(iii) short-term road closures,

(iv) the phasing of construction works which are accessed by single lane carriageways, and

(v) the arrangements for the transfer and management of concrete, including wash out facilities.”

165. A couple of observations might now be made regarding this condition:

(1) one of the points made by the applicants is that Condition 3(c) is concerned with work/s and development. The court

respectfully disagrees. There is no application for such permission, no determination that it is required, and EirGrid holds

fast to the position that it is not (the issue does not fall to be resolved by this Court at this time).

(2) Condition 3(c) must be viewed in the light of Condition 1(b) which, it will be recalled, provides as follows:

“All environmental mitigation measures set out in the Environmental Impact Statement, Natura impact statement,

and associated documentation submitted by the undertaker with the application and the further information

received by An Bord Pleanála by way of the ‘Response to the Issues Raised’... shall be implemented in full.”

The court, in the general observations made at the outset of the within judgment, has noted the extent of the EIS that was a

feature of EirGrid’s application. The extensiveness and thoroughness of the EIS has, inter alia, the following consequence: when the

applicants make the argument that Condition 3(c) goes beyond more detail, it is incumbent on them to establish that this is so. As will

be clear from those parts of the EIS that the court has considered in its judgment (and these are just a part of a greater mass of

most comprehensive text) it is prescriptive, it is detailed, and it has all been assessed in a process into which the public had a right of

participation. In such a context it does not suffice for the applicants merely to say ‘This goes beyond Boland-style detail’. They must

show exactly what are the substantive issues that these conditions leave open and, with respect, they have failed to show so. If one

looks at items (i) to (v) these seem the almost pernickety details that would classically be left over in the manner in which they have

been left over. And if one looks to the types of plan to which reference is made, EirGrid put before An Bord Pleanála detailed draft

construction and environmental management, traffic management, and waste management plans which specify various mitigation

measures to be taken. These remain as draft plans at this time (apparently because it was not possible to finalise them in advance of

the permission) but those protections, as the court understands matters, will be the minimum level of protection going forward.

166. Fourth, the applicants contend that one cannot ‘leave over’ assessment of environmental effects and that this condition

breaches that requirement. First, An Bord Pleanála has expressly determined that it has sufficient information to assess the

environmental effects of the project. Second, although sufficiency of such information is a matter for An Bord Pleanála, the court

notes again that EirGrid put before An Bord Pleanála detailed draft construction and environmental management, traffic management,

and waste management plans which specify various mitigation measures to be taken. So, just by way of example, one finds the

following in the inspector’s report (under the heading “Construction Environmental Management Plan” or ‘CEMP’):

“Dr Tierney (NPWS) [National Parks and Wildlife Service] expressed concerns regarding the final CEMP and its preparation

by a contractor which may include the resolution of technical details and matters that could influence the nature and

significance of the effects of the proposed development on the environment. It was made clear by EirGrid that all

elements of the outline CEMP will be included in the final CEMP. It sets the minimum standards that must be achieved to

ensure the protection of the receiving environment. Any additional measures that may be incorporated in the final CEMP

as a result of conditions will provide at least the same or a better standard of protection. I accept that this is standard

practice in construction projects and does not mean that an inferior level of protection will be provided.”

167. So in relation to flora and fauna and then seriatim in relation to any other consideration of this issue under any of the other

environmental criteria, it is emphasised in each case that the draft plans will be subsumed into the final plans and will provide minimum

levels of protection which can be enhanced but will not be diminished.

XIV. Alternatives

(i) Overview.

168. The applicants contend that An Bord Pleanála has failed to consider alternatives to the proposed development. It will be recalled

that at para. 135 of the applicants’ written submissions, the deficiencies contended to arise in this regard are as follows:

“135. The First Named Respondent erred in failing to assess the alternatives to the proposed development, including: (i)

failing to properly and comprehensively consider the undergrounding option or partial undergrounding option of the

proposed development; (ii) erred in determining that the overhead power line was more appropriate and cost effective

when compared to other alternatives, including undergrounding; (iii) had no and/or insufficient regard to the rights of

affected landowners and the potential health hazards associated with the overhead lines when assessing alternatives to

the project; (iv) failed to ensure that a proper cost/benefit analysis of the proposed development was completed; (v)

had no or insufficient regard to alternative interconnectors and PCIs, specifically the First Named Respondent had no

regard to the potential alternative interconnector between Ireland and the United Kingdom of Great Britain (including

Northern Ireland) namely the Interconnection between Srananagh (IE) and Turleenan (UK).”

(ii) The Consideration of Alternatives Undertaken.

a. Route Alternatives.

169. The EIS sets out the rationale for the various route alternatives considered for the proposed development, how these were

evaluated against various environmental constraints and how the preferred route was justified. The inspector, in his report,

concludes, inter alia, that “Whilst it is correct to say that the study area and the route corridor remain largely similar to the

previous proposal...it is incorrect to suggest that this was accepted as a fait accompli.” The inspector then continues:

“The review process took place in a series of steps or phases between 2010-2012 resulting in the publication of two

reports both of which were subject to public consultation. The first phase culminated in the publication of the Preliminary

Re-evaluation Report in May 2011….It consisted of a comprehensive re-evaluation of the previous application, the EIS

and supporting documentation, written and oral submissions made to the Board in connection with the previous

application and any new information that emerged since its withdrawal.

It re-affirmed the strategic need for the development and re-evaluated the study area and the rationale for same. One

of the principal considerations determining the original study area was the need to connect to the most robust parts of

the transmission systems north and south of the border.”

170. The inspector goes on to state that the Woodland substation in Meath and the planned new substation in County Tyrone were

identified as the two most robust points, then continues:

“The review process revisited the principal assumptions and recommendations of the various studies previously prepared

and concluded that no new environmental consideration or other relevant material had arisen in respect of the original

evaluation process....Having established that the previously identified study area remained the most appropriate for the

routing of the proposed interconnector, previously identified key environmental and other constraints were re-evaluated.

New information was also considered including changes in relation to constraints....Baseline data was updated and while

minor variations between current and previous findings were identified...it was established that no new constraints

information arose….Once key environmental and other constraints were identified, the next stage in the process was the

re-evaluation of the previously identified route corridor.”

171. Given that the two book-ends of the proposed development had been identified, the corridor between them was the next stage

in the process. Thus, the inspector continues:

“Addendum reports were prepared to compliment the earlier Route Constraint Reports, providing further analysis of the

impacts of each route corridor on the key constraints. It was established that the updated constraints did not have

material implications for the locations of the previously identified route corridor options. EirGrid were also satisfied that

the process did not result in the emergence of any previously unidentified route corridor of equal or greater merit than

those already identified in respect of the previous application….Each corridor option was then evaluated against the

identified constraints. The evaluation criteria were reviewed and updated….This route option was evaluated as having

the lowest potential for creating long term adverse significant impacts which cannot be mitigated….

