High Court dismisses appeal on leave regarding harmless EU law errors and lack of public interest.

[2025] IEHC 309

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000037]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE

PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

PADDY MASSEY

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL, MINISTER FOR HOUSING,

LOCAL GOVERNMENT AND HERITAGE

RESPONDENTS

AND

CURNS ENERGY LIMITED

NOTICE PARTY

(No. 4)

JUDGMENT of Humphreys J. delivered on Friday the 30th day of May 2025

1. In refusing leave to appeal on a pretty much identical point as is raised here, the Supreme

Court called the law on harmless error “well-established” (Carrownagowan Concern Group v. An

Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27th January 2025)). That

doesn’t deter this applicant, who leads with his chin in failing to understand that the CJEU has in its

judgment of 7 November 2013, Gemeinde Altrip and Others v Land Rheinland-Pfalz, C‑72/12,

ECLI:EU:C:2013:712 already upheld the doctrine that a developer’s evidence to the court may allow

the court to refuse relief if satisfied that any error doesn’t make a difference in the context of an

alleged inadequate EU law assessment. It is inherent in that that the court forms that view on the

evidence, rather than that such a view is arrived at by quashing the decision and remitting it. That

isn’t an impermissible process – as the Irish, UK and European courts have consistently found. The

argument that the point can arise in a large number of cases is contrived given that the inflection

point in the case was entirely evidence-specific – the applicant’s failure to prove that any alleged

error would make any difference and the developer’s evidence that it would not. Thus the fact that

there are other sites without conservation objectives or measures is immaterial under this heading

– whether a particular project could impact on a particular site is determined by particular evidence

in a particular case. In this case the uncontroverted evidence was of no impact or effect on

European sites – that isn’t going to change as a result of the hypothetical grant of leave to appeal.

Judgment history

2. In Massey v. An Bord Pleanála & Ors. (No. 1) [2021] IEHC 783 (Unreported, High Court,

21st December 2021), I dismissed a challenged to the board’s decision to categorise the

development as strategic infrastructure development (SID).

3. In Massey v. An Bord Pleanála & Ors. (No. 2) [2025] IEHC 206 (Unreported, High Court,

11th April 2025), I dismissed the claim for certiorari, granted certain declaratory relief and decided

to refer a question to the CJEU related to possible further declaratory relief.

4. In Massey v. An Bord Pleanála & Ors. (No. 3) [2025] IEHC 218 (Unreported, High Court,

11th April 2025), I issued the formal judgment for reference.

5. The applicant now seeks leave to appeal.

Leave to appeal – principles

6. 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).

7. 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 questions of alleged exceptional public importance

8. The applicant’s proposed questions are as follows:

(i) (Assuming that the CJEU answers the question referred herein in the affirmative) – By

what criteria can a court withhold certiorari where appropriate assessment (AA)

screening was carried out in the absence of valid conservation objectives; and were

those criteria correctly applied in the present case?

(ii) Is s. 37A of the 2000 Act, and in particular the phrase “if the following condition is

satisfied”, to be interpreted as directory or mandatory?

Do the points properly arise?

9. The first question does not properly arise as drafted. It is based on a hypothetical as to how

the CJEU will answer the referred question. Perhaps re-drafting could save this point in some way

so I will deal with the other criteria below.

10. More generally, much of the applicant’s submission raised totally unpleaded points, or points

that were pleaded under core ground 2 in impermissible support for core ground 1. That can’t be a

valid basis for an appeal of any kind – 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). The

applicant complained that the objectives hadn’t been in place when the statement of grounds had

been filed – which is fine, but that doesn’t dispense with the rules of pleading. The onus is on the

applicant to amend the pleadings if such be required, which this applicant didn’t do. It is not the

law that an applicant can get relief based on any unpleaded happening merely because such

happening occurs after the date of filing of the proceedings.

11. I don’t have a lot to add under this heading to the notice party’s submission:

“1. An application for leave to appeal, pursuant to s.50A(7) of the PDA, “must accurately

reflect the judgment and must not be an addition, exaggeration or distortion launched for

the purposes of creating a case for appeal” – Eco Advocacy CLG v An Bord Pleanála [2025]

IEHC 195 (§2(i))). Regrettably, the Applicant’s Submissions do not reflect such

requirements.

