High Court dismisses planning application challenge due to failure to prove error and inconsistent grounds.

[2025] IEHC 405

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000094]

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

PLANNING AND DEVELOPMENT ACT 2000 AND IN THE MATTER OF AN APPLICATION

BETWEEN

AILEEN DONAGHER MCGOWAN AND THE MAYO SLIGO ENERGY CONCERN GROUP

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

MERCURY RENEWABLES (CARROWLEAGH) LIMITED

NOTICE PARTY

Date of impugned decision: 19 November 2024

Date proceedings commenced: 22 January 2025

Date of main hearing: 24 June 2025

Date draft judgment sent to parties: 8 July 2025

JUDGMENT of Humphreys J. delivered on Wednesday the 16th day of July 2025

1. In order to succeed in a given challenge, an applicant has to make her case to the decision-

taker save where exceptions apply, and a fortiori not make an inconsistent case at that point, plead

her points with sufficient particularity, overcome the evidential onus of proof to back up such points,

and demonstrate that the facts so proved give rise to a legally sound complaint. Here the applicants

fail on all of these criteria, so the problem is not so much a question of deciding whether any

objection to the case is fatal, but of deciding which of the multitude of fatal objections are deserving

of any particular narrative discussion.

Geographical context

2. The project (https://www.pleanala.ie/en-ie/case/317560) involves development of a wind

farm together with the development a 110kV substation, underground grid connection and a

hydrogen plant with an underground interconnector from the wind farm substation to the substation

in the hydrogen plant. The development will consist of 13 wind turbines in the townlands of

Carrowleagh, Carha, Carrownaglogh, Drumsheen, Rathreedaun, Ballyglass East, Bunnyconnellan

West, Cloonmeen West and Lavy More, Co. Mayo and a hydrogen plant in the townlands of Carraun,

Knockbrack, Ballymoghany, Muingwore and Cloonkeelaun, Co. Sligo.

3. As the inspector notes:

“2.1.1. The site is located in the northwest of Ireland, on the border of Mayo and Sligo

County Councils, in the Ox Mountains, close to the N59. Ballina is the nearest town. The

area has ten wind farms with 65 turbines within 20km of the site. The Carrowleagh Wind

Farm is adjacent to the site to the east. Please refer to the drawings submitted at oral

hearing, which demonstrate the placement of the proposed development in relation to the

existing turbines (6a-b 6129-ABP OH-001). These turbines are 99.5m to blade tip.

2.1.2. The site consists of two parcels of land, as well as the linear routes for the grid

connection and interconnector. The proposed wind farm is located in Mayo, near the county

boundary with Sligo. It consists of approximately 445 ha of cutover blanket bog. This bog

has over 620 individual turbary plots and is still harvested. The levels of the wind farm

turbines foundations are cited from 120m.O.D to 160m.O.D.

2.1.3. The proposed hydrogen plant is located in Sligo, on 6.5ha of agricultural land set back

from the N59, in the townland of Carraun. It is approximately 5.5km northeast of Ballina.

2.1.4. The underground grid connection is 6.65km from the proposed substation to the

Gleenree-Moy overhead line.

2.1.5. The interconnector underground cable route connects the substation to the hydrogen

plant substation and 8.2 km in length.”

Facts

4. A previous permission was granted for 21 turbines on this site, which has expired. The

present application is for a somewhat more modest development, something the applicants’

submissions didn’t particularly recognise.

5. On 6 July 2023, the planning application was submitted directly to the board on behalf of

Mercury Renewables (Carrowleagh) Limited (Mercury Renewables) for planning permission for a

strategic infrastructure development (SID) comprising 13 wind turbines, generating up to 78MW of

power, 110kV substation, underground grid connection and a hydrogen plant (which would generate

80MW of power) with an underground interconnector from the wind farm substation to the substation

in the hydrogen plant (the proposed development).

6. The applicants made submissions dated 1 September 2023.

7. Submissions and observations were made on the planning application to the board (including

from the applicants, Minister for Housing Local Government and Heritage and the Environmental

Protection Agency (EPA)) and, pursuant to the board’s request, a document entitled “Response to

Third Party Submissions and Observations” was submitted to the board in November 2023.

8. The notice party’s reply to observations is dated November 2023.

9. On 28 December 2023, the board made a request for further information (RFI) to Mercury

Renewables, which was responded to by letter dated 15 January 2024. The board invited a further

round of submissions and observations, and thereafter, Mercury Renewables was invited to submit

a further response to those submissions and observations, which it did in a document entitled

“Second Response to Third Party Submissions and Observations” dated March 2024.

10. The applicants made a further submission dated 19 January 2024.

11. The board assigned a senior inspector, Mary McMahon (the inspector), to report on the

planning application. The inspector chaired the oral hearing, prepared a report in relation to the

application dated 28 August 2024, in which she made a recommendation to the board to grant

permission for the proposed development and recorded that she had carried out a site inspection on

7 and 8 February 2024. Appendix 1 to the inspector’s report is the board ecologist report.

12. The notice party submitted a second reply to submissions dated March 2024.

13. An oral hearing was carried out on 20 and 21 March 2024.

14. Further information in respect of the blue line and/or the area of the biodiversity and

enhancement management plan was requested and advertised.

15. The first named applicant made a third submission dated 24 May 2024.

16. The notice party submitted a third reply to submissions in July 2024.

17. The inspector’s report is dated 28 August 2024.

18. The board direction (BD-018121-24) dated 8 November 2024, states that the submissions

on file and the inspector’s report were considered at a board meeting held on 6 November 2024

(BM-004502-24), and the board decided to grant permission generally in accordance with the

inspector’s recommendation.

19. On 19 November 2024, the board granted planning permission for the proposed

development subject to 36 conditions (ABP-317560-23).

Procedural history

20. The proceedings were issued on 22 January 2025.

21. The application for leave was listed for 27 January 2025. On that date, the applicants had

not yet uploaded their affidavits, and the amended statement of grounds remained in draft form.

The matter was adjourned to 10 February 2025.

22. On 10 February 2025, leave to apply for judicial review was granted. The applicants were

given a further three weeks to finalise and file the amended statement of grounds.

23. The applicants issued an originating notice of motion on 13 February 2025 with a return date

of 3 March 2025.

24. On 3 March 2025, the matter was listed in the List to Fix Dates and a date was duly assigned.

25. The board filed its opposition papers on 7 April 2025.

26. The notice party filed its opposition papers on 16 April 2025.

27. On 8 May 2025, the applicants wrote noting a typographical error in the pleadings and

requested that the board take certain steps, including that it explain its decision-making process so

as to facilitate the applicants’ instruction of an expert and to allow consideration of possible

amendments. On 9 May 2025, the request was refused.

28. The matter was listed for mention on 12 May 2025, when I directed that the applicants’

notice for particulars and affidavit be filed by close of business on the following Wednesday, 14 May

2025. The applicants’ submissions were due 16 May 2025 and were directed to be delivered in any

event.

29. The applicants served a notice for particulars on the board on 14 May 2025.

30. On 21 May 2025, the board replied to the notice for particulars.

31. On 26 May 2025, the applicants sought an extension on time for submissions, two affidavits,

the applicants’ reply and expert reply. According to the agreed directions, the affidavits were to be

filed by 2 May 2025 and the submissions by 7 May 2025. The affidavits had been served but unsworn

and unfiled, and I indicated that I would address the issue of filing at a later stage. The opposing

parties’ position was reserved as regards to replies.

32. The applicants served their submissions late, on 3 June 2025.

33. On 3 June 2025, the matter was listed for mention before Holland J. and new directions were

agreed.

34. The applicants issued a motion to amend their statement of grounds on 5 June 2025.

35. The board served its submissions and two sworn replying affidavits on 13 June 2025.

36. The notice party served its submissions on 13 June 2025.

37. On 18 June 2025, the commission substituted for the board by operation of law.

38. The applicants served their replying submissions on 19 June 2025.

39. The matter was heard on 24 June 2025. Judgment was reserved at the end of that hearing.

I would like to record my thanks to all of the lawyers involved for their unfailingly courteous,

professional and helpful assistance. As I have previously sought to make clear, insofar as any points

advanced are not being accepted in this or any other given judgment, that is solely to do with the

inherent merits of such points and is no reflection on those instructed to convey such points, a

distinction that most certainly should be, and I believe generally is in fact, self-evident to all

concerned.

40. On 8 July 2025, a draft of the present judgment was sent to the parties to give an opportunity

to identify any errors. The rules of engagement in such a situation are that the draft is without

prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever

content it considers appropriate. Any comments must be emailed to the relevant judicial assistant

and uploaded to ShareFile in writing prior to the listing date and should not be to reargue the

substance (submissions to that effect will be disregarded) but are confined to matters such as:

(a) informing the court as to whether a formal judgment is required, and if so on what

issues;

(b) informing the court as to whether a judgment might be oral or written or partly in

both modes;

(c) typographical, factual or legal errors in the decision;

(d) requesting the court to decide a point that, while obiter/ unnecessary to decide, is

one the party considers could beneficially be decided;

(e) identifying significant points that the party considers that the court was required to

address but has not;

(f) identifying points that the court proposes to address but that the parties consider it

unnecessary to address;

(g) in the event that the court proposes to place pivotal reliance on any authority or

material not previously adverted to, as opposed to where such material merely

reinforces a point that the court was making in any event, any comment as to why

such material should not lead to the proposed conclusion; and

(h) any suggestions as to the wording (as opposed to substance) of the decision if the

proposed wording causes any significant issue for a party for any identified reason.

41. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the listing date, whether comments are made or not. That period will not

be extended save in exceptional circumstances. All parties involved are requested to positively

confirm to the court the position including if they have no observations on the draft legitimately

falling within the foregoing parameters. Overall the draft judgment procedure is a concession which

parties can engage with but must do so with immediate dispatch, discipline and focus – it is not the

opening of a new phase of the litigation that gives rise to “an entitlement to elaborate procedures

at every point” (borrowing the point made by O’Donnell C.J. (Dunne, Charleton and Baker JJ.

concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para.

39).

42. The listing date for this purpose was to be Monday 14 July 2025 at 09:30.

43. The notice party helpfully identified some typographical errors, and also asked for a direction

that a final statement of grounds be filed “for good order” excluding sub-ground 84A which was not

permitted, which I am going to direct. The parties also agreed a minor adjustment to the proposed

arrangements for any consequential applications. Hence the present judgment is generally along

the lines of the draft.

Relief sought

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

“1. An Order of Certiorari quashing the decision of the Respondent, An Bord Pleanála of

19th November 2024 (Ref No. ABP-317560-23) to grant, subject to certain specified

conditions, (‘the Permission’) planning permission for a proposed windfarm development

including 13 no. wind turbines in Bunnyconnellan, Co. Mayo and hydrogen plant in

Castleconnor, Co. Sligo (‘the Proposed Development’)

2. Such Declaration(s) of the legal rights and/or the legal position of the Applicant and

(if and insofar as legally permissible and appropriate) persons similarly situated and/or of

the legal duties and/or legal position of the Respondent as this Honourable Court considers

appropriate.

3. If necessary, stay on the implementation of the Permission pending the

determination of the above-entitled proceedings.

4. A protective costs order pursuant to the Aarhus Convention and Section 50, including

Section 50B, of the Planning and Development Act 2000 and/or Section 3 of the Environment

(Miscellaneous Provisions) Act 2011 (as amended) and/or the Aarhus Convention

interpretative obligation in EU law, or otherwise.

5. An Order providing for the cost of these proceedings and related ancillary costs.”

Grounds of challenge

45. The core grounds of challenge are as follows:

“1. The Impugned Decision of the Board is invalid as it was made in breach of s.37G

and/ or s.171A and/or s.172 of the PDA 2000 and/or Article, 2, 3, 5, 8, 8a and Annex IV of

the EIA Directive as the Board failed to carry out a lawful EIA as it failed to adequately or

lawfully assess the environmental effects of the continuation of domestic turf cutting

(including GHG emissions and biodiversity and habitat loss) at the site during the lifespan of

the Permission and/or unlawfully concluded that it did not need to assess such effects as the

implementation of such restrictions would render the project infeasible and/or the Board

failed to lawfully assess the baseline and/or mitgation [sic] and/or offset measures.

2. The Impugned Decision is invalid as the Board breached s.37G of the PDA 2000

and/or failed to have regard to and/or misinterpreted the MDP22 and/or the Mayo Renewable

Energy Strategy 2012-20 and/or failed to take into account a relevant factor and/or took

into account an irrelevant factor when concluding that the imposition of conditions that

aimed to reduce or off set adverse environmental effects and/or would enhance positive

environmental effects of the Proposed Development would render the implementation of the

Proposed Development infeasible and/or impossible.

3. The Impugned Decision is invalid as the Respondent failed to comply with Art 2(3)

of the EIA Directive and ss. 173A(5) and 173D(3) of the PDA and the obligation to carry out

a joint assessment in that the Board failed to consult with the EPA and accordingly erred in

granting development consent for the project when it knew or ought to have known that no

proper EIA was conducted with respect to emissions to be discharged from the Proposed

Development. There was no co-ordinated and/or joint procedure with the EPA and when the

Respondent knew or ought to have known that contrary to Article 8a of the EIA no monitoring

regime for the water extraction and discharges from the works had been assessed. As there

was no adequate response to the request for the submission from the EPA the Board ought

to have refused the application on the basis of insufficient information. Furthermore, the

Board gave no, or no adequate reasons for deciding the application in the absence of a

response from the EPA.”

The impugned decision

46. The decision provides as follows:

“GRANT permission under section 37G of the Planning and Development Act 2000, as

amended, for the above proposed development in accordance with the said plans and

particulars based on the reasons and considerations under and subject to the conditions set

out below.

DETERMINE under section 37H(2)(c) the sum to be paid by the applicant in respect of costs

associated with the application as set out in the Schedule of Costs below.

Reasons and Considerations

In coming to its decision, the Board had regard to the following:

(a) The National Planning Framework - Ireland 2040;

(b) Directive (EU) 2023/2413 of the promotion of energy from renewable sources (RED III),

in particular the requirement for the State to set targets for the transport sector to utilise

non-biological renewable fuel sources by 2030;

(c) Section 15 of the Climate Action and Low Carbon Development (Amendment) Act, 2021;

(d) The National Energy Security Framework, 2022, which prioritises the development of a

hydrogen strategy to reduce reliance on fossil fuels, due to the risk of security of supply;

(e) The National Hydrogen Strategy, 2023, which provides guidance on how the hydrogen

industry may develop in Ireland in the future, but which does not provide a framework for

decision making in land-use planning;

(f) The Environmental Impact Assessment Directive (Directive 2014/52/EU), as amended,

on 16th day of April 2014, on the assessment of the effects of certain public and private

projects on the environment;

(g) The EU Habitats Directive (92/43/EEC);

(h) The European Union (Birds and Natural Habitats) Regulations, 2011-2015;

(i) The likely consequences for the environment and the proper planning and sustainable

development of the area where the proposed development is located and the likely

significant effects of the development on European Sites.

(j) The conservation objectives, qualifying interests and species of conservation interest in

the Ox Mountains Bogs Special Area of Conservation (Site Code: 002006), Killala Bay/Moy

Estuary Special Area of Conservation (Site Code: 000458), Killala Bay/Moy Estuary Special

Protection Area (Site Code: 004036) and River Moy Special Area of Conservation (Site Code:

002298);

(k) The Water Framework Directive, 2000/60/EC;

(l) The ‘Wind Energy Development Guidelines - Guidelines for Planning Authorities’, issued

by the Department of the Environment, Heritage and Local Government, in 2006;

(m) The ‘Draft Revised Wind Energy Development Guidelines, issued by the Department of

Housing, Planning and Local Government, in 2019;

(n) Regional Spatial and Economic Strategy for the Northern and Western Region, 2020;

(o) The Mayo County Development Plan, 2022 - 2028;

(p) The Sligo County Development Plan, 2017 - 2023, as extended and Draft Sligo County

Development Plan, 2024 - 2030, as adopted on the 30th day of September and which comes

into effect on the 11th day of November 2024;

(q) The Water Environment (Abstractions and Associated Impoundments) Act 2022, and the

volume of groundwater abstraction required by the proposed development;

(r) The submissions made in connection with the application, including the Health and Safety

Authority and Inland Fisheries Ireland;

(s) The nature and extent of the proposed works, as set out in the application and oral

hearing;

(t) The distance of both the proposed wind farm and hydrogen plant from dwellings and

other sensitive receptors;

(u) The impact on residential amenity;

(v) The report and recommendation of the person appointed by the Board to make a report

and recommendation on the matter, including the report from the Board’s ecologist.”

Some general principles

47. The present application involves a number of areas of law which have already been clarified

in previous jurisprudence, so it may be useful to set out some of the key points under a number of

headings as follows.

The climate context

48. Insofar as relevant, some relevant legal principles concerning the climate context which have

been rehearsed in previous caselaw include the following:

(i) The climate emergency represents a critical risk to human and natural life on earth.

There is already a vast and growing body of jurisprudence making this point. Of the

global or continental apex judicial bodies seized of the issue, all so far have

emphasised a binding legal obligation to address climate change: Verein

KlimaSeniorinnen Schweiz and Others v Switzerland (9 April 2024, App. no.

53600/20), International Tribunal for the Law of the Sea, Advisory opinion, Request

by Commission of Small Island States, 21 May 2024, Inter-American Court of Human

Rights, Request by Chile and Colombia, Opinión Consultiva Oc-32/25 De 29 de Mayo

de 2025. At the domestic level see Friends of the Irish Environment v. Government

of Ireland [2020] IESC 49, [2021] 3 I.R. 1, [2020] 2 I.L.R.M. 233, [2020] 7 JIC 3107

(Clarke C.J.) (Irvine P., O'Donnell, MacMenamin, Dunne, O'Malley and Baker JJ.

concurring).

(ii) Government policy is a relevant factor to be considered in the planning process: ss.

34(2)(a)(iv), 37(2)(b), 37N(4), 143(1) of the 2000 Act.

(iii) Government policy favours significant substitution of renewable energy for fossil fuel

consumption: see policies listed in Toole v. Minister for Housing (II) [2024] IEHC

610 (Unreported, High Court, 1 November 2024).

(iv) The National Planning Framework must be considered by the commission under

s. 143(1)(c), a framework that also supports the low carbon objective.

(v) Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009

on the promotion of the use of energy from renewable sources and amending and

subsequently repealing Directives 2001/77/EC and 2003/30/EC established

mandatory targets for the consumption of energy from renewable sources by

member states.

(vi) The Climate Action and Low Carbon Development Act 2015 as amended by the

Climate Action and Low Carbon Development (Amendment) Act 2021 provides for a

national carbon objective and for plans, strategies, frameworks and carbon budgets

to that effect together with a wide duty on public bodies to act consistently with the

legislation (ss. 14B and 15).

(vii) Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11

December 2018 on the Governance of the Energy Union and Climate Action,

amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European

Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC,

2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament

and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and

repealing Regulation (EU) No 525/2013 of the European Parliament and of the

Council (the Governance Regulation) was adopted to implement the Paris Agreement

commitments.

(viii) Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June

2021 establishing the framework for achieving climate neutrality and amending

Regulations (EC) No 401/2009 and (EU) 2018/1999 (the European Climate Law)

establishes the framework for achieving climate neutrality.

(ix) Council Regulation (EU) 2022/2577 of 22 December 2022 lays down a framework to

accelerate the deployment of renewable energy. Article 3(1) introduces a

presumption of overriding public interest for renewable energy projects for the

purpose of the birds, habitats and strategic environmental assessment (SEA)

directives, and provision is made for the acceleration of such projects.

(x) Directive (EU) 2023/2413 of the European Parliament and of the Council of 18

October 2023 amending Directive (EU) 2018/2001, Regulation (EU) 2018/1999 and

Directive 98/70/EC as regards the promotion of energy from renewable sources, and

repealing Council Directive (EU) 2015/652 also provides for a presumption of

overriding public interest and for accelerated timelines including requiring judicial

remedies to be the most expeditious available in national law.

(xi) In Verein KlimaSeniorinnen Schweiz and Others v Switzerland (9 April 2024, App.

no. 53600/20) the ECtHR found a violation of art. 8 of the ECHR which encompasses

a right to effective protection from the serious adverse effects of climate change.

There was a breach of the positive obligations thereby imposed in terms of

establishing a relevant domestic regulatory framework relating to budgeting for and

limiting emissions. The judgment is of relevance in domestic law via the European

Convention on Human Rights Act 2003.

Judicial review principles

49. Some relevant legal principles concerning judicial review which have been rehearsed in

previous caselaw include the following:

(i) Judicial review is concerned with the legality rather than the correctness of the

decision: per Clarke J. (Dunne J. concurring) in Sweeney v. Fahy [2014] IESC 50

(Unreported, Supreme Court, 31 July 2014) at paras. 3.8-3.15. It is not an appeal

on the merits and it is not for the court to substitute its view for that of the decision-

taker: per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal

[1986] I.R. 642 at p. 654 (Hamilton P. concurring); per Denham J. in Meadows v.

Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at p.

743; Lady Hale in R (Cart) v. Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 at

para. 47: “it is not difficult to dress up an argument as a point of law when in truth

it is no more than an attack upon ... factual conclusions”.

