High Court dismisses Ryanair's appeal on a minor wording error, rejecting the need to overturn safety decisions.

[2025] IEHC 194

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000745]

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

ACT 2000

BETWEEN

RYANAIR DESIGNATED ACTIVITY COMPANY

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DAA PLC

NOTICE PARTY

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 4th day of April 2025

1. Having pleaded an extensive domestic and EU law case ranging over matters such as

significant effects on waterways, lack of notice to consultees, climate action, carbon emissions

ceilings, environmental impact assessment (EIA), European sites, habitats and bats, the applicant

abruptly dropped the large bulk of its points shortly before the hearing. The eventual centrepiece

of the hearing was a complaint about compliance with directive 2000/60/EC of the European

Parliament and of the Council of 23 October 2000 establishing a framework for Community action in

the field of water policy (the water framework directive), a point which I rejected (along with the

applicant’s sole remaining domestic law point) in Ryanair v. An Bord Pleanála (No. 1) [2025] IEHC

74 (Unreported, High Court, 14th February 2025). That central EU law point has now also been

thrown overboard, and the present leave to appeal application perches precariously on a tiny

fragment of the original pleaded case – an alleged infelicity in the inspector’s wording on a purely

domestic law issue regarding the local area plan (LAP). The question now is whether this is a

plausible basis for leave to appeal.

Application to re-open and its resolution

2. The applicant initially sought to re-open the judgment on a somewhat unanticipated basis

(the following discussion will need to be read in tandem with the substantive judgment).

3. The applicant complained about the sentence that “However, the false premise of the

applicant’s complaint is the assumption made in the pleaded case that s. 37(2) of the 2000 Act

applies in the first place”, and said that there is no such assumption. But the complaint

misunderstood the judgment. It is reasonably well-established at this stage that a decision should

be read in a way that makes sense rather than nonsense and that renders it valid rather than invalid.

The same principle applies to the correct sense in which to read judgments.

4. If there is an issue here it is one of the endless depths of the English language, whereby the

word “assumption” has both an objective and a subjective sense. The objective is the relevant one.

5. The primary sense in which a reasonable person would read the offending sentence, in its

full context, is as an assertion that the logic of the applicant’s pleading implies or assumes that

there is a legal provision creating relevance for the distinction between materiality and justification,

which could only be s. 37(2) of the Planning and Development Act 2000 (the 2000 Act).

6. To put it another way, the applicant demands certiorari because of a potential confusion

between materiality of and justification for the contravention of LAP. An applicant cannot however

simply say “error therefore certiorari” and sit back contentedly awaiting its order with costs. It isn’t

as simple as that. Not all errors warrant certiorari – the applicant accepted that. The error has to

be about something that would make a different to anything in legal terms – the applicant didn’t

provide any reason why that isn’t equally obvious.

7. The unstated premise – “assumption” in my terminology (the applicant quibbles with my

terminology but such an exercise is always possible) – of this argument is that the distinction

between materiality and justification is legally impactful and relevant. That in turn implies

(“assumes” in my terminology) that there is a legal provision that makes the distinction relevant,

and the only such provision is s. 37(2) of the 2000 Act.

8. In other words, if you assume X, but X assumes Y, you are also assuming Y. Your protests

that you are not assuming Y do not affect the logic of your position.

9. And the problem with the assumptions of the argument here is that Y is not the case. In

the absence of the application of s. 37(2), then, as daa submitted, “whether the contravention is

material or not changes not one iota of the analysis in that respect” (transcript p. 81).

10. Sure I could have phrased it differently – I could have said that the applicant’s pleaded point

only works if we assume that s. 37(2) applies – or said that the assumption in the pleaded case is

that the relevant distinction is legally significant which in turn assumes the application of s. 37(2),

or no doubt any number of other ways. But, as daa said about the applicant’s point at the

substantive hearing, “so what?” (transcript p. 81). The meaning of the substantive judgment is

clear enough I think. And if it isn’t then the applicant can regard it as having been further explicated

now.

11. As to the subjective sense of the word “assumption”, this is irrelevant. Nobody particularly

cares whether the applicant consciously thought s. 37(2) applied or not, and I do appreciate that

they were assiduous in attempting to avoid being of much assistance as to whether it governed the

situation here. (Their stated rationale for this majestic neutrality was that this was irrelevant – but

of course it isn’t irrelevant because the legal context determines whether a given error is significant

to anything or not.)

