High Court dismisses planning appeal regarding emissions and climate action plan compliance. Applicant fails to prove irrationality or unfairness.

[2025] IEHC 407

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000141]

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

ACT 2000

BETWEEN

FRIENDS OF KILLYMOONEY LOUGH

APPLICANT

AND

AN COIMISIÚN PLEANÁLA, MINISTER FOR THE ENVIRONMENT, CLIMATE AND

COMMUNICATIONS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

TESCO IRELAND LIMITED

NOTICE PARTY

Date of impugned decision: 3 December 2024

Date proceedings commenced: 4 February 2025

Date of main hearing: 20 June 2025

Date draft judgment given to parties: 8 July 2025

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

1. The correct approach to projects that cause emissions is a topical issue, but the present case

may not be the best vehicle to explore the wilder shores of that concept. Here, the emissions issues

are pleaded as environmental impact assessment (EIA) points, but the question is whether the

applicant has demonstrated lack of regard to necessary matters, or irrationality in the EIA

conclusion, among other alleged defects.

Geographical context

2. The project (https://www.pleanala.ie/en-ie/case/318406) relates to construction of a single

storey retail unit, drive-thru café unit, petrol filling station and all associated site works at Townparks

& Tullymongan Lower (to the east of Main Street), Cock Hill, Cavan Town, Co. Cavan

Facts

3. The notice party developer applied for permission on or about 16 January 2023.

4. The applicant made a submission on the planning application on or about 17 February 2023.

5. The council requested further information on or about 10 March 2023.

6. The notice party submitted further information to the council on or about 18 August 2023.

7. The council decided to grant permission on or about 12 October 2023.

8. The applicant appealed against the council decision on 7 November 2023.

9. The developer replied to the applicant’s appeal on or about 5 December 2023.

10. A draft climate action plan 2024 (CAP24) was published in December 2024 for consultation.

11. CAP24 was published on 21 May 2024.

12. The inspector prepared a report relating to the appeal on or about 7 October 2024.

13. The board considered the appeal on 1 November 2024, and prepared a direction which it

signed and dated the same day.

14. The board signed its decision on 3 December 2024.

Procedural history

15. The proceedings were issued on 4 February 2025. Leave was granted on 17 February 2025.

16. An amended statement of grounds was filed, and the notice of motion was issued on 18

February 2025.

17. The notice party applied for a hearing date under the expedited procedure on 10 March 2025

with the date fixed for 20 June 2025.

18. The first named respondent served its statement of opposition and affidavit on 14 April 2025

and filed same on 16 April 2025.

19. The notice party filed its statement of opposition and affidavits on 15 May 2025.

20. The applicant raised a request for interrogatories and other information by letter on 20 May

2025.

21. The applicant served a proposed second amended statement of grounds on a de bene esse

basis on 20 May 2025.

22. The board responded to the request for interrogatories and other information on 30 May

2025 at 16:53.

23. The applicant served its written submissions and replying affidavits (unsworn) on 30 May

2025 at 21:30.

24. The first named respondent delivered its written submissions on 6 June 2025.

25. The second and third named respondents delivered their written submissions on 9 June

2025.

26. The notice party delivered its written submissions on 10 June 2025.

27. On 13 June 2025, during the Whit vacation, the applicant rather late in the day raised by

correspondence an issue of possible cross-examination and in order to facilitate that and given the

absence of scheduled sitting prior to the hearing date, was given liberty on a de bene esse basis to

issue a motion to cross examine Chris McGarry on 17 June 2025, returnable to 20 June 2025.

28. The applicant delivered its replying written submissions on 17 June 2025

29. The board was reconstituted as the commission on 18 June 2025. By s. 495(3) of the 2024

Act, the commission substitutes for the board in legal proceedings without the necessity for an order.

After discussion with the Central Office, the view they are adopting is that an order is however

required to amend their cause books. This is the sort of administrative point on which over the

years I have found it profitable to defer to their view, so I will make such an order.

30. The matter was heard on 20 June 2025.

31. 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.

32. 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.

33. 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).

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

35. The applicant provided written comments making a limited number of points which are

addressed in this final version of the judgment. The commission noted that the applicant was

reserving its position on errors and suggested that it was not clear what that means, although the

applicant suggested that this was to leave open procedural options post the formal judgment. The

commission also suggested that the applicant was “cavilling” and taking issue with the judgment in

a way that in effect went beyond what was appropriate here. Pushing the envelope in terms of

simply disagreeing with a decision is always a risk with such a procedure so I don’t totally dismiss

the commission’s perspective. That said, it is possible to address these points in this judgment

without undue difficulty so I don’t think the applicant’s comments are in fact excessively problematic

here. The parties also agreed some refinements to the draft arrangements for post-judgment

applications, now reflected in the order below.

Relief sought

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

“1. An Order of Certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986

as amended and Section 50 of the Planning and Development Act 2000 as amended quashing

the order of the First Respondent, An Bord Pleanála (the Board), dated 3 December 2024,

file reference ABP-318406-23, for construction of a single storey retail unit (5147m2 gross),

297 car parking spaces, drive through ‘café’ (174m2 gross), petrol filling station (255m2)

and associated development at Cock Hill, Cavan Town, County Cavan.

2. An Order of Certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986

as amended and / or Section 50 of the Planning and Development Act 2000 as amended

quashing the decision of the Second Respondent, The Minister for the Environment, Climate

and Communications, undated but believed to have been initially adopted about 23

December 2023 and subsequently subjected to strategic environmental assessment and

possibly modified in or about May 2024, adopting the 2024 Climate Action Plan.

3. An extension of time to challenge the said Decision of the Minister for the

Environment, Climate and Communications and Transport (if required).

4. Such declaration(s) of the legal rights and / or 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 Respondents as the court considers appropriate.

5. A Declaratory Order pursuant to Section 7 of the Environment (Miscellaneous

Provisions) Act 2011 as amended, Order 99 of the Rules of the Superior Courts as amended,

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

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

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

Access to Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (the

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

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

2011 apply to the Grounds set out at Part E hereof.

6. A stay on the carrying out of any development pursuant to the Board Decision

referred to above pending conclusion of the present proceedings.

7. Such further or other Order as may be appropriate.

8. Costs.”

Grounds of challenge

37. The core grounds of challenge are as follows:

“National Law Grounds

1. Core Ground 1: The Board Decision is invalid because the Board purported to have

regard to a non-existent document which it referred to as the ‘National Climate Change

Policy – Project Ireland 2040’. In so doing it had regard to irrelevant material. (In the

alternative its Decision is invalid due to material error of fact, gave inadequate reasons, and

/ or acted unreasonably.)

2. Core Ground 2: The Board Decision is invalid because the Board failed to have regard

to the national 2024 Climate Action Plan. It thereby failed to direct itself correctly as to the

requirements of government policy, and failed to perform its functions in a manner

consistent with the most recent approved climate action plan and / or in furtherance of the

national climate objective, and / or with the objective of mitigating greenhouse gas

emissions.

Core Ground 2A In the alternative if, which is denied, the Board considered the national

Climate Action Plan 2024, it breached the rules of natural and constitutional justice in failing

to give the Applicant the opportunity to make submissions in relation thereto

3. Core Ground 3: The Board Decision is invalid because insofar as it may be is based

on the national 2024 Climate Action Plan which because that plan is itself invalid. The

Minister erred in law in adopting the 2024 Climate Action Plan because he failed to ensure

that the 2024 plan was consistent with the State’s carbon budget programme, and to set

out a roadmap of actions, to include sector specific actions that are required to comply with

the carbon budget and sectoral emissions ceiling for the period to which the plan relates,

and sector specific actions that are required to address any failure, or projected failure, to

comply with the carbon budget and sectoral emissions ceiling for the period to which the

plan relates. (In the alternative the Minister failed to reach any conclusion on the above,

failed to consider relevant material, failed to give any or any adequate reasons, or acted

unreasonably.)

European Law Grounds

4. Core Ground 4: The Board Decision is invalid because the Board failed to carry out

a valid EIA. It misdirected itself in law as to the concept of ‘significant effect’ and failed to

recognise that an effect is significant if it may result in a breach of a standard set or

recognised by national or European law. It specifically misdirected itself in failing to

determine significance of a development that would increase vehicle journeys and emissions

by reference to a government objective to reduce such journeys and emissions. (In the

alternative the Board failed to consider relevant material, failed to give any or any adequate

reasons, and / or acted irrationally or unreasonably.)

5. Core Ground 5: The Board Decision is invalid because the Board carried out a

defective EIA. It failed to consider the cumulative impacts of all vehicle emissions from all

projects, considering instead only a limited selection of 5 developments proximate to the

Proposed Development.”

The impugned decision

38. The decision provides as follows:

“Having regard to the provisions of the Cavan County Development Plan 2022- 2028

incorporating the Local Area Plan for Cavan Town 2022-2028 and the ‘Retail Planning

Guidelines for Planning Authorities’ issued by the Department of the Environment,

Community and Local Government in April, 2012, to the zoning status of the site and its

location within the retail core of Cavan as identified within the Cavan County Retail Strategy,

and to the scale and design of the proposed development as well as the pattern of

development in the area, it is considered that, subject to compliance with the conditions set

out below, the proposed development would not seriously injure the visual or residential

amenities of the area or the amenities of property in the vicinity, would be acceptable in

terms of accessibility as well as traffic safety and convenience, would be consistent with

national climate ambitions, the Climate Action and Low Carbon Development (Amendment)

Act 2021 as well as the Cavan Local Authority Climate Action Plan 2024-2029, would not

have unacceptable impacts upon water quality objectives or the environment including

designated European Sites. The proposed development would, therefore, be in accordance

with the proper planning and sustainable development of the area.

Appropriate Assessment Screening

The Board completed an Appropriate Assessment Screening exercise in relation to the

potential effects of the proposed development on European Sites, taking into account the

nature, scale and location of the proposed development, the Appropriate Assessment

Screening Report submitted to the planning authority and the Inspector's report and

submissions on file. In completing the screening exercise, the Board adopted the report of

the Inspector and concluded that, by itself or in combination with other development in the

vicinity, the proposed development has the potential for a significant effect on Lough

Oughter and Associated Laughs Special Area of Conservation (Site Code 000007) and Lough

Oughter Complex Special Protection Area (Site Code 004049), in view of the sites'

conservation objectives, and that a Stage 2 Appropriate Assessment (and submission of a

Natura impact statement) was, therefore, required.

Appropriate Assessment

The Board considered the Natura impact statement submitted in support of this application

and concluded that the proposed development, either individually or in combination with

other plans or projects, would not be likely to adversely affect the integrity of the Lough

Oughter and Associated Laughs Special Area of Conservation (Site Code 000007) or the

Lough Oughter Complex Special Protection Area (Site Code 004049).

This conclusion is based on:

(a) a full and detailed assessment of all aspects of the proposed project including

proposed mitigation measures in relation to the conservation objectives of Lough Oughter

and Associated Laughs Special Area of Conservation (Site Code 000007) and Lough Oughter

Complex Special Protection Area (Site Code 004049),

(b) detailed assessment of in-combination effects with other plans and projects including

current proposals and future plans, and

(c) no reasonable scientific doubt as to the absence of adverse effects on the integrity

of the designated sites.

Environment Impact Assessment

The Board completed an environmental impact assessment of the proposed development,

taking into account:

(a) the nature, scale, location, and extent of the proposed development,

(b) the Environmental Impact Assessment Report, including Addendum Report, and

associated documentation submitted to the planning authority,

(c) the submissions received during the course of the application; and

(d) the Inspector's report.

The Board considered that the Environmental Impact Assessment Report, supported by the

documentation submitted by the applicant, adequately considers alternatives to the

proposed development and identifies and describes adequately the direct, indirect,

secondary and cumulative effects of the proposed development on the environment. The

Board agreed with the

examination, set out in the Inspector's report, of the information contained in the

Environmental Impact Assessment Report and associated documentation submitted by the

applicant, and in the submissions made in the course of the planning application.

Reasoned Conclusion for Environmental Impact Assessment

The Board considered that the Environmental Impact Assessment Report, supported by the

documentation submitted by the applicant, provided information which is reasonable and

sufficient to allow the Board to reach a reasoned conclusion on the significant effects of the

proposed development on the environment, taking into account current knowledge and

methods of assessment. The Board is satisfied that the information contained in the

Environmental Impact Assessment Report is up to date and complies with the provisions of

EU Directive 2014/52/EU amending Directive 2011/92/EU. The Board considered that the

main significant direct and indirect effects of the proposed development on the environment

are those arising from the impacts listed below. The main significant effects, both positive

and negative, are:

(a) ‘Population and Human Health’ and ‘Air’ and ‘Climate’ as a result of dust, noise,

traffic, and waste emissions. These effects would be mitigated through a Construction

Environmental Management Plan and the application of other best practice construction

management measures, which would not result in any unacceptable residual effects,

(b) ‘Biodiversity’ with particular attention to species and habitats protected under

Directive 92/43/EEC and Directive 2009/147/EC' and ‘Water’ as a result of adverse pollutants

from contaminated sources, leaks and spills, silt and sediment etc. These effects would be

mitigated through the measures set out in the submitted Natura impact statement, the

Construction Environmental Management Plan, and the application of other best practice

construction management measures, which would not result in any unacceptable residual

effects,

(c) operational stage effects on the local landscape including the visual impact upon the

character of the area. These effects would be mitigated through design measures, proposed

landscaping and appropriate conditions, which would not result in any unacceptable residual

effects.

