IESC 8 · Supreme Court

THE SUPREME COURT

[Appeal No: 2018/0046]

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 Sections 50 and 50B of the Planning and Development Act 2000

and

In the matter of an approval granted under Section 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 Ms. Justice Finlay Geoghegan delivered on the 19th day of February , 2019.

1. The appeal is from an order of the High Court (Barrett J.) of 30 January 2018 which dismissed the application for judicial review of

the decision of the first named respondent, An Bord Pleanála (“the Board”) of 19 December 2016 to grant planning permission to the

notice party, EirGrid plc (“EirGrid”) pursuant to s. 182B of the Planning and Development Act 2000 as amended (“the Act of 2000”) for

the proposed North-South 400 kV Interconnector Development. The reasons for the High Court dismissal are set out in a written

judgment delivered on 22 August 2017: [2017] IEHC 338.

Factual and Procedural Background

2. The proposed development is a transboundary electricity transmission connector to link existing electricity transmission works in

Ireland with a planned substation in Northern Ireland. The project is a “strategic infrastructure development” for the purposes of the

Act of 2000, for which the application for planning approval is made directly to the Board pursuant to s. 182A(1) of the Act..

3. The proposed development has also been designated as a “project of common interest” (“a PCI”) pursuant to Council and

Parliament Regulation (EU) No. 347/2013 on guidelines for trans-European energy infrastructure, as amended by Commission Delegated

Regulation (EU) 2016/89 of 18 November 2015 (“the PCI Regulation”).

4. Article 8(1) of the PCI Regulation obliged each Member State, by 16 November 2013, to “designate one national competent

authority which shall be responsible for facilitating and coordinating the permit granting process for projects of common interest”. In

Ireland, the designation was by a letter dated 4 December 2013 from the Assistant Secretary General of the Department of

Communications, Energy and Natural Resources to the chair of the Board informing her that “… An Bord Pleanála is hereby designated

as competent authority for the purposes of the [PCI] Regulation”. The letter was copied to, inter alia, the European Commission. The

same letter indicated that the “collaborative scheme” identified in Article 8(3)(c) of the PCI Regulation was the option for the permit-

granting process specified in Article 8(3) which was most workable in Ireland and that the Board was being designated as competent

authority upon that basis.

5. In September 2014, the Board issued a Manual of Permit Granting Process Procedures in relation to PCIs. The Manual states at p.

7:-

“… An Bord Pleanála’s statutory planning role in determining any application lodged with it continues to be one of independent

assessor. Its duties under the [PCI] Regulation will not affect its impartial assessment of planning applications.

To emphasise this An Bord Pleanála will establish a PCI Unit to administer the PCI process separate from its Strategic Infrastructure

or Planning Appeals Unit. This unit will be responsible for the coordination of the various consents and collaboration with the consent-

giving bodies, and other Competent Authorities, updating the Manual of Permit-granting Process Procedures and issuing the

comprehensive decision.”

6. In June 2015, EirGrid lodged an application for planning approval with the Board under s. 182A(1) of the Act of 2000. A decision on

that application, issued by an order of the Board on 19 December 2016, approved the proposed development under s. 182B of the Act

of 2000 subject to conditions set out. On the following day, 20 December 2016, the Board issued a letter from an executive officer of

the PCI Unit which, having referred to the fact that Ireland had chosen to implement the permit-granting process by the collaborative

scheme and the fact that the Board as competent authority had coordinated the organisation of the permit-granting process, then

stated:-

“The decision issued by the relevant authority and identified as necessary by the project promoter to build the energy infrastructure

to realise the project is listed in Appendix 1 attached to this document. The comprehensive decision is now issued in accordance

with Article 8(3)(c) of Regulation (EU) No. 347/2013.”

The decision in Appendix 1 to the letter is the order of the Board made on 19 December 2016 approving the proposed development

under s. 182B of the Act of 2000 subject to conditions.

7. Leave to issue an application for judicial review was given by the High Court (Noonan J.) on 20 February 2017. The reliefs sought

included an order of certiorari of the decision of the Board granting planning approval pursuant to s. 182B of the Act of 2000 and

approximately 15 declarations relating to the alleged invalidity of the decision and the process by which it was reached. Included

amongst these were declarations that that the Board was not lawfully designated as a competent authority pursuant to the PCI

Regulation and that the manner in which it considered and dealt with the application gave rise to a reasonable apprehension of bias.

The grounds relied upon in the statement of grounds ran to 96 paragraphs.

8. Following the usual prehearing exchanges and the High Court hearing, a written reserved judgment was delivered on 22 August

2017. It is 220 paragraphs long. An application to the High Court for leave to appeal to the Court of Appeal was refused for the

reasons set out in a written judgment delivered on 11 January 2018: [2018] IEHC 3.

9. The determination of this Court made on 25 June 2018: [2018] IESCDET 82, only granted leave to appeal on the following issues:-

(i) Whether the Board was lawfully designated as the “competent authority” pursuant to the PCI Regulation;

(ii) Whether the Board’s role as competent authority created a conflict (or a situation of objective bias) in respect of its

role determining the planning application under the Act of 2000;

(iii) If the designation of the Board as competent authority is invalid, whether there are legal consequences for the

impugned decision of 19 December 2016 to grant planning approval, pursuant to s. 182B of the Act of 2000; and

(iv) Whether an obligation existed to conduct an environmental impact assessment of alternative proposals considered by

EirGrid.

10. The first three issues above have an interrelationship and were considered in the same section of the judgment of the trial judge.

It is proposed similarly to consider firstly these three issues and before doing so, to set out the legal framework applicable to the

resolution of those issues.

