[2026] IEHC 322 THE HIGH COURT PLANNING & ENVIRONMENT [H.JR.2025.0001365] BETWEEN MICHAEL DUFFY APPLICANT AND AN COIMISIÚN PLEANÁLA AND CLARE COUNTY COUNCIL RESPONDENTS AND UISCE ÉIREANN NOTICE PARTY

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. (ii) In 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), the Supreme Court took the approach that in the context of a challenge to an environmental assessment, the onus of proof to show a defect generally lies on the applicant. (iii) In G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, [2002] 1 I.L.R.M. 401, the Supreme Court decided that there is a presumption (the onus to rebut which falls on a judicial review applicant) that material has been considered if the decision-taker says so (see also Rana v. Minister for Justice [2024] IESC 46 (Unreported, Supreme Court, O’Malley J., 18 October 2024), para. 91 (Dunne, Hogan, Collins and Donnelly JJ. concurring); 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. (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring)

para. 137). (iv) 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 Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31 July 2014) per Clarke J. (Dunne J. concurring)

paras. 3.8-3.15, 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), the Supreme Court emphasised that judicial review is concerned with the legality rather than the merits of the decision. 2 (

1. v)In Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 I.R. 360 (Keane C.J.) (Murphy, Murray, McGuinness and Geoghegan JJ. concurring); Rachki v. Governor of Cloverhill (Unreported, Supreme Court, 5 December 2011) ex tempore (Fennelly J.), the Supreme Court proceeded on the basis of the principle that the doctrine against collateral challenges to previous unchallenged decisions applies even in an EU law context. (
2. vi)In Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024), 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. 3. It is the function of a trial court to apply such principles here. While I appreciate the sincerity of the applicant, who appeared in person, as a Kilfenora resident who has a direct personal interest in water quality, the legal question here is whether any sufficiently convincing legal reason has been demonstrated to warrant relief in the limited legal context we are dealing with here – a challenge to modest amendments of the parent permission. 4. The applicant’s primary concerns were that flooding would impact on both landowners and environmentally. Secondly he had a “fundamental problem” with the fact that untreated effluent was leaving the plant and polluting groundwater via a swallow hole. On the worsening of the flooding issue, the applicant placed some reliance on the view of one expert on the Uisce Éireann (UÉ) side in an email of 17 January 2024 (emphasis added): “From: <...> Sent: Wednesday, January 17, 2024 7:17 AM To: <...> Subject: RE: 240116 Kilfenora - RFI Response - Submissions Received Hello …, I've now gone through Micheal Duffy’s lengthy submission and

tach more comprehensive comments. I also

tach a response I made to his last submission back in 2019 as many of the points raised are the same (and my responses remain the same). The vast majority of his accusations can be easily countered. However, the one point that might have some validity is whether the construction activities inadvertently caused a partial blockage of the swallow hole / conduit system and have therefore made the flooding worse now. This could have happened by some rock or timber accidentally getting knocked into the swallow hole for example. The reason why I am raising this point as a possibility is that during the original design back in 2018 there was never any mention of periodic flooding down

the swallow hole location, which does seem strange, particularly given some of the very heavy flood events that have occurred in the area over the past 15 years (2009, 2014/15 etc). Whether this are used to flood or not prior to construction can all potentially be checked using satellite data, but that would require a bit of work. Anyway, I

tach my comments for now. Kind regards, …”

1. However the construction being referred to here is on foot of the parent permission – this is not something that arises from the specific decisions under challenge here. This is not an issue that comes within the s. 160 proceedings either.
2. The discharge of wastewater to the swallow hole is also not being caused by the amendments to the parent permission. It arises from the parent permission. This also is not covered by the s. 160 proceedings.
3. I am certainly not saying that the applicant is unreasonable to have concerns about these matters. The only legal question is whether the present proceedings is a vehicle in which these points properly result in the grant of relief. In answering that it might be too simplistic to say that some specific alternative such as the s. 160 action or representations to the Environmental Protection Agency (EPA) would be a better avenue. Litigation can be a very blunt instrument for

tempting to resolve disagreements of this type and can just end up absorbing great amounts of time and energy for all concerned, not always with any great effect. 8.

the risk of being accused by UÉ of Pollyannaish optimism I would encourage consideration of some form of further engagement with the applicant such as a meeting involving his engineering peers in UÉ, so that

least he would have a greater feeling of being heard as to his concerns about the Kilfenora project (which is naturally of particular concern as he lives about six minutes’ walk away) or more generally, and any possible steps that would improve matters would

least be considered. I appreciate UÉ’s rather illusionless response to that which effectively is that any engagement would result in access to information on the environment (AIE) requests and possibly more litigation rather than less. But that is something that falls into the Rumsfeldian category of 3 the known unknown, so can presumably be anticipated and mitigated. No doubt UÉ will do what they think best and I will leave that suggestion with them. All we can deal with for present purposes is the question of whether the issues raised in the proceedings constitute grounds for invalidating the amending permissions

issue here. Judgment history

1. There are no previous judgments in litigation between the parties with respect to the developments the subject of these proceedings or the Kilfenora Wastewater Treatment Plan.
2. There are extant s. 160 proceedings in the Circuit Court taken by the applicant as against the notice party, UÉ, relating to the alleged unauthorised development the subject of these proceedings: Duffy v Irish Water [Circuit Court record no. 2022/00005, South Western Circuit], addressed in more detail below. Those proceedings are still ongoing.
3. The applicant also issued proceedings in early 2022 challenging the council’s failure to issue an enforcement letter [apparently 2022 0493 JR, which was adjourned generally in the judicial review ex parte list on 13 March 2023 for reasons that are not currently to hand]. Geographical context
4. Both projects consist of alterations to the Kilfenora Wastewater Treatment Plant and Percolation Area (the Kilfenora WWTP) development, approved under reference ABP-305756-
6. The first project (https://www.pleanala.ie/en-ie/case/322234), consists of (i) disconnection and capping of existing gravity effluent pipe (pipework to retained in situ), (ii) installation of new gravity pipe and connection to pumping station and (iii) all ancillary site development and excavation works above and below ground necessary to facilitate the development
7. The second project (https://www.pleanala.ie/en-ie/case/322250) consists of (i) modifications to site access and internal roads

the wastewater treatment plant to include raising of access road level from the public road (L1034) to the site entrance gates, to include provision of permeable paving finish, and widening/reconfiguration of internal road in focused areas, permeable paving finish, hard surface area and gully, and provision of petrol interceptor, (ii) modifications to site access and internal road

the percolation area to include new roadside channel drain and provision of permeable paving finish and (iii) all ancillary site development and excavation works above and below ground necessary to facilitate the development. 15. Both developments are located

Killcarragh and Ballybreen Townlands, Kilfenora, Co. Clare, near the following: https://maps.app.goo.gl/NtQuDDDDgJ5XSoQ28 and https://maps.app.goo.gl/yiHHCDqybF9Rgj5N6. A view of the area is

https://maps.app.goo.gl/WW3sGcLj7Ge1ejAX

1. Parties
2. The applicant is a resident of Kilfenora and an engineer with a keen personal interest in water quality and water/ wastewater projects.
3. The first named respondent (which I will refer to as the respondent given that the council was struck out) is the relevant statutory decision-taker here.
4. The second named respondent, the council, made the first instance decision. As noted above, they have been struck out of the proceedings.
5. The notice party is the project developer. General factual background
6. Prior to the construction of the Kilfenora WWTP, the village of Kilfenora had an existing combined sewage collection system and a wastewater treatment plant to the west of the village that was constructed in the late 1970s/ early 1980s by the council.
7. A stormwater overflow was constructed in
8. The final effluent from the original WWTP discharged to a pumping station on site and was pumped forward to Ballybreen where it discharged directly into groundwater via a swallow hole.
9. On 27 September 2019, planning permission was granted by the council for the upgrade of the original WWTP consisting of the construction of the Kilfenora WWTP, the installation of tertiary treatment technology, the demolition of the existing treatment works and associated site development, including construction of the percolation area. The applicant appealed the council’s decision to the commission.
10. On 6 March 2020, the commission granted permission for the Kilfenora WWTP (ref. ABP305756-19). No challenge was brought to the Kilfenora WWTP decision.
11. Works commenced in October
13. On 7 January 2022, the applicant issued s. 160 proceedings in the Circuit Court related to the construction works

the Kilfenora WWTP, alleging unauthorised development in respect of the Kilfenora WWTP, as to: (

