The Minster for Infrastructure and The Department for Infrastructure and Safe Electricity A&T Limited and Patrick Woods and The Executive Office
| Jurisdiction | Northern Ireland |
| Judge | Keegan LCJ |
| Judgment Date | 18 October 2022 |
| Neutral Citation | [2022] NICA 61 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 18 October 2022 |
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Neutral Citation No: [2022] NICA 61
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: KEE11959
ICOS No: 2020/076062/01
Delivered: 28/10/2022
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
KING’S BENCH DIVISION (JUDICIAL REVIEW)
BETWEEN:
THE MINISTER FOR INFRASTRUCTURE AND
THE DEPARTMENT FOR INFRASTRUCTURE
Respondent/Appellants
and
SAFE ELECTRICITY A&T LIMITED AND PATRICK WOODS
Applicants/First and Second Respondents
and
THE EXECUTIVE OFFICE
Respondent/Third Respondent
___________
Dr Tony McGleenan KC with Mr Philip McAteer (instructed by the Departmental
Solicitor’s Office) for the Appellants
Ronan Lavery KC, Conan Fegan and Colm Fegan (instructed by McIvor Farrell Solicitors)
for the Respondents
Mr William Orbinson KC, Scott Lyness KC and Emily Neill (instructed by Carson
McDowell LLP Solicitors) for the Notice Party
Interventions were also received in writing from Arc 21 and Indaver (NI) Ltd and the
Attorney General for Northern Ireland
___________
Before: Keegan LCJ, Treacy LJ and Horner LJ
___________
KEEGAN LCJ (delivering the judgment of the court)
Introduction
[1] This is an appeal against the judgment of Mr Justice Scoffield (“the judge”)
delivered on 19 October 2021 and his order of 11 March 2022 whereby he
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substantively dismissed an application by Safe Electricity A&T Limited and
Patrick Woods (“the first and second respondents”) for judicial review in relation to
planning approval for the North-South electricity interconnector but granted a
declaration in the following terms:
“The Department for Infrastructure Minister did not act in
accordance with the provisions of section 2.4 of the
Ministerial Code by failing to refer the significant and/or
controversial decision on the relevant planning
applications to the Executive Committee to be considered
by it for discussion and agreement.”
[2] In making this declaration the judge was clear that an order of certiorari was
not merited as the planning decision was lawfully made and intra vires the
legislation. The judge rejected all other grounds of challenge in a comprehensive
judgment reported at [2021] NIQB 93.
[3] The one point remaining involves an exercise in statutory interpretation to
determine if the relevant Minister breached the Ministerial Code by approving
planning permission without referral to the Executive Committee of the
Northern Ireland Assembly.
Factual Background
[4] The relevant planning decisions involved in this case are the decisions to
grant planning permission in applications O/2009/0792/F and O/2013/0214/F to
facilitate development of what is known as the North-South Interconnector (“the
Interconnector”). The proposals involve constructing and running a 400kV overhead
transmission line from Woodland in County Meath to Turleenan in County Tyrone
over a distance of 138 km in total, with 34 km of line in this jurisdiction. The project
will also involve constructing a new substation at Trewmount Road, Moy,
Dungannon and some 102 pylons in Northern Ireland.
[5] The then Minister for Infrastructure, Nichola Mallon, granted both
applications in respect of the Interconnector on 8 September 2020. Final planning
approval issued on 14 September 2020. This was following amendments made to
section 20 of the Northern Ireland Act 1998 (“NIA”) by the Executive Committee
(Functions) Act (Northern Ireland) 2020 (“the Executive Functions Act 2020”) which
permitted the Department for Infrastructure (“DfI”) Minister to make operational
planning decisions without recourse to the Executive.
[6] The first respondent, Safe Electricity A&T Limited (“SEAT”), is a private
company limited by guarantee. It is a company established to act as a representative
organ in respect of the environmental concerns of a large number of persons to
include landowners, businesses and interested parties affected along the route of the
proposed development of the Interconnector in particular those from the counties of
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