2. While the Applicant has formulated his two questions with admirable concision, this

is not matched by his Submissions which are afflicted with a form of legalistic logorrhoea

running to some 9,100 words (equalling the length of their submissions in the substantive

matter). In fact, much of the Submissions do not concern the questions at all, insofar as

same comprise – the rehearsing of failed arguments about expert evidence; the advancing

of un-pleaded and unargued points about the subsequent site specific conservation

objectives; and taking the State to task about a lack of explanation for the absence of site

specific conservation objectives, notwithstanding the concession of a declaration. While the

Applicant may not be able to resist engaging in such zoilism (including in respect of the

Judgment itself), it is outside the permissible boundaries for seeking leave to appeal.”

Are the points ones of law?

12. The first question is not one of law. Whether the principles about harmless error (which are

clear in any event insofar as they are relevant to these proceedings – see next heading) were

correctly applied is at best only a mixed question of fact and law. Whether law was correctly applied

is error-correction, and is not an appropriate matter for appeal in a planning context.

13. Insofar as the applicant now tries to question the evidence, he didn’t produce any expert of

his own, and his non-expert views and legal submissions do not amount to admissible evidence.

14. The second question is in fairness phrased as a legal one – I will give the applicant that

much.

Are the points of public importance?

15. Neither point is of any public importance for the following reasons.

16. The criteria to withhold relief for harmless error are now “well-established” according to the

Supreme Court, albeit non-precedentially, as noted above. There is no further need for clarification

after something comes back clarified by the CJEU (Altrip in relation to harmless error generally, and

the law in relation to the remedial obligation in relation to an ongoing obligation to rectify the effects

of breach of EU law, if there are effects – but the evidence shows there are no such effects here).

17. One move straight out of the appellant’s handbook is to produce new authority and to claim

a conflict of jurisprudence (hence unlocking the magic door of the matter not being acte clair and

an appeal being necessary to resolve doubt). The problem of course is that typically the doubt is

stimulated artificially for the purpose.

18. Any two judgments picked at random can be made to look contradictory if you approach

them looking for contradiction. By contrast, the common law method is to try to read caselaw as

fitting together if such a reading is reasonably available.

19. The applicant produces the judgment of the EFTA Court of 21 May 2025 in Case E-18/24,

The Norwegian State v Greenpeace Nordic, Nature and Youth Norway, claiming conflict, but

misunderstands this judgment. What this says is:

(i) At paras. 113 and 114, that Altrip only applies to procedural irregularities, not

substantive irregularities such as the complete lack of an EIA (there was no such

assessment at all in that case). It doesn’t seem to be disputed that the concept of

procedural irregularity has an autonomous meaning in EU law. Greenpeace was

about a total lack of EIA which doesn’t arise here. Altrip was about defective EIA –

which is analogous to what is alleged here (defective AA). This is clear from para.

16, as noted by the Supreme Court in the Carrownagowan determination (emphasis

added) – “The applicants, who are all affected by the project as owners or tenants

of land located within the area acquired for the work in question for public purposes,

brought an action before the Verwaltungsgericht (Administrative Court) seeking the

annulment of the regional authority’s decision approving plans to construct that

work. In challenging that decision, they claimed that the environmental

impact assessment carried out beforehand was inadequate. Their action

having been dismissed, they lodged an appeal with the Oberverwaltungsgericht

Rheinland-Pfalz (Rhineland-Palatinate Higher Administrative Court).”

(ii) At para. 115, that art. 11 of directive 2011/92/EU of the European Parliament and

of the Council of 13 December 2011 on the assessment of the effects of certain

public and private projects on the environment (the EIA directive) confers discretion

on member states to determine by law what is an impairment of a right for the

purpose of Aarhus rights. That is certainly true – the judgment of 28 May 2020, IL

and Others v Land Nordrhein-Westfalen, C‑535/18, ECLI:EU:C:2020:391, para. 59

– but that is about what national law can recognise for the purposes of procedural

rights under the EIA directive. There is no particular read-across to the test for

harmless error in judicial proceedings.