1. i)the provision of a temporary wastewater treatment plant and associated discharge facilitating ongoing treatment of wastewater on site; (
2. ii)the alleged omission of a silt fence conditioned in the Kilfenora WWTP permission as mitigation to protect surface waters and groundwater; 4 (iii) a proposed gravity effluent pipe stated by the applicant to be outside the red-line development boundary under the Kilfenora WWTP permission; and (
3. iv)the proposed inclusion of an infiltration system and interceptor, for the purpose of stormwater drainage in compliance with condition 7 of the Kilfenora WWTP permission. 26. In May 2022, the applicant sought to extend and supplement his allegations of unauthorised development forming part of the s. 160 proceedings to include inter alia complaints regarding the volume and type of soil, stone and sand used in the percolation area. 27. Subsequently, by declaration under s. 5 of the 2000 Act dated 9 August 2022, on an application by Mr Michael King, the council confirmed that the removal of the soils and subsoils for the purposes of the percolation area was development for the purposes of the 2000 Act, but that such development fell within the terms and conditions of the Kilfenora WWTP permission (see Clare County Council s. 5 declaration dated 9 August 2022 (ref. R22-43) (Exhibit EW1 Tab 16)). 28. On 9 December 2022, UÉ made two planning applications to the council, for minor amendments to the Kilfenora WWTP. Those 2022 applications were subsequently withdrawn and replaced with the planning applications the subject of these proceedings: the gravity effluent pipe application and the access roads application. 29. The Kilfenora WWTP was substantially completed in November 2023. However, implementation of the minor works granted permission in the commission decisions under challenge in these proceedings are required before the Kilfenora WWTP can be fully commissioned and to end the existing direct discharge of the treated effluent to the swallow hole

Ballybreen.

1. On 28 January 2026, the EPA granted a Waste Water Discharge Certificate of Authorisation for Kilfenora WWTP for primary and stormwater discharge. This was not challenged. Facts regarding first application – Gravity effluent pipe – ABP-322234-25
2. On 16 January 2025, the notice party submitted a planning application to the council with respect to the gravity effluent pipe permission (ABP-322234-25), seeking permission for alterations to the Kilfenora WWTP, specifically the disconnection and capping of an existing gravity effluent pipe, retention of certain pipework in situ, and the installation of a new gravity pipe connecting to a pumping station, along with associated excavation and site development works

Ballybreen, Kilfenora, Co. Clare (PA reg. ref.: 25/60011). 32. On 12 March 2025, the council granted permission subject to two conditions on the recommendation of the council’s executive planner: (

1. i)council decision (PA reg. ref.: 25/60011) dated 12 March 2025: https://www.eplanning.ie/ClareCC/AppFileRefDetails/2560011/0; and (
2. ii)council decision (PA reg. ref.: 25/60013) dated 12 March 2025: https://www.eplanning.ie/ClareCC/AppFileRefDetails/2560013/0. 33. On 8 April 2025, a third-party appeal was lodged by the applicant. 34. On 6 May 2025, the council submitted a response to the third-party appeal, addressing eight matters relevant to same and requested that the commission uphold the council’s decision to grant. 35. On 7 May 2025, the notice party submitted a response to the third-party appeal. 36. On 6 June 2025, the council submitted a response to the notice party’s response to the appeal. 37. On 11 June 2025, the applicant also submitted a response to the notice party’s response to the appeal. 38. On 19 June 2025, the inspector appointed by the commission carried out a site inspection and by inspector’s report dated 25 June 2025, the inspector recommended that permission be granted subject to five conditions. 39. On 15 July 2025, the commission considered the appeal

a meeting and made a direction recording that the submissions on file and the inspector’s report were considered

the said meeting and that the commission decided to grant permission generally in accordance with the inspector’s recommendation.

1. By order dated 18 July 2025, bearing ref. ABP-322234-25, the commission granted permission for the proposed development, subject to five conditions. Facts regarding second application – access roads – ABP-322250-25
2. On 16 January 2025, the notice party submitted a planning application to the council with respect to the access roads permission (ABP-322250-25), seeking permission for alterations to the Kilfenora WWTP, including modifications to site access, internal roads, and all ancillary development

Killcarragh and Ballybreen, Kilfenora (PA reg. ref: 25/60013).

1. On 12 March 2025, the council granted permission subject to two conditions on the recommendation of the council’s executive planner.
2. On 8 April 2025, a third-party appeal was lodged by the applicant.
3. On 7 May 2025, the notice party submitted a response to the third-party appeal.
4. On 30 May 2025, the council submitted a response to the third-party appeal. 5
5. On 19 June 2025, the inspector appointed by the commission carried out a site inspection and by inspector’s report dated 25 June 2025, the inspector recommended that permission be granted subject to five conditions.
6. On 15 July 2025, the commission considered the appeal

a meeting and made a direction recording that the submissions on file and the inspector’s report were considered

the said meeting and that the commission decided to grant permission generally in accordance with the inspector’s recommendation.

1. By order dated 18 July 2025, bearing ref. ABP-322250-25, the commission granted permission for the proposed development, subject to five conditions. Procedural history
2. The originating motion and verifying affidavit of the applicant were filed on 11 September
4. Leave was granted on 29 September
6. The notice of motion was filed on 16 October
8. An amended statement of grounds was filed on 16 October
10. The commission’s statement of opposition and verifying affidavit of Robert Brophy were delivered unfiled on 27 March and filed on 31 March
12. The council’s statement of opposition and verifying affidavits of Marina Keane and Kieran O’Donnell were delivered unfiled on 31 March 2026 and filed on 1 April
14. The notice party’s statement of opposition and verifying affidavit of Esther White were delivered unfiled on 2 April and filed on 9 April
16. On 20 April 2026, I struck out the applicant’s case against the council.
17. The applicant’s replying affidavit was filed on 27 April
19. The applicant’s written submissions were delivered on 29 April
21. The commission’s written submissions were delivered on 5 May
23. The notice party’s written submissions were delivered on 5 May
25. The statement of case was uploaded onto ShareFile on 5 May
27. Judgment was reserved

the end of that hearing. I would like to record my thanks to the applicant and 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 making or instructed to convey such points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to all concerned. 63. On 15 May 2026, a draft of the present judgment was sent to the parties to give an opportunity to identify any errors. The rules of engagement in such a situation are that the draft is without prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever content it considers appropriate. 64. Any comments must be emailed to the court and uploaded to ShareFile in writing by the notified deadline, and should not be to reargue the substance (submissions to that effect will be disregarded) but are confined to matters such as: (

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

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

1. d)any other matter in the draft judgment that the party considers should be omitted; (
2. e)any matter not included in the draft judgment that the party considers should be added to it (including where the party considers that procedural, factual or legal points not set out in the judgment should be addressed or where the party considers that reasons for any aspect of the decision are not set out or where an overall ground is disposed of but detail of the ground or sub-ground is not expressly addressed, or where an issue arose the disposition of which would be 6 obiter but on which the party concerned considers that there would be a benefit in the court expressing a view); and (
3. f)any other suggestions as to the wording (as opposed to substance) of the decision if the proposed wording causes any significant issue for a party for any identified reason. 65. It is then entirely a matter for the court as to whether to give judgment with or without amendment including any amendment that appears appropriate to the court whether arising from submissions or not. Any judgment may be given without further notice following the expiry of the specified period, whether comments are made or not. That period will not be extended save in exceptional circumstances. All parties involved are required to positively confirm to the court the position including if they have no observations on the draft legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a concession which parties can engage with but must do so with immediate dispatch, discipline and focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to elaborate procedures

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

para. 39); and still less should the procedure invite the perhaps “serious error, to which lawyers are prone, to approach any such case on the tacit assumption that only procedures which approximate to a criminal trial are fair, and anything which departs from that is somehow dubious” (O’Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780). 66. Draft judgments are not public domain materials and, while they can be shared between the lawyers concerned and their clients, subject to the following, it is inappropriate for any person to refer to them for any purpose other than to assist the court in relation to the finalisation of the formal judgment. Therefore anyone with information as to the text, content or proposed outcome of any draft is required not to publish or transmit such information to others save solely by way of private transmission for the legitimate purposes of assisting in the finalisation of the judgment and subject to a similar restriction on any recipient. Trial participants should take reasonable steps to keep drafts confidential. On this topic, see

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

D3, 4, 6 and 7 are also no longer pursued. Core Ground 6, as expressly pleaded, is entirely contingent on a positive finding in favour of the Applicant on Core Grounds 3, 4 or 5 and so it also falls away as those core grounds have been withdrawn. There is no basis to the Applicant’s continued pursuit of Core Ground 6, and it is noted that same is not addressed in this Statement of Case. The remaining four grounds appear therefore to be Core Grounds 1, 2, 7 and 8. The Commission relies in full on the pleas contained in its Statement of Opposition in opposition to each of those Core Grounds. 8 The Applicant’s submissions do not offer any cogent answer to or analysis of the Commission’s response to those core grounds as pleaded in its Statement of Opposition. Indeed, sub-optimally, the Applicant’s submissions do not actually address any of the core grounds in specific terms

all. None of the remaining four core grounds are referred to in the Applicant’s submissions and indeed the words ‘core ground’ do not even feature in same. Further, it is not open to the Applicant to reconfigure his pleaded case via his input in this Statement of Case.”