Legal Framework

11. The issues relate to matters done by or on behalf of the Minister and the Board, pursuant to the PCI Regulation. It is not

contended that any step taken was contrary to the Constitution, but nevertheless Article 29.4.6° sets out the constitutional

framework in which these matters require to be considered and, insofar as relevant, provides:

“6º No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the state, before, on

or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the

European Union…”

12. Section 2 of the European Communities Act 1972, as amended, provides, inter alia, that Acts adopted by the institutions of the

European Union “shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in [the

treaties governing the European Union]”. The PCI Regulation is such an act of the European Union and is governed by Article 288 of

the Treaty on the Functioning of the European Union (formerly Article 249 of the Treaty establishing the European Community (TEC),

originally Article 189 of the Treaty Establishing the European Economic Community) which states “[a] regulation shall have general

application. It shall be binding in its entirety and directly applicable in all Member States.”

13. Section 3 of the European Communities Act 1972, as amended, was relied upon by the appellant. This provides:

“3(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to

the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing,

amending or applying, with or without modification, other law, exclusive of this Act).”

14. Article 8 of the PCI Regulation imposed on each Member State the obligation to designate one national competent authority, by

stating:

“1. By 16 November 2013, each Member State shall designate one national competent authority which shall be

responsible for facilitating and coordinating the permit granting process for projects of common interest.”

15. Article 8(3) both specifies certain of the obligations of a competent authority and also gives each Member State the option of

choosing amongst the three schemes set out. The collaborative scheme was the option chosen in Ireland and purportedly applied by

the Board as competent authority. Article 8(3), insofar as relevant to the issues, provides:-

“Without prejudice to relevant requirements under international and Union law, the competent authority shall take actions to

facilitate the issuing of the comprehensive decision. The comprehensive decision shall be issued within the time limit referred to in

Art. 10(1) and (2) and according to one of the following schemes:

(a) integrated scheme: the comprehensive decision shall be issued by the competent authority and shall be the sole

legally binding decision resulting from the statutory permit granting procedure. Where other authorities are concerned

by the project, they may, in accordance with national law, give their opinion as input to the procedure, which shall be

taken into account by the competent authority;

(b) coordinated scheme: the comprehensive decision comprises multiple individual legally binding decisions issued by

several authorities concerned, which shall be coordinated by the competent authority. The competent authority may

establish a working group where all concerned authorities are represented in order to draw up a permit granting

schedule in accordance with Article 10(4)(b), and to monitor and coordinate its implementation. The competent

authority shall, in consultation with the other authorities concerned, where applicable in accordance with national law,

and without prejudice to time limits set in accordance with Article 10, establish on a case-by-case basis a reasonable

time limit within which the individual decisions shall be issued. The competent authority may take an individual decision

on behalf of another national authority concerned, if the decision by that authority is not delivered within the time limit

and if the delay cannot be adequately justified; or, where provided under national law, and to the extent that this is

compatible with Union law, the competent authority may consider that another national authority concerned has either

given its approval or refusal for the project if the decision by that authority is not delivered within the time limit. Where

provided under national law, the competent authority may disregard an individual decision of another national authority

concerned if it considers that the decision is not sufficiently substantiated with regard to the underlying evidence

presented by the national authority concerned; when doing so, the competent authority shall ensure that the relevant

requirements under international and Union law are respected and shall duly justify its decision;

(c) collaborative scheme: the comprehensive decision shall be coordinated by the competent authority. The competent

authority shall, in consultation with the other authorities concerned, where applicable in accordance with national law,

and without prejudice to time limits set in accordance with Article 10, establish on a case-by-case basis a reasonable

time limit within which the individual decisions shall be issued. It shall monitor compliance with the time limits by the

authorities concerned.

If an individual decision by an authority concerned is not expected to be delivered within the time limit, that authority shall inform

the competent authority without delay and include a justification for the delay. Subsequently, the competent authority shall reset

the time limit within which that individual decision shall be issued, whilst still complying with the overall time limits set in accordance

with Article 10.

Acknowledging the national specificities in planning and permit-granting processes, Member States may choose among the three

schemes referred to in points (a), (b) and (c) of the first subparagraph to facilitate and coordinate their procedures and shall opt to

implement the most effective scheme. Where a Member State chooses the collaborative scheme, it shall inform the Commission of

its reasons therefor. The Commission shall undertake an evaluation of the effectiveness of the schemes in the report referred to in

Article 17.”

16. Article 2(2) of the PCI Regulation defines a “comprehensive decision” as meaning:-

“The decision or set of decisions taken by a Member State authority or authorities not including courts or tribunals, that determines

whether or not a project promoter is to be granted authorisation to build the energy infrastructure to realise a project without

prejudice to any decision taken in the context of an administrative appeal procedure.

17. The Board is a statutory body corporate originally established by Local Government (Planning and Development) Act 1976. Its

continued existence is currently provided for by ss. 102 and 103 of the Act of 2000. Section 102(2) provides: “the Board shall perform

the functions assigned to it by this Act.”

18. In accordance with the above, the PCI Regulation is directly applicable and part of the domestic law of Ireland. However, Articles

8(1) and 8(3) of the PCI Regulation each require implementation by some national act; the designation of a competent authority and

the choice of scheme to be applied. Both of those decisions were taken by or on behalf of the Minister and the only evidence of same

adduced in the proceedings is the letter of 4 December 2013.