Having regard to the above, the Board is satisfied that the proposed development would not

have any unacceptable direct or indirect effects on the environment. The Board is satisfied

that the reasoned conclusion is up to date at the time of making the decision and that the

information contained in the Environmental Impact Assessment Report complies with the

provisions of Article 3, 5 and Annex (IV) of EU Directive 2014/52/EU.”

Some general considerations

39. It may be of assistance to set out some general considerations arising from previous caselaw,

under a number of headings as follows.

Pleading principles

40. 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.

Judicial review principles

41. 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.

Reasons

42. 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,

Hedeman 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 (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 (Unreported, High Court, Holland J., 31 March

2023), 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 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.

(ix) 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. A correct legal interpretation doesn’t become invalid

because it is unreasoned.

(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 Real Estate Ltd 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 Ireland Ltd v. An Bord Pleanála [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

[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 [2016] IEHC

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

Challenges to measures of general application

43. Without attempting to summarise the voluminous law on challenges to measures of general

application, a few practical points are worth mentioning:

(i) Having regard to the general inability of the courts to rectify gaps in the institutional

fabric caused by invalidation of general measures, separation of powers requires the

court to reach constitutional issues last and more generally to reach the question

of the validity of general measures last, and only where administrative law

points have been disposed of and do not resolve the matter: see P.C v. Minister for

Social Protection [2018] IESC 57 (Unreported, Supreme Court, 28 November 2018)

per O’Donnell J. at para. 21.

(ii) Separation of powers also has the consequence that the court should only reach the

question of the validity of a measure of general application on foot of an application

where the point is not academic, made by an applicant with appropriate standing

who has normally been affected in some definite way by the impugned measure:

Cahill v. Sutton [1980] I.R. 269; Mohan v. Ireland and the Attorney General [2019]

IESC 18, [2021] 1 I.R. 293, per O’Donnell J. at pages 301-302; Odum v. Minister

for Justice [2023] IESC 3, [2023] 2 I.L.R.M. 164 per O’Donnell C.J.

(iii) The absence or invalidity of an overarching measure of general application does not

have the consequence that an individual decision must be invalid if this would

bring decision-making to a halt: Byrne v. Final County Council [2025] IEHC 204

(Unreported, High Court, 11 April 2025) at paras. 58-59. The overriding principle is

that of an ordered society. What applies is not “rigid abstract logic” (per Murray C.J.

in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88, [2006] 2

I.L.R.M. 48 at para. 41) but “[t]he overriding requirements of an ordered society”

(per O’Higgins C.J. in de Burca v. Attorney General [1976] I.R. 38 at 63). See also

Baile Bhruachláin Teoranta & Ors v. Galway County Council [2024] IEHC 604

(Unreported, High Court, 1 November 2024); Massey v. An Bord Pleanála (No. 2)

[2025] IEHC 206 (Unreported, High Court, 11 April 2025) at 169.

(iv) Where a challenge to a measure of general application is relied on in substance to

challenge an individual decision the challenge of which is subject to statutory

restrictions, the challenge to the measure of general application is also subject to

such restrictions: Nawaz v. Minister for Justice, Equality and Law Reform [2012]

IESC 58, [2013] 1 I.R. 142 (Clarke J.) (Fennelly, O’Donnell, McKechnie, MacMenamin

JJ. concurring).

Preliminary issues

44. A number of preliminary issues arise as noted in the statement of case:

“Section E - the preliminary issues if any and a short summary of the parties’ respective

positions on these.

25. Whether Mr McGarry should be made available for cross examination on his affidavit

sworn on 5 June 2025.

26. Whether the Board must provide responses to the interrogatories and information

raised by the Applicant by letter dated and/or the request for particulars, and / or the request

for discovery and / or the request for directions, and whether any such response is adequate.

The Applicant submits that it is entitled to the directions, particulars, discovery and / or

replies to interrogatories sought, because such information is known to and/or available to

the Board and is necessary to enable the Applicant to make its case, and because if the

inferences for which the Board contends may lawfully be drawn from its decision, there is

no way for the Applicant to counter those inferences other than by way of the directions or

other reliefs sought. If these reliefs are not provided, and the Board’s opposition is accepted,

then the Board’s exercise of its jurisdiction is effectively immune from review.

The Board submits that this preliminary issue does not arise at all and its purported inclusion

by the Applicant as a preliminary issue is not appropriate. The Board responded in full to

the Applicant’s various misconceived requests by way of letter dated 30 May 2025 (which

the Board refers the Court to) wherein the Board rejected each of the Applicant’s requests

for clear reasons. No reply letter was received from the Applicant in response to that letter

and no Motion was issued by the Applicant in relation to any of the matters. Accordingly,

there is no preliminary issue to address. Further, the assertion that the Board’s Decision is

effectively immune from review if the Applicant is not granted ‘reliefs’ in relation to

directions, particulars, discovery and / or replies to interrogatories sought etc, is overblown

and incorrect, and without basis where no such ‘reliefs’ have actually been sought.

The Notice Party adopts the Board’s position on the preliminary issue. It previously set out

its position in correspondence dated 23 May 2025.

27. Whether the Applicant is entitled to reply on the proposed Second Amended

Statement of Grounds

The Applicant submits that it is entitled to amend its Statement of Grounds on the basis of

information that only arose upon receipt of the Board’s opposition papers on 14 April 2025.

The Board submits that the Applicant’s explanation for the unduly belated application to

amend its Statement of Grounds did not only arise upon receipt of the Board’s opposition

papers on 14 April 2025. That is objectively clearly not the case. At all material times,

including prior to the Board delivering its Opposition papers, it was clearly conceivable that

the Board could take the position that it had regard to the national Climate Action Plan 2024

(CAP-24) in reaching its Decision under challenge and therefore was always open to the

Applicant to include a ground or grounds of challenge addressing that point at the outset of

these proceedings in its original Statement of Grounds. Even if it were the case (which it

plainly is not), having regard to the expedited nature of these proceedings, the Applicant,

without good reason or explanation, delayed until 20 May 2025 when the issue of the

amended Statement of Grounds to include a new Core Ground (Core Ground 2A) was first

raised. Further, it is not the case that the Applicant contends that this point was overlooked

through oversight. In the premises, having regard to the test for amendment of pleadings

(per e.g. Save Roscam v. An Bord Pleanála (No.5) [2024] IEHC 156 at §1, §18, and §48),

the Applicant has 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 Core Ground 2A and the associated pleas at §62A to §62G at E2 Particulars of

Legal Grounds, and addressed said new ground in its written legal submissions, also on a de

bene esse basis.

The Notice Party did not oppose the application to amend the Statement of Grounds, in

circumstances where it was anxious to preserve the trial date, although its solicitors’ letter

dated 23 May 2025 noted that ‘Our client's position, however, is that the amendment is

clearly otiose and unnecessary, because identical points are already pleaded in the Amended

Statement of Grounds delivered on 17 February 2025. In those circumstances, the Notice

Party does not intend to reply to the amendments proposed and, therefore, the delivery of

a further Amended Statement of Grounds should not delay the Proceedings’.

There is no explanation as to why Core Ground 2A could not have been included in the

original Statement of Grounds. Without prejudice, Core Ground 2 included a complaint that

the Applicant should have been given an opportunity to make submissions on CAP-24, so

the issue was effectively in the case and the amendment therefore adds nothing.”

45. As regards the issue of particulars, discovery and interrogatories the applicant didn’t pursue

that. That left the following issues to be addressed.

Amendment

46. As regards the contested amendment by way of adding core ground 2A, the existing sub-

ground 62 provides (emphasis added):

“62. The Board’s failure to have regard to the 2024 Climate Action Plan is of significance

because the Board thereby failed to take account of the objective of reducing vehicle

kilometres travelled by 20%. The Inspector and the Board accepted that the Proposed

Development would increase vehicle kilometres travelled, and would increase emissions by

72t per annum. Had the Board considered the 2024 Plan, it would have afforded the

Applicant the opportunity to comment in relation to it, and that would have enabled

the Applicant to submit that an increase in emissions from one development is not

compatible with the requirement for a 20% reduction overall, or in the alternative that it is

not so compatible without evidence justifying such increase, or without specific consideration

of the compatibility of such increase with the 20% target. The Applicant would also have

been able to submit that the 2024 Climate Action Plan itself was incompatible with

the Climate Act.”

47. The applicant says that they couldn’t have pleaded 2A expressly prior to now as the

commission wasn’t saying that it did rely on CAP24. That isn’t a very persuasive point because it

was obviously something that could have been anticipated.

48. The fact that 2A adds nothing material is illustrated by the fact that the notice party didn’t

put in an amended statement of opposition because its opposition to sub-ground 62 already covered

the issue. On that basis they didn’t object to the amendment.

49. The commission’s first objection was the absence of a motion. The applicant didn’t assist

that situation by sending a draft motion, thereby creating the impression that it was going to actually

issue that. However the practice in the list in the interests of expedition is that many applications

are permitted without a motion if no party is insisting on formalities. That doesn’t dispense with the

need for evidence if evidence is required.

50. Delany and McGrath on Civil Procedure (Biehler, McGrath and Egan McGrath, 4th ed., Round

Hall 2018) states:

“Amendment of the Statement of Grounds

31-240

Order 84, rule 20(4) provides that the court hearing an application for leave may allow the

applicant’s statement to be amended ‘whether by specifying different or additional grounds

of relief or otherwise’ on such terms, if any, as it thinks fit. It may also require the applicant’s

statement to be amended by setting out further and better particulars of the grounds on

which any relief is sought. This sub-rule thus deals with the situation where an amendment

is sought during the making of the application for leave only. Where it is subsequently

sought to seek permission for an amendment, an application must be brought pursuant to

Order 84, rule 23 by way of notice of motion grounded on an affidavit which sets out the

circumstances in which the application for amendment is sought.”

51. The final sentence is not a statement of what the rules provide; rather it is a description of

the normal practice. That doesn’t preclude a less formal practice in a particular context or a

particular application. The rules don’t require a notice of motion as a mandatory precondition to

amendment, and even if they did the court can dispense with any such requirement; see e.g., O.

124 r. 1 RSC.

52. But on the contrary, O. 103 r. 26 RSC provides specifically in the case of Planning &

Environment proceedings, including proceedings in being:

“26. Any application to amend pleadings shall be made on notice to all relevant parties (or,

in the case of an application in Part 9 judicial review, all opposing parties in accordance with

section 282(2) of the 2024 Act and all relevant applicants in the case of an amendment by

an opposing party). The Court may direct such an application to be made by notice of

motion. Where facts are relied on for the purpose of the amendment, such facts shall be

verified by affidavit.”

53. The provision that the court “may direct” a notice of motion means that in the absence of

such a motion, the application may still be entertained. So the commission’s objection is

misconceived.

54. So insofar as the commission contends that the onus was on the applicant to bring a motion,

that is the normal approach in some other contexts but it is not the practice in this List and nor is it

what the rules of court for the List provide.

55. The logic of that is that to require motions for applications (or even just amendment) in all

proceedings (of which there are 268 in the List as of 27 June 2025) would seriously retard the degree

of momentum in the List. That said, all that a party needs to do to insist on a motion is to ask for

one and if refused, to ask the court to direct one. In such circumstances a motion will be directed

virtually as of course if someone wants to insist on it. For these reasons the objection as to the lack

of a motion must fail.

56. A second objection was that there was a lack of explanation and certainly a lack of

explanation on affidavit. That is a rather better point. Here the applicant sought to explain the

amendment by submissions. But the explanation – that the amendment was inspired by opposition

papers and evidence – wasn’t particularly good. The problem is that a point that a party doesn’t

realise or focus on isn’t the same thing as a point they couldn’t have anticipated. In the present

case the applicant did in fact anticipate both scenarios – that CAP24 was relied on and that it wasn’t

relied on. Insofar as it was relied on, they also anticipated that they were deprived of the opportunity

to make submissions – sub-ground 62. So they could have anticipated the need to make an express

fair procedures point.

57. The final aspect is that the amendment doesn’t add anything to the existing grounds other

than possibly more clarity. In broad terms a more permissive approach to amendments may be

appropriate where they add clarity, correct errors and so forth because that reduces the level of

procedural chaos in a particular case and thus assists the court in dealing with the real issues

(consistent with O. 28 r. 1 RSC: “all such amendments shall be made as may be necessary for the

purpose of determining the real questions in controversy between the parties”). So if the explanation

is that the amendment couldn’t have been anticipated I reject that. Insofar as the explanation is

that the amendment provides clarity as to the issue already pleaded I think that is just about

acceptable here.

58. Save Roscam Peninsula CLG & Ors. v. An Bord Pleanála & Ors. (No. 5) [2024] IEHC 156

(Unreported, High Court, 25 March 2024), para. 1 makes the consequential point – an amendment

based on particularisation can’t go beyond particularisation.

59. Ultimately the commission didn’t press the objection if the amendment were to be allowed

on the basis of merely particularising sub-ground 62 within the parameters already pleaded, which

seemed to be a compromise that the applicant was prepared to live with. So I allowed the

amendment on the basis that it would be interpreted in that sense, with the second amended

statement of grounds to be filed by 25 June 2025 and the amended statement of opposition to be

filed by 27 June 2025.

