ACT 2000 AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2024 AND IN THE MATTER OF AN APPLICATION BETWEEN CONOR BREEN, KEITH BARRY AND DUALLA TOGETHER CLG APPLICANTS AND AN COIMISIÚN PLEANÁLA RE

tracts the EIA Directive. It does not. This is settled Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28; Cummins v An Coimisiún Pleanála [2025] IEHC 521; Sweetman v An Bord Pleanála [2020] IEHC 39; Kavanagh v An Bord Pleanála [2020] IEHC 259; and Moss & Ors v An Coimisiún Pleanála (No.1) [2026] IEHC 62.” (commission submissions para. 1).

1. The renewable energy development in this case was found acceptable by the council, the inspector and the commission following a consideration of the relevant legal and policy context and submissions by stakeholders. The applicants naturally have a merits-based disagreement with the outcome, but the question for consideration is whether their objections give rise to grounds rendering the decision a nullity.
2. The way the system is supposed to work is that when questions of principle are decided by appellate courts, the answers are applied in practice to the facts of individual cases by trial courts. In that regard the following are notable: (i) In Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 (Unreported, Supreme Court, O’Donnell C.J., 4 February 2026) para. 118(xiv), the Supreme Court emphasised the relevance of the extent to which submissions on a given point were made to the decision-taker, which decision is consistent with the general principle that, apart from autonomous-type obligations, material capable of sustaining the point must have been properly before the decision-taker

the relevant time such as to give rise to a duty to consider it. (ii) In A.P. v. Director of Public Prosecutions [2011] IESC 2, [2011] 1 I.R. 729, [2011] 2 I.L.R.M. 100, [2011] 1 JIC 2501; Khashaba v. Medical Council [2016] IESC 10, [2016] 3 JIC 0701, 2016 WJSC-SC 12280 per O’Malley J. (Denham C.J. and Clarke J. concurring)

para. 56; Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42, [2021] 7 JIC 1606 (Unreported, Supreme Court, Baker J., 16 July 2021) (Clarke C.J., O'Donnell, MacMenamin and Dunne JJ. concurring)

§§29and 31; Concerned Residents of Treascon and Clondoolusk v.

An Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024) per Murray J.

paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring), the Supreme Court emphasised that applicants are confined to their pleadings. (iii) In Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024), per Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring), the Supreme Court emphasised that complex EU law arguments need to be articulated on the pleadings with particular clarity. 2 (

1. iv)(
2. v)(
3. vi)(vii) (viii) (
4. ix)(
5. x)In Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024) (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring), the Supreme Court emphasised that Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (the EIA directive) does not apply to projects that are not listed. In Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, 25 March 2026)

para. 1 per Donnelly J. (O’Donnell C.J., Charleton and Murray JJ. concurring) (see also per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642

p. 654 (Hamilton P. concurring); per Denham J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701

p. 743; Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31 July 2014) per Clarke J. (Dunne J. concurring)

paras. 3.8-3.15), the Supreme Court emphasised that judicial review is concerned with the legality rather than the merits of the decision. In Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, 25 March 2026)

para. 96 per Donnelly J. (O’Donnell C.J., Charleton and Murray JJ. concurring) (see also per Denham J. (Murray C.J. and Fennelly J. concurring) in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701

p. 743; O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring)

para. 116), the Supreme Court emphasised that an applicant must have discharged the onus of proof to establish all facts necessary for relief. In 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), and per MacMenamin J. (Fennelly and Clarke JJ. concurring) in Babington v. Minister for Justice Equality and Law Reform & Ors. [2012] IESC 65 (Unreported, Supreme Court, 18 December 2012)

para. 7, the Supreme Court emphasised that scattergun pleadings are inappropriate. In Waltham Abbey/Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (§43 per Hogan J.; MacMenamin, Charleton, O’Malley and Baker JJ. concurring); Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43, [2024] 2 I.R. 222, [2022] 2 I.L.R.M. 313 (§106 et seq. per Murray J.; O'Donnell C.J., O'Malley, Woulfe and Hogan JJ. concurring); Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 (inter alia, §47 per Woulfe J.; Dunne, Charleton, O’Malley and Hogan JJ. concurring), Ashbourne Holdings Ltd v. An Bord Pleanála [2003] IESC 18, [2003] 2 I.R. 114, [2003] 2 I.L.R.M. 446 per Hardiman J.

para. 30, the Supreme Court proceeded on the basis that the law does not favour unworkable interpretations. In G. v. DPP [1994] 1 I.R. 374 per Finlay C.J. (Blayney and Denham JJ. concurring)

p. 378 and subsequent cases, the Supreme Court decided that judicial review is a discretionary remedy within established doctrinal boundaries (see also De Róiste v. Minister for Defence [2001] IESC 4, [2001] 1 I.R. 190, [2001] 2 I.L.R.M. 241

204 per Denham J.; Kenny v. Dublin City Council [2009] IESC 19 (Unreported, Supreme Court, 5 March 2005)

79 per Fennelly J. (Macken and Peart JJ. concurring); Kelly v. Minister for Agriculture [2021] IESC 62, [2023] 1 I.R. 38 per O’Donnell J. (Clarke C.J. and Dunne J. concurring); Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205

60 per Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ. concurring); Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ. concurring); S. v. Minister for Justice and Equality [2025] IESC 48 (Unreported, Supreme Court, 25 November 2025) per Dunne J. (Charleton, Woulfe, Collins and Donnelly JJ. concurring)

98; Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring). In Eco Advocacy v. An Bord Pleanála [2025] IESCDET 74 (Dunne, Hogan and Donnelly JJ., 4 June 2025), para. 27, the Supreme Court, non-precedentially but reflecting CJEU decisions in judgments of 14 December 1995, Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor Fysiotherapeuten, C‑430/93 and C‑431/93, EU:C:1995:441, para. 17, and of 15 March 2017, Lucio Cesare Aquino v Belgische Staat, C‑3/16, EU:C:2017:209, para. 3 56, noted that a reference to the CJEU does not arise if the point does not properly arise in the case. (xi) In the 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, the CJEU made clear that the obligation to refer (even for an apex court) does not apply if a point is acte clair/ acte éclairé.

1. It is the function of a trial court to apply such principles here. While I appreciate the sincerity of the applicants as local residents and participants in the process as relevant, and the very considerable expenditure of imagination and effort made to present the case on their behalf, the legal question here is whether any sufficiently convincing legal reason has been demonstrated to displace the foregoing. Geographical context
2. The project (https://www.pleanala.ie/en-ie/case/322270) consists of the construction of a solar PV development on a circa 108 ha site (reduced from the 129 ha site in the application for consent) consisting of the erection of solar panels on ground-mounted galvanised steel frames, string inverters

tached to selected ground-mounted galvanised steel frames, 16 transformer units, underground cabling, security fencing, CCTV system with pole-mounted cameras and landscaping, six site entrances with access gates utilising existing farm field entrances which will be upgraded and internal accesses, the installation of underground cables, including cables under public roads, two temporary construction compounds, and all associated ancillary development works, all

Boscabell, Garranmore, Newark, Fussough, and Dually, Co. Tipperary. It is located

or near the following: https://maps.app.goo.gl/Y5La4yymEjj9XDnh

1. Parties
2. Conor Breen, the first named applicant, is a farmer and resides with his family on lands near the proposed development. He made a submission in respect of the property development to the planning authority, Tipperary County Council and made an appeal to An Coimisiún Pleanála in respect of the proposed development.
3. Keith Barry, the second named applicant, is a farmer and business man who resides

Dualla, Co. Tipperary which is approximately 1 km from the lands the subject matter of the application, who made a submission to Tipperary County Council in respect of the application made to it in the first instance and made an appeal to An Coimisiún Pleanála in respect of and arising out of the decision of the planning authority. 7. Dualla Together CLG, the third named applicant, is a CLG which has its registered offices

c/o O’Gorman, Brannigan Purtill Accountants & Co, Anglesea House, Anglesea Street, Clonmel, Co. Tipperary. It made a submission in the first instance to Tipperary County Council and made an appeal to the commission arising out of the decision of Tipperary County Council.

1. The respondent is An Coimisiún Pleanála, the decision-maker.
2. The notice party is Power Capital Renewable Energy Limited, the developer. Facts
3. The applicants challenge the decision of the commission made by way of order (ABP-32227025) dated 5 September 2025 pursuant to ss. 34-37 of the Planning and Development Act 2000 (the 2000 Act) and the Planning and Development Regulations 2001 (the 2001 regulations) to grant permission subject to 25 conditions to the notice party for a solar farm development on lands located

Boscabell, Garranmore, Newark, Fussough and Dually, Co. Tipperary.

