High Court dismisses planning challenge to housing development, allowing stay of derogation licence for further submissions.

[2023] IEHC 381

THE HIGH COURT

JUDICIAL REVIEW

[2021 No. 251 JR]

IN THE MATTER OF SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT

ACT 2000 AND

IN THE MATTER OF THE PLANNING AND DEVELOPMENT (HOUSING) AND RESIDENTIAL

TENANCIES ACT 2016

BETWEEN

ALICE O’DONNELL, COLIN ACTON, SEÁN GOFF, EVELYN CAWLEY, DECLAN MORRIS,

CIARA MAN, GARETH MADDEN, AILEEN LENNON, KEITH SCANLON AND CARINA HARTE-

HOLMES

APPLICANTS

AND

AN BORD PLEANÁLA, MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENT

AND

DRUMAKILLA LIMITED

NOTICE PARTY

JUDGMENT of Humphreys J. delivered on the 5th day of July, 2023

1. Like Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High

Court, 27th January, 2023), this case relating to the proposed construction of residential units and

associated works at the former Carmelite monastery at Delgany, County Wicklow is another window

on the rise and fall of the Catholic Church in Ireland.

2. The central section of the monastery, according to the National Inventory of Architectural

Heritage (NIAH), was originally a country house built around 1810. The Carmelites took possession

of the house in 1844. According to other public domain material (wicklowheritage.org), the building

of the monastery church was delayed by the Famine. The foundation stone was laid in 1851 and

the first Mass was celebrated in 1853. The same source describes the church as having been called

“a little gem of gothic architecture”.

3. According to the NIAH, a large two and three-storey wing to the south was built around 1860

and a school was held within the monastery until 1896. Wicklowheritage.org states that:

“In recent times, due to diminishing numbers in the Order, the Carmelite Sisters decided to

sell the monastery and move the small remaining congregation to a Carmelite monastery in

Stillorgan Co. Dublin. The bishop instructed that the church be deconsecrated and religious

artefacts be removed before the property was vacated ... the final Mass in the church was

celebrated in February 2019.”

4. In anticipation of the development consent application, an application for a bat derogation

licence was made to the National Parks and Wildlife Service (NPWS) on 17th January, 2020. The

licence was issued on 4th March, 2020.

5. On 16th July, 2020, a request was made to amend the licence to include the brown long-

eared bat. That was granted and an amended licence issued on 21st July, 2020.

6. Pre-application consultation took place on 23rd July, 2020, which resulted in a board order

identifying issues to be addressed dated 12th August, 2020.

7. The application for planning permission under s. 4 of the Planning and Development

(Housing) and Residential Tenancies Act 2016 was submitted on 21st October, 2020. The revised

derogation licence was appended to the application documentation, so the application date was the

first date on which the applicants could have known about it.

8. The applicants made submissions on the application. The board’s inspector then prepared

a report recommending grant of permission with conditions dated 3rd February, 2021. The board

broadly accepted this recommendation and granted permission on 15th February, 2021.

Procedural history

9. Proceedings challenging the board’s decision and the derogation licence were issued on 25th

March, 2021.

10. On 19th April, 2021, I granted leave to seek judicial review and a stay on the works. I gave

case management directions on 14th May, 2021. An issue then blew up because one of the points

being made by the applicants was covered by the Waltham Abbey v. An Bord Pleanála [2021] IEHC

312, [2021] 5 JIC 1002 (Unreported, High Court, 10th May, 2021) proceedings and the matter was

then delayed pending a resolution of that issue.

11. On 28th March, 2022, the directions were amended and were further amended on 9th

May, 2022 by agreement of the parties. There were then further revised directions by agreement on

20th June, 2022 and further agreed adjournments on 25th July, 2022 and 3rd October, 2022.

Ultimately,

following completion of the exchange of pleadings and affidavits, a date was fixed in the list to fix

dates on 30th January, 2023 and the matter was heard on 9th to 11th May, 2023. On the latter

date, an additional affidavit exhibiting further material that was before the board was admitted

without objection.

12. Following the CJEU judgment in Case 721/21 Eco Advocacy CLG v. An Bord Pleanála (Court

of Justice of the European Union, 15th June, 2023, ECLI:EU:C:2023:477), the matter was listed for

mention on 19th June, 2023 for any further submissions arising from that case. It was then

adjourned on consent to 26th June, 2023, at which point some further argument was offered in

relation to pleadings issues. The applicants wanted to reserve the right to yet a further reply so the

matter was adjourned to 27th June, 2023 for that purpose. At that point some discussion arose as

to whether the court could give a judgment on most of the issues but indicate provisionally any

views or difficulties that arose in respect of aspects of the derogation licence arguments and invite

further submissions on those. That was not particularly objected to and judgment was formally

reserved on the basis that such an option would be available.

Reliefs

13. The reliefs sought by the applicants are as follows:

“1. An order of certiorari quashing the decision of the Respondent granting planning

permission for the construction of 232 residential units and associated works at the site of

the former Carmelite Monastery Lands, Delgany Co. Wicklow on 15th February 2021 (ABP

Ref 308467-20) (the ‘Decision’).

2. An order of certiorari quashing the Derogation Licence (DER/BAT 2020/9) (the ‘Derogation

Licence’) granted by the Second Respondent in respect of bats and issued to the Developer

in respect of the proposed development on 21st July 2020.

3. Such declaration(s) of the legal rights and/or legal position of the applicants and (if and

insofar as legally permissible and appropriate) persons similarly situated and/or of the legal

duties and/or legal position of the respondents as the court considers appropriate.

4. A declaration that (to the extent that they are not capable of bearing a conforming

construction) sections 5, 6, and 7 of the Planning and Development (Housing) and

Residential Tenancies Act, 2016 (‘the 2016 Act[’]) are incompatible with Article 6(4) of

Directive 2011/92/EU and/or the requirements of fair procedures and natural and

constitutional justice.

5. A declaration that (to the extent that it is not capable of bearing a conforming

construction) section 5(6) and 9(6)(c) of the 2016 Act are incompatible with Articles 3 and

4 of the Strategic Environmental Assessment Directive, Directive 2001/42/EC.

6. A stay on works being carried out pursuant to the Decision pending the resolution of these

proceedings.

7. An order that section 50B of the Planning and Development Act, 2000 (the ‘2000 Act’),

and/or sections 3 and 4 of the Environment (Miscellaneous Provisions) Act, 2011, and/or

Article 9 of the Aarhus Convention apply to the present proceedings.

8. Costs."

14. Since core ground 1 was withdrawn, relief 4 falls so the preliminary objections at paras. 6

and 7 in the State’s statement of opposition does not arise.

Core grounds

15. Core ground 1 states as follows:

“The Decision is invalid as the statutory pre-consultation procedures provided in sections 5

and 6 of the Planning and Development (Housing) and Residential Tenancies Act, 2016 (the

‘2016 Act’) are incompatible with Article 6(4) of Directive 2011/92/EU (as amended) (the

‘EIA Directive’) and/or the requirements of fair procedures and natural and constitutional

justice.”

16. As noted above, this ground was not pursued.

17. Core ground 2 states as follows:

“The Decision is invalid because the Board granted planning permission for the proposed

development in contravention of a zoning objective or an objective in relation to the zoning

of land contrary to section 9(6)(b) of the 2016 Act.”

18. This is dealt with below as a domestic law issue.

19. Core ground 3 states as follows:

“The Decision is invalid because the Board failed to identify any basis pursuant to section

37(2)(b) of the 2016 Act as to why it was entitled to grant permission notwithstanding that

the proposed development constitutes an acknowledged material contravention of the

relevant Development Plan and Local Area Plan.”

20. This is also addressed below as a domestic law issue.

21. Core ground 4 states as follows:

“The Decision is invalid as the material contravention procedure provided by the Minister in

section 5(6) and/or 9(6)(c) of the 2016 Act is incompatible with the requirements of Directive

2001/42/EC ([‘]the SEA Directive’) and/or that the Board was required to but failed to ensure

the effectiveness of the law of the European Union.”

22. This is a tortuously and inaccurately phrased point because obviously a provision of primary

statute law is not a “procedure provided by the Minister”. Essentially, this is a complaint about

statutory validity which is best dealt with on a reach-constitutional-issues-last-basis.

23. Core ground 5 states as follows:

“The Decision is invalid because the Developer and the Board failed to comply with Article

299B of the Planning and Development Regulations 2001.”

24. This ground was not pursued.

25. Core ground 6 states as follows:

“The Decision is invalid because the Board erred in failing to have any, or any adequate

regard for the protection of bat fauna for the purposes of Annex IV and Article 12 of the

Habitats Directive and/or section 23 of the Wildlife Act 1976 (as amended).”

26. This is an EU law point which is best postponed until after dealing with domestic law issues.

27. Core ground 7 states as follows:

“The Derogation Licence issued to the Developer by the Second Respondent is invalid

because the decision maker failed to establish that there is no satisfactory alternative and/or

where the rationale for granting it is wrong in law and fact and/or is so unreasonable that

no reasonable decision maker could have arrived at it.”

28. This is the sole core ground relating to the challenge to the derogation licence.

29. Core ground 8 states as follows:

“The Decision is invalid as the Board breached the EIA Directive and/or acted irrationally or

unreasonably and/or breached the Applicants’ rights to fair procedures and reasoned

decision making in its assessment of traffic impacts from the proposed development on the

greater Delgany area.”

30. This is a partly domestic and partly EU law point.

31. Core ground 9 states as follows:

“A stay, if necessary, on works being carried out pursuant to the impugned grant of planning

permission pending the resolution of these proceedings.”

32. That is flawed drafting in that it doesn’t constitute a ground, but rather a claim for relief. As

noted above, that was granted when leave was sought.

Domestic law issues regarding the development consent

33. There are essentially three domestic issues raised going to the validity of the development

consent, which can be summarised as follows:

(i) core ground 8 – reasons regarding traffic;

(ii) core ground 2 – material contravention regarding zoning; and

(iii) core ground 3 – material contravention regarding apartments.

Core ground 8 - reasons regarding traffic

34. As an initial point in favour of the applicants, the notice party complains that this point is

not sufficiently particularised (statement of opposition para. 55), but while the cry of non-

particularisation has a lot more resonance in relation to other parts of the applicants’ case, I think

the point the applicants are trying to make under the traffic reasons heading is acceptably clear.

35. However, insofar as the applicants ambitiously complain that the board fell into “material

errors of fact”, this is a misunderstanding. There is no “error” in the sense of the caselaw. Rather

there is merely difference of methodological and expert opinion.

36. Insofar as a complaint is made about irrationality on the pleadings, this wasn’t the primary

focus of the applicants’ arguments, but it hasn’t been demonstrated that the conclusion was irrational

in the sense of not being open to the board.

37. Insofar as there is a complaint about “fair procedures”, this seems essentially to boil down

to the reasons argument which is the core of the issue under this heading.

38. The inspector sets out a detailed set of reasons in relation to traffic at paras. 10.7.1 to 10.7.9

as follows:

“10.7.1. The development proposes a [sic] three vehicular access points, one from Bellevue

Road and the other two from Convent Road. There will be no cross route through the site

from Bellevue Road to Convent Road by vehicular traffic. The Bellevue Road access road

will service 45 dwelling units, 13 houses along Bellevue Road will avail of direct access and

the two access points along Convent Road will serve the remaining 174 units. The existing

road, footpath and cyclist infrastructure in the vicinity of the site is well below standard and

observers highlight this point.

10.7.2. The applicant has submitted a Traffic and Transport Assessment (TTA), the

methodology of which the planning authority are satisfied with. Local observers comment

on the internal layout of the site and are unhappy that a through road has not been proposed.

All observers that had something to say about traffic and transport were concerned about

additional traffic on the local road network leading to congestion and delays at key junctions.

There are concerns too about the provision of housing directly fronting onto Bellevue Road

and that there may be conflicts between vehicles and people exiting their homes. The lack

of existing pedestrian facilities in the area are also heavily criticised, and local observers

worry about the safety of pedestrians and cyclists. In addition, observers comment that

given the lack of basic pedestrian/cyclist facilities in the area, the expectation that future

occupants will leave the car at home and travel by more sustainable methods is not realistic.

There are also some technical criticisms levelled at the modelling techniques used and overall

methodology expressed in the TTA. However, the planning authority have no similar

concerns expressly detailed in the Chief Executives Report.

