High Court dismisses applicants' challenge to wind farm planning decision, upholding valid reading of conditions.

[2025] IEHC 310

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000593]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS

AMENDED)

BETWEEN

FAHYBEG WINDFARM OPPOSITION GROUP AND SEAN CONWAY

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

RWE RENEWABLES IRELAND LIMITED (BY ORDER)

NOTICE PARTY

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

1. It is a general principle of administrative law that a decision should be read as making sense

rather than nonsense and as being valid rather than invalid, if such a reading is reasonably available.

The main question here is whether the applicants’ complaints of lack of reasoning, an allegedly

invalid condition and error in assessment, can surmount the obstacle that a valid reading is the

starting point which an applicant must displace if they are to succeed.

Geographical context

2. The applicants challenge the decision of the board, made by way of board order dated 6th

March 2024 – pursuant to s.37 of the Planning and Development Act 2000 – to grant, on appeal,

permission to the second named respondent for a wind farm development comprising eight wind

turbines (the proposed development), at a site located in Co. Clare.

3. The project (https://www.pleanala.ie/en-ie/case/317227) involves development of a wind

farm together with the development of an underground grid connection cable to the national grid.

The development will consist of eight wind turbines, a permanent meteorological mast, an onsite

38kV electrical substation, and all associated site works. The location is at Fahy Beg, Fahy More N,

Ballymoloney, Ballyknavin, Ballyquin More, Woodpark, Leitrim, Fahy More S, Ballybrack,

Aharinaghmore, Tooreen, Aharinaghbeg, Knockdonagh, Roo E, Blackwater, Rosmadda West,

Parkroe, Lacklyle, Castlebank and Ardataggle, Co. Clare.

4. The trees for protection lie to the northwest of Bridgetown in Co. Clare near Scott’s Bridge,

marked on map I8 of Vol 2 of the development plan. The relevant section of protected woodlands

was a small area which was referred to at the hearing as a “blob” marked in green in the development

plan, in the vicinity of Scott’s Bridge, Ballymoloney townland, and the foothills of Lackareagh

Mountain.

5. For information and context, a view near the site apparently looking towards the “blob” and

the slope towards Lackareagh Mountain is at https://maps.app.goo.gl/rF8mPFJnyb3oQZuX7

Facts

6. The planning authority, Clare County Council, received RWE’s application for permission for

the proposed development on 9th March 2023, and acknowledged the making of the application on

16th March 2023.

7. Members of the public and public authorities made submissions, and the council decided to

refuse permission on 3rd May 2023.

8. RWE appealed on 30th May 2023. The applicants and others made submissions on the

appeal.

9. The board appointed one of its inspectors to report, and he prepared a report dated 16th

January 2024.

10. The board considered the inspector’s report on 29th January 2024, and decided to grant

permission in accordance with his recommendation. It prepared a direction on 20th February 2024

and a final decision on 6th March 2024.

Procedural history

11. The applicants filed their statement of grounds, grounding affidavit and ex parte docket on

30th April 2024. The developer was listed as a respondent rather than a notice party.

12. The application for leave was listed for 10th June 2024. On that day, it was adjourned to

17th June and again from 17th June to 24th June 2024, when leave to apply for judicial review was

granted.

13. The originating notice of motion was filed on 26th June 2024, and the matter came before

the court on 8th July 2024, when it was adjourned to 21st October 2024 to allow filing of statements

of opposition. On that date, though no opposition papers had been filed, the developer sought a

hearing date, and I fixed the matter for hearing on 13th May 2025 for two days, with callover on

28th April 2025. Statements of opposition were filed on 17th February 2025 and 10th March 2025,

and the matter was called over on 28th April 2025.

14. The matter was heard on 13th May 2025. In the course of the hearing, the developer

produced a map prepared by Fehily Timoney which showed that the felling to be carried out (marked

in blue on the map) was to be carried out outside the “blob” of protected woodlands (marked in

green). As the hearing concluded, the developer was to put that on affidavit within a day or two

with the applicants then having a period to reply and the matter was to be mentioned to conclude

matters on 26th May 2025.

15. One further development at the hearing was that it was clarified that due to the narrowing

of grounds (as set out further below), the applicants weren’t pursuing relief against the developer,

so I directed that RWE be changed from being a respondent to being a notice party.

16. On 26th May 2025, the matter reverted to court to conclude the hearing. The developer

had filed an affidavit explaining the layout of the felling in the meantime. The applicants had filed

an affidavit of the second named applicant giving inadmissible opinion evidence about the location

of the trees. The applicants sought further time to put in further evidence. There were two problems

with that application.

17. The minor problem (not all that minor, but by comparison) was the vista of an open-ended

process of further evidential exchanges (with the possible requirement for cross-examination or a

further hearing for oral submissions or both), at a time period when the scheduled hearing was over

and the case has already concluded but for this issue, combined with the applicants’ failure to join

the issue properly in the almost two weeks since the map was furnished. Indeed even if the second

named applicant’s affidavit wasn’t inadmissible, the applicants would be left with an RAS Medical v.

Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273 problem,

having failed to take appropriate steps to challenge the developer’s evidence by cross-examination,

either in the time allowed, or at all. Procedures that allow open-ended prolongation of matters are

presumptively inappropriate in case-managed commercial proceedings, as here, and doubly so when

the scheduled hearing has concluded. The fact that the applicants were given nearly two weeks in

such circumstances to address matters reinforces that.

18. But that isn’t the biggest issue. The major and underlying problem was that the onus of

proof was at all times on the applicants. The claim that protected trees were being felled was a core

part of their case from day one – and was an issue that they should have had adequate evidence of

in the context of the leave application. The onus was on the applicants to prove that the felling was

going to take place in the protected area. The fact that they didn’t realise the need to do that until

very late in the day is on the applicants, not on anyone else. It would be fundamentally unfair to

the opposing parties to allow the applicants to reopen that now, derail the case procedurally, and

create a need for a further substantive hearing on a point that was central to the applicants’ case

from the word go. Such an approach would unleash procedural chaos and goes well beyond any

legitimate right to reply to new evidence from the notice party. As I say, the applicants have already

had almost two weeks to respond to the map circulated on 13th May 2025, and couldn’t come up

with anything more than inadmissible views of the second named applicant – but even if those views

weren’t inadmissible, joining issue doesn’t discharge the onus of proof absent cross-examination.

Ultimately, even if the notice party hadn’t put in an affidavit (thus removing the applicants’ excuse

of having something to reply to), the applicants would have failed on this issue on the simple basis

of not discharging the onus of proof.

19. In all of the circumstances there isn’t any basis to allow the applicants to introduce evidence

now that could and should have been assembled within eight weeks of the decision when preparing

their grounding papers.

20. Judgment was thus reserved on 26th May 2025 (on both the procedural application and,

subject to a decision on that, on the substance). I would like to record my thanks to all of the

lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have

previously sought to make clear, insofar as any points advanced are not being accepted in this or

any other given judgment, that is solely to do with the inherent merits of such points and is no

reflection on those instructed to convey such points, a distinction that most certainly should be, and

I believe generally is in fact, self-evident to all concerned.