(ii) As Singh L.J. and Carr J. put it in R (Hoareau and Bancoult) v. Secretary of State for

Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), [2019] 1 W.L.R.

4105 at [326] (emphasis added): “Judicial review is not, and should not be

regarded as, politics by another means”. To put the same point another way,

the court must keep the separation of powers firmly in mind: Sinnott v. Minister for

Education [2001] IESC 63, [2001] 2 I.R. 545 (Keane C.J., Denham, Murphy, Murray,

Hardiman, Geoghegan and Fennelly JJ.); T.D. v. Minister for Education [2001] IESC

101, [2001] 4 I.R. 259 (Keane C.J., Denham, Murphy, Murray and Hardiman JJ.);

B. v. Child & Family Agency & Ors. [2025] IESC 2 (Unreported, Supreme Court,

Hogan J., 27 January 2025) (O’Donnell C.J., Murray, Collins and Donnelly JJ.

concurring), para. 62; consequently the courts must respect the principle that policy

choices are for other branches of government. To stray into policy fundamentally

distorts the process because: “The administrator is often concerned with broad

considerations of the public interest whereas the judge tends to focus on the claims

of the parties to the case before him” De Blacam, Judicial Review, 2nd ed, p. 97.

(iii) Insofar as concerns evaluative conclusions, the weight to be given to the evidence

is quintessentially a matter for the decision-taker: per Birmingham J. in M.E. v.

Refugee Appeals Tribunal [2008] IEHC 192 (Unreported, High Court, 27 June 2008)

at para. 27. Generally speaking evaluative judgements involving a significant degree

of planning judgement and not tainted by other procedural, legal or factual errors

are reviewable on an irrationality standard: Sherwin v. An Bord Pleanála [2024] IESC

13 (Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton, O’Malley,

Baker and Murray JJ. concurring); Barr J. in Graymount House Action Group v. An

Bord Pleanála [2024] IEHC 327 (Unreported, High Court, 31 May 2024), leave to

appeal refused in Graymount House Action Group v. An Bord Pleanála [2025]

IESCDET 22 (Dunne, Woulfe and Hogan JJ., 17 February 2025).

(iv) A decision must be read in a way that makes sense rather than nonsense if

such a reading is available. It is not the case that decisions must be read in the

most erroneous way possible so that applicants can get their order of certiorari (M.R.

(Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1

JIC 2903 (Unreported, High Court, 29 January 2020); Rostas v. DPP [2021] IEHC

60 (Unreported, High Court, 9 February 2021) at §50; St. Margaret’s Recycling v.

An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February

2024) at §57). Thus a decision should not be read as invalid if a valid reading

is reasonably available: see M.R. (Bangladesh) v. International Protection Appeals

Tribunal [2020] IEHC 41 (Unreported, High Court, 29 January 2020) at §7; Mulloy

v. An Bord Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12 March

2024) at §178 (citing O’Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported,

High Court, 1 November 2023)); Save Roscam Peninsula CLG v. An Bord Pleanála

(No. 6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024) at §64); thus for

example “unhelpful” statements should not be read as inconsistent with statutory

factors if the decision can be read as valid – E.M. v. Minister for Justice and Equality

[2024] IESC 3 (Unreported, Supreme Court, 21 February 2024) per Dunne J.

(Charleton, Woulfe, Murray and Donnelly JJ. concurring).

(v) It is not appropriate to engage in legalistic over-parsing or micro-analysis of

decisions, or of legal instruments generally, frequently based on semantic

querulousness: per Sullivan J. in R (Blewett) v Derbyshire County Council [2003]

EWHC 2775 (Admin), [2004] Env LR 29 at para. 41; R. (Friends of the Earth Ltd and

others) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021]

P.T.S.R. 190, [2020] 12 WLUK 212, Lord Hodge and Lord Sales SCJJ.; see also Walsh

v. Jones Lang Lasalle Ltd [2017] IESC 38 (Unreported, Supreme Court, 1 June 2017)

at para. 47; per O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in

O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at

para. 37. As stated by Peart J. in G.T. v. The Minister for Justice, Equality and Law

Reform, [2007] IEHC 287, [2007] 7 JIC 2708 (Unreported, High Court, 27 July

2007), para. 3: “It is not desirable that a decision be parsed and analysed word for

word in order to discern some possible infelicity in the choice of words or phrases

used and to hold that a finding of credibility adverse to the applicant is invalid, unless

the matters relied upon have been clearly misunderstood or mis-stated by the

decision maker. The whole of the decision must be read and considered in order to

reach a view as to whether, when the decision is read in its entirety and considered

as a whole, there was no reasonable basis for the decision maker reaching that

conclusion”. See also A.I.M.Z. v. Refugee Applications Commission & Ors. [2008]

IEHC 420, [2008] 11 JIC 0705 (Unreported, High Court, 7 November 2008) at para.

24 per Clarke J.; per McCarthy J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009]

IEHC 383, [2010] 7 JIC 2803 (Unreported, High Court, 28 July 2009), para. 13; per

Clark J. in Obuseh v. Minister for Justice, Equality and Law Reform & Ors. [2010]

IEHC 93, [2010] 1 JIC 1404 (Unreported, High Court, 14 January 2010), para. 21;

per MacEochaidh J. in Bondo v. Minister for Justice & Ors. [2012] IEHC 454, [2012]

11 JIC 0903 (Unreported, High Court, 9th November 2012), para. 24; per Barr J. in

P.M. v. Refugee Appeals Tribunal [2014] IEHC 497, [2014] 10 JIC 0204 (Unreported,

High Court, 2nd October 2014), para. 59; per Faherty J. in O.S. v. Refugee Appeals

Tribunal [2015] IEHC 839, 2015 WJSC-HC 25494, [2015] 12 JIC 1505 (Unreported,

High Court, 15 December 2015), para. 59; X.E. v. International Protection Appeals

Tribunal [2018] IEHC 402, [2018] 7 JIC 0405 (Unreported, High Court, Keane J., 4

July 2018); B.D.C. (Nigeria) v. International Protection Appeals Tribunal [2018]

IEHC 460, [2018] 7 JIC 2006 (Unreported, High Court, 20 July 2018), para. 7.

(vi) Relatedly, a decision must be read in the round and in its context. One has to view

an administrative decision in the round, and not place undue weight on semantic

quibbles in respect of micro-sub-elements of it: O.A.A. v. Minister for Justice,

Equality and Law Reform & Anor. [2007] IEHC 169, [2007] 2 JIC 0904 (Unreported,

High Court, Feeney J., 9 February 2007); J.B.R. v. Refugee Appeals Tribunal & Ors.

[2007] IEHC 288, [2007] 7 JIC 3110 (Unreported, High Court, Peart J., 31 July

2007); per Cooke J. in I.R. v. Minister for Justice [2009] IEHC 510, [2015] 4 I.R.

144 at p. 152; M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020]

IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 6. A

decision should be read not solely from an applicant’s point of view (an impossible

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

possible. One has to stand back and ask what the decision is fundamentally

saying (O’Donnell & Ors. v. An Bord Pleanála [2023] IEHC 381 (Unreported, High

Court, 1 November 2023), para. 54; St. Margaret’s Recycling v. An Bord Pleanála

[2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024) at §57).

(vii) It is not for the applicant to dictate the procedures to be adopted or the form

of a decision: see for example per Ryan P. (Peart and Hogan JJ. concurring) in A.B.

v. Minister for Justice and Equality [2016] IECA 48, [2016] 2 JIC 2602, 2016 WJSC-

CA 1525 (Unreported, Court of Appeal, 26 February 2016) at para. 43.

(viii) Judicial review is not an exercise in pointless formalism: see for example Okunade

v. Minister for Justice [2018] IESC 56, [2018] 11 JIC 1401 (Unreported, Supreme

Court, 14 November 2018) per O’Donnell J. (Clarke C.J. and O’Malley J. concurring)

at para. 21. It is not a game where the respondents can score as many goals as

they like, but if the applicant scores one goal, the game is over. The court must

make a balanced and reasonable assessment of the overall sustainability of

a decision, even if there is an argument for saying that limited parts of it are sub-

optimal: M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC

41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 21.

(ix) The distinction between matters subject to a comply-with obligation and

those subject to a have-regard-to obligation is foundational to administrative

law, and the latter must not be elevated into the former (nor the former diluted into

the latter): Cork County Council v. Minister for Housing [2021] IEHC 683, [2021] 11

JIC 1810 (Unreported, High Court, 18 November 2021), paras. 85-86; Mount Salus

Residents' Owners Management Company Limited by Guarantee v. An Bord Pleanála

& Ors. [2025] IEHC 14 (Unreported, High Court, 15 January 2025), paras. 55 to 56

per Holland J.

Onus of proof

50. Some relevant legal principles concerning the onus of proof which have been rehearsed in

previous caselaw include the following:

(i) With only defined and extremely limited exceptions, in judicial review the onus of

proof is on the applicant at all times: per Denham J. (Murray C.J. and Fennelly

J. concurring) in Meadows v. Minister for Justice, Equality and Law Reform [2010]

IESC 3, [2010] 2 I.R. 701 at p. 743; Cork County Council v. Minister for Housing,

Local Government and Heritage (No. 1) [2021] IEHC 683 (Unreported, High Court,

5 November 2021) at §57; Monkstown Road Residents Association v. An Bord

Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) at para. 96 per

Holland J.; that remains the case even when in a constitutional challenge it is proved

that constitutional rights have been interfered with: O’Doherty and Waters v. The

Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per

O’Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring)

at para. 116.

(ii) To put the same point another way, there is a presumption of validity for

administrative decisions: per Finlay P. in In re Comhaltas Ceoltóirí Éireann

(Unreported, High Court, 5 December 1977) and per Keane J. in Campus Oil v.

Minister for Industry and Energy (No. 2) [1983] I.R. 88 at 102; Grassridge v. Dun

Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High Court,

Holland J., 25 November 2024), para. 22.

(iii) The onus shifts only in defined special circumstances. For example, where an error

is demonstrated by an applicant, the onus shifts to opposing parties to show

that the error is harmless. An onus on a decision-taker in the administrative process

(e.g. to conduct a valid AA) does not convert into an evidential or any burden in the

judicial process to show that the decision is valid (for reasons explained in Sherwin

v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High Court, 27

January 2023) at para. 85).

(iv) The onus of proof does not shift to a developer merely because the decision-

taker does not defend the decision on a given point or generally. Such a rule

would be inconsistent with the Supreme Court’s finding in Ballyboden Tidy Towns

Group v. An Bord Pleanála & Ors. [2024] IESC 4 (Unreported, Supreme Court,

Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ.

concurring) that a developer can defend a permission even if the decision-taker does

not.

(v) In the context of a challenge to an environmental assessment, the onus of proof to

show, by evidence (normally expert evidence), or by demonstrating a flaw

on face of material, that AA/EIA was defective, or that there were factual

circumstances requiring a decision-taker to consider any other autonomous

obligation, lies on the applicant: R v. Crischuk, 2010 BCSC 716 (Barrow J.) at paras.

36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141; Reid v. An Bord Pleanála (No.

1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021),

para. 19; An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173,

[2022] 1 I.L.R.M. 281 per Hogan J. at para. 124 (O'Donnell C.J., Dunne, Charleton

and Woulfe JJ. concurring); Carrownagowan Concern Group v. An Bord Pleanála

[2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v) (leave to appeal

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

(Charleton, Collins and Donnelly JJ., 27 January 2025); Salmon Watch Ireland,

Inland Fisheries Ireland, Sweetman & Ors. v. Aquaculture Licences Appeals Board &

Ors. [2024] IEHC 421 (Unreported, High Court, Holland J., 12 July 2024), §1097;

Minoa Ltd v. An Bord Pleanála [2024] IEHC 704 (Unreported, High Court, Heslin J.,

10 December 2024), para. 333; onus to adduce evidence: Nagle View Turbine Aware

Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November

2024) at para. 115. Thus, apart from (i) failure to consider something that the

decision-taker was autonomously required to consider, (ii) patent flaw on the face

of the materials, or (iii) other legal error, inadequate consideration or failure to dispel

scientific doubt has to be established by admissible evidence (normally expert

evidence) in the judicial review showing either that reasonable doubt was created

by the material before the decision-taker at the time (albeit not limited to what was

adduced by the applicant specifically), or that such material even if uncontradicted

would on its face have created doubt in the mind of a reasonable expert: An Taisce

v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021] 7 JIC 0205 (Unreported, High

Court, 2 July 2021) at §7 and §8; Carrownagowan Concern Group v. An Bord

Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v), leave

to appeal refused: Carrownagowan Concern Group v. An Bord Pleanála [2025]

IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025); Kennedy v. An

Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024) at §105;

Roache v. An Bord Pleanála [2024] IEHC 311 (Unreported, High Court, Phelan J., 21

May 2024) at §117; Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported,

High Court, 7 October 2024) at 73; Ryanair DAC v. An Bord Pleanála [2025] IEHC

74 (Unreported, High Court, 14 February 2025) at §64 et seq.; analogously, Donegal

County Council v. Planree [2024] IECA 300 (Unreported, Court of Appeal, Butler J.,

18 December 2024), para. 141; Massey v. An Bord Pleanála (No. 2) [2025] IEHC

206 (Unreported, High Court, 11 April 2025). As noted in Nagle View Turbine Aware

Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November

2024), summarised in the non-precedential determination refusing leave to appeal

[2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10 March 2025) at para. 8,

“the critical point was that scientific and factual shortcomings in EIA or indeed in an

Appropriate Assessment, must be established by the applicant who bore the burden

of proof”. Similarly, leave to appeal was refused in Eco Advocacy v. An Bord Pleanála

[2025] IESCDET 74 (Dunne, Hogan and Donnelly JJ., 4 June 2025) where “The

applicant’s claim failed for the reason that the High Court accepted that the

respondent had come to a lawful conclusion of no doubt that an appropriate

assessment was not needed and that the respondent had given reasons for that

conclusion. On the judicial review the applicant had not displaced that conclusion by

way of evidence” (para. 25). That is consistent with the general law: O’Doherty and

Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M.

421 per O’Donnell C.J. (Irvine P., MacMenamin, O’Malley, Baker and Murray JJ.

concurring).

(vi) The onus of proof as to an inadequacy in the decision cannot be discharged by

mere assertion: Joyce Kemper v. An Bord Pleanála [2020] IEHC 601, [2020] 11

JIC 2402 (Unreported, High Court, Allen J., 24 November 2020) at §9; Murphy v.

An Bord Pleanála [2024] IEHC 59 (Unreported, High Court, Bolger J., 6 February

2024) at §14, nor does mere assertion create scientific doubt for AA purposes:

Harrington v. An Bord Pleanála [2014] IEHC 232, [2014] 5 JIC 0909 (Unreported,

High Court, O’Neill J., 9 May 2014); Murphy v. An Bord Pleanála [2024] IEHC 59

(Unreported, High Court, Bolger J., 6 February 2024) at §14; Duffy v. An Bord

Pleanála [2024] IEHC 558 (Unreported, High Court, Holland J., 27 September 2024)

at §40-§41.

(vii) If demonstration of error depends on expert opinion, the onus of demonstration in

that regard cannot be discharged by non-expert views articulated by or on

behalf of an applicant. Such an exercise in ultracrepidarianism is generally

inadmissible on standard evidential principles insofar as matters of opinion are

concerned: Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High

Court, 11 April 2025).

(viii) Where there is a conflict of admissible evidence, in the absence of cross-examination

then such a conflict must generally be resolved against the party carrying the

onus of proof: RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC

4, [2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273 (Clarke C.J.) (O’Donnell, MacMenamin,

Dunne and Finlay Geoghegan JJ. concurring). That is normally the applicant but in

the case of an opposing party asserting that a demonstrated error is harmless, the

conflict will be resolved against the opposing party.

(ix) That said, while conflict between equally inherently credible averments, with no

cross-examination, is generally resolved against the party carrying the onus of proof,

a court is not always obliged to regard all averments as being equally

credible, or to disregard internal or evident problems with them (see by

analogy the manner in which the Supreme Court considered it was entitled to prefer

an affidavit over even oral evidence in Koulibaly v. Minister for Justice, Equality and

Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court,

Denham J. (Geoghegan and McCracken JJ. concurring), 29 July 2004)). Among the

matters to which regard might be had would be included the failure to explain

patently relevant questions that are clearly within that party’s responsibility (Doorly

v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022) at para.

137). This specific and common sense power of the court to evaluate inherent

defects in evidence remains notwithstanding caselaw on cross-examination such as

RAS Medical or Re Bayview Hotel (Waterville) Limited [2022] IEHC 516 (Unreported,

High Court, Butler J., 8 September 2022). This is consistent by analogy with the

judgment of Hardiman J. in DPP v. Barnes [2006] IECCA 165 at para. 95 – the court

of finder of fact is “not ... constrained” to accept “the only account available” even

if that account is provided by oral evidence.

Pleading principles

51. Some relevant legal principles concerning pleading requirements which have been rehearsed

in previous caselaw include the following:

(i) Applicants are confined to their pleadings: A.P. v. Director of Public

Prosecutions [2011] IESC 2, [2011] 1 I.R. 729, [2011] 2 I.L.R.M. 100, [2011] 1 JIC

2501 (Denham J. and Fennelly J., Murray C.J., Hardiman J. and Finnegan J.

concurring); Khashaba v. Medical Council [2016] IESC 10, [2016] 3 JIC 0701, 2016

WJSC-SC 12280 per O’Malley J. (Denham C.J. and Clarke J. concurring) at para. 56;

Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC

42, [2021] 7 JIC 1606 (Unreported, Supreme Court, Baker J., 16 July 2021) (Clarke

C.J., O'Donnell, MacMenamin and Dunne JJ. concurring) at §§29 and 31; Concerned

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

[2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024) per Murray J. at paras.

39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). The rules

of pleading are well-established, clear and mandatory, and are of particular

importance in a context of special complexity such as technical EU-heavy areas of

planning law; while exact specification of every jot and tittle of a case is an

impossible standard, an applicant can only be permitted to advance at a hearing a

point that is acceptably clear from the express terms of the statement of grounds,

subject to the grant of any order allowing an amendment: Reid v. An Bord Pleanála

(No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High Court, 24 January

2024).

(ii) Pleading requirements in judicial review are “stringent”, allowing “little room

for manoeuvre”: People Over Wind & Anor. v. An Bord Pleanála & Ors. (No. 1) [2015]

IEHC 271, [2015] 5 JIC 0106 (Unreported, High Court, Haughton J., 1 May 2015).

“It shall not be sufficient for an applicant to give as any of his grounds for the

purposes of paragraphs (ii) or (iii) of sub-rule (2)(a) an assertion in general terms

of the ground concerned, but the applicant should state precisely each such ground,

giving particulars where appropriate, and identify in respect of each ground the facts

or matters relied upon as supporting that ground”: Order 84 r. 20(3) RSC. “If on

the Grounds pleaded there is genuine ‘doubt, ambiguity or confusion’ an Applicant

in Judicial Review cannot have the benefit of it”, per Holland J. in Ballyboden Tidy

Towns Group v. An Bord Pleanála & Ors. [2022] IEHC 7, [2022] 1 JIC 1001

(Unreported, High Court, 10 January 2022) at para. 308.

(iii) Complex EU law arguments need to be articulated with particular clarity. It

is particularly important, in the case of an allegation of a failure properly to transpose

an obligation under EU law, that the requirements of O. 84, r. 20(3) be observed:

Rushe v. An Bord Pleanála [2020] IEHC 122, [2020] 3 JIC 0502 (Unreported, High

Court, 5 March 2020) per Barniville J.; Sweetman v. An Bord Pleanála (Sweetman

XV) [2020] IEHC 39, [2020] 1 JIC 3104 (Unreported, High Court, 31 January 2020),

per McDonald J. at para. 103 (cited with approval by Murray J. (O'Donnell C.J.,

Woulfe, Collins and Donnelly JJ. concurring) in Concerned Residents of Treascon and

Clondoolusk v. An Bord Pleanála [2024] IESC 28, [2024] 7 JIC 0402 (Unreported,

Supreme Court, 4 July 2024)); attempts to launch for example non-transposition

claims not set out on the pleadings are impermissible: Alen-Buckley v. An Bord

Pleanála [2017] IEHC 311, [2017] 5 JIC 1211 (Unreported, High Court, Costello J.,

12 May 2017).

(iv) Recital of high-level principles does not create certiorari by osmosis – an applicant

must specify a route-map connecting the particular factual problem alleged with

the particular relief sought via a chain of reasoning: Ballyboden Tidy Towns v. An

Bord Pleanála [2021] IEHC 648 (Unreported, High Court, 7 January 2022), para. 20;

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

Twomey J., 24 January 2023), paras. 71-72; Stapleton v. An Bord Pleanála & Savona

[2024] IEHC 3 (Unreported, High Court, Holland J., 13 February 2024), para. 124.

(v) Scattergun pleadings are open to being viewed as “a witch’s brew designed to

spread maximum confusion and to permit any argument to be made at the hearing

that ingenuity can suggest”: Hellfire Massy Residents Association v. An Bord Pleanála

[2022] IESC 38, [2024] 1 I.R. 386, [2022] 10 JIC 2402 per O’Donnell C.J. at para.