(iii) At para. 116, the court said “In this regard, the Court notes that the present case

concerns an environmental impact assessment that has not been carried out in the

line with the EIA Directive as it has omitted very significant amounts of the

greenhouse gas emissions related to the project concerned. Concluding that such

an omission could not have impacted the development consent would undermine the

whole purpose of the EIA Directive, which is to assess the environmental impacts of

a project and take these assessments into consideration in the development consent

procedure. It follows that a national court cannot retroactively dispense with the

obligation to assess the direct and indirect effects on the environment of a project

under Article 3(1) of the EIA Directive”. The context there was of course the

complete lack of an EIA. But the ultimate punchline was that there is a continuing

obligation to assess the unassessed effects of a project – that’s the remedial

obligation recognised by CJEU jurisprudence. That’s all well and good but it has no

relevance, where the evidence shows there are no effects, even if counterfactually

there was a breach (which in my view there wasn’t). So the question of remedying

such effects (as in Greenpeace, a much more extreme case where there was no

assessment at all) doesn’t get out of the starting blocks.

(iv) At para. 120, the operative part of the judgment, the court resolves the matter in

terms familiar from and consistent with CJEU caselaw: “In the light of all the above

considerations, the answer to the second question must be that a national court is

required under Article 3 EEA, to the extent possible under national law, to eliminate

the unlawful consequences of a failure to carry out a full environmental impact

assessment required under the EIA Directive. However, this does not preclude

regularisation through the conducting of such an assessment while the project is

under way or even after it has been completed, on the twofold condition that: - -

national rules allowing for that regularisation do not provide the parties concerned

with an opportunity to circumvent the rules of EEA law or to dispense with applying

them, and any subsequent or ancillary assessment carried out for regularisation

purposes is not conducted solely in respect of the project’s future environmental

impact, but must also take into account its environmental impact since the time of

completion of that project.”

20. The ultimate point is that the applicant tries to generalise from an extreme case – no EIA at

all – to say that in this case an alleged shortcomings in assessment requires certiorari even if it

makes no difference. What this overlooks among so many other things is that if a project isn’t going

to have any effects on site X then it doesn’t matter what site X’s conservation objectives are or

whether there are any.

21. The second question is of no public importance. The precise entity within a group of

companies that applies for the permission isn’t a matter of importance at any level. It is just a

technicality and one not worth wasting any more time about, even if – or especially if – I am wrong.

It is inherent in the restricted appeal policy in planning that the occasional erroneous judgment will

have to be allowed to stand, and even assuming that I am wrong about this point, one has to say

so what? This is in substance an indoor management point, viewed from within a corporate group.

It doesn’t do any great harm to the public if there is marginally more flexibility about who a planning

applicant can be.

22. It can’t be said that the first question lacks authority – there are decisions of the Irish, UK

and European courts, all of which are consistent with the point made by the Supreme Court, albeit

non-precedentially, quoted above. This is a well-established point. More generally, as the notice

party points out, “there is ample authority as to the discretionary nature of judicial review and that

certiorari is not always required – Pembroke Road Association v An Bord Pleanála [2022] IESC 30 at

§52”. There are no contrary authorities. Norway v Greenpeace is not a contrary authority for the

reasons explained – it says what many other CJEU judgments say about a remedial situation that

doesn’t exist in the present case on the facts.

23. The mere fact that it could be argued that the second point isn’t definitively covered by

appellate authority doesn’t convert a minor issue into a major issue or one of limited if any

importance into one of public importance. There is no conflict of jurisprudence because Cork

Harbour Alliance for a Safe Environment v. An Bord Pleanála [2021] IEHC 203, [2021] 3 JIC 1904

(Unreported, High Court, Barniville J., 19th March 2021) was based on a concession, and my decision

is consistent with the view of Owens J. in Pembroke Road Association v. An Bord Pleanála [2021]

IEHC 403 (Unreported, High Court, 16th June 2021). In none of these cases was certiorari granted.

There are no problems in practice arising from the approach taken by Barniville J., Owens J. or

myself or to the approach in the first question. Certainly there is no evidence of any such problems.

The submission in that regard is totally speculative. Again, there are no contrary authorities.