Phase I of the re-evaluation process concluded with the identification of a preliminary line route for the proposed

interconnector within a preferred route corridor, which was considered a viable and environmentally acceptable

preliminary indicative line route. The Preliminary Re-evaluation Report which resulted from the process was then subject

to public consultation.”

172. The second phase of the review process resulted in the publication by EirGrid, in April 2013, of the “North-South 400kV

Interconnection Development, Final Re-evaluation Report”, which report, like the preliminary report was considered by An Bord

Pleanála, as before the court. The inspector continues:

“It [the report] took into consideration the feedback received through the consultation process associated with the

Preliminary Re-evaluation report and important documents published in the interim, including the Independent Expert

Commission Report….The robustness of the study area was confirmed, following a re-evaluation of the study areas,

which included an additional area east of Navan and a straight line option at the request of the Board. No new significant

environmental or other constraints were identified and it was concluded that the updated constraints did not have

material implications for the previously identified route corridor options. No additional and/or previously unidentified route

corridor emerged from the re-evaluation process that was considered of equal or greater merit to those identified route

corridors that were considered in respect of the previous application….Corridor Option A in the CMSA [Cavan Monaghan

Study Area] and Route Corridor 3B in the MSA [Meath Study Area] emerged as the overall preferred route corridor within

which to route the proposed development. This route option was evaluated as having the lowest potential for creating

long-term adverse significant impacts which could not be mitigated....Whilst the preferred route...is broadly similar to

the 2009 line route, it is not identical. It incorporates localised modifications….Contrary to the suggestion made by the

observers...EirGrid did not seek to rely solely on the information presented in the previous application….[I]t conducted a

comprehensive re-evaluation….Much of the data contained in the EIS and associated studies remained relevant to the

process of identifying and assessing the main effects....This highly iterative process ensured that the public and other

stakeholders had the opportunity to engage and feed into this process….I accept that the re-evaluation process

conducted by EirGrid is clear, unambiguous and comprehensive.”

173. As to the alleged failure to consider other route options, the inspector observes, inter alia, as follows:

“It is clear that the consideration and evaluation of the various route options is an involved process, which has taken

place over a considerable period of time. It is too simplistic to assume that the line can be routed in a particular way,

or, away from a particular area, without having due regard to the complexities that surround the evaluation process.

The merit of each of the individual route corridors has been assessed in the EIS against a plethora of environmental,

technical and other constraints. It is clear that there are environmental constraints associated with each option and the

aim of the evaluation process is to find the most appropriate balance (or ‘best fit’) between the various technical,

environmental and other evaluation criteria. The geographic positioning of the development is influenced by the strategic

need...to connect into robust points on both transmission systems and the desire to seek the shortest environmentally

and acceptable route between those connection points. The route alignment put forward for this application has been

assessed against viable alternatives and found to be the most acceptable solution.”

174. There has been suggestion by the applicants that not enough consideration was given by EirGrid to an Interconnector route that

would go via Srananagh, County Sligo to Turleenan, County Tyrone, instead of by way of the intended Woodland-Turleenan route.

This criticism appears to derive from the fact that both Commission Delegated Regulation (EU) No. 1391/2013 and the 2015 Regulation

refer, when it comes to clusters of electricity projects on the island of Ireland refer to both the Srananagh-Turleenan and the

Woodland-Turleenan routes. However, any concern in this regard appears to the court to have been allayed by Mr John Fitzgerald,

the previously mentioned Director of Grid Development and Interconnection with EirGrid who avers, inter alia, as follows in his affidavit

evidence:

“In respect of the other project referenced [in the European Union legislation]… namely Srananagh (IE) and Turleenan

(UK), I say that the Srananagh/Turleenan (via South Donegal) project (also known as RIDP 1) was identified following a

set of studies carried out by EirGrid and NIE to identify solutions to facilitate a connection of existing levels of renewable

generation in Co. Donegal and the north and northwest of Northern Ireland. PCI status was sought because the project

was cross-border in nature and had the potential to bring benefits to both jurisdictions. However, I say that whilst

EirGrid was a promoter for the inclusion of Srananagh-Turleenan in the PCI List, that project was never promoted as an

alternative to Turleenan-Woodland high capacity inter-connector….

At all events Chapter 5 of Volume 3B of the EIS considered Route alternatives and set out at Section 5.2.1.1 Broad Study

Area Alternatives for a Second Interconnector, including Option 3: Western Study Area, based on a new 275kV

transmission line between substations at Coolkeeragh, Co. Derry, and the then planned 220kV station at Srananagh,

County Sligo. However, as set out in Volume 3B, it was found that the Srananagh node would not facilitate the level of

transfer capacity required due to overloads on neighbouring 110kV circuits. Moreover, there were also transient stability

limitations associated with the western option. Accordingly, having considered an interconnector interlinking the

Northern Ireland transmission system with the EirGrid transmission system at Srananagh, it was concluded that any

option terminating in Srananagh would not provide the required transfer capacity to Northern Ireland, including a line

from Turleenan. It should be noted as the Srananagh 220kV node has only one high-capacity link (to Flagford 220kV

station), issues of the same magnitude would arise with either a line terminating (there) or directly connected into

Flagford station…..

The development of the Renewable Integration Development Project is only possible once the North South

Interconnector is completed. This is because the North South Interconnector creates a duplicate high-capacity

interconnector to the existing interconnector…with the necessary capabilities to commit the Irish and Northern Irish

networks to securely connect and benefit from each other. The RIPD 1 does not provide these capabilities and is not

alternative to the North South Interconnector.…

The need for the RIPD 1 project is to enable the export of renewable power from Donegal and west of north western

Northern Ireland to other parts of the island. The RIPD 1 project was envisaged to achieve this with three elements. A

new extra-high capacity circuit from Donegal…and another from western Northern Ireland back to the nearest extra-

high capacity network stations in the Irish and Northern Irish networks (Srananagh and Turleenan) formed the first two

elements. The third element is a circuit (at 275kV) that links the terminating stations in Donegal and Western Northern

Ireland…across the border. This third element is required to provide an alternative path for the renewable power to be

exported following the loss of either of the first two elements….

Subsequently, when addressing SEA-related issues in her report, the Inspector stated:

‘It is contended in the submissions that the statutory process is flawed due to the failure to carry out SEA level on

the application and various plans and programmes which set out the framework for the project. Reference is made

in the submissions to the Renewable Energy Directive [and]…the National Renewable Energy Action Plan. During the

oral hearing Mr. Hillis also referred to the regional Integrated Development Plan’….

