2026 IEHC 300

[2026] IEHC 300 THE HIGH COURT PLANNING & ENVIRONMENT [H.JR.2024.0000120] IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000 BETWEEN RURAL RESIDENTS WIND AWARE AND ENVIRONMENTAL GROUP, JOHN NOLAN AND CATRIONA NOLAN APPLICANTS AND AN COIMISIÚN PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND WHITE HILL WIND LIMITED NOTICE PARTY (I) (No. 3) Date of impugned decision:

Date proceedings commenced:

Date of principal judgment:

Date of leave to appeal hearing:

Date draft judgment circulated:

21 November 2023 24 January 2024 6 November 2025 and 6 March 2026 29 April 2026 11 May 2026 JUDGMENT of Humphreys J. delivered on Friday 15 May 2026 1.

The renewable energy project here was deemed acceptable by the inspector and the commission and the applicants have had a full hearing on the merits over two modules. Furthermore the applicants will have a further day in court in terms of declaratory relief in the No. II case (a point that was not pleaded in support of certiorari so does not affect the outcome here).

2.

The way the system is supposed to work is that when significant questions of principle arise, they are decided by appellate courts, and then applied to individual cases by trial courts. The principal judgments attempted to apply the already established principles emerging from Supreme Court jurisprudence relevant to the pleaded issues, particularly the following: (i) judicial review is concerned with the legality rather than the correctness of the decision: 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; per Clarke J. (Dunne J. concurring) in Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31 July 2014) at paras. 3.8-3.15; (ii) 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, 9 Hogan J., 27 January 2025) (O’Donnell C.J., Murray, Collins and Donnelly JJ. concurring), para. 62; (iii) 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); (iv) a decision should not be read as invalid if a valid reading is reasonably available: see consistently with that 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); (v) it is not appropriate to engage in legalistic over-parsing or micro-analysis of decisions, see analogously Walsh v. Jones Lang Lasalle Ltd [2017] IESC 38 (Unreported, Supreme Court, O’Donnell J., 1 June 2017) at para. 47 (O’Malley J. concurring); per 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. 37;

2 (vi) 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) at para. 21; (vii) relief whether by judicial review or otherwise should only be granted where the point is not academic or hypothetical: Cahill v. Sutton [1980] I.R. 269; Mohan v. Ireland and the Attorney General [2019] IESC 18, [2021] 1 I.R. 293, per O’Donnell J. at pp.

301-302 (MacMenamin, Dunne, Charleton and O’Malley JJ. concurring); Odum v.

Minister for Justice [2023] IESC 3, [2023] 2 I.L.R.M. 164 per O’Donnell C.J. (Charleton, Woulfe, Hogan and Murray JJ. concurring); (viii) the onus of proof is on the applicant: 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 (Denham J.) at 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) at para. 116; (ix) in the context of a challenge to an environmental assessment, the onus of proof to show a defect generally lies on the applicant: see 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. at para.

124 (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring); (x) the standard is the obligation to provide the main reasons on the main issues: per Finlay C.J. (Griffin, Hederman and Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993] 1 I.R. 39, [1992] I.L.R.M. 237 at p. 76; Faulkner v. Minister for Industry and Commerce 1997 WJSC-SC 962, [1996] 12 JIC 1007 (Unreported, Supreme Court, 10 December 1996) per O’Flaherty J. (Hamilton C.J. and Barrington J. concurring); Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 45 (Clarke C.J.) (O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); (xi) there is no obligation to provide a discursive, narrative consideration or to “engage with” submissions in such a sense, or to provide an issue-by-issue or submissionby-submission response: see Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25, [2008] 3 I.R. 795, per Denham J. (Murray C.J., Fennelly, Kearns and Finnegan JJ. concurring); per Clarke J. (Fennelly and MacMenamin JJ. concurring) in Rawson v. Minister for Defence [2012] IESC 26 (Unreported, Supreme Court, 1 May 2012) at para. 6.9; (xii) reasons may be found anywhere, not necessarily in the decision itself, for example in an inspectors report: Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 I.R.

752, [2018] 2 I.L.R.M. 453, para. 9.2 per Clarke C.J. (O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, 11 April 2024) per Woulfe J. (Charleton, O’Malley, Baker and Murray JJ. concurring) at para. 129; (xiii) judicial review is discretionary within established doctrinal boundaries for such discretion: Kenny v. Dublin City Council [2009] IESC 19 (Unreported, Supreme Court, 5 March 2009) at 79 per Fennelly J. (Macken and Peart JJ. concurring); Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ. concurring); per Dunne J. (Charleton, Woulfe, Collins and Donnelly JJ. concurring), S. v. Minister for Justice and Equality [2025] IESC 48 (Unreported, Supreme Court, 25 November 2025) at 98; (xiv) an applicant does not have an entitlement to make any and every possible argument particularly where such an argument is premised on the rights of some other person:

Cahill v. Sutton [1980] I.R. 269 (O’Higgins C.J.) (Henchy J., Griffin, Kenny and Parke JJ. concurring); Conway v. Minister for Housing, Local Government & Heritage & Ors. [2024] IESC 34 (Unreported, Supreme Court, 23 July 2024) per O’Donnell C.J. paras. 6-10, per Hogan J. paras. 11-14 (O'Donnell C.J., Dunne, Collins and Donnelly JJ. concurring).

3.

These are not new points of law, let alone significant new points. I referenced such principles in the substantive judgments. The applicants implausibly postulate no less than seven points of exceptional public importance arising from the decision.

Judgment history 4.

In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (I) [2025] IEHC 600 (Unreported, High Court, 6 November 2025), the proceedings dismissed in respect of grounds other than the balance of core grounds 1 and 8A.

3 5.

The remainder of the grounds were dismissed in Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (I) (No. 2) [2026] IECH 135 (Unreported, High Court, 6 March 2026).

6.

In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (II) [2025] IEHC 601 (Unreported, High Court, 6 November 2025), proceedings challenging the amending permission were dismissed in respect of grounds other than core grounds 6 and 7.

7.

In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (II) (No.

8.

The applicants now seek leave to appeal.

Procedural history 9.

Following the substantive judgment, the applicants delivered legal submissions seeking leave to appeal, dated 26 March 2026. The opposing parties delivered replying submissions and the matter was heard on 29 April 2026.

10.

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.

11.

On 11 May 2026, a draft of the present judgment was sent to the parties to give an opportunity to identify any errors. The rules of engagement in such a situation are that the draft is without prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever content it considers appropriate.

12.