1. On 4 March 2024, the developer applied to the council for planning permission for the proposed development (planning reg. ref. no. 24/60156). The application documentation included, inter alia, a copy of the site notice, a copy of the newspaper notice, a cover letter, a planning statement report, an environmental report, volume 1 and volume 2 (with volume 2 comprising part 1 - part 5), an appropriate assessment (AA) screening report and a Natura impact statement (NIS), a preliminary construction environmental management plan (pCEMP) and a construction traffic management plan. The application also included a suite of drawings, maps, sections and elevations, including the site layout plans.
2. Submissions and observations were received on the proposed development, including from the applicants, in or around April
4. The council’s planner’s report, dated 24 April 2024, recommended that further information be sought from the developer.
5. On 26 April 2024, the council issued a request for further information to the developer.
6. On 16 January 2025, through its planning consultant, the developer submitted a response to the council’s request for further information. The further information response comprised a technical report with seven appendices.
7. Following a direction from the council, on foot of a further planner’s report dated 21 January 2025, the developer advertised the response to further information on 24 January
8. 4
9. Further submissions were received by the council in response to the developer’s response to the council’s request for further information – including from the third named applicant – in or around February
11. The council’s second planner’s report, dated 13 March 2025, was then prepared – same recorded that some 174 additional submissions had been received in response to the further information. The report recommended that permission be granted, subject to conditions.
12. On 19 March 2025, the council decided to grant permission for the proposed development.
13. Thereafter, on or about 11 April 2025, seven third-party appeals were lodged with the commission, including from the applicants.
14. The developer’s appeal response submission, dated 12 May 2025, addressed the issues raised in the various appeals against the council’s decision.
15. The commission appointed an inspector to consider the appeal and, following a site inspection on 6 August 2025 (see associated maps and photographs), the inspector, in a report (ABP-322270-25) dated 20 August 2025 recommended that permission be granted for the proposed development, subject to conditions.
16. The commission’s direction (CD-020581-25) (ABP-322270-25), dated 2 September 2025, outlined that the commission had considered the submissions on file and the inspector’s report, and had decided to grant permission for the proposed development “generally in accordance with the Inspector’s recommendation” for specified reasons and considerations (see also commission meeting record, dated 2 September 2025).
17. The commission’s order (ABP-322270-25), dated 5 September 2025, was then made granting permission for the proposed development, subject to conditions. Procedural history
18. The proceedings were issued on 30 October
20. Leave was granted on 1 December
21. Leave was not granted in respect of core ground
23. An amended statement of grounds was uploaded to ShareFile on 1 December 2025 (which was filed on 24 April 2026)
24. The commission served its opposition papers on 2 March 2026 (which were filed on 2 March 2026).
25. Power Capital served its opposition papers on 9 March 2026 (which were filed on 2 April 2026).
26. The applicants served unsworn replying affidavits on 17 April
28. The applicants served their submissions on 19 April
30. The matter was listed for callover on 20 April
32. The commission and Power Capital served their submissions on 29 April 2026 and 27 April 2026, respectively.
33. The applicants served sworn copies of their replying affidavits on 29 April
35. Power Capital served a replying affidavit on 30 April
37. The matter was listed for hearing on 11 May
38. 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. 37. On 25 May 2026, a draft of the present judgment was sent to the parties, pursuant to paras. 15, 195 to 198 and 204 of Practice Direction HC 137, to give an opportunity to address matters such as errors/ ambiguities on the basis set out below. 38. Parties are required to: (

1. i)Read the draft or have their legal representatives if applicable do so on their behalf. (
2. ii)Identify any matters falling within the below. (iii) Positively communicate with the court in writing in response to the draft by the deadline specified, such responses to be emailed to the court and uploaded to ShareFile, either stating that they have no comments or setting out the comments. (
3. iv)Carry out the foregoing without delay – 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 5 which approximate to a criminal trial are fair, and anything which departs from that is somehow dubious” (O’Donnell J. (Clarke C.J., McKechnie, MacMenamin, Dunne JJ. concurring) in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780). (v) Keep the draft confidential. 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 (Briggs, Kitchin, Burrows, Rose, Arden SCJJ) 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,

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

1. e)any other matter in the draft judgment that the party considers should be omitted; (
2. f)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. g)any other proposals as to the wording (as opposed to substance) of the decision if the proposed wording causes any issue for a party for any identified reason; and (iii) assisting the court by providing views on such matters if any on which views are specifically invited in the draft judgment. 41. In particular, parties should draw the court’s

tention to any apparent error or ambiguity whether they have been successful on the point or not. 42. 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 6 considers appropriate. 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. 43. The deadline for such comments from the parties was to be 16:00 on Wednesday 27 May 2026. Responses were as follows: (

1. i)applicants – helpfully pointed out a typo, and referred to an authority (I have amended the draft below to explain why the authority does not advance matters); (
2. ii)commission – no comments; and (iii) developer – provided some helpful typo-type corrections. Relief sought 44. The reliefs sought are as follows: “1. An Order of Certiorari quashing the decision of the Commission to grant planning permission for a ten year solar capital PV development on lands comprising 129 hectares consisting of the erection of solar panels and ground mounted galvanised steel frames, string inverters

tached to selected ground mounted galvanised steel frames, 16 transformer units, underground cabling, security fencing, 6 entrances with access gates, construction compounds and associated ancillary development

Boscabell, Garranmore, New Park, Fussough, and Dually, County Tipperary which lifespan of the development is proposed to be 40 years and which decision, planning register reference no. 24/60156 Commission Order no. 322270-25 and which decision is dated 5th September

2. Such declarations of the legal rights and/or legal position of the Applicants and (if and insofar as legally permissible and appropriate) persons similarly situate and/or of the legal duties and/or legal position of the Respondent as the Court considers appropriate.
3. A stay on the implementation of any of the said development and/or taking any further steps in respect of the implementation of the said decision to include the implementation of any conditions pending the determination of the above entitled proceedings.
4. An Order providing for the costs of the application.
5. A Declaration that the Protective Costs Order pursuant to Section 3, 4 and 7 of the Environment (Miscellaneous Provisions) Act, 2011 and/or Section 50B of the Planning and Development Act, 2000 (as amended), and/or Order 99 of the Rules of the Superior Courts (as amended) in respect of the costs of the said application apply to the above entitled proceedings.
6. Interim and/or interlocutory relief.
7. Further and other relief.
8. The costs of these proceedings.” Grounds of challenge
9. The core grounds of challenge are as follows: “Domestic Law Grounds Core Ground 1
10. The Respondent erred in law and had no jurisdiction to determine the application where the plans and particulars lodged failed to comply with the mandatory requirements of Articles 16, 17, 18, 19, 22 and 23 of the Planning and Development Regulations, 2001, which requirements are mandatory, and failure to comply with which go to jurisdiction and where the said determination based on plans and particulars that do not comply with these Regulations are such as to render the decision ultra vires the Respondent, invalid and void. Core Ground 2
11. The Respondent erred in law and acted contrary to fair procedures and natural and constitutional justice and contrary to the principle of audi alteram partem in the manner in which it addressed and considered the Applicants’ submissions and specifically in respect of flooding, failed to identify and assess the impact of the extent of the hard surfaces and in particular the angle and discharge rates from the solar panels, the vague and uncertain nature as to how levels of grass can be maintained within the site and the efficacy of any such maintenance programme, and did not address properly or

all the submissions of the Applicants and in particular the submission of Dr Pamela Bartlett, Hydrogeologist, nor address the concerns in respect of the discharge of surface water onto the public road nor address the extent to which the existing flooding would be exacerbated and where there was no or no adequate information that could allow the Respondent to make the decision that it did and is reflected in the decision of 5th September 2025, and accordingly the decision of the Respondent is contrary to fair procedures, to natural and constitutional justice, failed to 7 have regard to relevant considerations and had regard to irrelevant considerations and accordingly the decision is as a consequence invalid and void. Core Ground 3 3. The Respondent erred in law in imposing condition No. 5 having regard to the limits of the Respondent’s jurisdiction which limits conditions to either land the subject matter of the application or lands outlined in blue which is under the control of the Applicants. Condition 5 requires silt fences to be constructed on either side of the 2 EPA mapped water courses part of which lands lie outside the site outlined in red and outside lands under the control of the Applicants and where the Respondent had no jurisdiction to impose such a condition having regard to the limits of its jurisdiction imposed pursuant to Section 34

all) that because the substantive development did not fall within a class of development specified under Schedule 5 of the Planning and Development Regulations, 2001 there could be no required for an EIA and failed to have any regard or to address the requirements to examine particulars part of the project that might individually require an EIA in accordance with the judgment of the Commission of the European Communities v. Ireland (Case 427/07) of 16th July 2009. Core Ground 6 6. The Respondent erred in law in the manner in which it carried out a screening determination for the purposes of Article 103(1B)(

1. b)of the Planning and Development Regulations, 2001 particularly having regard to the obligations contained in paragraph 10(
2. dd)of Part II of Schedule 5 of the Planning and Development Regulations and in particular failed to address or consider whether the private roads/tracks proposed could fall into the category of Article 10(
3. dd)of Part II of Schedule 5, whether the extensive network of roads even if they were less than the threshold specified (which is denied) were capable of being such of causing a significant effect on the environment and wrongly and inappropriately failed to consider and address these requirements where the recommendation (not addressed by the Respondent) was that this class ‘had been screened out

pre-screening stage from further consideration’. The said determination is inconsistent with and contrary to the Respondent’s obligations under Council Directive 2011/92/EU, amounts to an improper and inappropriate application of the Respondent’s obligations under Article 103(1B) of the Planning and Development Regulations, 2001 and which requires an examination of the nature of the development proposed, and accordingly the said determination is contrary and other than in accordance with the Respondent’s obligations under the EIA Directive, and renders the decision invalid and void. Core Ground 7 7. If this Honourable Court forms the view that the definition of private road as specified in paragraph 10(

1. dd)of Part II of Schedule 5 particularly in the absence of a definition of the term in relevant statutory provisions, and having regard to the definition of forestry road in the European Communities (Forest Consent and Assessment) Regulations, 2010 in respect of a category of private road, that is it not acte clair whether a road to be constructed to a standard described in the plans and documentation lodged, and of the extent proposed which 8 exceeds the thresholds specified require an EIA following the judgment in The Commission of the European Communities v. Ireland (Case 427/07), it is appropriate to make a preliminary reference under Article 267 of the TFEU to clarify this issue.” 46. As regards the extent to which these are pursued, section (
2. i)of the statement of case records as follows: “Applicants Position 37. Core Ground No. 3 is not being pursued and This Honourable Court did not grant leave for the Applicant to pursue Core Ground No. 5” 47.

