Outrage at Coolnabacky

an-board-pleanc3a1la-building

On Wednesday 23rd April 2014, An Bord Pleanala (ABP) granted planning permission to EirGrid for a substation complex known as the “Laois-Kilkenny Reinforcement Project”. Details can be found here:
http://www.pleanala.ie/casenum/VA0015.htm

Despite widespread opposition from the local communities, some excellent submissions from local organisations and individuals, and the concerns raised by the Senior Planning Inspector, Andrew C. Boyle, relating to the safety of the proposed increased voltage of the cables and their proximity to residential dwellings, the ABP held:

“Therefore, and notwithstanding the proposed increase in voltage of this line, the Board is satisfied that the resulting magnetic field exposure at houses would be far below that of established guidelines, and did not accept the Inspector’s recommendation in relation to public health.”

There were also objections from the Inspector and the local community regarding the accuracy of the description of the project by EirGrid, namely that it was an ‘uprate’ to the existing 110kV line. Local residents argued that it was far more than a simple ‘uprate’. The size and extent of the proposed development suggested a “super station” with the ultimate objective of connecting current and planned windfarms in the surrounding counties to the national grid.

The ABP discounted this objection as well:

“Finally, the Board noted the Inspector’s second concern in relation to the accuracy of the description of the proposed “uprate to the existing Ballyragget–Kilkenny 110 kV overhead line”. The Board considered that the description as set out in the public notices is satisfactory. The Board noted that this section of existing line is already permitted at 110 kilovolts and was constructed accordingly, and notwithstanding the current operational voltage, the Board is satisfied that the public would not have been misinformed in any material way as to the principal nature and extent of the proposed development, and that the rights of the public to participate in the planning, environmental impact assessment and appropriate assessment processes have not been infringed.”

Please note this is not legal advice, so don’t act on it! I am trying to help explain the current situation to a lot of shocked and confused people out there just as to what the hell is going on. If you want legal advice, please go to a lawyer!

Where to now? Well, I am not an expert in Planning Law but it seems to me, from my own reading, that there is only one route: A Judicial Review Application to the High Court.

Section 50(2) of the 2000 Planning Act (as amended by the 2006 ‘Strategic infrastructure’ Act) says:

(2) A person shall not question the validity of any decision made or other act done by—

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,
(b) the Board in the performance or purported performance of a function transferred under Part XIV, or
(c) a local authority in the performance or purported performance of a function conferred by an enactment specified in section 214 relating to the compulsory acquisition of land,

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (the ‘Order’).”

This ‘new’ Section 50 (2) says, in a nutshell, that all decisions of ABP made under the 2000 Act as amended must be challenged under the special judicial review procedure in terms of Section 50.

My first concern is that the new section significantly expands the scope of decisions which are subject to the special judicial review procedure. In addition to “decisions”, the new section inserts the words “or acts done” by the Board, planning authority, and/or local authority. This means that not only formal decisions but also acts of ABP (including its officials) are subject to judicial review. Therefore any act, even though it was not a formal decision within the context of the planning application, is subject to judicial review under the restricted judicial review procedure of s.50.

This has implications for the time limits for instituting judicial review proceedings. For example, in Linehan v Cork County Council, unreported, High Court, Finley Geoghegan J., February 19, 2007, it was noted that the change in the Act may mean that acts or decisions have to be challenged as they occur, rather than waiting until the final decision at the end of the process.

The reason for my concern is that the local newspapers carried reports at the time of various objections being raised at the public hearing and those objections were dealt with by the ABP official at the time. For example, the Laois Nationalist reported on 20 November 2013 (http://www.laois-nationalist.ie/news/2013/11/20/day-1-heated-exchanges-abp-oral-hearing/):

“A leading environmentalist, Peter Sweetman, who is representing the RTS (Ratheniska Timahoe Spink) substation action group, and beyond, as well as David Bland, made a legal submission to the hearing before it began. He said that the ABP looking for further information during the hearing for an environmental impact statement (EIS) was, in his opinion, “an illegal act”. He said: “If costs come into this, they will be against ABP. It will be gross incompetence of the board.”

Mr Sweetman claimed that the hearing was unlawful and should not proceed. He said that it was quite possible that a judicial review would be sought in the case. He sought the opinion from a senior source within ABP to his legal challenge.

The ABP inspector overseeing the hearing, Andrew Boyle, said that he was working within his remit and had powers to continue the oral hearing and was intending to do so.”

On the face of it, this seems to be a violation of the audi alteram partem principle. This principle says that both sides to a dispute must be given a fair and equal opportunity to challenge the case against them. This late introduction of evidence would seem to prevent the opponents to the application from properly challenging it, which is unfair.