1. As regards core ground 6, this is clearly dependent on core grounds 3 to 5 so is rendered baseless and irrelevant by the withdrawal of those core grounds.
2. As regards the division between domestic and EU law points, core ground 1 is substantially EU-related so is dealt with under that heading. The impugned decision
3. The impugned decision provides as follows (decisions ABP-322234-25 and ABP-322250-25 are identical except for the reference numbers): “Proposed Development: The proposed development which will service and consist of alterations to the Kilfenora wastewater treatment plant and percolation area development approved by An Coimisiún Pleanála under reference number ABP-305756-19, and consists of:

Ballybreen (Townlands), Kilfenora, County Clare. 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 Having regard to the applicable policy context, including the provisions of the Clare County Development Plan 2023-2029 wherein Objective CDP 11.32 - Wastewater Treatment and Disposal supports the implementation of Uisce Eireann Investment Plans and advocates the provision, by Uisce Eireann, of adequate wastewater treatment facilities, and having regard to nature and scale and extent of the proposed development comprising minor alterations to previously permitted wastewater infrastructure, the Commission was satisfied that, subject to compliance with the conditions set out below, the proposed development would support the delivery of the development plan policy. The Commission was also satisfied that subject to compliance with the conditions set out below, the proposed development would not exacerbate flooding, would not have a significant impact on ecology or on European Sites in the vicinity, and would, therefore, be in accordance with the proper planning and sustainable development of the area. Appropriate Assessment: Stage 1 : The Commission considered the documents submitted with the application, and all the other relevant submissions on file, and carried out an Appropriate Assessment in relation to the potential effects of the proposed development on designated European sites. The Commission agreed with the screening assessment and conclusion carried out in the Inspector’s Report that East Burren Complex Special Area of Conservation (Site Code 001926); Corofin Wetlands Special Protection Area (Site Code 004220); Inagh River Estuary Special Area of Conservation (Site Code 000036); and Moneen Mountain Special Area of Conservation (Site Code 000054) are the only European Sites in respect of which the proposed development has the potential to have a significant effect in view of the Conservation Objectives for the sites 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 aforementioned sites in view of these sites’ 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 sites’ 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 Sites, (
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) mitigation measures which are included as part of the current proposal. 9 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 Sites. In overall conclusion, the Commission were satisfied that the proposed development would not adversely affect the integrity of the European Sites in view of the sites’ Conservation Objectives and that there is no reasonable scientific doubt as to the absence of such effects. Conditions 1 The development shall be carried out and completed in accordance with the plans and particulars lodged with the application, 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 development shall be carried out and completed in accordance with the agreed particulars. Reason: In the interest of clarity. 2. The mitigation measures contained in the Natura Impact Statement submitted to the planning authority on the 16th day of January 2025 shall be implemented in full. Reason: To protect the integrity of European Sites. 3. The mitigation measures contained in the Ecological Impact Assessment (EcIA) submitted to the planning authority on the 16th day of January 2025 shall be implemented in full. Reason: In the interest of environmental protection and nature conservation. 4. The controls and measures contained in the Construction, Environmental Management Plan (CEMP) submitted to the planning authority on the 16th day of January 2025 shall be implemented in full. Reason: In the interest of environmental protection and nature conservation. 5. Drainage arrangements, including the

tenuation and disposal of surface water, shall comply with the detailed requirements of the planning authority for such works and services. Reason: In the interest of public health.” 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. 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); (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. 76. Before dealing with specific elements in detail, some general comments are worth noting

this juncture: (i) Judicial review is concerned with the legality rather than the correctness of the decision: per Clarke J. (Dunne J. concurring) in Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31 July 2014)

paras. 3.8-3.15; Amariei v. Chief Appeals Officer [2026] IESC 22

para. 1 per Donnelly J. It is not an appeal on the 10 (

1. ii)(iii) (
2. iv)merits and it is not for the court to substitute its view for that of the decision-taker: 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; per Lady Hale in R (Cart) v. Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663

para. 47: “it is not difficult to dress up an argument as a point of law when in truth it is no more than an

tack upon ... factual conclusions”. See also Stapleton v. An Bord Pleanála & Savona [2025] IEHC 178 (Unreported, High Court, Holland J., 1 April 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J.

11. As Singh L.J. and Carr J. put it in R (Hoareau and Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), [2019] 1 W.L.R. 4105

[326] (emphasis added): “Judicial review is not, and should not be regarded as, politics by another means”. The court must keep the separation of powers firmly in mind: Sinnott v. Minister for Education [2001] IESC 63, [2001] 2 I.R. 545 (Keane C.J., Denham, Murphy, Murray, Hardiman, Geoghegan and Fennelly JJ.); T.D. v. Minister for Education [2001] IESC 101, [2001] 4 I.R. 259 (Keane C.J., Denham, Murphy, Murray and Hardiman JJ.); B. v. Child & Family Agency & Ors. [2025] IESC 2 (Unreported, Supreme Court, Hogan J., 27 January 2025) (O’Donnell C.J., Murray, Collins and Donnelly JJ. concurring), para. 62; consequently the courts must respect the principle that policy choices are for other branches of government. To stray into policy fundamentally distorts the process because “[t]he administrator is often concerned with broad considerations of the public interest whereas the judge tends to focus on the claims of the parties to the case before him” De Blacam, Judicial Review, 2nd ed, p. 97. What O’Donnell C.J. (Charleton and Woulfe JJ. concurring) has recently said of Article 42A is true of the Constitution and law generally – it is not “an open-ended provision that requires courts to substitute their judgment on social issues ... for that of the Oireachtas” (G. v. Ireland [2025] IESC 49 (Unreported, Supreme Court, 26 November 2025)

68). Nor is the equality guarantee to “become instead a more general power to second guess legislative choices in difficult areas where the courts have very limited insight. ” (

para. 86). He noted: “In Re SC [2021] UKSC 26, [2022] AC 223, Lord Reed cautioned against an expansive application of the equality guarantee contained in Article 14 ECHR observing that, in effect, since legislation was the art of differentiation, any legislation could be contested from the point of view of equality, and that a broad and expansive application of the guarantee risked undue interference with the sphere of political choice. I agree. Once it is established that a classification is not arbitrary or capricious or based on prejudice or stereotype, then this is an area where there is particular merit in the observations of Chief Justice Stone that ‘[c]ourts are not the only agency of government that must be assumed to have capacity to govern’ (United States v Butler

para. 27; Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212 (Lord Hodge and Lord Sales SCJJ.)

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

12. Generally speaking evaluative judgements involving a significant degree of planning judgement and not tainted by other procedural, legal or factual errors are reviewable on an irrationality standard: Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton, O’Malley, Baker and Murray JJ. concurring); Barr J. in Graymount House Action Group v. An Bord Pleanála [2024] IEHC 327 (Unreported, High Court, 31 May 2024), leave to appeal refused in Graymount House Action Group v. An Bord Pleanála [2025] IESCDET 22 (Dunne, Woulfe and Hogan JJ., 17 February 2025). A decision must be read in a way that makes sense rather than nonsense if such a reading is available. It is not the case that decisions must be read in the 11 (v) (vi) most erroneous way possible so that applicants can get their order of certiorari (M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020); Rostas v. DPP [2021] IEHC 60 (Unreported, High Court, 9 February 2021)

§50; St.

Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024)

§57); Duffy v.

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

32. Thus a decision should not be read as invalid if a valid reading is reasonably available: see M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41 (Unreported, High Court, 29 January 2020)

§7; Mulloy v.

An Bord Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12 March 2024)

§178(citing O’Donnell v.

An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1 November 2023)); Save Roscam Peninsula CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024)

§64

); thus for example “unhelpful” statements should not be read as inconsistent with statutory factors if the decision can be read as valid – E.M. v. Minister for Justice and Equality [2024] IESC 3 (Unreported, Supreme Court, 21 February 2024) per Dunne J. (Charleton, Woulfe, Murray and Donnelly JJ. concurring); Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J.

