ACT 2000 BETWEEN RURAL RESIDENTS WIND AWARE AND ENVIRONMENTAL GROUP, JOHN NOLAN AND CATRIONA NOLAN APPLICANTS AND AN COIMISIÚN PLEANÁLA, IRELAND AND THE

TORNEY GENERAL RESPONDENTS AND WHITE HILL WIND LIMITED NOTICE PARTY (II) (No. 3) Date of impugned decision: Date proceedings commenced: Date of principal judgments: Date of leave to appeal hearing: Date draft judgment circulated: 10 September 2024 4 November 2024 6 November 2025 and 6 March 2026 29 April 2026 11 May 2026 JUDGMENT of Humphreys J. delivered on Friday 15 May 2026 1. The minor amendment to a previous permission that is under challenge here has been subjected to extensive scrutiny already – the inspector and the commission found the amendment acceptable, and the applicants have had the benefit of two modules to challenge the decision

High Court level. They will also have a further day in court on declaratory relief once further submissions are delivered. The way the system is supposed to work is that when significant questions of legal principle arise, they are decided by appellate courts, and then applied to individual cases by trial courts. In the principal judgments, I referenced a range of well-established principles that can be drawn from Supreme Court jurisprudence. No significant new question of law is properly raised by the applicants now in support of their quest for leave to appeal. To allow a further appeal here would be to engage in a form of “litigious perpetual motion” (to use a phrase of O’Donnell J. (Clarke and Dunne JJ. concurring) in Rooney v. Minister for Agriculture and Food [2016] IESC 1 (Unreported, Supreme Court, 28 January 2016)

para. 3). Judgment history

1. In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (I) [2025] IEHC 600 (Unreported, High Court, 6 November 2025), proceedings challenging the parent permission were dismissed in respect of grounds other than the balance of core grounds 1 and 8A. The remainder of the grounds were dismissed in Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (I) (No. 2) [2026] IECH 135 (Unreported, High Court, 6 March 2026).
2. In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (II) [2025] IEHC 601 (Unreported, High Court, 6 November 2025), these proceedings which challenge the amending permission were dismissed in respect of grounds other than core grounds 6 and
4. In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (II) (No. 2) [2026] IEHC 136 (Unreported, High Court, 6 March 2026), core ground 7 was dismissed and core ground 6 was dismissed in part, with the balance regarding objectives for the SPA requiring further submissions.
5. The applicants now seek leave to appeal. Procedural history
6. Following the substantive judgment, the applicants delivered legal submissions seeking leave to appeal, dated 26 March
7. The opposing parties delivered replying submissions and the matter was heard on 29 April
9. Judgment was reserved

the end of that hearing. I would like to record my thanks to all of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have previously sought to make clear, insofar as any points advanced are not being accepted in this or any other given judgment, that is solely to do with the inherent merits of such points and is no reflection on those instructed to convey such points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to all concerned. 2 8. On 11 May 2026, a draft of the present judgment was sent to the parties to give an opportunity to identify any errors. The rules of engagement in such a situation are that the draft is without prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever content it considers appropriate. 9. Any comments must be emailed to the court and uploaded to ShareFile in writing by the notified deadline, and should not be to reargue the substance (submissions to that effect will be disregarded) but are confined to matters such as: (

1. i)informing the court as to whether the party prefers an alternative to a formal written judgment as proposed, and if the party so considers, whether that party considers that the entire matter or some specified part of it can be disposed of (
2. a)by order without a reasoned judgment, or (
3. b)by ex tempore reasons without a written judgment; (
4. ii)informing the court, assuming that the court proceeds with a formal judgment, as to whether the party wishes to propose any corrections to the draft such as: (
5. a)any typographical, factual, legal or other errors in the decision; (
6. b)any redaction of personal or other information that a party wishes to request; (
7. c)in the event that the court proposes to refer to any matter (whether factual, legal (including reference to authorities or other legal material), obiter comment or otherwise) not referred to

the hearing, any comment as to why such reference is not relevant or otherwise should not be included or why such matter if included should not lead to the proposed conclusion; (

1. d)any other matter in the draft judgment that the party considers should be omitted; (
2. e)any matter not included in the draft judgment that the party considers should be added to it (including where the party considers that procedural, factual or legal points not set out in the judgment should be addressed or where the party considers that reasons for any aspect of the decision are not set out or where an overall ground is disposed of but detail of the ground or sub-ground is not expressly addressed, or where an issue arose the disposition of which would be obiter but on which the party concerned considers that there would be a benefit in the court expressing a view); and (
3. f)any other suggestions as to the wording (as opposed to substance) of the decision if the proposed wording causes any significant issue for a party for any identified reason. 10. It is then entirely a matter for the court as to whether to give judgment with or without amendment including any amendment that appears appropriate to the court whether arising from submissions or not. Any judgment may be given without further notice following the expiry of the specified period, whether comments are made or not. That period will not be extended save in exceptional circumstances. All parties involved are required to positively confirm to the court the position including if they have no observations on the draft legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a concession which parties can engage with but must do so with immediate dispatch, discipline and focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to elaborate procedures

every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. Health Service Executive [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023)