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 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 (a) by order without a reasoned judgment, or (b) by ex tempore reasons without a written judgment; (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: (a) any typographical, factual, legal or other errors in the decision; (b) any redaction of personal or other information that a party wishes to request; (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 at 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; (d) any other matter in the draft judgment that the party considers should be omitted; (e) any matter not included in the draft judgment that the party considers should be added to it (including where the party considers that procedural, factual or legal points not set out in the judgment should be addressed or where the party considers that reasons for any aspect of the decision are not set out or where an overall ground is disposed of but detail of the ground or sub-ground is not expressly addressed, or where an issue arose the disposition of which would be obiter but on which the party concerned considers that there would be a benefit in the court expressing a view); and (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.

13.

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 4 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).

14.

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.

15.

The deadline for such comments from the parties was to be 16:00 on Wednesday 13 May 2026.

General principles on leave to appeal 16.

The statutory criteria for leave to appeal are familiar. Some of the major elements required for the grant of leave to appeal are as follows: (i) The point must properly arise (a) The question must fall within the pleadings: Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024) per Murray J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). The issue of whether a point falls within the pleadings, as determined by the trial court, does not normally raise a point of law suitable for an appeal: see Leech v. An Bord Pleanála [2025] IESCDET 106 (O’Malley, Murray and Donnelly JJ., 30 July 2025) at 30 “The essential point made by the Applicant is that the trial judge granted relief quashing the decision of the Board on a basis that was not pleaded, that misinterpreted the decision of the Board granting the permission in question, and that failed to properly apply the general presumption that a decision of an administrative body is lawful. Issues of pleading and of an alleged misinterpretation of a specific administrative decision will usually be case specific and will not present issues of law of public importance.

While the presumption of validity attaching to administrative decisions represents an important legal principle, the fact of that presumption and its effect are not the subject of any uncertainty and the application of the presumption to a particular decision will not usually involve an issue of law of public importance”. (b) The question must actually arise on the facts and should not be launched in the abstract: see analogously Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11, [2018] 1 JIC 1603 (Unreported, High Court, Donnelly J., 16 January 2018), para. 10. (c) The question raised must actually have been argued by the would-be appellant and must not be a new issue formulated for the purposes of an appeal: GOCE Limited v. An Bord Pleanála [2025] IEHC 43 (Unreported, High Court, Farrell J., 31 January 2025). (d) While not an absolute rule, the question should be determinative in some sense and should make a difference to the outcome – generally it should not be one which, if answered in a sense favourable to the would- 5 (ii) (iii) be appellant, would leave the result unchanged: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14 November 2016); Morehart v. An Bord Pleanála [2025] IEHC 701 (Unreported, High Court, Farrell J., 8 December 2025) at 9. This is part of a broader principle that prolonging the process by recourse to a further instance can’t be based on just identifying some shiny and interesting point – the whole thing has to be going somewhere.

O’Donnell J. (Clarke and Dunne JJ. concurring) put this vividly in Rooney v. Minister for Agriculture and Food [2016] IESC 1 (Unreported, Supreme Court, 28 January 2016) at para. 3: “Some litigants, and not just those who represent themselves, prefer the comfort of focusing exclusively on the debatable ruling or judicial comment reinforcing a sense of grievance rather than recognise the forest of problems in the overall case. The cycle continues and becomes almost a form of litigious perpetual motion”. (e) The question must accurately reflect the judgment and must not be an addition, exaggeration or distortion launched for the purposes of creating a case for appeal: Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9, [2023] 1 JIC 1907 (Unreported, High Court, 19 January 2023) per Holland J. at §9(d); Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J. As put more generally by the Supreme Court in Cooper v. An Bord Pleanála [2025] IESCDET 96 (O’Malley, Collins and Donnelly JJ., 28 July 2025) at 15, “The applicant’s misunderstanding of the legal situation does not amount to a matter of general public importance”. (f) The application for leave to appeal should be made within time, generally within 28 days from the order to be appealed against: S.A. v.

Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14 November 2016). (g) The question should be specific and should identify something specific that makes a difference – it should not be an invitation to an appellate court to write an essay on a particular topic or engage in a discursive, roving response: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14 November 2016); Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J.

The point must be one of law (a) The point cannot be an essentially factual question such as construing the import and effect of a particular decision: Leech v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court, 24 March 2025) per Farrell J. (b) Relatedly, the question should not be one of application of law to particular facts but rather one of the substance, content and interpretation of law. Questions about the application of established principles to particular facts are not pure questions of law and are at best mixed questions of fact and law, and are generally unsuitable for appeal in such a context: B.S. v. Director of Public Prosecutions [2017] IESCDET 134 (Clarke C.J., O’Donnell, McKechnie, MacMenamin, Dunne, Charleton and O’Malley JJ., 6 December 2017); per Simons J. in Halpin v. An Bord Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 (Unreported, High Court, 15 May 2020), para. 60; per Barniville J. in Rushe v. An Bord Pleanála [2020] IEHC 429, [2020] 8 JIC 3101 (Unreported, High Court, 31 August 2020); per Phelan J. in Stanley v. An Bord Pleanála [2022] IEHC 671, [2022] 11 JIC 2805 (Unreported, High Court, 28 November 2022); Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27 May 2024); per Farrell J. in Leech v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court, 24 March 2025).

The point of law must be of public importance (a) The question must not be fact-specific arising in the particular context of a particular case – rather it must transcend the facts in order to create a point of public importance: see analogously and albeit nonprecedentially, Patrick McCaffrey & Sons Limited v. An Bord Pleanála [2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 20 November 2024).

6 (b) (c) (d) (e) (f) See also Leech v. An Bord Pleanála [2025] IESCDET 106 (O’Malley, Murray and Donnelly JJ., 30 July 2025) at 30: “The essential point made by the Applicant is that the trial judge granted relief quashing the decision of the Board on a basis that was not pleaded, that misinterpreted the decision of the Board granting the permission in question, and that failed to properly apply the general presumption that a decision of an administrative body is lawful. Issues of pleading and of an alleged misinterpretation of a specific administrative decision will usually be case specific and will not present issues of law of public importance. While the presumption of validity attaching to administrative decisions represents an important legal principle, the fact of that presumption and its effect are not the subject of any uncertainty and the application of the presumption to a particular decision will not usually involve an issue of law of public importance”.

Advancing the proposed question should resolve doubt rather than create doubt where none exists – this is consistent with the views of Baker J. in Ógalas v. An Bord Pleanála [2015] IEHC 205, [2015] 3 JIC 2008 (Unreported, High Court, 20 March 2015) that an appeal may be necessary in the public interest to resolve doubt. But if no doubt exists, the function of the appeal mechanism is not to introduce new uncertainty into the system. Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 (Unreported, High Court, 10 January 2025) endorsed a submission that “where the law is not uncertain, the public interest suggests an appeal is not warranted”.