As outlined above, it is clear that the ‘need’ identified cannot not be realise from the RIDP 1 (Srananagh-Turleenan)

project. In short, a circuit developed in a western study area will not provide the necessary capacity to address the

identified (and accepted) need. The North- South interconnector project (Woodland - Turleenan) on its own is sufficient

to address this need or ‘bottleneck’. The RIPD project will ultimately provide additional capacity in counties Donegal and

western counties of Northern Ireland to connect generation into the transmission network - a need which the North

South interconnector project cannot achieve. Accordingly, as the needs addressed by the two projects do not ‘address

the same bottleneck’ and cannot be competing projects, and the North South interconnector is not dependent on RIPD,

the two projects are not placed in either ‘a cluster of interdependent PCIs’ or ‘a cluster of competing PCIs’….

Moreover, as the level of generation in Donegal and western counties of Northern Ireland does create an ‘uncertainty

around the extent of the bottleneck’, in this instance, the market…will ultimately determine if RIDP1 is required. In which

case, both projects, and not just the second North South Interconnector project may progress.”

175. What is clear from the foregoing is that in no sense was (or indeed is) the Srananagh-Turleenan route an alternative to the

Woodland-Turleenan route. That would, with respect, be like saying that the M50 motorway is an alternative to the M6 motorway; of

course, they are both motorways, but they are not alternatives to each other in terms of what they can actually achieve. That

simple point being so, i.e. the fact that the two interconnector routes are not alternatives, the decision of the High Court in Holohan,

when it comes to alternatives, and a decision on which the applicants have sought to place some reliance, is, with respect, of no

relevance.

b. Consideration of Technology, including Undergrounding.

176. Any fair review of the abundant material which is before the court and was before the Inspector discloses that EirGrid gave

exhaustive consideration to the feasibility of undergrounding in a number of different guises and respects. Consideration was given to

the option of an entire AC undergrounded interconnector. That presented acute technical issues. It considered a complete DC option

which would have involved interposing into this part of the grid, which is AC, a DC component of significant length. It considered a

partial undergrounding solution – a specific report on this question was requested by An Bord Pleanála and provided. It looked at

undergrounding along the local road network, along the M3, and along a disused railway line. All of these alternatives were considered

by EirGrid not to be suitable on a variety of different grounds, some concerning cost, others being more technical issues. The AC

connector was not a feasible alternative because it would not be compatible with good utility practice. Undergrounding using the DC

cable was not in accordance with good utility practice but was also costly. And when it came to partial undergrounding solution there

were a range of environmental issues presenting. These issues, each of them the subject of comment in varying degrees by observers

in the course of the written submissions were addressed by EirGrid in its responses and agitated at the oral hearing also. A useful

summary of the issues presenting this regard is to be found in the affidavit evidence of Mr John Fitzgerald, in which he avers, inter

alia, as follows:

“As is clear, and contrary to the assertions made [in certain affidavit evidence furnished by the applicants]…EirGrid

considered both an entirely undergrounded option and a partial undergrounded option….

By way of summary, [the] consideration of alternatives, including undergrounding options, comprise[d] the following: (a)

extensive consideration by EirGrid of the undergrounding option as part of the project re-evaluation process which

followed the withdrawal of the previous application in 2010; (b) specifically commissioned reports in respect of

undergrounding in particular the PB Power reports and other reports which were included with the planning application in

volume 3B of the EIS; (c) the EIS volume 3B which addressed undergrounding and/or partial undergrounding; (d) EirGrid's

‘Response to the Issues Raised in Submissions and Observations’ document dated 19 October 2015 which, inter alia,

addressed submissions relating to undergrounding; (e) the partial undergrounding report…which was produced in

response to request from the Board; and (f) evidence at the oral hearing as part of the alternatives module and

throughout the oral hearing in response to specific submissions relating to undergrounding….

In the latter respect, alternatives were discussed in Module 1.6 (Consideration of Alternatives) on 15 and 16 March. At

the oral hearing both Mark Norton and Aidan Geoghegan responded on behalf of EirGrid to the submissions made, refuting

any suggestion that EirGrid had not fully assessed the underground option. The issue of alternatives, including

undergrounding, was also raised by individual landowners in Part 2 of the oral hearing and EirGrid responded to those

submissions. The Inspector's Report deals with Alternatives at section 5.4. Alternative transmission technologies,

undergrounding using AC cable, undergrounding using a DC cable, undergrounding under the local road network, the M3,

a disused railway and partial undergrounding were all addressed as were alternative tower designs including monopole

support structures. The inspector’s report concludes:

‘I accept, following the comprehensive re-evaluation process undertaken by the applicant, that the Board can be

satisfied that EirGrid has justified the final line design as the optimum solution to meet the overall objectives of the

development, having regard to strategic and environmental constraints and the technical requirements for the

proposed development.

Following the consideration of alternative transmission and technology alternatives, I accept that it has been

comprehensively demonstrated that the only way to meet the strategic and technical need for the proposed

development is to provide and new and physically separate high capacity interconnector.

I accept, having regard to the strategic importance of the proposed interconnector as part of the all-island

transmission network, the lack of strong interconnection between Ireland and Northern Ireland and the

overwhelming need for reliability and security of supply in terms of the all-island electricity market, that

notwithstanding the alternatives considered and the advancements in technology, on balance it would appear that

the most appropriate and cost effective technology to satisfy the requirements of the proposed North-South

Interconnector development is an overhead high voltage alternating current power line.’”

177. The material that was relied upon by the inspector in this regard and that was before her was extensive. The court seeks briefly

to identify that material hereafter.

178. First, in the EIS, under the heading “Specific Studies Commissioned by the Respective Applicants on Alternative Transmission

Documents”, the following text appears:

“The respective applicants have worked together over many years to jointly consider and assess the various

technological alternatives available for the proposed second interconnector. In order to ensure that the development

process was fully and properly informed with respect to the available technological alternatives (notwithstanding the

initial presumption that OHL would represent a superior solution and that an acceptable OHL route could be identified for

the proposed interconnector) the respective applicants jointly commissioned five studies to evaluate potential

transmission alternatives specifically for the proposed interconnector. The main objective of the studies was to inform

both companies about the latest available alternative transmission technologies, and also to assist the on-going

consultative and planning processes relevant to the overall project as applicable to elements being proposed within each

jurisdiction….

Four of these studies were informed by specific data on the actual technical characteristics of the transmission systems

within each jurisdiction on the Ireland and by reference to the geographic locations and prospective routes applicable to

the required transmission circuits. The studies were:

The PB Power Preliminary Briefing Note (…2008)….

The PB Power Study (…2009)….

The TEPCO study (…2009)….

The TransGrid Study (…2009)….

The PB Power Technology and Costs Update (…2013)”.