para. 39); and still less should the procedure invite the perhaps “serious error, to which lawyers are prone, to approach any such case on the tacit assumption that only procedures which approximate to a criminal trial are fair, and anything which departs from that is somehow dubious” (O’Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780). 11. Draft judgments are not public domain materials and, while they can be shared between the lawyers concerned and their clients, subject to the following, it is inappropriate for any person to refer to them for any purpose other than to assist the court in relation to the finalisation of the formal judgment. Therefore anyone with information as to the text, content or proposed outcome of any draft is required not to publish or transmit such information to others save solely by way of private transmission for the legitimate purposes of assisting in the finalisation of the judgment and subject to a similar restriction on any recipient. Trial participants should take reasonable steps to keep drafts confidential. On this topic, see

torney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication of draft judgments is in the interests of the administration of justice; see also Baigent v. Random House Group Ltd [2006] EWHC 1131 (Ch), [2006] 5 WLUK 45,

paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). The issue of whether a point falls within the pleadings, as determined by the trial court, does not normally raise a point of law suitable for an appeal: see Leech v. An Bord Pleanála [2025] IESCDET 106 (O’Malley, Murray and Donnelly JJ., 30 July 2025)

30 “The essential point made by the Applicant is that the trial judge granted relief quashing the decision of the Board on a basis that was not pleaded, that misinterpreted the decision of the Board granting the permission in question, and that failed to properly apply the general presumption that a decision of an administrative body is lawful. Issues of pleading and of an alleged misinterpretation of a specific administrative decision will usually be case specific and will not present issues of law of public importance. While the presumption of validity

taching to administrative decisions represents an important legal principle, the fact of that presumption and its effect are not the subject of any uncertainty and the application of the presumption to a particular decision will not usually involve an issue of law of public importance”. (

1. b)The question must actually arise on the facts and should not be launched in the abstract: see analogously Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11, [2018] 1 JIC 1603 (Unreported, High Court, Donnelly J., 16 January 2018), para. 10. (
2. c)The question raised must actually have been argued by the would-be appellant and must not be a new issue formulated for the purposes of an appeal: GOCE Limited v. An Bord Pleanála [2025] IEHC 43 (Unreported, High Court, Farrell J., 31 January 2025). (
3. d)While not an absolute rule, the question should be determinative in some sense and should make a difference to the outcome – generally it should not be one which, if answered in a sense favourable to the would-be appellant, would leave the result unchanged: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14 November 2016); Morehart v. An Bord Pleanála [2025] IEHC 701 (Unreported, High Court, Farrell J., 8 December 2025)

9. This is part of a broader principle that prolonging the process by recourse to a further instance can’t be based on just identifying some shiny and interesting point – the whole thing has to be going somewhere. O’Donnell J. (Clarke and Dunne JJ. concurring) put this vividly in Rooney v. Minister for Agriculture and Food [2016] IESC 1 (Unreported, Supreme Court, 28 January 2016)

para. 3: “Some litigants, and not just those who represent themselves, prefer the comfort of focusing exclusively on the debatable ruling or judicial comment reinforcing a sense of grievance rather than recognise the forest of problems in the overall case. The cycle continues and becomes almost a form of litigious perpetual motion”. (e) The question must accurately reflect the judgment and must not be an addition, exaggeration or distortion launched for the purposes of creating a case for appeal: Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9, [2023] 1 JIC 1907 (Unreported, High Court, 19 January 2023) per Holland J.

§9(d); Stapleton v.

An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J. As put more generally by the Supreme Court in Cooper v. An Bord Pleanála [2025] IESCDET 96 (O’Malley, Collins and Donnelly JJ., 28 July 2025)

15, “The applicant’s misunderstanding of the legal situation does not amount to a matter of general public importance”. 4 (

1. f)The application for leave to appeal should be made within time, generally within 28 days from the order to be appealed against: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14 November 2016). (
2. g)The question should be specific and should identify something specific that makes a difference – it should not be an invitation to an appellate court to write an essay on a particular topic or engage in a discursive, roving response: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSCHC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14 November 2016); Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J. (
3. ii)The point must be one of law (
4. a)The point cannot be an essentially factual question such as construing the import and effect of a particular decision: Leech v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court, 24 March 2025) per Farrell J. (
5. b)Relatedly, the question should not be one of application of law to particular facts but rather one of the substance, content and interpretation of law. Questions about the application of established principles to particular facts are not pure questions of law and are

best mixed questions of fact and law, and are generally unsuitable for appeal in such a context: B.S. v. Director of Public Prosecutions [2017] IESCDET 134 (Clarke C.J., O’Donnell, McKechnie, MacMenamin, Dunne, Charleton and O’Malley JJ., 6 December 2017); per Simons J. in Halpin v. An Bord Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 (Unreported, High Court, 15 May 2020), para. 60; per Barniville J. in Rushe v. An Bord Pleanála [2020] IEHC 429, [2020] 8 JIC 3101 (Unreported, High Court, 31 August 2020); per Phelan J. in Stanley v. An Bord Pleanála [2022] IEHC 671, [2022] 11 JIC 2805 (Unreported, High Court, 28 November 2022); Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27 May 2024); per Farrell J. in Leech v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court, 24 March 2025). (iii) The point of law must be of public importance (a) The question must not be fact-specific arising in the particular context of a particular case – rather it must transcend the facts in order to create a point of public importance: see analogously and albeit non-precedentially, Patrick McCaffrey & Sons Limited v. An Bord Pleanála [2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 20 November 2024). See also Leech v. An Bord Pleanála [2025] IESCDET 106 (O’Malley, Murray and Donnelly JJ., 30 July 2025)