the hearing the applicants indicated that they were not pursuing core ground

2. This leaves core grounds 1 (invalid application) and 4, 6 and 7 (EIA arising from alleged roads). The impugned decision
3. The impugned decision provides as follows: “Decision GRANT permission for the above proposed development in accordance with the said plans and particulars based on the reasons and considerations under and subject to the conditions set out below. Reasons and Considerations In coming to its decision, the Commission performed its functions in relation to the making of its decision, in a manner consistent with Section 15

the proposed access point to Parcel number 2, as proposed in the additional information submission, were satisfactory and the revised access arrangements to Parcel number 2 would not give rise to a traffic hazard. Appropriate Assessment: Stage 1: The Commission agreed with the screening assessment and conclusion carried out in the Inspector’s Report that the Lower River Suir Special Area of Conservation (Site Code: 002137) is the only European Site in respect of which the proposed development has the potential to have a significant effect in view of the Conservation Objectives for the site and that Stage 2 Appropriate Assessment is, therefore, required. Appropriate Assessment: Stage 2: The Commission considered the Natura Impact Statement, and all the other relevant submissions on file, and carried out an Appropriate Assessment of the implications of the proposed development on the Lower River Suir Special Area of Conservation (Site Code: 002137) in view of the site’s conservation objectives. The Commission considered that the information before it was sufficient to undertake a complete assessment of all aspects of the proposed development in relation to the site’s conservation objectives using the best scientific knowledge in the field. In completing the assessment, the Commission considered, in particular, the following: (

1. i)the site-specific conservation objectives for the European Site, (
2. ii)the likely direct and indirect impacts arising from the proposed development, both individually or in combination with other plans or projects, and (iii) the mitigation measures which are included as part of the current proposal. In completing the Appropriate Assessment, the Commission accepted and adopted the Appropriate Assessment carried out in the Inspector’s Report in respect of the potential effects of the proposed development on the aforementioned European Site. In overall conclusion, the Commission was satisfied that the proposed development would not adversely affect the integrity of the European Site in view of the site’s conservation objectives and that there is no reasonable scientific doubt as to the absence of such effects. Conditions 1. The proposed development shall be carried out and completed in accordance with the plans and particulars lodged with the application, as amended by the further plans and particulars received by the planning authority on the 16th day of January 2025, except as may otherwise be required in order to comply with the following conditions. Where such conditions require details to be agreed with the planning authority, the developer shall agree such details in writing with the planning authority prior to commencement of development and the proposed development shall be carried out and completed in accordance with the agreed particulars. Reason: In the interest of clarity. 2. Parcel 3 as indicated on the drawings and documentation submitted with the application to the planning authority on the 4th day of March, 2024 shall be omitted in its entirety from the development. Reason: In the interest of clarity. 3. The period during which the development hereby permitted may be carried out shall be 10 years from the date of this order. Reason: Having regard to the nature of the development, the Commission considers it appropriate to specify a period of validity of this permission in excess of five years. 4. The mitigation measures contained in the submitted Natura Impact Statement (NIS), shall be implemented. Reason: To protect the integrity of European Sites. 5. All of the environmental, construction and ecological mitigation measures, as set out in the Environmental Report (Noise Impact Assessment Report, Archaeology Assessment Report, Glint and Glare Assessment), Biodiversity Management Plan, preliminary Construction Environmental Management Plan and other particulars submitted with the application, and by way of further information, shall be implemented by the developer in conjunction with the timelines set out therein, except as may otherwise be required in order to comply with the conditions of this Order. In addition, the developer shall install silt fences on either side of the two number EPA mapped watercourses on the site for the duration of the construction period. Details of the proposed silt fences shall be submitted to the planning authority for written agreement prior to commencement of development. 10 Reason: In the interest of clarity and the protection of the environment during the construction and operational phases of the development. 6. This permission shall not be construed as any form of consent or agreement to a connection to the national grid or to the routing or nature of any such connection. Reason: In the interest of clarity. 7. The electricity control unit, inverters, and fencing shall be dark green in colour or other dark colour, details of which shall be agreed in writing with the planning authority prior to commencement of development. Reason: In the interest of the visual amenity of the area. 8 (
3. a)This permission shall be for a period of 40 years from the date of the commissioning of the solar array. The solar array and related ancillary structures shall then be removed unless, prior to the end of the period, planning permission shall have been granted for their retention for a further period. (
4. b)Prior to commencement of development, a detailed maintenance regime for the solar farm and a separate restoration plan, including a timescale for its implementation, providing for the removal of the solar arrays, including all foundations, anchors, inverter/transformer stations, control building, CCTV cameras, fencing and site access to a specific timescale, shall be submitted to, and agreed in writing with, the planning authority. (
5. c)On full or partial decommissioning of the solar farm, or if the solar farm ceases operation for a period of more than one year, the solar arrays, including foundations/anchors, and all associated equipment, shall be dismantled and removed permanently from the site. The site shall be restored in accordance with this plan and all decommissioned structures shall be removed within three months of decommissioning. Reason: To enable the planning authority to review the operation of the solar farm over the stated time period, having regard to the circumstances then prevailing, and in the interest of orderly development. 9. Prior to commencement of development, the developer shall submit a revised Biodiversity Management Plan which has regard to the revisions of the layout of the development, as amended by the further plans and particulars received by the planning authority on the 16th day of January, 2025. Reason: In the interest of environmental protection. 10. All mitigation measures in relation to archaeology and cultural heritage shall be implemented, except as may otherwise be required in order to comply with the following requirements: (
6. a)The developer shall retain the services of a suitably qualified archaeologist to advise on and establish exclusion buffer zones around the external-most elements of the archaeological sites as listed in Table 1 of the submitted report. I[n] [sic] this regard: (
7. i)No groundworks of any kind (including but not limited to advance geotechnical site investigations) shall be permitted in the exclusion buffer zones. (
8. ii)The exclusion buffer zones shall be fenced off for the duration of construction works in the vicinity of the monuments. No machinery, storage of materials or any other activity related to construction shall be permitted within the exclusion buffer zones. (
9. b)The developer shall engage a suitably qualified, archaeologist to monitor all ground disturbance required for the proposed development. No groundworks of any type (including any preparatory/enabling works or advance site investigations) shall take place in the absence of the archaeologist without his/her express consent. In this regard: (
10. i)The archaeological monitoring programme shall be carried out under licence from the National Monuments Service and in accordance with an agreed method statement. (
11. ii)The method statement shall include methodology for the preservation by record of the three areas of brick kilns waste identified in Trenches 7, 15 and 41 during archaeological testing under Licence 24E0854. (iii) Should archaeological material be found during the course of the archaeological monitoring, the archaeologist shall suspend work in the area of archaeological interest pending a decision as to how best to deal with the archaeology. The developer shall be prepared to be advised by the planning authority, in consultation with the Department of Housing, Local Government and Heritage with regard to any necessary mitigation action e.g. preservation in situ, and/or excavation. The developer shall facilitate the archaeologist in recording any material found. (
12. iv)The Department and the planning authority shall be furnished with a report describing the results of the monitoring. All resulting and associated archaeological costs shall be borne by the developer. 11 (
13. c)The developer shall retain the services of a suitably qualified archaeologist to advise on an archaeological mitigation plan for decommissioning of the development, to include mitigation measures for the removal of the solar panels and the protection of the archaeological sites and monuments that are in situ

the site. The Decommissioning Statement for the Proposed Solar PV Array shall be updated to include the location of any archaeological or cultural heritage constraints. It shall clearly describe all identified likely impacts from decommissioning, both direct and indirect, and all mitigation measures to be employed to protect the archaeological or cultural heritage environment during decommissioning works. Reason: To ensure the continued preservation (either in situ or by record) of places, caves, sites, features or other objects of archaeological interest. 11. Prior to commencement of development, the developer shall submit details to the planning authority confirming the anticipated megawatt capacity and annual electricity generation of the solar farm. Reason: In the interest of clarity. 12 (a) Existing field boundaries, including trees and hedgerow, shall be maintained and supplemented in accordance with the details submitted, except where removal is proposed to facilitate access to roadways and sight lines. (b) All proposed landscaping and planting shall take place in the first planting season following commencement of development and in accordance with the details proposed. The landscaping and screening shall be maintained

regular intervals. Any trees or hedgerow that are removed, die or become seriously damaged or diseased within five years from planting shall be replaced within the next planting season by trees or hedging of similar size and species, unless otherwise agreed in writing with the planning authority. (c) Additional screening and/or planting shall be provided so as to ensure that there is no glint impact on adjoining dwellings as a result of the development. Upon commissioning of the development, and for a period of two years following first operation, the developer/operator shall provide detailed glint surveys on an annual basis to the planning authority in order to confirm that no such glint impact has taken place, and shall provide such further mitigation measures, as the planning authority may specify in writing, to ensure that this is achieved. Reason: In the interest of the visual amenities of the area. 13. Water supply and drainage arrangements, including the

tenuation and disposal of surface water, shall comply with the requirements of the planning authority for such works and services. In addition: (