Relief sought

21. The reliefs sought in the amended statement of grounds are as follows:

“1. An Order of Certiorari pursuant to Section 50 of the Planning and Development Act

2000 as amended and / or Order 84 of the Rules of the Superior Courts 1986 as amended

quashing the decision of the First Respondent, Bord Pleanála (‘the Board’) dated 6 March

2024, reference ABP-317227-23, granting permission to RWE Renewables Ireland Ltd for

‘Construction of a wind farm in the townlands of Fahy Beg, Fahy More North, Ballymoloney,

Ballyknavin (Ed O'Briensbridge), Ballyquin More, Woodpark and Leitrim, County Clare

together with the development of an underground grid connection cable to the national grid,

located primarily within the public road within the townlands of Leitrim, Fahy More South,

Ballybrack, Aharinaghmore, Tooreen (Ed Cloghera) Aharinaghbeg, Knockdonagh, Roo East,

Blackwater, Rosmadda West, Parkroe, Lackyle Ed Ballyglass) and Castlebank, County Clare,

the windfarm comprising eight number wind turbines with a blade tip height range from 169

metres to 176.5 metres, a hub height range from 102.5 metres to 110 metres and a rotor

diameter range from 131 metres to 138 metres, and associated development.

2. An Injunction pursuant to S57 of the Waste Management Act 1996 as amended

restraining the Second Respondent, RWE Renewables Ireland Ltd, from carrying on an

unlicensed waste disposal activity on lands at Fahy Beg, Fahy More North, Ballymoloney,

Ballyknavin (Ed O'Briensbridge), Ballyquin More, Woodpark and Leitrim, County Clare.

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

persons similarly situated as the court considers appropriate.

4. A Declaration that the Board has erred in law and acted contrary to S146(5) and (7)

of the Planning and Development Act 2000 as amended by failing make available on its

website, or at any location other than the Board’s offices, the documents relating to the

matter under file reference ABP-317227-23.

5. A stay pursuant to Order 84 Rule 20(8)(b) of the Rules of the Superior Courts as

amended on all development by RWE Renewables Ireland Limited, its assigns, servants and

agents, on lands at Fahy Beg, Fahy More North, Ballymoloney, Ballyknavin (Ed

O'Briensbridge), Ballyquin More, Woodpark and Leitrim, County Clare, pending conclusion of

the present proceedings.

6. An Order pursuant to Section 7 of the Environment (Miscellaneous Provisions) Act

2011 as amended, Order 99 of the Rules of the Superior Courts as amended, the inherent

jurisdiction of the Court, Article 47 of the Charter on Fundamental Rights of the European

Union, Articles 4(3) and 19(1) of the Treaty on European Union, and / or Article 9 of the

Convention on Access to Information, Public Participation In Decision-Making and Access to

Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (the Aarhus

Convention), confirming that Section 50B of the Planning and Development Act 2000 as

amended and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011

apply to the present proceedings as a whole.

7. Further or other relief.

8. Costs.”

22. As noted above, relief 2 fell away following the narrowing of the case.

Grounds of challenge

23. The core grounds of challenge are as follows (the first one is unnumbered so I am calling it

ground 0 for reference purposes):

“Domestic Law Grounds

[0.] - The Board has failed to place the documents relating to the matter, file ref ABP-

315169-22, on its website contrary to S146(5) and (7) PDA.

1. The Board Decision is invalid because the Application is invalid because it failed to

give an indication of the fact that the Proposed Development is one for which a waste licence

is required, contrary to R18(1)(d) PDR.

2. The Proposed Development would materially contravene the Development Plan by

reason of loss of part of Ballymoloney Woods. The Board failed to consider whether there

would be a contravention, whether such contravention would be material, and whether it

wished to authorise a material contravention. It thereby misdirected itself in relation to its

interpretation and application of the Development Plan contrary to S34(2) and S27(2) PDA,

failed to consider relevant material contrary to S34(2), and / or failed to give adequate

reasons contrary to S34(10) PDA.

3. The reasons given by the Board’s Inspector and adopted by the Board in relation to

the submission of the Second Applicant in the following respects were inadequate, and

contrary to S34(10) PDA and / or A8a EIAD.

4. The Board Decision is invalid because Condition 9 is ultra vires for regulating use of

land beyond the development boundary and / or void for uncertainty.

5. Condition 11 is void for uncertainty if and insofar as it purports to set a laxer

standard for shadow flicker than Condition 1.

European Law Grounds

6. The Board Decision is invalid because the Board failed to make a determination as

to whether there would or would not be a breach of A12 of the Habitats Directive in relation

to protection of bats, and thereby failed to complete its EIA, contrary to S171A, S172 PDA,

and A1(2)(g), A2, A3, A5 and A8a EIAD.

7. The Board Decision is invalid because the Board failed to carry out an EIA of the

likely significant effects of the deposit of up to 73,920m3 of spoil in the landscape deposition

area (otherwise known as Ballyquin Quarry), and failed to comply with the obligation to carry

out a complete EIA of the overall project before it contrary to S171A and S172 PDA,

interpreted in accordance with A1(2)(g), A2, A3, A5 and A8a EIAD.

8. The Board Decision is invalid because the Board failed to carry out an appropriate

assessment of the likely significant effects of the deposit of up to 73,920m3 of spoil in the

landscape deposition area (otherwise known as Ballyquin Quarry) contrary to S177V PDA

interpreted in accordance with A6(3) of the Habitats Directive.

8. The Board Decision is invalid because the Board failed to carry out an EIA of the

likely significant effects of the deposit of up to 73,920m3 of spoil in the landscape deposition

area (otherwise known as Ballyquin Quarry), and failed to comply with the obligation to carry

out a complete EIA of the overall project before it contrary to S171A and S172 PDA,

interpreted in accordance with A1(2)(g), A2, A3, A5 and A8a EIAD.

9. The Board Decision is invalid because it did not carry out a complete assessment of

the peat slide risk associated with the Proposed Development, contrary to S171A and S172

PDA, and A8a, A1(2)(g), A2, A3 and A5 EIAD.

10. The Board Decision is invalid because the Board failed to consider relevant material

and / or considered irrelevant material, namely the existence or non-existence of borrow

pits, and failed to carry out a complete assessment contrary to S171A and S172 PDA, and

A8a, A1(2)(g), A2, A3 and A5 EIAD

11. The Board Decision is invalid because Condition 13 leaves over finalising the traffic

management plan without providing for public consultation, contrary to the proposed

mitigation measures contained in the EIAR. Accordingly, the EIA as conducted was

incomplete, because the proposed mitigation measures have not been followed, and it

cannot be concluded that traffic impacts will be prevented as proposed. The Board

contravened S34(5) PDA, read in light of S171A, S172 and A6 EIAD.

12. The Board erred in law because it failed to set out its expertise in respect of the

carrying out of EIA, and gave inadequate reasons to justify its decision, contrary to S34(10)

PDA and / or S172 PDA and A5(3) EIAD.”