12. But no matter what subjective and – I suspect – elaborate thought-processes went into sub-

ground 26, I return to the point that it isn’t enough to plead that the inspector used an incorrect

phrase. For that to have any meaning or impact there has to be an implication (“assumption” was

my term, even acknowledging that the applicant doesn’t like it) that this is legally significant which,

in the circumstances, could only be via the application of s. 37(2). Otherwise, as daa helpfully

submitted, “a bit like Lord Voldemort's spell on the baby Harry, Ryanair's magic word spell rebounds

upon them because what they're asking you to do is to quash the decision, remit it to the Board so

that they can add in the word ‘material contravention’, but what does it change? It changes

absolutely nothing because the Board's jurisdiction and discretion is in absolutely and utterly no way

restricted by whether the contravention is material or not” (transcript pp. 80-81, referencing J.K.

Rowling, Harry Potter and the Philosopher's Stone (1997)).

13. The “assumption” in the pleaded case is the theoretical assumption that is objectively

required to make the pleaded argument work. It doesn’t matter if the applicant didn’t subjectively

intend such an assumption. So the punchline is that there isn’t any substantive error in the judgment

– the complaint is purely semantic.

14. If I can put the matter yet another way, in the substantive judgment I considered both the

argument that s. 37(2) applied (I rejected this as unfounded) and the scenario that it didn’t apply

(which I held had the consequence that the apparent error of the inspector didn’t make much of a

difference to much of anything given the absence of a legal context that would make such an error

significant). There isn’t a third scenario. So while Ryanair can quibble away with my wording,

that isn’t going anywhere because all of the possible options got separate consideration that wasn’t

dependent on any conclusion as to the applicant’s subjective views.

15. The applicant’s concern ultimately was the fear that I attributed a view to it that it didn’t

articulate, but on a reasonable reading of the judgment I didn’t do that – the assumption referred

to is an assumption objectively underlying the logic of their argument (albeit that the applicant

doesn’t agree that their argument has that logical consequence). It is not an assumption articulated

by or even subjectively held by them. Insofar as the applicant incorrectly thinks that the logic of

their argument doesn’t demand such an assumption, that’s a putative appeal point (assuming they

provide a basis for that – see below), not a re-open-the-judgment point.

16. The applicant seemed to be focused on the argument that by being forgiving towards the

apparent error, I am overlooking legal breach on the part of the board. Of course that sounds

superficially plausible on a first reading, as always – but it misunderstands the point. Assuming

legal breach, we then face the issue that not all breaches warrant certiorari. So we need to ask

whether the materiality/justification distinction is legally relevant in the LAP context – and it isn’t

due to the absence of any legal rule to that effect, and specifically to the non-application of s. 37(2).

17. The question as to the status of the LAP by reference to s. 37 was indeed interesting but the

applicant didn’t particularly contribute to that debate at the hearing and was neutral as to the legal

ramifications or application of s. 37(2) in this context. So I don’t think there is a whole lot of doubt

as to the status of the LAP as outlined in the No. 1 judgment.

18. The applicant also asks rhetorically how many stands could be removed before an error

would be deemed material – I don’t need to answer that. But if I had to answer it, I would say that

the removal of any stands is a material departure from the LAP if the objective of the LAP is to

increase the number of stands, subject to the application of planning judgement if the given

application being considered (as opposed to a hypothetical separate application) itself provided some

equivalent number of stands in the same location or elsewhere within an acceptable timescale such

that there was no net reduction after a reasonable period. However I would also say that it isn’t

critical whether a departure from the LAP is material or not, because it only has a have-regard-to

status.

19. After some discussion at the hearing on 3rd March 2025, the applicant, pragmatically (and

due credit to it), acquiesced in clarifications along the essentials of the foregoing lines and accepted

that the matter could proceed to the leave to appeal stage without the need to progress the re-

opening application on such a basis. Accordingly, three weeks were allowed for the applicant’s

submissions, a week for a reply and the leave to appeal application was to be heard on 31st March

2025, with costs of the re-opening issue reserved at the request of the opposing parties, without

objection.

Some general principles on leave to appeal

20. The statutory criteria for leave to appeal are familiar. Some of the major elements required

for the grant of leave to appeal are as follows:

(i) The point must properly arise

(a) The question must fall within the pleadings: Concerned Residents of

Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28,

[2024] 7 JIC 0402 (Unreported, Supreme Court, 4th July 2024) per Murray

J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ.

concurring).

(b) The question must actually arise on the facts and should not be

launched in the abstract: see analogously Minister for Justice and Equality

v. Andrzejczak (No. 2) [2018] IEHC 11, [2018] 1 JIC 1603 (Unreported,

High Court, 16th January 2018), Donnelly J., para. 10.