30: “The essential point made by the Applicant is that the trial judge granted relief quashing the decision of the Board on a basis that was not pleaded, that misinterpreted the decision of the Board granting the permission in question, and that failed to properly apply the general presumption that a decision of an administrative body is lawful. Issues of pleading and of an alleged misinterpretation of a specific administrative decision will usually be case specific and will not present issues of law of public importance. While the presumption of validity

taching to administrative decisions represents an important legal principle, the fact of that presumption and its effect are not the subject of any uncertainty and the application of the presumption to a particular decision will not usually involve an issue of law of public importance”. (

1. b)Advancing the proposed question should resolve doubt rather than create doubt where none exists – this is consistent with the views of Baker J. in Ógalas v. An Bord Pleanála [2015] IEHC 205, [2015] 3 JIC 2008 (Unreported, High Court, 20 March 2015) that an appeal may be necessary in the public interest to resolve doubt. But if no doubt exists, the function of the appeal mechanism is not to introduce new uncertainty into the system. Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 (Unreported, High Court, 10 January 2025) endorsed a submission that “where the law is not uncertain, the public interest suggests an appeal is not warranted”. (
2. c)The application for leave to appeal should engage with the rationale of the judgment being appealed against and provide a plausible basis as to why that judgment is wrong to the level that meets the criteria for an appeal. While a leave to appeal application is in one sense premised on the view that the decision may be incorrect, that does not relieve a would-be appellant from 5 actually engaging with the logic and reasoning of the judgment as opposed to merely repeating his or her position: see analogously and non-precedentially, Nagle View Turbine Aware v. An Bord Pleanála [2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10 March 2025). (
3. d)The fact that an official body is seeking leave to appeal is a relevant factor (Sherwin v. An Bord Pleanála (No. 2) [2023] IEHC 232, [2023] 5 JIC 0802 (Unreported, High Court, 8 May 2023)) but the mere fact that the request for leave to appeal is made by an official entity does not convert a point into one being suitable for appeal if it would not otherwise be so. As pointed out in Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J., a body concerned that it is bound by a decided issue is the whole point – the system is not a one-way ratchet whereby only applicants are bound by caselaw. (
4. e)The fact that a point is “novel” is not determinative as to whether a point is suitable for the granting of a certificate, or to put matters another way, the mere fact that a point is novel does not render it a suitable basis for appeal if it would not otherwise be so: Callaghan v. An Bord Pleanála [2015] IEHC 493, [2015] 7 JIC 2405 (Unreported, High Court, Costello J., 24 July 2015). And as Hyland J. observed in Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209, [2023] 3 JIC 1307 (Unreported, High Court, 13 March 2023)

§27

: “the mere fact that an applicant for leave disagrees with a conclusion in the judgment cannot be relied upon to characterise the state of the law as being uncertain”. (

1. f)The mere inclusion of a request for a reference to the CJEU does not convert a point into one suitable for appeal if it is otherwise unsuitable for appeal by reason of being abstract, or not arising having regard to the findings of fact, or being an issue of application of law rather than interpretation, or due to lacking sufficient factual foundation or due to there not being any demonstrable reasonable doubt, for example: see analogously Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8 (Charleton, Collins and Donnelly JJ., 27 January 2025); Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025). (
2. iv)The public importance must be exceptional If the would-be appellant establishes that there is a point of law of public importance, it must also be established that the importance is exceptional. (
3. v)An appeal must be in the public interest (
4. a)The context is the objective of the Oireachtas in seeking finality, certainty and expedition in challenges brought by way of judicial review in planning cases (Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231, [2022] 4 JIC 2601 (Unreported, High Court, 26 April 2022) per Barniville J.

para. 32; Freeney v. An Bord Pleanála [2025] IEHC 36 (Unreported, High Court, 24 January 2025) per Bradley J.). The nature of the project and the risks of further delay are factors going to the requirement that an appeal must be in the public interest: see per McGovern J. in Dunnes Stores v. An Bord Pleanála [2015] IEHC 387, [2015] 6 JIC 1805 (Unreported, High Court, 18 June 2015)

§15and §16.

See also analogously and non-precedentially Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27 May 2024)

para. 24: “The Court must have regard to the potential impact upon the notice party of any further delay in these proceedings”. (b) Any assertion of problems in practice caused by a judgment must be backed up with evidence: see Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J.; Phoenix Rock Enterprises v. An Bord Pleanála & Ors. [2023] IESCDET 97 (Dunne, Baker and Donnelly JJ., 20 July 2023)

§22

and §30 which dealt with an argument that alleged uncertainty in the law was creating alleged difficulties in practice, but rejected this on the basis that there was “no evidence before the High Court that the quarry industry was being seriously affected by the issues in the case”, and that “[t]he decision in this case was fact-specific to this quarry and it must be recalled that the role of the Supreme Court on an Article 34 appeal is not to give advisory opinions but to deal with the controversy

issue between the parties once the 6 constitutional thresholds have been met”. See also McCaffrey v. An Bord Pleanála [2024] IEHC 476 (Unreported, High Court, Gearty J., 26 July 2024)

§3.7, leave to appeal refused Mc

Caffrey v. An Bord Pleanála [2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 29 November 2024).