1. a)The access points from the public road shall be provided with a drainage kerb/cattle grid or approved equivalent surface water cutoff drain which shall discharge to a stone filled sump located within the site, the details of which shall be submitted to the planning authority for written agreement prior to commencement of development. Surface water from the site shall not be allowed to discharge onto the public road or adjoining properties. (
2. b)Prior to commencement of development, details of the proposed service roads/tracks and drains shall be agreed in writing with the planning authority. The new tracks shall be surfaced in gravel or hardcore and shall not be hard topped with tarmacadam or concrete (
3. c)The developer shall monitor the existing drainage network for blockages and other issues that could affect its functionality throughout the lifetime of the solar farm. Reason: In the interest of environmental protection. 14 The solar panels shall be fixed in place by way of driven pile or screw pile foundations only, unless otherwise authorised by a separate grant of planning permission. Reason: In the interest of the long-term viability of this agricultural land, and in order to minimise impacts on drainage patterns. 15. (
4. a)No artificial lighting shall be installed or operated on site unless authorised by a prior grant of planning permission. (
5. b)CCTV cameras shall be fixed and angled to face into the site and shall not be directed towards adjoining property or the road. (
6. c)Cables within the site shall be located underground. (
7. d)The perimeter fence shall be erected such that for a minimum of 300 millimetres of its length its bottom edge is no less than 150 millimetres from ground level. Reason: In the interests of clarity, of visual and residential amenity and biodiversity. 16. The construction of the proposed development shall be managed in accordance with a finalised Construction and Environmental Management Plan, which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. The finalised CEMP shall also include an updated Traffic Management Plan (TMP) which provides details for the management of construction traffic for the duration of the 12 construction phase. The TMP shall follow the recommendations of the Traffic Signs Manual 2010 as published by the Department of Transport. The finalised CEMP shall provide details of intended construction practice for the proposed development, including: (
8. a)The location of the site and materials compound(s). (
9. b)The location of areas for construction site offices and staff facilities. (
10. c)Details of site security fencing and hoardings. (
11. d)Details of on-site car parking facilities for site workers during the course of construction. (
12. e)Details of the timing and routing of construction traffic to and from the construction site and associated directional signage, to include proposals to facilitate the delivery of abnormal loads to the site. (
13. f)Measures to obviate the queuing of construction traffic on the adjoining road network. (
14. g)Measures to prevent the spillage or deposit of clay, rubble or other debris on the public road network. (
15. h)Details of appropriate mitigation measures for noise, dust and vibration, and monitoring of such levels. (
16. i)Containment of all construction-related fuel and oil within specially constructed bunds to ensure that fuel spillages are fully contained, such bunds shall be roofed to exclude rainwater. (
17. j)Off-site disposal of construction/demolition waste and details of how it is proposed to manage excavated soil. (
18. k)Details of on-site re-fuelling arrangements, including use of drip trays. (
19. l)Details of how it is proposed to manage excavated soil. (
20. m)The Plan (CEMP) shall incorporate all significant findings from the report submitted as part of the further information response, including (but not limited
21. to)the location of any archaeological or cultural heritage constraints relevant to the proposed development. The final CEMP shall clearly describe all identified likely impacts, both direct and indirect, and all mitigation measures to be employed to protect the archaeological or cultural heritage environment during all phases of construction activity. The CEMP shall have particular regard to the requirements as set out above in relation to the establishment and characteristics of the protective buffer zones that shall be implemented to ensure preservation in situ of archaeological sites and monuments. (
22. n)Means to ensure that surface water run-off is controlled such that no deleterious levels of silt or other pollutants enter local surface water drains or watercourses. (
23. o)Hours of construction. The finalised CEMP shall also take account of the mitigation measures outlined in the Natura Impact Statement. In addition, the finalised CEMP shall prescribe the species-specific mitigation (i.e. ceasing of construction activity and consultation with the ECoW) for Amphibians. A record of daily checks that the works are being undertaken in accordance with the Construction and Environmental Management Plan shall be kept for inspection by the planning authority. Reason: In the interests of environmental protection, amenities, public health and safety. 17. The roadside boundary

the proposed access points shall be set back behind the required sight triangles

the proposed site entrances onto the public road. The sight triangles shall be achieved prior to further construction on site. The replacement roadside boundary hedgerow shall be cut back and maintained such that clear, unobstructed sight lines are provided

all times. In addition: (a) During the first planting season following construction of the access points native hedgerows shall be planted behind the necessary sightlines

the entrance. (

1. b)The hedgerows shall be managed and maintained such that a minimum height above ground level of 2.5 metres is achieved. Where sections of hedgerow and or existing trees within the hedgerows become damaged or die, these shall be replaced with shrubs/trees of a similar species. (
2. c)ESB, telecom poles or services connections on the roadside shall be removed and setback to the new fence line in agreement with the service provider. (
3. d)The area between the new road fence and road carriageway shall be trimmed and rolled level with the carriageway, top soiled, seeded with grass and thereafter maintained without obstruction, trim and tidy. Reason: In the interest of traffic safety and in the interest of visual amenity. 18. The developer shall submit details (plan and section diagram) to illustrate the relationship between the historic boundary wall dividing Parcel 4 and 5 and the proposed access tracks. Any intervention to this wall shall be limited to the requirement for the width of the access tracks only. Reason: In the interest of built heritage. 13 19. The fencing, CCTV and proposed hedgerow planting along the eastern boundary of Parcel 4 shall be set back within the site where it abuts the boundary of the neighbouring residential property. Prior to commencement of development, the details of the realigned boundary treatment

this location shall be submitted to the planning authority for written agreement. The revisions to the boundary

this location shall ensure that the ongoing viability of mature tree in the south-eastern corner of Parcel 4 is maintained. Reason: In the interest of residential amenity. 20. (a) During the operational phase of the proposed development, the noise level arising from the development, as measured

the nearest noise sensitive location shall not exceed: (

1. i)An LAeqT value of 55 dB(A) during the period 0800 to 2200 hours from Monday to Saturday inclusive. The T value shall be one hour. (
2. ii)An LAeqT value of 45 dB(A)

any other time. The T value shall be 15 minutes. The noise

such time shall not contain a tonal component.

no time shall the noise generated on site result in an increase in noise level of more than 10 dB(A) above background levels

the boundary of the site. All sound measurement shall be carried out in accordance with ISO Recommendation R 1996 ‘Assessment of Noise with respect of Community Response’ as amended by ISO Recommendations R 1996 1, 2 or 3 ‘Description and Measurement of Environmental Noise’ as applicable. Reason: To protect the amenities of property in the vicinity. 21. Site development and building works shall be carried out only between the hours of 0800 to 1900 Mondays to Fridays, inclusive, between 0800 to 1400 hours on Saturdays and not

all on Sundays or public holidays. Deviation from these times shall only be allowed in exceptional circumstances where prior written approval has been received from the planning authority. Reason: In order to safeguard the residential amenities of property in the vicinity. 22. All road surfaces, culverts, watercourses, verges, and public lands shall be protected during construction and, in the case of any damage occurring, shall be reinstated to the satisfaction of the planning authority

the developer’s expense. Prior to commencement of development, a road condition survey shall be carried out to provide a basis for reinstatement works. Details in this regard shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. Reason: In order to ensure a satisfactory standard of development. 23. Prior to commencement of development, the developer shall satisfy the requirements of Uisce Éireann in relation to their requirements for working in the vicinity of Uisce Éireann assets. Reason: In the interest of protecting the public water infrastructure

this location. 24. Prior to commencement of development, the developer shall lodge with the planning authority a cash deposit, a bond of an insurance company, or such other security as may be acceptable to the planning authority, to secure the satisfactory reinstatement of the site, coupled with an agreement empowering the planning authority to apply such security or part thereof to such reinstatement. The form and amount of the security shall be as agreed between the planning authority and the developer or, in default of agreement, shall be referred to An Coimisiún Pleanála for determination. Reason: To ensure the satisfactory restoration of the site in the interest of visual and residential amenity. 25 The developer shall pay to the planning authority a financial contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority that is provided or intended to be provided by or on behalf of the authority in accordance with the terms of the Development Contribution Scheme made under section 48 of the Planning and Development Act 2000, as amended. The contribution shall be paid prior to commencement of development or in such phased payments as the planning authority may facilitate and shall be subject to any applicable indexation provisions of the Scheme

the time of payment. Details of the application of the terms of the Scheme shall be agreed between the planning authority and the developer or, in default of such agreement, the matter shall be referred to An Coimisiún Pleanála to determine the proper application of the terms of the Scheme. Reason: It is a requirement of the Planning and Development Act 2000, as amended, that a condition requiring a contribution in accordance with the Development Contribution Scheme made under section 48 of the Act be applied to the permission.” Some general considerations

1. It may be of assistance to set out some general considerations arising from previous caselaw, under a number of headings as follows. 14 Overall requirements for relief by way of judicial review
2. As discussed in Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November 2025) and other cases (see also Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23 (Unreported, High Court, Holland J., 23 January 2026)), there is an eight-fold path to obtaining relief by way of judicial review. These tests are cumulative, and relief should only be granted if the proceedings meet all of the following: (i) the applicant complies with jurisdictional requirements (e.g. time or standing to bring the proceedings

all (as opposed to standing for particular issues within a case that the applicant can bring

a general level)); (

1. ii)the applicant’s point is legally correct and workable; (iii) the applicant’s point is properly pleaded with the requisite specificity; (
2. iv)the specific point is one that the applicant has standing to make (bearing in mind that while standing can relate to issues such as ius tertii it does not generally require prior participation in the process insofar as there is an EU/Aarhus Convention dimension); (
3. v)material capable of sustaining the point was properly before the decision-taker

the relevant time such as to give rise to a duty to consider it (subject to exceptions primarily related to failure by the decision-taker to fulfil her autonomous obligations); (

