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Sunday 18 February 2018

Court hears landowners rights not taken into account in North-South connector decision

The proposed interconnector which is due to run from Batterstown in Meath, to Turleenan in Co Tyrone.  Photo: Getty Images
The proposed interconnector which is due to run from Batterstown in Meath, to Turleenan in Co Tyrone.  Photo: Getty Images

Tim Healy

An Bord Pleanala failed to take into account the rights of affected landowners or the potential impact of Brexit in approving the development of the North-South electricity interconnector, the Commercial Court has been told.

Members of the North East Pylon Pressure Campaign Ltd, representing about 190 affected landowners, and Maura Sheehy, a farmer, of Teltown Road, Donaghpatrick, Co Meath, were in the packed court on Tuesday for the opening of their challenge to the Board's approval. 

The case by the group and Ms Sheehy is against An Bord Pleanála; the Minister for Communications, Energy and Natural Resources; and the State, with Eirgrid plc, the developer, as a notice party. 

Conleth Bradley SC, for the applicants, said the grounds of challenge include failure by the Board to properly address the rights of the landowners, environmental issues or potential impact of Brexit. 

The case is being heard by Mr Justice Max Barret who will also later hear two separate other challenges over the permission brought by David Malone, of Eurolaw Environmental Consultants, St Joseph's Terrace, Portarlington, Co Laois, and Val Martin, a farmer and environmental campaigner of Gortnakesh, Cavan.  

All three cases concern the December 19, 2016, decision by the Board, following a 12 day oral hearing, to grant EirGrid permission, subject to various conditions,  to construct almost 300 pylons in counties Meath, Cavan and Monaghan. 

The interconnector is planned to run from Batterstown in Co Meath to Turleenan in Co Tyrone. Eirgrid had said the overall cost of construction will be €286m - €180m for the proposed development in the Republic and €106m for the Northern Ireland element. 

Outlining the landowners case, Mr Bradley said the dialogue concerning the interconnector was between the planning authority and the developer and the landowners were excluded. 

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In contrast to the application concerning the northern aspect of the development, the planning application here did not include an application for access to affected lands south of the border, he said.

While the developer maintains access is provided for arising from the environmental impact assessment, the applicants claim that access has to be applied for in the planning application raises an important legal issue concerning the difference between an EIA and a planning permission or approval, he said.

The landowners' exclusion from dialogue concerning conditions for the development breached their rights under the Constitution and European Convention on Human Rights, counsel submitted.

The Board, it is also argued, breached the Environmental Impact Assessment directive concerning assessment of the environmental effects of public and private projects.  The Board, it is claimed,  failed to ensure appropriate public participation in the process or to consider or apply any appropriate mitigation measures in respect of the EIA process.

Mr Bradley argued the rationale of the Board and developer centred on costs, security and exense but not the environment. 

It is also alleged the Board's decision is contrary to the Habitats Directive and failed to consider the situation of the Whooper Swan.  

Further arguments include there was no lawful basis for the Board to exercise decision making power in relation to a permit granting procedure for Projects of Common Interest (PCI) or Clusters of PCI. 

The Board, it is alleged, was not lawfully designated as a competent authority, to grant approval for the development under Section 182B of the Planning and Development Act 2000.

Mr Bradley said minutes of meetings in 2016 and 2017 indicated concerns by the developers in this joint venture -  Eirgrid and SONI in Northern Ireland, that the designation of provision of electricity on this island under an integrated single electricity market will be revisited as result of the UK leaving EU. None of the concerns raised by the developer were assessed and considered by the Board in its role as competent authority, counsel argued. 

The case continues.

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