179. A five-page table follows, headed “Reports on Alternative Transmission Technologies Commissioned Jointly by the Respective

Applicants” and comprising sections headed “Report Title”, “Context of Report” and “Main Findings/Observations of Report”. All of

these various documents and others were before the inspector and considered. Indeed, as the court considers the documentation

that went before the inspector, it is apparent that any suggestion that the proposed North-South Interconnector Project was

assessed solely on a cost basis – although certainly it was assessed, inter alia, on a cost basis – is patently not correct. Technical

(including environmental) considerations were to the fore of the proceedings and deliberations of the inspector and hence,

subsequently, An Bord Pleanála.

180. When it comes to the issue of alternative transmission technologies, the inspector was informed by a number of reports

examining the technology alternatives available for the proposed development, including by reference to the wider European context,

the inspector observing in her report, inter alia, as follows, under the heading “European experience”:

“I accept that different projects require different solutions. EirGrid accepts that the DC option is feasible, but rejects it

on the grounds of technical and cost considerations. Having regard to the significant technological advances made and

which continue to be made in technology, the Board may wish to seek specific expert opinion on the current feasibility of

integrating a HVDC system into the existing AC meshed network [something that EirGrid had said was not possible].

However, having taken into considerations all of the arguments made, the strategic importance of the proposed

interconnector as part of the all-island transmission network, the lack of existing strong interconnection between Ireland

and Northern Ireland and the overwhelming need for reliability and security of supply, on balance it would appear that

the technology currently best suited to satisfy the requirements of the proposed North-South Interconnector

development is an overhead high voltage alternating current power line.”

181. The court ends where it starts: any fair review of the abundant material which is before the court and was before the Inspector

discloses that EirGrid gave exhaustive consideration to the feasibility of undergrounding in a number of different guises and respects

and the inspector’s assessment and conclusion, and the order of An Bord Pleanála, were and are founded on this exhaustive analysis.

c. Cost-Benefit Analysis.

182. The alleged failure of EirGrid to conduct a proper cost-benefit analysis of the proposed development is also considered by the

inspector. There is discussion as to how much more expensive undergrounding would be than over-grounding, the inspector eventually

concluding as follows in this regard:

“I accept, following the comprehensive re-evaluation process undertaken by the applicant, that the Board can be

satisfied that EirGrid has justified the final line design as the optimum solution to meet the overall objectives of the

development, having regard to strategic and environmental constraints and the technical requirements for the proposed

development.

Following the consideration of alternative transmission and technology alternatives, I accept that it has been

comprehensively demonstrated that the only way to meet the strategic and technical need for the proposed

development is to provide a new and physically separate high capacity interconnector.

I accept, having regard to the strategic importance of the proposed interconnector as part of the all-island transmission

network, the lack of strong interconnection between Ireland and Northern Ireland and the overwhelming need for

reliability and security of supply in terms of the all-island electricity market, that notwithstanding the alternatives

considered and the advancements in technology, on balance it would appear that the most appropriate and cost

effective technology to satisfy the requirements of the proposed North-South Interconnector development is an

overhead high voltage alternating current power line.”

(iii) Some Legal Issues Presenting.

183. It is difficult in the confines of a judgment to do justice to the extensive consideration of alternatives that has been undertaken

by EirGrid, as assessed thereafter by the inspector. Suffice it for the court to note that in its consideration of alternatives, EirGrid has

clearly gone above what the EIA Directive requires. Article 5(3)(d) of the EIA Directive requires a developer to set out “an outline of

the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the

environmental effects.” Nowhere in the EIA Directive is there any language which requires or suggests that the rigours of an EIA have

to take place with regard to alternatives that are discounted.

184. Here, the applicants contend that there should be a full assessment (in terms of an environmental impact assessment) of all

rejected alternatives. But this is not what the EIA Directive requires. It clearly states that a proposed development should be

assessed for its likely significant effects on the environment. It states that to enable the competent authority so to do, information

has to be provided. But this information is not required to comprise a statement of the likely significant effects of alternatives that

are studied and discounted but rather, as referred to above, “an indication of the main reasons for his choice, taking into account

the environmental effects.” If the same assessment was required for alternatives as is required for the proposed development, the

EIA Directive would have said this, and it does not. Whether the obligation contended for by the applicants is to be read into the EIA

Directive by reference, say, to the precautionary principle or the rules of interpretation of European Union law will be the subject of

welcome enlightenment by the CJEU following the reference made to it in Holohan. But for now the court prefers to proceed by

reference to the unvarnished wording of the EIA Directive and sees naught in European Union law that requires it to do otherwise.

Support, in domestic precedent, for the reading of the EIA directive that is being adopted by the court in this regard is to be found in

the decision of MacMahon J. in his, if the court might respectfully observe, customarily helpful judgment in Klohn v. An Bord Pleanála

[2009] 1 I.R. 59, the import of which is that a developer is under no obligation to describe the full range of likely significant effects of

options which have been fully discounted on objective and transparent grounds. And there is, it seems to the court, much to

recommend such an approach. After all, the choice for a competent authority is not between a development as proposed and a

development as not proposed, but rather as to whether or not it should consent to a proposed development in light of an

understanding of the likely significant effects of same on the environment. To the extent that the applicants contend, if they

contend, that the most environmentally friendly option must be put forward or chosen, this does not appear to be what European law

requires. As A-G Kokott observes in her Opinion in Case C-420/11, Leth v. Republik Österreich, para. 42, “[T]he EIA Directive does not

preclude the implementation of a project even in the case where the environmental impact assessment establishes that there are

significant negative effects on the environment.”

XV. Health Impacts

(i) Electric and electro-magnetic fields.

185. Among the points contended for by the applicants at the hearing of the within application were the alleged deficiencies

presenting in terms of the assessment of health impacts. Again, it is necessary to turn to the detail of the inspector’s report to

assess the contentions made in this regard. Turning then to that report, one finds under the heading “Health Service Executive”

(‘HSE’) the following text:

“Electromagnetic Fields

Based on the weight of research in the field, the HSE is satisfied that as long as the development complies at all times

with the international exposure limit guidelines as established by the INCIRP [the International Commission on Non-Ionizing

Radiation Protection], there will be adequate protection for the public from any electromagnetic field sources”,

and, later again, after touching on an alleged association between proximity to overhead lines and childhood leukaemia, the inspector

observes as follows:

“Following the publication in 1979 of an epidemiology study by Wertheimer and Leeper that suggested an association

between childhood cancer and proximity of the children's homes to powerlines, numerous epidemiology studies have

been published. These studies investigated many health outcomes, in both adults and children, including cancer and non-

cancerous diseases such as heart disease, and reproductive effects.

By the turn of the millennium independent review bodies were carrying out weight of evidence reviews of the ELF EMF

[electric and magnetic field] health research literature. These included the World Health Organisation (WHO) and the EU

organisations. In 2001, the International Agency for Research on Cancer (IARC) carried out such a review. As an agency

of the WHO, which is considered the primary organisation for cancer risk assessment, it regularly and systematically

reviews various physical and chemical agents and exposure scenarios, to determine their potential for carcinogenicity in

humans.