24. Core Grounds 0, 1, 4, 6, 7, 8, 9, 11 and 12 were not proceeded with.

Domestic law issues

Core ground 2 – material contravention

25. Core ground 2 is:

“2. The Proposed Development would materially contravene the Development Plan by

reason of loss of part of Ballymoloney Woods. The Board failed to consider whether there

would be a contravention, whether such contravention would be material, and whether it

wished to authorise a material contravention. It thereby misdirected itself in relation to its

interpretation and application of the Development Plan contrary to S34(2) and S27(2) PDA,

failed to consider relevant material contrary to S34(2), and / or failed to give adequate

reasons contrary to S34(10) PDA.”

26. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 2: Ballymoloney Wood - Material Contravention

Applicants’ Position

1. Objective 15.19 of the Development Plan requires preservation and conservation of

individual and groups of trees identified in volume 2 of the Plan. Volume 2 designates

Ballymoloney Wood as ‘trees for preservation’. The Proposed Development will involve the

felling of ‘0.5 – 0.6 Ha (c. 10 - 12% of sub-type) of the higher value locally important mixed

broadleaved woodland within the wood’ (EIAR Ch8, p217). In the context of Objective 15.19

as a whole, felling of trees designated for preservation under paragraph (a) is a material

contravention of the Development Plan, in counter-distinction to other trees which are

‘protected’ under paragraph (b), or non-protected trees which, under paragraph (h), may

be felled provided they are replaced at a ratio of 10:1. This is an area where the Board has

a very limited discretion (Jennings, §112), and failure to respect this requirement of the Plan

amounted to a material contravention. The Board erred in law because it failed to recognised

this material contravention.

Board’s Position

2. The Board’s Decision is not invalid as alleged at Core Ground 2. The premise of the

complaint at Core Ground 2 is incorrect in that the proposed development does not materially

contravene the Clare County Development Plan 2023-2029 (‘the Development Plan’) by

reason of the loss of part of the Ballymoloney Woods as alleged by the Applicants. The

Applicants’ interpretation of the Board’s Decision and of the Development Plan is incorrect.

Having regard to the flexible provisions of the Development Plan regarding trees and in light

of the evidence and information that was before the Board relevant to the issue, including

the reinstatement measures identified, the proposed development does not comprise or

involve a material contravention of the Development Plan, and the findings of the Inspector

and the Board, in accepting the removal of trees proposed, were rational, based on evidence,

and involved the lawful exercise of planning judgment.

3. Contrary to the approach taken by the Applicants in advancing Core Ground 2,

correctly interpreted, the applicable policy/objectives under the Development Plan allow an

appreciable degree of flexibility, discretion and/or planning judgement to the decision-maker

for the purposes of assessing proposed developments. The Applicants’ approach to Core

Ground 2 fails to recognise or engage with this, and instead is based on an incorrectly narrow

and restrictive interpretation of the applicable policy and objectives in the Development Plan,

in particular via unduly selective reliance and legalistic parsing of Objective 15.19(a) in the

abstract and divorced from its context - both in terms of other relevant provisions in the

Development Plan and as regards the actual facts concerning the limited extent of tree felling

at Ballymoloney Wood proposed in the application. On the basis of the Applicants’ analysis,

the felling of any tree necessarily constitutes a material contravention of the Development

Plan. The excessively literalist and absolutist interpretation of Objective 15.19(a) of the

Development Plan that subtends the arguments advanced by the Applicants at Core Ground

2 bears significant similarity to arguments rejected by the High Court in Jennings v. An Bord

Pleanála [2023] IEHC 14 at §578 to 579; Mulloy v. An Bord Pleanála [2024] IEHC 86 at

§193, §223, and Graymount House Action Group v An Bord Pleanála [2024] IEHC 327 at

§207 et seq. Such arguments should likewise be rejected in this case.

4. Even if (which is denied) there would be a contravention, this would not be material.

Further, and relevant to the Court’s discretion to refuse relief, noting that the Council did

not find the proposed development to be a material contravention of the Development Plan,

there is no preclusion on the Board granting permission for the proposed development in

material contravention of the Development Plan, having regard to the provisions of s.37(2)

of the 2000 Act. In such circumstances, the Board can grant planning permission in material

contravention without the necessity for invoking any special procedure. Put otherwise, the

legal and factual context in this case, even if same was to be taken at its height in favour of

the Applicants, does not warrant the quashing of the Board’s Decision.

Developer’s Position

5. This ground is premised on a flawed and incomplete interpretation of the

Development Plan – including Objective 15.19(a) - which Objectives talks about preserving

‘individual or groups of trees’ which ‘enhance the character and appearance of an area’ –

clearly, such a consideration – as to character and appearance - involves a high degree of

planning judgment and no case is advanced that any tree removal that is actually occurring

here undermines this aspect of the objective insofar as it relates to Ballymoloney Woods.

There are at least six flaws in the Applicants contentions.

6. Firstly, the Applicants have failed to recognise that the express terms of Objective

15.19(a) itself - which distinguishes between ‘individual’ and ‘groups’ of trees. Whilst the

[Ballymoloney] Wood as a group has been identified, this does not mean that every

individual tree in [Ballymoloney] Wood requires to be preserved or that the felling of

individual trees means [Ballymoloney] Wood is not preserved or conserved. Even the

Applicants do not contend that removal of the small number of trees, as is proposed, means

that [Ballymoloney] Wood will cease to exist.

7. Secondly, the terms of the Objective is further qualified by the reference to ‘..which

will enhance the character and appearance of the area’. The notion of ‘character’ clearly

imports an element of planning judgment – thus, whether the felling of certain individual

trees in [Ballymoloney] Wood undermines its character is a matter which imports appreciable

flexibility to the Board.

8. Thirdly, the Applicants fail to engage with the specifics of the individual trees which

are actually being felled. In this regard 0.4 Ha, or c.2% of the total amount of long-

established woodland is being removed. Furthermore, the EIAR sets out that the felling is

associated with a section of access track, positioned to make use of an existing track through

the woodland in order to minimise felling. The track has also been positioned near the

eastern edge of the woodland to minimise habitat fragmentation. This is further relevant to

the character and ‘appearance’ of the area as referenced in the Objective.

9. Fourthly, the contentions involve a selective and incorrect approach adopted to

interpreting the Development Plan - which should be ‘read as a whole and specific content

must be read in the context of which that whole is part’ – per Mulloy v An Bord Pleanála

[2024] IEHC 86 (§187). The Development Plan, when read as a whole – including by

reference to Volume 6 of same - the Wind Energy Strategy – expressly envisages wind

energy development at the development site and the felling of trees - requiring, in the

exercise of planning judgment, a ‘multifactorial balancing exercise’ (Mulloy) in relation to

applications for wind farm development (which occurred here).

10. Fifthly, even if the Applicants are correct that the felling of individual trees in

[Ballymoloney] Wood is a contravention of Objective 15.19(a), it is not a material

contravention in the light of the factors addressed above, i.e.. that it is ‘group’ of trees and

neither the character nor appearance has been impinged considering the small percentage

to be removed and/or their precise location minimising habitat fragmentation. The Planning

Authority did not find a material contravention and the EIAR assessed the impact as ‘slight

reversible’, which conclusion has not been challenged by the Applicants.

