Supreme Court dismisses appeal; statutory designation not required, valid instrument suffices for Board's authority.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[Appeal No: 2018/000046]

Clarke C.J.

O’Donnell J.

Charleton J.

O’Malley J.

Finlay Geoghegan J.

IN THE MATTER OF AN APPLICATION PURSUANT TO THE PLANNING AND DEVELOPMENT ACT 2000, AND

IN THE MATTER OF AN APPLICATION PURSUANT TO S. 50 AND S. 50B OF THE PLANNING AND DEVELOPMENT ACT 2000, AND

IN THE MATTER OF AN APPROVAL GRANTED UNDER S. 182B OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

Between/

North East Pylon Pressure Campaign Limited

First Named Applicant / Appellant

and

Maura Sheehy

Second Named Applicant/Appellant

and

An Bord Pleanála

First Named Respondent

and

The Minister for Communications, Climate Action and the Environment

Second Named Respondent

and

Ireland and the Attorney General

Third and Fourth Named Respondents

and

EirGrid Plc

Notice Party / Respondent

Judgment of O’Donnell J. delivered the 19th day of February 2019

1 I have read the judgment about to be delivered by Finlay Geoghegan J., and I agree with her that the appeal should be dismissed. I

also agree that if there was any invalidity in the designation of An Bord Pleanála (“the Board”) as competent authority, that in itself

would not invalidate the permission granted by the Board pursuant to s.182B of the Planning and Development Act 2000 (as amended)

(“the 2000 Act”). I also agree that there was no obligation to conduct an EIA of the alternative proposals considered by EirGrid, and,

finally, that the appellant should not be permitted to raise any issue under the Convention on Environmental Impact Assessment in a

Transboundary Context (“the Espoo Convention”) at this stage. However, I respectfully differ from Finlay Geoghegan J. on the initial

question of the validity of the designation of the Board as competent authority, and since the matter may be of continuing

importance, I will briefly set out my views.

2 I gratefully adopt the lucid account of both the facts and relevant law contained in the judgment of Finlay Geoghegan J. The

central issue in this appeal arises here because Article 8 of Regulation (EU) 347/2013 on guidelines for trans-European energy

infrastructure (as amended) (“the PCI Regulation”) requires each Member State to designate one national competent authority to be

responsible for facilitating and coordinating the permit granting process for projects of common interest, and to choose the form of

scheme to be applied to the issuing of the comprehensive decision as to whether the building of energy infrastructure to realise a

project will be authorised. Designation of the Board as competent authority was purported to be effected here by a letter of 4

December 2013, which was signed by an assistant secretary in the Department of Communications, Energy and Natural Resources and

sent to the chair of the Board. The letter informed the chair that the Board “is hereby designated as competent authority for the

purposes of the [PCI] Regulation”, and also indicated that the designation was on the basis of the operation of the collaborative

scheme referred to in Article 8(3)(c) of the PCI Regulation. The letter was copied to the European Commission. There is no doubt,

therefore, that the letter purported to effect a decision on the choice of scheme as contemplated by the PCI Regulation. However, it

is argued that, because the body being designated is one created by statute (in this case, by the Local Government (Planning and

Development) Act 1976, and continued in existence pursuant to ss. 102 and 103 of the 2000 Act, s.102(2) of which provides that the

Board shall perform the functions assigned to it by the 2000 Act), such a body can only have powers conferred by statute, and

cannot enlarge its jurisdiction in any way: see the judgment of McKechnie J. in County Louth Vocational Education Committee v. The

Equality Tribunal [2016] IESC 40, (Unreported, Supreme Court, 13 July 2016), at para. 35. It is agreed that the question of validity of

designation is a matter of national law. It is argued, and Finlay Geoghegan J. agrees, that the designation could only be lawfully

effected by primary legislation, or, in this case, since the designation is pursuant to a regulation of the European Union, by a

statutory instrument made under the European Communities Act 1972, which for present purposes is the functional equivalent of

primary legislation.