13, and this applies even if the wording is sub-optimal: Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December 2025)

32. It is not appropriate to engage in legalistic over-parsing or micro-analysis of decisions, or of legal instruments generally, frequently based on semantic querulousness: per Sullivan J. in R (Blewett) v. Derbyshire County Council [2003] EWHC 2775 (Admin), [2004] Env. L.R. 29

para. 41; R. (Friends of the Earth Ltd and others) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212, Lord Hodge and Lord Sales SCJJ.; per O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023)

para. 37. As stated by Peart J. in G.T. v. Minister for Justice, Equality and Law Reform [2007] IEHC 287, [2007] 7 JIC 2708 (Unreported, High Court, 27 July 2007), para. 3: “It is not desirable that a decision be parsed and analysed word for word in order to discern some possible infelicity in the choice of words or phrases used and to hold that a finding of credibility adverse to the applicant is invalid, unless the matters relied upon have been clearly misunderstood or mis-stated by the decision maker. The whole of the decision must be read and considered in order to reach a view as to whether, when the decision is read in its entirety and considered as a whole, there was no reasonable basis for the decision maker reaching that conclusion”. See also A.I.M.Z. v. Refugee Applications Commission & Ors. [2008] IEHC 420, [2008] 11 JIC 0705 (Unreported, High Court, 7 November 2008)

para. 24 per Clarke J.; per McCarthy J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009] IEHC 383, [2010] 7 JIC 2803 (Unreported, High Court, 28 July 2009), para. 13; per Clark J. in Obuseh v. Minister for Justice, Equality and Law Reform & Ors. [2010] IEHC 93, [2010] 1 JIC 1404 (Unreported, High Court, 14 January 2010), para. 21; per MacEochaidh J. in Bondo v. Minister for Justice & Ors. [2012] IEHC 454, [2012] 11 JIC 0903 (Unreported, High Court, 9 November 2012), para. 24; per Barr J. in P.M. v. Refugee Appeals Tribunal [2014] IEHC 497, [2014] 10 JIC 0204 (Unreported, High Court, 2 October 2014), para. 59; per Faherty J. in O.S. v. Refugee Appeals Tribunal [2015] IEHC 839, 2015 WJSC-HC 25494, [2015] 12 JIC 1505 (Unreported, High Court, 15 December 2015), para. 59; X.E. v. International Protection Appeals Tribunal [2018] IEHC 402, [2018] 7 JIC 0405 (Unreported, High Court, Keane J., 4 July 2018); B.D.C. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460, [2018] 7 JIC 2006 (Unreported, High Court, 20 July 2018), para. 7; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J.

13. Mere technicalities are not normally a proper basis for the grant of relief: see e.g. The State (Toft) v. Galway Corporation 1981 WJSC-SC 2110, [1981] ILRM 439 (O’Higgins C.J.; Walsh and Kenny JJ. concurring); Moore v. Dun Laoghaire Rathdown County Council [2016] IESC 70, [2017] 3 I.R. 42, [2017] 2 I.L.R.M. 21 (Clarke, Laffoy and O’Malley JJ.) para. 4.8 (distinguishing a substance point from “a technicality”); Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (Hogan J.; MacMenamin, Charleton, O’Malley and Baker JJ. 12 (vii) (viii) (ix) (x) (xi) (xii) concurring). 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”. See also Watchhouse Cross Shopping Centre v. An Coimisiún Pleanála [2025] IEHC 520 (Unreported, High Court, 3 October 2025). Relatedly, a decision must be read in the round and in its context. One has to view an administrative decision in the round, and not place undue weight on semantic quibbles in respect of micro-sub-elements of it: O.A.A. v. Minister for Justice, Equality and Law Reform & Anor. [2007] IEHC 169, [2007] 2 JIC 0904 (Unreported, High Court, Feeney J., 9 February 2007); J.B.R. v. Refugee Appeals Tribunal & Ors. [2007] IEHC 288, [2007] 7 JIC 3110 (Unreported, High Court, Peart J., 31 July 2007); per Cooke J. in I.R. v. Minister for Justice [2009] IEHC 510, [2015] 4 I.R. 144

p. 152; M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 6. A decision should be read not solely from an applicant’s point of view (an impossible standard), but from the starting point of it being valid rather than invalid where possible. One has to stand back and ask what the decision is fundamentally saying (O’Donnell & Ors. v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1 November 2023), para. 54; St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024)

§57; Moran v.

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

13. Judicial review is not an exercise in pointless formalism: see for example Okunade v. Minister for Justice [2018] IESC 56, [2018] 11 JIC 1401 (Unreported, Supreme Court, 14 November 2018) per O’Donnell J. (Clarke C.J. and O’Malley J. concurring)

para.

1. It is not a game where the respondents can score as many goals as they like, but if the applicant scores one goal, the game is over. The court must make a balanced and reasonable assessment of the overall sustainability of a decision, even if there is an argument for saying that limited parts of it are suboptimal: M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para.
2. It is not for the applicant to dictate the procedures to be adopted or the form of a decision: see for example per Ryan P. (Peart and Hogan JJ. concurring) in A.B. v. Minister for Justice and Equality [2016] IECA 48, [2016] 2 JIC 2602, 2016 WJSC-CA 1525 (Unreported, Court of Appeal, 26 February 2016)

para. 43. A final important general point is that there is a presumption that material has been considered if the decision says so, the onus being on an applicant to evidentially displace that: see per Hardiman J. (Denham and Geoghegan JJ. concurring) in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, [2002] 1 I.L.R.M. 401; Rana v. Minister for Justice [2024] IESC 46 (Unreported, Supreme Court, O’Malley J., 18 October 2024), para. 91 (Dunne, Hogan, Collins and Donnelly JJ. concurring); Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High Court, Holland J., 25 November 2024), para. 55; this includes documents before the decision-taker such as a Natura impact statement (NIS) – such matters are considered for AA purposes – 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. (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring)

para. 137. A court only decides points that are not academic, and that are properly pleaded and actually in dispute between the parties, and even then only when it is necessary and appropriate to do so: Friends of the Irish Environment v. Government of Ireland [2023] IEHC 562, [2023] 10 JIC 1904 (Unreported, High Court, 19 October 2023)

§117

. Relief whether by judicial review or otherwise should only be granted where the point is not academic or hypothetical, in proceedings brought by an applicant with appropriate standing who has normally been affected in some definite way by the impugned measure: Cahill v. Sutton [1980] I.R. 269 (O’Higgins C.J.; Henchy, Griffin, Kenny and Parke JJ. concurring); Mohan v. Ireland and the

torney General [2019] IESC 18, [2021] 1 I.R. 293, [2019] 2 I.L.R.M. 1, per O’Donnell J. (MacMenamin, Dunne, Charleton and O’Malley JJ. concurring)

pages 301-302; Odum v. Minister for Justice [2023] IESC 3, [2023] 2 I.L.R.M. 164 per O’Donnell C.J. 13 (Charleton, Woulfe, Hogan and Murray JJ. concurring); Sweetman v. Environmental Protection Agency [2025] IEHC 539 (Unreported, High Court, Holland J., 16 October 2025). Onus of proof 77. 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). (iii) 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. (iv) 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 appropriate assessment (AA)/ environmental impact assessment (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 14 (

1. v)(
2. vi)Court, 19 November 2025) (for example, in relation to proving that a decision-taker lacks expertise). Thus, apart from (
3. i)failure to consider something that the decisiontaker was autonomously required to consider, (
4. 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 non-precedential 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 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 15 (vii) (viii) 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. Scope of EIA 78. EIA only applies to projects specifically listed in the directive. In Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024), the Supreme Court rebuffed

tempts to read into the EIA directive projects that are not listed. Important as the specific type of project in that case was (solar farms), the decision illustrates a broader principle – EIA only applies to specifically listed categories of projects. This was a point also made by O’Moore J. in Kavanagh v. An Bord Pleanála [2020] IEHC 259 (Unreported, High Court, 29 May 2020). The order of 10 July 2008, Salvatore Aiello and Others v Regione Lombardia and Others, C-156/07, ECLI:EU:C:2008:398, which is belatedly relied on by the applicant in fact totally supports that position in that it finds that only projects specifically listed in the directive are covered (emphasis added): “Article 2

one point can be addressed

a later point in the process: per Lord Hoffman in R (Edwards) v. Environment Agency [2008] UKHL 22, [2008] 1 W.L.R. 1587, para 38; R. (Friends of the Earth Ltd) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212 (Lord Hodge and Lord Sales SCJJ.)

