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2026 IEHC 362

APPROVED [2026] IEHC 362 THE HIGH COURT PLANNING & ENVIRONMENT Record No: 2025/1205JR IN THE MATTER OF SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED Between: MARTIN BUSHER, JOSEPH MC CLOSKEY, BRIAN MELICAN, IVAN GRAYDON, TOM BOLAND AND TERRY REYNOLDS Applicants -andAN COIMISIÚN PLEANÁLA Respondent -andUISCE ÉIREANN Notice Party Judgment of Ms. Justice Emily Farrell delivered the 10th day of June 2026

  1. This is an application for directions, in which the Applicants seek an order requiring An Coimisiún Pleanála (“the Commission”) to provide “a full and candid account of the consideration given to ... [specified] issues, and whether any such consideration was given” thereto. The information sought relates to the issues of odour, lighting and screening, which issues are raised at Core Grounds 1, 2 and 3 of the Statement of Grounds.
  2. In the substantive application, the Applicants seek an order of certiorari quashing the decision of the Commission dated 11th June 2025, granting the Notice Party, Uisce Éireann, permission to construct a wastewater treatment plant, pumping station and associated works at Dunlicky Road, Victoria Park and other locations in the town of Kilkee and County of Clare (file reference ABP-321258-24.) The Applicants advanced four core grounds, which are particularised in the Statement of Grounds filed on 5th August 2025, for contending that the Commission’s decision is invalid. Core Ground 4 is no longer pursued by the Applicant.
  3. Core Grounds 1 – 3 can be summarised as follows: - that the Commission misdirected itself in law by finding that the issues relating to noise and odour were matters to be addressed by the Environmental Protection Agency and could be addressed by standard conditions imposed by the Commission; - that the Commission failed to consider the potential impact of site lighting on neighbouring properties, or to give reasons in respect of same; - that the reasons given by the Commission relating to landscaping and protection of the amenity of the area are invalid, particularly having regard to the findings and recommendation of its Inspector.
  4. The application is a very novel one albeit one derived from a line of authorities including R v. Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941 (“Huddleston”), Reid v. An Bord Pleanála, [2021] IEHC 362 and Elsharkawy v. The Minister for Transport [2024] IECA 258, [2025] 1 I.L.R.M.
  6. The Commission and Uisce Éireann do not dispute that a respondent in judicial review must conduct its defence of the proceedings “with all the cards face upwards on the table”. In Huddleston it was acknowledged that the vast majority of the cards will start in the authority’s hands. No judgment or authority has been relied upon in which a court has considered an application of the nature made by the Applicants herein.
  7. The Applicants complain that the Commission failed to consider all relevant matters and that its reasons were inadequate. These are issues to be determined on the substantive application. The Applicants submit in the first instance that the Commission’s decision, when properly interpreted, demonstrates that the Commission failed to consider all relevant matters, and failed to provide adequate reasons for aspects of its decision.
  8. The Commission filed its Statement of Opposition on 27th January
  9. It is pleaded, at para. 31 thereof, that the Commission will refer to the text of the Inspector’s Report, the Commission’s Direction, the Commission’s Order, the relevant documentation before the Commission and the relevant planning policy documents for the true meaning and effect of same. This necessarily involves considering the Commission’s decision by reference to the materials before it, in the manner described in Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M.
  10. The Commission’s pleas in this regard are 2 consistent with the approach of the Applicants, although the Applicants and the Commission submit that the impugned decision must be read in opposing ways.
  11. In the affidavit sworn by the first named Applicant on 7th May 2026, both in support of this application and in response to the opposition papers filed by the Commission and Uisce Éireann, he relies on the documents before the Commission and those generated by it for their full meaning and effect. He also states, although by way of legal submission contained in his affidavit rather than being a statement of fact, “the Commission's decision and, insofar as it was adopted (if at all) by the Commissioners, or differed from, the reasoning given must be treated as the entire reasoning, and it can be inferred from a failure to say anything that that thing was not considered.”