19. The issue as to whether the designation of the Board as competent authority, by a decision taken by or on behalf of the Minister,

communicated by a letter, is or is not a lawful determination, is to be decided in accordance with Irish law. See Spa Eridania-

Zuccherifici Nazionali v Minister of Agriculture and Forestry (Case 230/78) [1979] E.C.R. 2749 where, at para. 34, the Court of

Justice stated:-

“The fact that a regulation is directly applicable does not prevent the provisions of that regulation from empowering a Community

institution or a Member State to take implementing measures. In the latter case the detailed rules for the exercise of that power

are governed by the public law of the Member State in question; however, the direct applicability of the measure empowering the

Member State to take the national measure in question will mean that the national courts may ascertain whether such national

measures are in accordance with the content of the Community regulation.”

20. In Maher v. Minister for Agriculture [2001] 2 I.R. 139, having cited inter alia the above judgment of the Court of Justice, Fennelly

J. stated at p. 251:-

“In summary, Member States, acting within the framework of Community regulations, exercise powers or discretions which are

conferred on them for the furtherance of the objectives of the scheme in question. Community law does not require any particular

form or implementation. That is a matter for the legal system of the Member State concerned, except that the implementation

must not have the effect of impeding the effectiveness of Community law.”

Validity of Designation

21. The trial judge upheld the validity of the designation of the Board as competent authority by the decision communicated in the

letter of 4 December 2013. He did so in summary by holding that Article 8(1) of the PCI Regulation is directly applicable and that it

permits the designation of the Board without any further implementing legislative or regulatory measure being required. He held that

the designation was an administrative decision; that the Minister was the correct minister to make the designation having regard to

the Ministers and Secretaries Act 1924, as amended, and a number of statutory instruments made, set out in para. 78 of his

judgment. He further held that the designation by a letter from the Assistant Secretary General was an effective designation on

behalf of the Minister in accordance with the Carltona principle (so-called after the decision of the Court of Appeal of England and

Wales in Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560, as affirmed by this Court in W.T. v. Minister for Justice &

Equality [2015] IESC 73).

22. The primary submission of the appellants against that decision, is that the Board, as a statutory body, can only act within the

jurisdiction conferred on it by statute. They submit that no statutory basis exists which permits the Board to carry out the functions

of a competent authority under the PCI Regulation. In support of their submission that the Board, as a statutory body, is confined to

the functions assigned it by the Act of 2000 or other statutes, the appellants cited Keane & ors v. An Bórd Pleanála & ors [1997] 1

I.R. 184. In addition, they refer to the judgment of McKechnie J. for this Court in County Louth Vocational Education Committee v.

The Equality Tribunal & anor [2016] IESC 40, where at para. 35, he stated:-

“35. It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is

found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional

court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add

to or enlarge the jurisdiction so vested in it. Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by

what jurisdiction it has and must act accordingly.”

23. In making this submission, they do not dispute that the PCI Regulation may be considered to have statutory force in Ireland and

contains directly applicable provisions imposing obligations and granting powers to a competent authority. However, as the PCI

Regulation leaves to Ireland the choice of person or body to be designated such designation must be in accordance with national law.

They submit that there is no statutory provision which adds to the functions of the Board the obligations and powers which must or

may be exercised by a competent authority under the PCI Regulation.

24. Whilst accepting that Maher v. Minister for Agriculture and Food is authority for the accepted proposition that EU Regulations

have direct effect, the appellants contend that it is not authority for the proposition that one can extend a statutory body’s

functions or powers by way of an administrative act such as letter. They refer to the judgment of Fennelly J. in Maher, where at p.

249 he stated:

“Community regulations are directly applicable, in that their entry into force and their application are "independent of any measure

adopting [them] into national law." (Zerbone v. Amministrazione delle Finanze dello Stato (Case 94/77) [1978] E.C.R. 99, para. 23.)

As Denham J. explains in different words, they do not require any national act of implementation for their binding effect...

Where, however as frequently happens, . . . regulations, in addition to being directly applicable, allow member states discretion in

their implementation some national act of implementation or transposition will be required.”

25. They submit that where Ireland sought to exercise the discretion given by designating the Board, a statutory body, as the

competent authority under Article 8(1) of the PCI Regulation, the effect of which would be to add to its functions, this had to be

done by a legislative act, that is, either an Act of the Oireachtas or a regulation made under the European Communities Act 1972.

26. The primary submissions in favour of the decision of the High Court on the designation issue were made by the second to fourth

named respondents. They were supported by the Board and EirGrid. The submissions seek to rely upon the direct effect of Article 8 of

the PCI Regulation and the direct effect of the other provisions in the PCI Regulation which confer powers and functions on the

competent authority designated by each Member State. They also sought to argue that the letter of December 2013 designating the

Board as competent authority has a specific legal status, in that a copy was issued to the EU Commission, in accordance with the

requirement of Article 8(3) to inform the Commission of Ireland’s reasons for choosing the collaborative scheme. They further argued

that the extended functions of the Board were prescribed by the PCI Regulation and that the act of designation on behalf of the

Minister was simply an administrative act, in substance allocating the PCI Regulation powers to the most suitably qualified authority.

27. Reliance was also sought to be placed by analogy on common provisions in domestic legislation which provide for the appointment

of an authorised officer who once appointed may exercise powers set out in the relevant legislation. Such an appointment, it is

submitted, is an administrative act which may be taken by the Minister without the need for any form of delegated legislation such as

a statutory instrument.