1. Contextually, perhaps I can point out that if there is a solid case for leave to appeal, it will presumably be granted – see R.A. v. Refugee Appeals Tribunal [2015] IEHC 830 (Unreported, High Court, 21 December 2015); B.W. v. Refugee Appeals Tribunal [2015] IEHC 833 (Unreported, High Court, 21 December 2015); K.R.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 421 (Unreported, High Court, 24 June 2016); S.T.E. v. Minister for Justice and Equality [2016] IEHC 544 (Unreported, High Court, 14 October 2016); R.A. v. Refugee Appeals Tribunal (No. 3) [2016] IEHC 671 (Unreported, High Court, 21 November 2016); B.S. (India) & Anor. v. Minister for Justice and Equality & Ors. (No. 3) [2020] IEHC 485, [2020] 10 JIC 1202 (Unreported, High Court, 12 October 2020); Dublin City Council v. An Bord Pleanála (No. 2) [2021] IEHC 34 (Unreported, High Court, 28 January 2021); Waltham Abbey Residents Association v. An Bord Pleanála [2021] IEHC 597, [2021] 10 JIC 0702 (Unreported, High Court, 7 October 2021); Sweetman v. An Bord Pleanála (Sweetman XVII) (No. 2) [2021] IEHC 662, [2021] 10 JIC 2601 (Unreported, High Court, 26 October 2021); Save Roscam Peninsula CLG v. An Bord Pleanála (No. 2) [2022] IEHC 328, [2022] 6 JIC 0903 (Unreported, High Court, 9 June 2022); Joyce-Kemper v. An Bord Pleanála (No. 5) [2022] IEHC 349 (Unreported, High Court, 10 June 2022); Kerins v. An Bord Pleanála (No. 5) [2023] IEHC 280 (Unreported, High Court, 25 May 2023); Coolglass Wind Farm Ltd v. An Bord Pleanála [2025] IEHC 1 (Unreported, High Court, 10 January 2025); Heavey v. An Bord Pleanála (No. 2) [2025] IEHC 311 (Unreported, High Court, 30 May 2025). It does not necessarily assist matters to certify superfluous issues that do not meet the necessary criteria. The proposed questions of alleged exceptional public importance
2. The applicants’ proposed questions are as follows: (i) “What is meant by the use of the phrase ‘alter the terms of the development’ in s.146B

§§2729

of the No.1 judgment, holding that: (i) the statutory language of s.146B is broad and not confined to conditions

tached to a permission; (ii) the power of alteration/amendment extends to the text of the permission; and (iii) the limiting principle is ‘materiality’ - namely whether an amendment/alteration would have a material effect on third-party rights or a material effect on habitats or species and if so then such an amendment is substantive and goes beyond the powers of s. 146B or indeed s. 146A. The foregoing constitutes a clear and definitive interpretation consistent with the express text and purpose of the provision; not an omission as baselessly and erroneously asserted by the Applicants in their certificate submissions. Clearly, the point made by the Applicants in this respect does not accurately reflect the Court’s No.1 judgment. In this connection it is apposite to note that it is a necessary implication of the principle that ‘The point of law must arise out of the decision of 7 the High Court’ that ‘the point of law must reflect a correct understanding of the decision of the High Court…’ (inter alia: Monkstown Road Residents Association [2023] IEHC 9

§9(d)).

That is particularly important in this case in circumstances where the Applicants’ certificate submissions proffer and/or are premised on mischaracterisation and/or misinterpretation of the Court’s No.1 judgment and without properly engaging in same or the actual basis upon which the Court determined to refuse relief. 19. The bald assertion (§29, Applicants’ certificate submissions) that there was a pleaded point of law that was unresolved by the No.1 judgment is not correct nor indeed is it a statable proposition. Tellingly the unresolved pleaded point is not identified. In truth this contention is undoubtedly an example of ‘the fallacy of appeal by increased metaphysics’ (Doyle (No.2) [2026] IEHC 207