  12. At para. 8 of his affidavit, Mr. Busher continued by stating: “If, which I am advised is not the case, further evidence should be required, I say and believe that such evidence is peculiarly within the knowledge of the Commission’s Commissioners, and it can be inferred that there is no written record of it because any written record would be required to be on the public file and available for inspection. I am advised and believe that, if the Court were to say that an Applicant needs evidence to prove what the Commission did or thought, but to allow the Commission to rely on any wording in the decision, however infelicitous, to support its position, that this would be a breach of the requirement of equality of arms, of the Aarhus Convention, and of the principle of equality before the law, and this matter will be addressed further in legal submission.”
  13. In their written submissions, the Applicants’ argument is set out as follows: “
  14. ... the Applicants’ main argument is that the correct inferences to be drawn from the file are that the Commission erred as alleged. They rely on S146

(5)PDA which requires that, within 3 days of the decision, all of “the documents relating to the matter” must be made available for inspection. The Applicants can therefore safely infer from the documents made available for inspection that there were no other relevant documents, and that anything that is not stated in the documents did not happen. In this way, the first document to look at is the inspector’s report, because this report contains the sort of detailed analysis one would normally expect in, for instance, a court decision. If the commissioners have adopted the inspector’s report, his (or her) reasons 3 are their reasons. If it has not, it must explain its reasons for departing from what the inspector said. In respect of matters where it did not depart from the inspector’s reasoning, it can still rely on that reasoning, so that where it has said nothing else on the matter, then either it did not consider the matter, or it considered it was clear that it was in fact adopting what the inspector said, and that has to be inferred from the decision as a whole. Thirdly, if it is still unclear what the commissioners did, then their reasons are inadequate, and the decision is invalid on that basis. All of this, it will be submitted, can be determined from a proper reading of the file, and a proper reading of the file will reveal that it must be determined in favour of the Applicants.
  1. In the alternative however, if there is any further burden of proof on them, and if the Applicants cannot simply infer from the fact that something is not mentioned on the file that it did not happen, then the Applicants must be able to compel the person who knows about the thing that was not mentioned to confirm the position. In this respect, there is a line of case law finding that Applicants failed to displace the presumption of validity when they merely sought to rely on the absence of something from the decision, and did not seek to go behind the decision to get further evidence as to what really transpired. They failed because they failed to seek to go behind the written record to establish what was actually considered and determined.”
  2. The essence of the Applicants’ argument is that if the Commission is not required to file an affidavit explaining the extent to which it considered the specific matters, the Applicants will be hampered by the presumption of validity which attaches to the impugned decision. They are concerned that they may not be able to overcome the onus which rests on them as applicants in judicial review. The Applicants point to a number of cases, including Reid v. An Bord Pleanála, Wild Ireland Defence v. An Coimisiún Pleanála & Ors [2025] IEHC 726 and Rogers v. An Coimisiún Pleanála [2026] IEHC 257 in which cases applicants were found to have failed to present evidence sufficient to discharge the onus on them. In both of those cases, and Maryland Residents Association v. An Coimisiún Pleanála 2024/1021 JR, the relevant information related to matters peculiarly within the knowledge of the Commission. Maryland, which is referred to in the Applicant’s submissions came on for hearing before Holland J. on 29th April
  3. The Applicants state in their written submissions that Holland J. directed that “two affidavits [...] be filed by the Commissioners who made the impugned decision concerning what they understood to be the position with 4 regard to the status of the Castlebar Local Area Plan and the location of the proposed development respectively.” . The Commission conceded that its decision was invalid on the first day of the hearing. It is not necessary to rule on the Commission’s objection to the Applicants’ statement of what occurred in those proceedings or on a transcript part of that hearing, particularly as Holland J. did not deliver a judgment. It was accepted by counsel for the Applicants that there is no written judgment where an order of the type contemplated by Humphreys J. in Reid was made, nor is there any judgment in which the court has set out the type of affidavit which may be required or the circumstances in which a respondent ought be required to file such an affidavit.
