Supreme Court dismisses appeal against north-south electricity interconnector permission

Eirgrid's interconnector project comprises a 400kV overhead line circuit linking an existing substation in Woodland, Co Meath, with a planned substation in Turleenan, Co. Tyrone.

The project is planned to provide a second high-capacity all-Ireland interconnector alongside the existing 275kV double circuit overhead line between Co. Louth and Co. Armagh.

In agreeing to hear an appeal over the High Court decision, the Supreme Court said the case raised issues of general public importance.

Those included whether An Bord Pleanála (ABP) was lawfully designated by the State as a "competent authority" under the 2013 Project of Common Interest (PCI) EU regulation and whether its functions in that role created a conflict in respect of its role in approving the proposed development.

The State is required under the regulation to designate “one national competent authority” to be responsible for facilitating and coordinating the permit-granting process for projects of common interest. The regulation obliges a project promoter to facilitate public participation and report to the competent authority on the results of that.

Where relevant, the competent authority is also to “actively support the activities undertaken by the project promoter”.

Today, all five judges agreed, for the reasons set out in a judgment of Ms Justice Mary Finlay Geoghegan, the appeal should be dismissed.

While four of the judges disagreed with Ms Justice Finlay Geoghegan’s view the board was not lawfully designated a competent authority because the designation was not done by primary legislation, all five agreed that did not vitiate the Board’s approval decision.

All five also agreed the planning decision issued by the Board in December 2016 was not vitiated by an apprehension of objective bias on the board’s part.

Ms Justice Finlay Geoghegan said a reasonable person knowing all relevant facts, including the provision of the PCI regulation, would not reasonably apprehend that the Board, because of its designation as a competent authority, might be biased in the performance of its functions or in deciding the planning application.

Even if the majority shared her view the Board was not validly designated as a competent authority, that would not vitiate the board’s approval, she said. The decision stands on its own and no steps taken by the Board as competent authority affected its consideration in the statutory permit-granting procedure under section 182A of the Planning and Development Act 2000, she said.

The judge also rejected arguments the Board was obliged to conduct an environmental impact assessment of alternative proposals considered by Eirgrid.

In a judgment setting out the reasons why the other four judges disagreed with Ms Justice Finlay Geoghegan on the competent authority designation issue, Mr Justice Donal O’Donnell said there was no doubt the Board’s designation could have been done by primary legislation.

However, that was not the “only” method of designating the Board a competent authority, he said.

Designation is a vital legal step as it triggers the statutory conferral of power on the Board but there is no requirement that the trigger itself must be statutory in nature, he said.

It is enough that the member state effects the designation by a valid instrument and such designation can be effected by a letter of the assistant secretary on behalf of the Minister for Communications, Climate Action and the Environment, he said.