22 (Dunne, Woulfe, Hogan and Murray JJ. concurring). MacMenamin J. (Fennelly

and Clarke JJ. concurring) in Babington v. Minister for Justice Equality and Law

Reform & Ors. [2012] IESC 65 (Unreported, Supreme Court, 18 December 2012)

referred to the pleading requirements in judicial review and said at para. 7:

“Regrettably, these explicit stipulations are frequently not complied with, and the

same grounds are set out in as many different, varying, (and wearying)

reformulations of the same point as can be conceived. Practitioners should realise

that, in this entirely counterproductive and unnecessary process, there is a real risk

of not being able to see the wood for the trees. A good point does not gain force by

repetition”.

(vi) While the court has jurisdiction to grant unpleaded reliefs it can allow such relief

only within the contours of the case as defined by the pleaded grounds:

Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC

28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024), para. 42 per

Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). Therefore a

court can’t grant relief if there is no supporting ground for it.

(vii) A court only decides points that are not academic, and that are properly

pleaded and actually in dispute between the parties, and even then only

when it is necessary and appropriate to do so: Friends of the Irish Environment

v. Government of Ireland [2023] IEHC 562, [2023] 10 JIC 1904 (Unreported, High

Court, 19 October 2023) at §117.

(viii) Provided that the point is acceptably clear, it is not necessary that the specific

provisions of national or EU law relied on are expressly enumerated if they

are implicitly identifiable with acceptable clarity: Eco Advocacy CLG v. An Bord

Pleanála (No. 4) [2023] IEHC 713 (Unreported, High Court, 18 December 2023);

Kennedy & Anor. v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7

October 2024), para. 132; Leech v. An Bord Pleanála [2024] IEHC 599 (Unreported,

High Court, Farrell J., 12 November 2024); Mount Salus Residents' Owners

Management Company Limited by Guarantee v. An Bord Pleanála & Ors. [2025]

IEHC 14 (Unreported, High Court, Holland J., 15 January 2025), para. 39. The

standard is acceptable clarity, not express enumeration.

(ix) As noted by the Court of Appeal in Carvill v. An Bord Pleanála [2025] IECA 84

(Unreported, Court of Appeal, Barniville P., Collins and Faherty JJ., 11 April 2025)

at para. 148, where a developed pleading objection is made, the court isn’t

supposed to accept the point made by the applicant without first addressing

the objection. That said, the court can reject a point without deciding the pleading

objection if it fails either way.

Amendment of pleadings

52. Some relevant legal principles concerning amendment of pleadings which have been

rehearsed in previous caselaw include the following:

(i) amendment requires a demonstration of three criteria in the context of the

interests of justice – arguability (to the standard of substantial grounds if s. 50 of

the 2000 Act applies), lack of irremediable prejudice and explanation: B.W. v.

Refugee Appeals Tribunal [2015] IEHC 725 [2015], 11 JIC 1703 (Unreported, High

Court, 17 November 2015) (an approach to amendment upheld on appeal, B.W. v.

Refugee Appeals Tribunal [2017] IECA 296, [2018] 2 I.L.R.M. 56, para. 78); Keegan

v. Garda Síochána Ombudsman Commission [2012] IESC 29, [2012] 2 I.R. 570 per

Fennelly J. at paras. 29 and 47; see also O’Neill v. Appelbe [2014] IESC 31

(Unreported, Supreme Court, 10 April 2014) per O’Donnell J. at para. 14; Habte v.

Minster for Justice (No. 1) [2019] IEHC 47 (Unreported, High Court, 4 February

2019));

(ii) as regards prejudice, while the responding party will virtually always claim

prejudice, this is normally not irremediable if it can be remedied by adjournment or

in costs terms (Lynch J. in DPP v. Corbett [1992] I.L.R.M. 674, Moorehouse v.

Governor of Wheatfield Prison [2015] IESC 21 (Unreported, Supreme Court, 5 March

2015));

(iii) having to deal with a potentially winning point that was not originally included does

not constitute irremediable prejudice (follows from Keegan);

(iv) irremediable prejudice to third parties who are affected by an impugned decision

may be a factor against allowing an amendment; while amendments that do not

substantially enlarge the proceedings, or merely particularise what is implicit, may

be readily granted, the fact that the amendment substantially enlarges the

proceedings is not a bar to allowing an amendment (Y.Y. v. Minister for Justice and

Equality [2017] IESC 61, [2018] 1 I.L.R.M. 109, and see the result in Keegan);

(v) if an amendment introduces a new evidential contest, that may be a factor against

allowing it, especially if made at a late stage such as to derail a hearing and cause

significant delay in finalising the proceedings; in such a case the court’s assessment

of the balance of justice must factor in any harm to the interests of justice by reason

of such delay; but nonetheless, delay is not without more a bar to an amendment,

and the power to amend can be exercised during the trial, after judgment is

reserved, or at any time up to perfection of the final order (Wildgust v. Bank of

Ireland [2000] IESC 10, [2001] 1 I.L.R.M. 24 (McGuinness J.); J.K. (Uganda) v.

Minister for Justice and Equality [2011] IEHC 473 (Unreported, High Court, Hogan

J., 13 December 2011));

(vi) as regards explanation, while the court can take certain matters directly from

lawyers for the amending party, such as an admission of oversight (as in Keegan),

any factually based explanation needs to be provided on affidavit (as with any other

factual proposition being put before the court); and

(vii) as regards whether to amend or bring separate proceedings to challenge a

new administrative decision in the matter, if the proposed new claim is one that

could otherwise be pursued by separate proceedings, the potential saving in costs

and likelihood of a more just and convenient disposition of the issues by dealing with

all related matters in the one set of proceedings is a factor in favour of allowing the

amendment (Clifford v. Minister for Education and Science [2005] IEHC 288

(Unreported, Budd J., 10 June 2005); Y.Y. v. Minister for Justice and Equality [2017]

IESC 61, [2018] 1 I.L.R.M. 109, paras. 22 and 84).

Impermissibility of esprit d’escalier points

53. Some relevant legal principles concerning the duty to make one’s case to the decision-taker

which have been rehearsed in previous caselaw include the following:

(i) in general terms, the validity of a decision is to be viewed through the prism of

the material before the decision-taker at the relevant time, and not with the

benefit of further evidence in hindsight, although there are defined exceptions:

I.S.O.F. v. Minister for Justice, Equality and Law Reform [2010] IEHC 457

(Unreported, High Court, Cooke J., 17 December 2010); Jahangir v. Minister for

Justice and Equality [2018] IEHC 37, [2018] 2 JIC 0102 (Unreported, High Court, 1

February 2018); M.H. (Bangladesh) v. Refugee Appeals Tribunal [2018] IEHC 496,

[2018] 6 JIC 2607 (Unreported, High Court, 26 June 2018); B.D. (Bhutan and Nepal)

v. Minister for Justice and Equality [2018] IEHC 461, [2018] 7 JIC 1709 (Unreported,

High Court, 17 July 2018); A.J.A. (Nigeria) v. International Protection Appeals

Tribunal [2018] IEHC 671, [2018] 11 JIC 1403 (Unreported, High Court, 14

November 2018); O.A. (Nigeria) v. International Protection Appeals Tribunal [2018]

IEHC 661, [2018] 11 JIC 2003 (Unreported, High Court, 20 November 2018); De

Souza v. Minister for Justice and Equality [2019] IEHC 440, [2019] 6 JIC 0407

(Unreported, High Court, 4 June 2019); Ratushnyak v. Minister for Justice and

Equality [2019] IEHC 619 (Unreported, High Court, 16 August 2019) per Keane J.

at paras. 35 to 36; J.W. v. Minister for Justice and Equality [2020] IEHC 500, [2020]

10 JIC 1501 (Unreported, High Court, 15 October 2020); Reid v. An Bord Pleanála

[2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021);

Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303, [2021] 5 JIC 0706

(Unreported, High Court, 7 May 2021) at para. 87; Google v. Data Protection

Commission [2024] IEHC 577 (Unreported, High Court, Barr J., 11 October 2024);

(ii) the doctrine that the decision-maker should be given a fair chance to consider any

relevant issue is however flexible enough to allow for certain exceptions, where

someone else has put the issue up or where the issue would be apparent to a

reasonable expert body or otherwise something the decision-taker would be required

to consider autonomously;

(iii) it follows that if the consideration of something isn’t an autonomous obligation, and

if nobody in the process raises that something, then belatedly introducing the

point in judicial review is not generally a plausible or permissible basis for quashing

a decision: North Great Georges Street Preservation Society v. An Bord Pleanála

[2023] IEHC 241 (Unreported, High Court, 15 May 2023), though see exceptions

specified in Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230 (Unreported, High

Court, 12 April 2021) – if such exceptions apply then the court can potentially receive

new evidence;

(iv) where the complaint is of breach of EU law, the issue need not have been put to

the decision-taker: judgment of 15 October 2015, European Commission v Federal

Republic of Germany, C-137/14, ECLI:EU:C:2015:683; however failure to do so may

render the challenge empty and devoid of any prospect of success if there was

otherwise no basis for the decision-taker to have considered the pleaded point; and

(v) it follows a fortiori that if an applicant not only fails to make the point to the decision-

taker but makes a contrary point, that is disqualifying in terms of permitting an

applicant to obtain an order quashing a decision on such an inconsistent basis (see

Clifford v. An Bord Pleanála [2021] IEHC 459 (Unreported, High Court, 12 July

2021), para. 52(ii) where landowners tried to object to a condition that had been

inserted on foot of their own substantive submissions).

Reasons

54. Key elements of the law relating to reasons include:

(i) The standard is the obligation to provide the main reasons on the main issues:

Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 45 (Clarke C.J.)

(O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Balscadden Road

SAA Residents Association Ltd. v. An Bord Pleanála (No. 1) [2020] IEHC 586, [2020]

11 JIC 2501 (Unreported, High Court, 25 November 2020); Atlantic Diamond v. An

Bord Pleanála [2021] IEHC 322 (Unreported, High Court, 14 May 2021); Grassridge

v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High

Court, Holland J., 25 November 2024), para. 59; Pat O’Donnell v. Dublin City Council

[2024] IEHC 671 (Unreported, High Court, Holland J., 26 November 2024), para.

129; per Barr J. in Graymount House Action Group v. An Bord Pleanála [2024] IEHC

327 (Unreported, High Court, 31 May 2024), leave to appeal refused in Graymount

House Action Group v. An Bord Pleanála [2025] IESCDET 22 (Dunne, Woulfe and

Hogan JJ., 17 February 2025); see also non-precedentially Morris v. An Bord

Pleanála [2025] IESCDET 25 (Dunne, Woulfe and Hogan JJ., 17 February 2025);

reasons are to be understood in context of the “Broad issues” – Finlay C.J. (Griffin,

Hederman and Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993] 1 I.R.

39, [1992] I.L.R.M. 237 at p. 76 or “Broad gist” – Faulkner v. Minister for Industry

and Commerce 1997 WJSC-SC 962, [1996] 12 JIC 1007 (Unreported, Supreme

Court, 10 December 1996) per O’Flaherty J. (Hamilton C.J. and Barrington J.

concurring).

(ii) Certain issues are objectively main reasons given the nature of the process

or decision at issue – for example if it is in dispute as to whether key statutory

criteria for the decision have been satisfied. By way of other example, where the

commission is disagreeing with a council (Sherwin v. An Bord Pleanála [2023] IEHC

26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023)) or with its own

inspector (Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303 (Unreported,

High Court, 7 May 2021)) on a point on which the grant or refusal of permission

turns, such an issue is virtually by definition a main issue, speaking objectively, such

that a decision not to give reasons on it would be held to be erroneous.

(iii) As to what are the main issues arising from submissions of interested parties,

the decision in Friends of the Irish Environment CLG & Anor. v. Minister for Housing,

Local Government and Heritage & Ors. [2025] IECA 128 (Unreported, Court of

Appeal, 5 June 2024) is clear that, per Hyland J. (Costello P. and Collins J.

concurring) at para. 148, it is for the decision-taker in the first instance to decide

whether submissions raise relevant issues. Failure to address an issue in a

submission can be challenged in the normal way.

(iv) There is no obligation to provide a discursive, narrative consideration or to

“engage with” submissions in such a sense, or to provide an issue-by-issue or

submission-by-submission response: see Oguekwe v. Minister for Justice, Equality

and Law Reform [2008] IESC 25, [2008] 3 I.R. 795, per Denham J. (Murray C.J.,

Fennelly, Kearns and Finnegan JJ. concurring) referring to the lack of a need for a

“micro specific format” (at p. 819); per Clarke J. (Fennelly and MacMenamin JJ.

concurring) in Rawson v. Minister for Defence [2012] IESC 26 (Unreported, Supreme

Court, 1 May 2012) at para. 6.9, referring to the need for a “reasoned but not

discursive ruling”.

(v) Reasons may be found anywhere, not necessarily in the decision itself, for

example in an inspectors report: Connelly v. An Bord Pleanála [2018] IESC 31,

[2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, para. 9.2 per Clarke C.J. (O’Donnell,

Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Sherwin v. An Bord Pleanála

[2024] IESC 13 (Unreported, Supreme Court, 11 April 2024) per Woulfe J.

(Charleton, O’Malley, Baker and Murray JJ. concurring) at para. 129; thus no

additional requirement for reasons is required when adopting a reasoned report (for

example of a chief executive or indeed an inspector): Killegland Estates v. Meath

County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July

2022) at para. 65; Pat O’Donnell v. Dublin City Council [2024] IEHC 671

(Unreported, High Court, Holland J., 26 November 2024) at para. 144, Shadowmill

v. An Bord Pleanála [2023] IEHC 157, Holland J., para 84.

(vi) Reasons may be implicit from the context, for example it can be implicit that

matters submitted were held not to be outweighing when placed against factors

supporting the conclusion arrived at: Rana v. Minister for Justice [2024] IESC 46

(Unreported, Supreme Court, O’Malley J., 18 October 2024), paras. 96-99 (Dunne,

Hogan, Collins and Donnelly JJ. concurring).

(vii) There is no obligation to state reasons for what is obvious: Killegland Estates

v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High

Court, 1 July 2022) (from which the Supreme Court dismissed an appeal, [2023]

IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023) (O’Donnell C.J.,

Charleton, O’Malley, Baker, Woulfe and Donnelly JJ. concurring)), para. 83;

Industrial Development Agency v. Information Commissioner [2024] IEHC 649

(Unreported, High Court, Phelan J., 15 November 2024), para. 132.

(viii) There is no obligation to give reasons for rejecting a legally incorrect point:

see Ironborn v. Dun Laoghaire Rathdown County Council [2023] IEHC 477

(Unreported, High Court, Mulcahy J., 31 July 2023)). Reasons are tied into the

exercise of evaluation and judgement, so if the latter do not arise then neither does

the former – thus there is no need for reasons if there is in fact no evaluation

by the decision-taker - if the issue is correctly applying a mandatory, non-

discretionary, non-evaluative, legal rule, a valid decision does not become invalid

due to failure to explain the law or indeed to give reasons for the rejection of a

legally incorrect submission.

(ix) There is generally no obligation to give reasons for not changing one’s mind

from a previously articulated position absent a significant change in circumstances

or a significant new point: Killegland Estates v. Meath County Council [2022] IEHC

393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022), para. 67; Pat

O’Donnell v. Dublin City Council [2024] IEHC 671 (Unreported, High Court, 26

November 2024), para. 145 per Holland J.

(x) A decision should not be quashed for lack of reasons if nobody could be in any

real doubt as to what the reasons were: Killegland Estates v. Meath County Council

[2023] IESC 39, [2023] 12 JIC 2109 (Unreported, Supreme Court, 21 December

2023) per Hogan J. (O’Donnell C.J., Charleton, O’Malley, Baker, Woulfe and Donnelly

JJ. concurring).

(xi) If some reasons are good and others are bad, the decision may be severable if the

good reasons are stand-alone (Murtagh v. An Bord Pleanála [2023] IEHC 345

(Unreported, High Court, Owens J., 29 March 2023), Ironborn v. Dun Laoghaire

Rathdown County Council [2023] IEHC 477 (Unreported, High Court, Mulcahy J., 31

July 2023)), but not if there is a certain link between the reasons (Element Power

[2017] IEHC 550 (Unreported, High Court, Haughton J., 28 September 2017)).

(xii) Reasons should not be created ex post facto: K v. Minister for Justice [2022]

IEHC 582 (Unreported, High Court, Bolger J., 21 October 2022), Ballindooley

Developments Limited v. Minister for Housing Local Government and Heritage & Ors.

[2025] IEHC 109 (Unreported, High Court, Holland J., 20 February 2025), although

reasons that existed at the relevant time can be evidenced after the event if

appropriate: RPS Consulting Engineers Ltd v. Kildare County Council [2015] IEHC

113, [2017] 3 I.R. 61 at para. 109.

Inadequacy of assessments

55. Some relevant legal principles regarding inadequacy of assessments which have been

rehearsed in previous caselaw include the following:

(i) Standard of assessment: AA must, by reference to best scientific knowledge,

dispel all reasonable scientific doubt as to adverse effects on European sites (art. 6

habitats directive); EIA must be as complete as possible: judgment of 3 March 2011,

Commission v Ireland, C-50/09, ECLI:EU:C:2011:109.

(ii) As with any evaluative conclusion by a decision-taker, the AA evaluation is one

in the first instance for the decision-taker: Lord Carnwath in R. (on the

application of Champion) v. North Norfolk District Council [2015] UKSC 52, [2015]

1 W.L.R. 3170 at para. 41; per Sales L.J. in Smyth v. Secretary of State for

Communities and Local Government [2015] EWCA Civ 174, [2015] P.T.S.R. 1417 at

para. 83; judgment of 7 November 2018, Holohan v An Bord Pleanála, C-461/17,

ECLI:EU:C:2018:883 at para. 44; R. (on the application of Wyatt) v. Fareham

Borough Council [2022] EWCA Civ 983, [2023] P.T.S.R. 1952, [2022], 7 W.L.U.K.

197, [2023] Env. L.R. 14.

(iii) Ultimately it is for the national courts to carry out a thorough and in-depth

examination of the scientific soundness of the AA: judgment of 7 November 2018,

Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College

van gedeputeerde staten van Limburg and College van gedeputeerde staten van

Gelderland, joined cases C-293/17 and C-294/17, ECLI:EU:C:2018:882 at para.

101.

(iv) While the standard for the decision-taker’s carrying out of AA is removal of

reasonable scientific doubt as to effects on the integrity of European sites by

reference to their conservation objectives, and by the application of best scientific

knowledge, that does not require the decision-taker to disprove “any effect

whatsoever”, matters having “no appreciable effect”, or “hypothetical

risk”: opinion of Advocate General Kokott of 29 January 2004 in Landelijke

Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot

Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij,

paras. 102-106; judgment of 7 November 2018, Holohan v An Bord Pleanála, C-

461/17, ECLI:EU:C:2018:883 at paras. 33–37; Holland J. in Heather Hill

Management Company CLG v. An Bord Pleanála [2022] IEHC 146, [2022] 3 JIC 1603

(Unreported, High Court, 16 March 2022), citing R Mynydd Y Gwynt Ltd v. The

Secretary of State for Business, Energy and Industrial Strategy [2016] EWHC 2581

(Admin), [2016] 10 W.L.U.K. 396, [2017] Env. L.R. 14 (at para. 259). Absence of

reasonable doubt therefore does not mean “absolute certainty” (paras. 44, 58, 59,

and 61 of the CJEU's judgment and paras. 102 to 108 of the Advocate General's

opinion in Waddenzee, and the judgment in Holohan, at paras. 33-37, Lord Carnwath

in R. (on the application of Champion) v. North Norfolk District Council [2015] UKSC

52, [2015] 1 W.L.R. 3170 at para. 41).

Assessment where multiple consents involved/ project-splitting

56. Key elements of the law relevant to an assessment involving multiple consents include:

(i) Article 1(2)(c) of the EIA directive expressly envisages that multiple authorities may

be involved in a consent (and hence that the overall project can occur in multiple

stages. It defines ‘development consent’ as (emphasis added) “the decision of the

competent authority or authorities which entitles the developer to proceed with

the project”. Thus there is no EU obligation to centralise all EIA functions in

one decision-maker. Multiple authorities are clearly permissible, as indeed is

evident in the text of the 2011 directive itself. There is no obligation to transpose

EIA into the planning legislative regime but only into the overall legislative regime:

Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála (No. 1)

[2022] IEHC 700 (Unreported, High Court, 16 December 2022) para. 55, Concerned

Residents of Treascon and Clondoolusk v. An Bord Pleanála (No. 2) [2023] IEHC 112

(Unreported, High Court, 10 March 2023), Concerned Residents of Treascon and

Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court,

Murray J., 4 July 2024), para. 82.