  4. In Huddleston, the Master of the Rolls stated: “authorities assist neither themselves nor the courts, if their response is a blanket assertion of having acted in accordance with law or one which begs the question. If the issue is whether an authority took a particular factor into account, it will be a sufficient response to show that it did. But if the allegation is that a decision is prima facie irrational and that there are grounds for inquiring whether something immaterial may have been considered or something material omitted from consideration, it really does not help to assert baldly that all relevant matters and no irrelevant matters were taken into consideration without condescending to mention some at least of the principal factors on which the decision was based.”
  5. As Parker L.J. noted in Huddleston, in most cases, authorities whose decisions are challenged will put all that is necessary to enable justice to be done before the court.
  6. The obligation of putting the cards face upwards on the table in judicial review proceedings arises to ensure that justice may be done. The means by which they do so necessarily depends on the circumstances of each case, and the type of decision which is impugned. Material which is necessary to fully and fairly meet the challenge raised in the proceedings may be produced in a number of ways, and not only by the decision maker filing, or being required to file, affidavits.
  7. This is clear from the judgment of Butler J. in Elsharkawy: “
  8. Whilst “ all the cards face upwards” has become something of a mantra, some of the underlying concerns Donaldson MR was addressing have been 5 overtaken by other developments since
  9. The legal and regulatory framework within which most public authorities work is now imbued with an ethos of openness and transparency which was lacking in earlier decades. A person in the position of the Huddleston applicant would be able to invoke the Freedom of Information Act 2014 and the data access provisions of the Data Protection Acts 1988 – 2018 in order to obtain the information required to make their case. Other bodies, especially those such as planning authorities which make decisions entailing a degree of public participation, are obliged to make their files available for public inspection even in the absence of litigation. Nonetheless, the duty of candour remains an important principle governing the conduct of respondents in public law litigation, albeit that findings that the duty has been breached remain relatively rare.”
  10. The requirement that a respondent disclose the material relevant to the decision sought to be impugned had previously been recognised in O'Neill v. Governor of Castlerea Prison [2004] WJSC-SC 9109, [2004] 1 I.R. 298, [2004] 2 I.L.R.M. 241, by Keane C.J., who accepted the argument that a respondent in judicial review should “disclose to the court all the materials in its possession which were relevant to the decision sought to be impugned”. Keane C.J. also stated that the criticism that the respondents had left the applicants to make a request under the Freedom of Information Act 1997 and had not filed an affidavit in support of the statement of opposition was justified. More recently, in cases including RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273, Huddleston was relied on as an additional source for the principle that public bodies should respond to challenges transparently, albeit in a different context. The principle of transparency in the conduct of public law litigation was also referred to by Clarke C.J. in Student Transport Scheme Limited v. The Minister for Education and Skills [2021] IESC
  12. As Butler J. stated in Elsharkawy, one of the ways in which effect is given to the duty of candour on respondents in judicial review proceedings is through the pleading obligations in Order 84 r. 22
(5). The duty to be “up front” with the applicant and the court arises because of the particular position of public authorities in public law litigation, as those bodies have a positive obligation to uphold the law. 6 18. The statutory framework within which the impugned decision was made requires the Commission to lay the cards out for those involved in the process, and indeed the public. The Commission was required to “state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions” by section 34
(10)of the Planning and Development Act, 2000 and to make the file available for public inspection under section 146
(5)of that Act. Those obligations arise whether or not a decision is challenged. The adequacy of reasons provided by the Commission is determined by reference to the Commission decision as properly interpreted. The Applicants make no complaint in respect of the Commission’s compliance statutory obligation to make the file available.
  1. The Applicants are placed, by the statutory framework, in a materially different position to that of the applicant in Huddleston, in which Sir John Donaldson MR found that there was no outward or visible sign of the consideration given to the grant of the discretionary award sought.