10.7.3. The applicant’s TTA addresses existing traffic behaviour, new proposed access

arrangements, trip generation associated with the proposed residential development, traffic

impact of the proposal and the proposed car and bicycle parking arrangements and assess

five junctions in the vicinity of the development site, as follows:

• Junction 1- Bellevue Hill / Glen Road / Church Road

• Junction 2- Convent Road / Church Road

• Junction 3- Church Road / Delgany Wood Avenue

• Junction 4- Convent Road / Chapel Road / Delgany Wood Avenue roundabout

• Junction 5- Bellevue Hill / Ballydonagh Road / Lower Windgates

10.7.4. The TTA states that expected trip generation for the proposed residential

development, community centre and crèche was estimated utilising the TRICS database and

was revealed to be in total 35 trips inbound and 78 trips outbound in the morning peak hour

and 69 trips inbound and 43 trips outbound in the evening peak hour. In addition, the

adjacent permitted Richview development (WCC Ref. 15/1307, ABP Ref. PL 27.248401) trip

generation figures were added in with development scenarios. The analysis and operational

assessment of the proposed residential development at the five junctions revealed that at

present the junctions operate below the normal design threshold during the morning and

evening peak hours. The Church Road arm on Junction 1- Bellevue Hill / Glen Road / Church

Road during the morning peak hour will approach the design threshold with minor queues

and delays for motorists beginning to occur. Likewise, the Convent Road arm on Junction

2- Convent Road / Church Road, will approach the design threshold. The report goes to

state that into the future all five junctions will continue to operate below the normal design

threshold during the evening peak hour and that overall, the development will have a

minimal impact on the junctions. Observers strongly disagree with this analysis, criticising

the TTA at a technical level and from an anecdotal perspective with descriptions and

photographs of traffic problems. The planning authority do not challenge the findings of the

TTA, but do have a number of technical requirements regarding site specific issues that can

be addressed by condition.

10.7.5. I note the findings of the TTA but I must highlight issues that lie beyond the site,

roads are narrow, junctions are angled, footpaths lack width or are non-existent and cyclist

facilities are token at best. Delgany Village, its centre and environs has been allowed to

grow without the required and needed advances in road/footpath/cyclist facilities. I

observed challenges relating to current car parking practices – whereby cars park on the

footpaths within the village and obstruct safe and pleasant pedestrian passage. I note that

a large volume of observations have underlined the issue of traffic congestion as one of the

major concerns for the area. I do not doubt that most if not all local roads are extremely

congested at peak times, the accounts and photographs submitted by observers adequately

illustrate the existing problems for car users and pedestrians/cyclists alike. The dates of my

recent site visits are not representative of likely traffic, but I did observe a large volume of

cars parked across footpaths and along streets. In my view, the overall transport character

of the area is defined by private car use and this is exemplified by the profusion of cars

parked on footpaths in the village centre. The planning authority are also concerned about

the phasing of the development and particularly the delivery of footpaths along Bellevue

Road. I agree that footpath facilities should be delivered within the first phase of the

development, especially along Bellevue Road, where there currently are none.

10.7.6. To address issues that might arise in terms of increased traffic volumes, the applicant

proposes to open up the site to pedestrian and cyclist permeability and this is to be

welcomed. Specifically, I note that connections to the development site to the north area

proposed and should be supported. In this context, it would be desirable that such

connections are actually implemented. I am satisfied that this can be achieved as Gorteen

Way Ltd, the owner of the adjacent site, has given consent for this current application to be

made, so logically conditions could be attached to ensure pedestrian/cyclist connections are

implemented from the outset. In addition, the planning authority note that universal access,

in terms of a ramp, should be designed to allow permeability for all users, specifically at

units 74-75, I agree.

10.7.7. The proposed development will add significant public realm improvements along

Bellevue Road and Convent Road. I note that residents along Bellevue Road are concerned

that a profusion of new entrances along Bellevue Road will constitute a traffic hazard. The

planning authority have not raised any particular concern other than compliance with DMURS

and welcome the new frontage and pedestrian facilities along Bellevue Road. At present the

road in the vicinity of the site, is narrow and there are no footpaths with housing on just one

side, traffic is inclined to move swiftly along this route. With the arrival of individual houses

facing onto and accessing Bellevue Road at multiple locations, together with a dedicated

footpath, the resultant behaviour and speed of passing traffic change. The provision of

multiple entrances along Bellevue Road will moderate driver behaviour resulting in slowing

traffic and making the pedestrian environment safer and more pleasant than it is now.

Aesthetically, this location is part of Delgany and the urban expansion of the town is

encouraged through the objectives of the LAP. The roll out of pedestrian facilities such as

footpaths and street lighting is welcomed and in my opinion a beneficial addition to the

overall amenity of the area.

10.7.8. The applicant has not prepared a specific Mobility Management Plan as part of their

Traffic and Transport Assessment. It is clear that current commuting habits based on the

private motor car are unsustainable and even a low density residential development would

not improve matters and in fact damage the economic viability of public transport plans in

the area or make more sustainable modes unattractive. Therefore, the production of a

Mobility Management Plan that combines some measures to manage and control car parking

should take place before development commences and I am satisfied that this can be dealt

with by condition.

10.7.9. On balance, the proposed development is located at a well-served suburban location

close to a variety of amenities and facilities. Current public transport options are limited to

moderate frequency bus services without defined bus corridors and feeder routes to the

DART station at Greystones are noted. The cycle and pedestrian facilities in the area are

poor and significant improvements in the wider area are needed. However, I note that the

proposed development will add significant improvements to the public realm in the

immediate vicinity and this is to be encouraged. It is inevitable that traffic in all forms will

increase as more housing comes on stream. However, I am satisfied that most of the

ingredients are in place to encourage existing and future residents to increase modal shift

away from car use to more sustainable modes of transport and this can be achieved by the

implementation of a mobility management plan and a car parking strategy to be submitted

prior to the commencement of development.”

39. As the board states in written submissions “[t]he obligation is to provide the main reasons

on the main issues (see e.g. Balscadden [Road SAA Residents Association Ltd v. An Bord Pleanála,

[2020] IEHC 586, [2020] 11 JIC 2501 (Unreported, High Court, 25th November, 2020)] § 39 and at

least ten High Court judgments since).”

40. Balscadden noted that the main guidance on reasons was Connolly v. An Bord Pleanála

[2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, [2018] 7 JIC 1701 and that Balz v. An

Bord Pleanála [2019] IESC 90, [2020] 1 I.L.R.M. 367, [2019] 12 JIC 1202 did not create an additional

layer of obligation as to reasons but rather was about dismissal of a point in limine. As the board

points out in the present case, Balz could not have been intended to be a radical new departure in

relation to the law of reasons. If the Supreme Court were going to do that, they would do it expressly

and would outline the departure from the authorities on reasons, as well as considering the practical

implications involved.

41. In Sliabh Luachra against Ballydesmond Wind Farm Committee v. An Bord Pleanála [2019]

IEHC 888, [2019] 12 JIC 2017 (Unreported, High Court, 20th December, 2019), McDonald J. said at

para. 38 that requirement for reasons does not require a submission-by-submission analysis, at

least not in every case.

42. In Friends of the Irish Environment CLG v. Government of Ireland [2020] IEHC 225, [2020]

4 JIC 2405 (Unreported, High Court, 24th April, 2020) (currently under appeal but not on this point),

Barr J. at para. 122 noted that reasons can be provided on an issue-by-issue basis.

43. In Balscadden, I attempted to summarise the practical effect of Connolly, in essence as

requiring the main reasons on the main issues. This standard has been applied in numerous cases

since then:

(i) Atlantic Diamond Ltd v. An Bord Pleanála [2021] IEHC 322, [2021] 5 JIC 1403

(Unreported, High Court, 14th May, 2021) §§8, 14, 18.

(ii) Clifford and Sweetman v. An Bord Pleanála [2021] IEHC 459, [2021] 10 JIC 1501

(Unreported, High Court, 15th October, 2021) §63.

(iii) Flannery, Nolan and Kearns v. An Bord Pleanála [2022] IEHC 83, [2022] 2 JIC 2504

(Unreported, High Court, 25th February, 2022) §§135, 147, 157, 158.

(iv) Stanley v. An Bord Pleanála [2022] IEHC 177, [2022] 3 JIC 2805 (Unreported, High

Court, 28th March, 2022) (Phelan J.) §67.

(v) Cork County Council v. Minister for Housing, Local Government and Heritage [2022]

IEHC 281, [2022] 5 JIC 2701 (Unreported, High Court, 27th May, 2022) §81.

(vi) Monkstown Road Residents’ Association v. An Bord Pleanála [2022] IEHC 318, [2022] 5

JIC 3106 (Unreported, 31st May, 2022) (Holland J.) §64 (leave to appeal was sought

regarding the application of that standard in Monkstown Road Residents’ Association v.

An Bord Pleanála [2023] IEHC 9, [2023] 1 JIC 1907 (Unreported, High Court, 19th

January, 2023)).

(vii) Killegland Estates Ltd v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106

(Unreported, High Court, 1st July, 2022) §75, 78, 79, 99, 114, 190.

(viii) Protect East Meath Ltd v. Meath County Council [2022] IEHC 395, [2022] 7 JIC 0108

(Unreported, High Court, 1st July, 2022) §57.

(ix) McGarrell Reilly Homes Ltd v. Meath County Council [2022] IEHC 394, [2022] 7 JIC 0107

(Unreported, High Court, 1st July, 2022) §§38, 42.

(x) Hickwell Ltd and Hickcastle Ltd v. Meath County Council [2022] IEHC 418, [2022] 7 JIC

1206 (Unreported, High Court, 12th July, 2022) §47.

(xi) Foley v. Environmental Protection Agency [2022] IEHC 470 (Unreported, High Court,

26th July, 2022) (Twomey J.) §227.

(xii) Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High

Court, 27th January, 2023) §§227, 237.

(xiii) Glassco Recycling Ltd. v. An Bord Pleanála [2023] IEHC 293 (Ferriter J.), §67.

44. While it is probably too much to expect that all cases will word the same point identically, it

is clear that there is a centre of gravity in the jurisprudence which I think could reasonably be

described as converging around the concept of the obligation being to provide the main reasons on

the main issues. Virtually all authorities are consistent with Balscadden insofar as it adopts that

interpretation of Connolly.

45. As regards the question of whether the inspector here gave the main reasons on the main

issues insofar as concerns traffic, certainly the report does not address the full detail of the

applicants’ submission. But it provides a broad reason as to why that was not accepted. The board

did agree that there would be an increase in traffic, but referred to a number of features that may

mitigate this to an extent that the board considered acceptable. The lack of objection by the local

authority is also considered in a context where this is not an appeal decision.

46. Also notable is the fact that the board introduced condition number 11 which required that

the internal road network be compliant with the Design Manual for Urban Roads and Streets (DMURS)

standard. In addition, the board added condition number 14 which requires the submission and

agreement of a mobility management plan.

47. The applicant is obviously dissatisfied with this reasoning; but on the law as it stands at the

moment, the decision passes the minimum standards. To require anything more would be to get

into an area of a requirement to give micro-specific reasons for sub-issues. There isn’t such a

requirement.

48. The applicants submit that “it is hard for these losers to accept the position” without being

given further reasons, but that is not the test. A decision-maker cannot be required to give a level

of reasons that would satisfy the losing party – that would be a fool’s errand anyway. What the

decision-maker has to do is give the main reasons on the main issues, and the board has done that

here.

49. The applicants claim that their submission was “simply overlooked”, but there is no basis for

that. It is clearly signalled by the inspector that technical objections were raised.

50. Insofar as outsize reliance is attempted to be placed on certain comments of Holland J. in

Ballyboden Tidy Towns Group v. An Bord Pleanála [2022] IEHC 7, [2022] 1 JIC 1001 (Unreported,

High Court, 10th January, 2022), it is clear from paras. 278 to 280 that there is consensus on the

legal principle that the requirement is to give the main reasons on the main issues. The court in

that case stated that such main reasons were required, identified one of the main issues and

concluded having examined such reasons that were given on that issue that they didn’t constitute

“main reasons”.

51. Ballyboden is certainly not authority for the proposition that all a participant in a process

has to do is to produce an expert report in order to force the decision-maker to produce a more

detailed decision than might otherwise be the case, or that a mere clash of experts is enough to

warrant some form of more detailed reasons. A decision-maker can prefer one expert to another as

long as she gives the main reasons on the main issues. If it is broadly clear why one expert is

preferred, then the requirement is satisfied. Here, the board basically accepted that there would be

additional traffic but that there would be elements in place to mitigate that. Reasonable people can

and no doubt will disagree about that, but the basic broad logic of the decision-maker is acceptably

clear.

52. The applicants predictably and indignantly deny that they want a detailed response. They

try to argue that all they want is to know as between their expert and the developer’s experts why

the board prefers the developer’s experts. But in practice that comes down to something fairly close

to a detailed refutation. The applicants over-interpret the concept that the points made in

submissions should be addressed. As a bald proposition, that is not the law.