(c) The question raised must actually have been argued by the would-be

appellant and must not be a new issue formulated for the purposes of an

appeal: GOCE Limited v. An Bord Pleanála [2025] IEHC 43 (Unreported,

High Court, Farrell J., 31st January 2025).

(d) While not an absolute rule, the question should be determinative in some

sense and should make a difference to the outcome – generally it

should not be one which, if answered in a sense favourable to the would-

be appellant, would leave the result unchanged: S.A. v. Minister for Justice

and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC

1404 (Unreported, High Court, 14th November 2016). This is part of a

broader principle that prolonging the process by recourse to a further

instance can’t be based on just identifying some shiny and interesting

point – the whole thing has to be going somewhere. O’Donnell J. put this

vividly in Rooney v. Minister for Agriculture and Food [2016] IESC 1

(Unreported, Supreme Court, 28th January 2016) at para. 3: “Some

litigants, and not just those who represent themselves, prefer the comfort

of focusing exclusively on the debatable ruling or judicial comment

reinforcing a sense of grievance rather than recognise the forest of

problems in the overall case. The cycle continues and becomes almost a

form of litigious perpetual motion.”

(e) The question must accurately reflect the judgment and must not be

an addition, exaggeration or distortion launched for the purposes of

creating a case for appeal: Monkstown Road Residents Association v. An

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

19th January 2023) per Holland J. at §9(d); Stapleton v. An Bord Pleanála

[2025] IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J.

(f) The application for leave to appeal should be made within time,

generally within 28 days from the order to be appealed against: S.A. v.

Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC

439, [2016] 11 JIC 1404 (Unreported, High Court, 14th November 2016).

(g) The question should be specific and should identify something specific that

makes a difference – it should not be an invitation to an appellate

court to write an essay on a particular topic or engage in a discursive,

roving response: S.A. v. Minister for Justice and Equality (No. 2) [2016]

IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High

Court, 14th November 2016); Stapleton v. An Bord Pleanála [2025] IEHC

178 (Unreported, High Court, 1st April 2025) per Holland J.

(ii) The point must be one of law

(a) The point cannot be an essentially factual question such as construing

the import and effect of a particular decision; Leech v. An Bord Pleanála

[2025] IEHC 157 (Unreported, High Court, 24th March 2025) per Farrell

J.

(b) Relatedly, the question should not be one of application of law to

particular facts but rather one of the substance, content and

interpretation of law. Questions about the application of established

principles to particular facts are not pure questions of law and are at best

mixed questions of fact and law, and are generally unsuitable for appeal

in such a context: B.S. v. Director of Public Prosecutions [2017] IESCDET

134 (Clarke C.J., O’Donnell, McKechnie, MacMenamin, Dunne, Charleton

and O’Malley JJ., 6th December 2017); per Simons J. in Halpin v. An Bord

Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 (Unreported, High Court,

15th May 2020) (para. 60); per Barniville J. in Rushe v. An Bord Pleanála

[2020] IEHC 429, [2020] 8 JIC 3101 (Unreported, High Court, 31st August

2020); per Phelan J. in Stanley v. An Bord Pleanála [2022] IEHC 671,

[2022] 11 JIC 2805 (Unreported, High Court, 28th November 2022); Eco

Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An

Taisce - The National Trust for Ireland and Client Earth AISBL [2024]

IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024); per Farrell

J. in Leech v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court,

24th March 2025).

(iii) The point of law must be of public importance

(a) The question must not be fact-specific arising in the particular context

of a particular case – rather it must transcend the facts in order to create

a point of public importance: see analogously and albeit non-

precedentially, Patrick McCaffrey & Sons Limited v. An Bord Pleanála

[2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 20th November

2024).

(b) Advancing the proposed question should resolve doubt rather than

create doubt where none exists – this is consistent with the views of

Baker J. in Ógalas v. An Bord Pleanála [2015] IEHC 205, 2015 WJSC-HC

22497, [2015] 3 JIC 2008 (Unreported, High Court, 20th March 2015) that

an appeal may be necessary in the public interest to resolve doubt. But if

no doubt exists, the function of the appeal mechanism is not to introduce

new uncertainty into the system. Nagle View Turbine Aware Group v. An

Bord Pleanála (No. 2) [2025] IEHC 3 (Unreported, High Court, 10th

January 2025) endorsed a submission that “where the law is not uncertain,

the public interest suggests an appeal is not warranted”.