  2. Unlike the respondent in Elsharkawy, the Commission has set out the material it intends to rely upon and the basis on which it contends that relevant matters were considered and that the reasons given were adequate. In that case, Butler J. found that the respondent’s Statement of Opposition failed to comply with the Rules of the Superior Courts. She stated, referring to para. 26, for example: “
  3. ... The follow-on plea to the effect that the applicant is put on proof of the proposition that adequate reasons were not advanced is problematic in circumstances where the applicant has expressly pleaded (at para. (xxxv) of the statement of grounds) that the reversal of the original decision as to how the legislation was to be applied was “ as yet unexplained”. A respondent can certainly assert that reasons are not required as there is no duty to provide them in the particular circumstances. However, in circumstances where reasons were not given, a respondent cannot place the onus on an applicant to disprove the adequacy of whatever undisclosed reasons the respondent may have had.”
  4. Similarly, at para. 86, Butler J. held that the Minister could not rely on the applicant's failure to establish whether the legal advice given to the Minister was in writing or oral, and 7 that if the Minister wishes to assert that there were no documents which could be inspected for the purposes of Order 31 r. 18, the onus was on the Minister to confirm positively that the legal advice was given orally. This was a matter peculiarly within the knowledge of the Minister and not one which could be inferred from the decision or the material put before the court.
  5. The Commission’s Statement of Opposition cannot be described as a “formulaic denial” of the Applicants’ case, nor does the Commission omit to disclose evidence relied upon or its reasons. The Applicants have not submitted that it fails to comply with the Rules of the Superior Courts. Rather it identifies, with specificity, the material which the Commission relies on to refute the Applicants’ case. Whether or not the Commission or the Applicants have correctly interpreted the decision in accordance with the authorities remains to be determined at the substantive application. Depending on the materiality of a particular document or issue, transparent consideration and analysis may be required: T.G. v. Refugee Appeals Tribunal [2007] IEHC 377 (p. 9).
  6. The Applicants maintain that they are entitled to require the Commission to file affidavits stating what was in the mind of the Commissioners, and to specify the extent to which certain matters were considered but not committed to writing. This is not supported by the authorities.
  7. The Applicants accept that this case is not exceptional. They submit that the asserted entitlement to the directions sought arises from the opposition papers rather than the identity of the respondent or issues raised in the proceedings.
  8. Whilst a concern was expressed by the Commission that the making of the order sought would open the floodgates, I am not influenced by that argument, but rather the question is whether the order sought is required to ensure that justice be done between the parties in this case. As Murray J. noted in Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28 (§43) "The grant of leave [to apply for judicial review] is the extension of a permission to pursue that ground of challenge, not the opening of an investigation into whether the decision or process is unlawful on any grounds that might subsequently present themselves in the course of the ultimate hearing of the matter.” The 8 proceedings must be conducted by the application of the well-established principles of judicial review.
  9. It is beyond doubt that the onus in judicial review proceedings is, and remains on the applicant, subject only to very limited exceptions (none of which apply here): Sherwin v. An Bord Pleanála [2023] IEHC 26 (§85); Amariei v. Chief Appeals Officer [2026] IESC 22 (§96), Rutledge v. Fingal County Council [2026] IEHC 223 (§49). In Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4, Donnelly J. stated: “
  10. ... Once the decision to grant permission is made by the Board, the validity of that decision is a function of the law permitting such a decision to be made. The validity of the decision, and the corresponding presumption, is not within the gift of the decisionmaker. When the decision is challenged in judicial review proceedings, the presumption operates to identify who bears the burden of proof. The Board's “concession” cannot operate to take away the right of the party who has the benefit of that planning permission to defend that decision when it is challenged by way of judicial review. ...”
  11. It must be presumed unless the contrary is shown that the Commission’s decision is valid: In re Comhaltas Ceoltóirí Éireann, unreported, High Court, 14th December 1977; Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88, [1984] I.L.R.M. 47, 102; Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (§22); Moran v. An Bord Pleanála [2025] IEHC 510 (§15); Rutledge (§49). The onus rests on an applicant by reason of the presumption of validity, and not simply the principle that ‘he who asserts must prove’.