§24

) deployed in an

tempt to circumvent the failure by the Applicants to evidentially establish their case and to discharge the onus of proof as regards the issue of materiality.” 19. The reference to lack of public participation is purely rhetorical. Fluffing the point by invoking the irrelevant concept of public participation adds nothing because it has no bearing on this case. This is not a case where appropriate assessment (AA) is required. Thus we don’t get to the public participatory rights that were pleaded to follow from that. Not only is that a conclusive answer to the point but the applicants have not in any meaningful way even

tempted either to explain why there is even an arguable basis to say why this does not defeat their actual pleaded complaint or to engage generally with the substantive judgments. 20. Rather the unfortunate impression given by this and the related set of questions of purported exceptional public importance in the No. I proceedings is that they read as if the applicants leafed through the judgments, made a list of interesting intellectual points that were stimulated in some way by such reading, and fired that list into the system as a proposed appeal in the hope of tickling the cerebral taste-buds of appellate courts. While one has to in one sense admire the grand insouciance of this approach, an appeal is a formal part of a formal system, and here no particularly strenuous

tempt has been made to demonstrate basic matters such as that these points were actually substantively argued and decided or properly arose from the actual facts, pleadings, arguments and decision. This is litigation on the basis that every day is a new day and that losing any particular stage is just a chance to reconfigure and reprogramme the case in some new, different and hopefully more promising direction – litigation by perpetual motion. That isn’t criticism as such and I don’t particularly blame any litigant for trying to see if they can improve their case in such a manner, but no rational system could operate on the basis of a fallacy of appeal by free association.

1. In any event, the question of whether the commission went beyond its jurisdiction here is a question of the application of law to facts. It is not itself a pure question of law.
2. Insofar as the point is to be reconfigured as one asking whether I was correct in my interpretation of “terms”, there is simply no basis in the text, context or purpose for artificially confining the word “terms” to mean “conditions”, merely because that suits the applicants’

tempt to defeat the commission’s decision. This is a wholly contrived interpretation that has no substance.

1. The commission puts the question of my decision on materiality bluntly: “per §28 of the No.1 judgment, the limiting principle is ‘materiality’ - namely whether an amendment/alteration would have a material effect on third-party rights or a material effect on habitats or species and if so then such an amendment is substantive and goes beyond the powers of s. 146B. This reflects the statutory language and requires no further elaboration.”
2. The notice party also outlines why the belated objection as to the meaning of “terms” should be dismissed

the outset (emphasis added): “10. In relation to the first part of the question, there is absolutely no authority for the proposition that ‘alter the terms’ of the development means anything other than the alteration of the terms of the development and nor was any authority or approach to statutory interpretation advanced by the Applicants

the hearing that puts this issue in doubt. 11. The Applicants themselves accepted in their main submissions (§6) that ‘terms’ is defined as including a ‘condition’. This necessarily suggests that ‘terms’ includes a jurisdiction to amend both the ‘terms’ of the grant of planning permission (i.e. the temporal parameters of the grant) and any

tached conditions.

1. Section 146B confers a power to alter the terms of any development which is the subject of permission under the 2000 Act. This includes non-material alterations and material alterations but, in the case of the latter, the Commission must consider whether the proposed alteration would have significant effects on the environment. It would make absolutely no sense if the statutory section allowed material amendments in terms but was simultaneously confined to very minor or immaterial amendments by virtue of the Applicants’ suggested reading of ‘terms’ for the purposes of s.146B. 8
2. There simply is no dispute about the ambit of the word ‘terms’ and the Court correctly disposed of this issue in very short order ‘What’s clear is that the word term includes condition but is therefore not exhausted by condition. The text, and indeed the purpose of the provision, does not support a conclusion that text other than conditions cannot be amended.’
3. While the Applicants quote this

§26

of their submissions, they do not actually engage with the finding of the Court, the basis upon which the Applicants contend that this conclusion is incorrect or, more to the point, how this allegedly gives rise to a point of law of exceptional public importance.

1. All the Applicants do is quote §§27-30 of the judgment verbatim and then state (§27): ‘The Court in determining that “the text, and indeed the purpose of the provision, does not support a conclusion that text other than conditions cannot be amended” did not resolve the point of law of public importance raised by the pleadings. When read in the context of the reasoning of Simons J. in Elaine Kelly Dunne v Guessford Limited [2021] IEHC 583 it is difficult to understand how a legislative provision which allows the alteration of the development itself, rather than simply the terms or text of a planning permission, can result in a planning permission which is valid and enforceable. It is of significance here that the effect of the s.146B Order was not an amendment of the text of the original planning permission but an expansion of the planning permission to allow two new turbines in different locations with different impacts to be substituted for other turbines that the developer proposes to no longer construct because the landowner never granted consent for their development. The relevant paragraphs relied upon in particular in Kelly Dunne are reproduced here for the convenience of the Court…’ ...
2. Firstly, and fatally, the Applicants just have not engaged with the judgement

all as required by Humphreys J. in Condon v An [Coimisiún] Pleanala (No. 2)

§10

(iii)(c) ‘…and have not provided a plausible basis as to why the judgment is wrong to the level that meets the criteria for an appeal. While a leave to appeal application is in one sense premised on the view that the decision may be incorrect, that does not relieve a would-be appellant from actually engaging with the logic and reasoning of the judgment as opposed to merely repeating his or her position’