The IARC classification of ELF EMF in the 2B category as ‘possibly carcinogenic to humans’ was heavily influenced by two

pooled analyses that combined and analysed data from available childhood leukaemia epidemiological studies. Whilst the

pooled analyses showed a statistical association, it did not provide any support for a carcinogenic effect. This

classification implies that the reported association was considered credible but causality was not established….

The second and most comprehensive weight of evidence review of both cancer and non-cancer health outcomes and

ELF EMF exposure has been conducted by the WHO, which published its Environmental Health Criteria (EHC) report on

ELF EMF in 2007. The EHC report confirmed the earlier conclusion of IARC about the limited evidence from

epidemiological studies of childhood leukaemia and ELF EMF and inadequate evidence from in vivo studies. The EHC

report did recognise the statistical association between childhood leukaemia and exposure to high levels of magnetic

fields, but could not rule out the possible effect of other factors... on these results. For all other cancers... the evidence

does not support an association with ELF EMF.

The third review of note was conducted by the Scientific Committee on Emerging and Newly Identified Health Risks

(SCENIHR). It is the European Union's scientific committee….[Its reports] did not confirm the existence of any adverse

health effects.

In Ireland in the same year, the Department of Communications, Marine and Natural Resources…assembled an expert

group that also reviewed the evidence on ELF EMF and health effects. The conclusions of this group were consistent

with those of the EHC [that being the World Health Organisation report]….

[T]he paper by Draper et al (2005) is one of the reports most commented on by the observers….I note that that Brunch

et al., 2014 updated and extended the previous report by Draper and it reported no overall association with residential

proximity to 132kV, 275kV and 400kV power lines for leukaemia or any other cancer among children. The statistical

association with distance that was report in the earlier study was not apparent in the extended analysis.

There is also frequent reference by the observers to another report which supports an alternative view….the Bio-

Initiative Report 2007.

[The Bio-Initiative Report]…has been heavily criticised by heavily independent and governmental research groups for its

lack of balance and rigorous evaluation of the scientific evidence. It was not sanctioned by any professional or scientific

organisation. The review did not follow the weight of evidence approach and the conclusions were not developed as

consensus opinions, but were the opinions of individual authors. The ‘evidence’ is contrary to previously mentioned

weight of evidence reviews, such as the WHO (2007) and SCENIHR (2009)…and (2015)….

The conclusions reached in the report are in line with the conclusions of the SCENIHR in its 2015 Opinion and it re-affirms

the overall conclusions of the 2007 Expert Group commissioned by the Irish Government. It concludes that based on

current findings, the evidence for the various potential long-term health effects of exposure to ELF with strengths below

the limits in the European recommendation is limited or inconsistent.

In response to the argument made by Dr. P. O'Reilly... I would point out to the Board that the Council of the European

Union has recommended limits on the strength of EMF to which members of the general public may be exposed. These

recommendations are based on guidelines [from the ICNIRP]….

The European recommendation is not legally binding but has been adopted by the Commission for Energy Regulation.

EirGrid is required to comply with the EU/ICNIRP limits to ensure both the protection of the health, safety and welfare of

its staff and the general public. There is no suggestion in the application that the proposed development will be

developed other than in compliance with the guidelines. With regard to siting of powerlines, the proposed development is

routed away from towns and major centres of population, through rural countries with low population densities”.

186. The inspector's summary conclusion on the above-mentioned issues is as follows:

“[T]he relevant scientific literature has been repeatedly and systematically reviewed by a number of international and

national health, scientific and governmental agencies, all of which conclude that the available evidence does not confirm

the existence of any health consequence from exposure to ELF EMF. The proposed development will be designed and

operated to comply with ICNIRP guidelines to ensure protection of public health.”

(ii) Childhood leukaemia.

187. The inspector then moves on to consider the alleged “Increased risk of childhood leukaemia” that the proposed pylon-focused

North-South Interconnector project is contended to present, the inspector noting, inter alia, as follows:

“Several…studies are documented in the EIS and in [the] applicant’s response…none of which establish a statistically

significant or causal relationship between childhood leukaemia and residential proximity to power lines….

In conclusion, while epidemiological research carried out over an extended period has shown some association between

long term exposure to ELF magnetic fields from high voltage overhead power lines and an increased prevalence of

childhood leukaemia, the health effects are unproven. The relationship fails to show how long lasting exposure to ELF

magnetic fields from power lines actually causes an increase in childhood leukaemia, i.e. causality has not been

established. I would point out to the Board that it is the view of the ICNIRP that ‘the currently available existing scientific

evidence that prolonged exposure to low frequency magnetic fields is causally related with an increased risk of childhood

leukaemia is too weak to form the basis for exposure guidelines. In particular, if the relationship is not causal, then no

benefit would accrue from reducing exposure’”.

(iii) Other cancers.

188. The inspector then moves on to consideration of the alleged “Increased risk of other cancers”, observing, inter alia, as follows:

“The potential health effects of ELF EMF fields on various cancers has been researched. To date, there is insufficient

evidence for a relationship between exposure to ELF magnetic and electric fields and adult cancers.”

(iv) Non-cancerous diseases.

189. As to the alleged “Increased risk of other non-cancerous diseases”, the inspector makes, inter alia, the following observations:

“Potential links with various reproductive outcomes such as miscarriage and low birth weight have been extensively

studied. Research by SCENIHR did not show an effect of ELF EMF on the reproductive function in humans.”

(v) Children with Autism.

190. When it comes to the issue of alleged “Impacts on children with Autism”, the inspector, after noting that particular over-ground

cable will be replaced with under-ground cable to allay the concerns arising in respect of a particular family, then continues as

follows:

"Dr Hogan (EirGrid) noted that the WHO guidelines are health based and are designed to protect the most vulnerable,

which would include individuals with ASD [autism spectrum disorder]. He reiterated that noise levels for the proposed

development had been calculated and that not alone is it in compliance, but is significantly below the guideline level. He

hoped this would provide some level of comfort to the observers….

The question is whether the OHL [overhead lines] will make the situation significantly worse. He said the WHO guidelines

do consider sensitive individuals and for something like noise, one has to consider those with ASD as most sensitive. The

WHO levels are set very low and the levels that will be experienced will be below those values.”

(vi) Compliance with the ICNIRP Guidelines.

191. Certain observers at the hearing conducted by An Bord Pleanála raised issues regarding electromagnetic exposures on their

property. In this regard, the inspector observes, inter alia, as follows:

“Mr Geoghegan (EirGrid) confirmed two surveys were undertaken by EirGrid in 2010 and 2013. The surveys were carried

out at various locations....[T]hese surveys confirmed that the fields measured were extremely low, relative to the levels

set down in the INCNIRP and EU Guidelines.”