(c) The application for leave to appeal should engage with the rationale of

the judgment being appealed against and provide a plausible basis

as to why that judgment is wrong to the level that meets the criteria

for an appeal. While a leave to appeal application is in one sense premised

on the view that the decision may be incorrect, that does not relieve a

would-be appellant from actually engaging with the logic and reasoning of

the judgment as opposed to merely repeating his or her position: see

analogously and non-precedentially, Nagle View Turbine Aware v. An Bord

Pleanála [2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ. 10th

March 2025).

(d) The fact that an official body is seeking leave to appeal is a relevant factor

(Sherwin v. An Bord Pleanála (No. 2) [2023] IEHC 232, [2023] 5 JIC 0802

(Unreported, High Court, 8th May 2023)) but the mere fact that the

request for leave to appeal is made by an official entity does not

convert a point into one being suitable for appeal if it would not

otherwise be so. As pointed out in Stapleton v. An Bord Pleanála [2025]

IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J., a body

concerned that it is bound by a decided issue is the whole point – the

system is not a one-way ratchet whereby only applicants are bound by

caselaw.

(e) The fact that a point is “novel” is not determinative as to whether a point

is suitable for the granting of a certificate, or to put matters another way,

the mere fact that a point is novel does not render it a suitable

basis for appeal if it would not otherwise be so: Callaghan v. An Bord

Pleanála [2015] IEHC 493, 2015 WJSC-HC 4417, [2015] 7 JIC 2405

(Unreported, High Court, Costello J., 24th July 2015). And as Hyland J.

observed in Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209,

[2023] 3 JIC 1307 (Unreported, High Court, 13th March 2023) at §27:

“the mere fact that an applicant for leave disagrees with a conclusion in

the judgment cannot be relied upon to characterise the state of the law as

being uncertain”.

(f) The mere inclusion of a request for a reference to the CJEU does

not convert a point into one suitable for appeal if it is otherwise

unsuitable for appeal by reason of being abstract, or not arising having

regard to the findings of fact, or being an issue of application of law rather

than interpretation, or due to lacking sufficient factual foundation or due

to there not being any demonstrable reasonable doubt, for example: see

analogously Carrownagowan Concern Group v. An Bord Pleanála [2025]

IESCDET 8 (Charleton, Collins and Donnelly JJ., 27th January 2025);

Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9

(Charleton, Collins and Donnelly JJ., 27th January 2025).

(iv) The public importance must be exceptional

If the would-be appellant establishes that there is a point of law of public importance,

it must also be established that the importance is exceptional.

(v) An appeal must be in the public interest

(a) The context is the objective of the Oireachtas in seeking finality, certainty

and expedition in challenges brought by way of judicial review in planning

cases (Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála

[2022] IEHC 231, [2022] 4 JIC 2601 (Unreported, High Court, 26th April

2022) per Barniville J. at para. 32; Freeney v. An Bord Pleanála [2025]

IEHC 36 (Unreported, High Court, 24th January 2025) per Bradley J). The

nature of the project and the risks of further delay are factors going to the

requirement that an appeal must be in the public interest: see per

McGovern J. in Dunnes Stores v. An Bord Pleanála [2015] IEHC 387, 2015

WJSC-HC 6876, [2015] 6 JIC 1805 (Unreported, High Court, 18th June

2015) at §15 and §16. See also analogously and non-precedentially Eco

Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An

Taisce - The National Trust for Ireland and Client Earth AISBL [2024]

IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024) at para.

24: “The Court must have regard to the potential impact upon the notice

party of any further delay in these proceedings”.

(b) Any assertion of problems in practice caused by a judgment must be

backed up with evidence: see Stapleton v. An Bord Pleanála [2025]

IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J., and,

relevant by analogy, albeit non-precedentially, Phoenix Rock Enterprises

v. An Bord Pleanála & Ors [2023] IESCDET 97 (Dunne, Baker and Donnelly

JJ., 20th July 2023) at §22 and §30 dealt with an argument that alleged

uncertainty in the law was creating alleged difficulties in practice, but

rejected this on the basis that there was “no evidence before the High

Court that the quarry industry was being seriously affected by the issues

in the case”, and that “[t]he decision in this case was fact-specific to this

quarry and it must be recalled that the role of the Supreme Court on an

Article 34 appeal is not to give advisory opinions but to deal with the

controversy at issue between the parties once the constitutional thresholds

have been met”. See also McCaffrey v. An Bord Pleanála [2024] IEHC 476

(Unreported, High Court, Gearty J., 26th July 2024) at §3.7, leave to

appeal refused McCaffrey v. An Bord Pleanála [2024] IESCDET 145

(Dunne, Hogan and Collins JJ., 29th November 2024).