24. The applicant’s scare-term of “forbidden territory” misunderstands the law in relation to

harmless error and as the board says, is in substance the same argument as that rejected by the

Supreme Court in refusing leave to appeal in Carrownagowan as noted above (there the applicant

had phrased it as a confected “substitutionary rule”). The CJEU has already – expressly – said that

developer’s evidence in a judicial review can lawfully be relied on by the court in refusing relief if it

shows that an error is harmless. A spurious “substitutionary” or “forbidden territory” concept can’t

be correct for the simple reason that it is totally inconsistent with that. There couldn’t be a doctrine

of harmless error at all if the court couldn’t take on board a developer’s evidence in the manner

permitted in Altrip.

25. The fact that there is a Supreme Court appeal in Friends of the Ardee Bog v. An Bord Pleanála

[2025] IESC 13 (Unreported, Supreme Court, Hogan J., 25th March 2025) does not in logic mean

that there should be a certificate granted in this case for the simple reason that this case turns on

its own facts and on the uncontroverted evidence as to the harmlessness of the error here. If

reinforcement of that be needed, the precise issue here wasn’t argued in Ardee Bog.

26. The applicant’s complaints about my comment about over-use of the term “jurisdictional” as

not being particularly helpful in many instances are a contrived issue. Nothing particularly turns on

those comments. The bottom line is that while a determination as to effects on European sites is a

prerequisite to the board’s jurisdiction to grant permission (Kelly v. An Bord Pleanála [2014] IEHC

400 (Unreported, High Court, Finlay Geoghegan J., 25th July 2014) and subsequent cases), that

doesn’t have the effect that any infelicity or shortcoming in the detailed process of AA requires

automatic certiorari irrespective of the peripherality of any alleged error to anything. Calling

everything to do with AA jurisdictional is just the other side of the coin of denying any meaningful

doctrine of harmless error. If there can be harmless errors then such errors are not jurisdictional in

the sense of requiring certiorari independently of whether the errors have any meaningful effect or

not. The applicant tries to cling on to the concept of “jurisdictional” error to get an order of certiorari

that is not in fact merited on the evidence. That is not a valid argument. There is no conflict of

jurisprudence – the applicant is simply reading Kelly in a much wider sense and as having much

more radical implications than arose in that case.

27. As stated above, the argument that the point can arise in a large number of cases is contrived

given that the inflection point in the case was entirely evidence-specific – the applicant’s failure to

prove that any alleged error would make any difference and the developer’s evidence that it would

not in this specific case. Generalising this case as being somehow determinative for many other

projects is a spurious exercise because it fails to take that into account.

Are the points of exceptional public importance?

28. This doesn’t arise having regard to the foregoing.

Is an appeal in the public interest?

29. In my perhaps erroneous opinion, an appeal is not in the public interest. One convenient

starting point to view this issue is the urgent need, in the climate emergency context, for renewable

energy infrastructure. Of course if the decision is unlawful the court will need to address that, and

will address that by declaratory relief. But there is no basis for more imperative relief because there

is simply no evidence that the issue complained of made any difference to anything. I agree with

the notice party:

“the development at issue is a renewable energy project, in respect of which planning

application was made over four years ago (January 2021) and in respect of which permission

was granted over 17 months ago (November 2023). In Nagle View Turbine Aware Group

[2025] IEHC 3, the Court emphasised that ‘The nature of the project and the risks of further

delay are factors going to the public interest’ (§24 et seq). See also Eco Advocacy CLG

[2025] IEHC 195; Glancre (§5); and Arklow Holidays Limited v An Bord Pleanála [2008]

IEHC 2 – delaying public infrastructure was a relevant consideration in determining that an

appeal was not in the public interest.”

30. The applicant’s arguments make little sense anyway for the reasons explained in the No. 2

judgment, but what is even more relevant under this heading is the disproportionality of further

delay which will prejudice the developer without any likely comeback in costs, damages or otherwise.