192. At a later point, under the heading “Other matters”, the inspector notes that among the views urged on her by counsel for one

of the objectors at the hearing which preceded her report was the suggestion “that the hearing should be advised independently by

experts on the effects of electromagnetic fields”. However, the inspector did not consider this necessary: “Having regard to the

substantial information available to the Board on this topic the reviews from scientific agencies including the updated opinion from

the SCENIHR and the…report commissioned by the Government and published in 2015, I do not consider that this course of action is

warranted”.

193. The inspector then moves to her conclusion regarding the issue of electromagnetic fields, stating as follows:

“Ireland has adopted the ‘precautionary principle’ by adopting the internationally recognised standards and guidelines for

both occupational and public exposure to electromagnetic fields.

The proposed development will be designed and operated to comply with international exposure limit guidelines for EMF

as established by ICNIRP.

Significant research has been carried out and published opinions consistently find that exposures to EMF does not

represent a health risk if the exposure remains below the existing limits set by the European Council’s recommendations.

There are currently no epidemiological studies published on autism to support a link with EMF.

Various studies have been carried out in different scenarios on the impacts on pacemakers and other medical devices

and none suggest significant evidence of interference from high voltage lines.

Current evidence does not confirm the existence of any health consequence from exposure to ELF EMF. Similarly, there

is no evidence that proximity to high Voltage power lines on crop production or quality.”

194. The foregoing is a succinct summary of the abundant evidence that was put to An Bord Pleanála through its planning inspector

and her report, which evidence itself is itself backed up by even more abundant evidence that includes, in the environmental impact

statement, a lengthy section devoted specifically to the analysis of health risks, which chapter is engaged with in detail in the portion

of the report touched upon above. The environmental impact statement itself cross-refers to some 250 medical texts that are listed

in an appendix to the environmental impact statement. So it is not only difficult for the applicants convincingly to make (and the

court does not in any event accept) the contention that appropriate matters were not assessed by An Bord Pleanála, or that An Bord

Pleanála did not have adequate material before it to meet a conclusion broadly akin to that which its inspector had previously

reached.

XVI. The Whooper Swan

195. In his oral submissions, counsel for the applicants made reference to the Whooper Swan, a large swan that winters in Ireland.

The court must admit to some surprise that the issue of the Whooper Swan was raised at all at hearing. This is because there is

nothing in the statement of grounds about the Whooper Swan. So, to that extent, its fate is simply not part of the application at

hand. Second, insofar as counsel referred to the portions of the inspector’s report which deal with the whooper swan, he did not,

with respect, point to any deficiency or alleged deficiency in the manner in which impact on the Whooper Swan was assessed. Third,

Condition 6 of the Board Order makes provision as regards whooper swans and provides as follows:

“Prior to commencement of development, the undertaker shall agree a monitoring programme for the Whooper Swan

with the relevant planning authority following consultation with the National Parks and Wildlife Service. The monitoring

programme shall be based on standard good practice and shall include details in relation to location, frequency, duration

and methodology. A copy of the results of the monitoring programme shall be submitted to the relevant planning

authority and to the National Parks and Wildlife Service.

Reason - To ensure appropriate monitoring of the impact of the development on Whooper Swans.”

196. Insofar as any point was made about this condition, the point appears to be that including a requirement for a monitoring

programme must have as a logical premise that the assessment which preceded the imposition of such condition has been deficient in

some manner. Perhaps the best way to answer this complaint is by referring to the rationale offered in the inspector’s report (under

the heading “Monitoring”) as to the inclusion of such a condition, viz:

“The DAHG [Department of Arts, Heritage and Gaeltacht] suggest that in order to confirm the effectiveness or otherwise

of the mitigation measures and to provide a greater understanding of the frequency of bird collision events with

overhead lines, a targeted monitoring programme should be undertaken.

EirGrid have responded positively to such a proposal. The monitoring programme proposed will include mortality surveys

at high risk areas carried out fortnightly to assess the number of fatalities arising from collision….It will also include

[inter alia] flight activity monitoring surveys….These will provide information on any spatial or temporal shifts in bird

abundance and distribution relative to baseline data. It will also determine whether additional sites require vantage point

monitoring for flight activity based on any changes in the distribution of key species and whether additional mitigation is

required.

There is no centralised database for collision data and the monitoring proposed by EirGrid will be advantageous in terms

of accumulating information on bird movements, collision risk and the effectiveness or otherwise of the bird diverters.

Should the Board be minded to grant approval for the development, I recommend that a condition be attached requiring

an operational monitoring programme in accordance with the requirements of the DAHG.”

197. When one has regard to the just-quoted text, it is apparent that the reason for including Condition 6 is not because there has

been inadequate assessment prior to imposition of Condition 6, but rather with a view to ascertaining the ongoing effectiveness of the

mitigation measures, and ascertaining whether or not further surveys might be required or further mitigation measures required.

XVII. Closing Submissions

198. The court turns now to deal with a number of matters that were the subject of especial focus in the closing stages of the

hearing of the within application.

(i) Section 182B(10)(f).

199. Section 182B(10) of the Act of 2000 provides, inter alia, as follows:

“In considering under subsection (1), information furnished [under s.182B(1)] relating to the likely consequences for

proper planning and sustainable development of a proposed development in the area in which it is proposed to situate

such development, the Board shall have regard to…

(f) the provisions of this Act and regulations under this Act where relevant.”

200. Does the above-quoted provision have the effect of importing, inter alia, the requirement as to landowner consent that one finds

in Art. 22(2)(g) of the Planning and Development Regulations (S.I. No. 685 of 2006) whereby, a planning application must be

accompanied by, inter alia, “where the applicant is not the legal owner of the land or structure concerned, the written consent of

the owner to make the application”? Three points might be noted in this respect:

(1) section182B(10) requires the Board merely to “have regard to…”, no more – and certainly not ‘slavishly to adhere

to...’;

(2) when referring to “the provisions of this Act and regulations under this Act where relevant”, the Oireachtas

presumably intends to refer, inter alia, to regulations that apply to the application, not to regulations that do not apply…

and so not, say, to Art.22(2)(g). The court does not read s.182B(10) as rendering applicable that which is not.

(3) section 182B(10) commences “In considering under subsection (1), information furnished [under s.182B(1)]…”. If one

returns to s.182B(1), the information required to be considered by An Bord Pleanála is identified there and one simply

cannot extrapolate from the provision there made an obligation to provide landowner consent.

(ii) Ordinary and legal intent.

