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2026 IEHC 286

THE HIGH COURT PLANNING & ENVIRONMENT BETWEEN [2026] IEHC 286 [H.JR.2025.0000595] JOHN WALSH AND AN COIMISIÚN PLEANÁLA AND ENDA QUINN AND OONAGH MCELHINNEY (BY ORDER) Date of impugned decision: Date proceedings commenced: Date of main hearing: Date draft judgment circulated: APPLICANT RESPONDENT NOTICE PARTIES 20 March 2025 6 May 2025 3 March & 27 April 2026 29 April 2026 “It is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon … factual conclusions …”: per Lady Hale in R (Cart) v. Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 at para.

  1. JUDGMENT of Humphreys J. delivered on Friday 8 May 2026
  2. As the Supreme Court has recently emphasised (Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, 25 March 2026) at para. 1 per Donnelly J.), judicial review “is not concerned with the merits of the decision; it is concerned with its legality” (see also per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 at 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 at p. 743). In Amariei at para. 96 per Donnelly J., the Supreme Court took the opportunity to re-emphasise that “the onus of proof must lie on an applicant for judicial review”. And in a number of decisions, the Supreme Court has emphasised that in effect the law does not favour unworkable interpretations (see Waltham Abbey/Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (§43 per Hogan J.; MacMenamin, Charleton, O’Malley and Baker JJ. concurring) and further caselaw referred to below). Applying those principles here, while one can make a case in favour of the merits of the applicant’s proposed glamping development here, the question is whether illegality in the refusal has been demonstrated given that the major flaw, as seen from the commission’s point of view, in the unsuitability of the development site from a vehicular access perspective. That isn’t something that readily lends itself to being addressed by conditions or reconfiguration of the development, so far as I could immediately see, and the parties didn’t volunteer too many promising avenues in that regard either. That situation is unfortunate for the applicant, and I appreciate his position as someone wanting to provide a business on his property for which he anticipates some demand, but the question for the court is whether the commission’s rejection of the application has been demonstrated to be unlawful. Geographical context
  3. The proposed development (https://www.pleanala.ie/en-ie/case/319124), as per the submitted public notices, comprises the change of use from residential to recreational camping site and the construction of six cabins for the purpose of short stay accommodation, a gravel access path, waste-water treatment system and ancillary site works. The gross floor area of the proposed works is stated as being 180 m
  4. Water supply is served by an existing well. Proposed wastewater management includes the provision of a Kingspan Biodisc system. Site access for potential guests is via water taxi across the lake. A Natura impact statement (NIS) was submitted to the planning authority with the application.
  5. The site, which has a stated area of 0.410 ha, is situated circa 6.2 km to the north of Killaloe on the western shore of Lough Derg, within the townland of Rahena More, Ogonnelloe, Co. Clare. The overall holding contains a detached single storey dwelling with detached garage. The property is served by a gated vehicular access on the R
  6. The front boundary of the site is formed by a block wall and timber fence. A jetty with two berths is located to the north-east of the site. The entrance to the site is approximately at: https://maps.app.goo.gl/RsDrUMForgZydwzr
  7. Facts
  8. On 16 June 2023, the applicant submitted an application to Clare County Council seeking planning permission for the development. In addressing the reason for the decision by the 2 commission to refuse a previous application for similar glamping accommodation with proposed vehicular access and car park, due to a contravention of objective CDP 8.5 of the Clare County Development Plan 2017–2023 (the old CDP) aimed at protecting the carrying capacity of strategic regional roads such as the R463 and a finding of traffic hazard, the application cover letter from HRA Planning stated the following: “There is an existing access point onto the R463 Strategic Regional Road to serve the existing residential dwelling on site. It is not proposed to use this access point to serve the proposed development. The proposed development is car-free with access only permitted via water taxi or bicycle or to those walking/ trekking in the area. It is thus submitted, that Objective CDP 11.14 is no longer relevant in the context of the development proposal. The proposed development, at operational stage, would not result in increased use of the existing access point onto the R463 and would not result in additional traffic movements at this location.”
  9. The council sent a request for further information on the NIS submitted with the application, and in relation to the proposed travel arrangements for the site. A response to that request was prepared by the applicant and received by the council. The response included an updated NIS. In the cover letter from Roy O’Shea, architect, the applicant’s response to the query arising from the proposed transport arrangements is set out as follows: “With regards to the efficiency of the proposed travel arrangements of same we see no issues arising for the long-term sustainability as there is good public transport available passing the campsite and the water access will be the main attraction for the campsite, each booking will automatically include arrival by boat and departure by boat. Bicycles will be available at the campsite along with canoes and paddle boards. With regards operating the campsite, I intend to fully operate and run the campsite myself full time. The visitors to the campsite will be people who want to get away from the hustle and bustle of life including driving, also people who have a keen interest in the outdoors and exploring what Lough Derg has to offer. CCTV will cover the campsite, the entrance to the campsite and entrance to existing dwelling. CCTV will be in operation 24/7 with up to sixty days recording available which can be viewed by Clare County Council on request.”
  10. The council granted permission for the proposed development in a decision dated 2 February
  11. Condition 6 of the grant of permission stipulated access to the glamping units had to be in accordance with the proposals received by the council outlined above.