The applicant is going to get his day in court in Luxembourg and back in the High Court following

the reference, but having failed on the evidence to show that the alleged “error” makes any

difference, it would not be in the public interest to allow further proceedings to block an urgently

needed renewable energy project on the basis of an asserted error that is, on the facts, harmless if

it exists at all. Obviously my view is that there is no error, but even assuming there is one, that

doesn’t get the applicant over the evidential deficit, in which situation he can’t reasonably expect

more than declaratory relief.

31. On the identity of the applicant for permission point, the fundamental stumbling block is that

this is not a matter of public interest, just a legal technicality. As the notice party points out:

“During the course of the hearing and in this certificate application, the Applicant has simply

failed to advance any basis as how he or anyone else could conceivably be prejudiced by

this most technical of matters ...”

32. Generally, the applicant’s arguments for leave to appeal are replete with straw-man

arguments, impermissible expansion upon the pleaded case, and obvious non-sequiturs or points

that have been rejected on previous occasions in the caselaw. There is no particular public interest

in permitting an appeal on such a basis.

33. Ultimately I agree with the board’s submission:

“24. It is not in the public interest to certify either point – noting in this respect Nagle

View (No.2) [2025] IEHC 3 at §9(vii). The Applicant has manifestly failed to establish how

certification of any of questions is in the public interest. No actual affirmative public benefit

or public interest has been identified or relied upon by the Applicant in this regard. It is

respectfully submitted that the public interest militates against allowing an appeal, for the

same reasons as set out in Carrownagowan (No.3) [2024] IEHC 549 at §83 to §92, and

§93(vii).”

34. Stating the obvious perhaps but while I am refusing certiorari on the basis of the evidence,

the applicant will have further appellate opportunities in respect of the declaratory relief if there is

something to appeal following the CJEU judgment. The case has some similarity to Hellfire Massy

v. An Bord Pleanála [2022] IESC 38, [2024] 1 I.R. 386 (O’Donnell C.J.) because the same basic

dynamic applies – no outcome in Luxembourg can require certiorari. We arrive at that point here

because I have already found that the evidence shows that the alleged error makes no difference,

so I am required to apply the law as to harmless error. The constitutional and statutory architecture

for appeal does not envisage that an appellant gets to argue factual and evidential points indefinitely.

Consequential orders

35. As to costs, the normal position will apply, in other words that if leapfrog leave to appeal is

granted, costs will be costs in the appeal. If not, the opposing parties’ costs will be reserved. Those

costs can be considered in due course if an application is made on the basis of s. 50B(3) of the 2000

Act or on the basis of general set-off.

36. As regards a listing date, the case can go to the new procedure of the virtual List to Fix

Dates, which is a notional listing date on the Unified Case Management System (UCMS). If and

when the parties want to mention the matter again, contact can be made with the registrars to get

an actual date. Or I will list it when the CJEU judgment comes out. Either way it can be mentioned

any time it needs to be.

Summary

37. In outline summary, without taking from the more specific terms of this judgment:

(i) On the particular facts and uncontested evidence in this case, there could not have

been an effect on European sites. The applicant’s points are thus academic. The

applicant’s claim of general significance for the proposed appeal ignores that this

decision turns on its own evidence.

(ii) The principle that harmless errors do not require automatic certiorari is well

established. This includes allegedly defective European assessments – as the CJEU

found at para. 16 of Altrip. The application of that to particular facts is not a pure

question of law in any event and unsuitable for appeal in a planning context.

(iii) The corporate identity point is a technicality of no particular importance, merit or

public interest. No rights of the applicant were meaningfully affected. My decision

is wholly consistent with that of Owens J. in Pembroke Road, who I followed.

(iv) An appeal is not in the public interest having regard to the disproportionality of

further delay, the prejudice to the developer, the urgent requirement for renewable

energy infrastructure in the context of the climate emergency, the technical nature

of the points and the total lack of any tangible public interest identified, still less

established, by the applicant.

Order

38. 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 applicant’s costs of the leave to appeal

application and the costs of all other parties be reserved;

(iv) the matter be listed in the virtual List to Fix Dates to await the outcome of the

reference; and

(v) the foregoing order and the substantive order dismissing certiorari be perfected

forthwith as the final order of the High Court on that relief, with no order as to the

applicant’s costs of that relief and the other parties’ costs being reserved.