The application for leave to appeal should engage with the rationale of the judgment being appealed against and provide a plausible basis as to why that judgment is wrong to the level that meets the criteria for an appeal. While a leave to appeal application is in one sense premised on the view that the decision may be incorrect, that does not relieve a would-be appellant from actually engaging with the logic and reasoning of the judgment as opposed to merely repeating his or her position: see analogously and non-precedentially, Nagle View Turbine Aware v. An Bord Pleanála [2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10 March 2025).

The fact that an official body is seeking leave to appeal is a relevant factor (Sherwin v. An Bord Pleanála (No. 2) [2023] IEHC 232, [2023] 5 JIC 0802 (Unreported, High Court, 8 May 2023)) but the mere fact that the request for leave to appeal is made by an official entity does not convert a point into one being suitable for appeal if it would not otherwise be so. As pointed out in Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J., a body concerned that it is bound by a decided issue is the whole point – the system is not a one-way ratchet whereby only applicants are bound by caselaw.

The fact that a point is “novel” is not determinative as to whether a point is suitable for the granting of a certificate, or to put matters another way, the mere fact that a point is novel does not render it a suitable basis for appeal if it would not otherwise be so: Callaghan v. An Bord Pleanála [2015] IEHC 493, [2015] 7 JIC 2405 (Unreported, High Court, Costello J., 24 July 2015). And as Hyland J. observed in Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209, [2023] 3 JIC 1307 (Unreported, High Court, 13 March 2023) at §27: “the mere fact that an applicant for leave disagrees with a conclusion in the judgment cannot be relied upon to characterise the state of the law as being uncertain”.

The mere inclusion of a request for a reference to the CJEU does not convert a point into one suitable for appeal if it is otherwise unsuitable for appeal by reason of being abstract, or not arising having regard to the findings of fact, or being an issue of application of law rather than interpretation, or due to lacking sufficient factual foundation or due to there not being any demonstrable reasonable doubt, for example: see analogously Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8 (Charleton, Collins and Donnelly JJ., 27 January 2025);

Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025).

7 (iv) The public importance must be exceptional If the would-be appellant establishes that there is a point of law of public importance, it must also be established that the importance is exceptional. (v) An appeal must be in the public interest (a) The context is the objective of the Oireachtas in seeking finality, certainty and expedition in challenges brought by way of judicial review in planning cases (Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231, [2022] 4 JIC 2601 (Unreported, High Court, 26 April 2022) per Barniville J. at para. 32; Freeney v. An Bord Pleanála [2025] IEHC 36 (Unreported, High Court, 24 January 2025) per Bradley J.). The nature of the project and the risks of further delay are factors going to the requirement that an appeal must be in the public interest: see per McGovern J. in Dunnes Stores v. An Bord Pleanála [2015] IEHC 387, [2015] 6 JIC 1805 (Unreported, High Court, 18 June 2015) at §15 and §16. See also analogously and non-precedentially Eco Advocacy CLG v.

An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27 May 2024) at para. 24: “The Court must have regard to the potential impact upon the notice party of any further delay in these proceedings”. (b) Any assertion of problems in practice caused by a judgment must be backed up with evidence: see Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J.; Phoenix Rock Enterprises v. An Bord Pleanála & Ors. [2023] IESCDET 97 (Dunne, Baker and Donnelly JJ., 20 July 2023) at §22 and §30 which dealt with an argument that alleged uncertainty in the law was creating alleged difficulties in practice, but rejected this on the basis that there was “no evidence before the High Court that the quarry industry was being seriously affected by the issues in the case”, and that “[t]he decision in this case was fact-specific to this quarry and it must be recalled that the role of the Supreme Court on an Article 34 appeal is not to give advisory opinions but to deal with the controversy at issue between the parties once the constitutional thresholds have been met”. See also McCaffrey v. An Bord Pleanála [2024] IEHC 476 (Unreported, High Court, Gearty J., 26 July 2024) at §3.7, leave to appeal refused McCaffrey v. An Bord Pleanála [2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 29 November 2024).

17.

Contextually, perhaps I can point out that if there is a solid case for leave to appeal, it will presumably be granted – see R.A. v. Refugee Appeals Tribunal [2015] IEHC 830 (Unreported, High Court, 21 December 2015); B.W. v. Refugee Appeals Tribunal [2015] IEHC 833 (Unreported, High Court, 21 December 2015); K.R.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 421 (Unreported, High Court, 24 June 2016); S.T.E. v. Minister for Justice and Equality [2016] IEHC 544 (Unreported, High Court, 14 October 2016); R.A. v. Refugee Appeals Tribunal (No. 3) [2016] IEHC 671 (Unreported, High Court, 21 November 2016); B.S. (India) & Anor. v. Minister for Justice and Equality & Ors. (No. 3) [2020] IEHC 485, [2020] 10 JIC 1202 (Unreported, High Court, 12 October 2020); Dublin City Council v. An Bord Pleanála (No. 2) [2021] IEHC 34 (Unreported, High Court, 28 January 2021); Waltham Abbey Residents Association v. An Bord Pleanála [2021] IEHC 597, [2021] 10 JIC 0702 (Unreported, High Court, 7 October 2021); Sweetman v. An Bord Pleanála (Sweetman XVII) (No. 2) [2021] IEHC 662, [2021] 10 JIC 2601 (Unreported, High Court, 26 October 2021);

Save Roscam Peninsula CLG v. An Bord Pleanála (No. 2) [2022] IEHC 328, [2022] 6 JIC 0903 (Unreported, High Court, 9 June 2022); Joyce-Kemper v. An Bord Pleanála (No. 5) [2022] IEHC 349 (Unreported, High Court, 10 June 2022); Kerins v. An Bord Pleanála (No. 5) [2023] IEHC 280 (Unreported, High Court, 25 May 2023); Coolglass Wind Farm Ltd v. An Bord Pleanála [2025] IEHC 1 (Unreported, High Court, 10 January 2025); Heavey v. An Bord Pleanála (No. 2) [2025] IEHC 311 (Unreported, High Court, 30 May 2025). It does not necessarily assist matters to certify superfluous issues that do not meet the necessary criteria.

The proposed questions of alleged exceptional public importance 18.

The applicants’ proposed questions are as follows: (i) “In the absence of hearing any evidence in relation to noise, in the context of a review under the EIA Directive and under national law, to what extent is a Court entitled to conclude that having regard to a separation distance of 886m from turbine to dwelling house, the noise at such property ‘in terms of volume and quality should not be significantly more intrusive than a washing machine at a less vigorous stage of its cycle?’”