  12. Two third parties, who had made submissions opposing the development to the council, lodged appeals to the grant of permission with the commission on 22 and 23 February 2024 respectively. The council made observations on the appeals by letters dated 19 and 27 March 2024 respectively. The applicant made an observation on the appeals to the commission by letter dated 13 March
  13. The commission appointed an inspector in the ordinary course to consider the application, to conduct a site investigation and to prepare a report with recommendations for the consideration of the commission.
  14. A site inspection took place on 12 February 2025, although, perhaps not ideally, the inspector did not request access to the site itself but rather viewed it from the outside.
  15. The inspector prepared a report, dated 25 February
  16. The inspector assesses “Transport Matters” at inter alia §7.7 of the report and acknowledges that a contravention of objective CDP 8.5 of the old CDP – in place at the time of the applicant’s prior application was the sole reason for the refusal of same by the commission. The report further acknowledges that “The proposal, as stated above, provides for a car-free development with arrivals to the campsite by boat, bus, cycling or walking.” The inspector then assessed transport matters at §§7.7–7.14 of the report and makes a finding that “it has not been adequately demonstrated to me that such a proposal would not lead to an intensification of the existing entrance on site and subsequent increase in traffic on this strategic route…”.
  17. The inspector goes on to find that the proposal would result in increased traffic on the R463 in breach of policy objective CDP 11.14 of the CDP, which broadly mirrors objective CDP 8.5 of the old CDP, and recommends that permission be refused.
  18. The commission direction dated 14 March 2025, outlined that the commission decided to refuse permission generally in accordance with the recommendation of the inspector. The impugned order was then made on 20 March
  19. Procedural history
  20. The applicant issued proceedings on 6 May 2025, by way of an originating statement of grounds and an affidavit sworn by the applicant.
  21. The applicant was granted ex parte leave to apply for judicial review on 26 May
  23. The matter was listed for mention on 30 June 2025 for directions. 3
  24. On 3 November 2025, the matter was listed to fix a date, and a hearing date of 3 March 2026 was assigned.
  25. The respondent filed a statement of opposition and verifying affidavit of Mr Robert Brophy on 4 November
  27. The applicant delivered its written legal submissions on 23 December
  29. The matter was listed for callover on 9 February 2026, although the respondent’s submissions were outstanding at that point.
  30. The respondent delivered its written legal submissions on 17 February
  32. The matter was listed on 23 February 2026 for callover, and papers were in order on that date.
  33. The matter was heard on 3 March
  34. At the hearing it emerged that the successful appellants to the commission had not been given notice of the proceedings. That omission is inappropriate – someone whose appeal results in the decision remaining unchanged doesn’t necessarily suffer irreparably by reason of lack of notice of such a challenge, but someone who has emerged victorious as a result of their application or appeal being allowed shouldn’t read about the victory being taken away from them when they open the newspapers. Such a person is an affected party who requires to be served with proceedings in any event, but in fact Practice Direction HC137 now requires all persons whose appeals resulted in a contested decision to be put on notice, although that was subsequent to these proceedings being issued. The matter was then adjourned for mention to 9 March 2026 to enable proper service to be put in hand.
  35. Following service on the appellants to the commission, there was no response from Ms McElhenny. Ms Quinn put forward some views in writing but did not formally participate in the proceedings. The applicant then wanted to put forward evidence that the new owners of the adjoining property (to whom Ms Quinn sold her lands) did not share her objections.
  36. When the matter returned to court for resumed hearing on 27 April 2026, this affidavit was accepted on a de bene esse basis for what it is worth, simply as a statement of fact. The two appellants to the commission were formally joined as notice parties for procedural correctness and in case there would be any future change in position as to getting involved in the proceedings.
  37. Judgment was reserved at the end of that hearing. I would like to record my thanks to all of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have previously sought to make clear, insofar as any points advanced are not being accepted in this or any other given judgment, that is solely to do with the inherent merits of such points and is no reflection on those instructed to convey such points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to all concerned.
  38. On 29 April 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.
  39. 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: (i) informing the court as to whether a formal judgment is required, and if so on what issues; (ii) informing the court as to whether a judgment might be oral or written or partly in both modes; (iii) any typographical, factual or legal errors in the decision; (iv) any redaction of personal information that the party wishes to request; (v) in the event that the court proposes to place pivotal reliance on any authority or material not previously adverted to, as opposed to where such material merely reinforces a point that the court was making in any event, any comment as to why such material should not lead to the proposed conclusion; identifying points that the court proposes to address but that the parties consider it unnecessary to address; (vi) requesting the court to decide a point that, while unnecessary to decide, is one the party considers could beneficially be decided; (vii) identifying significant procedural, factual or legal points that the party considers that the court was required to address but has not addressed or not provided reasons for; and (viii) 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.
  40. It is then entirely a matter for the court as to whether to list the matter for mention, or whether to simply give judgment with or without amendment to respond to any such comments or for any other reason that appears appropriate to the court. Any judgment may be given without 4 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 at 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) at 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).