53. Not all points need to be addressed, only the main issues; and even they don’t need to be

“addressed” in a narrative type of treatment or even in a totally complete manner – only the main

reasons need to be given.

54. More fundamentally, it is not up to an applicant to dictate the form of the decision. For

example, while loud complaint is made about issues of methodology and construction traffic not

having been addressed, one has to read the decision not solely from an applicant’s point of view (an

impossible standard), but from the starting point of it being valid rather than invalid where possible.

One has to stand back and ask what the decision is fundamentally saying. The obvious interpretation

here is that even if the development creates an increase in traffic and, therefore impliedly, even if

there is some merit in the criticisms being made, nonetheless the effects can be mitigated to an

acceptable extent. For good measure, the inspector notes that lower density accommodation will

undermine the long-term viability of public transport. Construction effects are by their nature

generally ephemeral in the long run and often won’t constitute main issues, and no failure to give

the main reasons on the main issues has been demonstrated here.

55. Analogous principles apply in other areas of the law. For example, an applicant for asylum

does not win their claim just because they come forward with a medical report. Such a report does

not have to be knocked back on a point-by-point basis. It is open to the tribunal to say that, without

quibbling with the expert report, it doesn’t determine the issue, because an applicant’s injuries, real

as they may be, didn’t necessarily happen in the way the applicant says they happened. By analogy

here, it is accepted that there will be traffic impacts, but even assuming that the applicants are right

about that, that doesn’t mean that the application should be refused.

56. I have helpfully been provided with the inspector’s report in Ballyboden. While this is by no

means a completely unreasoned document, the ultimate conclusion and, to some extent, the analysis

is somewhat on the stark side and the board in submissions here didn’t strongly disagree with that.

Viewing the wording there, it is understandable how Holland J. might have been uncomfortable with

the level of reasons provided. That aspect must be regarded as fact-specific. However, reasons are

clearly provided in the present case.

57. If the court were to interpret the law as providing anything beyond broad reasons and

moving towards a detailed refutation of experts or others, it would impose a burden that could

rarely or never be met in practice. There can be hundreds of submissions on any given planning

application. In the present case, there were 167 observer submissions with four prescribed bodies

also getting involved. It would be unworkable to go further than requiring the broad reasons on the

broad issues.

58. Furthermore, judges don’t do more than that and it would be hypocritical to impose an

obligation on administrative bodies that I wouldn’t be prepared to take on for myself. Such a more

stringent obligation would also have a series of unintended consequences. It would significantly

delay decision-making because each point would have to be examined in detail for the purposes of

preparing responses. It would also create a perverse incentive whereby participants in a process

could flood the decision-maker with a huge volume of points, safe in the knowledge that if one were

accidentally omitted from the reasons, then the whole decision could collapse. That would raise an

untenable burden on the decision-maker because there is no limit to the detail and volume of the

points that could be made generally or that could be included in an expert’s report in particular.

59. There is also the real danger of creating a completely ad hoc piece of doctrine, especially if

such an obligation were confined to the board specifically or even to answering expert reports more

widely. There are so many potential administrative and judicial decision-makers and so many

contexts where general reasons have been held to be acceptable that one would fundamentally

unsettle the law in this area to require the reasons obligation to be intensified. Such problems don’t

go away merely by attempting to create a special category on an essentially lawless ad hoc basis

for expert reports.

60. Finally, it would be anomalous if the high standard of reasons that the applicants incorrectly

seek to extract from Irish administrative law were to be significantly higher than the standard of

reasons required by EU law for the special context of impact on European sites: “... where a

competent authority decides to authorise a plan or project likely to have a significant effect on a site

protected under that directive without requiring an appropriate assessment within the meaning of

that provision, that authority is not required to respond, in the statement of reasons for its decision,

to all the points of law and of fact raised during the administrative procedure”, although “it must

nevertheless state to the requisite standard the reasons why it was able, prior to the granting of

such authorisation, to achieve certainty, notwithstanding any opinions to the contrary and any

reasonable doubts expressed therein, that there was no reasonable scientific doubt as to the

possibility that that project would significantly affect that site” (Case C-721/21 Eco Advocacy v. An

Bord Pleanála, emphasis added).

Core ground 2 - material contravention regarding zoning

61. Under s. 9(6)(b) of the 2016 Act, the board can materially contravene the development plan

but not “in relation to the zoning of the land”. The issue then is – what is “zoning”?

62. That is a deceptively simple question to which one might have thought one had the answer

prior to contact with the present case. But the question has brought out a range of ambiguities that

now require to be resolved. To get a proper handle on that question one has to look at the overall

situation.

63. The starting point, as always, is the statute; and s. 10(2)(a) of the Planning and

Development Act 2000 states that the development plan shall include objectives for “the zoning of

land for the use solely or primarily of particular areas for particular purposes (whether residential,

commercial, industrial, agricultural, recreational, as open space or otherwise, or a mixture of those

uses), where and to such extent as the proper planning and sustainable development of the area,

in the opinion of the planning authority, requires the uses to be indicated”.

64. That involves not the concept of “use” simpliciter (as in the general sense of the 2000 Act

which distinguishes between “use” and “works”) but a use for a particular purpose. The purpose for

which particular land is to be used is intimately and inextricably connected to, and for most purposes

functionally indistinguishable from, the type of works or uses that will be permitted on the particular

land to which the zoning relates. Yes, perhaps a council could designate lands for a purpose in

purely abstract terms, say as a “village centre”, without specifying what sort of developments that

would involve. But any attempt to implement such a vague zoning would immediately throw up a

need to answer the question of what type of developments were compatible with such a zoning. So

whether a council addresses the issue directly or indirectly, the use of lands for particular purposes

comes down to some concept of the type of thing that is to happen on the lands, whether that is

works or “uses” in the narrower sense.

65. Such an interpretation is backed up by the ministerial guidelines on development plans

which, while of course not law and while of course are not something that in themselves change the

interpretation of the Act, are nonetheless informative. The fact that they were adopted after the

decision here (on 1st July, 2022) is irrelevant because I am consulting them only to illustrate and

illuminate the ways in which the concept of zoning has been applied and understood. That doesn’t

change the meaning of the legislation but it helps orient one’s thinking about it. Paragraph 6.2 of

the guidelines says:

“Land-use zoning is therefore about identifying land needed for particular use types, the

best locations for such land-uses and the acceptability or otherwise of the various classes of

land-use within any particular zoning. It also allows for the identification of areas suited to

a combination of uses, which is particularly important to facilitate flexibility and mixed-use

development to support compact growth and generate activity within urban centres, in line

with Town Centre First policy. The provision of land-use zoning within the development plan

is intended to provide a degree of certainty and clarity to the community, landowners,

developers and investors regarding future development.”

66. Paragraph 6.2.2 in particular headed “Consistency in Zoning Objectives” says:

“In order for development plans to have coherence across administrative boundaries, a

greater degree of consistency is required in the zoning objectives utilised by planning

authorities. While there are a relatively small number of core zoning objectives focused on

principal land use and development types, such as residential, employment, town centre,

agriculture or amenities, these can vary greatly in their wording and remit, especially

between different local authority development plans. When such objectives are compared

across planning authority boundaries, this can result in a degree of ambiguity and confusion

in the development priorities for a zoning type, especially when examined on a regional or

national basis. This wide variation in zoning objectives also militates against the monitoring

of development trends, both regionally and nationally. Certain zoning objectives can also

be overly specific or narrowly devised, which is not appropriate to the general purpose of

land-use zoning. From the perspective of an applicant for planning permission, this can give

rise to unnecessary variation in the purpose for which certain lands or locations may be

zoned, when considering different locations for development and investment. Accordingly,

there is a need for greater standardisation in zoning objectives in order to enhance

consistency, both within local authority areas and across the Country. Appendix B to these

Guidelines provides a list of zoning objectives that planning authorities may incorporate into

development plans which allow for a degree of local variation where necessary, but achieves

the required standardisation on a national basis.”

67. Appendix B to the guidelines referred to indicates illustratively a number of possible sub-

categories of zoning and acknowledges that in making zoning decisions a council is not limited to,

for example, a simple category of “residential”. The ministerial guidelines give, as an example, a

proposed zoning “RS residential” or, alternatively, “R1 new residential” and provide for a series of

other possible zonings that could include a residential element such as “UC urban core” or “DC

district centre”. Similarly, commercial purposes are sub-divided into a number of options, as are

community-type purposes. There is no suggestion that councils should be prohibited from being

more specific than say a mere “commercial” label, or should be unable to link particular types of say

commercial use to particular sites.

68. McDonald J. in Highlands Residents Association v. An Bord Pleanála [2020] IEHC 622, [2020]

12 JIC 0201 (Unreported, High Court, 2nd December, 2020) reflected this approach at para. 37:

“In my view, counsel for the Board was correct in his submission that zoning relates to the

use for which lands are designated. This seems to me to follow from the terms of s. 10 (2)

(a) of the 2000 Act which expressly refers to the zoning of land ‘for the use solely or primarily

of particular areas for particular purposes…’ That language is also reflected in para. 20

of the Fourth Schedule to the 2000 Act. It seems to me that the language of s. 10 (2) very

clearly establishes that zoning of land means the designation of that land for a particular

use. It is therefore necessary to consider whether, under the terms of the County

Development Plan (as varied by Variation No. 2) the subject lands are zoned for residential

use. Having regard to the decision of Simons J. in Redmond [v. An Bord Pleanála [2020]

IEHC 151, [2020] 3 JIC 1003 (Unreported, High Court, 10th March, 2020)], the labels used

by the planning authority are not conclusive in this context. I must therefore consider the

substance of the relevant objectives of the County Development Plan (as varied) in order to

determine its true nature. Furthermore, having regard to the case law cited in para. 25

above, I must also consider the terms of the County Development Plan (as varied)

objectively and construe them by reference to the way in which they would be understood

by ordinary reasonably informed members of the public without legal training as well as by

developers and their agents.”

69. As in effect reflected in the ministerial guidelines, the words “to such extent” in s. 10(2)(a)

of the 2000 Act have the natural meaning that the council concerned can cut down the broad

categories of zoning such as “residential” with a view to identifying particular types of residential

purposes (or other purposes) in particular zoned lands. There is no necessity or logic to reading the

statute in an extremely inflexible manner that would put councils in handcuffs, as being limited to

the broad headings of recreational, commercial, industrial, agricultural and so on alone, without any

ability to make any more specific decision as to the types of residential, commercial or other

purposes that are appropriate for a particular piece of land. That would be a massive intrusion on

the autonomy and freedom of the statutory decision-maker which would be unjustified by any clear

basis in the text. It would also be highly illogical in planning terms. Such an unwarranted

interpretation would conflict with the express statutory requirement of proper planning and

sustainable development, which imply that a decision-maker must have sufficient flexibility to

achieve those ends. We are not just playing with words here – this is about whether councils are to

be hamstrung in their assigned statutory mission to promote good planning.

70. The board made the submission that because “density” is referred to in the first schedule to

the 2000 Act (part II, para. 1) among the matters which may, rather than must be included in a

development plan, then it must be “different from, and … not included within, zoning objectives”.

However, that is absolutely not what the first schedule says. It has the effect that stand-alone

objectives regarding density and a whole series of other matters may be included in the development

plan. That much is fairly obvious. But that does not mean that objectives or provisions relating to

zoning cease to be such objectives or provisions merely because they include requirements relating

to such matters. There is no rigid distinction in the first schedule as to what can be a zoning objective

and what cannot be. A council is not excluded from including elements of parts I or II, for example,

when making zoning decisions. Objectives in part III relating to identification of community facilities

could give rise to a zoning objective, as could environmental protection in part IV or reserving land

for infrastructure in part V. Needless to say, those objectives could be met otherwise than by way

of zoning, but that does not preclude their inclusion in zoning objectives.

71. Going down the road of an extremely narrow definition of zoning objectives, as at times

seemingly argued for by the board here, would in effect exclude almost anything referred to in the

first schedule. That would emasculate the flexibility and jurisdiction of local government to specify

zoning in the exercise of its statutory powers (as underpinned of course by Article 28A of the

Constitution). If there was ambiguity, which there isn’t, there must be some presumption of local

autonomy in the preparation of the plan and more specifically in the framing of zoning objectives

(see the emphasis on protecting the role of local authorities in R. v. Secretary of State for the

Environment ex parte Norwich City Council [1982] QB 808, [1982] 1 All E.R. 737, [1982] 2 W.L.R.

580, 80 LGR 498, 126 Sol Jo 119 per Lord Denning MR at p. 824, Cork County Council v. Minister

for Housing, Local Government and Heritage [2022] IEHC 281, [2022] 5 JIC 2701 (Unreported, High

Court, 27th May, 2022)).