1. The Applicants have completely failed to explain how the Court has not resolved the alleged point of law – the Court did so, by reference to an interpretation of the word ‘terms’ that the Applicants themselves accept.
2. Secondly, the reliance on the approach in Guessford featured nowhere in the Applicants’ written submissions. As identified by Humphreys J. in Condon (No. 2)(§13) ‘What is somewhat surprising about the first question is that the now apparently central case of South West Regional Shopping Centre v. An Bord Pleanála [2016] IEHC 84, [2016] 2 I.R. 481 (Costello J.) is mentioned nowhere in the notice party’s written legal submissions on the substance of the matter. Not having been the subject of proper written argument then it cannot plausibly be contended to be central now’. The Applicants could have opened the approach of Simons J in Guessford to the Court and identified how it supported their suggested approach. It did not do so and it cannot legitimately use a certificate application to make, in effect, a brand new argument as to why its suggested approach is correct.”
3. The real question is whether the alteration was material. Unfortunately for the applicants that is a question on which they failed to discharge the onus of proof. That is a factual and not a legal conclusion.
4. Furthermore, the applicants’ factual description of the effect of the amendment is totally incorrect and improperly reconfigures the factual findings in the context of a purported proposed appeal on a point of law with no basis whatsoever for so doing. There is no question of “two new turbines” or an “expansion” of the permission. The judgment records findings of fact that the amendment in essence merely allowed alterations as to the location of permitted development.
5. The applicants’

tempt to reconfigure their failure to overcome the onus of proof to show that as a matter of fact the change was material, so as to transmogrify it into an issue of law, is, unfortunately, tendentious, as the commission submits: “20. Further as regards the first point and §27 of the Applicants’ certificate submissions, the Applicants evidently seek to impermissibly reargue the merits of the issue, in asserting that the alteration/amendment

issue involves two new turbines and ‘different’ locations with ‘different impacts’. This is part of the flawed premise of the first point in that it tendentiously contradicts and ignores the relevant factual conclusions of the No.1 judgment (in particular

§§30

-31) and disregards the information furnished by the Notice Party developer during the s.146B process on the basis of which the alteration/amendment was 9 made by the Commission, and hence the proposed question does not properly arise. The Applicants’ repetition of its unsuccessful subjective merits-based disagreement with the Commission’s conclusion that the proposed alteration/amendment is not material is legally irrelevant and not a basis for certification.” 28. There is no conflict or analogy with Kelly Dunne v. Guessford Ltd [2021] IEHC 583 (Unreported, High Court, Simons J., 21 September 2021) which related to a completely different type of proceeding (s. 160 of the 2000 Act) and nor was this point made in this way

the hearing, so it cannot properly arise now as an appeal point.

1. The test for materiality does not properly arise because the applicants did not argue that the test was in doubt. Rather their pleading and submission was focused on whether as a matter of fact the alteration was material. The notice party highlights the insuperable problem for the applicants: “
2. This point of law does not arise from the judgement. The Applicants never pleaded any issue in relation to the test for ‘materiality’ but rather that the Commission had no jurisdiction to grant the specific amendments sought pursuant to section 146B because they were material. This could not be clearer

E§2 of the Amended Statement of Grounds that reads: ‘The Board erred in law and acted ultra vires and contrary to fair procedures in deciding that the proposed alteration was not material when it involved the siting of two large turbines each with an output of 7.2 megawatts in forestry lands

a distance of 170 metres and 220 metres respectively from the location of the originally permitted turbines, involving the felling of more than 8 acres of trees and the removal off site of harvested timber and the construction of concrete foundations for the turbines and concrete hard standing for cranes and the erection of two turbines in these new locations and the making of roads to the turbine sites and the construction of two bridges over two rivers and the laying of underground cables.’ 30. That argument makes sense as far as it goes but it does not raise any issue in relation to the test to be applied on a general or systemic basis. Nor was any issue raised in the Applicants’ written submissions other than the contention, in effect, that on the facts the Commission had got it wrong. It is, respectfully, difficult to think of an issue that is more fact specific than the point raised by the Applicants. The Applicants, not having raised the issue of the test in the proceedings, the written submissions cannot be surprised that this issue did not feature in the written judgement because all parties proceeded on the correct basis that the test was materiality and the issue before the Court was which side of the line the proposed amendments fell on. That factual issue was resolved against the Applicants as per the Court’s summary

§30

. The proposed point of law of exceptional public importance therefore simply does not arise from the judgement.” 30. Arguments that make their first appearance after the case has been rejected are not arguments that properly arise for the purposes of proposed appeal. Are the points ones of law? 31. The points are not ones of law for the reasons stated. Are the points of public importance? 32. There is no public importance in the issues raised. The substantive judgements are factspecific (beyond the sense in which they set out obvious conclusions as to the statutory scheme, for which there is no plausible counter-argument that is relevant for present purposes). Are the points of exceptional public importance? 33. This does not arise having regard to the foregoing. Is an appeal in the public interest? 34. An appeal is not in the public interest for multiple reasons – particularly: (

1. i)the minor nature of the amendment which is the subject matter of the impugned decision in these proceedings; (
2. ii)the confused and tendentious nature of the questions; (iii) the problem that they are essentially factual even if they properly arose; (
3. iv)the non-compensatable financial prejudice to the notice party; (
4. v)the principle of finality in planning litigation; and (
5. vi)the urgent public interest in delivery of renewable energy infrastructure. 35. I endorse the submission of the commission: “PUBLIC INTEREST 30. There is no public interest in appealing either point. The Applicants have failed to establish how certification of either point is in the public interest. No actual affirmative public benefit or public interest has been identified or relied upon by the Applicants in this regard. In this connection, the Applicants’ submissions consist of reagitating already rejected arguments and a clear misinterpretation and failure to engage with relevant findings in the Court’s No.1 judgment. Where, as here, the law that was actually applied by the Court in 10 determining this particular case is not uncertain, the public interest suggests an appeal is not warranted. 31. It is respectfully submitted that the public interest militates against allowing an appeal, for the same reasons as set out in Carrownagowan (No.3) [2024] IEHC 549

§83to §92, and §93(vii).