21. Contextually, perhaps I can point out that if there is a solid case for leave to appeal, it will

presumably be granted – see R.A. v. Refugee Appeals Tribunal [2015] IEHC 830 (Unreported, High

Court, 21st December 2015); B.W. v. Refugee Appeals Tribunal [2015] IEHC 833 (Unreported, High

Court, 21st December 2015); K.R.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 421

(Unreported, High Court, 24th June 2016); S.T.E. v. Minister for Justice and Equality [2016] IEHC

544 (Unreported, High Court, 14th October 2016); R.A. v. Refugee Appeals Tribunal (No. 3) [2016]

IEHC 671 (Unreported, High Court, 21st November 2016); B.S. (India) & Anor. v. Minister for Justice

and Equality & Ors. (No. 3) [2020] IEHC 485, [2020] 10 JIC 1202 (Unreported, High Court, 12th

October 2020); Sweetman v. An Bord Pleanála (Sweetman XVII) (No. 2) [2021] IEHC 662, [2021]

10 JIC 2601 (Unreported, High Court, 26th October 2021); Dublin City Council v. An Bord Pleanála

(No. 2) [2021] IEHC 34 (Unreported, High Court, 28th January 2021); Waltham Abbey Residents

Association v. An Bord Pleanála [2021] IEHC 597, [2021] 10 JIC 0702 (Unreported, High Court, 7th

October 2021); Save Roscam Peninsula CLG v. An Bord Pleanála (No. 2) [2022] IEHC 328, [2022]

6 JIC 0903 (Unreported, High Court, 9th June 2022); Joyce-Kemper v. An Bord Pleanála (No. 5)

[2022] IEHC 349 (Unreported, High Court, 10th June 2022); Kerins v. An Bord Pleanála (No. 5)

[2023] IEHC 280 (Unreported, High Court, 25th May 2023); Coolglass v. An Bord Pleanála [2025]

IEHC 1 (Unreported, High Court, 10th January 2025). It does not necessarily assist matters to

certify superfluous issues that do not meet the necessary criteria.

The proposed question of alleged exceptional public importance

22. The applicant’s proposed question of exceptional public importance is:

“Are material legal errors in the interpretation/understanding by a decision maker of a

relevant Local Area Plan grounds for certiorari in the absence of an applicable legal standard

identifying such a consequence?”

Does the point properly arise?

23. The question as worded doesn’t arise. It doesn’t arise for several reasons.

24. Firstly insofar as there was an error, it was not an error about interpretation of the LAP as

alleged or for that matter at all. Indeed the inspector agreed with the applicant’s interpretation of

the LAP – the project was a contravention. The elaborate argument that proper regard presupposes

proper interpretation (Tesco Stores Limited v. Dundee City [2012] UKSC 13, [2012] P.T.S.R. 983,

[2012] 3 W.L.U.K. 624 and related cases) is based on a false premise that there was a

misinterpretation – there wasn’t.

25. Secondly any error was not, as alleged in the question, material. The whole basis of the

judgment was to the effect that the error was not material. The question fails to engage with the

logic of the substantive judgment.

26. Finally, the critical point is that the applicant didn’t plead misinterpretation of the

development plan. Sub-ground 26 pleads error in terms of treating the contravention as not

material. That isn’t either expressly or impliedly a plea of misinterpretation. The applicant has

reconfigured the claim in terms of misinterpretation presumably because it has now belatedly

realised that such an argument is necessary to get around the non-binding and merely have-regard-

to status of the LAP. That isn’t permissible anyway but even if it was, it is of no substance because

there is no basis for any conclusion of misinterpretation of the LAP.

Is the point one of law?

27. As noted above, the point ultimately comes down to the application to the facts here (some

confusion between immateriality of and justification for a contravention) of the general principle that

harmless errors are not a basis for certiorari and that decisions should be read as valid if such a

reading is available. Such an application is not a pure point of law – at best it is a mixed question

of fact and law. In any event, questions about the application of established law to particular facts

are unsuitable for appeal in a restricted procedure such as the planning context.

Is the point of public importance?

28. As the issue is one of mere application of law to particular facts, there is no particular public

importance to the question raised. The inspector’s “error” was towards the semantic end of the

spectrum – there is no particular public importance in chasing hares where nothing much turns on

it either way. As daa submitted, I could remit it back to the board to improve its wording but we

would be back where we are now and the point wouldn’t make one iota of difference. Certiorari in

such circumstances would be massive overkill and an appeal to bring that about is not a procedure

of public importance.