Cross-examination

60. Mr McGarry avers:

“In relation to the Board’s Decision under challenge in these proceedings, I confirm that, in

making that Decision, and as one of the members of the Board that made the Decision, I

was aware of and had regard to the national Climate Action Plan 2024 (‘CAP-24’), and in

particular the policies contained in CAP-24 relating to transport and reducing vehicle

kilometres. While it was not expressly referred to in the Board Order, that broad awareness

of CAP-24 informed my thinking as a Board member who made a decision on the file. I also

confirm that, prior to making the Board’s Decision at issue in these proceedings, and in the

context of discharging my functions as a Member of the Board, I was involved in and have

previously made decisions on applications which required consideration of CAP-24.”

61. As regards the conflict of fact, Mr Logue avers:

“5. Mr McGarry avers as to his state of mind in respect of Core Ground 2, as to whether

the Board considered the national Climate Action Plan 2024 (CAP-24), and he says that he,

in any event, did. He says at §4 of his Affidavit:

I confirm that, in making that Decision, and as one of the members of the Board that made

the Decision, I was aware of and had regard to the national Climate Action Plan 2024 (‘CAP-

24’), and in particular the policies contained in CAP-24 relating to transport and reducing

vehicle kilometres. While it was not expressly referred to in the Board Order, that broad

awareness of CAP-24 informed my thinking as a Board member who made a decision on the

file. I also confirm that, prior to making the Board’s Decision at issue in these proceedings,

and in the context of discharging my functions as a Member of the Board, I was involved in

and have previously made decisions on applications which required consideration of CAP-24.

6. The issue in Core Ground 2 is as to whether the Board had regard to CAP-24 and

whether it discharged its functions consistent with the most recent approved climate action

plan and/ or in furtherance of the national climate objective, and/ or with the objective of

mitigating greenhouse gas emissions. The Applicant’s case is that it is evident from the

Board’s file that it did not. Mr McGarry purports to contradict this by saying that he, for one,

did; and this gives rise to a conflict of fact on the evidence before the Court. Mr. McGarry’s

affidavit was filed on 5 June 2025 at a very late stage in the proceedings and when no

provision was made for the Applicant to file any replying affidavit. No reason has been

offered for the filing of this affidavit at such a late stage in the proceedings. In these

circumstances I say, and I am advised that an issue of credibility arises in respect of the

aforesaid affidavit and an issue of fair procedures arises which are required to be addressed

by way of cross-examination.

7. I say that, having regard to the decision in RAS Medical Limited cited by the Board

in its legal submissions, the Applicant seeks leave to cross-examine Mr McGarry, and

accordingly I now make this Affidavit for the purposes of grounding that application. I do

so without making any admission as to the need for such cross-examination, and I seek such

cross-examination only in the alternative, insofar as fair procedures or other rules of law

may require that the gaps in the evidence provided by the Board should be addressed.

8. I say and believe that the difference between the position as deposed to by John

Gurhy and the position as deposed to by Mr McGarry creates a conflict of evidence on foot

of which cross-examination of Mr McGarry in relation to the contents of his Affidavit is

required, and I beg the Court for relief in terms of the Notice of Motion.

9. I say that the Applicant has called on the Board to consent to cross examination of

Mr McGarry but the Board has refused to consent. I beg to refer to the relevant

correspondence on ShareFile when produced.”

62. The basis of the application to cross-examine Mr McGarry was (a) a conflict of fact (b) the

fair procedures right to challenge the reliability and credibility of a deponent and (c) candour. These

need to be considered separately.

Alleged conflict of fact

63. The applicant relied on its evidence to the effect that there was no record before the

commission indicative of there being reference to CAP24 and that this gave rise to an evidential

dispute.

64. That said it isn’t in dispute that there was no reference to CAP24 on the papers.

65. So there isn’t any particular dispute as to the facts here. The lack of reference on the papers

isn’t inconsistent with Mr McGarry being aware of the issue.

66. To a central extent the applicant is conflating the distinction between a factual conflict and

the legal characterisation of unchallenged facts.

Fair procedures right to challenge the reliability and credibility of a deponent

67. As regards the fair procedures issue, Butler J. stated in Re Bayview Hotel (Waterville) Limited

[2022] IEHC 516 (Unreported, High Court, 8 September 2022) at para. 51:

“51. The implications of RAS Medical are far reaching. Whereas Hardiman J. in Tara Mines

Pension Plan regarded a failure to cross-examine a deponent as going to the weight to be

afforded to the evidence and, by implication, to any objection to it, RAS Medical positively

requires a deponent to be cross-examined whenever evidence is objected to on grounds of

credibility or reliability and even where the affidavit evidence is contradicted by other

documentary evidence. Indeed, at para. 90 of the same judgment, Clarke C.J. goes so far

as to say that it is impermissible to ask a decider of fact to determine a contested fact on

the basis of affidavit evidence or documentation alone. Therefore, in a case being tried on

affidavit where the facts are disputed, the failure to cross-examine an opposing deponent

can, and generally will, be fatal to the party bearing the onus of proof on the issue to which

that deponent’s evidence is relevant.”

68. That said, the fact that a party may be precluded from challenging the credibility of an

averment in the absence of cross-examination doesn’t prevent the court from itself forming the view

that a particular averment is not credible. That follows from the Supreme Court decision in Akpojo

Tor Koulibaly v. Minister for Justice, Equality and Law Reform [2004] IESC 50 (Unreported, Supreme

Court, Denham J., 29 July 2004). This is consistent by analogy with the judgment of Hardiman J.

in DPP v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130, [2007] 1 I.L.R.M. 350 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.

69. That is just common sense – something lacking in credibility doesn’t become bindingly

credible merely by omission of challenge. Such a mechanical rule would quickly bring the law into

disrepute.

70. But that said, we need to be clear that the issue is properly evidential in some way and not

one of submission. At para. 11 of Banik v. Minister for Justice & Equality [2019] IEHC 785

(Unreported, High Court, 22 October 2019), I said that if the matter can properly be dealt with by

submission then it is not an evidential conflict. That wasn’t a statement that conflict of evidence

was an absolute precondition for cross-examination. Rather it was a statement that something that

was properly a matter for submissions should be dealt with by submissions.

71. I agree with the commission to the limited extent that the question as to cross-examination

in judicial review is normally whether there is a conflict of fact. But that isn’t and can’t be the only

potential situation.

72. If one side makes an averment of fact on a matter which is within their particular knowledge

such that the other side can’t meaningfully create a direct conflict on the point, then it would be a

Catch-22 to prohibit the other side from cross-examining the witness in the event that there was a

challenge to the “credibility or reliability” of the evidence (Butler J.’s term). By definition the other

party can’t directly provide evidence to contradict something within the peculiar knowledge of

another party. So the only direct way to challenge that would be cross-examination. A purported

rule that required conflict of evidence as an absolute precondition is – obviously – a denial of fair

procedures, effective remedies and access to court – the commission’s rhetoric here almost seemed

to revel in that at times. Their letter of 16 June 2025 said with just a little too much satisfaction

that “[t]he affidavit of Chris McGarry deposes to certain facts that are within his knowledge and of

which the Applicant has no knowledge ...”, but they unfortunately they failed to appreciate that the

applicant not being in a position to have direct knowledge of Mr McGarry’s state of mind was a

significant reason in favour of cross-examination, rather than a triumphant Catch-22 against that

procedure. I hope on reflection that they will see the problem if they can put themselves in an

applicant’s position. There has to be fairness and a meaningful opportunity to make a challenge.

73. Ultimately however, the applicant clarified that they “were not saying that anything in Mr

McGarry’s affidavit is untrue”. So cross-examination in fact doesn’t arise under the second basis

namely a challenge to the credibility or reliability of matters averred to.

Candour

74. The applicant said it had issues not so much with what Mr McGarry said but with what is not

in the affidavit. That is a potential third basis for cross-examination – i.e., lack of candour. Candour

could be a basis for cross-examination in itself – given the duties of opposing parties to the court –

but cross-examination isn’t the first resort under that heading. One needs to first apply for directions

requiring the opposing party to disclose or specify particular matters. Only if the responses to that

are considered unsatisfactory would one then escalate matters to the witness box. Cross-

examination isn’t a weapon of first resort. Since the applicant here didn’t press any such directions

it can’t skip that step and seek cross-examination on a candour ground.

75. So on that basis there wasn’t any basis in this case to direct cross-examination.

76. That said there is a fourth category – which didn’t arise here. There may be cases where

the court itself feels it would benefit from hearing from a deponent or other person on behalf of a

party in order to clarify matters and to assist the court, and I would hope that the commission or

indeed any litigant would facilitate that if it were to arise in a given case without having to be ordered

to attend.

77. The commission unfortunately gave a rather low-energy response to my suggestion that Mr

McGarry might come to court on stand-by in case he was needed (pleading unspecified work

activities), and also (maybe even relatedly) raised the prospect of appeal. The problem with that is

that while a party can, of course, exercise whatever appeal rights it may enjoy, what it can’t

generally do is prevent the trial from going ahead while it does so – especially when the trial is

imminent. There are several reasons for that:

(i) Firstly, this comes into the category of trial management issues that the appellate

courts themselves have recognised shouldn’t be micro-managed on appeal in real

time (see per Clarke J. (Denham C.J. and Hardiman J. concurring) in Dowling v.

Minister for Finance [2012] IESC 32 (Unreported, Supreme Court, 24th May 2012)

at para. 3.1).

(ii) Secondly and more fundamentally, there is meant to be equality before the law – an

applicant who is refused cross-examination can’t generally demand that the trial be

put on ice pending an appeal of that. So an opposing party can’t likewise derail a

trial by appealing an order in favour of cross-examination. Both sides should meet

on comparable rules of engagement as far as the court is concerned.

(iii) A third but by no means irrelevant factor is that the commission, which often likes

to describe itself as quasi-judicial, should have a shared interest with the courts in

good public administration and in getting all relevant facts, law and other matters

on the table.

78. While one can’t get sanctimoniously carried away with the idea that public bodies should be

model litigants, there is something to the concept all the same. In Sebel Products v. Commissioners

of Customs and Excise [1949] 1 Ch 409, [1949] 1 All E.R. 729, Vaisey J. said at p. 413 speaking of

a technical defence:

“At the same time, I can’t help feeling that the defence is one which ought to be used with

great discretion, and that for two reasons. First, because the defendants being an emanation

of the Crown, which is the source and fountain of justice, are in my opinion bound to maintain

the highest standards of probity and fair dealing, comparable to these which the courts,

which derive their authority from the same source and fountain, impose on the officers under

their control….”

79. It would hopefully be an unnecessary exercise to set out the massive body of law since then

which has elaborated on this concept. All of this suggests that a public body should consider asking

first and foremost how it can assist the court and be willing and interested in that regard. The

commission frequently does that, which I welcome, and I also welcome any moves to keep up and

intensify those efforts. The slightly defensive approach here in response to the suggestion that Mr

McGarry might even potentially be asked to be available to stand over his affidavit might not perhaps

rank as the finest hour of such an endeavour.

Admissibility of the notice party’s affidavits

80. While the applicant objected to some of the notice party’s evidence, this objection was

misconceived. It is settled law that the mere fact that a deponent is not an independent expert does

not render her evidence inadmissible. She can still give evidence about matters within her

knowledge and the basis for any steps so taken. Where such a deponent says, as here, that the

decision would have been the same without a particular alleged error, that isn’t inadmissible if it is

merely construed as a statement that such a conclusion follows logically from admissible evidence

of the person that the error in question wasn’t material. So the objection is overblown.

Domestic law issues

Core ground 1 – regard to allegedly non-existent document

81. Core ground 1 is:

“1. Core Ground 1: The Board Decision is invalid because the Board purported to have

regard to a non-existent document which it referred to as the ‘National Climate Change

Policy – Project Ireland 2040’. In so doing it had regard to irrelevant material. (In the

alternative its Decision is invalid due to material error of fact, gave inadequate reasons, and

/ or acted unreasonably.)”

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

“Core Ground 1, ‘National Climate Change Policy’

Applicant

The Applicant says that the Board Decision is invalid because the Board purported to have

regard to a non-existent document which it referred to as the ‘National Climate Change

Policy – Project Ireland 2040’, and in so doing had regard to irrelevant material – or, in the

alternative, due to material error of fact, inadequate reasons, and / or unreasonableness.

This arose because the Board’s Inspector said in her Report (§8.9.7) that she had regard to

the Sustainability Statement submitted by the Developer, which ‘outlines that the

development seeks to comply with the principles set out within National Climate Change

Policy- Project Ireland 2040.’ The Applicants say that this is not a harmless error and the

error was capable of affecting the outcome

Board

The Board’s Decision is not invalid as alleged at Core Ground 1. This ground of challenge

invokes the fallacy of reading the Board’s Decision and certain aspects of the Inspector’s

Report (in particular §7.9.7/ §8.9.7 of the online version) and certain of the materials

submitted by the Notice Party (namely the Sustainability Statement prepared by JV Tierney

& Co), in the most erroneous way possible so that the Applicant can get an order of certiorari

of the Board’s Decision. Core Ground 1 is premised on a legalistic parsing and non-

contextualised misreading of the Inspector’s Report in a way that renders it invalid rather

than valid (the opposite of the correct approach). A valid reading of Inspector’s Report and

the Board Decision is reasonably available here. In substance and reality, Core Ground 1 as

pleaded involves entirely outsized and misplaced reliance on a single reference at §7.9.7 of

the Inspector’s Report (§8.9.7 of the online version), where the Inspector merely records

the fact that the Sustainability Statement submitted by the Notice Party as part of the

application ‘outlines that the development seeks to comply with the principles set out within

National Climate Change Policy- Project Ireland 2040.’ The Inspector was correct to note

that, as a matter of fact, that that ‘document outlines that the development seeks to comply

with the principles set out within National Climate Change Policy- Project Ireland 2040.’ (See

section 3, internal page 5 of the Sustainability Statement). Merely noting the fact of the

content of that document is not a positive conclusion by the Inspector that the ‘National

Climate Change Policy- Project Ireland 2040’ (i) is a national policy document or (ii) it was

required to be complied with or (iii) it has been complied with by the Sustainability

Statement. On no reasonable view could that sentence in the Inspector’s Report be

categorised as an irrelevant consideration sufficient to invalidate the Board’s Decision or a

fundamental error that warrants certiorari as the Applicant contends. Further, there is

uncontested affidavit evidence filed by the Notice Party (see §9 to §11 of the affidavit of

Robert McLoughlin, Town Planner, of RMLA Planning Consultants dated 15 May 2025) which

addresses the Sustainability Statement and the reference in same to the ‘Government's

“National Climate Change Policy”, Project Ireland 2040’ and which, inter alia, makes the

point (at §7) that ‘that the reference to the “Government's ‘National Climate Change Policy’,

Project Ireland 2040” was not a reference to a specific document bearing that name (as

nonesuch exists), but rather a confirmation that the Sustainability Statement had been

prepared by reference to national climate change policy and Project Ireland 2040.’