1. vi)the applicant has discharged the onus of proof to establish all facts necessary for relief; (vii) any error must transcend the harmless, the non-material and the purely technical lacking real-world consequences, bearing in mind that if error is demonstrated, then the onus shifts to the opposing parties to show harmlessness; and (viii) the exercise of discretion within established parameters does not militate against the making of the order (such as considering the proportionality of the order sought), bearing in mind that discretion is potentially more limited in an EU law context. Workability 52. Legal provisions and obligations should be given a workable, sensible interpretation where this is possible: (
2. i)The law does not favour unworkable interpretations: Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43, [2024] 2 I.R. 222, [2022] 2 I.L.R.M. 313 (§106 et seq. per Murray J.; O'Donnell C.J., O'Malley, Woulfe and Hogan JJ. concurring); Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 (inter alia, §47 per Woulfe J.; Dunne, Charleton, O’Malley and Hogan JJ. concurring). (
3. ii)The Supreme Court in Ashbourne Holdings Ltd v. An Bord Pleanála [2003] IESC 18, [2003] 2 I.R. 114, [2003] 2 I.L.R.M. 446 (Hardiman J.; Keane C.J., Murray, McGuinness and Fennelly JJ. concurring) endorsed the development management guidelines insofar as they included a proposal that conditions should be “enforceable” as being “a reasonable commonsense view of s. 26” of the 2000 Act – per Hardiman J.

para. 30. (iii) In Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417, the Supreme Court stated per Hogan J. (MacMenamin, Charleton, O'Malley and Baker JJ. concurring)

43: “There is clear judicial authority for the proposition that statutory provisions should be read, where possible, so as to produce a workable and coherent interpretation, thereby avoiding interpretations which were either incongruous or which imposed unfair or anomalous obligations on private citizens in particular. Thus, for example, as far back as Frescati Estates Ltd v Walker [1975] IR 177

187 this Court held that the Planning Acts should, where possible, not be interpreted in a way which would lead to ‘strange incongruities.’ In a subsequent Housing Act case, this Court rejected an interpretation of what constituted the relevant dates for the service of notices to treat for the purposes of the making of compulsory purchase orders under the Housing Act 1966 where it concluded that such an interpretation such render the legislation effectively unworkable: see In re Murphy [1977] IR 243

251 per Henchy J.” (iv) In 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1 July 2025), para. 13, the Supreme Court recently albeit nonprecedentially cited the statement that where the statutory words used “are reasonably capable of a meaning which is in accord with the essence of the provision, it is that interpretation which should prevail”: see Kellystown Co. v. Hogan [1985] I.L.R.M. 200

203, per Henchy J. (Griffin J. concurring). 15 (

1. v)(
2. vi)A discretionary power should not be construed as extending to impose unworkable and unenforceable requirements – McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 8 July 2025). Likewise, European law should not be read as imposing impossibly onerous obligations: An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281, per Hogan J. (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring)

para. 105, rejecting “impossibly onerous and unworkable obligations”; Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025). Pleadings 53. Some relevant legal principles concerning pleading requirements which have been rehearsed in previous caselaw include the following: (i) Applicants are confined to their pleadings: A.P. v. Director of Public Prosecutions [2011] IESC 2, [2011] 1 I.R. 729, [2011] 2 I.L.R.M. 100, [2011] 1 JIC 2501; Khashaba v. Medical Council of Ireland [2016] IESC 10, [2016] 3 JIC 0701, 2016 WJSC-SC 12280 per O’Malley J. (Denham C.J. and Clarke J. concurring)

para. 56; Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42, [2021] 7 JIC 1606 (Unreported, Supreme Court, Baker J., 16 July 2021) (Clarke C.J., O'Donnell, MacMenamin and Dunne JJ. concurring)

§§29and 31; Concerned Residents of Treascon and Clondoolusk v.

An Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024) per Murray J.

paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring); Eglington Residents Association v. An Bord Pleanála [2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025)

11. The rules of pleading are well-established, clear and mandatory, and are of particular importance in a context of special complexity such as technical EU-heavy areas of planning law; while exact specification of every jot and tittle of a case is an impossible standard, an applicant can only be permitted to advance

a hearing a point that is acceptably clear from the express terms of the statement of grounds, subject to the grant of any order allowing an amendment: Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High Court, 24 January 2024). (

1. ii)Pleading requirements in judicial review are “stringent”, allowing “little room for manoeuvre”: People Over Wind & Anor. v. An Bord Pleanála & Ors. (No. 1) [2015] IEHC 271, [2015] 5 JIC 0106 (Unreported, High Court, Haughton J., 1 May 2015). “It shall not be sufficient for an applicant to give as any of his grounds for the purposes of paragraphs (
2. ii)or (iii) of sub-rule

para. 308. (iii) Complex EU law arguments need to be articulated with particular clarity. It is particularly important, in the case of an allegation of a failure properly to transpose an obligation under EU law, that the requirements of O. 84, r. 20

para. 103 (cited with approval by Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring) in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024); Rushe v. An Bord Pleanála [2020] IEHC 122, [2020] 3 JIC 0502 (Unreported, High Court, 5 March 2020) per Barniville J.;

tempts to launch for example non-transposition claims not set out on the pleadings are impermissible: Alen-Buckley v. An Bord Pleanála [2017] IEHC 311, [2017] 5 JIC 1211 (Unreported, High Court, Costello J., 12 May 2017). (

1. iv)Recital of high-level principles does not create certiorari by osmosis – an applicant must specify a route-map connecting the particular factual problem alleged with the particular relief sought via a chain of reasoning: Ballyboden Tidy Towns v. An Bord Pleanála [2021] IEHC 648 (Unreported, High Court, 7 January 2022), para. 20; Foley v. Environmental Protection Agency [2022] IEHC 470 (Unreported, High Court, Twomey J., 24 January 2023), paras. 71-72; Stapleton v. An Bord Pleanála & Savona [2024] IEHC 3 (Unreported, High Court, Holland J., 13 February 2024), para. 124. 16 (
2. v)Scattergun pleadings are liable to be viewed as “a witch’s brew designed to spread maximum confusion and to permit any argument to be made

the hearing that ingenuity can suggest”: 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). MacMenamin J. (Fennelly and Clarke JJ. concurring) in Babington v. Minister for Justice Equality and Law Reform & Ors. [2012] IESC 65 (Unreported, Supreme Court, 18 December 2012) referred to the pleading requirements in judicial review and said

para. 7: “Regrettably, these explicit stipulations are frequently not complied with, and the same grounds are set out in as many different, varying, (and wearying) reformulations of the same point as can be conceived. Practitioners should realise that, in this entirely counterproductive and unnecessary process, there is a real risk of not being able to see the wood for the trees. A good point does not gain force by repetition”. (vi) While the court has jurisdiction to grant unpleaded reliefs it can allow such relief only within the contours of the case as defined by the pleaded grounds: Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024), para. 42 per Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). Therefore a court can’t grant relief if there is no supporting ground for it. (vii) It is not necessary that the specific provisions of national or EU law relied on are expressly enumerated if they are implicitly identifiable with acceptable clarity: Eco Advocacy CLG v. An Bord Pleanála (No. 4) [2023] IEHC 713 (Unreported, High Court, 18 December 2023); Kennedy & Anor. v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024), para. 132; Leech v. An Bord Pleanála [2024] IEHC 599 (Unreported, High Court, Farrell J., 12 November 2024); Mount Salus Residents' Owners Management Company Limited by Guarantee v. An Bord Pleanála & Ors. [2025] IEHC 14 (Unreported, High Court, Holland J., 15 January 2025), para. 39. The standard is acceptable clarity, not express enumeration. (viii) As noted by the Court of Appeal in Carvill v. An Bord Pleanála [2025] IECA 84 (Unreported, Court of Appeal, Barniville P., Collins and Faherty JJ., 11 April 2025)

para. 148, where a developed pleading objection is made, the court should not accept the point made by the applicant without first addressing the objection. That said, the court can reject a point without deciding the pleading objection if it fails either way. The lens of the material before the decision-maker 54. The foundational concept is that consideration by a decision-taker involves essentially three elements, which are probably best categorised as follows (see Rural Residents Wind Aware v. An Coimisiún Pleanála (I) [2025] IEHC 600 (Unreported, High Court, 6 November 2025)

76): (

1. i)matters that must be considered either autonomously – normally finite and well identified – or only if they are raised, such as submissions; (
2. ii)matters that must not be considered; and (iii) an infinite range of other matters which a decision-taker may consider if she wants to but does not have to. 55. Therefore if an autonomous duty does not arise, and if there is no breach of a prohibition on considering something, then everything else falls under the rubric of what was before the decisiontaker

the time of the decision. Thus: (i) A basic principle is that in general, the legality of a decision is viewed through the lens of the material before the decision-taker

the time of the decision, and not with the benefit of further evidence in hindsight, although there are defined exceptions: I.S.O.F. v. Minister for Justice, Equality and Law Reform [2010] IEHC 457 (Unreported, High Court, Cooke J., 17 December 2010); Jahangir v. Minister for Justice and Equality [2018] IEHC 37, [2018] 2 JIC 0102 (Unreported, High Court, 1 February 2018); M.H. (Bangladesh) v. Refugee Appeals Tribunal [2018] IEHC 496, [2018] 6 JIC 2607 (Unreported, High Court, 26 June 2018); B.D. (Bhutan and Nepal) v. Minister for Justice and Equality [2018] IEHC 461, [2018] 7 JIC 1709 (Unreported, High Court, 17 July 2018); A.J.A. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 671, [2018] 11 JIC 1403 (Unreported, High Court, 14 November 2018); O.A. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 661, [2018] 11 JIC 2003 (Unreported, High Court, 20 November 2018); De Souza v. Minister for Justice and Equality [2019] IEHC 440, [2019] 6 JIC 0407 (Unreported, High Court, 4 June 2019); Ratushnyak v. Minister for Justice and Equality [2019] IEHC 619 (Unreported, High Court, 16 August 2019) per Keane J. 17

paras. 35 to 36; J.W. v. Minister for Justice and Equality [2020] IEHC 500, [2020] 10 JIC 1501 (Unreported, High Court, 15 October 2020); Reid v. An Bord Pleanála [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021); Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303, [2021] 5 JIC 0706 (Unreported, High Court, 7 May 2021)

para. 87; Google v. Data Protection Commission [2024] IEHC 577 (Unreported, High Court, Barr J., 11 October 2024); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J.