  41. 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 Attorney 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,

(2006)150 S.J.L.B. 603 (Smith J.); R. (Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, [2022] 1 W.L.R. 1915, [2022] 4 All E.R. 599 (Sir Geoffrey Vos MR; Davies and Dingemans LJJ. concurring); Public Institution for Social Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368, [2022] 3 WLUK 291, [2022] B.L.R. 349 (Carr LJ; Jackson and Simler LJJ. concurring); Itkin v. Wood [2023] JRC 101 (Unreported, Royal Court of Jersey, 22 June 2023). The contents of this paragraph constitute an immediately effective direction of the court to the parties and anyone having notice of the draft judgment with effect from the date of circulation of the draft. 29. The deadline for such comments from the parties was to be 16:00 on Tuesday 5 May 2026. The applicant made some helpful clarifying points. The commission pointed out a typographical error. Relief sought 30. The reliefs sought are as follows: “
(1)An Order of certiorari, by way of judicial review, to remove for the purposes of it being quashed the Order of the An Bord Pleanála (‘the Board’) dated 20th day of March 2025 bearing reference number ABP-319124-24 refusing permission for the development sought by the Applicant.
(2)Such declaration(s) of the legal rights and/or legal position of the Applicant and persons similarly situated and/or of the legal duties and/or legal position of the Board as this Honourable Court considers appropriate.
(3)If necessary, an order for the discovery of documentation which is or has been in the power, possession or procurement of other parties hereto and which is relevant to any issue in these proceedings;
(4)Further and/or other Orders or relief;
(5)Liberty to apply;
(6)Liberty to file further affidavits; and
(7)An Order that section 50B of the Planning and Development Act 2000 as amended, and/or ss.3 and 4 of the Environment (Miscellaneous Provisions) Act 2011, and/or article 9 of the Aarhus Convention apply to the within proceedings.
(8)The costs of these proceedings.” Grounds of challenge 31. The core grounds of challenge are as follows: “1. The Order of the Board dated 20th March 2025 (‘the Board Order’) is invalid and unlawful in circumstances where the Board failed to determine the Applicant’s application for planning permission on its own merits, and instead decided the application based on a presumption that the Applicant would not operate the development in accordance with the plans and particulars set out in the application documentation, contrary to law and otherwise than in accordance with the constitutional principles of fair procedures. 5 2. The Board Order was arrived at in error of law in circumstances where the Board failed to decide the Applicant’s application on its own merits, and instead presumed that the development would be carried out otherwise than in accordance with the plans and particulars submitted, thereby failing in its statutory obligations under ss.34 and 37 of the Planning and Development Act, 2000 (‘the 2000 Act’). 3. In determining the Applicant’s application based upon the presumption that the development would not be carried out in conformity with the plans and particulars submitted with the application, including any imposed condition restricting access to the development by road, the Board acted irrationally, unreasonably and took account of irrelevant considerations in reaching its determination. 4. The Board’s decision was reached contrary to the principles of fair procedures in circumstances where the Inspector’s analysis was incomplete where all aspects of the development proposal were not fairly taken into account, and/or the consideration of the Inspector was influenced by an unfair and/or irrational presumption that the proposed development would only be feasible by having car access, and that any car access could not be managed and would lead to intensification of transport movements. 5. Further or in the alternative, the Board failed to give adequate and/or appropriate reasons for the conclusion that the proposed development required car access, other than speculative suppositions as to what might motivate guests of the proposed development.” The impugned decision 32. The impugned decision provides as follows: “Decision REFUSE permission for the above proposed development in accordance with the reasons and considerations set out below. Reasons and Considerations Having regard to the locational context of the site, removed from existing services and facilities, it has not been adequately demonstrated to the Board that the proposed glamping development comprising of short-stay, tourist accommodation with access primarily by boat transfer would be a reasonable means of access to the site which could be practically enforced by the developer, and that the existing entrance off the FR463, a designated Strategic Route, would not be used for such purposes. The use of the existing entrance for such purposes as well as the intensification of the activity for pick-up/drop off journeys and service vehicles would result in additional traffic movements at this location. CDP11.14 of the Clare County Development Plan 2023-2029, restricts development on Strategic Routes to certain criteria; namely development of strategic importance, dwellings for established landowners and developments within settlement boundaries where the 50 kilometres per hour speed limit zones apply, in order to maintain and protect the carrying capacity and efficiency of roads. It is considered that the proposed development would endanger public safety by reason of traffic hazard due to the additional traffic turning movements that would be generated at a point where the general speed limit of 80 kilometres per hour applies and would, if permitted, set an undesirable precedent for other similar developments in the vicinity. The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.” Workability of any proposed project 33. As noted above, the law does not favour unworkable interpretations: Ashbourne Holdings Ltd v. An Bord Pleanála [2003] IESC 18, [2003] 2 I.R. 114, [2003] 2 I.L.R.M. 446 (Hardiman J.; Keane C.J., Murray, McGuinness and Fennelly JJ. concurring); Waltham Abbey/Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (§43 per Hogan J.; MacMenamin, Charleton, O’Malley and Baker JJ. concurring); Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43, [2024] 2 I.R. 222, [2022] 2 I.L.R.M. 313 (§106 et seq. per Murray J.; O'Donnell C.J., O'Malley, Woulfe and Hogan JJ. concurring); Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 (inter alia, §47 per Woulfe J.; Dunne, Charleton, O’Malley and Hogan JJ. concurring). 34. Legal provisions and obligations should be given a workable, sensible interpretation where this is at all possible: (
