Court sets aside leave in one of two challenges to access of late Frank Dunne’s stud farm

The Electricity Supply Board (ESB) has persuaded the High Court to set aside its grant of leave allowing executors of the estate of the late Frank Dunne to challenge a decision that refurbishment works of a 22km electricity line were exempt from requiring planning permission.

Mr Justice Richard Humphreys ruled on Friday that the case was brought outside the statutory eight-week time frame that followed the applicants becoming aware of the decision they challenged.

The action, which now no longer has court permission to proceed, was one of two separate but interrelated cases initiated by Mr Dunne, a pivotal figure in the Dunnes Stores family business, horse breeder Ann Marshall, and their company Hamwood Stud Unlimited.

Mr Dunne died last November aged 79. He was the owner and trainer of Stanerra, the only Irish horse to win the prestigious Japan Cup.

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His estate, Ms Marshall and Hamwood Stud say EirGrid’s intended line refurbishment works will have a “significant effect” on their prize bloodstock and breeding operations as they require access to their lands in Dunboyne, Co Meath.

They sought to challenge statutory declarations by Kildare and Meath County Councils that the EirGrid line works were exempt development.

They claimed errors were made at various stages of the planning process as, they alleged, there is a “direct link” between the line project and the development of a substation for multinational technology firm Intel. These projects, they claimed, should have been considered cumulatively but were not.

The other, still active, proceedings, against the ESB, the Attorney General and Ireland, with EirGrid on notice, the applicants seek to quash the ESB’s decision to issue wayleave notices in February 2022 in relation to accessing their land.

Mr Justice Charles Meenan gave permission last June for the applicants’ cases to proceed through the High Court. The grant of leave was made ex parte, meaning only the applicants were represented before the court.

Applicant’s motion

The ESB then brought an application asking the court to set aside the grant of leave in this case against it, Kildare County Council, Meath County Council, the Attorney General and Ireland.

It submitted the case was brought later than statutorily permitted.

In a ruling on Friday, Mr Justice Humphreys acceded to the request, making orders setting aside the grant of leave. He also dismissed the applicant’s motion seeking to extend the time in which they were allowed to bring the case.

As contended by the ESB, the judge agreed the applicants “put themselves in the way of harm” by waiting until the final day in the allowed eight-week period to seek to file their legal papers with the court.

The applicants presented at the High Court’s central office just 12 minutes before closing time on the final day of the statutory period, leaving “absolutely no margin for error if anything went wrong, which of course it did”, the judge added.

The legal papers were not stamped as required, resulting in the application being made to the court a day late.

Human error rarely qualifies as good and sufficient reason for the late commencement of proceedings in a context where certainty is particularly important, he went on.

Mr Justice Humphreys held that the applicants did not make out good and sufficient reason for extending the eight-week period on the basis of domestic law. Their arguments also “manifestly overstate[d]” what they are entitled to in European law, he said.