28. I have concluded that the purported designation of the Board by an administrative act taken by or on behalf of the Minister

cannot be considered to have extended the functions of the Board to include those exercisable by a competent authority under the

PCI Regulation. My reason for this conclusion is primarily that the Board is a statutory body, a creature of statute, and it can only

exercise the functions conferred on it by a statute or other legislative provision. Currently, its functions are prescribed by s. 102(2) of

the Act of 2000, namely the functions assigned by the Act of 2000 and any amendments made thereto. The PCI Regulation, whilst

directly applicable, does not of itself confer additional functions on the Board. It merely authorises or obliges the State to designate a

competent authority for the State. Undoubtedly the competent authority, once lawfully designated in accordance with Irish law, will

have the powers and functions of a competent authority under the PCI Regulation, which are directly applicable. However, in the

words of Fennelly J. in Maher, the exercise of the discretion given Ireland to choose a competent authority required “some national

act of implementation or transposition”

29. It follows from the fact that the Board is a statutory body which may only act in accordance with the powers conferred by

statute, that any addition to its powers must also be made by law. I use the term “law” as, in this instance, the Board could have

had the additional functions of a competent authority under the PCI Regulation conferred by way of a regulation made under s. 3 of

the European Communities Act 1972, as amended. Such regulations may amend a prior statute and hence any express or implied

amendment of s. 102(2) of the Act of 2000 could have been thus effected. It is the act of designation which confers the additional

functions of a competent authority pursuant to the PCI Regulation on the person so designated. In this instance, that designation

was not conferred on the Board by statute or regulation and accordingly, it appears to me that it cannot be considered as a lawful

extension of the powers and functions of the Board.

30. I have read in draft the judgment just delivered by O’Donnell J. and I am in agreement that the issue may be decided by treating

the PCI Regulation as a domestic statute which required designation. I also agree that, for simplicity, it should be assumed that the

statute permitted designation by the Minister and that the decision to designate was made by the Minister. However, regretfully I

cannot agree with his analysis that the designation is merely a “trigger” and that the powers are delivered by the statute or PCI

Regulation alone, such as to meet the requirement that the functions of the Board, as a statutory body, are conferred by statute. It

is in my view a combination of the designation and the PCI Regulation which extends the powers currently assigned to the Board by s.

102(2) of the Act of 2000, which provides “the Board shall perform the functions assigned to it by this Act”, and by implication,

amends that provision. Without the designation made by the Minister, the Board would not have the functions or powers conferred by

the PCI Regulation on a competent authority.

31. Having reached that conclusion, it is unnecessary to consider whether, if the Board had not been a body confined to exercising

powers and functions conferred by statute, the designation required to be made by Ireland pursuant to Article 8(1) of the PCI

Regulation could have been done by an administrative act.

Bias

32. The appellants contend that the planning decision of the Board is vitiated by an apprehension of objective bias. They submitted in

the High Court and again in this Court that the dual role of the Board as planning authority required to take a decision on the

application under s. 182A and as competent authority under the PCI Regulation, gives rise to a conflict and objective bias. The

appellants in this submission relied in particular on the priority status accorded to a PCI by Article 7 of the PCI Regulation; that under

Annex VI, the competent authority is to “actively support” activities undertaken by the project promoter and that under Article 7(8),

of the PCI Regulation, the proposed project shall be considered as being of “public interest from an energy policy perspective and may

be considered as being of overriding public interest” for the purposes of the Habitats Directive 92/43/EEC and the Water Framework

Directive 2000/60/EC.

33. The trial judge rejected this contention. He did so essentially by finding that the Board’s role as competent authority in the

collaborative scheme was essentially a coordinating administrative role to ensure timeframes are respected and does not affect or

direct its role in deciding the planning application.

34. In this Court, the appellants made similar submissions to those made in the High Court. The respondents submit that applying the

well-established principles in relation to objective bias, that the trial judge was correct in his conclusion that the dual role of the

Board did not give rise to a situation of objective bias. They submit that it is the designation of the project as a PCI and the PCI

Regulation itself which creates such special status as exists. The Court was referred to the judgment in the High Court of McKechnie

J. in Nurendale Ltd. t/a Panda Waste Services v. Dublin City Council & ors. [2013] 3 I.R. 417, in which he summarises the current law

in relation to objective bias from the decisions of this Court and considers its application to decisions of administrative bodies. In that

judgment, McKechnie J. referred to a number of the well-known judgments of this Court in relation to pre-judgment or bias, including

Orange Ltd. v. Director of Telecoms (No. 2) [2000] 4 I.R. 159, Spin Communications Ltd. v I.R.T.C [2001] 4 I.R. 411, O’Neill v.

Beaumont Hospital Board [1990] I.L.R.M. 419 and O’Callaghan v. Mahon [2007] IESC 17, [2008] 2 I.R. 514. He then stated, at paras.

165 and 166:-

“165. In my opinion the correct test is an objective one, namely: that a reasonable person, knowing all relevant facts,

would have a reasonable apprehension that the decision was vitiated by prejudgment. I would accept that it is not the

parties' views as to the existence of bias or prejudgment which will be determinative. However, pragmatically, the views

of the parties will need to be taken into account when deciding if there is evidence of such prejudgment. It is in that

context only that the views of the parties are relevant; but the test is, as observed by Fennelly J. in O'Callaghan v.

Mahon [2007] IESC 17, [2008] 2 I.R. 514, strictly objective.

166. The above principles apply equally to decisions of administrative bodies, but in such cases it has been suggested

that, in the context of bias and/or prejudgment, there is some limitation or exception in favour of some form of

necessity or structural bias. Such was commented upon by Finlay C.J., again in O'Neill v. Beaumont Hospital Board

[1990] I.L.R.M. 419, at p. 440:-

‘I think that in relation to this last point regard must be had to the doctrine of necessity. It is not a

dominant doctrine, it could never defeat a real fear and a real reasonable fear of bias or injustice.’

