Cablelink challenge over TV deflector system dismissed


A challenge by Cablelink to the upholding of planning permission for a TV deflector system in Co Kilkenny was dismissed by the High Court yesterday.

Miss Justice Mella Carroll declared that An Bord Pleanala, in dismissing the appeal by Cable link against a decision by Kilkenny County Council to grant planning permission for the deflector service when it was told the applicant did not have a licence, had decided that enforcement of the Wireless Telegraphy Acts was "not a matter to do with planning".

In judicial review proceedings, Cablelink Ltd, owner of an MMDS licence for TV retransmission in parts of counties Kilkenny and Waterford, had challenged the board's dismissal of the company's appeal against the granting of permission, subject to conditions, to Mr Stephen Hartly for a TV deflector system at Ballinclare, Glenmore, Co Kilkenny.

Under the 1926 Wireless Telegraphy Act, no person is entitled to have in their possession any apparatus for wireless telegraphy unless authorised by a licence granted under the Act, Cablelink argued.

The 1988 Broadcasting and Wireless Telegraphy Act provides that a broadcast shall not be made from any premises in the State unless it is made pursuant to a licence issued by the Minister.

Yesterday Miss Justice Carroll pointed out that the granting of planning permission for the erection of a deflector system did not entitle the owner of the land to operate or own a deflector if it would be in breach of any other statutory regulation.

It was not the case that planning permission could be granted only when all other requirements were met, she said. An Bord Pleanala could not assume that the grantee would act illegally on foot of planning permission.

The board's decision could not be interpreted as meaning that it failed to take into account both Mr Hartly's lack of a licence and Government objectives. The fact that there was no licence was made known to the board.

The judge said the board was entitled to take the view that the enforcement of the Wireless Telegraphy Acts was a matter for central Government. This did not amount to failing to take the absence of a licence or Government objectives into account.

"Rather, the board considered them and decided that enforcement of the Wireless Telegraphy Acts was not a matter to do with planning," she declared.

The board could not be said to be supporting an illegal activity and neither could it assume that the owner of the land to which permission attached would act illegally. The grant of permission did not confer the right to own or operate a deflector system.