  1. i)Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 per Hogan J. (MacMenamin, Charleton, O'Malley and Baker JJ. concurring) at 43: “There is clear judicial authority for the proposition that statutory provisions should be read, where possible, so as to produce a workable and coherent interpretation, thereby avoiding interpretations which were either incongruous or which imposed unfair or anomalous obligations on private citizens in particular. Thus, for example, as far back as Frescati Estates Ltd v Walker [1975] IR 177 at 187 this Court held that the Planning Acts should, where 6 possible, not be interpreted in a way which would lead to ‘strange incongruities.’ In a subsequent Housing Act case, this Court rejected an interpretation of what constituted the relevant dates for the service of notices to treat for the purposes of the making of compulsory purchase orders under the Housing Act 1966 where it concluded that such an interpretation such render the legislation effectively unworkable: see In re Murphy [1977] IR 243 at 251 per Henchy J.” (
  2. ii)100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1 July 2025), para. 13, citing the statement that where the statutory words used “are reasonably capable of a meaning which is in accord with the essence of the provision, it is that interpretation which should prevail”: see Kellystown Co. v. Hogan [1985] I.L.R.M. 200 at 203, per Henchy J. (Griffin J. concurring). (iii) A discretionary power should not be construed as extending to impose unworkable and unenforceable requirements – McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 8 July 2025). (
  3. iv)Likewise, European law should not be read as imposing impossibly onerous obligations: An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281, per Hogan J. (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring) at 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). 35. Whether a project is workable or not is almost obviously something that needs to be considered. This has been an issue in caselaw arising in relation to conditions, but it applies more generally. I accept the commission’s submission on the issue of the relevance of the enforceability of any permission (emphasis added): “4. … In particular, this argument conflates enforcement—which is primarily a matter for the planning authority to which certain planning enforcement functions are given by statute— with the concept of enforceability. It is well-established as a matter of law that the enforceability of a planning condition—such as Condition no. 6 of the planning authority’s decision at first instance here —is a legitimate, relevant and, indeed, necessary planning consideration: see (
  4. i)the ‘Development Management, Guidelines for Planning Authorities, June 2007’, at, inter alia, section 7.3; (
  5. ii)OPR Practice Note PN03 Planning Conditions, October 2022, at, inter alia, Figure 1.1; and (iii) Ashbourne Holdings Limited v An Bord Pleanála [2003] 2 IR 114, at p. 123. Logically, if the enforceability of a planning condition is a relevant consideration, so too must be the enforceability of any inbuilt restriction on use proposed as part of the plans and particulars of a proposed development. 5. Enforceability in this respect arises at a number of levels: first and foremost, whether the applicant for permission himself can practicably or reasonably enforce any stipulation or restriction advanced as an integral part of the proposed development; and, secondly and more broadly, whether the planning authority or members of the public can enforce it. Here, as is clear in particular from the wording of the Commission’s Order, the Commission considered that significant issues arose even at the first of these hurdles in that it had legitimate and rational concerns about whether the proposed access by boat transfer ‘could be practically enforced by the developer’. Contrary to what the Applicant suggests, this is not peremptorily to reject the Applicant’s bona fides, but, instead, is to make a planning judgement on the workability of the proposal.” 36. In McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 8 July 2025), I made the point at para. 169 that in the light of the presumption against unworkable, unenforceable and contradictory readings of legislation, it would be illogical to read a general power to impose conditions as extending to imposing conditions which the applicant for permission can’t satisfy, in particular by reason of not controlling land the control of which would be required to satisfy the condition concerned. 37. The Supreme Court in Ashbourne Holdings Ltd v. An Bord Pleanála [2003] IESC 18, [2003] 2 I.R. 114, [2003] 2 I.L.R.M. 446 endorsed the development management guidelines insofar as they included a proposal that conditions should be “enforceable” as being “a reasonable commonsense view of s. 26” of the 2000 Act – per Hardiman J. at para. 30. 38. If the commission’s power to impose conditions does not extend to unworkable conditions, its power to grant permissions should not extend to unworkable permissions either. 39. The overall concept of workability includes two essential concepts: (
  6. i)practicality/practicability – can it be set up to work in the manner proposed; and (
  7. ii)enforceability/sustainability – once set up, can it continue to work as envisaged. 40. In the present case, both were concerns for the commission but particularly enforceability. 7 41. The applicant incorrectly and implausibly characterises the commission’s concerns as an impermissible trespass into the enforcement functions of planning authorities. That however is the fallacy of reading a decision as incorrect when a correct reading is available. The focus of her analysis was simply as to whether the project would work in practice as proposed. 42. That was if I may respectfully say so not just a lawful consideration but an absolutely necessary one. The jurisdiction of planning decision-takers does not extend to allowing impracticable and unworkable proposals dependent on conditions that the decision-taker thinks are unenforceable. Domestic law issues Core ground 1 – alleged presumption of non-compliance 43. Core ground 1 is: “1. The Order of the Board dated 20th March 2025 (‘the Board Order’) is invalid and unlawful in circumstances where the Board failed to determine the Applicant’s application for planning permission on its own merits, and instead decided the application based on a presumption that the Applicant would not operate the development in accordance with the plans and particulars set out in the application documentation, contrary to law and otherwise than in accordance with the constitutional principles of fair procedures.” 