(ii) The project as a whole must be considered for EIA purposes – even if this

goes beyond the project for which consent is sought. Thus for example if consent is

sought for a sub-threshold project which is part of a supra-threshold project

(whether already part-consented in successive phases, or involving separate consent

applications in process or yet to be made) then the project for which consent is

sought must be treated as supra-threshold if either:

i. an EIA was not carried out initially and thus an EIA that would otherwise be

required would be avoided by the splitting: judgment of 21 September 1999,

Commission of the European Communities v Ireland, C-392/96,

ECLI:EU:C:1999:431; judgment of 16 September 2004, Commission v

Spain, C-227/01, ECLI:EU:C:2004:528; judgment of 17 March 2011,

Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest, C-275/09,

ECLI:EU:C:2011:154; judgment of 21 March 2013, Salzburger Flughafen

GmbH v Umweltsenat, C-244/12, ECLI:EU:C:2013:203; judgment of 11

February 2015, Marktgemeinde Straßwalchen and Others v Bundesminister

für Wirtschaft, Familie und Jugend, C-531/13, ECLI:EU:C:2015:79;

judgment of 25 May 2023, WertInvest Hotelbetriebs GmbH, C-575/21,

ECLI:EU:C:2023:425; or

ii. an EIA was carried out initially but the part of the project being consented

has significant unassessed effects on the environment in conjunction with

another part that has already been subjected to EIA such that the combined

effects were not all assessed initially: judgment of 4 May 2006, Commission

v United Kingdom, C-508/03, ECLI:EU:C:2006:287.

(iii) Whether sub-projects are part of a larger project primarily relates to “their

geographical proximity, their similarities and their interactions” judgment of

25 July 2008, Ecologistas en Acción-CODA v Ayuntamiento de Madrid, C-142/07,

ECLI:EU:C:2008:445, para. 45.

(iv) Nonetheless, there are situations in which otherwise functionally unrelated projects

need to be considered collectively for threshold purposes (piecemeal peat harvesting

in Ireland; accumulated urban development in Austria, for example) if significant

effects on the environment by sub-threshold projects would otherwise go

unassessed. See the judgment of 21 September 1999, Commission of the

European Communities v Ireland, C-392/96, ECLI:EU:C:1999:431, paras. 76 and

82; judgment of 25 May 2023, WertInvest Hotelbetriebs GmbH v Magistrat der Stadt

Wien, C-575/21, ECLI:EU:C:2023:425; Byrne v. Fingal County Council [2025] IEHC

204 (Unreported, High Court, 11 April 2025).

(v) As regards the relationship with other projects falling outside the “project as a

whole”, the cumulative and in-combination effects must still be considered

as part of any EIA screening or EIA itself, even in relation to different types of

projects: judgment of 11 February 2015, Marktgemeinde Straßwalchen and Others

v Bundesminister für Wirtschaft, Familie und Jugend, C-531/13,

ECLI:EU:C:2015:79,.

(vi) In-combination effects are likely to require consideration of applications not yet

consented: Toole v. Minister for Housing, Local Government & Heritage (No. 7)

[2023] IEHC 716 (Unreported, High Court, 21 December 2023), European

Commission, Environmental Impact Assessment of Projects: Guidance on the

preparation of the Environmental Impact Assessment Report (2017), in particular,

part B, section 1.4.3.

(vii) In principle there is nothing premature about submitting an application for

part of a project: 100 Meter Tall Group v. An Bord Pleanála [2025] IEHC 42

(Unreported, High Court, 31 January 2025), paras. 168-169. However the whole

project may require assessment in the context of submitting a partial application,

insofar as effects can be identified at that time.

Statutory interpretation

57. While there are extensive authorities on statutory interpretation, the following really central

points should be stressed:

(i) While the starting point is the text, this should be considered in its legislative context

and having regard to the statutory purpose(s): in Heather Hill Management

Company v. An Bord Pleanála [2022] IESC 43, [2022] 2 I.L.R.M. 313 at §106 per

Murray J., language, context and purpose are potentially in play in every exercise in

statutory interpretation, none ever operating to the complete exclusion of the other:

A, B, & C v. Minister for Foreign Affairs and Trade [2023] IESC 10, [2023] 1 I.L.R.M.

335, Murray J. at §73, Maher v. Dublin City Council [2024] IESC 14 (Unreported,

Supreme Court, Baker J., 11 April 2024), Donegal County Council v. Quinn [2025]

IESC 19 (Unreported, Supreme Court, Hogan J., 27 April 2025).

(ii) As regards textual or literal meaning, as Nugee L.J. said in Blackbushe Airport Ltd.

v. The Queen and the Secretary of State for Environment and Food and Rural Affairs

[2021] EWCA Civ. 398, [2022] Q.B. 103, [2022] 1 All E.R. 524, [2021] 3 W.L.R.

567, [2021] PLSCS 56 at 131 (emphasis added): “If we want to know what a word's

ordinary meaning is, it is to my mind more helpful to ask how it is used in

practice. This is after all what we do with everyday words. We do not know what

the word house means because we have looked it up in the dictionary; we know

what a house is because we have experience of how the word house is used. In the

same way if we want to know what curtilage means, it is helpful to look at examples

of how it has been used in practice. Such an exercise may not indicate the outer

edges of its meaning with precision, but it does help to illustrate its central

meaning.”

(iii) As regards statutory context, as Stamp L.J. said in Bourne (Inspector of Taxes) v.

Norwich Crematorium Ltd [1967] 1 W.L.R. 691, [1967] 2 All E.R. 576, [1967] 3

WLUK 24, 44 T.C. 164, (1967) 46 A.T.C. 43, [1967] T.R. 49, (1967) 111 S.J. 256 at

696 (emphasis added): “Sentences are not mere collections of words to be

taken out of the sentence, defined separately by reference to the dictionary

or decided cases, and then put back again into the sentence with the meaning

which one has assigned to them as separate words, so as to give the sentence or

phrase a meaning which as a sentence or phrase it cannot bear without distortion of

the English language.”

(iv) Overlaying this is the need to give legislation an interpretation conforming to the

Constitution (East Donegal Co-Operative Livestock Mart Ltd v. Attorney General,

[1970] I.R. 317, [1970] I.R. 317 (Digest), 104 I.L.T.R. 81 ), the ECHR (ECHR Act

2003 s. 2(1)) and EU law (the judgment of 13 November 1990, Marleasing SA v La

Comercial Internacional de Alimentacion SA, C-106/89, ECLI:EU:C:1990:395), if

such interpretations would not be contra legem.

(v) Legislation should be given a workable, sensible interpretation where this is at all

possible: 100 Meter Tall [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1

July 2025), para. 13. Where the statutory words used “are reasonably capable of a

meaning which is in accord with the essence of the provision, it is that interpretation

which should prevail”: see Kellystown Co. v. Hogan [1985] I.L.R.M. 200 at 203, per

Henchy J.

Preliminary issues

58. As regards the preliminary issues raised, some of these can more conveniently be dealt with

under the relevant substantive headings below – as indeed the notice party expressly acknowledges.

59. The statement of case records:

“Section E - the preliminary issues if any and a short summary of the parties’ respective

positions on these.

Applicant’s position:

18. Whie [sic] it may not strictly be a preliminary issue the Applicants seek liberty to file

a second amended statement of grounds. Two amendments are minor and are

uncontroversial (at §§ 84 and 108). The substantive amendment is at 84A. It arises out of

the replies to particulars. 84A. Put shortly it alleges a failure to give adequate reasons for

applying an assessment methodology different to that in the EIAR as adopted when reaching

a net biodiversity gain conclusion.

Board’s position:

19. The Board is neutral in respect of the two proposed minor amendments (at §84 and

§108 of E(Part 2)) of the draft second amended statement of grounds. As to the substantive

amendment proposed, which involves the belated addition of an entirely new ground of

challenge at §84A of E(Part 2), this does not arise out of the Board’s Replies to Particulars

at all. Rather, in substance and reality, the Applicants have belatedly contrived a difference

between the ‘do-nothing scenario’ in the EIAR and what is stated in the Replies to Particulars.

20. The Applicants’ patent misinterpretation and/or misstatement of the Board’s Replies

to Particulars is not a legitimate or indeed any explanation for the attempted belated addition

of an entirely new ground of challenge. It was open to the Applicants to include a ground

of challenge addressing the point made at §84A at the outset of these proceedings in their

original Statement of Grounds. Notably it is not the case that the Applicants contend that

this point was overlooked through oversight.

21. Even if the point did actually arise from the Replies to Particulars (and it patently

does not on any fair and valid reading of same), having regard to the expedited nature of

these proceedings, the Applicants delayed until 30 May 2025 when the issue of the second

amended Statement of Grounds to include a new ground of challenge at §84A of E(Part 2)

was first raised. Even at that stage, no motion to amend the statement of grounds was

served on the opposing parties (same only issued on 5 June 2025), and of particular note,

the Applicants should have but failed to flag to the opposing parties and also failed to inform

the Court of the fact that a second amended Statement of Grounds was being prepared when

the matter was in for mention on 26 May 2025.

22. In the premises, having regard to the test for amendment of pleadings, the

Applicants have not satisfied the explanation limb of that test. In any event, the Board for

completeness has on a de bene esse basis, served an amended statement of opposition

addressing all of the proposed amendments, including the proposed new ground of challenge

at §84A, and addressed said new ground in its written legal submissions, also on a de bene

esse basis.

Mercury Renewables position:

23. Mercury Renewable raises four preliminary issues:

(i) The Applicants are not entitled to expand their pleaded case by reference to their

written submissions.

(ii) The Applicants are not entitled to raise issues in these proceedings that they could

have raised, but failed to raise, before the Board during the extensive public consultation

process (which included an oral hearing) on the planning application. The central complaints

in all three Core Grounds were not raised by the Applicants before the Board and explanation

for the failure to do so has been provided.

(iii) In respect of Core Ground 1 and 2, whilst the application for judicial review proceeds

on the basis that the Board should have considered and/or imposed a planning condition to

the effect that all turbary rights of third parties on lands not controlled by Mercury

Renewables at the site should be extinguished, the submissions made to the Board on behalf

of the Applicants were, in fact, to the opposite effect. The Applicants are not entitled to

make submissions before a decision-maker in relation to security for persons with turbary

rights and then, subsequently, in judicial review proceedings, maintain that the decision-

maker should have made a decision which extinguished those self-same turbary rights.

(iv) The Applicants have also raised issues in these proceedings regarding technical

matters which in effect, plead a failure of expertise on the part of the Board without providing

any expert evidence to this Court to controvert the findings made by the Board and its

Inspector. Mercury Renewables objects to the repeated assertions of merit-based

complaints and assertions which are impermissibly advanced in the proceedings and which

are not substantiated by any evidence adduced from an expert.

(v) Notwithstanding the fact that the Amended Statement of Grounds amounts to over

23,000 words, a number of the Core Grounds and their purported particulars of legal grounds

lack sufficient particularity, as required by Order 84, Rule 20(3) RSC. Mercury Renewables’

position is that this Honourable Court should not consider any ground (or purported legal

particular of ground) of challenge that has not been sufficiently particularised.

24. In respect of the Applicant’s motion to amend its proceedings for a second time,

Mercury Renewables opposes the addition of §84A and is neutral in respect of the other

proposed amendments. Mercury Renewables adopts the Board’s position in opposition to

the proposed amendment to the Applicants’ case in respect of §84A.”

Preliminary issue 1 – CIEEM policy briefing paper

60. While the commission was unhappy about the Chartered Institute of Ecology and

Environmental Management Ireland (CIEEM) policy group briefing paper, Biodiversity Net Gain in

Ireland August 2024, ultimately there wasn’t an objection to this being received as context subject

to legal argument about how much reliance can be placed on it given that it was not before the

decision-taker. So I gave liberty to file an affidavit exhibiting this on such a basis by 27 June 2025.

Preliminary issue 2 – Technical amendments

61. There was no objection to two technical amendments to the statement of grounds so I gave

liberty to make those amendments by 27 June 2025.

Preliminary issue 3 – Substantive amendment

62. The inspector stated:

“16.12.20. The Department of Housing, Heritage and Housing is concerned that peat cutting

will continue over the life of the wind farm project, which will have significant impacts and

points to many policies in Mayo County Council’s development plan that seek to restore

peatlands to carbon sinks. I do not consider that the applicant has sufficient control over

the peatlands to prevent turf cutting. Submissions from some observers indicate that they

will not be relinquishing their turbary rights. There are certain sections of the peatlands

which will be improved, particularly in the Biodiversity Enhancement Management Plan area.

The area of the footprint of the turbines is greater than the Biodiversity Enhancement

Management Plan area. However, without the wind farm, the entire area would still be

subject to turf cutting. Therefore, there is a biodiversity net gain, from zero to over 10 ha.

I consider that the reduction in greenhouse gases arising from both the wind farm and the

hydrogen pant [sic] has to be balanced against what otherwise would be an even more rapid

drainage of the cutover bog.”

63. The board replied to particulars on 21 May 2025 on this as follows:

“5. Subtending the Applicants’ request for particulars is impermissible non-expert assertion.

When the above quoted passage from the Inspector’s Report is read in context, and in a way

that makes sense and renders same valid rather than invalid, and by reference to the

relevant material and information that was before the Board (which is, inter alia, clearly

identified in the Board’s Statement of Opposition), the key point that the Inspector is making

is that the entire area, prior to the wind farm application, was available for turf cutting.

Therefore, in theory, the area could be completely denuded of peat, in the absence of the

wind farm proposal. In those circumstances, there would be a complete loss of the peatland

and consequential loss of biodiversity (zero). As per the planning application, just over 10

ha of the area would be subject to a Biodiversity Enhancement Management Plan (BEMP)

(approximately 10.6ha, as per Table 1 and Table 2 of the Board Ecologist’s Report). The

10.6 ha is less than the footprint of the turbines (a fact apparent from the application

documents and one not in dispute). However, as the Inspector evidently considered, that

amount (10.6 ha) is still more than would be achieved if the entire area (including that of

the footprint of the wind farm) was subject to turf cutting.

6. Further, the Inspector did not consider that the footprint of the turbines would be balanced

by or was equivalent to the (approximate) 10.6ha proposed in the BEMP – this is, inter alia,

clear from the Reasoned Conclusion of the Inspector’s Report at §16.23.7, where the

Inspector notes that the wind farm footprint will result in a permanent loss of peatland

habitat of circa 15.3 ha and that the Biodiversity Enhancement Management Area will

improve local diversity and return a part of this cutaway bog to a carbon sink but that the

latter extends to a smaller area. The Inspector did not trade off quality with quantity in

§16.12.20 of the Inspector’s Report. There is no reference to quality in that paragraph of

the Inspector’s Report and any assertion by the Applicants that such a ‘trade off’ occurred

is baseless and mistaken.”

64. The proposed para. 84A is:

“84A In breach of s.37G(2) the Board failed to have any or any adequate regard to the EIAR

and/or in breach of s.172(1J)(c)(i) and/or s.37H(2) and/or fair procedures and/or Art 8a of

the EIA Directive the Board failed to give any or any adequate reasons for adopting or

employing an assessment methodology in respect of net biodiversity gain that was different

to and/or and inconsistent with the methodology in the EIAR. The consideration that ‘in

theory’ future turbary could completely remove the peat at the site involved a methodology

that the Inspector failed adequately to explain having regard to the conclusion of the chapter

5 & 7 EIAR assessment that was previously adopted and the Applicants rely in the affidavit

of Alexis FitzGerald of 30 May 2025.”

65. The kernel of this is alleging a contradiction between the inspector’s report and the EIAR.

That isn’t in itself a legal ground of challenge because there isn’t anything problematic about the

decision-taker improving on the methodology of the developer – that’s what the environmental

impact assessment (EIA) process is about – a continued dialogue and examination with the benefit

of public participation.

66. The applicants complain that they didn’t understand the methodology until the replies to

particulars but this is a threadbare response. Any complaint that the methodology was opaque or

contradictory to the environmental impact assessment report (EIAR) could have been made initially

– indeed the wording of the new sub-ground recognises this by directly quoting the inspector.

67. Insofar as the applicants complain that there was a lack of methodology in the inspector’s

report this was something there on day 1.

68. So in short there is no sufficient explanation as to why the amendment should be permitted

– the replies to particulars don’t change anything fundamental. Any defects in the methodology in

the inspector’s report were identifiable to a reasonable extent at the time of initiation of the

proceedings so the fact that the applicants later asked for particulars and got answers that don’t add

very much to what was on the papers anyway isn’t some sort of startling new revelation that triggers

the applicants’ claim that “we must be entitled to some leeway”. For good measure, it doesn’t help

that the applicants were signalling amendments to the pleadings on 8 May 2025 before they even

got the replies to particulars, so that sequence does little to dispel the artificiality of the purported

explanation for the amendment. Nor does it particularly help that the replies to particulars were

furnished in a context where the applicants had suggested in the correspondence of 8 May 2025 that

the grounds might be narrowed, but following the replies an attempt was made to widen the grounds.

That is far from ideal because a responding party might legitimately respond differently to

correspondence suggesting a narrowing as opposed to correspondence suggesting an expansion.

69. Accordingly I informed the parties at the hearing that I would not be allowing the amendment

due to the lack of sufficient explanation and now give more detailed reasons above.

70. I can add that even if I had allowed the amendment, I would have rejected the point on the

merits, essentially for the reasons advanced by the commission. The premise is denied on affidavit

by the inspector and that factual conflict must be resolved against the party bearing the onus of

proof in the absence of cross-examination. As the commission contends:

“29. In advancing the allegations at §84A, the Applicants make the incorrect and

unfounded assumption that in some respect the Inspector in her Report exclusively

considered the ‘worst case scenario’ to be the most likely scenario and therefore did not

consider or assess matters in accordance with the ‘do nothing scenario’ contained in the

EIAR.

30. However, the Inspector did not do so at all (which she has confirmed on Affidavit),

and there is no basis for any such assertion or assumption by the Applicants.

31. As noted above but worth reiterating, in substance and reality, the Applicants have

belatedly contrived a difference between the ‘do-nothing scenario’ in the EIAR and what is

stated in the Replies to Particulars, based only on a total distortion and misinterpretation of

what is stated in the Replies to Particulars.”

Preliminary issue 4 – Affidavit of Mr Fitzgerald

71. While there was an initial point made by the commission complaining that the deponent was

commenting on questions put by the applicants’ lawyers, there isn’t anything wrong with that as

long as an expert is using his or her own judgement in coming up with the answers. If the premises

of such questions are in dispute that can be addressed by the court. If the expert is being asked to

assume such premises that doesn’t make the answers inappropriate in any way, but any response

can’t be evidence that such premises are correct.

72. In the light of the decision on the amendment, the objection to this affidavit wasn’t pressed

on the basis that:

(i) the affidavit didn’t revive the disallowed amendment;

(ii) the court will need to bear in mind that it has been replied to; and

(iii) any disputed premises of the propositions put to the expert can be dealt with by

submissions.

73. Accordingly I gave liberty to file the affidavit on this basis.

Preliminary issue 5 – Third affidavit of the first named applicant

74. Ultimately this wasn’t objected to on the basis that:

(i) it is clear that it does not expand the pleaded case;

(ii) it is subject to legal argument about the extent to which the applicants can rely on

matters not before the board; and

(iii) the notice party could file its replying affidavit (2nd affidavit of John Duffy) and the

usual legal rules about conflict of fact will apply.

75. On that basis I gave liberty to file this affidavit.

Preliminary issue 6 – Further affidavits of notice party

76. The notice party requested liberty to file the affidavit of Sarah Jones of 17 June 2025 and

John Conaghan on 18 June and as noted above the affidavit of John Duffy of 18 June 2025 – this

wasn’t objected to so I gave that liberty, to be effected by 27 June 2025

Preliminary issue 7 – Complaint that the applicants were resting on pleadings

77. The commission also complained that on certain matters the applicants were resting on the

pleadings on some points. There is a touch of substance in this complaint:

“10. The Applicants previously raised the prospect of narrowing the grounds of challenge

but without actually doing so, which is of no assistance to any of the parties or the Court in

terms of preparation for or indeed running of the hearing. Likewise, the Applicants’ approach

of merely resting on their pleaded case on certain aspects of the grounds of challenge is of

no assistance either. Insofar as that is in fact the case, the Board’s position is that relief

should be refused on those grounds given that the Applicants, in effect, offer no answer to

the pleaded response and opposition from the Board and the Notice Party to those grounds

as set out in their respective Statements of Opposition. Insofar as the Applicants’ position

is a contrivance to facilitate roving oral legal submissions at the hearing of the case and in

this regard to make points not at all addressed in the Applicants’ written legal submissions,

the Board objects to any such approach, as one that is inappropriate, particularly in the

context of an expedited hearing.”

78. Nonetheless, there isn’t a lot I can do about that, and in such a situation the opposing parties

can rest on their pleadings too, and if a court thinks anything needs to be discussed further in a

given case the court can raise it.

Substantive issues

79. We can now turn to the substantive issues. While ground 1 is pleaded as a domestic law

issue it in fact more properly raises EU law issues given that they complain about the EIA process.

In submissions the applicants majored on categorising these issues as domestic law points but it

was far from clear that such a characterisation was technically accurate so I will treat such points as

EU ones. It therefore makes more methodological sense to start with the domestic ground 2. But

before doing so am going to have to endorse a general point made by the commission:

“5. Of particular relevance here, the Applicants’ written submissions and the non-expert

rhetoric in same do not constitute an evidential foundation for the propositions the Applicants

advance. Submissions are not evidence (Buckley v. O’Neill [2023] IECA 288 at §76; Re:

O’Callaghan deceased: Byrne applicant [2016] IEHC 668 at §38). A striking feature of the

Applicants’ written submissions is (perhaps tellingly) the absence of any supporting legal

authority. Only one authority is cited (namely Connelly [2018] IESC 31, [2018] 2 I.L.R.M.