Further, the Applicant incorrectly asserts that the Inspector ‘relied’ on the ‘National Climate

Change Policy- Project Ireland 2040’. The false premise that the Applicant advances in this

regard, in response to the Board and Notice Party’s points in opposition, is based on the

Applicant’s erroneous and unpleaded assertion that at §7.9.10 (§8.9.10 of the online

version) the Inspector’s Report implicitly incorporates a reference to and conclusion by the

Inspector of consistency with National Climate Change Policy- Project Ireland 2040’. That is

patently incorrect and is but another example of the Applicant reading in invalidity where

none exists. Leaving aside the Applicant’s approach of incorrect legalistic parsing of the

Inspector’s Report, it is, for example, entirely clear on a correct reading of the Inspector’s

Report, that the Inspector was aware of the National Planning Framework and the National

Development Plan and of Project Ireland 2040 (with the Inspector correctly noting at §7.9.1

(§8.9.1 of the online version) that that the National Development Plan was ‘within the

framework of Project Ireland 2040’). There is no basis to any contention that the Inspector

or the Board was not aware of those matters or their content or as to what Project Ireland

2040 consists of, which is the implication of the Applicant’s argument. The Applicant has

not pleaded or demonstrated that the incorrect/ inaccurate reference to the ‘National Climate

Change Policy - Project Ireland 2040’ made any difference to the substance of the Board’s

Decision. Likewise, it is notable that the Applicant has not pleaded or identified anything

specific that would make any difference to the outcome of the Board’s Decision in terms of

granting permission for the Proposed Development. There is also uncontested affidavit

evidence filed by the Notice Party relevant to this issue (see §11 of the affidavit of Robert

McLoughlin, Town Planner, of RMLA Planning Consultants dated 15 May 2025). Having

regard to the evidence and information that was before the Board, and on reading the

Inspector’s report as a whole and in its correct context, it is submitted that the unavoidable

conclusion is that, taken at its height, Core Ground 1 is excessively formalistic and advanced

in the abstract as a technicality, not as something that makes any difference to anything in

specific terms. It unduly majors on what, if it is anything, is evidently a minor and

inconsequential harmless error that makes no difference to anything, and to grant the relief

of certiorari sought given the purely formalistic nature of the complaint made would be

disproportionate – which is a legitimate basis to refuse relief.

State

N/A

Notice Party

Core Ground 1 is based on a misinterpretation of the Inspector’s report and the Tesco’s

Sustainability Statement, submitted with the planning application.

The reference to ‘National Climate Change Policy – Project Ireland 2040’ was not to a specific

document but rather a general reference to national climate change policies and Project

Ireland 2040. This is supported by affidavit evidence filed on behalf of Tesco, confirming

that the reference to ‘the Government's “National Climate Change Policy”, Project Ireland

2040’ in Tesco’s Sustainability Statement was not a reference to a specific document.

Furthermore, the single reference to ‘National Climate Change Policy – Project Ireland 2040’

by the Inspector was in the context of indicating what was in the Sustainability Statement.

The Inspector’s report did not rely solely on this reference. She reviewed multiple

documents, including the Sustainability Statement, Environmental Impact Assessment

Report (EIAR), National Planning Framework, Regional Spatial and Economic Strategy

(RSES), the County Development Plan, and the Cavan Climate Action Plan.

Even if the reference was erroneous, it was a harmless and inconsequential error that did

not affect the substance of the Board’s decision. Planning decisions must be read as a whole

and interpreted in a way that renders them valid rather than invalid.

The Board considered appropriate national and local climate policies, including the Climate

Action and Low Carbon Development (Amendment) Act 2021 and the Cavan Climate Action

Plan. The Applicant has not demonstrated that the alleged error materially affected the

decision.

The Applicant has failed to discharge the burden of proof to show that the Board misdirected

itself in law or acted irrationally. The reference to the ‘non-existent’ document was a minor

descriptive imprecision and does not invalidate the decision.

Quashing the Board’s decision based on this ground would be disproportionate, as the

alleged error did not impact the outcome of the decision.”

83. If a valid reading of the decision is available, it should be adopted. Such a valid reading is

available here.

84. The complaint about the somewhat sub-optimal wording of the developer’s material here,

quoted by the inspector, is ultimately a formalistic and legalistic objection.

85. Wider caselaw is of assistance in terms of how much airtime to give to such a complaint.

86. In the context of contractual interpretation, but with a clear resonance and read-across for

public law challenges, O’Donnell J. rejected in Walsh v. Jones Lang Lasalle Ltd [2017] IESC 38

(Unreported, Supreme Court, 1 June 2017) at para. 47:

“... an unduly legalistic reading of the clause, designed to defeat it rather than to understand

it in its context.”

87. In the context of procedures for suspension from a contract of employment, 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 said:

“Furthermore, if the decision in this case is to be challenged and found wanting on the basis

asserted, then the inevitable consequence would appear to be to impose yet one more layer

of legalism on a process which, on any view, already requires quite elaborate procedural

steps.”

88. At para. 39 he went on to say that the applicant’s theories:

“ … illustrate the extent to which the assertion of an entitlement to elaborate procedures at

every point, (and a consequential entitlement to contend that any and all subsequent steps

in the process are invalid) might necessarily demand or provoke a legal response, inevitably

leading to delay and cost …”

89. In another context, Denham J. (Murray C.J, Fennelly, Kearns and Finnegan JJ. concurring)

in Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25, [2008] 3 I.R. 795,

referred to the lack of a need for a “micro specific format” in decisions (at p. 819).

90. The House of Lords and the UK Supreme Court have endorsed the view that one should not

adopt an overly legalistic approach to environmental assessment. In 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. said (emphasis added):

“142. It is common ground that the effect of article 5(2) and (3) is to confer on the

Secretary of State a discretion regarding the information to include in an environmental

report. It is also common ground that the approach to be followed in deciding whether the

Secretary of State has exercised his discretion unlawfully for the purposes of that provision

is that established in relation to the adequacy of an environmental statement when applying

the EIA Directive, as set out by Sullivan J in R (Blewett) v Derbyshire County Council [2003]

EWHC 2775 (Admin); [2004] Env LR 29 (‘Blewett’). Blewett has been consistently followed

in relation to judicial review of the adequacy of environmental statements produced for the

purposes of environmental assessment under the EIA Directive and endorsed at the highest

level. In Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin) Beatson

J held that the Blewett approach was also applicable in relation to the adequacy of an

environmental report under the SEA Directive. The Divisional Court and the Court of Appeal

in the present case endorsed this view (at paras 401-435 and paras 126-144 of their

respective judgments). The respondents have not challenged this and we see no reason to

question the conclusion of the courts below on this issue.

143. As Sullivan J held in Blewett (paras 32-33), where a public authority has the function

of deciding whether to grant planning permission for a project calling for an environmental

impact assessment under the EIA Directive and the EIA Regulations, it is for that authority

to decide whether the information contained in the document presented as an environmental

statement is sufficient to meet the requirements of the Directive, and its decision is subject

to review on normal Wednesbury principles. Sullivan J observed (para 39) that the process

of requiring that the environmental statement is publicised and of public consultation ‘gives

those persons who consider that the environmental statement is inaccurate or inadequate

or incomplete an opportunity to point out its deficiencies’. The EIA Directive and Regulations

do not impose a standard of perfection in relation to the contents of an environmental

statement in order for it to fulfil its function in accordance with the Directive and the

Regulations that it should provide an adequate basis for public consultation. At para 41

Sullivan J warned against adoption of an ‘unduly legalistic approach’ in relation to

assessment of the adequacy of an environmental statement and said:

‘… The [EIA] Regulations should be interpreted as a whole and in a common-sense way. The

requirement that ‘an [environmental impact assessment] application’ (as defined in the

Regulations) must be accompanied by an environmental statement is not intended to

obstruct such development. As Lord Hoffmann said in R v North Yorkshire County Council,

Ex p Brown [2000] 1 AC 397, at p 404, the purpose is ‘to ensure that planning decisions

which may affect the environment are made on the basis of full information’. In an

imperfect world it is an unrealistic counsel of perfection to expect that an

applicant’s environmental statement will always contain the ‘full information’

about the environmental impact of a project. The Regulations are not based upon

such an unrealistic expectation. They recognise that an environmental statement may

well be deficient, and make provision through the publicity and consultation processes for

any deficiencies to be identified so that the resulting ‘environmental information’ provides

the local planning authority with as full a picture as possible. There will be cases where the

document purporting to be an environmental statement is so deficient that it could not

reasonably be described as an environmental statement as defined by the Regulations …,

but they are likely to be few and far between.’

Lord Hoffmann (with whom the other members the Appellate Committee agreed on this

issue) approved this statement in R (Edwards) v Environment Agency [2008] UKHL 22;

[2008] 1 WLR 1587, para 38.”

91. The complaint centres on the following in the inspector’s report:

“8.9.7. The applicant’s response to the 3rd party appeal outlines that specific focus has been

placed on the energy efficiency of the development with the aim of reducing carbon footprint,

material selection, waste management and water conservation. I refer to the Sustainability

Statement submitted in support of the application in this regard.

The document outlines that the development seeks to comply with the principles set out

within National Climate Change Policy- Project Ireland 2040”

92. Elsewhere the inspector referenced the following:

“The appeal questions the alignment of the development with national policy including the

Northern and Western Regional Assembly RSES and the Climate Action Fund National

Development Plan 2018-2027 within the framework of Project Ireland 2040. The appeal

outlines that the planner’s report do not mention these policy documents.

...

8.9.1. The appeal questions the alignment of the proposed development with Climate Action

Objectives. The appeal refers to the nature of the development comprising a retail store

with surface car parking, petrol filling station and drive through and questions the alignment

of the development with national policy including the Northern and Western Regional

Assembly RSES and the Climate Action Fund National Development Plan 2018-2027 within

the framework of Project Ireland 204

...

10.4.7.2 The appeal furthermore refers to the nature of the development (comprising a retail

store with surface car parking, petrol filling station and drive through) and questions the

alignment of the development with national policy including the Northern and Western

Regional Assembly RSES and the Climate Action Fund National Development Plan 2018-2027

within the framework of Project Ireland 2040. The appeal refers to Section 5.5 of the CCDP

which supports the development of a decarbonization zone within Cavan and the location of

the appeal site within this zone as identified within the Draft Climate Action Plan. The appeal

questions the principle of a car dominated development in this regard.”

93. What is clear is that the applicant is reading the decision as invalid rather than valid. The

inspector is not referring to, still less decisively relying on, a non-existent document. She is merely

referring in a summary way to a description of what the developer said. Yes the phrasing could be

improved, but if sub-optimal phrasing was fatal to validity, no decision could ever be made.

94. As the commission pleads:

“32. At §7.9.7 of the Inspector’s Report, the Inspector records the fact that the Notice

Party’s response to the third-party appeal (received by the Board on 5th December 2023)

‘outlines that the development seeks to comply with the principles set out within National

Climate Change Policy- Project Ireland 2040.’ It is evident that the Inspector is referring

here to the Sustainability Statement submitted by the Notice Party as part of the planning

application, and in particular the sentence at section 3, internal page 5 of same which refers

to the ‘Government’s “National Climate Change Policy”, Project Ireland 2040’.

33. Furthermore, the Notice Party’s response to the third-party appeal directed the

Board to the Sustainability Statement and explains, under the hearing ‘Climate Action’ at

internal page 13, what the substance of same is directed at:

‘We refer the Board and the Appellant to the submitted Sustainability Statement prepared

by JV Tierney & Co, setting out the strategy to a sustainable design for the proposed

development, which will be to use robust, passive, costs effective measures to create an

efficient and healthy environment within the development area that is both energy efficient

and of low carbon demand in operation.

The design strategies employed will include a whole life cycle approach to management and

planning of the development. Specific focus has been placed on the development’s energy

efficiency with the aim of reducing the carbon footprint, improving the environmental and

well-being quality of the building spaces, material selection and use, waste management,

water management and conservation and enhancement of the ecological value of the overall

development site.

The proposed development has been designed with the aim of achieving a high-performance

building that achieves an “A rated” BER and a low carbon impact …’”

95. The commission’s submission on this is worth quoting in full:

“CORE GROUND 1: The Board’s Decision is invalid because the Board purported to have

regard to a non-existent document which it referred to as the ‘National Climate Change

Policy - Project Ireland 2040’. In so doing it had regard to irrelevant material. (In the

alternative its Decision is invalid due to material error of fact, gave inadequate reasons, and/

or acted unreasonably.)