11. Sixthly, even it does involve a material contravention, which is denied, the Applicant

fail to engage with the fact that the Board has a discretion under section 37(2)(a) to grant

permission even if a proposed development is in material contravention of the development

plan. This is a renewable energy project and it would be appropriate that the Board would

exercise discretion in such manner.

12. The Applicants’ argument that as a consequence of Objective 15.19(a), the

requirement to preserve trees means that ‘the trees in Ballymoloney Wood are marked for

preservation and cannot be felled’ is akin to reading in an absolute prohibition on the removal

of such trees – if this is what the Development Plan intended, presumably it would have just

stated this. Moreover, such a preclusion is difficult to reconcile with the other aspects of the

Development Plan, including the Wind Energy Strategy, and the fact that same expressly

considers that a wind farm may be developed on this site and may, as a consequence,

require tree removal. There is no absolute prohibition on the removal of trees, contrary to

the Applicants’ complaints, and a reasonably informed reader would not read such a

preclusion into the Development Plan when same is read objectively and holistically. Similar

arguments to those advanced by the Applicants herein, albeit by reference to different

development plans which are similarly worded, have previously been rejected in Mulloy,

Jennings and Graymount.”

27. The critical provision of the plan is objective 15.19(a) of the development plan (as pleaded

in sub-ground 42). Objective 15.19 provides:

“It is an objective of Clare County Council:

a) To preserve and conserve individual or groups of trees identified in Volume 2 of this Plan

as ‘Trees for Preservation’ which will enhance the character and appearance of an area;

b) To carry out tree survey work during the lifetime of this Plan to identify future trees of

importance in the County and facilitate their future protection;

c) To protect individual or groups of trees within the Plan area which are important for

environmental, recreational, historical, biodiversity and/or aesthetic reasons or by reason of

contribution to sense of place, including groups of trees which correspond with protected

habitats, or which support protected species, under the Habitats Directive;

d) To work with landowners, local communities and other relevant groups to promote the

retention and conservation of existing trees and hedgerows and encourage development

proposals that enhance the landscape through positive management and additional

planting/sensitive replanting of native tree species;

e) To protect woodlands and hedgerows from damage and/or degradation and to prevent

disruption of the connectivity of woodlands and hedgerows of the County;

f) To ensure, where required, applications for development include proposals for planting /

leave a suitable ecological buffer zone, between the development works and areas/features

of ecological importance;

g) Where hedgerows are required to be removed in the interests of traffic safety or where

breaches to hedgerows occur due to river drainage/maintenance works and flood repair, to

require the applicant/developer to reinstate the hedgerows with a suitable replacement of

native species to the satisfaction of the Council;

h) To require each green space in new residential developments to have at least one native

oak tree, or other naturalised tree species of similar stature and lifespan, integrated into the

agreed planting/landscaping scheme; and

i) To require, where possible, that all trees felled as a result of development proposals be

replaced at a minimum ratio of 10 new native species per 1 tree felled.”

28. The only relevant trees identified in Volume 2 as “trees for preservation” are those in the

green “blob”. The onus is on the applicants to show that these are the trees being felled. The

problem for the applicants is that they haven't done that – they have failed to evidentially establish

that the felling is taking place within the protected woodlands under the development plan. So the

point fails on an onus of proof basis. Indeed reinforcing that, given the further evidence referred to

above, it is clear that the proposed felling falls outside the area of protected woodlands to which

para. (a) refers. It isn’t unfair to rely on the developer’s evidence because the applicants had 13

days to deal with that, and given that the case had already been heard, dealing with it properly and

urgently was required. That didn’t happen either – the replying opinion evidence wasn’t admissible

and anyway there was no application to cross-examine.

29. For the first reason, reinforced by the developer’s evidence if reinforcement be necessary,

any argument based on para. (a) doesn’t get off the ground. The other paragraphs are not pleaded

but in any event are either not relevant or involve evaluative judgement insofar as they apply to the

matters at hand. So this point ends here.

Core ground 3 – inadequate consideration or reasons regarding impact on house prices

30. Core ground 3 is:

“3. The reasons given by the Board’s Inspector and adopted by the Board in relation to

the submission of the Second Applicant in the following respects were inadequate, and

contrary to S34(10) PDA and / or A8a EIAD.”

31. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 3, Impact on House Prices

Applicant Position

1. The Second Applicant’s submission provided evidence indicating a likely fall in house

prices if the Proposed Development goes ahead. The Developer provided evidence to the

contrary. The Board preferred the Developer’s evidence on the basis that the Applicant had

not provided ‘conclusive’ evidence that house prices would fall. This reason is not sufficient

to form the basis of a conclusion preferring the Developer’s position, because there is no

burden of proof on a person making submissions to prove his case ‘conclusively’ in order to

displace a presumption in the Developer’s favour. The reasons expressed on this issue are

therefore inadequate for the purposes of S34(10) PDA, because it does not follow from the

absence of conclusive proof that the Developer’s submission must therefore be preferred.

(And because reasons are given, the question is as to their adequacy, rather than as to

whether this is a situation where no specific reason is required, which is the Board and

Developer’s defence.)

Board Position

2. The Board’s Decision is not invalid as alleged. The Applicants (in this one aspect of

Core Ground 3 still being maintained) argue (see, e.g., §19 of their submissions) that the

Board failed to provide reasons as regards the concerns raised by the Second Named

Applicant with reference to a study in the UK about house prices and wind farms. That

complaint is without substance and has not been made out. The argument being advanced

is based on a false premise. As a matter of fact, reasons in relation to the determination of

this issue were provided, the Inspector’s Report references the evidence presented on this

issue, including in the EIAR, and also notes the observations made about same (including

by the Second Named Applicant). In light of the evidence presented, the Inspector

determined (at §8.3.22 of the Inspector’s Report) that ‘…there is no substantive evidence

presented that would conclusively indicate a depreciation in property values directly

attributable to the wind farm's presence at this particular location.’ The Board’s conclusion

on the depreciation of property values was a factual determination - based on an absence

of substantive evidence – and is a conclusion which is to be afforded a degree of deference.

3. The reason provided by the Board is objectively supported by relevant information

contained in the materials that were before the Board and its Inspector (to which they had

regard); in particular, for example, Volume 2, Chapter 11 of the EIAR addresses the issue

of property value by referencing three primary studies conducted in the USA, the UK and

Scotland – the findings of all of which indicate no relation between house prices and the

presence/absence of wind farms. Noting that there have been no empirical studies carried

out in Ireland on the impacts of wind farms on property prices, the studies used provide the

best insight at the current time to the relationship between property prices and the presence

of wind farms. In addition, the RWE Appeal Report also addresses the matter of property

value deprecation in relation to the proposed development (at section 3.2.6, internal page

29). Furthermore, it is to be noted that the submission of the Second Named Applicant does

not actually identify an actual property which will be devalued by the proposed development.