8 (ii) “How is such finding to be reconciled with the findings of the High Court in other nuisance proceedings involving windfarms and in particular, the decisions of the Court in Webster -v- Meenacloghspar Wind Limited 2024 IEHC 136, and Byrne -v- ABO Energy 2025 IEHC 330. Neither of these decisions proceeded on the basis of assessment of noise impacts based on distance from turbines alone or at all. The question therefore arises as to which is the correct approach to the assessment of wind turbine noise.” (iii) “Where a developer applies for planning permission for a Strategic Infrastructure Development (‘SID’) under s.37E of the Planning and Development Act 2000 on third party lands without the consent of the owner of the lands or without any statutory right that is capable of lawfully operating in the absence of the owner’s consent, is the planning permission void ab initio? Is the Court obliged to ask itself ‘whether the breach has any real impact on the rights of a given applicant’, as occurred in these proceedings?

Is the Court entitled to find in such circumstances that a subsequent amendment of the invalid decision by s.146B has the effect of ‘curing’ the invalidity that would otherwise have resulted in certiorari?” (iv) “When submissions have been made to a planning process on behalf of persons with enhanced sensitivities to impacts from the development, what is the extent of the obligation on An Coimisiún Pleanála under s. 37G(2) of the Planning and Development Act, as amended, to consider information furnished under section 37F(1) ?” (v) “What is the relationship between the standard Condition 1 in a planning permission, and other conditions subject to which planning permission has been granted, and is there always a primary obligation to complete the development in accordance with the plans submitted regardless of the permission conditions?” (vi) “Where the ‘public concerned’ includes a dependent person with a special sensitivity to visual and aural stimulus such as shadow flicker and turbine noise, what is the ‘appropriate manner’ of assessing the direct and indirect significant effects of a wind farm on population and human health within the meaning of Art. 3(1) of the EIA Directive?” (vii) “How is the ‘sort of impact’ that public policy should accept as precluding the grant of permission to be determined in circumstances where the decision maker was on notice of the hypersensitivity of a member of the public to noise and does this have a relationship to the ‘sort of impact’ that is actionable in tort?”

Do the points properly arise?

19.

The first question obviously does not arise. The premise is of course misleading insofar as it asserts lack of evidence – there was evidence about anticipated noise impacts in this case and distances between dwellings and turbines in this case. But more generally the complained-of text in para. 1 was merely an obiter, scene-setting comment to give some slight context by way of comparison as to distance and noise. This was not some sort of de novo analysis of the planning application on my part – it was an attempt to put some context to which readers might relate on the findings of the commission. As the developer correctly submits: “29.

The Applicants then criticise the observations by the Court that the distance of 886m means that the likely impacts on the Third Named Applicant are not likely to be significant (§1 and 71 of the judgement). However, the Applicants completely fail to realise that these are not value judgements made by the Court but rather by the Commission itself – it was the Commission that considered all of the scientific evidence and concluded that there would be no significant effect on any of the Applicants.”

20.

The distance of the nearest house from the turbines was evidence in the case. The reference to a commensurate distance in Dublin city was simply a comparable example from totally accessible public domain material. The applicants don’t suggest that that measure of distance is anything other than totally accurate.

21.

The complaint in oral submissions that “there was no evidence whatsoever” about the distance from Chancery Place to the GPO is, I’m afraid, frivolous. This was just an attempt to translate an abstract distance in metres into something many readers can understand. Such comparisons are the stuff of everyday exposition – similar to what might be referred to if an American judge said that Ireland was about the size of South Carolina, Israel was the size of New Jersey, or the UK was the size of Alabama. Obviously that doesn’t require formal evidence on oath about the size of Alabama and is not an assertion that the UK and Alabama or Israel and New Jersey are comparable for all purposes (there is little to be gained by particularising why that might not be the case) – likewise I was not comparing the locus in quo to Dublin City for all purposes or comparing turbines to washing machines for all purposes, and no reasonable reader coming without an agenda would make such a patently untenable assumption.

22.

Similarly as regards noise, the applicants positively stated at leave to appeal stage that washing machines (I could have picked any number of other noise sources for context) operate at 9 at least 50dB which is louder than the noise the turbines should (my term) generate per the 2006 guidelines (which is generally 45 dB as set out in those guidelines, which were in the case). In other words the applicants agree – and expressly said – that washing machines were louder than the ministerial guideline standard for turbines. So the comparison I made was totally valid. Again the applicants don’t have anything to demonstrate that my comparison is anything other than totally accurate in that regard. The guidelines were in evidence in the case, and you don’t need to know much about either decibels or household appliances to know that many appliances are much louder than 45 dB. That’s about the height of it. This was just an attempt at contextualisation.

23.

As an attempt at contextualisation, this was small potatoes compared to what the Supreme Court considered acceptable in O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421.

24.

In that case, O’Donnell C.J. (Irvine P., MacMenamin, O’Malley, Baker and Murray JJ. concurring) recognised the legitimacy of the court referring to materials – including factual materials – not cited by parties, in referencing Hogan J.’s dissenting conclusions (emphasis added): “94. In support of these conclusions, Hogan J. marshals an impressive combination of historical information from the early years of the State, quotations from a large range of Irish authorities, and has regard to the decisions in other jurisdictions such as Roman Catholic Diocese of Brooklyn v. Cuomo 592 US – (2020), Leigh v. Commissioner of Metropolitan Police [2020] EWHC 527 Admin (‘Leigh’), a decision of the French Conseil d’État of 6 July, 2020 Confédération Générale du Travail et autres, and the decision of the German Constitutional Court of 16 April, 2020, De: BV ferG: 2020 VK 2020415.1BVV082820. The judgment also contains some illuminating quotations from Irish and international authorities such as the judgment of Mr. Justice Jackson in Railway Express v. New York (1949) 336 US 106. The judgment also shows an impressive understanding of the public health position in respect of Covid-19 over the course of the pandemic in various countries, and of significant events in this jurisdiction.

25.

Again without overplaying the point, this is a case I am dealing with after processing dozens of previous wind farm cases and looking at considerable quantities of material on such matters.

26.

If that wasn’t enough, and over and beyond what happened in Waters, this was a case where (as recorded in the substantive judgment) I gave the parties a draft of the judgment and an opportunity to correct matters. One of the headings on which comments were envisaged was “identifying points that the court proposes to address but that the parties consider it unnecessary to address”. The applicants made no comments whatsoever about the obiter contextualisation in para.