29. If the question were to be impermissibly redesigned as asking if an error by a decision-taker

in the reasoning process as to whether permission should be granted notwithstanding a

contravention of a plan gives rise to grounds for certiorari, the answer to that is not in doubt. The

answer is – Yes, subject to the same conditions as any other error by a decision-taker, including

subject to the doctrine of harmless error and to the requirement to read a decision as valid if such

a reading is reasonably available.

30. We need to keep this context of the general law firmly in mind when evaluating the

applicant’s dramatic claim that “The conclusion of the Court is significant and raises, it is respectfully

submitted a point of law of obvious public importance which has not, as far as the Applicant is aware,

ever been considered by an appellate Court – namely the legal consequences of a

misinterpretation/misunderstanding of the LAP by the Board”.

31. Even leaving aside the fact that there was no misinterpretation or misunderstanding of the

development plan, the problem with that statement is that the application of existing law to any

given new situation does not constitute legal novelty in itself. The central dynamic is the complexity

of modern life, and thus the fact that by their very nature, general legal principles have to be applied

to a dizzying array of different and ever-changing situations. That alone doesn’t create new points

of law worth talking about. What makes a point of law one of novelty, let alone importance, is most

certainly not the fact alone that it comes up in some particular new factual context – that is a never-

ending process. The birth of a new legal question arises when a new application of an existing

doctrine gives rise to some legally plausible significant issue, separate from the fact that there is a

new matter to which the general principles are applied. That doesn’t arise here.

32. To put it another way, it may or may not be the case that this is the first written decision in

which it was highlighted that the board had referred to immateriality of a contravention of an LAP

when they should have referred to justification for it. The answer to that, I’m afraid, is – to use

daa’s very apposite phrase at the hearing – “so what?”. That doesn’t in itself create a need for any

new legal doctrines or questions, still less doctrines and questions that need to be launched at

appellate level.

33. The general law applies here, and the general law is that decisions should not be quashed

for errors that make no difference. There isn’t any shortage of law to that effect: Walton v. Scottish

Ministers [2012] UKSC 44, [2013] P.T.S.R. 51; opinion of Advocate General Cruz Villalón delivered

on 20 June 2013 in Altrip Gemeinde Altrip and Others v Land Rheinland-Pfalz, C-72/12,

ECLI:EU:C:2013:422 at paras. 44 and 45; judgment of 7 November 2013, Gemeinde Altrip and

Others v Land Rheinland-Pfalz, C-72/12, ECLI:EU:C:2013:712; R (Champion) v. North Norfolk

District Council [2015] UKSC 52, [2015] 1 W.L.R. 3710; Canterbury City Council v. Secretary of

State for Housing Communities and Local Government [2019] EWHC 1211 (Admin.), [2019] 5

W.L.U.K. 225; Sliabh Luachra Against Ballydesmond Windfarm Committee v. An Bord Pleanála

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

R. (Hudson) v. Windsor and Maidenhead Royal Borough Council [2021] EWCA Civ 592, [2021] 1

W.L.R. 5588 (Coulson L.J. at §§77-78); opinion of Advocate General Bobek delivered on 14 January

2021, UH v An tAire Talmhaíochta Bia agus Mara and Others, ECLI:EU:C:2021:14; Reid v. An Bord

Pleanála (No. 2) [2021] IEHC 362, [2021] 10 JIC 0606 (Unreported, High Court, 6th October 2021)

at §53; Heather Hill Management Company CLG v. An Bord Pleanála [2022] IEHC 146, [2022] 3 JIC

1603 (Unreported, High Court, Holland J., 16th March 2022) at §257 et seq. and §326(d) and (e);

Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2022] IEHC 700, [2022] 12

JIC 1609 (Unreported, High Court, 16th December 2022) at §80; Toole v. Minister for Housing (No.

6) [2023] IEHC 592, [2023] 10 JIC 3102 (Unreported, High Court, 31st October 2023) at §39; Eco

Advocacy v. An Bord Pleanála [2025] IEHC 15 (Unreported, High Court, 15th January 2025); and

non-precedentially, Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9

(Charleton, Collins, Donnelly JJ., 27th January 2025).