201. The court has touched previously above on the phrase “intends to carry out development” which appears in s.182A of the Act

of 2000. But in his closing submissions counsel for the applicants touched upon a point which had not previously been focused, viz.

whether there is a distinction between ‘intending to do something’ and ‘legally intending to do something’, with the latter being the

intent applicable in the within context, extending only to something which, as a matter of certainty, one can achieve using powers

and abilities within one’s own absolute control. The court respectfully does not accept the purported distinction arising between

intent and legal intent, a proposition which is not supported by authority. But apart from the absence of authority, it is an

interpretation which makes little sense when one has regard to the customary meaning of the word ‘intent’, being a determination to

do something. A person may intend to do things which are contingent on a finite or infinite number of potential contingencies, but the

existence of those contingencies does not compromise the fact or integrity of that person’s intent. In truth, the court sees in this line

of contention as to ordinary and legal intent but a further attempt to carry home the notion that for EirGrid to proceed with the

North-South Interconnector, it must first have landowner consent. But that notion has been examined at some length by the court

previously above, by reference to the applicable legislative scheme, and respectfully rejected by it.

(iii) ‘Brexit’ as an issue of need.

202. Counsel for the applicants, in his closing submissions, appeared somewhat to re-cast the ‘Brexit’ issue touched upon previously

above as an issue pertaining to need. The issue of ‘Brexit’ as originally tended to the court has been addressed comprehensively

elsewhere above and the court does not propose to re-visit same. As to need, that is an issue that has been comprehensively

touched upon in the planning inspector’s report, and the court understands there to be no issue to be taken with the assessment of

need per se, but rather with the alleged fact that ‘Brexit’ is a need issue and that need ought to have been assessed in the context

of same. But there is not a jot of evidence before the court by reference to which the court could properly conclude that ‘Brexit’ has

impacted on need in any way. The truth is that changes occur in economic and/or political circumstances all the time. Those changes

do not mean that there is an obligation on planning or other authorities to re-assess every assessment which has transpired simply

because of the possibility, no matter how remote, that there may be an impact on aspects of the matter that they are addressing,

notwithstanding that nothing has actually occurred which can be identified as having a concrete impact.

(iv) Vires.

203. Another point touched upon freshly in the closing submissions of counsel for the applicants was a vires point, being that

conditions which involve matters being addressed with local authorities, e.g., a condition such as Condition 3(c), are impermissible

where approval is sought under Section 182B. To address this it is necessary to return to return to applicable statute and contrast

the manner in which conditions are addressed under s.34 of the Act of 2000 with the approach adopted in s.182. Section 34 of the

Act of 2000 provides, inter alia, as follows:

“(1) Where –

(a) an application is made to a planning authority in accordance with permission regulations for permission for the

development of land, and

(b) all requirements of the regulations are complied with,

the authority may decide to grant the permission subject to or without conditions, or to refuse it….

(4) Conditions under subsection (1) may, without prejudice to the generality of that subsection, include all or any of the

following…[a long and wide range of conditions follow]….

(5) The conditions under subsection (1) may provide that points of detail relating to a grant of permission may be

agreed between the planning authority and the person carrying out the development; if the planning authority and that

person cannot agree on the matter the matter may be referred to the Board for determination.”

204. The position under s.34 falls to be contrasted with that which pertains under s.182B, sub-section (5) of which provides as

follows:

“The Board may, in respect of an application under section 182A for approval of proposed development–

(a) approve the proposed development,

(b) make such modifications to the proposed development as it specifies in the approval and approve the proposed

development as so modified,

(c) approve, in part only, the proposed development (with or without specified modifications of it of the foregoing kind),

or

(d) refuse to approve the proposed development, and may attach to an approval under paragraph (a), (b) or (c) such

conditions as it considers appropriate.” [Emphasis added].

205. To borrow a colloquialism, it seems to the court to be ‘comparing apples and oranges’ to say, in effect, ‘Under s.34 there is

express facility to impose conditions of the kind now in issue; however, there is not like provision in s.182B and so the imposition of

conditions such as Condition 3(c) is not possible’. The generality of the power that An Bord Pleanála enjoys under s.182B(5)(d) to

impose conditions must and does encompass a power to enable An Bord Pleanála, subject to the Boland criteria, to impose, as it did,

conditions such as Condition 3(c) involving the agreement of points of detail with “the relevant planning authority”.

(v) Which Routes Were Approved?

(The ‘Yellow and Purple’ Issue)

206. Counsel for the applicants, in his closing submissions, advanced the argument that the decision of An Bord Pleanála, by

approving “the proposed development” only relates to the (yellow) access routes as originally presented and does not encompass the

(purple) routes as modified during the course of the hearing before the inspector. To test that line of argument, the court proposes to

return to the inspector's report and trace through exactly what was determined by the inspector and how that is reflected in the

impugned decision of An Bord Pleanála.

207. Turning then to the inspector’s report, she concludes her section on the proposed construction methodology with the following

observations:

“The key issues arising in this section of the report relate to the ability of the applicant to predict ground conditions and

assess the viability of access routes, based on the limited access to lands for survey.

It is considered that the applicant has demonstrated that the use of primarily desktop survey work (which includes LiDAR

survey), supplemented by walkover survey, shallow augers and vantage point survey where possible, is consistent with

the approach taken by the applicant in respect of other electricity transmission projects in the State and is sufficient to

predict ground conditions for the design of foundations.

It is noted that the methodology adopted in respect of the proposed access routes (which was not subject to LiDAR

survey) has resulted in alterations to access routes during the course of the oral hearing. As the applicant is not seeking

approval for the proposed access routes, it is considered that this approach is acceptable. Furthermore, it is considered

that the applicant has demonstrated a viable access route to each tower site, guarding location or stringing area for the

entire route corridor and has set out clear principles regarding the proposed use of access routes for environmental

impact assessment, should the indicative routes change.

The remaining technical sections of this report assess the environmental effects of the indicative access routes and the

environmental effects of the proposed construction methodology for the use of these.”

208. There follows an “Alterations Table in Respect of Access Routes to Towers, Guarding Locations or Stringing Areas” identifying

the changes which have occurred, and there is in the report considerable reference to the modifications. However, it is as well to

pause and assess what the inspector is in fact saying in the above text. The historical sequence of events is that the maps furnished

by EirGrid had access routes marked in yellow on them; a number of changes occurred and a suite of maps was produced bearing a

purple dot which showed the revised access routes. Viewed in that context, what the inspector is saying is that the developer has

demonstrated in respect of each tower, a viable access route to same, and that based on the information the inspector has been

given in relation to the access routes (original and varied) she is in a position to conduct an environmental impact assessment, which

she then does in the ensuing sections of the report. (And in this context it is perhaps worth noting that an environmental impact

assessment is an iterative process, i.e. it is a process which includes the environmental impact statement, the submissions made on

the strength of same, the responses to those submissions and, of course, and the forum for public participation which is afforded by

way of a public hearing and in which, in this case, the alterations (the purple lines) were clearly considered).