1 of the judgment - their focus was on their costs instead. So their complaint now is of dubious merit.

27.

However, leaving aside the irrelevance of their point as a basis of appeal, there is something incredibly tell-tale about the applicants’ complaint about this.

28.

People who make good points welcome contextualisation, because good points look even better when placed in context.

29.

By contrast, people who make unfounded points live by generalisation, abstraction, drama, metaphysics. They recoil from any attempt to put things in context, make abstract complaints tangible, or add granular factual detail.

30.

The fact that the applicants place such emphasis on my modest attempt to reality-check their many dramatic claims in this case, and make this objection the centrepiece of their attempt to 10 pursue appellate avenues, is immensely revealing about the lack of substance of the case and the forensic dynamic involved which recoils from the daylight of scrutiny.

31.

The decontextualised nature of this and other points is highlighted by the commission in response (emphasis added): “Whereas geographical distance is a matter of judicial notice and the level of noise at the relevant dwellings was before the Commission (and assessed by the Inspector and the Commission), the Applicants did not submit any scientific information on the alleged noise nuisance that would allegedly be experienced at any relevant dwelling and cannot use a certificate application to impugn the validity the Notice Party Developer’s EIAR and associated materials or the Commission’s conclusion that there would be no significant effect on the environment.”

32.

Overall, the applicants completely misconstrue the obiter comments at para. 1 – as the commission correctly points out (emphasis added): “The impugned analogy was illustrative, not evidential. The Court did not substitute its own assessment, as the Applicants appear to implicitly (and incorrectly) suggest; the Court simply found no basis to impugn the Commission’s conclusions.”

33.

The second point does not arise. There is no contradiction between caselaw on predicted effects in a consenting context, or caselaw on actual effects in a nuisance context. Those cases deal with different things.

34.

The third point does not arise because this complaint is totally moot. The minor error concerned has been resolved and no longer arises. As the commission correctly states (emphasis added): “15.

The Applicants’ formulation of this issue is incorrect in law and in fact. The Court did not hold that an invalid decision was ‘cured’ as tendentiously asserted in point (c) as framed. The High Court did not identify an error and then decide to refuse relief because the error was ‘harmless’. The Applicants certificate submissions (e.g. §28 et seq) are simply incorrect in this regard and proceed on a false premise. The Court’s No.1 judgment proceeded on a pragmatic assumption that left over the question as to the implications for the grant of planning permission until the section 146B issue had been resolved (§60). Further, the issue is fact-specific: it turned on the particular circumstances of the case.”

35.

The fourth, sixth and seventh point do not arise. The principal judgment was premised on an assumption rather than a finding that the rights of a non-party could be advanced. As the applicants are now trying to take advantage of that favourable assumption for the purposes of proposed appeal, I need to clarify that that was not a well-founded assumption. If one wants to advance the rights of a minor in a case, the minor must be a moving party through a next friend.

In the absence of that, the rights of a non-party can’t be a basis for certiorari. That is civil procedure 101.

36.

Even assuming I am wrong about that, the applicants did not in fact plead some obligation to argue for an elevated duty of consideration of submissions or an elevated EIA duty on the basis that they relate to a minor and/or person suffering from a medical condition. So this is simply an impermissible reprogramming of the applicants’ case after it has been dismissed. As the commission correctly submits: “… the Applicants did not plead or argue that persons with heightened sensitivities require an enhanced consideration/treatment of their submissions or enhanced obligation as to reasons.”

37.

The fifth point is totally academic and bears no meaningful relationship to any issue on which the proceedings turn. There is no proper basis to raise the issue now proposed. As the notice party submits: “33.

However, the relationship between Condition 1 and Condition 9 formed no part of the Applicants’ case and the alleged point of law is therefore necessarily an entirely generalised musing on the relationship between general and specific planning conditions which are completely unrelated to the judgement itself.”

Are the points ones of law?

38.

The points are generally essayistic and confused, mixing fact with purported law and creating new abstract conundra for the anticipated interest of appellate courts. Such an exercise is not a point of law arising from the judgment in the sense of caselaw on leave to appeal. In substance the points are largely fact-specific, albeit dressed up as points of law.

Are the points of public importance?

39.

The points are not of public importance in any sense relevant to the law on leave to appeal.

40.

The applicants majored on the alleged conflict between decisions upholding development consents for wind projects and decisions holding wind farm operators liable for nuisance. But that is comparing apples and oranges for the reason stated – there is a massive difference between 11 assessing anticipated impacts of something at consent stage and actual impacts in the operational phase.

41.

I specifically said that consent for a project does not preclude a nuisance action – that is totally consistent with the recent jurisprudence on civil liability.

42.

The developer here accepts that. So any alleged problems in that regard don’t arise in the present case. As put in submissions by the developer: “13.

Insofar as the Applicants relied on the nuisance jurisprudence in question (b) in its pleaded case it related to a contention (raised at §42 of their submissions and not in the Statement of Grounds) that a noise limiting condition ‘will be relied upon by the developer in any future prosecution as a method of operation deemed suitable for the limitation of noise’. The argument was therefore whether a grant of permission could be used as a defence to a nuisance action and had nothing to do with the question now raised as to how wind turbine noise should be measured.

14.

Without prejudice to that contention, as made very clear by this Court in Nagle View Turbine Aware Group v An Bord Pleanála a grant of planning permission does not insulate a development from a subsequent nuisance action (§99) and the Developer expressly accepted in its submissions (§70) that ‘In any event, the Applicants retain all their rights to institute whatever private law proceedings they wish to in the event of any established nuisance and the grant of permission does not preclude them from doing so or curtail their common law or statutory remedies (including under s.108 of the Environmental Protection Agency Act 1992).’ 15.

There is no point of law here, still less one of public importance. The Developer’s evidence in relation noise impacts was not controverted by the Applicants and was ultimately accepted by the Commission (see §6.11.16 of the Inspector’s Report). The Applicants raised no issue as to methodology of noise assessment in their pleaded case and, in any event, retain their rights in relation to any nuisance or private law action they may wish to institute.”

43.

As regards the claims of impact on private property rights, these are totally overblown and do not in fact arise in practice. The commission correctly summarises the position: “16.