66 and 143; Cogent Land LLP v. Rochford District Council [2012] EWHC 2542 (Admin), [2013] 1 P & CR 2, Singh J. (paras. 111-126); No Adastral New Town Ltd v. Suffolk Coastal District Council [2015] EWCA Civ. 88, [2015] Env. L.R. 28 per Richards LJ. (Underhill and Briggs LJJ. concurring) (paras. 48-54); hence amendments to a plan under assessment can be introduced in the process, R. (Friends of the Earth Ltd) v. Heathrow Airport Ltd

67. (ii) “Deciding whether an effect of a project on the environment is ‘significant’ clearly requires a value judgment and carries the potential for cases to arise in which different decision-makers may legitimately reach different conclusions without it being possible to say that any of them has made an error in interpreting or applying 16 the term”: R (on the application of Finch on behalf of the Weald Action Group) v. Surrey County Council and others [2024] UKSC 20, [2024] 4 All E.R. 717, [2024] P.T.S.R. 988, [2024] 6 W.L.U.K. 315 per Lord Leggatt SCJ. (Lord Kitchin and Lady Rose SCJJ. concurring)

58 (emphasis added). (iii) Determining whether an effect is capable of being assessed, or whether it is a likely effect, is also evaluative: Finch

77-78. (

1. iv)Standard of assessment: AA must, by reference to best scientific knowledge, dispel all reasonable scientific doubt as to adverse effects on European sites (art. 6 habitats directive); EIA must be as complete as possible: judgment of 3 March 2011, Commission v Ireland, C-50/09, ECLI:EU:C:2011:109. (
2. v)As with any evaluative conclusion by a decision-taker, the AA evaluation is one in the first instance for the decision-taker: Lord Carnwath in R. (on the application of Champion) v. North Norfolk District Council [2015] UKSC 52, [2015] 1 W.L.R. 3170

para. 41; per Sales L.J. in Smyth v. Secretary of State for Communities and Local Government [2015] EWCA Civ 174, [2015] P.T.S.R. 1417

para. 83; judgment of 7 November 2018, Holohan v An Bord Pleanála, C-461/17, ECLI:EU:C:2018:883

para. 44; R. (on the application of Wyatt) v. Fareham Borough Council [2022] EWCA Civ 983, [2023] P.T.S.R. 1952, [2022], 7 W.L.U.K. 197, [2023] Env. L.R. 14 (Sir Keith Lindblom P., Singh and Males LJJ.) (vi) Ultimately it is for the national courts to carry out a thorough and in-depth examination of the scientific soundness of the AA: judgment of 7 November 2018, Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College van gedeputeerde staten van Limburg and College van gedeputeerde staten van Gelderland, joined cases C-293/17 and C-294/17, ECLI:EU:C:2018:882

para. 101. This may go beyond the mere review for reasonableness accepted in the UK: R. (Friends of the Earth Ltd) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212 (Lord Hodge and Lord Sales SCJJ.)

143. (vii) While the standard for the decision-taker’s carrying out of AA is removal of reasonable scientific doubt as to effects on the integrity of European sites by reference to their conservation objectives, and by the application of best scientific knowledge, that does not require the decision-taker to disprove “any effect whatsoever”, matters having “no appreciable effect”, or “hypothetical risk”: opinion of Advocate General Kokott of 29 January 2004 in Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij, paras. 102-106; judgment of 7 November 2018, Holohan v An Bord Pleanála, C461/17, ECLI:EU:C:2018:883

paras. 33–37; Holland J. in Heather Hill Management Company CLG v. An Bord Pleanála [2022] IEHC 146, [2022] 3 JIC 1603 (Unreported, High Court, 16 March 2022), citing R Mynydd Y Gwynt Ltd v. The Secretary of State for Business, Energy and Industrial Strategy [2016] EWHC 2581 (Admin), [2016] 10 W.L.U.K. 396, [2017] Env. L.R. 14 (

para. 259). Absence of reasonable doubt therefore does not mean “absolute certainty” (paras. 44, 58, 59, and 61 of the CJEU's judgment and paras. 102 to 108 of the Advocate General's opinion in Waddenzee, the judgment in Holohan

paras. 33-37, and Lord Carnwath in R. (on the application of Champion) v. North Norfolk District Council [2015] UKSC 52, [2015] 1 W.L.R. 3170

para. 41). (viii) It is settled law that the EIA directive 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). (

1. ix)Given the very wide scope of matters coming within EIA, an argument that any impact should not have been considered is presumptively implausible. In particular, potential and unmitigated impacts are required to be considered in the EIA process: Oxigen v. An Coimisiún Pleanála [2025] IEHC 632 (Unreported, High Court, 19 November 2025). Unchallenged previous decisions/ collateral challenges 80. Some relevant legal principles concerning unchallenged previous decisions include the following: (
2. i)There is almost unending authority to the effect that unchallenged decisions stand. A party is not entitled to engage in a collateral challenge to a decision 17 merely due to the making of a subsequent decision in the same matter. The fallacious contrary misconception was best described in U.T. (Sri Lanka) v. Secretary of State for the Home Department [2019] EWCA Civ 1095, [2019] 6 W.L.U.K. 379 by Coulson L.J. who referred

para. 38 to “the erroneous belief that every decision, no matter its provenance, nature or form, is always capable of being appealed or

least reviewed”. See also per Kelly J. in Goonery v. Meath County Council [1999] IEHC 15, [1999] 7 JIC 1501 (Unreported, High Court, 15 July 1999); Shell E & P Ireland Ltd v. McGrath [2013] IESC 1, [2013] 1 I.R. 147 (Clarke J.) (Denham C.J. and Fennelly J. concurring); Smith v. Minister for Justice and Equality [2013] IESC 4, [2013] 1 I.R. 294 (Clarke J.) (Denham C.J. and McKechnie J. concurring); A.S. v. Bangladesh [2015] IEHC 417 (Unreported, High Court, Stewart J., 7 July 2015); judgment of 17 November 2016, Stadt Wiener Neustadt v Niederösterreichische Landesregierung, C-348/15, ECLI:EU:C:2016:882; K.P. v. Minister for Justice and Equality [2017] IEHC 95, [2017] 2 JIC 2006 (Unreported, High Court, 20 February 2017); Gayle v. Governor of the Dóchas Centre [2017] IEHC 718, [2017] 10 JIC 2710 (Unreported, High Court, 27 October 2017); K.R.A. v. Minister for Justice and Equality [2017] IECA 284 (Unreported, Court of Appeal, 27 October 2017) per Ryan P. (Irvine and Hedigan JJ. concurring)

paras. 39 and 42; Sweetman v. An Bord Pleanála [2018] IESC 1, [2018] 2 I.R. 250 per Clarke C.J. (O'Donnell, MacMenamin, Dunne and O'Malley JJ. concurring); M.A. (Pakistan) v. Minister for Justice and Equality [2018] IEHC 95, [2018] 1 JIC 3011 (Unreported, High Court, 30 January 2018); per Hogan J. (Peart and Irvine JJ. concurring) in X.X. v. Minister for Justice and Equality [2018] IECA 124 (Unreported, Court of Appeal, 4 May 2018); A.A.D. (Somalia) v. Chief International Protection Officer [2018] IEHC 337, [2018] 5 JIC 1406 (Unreported, High Court, 14 May 2018); S.S. (Pakistan) v. Governor of the Midlands Prison [2018] IEHC 442, [2018] 7 JIC 1704 (Unreported, High Court, 17 July 2018); Express Bus Ltd v. National Transport Authority [2018] IECA 236, [2019] 2 I.R. 680, [2018] 7 JIC 1804 per Hogan J. (Birmingham P. and Irvine J. concurring); P.N.S. v. Minister for Justice & Equality [2020] IESC 11, [2024] 1 I.R. 566 (McKechnie J.) (O'Donnell, MacMenamin, Dunne and Charleton JJ. concurring); An Taisce v. An Bord Pleanála & Ors [2020] IESC 39, [2021] 1 I.R. 119 per McKechnie J.

§153(Clarke C.J., O’Donnell, Dunne and Baker JJ.

concurring); Narconon Trust v. An Bord Pleanála [2021] IECA 307, [2021] 11 JIC 1701 (Unreported, Court of Appeal, Costello J. (Woulfe and Collins JJ. concurring), 17 November 2021)

§45; Minister for Justice v. Naoufal Fassih [2022] IESC 10 (Unreported, Supreme Court, O’Malley J., 18 February 2022) (Mac

Menamin, Charleton, Baker and Hogan JJ. concurring); Killegland Estates v. Meath County Council [2022] IEHC 393 (Unreported, High Court, 1 July 2022)

§42; Krikke v.

Barranafaddock Sustainable Electricity Ltd [2022] IESC 41, [2023] 1 I.L.R.M. 81, [2022] 11 JIC 0303 per Hogan J.

