Eir will not rebuild controversial Kilkenny mast before case concludes

Mast was installed and then taken down when planning consultant pointed out it had been erected in the wrong place, court heard

Residents of Kells, Co Kilkenny, have lodged judicial review proceedings in the High Court against An Bord Pleanála and Eircom. File picture: Don MacMonagle

Mobile operator Eir has told the High Court it will hold off on rebuilding a telecommunications mast in a Co Kilkenny village until a legal action regarding the structure concludes, in return for being removed as a respondent in the case.

The statement of grounds for the case alleges, via the sworn statement of a mathematician living in Kells, that the statistical probability that former deputy chair of ABP Paul Hyde — one of 10 board members — would have been randomly allocated 42 out of 49 mast applications made by Eir in less than two years was “effectively zero”.

Under planning law, all files decided upon by ABP are supposed to be allocated on a random basis by either the chair or deputy chair of the body.

On Monday before Mr Justice Richard Humphreys, barrister for Eircom Meg Burke said the company would not re-erect the controversial mast on the proviso her client be removed as a respondent from the action, and with the commitment that the company be allowed reclaim its equipment from the site.

Eircom now stands as a notice party to the proceedings, that is one which may be affected by the outcome but which is not directly answerable to the case.

Senior counsel for the Thomsons James Devlin consented to the mobile company’s restatement as a notice party, saying the only reason it had been listed as a respondent was due to his clients’ demand that the mast should be removed.

Mr Hyde approved the Kells mast against the advice of his own planning inspector in June 2021.

The 15m tall structure was subsequently installed only to be removed last October after Mr Thomson, a planning consultant, pointed out it had been erected in the wrong place.

Eir had been seeking to reinstall the mast, while the Thomsons had argued this should not be allowed, and the ABP decision should be struck out due to the appearance of “bias”.

Mr Thomson had successfully opposed the initial application by Eir due to it violating ministerial guidelines that such developments should only be located close to rural residential amenities as a last resort.

Last May, the Irish Examiner first reported Mr Hyde had overruled his own planning inspectors’ recommendations for refusal of mast applications in 86% of cases over a 20-month period up to May 2022 — roughly eight times the average for such an occurrence.

In that time, Eir was involved in 49 decisions regarding mast applications, with Mr Hyde deciding on 42 of them. All were approved, 19 of them against the recommendation of the assigned planning inspector.

Mr Thomson’s case also maintains the original mast decision should also nullified because it has since emerged that Mr Hyde was now facing criminal prosecution by the DPP.

Mr Hyde resigned his position as deputy chair of the board last July after months of reporting regarding his alleged behaviour. He has always denied any wrongdoing.

Justice Humphreys adjourned the case until January 30 when An Bord Pleanála’s position will likely be outlined.