(Core Ground 1 and the pleas at §1 to §10 at Part E2 of the Amended Statement of Grounds,

and §3 to §43 of the Applicant’s submissions)

8. The Board’s Decision is not invalid as alleged at Core Ground 1.

9. Despite reflexively denying it in their written submissions, Core Ground 1

undoubtedly invokes the fallacy of reading the Board’s Decision and certain aspects of the

Inspector’s Report (in particular §7.9.7) and certain of the materials submitted by the Notice

Party (namely the Sustainability Statement prepared by JV Tierney & Co), ‘in the most

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

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

(Bangladesh) v. The International Protection Appeals Tribunal & Anor [2020] IEHC 41 at §7).

10. The pursuit of Core Ground 1 is the embodiment of the type of legalistic over-

analysis that is to be avoided (see e.g., Minoa v. An Bord Pleanála [2024] IEHC 704 at §76

citing with approval St. Margaret’s Recycling and Transfer Centre Limited v An Bord Pleanála

[2024] IEHC 94 at §57 and the case law cited).

11. Having regard to the Applicant’s approach at Core Ground 1, it is apposite to note

the following passage of Mrs Justice Lang DBE in Bramley Solar Farm Residents Group v

Secretary of State for Levelling Up [2023] EWHC 2842 (Admin) at §36, where the Court was

quoting with approval Lindblom LJ in St Modwen Developments Ltd v Secretary of State for

Communities and Local Government [2017] EWCA Civ 1643 at §6 and §7:

‘…this court has cautioned against the dangers of excessive legalism infecting the planning

system – a warning I think we must now repeat in this appeal (see my judgment in Barwood

Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893, at

paragraph 50). There is no place in challenges to planning decisions for the kind of

hypercritical scrutiny that this court has always rejected — whether of decision letters of the

Secretary of State and his inspectors or of planning officers’ reports to committee. The

conclusions in an inspector’s report or decision letter, or in an officer’s report, should not be

laboriously dissected in an effort to find fault.’

12. The problem for the Applicant here is, as pointed out in Fahybeg [2025] IEHC 310

at §1:

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

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

available.’

13. See also Ryanair Designated Activity Company v. An Bord Pleanála [2025] IEHC 74

at §48 and the case law cited. Similar sentiment was in substance expressed and applied

by the Court of Appeal (Hyland J.) in Friends of the Irish Environment v. The Minister for

Housing, Local Government and Heritage [2025] IECA 128 at §4 and §51.

14. Core Ground 1 is premised on a legalistic parsing and non-contextualised misreading

of the Inspector’s Report in a way that renders it invalid rather than valid (the opposite of

the correct approach). Contrary to the approach taken by the Applicant, the Board’s Decision

and the Inspector’s Report must be read and interpreted as a whole (Monkstown Road

Residents’ Association v. An Bord Pleanála [2022] IEHC 318 at §159; Shadowmill Limited v.

An Bord Pleanála [2023] IEHC 157 at §161; Jennings v. An Bord Pleanála [2023] IEHC 14

at §626; Rushe v. An Bord Pleanála [2020] IEHC 122 at §200).

15. Whereas it is inconvenient for the Applicant on account of their pursuit of certiorari,

a valid reading of Inspector’s Report and the Board Decision is reasonably available here. In

substance and reality, Core Ground 1 as pleaded involves entirely outsized and misplaced

reliance on a single reference at §7.9.7 of the Inspector’s Report (§8.9.7 of the online

version), where the Inspector merely records the fact that the Sustainability Statement

submitted by the Notice Party as part of the application ‘outlines that the development seeks

to comply with the principles set out within National Climate Change Policy- Project Ireland

2040.’

16. This reflects the content of the Sustainability Statement which states as follows (at

§3): ‘In developing the vision for the “Sustainability Strategy” for the proposed development,

incorporation of sustainable strategies into the project deliverables will encourage a

commitment to sustainable design at a very early stage with all the stakeholders involved

to ensure a “best in class” development. This approach seeks to ensure that the

development meets the principles of the Government’s “National Climate Change Policy”,

Project Ireland 2040’.

17. It is instructive to consider the full paragraph from the Inspector’s Report, which

provides:

‘The applicant’s response to the 3rd party appeal outlines that specific focus has been placed

on the energy efficiency of the development with the aim of reducing carbon footprint,

material selection, waste management and water conservation. I refer to the Sustainability

Statement submitted in support of the application in this regard. The document outlines

that the development seeks to comply with the principles set out within National Climate

Change Policy- Project Ireland 2040.’

18. On reading the Inspector’s Report in a way that makes sense (rather than nonsense

as the Applicant does) it is evident that the Inspector is referring here to the Sustainability

Statement submitted by the Notice Party as part of the planning application, and in particular

the sentence at section 3, internal page 5 of same which refers to the ‘Government’s

“National Climate Change Policy”, Project Ireland 2040’. In that respect, the Inspector is

correct to note that, as a matter of fact, that ‘document outlines that the development seeks

to comply with the principles set out within National Climate Change Policy- Project Ireland

2040.’ Merely noting the fact of the content of that document is not a positive conclusion

by the Inspector that the ‘National Climate Change Policy- Project Ireland 2040’ (i) is a

national policy document or (ii) it was required to be complied with or (iii) it has been

complied with by the Sustainability Statement.

19. The preceding part of §7.9.7 of the Inspector’s Report refers to the Notice Party’s

response to the third-party appeal, which directed the Board to the Sustainability Statement.

That response document explains, under the hearing ‘Climate Action’ at internal page 13,

what the substance of the Sustainability Statement is directed at:

‘We refer the Board and the Appellant to the submitted Sustainability Statement prepared

by JV Tierney & Co, setting out the strategy to a sustainable design for the proposed

development, which will be to use robust, passive, costs effective measures to create an

efficient and healthy environment within the development area that is both energy efficient

and of low carbon demand in operation.

The design strategies employed will include a whole life cycle approach to management and

planning of the development. Specific focus has been placed on the development’s energy

efficiency with the aim of reducing the carbon footprint, improving the environmental and

well-being quality of the building spaces, material selection and use, waste management,

water management and conservation and enhancement of the ecological value of the overall

development site.

The proposed development has been designed with the aim of achieving a high-performance

building that achieves an “A rated” BER and a low carbon impact …’

20. The last sentence of §7.9.7 of the Inspector’s Report merely records the fact of what

the Sustainability Statement actually says - and on no reasonable view could that sentence

in the Inspector’s Report be categorised as an irrelevant consideration sufficient to invalidate

the Board’s Decision or a fundamental error that warrants certiorari as the Applicant

contends.

21. Further, it is clear that the preceding part of §7.9.7 reflects and summarises the

foregoing passage from internal page 13 the Notice Party’s response to the third-party

appeal which itself referred to the Sustainability Statement, and as to the substance of latter,

it provided detailed information on the proposed development’s compliance with climate-

related policies and objectives, which the Inspector and the Board considered this

information in their assessment. There is nothing unlawful about any of that and nor could

it reasonably be said that the Applicant was prejudiced or in any doubt as to the meaning of

the Sustainability Statement which in turn was recorded in the Inspector’s Report.

22. It is also to be noted that there is uncontested affidavit evidence filed by the Notice

Party (see §9 to §11 of the affidavit of Robert McLoughlin, Town Planner, of RMLA Planning

Consultants dated 15 May 2025) which addresses the Sustainability Statement and the

reference in same to the ‘Government’s “National Climate Change Policy”, Project Ireland

2040’ and which, inter alia, makes the point (at §7) that ‘that the reference to the

“Government’s ‘National Climate Change Policy’, Project Ireland 2040” was not a reference

to a specific document bearing that name (as nonesuch exists), but rather a confirmation

that the Sustainability Statement had been prepared by reference to national climate change

policy and Project Ireland 2040.’

23. The Applicant’s submissions (e.g., §6, §12), entirely without basis, incorrectly

contend that the Inspector ‘relied’ on the ‘National Climate Change Policy- Project Ireland

2040’. The false premise that the Applicant advances in this regard, in response to the

Board and Notice Party’s points in opposition, is based on the Applicant’s erroneous and

unpleaded assertion that at §7.9.10 (§8.9.10 of the online version) the Inspector’s Report

implicitly incorporates a reference to and conclusion by the Inspector of consistency with

National Climate Change Policy- Project Ireland 2040”. That is patently incorrect and is but

another example of the Applicant reading in invalidity where none exists.

24. In this connection, whereas inconvenient for the Applicant’s case, a more simple and

valid reading of that paragraph is reasonably available, which is that, in stating that ‘I am

satisfied that the proposal is not contrary to national policy or development plan objectives

as they relate to climate change or the objectives of the Cavan County Council Climate Action

Plan 2024-2029’ the Inspector was referring to the national policy relating to climate change

that the Inspector herself identified as national policy relating to climate change at §7.9.1

(§8.9.1 of online version) of the Inspector’s Report:

‘Climate Change

The appeal questions the alignment of the proposed development with Climate Action

Objectives. The appeal refers to the nature of the development comprising a retail store

with surface car parking, petrol filling station and drive through and questions the alignment

of the development with national policy including the Northern and Western Regional

Assembly RSES and the Climate Action Fund National Development Plan 2018-2027 within

the framework of Project Ireland 2040’

(Emphasis added)

25. Indeed, leaving aside the Applicant’s approach of incorrect legalistic parsing of the

Inspector’s Report, it is, for example, entirely clear from §6.1.1 (at page 37), §7.9.1,

§9.4.7.1, §9.4.7.2, and §9.4.7.10 of the Inspector’s Report, that the Inspector was aware

of the National Planning Framework and the National Development Plan and of Project

Ireland 2040 (with the Inspector correctly noting at §7.9.1 that that the National

Development Plan was ‘within the framework of Project Ireland 2040’). There is no basis to

any contention that the Inspector or the Board was not aware of those matters or their

content or as to what Project Ireland 2040 consists of, which is the implication of the

Applicant’s argument.

26. Further, whereas the Applicant’s seeks to downplay the point in its submissions, it

is significant that Applicant has not pleaded or demonstrated that the incorrect/ inaccurate

reference to the ‘National Climate Change Policy - Project Ireland 2040’ made any difference

to the substance of the Board’s Decision. Likewise, it is notable that the Applicant has not

pleaded or identified anything specific that would make any difference to the outcome of the

Board’s Decision in terms of granting permission for the Proposed Development. There is

also uncontested affidavit evidence filed by the Notice Party relevant to this issue (see §11

of the affidavit of Robert McLoughlin, Town Planner, of RMLA Planning Consultants dated 15

May 2025). For Core Ground 1, the Applicant has manifestly failed to show a route-map

from the error relied on to the relief claimed.

27. Having regard to the evidence and information that was before the Board, and on

reading the Inspector’s report as a whole and in its correct context, it is submitted that the

unavoidable conclusion is that, taken at its height, Core Ground 1 is excessively formalistic

and advanced in the abstract as a technicality, not as something that makes any difference

to anything in specific terms (see by analogy Hickwell v. Meath County Council (no.1) [2022]

IEHC 418 at §94 and §95). It unduly majors on what, if it is anything, is evidently a minor

and inconsequential harmless error that makes no difference to anything (per e.g., Doyle v.

An Bord Pleanála [2025] IEHC 158 at §45 and the case law cited).

28. In the premises of the foregoing, it is submitted that Core Ground 1 is not a basis

for certiorari of the Board’s Decision or any other relief. It would be disproportionate to

grant the relief sought given the purely formalistic nature of the complaint made. As to

disproportionality in this regard - which is a legitimate basis for refusing relief – see e.g.,

Eco Advocacy [2025] IEHC 15 at §147-§156; Toole v. The Minister for Housing, Local

Government and Heritage [2024] IEHC 610 at §163; McCallig v. An Bord Pleanála & Ors

[2013] IEHC 60 at §121; Waltham Abbey/ Pembroke Road Association v. An Bord Pleanála

and Others [2022] IESC 30 at §53; Murtagh v. An Bord Pleanála [2023] IEHC 345 at §§74-

75).”

96. The applicant comments on the draft judgment:

“It is unclear from §93-94 [now 94-95] of the draft judgement what part of the Commission’s

submission is being approved.”

97. The answer to that is that the commission’s submission quoted on this issue is being

approved generally. It isn’t necessary to get into possible micro-nuances beyond that in the

circumstances.

98. Ultimately if there is an error that is attributable to the commission, as opposed to loose

wording by the developer, I agree with the developer that this is immaterial because it is clear that

the inspector did consider climate issues more generally. As the developer submitted:

“should any such infirmity be found, it does not warrant the quashing of the commission's

decision: see the comments of Hogan J. in Pembroke Road Residents Association v. An Bord

Pleanála [2022] IESC 30 at §53.”

99. Insofar as the applicant commented on the draft judgment that “The Court has not addressed

the argument in relation go [sic] Core Ground 1 that, insofar as the Board was merely relying on the

Developer’s Sustainability Statement, that statement was in turn relying on a non-existent

document”, that argument doesn’t get the applicant very far. Even on the basis that there was an

error in the phrasing of this document, which I accept, that doesn’t result in certiorari of the board

decision in the circumstances outlines here. It is over-dramatic to characterise such an error as

“rel[iance] on an non-existent document” anyway – it is just somewhat confused wording but not

such as to make any fundamental difference.