453, at §91 of the Applicants’ submissions) and as to reasons, as addressed below, there is

no substance to any of the reasons complaints the Applicants advance.”

Domestic law ground

Core ground 2 – Failure to properly consider development plan and renewable energy

strategy

80. Core ground 2 is:

“Core Ground 2 The Impugned Decision is invalid as the Board breached s.37G of the PDA

2000 and/or failed to have regard to and/or misinterpreted MDP22 and/or the Mayo

Renewable Energy Strategy 2012-20 and/or failed to take into account a relevant factor

and/or took into account an irrelevant factor when concluding that the imposition of

conditions that aimed to reduce or off set adverse environmental effects and/or would

enhance positive environmental effects of the Proposed Development would render the

implementation of the Proposed Development infeasible.”

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

“Applicant’s Position

Ground 2.1

39. The Board erred by failing to consider certain objectives in the Mayo County

Development Plan 2022 – 28 MCD22 and/or the Mayo Renewable Energy Strategy 2011-18

‘MRES’. The omitted policies include a peat maintenance objective (which is similar but

distinct to considered policies) and a policy that required an applicant to demonstrate GHG

maximisation effect that was not considered or applied.

Ground 2.2

30. The Borad [sic] misinterpreted the MCD22 by assessing the acceptability of the

application and/or off set and/or environmental effect by reference to the extent of the

Developer’s control of the site.

41. Ground 1, 2.1 & 2.2 are in part linked by net gain and EIA and adequacy of off set.

NEO8 was not referred to by the Minister.

Board’s Position

42. The Board’s Decision is not invalid as alleged at Core Ground 2. This ground of

challenge comprises incorrect mere assertion unsupported by evidence combined with

misinterpretation of the Board’s Decision. The Board did not fail to have regard to or

misinterpret the Mayo County Development Plan 2022-2028 or the Mayo Renewable Energy

Strategy) or take into account an irrelevant factor or fail to take into account a relevant

factor as alleged. By way of preliminary objection (to which no cogent response has been

provided by the Applicants), and relevant to the Court’s discretion to refuse relief, Core

Ground 2 as pleaded is apt to mislead in that the Applicants have failed and/or omitted to

plead to or refer to the fact that the Second Named Applicant, the Mayo Sligo Energy Concern

Group (which Group the First Named Applicant avers at paragraph 11 of her affidavit filed

on 22 January 2025 to be the Chairperson of) in submission to the Board on the subject

application (see e.g. at point 11 of their submission to the Board received on 24th May 2024,

lodged via their agent Kieran Cummins) submitted that access to turbary rights (concerning

the right to cut turf) should be continued. The only participant that raised concern in relation

to turf cutting with the Board was the Development Applications Unit (‘DAU’) (in the

submission from the Department of Housing, Local Government and Heritage) and same

was lawfully considered and addressed at e.g., §16.12.20 of the Inspector’s Report. Core

Ground 2 in essence purports to impugn the Board’s Decision on the basis of an alleged

failure by the Board to consider or impose conditions relating to the cessation of turf cutting

on lands not controlled by the Notice Party. However, the submissions made by the First

Named Applicant did not raise this issue and the submissions made by the Second Named

Applicant and other third parties, in essence made the case to the Board that the Notice

Party could not restrict turbary rights. Thus, the Second Named Applicant, who, inter alia,

sought that the Board ensure that turbary rights of members of that Group were not

interfered with, is now seeking, by Core Ground 2, to have the Board’s Decision quashed on

grounds that turbary rights were not restricted. That is not tenable nor a basis for certiorari

of the Board’s Decision or any other relief. The Applicants also do not consider the

fundamental misconception in their argument, namely that if the Proposed Development

was not occurring, the entire area would be still be subject to turf cutting by various third

parties, that the Proposed Development does not involve turf cutting and the Board’s

Decision does not authorise same, and that rather, as the Board has concluded, it involves

cessation of turf cutting on certain lands over which the Notice Party has control, and also

involves a biodiversity net gain and a reduction in greenhouse gas (GHG) emissions which

would not otherwise be the case.

43. No breach of s.37G of the PDA 2000 has been identified by the Applicants at all. The

Board clearly had regard to the Mayo County Development Plan (MDP) and the Mayo

Renewable Energy Strategy (RES) which was adopted by Mayo County Council on 9 May

2011 and incorporated into the current MDP (which applies for the period from 2022 to

2028). This is apparent from the text of the Board Order (at e.g. pages 30 and 34) and

Inspector’s Report (at e.g. §5.4.1 to §5.4.26 and §9.1.53). The Applicants’ case in this

regard is not properly particularised contrary to Order 84 rule 20(3) RSC and is based on

incorrect generic assertion and a misinterpretation of the Board’s Decision and of said

Development Plan. The Applicants have failed to plead any basis to support their mere

assertions that the Board misinterpreted provisions of the Mayo Development Plan 2022–

2028 and/or the Mayo Renewable Energy Strategy and/or granted permission for the

Proposed Development in material contravention of a provision of the Development Plan

and/or the Mayo Renewable Energy Strategy. In this connection, NEO8, NEP9 NEP10, CAP7,

CAP9, and REP1 of the 2022 MDP are general provisions that involve evaluative planning

judgement insofar as they apply to the matters at hand, and no irrationality challenge is

advanced, only impermissible non-expert merits-based disagreement. The subject site is

located in a Tier 1 Preferred Location for windfarms, as set out in the 2011 RES and

incorporated in the 2022 MDP. The said Development Plan has a range of policies supporting

both the protection of peatland and biodiversity and the provision of renewable energy, as

referred to and lawfully considered in the Inspector’s Report (see e.g. §5.4.1 to §5.4.26,

§18.1.1 and §18.1.2 of the Inspector’s Report). For example, NEP 9 (considered at §5.4.5

of the Inspector’s Report) seeks to protect and restore peatlands to transition to a low carbon

economy. The use of cutover bog for the purpose of a windfarm development is not

inconsistent with this policy and in the present application the Proposed Development

facilitates the protection and restoration of peatland in the Biodiversity Enhancement

Management Area. There is no policy in the said Development Plan which supports the

restriction of domestic turf cutting or limiting of turbary rights. Further, the Proposed

Development is consistent with the Mayo Renewable Energy Strategy (see §5.4.10 and

§9.1.53 of the Inspector’s Report). The non-expert merits-based submissions and assertions

by the Applicants to the contrary are incorrect. Correctly interpreted, no material

contravention of the Development Plan arises at all, and even if it did (which is denied), it

would not be a basis for certiorari of the Board’s Decision having regard to the Board’s

permissive jurisdiction under s.37G(6) of the PDA 2000. Further, insofar as the Applicants

contend that the Board’s Decision is invalid because it did not impose a condition that the

Applicants did not request be imposed and which the Board has no power to impose, that is

not a ground for certiorari of the Board’s Decision or any other relief. The Notice Party was

clear in that the only place where they had sufficient control to prevent turf cutting was in

the Biodiversity Enhancement Management Area (see e.g., §16.12.20 and §18.1.2 of the

Inspector’s Report). The implementation of this was conditioned by way of the plans and

particulars condition (i.e. Condition 1 of the Board’s Decision) and Condition 4 of same (in

relation to the mitigation measures in the EIAR – see e.g., Volume IV, Appendix 17.1, ref

no. MM49 of same). There is nothing unlawful in the approach of the Inspector or the Board

in this regard and any assertion to the contrary by the Applicants is incorrect.

Mercury Renewable’s Position

44. Mercury Renewables denies that the Board failed to properly consider whether the

Proposed Development contravened the Development Plan and/or the Mayo Renewable

Energy Strategy. Rather, it is clear from the application documentation and the Inspector’s

Report, Board Direction and Board Order that the Development Plan and the Mayo

Renewable Energy Strategy were considered by the Board. The issues advanced in relation

to Core Ground 2 were not raised before the Board by or on behalf of the Applicants (or any

other person) and are being raised for the first time in these proceedings without

explanation.

45. The Applicants have failed to plead any basis to support their mere assertions that

the Board either (i) misinterpreted a provision of the Mayo Development Plan 2022–2028

and/or the Mayo Renewable Energy Strategy and/or (ii) granted permission for the Proposed

Development in material contravention of a provision of the Development Plan and/or the

Mayo Renewable Energy Strategy.

46. Mercury Renewables does not understand the basis upon which it is contended that

the Board erred in not finding that the Proposed Development would materially contravene

the Development Plan. Furthermore, the provisions of section 37G of the 2000 Act empower

the Board to grant permission for development, or any part of a development, even if the

proposed development, or part thereof, materially contravenes a development plan (which

is denied).

47. It is Mercury Renewables’ position that:

(i) the Board does not have a power, whether under section 37G or otherwise, to impose a

condition for regulating the development or use of land – including in relation to requiring

the cessation of turf cutting – which is not under the control of the applicant for

permission; and

(ii) the Applicants are not entitled to advance such a ground in circumstances where the

submissions which were made to the Board did not raise the issue as to whether the

Board should impose a condition to restrict turf cutting on lands outside the control of

Mercury Renewables and, in fact, made submissions that the Applicants were ‘gravely

concerned’ in relation to access for turbary plot holders, including whether safe access

to such turbary plots could be provided following completion of the Proposed

Development.

48. Finally, it is denied that the Board breached section 15 of the Climate Action and Low

Carbon Development Act 2015, as amended. Furthermore, no particulars of the alleged

breach have been provided, and the Applicants have failed to identify any specific aspect of

any measure referred to section 15(1)(a)-(e) in relation to which such an inconsistency is

alleged to arise, and any such inconsistency asserted is denied.”

82. The development plan provisions are summarised by the notice party (submissions para.

35) as follows:

“NEO8: To maintain, protect and where possible enhance the natural heritage and

biodiversity of bogs, fens and turloughs, where appropriate, in County Mayo.

NEP9: To enhance the county’s natural heritage and biodiversity through supporting the

protection and restoration of peatlands in County Mayo, where appropriate, in order to

transition towards a low-carbon and circular economy.

NEP10: To recognise the role of peatlands as carbon sinks to combat climate change and

ensure that peatland areas, including those designated or proposed for designation (pNHA,

NHA or SAC), are conserved for their ecological, climate regulation, archaeological, cultural

and educational significance.

NEO18: As part of the implementation of Climate Ready Mayo, Climate Adaption Strategy,

to develop and implement a Peatland Management Strategy for County Mayo that will:

a. To identify damaged Peatlands in the county and those at risk from climate change and

becoming carbon emitters.

b. To initiate conservation and management of Mayo’s peatlands, particularly those sites

nominated for designation as Special Areas of Conservation and Natural Heritage Areas, to

preserve the habitat and their unique ecosystems, managing flood risk and other

environmental benefits.

NEO19: To actively increase public awareness of the importance of peatlands as carbon sinks

to combat climate change.

CAP7: To support and promote the enhancement of carbon sinks such as peatlands,

appropriate afforestation and permanent grasslands, with consideration of afforestation or

rewetting on cut away peatlands.

CAP9: To support Ireland’s renewable energy commitments outlined in national policy by

facilitating the development and exploitation of all appropriate renewable energy sources at

suitable locations within the county, where such development does not have a negative

impact on the surrounding environment (including water quality), landscape, biodiversity or

local amenities, so as to provide for further residential and enterprise development within

the county.

REP10: no such provision exists in the Development Plan”

83. The Mayo Renewable Energy Strategy states:

“2.2: It is an objective of the Council to follow a sustainable plan led approach to renewable

energy development within County Mayo through the implementation of this Strategy, in

particular guiding renewable energy developments to preferred locations as set out in

Section 6.4 and requiring all renewable energy developments to comply with standards and

mitigation measures outlined in Section 6.5.

2.3: It is an objective of the Council that all proposed renewable developments will be

assessed on the principles of proper planning and sustainable development, ensuring

minimal adverse environmental impact to biodiversity, flora and fauna; population and

human health; soil; water; air and climatic factors; material assets; cultural heritage; and

landscape. Full account shall be taken of the presence and requirement to protect all Natura

2000 sites, natural Heritage Areas, proposed Natural Heritage Areas, the national Park and

Nature Reserves. Projects will be subject to Habitats Directive Assessment where considered

appropriate

6.5.6: Developers shall provide a systematic assessment of the carbon balance of the

development during construction, operation and decommissioning demonstrating how this

balance has been maximised. This assessment shall consider using local products, minimise

area of disturbance, use excavated material for infill where possible, avoid contamination,

avoid triggering erosion by wind or water, avoid desiccation of peat through direct or indirect

changes to drainage, and avoid loss of carbon sinks and carbon release by disturbance to

peat.”

84. The applicants’ reference to a 2012 strategy is an error – as the notice party points out:

“33. For the sake of completeness, it is noted that, whilst the Applicants have referred to

a 2012 Renewable Energy Strategy, it is presumed that the Applicants are actually referring

to the Mayo Renewable Energy Strategy 2011-2020 (the ‘Mayo Renewable Energy

Strategy’).”

Pleading objection

85. As noted by the Court of Appeal in Carvill v. An Bord Pleanála [2025] IECA 84 (Unreported,

Court of Appeal, Barniville P., Collins and Faherty JJ., 11 April 2025) at para. 148, where a developed

pleading objection is made, the court isn’t supposed to accept the point made by the applicant

without first addressing the objection.

86. The duty to deal with objections shouldn’t be read beyond its intended limits – if a point

lacks substance the court must have the option (in the interests of saving time if nothing else) to

dismiss it on the basis that even if it is properly pleaded it fails anyway. But in principle, developed

pleading objections (as opposed perhaps to pro forma or formulaic, generalised place-holding

objections) should be addressed before the court gets on to the merits, if the court is minded to

uphold the merits of the point.

87. In that case, the Court of Appeal held at para. 149 that:

“Save the particulars pleaded which invoked Article 9a of the EIA Directive and Article 4 and

Article 6 thereof (paras. 11-18 and 20-28), the Amended Statement of Grounds is blatantly

devoid of any particulars that point to the Scheme constituting either urban development or

road development (in the sense that those concepts are defined within the EIA Directive and

the relevant implementing domestic legislation).”

88. The court went on:

“There appears to be no reason as to why the Applicants could not, either in the original

Statement of Grounds or in the Amended Statement of Grounds, have particularised the two

classes upon which they subsequently relied, namely, ‘road development’ and ‘urban

development’. No explanation was given as to why those classes were not particularised in

circumstance where at the time of its delivery, the Applicants were by then firmly on notice

of the City Council’s contention that EIA screening was not required because the EIA

Directive was not applicable to what the City Council were describing as a purely traffic

management exercise.”

89. A similar problem unfortunately infects the applicants’ pleadings here.

90. The applicants’ pleading on core ground 2 is as follows:

“Core Ground 2 The Impugned Decision is invalid as the Board breached s.37G of the PDA

2000 and/or failed to have regard to and/or misinterpreted MDP22 and/or the Mayo

Renewable Energy Strategy 2012-20 and/or failed to take into account a relevant factor

and/or took into account an irrelevant factor when concluding that the imposition of

conditions that aimed to reduce or off set adverse environmental effects and/or would

enhance positive environmental effects of the Proposed Development would render the

implementation of the Proposed Development infeasible.”

91. This is impermissibly unparticularised. There is no explanation as to how s. 37G was

breached. The complaint of lack of regard to Mayo County Development Plan 2022 (MDP22) is

contradicted by the fact that the applicants quote the inspector as referring to this. The complaint

of lack of regard to the Mayo Renewable Energy Strategy (RES) is likewise contradicted. The

relevant/irrelevant factors are unspecified.

92. The applicants plead:

“90. The Board did not consider or properly consider whether the Proposed Development

contravened the MDP22 and/or the Mayo Renewable Energy Strategy and/or did not consider

whether any such contravention was material and/or was justified in the circumstances

and/or the Proposed Development materially contravened the same (including NEO8 NEP9

NEP10 NEO18 NEO19 CAP7 CAP9 REP10 of the MCD22 and Objective 2.2 & 2.3 and/or

6.3.5.6 of the Mayo Renewable Energy Strategy 2012 - 2020) and/or failed to impose

conditions pursuant to s.172(I1) to minimise and/or mistake mitigate or offset or

compensate the significant environmental effects of the Proposed Development and/or to

conserve and/or enhance peatlands in order to protect their function as carbon sinks and/or

reasonably maximise the GHG emissions reduction arising from the Proposed Development.”

93. This unparticularised kitchen-sink complaint suffers from similar infirmity.

94. The applicants continue:

“91. The said provisions of the MDP22 and/or the Mayo Renewable Energy Strategy

permit and required the Board to consider, and/or required the Board to impose in this case,

the imposition of conditions and/or modifications to the Proposed Development that aimed

to minimise the adverse environmental effect of the Proposed Development on biodiversity

and/or peatland and/or habitat loss and/or aimed to achieve no net loss of biodiversity

and/or aimed to conserve and enhance peatlands in order to reasonably maximise the

reduction of GHG emissions arising from the implantation implementation of the Permission

(having regard to the above cited provisions of the MDP22 and/or the Mayo Renewable

Energy Strategy and/or the CAP24 (and without prejudice the LULUF targets and associated

policies including the rewetting of 30ka of peatlands by 2030) and/or the above cited

provisions of the 2015 Act (and for the avoidance of doubt the duty under s.15 which was

breached in this case) and/or the achievement of the binding LULUCF emissions targets

and/or the national transition climate objective including objective in relation to resilience

and biodiversity and/or the above cited provisions of the National Mitgation [sic] Framework

and the synergies identified therein between climate adaptation measures and climate

mitgation [sic] measures associated with and arising from the preservation and restoration

of peatlands.).”

95. It is presumably correct that the plan permitted the board to consider conditions to minimise

adverse effects of the development on biodiversity – that doesn’t seem to be hugely in doubt. What

is missing is any route-map from there to the claimed certiorari.

96. The applicants continue:

“92. The Board failed to consider or properly consider whether restrictions on domestic

turf cutting ought to be imposed by way of condition. The Board failed to have regard to

the MCD22 and/or the Mayo Renewable Energy Strategy and/or misinterpreted the meaning

and effect of the same and/or the Proposed Development materially contravened the same.”

97. This complaint is unstateable. The inspector expressly considered the extent to which turf-

cutting could be restricted. The complaint about the plan and strategy is unparticularised and the

pleading objection must be upheld here also.

98. The applicants continue:

“93. The Board failed to impose conditions to fully mitigate or off set the full scale or size

of habitat loss in the Biodiversity and Enhancement Management Plan on the basis of an

unlawfully reached conclusion that to do so would render the implementation of the Proposed

Development infeasible.

94. Further, as hereinbefore pleaded, the Inspector stated:

16.14.33. The DAU are concerned that turf cutting will continue on the wind farm site and

the proposed development offers on opportunity to cease this use on the site. Otherwise,

the wind farm will continue to emit carbon. I agree that the proposed development would

be enhanced if the wind farm was rewetted. However, this is not before the Board and on

balance, it is considered that the use of the site as a wind farm with turf cutting is preferable

for the site than the ‘Do-Nothing’ alternative. I note that Observers have referred to

continuing to avail of their turbary rights.

[…]

16.23.7. The wind farm footprint will result in a permanent loss of peatland habitat of circa

15.3 ha. The Biodiversity Enhancement Management Area will improve local diversity and

return a part of this cutaway bog to a carbon sink but only extends to circa 10.5 ha.

[…]

18.1.2. The DAU have referred to peatlands policy in Mayo County Development Plan 2022-

2028 and questions how the continuation of turf cutting within the site, complies with the

policy of protection and restoration of peatland areas. I do not consider that the applicant

has the legal right to prevent turf cutting outside of the Biodiversity Enhancement

Management Area. I am satisfied that the applicant is complying with the policy within areas

where such control can be exerted.”

99. That is just a statement of fact.

100. The applicants continue:

“95. Without prejudice, in general, a proposal must be assessed on its own merits, and

subject to exceptions, if it is consistent with the development plan and/or proper planning it

cannot be rejected on the basis that an alternative proposal that is not before the Board

would be better in terms of its planning effects. However, a permission attaches to the land

and, in general, and subject to compliance with the regulations, a proposal’s its acceptability

is to be assessed without reference to the extent to which an applicant owns or controls the

site. The planning regime often imposes obligations on private developers in pursuit of

public policy goals (e.g. public open space provision or social and affordable housing

provision) and compliance with such obligations or policies cannot in general be avoided on

the basis that an applicant does not have sufficient control of the site. In general, an

applicant who fully owns or controls a site is in no worse position than an applicant who does

not.”

101. This unfortunately is nonsense – conditions can’t be imposed which are outside the control

of an applicant for permission. If a decision-taker thinks that a project could only be permitted on

such conditions then permission should be refused.

102. The applicants continue:

“96. The Proposed Development and/or the Permission does not provide for or require

inter alia full mitgation [sic] or compensation of habitat loss and/or carbon effect of the

extraction of peat associated with the footprint/development and/or does not provide for the

cessation or curtailment of turf cutting within the application site and does not fully or

adequately mitigate the Proposed Development’s environmental effects and/or properly or

adequately protect or preserve or conserve or restore peatlands / Annex 1 habitat and/or

carbon sinks and/or did not reasonably maximise the GHG emission/carbon balance effect.”