4. No lack of reasons has been made out by the Applicants. The reason as to why the

Board did not accept the Second Named Applicant’s submission in respect of house prices is

clear. The Applicants are not entitled to micro sub-reasons or reasons for the reasons as

they contend for at Core Ground 3; further, contrary to what the Applicants contend in

submission, reasons can include by way of acceptance of a developer’s material (100 Meter

Tall Group [2025] IEHC 42 at §76 and the case law cited).

Developer’s Position

5. The Applicants complain that they are entitled to reasons as to why the submission

of the Second Named Applicant, Mr Conway, was not accepted as to the impact of the

Proposed Development on the value of properties located proximate to same. The

implication of the Applicants’ argument is that the Inspector/Board did not consider or

address this issue – however, and whilst the context to this matter is outlined below, the

fact is that the reasons for the determination of this issue were provided, with the Inspector

stating (§8.3.22):

‘…there is no substantive evidence presented that would conclusively indicate a depreciation

in property values directly attributable to the wind farm's presence at this particular location.’

6. In other words, the Inspector and the Board were of the view that no evidence had

been presented that this specific wind farm would have a specific negative impact on any

actual property in the area – this reasoning is perfectly rationale and it should be noted that

the Applicants do not dispute same by reference to the actual evidence before the Board.

This was a matter of weight for the Board to consider. The Board did consider the submission

but did not accept the Applicants content of the submission. The fact that the submission

was not accepted, does not give rise to a valid ground of challenge. As such, noting the

purpose of reasons, it cannot really be said that the Applicants do not know why the Board

concluded as it did on this issue. The reasoning provided by the Board complies with the

legal requirement to provide reasons (Balscadden Road SAA Residents Association v An Bord

Pleanála [2020] IEHC 586; O’Donnell v An Bord Pleanála [2023] IEHC 381; Connelly v An

Bord Pleanála [2018] 2 ILRM 453).”

32. The plan at 11.47(e) involves striking an appropriate balance with residential amenity – that

clearly does involve extensive planning judgement:

“e) To strike an appropriate balance between facilitating renewable and wind energy-related

development and protecting the residential amenities of neighbouring properties;”

33. The obligation as to reasons is to give the main reasons on the main issues (Connelly v. An

Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 453 (Clarke C.J.); Balscadden Road SAA Residents

Association Limited v. An Bord Pleanála [2020] IEHC 586 (Unreported, High Court, 25th November

2020), §39; O’Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 5th July 2023),

§§45-57; Friends of the Irish Environment v. Minister for the Environment & Ors [2025] IEHC 61

(Unreported, High Court, 7th February 2025) at §86(i)).

34. The inspector accepted the developer’s analysis in the EIAR:

“8.3.22. In conclusion, I am satisfied that the proposed development has been

designed to strike an appropriate balance, as mandated by Objective CDP11.47(e) of the

Clare County Development Plan 2023-2029, between facilitating renewable wind energy

development and safeguarding the residential amenities of properties in the vicinity. The

mitigation measures detailed in the EIAR, supported by comprehensive technical

assessments and predictive noise modelling, establish that the operation of the turbines,

considering their scale and height, will not significantly impact the local soundscape or result

in undue noise disturbances. Moreover, the siting of the turbines, adherence to required

setback distances, and the application of contemporary turbine technology would mitigate

visual impact and preserve the visual amenity of the area. The EIAR addresses the potential

for noise during the construction phase and commits to managing and minimising traffic

movements to alleviate any temporary disturbances. The design of the project, which

considers the characteristics of the open landscape, ensures that the turbines, while

noticeable, will not be visually overbearing. Additionally, there is no substantive evidence

presented that would conclusively indicate a depreciation in property values directly

attributable to the wind farm's presence at this particular location. I conclude, therefore,

that the proposed development, would not contravene Objective CDP11.47 of the Clare

County Development Plan 2023-2029 and should not be refused permission on grounds

pertaining to impact on residential amenities of dwellings in the surrounding area.”

35. The board’s reason for rejecting the applicants’ submission was thus in essence that it

preferred the developer’s submission – which impliedly involves accepting the developer’s reasoning.

That discharges the duty to give reasons. The applicants aren’t entitled to a dialogue or to reasons

for the reasons. The fact that the board said that the applicants’ evidence wasn’t conclusive is just

a statement of fact. The applicants commit the fallacy of assuming that every statement by a

decision-taker involves an assertion that such a statement is pivotal to the decision. That is an

incorrect way to read decisions, and sets them up for failure by construing every comment,

statement or observation as being something which invalidates the decision if it turns out to be

debatable. A decision must be construed as being lawful and as making sense if such a construction

is available.

36. Ultimately as the board submits:

“19. The Board’s conclusion on the depreciation of property values was a factual

determination - based on an absence of substantive evidence – and is a conclusion which is

to be afforded a degree of deference (see e.g., Four Districts [2023] IEHC 335 at §40(ii) and

§41(i)).”

Core ground 5 – alleged invalid condition regarding shadow flicker

37. Core ground 5 is:

“5. Condition 11 is void for uncertainty if and insofar as it purports to set a laxer

standard for shadow flicker than Condition 1.”

38. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 5, Standards for Shadow Flicker

Applicant Position

1. The Developer proposed in its plans and particulars that there would be zero shadow

flicker from the windfarm, and Condition 1 requires it to build in accordance with the plans

and particulars save where otherwise required. Condition 11(a), on the other hand, allows

30 minutes per day and 30 hours per year of shadow flicker. However, it does not ‘require’

that there should be flicker, so there is no derogation from the zero flicker commitment,

which accordingly still applies. Condition 11(a) is therefore otiose. Condition 11(b) and (c)

provide for measurement of shadow flicker, and should apply to the zero flicker obligation

rather than the 30 minutes / 30 hours standard. A declaration is sought confirming that

Condition 1 takes priority, but if that is the case, it further cannot be assumed that the Board

would not have applied Condition 11(b) and (c) to that commitment rather than to Condition

11(a), and accordingly the decision should be quashed and remitted to allow the Board to

consider whether to modify Condition 11(b) and (c).

Board Position

2. The Board’s Decision is not invalid as alleged at Core Ground 5. The Applicants

contend that, in relation to shadow flicker, Condition 11(a) of the Board’s Decision is invalid

because it allegedly contradicts Condition 1. However, the problem for the Applicants is

that, on a correct interpretation of Conditions 1 and 11 (in accordance with the relevant

principles of interpretation per Re XJS Investments Limited [1986] IR 750; Lanigan v. Barry

[2019] 1 I.R. 656), and when same are read in a way that renders them valid rather than

invalid and in a way that makes sense and is lawful (per Eco Advocacy [2025] IEHC 15 at

63(vii) and the case law cited), no contradiction arises at all. In short, this ground of

challenge manifestly involves the Applicants reading Condition 1 and Condition 11 ‘in the

most erroneous way possible so that they can get their order of certiorari’ (Save Roscam v.

An Bord Pleanála (No.6) [2024] IEHC 335 at §64; Eco Advocacy [2025] IEHC 15 at 63(vii);

MR (Bangladesh) v. The International Protection Appeals Tribunal & Anor [2020] IEHC 41 at

§7).