100. In essence the reason why this point fails is:

(i) it is settled law that a decision should be read as making sense rather than nonsense

and as valid rather than invalid if such a reading is reasonably available;

(ii) here such a reading is available – the inspector can simply be read as recording what

the developer said; there was in fact no error on the part of the commission;

(iii) the developer’s loose phrasing (and I agree that the wording is sub-optimal if not

technically erroneous – but that’s essentially the developer’s error because the

inspector is merely recording what the developer stated) doesn’t make any

difference to anything in any way that has been demonstrated;

(iv) this is reinforced by the climate policy instruments which the inspector expressly

identified and considered;

(v) it is settled law that legalistic over-parsing of a decision is not a basis for certiorari;

(vi) here the applicant’s complaint falls foul of that principle;

(vii) it is settled law that an applicant has to plead a route-map from the error relied on

to the relief sought;

(viii) here the applicant has failed to do that;

(ix) it is settled law that immaterial errors should not be a basis for certiorari; and

(x) here it is clear that any error is immaterial when viewing the decision as a whole.

101. So this point isn’t a basis for certiorari.

Core ground 2 – failure to have regard to CAP24

102. Core ground 2 is:

“2. Core Ground 2: The Board Decision is invalid because the Board failed to have regard

to the national 2024 Climate Action Plan. It thereby failed to direct itself correctly as to the

requirements of government policy, and failed to perform its functions in a manner

consistent with the most recent approved climate action plan and / or in furtherance of the

national climate objective, and / or with the objective of mitigating greenhouse gas

emissions.”

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

“Core Ground 2 – CAP-24: Failure to Consider or Give Reasons

Applicant

The Applicant contends that the Board failed to consider CAP-24, exercise its jurisdiction in

a manner consistent with the Climate Action and Low Carbon Development Act 2015 as

amended or, in the alternative, failed to give adequate reasons, or, in the further alternative,

acted unreasonably. In short, there is no reference to CAP-24 in the Decision or the

Inspector’s Report, and CAP-24 is not one of the documents made available by the Board,

either online or at its offices, as one of the documents relating to the matter. S.146(5) and

(7) of the 2000 Act require the Board to make the documents relating to the matter available

on its website within 3 days of its decision, and CAP-24 is not among those documents.

Accordingly, the only inference to be drawn is that the Board did not have regard to CAP-

24; but in any event its Decision is invalid for failure to explain its reasoning or for

unreasonableness. Contrary to what is contended by the Respondents it cannot be inferred

from impugned decision that the Board considered CAP-24, and there is no determination of

consistency with that plan. The Board’s formulaic reference in its decision that it was

satisfied that the Proposed Development, ‘…would be consistent with national climate

ambitions, the Climate Action and Low Carbon Development (Amendment) Act 2021 does

not establish that it had regard to CAP-24. Nor are the reasons given by the Board adequate

to show it considered whether the Proposed Development was consistent with CAP-24 when

making its Decision, and its Decision is unreasonable because it had before it no evidence

capable of supporting a finding of consistency with CAP-24: the evidence was of an increase

in emissions while the plan requires a reduction.

Board

The Board’s Decision is not invalid as alleged at Core Ground 2. It is admitted that Board

Inspector’s Report does not refer to the 2024 Climate Action Plan (‘CAP-24’) and that CAP-

24 is not expressly referred to in the Board Order or the Board Direction. It is also accepted

that CAP-24 is not on the physical Board file nor is it published on the Board’s website (the

Board never contended otherwise, nor did it seek to rely on such a counterfactual position

in response and opposition to Core Ground 2. Both of these facts don’t advance Core Ground

2 at all and the Applicant’s reliance on those facts is misplaced and addressed in the Board’s

written submissions). In essence, the Applicant’s complaint at Core Ground 2 boils down to

the fact that the Board did not expressly say that it considered CAP-24. The Board’s position

is that it did have regard to CAP-24 and in this regard that (i) the absence of express

reference to CAP-24 is not determinative of the question as to whether the Board had regard

to same, and on a correct interpretation a reasonable inference can be drawn from certain

text in the Board Order, that the Board had regard to CAP-24 (namely, the Board’s express

conclusion as to consistency with the 2021 Act by necessary implication involved, in reaching

that conclusion as to consistency, consideration by the Board of the most recent approved

climate action plan, which was CAP-24), and (ii) one of the deciding Board Members (the

Deputy Chairperson) has confirmed on affidavit that in fact he was aware of and had regard

to CAP-24, and in particular the policies contained in CAP-24 relating to transport and

reducing vehicle kilometres.

The Applicant’s submissions seek to reformulate the issue as being one turning on the

adequacy of reasons. The reality is that no lack of reasons has been made out by the

Applicant. The Board provided the ‘main reasons for the main issues’ as required. Reasons

can, and in this case did include, by way of acceptance of the Notice Party developer’s

material.

In the alternative and/or without prejudice to the Board’s primary position that it did have

regard to CAP-24 as aforesaid, if this Honourable Court considers that it cannot be so inferred

and/or considers that the Board did not have regard to CAP-24 and/or considers that its

Decision and/or the materials that were before the Board do not sufficiently demonstrate

that regard was had to same, and/or that the affidavit of the Deputy Chairperson is not

sufficient either, and that therefore the Board erred, the Board’s position is that any such

error is a harmless error that did not materially affect the result/outcome of the Board’s

Decision and/or made no difference, and that in the particular circumstances, this

Honourable Court should refuse to grant the relief of certiorari of the Board’s Decision or any

other relief on the basis of said harmless error. The basis for this position is that the central

aspect of the Applicant’s complaint as pleaded in the Amended Statement of Grounds (in

particular at §62 of Part E2) is that the Board failed to take account of the objective of

reducing vehicle kilometres travelled by 20%, and in substance, the same 20% objective is

contained/embodied in the Cavan County Council Climate Action Plan 2024-2029 (adopted

by the Council in February 2024, and made pursuant to s.14B of the Climate Action and Low

Carbon Development Act 2015, as amended) at internal page 83 of same, where in Section

4, Table 4.1 ‘DZ [Decarbonising Zone] Reduction Requirements’, in relation to the ‘Transport’

sector it states, inter alia, ‘Active travel opportunities decreases the total km travelled by

private car in the DZ by 20%’ The said Cavan County Council Climate Action Plan 2024-

2029 (including section 4 of same) was expressly considered by the Inspector and by the

Board. The Applicant’s attempt to identify that the Cavan plan is necessarily different

because the 20% target was local to the decarbonization zone in Cavan is, with respect,

opportunistic. Further, the Applicant has not pleaded or demonstrated that regard to CAP-

24 by the Board would have made any difference to anything in this particular case and in

relation to the particular focus of the Applicant’s pleaded complaint. the Applicant’s point at

Core Ground 2, in the particular circumstances of this case, is advanced in the abstract as a

technicality, not as something that makes any difference to anything in specific terms. It is

clear on any fair reading of the Inspector’s report as a whole that the Board’s Inspector (and

by extension the Board) were aware of the climate policy context as well as the issues raised

by the Applicant in its submission to the Council and third-party appeal and the Applicant at

Core Ground 2 as pleaded has not identified anything in CAP-24 that was not addressed by

the Board in substance. As to the issue of climate change and greenhouse gas emissions

generally, on a correct interpretation of the Board’s Decision, and the materials and evidence

that was before the Board, the national climate objective and the objective of mitigating

greenhouse gas emissions were considered by the Board and its Inspector, and the relevant

aspect of the most recently approved climate action plan (as pleaded to by the Applicant)

was in substance also considered, and no inconsistency arises (as alleged by the Applicant)

from the Board’s exercise of its functions in granting permission for the Proposed

Development subject to conditions. In addition, the Applicant had an opportunity to make

submissions on the climate impacts of the Proposed Development and in this regard could

have raised issue or objection to the Proposed Development by reference to increased

vehicle emissions - in circumstances where the detail in relation to such emissions in the

context of climate effects and national/EU emissions targets was addressed at e.g. §12.6.5

of the EIAR) - but the Applicant did not do so.

State

N/A

Notice Party

While the Board’s decision does not explicitly reference CAP-24, it is clear from the decision

and affidavit evidence (Chris McGarry’s affidavit) that the Board considered CAP-24. The

decision states that the proposed development is consistent with ‘national climate ambitions,

the Climate Action and Low Carbon Development (Amendment) Act 2021’, which

incorporates obligations of consistency with the latest climate action plan, i.e., CAP-24.

The Board’s decision aligns with CAP-24’s objectives, including reducing vehicle kilometres

travelled by 20%. This same objective is also contained in the Cavan Climate Action Plan,

which the Board explicitly considered.

The Board is not required to list every document it considered, provided its reasoning

demonstrates awareness and engagement with the statutory and policy context. The

Inspector’s report and Board’s decision reflect this engagement.

Even if CAP-24 was not explicitly referenced, this would constitute a harmless error, as the

Board considered equivalent objectives in the Cavan CAP. Quashing the decision on this

basis would be disproportionate.

Insofar as the Applicant seeks to reformulate its case under Core Ground 2 as one relating

to the adequacy of reasons, the main reasons and considerations for the Board’s decision

are clear. In addition, the reasons can be gleaned from the materials that Tesco put before

the planning authority and the Board in the planning process.

As regards fair procedures, the Applicant raised climate policy compliance as a central issue

in its submissions. CAP-24’s adoption was foreseeable and did not introduce new substantive

issues requiring further submissions. The Applicant has not demonstrated what additional

arguments it would have made regarding CAP-24.

The Board was not legally required to invite submissions on CAP-24. Section 137 of the

Planning and Development Act 2000 applies only where the Board considers matters outside

those raised by the parties, which is not the case here.

In any event, the Board considered the Cavan CAP, which contains the same 20 per cent

vehicle kilometre reduction objective as CAP-24. The Applicant’s argument that CAP-24’s

broader scope would have altered the decision is unconvincing.

The Applicant has not discharged the burden of showing that the absence of specific

reference to CAP-24 materially affected the decision or resulted in procedural unfairness.

The Board’s decision was consistent with CAP-24 and other relevant climate policies. The

Applicant’s claims are speculative and unsupported by evidence. Even if an error occurred

in this regard, it was a harmless error and does not warrant quashing the decision. Core

Grounds 2 and 2A provide no basis for relief.”

104. The development plan refers to national climate plans albeit not CAP24 specifically:

“CC 01: Support the implementation and achievement of European, national, regional and

local objectives for climate adaptation and mitigation as detailed in the following documents,

taking into account other provisions of the Plan (including those relating to land use planning,

energy, sustainable mobility, flood risk management and drainage) and having regard to the

Climate mitigation and adaptation measures which have been outlined through the policy

objectives in this Development Plan:

- Climate Action Plan (2019 and any subsequent versions),

- National Climate Change Adaptation Framework (2018 and any subsequent

versions),

- Any Regional Decarbonisation Plan prepared on foot of commitments included in

the NWRA RSES;

- Relevant provisions of any Sectoral Adaptation Plans prepared to comply the

requirements of the Climate Action and Low Carbon Development Act 2015,

including those seeking to contribute towards the National Transition Objective, to

pursue, and achieve, the transition to a low carbon, climate resilient and

environmentally sustainable economy by the end of the year 2050; and

- Cavan County Council Climate Change Adaptation Strategy 2019-2024.”

105. The commission pleads firstly:

“39. Whereas the Board Order and Board Direction do not refer to CAP-24 in express

terms, the Board pleads that it had regard to CAP-24 and that it did so is to be and/or can

reasonably be inferred from the Board’s conclusion, at page 3 of the Board Order (and page

1 of the Board Direction), that the proposed development ‘would be consistent with…the

Climate Action and Low Carbon Development (Amendment) Act 2021’, which conclusion is

and/or can reasonably be understood as referring to section 17 of that 2021 Act, which

amended section 15(1) of Climate Action and Low Carbon Development Act 2015 (‘the 2015

Act’) and which, inter alia, provides that a relevant body (which the Board is) shall, in so far

as practicable, perform its functions in a manner consistent with ‘(a) the most recent

approved climate action plan’ which in this case is CAP-24. Put otherwise, the Board’s

express conclusion as to consistency with the 2021 Act by necessary implication involved,

in reaching that conclusion as to consistency, consideration by the Board of the most recent

approved climate action plan, which was CAP-24.”

106. Insofar as the applicant hints at a complaint that the commission didn’t publish CAP24 on

its website or otherwise, this isn’t a pleaded complaint but in any event it isn’t a valid complaint. I

agree with the commission:

“31. It is also accepted that CAP-24 is not on the physical Board file and nor is it published

on the Board’s website (the Board never contended otherwise, nor did it seek to rely on such

a counterfactual position in response and opposition to Core Ground 2). Both of these facts

don’t advance Core Ground 2 at all and the Applicant’s reliance on those facts is nihil ad rem

and a red herring.

32. There is no pleaded case advanced in respect of the absence of a copy of CAP-24

from the physical file or as regards non-publication of same of the Board website, nor has

any legal obligation been identified that would require either of those matters to have

occurred in any event. There is no requirement (and none has been identified by the

Applicant) that requires a copy of CAP-24 to be on the file in any application or appeal in

which regard is had to same by the Board and likewise no requirement to publish CAP-24 on

the Board’s website in any application or appeal in which regard is had to same by the Board.