72. The compensation provisions of the fourth schedule of the 2000 Act are not hugely

determinative, not least because they are worded in a different manner. Paragraph 20 of the fourth

schedule reads as follows: “[t]he development would contravene materially a development objective

indicated in the development plan for the zoning of land for the use solely or primarily of particular

areas for particular purposes (whether residential, commercial, industrial, agricultural, recreational,

as open space or otherwise or a mixture of such uses)”. This was discussed in Abbeydrive

Developments Ltd v. Kildare County Council [2005] IEHC 209, [2009] 3 I.R. 58, [2005] 6 JIC 1707

where Macken J. took a relatively limited view of the words “or otherwise” (at p. 73). However, it

is important not to over-interpret this. It would be restrictive and indeed destructive of proper

planning and sustainable development if a planning authority was for example confined to the word

“residential” simply because that is used in a general way within a general provision of the 2000 Act.

The overriding importance of proper planning and sustainable development, which is the cornerstone

of the 2000 Act, strongly militates against an interpretation which would mean that the local

authority when framing zonings was limited to headings like “residential” alone, and unable to

distinguish within that in any way between, for example, campsites, caravan parks, detached

houses, apartment blocks, aparthotels, or housing estates.

73. On the other side of the coin however, merely because something is described as a zoning

objective by a particular council in a particular development plan does not make it a zoning objective

as a matter of interpretation of the 2000 Act: Redmond v. An Bord Pleanála [2020] IEHC 151, [2020]

3 JIC 1003 (Unreported, High Court, 10th March, 2020). We must note one point of nomenclature.

In that case, Simons J. treated matters related to zoning as being equivalent to a zoning objective

and there is much discussion of what is such an objective; but the wording of the statute does not

refer to contravening an “objective”. Section 9 of the 2016 Act is clear that the issue is whether the

contravention of a plan is “in relation to the zoning of the lands”, which McDonald J. held at para.

44 of Highlands Residents Association was a wide phrase. It is not clear to me that anything major

turns on this in the present case, however. To repeat however, a council’s view of what is a zoning

objective is not a determinative one and the same logic applies to the board. Just because it decides

that something is not a provision of the plan in relation to the zoning does not make the board right

or even presumptively right, because it is a matter of interpretation.

74. Ultimately, the purpose of zoning provisions generally, and zoning objectives in particular,

is to specify the purposes for which the lands may be used, which in turn means the particular type

or category of works and uses which may be carried out on such lands. The concept of the type of

development is really critical to determining what is a zoning objective and what is not. If the

objective limits the type of development in some way that is clearly distinguishable from a different

type of development, then it can be said to be a zoning objective. If, on the other hand, it merely

regulates the detail of the types of permitted developments involved, for example by reference to

scale, design, density or similar factors, where such factors are not ones that change a development

from being of one type to being of another distinct and distinguishable type, then the provision is

not a zoning objective.

75. Thus, a development plan can legitimately distinguish between land zoned for different types

of housing. Thus it can distinguish between say, land suitable for a campsite, sheltered

accommodation or an aparthotel. Those specifications would be zoning objectives. Whereas if a

council went further and included provisions in relation to density of such housing, that does not

relate to a distinction between different types of development, and so is not a zoning objective. This

can be something of a fact-specific exercise. For example, in relation to floor space, a large house

and a small house are still houses. But in many situations, as a particular development gets bigger

or smaller, it turns into a different type of development. Thus, a zoning objective could legitimately

distinguish areas suitable for local shops as opposed to convenience stores, for supermarkets as

opposed to superstores, for hypermarkets as opposed to retail outlets. Such a distinction could

legitimately be based on, for example, floor space. Such size or floor space criteria legitimately

mark a divide between distinct types of development and thus distinct uses, and consequently

constitute zoning objectives, as opposed to mere detail, design or regulation within a single purpose

or a type of development.

76. Applying all of this to the present case, there is no doubt that the way in which the council

have framed the Greystones, Delgany and Kilcoole Local Area Plan 2013-2019 here means that the

R22 residential zoning is expressly linked to a maximum density of 22 units per hectare. But a

density provision like this does not distinguish between particular types of development permitted

and thus does not relate to the purposes for which the land can be used in the sense of the 2000

Act. It is not a zoning provision.

77. The council could, for example, have distinguished between land suitable for houses as

opposed to land suitable for apartments (and indeed they did do that to some extent as we will see

from the next heading, although not in a purported zoning objective), or identify land suitable for

both. That would have been a zoning objective because it relates to the type of developments

permitted. Of course, they are all residential, but a council is entitled to be more specific than such

a bald heading, for the reasons outlined.

78. It is therefore open to a planning authority to identify the purpose to which land can be put

by means of a zoning provision by reference to either:

(i) the specific type of developments permitted, thus for example under the commercial

heading distinguishing land suitable for a logistics warehouse from an individual

commercial warehouse or an abattoir from an incinerator, or under the community

heading to distinguish a place of worship from a hospital; or

(ii) secondary characteristics provided that such characteristics go to the type of

developments permitted, thus distinguishing the local shops from hypermarkets by

reference to floor space or otherwise.

79. But by contrast, if the terms of the plan relate to details, design, orientation, density, scale

or some other feature applicable within a particular type of use, then that is not a zoning provision.

80. The applicants submit that “the planning authority has itself linked density to zoning” which

is absolutely correct. The problem however is that “zoning” has an autonomous meaning in the

2000 Act, does not necessarily mean whatever the particular council decides to include under the

heading of zoning, and certainly doesn’t mean that here. A provision of a plan regarding density is

not a provision regarding zoning, even if it is included within the literal terms of a zoning objective

in a particular plan.

81. This ground therefore fails.

Core ground 3 - material contravention related to apartments

82. Policy RES5 of the Local Area Plan states as follows:

“RES5: On undeveloped residentially zoned land, it is an objective of the Council to provide

for the development of sustainable residential communities up to a maximum density, as

prescribed by the land use zoning objectives indicated on Map A and described in ‘Table

11.1: Zoning Matrix’. In existing residential areas, infill development shall generally be at a

density that respects the established character of the area in which it is located, subject to

the protection of the residential amenity of adjoining properties. However, where previously

unsewered, low density housing areas become served by mains sewers, consideration will

be given to densities above the prevailing density, (up to 10 / ha, depending on local

circumstances), subject to adherence to normal siting and design criteria. Apartments

generally will only be permitted within Greystones Town Centre, Kilcoole Town Centre,

Delgany Village Centre, Neighbourhood Centres, Small Local Centres, Greystones Harbour

and North Beach Action Plan, South Beach Action Plan and within 10 minutes walking

distance of Greystones train station. Within existing residential areas, regard shall be paid

at all times to the overriding objective of the Council to protect the residential amenity of

these areas and to only allow infill residential development where this reflects the character

of the existing residential area. Apartments will not normally be permitted on sites

surrounded by predominantly single family occupied housing estate developments.”

83. This reflects objective HD13 of the County Development Plan:

“HD13 Apartments generally will only be permitted within the designated centres in

settlements (i.e. designated town, village or neighborhood [sic] centres), on mixed use

designated lands (that are suitable for residential uses as part of the mix component) or

within 10 minutes walking distance of a train or light rail station.”

84. The development at issue in the present case is not in the “village centre”, and indeed on

that basis the developer identified the inclusion of apartments in the scheme as a potential material

contravention. However, the board appears not to have agreed with this and treated the issue as if

there was no material contravention. Obviously, the plan does confer some planning judgement on

the board by reference to the provision that apartments “generally” will only be permitted in the

village centre. But how much planning judgement?

85. A qualifier like “generally” does not confer open-ended flexibility or planning judgement.

Any departures from that must themselves be limited in nature and peculiar to their own facts, and

not such as can be generalised in a way that would undermine or rewrite the plan. If the basis for

an exception was one that could itself be applied generally, then the plan would indeed be materially

contravened. To put it another way, the word “generally” does create flexibility, but only in ball-

park terms, as in Jennings v. An Bord Pleanála [2023] IEHC 14, [2023] 2 JIC 1711 (Unreported,

Holland J., 17th February, 2023). For example, an apartment complex on a suitable site across the

road from, but just outside, a village centre might come within the ball-park, but an apartment

development which is well outside the area and that is favoured on a logic that could apply to a wide

number of apartment developments would be outside the ball-park.

86. Notable here is the link with the heritage of the village, connecting it with the church and

Carmelite monastery. This is emphasised in para. 2.1.1 of the developer’s response document which

states:

“It is considered that appropriate links applies to visual, physical and social links to the

village core. The urban fabric includes the physical environment including form, scale,

density and connections and extends to socio-cultural, ecological and economic structures.

The core of Delgany is not defined but may be assumed to be focused on Church Road and

in particular the section between Bellevue Hill, Delgany Wood and Convent Road with

emphasis on the area from Convent Court, opposite the application site towards the south.

The core of Delgany may be considered to include as a focal point, Christ Church on Church

Road, which was completed in 1789 and is a notable gothic building with a graveyard to the

west and the north side of the church. To the west of Christ Church fronting Church Road

is Delgany national school. The small irregular section of Church Road between the junction

of Convent Road and Bellevue Hill connects five roads and contains many of the buildings

associated with Delgany including the Wicklow Arms (1856) and the Delgany Inn (mid-19th

century). The section of Convent Road between the application site and Church Road consist

of a number of commercial businesses including food shops, cafes and the [Horse] and

Hound (1790). The existing site is oriented towards Convent Road and the core of Delgany.

The existing Convent property is set back from the road with a solid boundary topped with

high railings with a variety of solid planting behind. This was raised at the tri-partite

meeting. In relation to a visual link to the core of Delgany, the existing long boundary wall

and railing which is not considered of conservation value (see conservation report which

reports it is a modern addition) will be removed. A new boundary will be lower with a lighter

railing so that the entire development is visually more connected to the core, making the

scheme an integral part of Delgany and removing the ‘gated’ situation that currently applies.

The steel gate and solid piers will be removed and a modern entrance designed as in [sic]

invitation into the scheme and particularly to the protected structure. The wall will be set

back to the north of the existing main entrance. The high scrub that has grown behind the

railing will be removed and new low, softer[,] more open planting retaining some trees will

allow views into and out of the scheme while providing biodiversity and accessibility. Three

main connections are located on Convent Road which provide the main direct links and

connection to the core and one main access to Bellevue Hill. Five internal secondary

connections are proposed as well as secondary access to Bellevue Hill.”

87. The report continues at para. 2.1.2 to state:

“Access No. 1 Convent Road - access beside Gatehouse

The closest connection to the core is the existing access beside the gate lodge. The location

of this access to the site is at the south east boundary and consists of two piers and a high

metal gate. The Planning Authority to improve the footpath connection at this point. All of

the render, including the moulded caps to the piers, consists of hard sand and cement,

dating from the middle years of the 20th century. The permanently closed steel gates close

the Convent grounds visually and physically from the core of Delgany and this is reinforced

by the dense planting adjacent.”

88. It goes on to say:

“This access provides a key pedestrian and cycle connection into the Convent grounds c.130

m from the junction of Convent Road and Church Road, the core of Delgany. This connection

will bring pedestrians from the core of Delgany into a new public open space to the front of

the Protected Structure (a new creche and community/cultural space, residential homes and

open space to the north west that connects to the permitted development at Richview[)].This

connection represents the anticipated desire line into the scheme and will provide an

accessible access to the creche and new community facility.”

89. At para. 2.1.4 it states:

“Delgany is part of a heritage trail which indicates parking, walking trails and points of

interest. The proposed development is wholly consistent with the Heritage trail and will

provide new linkages between Bellevue Hill and Convent Road and onto Church Road and

Priory Road. In addition, it will allow the Protected structure be viewed from a public open

space and the removal of the modern extension will restore the protected structure to the

original layout. The large modern structure to the side of the Church dominates the building

and by removing it, will allow the protected structure to be restored visually to how it was

designed. The Protected Structure which is unoccupied since the departure of the Carmelite

order from Delgany will be reused and available as a community and cultural facility and will

enhance the heritage trail.”

90. It continues:

“The proposed development contributes to the objectives outlined above and in particular

provides a rejuvenation of the village, be [sic] creating a new centre for the community while

also creating a more attractive place to live and work. The reuse of the protected structure

as a community facility and for cultural uses will enhance cultural awareness and community

identity. This will also reinforce the heritage identity of the area. The foot connections

through the village will be expanded by linking Bellevue Hill to Convent Road through the

site and onto Church Road and Delgany Wood. Overall, the accessible shared green space

for recreation, linking the permitted open space at Richview towards the south west will

enhance the heritage trail and improve the potential of tourism in the area.”