The point was also discussed by Keane J. in Radio Limerick One Ltd. v. Independent Radio and Television Commission

[1997] 2 I.R. 291 at p. 316, where the judge said:-

‘… a body such as the commission may not, in given circumstances, present the appearance of strict

impartiality required of a court administering justice. That, however, does not relieve the commission

of the obligation to take every step reasonably open to it to ensure that its conclusions are reached in

a manner, not merely free from bias, but also of the apprehension of bias in the minds of reasonable

people. But where, as here, a body is obliged to carry out certain statutory functions and no issue

arises as to the constitutionality of the relevant provisions, a court cannot by the strict application of

the legal principles already referred to prevent the body from exercising those functions, where all

practical steps have been taken by it to free itself, not merely from actual bias but the apprehension

of bias in the minds of reasonable people: see the decision of this court in O’Neill v. Beaumont Hospital

Board [1990] ILRM 419’”

35. Applying the above principles to the facts in this appeal, the reasonable person, with knowledge of all relevant facts, would know

that the Board was appointed as the competent authority and that Ireland had chosen to adopt the collaborative scheme, and would

be aware of the provisions of the PCI Regulation, the Act of 2000 and the Manual published by the Board.

36. The trial judge was, in my view, correct in characterising the role of the competent authority under the collaborative scheme in

accordance with the PCI Regulation, as being an administrative one, with obligations to coordinate in the event that there was more

than one permit granting authority and with obligations to ensure that timelines set by the Regulation are complied with.

37. The specific provisions of the PCI Regulation relied upon by the appellants do not, in my view, support a situation of objective

bias. The respondents are correct in their submission that it is Article 7 of the PCI Regulation which gives the project which has been

designated as a PCI its priority status and imposes obligations, as stated in Article 7(2), on “all authorities concerned” to “ensure that

the most rapid treatment legally possible is given to these files”. Similarly, Article 7(3) provides for such projects to be allocated the

status of the “highest national significance possible”, where such status exists in national law.

38. The obligation imposed on the competent authority by Annex VI(3)(a) to “actively support the activities undertaken by the

project promoter” is expressly stated to be for the purpose of increasing “public participation in the permit granting process and

ensure in advance information and dialogue with the public”. It is not a general obligation to support the activities undertaken by the

project promoter.

39. Finally, Article 7(8) of the PCI Regulation provides:-

“8. With regard to the environmental impacts addressed in Article 6(4) of Directive 92/43/EEC and Article 4(7) of

Directive 2000/60/EC, projects of common interest shall be considered as being of public interest from an energy policy

perspective, and may be considered as being of overriding public interest, provided that all the conditions set out in

these Directives are fulfilled.

Should the opinion of the Commission be required in accordance with Directive 92/43/EEC, the Commission and the

competent authority referred to in Article 9 of this Regulation shall ensure that the decision with regard to the overriding

public interest of a project is taken within the time limit pursuant to Article 10(1) of this Regulation.”

40. As appears, it provides in the first sub-paragraph the manner of treatment of the PCI in relation to environmental impacts

addressed in the Habitats and Water Framework Directives. That provision is one which applies directly when a planning authority is

considering the application for approval of the PCI. The only aspect which concerns a competent authority is if an opinion of the

Commission is required in accordance with Directive 92/43/EEC, and then, the only obligation imposed on the competent authority is a

procedural one to ensure that the decision is taken within the time limit in Article 10(1) of the PCI Regulation.

41. Accordingly, I have concluded that a reasonable person knowing all relevant facts, including the provisions of the PCI Regulation,

would not have a reasonable apprehension that the Board, might be biased in the performance of its functions or in deciding the

planning application under s. 182A.

Validity of Planning Decision

42. The next issue is whether, in the light of the conclusion reached that the designation of the Board as competent authority was

invalid, that fact invalidates the planning permission granted pursuant to s. 182B of the Act of 2000. Notwithstanding that the trial

judge had concluded that the designation was valid, he also considered this issue. He concluded that even if the designation was

invalid the planning permission remained valid. He did so on two distinct grounds. First, that the planning decision on its own was

separate and distinct from any function purported to be carried out by the Board as competent authority. Secondly, and alternatively,

he relied on what has been termed a “de facto officer” principle relying upon a judgment of the Court of Appeal in England and Wales

in Fawdry & Co. v. Murfitt [2002] 3 W.L.R. 1354.

43. On appeal, the main submission of the appellants was that the decision of the Board, issued in its roles as competent authority

under the PCI Regulation and as the permit granting authority under the Act of 2000, cannot be split. They submit that it cannot be

said what decision would have been taken if the Board had not been operating in both roles. They point to the functions carried out

by the Board as competent authority, including the coordination of the permit granting process, facilitation of public participation and

ensuring compliance with time limits and argue that they operate to infect the decision as a whole. The submissions made on behalf of

the Board, supported by the State parties and the notice party, are primarily focused on the independent status of the planning

decision under the collaborative scheme opted for by Ireland under Article 7(3)(c) of the PCI Regulation. They rely upon the definition

of comprehensive decision in Article 2(2) of the Regulation, which provides:-

“‘[C]omprehensive decision’ means the decision or set of decisions taken by a Member State authority or authorities not including

courts or tribunals, that determines whether or not a project promoter is to be granted authorisation to build the energy

infrastructure to realise a project without prejudice to any decision taken in the context of an administrative appeal procedure.”

The comprehensive decision, they submit, in the context of this particular project, means the decision granted by the Board pursuant

to s. 182B of the Act of 2000, as that is the decision which determines the authorisation to build the relevant energy infrastructure.