33. As regards the latter, it is to be noted that online publication requirements under

s.146 of the 2000 Act do not apply to pre-existing documents that are created prior to and

independently of the Board being seized of the matter, nor is CAP-24 a document that came

into existence by reason of the Board being seized of the matter, nor does ‘documents

relating to the matter’ mean absolutely everything in the sense of the unsustainable literal

interpretation that the Applicant appears to contend for at §44 of its submissions (and does

so despite the fact that such an interpretation was rejected in Carrownagowan (No.2) [2024]

IEHC 300 at §79).”

107. Insofar as the applicant tries to present the complaint as one of reasons, the commission

points out the problem with that:

“37. The Applicant’s submissions seek to reformulate the issue as being one turning on

the adequacy of reasons, but the submissions made in that regard by the Applicant as to

the duty to give reasons appear, inter alia, inconsistent and/or at odds with the Court of

Appeal’s judgment (Hyland J.) in Friends of the Irish Environment v. The Minister for

Housing, Local Government and Heritage [2025] IECA 128 at §10 and §136 et seq.

38. Further, and respectfully, the law as to the duty to give reasons and to provide the

‘main reasons for the main issues’ is as set out in 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; and Byrne [2025] IEHC

204 at §124 etc, and Coolglass [2025] IEHC 1 did not alter same.”

108. The law is clear that the duty as to reasons is as to the main reasons on the main issues.

Where the issues arise from submissions as opposed to being independently falling for consideration,

the decision-taker must first evaluate whether the submissions raise relevant issues, subject to

review of that: 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) per

Hyland J. (Costello P. and Collins J. concurring) at para. 148.

109. As regards matters independent of submissions or inherent in the process, where the

commission is disagreeing with a council or with its own inspector 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.

110. Applying that here, the commission says, as noted above (emphasis added):

“Having regard to the provisions of the Cavan County Development Plan 2022-

2028 incorporating the Local Area Plan for Cavan Town 2022-2028 and the ‘Retail

Planning Guidelines for Planning Authorities’ issued by the Department of the Environment,

Community and Local Government in April, 2012, to the zoning status of the site and its

location within the retail core of Cavan as identified within the Cavan County Retail Strategy,

and to the scale and design of the proposed development as well as the pattern of

development in the area, it is considered that, subject to compliance with the conditions

set out below, the proposed development would not seriously injure the visual or residential

amenities of the area or the amenities of property in the vicinity, would be acceptable in

terms of accessibility as well as traffic safety and convenience, would be consistent with

national climate ambitions, the Climate Action and Low Carbon Development

(Amendment) Act 2021 as well as the Cavan Local Authority Climate Action Plan

2024-2029, would not have unacceptable impacts upon water quality objectives or the

environment including designated European Sites. The proposed development would,

therefore, be in accordance with the proper planning and sustainable development of the

area.”

111. The commission gave general reasons for compatibility with national and county climate

plans. That is sufficient especially where the county plan which is addressed by the inspector in

more detail is closely similar in content to the national plan even bearing in mind its necessarily

more limited geographical focus and different statutory basis of the county plan which is based under

s. 14B of the Climate Action and Low Carbon Development Act 2015 (the 2015 Act) and the

potentially differing degree of requirement of compliance. A further important factor as to whether

the applicant can, in the present case, present lack of detail as to compliance with CAP24 as being

a main issue is that the applicant didn’t make any submission on the similar provisions of CAP23.

112. The inspector concluded at p. 111 that the operational impacts as regards greenhouse gas

(GHG) emissions were as follows:

“The development will produce GHG emissions during operational phase of the development

due to necessity to heat, cool and power the buildings and operational activities such as

water consumption, wastewater treatment and the transport and treatment of waste. The

development will increase CO2 emissions by 0.0000022% of Ireland’s EU 2030 emissions

target. The planned developments traffic emissions will increase CO2 emissions by <0.001%

of Ireland’s 2020 and 2030 emissions objectives for CO2.”

113. Her conclusion was:

“Residual Effects

10.4.7.8 With the implementation of proposed mitigation measures, no significant residual

effects on climate are predicted. The EIAR identifies that the overall impact of the

construction phase will be negative, imperceptible to slight and temporary. Impact

associated with the operational phase is assumed to be neutral to negative, Imperceptible

to slight and temporary to short term.

Assessment & Conclusion

10.4.7.9 Having regard to the foregoing, I am satisfied that impacts predicted to arise

regarding Climate are not significant and would be avoided, managed and mitigated by the

measures which form part of the proposed scheme, proposed mitigation measures, and

through suitable conditions. I am, therefore, satisfied that the proposed development would

not have any unacceptable direct, indirect, or cumulative impacts in terms of Climate.

10.4.7.10 I note the concerns raised within the appeal in relation to compliance with Policy

Objective NP054 of the National Planning Framework and the provisions of the Cavan County

Development Plan. I refer to the Sustainability Report submitted in support of the

application which outlines that the proposed buildings have been designed to ensure energy

efficiency and provide the owner/user with a degree of certainty over their energy and

carbon footprint. The target for the development is to achieve an ‘A rated’ BER across all

buildings. Energy efficient lighting and M&E systems are proposed. A reduce, reuse and

recycle philosophy will be adopted throughout the development. I am satisfied that the

incorporation of such measures will negate against impacts on Climate.”

114. So in the circumstances the reasons issue fails because the applicant got the main issues on

the main reasons in the particular context of the submissions made and the considerable overlap

between the county and national policies.

115. It is settled law that a decision enjoys a presumption of validity – that is just the counterpart

of the principle that the applicant bears the onus of proof.

116. An inference of invalidity can arise from a range of matters including the failure of a decision

to deal with necessary matters. However here the decision expressly concludes that the grant of

permission would be consistent with the Climate Action and Low Carbon Development (Amendment)

Act 2021 (the 2021 Act) which necessarily involves a finding that the decision is compatible with the

then applicable Climate Action Plan, albeit not referred to. For good measures, Mr McGarry avers

that he was aware of CAP24, which is exactly what one would expect. It would not be credible to

suggest otherwise. The fact that Mr McGarry avers to awareness of CAP24 doesn’t create an

inference that the other members weren’t so aware.

117. Merely because something isn’t mentioned and isn’t on the file (as Mr Logue demonstrates

was the case here) doesn’t necessarily mean it wasn’t considered although depending on what the

something is, lack of mention may raise an inference of non-consideration which the decision-taker

may or may not be in a position to rebut.

118. O’Donnell C.J. made the point more broadly in O’Doherty and Waters v. Minister for Health

[2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 that judges carry around with them their

own stock of knowledge and it adds to decisions rather than detracts from them if judges can cite

cases in judgments not cited by the parties.

119. The same point applies to tribunal members (and applies to the commission) – such persons

are not novices. International protection decision-takers for example, have experience of evidence

in relation to different country conditions: see A.J.A. (Nigeria) v. International Protection Appeals

Tribunal [2018] IEHC 671 [2018] 11 JIC 1403 (Unreported, High Court, 14 November 2018) at para.

15 and, by analogy, G.O.B. v. Minister for Justice, Equality and Law Reform [2008] IEHC 229

(Unreported, High Court, 3 June 2008) per Birmingham J., W.A.L. Nigeria v. International Protection

Appeals Tribunal [2019] IEHC 581 (Unreported, High Court, 26 July 2019).

120. Insofar as the applicant somewhat mutedly grumbled about the difficulty of dealing with Mr

McGarry’s affidavit at a late stage in proceedings, that doesn’t give rise to any severe unfairness

where I attempted to facilitate the applicant in making whatever points it wanted to make including

by allowing a motion de bene esse returnable for the trial date. Nor was there anything specific that

the applicant wanted me to do about this that I haven’t addressed elsewhere in the judgment.

121. So the applicant hasn’t made out a basis for certiorari under this heading.

Core ground 2A – fair procedures

122. Core ground 2A is:

“Core Ground 2A In the alternative if, which is denied, the Board considered the

national Climate Action Plan 2024, it breached the rules of natural and constitutional justice

in failing to give the Applicant the opportunity to make submissions in relation thereto.”

123. The parties’ positions as recorded in the statement of case are set out above under core

ground 2.

124. Any decision has to be consistent with the 2015 and 2021 Acts and thus with the applicable

CAP, something the applicant was or certainly should have been aware of all along, and it could have

raised the previous version of CAP in its appeal which was CAP23. The applicant didn’t bother to

refer to any specific provision of CAP23 in its appeal which rather dilutes the plausibility of the

argument that there was some fundamental failure in the process here. What further dilutes that

submission is the fact that the applicant has not only not pointed to any fundamental difference

between CAP23 and CAP24 in this respect but indeed accepts that there was a similar provision on

transport emissions in CAP23.

125. It is in that context that we need to consider the applicant’s complaint that it wasn’t able to

raise CAP24 in the initial appeal because CAP24 wasn’t published, even in draft, until after the

appeal. That’s as may be but it doesn’t get them very far in such a context.

126. The applicant says in submissions that the commission should have activated s. 131 or 137

of the 2000 Act but unfortunately it hasn’t pleaded that argument so I don’t need to consider that.

127. It is settled law that fair procedures involves being given a meaningful opportunity to

comment – not a right to spoon-feeding above and beyond that: Y.Y. v. Minister for Justice and

Equality (No. 1) [2017] IEHC 176 (Unreported, High Court, 13 March 2017), para. 95 (this point

wasn’t affected by the judgment in Y.Y. v. Minister for Justice and Equality [2017] IESC 61, [2018]

1 I.L.R.M. 109 (O’Donnell J.)).

128. So no real, actual or meaningful unfairness has been made out especially in a context where

the applicant could have addressed the substance of the point by reference to CAP23 in its appeal,

but didn’t.

Core ground 3 – invalidity of CAP24

129. The merits of this argument, if it arises, were modularised. But this module did consider

whether the point does properly arise – that is, whether we should even embark on the proposed

consideration of the merits of this issue.

130. Core ground 3 is:

“3. Core Ground 3: The Board Decision is invalid because insofar as it may be is based

on the national 2024 Climate Action Plan which because that plan is itself invalid. The

Minister erred in law in adopting the 2024 Climate Action Plan because he failed to ensure

that the 2024 plan was consistent with the State’s carbon budget programme, and to set

out a roadmap of actions, to include sector specific actions that are required to comply with

the carbon budget and sectoral emissions ceiling for the period to which the plan relates,

and sector specific actions that are required to address any failure, or projected failure, to

comply with the carbon budget and sectoral emissions ceiling for the period to which the

plan relates. (In the alternative the Minister failed to reach any conclusion on the above,

failed to consider relevant material, failed to give any or any adequate reasons, or acted

unreasonably.)”

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

“Core Ground 3 – Invalidity of CAP-24

Applicants

The Board Decision is invalid because insofar as it may be based on CAP -24 it is also invalid.

CAP-24 is invalid because the Minister erred in law in adopting it in that he failed to ensure

that it was consistent with the State’s carbon budget programme, and / or that it set out a

roadmap of actions, to include sector specific actions that are required to comply with the

carbon budget and sectoral emissions ceiling for the period to which the plan relate.

Furthermore, Cap 24 is invalid because it also fails to include sector specific actions that are

required to address any failure, or projected failure, to comply with the carbon budget and

sectoral emissions ceiling for the period to which the plan relates. Further, and in the

alternative the Minister failed to reach any conclusion on the above matters, and/or failed

to consider relevant material, failed to give any or any adequate reasons, or acted

unreasonably. This ground has been modularised pending the determination of the other

grounds in the proceedings subject the State Respondents entitlement to make discrete

submissions on certain aspects of the other grounds.

Board

The Board’s Decision is not invalid as alleged at Core Ground 3. Insofar as Core Ground 3

is primarily directed at the validity of CAP-24 (which enjoys the benefit of a presumption of

validity)d the onus is on the Applicant to displace said presumption and prove its claims.

The validity of CAP-24 is for the Minister to address but even if, counter-factually, it was in

some way invalid it does not axiomatically follow that the Board Decision is invalid because

it is based on CAP-24 which is itself invalid, as alleged by the Applicant. That purported

automatic legal consequence as postulated by the Applicant does not follow from the

premises. The Applicant has failed to show a route map from the error relied on to the relief

claimed, as required. As to CAP-24 and the Board’s regard to same, the Board’s position is

set out above in response and opposition to Core Ground 2 and is repeated here insofar as

relevant in relation to Core Ground 3.

State

N/A

Notice Party

CAP-24 enjoys the presumption of validity. The Applicant bears the burden of proving CAP-

24’s invalidity, which it has failed to do.

The Applicant’s assertions that CAP-24 is inconsistent with the State’s carbon budget

programme and sectoral emissions ceilings are speculative and unsupported by evidence.

CAP-24 explicitly acknowledges emissions reduction challenges and sets out measures to

address them.

Even if CAP-24 were invalid (which is denied), the Applicant has not demonstrated how this

alleged invalidity materially affected the Board’s decision. The decision was based on a

range of materials, including the EIAR, Sustainability Statement, and the Cavan Climate

Action Plan, which contains a similar objective to that contained in CAP-24 in relation to

reducing greenhouse gas emissions, including by reducing vehicle kilometres travelled by

20% by 2030.

The Board’s decision complies with its obligations under the Climate Action and Low Carbon

(Amendment) Act 2021 and is compliant with the Cavan Climate Action Plan.

A decision based on an allegedly invalid policy document is not automatically invalid unless

the Applicant demonstrates a causal link between the document’s invalidity and the

decision’s irrationality or unreasonableness. No such link has been established by the

Applicant in this case. It has not overcome the onus of proof which it bears in this regard.”

132. The commission pleads:

“51. Without prejudice to the foregoing, it is denied that the Board Decision is invalid

because it is based on CAP-24 which is itself invalid, as alleged by the Applicant or at all.