91. Also relevant is para. 8.2 of the inspector’s report which records the council’s view that:

“[t]he extension outwards from Delgany town centre is considered logical and acceptable

from a phasing perspective”.

92. At para. 10.2.6 the inspector stated:

“The site is located at the edge of Delgany Village centre, a location that provides a variety

of local retail, restaurant/café and other services including a primary school and a church

within easy walking distance. Further afield, to the east are the commercial and leisure

facilities associated with south Greystones.”

93. At para. 10.4.2 the inspector states:

“Open spaces are provided throughout the scheme, with a large area combined with a new

civic plaza at Convent Road to the front of the Chapel, numerous pocket parks and the linear

green spine that runs through the entire scheme. Other public open spaces are found at the

margins and are more of a visual amenity together with buffer space for tree retention and

are to some degree also usable spaces.”

94. At para. 10.6.3 the inspector said:

“In fact, the opening up of the forecourt area and the provision of a new public plaza will

enhance and set off the centre piece role that the church will now take. In my view the

three storey over basement apartment block to the rear of the church and villa house will

act as a backdrop and focus one’s eye towards the steeply angled gable of the church itself.

I am satisfied that the urbanisation of the former convent grounds has been designed

sensitively and that the public realm gain from Convent Road will significantly enhance the

character of the area and expand the public domain of Delgany Village in a positive way.”

95. While it may be something of a line call, a number of site-specific factors are particularly

important in regarding the flexibility as sufficient here: proximity to the village centre, additional

public realm provision in the form of the new plaza, a new crèche and community/cultural space,

open space provision including pocket parks and the linear green spine, the rejuvenation of the link

between the village and its historical heritage in the form of the church and monastery, the re-

opening of access to these structures, and the related issue of permeability particularly in the context

of established heritage trails. This is certainly not an example of merely building out into rural areas

in a way that could be replicated at any edge of centre site. Having regard to all of the foregoing,

including the very considerable public realm provision and indirect enhancement of the village centre

and linkages to its history and heritage, the zone of planning judgement conferred by the word

“generally” has not been exceeded here, because such substantial and site-specific features of this

particular development mean that no comfort is thereby provided for other potential developments

in a way that would undermine the requirement that matters are to be “generally” as defined by the

plan.

96. As the domestic law issues fail, I now turn to the EU law issues.

EU law issues in relation to development consent

97. There were two primary issues:

(i) EIA-related reasons in relation to traffic; and

(ii) strict protection of bats.

Core ground 8 – EIA reasons in relation to traffic

98. Core ground 8 has been dealt with above as a domestic law point. The applicants provided

no convincing EU law-related authority or material either in this jurisdiction or any of the 27 other

current or former member states, or at a European level, or otherwise, which would require a

different conclusion when considering the matter from the standpoint of the EIA directive (see Toole

v. Minister for Housing (No. 3) [2023] IEHC 378 para. 86). This point has not been made out.

Core ground 6 - strict protection in relation to bats

99. The basic problem for the applicants is that, as the board points out in its submissions (para.

51):

“The arguments made by the Applicants in their submissions (§§52-66) are quite different

to those made in the Statement of Grounds [note refers to pleadings, pp. 8 (core ground 6),

15-19]. There is no sign in the submissions of any of the six legal errors pleaded by the

Applicants under this core ground in the Statement of Grounds.”

100. Insofar as the applicants have now made new arguments based on the EIA directive, and in

particular arts. 4 and 11 and para. 3(b) of Annex IIA, none of these arguments are pleaded. As the

board notes at para. 55 of its submissions:

“As is apparent, there is no reference in the core ground to any alleged breach of the EIA

Directive. The Board objects to any interpretation of detailed grounds 31-46 that goes

beyond this core ground.”

101. Insofar as the sub-grounds are concerned, there are only two references to the EIA directive.

The first is sub-ground 39, which is obviously merely contextual, and the final phrase comes in at

para. 41 where the sub-ground states “[i]t also undermines the conclusion on EIA screening”.

102. That’s it – that barely-there, blink-and-you’ll-miss-it comment is the totality of the pleading

on which the applicants now seek to hang an elaborately confected case under this heading.

103. Beyond this isolated throwaway comment in the pleadings, the lone and level sands of the

6,912-word statement of grounds stretch far away. There is not even a single piece of supporting

legal tumbleweed on the horizon.

104. It strains credulity to breaking point to believe that when they filed the statement of grounds,

the applicants had any definite intention to make a case that the board’s treatment of strict

protection of bats was contrary to arts. 4 and 11 of, and para. 3(b) of Annex IIA to, the EIA directive.

To believe that you would have to believe:

(i) that when the applicants made an express reference to EIA in core ground 8 as

regards traffic, they were also planning to challenge the decision on EIA grounds on

other issues not mentioned in the core grounds;

(ii) that the applicants thought it was appropriate to have a whole section of the sub-

grounds devoted to EIA screening but also thought that it was not necessary or

appropriate to signal in a similarly clear manner that the EIA screening was being

fundamentally attacked on bat-related grounds;

(iii) that the applicants thought it was appropriate in drafting terms to advance an EIA

case under core ground 6 without mentioning the EIA directive in that core ground

(which refers only to the habitats directive and the Wildlife Act 1976);

(iv) that the applicants contemplated that the decision regarding bats was invalid by

reference to arts. 4 and 11 of, and para. 3(b) of Annex IIA to, the EIA directive, but

their view of drafting was such that they considered it unnecessary or inappropriate

to refer to any those provisions;

(v) that the applicants’ view of drafting was such that it was considered unnecessary or

inappropriate to refer to the EIA directive at all under that heading (instead referring

only to the “conclusion on EIA screening”);

(vi) that the applicants’ view of drafting was such that it was considered unnecessary or

inappropriate to refer to the decision as being “invalid” (or cognate terms) by

reference to the EIA directive as applied to assessment of bats, and that it was

sufficient to merely comment in passing that the treatment of bats “undermined”

the screening decision (whatever that means);

(vii) that the applicants’ view of drafting was such that it was considered unnecessary or

inappropriate to explain in the pleadings how or why the treatment of bats led to

the decision being invalid by reference to the EIA directive, or to provide any route-

map whatsoever from the reference to undermining that would lead to certiorari;

(viii) that the applicants’ view of drafting was such that it was considered unnecessary or

inappropriate to refer to the specific provisions of the transposing legislation by

reference to which any validity issue would initially have to be considered; and

(ix) that it is purely coincidental that after the statement of grounds was filed on 25th

March, 2021, arts. 4 and 11 of, and para. 3(b) of Annex IIA to, the EIA directive

came into focus by virtue of the Waltham Abbey Residents Association v. An Bord

Pleanála (No. 1) [2021] IEHC 312, [2021] 5 JIC 1002 (Unreported, High Court, 10th

May, 2021) and (No. 3) [2023] IEHC 146, [2023] 3 JIC 2403 (Unreported, High

Court, 24th March, 2023) decisions.

105. I appreciate that not everyone is blessed with an intuitive understanding of the principles of

drafting. But nobody could be that unfortunate.

106. Looking at the circumstances overall, it is obvious that there never was any definite and

precise intention to challenge the validity of the planning permission by reference to its treatment

of bats having regard to arts. 4 and 11 of, and para. 3(b) of Annex IIA to, the EIA directive. The

available and most plausible inference is that even assuming in their favour, for the sake of

argument, that the applicants had some glimmer of concern in relation to this originally, the actual

legal point only crystallised for them as the Waltham Abbey proceedings unfolded subsequently.

Such things happen; but to make a point that occurs to one after the event one has to seek to

amend one’s pleadings, not seize on a fortuitous stray reference within the pleadings to try to re-

programme the whole case under this heading. The abandonment of the specific sub-grounds as

pleaded within this core ground only reinforces the sense of complete and impermissible re-

configuration of the case.

107. Even if I am wrong on all of the foregoing, O. 84, r. 20(3) RSC requires this point to be

dismissed because it is wholly unparticularised, as correctly pleaded by the notice party at para. 41

of its statement of opposition. This is a passing comment as opposed to “any kind of proper ground

invoking a legal basis for quashing a decision”, as the board submitted. It would be unfair to the

opposing parties to allow the applicant to build a tottering edifice reaching to certiorari on such an

ephemeral foundation.

108. The CJEU has recently confirmed that the pleading requirements reflected in rules of court

are perfectly consistent with EU law. In Case C-721/21 Eco Advocacy v. An Bord Pleanála, the court

said:

“23 Moreover, the Court has held that national procedural rules according to which the

subject matter of the dispute is determined by the pleas in law put forward at the point in

time at which the action was brought are consistent with the principle of effectiveness in so

far as they ensure proper conduct of proceedings by, in particular, protecting them from the

delays inherent in examination of new pleas (judgment of 6 October 2021, Consorzio Italian

Management and Catania Multiservizi, C‑561/19, EU:C:2021:799, paragraph 64 and the

case-law cited).

24 In the present case, the procedural rules at issue, as described in paragraph 17 above,

do not appear to be such as to make it impossible or excessively difficult in practice to

exercise the rights conferred by Directives 2011/92 and 92/43, at issue in the main

proceedings, but, on the contrary, are such as to facilitate the proper conduct of proceedings

by requiring that the pleas relied on in the action be raised with a sufficient degree of

precision.”

109. The applicants rely in particular on the judgment of the Court of Appeal, upholding Simons

J. in this respect, in Friends of the Irish Environment v. Government of Ireland, Minister of Housing,

Planning and Local Government, Ireland and The Attorney General [2021] IECA 317, [2021] 11 JIC

2603 (Unreported, Court of Appeal, 26th November, 2021). But that was a very different case, and

obviously dates from the pre-Eco Advocacy era. For starters, the pleading there was a lot clearer

and more detailed. Paragraph 24 of the judgment sets out paras. 9-12 of the statement of grounds

as follows:

“9. The Environmental Report goes on to consider alternatives and the assessment of the

preferred scenario. The various alternatives are identified at Chapter 7 of the Environmental

Report in which five alternatives are identified. These are each briefly described, and a

tabular format appended where, for each environmental issue, each alternative is given

either a 0/–/+ or in many cases a combination of these. These are intended to indicate

potential neutral, negative and positive effects of the alternatives. There is no explanation

of how these assessments were made or how or for what reason these values were assigned

or the qualitative or quantitative basis for their inclusion. There is no indication as to whether

or not, or to what degree, the targets (identified in Chapter 6 for each environmental issue)

are expected to be achieved by each alternative under consideration (singly ... or in

combination). These targets are not referred to in the alternatives or assessment sections

and only reappear when monitoring is being discussed. In those circumstances there is no

adequate description or evaluation of the likely significant environmental effects of each of

the alternatives identified in the Environmental Report.

10. It is the applicant’s case that the respondents failed to consider, adequately or at all,

the reasonable alternatives to the option selected, failed to identify, describe or evaluate

adequately or at all the likely significant environmental effects of the alternatives and failed

to specify any or any adequate reasons for its preferred option over options 1, 3, 4 and 5.

11. In paragraph 7.3 the respondents simply state a preference for ‘Option 2 – Regional

Effectiveness & Settlement Diversity’ on the basis that it is the alternative allegedly most

likely to achieve these strategic environmental objectives in relation to public transport,

higher densities in city areas and focusing managed growth in supported settlements.

However, no objective qualitative or quantitative basis is provided for this selection and it is

simply baldly stated without further explanation.

12. Subsequently in Chapter 8 of the Environmental Report there is what is described as an

assessment of the preferred scenario i.e. the proposed approach actually adopted in the

[NPF]. As with the consideration of alternatives, there is no reference to the targets specified

in Chapter 3 and no assessment of the degree to which the preferred scenario will or will not

lead to the targets being meet [sic]. The assessment of the preferred scenario appears to

be limited to short discursive sections.”

110. The context therefore is that there is quite a bit of detail in the pleading albeit that there

might have been more detail. The present matter couldn’t be more different.

111. All of this was addressed by Costello J. as follows:

“136. In reply to this point, the applicant referred to Halpin v. An Bord Pleanála [2019] IEHC

352. In that case, objection was taken to arguments being advanced by the applicant which

went beyond the claim as actually pleaded in the statement of grounds. Simons J. accepted

that the applicant was not entitled to rely on general pleas to advance a specific and detailed

complaint which had not been pleaded contrary to O. 84, r. 20(3). He accepted the

unreported decision of the High Court in McEntee v. An Bord Pleanála (Moriarty J., High

Court, 10 July 2015). Simons J. summarised the observations of Moriarty J. in para. 62:-

‘… The judge went on to say that – in determining whether an argument had been

properly pleaded – the court should adopt a ‘fair and reasonable’ reading of, and

conduct a thorough and objective examination of, the statement of grounds.’