44. They also submit that any defect in the designation as competent authority does not infect the Board’s role in granting approval

under s. 182B, which is a separate and distinct national procedure pursuant to statute which has not been altered or changed by the

PCI Regulation. Finally, they submit that under the collaborative scheme, there is nothing in the PCI Regulation which requires the

Board as competent authority to make the comprehensive decision. On the facts of this appeal, the only relevant decision is the

planning decision pursuant to s. 182B of the Act of 2000 and they submit that in accordance with its definition, the comprehensive

decision is merely declaratory of the fact that the relevant consent required, i.e. the s. 182B decision, has been granted.

45. The trial judge was correct in my view in concluding that the planning decision issued pursuant to s. 182B of the Act of 2000

stands on its own and is not invalidated by any absence of a validly appointed competent authority. Article 8(1) of the PCI Regulation

stipulates the responsibility of the competent authority as being for “facilitating and coordinating the permit granting process for PCI”.

Article 10 states that the permit granting process shall consist of two procedures, the “pre-application procedure” and the “statutory

permit granting procedure”. Whilst a competent authority has a role in the pre-application procedure, it is not contended that any

step taken by the Board as competent authority in the pre-application procedure in any way affected the consideration given by the

Board in the second procedure, namely the statutory permit granting procedure i.e. the application made pursuant to s. 182A of the

Act of 2000.

46. Accordingly, I have concluded that, notwithstanding my decision that the Board was not validly designated as a competent

authority for the purposes of Article 8(1) of the PCI Regulation, nevertheless that conclusion does not vitiate the validity of the order

of the Board made on the 19 December 2016 granting approval for the proposed development under s. 182B of the Act of 2000.

47. Whether that decision may also be considered to be a comprehensive decision within the meaning of Article 2(2) of the PCI

Regulation, in the absence of a validly appointed competent authority does not appear to be an issue which arises in the appeal.

48. In reaching the above conclusion on the validity of the planning permission and the conclusion reached on the issue of objective

bias, I have referred to and relied upon the fact that the relevant scheme being operated under the PCI Regulation was the

collaborative scheme. I think it important to observe that no issue was raised in the proceedings by or on behalf of the appellants as

to the validity of the choice made by Ireland that the scheme to be operated in Ireland is the collaborative scheme. Insofar as this

judgment in its decisions relies upon the fact that this was the scheme operated, it does so without in any way determining that the

choice was one validly made by a decision communicated in a letter issued on behalf of the Minister. Ireland is clearly given a choice

under Article 8(3) and there may well be questions in accordance with the case law earlier referred to as to whether or not that is a

choice which can be exercised by a simple administrative decision. However, even if that choice were not to be considered as validly

made, it does not in my view affect the reasoning in the earlier part of this judgment. There is no default position to one or other of

the integrated or coordinated schemes. In relation to the bias issue, clearly the Board purported to operate under the collaborative

scheme, as its published manual so stated. On the question of the validity of the planning permission, even if the choice of scheme

under Article 8(3) is not validly made, it does not mean that the planning approval issued under s. 182B of the Act of 2000 is affected

by the absence of a lawful choice of scheme.

Alternatives

49. This issue concerns the obligations imposed by Article 5(3)(d) of Directive 2011/92/EU of the European Parliament and of the

Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (“the EIA

Directive”). This provides that the information to be provided by the developer in a planning application to which the EIA Directive

applies shall include at least:-

“(d) An outline of the main alternatives studied by the developer and an indication of the main reasons for his choice,

taking into account the environmental effects”.

50. In the High Court, the appellants contended that there should have been a full environmental impact assessment of all

alternatives considered by the developer. This contention was rejected by the High Court judge for the reasons set out at para. 184

of his judgment. The trial judge placed reliance upon the wording of Article 5(3)(d). In doing so, he referred to the possibility of

clarification on the scope of the obligation imposed by Article 5(3)(d) of the EIA Directive which could follow from the preliminary

reference made by the Irish High Court in the case of Holohan & Ors. v. An Bord Pleanála & Ors. ([2017] IEHC 268), which was then

pending before the CJEU.

51. In the determination granting leave to appeal to this Court, the relevant issue upon which leave was granted concerns the

“obligation, if any, to provide an EIA for alternative proposals considered by the developer”.

52. In the written submissions delivered by the appellant in July 2018, the principal submission on alternatives was that the

environmental effects of the alternatives to the project should have informed part of the assessment and the developer’s choice of

project.

53. On 7 August 2018, the Advocate General Kokott delivered her opinion in Holohan & Ors. v. An Bord Pleanála & Ors., C 461/17,

ECLI:EU:C:2018:649. Her consideration of the questions referred in relation to the obligations imposed by Article 5(3)(d) of the EIA

Directive were not in their conclusions helpful to the appellant. However, in the course of her opinion she considered the potential

impact of the Convention on Environmental Impact Assessment in a Transboundary Context (adopted 25 February 1991, entered into

force 10 September 1997) 1989 UNTS 209 (“the Espoo Convention”) and its possible effect on the interpretation of the EIA Directive

at paras. 105-109. There, she opined:-

“105. More extensive obligations in respect of the examination of alternatives, which are independent of the substantive

requirements applicable to the project in question, are laid down in the Espoo Convention, referred to in the request for

a preliminary ruling. (37) In accordance with Article 4(1) of, and Annex II(b), (c) and (d) to, that Convention, a

description of reasonable alternatives and their effects on the environment must be provided.

106. That Convention does not, however, pursuant to Article 2(2) thereof, provide for an environmental impact

assessment for all projects which are subject to the EIA Directive, but only for certain projects that are likely to cause

significant adverse transboundary impact.

107. It is true that, for the purposes of a uniform interpretation, it would be desirable to interpret the EIA Directive in

accordance with that Convention, (38) since much of the Directive is intended to implement the Convention. (39)

Furthermore, the EU’s powers must be exercised with due regard for international law; consequently, EU secondary law

must in principle be interpreted in accordance with the EU’s obligations under international law. (40)

108. However, in the light of its wording and legislative history, it is not possible to interpret Article 5(3)(d) of the EIA

Directive as meaning that a project may obtain development consent only if the reasonable alternatives to it are also

described and their effects on the environment are also assessed.