34. The claim that the “error” is “jurisdictional” lacks a basis in administrative law. As the board

says, “none of this is remotely at the races”. Even “jurisdictional” appropriate assessment (AA)

requirements are subject to the doctrine of harmless error. The board calls the invocation of

jurisdiction “intellectually impoverished” and essentially ahistorical – there was a time (the board

invokes the 19th century) before the dawn of fair procedures that jurisdictionality was the only real

bulwark against unfairness – that time has come and gone. Errors can now be evaluated in terms

of their real impact and real meaning, if any. Indeed it might be a valuable development in

jurisprudence if we were to move towards substantial decommissioning of the concept of

“jurisdictional” error because, even acknowledging exceptions, in most situations it contributes little

beyond opacity, confusion, rigidity, conservatism and rhetorical heatedness. Of course we don’t

need to get to such ultimate jurisprudential questions here, or anything like it, but perhaps a modest

warning shot is worthwhile for future reference.

35. Applying established law to the situation here, I found that while the terminology used was

not ideal, it wasn’t an issue that made any difference.

36. The reason it made no difference was that the fact that the relevant legislation (making the

distinction between immateriality and justification legally significant) didn’t apply.

37. The applicant argues that the judgment means that all contraventions of LAPs are not a

basis for certiorari. That sounds dramatic but it needs a reality check. Let me translate it into more

general terms – “contravention” of something the decision-taker is not obliged to comply

with, but only to have regard to, is not, in itself and without more, a ground for certiorari.

Suddenly the novelty of the point deflates into nothingness. Viewed in such a light, the conclusion

of no necessary order of certiorari is just a synonym for the have-regard-to obligation as

distinguished from the comply-with obligation. This point, and the substantive judgment in

particular, doesn’t mean that an actual misinterpretation of a have-regard-to document isn’t a

ground for certiorari. Just that that isn’t this case – there wasn’t such a misinterpretation on the

facts here.

38. The applicant’s approach here is an example of the fallacy of sensation by selective

presentation. Leaving this case aside for a moment, that fallacy is frequently championed by people

who talk about “bizarre laws” – but on examination such laws are rarely as bizarre as presented. A

typical entry in a piece about “Ireland’s whackiest laws” might be a suggestion that there is a law

that bans left-handed women from stealing horses on a Tuesday. There is a semantic sense in which

that is technically true, but what it leaves out is that the law also applies irrespective of handedness,

sex, day of the week and identity of the item stolen.

39. Similarly here, the applicant comes forward with the sensational claim that I have created a

novel principle about non-compliance with LAPs not being a ground for certiorari – perhaps in the

applicant’s view a potential entry for a compilation of Ireland’s whackiest rulings. But what that

leaves out is that the logic of the decision isn’t dependent on the document at issue being an LAP

specifically – it is dependent on the document being one that the decision-taker isn’t required to

comply with.

40. To put it another way, the novelty, significance and debatability of a decision isn’t something

to be judged by reference to the conclusion alone. It must be judged by reference to the premises

from which the conclusion follows. Here, the syllogism is as follows:

Major premise: Non-compliance with something a decision-taker isn’t required to comply

with isn’t in itself a ground for certiorari.

Minor premise: An LAP isn’t something the board is required to comply with.

Conclusion: Non-compliance by the board with an LAP isn’t in itself a ground for certiorari.

41. So even if we assume that the conclusion is “novel” in some sense, it flows inexorably from

the premises. The major premise is just a statement of the obvious, and the minor premise isn’t in

dispute. Thus the “novelty” is an illusion – the conclusion is merely the application to a new situation

of an established position.

42. Indeed even beyond the syllogistic context, selective presentation gives a totally incorrect

impression. I will avoid major digression on this by just mentioning one example, which is that in

the Planning & Environment Court there are currently 269 live cases, and with numbers like that

there will always be outlying cases that can be presented as unduly convoluted. For example, the

legal system we have allows cases to be appealed and also allows cases to be referred to

Luxembourg, so with enough numbers of cases there are bound to be some that undergo both

procedures. But that isn’t representative – a fair and accurate view would have to ask where the

centre of the bell curve sits.

43. Coming back to the matter at hand, the decision isn’t quite as confused as the applicant

makes out, because as I noted in the substantive judgment, the inspector does say expressly

“Therefore, the short-term reduction in aircraft stands is not, in my opinion, a reason to

refuse planning permission”. That is totally lawful, and read on its own it relates the

contravention to the question of justification, quite correctly, which involves wider considerations

than the technical question of materiality. When considered in the context of justification, the

intention that the reduction be short-term is not inherently legally irrelevant. What introduces a

note of error is the separate line about immateriality, but I found that in line with caselaw, the

decision should be read in a way that makes sense and is valid if such a reading is available – and

it is here.