44. The parties’ positions as recorded in the statement of case are summarised as follows: “Applicant’s position 22. The Commission failed to have any, or any adequate regard to the four sets of submissions made by the Applicant. The Applicant’s application documentation made it expressly clear that access to the six proposed waterside ‘glamping’ pods would be the sole access available to guests accessing the site via watertaxi departing from Kincora Harbour to the two-berth jetty on site, or arriving by existing bus services, on foot, or on bicycle. This was stipulated as being the ‘unique selling point’ of a holistic, natural and sustainable experience in a car free environment. Several letters of support were included in the application from various providers of water transport on Lough Derg. 23. The Commission failed to determine the Applicant’s application based on the content of the application documentation and submissions. Instead – contrary to the content of the Applicant’s submissions - the Inspector and Commission determined that the Applicant would essentially act in bad faith and not only permit access by road vehicle to the site but actually facilitate that access by using his own private vehicle to transport guests. 24. The Commission did not in fact reject the Applicant’s application, but instead rejected an application for road access that was not before it. The question of whether the Applicant would abide by the access stipulations of planning permission was one of enforcement, and did not legitimately arise when the Commission was determining the merits of the application for permission. Respondent’s Position 25. The Commission did not fail to have regard to the Applicant’s submissions. Same are expressly referenced and addressed. The Inspector’s Report and Commission decision comprise de facto evidence that the Commission had regard to same. The nature of the proposed development, including the proposed ‘car-free’ operation, is accurately recorded and repeatedly cited therein, in addition to a detailed assessment of the proposals for alternative forms of transport, including water taxi, public transport, walking and biking. 26. The Inspector and Commission did not fail to determine the application based on the application and submissions before it or reject an application ‘that was not before it’. Rather, in assessing the planning merits of the proposal, the Commission properly considered the likely use and likely effects of the use of the proposed development in practice—an appropriate and, indeed, necessary element of deciding whether planning permission should or should not be granted—and disagreed with the Applicant as regards workability of the proposed mode of access. In this regard, the Applicant’s case amounts in substance to a suggestion that the Commission was obliged to accept or assume that no cars would access the site of the proposed development because this was the basis on which the proposal was put forward and there is no basis in law for this proposition. 27. As regards the conclusions of the Commission on the workability of the proposal advanced, the IR and decision cite a number of factors considered in reaching this conclusion, including, that guests would likely attempt to gain access via the existing vehicular entrance off the R463 and even where refused entry would then have to merge back on to the roadway, resulting in an intensification of use of the entrance. The Commission further concluded that the Applicant had not provided sufficient evidence that the proposed development could feasibly be run as a car free site or that it complied with Objective CDP11.14 of the CDP. These conclusions were open to the Commission on the evidence before it and were without error. The Applicant’s claim comprises an impermissible 8 merits-based challenge to the Commission decision. The Applicant has further failed to demonstrate any irrationality in the said decision. 28. Insofar as the Applicant suggests that the Commission determined that the Applicant would act in bad faith, this is denied. The Applicant erroneously conflates the Commission’s determination that it was not practically possible to limit access in the manner submitted by the Applicant with a conclusion viz. the Applicant’s bona fides. However the wording of the decision makes clear that the Commission had legitimate and rational concerns regarding the Applicant’s ability to prevent guest cars, taxis and /or service vehicles attempting to access the site using the vehicular entrance on the R463, and the effect of same on road safety and the carrying capacity of the road even where such vehicles are refused access by the Applicant. 29. As regards the proposition that the ‘question of whether the Applicant would abide by the access stipulations of planning permission was one of enforcement, and did not legitimately arise when the Commission was determining the merits of the application for permission’, it is respectfully submitted that this is erroneous. In particular, this argument conflates enforcement with the concept of enforceability. It is well-established as a matter of law that the enforceability of a planning condition—such as Condition no. 6 of the planning authority’s decision at first instance here—is a legitimate, relevant and, indeed, necessary planning consideration. Logically, if the enforceability of a planning condition is a relevant consideration, so too must be the enforceability of any in-built restriction on use proposed as part of the plans and particulars of a proposed development. Enforceability includes enforceability by the Applicant himself as well as, more broadly, whether the planning authority or members of the public can enforce a requirement of the planning permission. The Commission considered that significant issues arose even at the first of these levels in that it had legitimate and rational concerns about whether the proposed access by boat transfer ‘could be practically enforced by the developer’. 30. The Commission decision enjoys a presumption of validity and the Court is obliged to read the decision in a way that renders it valid, once such a reading is open to it. 31. This ground of challenge does not provide a valid basis on which to quash the decision.” 45. The basic reason why this point fails is that a planning decision-taker is allowed and indeed required to consider the workability of any given proposed development. The fact that an applicant for permission contends that permission should be granted on the basis that the project will be operated in a particular way does not preclude the decision-taker from evaluating the likelihood in practice that the project will be operated in that way. A decision-taker is not required to treat all questions of workability as ones for the enforcement process and indeed it would be reckless to do so. The effect of such a doctrine would be to incentivise the permitting of unworkable projects. 46. The fact that the applicant has divided the site by red-lining only about half of it by way of an anvil-shaped development site, separate from his dwelling, does not have the effect of making the commission bound to regard the site as entirely insulated from car-based transport. Any planning decision needs to consider at some level how the development integrates into the receiving environment, and a red line is not a magic wand to prevent that exercise from taking place. 