Ireland's biggest cable company yesterday challenged An Bord Pleanala's upholding of planning permission for erection of a television deflector mast in Co Kilkenny. The permission was granted to a man who does not have a rebroadcasting licence.
Cablelink Ltd, of Pembroke Place, Ballsbridge, Dublin, applied to the High Court for leave to seek orders quashing a decision by the board of February 5th last. The board dismissed an appeal by the company against a decision by Kilkenny County Council on September 11th last granting permission to Mr Stephen Hartley, of Ballinclare, Glenmore, Co Kilkenny for the erection of a television deflector system on his lands at Ballinclare.
Mr Eoin McCullough, for Cablelink, said his client had been given a licence to transmit television by way of MMDS operation in areas of Co Kilkenny and Waterford.
Under the Wireless Telegraphy Act, possession of a television deflector system without a licence is a crime.
Mr McCullough said Mr Hartley's parents had for some time operated a television deflector system at Ballinclare prior to ceasing operation in June last year when the mast was also removed.
But, shortly afterwards the land on which the mast was located was transferred by the Hartleys to their son who then applied for permission to erect a new mast. Kilkenny County Council granted permission despite Cablelink's objection and the council's decision was subsequently upheld on appeal to An Bord Pleanala.
Mr McCullough said all relevant considerations had patently not been taken into account by the board, which had failed to recognise that Mr Hartley did not possess a licence pursuant to the Wireless Telegraphy Acts.
Furthermore, An Bord Pleanala, in reaching its decision to uphold permission, had not taken into account the proposals and objectives of the Government, and in particular the Minister for Communications, relating to the possession and use of licences for wireless telegraphy and broadcasting.
He argued the board should not have granted planning authorisation until it was shown the person concerned had a licence to operate that for which planning permission was being sought. Use and possession of television deflecting equipment were unlawful without a licence.
It followed that the granting of planning permission for a development that would be illegal to operate was also unlawful. The board must take its policy from the Acts of the Oireachtas and these Acts declared that unauthorised rebroadcasting developments were unlawful.
Ms Nuala Butler, for the board, said the Planning Code did not specify that an application for permission to build must first come with possession of all regulatory licences.
When planning permission was sought for the building of a public house, it was not insisted upon by the planning code that the applicant must first have a licence. In fact, a licence to operate a pub could be obtained only after proper planning permission was first obtained.
Granting of planning permission to any applicant did not avoid the need to comply with other statutory requirements such as the obtaining of a licence to operate. The argument being made was that only a licensed applicant could apply for planning permission, but this was not the case.
Planning permission was determined, not in relation to the applicant, his or her personality or their history, but in respect of the use of land. Granting of permission did not amount to a breach of other criteria or licences that might be required.
Ms Butler said there was nothing in the decision of the board to indicate it was unaware of Government policy on broadcasting. While it was obliged to keep itself informed of Government policy, it was not bound by that policy.
Mr Justice Lavan said he hoped to be able to issue his decision on the matter by Tuesday next.