137. Simons J. applied the fair and reasonable test to the Statement of Grounds in the case

before him and concluded that the case as pleaded was broad enough to encompass the

argument advanced at the hearing. At para. 66 he held:-

‘In interpreting the Statement of Grounds, some regard must be had to the fact that

the argument advanced by the applicant would – if well founded – result in a finding

that An Bord Pleanála had not properly complied with an important piece of European

environmental legislation, namely the Seveso III Directive. The applicant should not

be shut out from even making this argument by an overly strict reading of the

Statement of Grounds.’

138. In this case, the applicant raises an important argument in relation to the application

of the SEA Directive and the issue whether it has been properly complied with in the adoption

of the NPF, which sits at the apex of all plans for development within the state and which is

to govern development decisions throughout the state for the next 20 years. While I accept

that the issue whether the reasonable alternatives were assessed to a comparable extent as

the preferred option was not expressly pleaded in the statement of grounds – and therefore

not the subject of an order for leave to seek judicial review – a related argument – namely

the adequacy of the assessment of the reasonable alternatives – was clearly part of the case

from the beginning, and the ground to which objection is now taken was clearly raised in

written submission a month before the case came to trial. The respondents had the

opportunity to respond in their written submissions of 6 March 2020, in oral submissions

and in their supplemental written submissions. On balance, I am satisfied that the impugned

pleading is not of the generic nature which was criticised in the authorities relied upon by

the respondents and, while it undoubtedly would have been preferable if an application for

leave to amend the statement of grounds had been brought, I agree with the observations

of Simons J. in Halpin; it would not be appropriate, on a pleading point, to prevent the

applicant from advancing an argument in relation to the application of a significant EU

environmental provision where the respondents have pointed to no prejudice in meeting the

point in question. In this regard, I note that there was no application to file a supplemental

affidavit by the respondents upon receipt of the written submissions on 10 February 2020,

nor was there any suggestion that there was any relevant evidence which they could have

adduced had the point been expressly pleaded in the statement of grounds, nor was it

suggested that it was a ground upon which the applicant would not have been granted leave

to seek judicial review had it been raised when leave was initially sought.”

112. Apart from the radically different context of there being a much more detailed statement of

grounds to work off, the pleading in Friends of the Irish Environment was addressed by Simons J.

on the basis that it was somewhat relevant that the plea related to an EU law point. This was

accepted by Costello J. But very respectfully, that was all before Eco Advocacy. Logically, that can’t

be the position now. If European law doesn’t create any extra latitude for pleading of EU law points,

then it can’t make any difference that an applicant stretches a forlorn arm above the surface to wave

a blue flag as she disappears wordlessly into the quicksand of defective pleadings.

113. In any event, the reading of the applicants’ pleadings here isn’t “overly strict” – it isn’t within

a country mile of being overly strict. The relatively permissive question which is being asked is

whether the point is acceptably clear. That answers itself – No. A lack of prejudice to the opposing

parties could be a useful factor to confirm a line call, as in Friends of the Irish Environment, but is

irrelevant if the point is dead on arrival.

114. Hence it follows that the applicants’ point, if you want to call it that, regarding the EIA

screening being “undermined”, isn’t a properly formulated complaint, is not properly pleaded, does

not comply with rules of court, and is not saved by any EU law requirement. The message of Eco

Advocacy is that there is no European cavalry ready to ride to the rescue of inadequately-pleaded

applications. That bad news will hit some applicants more heavily than others.

115. As those matters dispose of the administrative and EU law challenge to the consent, we can

turn to the issues of statutory validity and then to the derogation licence.

Core ground 4 – statutory validity

116. The applicants’ complaint regarding the validity of ss. 5(6) and 9(6)(c) of the 2016 Act is

totally misconceived. The argument is as put at sub-ground 22 that “section 5(6) and/or 9(6)(c) of

the 2016 Act (which makes no provision for new or updated environmental assessments, for possible

modifications to, or grants of permission in material contravention of the CDP) is inconsistent and

incompatible with the requirements of the SEA Directive by allowing for the granting of permission

in contravention of the CDP and Masterplan and therefore constitute a derogation from those plans.

This is impermissible as a matter of EU law which requires any such derogation to be within the

scope of Article 2(a) and Article 3(2)(a) of the SEA Directive.”

117. This implies either that:

(i) the legislative framework for an SEA-assessed plan can’t itself provide for

derogations (possibly unless there is a re-assessment of the plan including the

derogation from it); or

(ii) an individual consent should be assessed as if it was a plan merely because it

deviates from a plan.

118. No EU-related authority from any jurisdiction has been brought forward to support the first

proposition. Anyway, it is pointless if the derogating project is itself assessed. The second option

is obviously incorrect.

119. The submissions add a further, unpleaded twist at para. 84: “the grant of permission, without

any modification of the LAP or CDP, authorises development of a sort that—by definition—cannot

have been contemplated in the environmental assessment that preceded the adoption of the relevant

plan.” This implies that for a derogation to be effective, the plan itself has to be modified. Apart

from the pointlessness of such a procedure, there is again no authority produced to make it plausible.

120. The applicants rely by analogy on two cases, Case C-411/17 Inter-Environnement Wallonnie

ASBL, Bond Beter Leefmilieu Vlaanderan ASBL v. Council of Ministers (Court of Justice of the

European Union, 29th July, 2019, ECLI:EU:C:2019:622) and Case C-160/17 Thybaut, De Coster,

Romain v. Région wallonne (Court of Justice of the European Union, 7th June, 2018,

ECLI:EU:C:2018:401).

121. There is no analogy here. Thybaut holds that the adoption of a plan that allows derogation

from a previous plan which had been subjected to SEA is itself required to be subjected to SEA. That

does not have the effect that, where a plan subjected to SEA allows individual decisions to derogate

from it, those decisions have to be treated as plans for the purposes of the SEA directive. They

don’t. Thybaut is basically destructive of the applicants’ whole argument because it acknowledges

that a plan subject to SEA can itself provide for derogations.

122. The EIA directive applies to “projects”: art. 4. The SEA directive applies to “plans and

programmes”: art. 2(a). The habitats directive applies to both a “plan or project”: art. 6(3). This

is a project, not a plan, so SEA does not apply, even if the project is a derogation from a plan which

had previously been subjected to SEA. The distinction between a plan and a project is clear: Case

C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias v. Ipourgos Perivallontos (Court of Justice of the

European Union, 11th September, 2012, ECLI:EU:C:2012:560). The issue here is acte clair, or acte

éclairé, no doubt arises and thus there is no question of a reference. The one thing the applicants

have got right is to point out that “[t]he correct application of Community law may be so obvious as

to leave no scope for any reasonable doubt as to the manner in which the question raised is to be

resolved” if “the matter is equally obvious to the courts of the other Member States and to the Court

of Justice” (Case C-283/81 Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health (Court of

Justice of the European Union, 6th October, 1982, ECLI:EU:C:1982:335, para. 16)). But they

haven’t gone on to ask the obvious question – is there anything in the caselaw of any other current

or former member state, or of the European courts, that illustrates any such doubt? If there is, they

haven’t produced it in this case.

123. Unfortunately for the applicants, there are only a finite number of possibilities:

(i) EU law does not allow SEA-assessed plans to provide for derogations at all. There

is no authority for that, and such a view is inconsistent with Thybaut.

(ii) EU law does not allow SEA-assessed plans to provide for derogations without re-

assessment. There is no authority for that, and it would be pointless because the

derogation is subject to potential assessment, at least under EIA/AA.

(iii) EU law does not allow SEA-assessed plans to provide for derogations without the

plan being amended. There is no authority for that, and it would also be pointless.

(iv) EU law allows SEA-assessed plans to provide for derogations, which are themselves

to be assessed as plans. That is totally misconceived as explained above.

(v) EU law allows SEA-assessed plans to provide for derogations, which are themselves

to be assessed as projects. That is the position but it doesn’t help the applicants

because this was assessed, or at least screened, as a project.

124. Determined to be helpful, the applicants’ sub-grounds on this point conclude by saying (at

para. 23):

“It is not for the Applicants or indeed to Board to say what a compliant procedure should

be.”

125. This perhaps illustrates the wider jurisprudential point that it generally assists your case to

show how the system makes sense overall. By contrast, an it-all-depends approach, or even worse,

a position that making the law workable is someone else’s problem, is not always the most strategic.

126. The State objected to the unparticularised nature of the claim under this heading (see their

statement of opposition, para. 8), but as the point fails on the merits I don’t need to deal with that

objection.

Core ground 7 – issues regarding derogation licence

127. At the outset regarding the derogation licence, it is important to note that this point is

pleaded independently from the validity of the development concerned. The applicants did not

contend on the pleadings that the permission was invalid because the derogation licence was invalid.

128. Nor did they initially argue that they had ever so contended. The board and notice party

were legitimately emphatic that such case was never made until adverted to in submissions in the

closing minutes of the hearing. Indeed, the applicants were forced to concede that “we’ve claimed

relief not connected with any particular ground”. That of course is a complete non-starter in drafting

terms. Yes, a court can grant unpleaded relief for reasons explained elsewhere (notably by virtue

of O. 84 r. 19), but only within the pleaded grounds. The court can’t expand the case to cover new

grounds not actually pleaded. And there is simply no such ground here. That isn’t something that

can be rectified by creative interpretation of the pleadings, for the same reasons as already

addressed in relation to the flawed pleading regarding “undermining” the EIA screening above: see

Case C-721/21 Eco Advocacy v. An Bord Pleanála.

129. Independently of that, the argument, even if pleaded, would be defeated by logic. There is

no requirement in Irish law to obtain a derogation licence at any particular stage of the process. It

can be applied for before, during or after the planning permission. Even if the permission is

functionally dependent on there being a derogation licence, the fact that a developer has failed to

obtain such a licence in advance (or has obtained an invalid licence) can’t under those circumstances

make the permission invalid (unless perhaps the board relied in some determinative way on the

specific conditions of the licence actually granted, but that hasn’t been demonstrated here).

130. I make this point because we have already seen in Hellfire Massy Residents Association v.

An Bord Pleanála [2022] IESC 38, [2022] 10 JIC 2402 (Unreported, Supreme Court, 24th October,

2022) that applicants can make illogical claims that all parts of their case are mutually

interdependent. That is not always so. Either law or logic, or sometimes (as here) both, can have

the effect that the absence of an entitlement to one relief is not compensated for by any claim to

another relief. In this case, the alleged dependence of the validity of the permission on the validity

of the derogation licence wasn’t pleaded, and makes no sense anyway (save in circumstances that

don’t apply here).

131. With that important point addressed, we can now turn to the question of the challenge to

the derogation licence as an issue in itself.

132. That needs to be contextualised. The applicants here have not challenged the validity of the

European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011) by

reference to the procedure for granting derogation licences. They haven’t made a point that any

possibility of excluding public participation for derogation licences granted before, during or after a

developing consent is impermissible, and they haven’t made any plea regarding a lack of a joined-

up system or about the lack of publication of derogation licences. Nor have they made a point about

a lack of provision to revoke a derogation licence, although in fairness it would seem that the general

power to revoke under s. 22(3) of the Interpretation Act 2005 would cover the situation (because

the definition of “statutory instrument” includes a “licence”), so potentially one could see an

argument that an aggrieved person could apply to the Minister to do so. Whether that is going to

be an effective procedure or not can be left to a case where it properly arises.

133. The derogation licence is a legally separate decision under a legally separate code made by

a legally separate decision-maker. It is not a preliminary decision with any unitary process leading

to a development consent, for the purposes of Irish law. It is of course functionally related to the

development consent in that consent cannot be lawfully operated without a derogation. There are

many similar relationships in law, for example where more than one licence is required. A common

example is where a developer needs both a planning permission and a licence from the EPA.

Reinforcing that is the separate procedural system for the two decisions, particularly the fact that

leave to appeal is not required for a challenge to the derogation licence. Presumably the applicants’

claim that the licence is part and parcel of the permission only applies to legal contexts where that

works in their favour, and will be scornfully rejected in any other context, such as if the opposing

parties were to point out that their argument has the logical consequence that the applicants

shouldn’t be entitled to appeal the rejection of a challenge to a derogation licence without leave to

do so.

134. An important point is that it is obvious as a matter of domestic law (leaving aside how one

is to apply a conforming interpretation) that an extension is required to challenge a derogation

licence if the challenge is brought more than three months after the date of the licence.