47. The applicant here has not demonstrated that the commission’s decision fell outside what was reasonably open to it in regard to the foregoing. Their concerns were objective and were not based on any improper presumption of bad faith as alleged – to conceptualise this as impugning the applicant’s bona fides is the wrong way to look at it. Even assuming best intentions, a decisiontaker still has to ask herself how likely it is that such best intentions are going to work out. 48. For example, submissions that were made by other parties to the commission raise objective issues that call into question the workability of the applicant’s proposals. The absence of a food and drink offering at the site is an objective factor militating in favour of the likelihood of generation of travel and thus potentially of car-based travel. The location near a bend in the road is also an objective factor. 49. Nor is this a question of not considering the applicant’s material. The material and submissions were considered. Doing that doesn’t give rise to an obligation to accept such material. Very often, and here I’m afraid, an allegation of failure to consider a submission is just a meritsbased disagreement dressed up in legal language. 50. Insofar as the applicant combs through the inspector’s report and the decision to take issue with aspects of the wording, even assuming that the wording could be improved in some way (something which admittedly is possible in the case of virtually all human writings – certainly that’s been my experience), any such matters don’t affect the essence of the reason for the refusal. All of the foregoing essentially disposes of the alternative complaint that the commission had legally reprogrammed the inspector’s approach by way of its defence of the proceedings. It is no great 9 secret that clever post-hoc legal reprogramming of sub-optimal administrative decisions does happen on occasion, but this isn’t such an occasion. The decision here is robust on its own terms. 51. There is ultimately an overall air of unreality about the applicant’s case. The commission, consistent with the issues raised in the appeals to it, the development plan and EU law, must consider the effects of the development – that means the effects in practice. Those effects include whether guests will in fact be prepared to drive past the property for a further 6 km to park at Kincora harbour and then get a boat back to it (para. 7.9 of inspector’s report), whether they will be in a position to time their arrivals to fit with the scheduled boat services, how exactly the proposed boat access/egress will work, how it will work at night or in inclement weather, how guests will access food given that the nearest shop is over 7 km away, whether they will order takeaways and if so whether delivery vehicles will be pulling up outside the property, whether taxis will be coming and going and stopping on the road at the property for delivery/pickup of guests or for outings, given that guests will not be accessing with their own cars, and so on. All of these were totally relevant and valid (indeed one might say absolutely necessary) considerations, and the commission acted well within its zone of evaluation in considering that matters of this type militated against the grant of permission. The possibility of a nine-seater vehicle as a courtesy transport facility or in emergencies would not be an all-purpose answer to the issue of traffic impacts and also could undermine the suggestion that the car access would only be for residents of the house. The suggestion that the inspector makes some sort of starting assumption of disbelief and a starting assumption as a base point that guests will arrive in some manner other than proposed, or that other methods of arrival are excluded entirely from consideration, is unfortunately the wrong way to characterise all of this. The inspector and/or commission are not obliged to accept anything put forward by any process participant, and must apply their own judgement. That’s all that happened here. Doing so is not to be misconceived as an unlawful form of prejudgement, error, wrongful assumption or conjecture, impermissible disbelief and so on. When the inspector talks about the lack of proximate services being the ”downfall” of the proposal, that is not supposition or conjecture as submitted, or anything remotely like it. It is the exercise of evaluative judgement on the merits, well within the bounds of lawfulness and reasonableness. “Downfall” (suggestive as it is of Oliver Hirschbiegel’s 2004 film, Der Untergang) is simply a stylish, literary or poetic term for the fact that the project as proposed just could not withstand that sort of interrogation. Core ground 2 – alleged failure to decide on merits 52. Core ground 2 is: “2. The Board Order was arrived at in error of law in circumstances where the Board failed to decide the Applicant’s application on its own merits, and instead presumed that the development would be carried out otherwise than in accordance with the plans and particulars submitted, thereby failing in its statutory obligations under ss.34 and 37 of the Planning and Development Act, 2000 (‘the 2000 Act’).” 53. The parties’ positions as recorded in the statement of case are summarised as follows: “Applicant’s position 32. The Commission is under an implied statutory obligation pursuant to s.37 of the Planning and Development Act 2000 to decide applications submitted to it on their own merits. 33. The Decision is invalid in circumstances where the Commission failed in its statutory obligation to determine the Applicant’s application on its merits. It is clear from the portions of the Inspector’s Report quoted above, and the impugned Order which followed her recommendation and reasoning, that the Commission refused to accept the bona fides of the Applicant’s application in respect of the proposed transport arrangements. Notwithstanding the detailed proposals, the commitment to require each reservation to simultaneously reserve water transport, the letters of support from water transport providers, and the binding condition attached to the appealed grant of permission from the County Council, the Commission refused to accept that the development would be operated in line with the terms of the application. 