However, if the decision of Andrew Boyle constitutes an “act done” for the purposes of Section 50, should the application for judicial review have been made at the time of the act under consideration?  In other words, should his decision have been challenged within eight weeks of the public hearing, rather than waiting for the final ABP decision of last Wednesday? The requirement to bring proceedings within eight weeks from when the decision is made (or act done) may mean that the court will carefully scrutinise whether proceedings could have been brought to challenge an earlier act. See Linehan v Cork County Council, unreported, High Court, Finlay Geoghegan J., February 19, 2007. See also the comments of Murray C.J. in Harding v Cork County Council, unreported, Supreme Court, May 2, 2008.

This interpretation would be extremely unfair to community groups and affected citizens, who do not necessarily know of the existence of Section 50, let alone its extended provisions. However, Section 50(8) of the 2000 Act (as amended by S13 of the 2006 Act) does allow the High Court to extend the period of eight weeks if it is satisfied that “there is good and sufficient reason for doing so” and “the circumstances that resulted in the failure to make the application for leave within the perios so provided were outside the control of the applicant for the extension”. If that decision to allow the late evidence from EirGrid concerning the EIS turns out to be crucial, then those people challenging that decision will need to convince the Court to allow them to challenge it now, even though it happened in 2013.

For the benefit of my non-legal readers, I will try and explain what a judicial review is all about and what needs to be proved in order to be successful.

Firstly, what is the difference between a review and an appeal?

In a nutshell, with an appeal the decision made is challenged as being wrong. The merits of the decision itself are challenged – you are claiming that the decision-maker was wrong in their interpretation of the law and/or the evidence, and you ask the appeal court to replace the wrong decision with a correct one of their own. In other words, to use a criminal law example: ‘the jury found me guilty. I am taking my conviction on appeal because I am innocent and therefore they were wrong”.

A review is a different animal. Rather than challenging the substance of the decision, you are challenging the procedure followed in reaching that decision.

Essentially the review court will look at three primary areas:

Legality: it must be within the power of the body or individual to make that decision.
Fairness: the decision making process must follow fair procedures.
Rationality: the decision must be rational in the sense that the decision maker (ABP) considered all the factors they had to consider and disregarded any factors they should have ignored / not considered.

Let’s just look at those three areas in a bit more detail:

When considering the legality of a decision, the review court is primarily looking at whether ABP had the power to do what it did. A statutory body like the ABP has defined powers and it is important that it does not act outside those powers or in excess of its powers (known as ‘ultra vires’ – outside the law). It is therefore important for the person or group bringing the application for review to go over the conduct of the hearing very carefully and make sure that all the things that the ABP did during that hearing were within its powers / authority, and that the type of decision it made is allowed by the law that controls the ABP.

When considering the fairness of the decision, the review court will make sure that the prescribed or stated procedures are followed. If there is a specified format that ABP hearings must follow, then it must be followed. Failing any specific procedure, there are two major rules that must be followed, and these are known as the Principles of Natural Justice.

Apologies for the Latin, but the first Principle is nemo iudex in causa sua, which means nobody can be a judge in his own court. In practical terms, if any ABP official stood to gain from, or had a personal or special interest in, the planning permission being granted or refused, they needed to walk away from the application and hearing and have nothing to do with it (“recusal”). The second Principle is audi alteram partem which means “let the other side be heard”. What this means is that if anybody is going to be affected by the planned substation, etc., they must be given a fair chance to make their opposition known, and they must be allowed to challenge the people making the application in the first place, by challenging EirGrid’s evidence and by bringing their own evidence. What we are talking about here is a level playing field – both the applicant (EirGrid) and the opposition (the community affected by these proposed structures) must be given a fair and equal opportunity to put forward their own case and challenge their opponent’s case.

Finally, the review court will look at the rationality of the decision. This is a tough one. Remember that the review court is not looking at the decision itself but rather how that decision was reached. What this means is that, to find a decision irrational, it must be a completely mad decision before the court will overturn it. What the law says is that the decision must “plainly and unambiguously fly in the face of fundamental reason and common sense”. In other words, the decision must be so mad that only a lunatic could have made it. Some would think that anybody who says the creation of a seventeen bay substation is necessary to upgrade a 110kV cable is so crazy they must have been off their head at the time, but that is their opinion, you need to convince the judge!

The other thing that it is necessary to understand is that even if the application for review is successful, the review court will not replace the decision it overturns with its own decision. What the court will say is: “You got it wrong, ABP, do it again”. In other words, if the decision is successfully reviewed, you will have to start at the beginning again, with a new ABP hearing. This is not such a bad thing, as the delay caused might give some people at Eirgrid the time they need to realise that the whole project was insane in the first place.

To the communities in Killkenny and Laois affected by this proposed monster sub-station, I wish you strength in your battle. You are not alone.

 

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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