3. In essence, the Applicants’ submissions (see e.g. §29) contend that Condition 1 of

the Board’s Decision incorporates the EIAR (in particular Chapter 12, section 12.5 of same

in relation to shadow flicker, and the words ‘a scheme of mitigation will be implemented into

the turbine control software to cease turbine operation during periods of shadow flicker. The

proposed method of mitigation will be used to mitigate all shadow flicker effects resulting in

zero shadow flicker within the 10-rotor diameter study area’) and that, consequently,

Condition 1 implicitly imposes a threshold/limit of zero for shadow flicker emissions –

reflective of the designed outcome of the proposed mitigation measures. The Applicants’

submissions (see e.g., §22) contend that through the EIAR, RWE has ‘committed’ to a

mitigation regime which ‘would limit shadow flicker to [zero]’. The Applicants’ argument is

essentially that, having interpreted Condition 1 in this way, Condition 11(a) purports to

impose a more lax standard for shadow flicker and, as such, is inconsistent with Condition

1 and the ‘standard’ set by same and causes ambiguity.

4. However, a flaw in this argument is that it ignores the words ‘except as may be

otherwise required in order to comply with the following conditions’ in Condition 1, which

have the effect that insofar as the subsequent Conditions may differ from the plans and

particulars lodged, the said subsequent Conditions take precedent over the plans and

particulars lodged, with the Developer having to comply with the Conditions. In this case,

Condition 11(a) is a specific express condition imposed in relation to shadow flicker. The

Applicants’ approach of attempting to utilise the general condition at Condition 1 to ascertain

what threshold/limit the Board intended to place on shadow flicker is unnecessary given it

is perfectly clear what the Board intended as regards shadow flicker from the terms of

Condition 11(a) itself which is unambiguous in its terms (and in relation to which no legal

infirmity has been identified or demonstrated by the Applicants). There is no necessity to

look to Condition 1 and the plans and particulars lodged to ascertain the shadow flicker

threshold/limit imposed by the Board because same is expressly addressed by way of specific

condition, namely Condition 11(a).

5. The Applicants’ argument at Core Ground 5 is flawed in that no inconsistency arises

at all, as the shadow flicker limit/threshold was not set by Condition 1 of the Board’s Decision

as the Applicants submissions contend (see e.g. §25). The EIAR submitted by RWE identified

an intended outcome of the mitigation measures (i.e. achieving zero shadow flicker within

the 10-rotor diameter study area), with Condition 11(a) – irrespective of what the EIAR says

– lawfully setting a maximum limit that the extent of shadow flicker cannot exceed in order

to protect residential amenity. Notably, the shadow flicker threshold/limit set by Condition

11(a) reflects that recommended in the Wind Energy Development Guidelines 2006 (‘WEDG

2006’) (see e.g. page 33, section 5.12 of the WEDG 2006 and Chapter 12 of the EIAR at

§12.2.1, §12.2.1.17, and §12.8). Accordingly, whereas the materials and evidence before

the Board (namely Chapter 12 of the EIAR) indicated that the mitigation proposed was

designed to try to achieve zero shadow flicker, the Inspector and the Board imposed a

specific Condition (condition 11(a)) to ensure that if there was any shadow flicker arising

from the proposed development, it should not exceed the recommended limits contained in

the WEDG 2006 in any event, thus providing clarity as to what the limits are and

transparency for residents. This was a reasonable and rational approach to the consideration

of shadow flicker by the Board. The Applicants’ contrived conflict as between conditions 1

and 11(a) aside (which is a point without merit), the terms of Condition 11 are clear and

unambiguous in detailing a condition to address shadow flicker and the Applicants have

identified nothing unlawful about same.

Developer Position

6. The Applicants complain that there is an inconsistency between Condition 1 and

Condition 11(a) of the Board’s Decision as to thresholds/limitations in respect of shadow

flicker emanating from the Proposed Development – the problem for the Applicants is that

there is no such inconsistency and their entire complaint is premised on their own

unwillingness to interpret the permission by reference to its express terms and in a way that

renders it valid rather than invalid.

7. The Applicants’ argument is essentially that, by interpreting Condition 1 in this way,

Condition 11(a) purports to impose a more lax standard for shadow flicker and, as such, is

inconsistent with Condition 1 and the ‘standard’ set by same. With respect, this argument

simply ignores the phrase ‘except as may be otherwise required in order to comply with the

following conditions’ in Condition 1 – which means that insofar as the subsequent Conditions

may differ from the plans and particulars lodged, the said subsequent Conditions take

precedent over the plans and particulars lodged, with the Developer having to comply with

the Conditions. The Applicants’ argument is therefore premised on a failure to understand

the meaning and effect of the wording of the condition and to properly interpret the Board’s

Decision.

8. There is no necessity to look to Condition 1 and the plans and particulars lodged to

ascertain the shadow flicker threshold/limit because same is expressly addressed by way of

specific Condition – Condition 11(a). We are thus back to interpreting a permission in a

harmonious manner that makes sense – when a reasonably informed reader comes to

question what the shadow flicker limit is, they need not look any further than Condition

11(a). In this regard, there is no legal preclusion on the Board imposing such a limit –

regardless of what the application documentation states (nor do the Applicants argue to the

contrary).

9. The EIAR identified an intended outcome of the mitigation measures, with Condition

11(a) – regardless of what the EIAR says – imposing a limit/threshold which shadow flicker

cannot exceed in order to protect residential amenity. The threshold/limit set by Condition

11(a) reflects that recommended in the Wind Guidelines. So whilst the materials and

evidence (EIAR) indicated that the mitigation proposed was designed to try to achieve zero

shadow flicker, the Inspector and the Board imposed a Condition to ensure that if there was

any shadow flicker arising from the Proposed Development, it should not exceed the

recommended limits contained in the Wind Guidelines in any event – providing clarity as to

what the limits are and transparency for residents.”

39. Condition 1 provides:

“1. The proposed development shall be carried out and completed in accordance with

the plans and particulars lodged with the application, except as may otherwise be required

in order to comply with the following conditions. Where such conditions require details to

be agreed with the planning authority, the developer shall agree such details in writing with

the planning authority prior to commencement of development and the proposed

development shall be carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.”

40. Condition 11 provides:

“11. (a) Shadow flicker arising from the proposed development, by itself or in

combination with other existing or permitted wind energy development in the vicinity, shall

not exceed 30 hours per year or 30 minutes per day at existing or permitted dwellings or

other sensitive receptors.

(b) The proposed development shall be fitted with appropriate equipment and software

to control shadow flicker in accordance with the above requirement. Details of these control

measures shall be submitted to, and agreed in writing with, the planning authority prior to

commencement of development.

(c) A report shall be prepared by a suitably qualified person in accordance with the

requirements of the planning authority indicating compliance with the above shadow flicker

requirements at dwellings. Within 12 months of commissioning of the proposed wind farm,

this report shall be submitted to, and agreed in writing with, the planning authority. The

developer shall outline proposed measures to address any recorded non-compliances,

controlling turbine rotation if necessary. A similar report may be requested at reasonable

intervals thereafter by the planning authority.