There is no basis for suggesting systemic uncertainty or ‘public policy chaos’ (§30, Applicants’ certificate submissions). There is also no basis for suggesting that potential risk of land ‘sterilisation’ arises (§31, Applicants’ certificate submissions). Such assertions are hyperbolic speculation and without factual foundation. The claim as to sterilisation misstates the effect of a grant of planning permission insofar as it claims that a permission ‘sterilises’ a private property interest. It does not. The grant of permission does not of itself entitle the beneficiary of same to proceed with the development, as is clear from s.34(13) and s.37H(6) of the 2000 Act. The difficulty for the Applicants is that any assertion of problems in practice caused by a judgment must be backed up with evidence: there is no such evidence in this case – which a further reason as to why certification is not appropriate (per Massey (No.4) [2025] IEHC 30 at §6(v)(b)). As per Friends of Killymooney Lough (No.2) [2025] IEHC 576 at §28(iv) ‘The alleged practical ramifications are typically hypothetical or speculative and/or the proceedings are not a suitable vehicle to explore them.’”

44.

As regards reasons, there is no uncertainty in the law given that this has been addressed on multiple occasions by the Supreme Court. Despite nearly every other applicant in judicial review trying their hand at a reasons challenge in a sort of endless Groundhog Day of alleged lack of clarity on this issue, the law is clear and settled and was simply applied here to particular facts. The reason I didn’t essay a detailed treatise on the Supreme Court jurisprudence in the principal judgment was that I did not understand the law to have been in issue. The applicants have only tried to make an issue of it after their case has been dismissed (not having pleaded or previously argued that some super-special duty of reasons arises here).

45.

As regards whether conditions of a permission should be read harmoniously or conflictually, it is not in the public interest to cast doubt on well-established principles of interpretation. The commission’s perceptive submissions are worth quoting at length on this: “20.

As to point (e), which purports to relate to planning conditions, same is not appropriate for s.50A(7) certification. The insuperable problem for the Applicants is that the alleged issue was neither pleaded nor addressed. The Court simply applied established principles: planning decisions should be read in a way that makes sense and renders same valid rather than invalid where possible, and conditions interpreted harmoniously rather than in conflict (see §§48(iv),(v) and 91-92 of the No.1 judgment). No novel legal question arises, still less any point of law of exceptional public importance.

21.

The Applicants’ reliance on Kelly Dunne v. Guessford Ltd [2021] IEHC 583 is misplaced. There is no conflict with the said judgment of Simons J. (delivered in the context of s.160 planning injunction proceedings).

12 22.

The Applicants’ mere assertion in that regard is, tellingly, and in a manner that is procedurally inappropriate, only advanced for the first time in the context of this certificate application, not having been previously argued (see Condon (No.2) [2026] IEHC 136 at §13;

Hoctor (No.2) [2026] IEHC 174 at §25).

23.

As stated in Hoctor (No.2) [2026] IEHC 174 at §20 and apposite here, ‘Insofar as there is an artificially manufactured claim of inconsistency with other jurisprudence, there is no such inconsistency.’ In this regard, insofar as conflict is alleged by reference to Kelly Dunne [2021] IEHC 583 that case related to a different context and in any event no conflict is apparent at all. The claimed conflict of jurisprudence is a contrived issue and unfounded on even a cursory analysis of both judgments.

24.

Kelly Dunne v. Guessford Ltd [2021] IEHC 583 concerned the interpretation of a planning permission in the context of s.160 planning injunction proceedings regarding alleged unauthorised development. The High Court (Simons J.) considered whether materials in planning application documents could alter the terms of a granted planning permission. Simons J. held that they could not, noting in particular that the terms of a permission are public, whereas application documents are not afforded the same status.

The respondent (to the s.160 application) argued that its activities were authorised, relying on references in its environmental report and on the terms of Condition 1 requiring compliance with submitted plans. Simons J. rejected this argument, finding that the permission clearly and consistently related only to the recycling of construction and demolition waste, and did not extend to other categories such as commercial, industrial, or household waste. Simons J. emphasised that planning permission cannot be expanded through vague or incidental references in application documents; the use must be clearly identified (see §81, §§100-101). This differs materially from the present case. There, Simons J. refused an attempt to broaden the scope of a permission through Condition 1 and imprecise references in supporting materials. The Court was not engaged in construing the interaction between conditions within the permission itself. By contrast, the issue here concerned the proper interpretation of the SID permission by examining the relationship between Conditions 1, 6, and 9 in accordance with well-established principles.

25.

In reality, the argument advanced by the Applicants on this contrived, non-existent conflict of jurisprudence and purported uncertainty in the law merely invokes the fallacy of reading things in the most erroneous way possible in subjective pursuit of relief, when an alternative harmonious reading of the respective judgments is available and indeed obvious.

Further, whereas it does not add anything to the point, the Applicants omit to refer to the fact that there was a judgment from the Court of Appeal in that case: Kelly Dunne [2022] IECA 223 (wherein the appeal by the respondent to the s.160 application was rejected by the Court of Appeal).

26.

In reality, in referencing Kelly Dunne v. Guessford Limited [2021] IEHC 583, the Applicants adopt a directly comparable approach to that which the Court rejected in Massey (No.4) [2025] IEHC 30 at §17 et seq: ‘17. One move straight out of the appellant’s handbook is to produce new authority and to claim a conflict of jurisprudence (hence unlocking the magic door of the matter not being acte clair and an appeal being necessary to resolve doubt). The problem of course is that typically the doubt is stimulated artificially for the purpose.

Furthermore, the interpretation of a particular permission is inherently fact-specific, by reference to well established legal principles, and does not give rise to a general point of law. In this connection, as the Court stated in Condon (No.2) [2026] IEHC 136 at §10(iii) ‘The question must not be fact-specific arising in the particular context of a particular case

46.

The contended-for and unpleaded argument for some form of super-special EIA duty regarding impacts on particular persons is not a matter of public importance even if it properly arose because it is simply contrived for the purposes of the case, not being workable in any event and having no prior support in anything whether we are talking about domestic, EU or international legal materials, as well as being a ius tertii in the absence of the appropriate applicant concerned. As the commission submits: “The Applicants seek to impose a novel obligation to conduct bespoke assessments for particular individuals. No such requirement exists in EU or domestic law.”

13 47.

On the alleged duty for special treatment of the submissions relating to the non-party minor here that is alleged to have been breached in a way that gives rise to certiorari, the notice party correctly identifies the multiple problems with that belated attempt to introduce a point that does not properly arise from the pleaded case: “Arising from the judgement 42.

It is one of the remarkable features of the Applicants’ submissions that no effort is made to relate the alleged points of law to the specifics of the pleaded case and how that pleaded case was treated of in the judgement in respect of which a certificate is sought.

That criticism is applicable generally but is particularly acute in respect of this purported question.

43.