103. There is perhaps a sense in which this makes sense (i.e. that in another universe the

developer would have total control over all relevant turbary rights) but it fails in terms of being a

validly pleaded complaint. The fact that if the realities were different there could have been a better

project doesn’t get the applicants anywhere on any legal theory that they have pleaded and can

sustain.

104. The applicants continue:

“97. The above cited policies and objectives applied to the site as a whole. The

Inspector/Board erred in law and/or took into account an irrelevant factor and/or

misinterpreted the said policies and objectives when concluding or deciding that the

Developer’s lack of control of lands was a proper or lawful basis upon which to disapply or

limit the application of the said policies and objectives. Without prejudice, the extent of the

obligation owed by or in relation to the land or proposal did not and could not lawfully vary

with the extent of the Developer’s ownership or control of the site. Without prejudice, the

extent of the lands controlled does not determine the extent of the obligation but, instead,

the extent of the obligation determines the extent of the lands to be controlled.”

105. This is misconceived for the reasons outlined. Furthermore a complaint of “the above cited

policies and objectives” generally is insufficiently particularised.

106. The applicants continue:

“98. Further, or in the alternative, the Proposed Development materially contravened the

said policies and objectives which properly interpreted required that a proposal mitigate

and/or offset its environmental effects and/or properly or adequately protect or preserve or

conserve or restore peatlands / Annex 1 habitat and/or carbon sinks and/or did not

reasonably maximise the GHG emission/carbon balance effect.”

107. In pleading terms a complaint of material contravention requires an identification of a precise

provision so contravened – the applicants haven’t achieved or even attempted this.

108. The applicants continue:

“99. Further, the Board was required to consider and/or to impose modifications and/or

conditions restricting turf cutting. A condition that requires a cessation of turf cutting

amounts to a site management condition and the Board is or must be entitled to impose

such conditions in respect of the site as a whole. Further, and without prejudice, a

requirement to cease turf cutting is not (or is not primarily or sufficiently) a requirement to

carry out development. Further if the Board cannot impose conditions to limit turbary rights

to an extent determined by discretion (and/or if consent or control is required ex ante) then

the efficient processing of applications for development in related areas (which areas engage

habitat restoration issues or obligations) will be prejudiced. If a required level of curtailment

is or might be discretionary and is to be determined by the Board, then the detail of an

associated implementation plan could only be prepared by an applicant after a grant of

permission and might be appropriately conditioned to be agreed with the planning authority.”

109. The phrase “was required” constitutes inadequate pleading as it fails to articulate how

exactly the board was so required. The remainder of the plea suffers from a similar problem.

110. The applicants continue:

“100. The Board took into account an irrelevant factor by assessing the extent to which

the Permission ought to contain modifications and/or environmental conditions relating to

turbary rights and/or the restriction of domestic turf cutting to achieve peatland preservation

and/or restoration and/or GHG reduction by reference to the extent of the Developer’s

control of the site and/or misinterpreted the MDP22 and/or the Mayo Renewable Energy

Strategy which, properly interpreted, permitted the Board to impose conditions to meet,

inter alia, the national climate objective and/or prevent the deterioration or removal of

Annex 1 habitat and did not permit reliance on a lack of control of the site as a basis to avoid

obligations or conditions that would have otherwise arisen and/or required an assessment

of the likely cost and/or feasibility of obtaining further control of the site.”

111. In pleading terms, the applicants have failed to particularise or explain the obviously

unfounded complaint that the plan and strategy “permitted” the board to impose conditions. It is

the legislation that permits conditions – but not conditions of the type proposed, since they are

conditions that fall outside the control of the developer.

112. The applicants continue:

“101. The said objectives and policies imposed an obligation to cease or curtail turf cutting

within site. The continuation of turf cutting at the site will lead to increased LULUCF GHG

emissions and will prejudice the achievement of the State’s emissions targets. Further, it

will lead to a reduction in the area and/or a deterioration of the condition of the Annex 1

habitat at the site and will or might increase the costs associated with future restoration or

reestablishment. The national climate objective refers to a reduction in GHG emissions as

well as to biodiversity and climate resilience. The CAP24 includes the rewetting of 30kha of

exploited peatland by 2030 as a specified policy that is relied upon to achieve emissions

targets (which targets are binding in national and/or European law). The National Adaptation

Framework explains the synergy between climate mitgation [sic] and climate framework

measures associated with the preservation and restoration of peatlands. The preservation

and enhancement of the peatlands at the site furthers the objective of mitigating greenhouse

gas emissions and adapting to the effects of climate change in the State.”

113. Again this is sheer assertion rather than a properly particularised legal complaint. How could

plans and strategies, or the national climate objective, or CAP24, or the national adaptation

framework “impos[e] an obligation” in a free-standing way as alleged in the absence of a pleaded

statutory provision or pathway – and more specifically impose such an obligation on the developer

who has no control over the matters of which the applicants complain? The whole attempted

pleading is a non-starter in pleading terms and indeed in substance terms.

114. The applicants continue:

“102. The Developer itself decided the size of the application site (presumably in part to

ensure adequate separation distances and/or sufficiently to mitigate the effects of the

development on neighbouring lands) and the site as a whole, and not just the physical

footprint, is the area of land that will be put to use for energy generation (albeit that other

limited uses may remain feasible – whereas others will not). The policy behind the

designation of the lands for renewable energy generation was, put broadly, the achievement

of the national climate objective. The extent of the prevention of turf cutting at the site is

a feature of the project that contributes to the achievement of that objective (as do other

design or location features or particulars) and is relevant to the objective of reasonable

maximization of the site’s contribution towards meeting that objective (which objective

incorporates biodiversity and resilience) and will have an effect on how much land and other

resources the State will need to provide or assign in order to achieve the objective. A failure

to meet the required or appropriate quantity of effect at this site will have the result that a

heavier burden remains to be met elsewhere. Moreover, a failure to prevent or limit the

continuation of turf cutting will or might increase the cost of meeting the objective as

prevention of deterioration is or might be more cost effective than restoration.”

115. The problems with this are similar and again we can note the lack of any legal pathway

pleaded to get us to the conclusion asserted.

116. The applicants continue:

“103. Further, the CAP24 provides for the rewetting of 30kha of exploited peatlands by

2030. This not only supports measures directing rewetting but, a fortiori, supports actions

or decisions or measures or exercises of discretion that prevent further exploitation of

peatlands and thereby render the attainment of the outcome in the CAP24 and the meeting

of national emission targets less likely and more expensive. The continuation of the

exploitation of peatlands at the site is inconsistent with the attainment of the national climate

objective – which is the ultimate goal of renewable energy policy. The Developer knows well

the likely cost of obtaining ownership or control of further turbary rights as he has already

obtained the same in respect of 90 plots related to the footprint of the site so that an

estimate of the cost of at least some level of restriction on turf cutting could be made.”

117. Again here there is a complete lack of particularisation of this as a legal complaint.

Assuming in favour of the applicants that all turf-cutting in the State should cease immediately – a

reasonable-sounding proposition at a general level – and assuming that the State is failing in terms

of climate obligations and habitats obligations in not ensuring this – again a not obviously

unstateable suggestion on a first pass – there is no plausible, particularised, clear rationale for

imposing such a State failure on this particular developer, or for arguing that the developer was

under some novel obligation to purchase additional real property rights.

118. The applicants continue:

“104. Without prejudice, there is no principle (or proper principle) that a requirement to

acquire a right is to be treated differently to a requirement to abandon a right (subject to

practical considerations). If the Board would require or impose a condition in respect of a

proposal brought by a Developer who owned further turbary rights and require it to abandon

or discontinue the exercise the same when granting a permission then an applicant ought to

(in general and subject to feasibility) be required to acquire further rights.”

119. The foregoing points apply to this also.

120. The applicants continue:

“105. Further or in the alternative, the Board erred in law and or asked itself the wrong

question and/or misinterpreted the MDP22 and/or the Mayo Renewable Energy Strategy by

assessing feasibility by reference to the Developer’s current or extant control of the site.

The Developer had already acquired or controlled a significant number of turbary rights at

the site and the Board was required to assess the Proposed Development and/or to take into

account the cost of acquiring further rights and to weigh the same against the likely

environmental benefit that would or could accrue if such rights were acquired. The Board

failed to assess the practical feasibility and/or cost of acquiring further turbary rights at the

site and thereby misinterpreted the MDP22 and/or the Mayo Renewable Energy Strategy

and/or failed to take into account a relevant factor when concluding that the implementation

of such conditions would be infeasible.”

121. Insofar as this alleges misinterpretation of relevant materials, these are referred to only at

the most general level. Which specific provision was misinterpreted, what was the correct

interpretation, how did that properly arise and how did the board allegedly interpret that? All of that

is unparticularised contrary to the clear pleading obligations resting on an applicant.

122. The applicants continue:

“106. Without prejudice, and/or in the alternative, the Board failed to consider whether

the imposition of conditions restricting turf cutting would substantially deprive the person in

whose favour the permission operates of the benefits likely to accrue from the grant of the

permission.”

123. It’s hard to know what exactly that means but by definition there are a lot of things that any

given decision doesn’t narratively discuss. There are three categories of matters to be considered:

(a) a decision-taker is only required to consider a limited number of matters autonomously, (b) other

matters such as submissions need to be considered if they arise and only to that extent and (c) any

other potentially relevant matter is in an evaluative zone whereby a decision-taker can consider it if

she wants but is not obliged to. It is not a valid ground of challenge to pluck something out of the

air and say the decision-taker “failed to consider” that.

124. The applicants continue:

“107. The extent to which the Proposed Development will or could reasonably contribute

to the GHG emission reductions at reasonable cost and/or biodiversity protection was a main

issue and/or relevant consideration in the circumstances and the Board failed to consider

and/or have regard to the same.”

125. This is so obviously nonsense and so totally divorced from the actual decision and the reality

of the factual situation and context that it hardly warrants further discussion.

126. So ultimately one has to conclude that the ground is substantially inadmissible as being in

breach of the particularity requirements of rules of court.

Unsustainability on the facts

127. As the notice party submits:

“39. Having regard to the Applicants’ submissions on this aspect of Core Ground 2 (at

§§99 to 112), there is no engagement with the provisions of the Development Plan or Mayo

Renewable Energy Strategy so as to demonstrate any actual misinterpretation of those

provisions, still less any material contravention. In the circumstances, the Applicants cannot

discharge the onus of proving that any such material contravention arose.

40. For the avoidance of doubt, to the extent that the Applicants have actually advanced

any interpretation of the provisions of the Development Plan and / or Mayo Renewable

Energy Strategy, the basis upon which it is asserted that any such interpretation culminates

in a conclusion of material contravention is entirely unclear.”

128. The commission is correct to point out:

“45. This ground of challenge comprises incorrect mere assertion unsupported by

evidence combined with misinterpreting the Board’s Decision. The Board did not fail to have

regard to or misinterpret the Mayo County Development Plan 2022-2028 or the Mayo

Renewable Energy Strategy) or take into account an irrelevant factor or fail to take into

account a relevant factor as alleged.

46. A problem for the Applicants in relation to Core Ground 2 is that it too ‘invokes the

applicants’ fallacy that decisions must be read in the most erroneous way possible so that

they can get their order of certiorari’ (Save Roscam [2024] IEHC 335 at §64).”

129. Going back to the basic problem in this case which is deciding which of the multitude of fatal

problems to highlight, the whole bottle of smoke shatters when one actually asks what is all this

about. The applicants complain that the decision isn’t sufficiently climate-friendly, but without the

permission there would be ongoing turf-cutting and no wind farm. With the permission, there is a

wind-farm, a restored area, and no turf-cutting on the areas populated with turbines. In what

universe is that more climate-friendly, even assuming that there could be an arguably even better

project if the developer owned even more rights?

130. As the commission points out:

“52. The Applicants also do not consider the fundamental misconception in their

argument, namely that if the Proposed Development was not occurring, the entire area

would be still be subject to turf cutting by various third parties, that the Proposed

Development does not involve turf cutting and the Board’s Decision does not authorise same,

and that rather, as the Board has concluded, it involves cessation of turf cutting on certain

lands over which the Notice Party has control, and also involves a biodiversity net gain and

a reduction in greenhouse gas (GHG) emissions which would not otherwise be the case.”

131. On the factual complaint of lack of consideration, the board expressly considered the two

documents complained of. As the notice party points out:

“47. In this context, it is clear from the application documentation (including sections

2.4.2 and 2.4.3 of the Planning Statement) and from the Inspector’s Report, Board Direction

and Board Order, that the Development Plan and the Mayo Renewable Energy Strategy were

considered by the Board. In particular, both of those planning policy documents were

addressed in section 5.4 of the Inspector’s Report.”

132. Secondly insofar as the complaint is misinterpretation, the applicants have to show this,

which they haven’t. I accept the notice party’s analysis:

“48. It is Mercury Renewables’ position that the Board evidently had regard to the

Development Plan and/or the Mayo Renewable Energy Strategy in respect of the pleaded

provisions identified above. Moreover, in circumstances where it is a necessary corollary of

the obligation to the development plan that the board must correctly interpret the

development plan, it is necessary for the Applicants to establish that the Board

misunderstood the pleaded provisions of the Development Plan, which they have not.”

133. The commission points out:

“54. ... No misinterpretation of NEO8, NEP9 & NEP10 of the MDP by the Inspector has

been identified or demonstrated by the Applicants at all, the allegation is mere assertion

based only on the words used. NEO8 , NEP9 NEP10 CAP7 , CAP9 , and REP1 are general

provisions that involve evaluative planning judgement (per e.g., Jennings [2023] IEHC 14

at §112) insofar as they apply to the matters at hand, and no irrationality challenge is

advanced, only impermissible non-expert merits-based disagreement.

55. Further, the subject site is located in a Tier 1 Preferred Location for windfarms, as

set out in the 2011 RES and incorporated in the 2022 MDP. The said Development Plan has

a range of policies supporting both the protection of peatland and biodiversity and the

provision of renewable energy, as referred to and lawfully considered in the Inspector’s

Report (see e.g. §5.4.1 to §5.4.26, §18.1.1 and §18.1.2 of the Inspector’s Report). For

example, NEP 9 (considered at §5.4.5 of the Inspector’s Report) seeks to protect and restore

peatlands to transition to a low carbon economy. The use of cutover bog for the purpose of

a windfarm development is not inconsistent with this policy and in the present application

the Proposed Development facilitates the protection and restoration of peatland in the

Biodiversity Enhancement Management Area. There is no policy in the said Development

Plan which supports the restriction of domestic turf cutting or limiting of turbary rights.”

134. Insofar as there is a complaint about breach of the 2015 Act this is impermissibly

unparticularised and not properly pleaded so it can’t succeed. In any event no basis is set out. The

notice party is correct:

“Section 15 of the Climate Action and Low Carbon Development Acts

51. Core Ground 2 contains a plea that section 15 of the 2015 was breached by the

Board. This aspect of Core Ground 2 is wholly unparticularised in breach of Order 84, rule

20(3) of the Rules of the Superior Courts. Furthermore, this aspect of Core Ground 2 is not

addressed in any manner at all in the Applicants’ submissions. Indeed, the Applicants have

manifestly failed to identify any specific aspect of any measure, as referenced in section

15(1)(а) to (e) of the 2015 Act, which they assert is inconsistent with the Board’s Decision.

52. The Board Order expressly states that the Board had regard to section 15 of the

2015 Act and the Applicants have not adduced any evidence to the contrary. Furthermore,

the provisions of section 15 and the Climate Action Plan 2024 (‘CAP 24’) were addressed in

§5.6, §18.1.11, §18.2.3 of the Inspector’s Report.

53. In the circumstances, this purported ground of challenge to the Board’s Decision

cannot succeed.”

135. Insofar as the applicants make factual complaints these have not been sustained

evidentially.

Preclusion of the argument by inconsistent submissions by the applicants

136. While primarily relevant to core ground 1, the main problem for the applicants is the fact

that while now arguing for acquisition of turbary rights generally, before the board the applicants

championed the position of turbary-rights-holders. This is impermissible and borders on (if not

trespasses into) abuse of process.

137. Again the notice party correctly identifies the position:

“28. Second, the Applicants are not entitled to advance this ground in circumstances

where the submissions which were made to the Board, by or on behalf of the Applicants did

not raise the issue of, or seek to have, a planning condition imposed which would restrict

turf cutting on lands outside the control of Mercury Renewables. On the contrary, those

submissions made to the Board related to access for turbary plot holders, including whether

safe access to such turbary plots could be provided following completion of the Proposed

Development.”

138. The commission pulls few punches:

“47. By way of preliminary objection (to which no cogent response has been provided by

the Applicants’ submissions – which purport to deal with Core Ground 2 at §§98-112), and

relevant to the Court’s discretion to refuse relief, Core Ground 2 as pleaded is apt to mislead

in that the Applicants have failed and/or omitted to plead to or refer to the fact that the

Second Named Applicant, the Mayo Sligo Energy Concern Group (which Group the First

Named Applicant avers at paragraph 11 of her Affidavit filed on 22 January 2025 to be the

Chairperson of) in submission to the Board on the subject application (see e.g. at point 11

of their submission to the Board received on 24th May 2024, lodged via their agent Kieran

Cummins) submitted that access to turbary rights (concerning the right to cut turf) should

be continued. The only participant that raised concern in relation to turf cutting with the

Board was the Development Applications Unit (‘DAU’) (in the submission from the

Department of Housing, Local Government and Heritage) and same was lawfully considered

and addressed at e.g., §16.12.20 of the Inspector’s Report.

48. The Board submits that the First Named Applicant and the Second Named Applicant

do not have the requisite standing to raise, and/or ought not, in the exercise of the Court’s

discretion, be entitled to the grant of relief on the basis of, arguments now made alleging

failure by the Board to consider or impose conditions relating to the cessation of turf cutting

on lands not controlled by the Notice Party, when the Applicants could have but did not raise

this issue (or any concern regarding such turf cutting or any of the arguments now sought

to be advanced at Core Ground 2) with the Board in course of the application process and

which in substance appears to be inconsistent with the submissions made during the

consultation process.”

139. On this basis the commission is totally correct to submit:

“On this point, this case is a prime example of the Applicants ‘manipulatively moving the

goalposts’ in the sense referred to at §15 in Ballyboden [2021] IEHC 648 and of ‘gaslighting’

the Board in the sense described in North Great George’s Street [2023] IEHC 241 at §60.”

140. A party can’t seriously be entitled to certiorari on the basis of a point where it makes a

contrary point during the administrative process – even if the point was duly pleaded (which it isn’t

here) and otherwise factually and legally sustainable (which it isn’t here either).

Lack of legal basis for the complaint

141. Ultimately the applicants’ complaints are an impermissible attempt to launch a merits based

criticism of the permission. Such an exercise is not a valid ground of judicial review. The notice

party is correct that:

“46. In accordance with the principles in Jennings [[2023] IEHC 14, Holland J.], while the

interpretation of a provision of a development plan is a matter for the Court, the question of

the application of a properly interpreted provision of the development plan to the facts of a

particular case is more nuanced. Indeed, Jennings indicates that, where the provision allows

flexibility, discretion and/or planning judgement, then the review of its application is for

irrationality ...”

142. The applicants’ complaint under this and indeed all three core grounds ultimately comes

down to a merits complaint clothed in legal language. The point was made by Lady Hale in R (Cart)

v. Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 at para. 47, quoted above: “it is not difficult to

dress up an argument as a point of law when in truth it is no more than an attack upon ... factual

conclusions”.

EU law issues

Core ground 1 – Failure to assess turf-cutting for EIA purposes

143. Core ground 1 is:

“Core Ground 1: The Impugned Decision of the Board is invalid as it was made in

breach of s.37G and/ or s.171A and/or s.172 of the PDA 2000 and/or Article, 2, 3, 5, 8, 8a

and Annex IV of the EIA Directive as the Board failed to carry out a lawful EIA as it failed to

adequately or lawfully assess the environmental effects of the continuation of domestic turf

cutting (including GHG emissions and biodiversity and habitat loss) at the site during the

lifespan of the Permission and/or unlawfully concluded that it did not need to assess such

effects as the implementation of such restrictions would render the project infeasible and/or

the Board failed to lawfully assess the baseline and/or mitigation and/or offset measures.”

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

“Applicant’s Position:

Ground 1 – net biodiversity gain

The Inspector

28. At §16.12.20, when assessing chapter 8 of the EIAR, the Inspector reaches a net

biodiversity gain conclusion. When doing she relied on the consideration that without the

windfarm the wind farm site would remain subject to turbary and concluded that, therefore,

the construction of the footprint could be treated as causing no biodiversity loss. In replies

to particulars (§5) the Board states that the conclusion flows from the consideration that ‘in

theory’ the peat could be completely denuded or removed.

29. The Board failed to give adequate reasons for the conclusion that the extent and

intensity and effect of future turbary would be such as to result in the complete loss of

peatland habitat biodiversity without the windfarm. The EIAR took a different approach.