44. Again, that principle as to how to read decisions isn’t lacking in support in caselaw: see M.R.

(Bangladesh) v. International Protection Appeals Tribunal & Anor. [2020] IEHC 41 (Unreported, High

Court, 29th January 2020) at §7; Rostas v. DPP [2021] IEHC 60 (Unreported, High Court, 9th

February 2021) at §50; St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported,

High Court, Phelan J., 20th February 2024) at §57; E.M. v. Minister for Justice and Equality [2024]

IESC 3 (Unreported, Supreme Court, 21st February 2024) per Dunne J.; Mulloy v. An Bord Pleanála

[2024] IEHC 86 (Unreported, High Court, Holland J., 12th March 2024) at §178 (citing O’Donnell v.

An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1st November 2023)); Save Roscam

Peninsula CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335 (Unreported, High Court, 7th June

2024) at §64.

45. If one wants to see error it is in the application of settled principles. That isn’t a point of law

warranting appeal and is not a pure point of law at all in any event.

Are the points of exceptional public importance?

46. This doesn’t arise given the foregoing.

Is an appeal in the public interest?

47. An appeal here is not in the public interest. The alleged erroneous LAP contravention

amounted to a loss of two aircraft stands by virtue of the underpass works. Leaving everything else

aside, the loss of two stands is small potatoes compared to the scale of other works and

developments planned at Dublin Airport. daa are in the process of advancing a live application that

will result in a net gain of 33 stands. So there is every prospect that the loss here will be temporary

even though I agree with Ryanair that that was not a conclusion that the inspector could draw in the

context of considering the materiality of the contravention.

48. Secondly, the underpass is considered necessary for safety reasons by the airport operator.

While I have every respect for Ryanair’s opinion to the contrary, safety was a consideration

motivating the application, its support by the Irish Aviation Authority (IAA), and its grant by the

board. That has to count for something when evaluating the public interest. The EIA report

describes the situation (emphasis added):

“1.1.3 The current means of access from the Eastern Campus to the Western Campus –

the West Apron Surface Crossing, directly over Runway 16/34 - will no longer be viable once

the new North Runway becomes operational in 2022, as Runway 16/34 will be required as

an additional taxiway as well [as] having a continuing role for essential occasional use in line

with the terms of Condition 4 of the North Runway Planning Permission. The Irish Aviation

Authority (IAA) has also advised that the continued use of the Surface Crossing

after the opening of the North Runway is, unsustainable from a safety perspective.

All traffic to and from the West Apron will, as described in Chapter 3: Proposed Development,

then have to use the 8km Perimeter Road.

1.1.4 The permanent solution which best suits the operational and regulatory requirement

to provide safe, efficient, dedicated access to the West Apron, that avoids interfaces with

operational runways and taxiways, is to construct an underpass beneath the

taxiways and Runway 16/34. Compared with the other alternatives that have been

studied, this has the advantage of providing quick, safe access from the eastern campus to

the western campus. ...”

49. The question is not whether the underpass is the best solution. That’s a merits issue –

Ryanair can’t try to get the court involved in that. They accepted that proposition at the hearing

(although they also did ventilate their feelings about the matter in written submissions, which is

good to know by way of my general education and edification but probably doesn’t advance matters

particularly).

50. The question under this heading is whether it is in the public interest that infrastructure

designed to prevent motor vehicles from having to cross an active aircraft runway/ taxiway –

infrastructure that was deemed necessary for safety reasons by daa, the IAA and the board – should

be held up over a technicality regarding the infelicitous phrasing of the inspector’s wording about

something that was not an axis upon which anything fundamental turned legally, and which at worst

was just an inaccuracy in choice of words. In my own perhaps erroneous view, there would be

something seriously wrong with our legal system if the answer to that question is anything other

than No.

Order

51. For the foregoing reasons, it is ordered that:

(i) the application for leave to appeal be dismissed;

(ii) in the event that an application for leapfrog leave to appeal is made and acceded to

by the Supreme Court, the costs of the leave to appeal application be costs in that

appeal;

(iii) otherwise, there be no order as to the costs of the leave to appeal application;

(iv) subject to any application to the contrary by way of detailed written submission filed

within 7 days from the date of delivery of this judgment, there be no order as to the

costs of the re-opening application; and

(v) in the absence of any such application within 7 days from the delivery of this

judgment, the foregoing order and the order already pronounced (in part

provisionally) in the substantive judgment, dismissing the proceedings with no order

as to costs up to that point, be perfected forthwith thereafter with no further listing

as the final order of the High Court in the proceedings.