§§87-95 (O’Donnell C.J., Charleton and Murray JJ.

concurring); Marshall v. Kildare County Council [2023] IEHC 73 (Unreported, High Court, 17 February 2023)

§39(v); Jones v.

South Dublin County Council [2024] IEHC 301 (Unreported, High Court, 11 July 2024), para. 183; Ballyboden Tidy Towns v. An Bord Pleanála IV (No. 2) [2025] IEHC 277 (Unreported, High Court, 16 May 2025). (ii) The principle against collateral challenge applies even in an EU law context: Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 I.R. 360 (Keane C.J.) (Murphy, Murray, McGuinness and Geoghegan JJ. concurring); Rachki v. Governor of Cloverhill (Unreported, Supreme Court, 5 December 2011) ex tempore (Fennelly J.). Preliminary issues

1. The parties’ positions on preliminary issues as recorded in the statement of case are summarised as follows: “Applicant’s Position
2. None raised in the Statement of Grounds. Commission’s Position
3. N/A Notice Party’s Position Pleading Objection
4. The Amended Statement of Grounds does not state precisely the grounds of challenge, or provide proper or adequate particulars of those grounds, or identify the facts or matters relied upon as supporting those grounds, as required by Order 103 rule 14

§§15

, 37-43; 51-54; 60-66) comprise collateral challenges to the Kilfenora WWTP Permission and should be refused on that basis.” 82. As regards pleadings I will assume for the sake of argument that the points are acceptably clear so I don’t propose to rest the decision on a contrary conclusion. Had it been necessary to do so I would have been inclined to think that

least some of the complaints are not sufficiently particularised, but I don’t need to make any concluded decision on that given the result overall.

1. However, the applicant is not entitled to raise any point which is based on calling into question the original permission from
2. That in fact covers the issues of most central concern to the applicant. In that regard in particular: (i) As to sub-ground §15, this challenges an aspect of the WWTP (the stormwater overflow

the boundary of the WWTP site) that is not the subject of these permissions. Assessment obligations are extensive but not so extensive as to include the effects of already-consented projects that are now being amended in some other respect, save insofar as cumulative or in-combination effects arise. The applicant hasn’t overcome the onus of proof to demonstrate that. (

1. ii)As to sub-grounds 37-43, the complaint here is about lack of assessment of the site generally in terms of flooding, in respect of which the same point arises save where an applicant demonstrates relevance to the amendment applications, which this applicant hasn’t done. (iii) As to sub-grounds 51-54, these also complain about impacts of the WWTP generally as opposed to these amendments. (
2. iv)As to sub-grounds 60-66, these are similar in nature. Domestic law issues Core ground 2 – invalid application 84. Core ground 2 is: “2. The impugned decisions of the Coimisiún are invalid because it failed to carry out its statutory duty to correctly assess the applications for unauthorised development and to declare the application invalid in accordance with s.34

Core Ground §2 and §16 to §22 inclusive Applicant’s Position

1. The Respondent did not address itself to the constructed development or to the Applicants submissions clearly pointing out how that development strayed materially from that granted planning permission. In that regard it did not consider its jurisdiction to carry out an appeal in light of the submissions before it.
2. It is well established that a planning assessment, either by a PA or the Coimisiún, lists previous planning permissions in relation to the subject site and of those in close proximity. There is an inherent duty to establish that the existing situation is materially as in any granted permission. Again it is well-established if non-compliant or unauthorised development exists the decision making body will return the application on the basis that non-compliant or unauthorised development cannot form the basis for regularisation through a new application in the absence of a retention application. This is of all the more significance when submissions identify the non-compliance and unauthorised elements.
3. The Applicant’ submissions and objections were not on the merits of the proposal. The Applicant has long campaigned for an appropriate wastewater treatment system for this village. His objections were founded in verifiable environmental concerns some of which had been previously recognised with conditioned mitigation in the parent permission.
4. Four core environmental issues exist and were not addressed despite reasonable detailed identification in submissions. Firstly, the percolation area was not constructed as designed and conditioned. The Applicant provided evidence of where the construction departed from that conditioned in permission and even provided evidence of the Notice Party discussing those departures which were not inadvertent but premeditated. He also provided evidence that the original environmental assessment & testing of the soil in the location of the percolation area was declared by the Design/Build Contractor to be an incorrect assessment yet that assessment formed the basis for the parent planning permission. Instead of seeking permission on the basis of the newly discovered facts the Notice Party 19 chose to carry out development of its own decision without environmental or planning oversight.
5. Secondly, there was no assessment of the Stormwater overflow

the wastewater treatment plant. There was no application in either the parent permission or in these subject applications to vary anything with the stormwater overflow. I provided evidence that the mechanism and pipework was altered. Furthermore there was no assessment of the impacts of this SWO, which is recognised to discharge directly to groundwater, on downstream dependencies, whether private potable wells or the connected European Sites. 65. For the benefit of the Court, there were two direct discharges to groundwater associated with the Kilfenora wwtp. The primary discharge to a swallow hole has always been remote from the wwtp by about approximately 750m

what is identified in these proceeding as the Percolation Site. The other SWO is

the wwtp and it too is a direct discharge to groundwater via a separate swallow hole.

1. Thirdly, there was no assessment, of the likely impacts on downstream private wells or connected European sites from the unauthorised temporary wwtp installed on the subject site for over 12 months and which discharges directly to the Ballybreen swallow hole without planning permission or a discharge authorisation.
2. Fourthly, The Applicant in submissions identified that significant flooding persists

the percolation site which did not exist before these works commenced. The status quo remains that the discharge of the treated effluent discharges directly to the Ballybreen swallow. SWO and/or Emergency Overflows discharge

the wwtp swallow hole. I submitted that the works impacted on the hydrology and particularly the efficacy of the long established Ballybreen swallow hole. I provided evidence of the substantial flooding which did not previously occur

this location. The Notice Party’s consultant recognised that the works may have impacted on the swallow hole. That was not assessed in the NIS or by the Respondent in its assessment, determination and decision.

1. These four issues go to the core of what was lacking, and identified by the PA’s Environmental Assessment Officer to be lacking, in the submitted NIS. There was not followup by the PA or the Respondent to address that identified lacuna.
2. A reasonable observer would see that the Notice Party did not include any detail in its NIS of the works carried out on foot of permission 19/31

tempt to justify the removal of the soil and its replacement with imported crushed stone, the Notice Party’s expert states ‘Once the effluent meets the karstified limestone bedrock it is expected to move through the weathered highly permeable epikarst fractures’. That expectation has been demonstrated not to exist

the location of the ironically named percolation beds’. Commission’s Position 74. The Commission’s Decisions are not invalid as alleged

Core Ground 2. The allegations advanced

Core Ground 2 are misconceived. The Applicant’s case is founded on an unproven assertion that unauthorised development has taken place. No such fact has been established by evidence or by any court determination. In the absence of any judicial finding of unauthorised development, the Applicant’s position amounts to speculation/mere assertion rather than having a proven legal or factual basis. Furthermore, the Commission, in determining planning appeals such as those

issue herein, is not required to investigate or adjudicate on alleged unauthorised development. See Murphy v. An Bord Pleanála [2009] IEHC 38

§3.4, per Feeney J.

Responsibility for planning enforcement rests with the planning authority in the first instance, and any definitive determination as to whether development is unauthorised lies with the courts, typically in enforcement proceedings such as under s.160 of the 2000 Act. No such determination existed in respect of the alleged unauthorised development relied upon by the Applicant. 75. Moreover, the Applicant’s assertions by reference to and/or in purported reliance on section 34

issue do not come within the embrace of s.34

§39et seq) - simply does not arise here. For completeness, s.37

§7

.2.3 of the Inspector’s Report dated 25 June 2025, ABP322234-25) was correct to conclude that the Commission has no planning enforcement role in relation to same and that the contested allegations raised by the Applicant in this regard were outside the scope of the appeal. As regards the Site Access/Internal Roads Permission, the Inspector was likewise correct in reaching the same conclusion (

§7.2.3 of the Inspector’s Report, also dated 25 June 2025, ABP-322250-25).

No error has been identified by the Applicant in relation to these paragraphs of the respective Inspector Reports

all. In addition, in relation to the Gravity Effluent Pipe Permission, the Inspector correctly advised (

§7

.2.4 of the Inspector’s Report dated 25 June 2025 (ABP-322234-25)) that the appeal should be assessed by reference to the development proposed in the current application, and that it was not appropriate to reopen or challenge the merits of development already permitted under PA Ref. 19/31 and Ref. 305756-19. The same reasoning is reiterated

§7

.2.4 of the Inspector’s Report in respect of the Site Access/Internal Roads Permission (ABP-322250-25). No error of law or irrationality has been identified in these conclusions, which are grounded in the Applicant’s own submissions as recorded by the Inspector

§§7.2.3–7.2.4 of each Report.