No effort is made to correlate the question with the judgement – instead all the Applicants observe is that ‘This point of law arises partly from…’ the approach adopted by the Court in relation to shadow flicker (§51) and the approach adopted by the Court to the Wind Energy Guidelines 2006 (§52). Both points are then prayed in aid to make the general argument that a person with special needs is a part of the ‘public concerned’ for the purposes of Article 3(1) of the EIA Directive and, without any explanation as to why this is the case, entitled to a different or elevated consideration for the purposes of EIA. There is precisely no engagement with the judgement contrary to the requirement identified by Humphreys J. in Condon: ‘While a leave to appeal application is in one sense premised on the view that the decision may be incorrect, that does not relieve a would-be appellant from actually engaging with the logic and reasoning of the judgment as opposed to merely repeating his or her position…’ 44.

Furthermore, and respectfully, the Applicants never made this argument in their pleaded case. The Applicants did criticise the Commission for the alleged paucity of the treatment of the Third Named Applicants’ submission and/or the alleged insufficiency of the reasons given but not on the basis that the Commission had somehow excluded that Applicant (or any party) from the ambit of the public concerned or that the EIA Directive required an elevated or different type of assessment for persons with special needs. This issue was not pleaded and unsurprisingly features nowhere in the judgment.

45.

Neither the Commission nor the Court reached a conclusion that a person with additional needs fell outside the ambit of the assessment required by Article 3(1) of the EIA Directive – rather the conclusion reached by the Commission and upheld by the Court was that there would be no significant effect on any person. As with the questions above, the Applicants have chosen to seek certification of points of law that were not pleaded and do not form any part of the judgement.”

Are the points of exceptional public importance?

48.

This does not arise having regard to the foregoing.

Is an appeal in the public interest?

49.

An appeal is not in the public interest. It is not in the public interest for an appeal to go forward on such a confused and reprogrammed basis as the appellants attempt here, or for them to advance points that depend on the rights of a person not a party to the proceedings based on points that were not in fact argued.

50.

There is also a public interest in finality in planning matters. As noted above, the project was deemed acceptable by the inspector and the commission and the applicants have had a full hearing on the merits over two modules, and the applicants will have a further day in court in terms of declaratory relief in the No. II case.

51.

More generally, the urgent public interest in renewable energy infrastructure militates in favour of this matter not going further.

52.

I would generally endorse the commission’s submission on public interest: “PUBLIC INTEREST 41.

There is no public interest in an appeal on any of the seven points. The Applicants have failed to establish how certification of either point is in the public interest. No actual affirmative public benefit or public interest has been identified or relied upon by the Applicants in this regard. In this connection, the Applicants’ submissions consist of reagitating already rejected arguments, advancing unpleaded assertions, making new arguments for the first time in the certificate context, and a clear misinterpretation and failure to engage with relevant findings in the Court’s No.1 judgment. Where, as here, the law that was actually applied by the Court in determining this particular case is not uncertain, the public interest suggests an appeal is not warranted.

42.

It is respectfully submitted that the public interest militates against allowing an appeal, for the same reasons as set out in Carrownagowan (No.3) [2024] IEHC 549 at §83 to §92, and §93(vii). As the Court concluded in that case at §93(vii) and apposite here:

14 53. ‘…the public interest militates against allowing further appeal - there is a significant public interest, now legally enshrined in various ways, in the expeditious determination of the lawfulness of renewable energy infrastructure, and an enshrined EU law provision affording a presumed overriding public interest in the provision of such infrastructure in some circumstances where that conflicts with the habitats directive, and in any event, the facts of the present case are an extremely poor basis for a proposed appeal, given the lack of evidence on crucial points.’ 43.

See also Massey (No.4) [2025] IEHC 309 at §29-§34, which is consistent with the above and supportive of the Commission’s position herein that an appeal in the present case is not in the public interest.

44.

It is also not in the public interest to certify either of the points, noting the point made in Nagle View (No.2) [2025] IEHC 3 at §9(vii) (‘The nature of the project and the risks of further delay are factors going to the public interest’).

45.

Further, certain points made by the Court in refusing leave to appeal in Condon (No.2) [2026] IEHC 136 at §63 apply equally to the present case: ‘63. An appeal that is based on a misunderstanding of the principal judgment in a way that seems to “spread maximum confusion” (Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38, [2024] 1 I.R. 386, [2022] 10 JIC 2402 per O’Donnell C.J. at para.

22 (Dunne, Woulfe, Hogan and Murray JJ. concurring)) is not in the public interest.’ 46.

In addition, as noted in Hoctor (No.2) [2026] IEHC 174 at §§27-30 and likewise applicable in the circumstances of this case: ‘28. An appeal is clearly not in the public interest particularly having regard to the public interest in infrastructure and renewable energy and to the non-compensatable financial prejudice to the developer.

There is no basis for leave to appeal in this case. The Applicants’ submissions in support of this application fall short of asserting any point of law of exceptional public importance.

48.

This is a case where it merits recalling that the clear legislative intention is that planning cases should generally be confined to the High Court. As noted by Barniville J. (as he then was) in Rushe [2020] IEHC 429 at §24: ‘…as has been pointed out in many of the judgments … the clear intention of the Oireachtas in enacting s. 50A was that, in most cases, the decision of the High Court on an application for leave to seek judicial review of a planning decision or on an application for judicial review of such a decision will be final and, in most cases, there will be no appeal. That is why s.

50A(7) was enacted.’ 49.

See also the observation of Holland J. in Monkstown Road [2023] IEHC 9 at §73 insofar as it emphasises the rare and exceptional nature of certification. Furthermore, points that in substance concern the application of clear and well-established principles to the particular facts of the case are not certifiable for appeal - as Holland J. made clear in Monkstown Road [2023] IEHC 9 at §69. That point is apposite to this certificate application.

50.

This is a case where the High Court’s judgment on the application for judicial review should be final.

51.

For the reasons set out in these submissions, it is respectfully submitted that the threshold under s.50A(7) has not been met and, accordingly, the Applicants’ application for a certificate should be refused by this Honourable Court.”

I would also endorse the notice party’s submission on this issue: “Public Interest 58.

The Applicants have made scattered references to the public interest in their submissions.

15 59.

However, the public interest is in favour of refusing the application. In the recent decision in Moss v An Coimisiún Pleanála [2026] IEHC 175, Humphreys J. said as follows (endorsing the developer’s submission in that case):

More generally, the delay involved in an appeal would tend to defeat the public interest in the expeditious determination of judicial reviews brought under section 50 of the 2000 Act.