34. The Commission determined the application on the assumption that the Applicant would deliberately permit access by guests by private car and actively provide a private taxi service himself in breach of Condition 6 and of his own written commitments not to do so. In so doing, the Commission effectively assumed that the Applicant would not only act in bad faith in the future but that he had made his application based on car-free access in bad faith also. 35. The acceptability of the principle of the proposed development should have been determined by the Commission on its own merits. The question of the compliance of the Applicant with the terms and conditions of any permission, including any condition restricting access to water transport, would have been a matter for planning enforcement by the County Council. The Respondent has no enforcement jurisdiction in this context and to have 10 incorporated such enforcement, by pre-determining that outcome, embodied in a consent decision was unlawful. Respondent’s Position 36. This core ground of challenge is a further iteration of core ground 1 and also comprises an impermissible merits-based challenge to the Commission decision. The Commission repeats, mutatis mutandis, its position in response to Core Ground 1. 37. There was no failure on the part of the Commission to determine the application on its merits or any breach of statutory duty under s.37 of the PDA or otherwise. 38. The Commission did not refuse to accept the Applicant’s bona fides or to determine the application on its merits. In reaching its decision, the Commission made a planning judgment on the workability of the proposed development and it was entitled to conclude that it was not satisfied that the Applicant could practically enforce the proposed access arrangements at the site of the proposed development in the manner advanced in the application. In short, the Commission considered that it was unlikely that the Applicant would be able to prevent prospective guests, taxis and/or service vehicles attempting to gain access to the proposed development via the vehicular entrance off the R463, even where such access was refused. The Commission is entitled to curial deference in respect of its assessment in this respect and the Applicant has failed to point to any irrationality capable of undermining the decision. 39. This ground of challenge does not provide a valid basis on which to quash the decision.” 54. The basic reason why this point fails is that, as the commission submits, this is a further iteration of core ground 1 and fails for similar reasons. The application was decided on its merits. Considering the workability of the proposal is not a failure to do that. Core ground 3 – alleged irrationality and irrelevant considerations 55. Core ground 3 is: “3. In determining the Applicant’s application based upon the presumption that the development would not be carried out in conformity with the plans and particulars submitted with the application, including any imposed condition restricting access to the development by road, the Board acted irrationally, unreasonably and took account of irrelevant considerations in reaching its determination. 56. The parties’ positions as recorded in the statement of case are summarised as follows: “Applicant’s position 40. For completeness, this ground incorporates Core Ground 2, and is also pleaded on a standalone basis. The Commission took account of irrelevant considerations in determining the Applicant’s application based on assumed facts and provisions of the County Development Plan which simply had no relevance to the content of the actual application before it. 41. The assumption of guest access via private car led to a series of further irrelevant considerations, and in particular Policy Objective 11.14 of the Clare County Development Plan 2023-2028. That provision of the County Development Plan simply had no relevance to the actual content of the application which was before the Commission. Respondent’s Position 42. The Commission repeats, mutatis mutandis, its position in response to Core Grounds 1 and 2. 43. Objective 11.14 of the CDP was a relevant consideration. Development plan objectives are a mandatory consideration for the Commission per s.34
(2)(a)(
  1. i)of the PDA, by dint of s.37. The Commission had a statutory obligation to have regard to the relevant CDP objectives in consideration of the principles of proper planning and sustainable development. 44. This is a proposed development of a tourist accommodation facility at what is currently a single dwelling with road access via the R463. The Applicant’s suggestion that the Commission erred in law by having regard to Objective CDP11.14 is patently unsustainable – it amounts to an argument that the Commission was not even allowed to consider potential impacts on the R463, simply because the application was being advanced on the basis of car-less access. The Inspector and Commission clearly considered—and were entitled to consider—that it was necessary to have regard to the potential effects of the proposed development on the R463 and determined that the Applicant had failed to demonstrate how the proposed development could be operated in a manner consistent with Objective CDP11.14 of the CDP. 45. This ground of challenge does not provide a valid basis on which to quash the decision.” 11 57. The basic reason why this point fails is that, as the commission implies, this is also covered by the previous grounds. If, as is the case, the workability of the project was a legitimate and indeed required consideration, it follows that the commission then had to assess the planning policy ramifications of the state of affairs that the project would, in practice, create. Thus, since the workability of the project was a relevant consideration, the potential use of car-based access was a relevant consideration and CDP provisions relevant to car use were consequentially also relevant considerations. Core ground 4 – fair procedures 58. Core ground 4 is: “4. The Board’s decision was reached contrary to the principles of fair procedures in circumstances where the Inspector’s analysis was incomplete where all aspects of the development proposal were not fairly taken into account, and/or the consideration of the Inspector was influenced by an unfair and/or irrational presumption that the proposed development would only be feasible by having car access, and that any car access could not be managed and would lead to intensification of transport movements.” 59. The parties’ positions addressing both core ground 4 and core ground 5 as recorded in the statement of case are summarised as follows: “Applicant’s position 46. Contrary to fair procedures, and in ignoring the actual development proposal ‘for a car-free development with arrivals to the campsite by boat, bus, cycling or walking’, the Inspector engaged in an analysis which entirely disregards the stated nature of the proposed development and concludes that it must, in effect, be a car-based development proposal. The Inspector then proceeds to offer subjective reasoning as to why that must be the case. The Inspector further expresses concerns as to how a car-free proposal would be enforced. In so finding, the Inspector has unlawfully and/or unfairly disregarded the principal nature of access to the scheme, which is core to the nature of the scheme, a niche tourism product which is fully supported in principle by the development plan. 47. The Inspector further failed to give reasons for her exclusion from consideration of the exact profile of guest upon which the application was predicated. She fails to give adequate reasons for her implied finding that the content of the application regarding guest access had been made in bad faith, and that the Applicant knowingly intended to breach the car-free access condition imposed by the County Council by providing a private-taxi service. 