109. The question as to whether the rules on the assessment of alternatives which are applicable to certain projects

under the Espoo Convention are by extension directly applicable to the EIA Directive, because, regard being had to its

wording and to the purpose and nature of that Convention, the latter contains a clear and precise obligation which is not

subject, in its implementation or effects, to the adoption of any subsequent measure, (41) has not been raised. Nor,

presumably, would it be ultimately relevant to the judgment to be given in the main proceedings, since the project at

issue does not, prima facie, fall within the scope of that Convention. There is therefore no need for the Court to give a

ruling.”

54. With leave of the Court, supplemental written submissions were filed by the appellants and the Board. The appellants submitted in

particular, in reliance upon para. 109 quoted above, that the question raised therein by the Advocate General arises in these

proceedings as the Espoo Convention is applicable to the North/South Interconnector, which is both a transboundary project and a

project of common interest. The submission made and pursued at the oral hearing was that it is necessary to interpret the

requirements of the EIA Directive in relation to the consideration of alternatives, having regard to and in the light of the more onerous

requirements of the Espoo Convention.

55. The Board and EirGrid submitted that the appellants should not, on appeal and at this point in the proceedings, be permitted to

pursue what they themselves accepted at the oral hearing was, in substance, a new argument in reliance upon the alleged

applicability of the Espoo Convention to the planning application for this project. It was submitted that this is a mixed question of fact

and law. The respondents rely on Article 2(2) of the Espoo Convention, which determines that the scope of the provisions therein are

applicable to proposed activities that are “likely to cause significant adverse transboundary impact”. As provided under Article 1 of

the Espoo Convention, a “transboundary impact” refers to “any impact … within an area under the jurisdiction of a Party caused by a

proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another Party”.

Finally, the respondents draw attention to the determination made by the Board at p. 22 of its decision that the proposed

development “would not result in significant transboundary impacts”. This factual conclusion, they submit, has never been challenged.

They also submitted that the appellants could have pursued a submission in reliance upon the Espoo Convention in the High Court, if

they had wished to do so. The observations made by the Advocate General Kokott in her opinion could not be considered as creating

any change in the law which would warrant being permitted to advance a new argument on appeal.

56. Since the hearing of this appeal, the CJEU has delivered their Judgment of 7 November 2018, Holohan v. An Bord Pleanála, C-

461/17, ECLI:EU:C:2018:883. The Court has not received any request to re-enter the appeal for further argument and does not

consider it necessary in relation to the issues upon which leave was granted. At para. 66 of its judgment, the CJEU makes clear that

Article 5(3)(d) of the EIA Directive “does not require the main alternatives studied to be subject to an impact assessment equivalent

to that of an approved project”. It does refer then to the obligation of the developer to indicate the reasons for his choice, taking

into account at least the environment effects. There was no failure of such an obligation in issue in the appeal before this Court.

57. Accordingly, on the issue upon which leave was granted in relation to the obligation contended for to conduct an environmental

impact assessment of alternative proposals considered by the notice party, EirGrid, I would dismiss the appeal.

58. The remaining issue is whether the appellants should be permitted to pursue, as a ground of appeal, the applicability of the Espoo

Convention to this project and in reliance upon its application, contend that the EIA Directive should be interpreted in accordance

with the Convention as imposing more extensive obligations in relation to the examination and assessment of alternatives, as indicated

in para. 109 of the opinion of Advocate General Kokott in Holohan.

59. The CJEU did not refer to the Espoo Convention or the observations made by the Advocate General in its judgment in Holohan.

60. This Court has recently considered again the principles according to which it should decide whether to permit an appellant to rely

upon a ground of appeal which was not advanced in the Court or courts below (see Fitzpatrick v. An Bórd Pleanála [2018] IESC 60.)

Clarke C.J., in delivering a judgment with which the other members of the Court concurred, referred to and cited from the prior

judgment of O'Donnell J. in Lough Swilly Shellfish Growers Cooperative Society Limited and anor v. Bradley and anor [2013] IESC 16,

[2013] 1 I.R. 227 on the then applicable principles, where he stated at para. 28 :-

“What the Constitution requires is an appeal which permits the Supreme Court to consider whether the result in the High Court is

correct. The precise format and procedure of any such appeal is not dictated by the Constitution. While that object is often and

best achieved by a careful analysis of the argument in the High Court and the High Court's adjudication of said argument, it does not

follow that the constitutional appeal must always be limited to that process. Prior to the coming into force of the 1922 Constitution,

it was possible to seek leave to argue a fresh ground of appeal in the Court of Appeal but only on strict conditions… Nothing in the

1922 or 1937 Constitutions suggests any different understanding of the concept of an appeal form the High Court in performance of

the administration of justice. There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie

cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the

evidence already given (as in K.D. for example); or where a party seeks to make an argument which was actually abandoned in the

High Court (as in Movie News); or, for example where a party sought to make an argument which was diametrically opposed to that

which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence

adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases

where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were

submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already

made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such

cases, while a court might impose terms as to costs, the Court nevertheless retained the power in appropriate cases to permit the

argument to be made.”