Reason: In the interest of residential amenity.”

41. The basic reason why this point fails is that it reads the decision as contradictory when that

is not a necessary or appropriate reading. Condition 1 is expressly subject to what is required by

subsequent conditions. A decision should be read in a way that makes sense if such a reading is

available and it is here – condition 11 is to apply and condition 1 is subject to that. The basic logic

for that is that the turbines will be designed to avoid shadow flicker, but if there is any it must be

within the parameters of condition 11(a). Yes in literal terms para. (a) is permissive rather than

required, but to read that as nullifying its relevance having regard to condition 1 would be a Jesuitical

reading of the plan. The plan has to be read as a reasonable addressee would read it, not

automatically in a drily literal manner. A reasonable addressee would read “required” in the sense

of “envisaged”.

42. As the board correctly submits:

“24. However, the problem for the Applicants is that, on a correct interpretation of

Conditions 1 and 11 (in accordance with the relevant principles of interpretation per Re XJS

Investments Limited [1986] IR 750; Lanigan v. Barry [2019] 1 I.R. 656), and when same

are read in a way that renders them valid rather than invalid and in a way that makes sense

and is lawful (per Eco Advocacy [2025] IEHC 15 at 63(vii) and the case law cited) no

contradiction arises at all. In short, this ground of challenge manifestly involves the

Applicants reading Condition 1 and Condition 11 ‘in the most erroneous way possible so that

they can get their order of certiorari’ (Save Roscam v. An Bord Pleanála (No.6) [2024] IEHC

335 at §64; Eco Advocacy [2025] IEHC 15 at 63(vii); MR (Bangladesh) v. The International

Protection Appeals Tribunal & Anor [2020] IEHC 41 at §7).”

43. The applicants look for a declaration as to the meaning of the conditions but that isn’t

necessary – this judgment can clarify matters. The main thing that I can clarify is that the mitigation

measures, specifically the sensors and the automatic turning off of turbines in the event of shadow

flicker, remain operative. It is not the case that mitigation does not apply within the specified

parameters – rather the parameters are a fall-back determining the outer limits of any non-

compliance. The opposing parties agreed to that interpretation.

44. In general terms, a judgment is sufficient to clarify the law, and a declaration would be

overkill here, but I would be prepared to favourably consider a recital in the order to make the

position clear. In general terms a recital in the order doesn’t create an entitlement to costs that

wouldn’t otherwise exist.

45. Finally this shouldn’t be misunderstood as meaning that legal issues are going to end up in

recitals in order more generally – such an approach would normally arise only where certain

conditions are met, specifically:

(i) there is a fact-specific question and not some more general matter of statutory

interpretation, such that a recital in the order may assist specific parties, rather than

being addressed urbi et orbi;

(ii) the matter is clarified in the judgment anyway, so that the recital isn’t creating a

new form of relief;

(iii) there is some tangible gain for one or more of the parties by way of reassurance in

recording such a matter formally by way of recital;

(iv) it is understood that such a recital does not create a right to costs that would not

otherwise apply; and

(v) ideally there is some degree of consensus as to such an approach.

EU law issues

Core ground 10 – alleged error in EIA

46. Core ground 10 is:

“10. The Board Decision is invalid because the Board failed to consider relevant material

and / or considered irrelevant material, namely the existence or non-existence of borrow

pits, and failed to carry out a complete assessment contrary to S171A and S172 PDA, and

A8a, A1(2)(g), A2, A3 and A5 EIAD”

47. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 10, Borrow Pits, Materiality of Error

Applicant Position

1. The Board failed to carry out an EIA in relation to proposed borrow pits, but contends

that there are no borrow pits and that the reference to them is an error. The Developer

agrees and says it is a typographical error. Both contend the error is not material. There is

no evidence from the Board as to how it determined the reference to borrow pits was an

error, or who in the Board made that determination. There is no evidence from the

Developer as to how the error came about. There is no expert evidence as to the materiality

of the error. The burden of proving that an error is not material rests on the Board and

Developer, according to the decision in C-72/12 Altrip, and the only evidence offered is that

of professional witnesses which is not admissible as to matters of opinion – Freeney v HSE

– and which does not in any event explain how the error came about or was identified.

Board Position

2. The Board’s Decision is not invalid as alleged at Core Ground 10. The premise of

the complaint at Core Ground 10 is incorrect as the proposed development does not include

borrow pits. In this regard, Core Ground 10 comprises non-expert inaccurate assertion that

is based on a misconception and/or misunderstanding by the Applicants that the proposed

development involves borrow pits when it does not. On the basis of the actual facts and

plans and particulars of the proposed development, there are no borrow pits and no

permission was sought nor granted in relation to same. At Core Ground 10, the Applicants

are effectively contending that the Board ought to have assessed something (borrow pits)

that it would have been erroneous for the Board to assess (as there are no borrow pits).

3. The Applicants place outsized and/or misplaced reliance on a minor and harmless

error in Volume 2, Chapter 11 of the EIAR (which concerns ‘Population and Human Health’)

at section 11.8.5 of same, where reference is made to ‘on site borrow pits’ and general

construction fill being excavated from same. Another similar, minor error is contained at

Volume 2, Chapter 9 at section 9.5.2.1 of the EIAR insofar as reference is made in same to

‘borrow pits’ (notably the error there is not replicated in the Inspector’s Report wherein the

Inspector is evidently referring to that passage from the EIAR – see §9.7.11 of the

Inspector’s Report). The fact that the aforesaid references to borrow pits are errors is clear

and discernible from the materials that were before the Board read as a whole and in a way

that makes sense, in that said materials make clear that there are no borrow pits proposed.

Notably, there is nothing in the Inspector’s report or Board Direction or Board Order to

suggest that the Inspector or Board understood the proposed development to include borrow

pits. To the contrary, the Inspector in fact cited the planning authority response to the

appeal to the effect that ‘borrow pits are not proposed’ (§3.3.2.4 of the Inspector’s Report).

4. In addition, there is uncontested and uncontradicted expert evidence before the

Court adduced by RWE, namely the Affidavit of Trevor Byrne, Associate Director with Fehily

Timoney, Consultants in Engineering, Environmental Science and Planning, the authors of

the EIAR, that confirms that the reference in the EIAR to borrow pits was a typographical

error. The Applicants’ submissions (§46 et seq) purport to take issue with the ability/

admissibility of Mr. Byrne commenting on that error – however it is clear that the objection/

complaint proffered via the Applicants written submissions in that regard is misplaced and

fails to reflect what the correct legal position is, as was articulated in Massey v. An Bord

Pleanála (No.2) [2025] IEHC 206 at §78 to §80 where a similar complaint as to admissibility

about an affidavit filed on behalf of the developer in that case was rejected by the Court.

See also to similar effect, Doyle v. An Bord Pleanála [2025] IEHC 158 at §79. The Applicants’

submissions (at §42 et seq) incorrectly and semantically major on use of the phrase

‘typographical error’ ultimately to no end, as the fact remains that there are no borrow pits

proposed as part of the proposed development and no permission was sought nor granted

for same.