135. For good or ill, Irish law works on the premise that the time period runs from the date of the

decision (reflected e.g. in O. 84 r. 21(2) RSC), and that if one only finds out about it later one can

seek an extension of time. That is at least a workable rule even if it sounds harsher than it is at first

sight. Where EU law is in issue, conforming interpretation means that one has the full time period

from the date one actually, or should have, found out about the decision (see Case C-456/08

European Commission v. Ireland (Court of Justice of the European Union, 28th January, 2010,

ECLI:EU:C:2010:46), Case C-406/08 Uniplex (UK) Ltd v. NHS Business Services Authority (Court of

Justice of the European Union, 28th January, 2010, ECLI:EU:C:2010:45), per Murray J. in

Arthropharm (Europe) Ltd v. The Health Products Regulatory Authority [2022] IECA 109, [2022] 5

JIC 1003 (Unreported, Court of Appeal, 10th May, 2022) and caselaw discussed in Marshall v. Kildare

County Council [2023] IEHC 73, [2023] 2 JIC 1705 (Unreported, High Court, 17th February, 2023)

(under appeal by the applicants, but this was a point decided in favour of the applicants in that

case)). The courts have yet to declare such an entitlement if the challenge is purely domestic, so

applicants need to move rapidly if they don’t find out about a decision until some time after it is

made.

136. Also one needs to acknowledge that three months from the date they found out about it

wouldn’t be enough for these applicants because they didn’t do anything to challenge the licence

when they found out about it as part of the application documents for the permission. With an

apparent belief in living dangerously, the applicants waited until eight weeks after the date of the

grant of permission to bring the challenge. That obviously complicates the legal situation for them.

So we need to analyse their submission as to why they say they were entitled to disregard the need

for extension of time, and be clear on what they have to establish in order to impugn the derogation

licence, or in other words what is the applicants’ route map to success, if any, under this heading?

137. In considering the applicants’ submissions in that regard, one thing emerges clearly, which

is that the applicants have, I’m afraid, fundamentally misunderstood the relationship between EU

and domestic law. Much of their submissions on the time issue are unfortunately a confused jumble

of decontextualised snippets of EU law which don’t amount to what the applicants think they amount

to.

138. Ground zero for the applicants’ mischaracterisation of European law seems to come in the

following two sentences in their written legal submissions:

“The Applicants also rely on the principle that national procedural rules cannot be relied upon

to frustrate the effectiveness of European law. The judgment in Workplace Relations

Commission provides important clarification in relation to the principle of effectiveness: i.e.

national courts are also required to provide an effective remedy when they identify a breach

of EU law [n82 refers here to Case C-752/18 Deutsche Umwelthilfe eV v. Freistaat Bayern,

(Court of Justice of the European Union, 19th December, 2019, ECLI:EU:C:2019:1114,

§§39-40), Case C-470/16 North East Pylon Pressure Campaign Ltd v. An Bord Pleanála

(Court of Justice of the European Union, 15th March, 2018, ECLI:EU:C:2018:185, §§56-

57)].”

139. The applicants’ reliance on Case C-378/17, Minister for Justice and Equality v. Workplace

Relations Commission (Court of Justice of the European Union, 4th December, 2018,

ECLI:EU:C:2018:979) is as misplaced as it is predictable.

140. We need to remind ourselves what this case actually decided. The court said at para. 31

that:

“EU law, in particular the principle of primacy of EU law, must be interpreted as precluding

national legislation, such as that at issue in the main proceedings, under which a national

body established by law in order to ensure enforcement of EU law in a particular area lacks

jurisdiction to decide to disapply a rule of national law that is contrary to EU law.”

141. That applies to a situation where domestic law is in conflict with EU law – in such a case the

domestic law has to be disapplied even if that means exceeding the domestically-conferred

jurisdiction of the national body. That has, I’m afraid, nothing to do with a situation where the

domestic rule (such as an extension of time) is capable of being applied in a conforming manner. In

such a case, the general rule is that one has to submit to the domestic procedure and argue for a

conforming interpretation. It is not the case that one can simply proceed as if the domestic law

does not exist.

142. The applicants seem to believe that all they have to do is to step on to the pitch wearing a

blue jersey and the game is over. That is not so – they still need to score goals by the local rules,

but such rules cannot make goal-scoring impossible or excessively difficult. The local rule book is

not rendered irrelevant and inapplicable merely by virtue of the fact that the blue team would have

to engage with it.

143. The applicants’ self-penned and wildly inaccurate formula is that “national courts are also

required to provide an effective remedy when they identify a breach of EU law”. That suggests a

free-floating duty on the national court to “identify” a breach of EU law, presumably independently

of the parties’ efforts or their compliance with domestic law, and then an equally free-floating

“require[ment]” to “provide” an effective remedy – on a plate obviously, with all the trimmings, and

no effort required by the supine litigant concerned. Workplace Relations Commission doesn’t decide

anything of the sort, and nor is there any such obligation on any other basis.

144. In Case C-752/18 Deutsche Umwelthilfe eV v Freistaat Bayern, the Grand Chamber held at

paras. 39 and 40:

“39 In addition, in order to ensure effective judicial protection in the fields covered by EU

environmental law, it is for the national court to interpret its national law in a way which, to

the fullest extent possible, is consistent both with the objectives laid down in Article 9(3)

and (4) of the Aarhus Convention and with the objective of effective judicial protection of

the rights conferred by EU law (see, to that effect, judgment of 8 March

2011, Lesoochranárske zoskupenie, C-240/09, EU:C:2011:125, paragraphs 50 and 51).

40 To that end, it is incumbent upon the national court to ascertain, taking the whole body

of domestic law into consideration and applying the interpretative methods recognised by

that law, whether it can arrive at an interpretation of domestic law that would enable it to

apply effective coercive measures in order to ensure that the public authorities comply with

a judgment that has become final, such as, in particular, high financial penalties that are

repeated after a short time and the payment of which does not ultimately benefit the budget

from which they are funded.”

145. Those statements are about the interpretation of domestic law, not giving applicants a free

pass to ignore domestic law (as the applicants have done here by failing to even seek an extension

of time).

146. At para. 42 the Grand Chamber went on:

“In that regard, it should be recalled that, where it is unable to interpret national law in

compliance with the requirements of EU law, the national court, hearing a case within its

jurisdiction, has, as an organ of a Member State, the obligation to disapply any provision of

national law which is contrary to a provision of EU law with direct effect in the case pending

before it (judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraph 21,

and of 24 June 2019, Popławski, C-573/17, EU:C:2019:530, paragraphs 58 and 61).”

147. So the domestic court should first “interpret national law in compliance with the

requirements of EU law”. Only if that is not possible do we move on to disapplying national law, and

only in cases where the EU law concerned has direct effect due to being clear, precise and

unconditional. Even then, such an EU law provision doesn’t automatically have priority if there is a

conflicting fundamental right recognised in European law as stated at para. 56:

“EU law, in particular the first paragraph of Article 47 of the Charter of Fundamental Rights

of the European Union, must be interpreted as meaning that, in circumstances in which a

national authority persistently refuses to comply with a judicial decision enjoining it to

perform a clear, precise and unconditional obligation flowing from EU law, in particular from

Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on

ambient air quality and cleaner air for Europe, it is incumbent upon the national court having

jurisdiction to order the coercive detention of office holders involved in the exercise of official

authority where provisions of domestic law contain a legal basis for ordering such detention

which is sufficiently accessible, precise and foreseeable in its application and provided that

the limitation on the right to liberty, guaranteed by Article 6 of the Charter of Fundamental

Rights, that would result from so ordering complies with the other conditions laid down in

that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis

in domestic law, EU law does not empower that court to have recourse to such a measure.”

148. In North East Pylon Pressure Campaign Ltd, the court said at paras. 56 and 57:

“56 Therefore, if the effective protection of EU environmental law, in this case Directive

2011/92 and Regulation No 347/2013, is not to be undermined, it is inconceivable that

Article 9(3) and (4) of the Aarhus Convention be interpreted in such a way as to make it in

practice impossible or excessively difficult to exercise rights conferred by EU law (see, by

analogy, judgment of 8 March 2011, Lesoochranárske zoskupenie, C-240/09,

EU:C:2011:125, paragraph 49).

57 Consequently, where the application of national environmental law – particularly in the

implementation of a project of common interest, within the meaning of Regulation

No 347/2013 – is at issue, it is for the national court to give an interpretation of national

procedural law which, to the fullest extent possible, is consistent with the objectives laid

down in Article 9(3) and (4) of the Aarhus Convention, so that judicial procedures are not

prohibitively expensive.”

149. Again that is about interpreting domestic law, not ignoring it. One can note in passing that

the court did not consider art. 9(3) and (4) of the Aarhus Convention to have direct effect, but

nonetheless the principle of conforming interpretation applies.

150. The fundamental problem for the applicants is that they think that either they, or the court,

or both, can just ignore O. 84 r. 21 RSC (the three-month rule and provision for extension of time).

But that rule confers some flexibility and is capable of being operated in a manner that complies

with EU law, or to put it another way, nobody has shown that a conforming interpretation is

impossible. If, for example, the rule were to prohibit extensions of time in circumstances where

access to the court was required by EU law, and so where there was a direct conflict with applicable

EU law and a conforming interpretation was not available, then one would be into Workplace

Relations Commission-disapplying-national-law territory. But we haven’t got to that point here.

151. The fundamental point is that there isn’t anything inherently unlawful about national law

providing rules about things like time limits as an aspect of the principle of national procedural

autonomy: see Krikke v. Barranafaddock Sustainability Electricity Limited [2022] IESC 41, [2023] 1

I.L.R.M. 81, [2022] 11 JIC 0303. The CJEU held in Case C-348/15 Stadt Wiener Neustadt v.

Niederösterreichische Landesregierung (Court of Justice of the European Union, 17th November,

2016, ECLI:C:2016:882) at paras. 40 and 41:

“40 ... It is indeed settled case-law of the Court that, in the absence of EU rules in the field,

it is for the national legal system of each Member State to designate the courts and tribunals

having jurisdiction and to lay down the detailed procedural rules governing actions for

safeguarding rights which individuals derive from EU law, provided that such rules are not

less favourable than those governing similar national actions (principle of equivalence) and

that they do not render practically impossible or excessively difficult the exercise of rights

conferred by EU law (principle of effectiveness).

41 The Court also considers that it is compatible with EU law to lay down reasonable time

limits for bringing proceedings in the interests of legal certainty, which protects both the

individual and the administrative authority concerned. In particular, it finds that such time

limits are not liable to make it in practice impossible or excessively difficult to exercise the

rights conferred by EU law (see, to that effect, judgments of 15 April 2010, Barth, C-542/08,

EU:C:2010:193, paragraph 28, and of 16 January 2014, Pohl, C-429/12, EU:C:2014:12,

paragraph 29).”

152. The applicants’ next complaint is:

“It is the Applicant’s case that these domestic rules and procedure cannot be relied upon to

frustrate the objectives of the Directive–in this case the strict protection of bat fauna whose

roosts may be lost to the proposed development.”

153. The loose wording of the submission gives it away – the principle of EU law is that the

domestic procedural rule must not make it in practice impossible or excessively difficulty to exercise

EU law rights. It is not a principle that any and every applicant must be allowed to win their case,

or that nobody can be held to fall foul of a procedural rule because that would “frustrate” the

objectives of a directive.

154. Next, the applicants’ endeavours to find supportive fragments of authority are turned up a

notch:

“As identified by the Court of Justice in Case C-166/97, Commission v. France (§13):

‘According to the settled case-law of the Court, a Member State may not plead provisions,

practices or circumstances existing in its internal legal system in order to justify a failure to

comply with the obligations and time-limits laid down in a directive…’”

155. As is perhaps obvious, that was an enforcement action by the Commission in relation to

failure to fulfil obligations conferred by a directive (art. 4 of the birds directive (Council Directive

79/409). The settled caselaw referred to in the partial quotation also involves enforcement actions.

The language of the CJEU regarding the context of enforcement action is just not transferrable holus-

bolus to the conforming interpretation context, as the applicants seem to imply.

156. The quote continues:

“(see, inter alia, Case C-259/94 Commission v Greece [1995] ECR I-1947, at paragraph 5

and Case C-214/96 Commission v Spain [1998] ECR I-7661, at paragraph 18).”

157. None of this has anything to do with what amounts to an alleged entitlement of the applicants

to exempt themselves from domestic law requirements - in this instance the need to apply for an

extension of time to challenge a derogation licence.

158. The applicants’ submission then reaches its peroration:

“In Case C-415/21 [sic], Commission v. Belgium, the Court of Justice stated (§21):

‘The provisions of Directives must be implemented with unquestionable binding force, and

the specificity, precision and clarity necessary to satisfy the requirements of legal certainty.

The principle of legal certainty requires appropriate publicity for the national measures

adopted pursuant to Community rules in such a way as to enable the persons concerned by

such measures to ascertain the scope of their rights and obligations in the particular area

governed by Community law.’”

