A broadband provider in the west of Ireland has failed in a High Court challenge seeking to quash a decision it says will affect its ability to compete under the national €2.7 billion broadband programme.
Lighthouse Networks Ltd brought the action against a decision of the Minister for Communications, Climate Action and Environment Eamon Ryan that its network does not meet next-generation standards under the National Broadband Plan.
The company provides broadband to more than 6,000 premises in Galway, east Offaly, Clare and up to the border of Roscommon.
It wanted the court to quash the Minister’s November 2019 decision that the broadband network at its Kilchreest site in Loughrea, Co Galway, did not meet the essential characteristics of a next-generation network for the purposes of the national plan.
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Its grounds included that the Minister allegedly did not comply with the agreed assessment procedures and was in breach of Lighthouse’s right to fair procedures.
It was also claimed the decision infringed upon its legitimate expectation and was vitiated by an underlying bias against fixed wireless assessment technology used by Lighthouse.
The Minister disputed the factual and legal basis of its case and argued the challenge was an unlawful collateral challenge to a subsequent, related decision.
Ms Justice Marguerite Bolger refused the Lighthouse application.
She said the company submitted an application to the Minister in August 2018 under assessment criteria to have its technology recognised for the purposes of the national plan.
In doing so, it sought to be excluded from the area identified as requiring to be brought under the plan and to be protected from having to compete with State-aided broadband services, she said.
The application related to the Kilchreest site to ensure, as a threshold matter, that the Minister would accept its technology as compliant.
The judge ruled the Minister, with the assistance of his technical advisers, conducted an assessment that was a detailed and technical process conducted over a 15-month period involving a number of requests for information and clarification and exchange of views.
The Minister concluded that, while Lighthouse’s network was next-generation compliant, its network design did not meet the technical criteria set out in the assessment criteria.
Lighthouse had not established the level of irrationality, unreasonableness and unfairness that would be required for them to secure the reliefs sought, she said.
“A difference of opinion on what approach should have been adopted is not sufficient and their criticism of the assessment criteria of 2015 verges on irrelevant,” she said.
As with any detailed and technical assessment exercise, it is possible that not every word of assessments carried out by the Minister’s technical advisers was fully correct, she said. It was also possible that there were alternative and/or better methods of conducting the exercise.
However, she said, she was not tasked to make findings on those possibilities.
She was satisfied the assessment conducted complied sufficiently with the assessment criteria and adhered to the Minister’s legal obligations, including those of fair procedures and any applicable legitimate expectations, in so far as was required by law.