61. Clarke C.J. then stated at para. 4.3:-

“On that basis it is clear that the fact that a point was not raised in the courts below is not an absolute barrier to it being

maintained on appeal but that there are significant limitations on the extent to which latitude can or should be given for the very

reasons addressed in Lough Swilly”

62. As pointed out in Fitzpatrick, Lough Swilly was decided prior to the new appellate architecture following the adoption of the 33rd

Amendment of the Constitution requiring leave to appeal to the Supreme Court. In Fitzpatrick, Clarke C.J. also refers to a judgment

subsequent to that change, again of O'Donnell J., in McDonagh v. Sunday Newspapers Limited [2017] IESC 59, in which an issue

arose as to whether the Court could entertain grounds of appeal which related to issues in respect of which leave had been sought

but refused where leave had been granted on other grounds. Having done so, Clarke C.J. then stated from para. 4.7:-

“4.7 Thus, it follows that the limitation on the scope of appeal which can be found in the terms of the determination

granting leave to appeal under the new constitutional architecture should not be inflexibly applied, but nonetheless a

court should not lightly depart from the scope of appeal which originally led to the grant of leave. Therefore, the overall

position, under the new constitutional architecture, is that an appeal should ordinarily be confined both to the issues

identified in the grant of leave to appeal as meeting the constitutional threshold and to grounds or issues raised in the

court or courts below. However, there should not be a completely inflexible attitude to allowing some evolution in the

issues permitted to be raised by reference to those raised in the court or courts below (as per Lough Swilly) or by

reference to the terms of the grant of leave, (as in McDonagh).

4.8 In that context it needs to be recognised that experience has demonstrated that many cases do evolve to some

extent as they progress from a trial court to an appeal court or indeed, since the 33rd Amendment, sometimes through

two appeal courts. An overly rigid approach to the question of whether a point was raised in exactly the same way in a

court or courts below is neither sensible nor accords with reasonable fairness. That being said, and as is clear from both

Lough Swilly and McDonagh, a court should not allow latitude to pursue a different or adjusted case on appeal or allow

grounds to be advanced which are not encompassed in the grant of leave where there would be a real risk of prejudice

or unfairness to the party who is respondent to the appeal in question. Furthermore, the orderly conduct of litigation

requires parties to put forward their full case at trial. An overly permissive attitude to allowing cases to be significantly

adjusted on appeal will only encourage laxity in the full exploration of all issues by the parties before the trial court.

Looking at the system of litigation as a whole, such laxity is likely to contribute to injustice in many cases and thus is

highly undesirable. As has been said in the past, a trial is not a dress rehearsal.

4.9 It follows that the proper approach of the Court is to consider the case made below and the terms on which leave

was granted for the purposes of determining the issues which are properly before the Court. Clearly those issues can be

pursued on appeal. Furthermore, questions which can reasonably be considered to represent little more than an

evolution of the case made at trial or identified in the grant of leave can be permitted to be pursued provided that they

do not give rise to any risk of prejudice. Allowing any more substantive change in the case made on appeal would require

the presence of significant factors connected with the interests of justice and would also require a careful analysis of

whether any prejudice might be caused.”

63. Applying the above principles to the new ground of appeal in relation to an interpretation of Article 5(3)(d) of the EIA Directive in

reliance upon the applicability of the Espoo Convention to the project for which planning permission was applied, I have concluded

that the appellants should not be given leave to raise this new ground of appeal. The applicability of the Espoo Convention to the

project for which the notice party sought planning permission is, I think, correctly identified as a mixed question of fact and law.

There is the finding of fact made by the Board that the proposed development “would not result in significant transboundary impacts”,

which has not been challenged in these judicial review proceedings. To permit such ground of appeal to be pursued at this point on

appeal would, in my view, risk prejudicing EirGrid and the Board and as such, create an injustice in the determination of these

proceedings.

Conclusions

64. For the reasons set out in this judgment, I have reached the following conclusions:-

(i) The purported designation of the Board as competent authority for the purposes of the PCI Regulation made on behalf

of the Minister and communicated by letter of 4 December 2013 did not validly confer on the Board the functions of a

competent authority under the PCI Regulation. The Board is a statutory body which may only act in accordance with the

powers conferred by statute. Hence, any addition to its powers must also be by a legislative act, either an Act of the

Oireachtas or a regulation made under the European Communities Act 1972. It is a combination of the designation and the

PCI Regulation which purports to extend the statutory powers currently assigned to the Board, and the former was not

done by a legislative act.

(ii) The planning decision issued by the Board on 19 December 2016 to approve the proposed development under s. 182B

of the Act of 2000 is not vitiated by an apprehension of objective bias. A reasonable person knowing all relevant facts,

including the provisions of the PCI Regulation, would not have had a reasonable apprehension that the Board, might be

biased in the performance of its functions or in deciding the planning application under the Act of 2000 by reason of its

designation as competent authority for the purposes of the PCI Regulation.

(iii) Even if my conclusion that the Board was not validly designated as a competent authority for the purposes of Article

8(1) of the PCI Regulation were the majority view of the Court (which it is not), that would not vitiate the validity of the

order made by the Board on 19 December 2016 granting approval for the proposed development under s. 182B of the Act

of 2000. That decision stands on its own and no step taken by the Board as competent authority in any way affected the

consideration given by the Board in the statutory permit granting procedure pursuant to s. 182A of the Act of 2000.

(iv) There was no obligation on the Board to conduct an environmental impact assessment of alternative proposals

considered by the notice party, EirGrid. This follows from the Judgment of the Court of Justice of the European Union of 7

November 2018, Holohan v. An Bord Pleanála, C-461/17, ECLI:EU:C:2018:883. The applicant should not be granted leave

to pursue a new ground of appeal in relation to an interpretation of Article 5(3)(d) of the EIA Directive in reliance upon

the applicability of the Espoo Convention to the project for which planning permission was applied and granted.

Relief

The appeal should be dismissed.