1. Furthermore, the Inspector also accurately summarised the concerns raised by the Applicant regarding the earlier permitted development, including soil suitability, WWTP design capacity, the NIS, enforceability of conditions, and polishing filter design (see §7.2.3 and §7.2.4 of each Inspector’s Report). The claim that there was any misrepresentation of the Applicant’s position is therefore unfounded. Notice Party’s Position
2. The Applicant’s stated position with respect to Core Ground 2 in the Statement of Case goes significantly beyond the pleaded case in Core Ground
3. The Notice Party will object to any

tempt by the Applicant to rely on the matters identified above but not pleaded with respect to Core Ground 2 in support of Core Ground 2

the hearing of the proceedings. 79. Without prejudice to that position, Core Ground 2 should be refused. Section 34

all. The Inspector correctly concluded with respect to each of the Proposed Developments that the allegations of unauthorised development relied on by the Applicant before the Commission fall outside of the scope of the appeal to be determined by the Commission. Those allegations also fall outside the scope of the issues to be determined by the Court. For the avoidance of doubt, and without prejudice to that position, the premise of Core Ground 2, which is to the effect that UÉ has carried out unauthorised development, is denied. No expert or other evidence capable of establishing any such unauthorised development was adduced either before the Commission or in these proceedings. 21

1. The Applicant’s contentions with respect to the Stormwater Overflow which he now invokes in support of Core Ground 2 were pleaded with respect to Core Grounds 1 and
2. Strictly without prejudice to that position, those contentions are misconceived and cannot ground any challenge to the Commission Decisions under challenge. The Stormwater Overflow was constructed in 1978 and altered by the Kilfenora WWTP Permission. This was fully assessed in the Kilfenora WWTP Decision which has not been challenged, with respect to any alleged failure to proper assess the Stormwater Overflow or

all. The Commission Decisions under challenge did not grant permission for the Stormwater Overflow or alter the Stormwater Overflow in any way and these pleas therefore comprise a collateral challenge to the Kilfenora WWTP Permission. Similarly the Applicant’s contentions with respect to flooding which he now invokes in support of Core Ground 2 were pleaded with respect to Core Grounds 1 and 7 and also comprise a collateral challenge to the Kilfenora WWTP Permission. Strictly without prejudice to that position, no expert or other evidence capable of establishing the contentions relied on by the Applicant with respect to the Stormwater Overflow or flooding was adduced either before the Commission or in these proceedings. Those arguments should be rejected.” 86. Section 34

least for the purposes of the present proceedings. An allegation of unauthorised development (without more) clearly isn’t sufficient to trigger anything – that would be unworkable. If a planning decision-taker comes to the view that an underlying or previous development was actually unauthorised, public policy would favour the view that a new development could be consented if it did not facilitate or rely on the previous illegality. A new development that perpetuates an illegality would generally only be permissible if the illegality is being addressed – either by a condition as to full rectification, by the grant of retention permission or by a conditioned compensating measure if full rectification is not possible or appropriate. But if the position as to legality of the underlying development is not sufficiently clear on the materials before the decision-taker, then the latter does not have an obligation to undertake an investigation on this subject, which is normally within the remit of the planning enforcement process. If in that event the decision-taker does not come to a conclusion that the development is unauthorised, the onus is on a judicial review applicant to demonstrate evidentially both that the original development is in breach of planning law and that there was consequent legal infirmity in allowing an amendment or further development that perpetuated the illegality. The law on this subject has been somewhat piece-meal (see the full suite of cases set out helpfully by David Browne in Simons on Planning Law

pp. 318321) but I think the foregoing represents the best synthesis of those rather than taking any one case (e.g., Murphy v. An Bord Pleanála [2009] IEHC 38 (Unreported, High Court, Feeney J., 30 January 2009) of high-watermark permissiveness towards the commission out of a wider legal context and presenting it as being the only relevant standard. (v) Nor is an amendment of a permission a vehicle to reopen or challenge the merits of development already permitted, and the inspector was correct to proceed on that basis. That does not mean that the interaction between the parent permission and the amendment is not an essential consideration, or that problems with the parent permission are irrelevant in that context. But no failure to consider such interactions to the legally required extent has been proven – the decision and inspector’s report demonstrate that issues raised by the applicant were considered by the decisiontaker. Core ground 7 – regard to submissions 88. Core ground 7 is: 22 89. “7. The impugned decisions are irrational in that the Respondents considered matters which are irrelevant and did not consider relevant and important planning and environmental matters raised by the applicant. The Respondent failed to have mandatory regard, or proper regard, to the submissions of the applicant as required in s.34

Core Ground §7 and §37 to §59 Applicant’s Position 81. The Respondent considered matters which were irrelevant in the circumstances and ignored matters of material relevance submitted to it. The Respondent accepted without questioning the notice Party’s contention that there was always flooding

the percolation site. It did not consider referencing submitted by this Applicant where in the parent permission in which the Notice Party submission on several occasions that the wwtp caretaker declared that he had never seen flooding

the proposed location for the percolation beds.

1. If the Respondent paid the slightest consideration to this it should have enquired further as to what changed in the interim, unless of course it did not want to consider that appalling vista.
2. The Notice Party’s FRA in these subject applications identifies that its FRA in the 19/31 application was flawed. It now identifies well recorded flood events near the wwtp. Therefore its o[w]n experts have identified shortcomings or errors in its 19/31 NIS, FRA and AASR. Furthermore its own experts have determined after the 19/31

the wwtp directly to groundwater through a swallow hole would have on private potable wells downstream. This concern was submitted to the Respondent but ignored. 86. The Respondent considered information provided by the Notice Party regarding surface water quality

Poplar Bridge in excess of 9km downstream but neglected to consider submitted details of the Clooneen (Clare)_010 IE_SH_27C030300 which is only 600m from the proposed development to have a poor WFD status.

1. It accepted without question the Notice Party’s submission that the groundwater status was good notwithstanding the submission that the groundwater is not tested and notwithstanding the Applicant’s submitted evidence of proven contamination of downstream private wells from discharges from this wwtp. Commission’s Position
2. The Commission’s Decisions are not invalid as alleged

Core Ground 7. There is no substance to any of the assertions made by the Applicant

Core Ground 7. The claim of irrationality has plainly not been made out. Whereas the Applicant does not properly engage with it, there was ample information (prepared by competent experts) before the Commission on both planning applications on which the Commission was entitled to rely on in reaching both of its impugned Decisions. Core Ground 7 incorrectly conflates irrationality with alleged regard to irrelevant considerations and failure to consider relevant considerations, and the alleged irrelevant/relevant considerations are not properly identified, with the consequence that the claim is inadequately particularised contrary to Order 84 rule 20

§8

, §53; Wild Ireland Defence CLG [2025] IEHC 726

§134

, §160(v); O’Donnell [2023] IEHC 381

§39

et seq) and the Applicant has patently failed to discharge the onus to show a lack of consideration of his submissions by the Commission. As noted above, consideration of the Applicant’s submissions is explicitly recorded in the impugned Decisions and has not been disproved by the Applicant. The Applicant in effect contends, based only on mere assertion, that contrary to its express statement in the impugned Decisions, the Commission ignored submissions which it has received from the Applicant. That contention is incorrect. The Applicant has produced no evidence, direct or inferential, of that proposition and so the point fails (see e.g., Nagle View [2024] IEHC 603

§90

). Further, the Applicant’s complaint of no engagement (which the Commission rejects as unfounded) demonstrates that the substance of its complaint is a merits-based disagreement; the Applicant is not happy that his submissions were not accepted by the Commission. However, the fact that a person’s submissions were not accepted does not evidentially establish that no regard was had to them (Nagle View [2024] IEHC 603

§89). Also, as Farrell J.

stated in Ó Murthuile [2025] IEHC 498

§49

, ‘The Applicant is not entitled to point-by-point discussion of his submissions and nor is he entitled to reasons for the reasons’. 90. Insofar as the Applicant

Core Ground 7 and/or in the associated pleas

§37

-§59 purports to challenge the impugned Commission Decisions by way of merits-based disagreement with, and/or substantive questioning of, the validity of the grant of permission bearing ref. ABP-305756-19 (PA reg. ref. 19/31) (whereby the Commission granted planning permission to the Notice Party for upgrade works to the Kilfenora WWTP and for the construction of a percolation area

Kilcarragh and Ballybreen, Kilfenora, Co. Clare, subject to 8 no. conditions), it is not open to the Applicant to do so. Any such

tempt by the Applicant to question the validity of the Commission’s Decision under ABP-305756-19 is an impermissible, out of time, collateral challenge which cannot be maintained. 91. Furthermore, in both Commission Decisions, the issue of flooding was adequately considered and comprehensively assessed, and the conclusions reached by the Inspector and the Commission regarding same were objectively supportable by reference to the detailed information that was before the Commission relevant to the issue. In both Commission Decisions, the conclusions reached by the Inspector (and by the Commission in granting permission generally in accordance with the Inspector’s recommendations) on the issue of flooding are valid and objectively supportable by reference to the information that was before the Commission on both planning applications - in particular the reports and information submitted by the Notice Party and the information and views submitted by the planning authority – being information the Commission and Inspector were entitled to prefer. In this regard see e.g. the extracts of the relevant documents quoted

§54(i) – (vii) of the Commission’s Statement of Opposition.