3 There is no doubt that the designation could have been effected by primary legislation amending the 2000 Act, either expressly or

by implication, and there are perhaps good reasons of policy regarding the promulgation of laws and decisions having effect on

citizens which might suggest that this course or some more formal procedure would have been preferable. Furthermore, familiarity with

the procedures of limited companies or corporations, may lead to a healthy regard for the perils of the ultra vires doctrine, and a

consequent caution in ensuring all possible enabling provisions are in place. However, the issue which arises in this case is whether

primary legislation is the only method of possible designation of the Board as competent authority.

4 Since the matter is accepted to be one of national law, it will, I think, be useful to simplify the complications in this case by treating

the PCI Regulation as a domestic statute requiring designation and conferring the identified powers and functions on the body

designated. On the other end of the chain, it is also useful to ignore the fact that the letter was signed by an assistant secretary,

since the combined effect of the Carltona doctrine (see Carltona Ltd. v. Commissioners of Public Works [1943] 2 All E.R. 560,

approved by the Supreme Court in Tang v. Minister for Justice [1996] 2 I.L.R.M. 46) and the allocation of executive powers by the

Ministers and Secretaries Act 1924 means that, functionally, this was the equivalent of a formal decision of the Minister or indeed a

formal warrant from the government published in the Iris Oifigiúil. As I understand the appellants’ argument, however, neither of those

alternatives would be sufficient, and the necessary expansion of the powers of the Board as a creature of statute could only be

achieved here by a statutory act of designation.

5 I do not think it is good practice to adopt a minimalist approach to what is required by the law. It may be wiser to take a more

formal route if that is available. But it is important also not to confuse the familiar and desirable with the necessary. With great

respect to the view expressed by Finlay Geoghegan J. I am unable to accept the contention that a statutory designation was

essential if the Board was to be conferred with the powers and functions of a competent authority, which undoubtedly expanded the

powers it had under the 2000 Act. It seems to me that the contention that a statutory designation was necessary, in fact reveals

why that is not so, at least in my view.

6 If there had been a simple statutory designation of the Board as competent authority by a two-paragraph Act of the Oireachtas,

then self-evidently it would not be that legislation itself which conferred the additional powers of the Board. Such powers, functions

and duties would be conferred by the PCI Regulation (or, for the purpose of this hypothesis, its equivalent in a domestic statute). The

designation is the trigger, but the powers are delivered, as it were, and the powers and functions conferred, by the PCI Regulation or

equivalent domestic legislation, as the case may be. The powers and functions of the Board are undoubtedly expanded, but by

legislative authority – in this case the PCI Regulation. Designation is a vital legal step, since it triggers that statutory conferral of

power on the Board, but there is, as I conceive it, no requirement that the trigger itself be statutory in nature. If so, it is enough that

the Member State effects the designation by a valid instrument, and the combined effect here of the distribution of executive power

and the Carltona doctrine means that such designation can be effected by a letter of the assistant secretary on behalf of the

Minister.

7 Finally, I note that there is a reference in the extensive judgment in the High Court to the doctrine of de facto judge or de facto

officer as providing an alternative route to validation of the designation (or at least preventing invalidation of anything done by the

Board). It is not clear to what extent this line of authority was the subject of submissions in the High Court. The decisions of the

courts of England and Wales (and of Scotland and Northern Ireland) can often be of valuable assistance when considering issues

which may not have arisen previously in this jurisdiction. Nevertheless, it should be recalled that there are significant differences

between the administrative law regime in the United Kingdom generally, and the law which applies in this jurisdiction, and before any

such approach was adopted in this jurisdiction it would require, in my view, focussed argument and detailed consideration. Like Finlay

Geoghegan J., I express no view on the existence or extent of such a principle in Irish law or its applicability to a situation such as

this. I agree with Finlay Geoghegan J as to the outcome of this appeal, and with the conclusions set out at paragraphs 64 (ii) (iii) and

(iv) of her judgment. For the reasons set out above I take a different view in relation to the conclusion set out at paragraph 64 (i) on

the question of designation, which however has no effect on the result of this appeal. Accordingly, I agree that the appeal should be

dismissed.