16; Eglington Residents Association v. An Bord Pleanála [2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025)

9; Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December 2025)

54. (ii) It follows that if the consideration of something isn’t an autonomous obligation, and if nobody in the process raises that something, then belatedly introducing the point in judicial review is not generally a plausible or permissible basis for quashing a decision: North Great Georges Street Preservation Society v. An Bord Pleanála [2023] IEHC 241 (Unreported, High Court, 15 May 2023). In particular in the climate context, although not confined to that, the extent to which issues were raised in the process is of major importance (Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 (Unreported, Supreme Court, 4 February 2026) para. 118(xiv)). Exceptions are discussed in Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230 (Unreported, High Court, 12 April 2021) – if such exceptions apply then the court can potentially receive new evidence. (iii) The concept of autonomous duties should not be extended to nullify the requirement to make the point to the decision-taker. Where the decision-taker fails to engage with the relevant statutory test

all (as in Sherwin for example), one can characterise that as a breach of an autonomous duty, whether or not submissions on the point were also made, but where the decision-taker does address the appropriate test, the outcome of that should not normally be condemned on the basis of some new argument or evidence which was never put forward in the process, consistently with the foregoing caselaw. (

1. iv)It follows a fortiori that if an applicant not only fails to make the point to the decisiontaker but makes a contrary point, that is disqualifying in terms of permitting an applicant to obtain an order quashing a decision on such an inconsistent basis (see Clifford v. An Bord Pleanála [2021] IEHC 459 (Unreported, High Court, 12 July 2021), para. 52(
2. ii)where landowners tried to object to a condition that had been inserted on foot of their own substantive submissions; McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 16 July 2025) §§140 & 160; Fernleigh RA v. An Coimisiún Pleanála [2025] IEHC 655 (Unreported, High Court, Holland J., 28 November 2025)

63). Judicial review is not a second chance to introduce new issues

1. As noted in Friends of the Irish Environment CLG v. An Coimisiún Pleanála [2026] IEHC 205 (Unreported, High Court, 1 April 2026), one of the bedrock principles of judicial review is that it relates to the legality rather than the merits of a decision.
2. It is a logical corollary of that that in general the court should not revisit the merits or quash a decision by reference to new evidence and/or argument that could have been put before the decision-taker but was not. Obviously there have to be limited exceptions, for example where the applicant shows that the information could not have been obtained with reasonable diligence. The basic point is that the administrative process is not a dress rehearsal for the real debate

judicial review stage. Judicial review, as Holland J. put it, is not generally “a second chance” to raise issues that could have been put to the decision-taker (Monkstown Road Residents Association v. An Bord Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) (§208)).

1. Even if an applicant can make a challenge, not putting forward material about the point may render the challenge empty and devoid of any prospect of success if there was otherwise no basis for the decision-taker to have considered the pleaded point: North Great Georges Street Preservation Society v. An Bord Pleanála [2023] IEHC 241 (Unreported, High Court, 15 May 2023).
2. As to discretion, the following view of Costello J. (Haughton and Murray JJ. concurring) in Friends of the Irish Environment CLG v. Government of Ireland & Ors. [2021] IECA 317 (Unreported, Court of Appeal, 26 November 2021) (albeit under appeal) is relevant: “
3. The applicant made a submission on 10 November 2017, but it made no reference to crucial issues which were central to the appeal. It did not object to the SEA Environmental Report on the basis that it failed to assess the reasonable alternatives in a comparable manner to the preferred option, though that was a major plank of its case on appeal, and it did not assert that the NDP was required to be subject to AA and SEA on the grounds that it 18 was an integral part of the NPF, which was the key argument advanced to this court to quash the NDP.
4. This approach was unfair to the respondents,

the very least, and inimical to good decision making. One of the objectives of public consultation is to permit the public to highlight defects in the process they believe have occurred before a final decision is taken so that any such defects may be corrected and the risk of inadvertently reaching an invalid decision thereby avoided. It is incumbent upon a party who chooses to participate in a consultative process (as on one who files objections or observations in a planning process) to raise any points

the earliest possible time in the process. This is conducive to good administration and ought to reduce the number of legal challenges to administrative decisions. This court cannot endorse a practice where a point is raised for the first time in proceedings challenging a final decision which was not, but which could have been, raised before a decision was reached.

1. This is precisely what occurred in this case and it was not appropriate, even where the application for judicial review is brought within the time limits established in the Rules of the Superior Courts. If the applicant wished to raise either of these points it had ample opportunity to do so. The factual basis for the argument it advanced in these proceedings was clear from the SEA Environmental Report. It has never suggested that it was not in a position to argue these issues in its submission of November 2017, nor given any explanation why this was not done. A party may not reserve or withhold submissions which could and ought to be made during a public consultation prior to the adoption of a decision to the hearing of a challenge to the validity of the decision. Such conduct may be relevant to the exercise of the discretion of the court where an applicant succeeds in its argument but does not arise for consideration in these proceedings.”
2. There may be issues of the exact scope of the doctrine

the margins which may arise in an appropriate case. I highlighted some of these questions in An Taisce - The National trust for Ireland v. An Bord Pleanála [2021] IEHC 254 (Unreported, High Court, 20 April 2021) by reference to arts. 6 and 9

the time. Discretion may also come into play significantly, especially but not necessarily exclusively for a domestic law point that was dreamed up after the event. (ii) If the obligation is not autonomous, and the point was not raised, then the argument is generally precluded and/or in any event it would generally be an improvident and inappropriate exercise of the power of judicial review to quash a decision on such an esprit d’escalier point.

1. So it can be seen that whether something has to be considered autonomously or not is frequently not actually decisive.
2. Applicants can tend to respond to the foregoing by trying to classify everything as autonomous anyway in order to improve their chances. But this misunderstands the concept. A decision-taker has to engage autonomously with the statutory scheme that gives her jurisdiction. But the extent to which she has to anticipate non-obvious issues and hidden depths in that scheme is dependent on what is put up in the process. For example, a decision that is clearly in contravention of, say, a development plan or the habitats directive doesn’t become compliant merely because nobody pointed that out during the process. But if the contravention is dependent on something that wouldn’t have been autonomously apparent to a reasonable decision-taker acting reasonably, then the doctrine of autonomous obligations doesn’t extend to allowing the court to demand legal clairvoyance or to quash a decision on such an unanticipated basis. Any other approach would be unworkable, would trespass on the merits in violation of the separation of powers, and would impose 19 burdens on decision-takers that the courts would not accept for themselves, would require decisiontakers to have superhuman foresight to a degree that would bring the law into disrepute.
3. It obviously follows that opposing parties are not under any obligation to engage evidentially with post hoc affidavits that impermissibly introduce evidence after the event. That said, where an opposing party wants to ask for permission to reserve the right to reply if the affidavit is held admissible

the trial, as opposed to replying de bene esse, it would need to make that unambiguously clear in advance so that the court can manage the matter appropriately. Waiting until after the trial when an unanswered applicant’s affidavit is upheld in a judgment is, unfortunately, not the correct way for an opposing party to deal with such a situation.

1. A final question is whether it is a complete defence to this objection that somebody else raised the point even if the applicant did not. The answer to that is that there are some primarily EU law related situations such as AA where doubt has to be removed having regard to what was before the decision-taker even if it was somebody else that put the doubt-creating material forward. In other situations and particularly domestic law situations, a given applicant should not be generally indulged by granting certiorari on the basis of points she never raised, even if someone else raised such issues. This is a logical consequence of the doctrine of judicial restraint in the context of the fact that judicial review is ultimately a branch of equity and is thus subject to the doctrine of discretion. Of course one can’t rule out exceptional cases on an ex ante basis but that has no relevance here. The fact that there are scenarios where a party has standing despite not participating in the process (e.g. Grace v. An Bord Pleanála [2017] IESC 10, [2020] 3 I.R. 286 (joint judgment of Clarke and O’Malley JJ.; MacMenamin, Laffoy, Dunne and Charleton JJ. concurring) is a separate matter and doesn’t affect that. The fact that procedures like SID involve a one-tier process rather than a two-stage process involving the council and the commission is also irrelevant because there is no right to administrative appeal as such. Judicial review provides the effective remedy against the commission, and that remedy does not become ineffective by taking into account an applicant’s failure to raise an issue, because applicants are free to raise issues in the process so requiring that is no major obstacle to the remedy. The fact that the CJEU envisages (see judgment of 15 October 2015, European Commission v Federal Republic of Germany, C-137/14, ECLI:EU:C:2015:683) that EU-law related points can be made even though they were not raised in the process, that doesn’t take from the problem that the validity of the ensuing decision must be assessed through the lens of the material before the decision-taker. Onus of proof
2. Some relevant legal principles concerning the onus of proof which have been rehearsed in previous caselaw include the following: (i) With only defined and extremely limited exceptions, in judicial review the onus of proof is on the applicant

all times: per Denham J. (Murray C.J. and Fennelly J. concurring) in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701

p. 743; Cork County Council v. Minister for Housing, Local Government and Heritage (No. 1) [2021] IEHC 683 (Unreported, High Court, 5 November 2021)

§57; Monkstown Road Residents Association v.