48. The Applicant in this case is unable to discern from the inadequate reasons of the Commission why his detailed application, supported by multiple submissions from his advisors, his detailed response to the Request for Further Information from Clare County Council, further supported by written confirmation of support from local business and stakeholders, and which was accepted by Clare County Council, was rejected out of hand as being inoperable and effectively having been submitted in bad faith. The reasoning provided by the Inspector is utterly subjective, speculative, and does not approach the standard required by case law. 49. An applicant is entitled to have reasons which go beyond a statutory agency saying ‘we just don’t believe you’ when an application is rejected, not based on its actual content, but based on an assumption that the applicant will not abide by his commitments and the conditions imposed on his development by law. The flaws in the Commission’s assessment, reasoning and explanation for its decision are in conflict with the principles of fair procedures, the duty to give adequate reasons, and render the impugned Order void. Respondent’s Position 50. This ground of challenge is effectively a restatement of core ground 1 under the guise of a reasons challenge. The Commission relies on its position as outlined above in respect of the balance of the core grounds mutatis mutandis in opposition to core grounds 4 and 5. 51. Specifically, as regards the reasons challenge, the Commission decision is clear on its face. The decision must be read holistically and in light of the totality of the information before the Commission, including in conjunction with the IR. The IR provides a detailed treatise of the assessment of the proposed development and the reasons why the Inspector reached the determination that it could not be practically operated in the manner contended. The IR and Commission decision meet the applicable legal standard for reasons and are capable of being clearly understood. 52. Further and insofar as it is suggested that the decision amounts to a statement that the Commission does not ‘believe’ the Applicant, this assertion suffers from the same fatal flaw as the other grounds of challenge in that it erroneously presumes that the Commission is obliged to accept the particulars of the access arrangements submitted for the proposed development – namely, that no cars would assess the site – without interrogating and/or 12 evaluating same by way of its planning judgement. There is simply no basis in law for such a proposition. 53. These grounds of challenge do not provide a valid basis on which to quash the decision.” 60. The basic reason why this point fails is that, as the commission submits, this is just a restatement of core ground 1 under the guise of reasons. Since the commission was entitled and required to consider workability, it did not breach fair procedures by doing so and, anticipating the next point, did not fail to give reasons once one properly understands the nature of the exercise it was engaged in. 61. No infirmity under this heading has been demonstrated. Core ground 5 – reasons 62. Core ground 5 is: “5. Further or in the alternative, the Board failed to give adequate and/or appropriate reasons for the conclusion that the proposed development required car access, other than speculative suppositions as to what might motivate guests of the proposed development.” 63. The parties’ positions as recorded in the statement of case are summarised above at core ground 4. 64. The basic reason why this point fails follows again from the disposition of core ground 1. It is something of an applicant’s fallacy to characterise anything short of absolute certainty on the part of a decision-taker as being mere speculation. A decision-taker has to decide – a process that involves evaluation of matters that may fall short of certainty. An educated, informed, evaluation is not to be equated with speculation although unsympathetic commentators will inevitably incorrectly represent it as such. This is a point I made in a different context in Minogue v. Clare County Council [2021] IECA 98 (Unreported, Court of Appeal, 29 March 2021) – it’s all too easy to mischaracterise an educated estimate as being equivalent to picking something out of the air, but the two are completely different. The former is a valid and lawful process and often the only workable option. Summary 65. In outline summary, without taking from the more specific terms of this judgment: (
  2. i)it is settled law that the applicant must have discharged the onus of proof to establish that the decision fell outside the range of options lawfully open to a decision-taker; (
  3. ii)applying such law to the facts here, the applicant has not overcome that onus; (iii) it is settled law that judicial review is concerned with the legality rather than merits of a decision; (
  4. iv)applying such law to the facts here, the applicant’s complaints amount to a meritsbased disagreement with the decision, albeit an understandable disagreement; (
  5. v)it is settled law that legislation must be given a workable interpretation, from which it follows that a planning decision-taker is entitled and required to consider the workability of the project; and (
  6. vi)applying such law to the facts here, the commission did not err in considering the workability of the project in any of the various ways contended for here. Order 66. For the foregoing reasons, it is ordered that: (
  7. i)the proceedings be dismissed; (
  8. ii)unless any party applies otherwise by the time and in the manner set out below, the foregoing order be perfected forthwith thereafter on the basis of no order as to costs (including any reserved or adjourned costs not otherwise dealt with); (iii) the foregoing proposed orders as to costs, directions or the form of the order be subject to contrary written legal submission within 7 days, with replies by other parties within a further 7 days; (
  9. iv)for the avoidance of doubt, any unsuccessful application to vary any provisional order as to costs proposed in this judgment may be addressed pursuant to O. 103 r. 40
(4)RSC; and (v) the matter be listed on Monday 18 May 2026 to confirm the foregoing.

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.