The High Court in Glancré Teoranta acknowledged that it was the intention of the 8 legislature that most planning cases will be determined in the High Court and that an appeal will remain the exception: ‘It is clear that the statutory regime which has been devised by the legislature indicates an interest to ensure that the planning process is not to be hampered by a completely unrestricted access to the court which may cause harmful delays.

I am satisfied that it is a restriction to be lifted only in exceptional cases.’ 28. As set out by Humphreys J in Massey v An Bord Pleanála (No.4) [2025] IEHC 309 at §6(v)(a) when considering the principles which apply to the “public interest” criterion and delay: “An appeal must be in the public interest (a) The context is the objective of the Oireachtas in seeking finality, certainty and expedition in challenges brought by way of judicial review in planning cases… The nature of the project and the risks of further delay are factors going to the requirement that an appeal must be in the public interest: see per McGovern J. in Dunnes Stores v. An Bord Pleanála [2015] IEHC 387, 2015 WJSC-HC 6876, [2015] 6 JIC 1805 (Unreported, High Court, 18th June 2015) at §15 and §16. See also analogously and nonprecedentially Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024) at para. 24: ‘The Court must have regard to the potential impact upon the notice party of any further delay in these proceedings’.” [Emphasis Added] 29. The nature of the project, in this case a solar farm development, and the risks of further delay are factors going to the public interest. This particular issue was considered by the High Court (Humphreys J.) in an application for a certificate for leave to appeal that arose in the case of Nagle View Turbine Aware Group No. 2 v An Bord Pleanála [2025] IEHC

The same concerns arise here. As identified in the Affidavit of Mr Sherry this is a significant renewable energy project that will make a sizeable contribution to the attainment of renewable energy targets. Furthermore there have already been very significant delays in the project as a result of these proceedings. The impugned decision was made on 21st November 2023 and nearly 30 months have been lost as a result of these proceedings. It is imperative (and in the public interest) that this application is refused so that the project can proceed.

Conclusion 61.

The Court’s judgement is correct and raises no issue of principle and the Developer have identified no point of law of exceptional public importance. The Court is respectfully requested to refuse the Certificate sought.”

Does the fact that there is an EU law point make any difference?

54.

While there is brief reference to for example the EIA directive, there is in fact no developed or properly formulated EU law point in the proposed questions.

55.

Nonetheless, for the avoidance of doubt, I have obviously (and as always when an EU law point is argued) considered any potential relevance of art. 267 TFEU. But the obligation to refer (even for an apex court) does not apply if a point is acte clair/ acte éclairé: judgment of 6 October 16 2021, Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19, ECLI:EU:C:2021:799 (Grand Chamber) at para. 33.

56.

In order to demonstrate that a point is not acte clair, there are essentially two options: (i) first of all, a party has to show that there is a sufficiently weighty inherent logic to the contrary position; or (ii) alternatively, they can show that there is some relevant material to the contrary either at European or at national level that is capable of affecting the result.

57.

The European legal space is rich with potential supporting material for any good point that a party may have. If one starts with 27 member states, there are 10 candidate or potentially candidate accession countries (9 recognised states and Kosovo) that are all in the process of assimilating EU law in one shape or form. There is obviously one former European member state (the UK) and (for the sake of absolute technical inclusivity) one former non-European member state, Algeria (a part of France as an EEC member from, relevantly, 1957-62). That leaves 13 other European states, virtually all of which have some formal relationship with the EU that involves some level of incorporation of EU law, most notably the 3 other EEA states and the one EFTA member (Switzerland) that is not a member of the EEA, plus 6 other European countries, most of which have some level of EU association. In addition, there are a large number of European and non-European special territories of these states, two of which (Greenland and Saint Barthélemy) are former EU territories. EU law also influences non-EU states through cooperation agreements and otherwise.

We are talking about a population of 450 million in the EU strictly speaking, 500 million just sticking with the EEA, over 750 million taking a wider view of the European space whose legal systems have engaged with EU law. If a party can’t come up with a single court decision or academic work either at EU-level or from that gigantic pool that would change the result of this case then a court can reasonably conclude that there is no demonstrated doubt about the point such that a reference to the CJEU would arise, even as an obligation for an apex court.

58.

In the present case, the points do not have an inherently weighty internal logic to propel it to the level of creating real doubt without authority. And there is simply nothing by way of authority creating doubt to suggest that other EU-law-enforcing courts would decide the matter in the way contended for.

59.

The applicant hasn’t come forward with any judgment of any court in Ireland, or in any other member state or former member state, showing support for the EU-law related interpretations contended for. Nor is there any judgment of the Court of Justice or an opinion of an Advocate General creating doubt about the conclusion proposed in the substantive judgment, or even any academic material doing so. Not a scrap of paper in a continental legal space of the best part of a billion people. The reference procedure isn’t for any and every possible imaginative question – only for questions on which there can be a real dispute (see Toole v. Minister for Housing (No. 3) [2023] IEHC 378, [2023] 7 JIC 0302 (Unreported, High Court, 31 October 2023) paras. 86-87). No basis for such a dispute has been shown here.

60.

If contrary to the foregoing the European (or EU-law-applying) courts revisit this and come up with new authority of relevance, this point or any points can and will be revisited, but the acte clair doctrine is meaningless if it has to accommodate the hypothetical academic possibility of doubt that does not currently exist and is not currently foreseeable. What is in doubt at any given time has to be judged on the basis of the legal landscape at the time in question. No such doubt properly arises at the present moment in time. If doubt arises in future any error in this regard will have been temporary and self-correcting.

Summary 61.

In outline summary, without taking from the more specific terms of this judgment: (i) the points do not properly arise; (ii) the points are confused and based on premises that do not arise, and, while phrased in general terms, in reality complain about the application of uncontroversial principles to particular facts; (iii) the points are not of public importance; (iv) it is not in the public interest for the matter to proceed further on such a basis; and (v) there is no meaningful EU law point identified, let alone one on which doubt arises.

Order 62.

For the foregoing reasons, it is ordered that: (i) the application for leave to appeal be dismissed; (ii) in the event that an application for leapfrog leave to appeal is made and acceded to by the Supreme Court, the costs of the leave to appeal application be costs in that appeal; (iii) otherwise, there be no order as to the costs of the leave to appeal application; and (iv) the foregoing order and the order already pronounced in the substantive judgments that:

17 (a) (b) the proceedings be dismissed; and there be no order as to costs (including no order as to the costs of any previous module or application in the proceedings having regard inter alia to O. 103 r. 38(1)(b) and/or (c) RSC, or any reserved or adjourned costs not otherwise dealt with); be perfected forthwith with no further listing as the final order of the High Court in the proceedings.