Board’s Position

30. The Board’s Decision is not invalid as alleged at Core Ground 1. The EIA that the

Board completed was a full assessment carried out in accordance with the requirements

applicable to that assessment. The Board (and its Inspector and its Ecologist) were expressly

satisfied as to the adequacy of the information submitted for EIA purposes and the Applicants

have not established that the Board’s Decision was irrational in this respect, nor have the

Applicants evidentially established an inadequacy here in relation to the EIA that the Board

carried out. The Applicants’ non-expert, not adequately particularised (contrary to Order 84

rule 20(3) RSC), subjective contentions that the Board failed to carry out lawful EIA are

incorrect and without substance. The allegation as to inadequate assessment by the Board

of biodiversity impact, namely that the Board failed to adequately assess the impact of

continued domestic turf cutting on biodiversity, is baseless and incorrect. The issue of the

peatland habitats and turbary at the windfarm site was assessed throughout the relevant

chapters of the EIAR. The Ecologist provided her expert professional opinion as to the

adequacy of the biodiversity information presented in the EIAR. The impacts on peatland

habitats at the windfarm site formed a key part of the Board Ecologist’s evaluation and

assessment. The non-expert assertion and/or merits-based disagreement on the part of the

Applicants does not in any way demonstrate any legal infirmity or error in the Report of the

Board’s Ecologist or the assessment in same as to the adequacy of information provided by

the Notice Party (nor do such assertions by the Applicants disclose any infirmity in the

Inspector’s Report or the Board’s Decision). Notably, the Applicants’ Position is centred on

the allegations advanced at §84A of the second amended statement of grounds, not Core

Ground 1 as pleaded in the original amended statement of ground). The amendment to

include that new ground of challenge has not yet been allowed by the Court and so same is

addressed herein, on a de bene esse basis. In essence, the Applicants allege that the Board

failed to give adequate reasons for applying an assessment methodology different to that

adopted in the EIAR, when reaching a net biodiversity gain conclusion. However, that

allegation is entirely misconceived as the Inspector and the Board did not in fact apply a

different assessment methodology to that contained in the EIAR in that regard at all. This

belated new ground of challenge is centrally premised on the misinterpretation and/or

misstatement of the Board’s Replies to Particulars - which document does not in fact state

that such a different assessment methodology to that contained in the EIAR was used by

the Inspector or the Board here, nor could such Replies to Particulars document alter the

text of the Board’s Decision or the Report of its Inspector (nor did it purport to).

31. The Applicants make the incorrect and unfounded assumption (which is denied) that

in some respect the Inspector in her Report exclusively considered the ‘worst case scenario’

to be the most likely scenario and therefore did not consider or assess matters in accordance

with the ‘do nothing scenario’ contained in the EIAR. However, the Inspector did not do so

at all (which she has confirmed on affidavit), and there is no basis for any such assertion or

assumption by the Applicants. Neither the Replies to the Particulars nor §16.12.20 of the

Inspector’s Report in any way involve or indicate the departure from the assessment

methodology used in the EIAR nor the application of a different methodology from that used

in the EIAR. Contrary to what the Applicants erroneously assert (being assertions

contradicted by the actual text of the Board Order and the Inspector’s Report), far from the

Board applying a different assessment methodology to that contained in the EIAR in respect

of net biodiversity gain, the Inspector and the Board clearly and expressly agreed with the

content of the EIAR and were satisfied as to its adequacy for EIA purposes in that connection,

and did not in fact depart from the assessment methodology in same or purport to do so.

As to turf cutting/peat removal/turbary activity, what the Inspector lawfully and reasonably

considered was the details provided by the Notice Party (including e.g. at Volume II, Chapter

5, section 5.6 of the EIAR) in relation to same and what was said in relation to same by third

party observers in the process, including by the Second Named Applicant herein. In

substance and reality, the Applicants have belatedly contrived a difference between the ‘do-

nothing scenario’ in the EIAR and what is stated in the Replies to Particulars, based only on

a total distortion and misinterpretation by the Applicants of what is stated in the Replies to

Particulars. In the premises, as to reasons, the Applicants abstract assertions alleging

inadequate reasons are baseless and denied. No lack of reasons has been made out by the

Applicants at all and framing the issue as one of national and EU law adds nothing to the

point. The Board in its Decision provided the main reasons for the main issues as required.

Further, insofar as the ‘worst case scenario’ was considered by the Inspector in the context

of EIA (at e.g. §13.10, §16.8.28, §16.10.31, §16.13.24, §16.13.50, and §16.21.6, of the

Inspector’s Report) there is nothing unlawful or invalid about that at all. Indeed,

consideration of the ‘worst case scenario’, insofar as it actually occurred in an EIA context

for the subject application, and for example in the EIAR and associated documentation, is

consistent with relevant Guidance. Leaving aside the false premise on which the ground at

§84A of E(Part 2) is advanced, the Board and its Inspector were entitled to consider what

was the worst outcome of the continuation of turf cutting activity.

Mercury Renewable’s Position

32. At Core Ground 1, the Applicants allege that the Board Decision is invalid on the

grounds that the Board failed to assess the environmental effects of ongoing domestic turf

cutting on the site of the Proposed Development and/or failed to consider or impose a

condition requiring the cessation of turf cutting at the site on lands not controlled by Mercury

Renewables.

33. The Board agrees and adopts the position of the Board as set out above at §§30-31.

34. It is Mercury Renewables’ position that:

(i) the Board does not have a power, whether under section 37G or otherwise, to

impose a condition for regulating the development or use of land – including in relation to

requiring the cessation of turf cutting – which is not under the control of the applicant for

permission; and

(ii) the Applicants are not entitled to advance such a ground in circumstances where the

submissions which were made to the Board did not raise the issue as to whether the Board

should impose a condition to restrict turf cutting on lands outside the control of Mercury

Renewables and, in fact, made submissions that the Applicants were ‘gravely concerned’ in

relation to access for turbary plot holders, including whether safe access to such turbary

plots could be provided following completion of the Proposed Development.

35. The position of Mercury Renewables in relation to turbary rights issues was clearly

set out in the documentation submitted to the Board and, in addition, it was expressly stated

that Mercury Renewables had taken account of the likely significant environmental impacts

of continued peat cutting in cumulation with the Proposed Development in the EIAR.

36. There is no basis upon which to contend that the assessment carried out by the

Board, its Inspector and expert ecologist breached any duty on the Board to carry out a

lawful EIA and/or were unreasonable and/or that the Board failed to provide adequate

reasons for its assessment and conclusions in this regard. The Applicant advances no expert

evidence to support this contention.

37. Mercury Renewables confirmed to the Board that peat cutting will cease within the

footprint of the development infrastructure at the application site and the habitat restoration

area, as all these lands are under its control.

38. The Applicant’s summary in respect of Core Ground 1 to the effect that ‘The Board

failed to give adequate reasons for the conclusion that the extent and intensity and effect of

future turbary would be such as to result in the complete loss of peatland habitat biodiversity

without the windfarm. The EIAR took a different approach’ is not understood. The Inspector

did not take a different approach to the EIAR, and the Applicant has provided no particulars

of same.”

145. The basic reasons why this point fails are as follows.

Pleading objection

146. The commission objects:

“18. The Applicants’ non-expert, and not adequately particularised (contrary to Order 84

rule 20(3) RSC), subjective contentions that the Board failed to carry out lawful EIA are

incorrect and without substance.”

147. One can view this core ground as having two dimensions. Firstly as regards anything other

than the complaint that turf-cutting by others, not within the control of the developer, could have

been assessed in more detail or conditioned, the basis of this core ground is obscure and

unparticularised.

148. As regards the turf-cutting by others, what is the basis for the alleged sweeping legal

consequences of the board’s treatment of this issue? Sub-ground 1 starts very inauspiciously on

this – invoking a “vast quantity” of material:

“1. There is a vast quantity of legal instruments and associated plans, policies and

guidelines that regulate the carrying out of the Proposed Development. To the largest extent

permissible under law the Applicants reserve the right to rely on further material if necessary

and/or to amend the within grounds on receipt of any statement of opposition. For the

avoidance of doubt the largest extent permissible under law includes consideration of

European law and, without prejudice, the Directives and Regulations cited and relied on

herein, Art 3.3 of the TEU, Art 191 & 192 (including achievement of the policies specified

thereunder) of the TFEU, and Art 37, 41 & 47 of the Charter and/or Art 6, 8, 13 and Art 1 of

Protocol 1 of the ECHR as well as Art 40.3 of the Constitution and the 2015 Act.”

149. Sub-grounds 2 to 57 then purport to quote some of this “vast quantity” of material over 38

pages, but in general, high-level, terms, and in no instance setting out a legal route-map between

the facts and any remedy legitimately sought by the applicants. Quotation of high-level statements,

however lengthy, is not a substitute for granular construction of a route-map between facts and

relief sought. The fallacy that high level pro-applicant material translates into relief in a particular

case is best described as the argument for certiorari by osmosis. That is not a valid conceptual basis

for relief.

150. Insofar as any identifiable points are made these are in general terms – e.g. that the

applicants rely on the DAU submission. But so what? That wasn’t the final word – the issues were

then analysed by the inspector and board.

151. Or sub-ground 63:

“63. The Applicants assert or plead that the EIAR does not assess or adequately assess

the extent or intensity of the impact of continued turf cutting at the site. Without prejudice

the magnitude of the impact on biodiversity, habitat loss and GHG emissions is not assessed

or quantified.”

152. You don’t need to be Sigmund Freud to appreciate the significance of the word “assert”

bubbling up in this context – that’s all this is: assertion. In what way does the EIAR not assess this

issue and by reference to what legal standard? Who knows.

153. Insofar as sub-grounds 71-80 (largely added by amendment) introduce some particulars,

they all relate to an alleged assessment of activities not under the control of the developer and not

part of the project. They relate to activities that are happening anyway, alongside which the project

is going to produce a net biodiversity gain in the view of the commission. So where’s the legal

pathway from this to certiorari? It isn’t pleaded in any way that is even readily identifiable, let alone

legally sound. These pleas are in addition phrased in general terms that don’t particularly engage

with the facts of what was and was not considered in the EIAR and inspector’s report.

154. Sub-grounds 80-89 have the flavour of the sort of tedious reformulations that were viewed

with disfavour by MacMenamin J. (Fennelly and Clarke JJ. concurring) in Babington v. Minister for

Justice, Equality and Law Reform & Ors. [2012] IESC 65, [2012] 12 JIC 1806 (Unreported, Supreme

Court, 18 December 2012). In particular, rephrasing a lack of consideration of X as a lack of reasons

doesn’t get you very far if X is a bit of a red herring and is not a legal stumbling-block to the project.

155. Ultimately I would agree with the opposing parties that this ground is substantially

unparticularised. As with core ground 2, it is not the function of the court to trawl through the

wreckage of an impermissible pleading to identify snippets that might have been adequate in

isolation. In any event the ground fails for a range of other reasons.

Unsustainability of the applicants’ case on the facts

156. A central factor is that the notice party is not in a position to prevent third parties from

exercising their turbary rights in any areas not in the notice party’s control. This is a problem

independent of whether the project is consented or not. As the notice party points out:

“16. It is also evident that the EIAR assesses the extent and intensity of the impact of

continued turf cutting at the site and, in this regard, Mercury Renewables refers to Chapter

3 ‘Alternatives considered’, Chapter 5 ‘Terrestrial Ecology’, Chapter 6 ‘Aquatic Ecology’,

Chapter 9 ‘Hydrology & Hydrogeology’, and Chapter 10 ‘Air and Climate’ of the EIAR ( (Tab

5.6, 5.7, 5.10, 5.11 of ‘PD1’)and the section 3.5 of November 2023 Response document

(Tab 11.1 of ‘PD1’).

17. In addressing issues related to turf cutting outside areas under its control, the EIAR

specifically stated that ongoing peat cutting would continue in those areas outside the control

of Mercury Renewables. The Board and its Inspector expressly acknowledged that the

windfarm site is part of an already worked cut over bog with extensive existing drainage and

access track network. In addition, at §16.12.20 of the Inspector's Report, it is expressly

stated that, ‘without the wind farm, the entire area would still be subject to turf cutting.

Therefore, there is a biodiversity net gain, from zero to over 10 ha. I consider that the

reduction in greenhouse gases arising from both the wind farm and the hydrogen pant has

to be balanced against what otherwise would be an even more rapid drainage of the cutover

bog.’ Furthermore, at §16.14.33 of her report, the Inspector referenced the fact that,

‘[o]bservers have referred to continuing to avail of their turbary rights.’

18. Significantly, including at §18.1.2 of her report, the Inspector stated:

‘I do not consider that the applicant has the legal right to prevent turf cutting outside of the

Biodiversity Enhancement Management Area. I am satisfied that the applicant is complying

with the policy within areas where such control can be exerted.’

19. The Board’s Ecologist Report (Appendix 1 to the Inspector’s Report) ‘Table 2

Biodiversity: Peatlands habitats – consideration of key issues raised in DHLGH observations’

(at page 243 of the Inspector’s Report), states as follows under the heading ‘evaluation’:

‘The 10.6ha area identified for habitat preservation and enhancement is the only area within

the gift of the applicant to contribute to positive biodiversity actions. Accept Applicants

conclusion that a residual moderate adverse effect on peatland habitat is likely.’”

157. The claim of lack of assessment is clearly misconceived. As the notice party points out:

“Contrary to the pleaded case advanced by the Applicants, the Board did not fail to assess

the effect of the Proposed Development in respect of Greenhouse Gas [GHG] emissions, land

take, biodiversity and/or habitat loss.”

158. In essence the developer is taking two steps towards biodiversity gain – above and beyond

the climate benefits of the renewable energy element of the project – firstly to cease any turf-cutting

on its own lands being built on by turbines, and secondly to rehabilitate a compensatory area of

bogland. As the notice party points out:

“12. The EIAR assessed the likely significant effects on the environment of the Proposed

Development. At section 13.4.2, the impacts of land use change at the site of the Proposed

Development were assessed, including the potential impact to turbary/peat cutting.

Additionally, as regards the area of blanket bog comprising circa 10.6 hectares referenced

in §E(2)59 of the Amended Statement of Grounds, and as is evident from Chapter 2 of the

EIAR, an area of cutover bog, measuring approximately 15.23 hectares, will be built upon.

13. As the cutover bog is considered of Local Importance (higher value), the

rehabilitation of an area of cutover lowland blanket bog habitat of 10.6 hectares adjoining

the southwest corner of the site of the Proposed Development is being provided to off-set

the habitat loss through the implementation of the Biodiversity Enhancement and

Management Plan (‘BEMP’) (Appendix 5.4 to the EIAR at Tab 5.23 of ‘PD1’).

14. Indeed, as is clearly stated in the planning application documentation, the 10.6

hectares of land comprising the BEMP area is under the control of Mercury Renewables, the

applicant for permission. By way of further example, the ‘Response to Third Party

Submissions and Observations Planning Application Reference ABP-317560-23’, dated

November 2023 (the ‘November 2023 Response document’), and submitted to the Board on

behalf of Mercury Renewables stated (at page 153), inter alia, ‘peat cutting will cease on the

plots in the control of the Applicant, under the footprint of the Proposed Development, i.e.

under the turbines, access tracks etc and habitat restoration area.’

15. The Applicants place emphasis on the submission made by the Development

Applications Unit of the Department of Housing, Local Government and Heritage, dated 31

August 2023 (Tab 7 of ‘ADMcG2’); however, as set out above, in its November 2023

Response document (Tab 11.1 of ‘PD1’), Mercury Renewables confirmed that peat cutting

will cease on all lands within its control.”

159. To hold that the applicants have made out their complaint on the facts would fly in the face

of the obvious realities of the situation, before we even get to their failure to contest the opposing

evidence in the proper manner.

Preclusion of the argument by inconsistent submission

160. The points made under core ground 2 also apply here. The applicants can’t be permitted to

make one case to the board and to get certiorari based on an inconsistent case to the court.

Lack of legal basis for the complaint

161. As pointed out by the commission:

“17. The insurmountable difficulty for the Applicants in this case is that the law is clear

in that decisions as to the adequacy of the information to hand in EIA and as to the merits

of the EIA carried out on the basis of that information are judicially reviewable as to merit

only for irrationality, even bearing in mind the more nuanced and flexible understanding of

the concept of irrationality, including proportionality. Merits-based disagreement dressed

up in legal language, which is in substance what the Applicants’ written submissions

comprise, is no answer and does not avail the Applicants here. As stated in G[r]assridge

Limited [2024] IEHC 669 at §20:

‘20. In my view and as a general proposition, the observation made in Jones [CITATION in

brackets] applies here that “The applicants’ point is simply a merits-based disagreement

dressed up in legal language”. In this case, various legal-looking outfits are draped over

that disagreement but fail to conceal the reality of a merits-based challenge. Short of

irrationality of the decision, merits-based challenges are impermissible in judicial review.

[…]’”

162. As regards reasons in particular I agree with the commission:

“33. Contrary to what is asserted by the Applicants, the Board in its Decision provided

the main reasons for the main issues as required (see e.g., O’Donnell v. An Bord Pleanála

[2023] IEHC 381, §§45-57; Balscadden Road SAA Residents Association Limited v. An Bord

Pleanála [2020] IEHC 586, §39; Friends of the Irish Environment v. Minister for the

Environment & Ors [2025] IEHC 61 at §86(i); Carrownagowan (No.3) [2024] IEHC 549 at

§60 et seq; Graymount House Action Group [2024] IEHC 542 at §28 to §31.

34. Reasons can (100 Meter Tall Group [2025] IEHC 42 at §76 and the case law cited;

Fahybeg [2025] IEHC 310 at §35), and in this case did include, by way of acceptance of the

Notice Party developer’s material, including the EIAR and associated documentation (see

e.g., pages 32 and 33 of the Board Order and section 16.2, §16.4.1, page 208 of the

Inspector’s Report and §25.3.2-§25.3.4, §27.1.2, §27.1.3, §28.2.1-§28.2.3 of the Board

Ecologist’s Report). The reasons for the Board’s Decision can be found not only in the Board

Order, but also in the Board Direction, the Report of the Inspector, the Board’s Ecologist’s

Report and in other documents referred to expressly or by necessary implication in those

Reports and in the Decision, as well as in other information provided to the Board, including

the EIAR and associated documentation submitted by the Notice Party to the Board. As

regards the single case referred to the Applicants’ submissions (i.e. Connelly) the Applicants’

reliance on Connelly is misplaced as the twofold purpose of the duty to give reasons per

Connelly has been achieved as (i) it is clear why the Board’s Decision to grant permission

was reached, and (ii) the Applicants had enough information to consider whether they can

or should apply for judicial review of the Decision, and the reasons provided are such as to

allow the Court to engage properly in that review. It is clear what the reasons are, and that

the Applicants disagree with them on the merits, but that is not a basis for certiorari of the

Board’s Decision or any other relief, nor does it follow that the reasons are inadequate in

law merely because the Applicants disagree with them.”

163. Given that the inspector expressly considered the problem of plots not under the developer’s

control, the claim of lack of consideration or lack of reasons can’t get off the ground.

164. The applicants’ repeated demand for more ecological evidence or reports before the board

is essentially polemical and a thinly disguised merits-based challenge.

165. Ultimately, the kernel of the applicants’ case is an impermissible attempt to cloak substantive

disagreement with the outcome in legal language. As the notice party points out:

“11. Indeed, the majority of the pleas made in respect of Core Ground 1 amount to an

impermissible merits-based challenge in the absence of alleging any irrationality on the part

of the Board and ought to be dismissed: per Grassridge Ltd., at §20.”

166. Insofar as the applicants make a point that there should have been a turf-cutting condition

on lands not controlled by the notice party, a point they have repetitively made in a number of

pointlessly reformulated ways, the 2000 Act doesn’t give the commission jurisdiction to impose

conditions that a developer isn’t in a position to comply with due to lack of control over such lands.

Any suggestion to the contrary is, as the notice party submits, “unstateable”:

“21. The Applicants complain that the Board Decision is invalid by omission on the part

of the Board to consider, or impose, a planning condition requiring the cessation of turf

cutting on lands which are not controlled by Mercury Renewables. However, this purported

ground of challenge is unsustainable for a number of reasons.

22. First, as a matter of law, the Applicants’ contention is manifestly unstateable. It is

clear, from the provisions of the 2000 Act, that the Board had a general power to attach

conditions to a permission for development under section 37G(3) and also a specific power

pursuant to section 37G(7):

(7) Without prejudice to the generality of the Board’s powers to attach conditions under

subsection (3) the Board may attach to a permission for development under this section—

(a) a condition with regard to any of the matters specified in section 34(4),…

23. Having regard to the provisions of section 34(4)(a), as applied by subsection 37G(7),

the Board was empowered to impose:

(a) conditions for regulating the development or use of any land which adjoins, abuts or is

adjacent to the land to be developed and which is under the control of the applicant if the

imposition of such conditions appears to the planning authority—

(i) to be expedient for the purposes of or in connection with the development authorised by

the permission, or

(ii) to be appropriate, where any aspect or feature of that adjoining, abutting or adjacent

land constitutes an amenity for the public or a section of the public, for the purposes of

conserving that amenity for the public or that section of the public (and the effect of the

imposition of conditions for that purpose would not be to burden unduly the person in whose

favour the permission operates)”

[Emphasis Added]

24. The Board does not, however, have the power to impose planning conditions in

relation to land which is not under the control of the applicant for permission.