As the Court concluded in that case

§93

(vii) and apposite here: ‘…the public interest militates against allowing further appeal - there is a significant public interest, now legally enshrined in various ways, in the expeditious determination of the lawfulness of renewable energy infrastructure, and an enshrined EU law provision affording a presumed overriding public interest in the provision of such infrastructure in some circumstances where that conflicts with the habitats directive, and in any event, the facts of the present case are an extremely poor basis for a proposed appeal, given the lack of evidence on crucial points.’ 32. See also Massey (No.4) [2025] IEHC 309

§29

-§34, which is consistent with the above and supportive of the Commission’s position herein that an appeal in the present case is not in the public interest. 33. It is also not in the public interest to certify either of the points, noting the point made in Nagle View (No.2) [2025] IEHC 3

§9

(vii) (‘The nature of the project and the risks of further delay are factors going to the public interest’). 34. Further, certain points made by the Court in refusing leave to appeal in Condon (No.2) [2026] IEHC 136

§63apply equally to the present case: ‘63.

An appeal that is based on a misunderstanding of the principal judgment in a way that seems to “spread maximum confusion” (Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38, [2024] 1 I.R. 386, [2022] 10 JIC 2402 per O’Donnell C.J.

para. 22 (Dunne, Woulfe, Hogan and Murray JJ. concurring)) is not in the public interest.’ 35. In addition, as noted in Hoctor (No.2) [2026] IEHC 174

§§27-30 and likewise applicable in the circumstances of this case: ‘28.

An appeal is clearly not in the public interest particularly having regard to the public interest in infrastructure and renewable energy and to the non-compensatable financial prejudice to the developer. 29. The project here was found acceptable by the inspector and the commission. The applicants have also had a full hearing

trial level and in all of the circumstances there is no public interest in further agitation of the applicants’ complaints given the statutory policy of finality.

1. As regards the imperative public interest in major infrastructure including particularly the generation of renewable energy in the context of the climate emergency, I endorse the submission of the notice party on this issue: “
2. Fourth, there are countervailing public interest considerations

issue. The development is an onshore wind farm which, upon completion, will provide significant renewable energy in line with local, regional, national and EU policy. In that connection, it is directly relevant that EU law has recognised renewable energy projects as being in the overriding public interest (see, e.g., the discussion in Carrownagowan Concern Group v An Bord Pleanála [2024] IEHC 549, §86 et seq). […]”’ CONCLUSION

1. There is no basis for leave to appeal in this case. The Applicants’ submissions in support of this application fall short of asserting any point of law of exceptional public importance.
2. This is a case where it merits recalling that the clear legislative intention is that planning cases should generally be confined to the High Court. As noted by Barniville J. (as he then was) in Rushe [2020] IEHC 429

§24

: ‘…as has been pointed out in many of the judgments … the clear intention of the Oireachtas in enacting s. 50A was that, in most cases, the decision of the High Court on an application for leave to seek judicial review of a planning decision or on an application for judicial review of such a decision will be final and, in most cases, there will be no appeal. That is why s. 50A

§73insofar as it emphasises the rare and exceptional nature of certification.

39. Further, the Applicants’ certificate application and the proposed points in substance and reality relate to the application of clear and well-established principles to the particular facts of the case and, as such, are not certifiable for appeal - as Holland J. made clear in Monkstown Road [2023] IEHC 9

§69. 40.

This is a case where the High Court’s judgment on the application for judicial review should be final. 11 41. For the reasons set out in these submissions, it is respectfully submitted that the threshold under s.50A

§15and §16.

See also analogously and non-precedentially Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024): “The Court must have regard to the potential impact upon the notice party of any further delay in these proceedings”.’ 39. As identified in the Affidavit of Mr Sherry this is a significant renewable energy project that will make a sizeable contribution to the

tainment of renewable energy targets. Furthermore there have already been very significant delays in the project as a result of these proceedings. The impugned decision was made on 21 November 2023 and nearly 30 months have been lost as a result of these proceedings. It is imperative (and in the public interest) that this application is refused so that the project can proceed. Conclusion