159. This case is mis-cited – its correct case number is Case C-415/01. There is no emphasis in

the original, but the submissions do not mention that emphasis has been added. Also, the quotation,

strangely, is incomplete although there are no ellipses noted in the quotation in the submissions.

The full quotation from Case C-415/01 Commission v. Belgium 2003 ECR I-02081

(ECLI:EU:C:2003:118), para. 21, is:

“In that regard, it is important to recall that, according to consistent case-law, the provisions

of directives must be implemented with unquestionable binding force, and the specificity,

precision and clarity necessary to satisfy the requirements of legal certainty (see, in

particular, Case C-159/99 Commission v Italy [2001] ECR I-4007, paragraph 32). The

principle of legal certainty requires appropriate publicity for the national measures adopted

pursuant to Community rules in such a way as to enable the persons concerned by such

measures to ascertain the scope of their rights and obligations in the particular area

governed by Community law (see Case C-313/99 Mulligan and Others [2002] ECR I-5719,

paragraphs 51 and 52).”

160. Case C-415/01 Commission v. Belgium, and Case C-159/99 Commission of the European

Communities v. Italian Republic (Court of Justice of the European Union, 17th May, 2001,

ECLI:EU:C:2001:278), were enforcement actions about the birds directive. Case C-313/99 Mulligan

v. Minister for Agriculture and Food (Court of Justice of the European Union, 20th June, 2002,

ECLI:EU:C:2002:386) was a reference by the High Court here on the interpretation of Council

Regulation (EEC) No 3950/92 of 28th December, 1992 establishing an additional levy in the milk

and milk products sector. Unfortunately for the applicants, paras. 49 to 54 of Mulligan do not support

the EU-law-straitjacket argument underpinning the applicants’ case. Rather they impliedly

acknowledge the scope of national procedural autonomy:

“49 In the present case, the questions referred by the national court, as reformulated in

paragraph 38 of this judgment, concern two specific aspects of the legislative procedure

followed for the adoption of the clawback measure at issue in the main proceedings, namely

the fact that the 1995 Regulations, first, gave the Minister a discretion to adopt decisions

for that purpose and, second, permitted the adoption of those measures by means of a

notice published in the national press.

50 With regard to the first aspect of that procedure, the mere fact that a national legislative

instrument has delegated to an authority of a Member State, such as a minister, authority

to adopt measures pursuant to Article 7(1) of Regulation No 3950/92 is not in itself of such

a nature as to infringe the principle of legal certainty, since the adoption of a measure

following such a procedure does not necessarily mean that that measure is not binding or

does not satisfy the requirement of that principle that it be specific, precise and clear.

51 With regard to the second aspect of that procedure, it suffices to observe that, although

the principle of legal certainty requires appropriate publicity of the national measures

adopted pursuant to a Community regulation, it is nevertheless the case that the principle

does not prescribe any specific form of publicity, such as publication of the measures in the

Official Journal of the Member State concerned.

52 As is clear from the case-law cited in paragraph 47 above, the reason why the principle

of legal certainty, as a general principle of Community law, requires appropriate publicity of

measures adopted by the Member States in implementation of an obligation under

Community law is the obvious need to ensure that persons concerned by such measures are

able to ascertain the scope of their rights and obligations in the particular area governed by

Community law.

53 It follows that to be appropriate publicity must be of such a nature as to inform the

natural or legal persons concerned by the measure of their rights and obligations under it.

It is not therefore ruled out that publication of that measure in the national press may satisfy

that condition. However, it is for the national court to determine, on the basis of the facts

before it, whether that is the case in the main proceedings.

54 Consequently, the answer to the second and third questions must be that the principle

of legal certainty does not preclude, as a general principle of Community law, a Member

State from choosing, for the purpose of adopting national measures pursuant to Article 7(1)

of Regulation No 3950/92, a procedure whereby a legislative instrument authorises the

competent authority, such as a minister, to adopt those measures by means of a decision.

That principle requires that the publicity for such measures be of such a nature as to inform

the natural or legal persons concerned by the measures of their rights and obligations under

them. It is for the national court to determine, on the basis of the facts before it, whether

that is the case in the main proceedings.”

161. Bearing all that in mind, the question is whether there is any remaining path, however

narrow, to enable the applicants to progress their objection to the derogation licence.

What is the applicants’ route-map, if any, to impugning the derogation licence?

162. In order to succeed, the applicants would need to establish the following arguments (phrased

as propositions but I am not to be taken as accepting these for present purposes):

(i) The grant of a derogation licence should be held to be “part of the

development consent procedure” to use the language of the CJEU in Case C-

463/20 Namur-Est Environnement ASBL v. Région wallonne (Court of Justice of the

European Union, 24th February, 2022, ECLI:EU:C:2022:121).

(ii) Therefore the derogation licence should be capable of being challenged as

if made on the date of the development consent. As put in legal submissions,

“[i]nsofar as any time objection may be made in relation to this point, the Derogation

Licence only crystallised and was only published once planning permission for the

proposed development was granted and the Bat Report was published”. The concept

of “crystallisation” is to some extent a conceit of the applicants’ own confection,

although on the other hand one cannot totally rule out such an argument as flowing

from the proposition that the licence should be treated as part of the development

consent for EU law purposes. Hence the applicants submit: “[i]t is the Applicants’

case that the only appropriate time to challenge the Derogation Licence was after

planning permission was granted.”

(iii) This should apply even where national law allows the derogation licence to

be applied before, during or after the development consent, if the detriment

created by a licence in practice requires the approval of the project. In such

circumstances, where the licence is obtained before the development consent, then

the licence should be treated as part of the consent so that it can be challenged as

of the date of the consent, notwithstanding the principle of national procedural

autonomy reflected for example in art. 11(2) of the EIA Directive 2011/92 which

provides that: “[m]ember States shall determine at what stage the decisions, acts

or omissions may be challenged”. Thus any given applicant can simultaneously

challenge an associated derogation licence on the basis that it is a part of the

development consent, even in a member state like Ireland where the law is

unspecific as to whether one can seek any necessary development consents before,

during or after the procedure: see the slightly different fact situation of Namur-Est

Environnement ASBL and in particular the opinion of Advocate General Kokott

delivered in that case (Court of Justice of the European Union, 21st October, 2021,

ECLI:EU:C:2021:868). At para. 37 of her opinion, Advocate General Kokott stated:

“Moreover, the Kingdom of Belgium’s submission is also not convincing in terms of

content, since the permit under species protection law was expressly applied for in

relation to the implementation of the quarry project. According to the observations

submitted in the hearing, detriment caused to protected species is accordingly

permissible only within the framework of the project, and therefore requires, at least

in practice, the approval of the project as a whole. A further reason why such a link

with the project appears to be necessary under EU law is that only the objectives of

the measure concerned, in this case the project, can justify a derogation from the

obligations of species protection in accordance with Article 16 of the Habitats

Directive and Article 9 of the Birds Directive.”

(iv) The applicants were entitled to an extension of time to cover the period up

to when they knew about the derogation licence. The written submission goes

on: “[w]hile the Minister does take a time point against the Applicants (§§29-30 of

the SOO), he does not explain how the Applicants were supposed to challenge a

decision with which they had no involvement, where there was no public

participation, and which was only published in the context of materials being placed

by the Developer on its website for the purpose of applying for planning permission.”

If the complaint is that the applicants couldn’t have challenged the licence before

the application documents were placed on the website, that is a fair point, but it is

not in dispute. Had the applicants moved within three months from that date and

sought an extension of time for the purpose, we would not be having this discussion.

But they didn’t do that either.

(v) The applicants were entitled to a further extension of time to cover the

period from when they knew about the derogation licence up to the date of

the permission. The argument is that this follows from the above points.

(vi) Where an applicant is to be allowed an extension of time by virtue of EU

law, domestic procedures should not preclude a claim merely because an

applicant does not apply for an extension of time to which she would be

thus entitled. Here the applicants are really pushing the boat out, because they

didn’t even invoke the formality of seeking an extension of time in the statement of

grounds, or when applying for leave (even on a conditional basis if and insofar as

such an extension was required), which was the legally ideal time to alert the court

to the problem, or by way of a motion seeking extension of time thereafter. Their

main line of defence seemed to be that they didn’t need to apply for an extension of

time. That is incorrect – obviously so – as a matter of domestic law. There isn’t

anything about the relationship between EU and domestic law that would preclude

that conclusion. But is this only the omission of a formality? It has to be pointed

out that this is a totally self-inflicted addition to the list of issues because it would

have been painless for the applicants to have asked for the extension on the grounds

that they claim to be entitled to it as of right, thereby providing formal compliance

with domestic law rules. On the other hand, if the applicants can ignore domestic

law as to time because it is a formality, then what else can they ignore? Can they

wander into court without pleadings or affidavits, without seeking leave, without

paying stamp duty, without complying with rules of court or practice directions? The

whole doctrine cooked up by the applicants appears on the face of things to be a

recipe for procedural chaos. Perhaps there is some other answer to this that I am

missing and that meets the minimum threshold of plausible doubt warranting

consideration of the Luxembourg route, so I will give the opportunity to clarify that

as stated below.

(vii) A derogation licence cannot conclude that there were no alternatives unless

it actually considers alternatives. Assuming that the applicants get over the

time problem, their next point is that the licence was invalid because it didn’t study

any alternatives, so it could not conclude that there were no alternatives.

(viii) A derogation licence can only be granted for the purpose of protecting wild

fauna and conserving natural habitats if some identified level of protection

is created by the licence rather than by mitigation measures associated with

the detriment created by the licence. The applicants essentially complain that

the licence itself doesn’t provide protection for fauna and habitats so should not have

been issued on the basis that it did.

Conclusion on this issue for present purposes

163. Having identified the foregoing points, I have some concerns that the EU argument on the

time issue crystallised very late in the hearing and that the parties may not have had the fullest

opportunity to address these questions. I am therefore going to give the parties a final opportunity

to make written legal submissions on these points and in particular on whether I should decide these

myself or whether any doubt arises as to these such as would warrant consideration of the

Luxembourg route. By all appearances at the present moment, and totally subject to contrary

argument, the weakest link is point (vi), so the parties will have to focus on whether or not there is

anything to create doubt about the answer to that in particular, while also having the opportunity to

consider the other issues.

164. Subject to any alternative position that may emerge following further submissions, the take-

home point in the meantime is that as a matter of domestic law, a derogation licence should be

challenged when any given challenger finds out about it or at the latest within three months from

the earliest date on which she should have known about it. Where the challenge comes more than

three months after the date of the licence, an extension of time is required as a matter of Irish law.

Any EU law argument can normally only be made once there is compliance with the domestic law

requirement to seek such an extension, which on the face of things is consistent with both

equivalence and effectiveness. If an applicant challenges a licence within three months of the date

she could reasonably have known of it, then an extension based on EU law is there for the asking.

One might have thought that the safer course is to comply with that rather than to add further EU

law dominoes to an already crowded list of things that have to fall one’s way, because to wait for

the final permission means having to face a whole other set of tripwires. But even if an applicant

incautiously waits until then, the prudent and indeed completely obvious course is to formally apply

for the extension of time when seeking leave. These applicants didn’t do that, for reasons best

known to themselves.

Summary

165. Without taking from the more express and operative terms of the judgment, a rough

summary of the outcome is as follows:

(i) Core ground 1 – this was not pursued;

(ii) Core ground 2 – zoning – this misunderstands the concept of a zoning provision;

(iii) Core ground 3 – material contravention – the plan provided sufficient flexibility for

the decision on the specific facts here;

(iv) Core ground 4 – statutory invalidity – this exaggerates the effect of the SEA directive

beyond anything in national or European caselaw;

(v) Core ground 5 – this was not pursued;

(vi) Core ground 6 – insofar as the pleaded case was concerned, this was not pursued,

and insofar as an attempt was made to construct a new case out of a passing

reference to the EIA screening, the argument is not adequately pleaded;

(vii) Core ground 7 – derogation licence – there will be a further opportunity to make

submissions on the remaining net issues here;

(viii) Core ground 8 – traffic – this exaggerates the entitlement to reasons, which were

sufficient in context; and

(ix) Core ground 9 – stay – this can continue for the time being subject to any

application.

Order

166. For the foregoing reasons, it will be ordered that:

(i) the challenge to the decision of the board be dismissed;

(ii) submissions be invited in the terms stated in the judgment on the challenge to the

derogation licence;

(iii) the matter be listed for mention on a date to be notified;

(iv) the stay be continued for the time being until further order with liberty to apply; and

(v) the foregoing order be perfected with no order as to the costs of the challenge to

the decision of the board, and with costs of the challenge to the derogation licence

reserved, unless submissions to the contrary are lodged with the court within 7 days

of the date of this judgment.