5. Moreover, in truth it does not matter how one categorises the nature of the error in

the EIAR – typographical, clerical, human – the key point is that while the EIAR was

contradictory on this question, the proposed development did not in fact include borrow pits

and the Inspector and Board correctly understood it not to include borrow puts. In this

context, the Board relies on the principle that ‘any shortcomings in the developer’s material

would only become a problem if they flow through into the decision-maker’s analysis’ (per

Walsh [2022] IEHC 172 at §41 and noted in Jennings [2023] IEHC 14 at §419). That didn’t

occur here – the Board and Inspector were clearly aware that the proposed development did

not involve borrow pits and this is not a case of an error in the Board’s Decision or of an

error which impacted same or which carried through to the assessment by the Board and its

Inspector. Relatedly, there is ample authority for the proposition that decisions should not

be quashed over errors that make no difference – see e.g., Carrownagowan Concern Group

v. An Bord Pleanála (No.3) [2024] IEHC 549 at §52 and the case law cited. That proposition

fully applies in the context of Core Ground 10 in this case and the Applicants outsized and

unwarranted reliance upon, and attempt to capitalise on, minor mistakes in the EIAR in

circumstances where no issues arose in the planning process in relation to same (there is

no evidence that anyone was misled nor any claim that anyone was misled by said minor

mistakes) and where same had no substantive or material impact on the Board’s Decision

at all.

6. The reality of the matter is that no one (including the Applicants) made submissions

on the basis that the proposed development included borrow pits. The Council (at first

instance) did not consider that the proposed development involves borrow bits, and the

Inspector (see §3.3.2.4 of the Inspector’s Report – ‘Although borrow pits are not proposed,

the reuse of excavated material on-site for landscaping and berms is indicated’) and the

Board correctly assessed the proposed development as being one without borrow pits. This

is consistent with the fact that the development description in the application documentation

does not reference or include borrow pits.

7. Further, in addition to the foregoing, relief should not be granted on the basis of

Core Ground 10 in circumstances the Applicants also lack standing to raise complaints in

relation to borrow pits in circumstances where they could have, but, without explanation,

did not raise any issue in relation to same in the planning process before the Council at first

instance or the Board on appeal and/or this is otherwise a factor relevant to the Court’s

discretion to refuse relief.

Developer Position

8. The Applicants summarise Core Ground 10 as comprising an alleged ‘incomplete

assessment re borrow pits’ . However, the problem for the Applicants is that the Proposed

Development does not comprise borrow pits; permission was not sought for borrow pits;

and permission was not granted for borrow pits.

9. In this respect, the Applicants’ arguments are premised on: (i) a failure to accept

that the reference in the EIAR to borrow pits, as accepted by the authors of same, was a

clerical/typographical error; (ii) a failure to accept that nobody, including the Applicants,

understood the Proposed Development as including borrow pits during the planning process;

and (iii) a failure to acknowledge that the Inspector and Board were fully aware of the fact

that the Proposed Development did not include borrow pits. Thus, per Eco Advocacy v An

Bord Pleanála [2025] IEHC 15 (§63(vii)), this ground is a classic example of seeking to

interpret the Board’s Decision in the most erroneous way possible, including in a manner

directly contradictory to the text used in same. For example, as noted by the Inspector, in

summarising the evidence/submissions made (over which there was no dispute):

‘…borrow pits are not proposed…’

10. If permission was being sought for borrow pits it would have been required to be in

the description of the development in the planning application and public notices but was

not. Equally the drawings submitted with the application did not include the same nor the

Construction Management plan. Moreover, insofar as it was included in the EIAR, if borrow

pits were proposed (which they were not) the obvious place same would be included would

be in project description in Chapter 3 - which sets out in a description of the proposed project

or in Chapter 9 - dealing with ‘Lands, Soils and Geology’ - but that Chapter expressly says

(at pg.32) that borrow pits are not proposed.

11. Therefore, if the development does not comprise borrow pits and borrow pits have

not been granted permission, the allegation that borrow pits (which do not exist) were not

assessed fails and this ground should be dismissed.”

48. The basic reason why this point fails is set out by the board in submissions (para. 31) as

follows:

“31. The Applicants place outsized and/or misplaced reliance on a minor and harmless

error in Volume 2, Chapter 11 of the EIAR (which concerns ‘Population and Human Health’)

at section 11.8.5 of same, where reference is made to ‘on site borrow pits’ and general

construction fill being excavated from same. Another similar, minor error is contained at

Volume 2, Chapter 9 at section 9.5.2.1 of the EIAR insofar as reference is made in same to

‘borrow pits’ (notably the error there is not replicated in the Inspector’s Report wherein the

Inspector is evidently referring to that passage from the EIAR – see §9.7.11 of the

Inspector’s Report). The fact that the aforesaid references to borrow pits are errors is clear

and discernible from the materials that were before the Board read as a whole and in a way

that makes sense, in that said materials make clear that there are no borrow pits proposed.

Notably, there is nothing in the Inspector’s report or Board Direction or Board Order to

suggest that the Inspector or Board understood the proposed development to include borrow

pits. To the contrary, the Inspector in fact cited the planning authority response to the

appeal to the effect that ‘borrow pits are not proposed’ (§3.3.2.4 of the Inspector’s Report).”

49. There is literally nothing to the applicants’ complaint here because there are literally no

borrow pits. The applicants don’t dispute the non-existence of borrow pits in the project, and

therefore accept that such pits didn’t need to be considered. They also accept that the inspector

proceeded on the basis that there were no such pits. No further clarification was necessary.

Summary

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

(i) The applicants have failed to show that the proposed felling involved in the project

falls within the woodlands protected by objective 15.19(a) of the development plan.

(Indeed the notice party’s evidence clearly shows that it does not.) That provision

therefore does not apply and the board didn’t err in failing to hold a material

contravention of that. No other sub-paragraph of the objective is pleaded but in any

event no other provision has been shown to have been breached.

(ii) The entitlement to reasons is as to the main reasons on the main issues. Those

were provided. A decision-taker is not required to give reasons for their reasons, or

to enter into a detailed dialogue with a participant in the process.

(iii) A decision should be read as making sense if possible. Conditions 1 and 11 can be

read together as making sense and are thus not contradictory. The mitigation

measures apply under condition 1, but condition 11 sets out a maximum tolerance

for non-compliance.

(iv) The decision is not erroneous in relation to any lack of clarity as to the non-existence

of borrow pits. The board was not under any confusion as to that non-existence.

Order

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

(i) the proceedings be dismissed;

(ii) subject to any contrary submission of the parties, it be noted as a recital to the order

(and on the conditions and basis set out in the judgment) that it was agreed between

the parties that the meaning of the interaction between conditions 1 and 11 be as

recorded in the judgment;

(iii) unless any party applies otherwise by written legal submission within 14 days from

the date of this judgment, the foregoing order be perfected forthwith thereafter on

the basis of no order as to costs; and

(iv) the matter be listed on Monday 30th June 2025 to confirm the foregoing.