  12. The nature of a rebuttable presumption necessarily entitles a party to rely on a presumption in their favour, but evidence, direct or inferential, may rebut that presumption. The effect of the order sought by the Applicants in this case would be to disapply that presumption. In relying on the presumption, the Commission is not entitled to withhold salient information from the Applicants or the Court, as is clear from Elsharkawy. However, in considering whether or not the Commission has done so, regard must be had to the decision itself, bearing in mind the obligations under sections 34
(10)and 146
(5)of the 2000 Act and the pleas made in the opposition papers. 9
  1. Counsel for the Applicants accepted that that they could advance no evidence to show that the Commission had failed to consider the specified issues properly or at all, and submitted that that was the difficulty they were in. Reliance was placed on the dictum of Holland J. in Coyne v. An Bord Pleanála [2023] IEHC 412 (§37) where he stated: “It seems to me that the burden of showing that a matter, to which regard was allegedly not had, was arguably relevant to the decision at hand, such that regard had to be had to it, must rest on the applicant in judicial review. But thereafter and given especially the lightness of the obligation to have regard and the freedom of a decisionmaker to give the matter in question no weight, it seems to me unfair, as creating a very high bar, perhaps especially in litigation generally conducted without oral evidence, to require such an applicant, in the absence of illuminatory content in the impugned decision, to prove a negative as to what occurred in the mind of the Inspector and Board members. Such a burden is to be contrasted with the simplicity of the Board’s task, and the lightness of the burden it imposes, in demonstrating that regard has been had to a relevant document…”.
  2. Holland J. did not suggest that the burden was not, or ought not, be on an applicant, but continued stating: “Whatever the deficiencies of “recitation” or “box-ticking”, they have at least the virtue that a positive act of recitation or ticking the box has occurred. Where it relates to a very light obligation to consider a matter, it does at least serve the purpose of intimating that regard has been had to it, if only in the form of the mental act required to tick the box or recite the identification of the matter in question. O'Donnell CJ's dismissal of “administrative throat-clearing” seems to me to imply, a fortiori, that the absence of even administrative throat clearing by way of box-ticking or recitation — is likewise to be dismissed. And, perhaps unusually given the lightness of the obligation to have regard, such box-ticking or recitation will often suffice as implying that the Board's mind has been addressed to the issue. Or, at least, the Applicant in judicial review will, in that circumstance, face the uphill struggle of proving that the necessary regard was not had. If that box-ticking or recitation has not been done, the issue will turn on a wider consideration of the content of the impugned decision.”
  3. As Holland J. noted, by reference to the judgment of Humphreys J. in Four Districts Woodland Habitat Group & Ors v. An Bord Pleanála & Ors [2023] IEHC 335, “having 10 regard to something does not in itself impose a requirement to give reasons for not accepting that something, albeit that the something concerned may be one of the main issues, in which case the main reasons would be independently required …”
  4. The Applicants also relied on Cork County Council v. Minster for Housing, Local Government and Heritage & Ors [2021] IEHC 683 (§57) in which case Humphreys J. stated: “(iii). Having regard [ which he found was the same as considering] implies looking at the matter concerned, and factoring in its relevance, if any, and weight, if any, as those matters appear to the decision-maker. (iv). Hence if the decision-maker fails to even look at the documents or matters to which it is to have regard, or if the evidence doesn't demonstrate that it has done so, then a ground for certiorari arises. ... ”
  5. Nothing in the judgment of Humphreys J. supports an interpretation of his judgment as reversing the onus of proof in judicial review. He also stated “(viii) .... The degree of weight and consideration to be given to something depends in significant measure on that something, not on some completely dry, academic and disembodied conceptualisation of elaborate legal process in the abstract.”