An Bord Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022)

para. 96 per Holland J.; that remains the case even when in a constitutional challenge it is proved that constitutional rights have been interfered with: O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring)

para. 116; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J.

14. To put the same point another way, there is a presumption of validity for administrative decisions: per Finlay P. in In re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5 December 1977) and per Keane J. in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88

102; Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High Court, Holland J., 25 November 2024), para. 22; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J.

15. (ii) The onus shifts only in defined special circumstances. For example, where an error is demonstrated by an applicant, the onus shifts to opposing parties to show that the error is harmless: H.A. v. Minister for Justice [2022] IECA 166, [2022] 7 JIC 2201 (Unreported, Court of Appeal, Donnelly J., 22 July 2022)

para. 48 (Ní Raifeartaigh and Collins JJ. concurring). An onus on a decision-taker in the administrative process (e.g. to conduct a valid AA) does not convert into an evidential or any burden in the judicial process to show that the decision is valid (for reasons explained in Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023)

para. 85). 20 (iii) (iv) The onus of proof does not shift to a notice party merely because the decisiontaker does not defend the decision on a given point or generally. Such a rule would be inconsistent with the Supreme Court’s finding in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ. concurring) that a notice party can defend a permission even if the decision-taker does not. In the context of a challenge to an environmental assessment, the onus of proof to show, by evidence (normally expert evidence), or by demonstrating a flaw on face of material, that AA/EIA was defective, or that there were factual circumstances requiring a decision-taker to consider any other autonomous obligation, lies on the applicant: R v. Crischuk, 2010 BCSC 716 (Barrow J.)

paras. 36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141; Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021), para. 19; An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281 per Hogan J.

para. 124 (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring); Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024)

§191(v) (leave to appeal refused in Carrownagowan Concern Group v.

An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025)); Salmon Watch Ireland, Inland Fisheries Ireland, Sweetman & Ors. v. Aquaculture Licences Appeals Board & Ors. [2024] IEHC 421 (Unreported, High Court, Holland J., 12 July 2024), §1097; Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November 2024)

para. 115; Minoa Ltd v. An Bord Pleanála [2024] IEHC 704 (Unreported, High Court, Heslin J., 10 December 2024), para. 333; Ó Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September 2025)

55; Oxigen v. An Coimisiún Pleanála [2025] IEHC 632 (Unreported, High Court, 19 November 2025) (for example, in relation to proving that a decision-taker lacks expertise). Thus, apart from (

1. i)failure to consider something that the decision-taker was autonomously required to consider, (
2. ii)patent flaw on the face of the materials, or (iii) other legal error, inadequate consideration or failure to dispel scientific doubt has to be established by admissible evidence (normally expert evidence) in the judicial review showing either that reasonable doubt was created by the material before the decision-taker

the time (albeit not limited to what was adduced by the applicant specifically), or that such material even if uncontradicted would on its face have created doubt in the mind of a reasonable expert: An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021] 7 JIC 0205 (Unreported, High Court, 2 July 2021)

§7and §8; Carrownagowan Concern Group v.

An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024)

§191(v), leave to appeal refused: Carrownagowan Concern Group v.

An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025); Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024)

§§ 73and 105; Roache v.

An Bord Pleanála [2024] IEHC 311 (Unreported, High Court, Phelan J., 21 May 2024)

§117; Ryanair DAC v.

An Bord Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February 2025)

§64et seq.; Massey v.

An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025). As noted in Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November 2024), summarised in the nonprecedential determination refusing leave to appeal [2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10 March 2025)

para. 8, “the critical point was that scientific and factual shortcomings in EIA or indeed in an Appropriate Assessment, must be established by the applicant who bore the burden of proof”. Similarly, leave to appeal was refused in Eco Advocacy v. An Bord Pleanála [2025] IESCDET 74 (Dunne, Hogan and Donnelly JJ., 4 June 2025) where “The applicant’s claim failed for the reason that the High Court accepted that the respondent had come to a lawful conclusion of no doubt that an appropriate assessment was not needed and that the respondent had given reasons for that conclusion. On the judicial review the applicant had not displaced that conclusion by way of evidence” (para. 25). That is consistent with the general law: O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin, O’Malley, Baker and Murray JJ. concurring). The Supreme Court determination in 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1 July 2025) is to the same effect: “17. As [the 21 (v) (vi) (vii) (viii) trial judge] pointed out (

para. 196) the Court of Justice ruled in Case C-721/22 Eco Advocacy CLG (EU:C: 2023: 477) the Board simply provides ‘reasons sufficient to explain that the decision does not create reasonable scientific doubt as to impact on European sites.’ This was simply the test which [the trial judge] applied in the present case. He concluded (

para. 230) that the Board had addressed the issue of potential bird movements of water birds and hen harriers and ‘gives reasons for that conclusion which the applicants have not displaced evidentially.’ 18. The Court considers that this second issue involves the application of standard principles and does not meet the constitutional criteria”. See also Eco Advocacy CLG v. An Bord Pleanála & Statkraft [2025] IEHC 15 (Unreported, High Court, 15 January 2025)

§95; Concerned Residents of Coolkill v.

An Bord Pleanála & Midsal Homes [2025] IEHC 265 (Unreported, High Court, Holland J., 19 May 2025)

309. The onus of proof as to an inadequacy in the decision cannot be discharged by mere assertion: Joyce Kemper v. An Bord Pleanála [2020] IEHC 601, [2020] 11 JIC 2402 (Unreported, High Court, Allen J., 24 November 2020)

§9; Murphy v.

An Bord Pleanála [2024] IEHC 59 (Unreported, High Court, Bolger J., 6 February 2024)

§14; nor does mere assertion create scientific doubt for AA purposes: Harrington v.

An Bord Pleanála [2014] IEHC 232, [2014] 5 JIC 0909 (Unreported, High Court, O’Neill J., 9 May 2014); Murphy v. An Bord Pleanála [2024] IEHC 59 (Unreported, High Court, Bolger J., 6 February 2024)

§14; Duffy v.

An Bord Pleanála [2024] IEHC 558 (Unreported, High Court, Holland J., 27 September 2024)

§40-§41.

If demonstration of error depends on expert opinion, the onus of demonstration in that regard cannot be discharged by non-expert views articulated by or on behalf of an applicant. Such an exercise in ultracrepidarianism is generally inadmissible on standard evidential principles insofar as matters of opinion are concerned: Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025). Where there is a conflict of admissible evidence, in the absence of cross-examination such a conflict must generally be resolved against the party carrying the onus of proof: 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 (Clarke C.J.) (O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ. concurring). That is normally the applicant but in the case of an opposing party asserting that a demonstrated error is harmless, the conflict will be resolved against the opposing party. That said, while conflict between equally inherently credible averments, with no cross-examination, is generally resolved against the party carrying the onus of proof, a court is not always obliged to regard all averments as being equally credible, or to disregard internal or evident problems with them (see by analogy the manner in which the Supreme Court considered it was entitled to prefer an affidavit over even oral evidence in Koulibaly v. Minister for Justice, Equality and Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court, Denham J. (Geoghegan and McCracken JJ. concurring), 29 July 2004)). Among the matters to which regard might be had would be included the failure to explain patently relevant questions that are clearly within that party’s responsibility (Doorly v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022)

para. 137 (Ní Raifeartaigh and Pilkington JJ. concurring)). This specific and common sense power of the court to evaluate inherent defects in evidence remains notwithstanding caselaw on cross-examination such as RAS Medical or Re Bayview Hotel (Waterville) Limited [2022] IEHC 516 (Unreported, High Court, Butler J., 8 September 2022). This is consistent by analogy with the judgment of Hardiman J. (Hanna and Feeney JJ. concurring) in DPP v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130, [2007] 1 I.L.R.M. 350

para. 95 – the court as finder of fact is “not ... constrained” to accept “the only account available” even if that account is provided by oral evidence. Discretion 67. Some issues regarding discretion established by the caselaw are as follows: (i) Judicial review is a discretionary remedy: per Murray J. (Whelan and Pilkington JJ. concurring) in O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, 1 July 2021)

43 (see also per Charleton J. (diss.) in Dun Laoghaire Rathdown County Council v. Westwood Club Ltd [2019] IESC 43, [2020] 3 I.R. 417

10). This historically arose from the development of judicial review out of the power to grant equitable relief. 22 (ii) (iii) (iv) (v) (vi) Discretion applies both

the leave stage and

the substantive stage: per Finlay C.J. (Blayney and Denham JJ. concurring) in G. v. DPP [1994] 1 I.R. 374

p. 378; De Róiste v. Minister for Defence [2001] IESC 4, [2001] 1 I.R. 190, [2001] 2 I.L.R.M. 241

204 per Denham J.; Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring). The effect of the doctrine of discretion is that even if there was a “jurisdictional” infirmity such as in planning application documents, AA, or other such requirement the process is not automatically void ab initio and certiorari is not automatic: Byrnes v. Dublin City Council [2017] IEHC 19 (Unreported, High Court, Baker J., 18 January 2017); Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403 (Unreported, High Court, Owens J., 16 June 2021); Ballyboden Tidy Towns Group v. An Bord Pleanála [2023] IEHC 722 (Unreported, High Court, Holland J., 21 December 2023) (§102 et seq.); and Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November 2025) (§81 et seq.). The court can exercise discretion of its own motion because the court itself has to be satisfied as to the correctness of granting relief: Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ. concurring). That implies that the court has an entitlement to exercise such discretion itself even if a party doesn’t plead discretion as such or pleads it on limited grounds. In exercising that discretion however the court is bound by established principles as to the exercise of such discretion: Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring)

