Safe Electricity A&T Limited and Patrick Woods Application for Judicial Review and in the matter of decisions of The Minister for the Department for Infrastructure and The Executive Office
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2021] NIQB 93 |
| Date | 19 October 2021 |
| Court | Queen's Bench Division (Northern Ireland) |
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Neutral Citation No: [2021] NIQB 93
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11650
ICOS No: 20/076062/01
Delivered: 19/10/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF APPLICATION BY SAFE ELECTRICITY A&T LIMITED
AND PATRICK WOODS FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF
THE MINISTER FOR THE DEPARTMENT FOR INFRASTRUCTURE
AND THE EXECUTIVE OFFICE
___________
Ronan Lavery QC, Conan Fegan and Colm Fegan (instructed by McIvor Farrell, Solicitors)
for the Applicant
Tony McGleenan QC and Philip McAteer (instructed by the Departmental Solicitor’s
Office) for the Respondents
William Orbinson QC, Scott Lyness QC and Emily Neill (instructed by Carson McDowell
LLP, Solicitors) for the Notice Party
___________
SCOFFIELD J
Introduction
[1] This case concerns the amendments made to the Northern Ireland Act 1998
(“the NIA”) by the Executive Committee (Functions) Act (Northern Ireland) 2020
(‘the 2020 Act’) and the extent to which those amendments permit the first
respondent, the Minister with responsibility for the Department for Infrastructure
(“DfI”), to make planning decisions without recourse to the Executive Committee of
the Northern Ireland Assembly in the absence (yet) of any amendments to the
Ministerial Code.
[2] The applicants are opponents of the current plans for the development of a
North-South Electricity Interconnector (‘the Interconnector’), which are more
particularly described below. They are concerned about the decision of the DfI
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Minister made on 14 September 2020 to grant planning permission in respect of two
associated planning applications relating to the development of the Interconnector.
[3] The applicants’ primary ground of challenge is that this decision could not
lawfully be taken by the Minister without her having referred the matter to the
Executive for discussion and agreement in compliance with her obligations under
the Ministerial Code; and that the amendments made to the NIA by the 2020 Act
were insufficient on their own for this purpose. Their second ground of challenge, if
driven to fall back on this, is that the 2020 Act itself was unlawful and ultra vires on a
variety of bases. As I observed during the course of the hearing, it appears to me
that the applicants’ second ground of challenge is more significant than a mere
back-up point and more properly falls to be dealt with first, given its broader
significance (if correct). Accordingly, I deal with it first in the discussion below.
[4] Mr Lavery QC appeared for the applicants with Messrs Conan and
Colm Fegan; Dr McGleenan QC appeared for the respondents – the Executive Office
and the Minister with responsibility for the Department for Infrastructure – with
Mr McAteer; and Mr Orbinson QC appeared for the notice party – the System
Operator for Northern Ireland (“SONI”), the beneficiary of the planning permissions
under challenge – with Mr Lyness QC and Ms Neill. I am grateful to all counsel for
their comprehensive and helpful written submissions, which were supplemented by
more focused but nonetheless valuable oral submissions at hearing.
The factual background
[5] It is unnecessary to dilate upon the factual background to this application in
any great detail, since the outcome ultimately turns on questions of law. The only
real factual dispute in the case was whether the grant of the impugned permissions
was significant or controversial. Nonetheless, it is appropriate to provide a short
summary of the factual position which has given rise to the issues of legal dispute
which require resolution.
[6] The first applicant is Safe Electricity A&T Limited (“SEAT”), a private
company limited by guarantee with its registered address at 190 Monaghan Road,
Armagh. According to the applicants’ Order 53 statement, it is a company
established to act as a representative organ in respect of “the environmental
concerns of a large number of the persons affected along the route of the proposed
development of the North-South Interconnector.” One such person is
Mr Patrick Woods, the second applicant, a retired person who lives in the country,
near the border, outside Armagh. Mr Woods is in ill health but is a regular walker
outside his home. His evidence is that the route of the proposed Interconnector
passes overhead at the road on which he regularly walks and that it will ‘overhang’
part of his land. He is concerned about the effect of the Interconnector, if built, upon
his health, upon the value of his land, and upon the amenity of himself and his
family who live nearby. Without taking any view on the strength or validity of
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Mr Woods’ concerns, he is in my view plainly someone with standing to bring the
present challenge.
[7] An affidavit has also been provided from a company director of the first
applicant, Mr John Woods. He describes SEAT as a company bringing together
landowners, business people and interested parties from the counties of Armagh
and Tyrone (the ‘A&T’ of the company title) “in a common effort to ensure that new
electricity power lines be laid underground in the said counties”, which reflects its
objects as set out in its Memorandum of Association; and confirms that the company
passed a resolution authorising the present proceedings to be brought in its name.
[8] The decisions under challenge are the decisions to grant planning permission
in applications O/2009/0792/F and O/2013/0214/F. These decisions will facilitate
development of the Interconnector, also referred to as the Tyrone-Cavan
Interconnector. The proposals involve constructing and running a 400kV overhead
transmission line from Woodland in County Meath in the Republic of Ireland to
Turleenan in County Tyrone in Northern Ireland – over a distance of some 138 km in
total, with 34 km of line in this jurisdiction. They will also involve constructing a
new substation at Trewmount Road, Moy, Dungannon; and some 102 pylons in
Northern Ireland.
[9] A public inquiry was convened by the Planning Appeals Commission
(“PAC”) to consider the proposals. Its commissioners reported in November 2017,
recommending that planning permission be granted in respect of both applications,
subject to the imposition of appropriate conditions. The Permanent Secretary of the
DfI then granted planning approval for the project in January 2018, during a period
when the Northern Ireland Executive was not functioning and there was no minister
in charge of the Department. That decision was challenged by way of judicial
review (including by the first applicant) and quashed by the court in light of the
decision of the Court of Appeal in Re Buick’s Application [2018] NICA 26.
[10] However, after the restoration of devolved government in January 2020, and
indeed after the passing of the 2020 Act with which these proceedings are centrally
concerned, it was announced that the Minister for the Department, Ms Mallon MLA,
had granted full planning permission for the Interconnector (that is to say, in respect
of both of the applications). It is this decision which is impugned in the present
proceedings. Departmental submissions relating to the consideration of the
applications and the Minister’s decision have been provided to the court. It is
common case, however, that the Minister did not refer the decision to the Executive
Committee for it to discuss and agree upon the question of whether the planning
applications should be granted or refused.
The applicants’ challenge
[11] The applicants have not pursued any grounds of challenge relating to the
planning merits of the development proposals or grounded on any alleged failure to
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