  6. At §57 (x) of Cork County Council v. Minister for Housing, Humphreys J. referred to an “enhanced duty” to give reasons which may be created expressly or impliedly by the legal context. Specific reasons may be required to demonstrate that a particular matter has been considered under the principle of giving the main reasons for the main issues. That is the rationale of T.G. v. Refugee Appeals Tribunal, which I considered in Morehart v. An Bord Pleanála [2025] IEHC
  8. In Morehart, which was cited by the Applicants (who did not submit that it was wrongly decided) I held: “The onus of demonstrating that the March Memorandum was not considered rests on the Applicant. The absence of an express reference to a document is not sufficient to demonstrate, in every case, that it was not considered. In certain cases, a particular document will be of such significance that the decision-maker must be seen to have considered it: T.G. v. [Refugee Appeals Tribunal and ]Minister for Justice [2007] IEHC
  9. Birmingham J. endorsed the view of Feeney J. in Banzuzi v. Minister for 11 Justice [2007] IEHC 2, in which case he found that there is no obligation on a decision maker to refer to every aspect of evidence or to identify all the documents within its written decision — a proposition which received the endorsement of Dunne J. in A.W.S. v. Refugee Appeals Tribunal [2008] IEHC 276.” (§110)
  10. This underscores the principle that the decision of the Commission speaks for itself. In State (Crowley) v. The Irish Land Commission [1951] IR 250 O’Byrne J. stated: “It is, however, sought to supplement the orders and written judgment by reference to the affidavit sworn by the Lay Commissioners. I do not consider that recourse can be had to the affidavit for this purpose. The determination of the Lay Commissioners appears in, and must be gathered from, the formal orders made by them and the affidavit cannot be utilised for the purpose of adding to, explaining, or contradicting their written orders.”
  11. Whilst the judgment of the High Court was overturned, the High Court judge had also refused to allow the Commission rely on that affidavit, stating “the judgment and order of the Commissioners must speak for themselves and must be construed and interpreted by me in the words of the judgment and order.”
  12. In Tumblr Incorporated v. Coimisiún Na Meán [2024] IEHC 366, Phelan J. applied this principle, referring also to Jacksonway Properties v The Information Commissioner [2020] IEHC 73 and Utmost Paneurope DAC v Financial Services and Pensions Ombudsman [2020] IEHC
  13. She stated “In the ordinary course a decision must stand or fall on its own terms, subsequent elaboration should not be required and is not permissible.”
  14. It follows from this that ex post facto reasoning cannot normally be provided: Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC
  15. The Applicants were at pains to point out that they did not seek ex post facto reasoning, but rather that the thought processes of the Commissioners or what they “actually decided” and “actually considered” would be put into evidence (in writing). Killymooney Lough does not assist the Applicants in obtaining the relief sought on this application.
  16. In this case, the Commission did not expressly say in its decision that it considered the specific matters which the Applicants contend were not considered. The Statement of 12 Opposition pleads that it is evident from its decision and identified material on the file, that those issues were considered. The Applicants can seek to draw the inference from the documents that the Commission failed to consider those matters.
  17. As appears from T.G. and Morehart, the absence of reference to matters of sufficient significance may rebut the presumption that they were considered. Matters of lesser materiality do not require to be referred to expressly: Wild Ireland Defence (§134); Morehart (§110); Carrownagowan Concern Group v. An Bord Pleanála (No.2) [2024] IEHC 300 (§166-§188), Banzuzi and A.W.S..
  18. There will be cases where the issue is one for which an inference cannot be drawn from the decision and the material before the decision-maker, for example, where the expertise of the decision maker is in issue. In those circumstances, it may be necessary for the Commission to file an affidavit addressing the claim made in the Statement of Grounds, and if it does not do so, for an order of the type sought by the Applicants to be granted. Similarly, if a decision-maker relies on a particular matter which is not known to the applicant, as the Minister did in Elsharkway, evidence relating to that matter will be required to ensure that the respondent meets the case with the cards facing upwards. In that case, the Minister was criticised for not stating whether legal advice relied upon, to explain a change in the way in which legislation was interpreted and applied by the Minister in opposing the relief sought, was written or oral. It was held that the Minister could not rely on the failure of the applicant to establish whether the legal advice had been given orally or in writing when resisting an application for inspection under Order 31 r.
  20. The Applicants contend that the order sought is required as a result of the duty of candour. However, it was submitted “No doubt if the Commission didn’t adequately consider it they would say so”. The order sought seeks to require the Commission to provide evidence that its decision is valid, which amounts to a rebuttal of the presumption.