60. As Donnelly J. pointed out in that case

27, the use of the term discretion is strictly delineated. O’Donnell J. (Clarke C.J. and Dunne J. concurring) said in Kelly v. Minister for Agriculture [2021] IESC 62, [2023] 1 I.R. 38 that the court is not “

large”, or is free to take into account “its views on the underlying merits” (the contrast with Christian below indicates that what is envisaged is merit in some general sense separate from the “constitutional or legal value[s]” concerned). Rather, “the circumstances which allow the court not to make an order which would otherwise be justified must be such as to derive from an important constitutional or legal value of sufficient weight to warrant not making an order otherwise justified” (Clarke J. in Christian v. Dublin City Council [2012] IEHC 163, [2012] 2 I.R. 506,

567) as cited with approval by Donnelly J. in Amariei

27. Thus the court must be conscious of the need for statutory requirements to be observed, see e.g. Protect East Meath v. Meath County Council [2026] IESC 1 (Unreported, Supreme Court, 22 January 2026). The established principles as to the exercise of discretion fall into three broad categories: conduct of the applicant, the practical value of the remedy, and disproportionality. Under these headings the following points emerge: (a) “[T]he action or inaction of the claimant (such as a failure to exhaust an alternative remedy, delay, laches, waiver, acquiescence or misconduct in connection with the proceedings)” is relevant (O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, Murray J. (Whelan and Pilkington JJ. concurring) 1 July 2021)

43). In particular: 1. Failure to exhaust remedies as the general rule: Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring), save where for example there is a fundamental failure of justice: A.B. v Chief International Protection Officer & Ors [2026] IESC 23 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton, Woulfe and Murray JJ. concurring). “It is a long-standing principle of the law relating to judicial review that the court asked to quash an administrative decision has a discretion to refuse to do so if there is an alternative remedy available to put right the wrong complained of in the proceedings.” per Dunne J. (Charleton, Woulfe, Collins and Donnelly JJ. concurring), S. v. Minister for Justice and Equality [2025] IESC 48 (Unreported, Supreme Court, 25 November 2025)

2. This can include failure by an applicant to take action to protect their position: Baile Bhruachlain Teoranta v. Galway County Council [2024] IEHC 604 (Unreported, High Court, 1 November 2024); 23 Voyage Property v. Limerick City and County Council [2025] IEHC 696 (Unreported, High Court, Holland J., 16 December 2025)

2. The failure by the applicant to make the point in the process is relevant: Costello J. in Friends of the Irish Environment CLG v. Government of Ireland [2021] IECA 317 (Unreported, Court of Appeal, 26 November 2021)

2. Unwarranted failure to prosecute the proceedings: Delaney v. An Coimisiún Pleanála [2025] IEHC 621 (Unreported High Court, 13 November 2025). (b) Grounds relating to “the practical value of the remedy (such as mootness or futility) (see Independent Newspapers (Ireland) Ltd v. I.A. [2020] IECA 19, [[2021] 1 I.R. 384]

para. 78)” are relevant: O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, Murray J. (Whelan and Pilkington JJ. concurring), 1 July 2021)

43. Thus for example a remedy is not required where the order sought would be futile and inappropriate: Protect East Meath v. Meath County Council [2026] IESC 12 (Unreported, Supreme Court, 19 February 2026)

8. (c) The proportionality of certiorari (as opposed for example to either no order or declaratory relief only) may also be a factor: in Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205

60, Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ. concurring) said (without needing to decide the point) that there was “a great deal of force” in the submission that it would be disproportionate to quash a decision on the basis of a “technical procedural error”. In particular: 1. The importance of the provision not complied with is a factor – the process requires “consideration of whether the matter concerned is one of importance or of triviality”: per Finlay C.J. (Blayney and Denham JJ. concurring) in G. v. DPP [1994] 1 I.R. 374

p. 378 (emphasis added). Thus an “inconsequential” breach was not a basis for the grant of relief as a matter of discretion in Kenny v. Dublin City Council [2009] IESC 19 (Unreported, Supreme Court, 5 March 2009)

79 per Fennelly J. (Macken and Peart JJ. concurring). 2. Likewise the importance of the countervailing legal value being protected by the impugned decision is a factor in the balance, whether that be a value enshrined in law generally, the ECHR as transposed, the Constitution or EU law – as cited above, the court can consider whether there is “an important constitutional or legal value of sufficient weight to warrant not making an order otherwise justified” (Clarke J. in Christian v Dublin City Council [2012] IEHC 163, [2012] 2 I.R. 506,

567) as cited with approval by Donnelly J. in Amariei

2. Prejudice or the lack of it to the applicant or anyone else (see O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, 1 July 2021)

43: “grounds relating to the impact a remedy will have on others (such as where the grant of relief would represent an unwarranted interference with the settled rights or expectations of third parties)”).

1. In assessing proportionality it follows that matters regarding the seriousness of the error such as the extent of the noncompliance, whether the error was once-off, whether the issue is purely historic and cannot reoccur, the level of deliberation involved in the error and the extent to which reasonable steps were taken to prevent or identify such an error, whether the error was rectified promptly when it came to light (if capable of rectification), whether there is a pattern of non-compliance, and any other relevant circumstances may be relevant (see also Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High Court, 24 January 2024) para. 134). The climate law context
2. Insofar as relevant, some issues concerning the climate context include the following: 24 (i) (ii) (iii) The climate emergency represents a critical risk to human and natural life on earth (as noted in e.g. Wild Ireland Defence v. An Coimisiún Pleanála [2025] IEHC 726 (Unreported, High Court, 17 December 2025)

53). According to the statutory Climate Action Plan 2025 published by the Government under the Climate Action and Low Carbon Development Act 2015 as amended, as well as known critical risks of climate change, “[w]e also face increasing risks of reaching irreversible climate tipping points, with unknown and potentially catastrophic consequences for societies, ecosystems and economies” (p. 22, emphasis added). One recent widelyreported study noted that “research on climate tipping points, amplifying feedbacks, and cascading interactions shows that several Earth system components may be closer to destabilizing than once believed. These processes are thought to be the precursors of a potential ‘hothouse trajectory’: a pathway in which self-reinforcing feedbacks push the climate system past a point of no return, committing the planet to substantially higher long-term temperatures, even if emissions are later reduced. Policymakers and the public, however, remain largely unaware of the risks posed by such a practically irreversible transition” (emphasis added) (William J. Ripple et al, “The risk of a hothouse Earth trajectory”, One Earth, 101565, 11 February 2026). Domestic law imposes significant climate-related obligations on national decisiontakers, including in the field of planning. The Climate Action and Low Carbon Development (Amendment) Act 2021 (amending the Climate Action and Low Carbon Development Act 2015) mandates the achievement of a net-zero carbon economy by 2050 (s. 3

conference of parties of the UNFCCC (the United Nations Framework Convention on Climate Change opened for signature

UN Conference on Environment and Development, Rio de Janeiro, Brazil, 314 June 1992) (COP21) in Paris, on 12 December 2015). 25 v. By way of implementation of the Paris Agreement, the European Climate Law (Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999) involves a reduction of GHG emissions for the EU by

least 55% by 2030 compared to 1990 levels. Ireland’s Nationally Determined Contributions (NDCs) under Paris are as part of the EU contribution to GHG reductions. vi. Council Regulation (EU) 2022/2577 of 22 December 2022 lays down a framework to accelerate the deployment of renewable energy. Article 3

para. 118 of Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 (Unreported, Supreme Court, 4 February 2026). Arising from that, one can highlight the following, taking the liberty of eliding some text specific to the arguments in that particular case (particularly the applicant’s phrasing of the test

first instance which I had agreed with – the Supreme Court obviously didn’t uphold that particular wording but one needs to bear in mind the general point that everything arises in context, and the arguments

trial and appeal level seem to have been significantly different on all sides as the judgment seems to recognise) (emphasis added): (

1. i)“The evident purpose and effect of s. 15 of the 2015 Act following the amendments made in 2021, is to strengthen the obligations imposed upon bodies (including the Commission) and to make the performance of all their functions consistent with the climate objectives insofar as is practicable. That obligation is, in principle, enforceable by a court.” (
2. ii)“The requirement imposed by s. 15, cannot simply be reduced to a purely procedural obligation, or confined to operation

a programmatic level. Therefore, the provision requires more than that bodies (including the Commission) that are subject to its terms ‘have regard to’ the climate objectives referred to in the section.” 26 (iii) (

1. iv)(
2. v)(
3. vi)(vii) (viii) (
4. ix)(
5. x)(
6. xi)(xii) (xiii) “While the language ‘in a manner consistent with’ looks to the outcome of the performance of the relevant function, it also implies that there is a range of possible outcomes open to the relevant body which may satisfy the application, and a degree of tolerance in the manner in which it is achieved.” “That tolerance is further reinforced by the inclusion in s. 15 of the qualification entailed by the words ‘in so far as practicable’. These make it clear that the section contemplates that there may be circumstances in which a relevant body may not be required to perform its functions in a manner consistent with the s. 15

a high level of generality, it should not be a difficult matter to establish such consistency, particularly when the individual action can be shown to be consistent with some plan or strategy which itself was prepared subject to the obligation contained in s. 15