1. The Court’s judgement is correct and raises no issue of principle and the Developer have identified no point of law of exceptional public importance. The Court is respectfully requested to refuse the Certificate sought.”
2. Even if I am wrong about everything else, the air of unreality about the proposed appeal remains. Insofar as concerns the validity of the permission, this is not some sort of path-breaking case. It concerns a relatively minor amendment to a permission, essentially confined to a change in the location of already-permitted structures. That amendment as a matter of fact was deemed non-material by the statutory actors concerned, a finding which these applicants evidentially failed to displace in the present proceedings. The applicants naturally try to make a federal case out of all of this but in reality it should more properly be filed under teacup-sized storms. This is not an issue that rises to the level that cries out for yet a further tier of extensive debate, analysis and scrutiny, the non-compensatable financial burden for which will not fall on the applicants but on the notice party developer. Does the possibility of an EU law point make any difference?
3. No defined EU law point is raised in the questions. Nor was any such point relevantly argued.
4. However lest any stone be left unturned, I have considered whether one could assume that the throwaway reference to public participation in the first question could be said to constitute some sort of

tempt to drag EU law centre-stage

the eleventh hour. 40. For that purpose I have (and as always when an EU law point is raised) considered any potential relevance of Art. 267 TFEU. But the obligation to refer (even for an apex court) does not apply if a point is acte clair/ acte éclairé: judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19, ECLI:EU:C:2021:799 (Grand Chamber)

para. 33. 41. In order to demonstrate that a point is not acte clair, there are essentially two options: (

1. i)first of all, a party has to show that there is a sufficiently weighty inherent logic to the contrary position; or (
2. ii)alternatively, they can show that there is some relevant material to the contrary either

European or

national level that is capable of affecting the result. 42. The European legal space is rich with potential supporting material for any good point that a party may have. If one starts with 27 member states, there are 10 candidate or potentially candidate accession countries (9 recognised states and Kosovo) that are all in the process of assimilating EU law in one shape or form. There is obviously one former European member state (the UK) and (for the sake of absolute technical inclusivity) one former non-European member state, Algeria (a part of France as an EEC member from, relevantly, 1957-62). That leaves 13 other European states, virtually all of which have some formal relationship with the EU that involves some level of incorporation of EU law, most notably the 3 other EEA states and the one EFTA member (Switzerland) that is not a member of the EEA, plus 6 other European countries, most of which have some level of EU association. In addition, there are a large number of European and non-European special territories of these states, two of which (Greenland and Saint Barthélemy) are former EU 12 territories. EU law also influences non-EU states through cooperation agreements and otherwise. We are talking about a population of 450 million in the EU strictly speaking, 500 million just sticking with the EEA, over 750 million taking a wider view of the European space whose legal systems have engaged with EU law. If a party can’t come up with a single court decision or academic work either

EU-level or from that gigantic pool that would change the result of this case then a court can reasonably conclude that there is no demonstrated doubt about the point such that a reference to the CJEU would arise, even as an obligation for an apex court.

1. In the present case, the point does not have an inherently weighty internal logic to propel it to the level of creating real doubt without authority. And there is simply nothing by way of authority creating doubt to suggest that other EU-law-enforcing courts would decide the matter in the way contended for.
2. The applicant hasn’t come forward with any judgment of any court in Ireland, or in any other member state or former member state, showing support for any EU law issue that even conceivably arises from the proposed points. Nor is there any judgment of the Court of Justice or an opinion of an Advocate General creating doubt about the conclusion proposed in the substantive judgment, or even any academic material doing so. Not a scrap of paper in a continental legal space of the best part of a billion people. The reference procedure isn’t for any and every possible imaginative question – only for questions on which there can be a real dispute (see Toole v. Minister for Housing (No. 3) [2023] IEHC 378, [2023] 7 JIC 0302 (Unreported, High Court, 31 October 2023) paras. 8687). No basis for such a dispute has been shown here.
3. If contrary to the foregoing the European (or EU-law-applying) courts revisit this and come up with new authority of relevance, this point or any point can and will be revisited, but the acte clair doctrine is meaningless if it has to accommodate the hypothetical academic possibility of doubt that does not currently exist and is not currently foreseeable. What is in doubt

any given time has to be judged on the basis of the legal landscape

the time in question. No such doubt properly arises

the present moment in time. 46. That doesn’t in any way take from the fact that the EU law birds-related issues concerning declaratory relief are still live in this case, and the applicants will have a further day in court on that issue in due course. Article 267 remains up for debate in that context, lest anybody be under a misapprehension about that, but obviously there are a number of issues to be addressed before that could harden into any definite decision one way or the other. Summary 47. In outline summary, without taking from the more specific terms of this judgment: (

1. i)the appeal questions proposed do not properly arise; (
2. ii)the questions are essentially ones of fact or application of law to the facts, and the supporting rationale significantly misstates without basis the factual findings of the court; (iii) there is no public importance in advancing these questions and there are significant public interest considerations against doing so; and (
3. iv)no EU law point of substance or doubt is raised. Order 48. For the foregoing reasons, it is ordered that: (
4. i)the application for leave to appeal be dismissed; (
5. ii)in the event that an application for leapfrog leave to appeal is made and acceded to by the Supreme Court, the costs of the leave to appeal application be costs in that appeal; (iii) otherwise, there be no order as to the costs of the leave to appeal application; (
6. iv)the foregoing order and the order already pronounced in the substantive judgments be perfected forthwith with no further listing as the final order of the High Court in the proceedings insofar as concerns the dismissed complaints; and (
7. v)the remaining live declaratory relief be listed for further directions on 18 May 2026.