209. Later still, in the “Reasons and Considerations” section of her report, the inspector writes as follows:

“Whilst it is recognised that the proposed development will result in a limited number of localised impacts, having regard

to the identified strategic need for the development, the routing and detailed design of the alignment to avoid

environmental constraints, it is considered that subject to compliance with the mitigation measures set out in the EIS,

the NIS and the response document and the conditions set out below, the proposed development would be in

accordance with the proper planning and sustainable development.”

210. The inspector then makes her recommendation (being “that approval for the development be granted, subject to the conditions

set out below”), following which she identifies the range of considerations to which she has had regard arriving at her conclusion and

recommendation. In this regard, the inspector refers to all the documentation on file, including, inter alia, the environmental impact

statement and the Natura impact statement, “and the submissions and observations made in respect of the application, including at

the oral hearing”. One cannot read this text and then properly arrive at the conclusion that the inspector (whatever about An Bord

Pleanála) has ignored the routing modifications and has failed to have regard to them in framing her conclusion and her suggested

conditions. Among those suggested conditions are a proposed Condition 5, viz:

“Prior to the commencement of development, a construction management plan, a traffic management plan and waste

management plan shall be submitted to, and agreed in writing with, the relevant planning authority following

consultations with relevant statutory agencies, including Inland Fisheries Ireland and the Department of Arts, Heritage

and the Gaelteacht and Irish Water. This plan shall incorporate the mitigation measures indicated in the environmental

impact statement, and any others deemed necessary, and shall provide details of intended construction practice for the

proposed development, including…

(c) site specific arrangements for each temporary access route, to include, where necessary:

(i) arrangements for stepping down vehicle size,

(ii) arrangements for off-loading of materials,

(iii) short-term road closures,

(iv) the phasing of construction works which are accessed by single-lane carriageways,

(v) the arrangements for the transfer and management of concrete, including wash-out facilities.”

211. The temporary access routes to which reference is made in the just-quoted text can only be the varied temporary access routes

which the inspector has just assessed.

212. What then of An Bord Pleanála? Despite the planning inspector having assessed, inter alia, the varied temporary access routes,

did An Bord Pleanála in its order close its mind to those variations and return to the original proposed temporary access routes? In the

“Reasons and Considerations” segment of its order, An Bord Pleanála states as follows under the heading “Matters Considered”:

“In making its decision, the Board had regard to those matters to which, by virtue of the Planning and Development Acts

and Regulations made thereunder, it was required to have regard. Such matters included the submissions and

observations received by it in accordance with statutory provisions.”

213. The court notes in passing the reference to “included”, rather than ‘included and were limited to…’.

214. Under the heading “Reasons and Considerations”, An Bord Pleanála then moves on to indicate that it had regard, inter alia, to

“all documentation on file including:

(a) the environmental impact statement,

(b) the Natura impact statement,

(c) the joint environmental report,

(d) the submissions and observations made in respect of the application, including at the oral hearing, [and]

(e) the applicant’s response to the submissions received”.

215. So those are the ‘channels of information’ to which regard was had by An Bord Pleanála in reaching its decision and formulating

its conditions. Later, under the heading “Environmental Impact Assessment”, An Bord Pleanála indicates that it has considered, inter

alia:

“ the submissions from the planning authorities, prescribed bodies and from the observers in the course of the

application, including submissions made to the oral hearing;

the applicant’s response to the submissions received; [and]

the Senior Planning Inspector’s report and recommendation dated the 14th day of November, 2016”,

and continues:

“The Board considered that the environmental impact statement supported by the ‘Response to the Issues Raised in the

Submissions/Observations’ document, identifies and describes adequately the direct and indirect effects of the proposed

development on the environment….

In doing so the Board adopted the report of the Senior Planning Inspector.”

216. Thereafter, the conclusions are recorded, which conclusions, of course, overlap with the conclusions reached by the Inspector.

And then, after all these matters are listed, An Bord Pleanála states as follows:

“In conclusion, it is considered that, subject to compliance with the conditions set out below, including compliance with

the mitigation measures set out in the environmental impact statement, the Natura impact Statement and the

‘Response to the Issues Raised in the Submissions/Observations’ document, the proposed development would be in

accordance with the proper planning and sustainable development of the area.”

217. Then comes the “Conditions” section, with a Condition 3(c) that precisely replicates the inspector’s proposed Condition 5, as

quoted above.

218. Despite all of the foregoing and notwithstanding the assessment by the inspector, notwithstanding the clarity as to the

temporary access routes to which she was referring, notwithstanding the fact that An Bord Pleanála adopts, in relation to the

environmental impact assessment, the inspector’s report, notwithstanding the fact that An Bord Pleanála refers to and had regard to

all documentation on file, notwithstanding that An Bord Pleanála refers to and had regard to the submissions made at the oral hearing,

notwithstanding all of the foregoing, the court is asked to believe that the Board addressed its order to temporary access routes

frozen in time for no apparent reason, notwithstanding the process of assessment which had been undertaken and notwithstanding

the specification by the developer of what the modified routes actually were. That, with respect, is a remarkably difficult construction

to place on the decision and not one that the court places upon it.

XVIII. Jus Tertii

219. The thrust of the within judgment, which is not at all favourable to the applicants, is such that the issue of jus tertii (in effect

the pleading of the rights of a third party) is not of the significance that it might otherwise have been. Be that as it may, the court

considers that (i) while, in broad terms, the applicants have standing to bring the within proceedings, (ii) when the court has regard

to the observations as to standing made by Henchy J. in Cahill v. Sutton [1980] I.R. 269, 283, as applied in the context of judicial

review applications in Lancefort Ltd. v. An Bord Pleanála (No. 2) [1999] 2 I.R. 270, it does not see that either of the applicants,

neither of them being landowners, has the requisite standing to make such claims as were made in their pleadings and submissions

concerning allegedly affected landowners. That, to borrow from the phraseology of Henchy J., seems to the court to be a near-

classic example of allowing “one litigant to present and argue what is essentially another person’s case”.

XIX. Closing

220. Few if any of us would welcome the news that a great line of electricity pylons and linking wires was due to be erected on or

across property that we chanced to own or otherwise enjoyed. The applicants to these proceedings, living in a beautiful part of

Ireland and enjoying some of the best of the Irish countryside, understandably object to the fact that the North-South

Interconnector development, as proposed, is to be built upon their properties, by their homesteads, or across their townlands. But

when it comes to the decision of An Bord Pleanála, on 19th December last, to grant approval to EirGrid for the proposed North-South

Interconnector development, the court, for the reasons identified in the preceding pages, is coerced as a matter of law into

concluding that there is no lawful basis presenting that would justify it granting any of the reliefs that the applicants now seek. It

follows that all of the reliefs sought by the applicants at this time must be and are respectfully refused by the court.