On a correct reading of the information that was before the Commission across both appeals, it can be seen that the Notice Party, planning authority, and Inspector all rely on the Specific Flood Risk Assessments (SSFRA) submitted by the Notice Party to conclude that the proposed works will not increase flood risk. It is apparent from the information that was before the Commission that, in essence, the proposed infrastructure (gravity effluent pipe, percolation beds, and road works) will not worsen flooding; instead, it will reduce peak loading on the swallow hole by diverting and dispersing flows over a wider area, with

tenuation and infiltration benefits. The small scale of any loss of flood storage from road raising is considered negligible (around 0.12% in one case), and permeable surfaces and SuDS measures are said to further limit impact. Overall, the planning authority and the Inspector (and the Commission) concluded that the proposed developments are acceptable from a flood risk perspective and will not significantly affect flooding on-site or on neighbouring lands. That conclusion is objectively supported by the information that was before the Commission. The Applicant’s assertions and impermissible, merits-based disagreement

Core Ground 7 in relation to flooding are not established evidentially. Simply put, the Applicant has failed to demonstrate any irrationality, legal infirmity or invalidity in either of the Commission’s Decisions. 24 92. As to AA, as regards both Commission Decisions, the AAs conducted were lawful and carried out in accordance with the requirements applicable to same. The non-expert, mere assertions of the Applicant (who is the litigant in this action and is not independent) are not a basis for and do not establish any flaw or legal infirmity in the AAs that were carried out by the Commission. The correct factual position is that the planning authority

first instance and the Commission on appeal both carried out an AA and were each satisfied as to the adequacy of the information that was before them for the purposes of undertaking such assessment. Both Commission Decisions expressly record (see page 3 of both Orders) that the Commission considered that the information before it was sufficient to undertake a complete assessment of all aspects of the proposed developments in relation to the identified European sites’ Conservation Objectives using the best scientific knowledge in the field. 93. Insofar as concerns what was stated in the Council’s Environmental Assessment Officer’s internal, technical report, the Applicant’s case is misconceived and does not reflect a correct understanding of that report or the Commission’s consideration of same. For example, the Inspector noted in both Reports that the Council’s Environmental Assessment Officer (EAO) had identified that the NIS ‘looks

both P.25-60011 & P.25-60013 in isolation and does not take into consideration any impacts associated with P.19-31 even within the cumulative and in-combination assessment of other Plans and Projects which is not in keeping with the requirements of the legislation in terms of Appropriate Assessment’). See §3.2.2, page 6 of the Inspector’s Report in ABP-322234-25 and §3.2.2 pages 6-7 of the Inspector’s Report in ABP-322250-25 which both summarise the aforementioned quote from the EOA report. What the Applicant’s pleaded case

Core Ground 7 fails to refer to, still less properly engage with, however, is the fact that, having identified this as an issue, the Council’s EAO went on to assess both of the subject planning applications on their own basis and in combination with the as built Kilfenora WWTP (ABP-305756-19) and concluded that subject to mitigation measures, there would be no adverse effects on the integrity of the relevant European Sites (either directly or indirectly), alone or in-combination with other plans or projects. It was in that context that the Council’s Planner in her Report prepared in respect of both planning applications adopted the conclusions of the EAO, and on that basis, the Council, as the Competent Authority, made the section 177V (AA) Determinations it did. Further, as was recorded in both Inspector’s Reports (see section 6.5 of both Reports), the Council confirmed to the Commission that it concurred with the ‘the observation that the WWTP and Percolation Site was considered as part of the baseline scenario, and that the potential for adverse effects on European Sites can be excluded on the basis of the highly treated nature of discharge, the dilution afforded by intervening ground and surface water and water quality monitoring data from the River Fergus, and local group water schemes.’ 94. As regards WFD, in both impugned Commission Decisions, the Inspector considered groundwater vulnerability, mitigation measures, and compliance with environmental standards. It was not accepted by the Inspector or the Commission that discharge of untreated wastewater to groundwater formed part of the proposed developments under consideration, nor has the claim advanced by the Applicant

the said pleas been established evidentially. In this connection, the Applicant relies on his own assertions and supposition, which do not disclose any deficiency or lacuna in the WFD assessment carried out by the Inspector (with which the Commission agreed in granting permission generally in accordance with the Inspector’s respective recommendations). As regards the WFD, by reference to the evidence that was before the Commission when making its Decisions, there was no evidence that the granting of permission for the proposed developments may cause a deterioration of the status of a body of surface water or jeopardise the

tainment of good surface water status or good ecological potential and good surface water chemical status such as to oblige the Commission to refuse permission. The Applicant has not established evidentially anything to the contrary. Furthermore, contrary to what the Applicant appears to assert in his pleaded case, the existence of boil notices does not, of itself, establish WFD status deterioration or a causal link to the proposed developments

issue in this case. The Inspector’s conclusions for WFD purposes (with which the Commission agreed) were open to the Commission based on the information that was before it. Notice Party’s Position

1. The Applicant’s stated position with respect to Core Ground 7 in the Statement of Case goes significantly beyond the pleaded case in Core Ground
2. The Notice Party will object to any

tempt by the Applicant to rely in the matters identified above but not pleaded with respect to Core Ground 7 in support of Core Ground 7

the hearing of the proceedings. 96. Strictly without prejudice to that position, the Applicant’s claim with respect to flooding comprises an impermissible collateral challenge to the Kilfenora WWTP Permission and should be refused on that basis. Further and strictly without prejudice to that position, 25 insofar as the Applicant’s claim with respect to flooding addresses the Commission Decisions under challenge in these proceedings

all – as opposed to the Kilfenora WWTP Permission – they comprise an impermissible merits-based challenge to the Commission’s assessment of flooding in the Commission Decisions. Those pleas do no more than repeat submissions made to and rejected by the Council and the Commission, and with respect to which the Applicant has adduced no evidence, still less expert evidence, either before the Commission or in these proceedings. The conclusions reached by the Commission in the Gravity Effluent Pipe Application and in the Access Roads Application are set out in detail in UÉ Statement of Opposition and it is evident that the Commission was entitled to reach those conclusions having regard to the evidence that was before it. 97. For the avoidance of doubt, the balance of the pleas in Core Ground 7 in the Amended Statement of Grounds that are not addressed by the Applicant in the Statement of Case should be refused on the grounds outlined in UÉ’s Statement of Opposition and written legal submissions.” 90. The basic reason why this point fails is: (

1. i)Insofar as the applicant’s arguments go beyond the pleaded case these do not require to be considered as they do not arise. (
2. ii)There is a presumption that the decision-taker has had regard to matters such as submissions if she so states. The applicant has not overcome the onus to demonstrate the contrary. Lack of narrative discussion does not equate to lack of consideration. (iii) The complaint of lack of “proper” regard is a merits complaint. (
3. iv)It is not open to the applicant to collaterally challenge the parent permission via an amendment. (
4. v)The issue of flooding was the subject of assessments submitted by the developer which were considered. The applicant has not discharged the onus of proof to show that such consideration or the EU law assessment more generally was legally inadequate. EU law issues Core ground 1 – inadequate assessment 91. Core ground 1 is: “1. The impugned decisions of the Coimisiún are invalid because the determinations required to be made in accordance with s.177V

§1and §7 to §15 inclusive.

Applicant’s Position

1. The Applicant raised concerns before the PA and the Coimisiún on appeal inter alia that the NIS did not contain all the baseline information for the decision maker to make a fully informed AA determination as required under S.177V.
2. The PA Executive Environmental Officer in her assessment of the NIS submitted noted that the NIS had no information regarding the as constructed development under the parent permission 19/31 (ABP-305756-19).
3. The PA initially and the Respondent made s.177 determinations without making enquiries of having the necessary information regarding the as constructed development including aspe