25. In Weston v. An Bord Pleanála [2008] 2 ILRM 542, the High Court addressed the

general power of the Board to impose conditions in a grant of permission and the prescriptive

conditions set out in section 34(4), per MacMenamin J. (at §§32 and 34). The issue was

recently considered by Holland J. in Shadowmill Limited v. An Bord Pleanála [2023] IEHC

157, at §304:

‘Ashbourne Holding and Weston establish that, as a general proposition, a planning

condition, other than one of a kind listed in S.34(4) PDA, is valid if it rationally accords with

stated objectives of proper planning and sustainable development and fairly and reasonably

relates to the permitted development.’

26. In circumstances where the Oireachtas saw fit to expressly empower the Board to

impose a planning condition regulating the use of certain land which is under the control of

the applicant and did not empower the Board to impose conditions regulating the use of land

which is not under the control of the applicant for permission then, as a matter of statutory

construction, the Board does not have jurisdiction to impose planning conditions regulating

the use of land which is not under a developer’s control.

27. The condition proposed by the Applicants is neither one caught by section 34(4)(a)

of the 2000 Act or the Board’s general power, as such a condition would not reasonably

relate to the permitted development, nor has the Applicant made that case.”

167. Section 34(4)(a) of the 2000 Act is limited to a power to impose conditions on lands owned

by the applicant for permission, and it is clear from the context that that type of situation limits

conditions under subsequent paragraphs of sub-s. (4) generally, because the focus is on things that

such an applicant can actually achieve:

“(4) Conditions under subsection (1) may, without prejudice to the generality of that

subsection, include all or any of the following—

(a) conditions for regulating the development or use of any land which adjoins, abuts or is

adjacent to the land to be developed and which is under the control of the applicant if the

imposition of such conditions appears to the planning authority—

(i) to be expedient for the purposes of or in connection with the development authorised by

the permission, or

(ii) to be appropriate, where any aspect or feature of that adjoining, abutting or adjacent

land constitutes an amenity for the public or a section of the public, for the purposes of

conserving that amenity for the public or that section of the public (and the effect of the

imposition of conditions for that purpose would not be to burden unduly the person in whose

favour the permission operates);”

168. Reading later paragraphs as covering lands the applicant for permission does not control

would contradict the restriction in (a).

169. Applying the law as to statutory interpretation referenced earlier, the applicants’

interpretation here falls foul of the presumption against unworkable, unenforceable and

contradictory readings of legislation. It would be illogical to read a general power to impose

conditions as extending to imposing conditions which the applicant for permission can’t satisfy, in

particular by reason of not controlling land the control of which would be required to satisfy the

condition concerned.

170. This is just a particular example of a surprisingly widespread fallacy. Anyone can pick up

virtually any enactment phrased in general language and whine that powers thereby conferred can

be misused. What that complaint overlooks is the inherent principle that powers have to be

exercised reasonably. If legislators had to specify in micro-terms the exact contours of what any

enabling provision means, by express enactment in advance, that would quickly prove to be an

impossibly convoluted exercise in drafting. The imagination of technical quibblers is always going

to be one step ahead of drafters, no matter how expert. Such convolution in drafting is not just

futile but unnecessary – all powers are inherently conditioned by overarching principles of

reasonableness and legality. Indeed the language of an enactment isn’t the only check and balance

– all powers are exercised in an institutional context which in turn supplies a range of practical and

legal controls over anything. An administrative decision-taker can’t go wild on the basis of the

general language of a power, because she probably has hierarchical superiors and definitely has

governance structures, including review by the courts. A court for that matter can’t go wild because

in the first instance, there are court presidents to keep a general eye on things, and more

imperatively there are higher courts. Even an apex court can find its decisions coming under

examination by European and international courts and of course there is also the check and balance

of responding action by other branches of government. Plus the collective nature of appellate

decision-making muffles any extremes and tends generally towards a centrist, consensus position.

So checks and balances can come in many forms – the fact that they aren’t always written down

doesn’t mean they don’t exist. Applying the basic concept here, the ostensibly general power to

impose conditions on a grant of permission doesn’t include the imposition of conditions that can’t be

complied with by the particular applicant for permission. If a planning decision-taker is of the view

that a development could only proceed on such conditions then the particular application should be

refused.

Core ground 3 – Inadequate EIA due to lack of information from EPA

171. Core ground 3 is:

“Core Ground 3 The Impugned Decision is invalid as the Respondent failed to comply with

Art 2(3) of the EIA Directive and ss. 173A(5) and 173D(3) of the PDA and the obligation to

carry out a joint assessment in that the Board failed to consult with the EPA and accordingly

erred in granting development consent for the project when it knew or ought to have known

that no proper EIA was conducted with respect to emissions to be discharged from the

Proposed Development. There was no co-ordinated and/or joint procedure with the EPA and

when the Respondent knew or ought to have known that contrary to Article 8a of the EIA no

monitoring regime for the water extraction and discharges from the works had been

assessed. As there was no adequate response to the request for the submission from the

EPA the Board ought to have refused the application on the basis of insufficient information.

Furthermore, the Board gave no, or no adequate reasons for deciding the application in the

absence of a response from the EPA.”

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

“Applicant’s Position:

49. As there was no adequate response to a request for the submission from the EPA

the Board ought to have refused the application on the basis of insufficient information.

There was no co-ordinated and/or joint procedure with the EPA and when the Respondent

knew or ought to have known that contrary to Article 8a of Directive 2011/92/EU no

monitoring regime for the water extraction and discharges from the works has been properly

assessed. Furthermore, the Board have no reasons or any adequate reasons for deciding

the application in the absence of a response.

Board’s Position:

50. The Board’s Decision is not invalid as alleged at Core Ground 3. This ground of

challenge is not adequately particularised contrary to Order 84 rule 20(3) RSC. Without

prejudice to that pleading objection, Core Ground 3 is entirely without substance and reveals

no valid complaint. First, the Applicants’ assertion as to a lack of a co-ordinated and/or joint

procedure with the EPA for the purposes of EIA is misconceived as EU law does not require

the centralisation of EIA functions in relation to a project into a single authority, nor into a

single development consent process. The Applicants’ reliance on Article 2(3) of the EIA

Directive, section 173A(5), 173D(3) and 173D(6) of the PDA 2000 is entirely misplaced.

Second, the EPA was in fact consulted by the Board (addressed in detail in the Board’s

Statement of Opposition and written legal submissions) and there is nothing unlawful arising

from the response of the EPA in that regard.

51. The position of the EPA was correctly and properly considered by the Inspector

(§7.1.25, §10.1 Inspector’s Report). The EPA was also consulted by the Notice Party in

relation to the Proposed Development, specifically in relation to the EIAR. The Applicants’

assertion at Core Ground 3 by reference to Article 8a of the EIA Directive is misconceived.

Article 8a(1)(b) of the EIA Directive requires environmental conditions to be attached to the

permission that would avoid, prevent or reduce and, if possible, offset significant effects on

the environment. Such conditions must be implementable and enforceable. That was done

by the Board here and there is no basis for contending otherwise. Further, monitoring for

water extraction and discharge from the works was addressed in the EIAR (see e.g. Volume

II, Chapter 9 (at Tab 5 to Exhibit ‘PD1’) which in turn references Volume IV, Appendix 9.3

‘Preliminary Discharge & Assimilative Capacity Assessment’) and in the Notice Party’s

November 2023 Response document (at Tab 11 to Exhibit ‘PD1’). The Board also imposed

conditions to the grant of permission which regulate the monitoring for water extraction and

discharge from the works (see e.g., Conditions 1 and 4 in the Board Order at pages 36 and

37 of same). Moreover, the adequacy of the information that was before the Board for EIA

purposes, including with respect to emissions to be discharged from the Proposed

Development, must be assessed in context and is primarily a matter for the Board. In this

connection, the Applicants have failed to establish that the Board had before it no relevant

material which would support its Decision. The Board did an EIA in accordance with the

requirements applicable to that assessment. The non-independent, non-expert opinion of

the Applicants (as set out above) alleging ‘no adequate response’ from the EPA and

‘insufficient information’ comprise inadmissible merits-based disagreement which is not a

basis for certiorari of the Board’s Decision or any other relief. As regards reasons, Core

Ground 3 involves the Applicants’ misreading the Board’s Decision in a way that renders it

invalid rather than valid, as the Board’s Decision complies with the relevant legal principles

on reasons. No lack of reasons has been made out. On a correct interpretation of its

Decision, the Board provided the main reasons on the main issues. Further, the Applicants’

assertion as to a lack of reasons (which is denied) is based on an erroneous premise, namely

the Applicants’ own incorrect assertions and supposition as regards the EIA that was carried

out by the Board, as well as the Applicants’ misconceived allegation that there was

something unlawful in the Board determining the application absent a response from the

EPA.

Mercury Renewable’s Position:

52. Whilst it is admitted that a ‘joint assessment’ was not carried out by the Board and

the EPA, there was no obligation to carry out such an assessment on the planning application

submitted by Mercury Renewables to the Board under the provisions of section 37E of the

2000 Act. The Applicants’ reliance on Article 2(3) of the EIA Directive, section 173A(5),

173D(3) and 173D(6) of the 2000 Act is entirely misplaced.

53. As a matter of fact, the EPA was consulted on the planning application and made

submissions to the Board dated 29 August 2023 and 25 September 2023. It is evident that

the EPA was consulted on the planning application (including the EIAR) and that the

submissions made by the EPA were considered by the Board and its Inspector, including in

the context of carrying out an EIA. While the Applicants may not be satisfied with the EPA’s

submissions, that does not form a legal basis upon which to challenge the Board Decision.

54. Mercury Renewables does not understand the Applicants’ statement in this

Statement of Case that ‘the Board have no reasons or any adequate reasons for deciding

the application in the absence of a response’. The EPA made two submissions to the Board

as recorded in the Inspector’s Report. The EPA’s submissions of 29 August 2023 are

exhibited by the Applicants, and so the plea that there was an ‘absence of a response’ from

the EPA is simply not understood and incorrect as a matter of fact.

55. Contrary to the mere assertion made by the Applicants, as a matter of fact,

monitoring for water extraction and discharge from the works was addressed in the EIAR

(including, in particular, section 5.3 ‘Detailed Monitoring Plan’ and Appendix 9.3 ‘Preliminary

Discharge & Assimilative Capacity Assessment’) and in the November 2023 Response

document. Furthermore, the Board imposed conditions to the grant of permission which

regulate the monitoring for water extraction and discharge from the works, including

Conditions 1 and 4.”

Pleading objection

173. The sum total of the applicants’ pleading on this issue is:

“Core Ground 3 The Impugned Decision is invalid as the Respondent failed to comply with

Art 2(3) of the EIA Directive and ss. 173A(5) and 173D(3) of the PDA and the obligation to

carry out a joint assessment in that the Board failed to consult with the EPA and accordingly

erred in granting development consent for the project when it knew or ought to have known

that no proper EIA was conducted with respect to emissions to be discharged from the

Proposed Development. There was no co-ordinated and/or joint procedure with the EPA and

when the Respondent knew or ought to have known that contrary to Article 8a of the EIA no

monitoring regime for the water extraction and discharges from the works had been

assessed. As there was no adequate response to the request for the submission from the

EPA the Board ought to have refused the application on the basis of insufficient information.

Furthermore, the Board gave no, or no adequate reasons for deciding the application in the

absence of a response from the EPA.

108. The Respondent failed to comply Article 2(3) of the EIA Directive and Article 173A(5)

and 173D(3) of the PDA and the obligation to carry out a joint assessment in that the Board

failed to consult with the EPA and accordingly erred in law and acted contrary to Article 2 of

Directive 2011/92/EU of the European Parliament and of the Council, as amended, (‘the EIA

Directive’) in granting development consent for the project when it knew or ought to have

known that no proper EIA was conducted with respect to emissions to be discharged from

the proposed development. There was no co-ordinated and/or joint procedure with the EPA

and when the Respondent knew or ought to have known that contrary to Article 8a of

Directive 2011/92/EU as amended no monitoring regime for the water extraction and

discharges from the works has been assessed. As there was no adequate response to the

request for the submission from the EPA the Board ought to have refused the application on

the basis of insufficient information. Furthermore, the Board have no reasons or any

adequate reasons for deciding the application in the absence of a response from the EPA

(the foregoing is moved from paragraph 11 of the original Statement of Grounds).”

174. This telegrammatic block of text doesn’t even begin to comply with the requirement of the

rules of court as to specificity as set out above. A list of matters allegedly breached are set out with

no specification of how exactly these are breached and no route map from the alleged problem to

the claimed remedy. This form of pleading is improper and inadmissible.

175. As regards the hydrogen plant in particular, I agree with the notice party:

“60. It should be noted that the Applicants in their written submissions now appear to

cast Core Ground 3 as a complaint that the Hydrogen Plant was not considered as part of

the EIA – a complaint which is not pleaded by the Applicants. For that reason, whilst the

assertion is refuted by Mercury Renewables (for example, on the basis of an examination of

the EIAR and the Board’s Inspector’s report), the allegation is not addressed further in these

submissions.

61. The purported particulars of Core Ground 3 comprise a single paragraph and, once

again, the Applicants have manifestly failed to comply with the requirements of Order 84,

rule 20(3). Moreover, the issues which are pleaded were not raised before the Board.”

176. The notice party describes as “truly bizarre” the suggestion that the plant was not

considered, since it clearly was.

Unsustainability on the facts

177. The further problem with this ground is that it is heavy on factual complaint – inadequate

EIA, inadequate response to the EPA and so on – but light on supporting evidence. The onus of

proof to demonstrate such inadequacy, absent error on the face of the materials which doesn’t apply

here, is on an applicant, a duty that hasn’t been discharged here.

178. As the notice party submits:

“90. The factual position is that the EPA made two submissions to the Board on the SID

planning application. The Applicants do not consider those submissions are ‘good enough’.

However, the substantive adequacy of the submissions made by the EPA on the planning

application is not a matter which is capable of vitiating the Board’s Decision on that

application. The EPA made submissions, those submissions were considered by the Board

– that is an end to the matter. The EPA is not a party to these proceedings, and no relief is

sought against the EPA.

EPA Submissions on Online File

91. There is no pleaded complaint made in these proceedings that the submissions of

the EPA were not placed on the Board’s online file. Insofar as the Applicants seek to pursue

such a complaint via their written submission at §11, this is not permissible.”

Lack of legal basis for the complaint

179. If further problems be required, the whole premise of the ground is legally misconceived.

There is no obligation to conduct a joint assessment. On the basis of the law cited earlier in this

judgment, there is nothing impermissible in EU law in having different consenting authorities

involved in different aspects of an overall project and in potentially conducting their own

assessments. Insofar as the applicants make an objection of principle, that misunderstands EU law

at a fundamental level. Insofar as they complain about the statutory architecture, the legislation is

unchallenged and the State were not made parties. Insofar as they complain about the adequacy

of the particular assessments here, that requires evidence and overcoming the burden of proof,

something they haven’t managed.

180. The notice party is basically correct:

“63. Mercury Renewables accepts that, as a matter of fact, a ‘joint assessment’ was not

carried out by the Board and the EPA. However, it is the position of Mercury Renewables

that, in the circumstances of the application for development consent in this case, there was

no legal requirement for such a ‘joint assessment’ to be carried out. In order for the Court

to properly consider and determine this ground, it is important to understand the factual

context.

64. Mercury Renewables wrote to the EPA on 5 July 2023 notifying the Agency of the

SID planning application (and the fact that an EIAR had been submitted) and indicating that

the deadline for submissions to the Board (Tab 6 of ‘ADMcG2’).

65. Subsequently, the EPA made a submission to the Board on 29 August 2023 in respect

of the SID planning application (Tab 6 of ‘ADMcG2’).

66. The Board then wrote to the EPA on 28 August 2023 (Tab 8 of ‘PD1’) and stated as

follows in the context of the SID planning application then pending before the Board:

‘In accordance with section 87 of the Environmental Protection Agency Act 1992, you are

requested to:

(i) Confirm to An Bord Pleanála that the proposed development the subject of the

application for permission is development comprising or for the purposes of an activity

requiring a licence or a review of a licence on the application, under section 83 or under

section 90(1)(b) of the Act.

(ii) If a licence or a review of a licence is required, you are also requested to submit to

An Bord Pleanála observations you may have on the application for permission including the

environmental impact assessment report.

In addition, you are requested to make observations in respect of the following specific

matters:

Impacts of the proposed development on Noise and Water.’

67. At this point, and for context, it should be observed that section 87(1F) of the

Environmental Protection Agency Act 1992 provides as follows:

(1F) Where—

(a) a planning authority concerned or An Bord Pleanála gives notice to the Agency of an

application for permission comprising or for the purposes of an activity requiring a licence

under section 83 or a review on the application of the licensee, under section 90(1)(b), of a

licence or a revised licence, and

(b) the application for permission is accompanied by an environmental impact assessment

report or in relation to which an environmental impact assessment report was sought by the

planning authority or An Bord Pleanála,

the Agency shall—

(i) satisfy itself that the development or proposed development the subject of the application

for permission is development comprising or for the purposes of an activity requiring a

licence or a revised licence under section 83 or a review, on the application of the licensee

under section 90(1)(b) of a licence or a revised licence,

(ii) forward to the planning authority or An Bord Pleanála, as the case may be, such

observations as it has on the application for permission, including the environmental impact

assessment report, and

(iii) enter into such consultations with the planning authority or An Bord Pleanála in relation

to the environmental impacts of the proposed development as the Agency, or planning

authority or An Bord Pleanála, as the case may be, considers necessary to enable completion

of the assessment.’

68. The EPA then responded to the Board’s correspondence on 25 September 2023 (Tab

8 of ‘PD1’) stating, inter alia:

‘I refer to your letter dated 28th August 2023 (and received on 29th August 2023) requesting

comments from the Agency on the strategic infrastructure development application and

Environmental Impact Assessment Report (EIAR) for the above referenced development.

Please refer to correspondence to An Bord Pleanala issued on 28th August 2023 (attached)

in relation to the above development. The Agency has no further observations.’

69. Therefore, as a matter of fact, the EPA was consulted on the planning application

and made submissions to the Board dated 29 August 2023 and 25 September 2023. While

the Applicants may not be satisfied with the EPA’s submissions on the planning application,

that does not form a legal basis upon which to challenge the Board’s Decision.

70. The EPA’s submissions to the Board were summarised at §7.1.25 of the Inspector’s

Report. Therefore, it is evident that (i) the EPA was consulted on the planning application

and (ii) the submissions made by the EPA were considered by the Board and its Inspector,

including in the context of carrying out an EIA.

71. It is in that factual context that the complaints, the subject matter of Core Ground

3 must now be considered.

72. Remarkably, despite relying on only one provision of the EIA Directive and three

provisions of the 2000 Act to support the case that a joint assessment with the EPA was

required, the Applicants’ submissions do not engage at all with any of these provisions. In

any event, for the reasons set out [elsewhere], none of the provisions relied upon by the

Applicants are capable of supporting its application or judicial review of the Board’s

Decision.”

181. So ultimately core ground 3 doesn’t go anywhere for any number of independent but

mutually reinforcing reasons.

Summary

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

(i) it is settled law that judicial review complaints must be pleaded with particularity;

(ii) applying such law to the facts here, these applicants have failed to comply with that

across the substance of their three overlapping points;

(iii) it is settled law that a judicial review applicant bears the burden of proof to adduce

sufficient evidence to demonstrate error in an impugned decision;

(iv) applying such law to the facts here, these applicants has failed to overcome that;

(v) it is settled law that the right to reasons is limited to the main reasons on the main

issues;

(vi) applying such law to the facts here, the applicants got such reasons;

(vii) it is settled law that an applicant cannot obtain certiorari on a basis that was not

only not put to the decision-taker (with specified exceptions), but that is inconsistent

with that case;

(viii) applying such law to the facts here, the applicants’ attempt to argue for a radically

inconsistent position to that adopted before the board is disqualifying in terms of

judicial review relief;

(ix) it is settled law that a statutory provision such as the commission’s power to impose

conditions should not be interpreted so as to extend to conditions that are

unworkable and unenforceable by reason of relating to the use of land outside of the

control of the developer;

(x) applying such law to the facts here, the complaint that the project should have been

conditioned on the basis that third parties would cease to exercise turbary rights or

that the developer should have acquired such rights (which can’t be done unilaterally

in any event) is misconceived;

(xi) it is settled law that there is no EU law obligation to centralise EIA obligations in a

single decision-taker, and that there is nothing inherently wrong with different

elements of a project being dealt with by different decision-takers; and

(xii) applying such law to the facts here, the complaint that there was no joint EIA

assessment between the board and the EPA is misconceived.

Order

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

(i) there be an order amending the Central Office cause book to reflect the substitution

of the commission for the board;

(ii) the applicant be required to file a third amended statement of grounds omitting sub-

ground 84A within 7 days;

(iii) the proceedings be dismissed;

(iv) unless any party applies otherwise as specified below, the foregoing order be

perfected forthwith thereafter on the basis of no order as to costs; and

(v) any party wishing to apply otherwise should notify the List Registrar by 30 July 2025

(so that in the absence of such application the order can be perfected forthwith

thereafter), but in the event of such notification, the matter be listed on 15

September 2025 for mention with parties to agree arrangements for delivery of

submissions.