  21. In its Statement of Opposition, the Commission has pointed to aspects of the material before it and parts of its decision on which it relies to demonstrate that the various matters the subject of this application were in fact considered by it. The Applicants are not entitled to an order requiring the Commission to “bolster” the Statement of Opposition and verifying affidavit. Order 84 r. 22
(4)requires a respondent to verify any facts relied on in the 13 Statement of Opposition. In this case, a verifying affidavit was sworn by an official within the Commission who avers that she was not present when the impugned decision was made. She and the Commission rely only on the terms of its decision, as properly interpreted, in the manner described in Connelly. The Applicants know what the Commission is saying and what it relies upon. The authorities relied upon do not support the Applicant’s contention that affidavits setting out the thought processes of the Commissioners are required to satisfy the Commission’s duty of candour, or to ensure that the proceedings are defended with all the cards placed face up on the table.
  1. The specific order sought by the Applicants would amount to a reversal of the onus of proof and disapplication of the long-established presumption of validity. They say that they are not asking for a roving enquiry but are “just asking that they back up what has been sworn to” in the verifying affidavit.
  2. The law is not that the “the Applicants must be able to obtain the evidence necessary to establish if their conclusions are correct” by requiring the Commission to swear an affidavit setting out “what the commissioners who decided the appeal did or thought, or how they directed their minds to the issues before them” as the Applicants have submitted. This is a case where the decision speaks for itself. It is for the Applicants to persuade the Court at the substantive application that the Commission failed to consider the specific matters referred to in the Notice of Motion. That may be done by drawing inferences from the terms of the Commission’s decision, as properly interpreted, having regard, inter alia, to the obligation to provide the main reasons on the main issues. It has not been asserted that the Commission has failed to disclose any matter, but rather that the thought processes have not been committed to writing whether in the decision or in affidavit(s) sworn in the proceedings. The nature of the information sought by the Applicants is not comparable to information of the type discussed in Rogers, Reid or Elsharkawy. Despite the Court of Appeal (EW) stating, in Huddleston, that the cards should be placed face up on the table, and the paucity of the reasoning contained in the impugned decision, the Court of Appeal upheld the decision of the High Court refusing the application for certiorari.
  3. I am not satisfied that the Commission has failed to meet the Applicants’ case with its cards face up on the table, so the order sought is not necessary to ensure that it does so, nor to ensure that justice is done. The context, including the statutory framework within which 14 the decision was made and the duty to give the main reasons on the main issues, is material. In all the circumstances, the application is refused as it would amount to a reversal of the onus of the proof and disapplication of the presumption of validity. Delay
  4. These proceedings are listed for hearing on 17th June 2026, the earlier hearing date of 24th March 2026 having been vacated due to the late filing of the opposition papers by Uisce Éireann. The Commission’s opposition papers were delivered on or about 27th January
  5. The parties are agreed that it is important that there is urgency attaching to the substantive application by reason of the nature of the development authorised by the impugned permission.
  6. The intention to make an application of this kind was first communicated to the Commission and Uisce Éireann on 6th May
  7. The affidavit grounding this application, which also responds to the opposition papers, was filed on 8th May 2026 and this application was heard on 4th June
  9. Whilst I do accept that there has been delay on the part of the Applicants in bringing this application, as it was not necessary to await the Uisce Éireann opposition papers before considering whether the opposition papers filed by the Commission were such that it had failed to meet the Applicants’ case with its cards faced upwards on the table. The Uisce Éireann opposition papers were incapable of informing the decision to bring this application. I do not consider that the delay in this case should disentitle the Applicants to the relief sought, had I found that they were otherwise entitled to same. Order
  10. For the reasons set out above, the application is refused. As the Commission has accepted that section 50B of the 2000 Act applies to the within proceedings, I propose to make no order in respect of this application. The parties have liberty to apply within three weeks of the delivery of this judgment if any party contends that a different order should be made in respect of costs. 15 Emily Farrell 16

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