That purported automatic legal consequence as postulated by the Applicant does not follow

from the premises. The Applicant has failed to show a route map from the error relied on

to the relief claimed. As to CAP-24 and the Board’s regard to same, the Board’s position is

set out above in response and opposition to Core Ground 2 and is repeated here insofar as

relevant in relation to Core Ground 3.”

133. The core pleaded case is that CAP24 is invalid because it is insufficiently ambitious:

“63. Core Ground 3: The Board Decision is invalid because insofar as it may be is based

on the national 2024 Climate Action Plan which because that Plan is itself invalid. The

Minister erred in law in adopting the 2024 Climate Action Plan because he failed to ensure

that the 2024 plan was consistent with the State’s carbon budget programme, and to set

out a roadmap of actions, to include sector specific actions that are required to comply with

the carbon budget and sectoral emissions ceiling for the period to which the plan relates,

and sector specific actions that are required to address any failure, or projected failure, to

comply with the carbon budget and sectoral emissions ceiling for the period to which the

plan relates. (In the alternative the Minister failed to reach any conclusion on the above,

failed to consider relevant material, failed to give any or any adequate reasons, or acted

unreasonably.)

68. As detailed above, the Climate Action Plan 2024 sets an objective of achieving a

reduction in vehicle kilometres travelled of 20% by 2030. The EPA expressed concern as to

whether that goal could be achieved with the measures proposed, and the SEA of the 2024

Plan noted, but did not disagree with, the EPA’s concerns. It noted that consideration of

additional measures had been postponed for consideration in future plans. No additional

measures were added to the 2024 Plan to ensure compliance.

69. The Minister misdirected himself in law by not adding such additional measures.

S4(2) of the Climate Act requires the Climate Action Plan to be consistent with the State’s

carbon budget programme, and the evidence is that it is not. The Act does not allow

compliance to be postponed. The Minister misdirected himself in law in considering that he

had jurisdiction to adopt a plan without including the measures required to comply with the

carbon budget, or to address projected failure to comply, and he erred in considering that

he could lawfully postpone compliance. He thereby failed to comply with his statutory duty

under S4(2) of the Climate Act.

70. The Minister thereby misdirected himself in law as to the correct interpretation of

S4(2), and wrongly held that he had jurisdiction to adopt a Climate Action Plan that was not

consistent with the State’s carbon budget, and / or that he had jurisdiction to adopt a plan

that did not contain the measures required to address a projected failure to comply with the

State’s carbon budget.

71. In the alternative, the Minister’s Decision is invalid because the Minister reached no

decision as to whether the 2024 Plan complied with the carbon budget and sectoral emissions

ceiling for the period to which the 2024 Plan relates, no decision as to whether it contained

the sector specific actions required to address any failure, or projected failure, to comply

with the carbon budget and sectoral emissions ceiling, and / or no decision as to what

measures were required to support government action on climate change. He therefore

failed to make a determination that is required, or determinations that are required, by law,

and his Decision to adopt the 2024 Plan is therefore invalid.

72. In the alternative, the Minister failed to consider relevant material because he failed

to consider the reservations expressed by the EPA and / or the conclusions reached in the

SEA and SEA Report in relation to those reservations and the deferral of consideration of

what actions were required to remedy the deficiencies identified.

73. In the alternative, if, which is denied, the Minister did reach such a decision, the Plan

is nonetheless invalid because the Minister failed to give any (or any adequate) reasons as

to how he was so satisfied.

74. In the further alternative, if, which is denied, the Minister did reach any conclusion

on the above matters, his decision to adopt the Plan is nonetheless invalid because it is

irrational and unreasonable. The Minister did not have before him any information capable

of sustaining such a conclusion, having regard to the reservations of the EPA and the

conclusions of the SEA.”

134. That’s fine in the abstract provided that an applicant can put forward sufficient evidence to

support such a conclusion. Here it isn’t clear that the applicant has done that but we can leave that

point aside.

135. Any challenge to a policy of this nature needs to be brought by someone with standing –

either unharnessed from any specific decision where a person with standing challenges the plan in

a timely manner, or by a person affected by a particular later decision based on the impugned plan,

in which case time could be extended. The applicant moves under the latter heading, and pleads

that the challenge arises because (emphasis added):

“75. The invalidity of the 2024 Plan is significant for two reasons. First, if the Board had

considered the 2024 Plan and requested the Applicant’s opinion in relation to it, the

Applicant could have submitted that the Plan was invalid. Second, any Board Decision

adopted on foot of an invalid plan is itself invalid, because it is infected by the invalidity

of the underlying document. If, which is denied, the Board did have regard to the 2024

Plan, its Decision was invalid. Furthermore, there is as yet no 2025 Plan, and if the matter

were remitted to the Board to determine again, the validity of the 2024 Plan would be

relevant.”

136. The first point is a complete non-starter. The commission has no jurisdiction to declare

government policy documents invalid. So submissions to that effect made to the commission or

some other administrative body are not appropriate or admissible. Documents of general application

that contravene a binding and directly-effective norm of EU law are in a different WRC-related

category, but that is a situation that doesn’t arise here.

137. As regards the second point, that is also totally implausible. Firstly the alleged invalidity of

CAP24 is that it isn’t ambitious enough in some amorphous manner. Environmental decision-takers

have to consider all relevant government policy (ss. 34(2)(a)(iv), 37(2)(b), 37N(4), 143(1) of the

2000 Act). It would be taking the metaphysics of invalidity way too far to postulate that if any one

of these contextual documents could potentially be challenged on the grounds of not being ambitious

enough – as opposed to by reason of any specific provision that was positively relied on in a crucial

manner – and thus that some hypothetical “better” plan of an imaginary nature should have been

adopted – then decision-making has to grind to a halt or that all decisions taken are vulnerable to

judicial review. The applicant’s notion of “infection” of the decision disintegrates when one looks at

the reality – the implication being that the project (and all other projects capable of causing

emissions) should be refused pending the making of some hypothetically better climate plan at some

indeterminate future time which makes indeterminate but better provision. If the applicant will

forgive the comparison, this sort of metaphysical absolutism has something in common with

sedevacantism – the belief that all popes since Vatican II are not good enough so everything since

then is invalid – or subversive republicanism that conveniently postulates that the second Dáil was

the last legitimate government and everything since then is invalid pending a perfect republic. Here,

the argument is that since a national climate plan is invalid, then any decision that should have had

regard to it (i.e., all planning decisions since the plan was made) are also invalid. That has a similar

energy and a similar metaphysical unreality.

138. As previously noted, the absence or invalidity of an overarching measure of general

application does not have the consequence that an individual decision must be invalid if this would

bring decision-making to a halt: Byrne v. Final County Council [2025] IEHC 204 (Unreported, High

Court, 11 April 2025) at paras. 58-59.

139. For good measure, a similar logic that planning decisions can proceed in the absence of a

climate plan was articulated by McAlinden J. in the recent A5 case, In re Hassard [2025] NIKB 42,

[2025] 6 W.L.U.K. 480 (emphasis added):

“[193] Section 52 does not prevent a major infrastructure project which is a source of

significant GHG emissions being devised, promoted, constructed and put into operation by

the DfI or any other Northern Ireland government department with responsibility for such

activities but what it does clearly rule out is the construction and operation of such a major

project in the absence of robust planning, synchronisation and co-ordination between all

Northern Ireland government departments to ensure that the project fits into the plans,

strategies and policies which map out a realistic and achievable pathway to achieving net

zero by 2050, meeting the interval targets on the way and staying within the carbon budgets

that have now been set.

[194] I fully accept that the DfI has done its very best to assure itself that the road, when

operational, will not prevent it making considerable advances towards the goal of

decarbonising the transport sector by 2050 and that by means of information sharing,

consultation and meaningful co-operation, it has received realistic and reliable assurances

from the DfE that the construction of the road will not prevent the DfE meeting its carbon

reduction targets for the BIP sector. DAERA has also been provided with the estimates from

DfI and DfE and is in a position to take these into account when formulating the draft CAP

(published on 19 June 2025). However, having regard to the interpretation I have placed

upon section 52 as outlined above, I do not consider that this is enough to fulfil the duty

imposed upon the DfI by that provision and in coming to this conclusion, I rely upon my

comments set out in paras [115], [116], [128] and [129] of this judgment.

[195] To recap, the DfI asserts that its modelling indicates that even with the new road

having been built and becoming operational, it will still be possible to achieve its transport

sector obligations and that the transport emissions from the scheme will not be incompatible

with achieving the objectives of the 2022 Act. It is further asserted that when one considers

the estimated minor contribution of the scheme to the three published Northern Ireland

carbon budgets, one can have confidence that given the priority afforded to the scheme by

the Executive, it will not prevent the emissions targets specified in sections 1, 3, 4 and 24

of the 2022 Act from being met. Such confidence, it is argued, is enhanced by the evidence

from DfE that even with the construction of the road, the BIP sector reduction targets and

goals will be met.

[196] The DfI case is that, given the Executive’s approval of and unflinching support for the

scheme, it can be assumed that DAERA, in publishing the draft CAP, will have factored the

GHG emissions resulting from the scheme into the plan to meet the Northern Ireland carbon

budgets and the targets set out in the 2022 Act. In essence, the DfI asserts that it is doing

all that is required of it to decarbonise transport and it is confident that all the other

departments are doing likewise in respect of their various spheres of responsibility, including

the construction sector, and, bearing in mind that this scheme is an Executive Flagship

project, the draft CAP which at the time this case was heard had not been published but was

subsequently published on 19 June 2025 will factor in the impact of the construction and

operation of the road in setting out proposals and policies indicating how it is intended that

the 2022 Act targets will be met, and, in such circumstances, it is unnecessary for the DfI

to await the publication of a finalised CAP in order to commence construction work on the

road.

[197] However, as noted above, the DfI has had to admit that ‘there is not a clear picture

at a Northern Ireland level of all the other schemes and emitting activities which will happen

between now and the 2050 Net Zero Target.’ Further, there is unlikely to be full clarity in

respect of these issues in the short term but it is asserted that any decisions taken now will

need to be factored into: ‘how the Act’s net emissions reduction targets will ultimately be

met.’ It is further stated that: ‘(w)hilst the scheme will result in an increase in emissions,

the A5WTC is a priority investment for the Northern Ireland Executive, and therefore the

emissions generated from the construction and operation will need to be factored into the

Executive’s plans to meet the emissions reduction targets specified in sections 1, 3 and 4 of

the Act and as required by section 24 of the Act to ensure that any carbon budget set under

the Act is not exceeded.’

[198] I accept the bona fides of the DfI when it asserts that in respect of the transport

sector, it will do its bit to ensure that the transport sector is almost fully decarbonised by

2050, and that the TEM gives it confidence that this ultimate goal can largely be achieved.

However, there is a complete absence of evidence as to the overall Northern Ireland position

in the DfI statement. In the absence of evidence in relation to the overall Northern Ireland

position, the DfI’s fallback position is that having regard to the fact that the proposed road

is an important project which is a priority of the Executive, it can safely be assumed that

DAERA will formulate a CAP which will be accepted by the Executive, including the other

departments, and the Assembly, which both allows for the construction and operation of this

road and puts Northern Ireland on a trajectory to reach the 2030, 2040 and 2050 targets

and keeps Northern Ireland within its set carbon budgets. Other infrastructure projects may

have to go by the wayside and other sectors may have to be squeezed further to achieve

these goals but that will happen because it must if the road is to be built and the targets are

to be met and the budgets are not to be exceeded.

[199] I have to stress at this point that I am not interpreting the duty imposed

upon the DfI by section 52 as requiring it to await the finalisation of a CAP before

making a decision authorising the scheme to proceed. That would be much too

prescriptive. My considered view is that in order to comply with its section 52 duty when

making a decision such as this, the DfI needs to be able to produce cogent evidence that its

decision has been made following careful planning, synchronisation and co-ordination

between all Northern Ireland government departments, the result of which demonstrates

that the project fits into plans, strategies and policies which map out a realistic and

achievable pathway for Northern Ireland to achieve net zero by 2050, meeting the interval

targets on the way and staying within the carbon budgets that have now been set. This

evidence is the sufficient information which is required in the Tameside sense.”

140. If authority for the proposition that law has to be workable is required – and it shouldn’t be

required – there is plenty of it. As noted above, what applies is not “rigid abstract logic” (per Murray

C.J. in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88, [2006] 2 I.L.R.M. 48

at para. 41) but “[t]he overriding requirements of an ordered society” (per O’Higgins C.J. in de Burca

v. Attorney General [1976] I.R. 38 at 63). See also Baile Bhruachláin Teoranta & Ors v. Galway

County Council [2024] IEHC 604 (Unreported, High Court, 1 November 2024), Massey v. An Bord

Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025) at 169.

141. The applicant commented on the draft judgment to the effect that:

“The decision in A. v. Governor of Arbour Hill Prison [2006] IESC 45 [w]as one where the

Applicant sought to set aside a judicial decision already finally decided, even though the law

on which they are founded is later held to be invalid. It was preceded by an earlier case

which established the invalidity of the statutory provision where a person affected by the

decision was entitled to bring a challenge to its validity. In this case, the Applicant is the

person affected by the decision based on the plan that is claimed to be invalid and has

standing to bring the case. All that A establishes is that someone affected by a previous

decision based on CAP-24 cannot necessarily seek to reopen the earlier decision if CAP-24

is held to be invalid.”

142. That is a valid point in the abstract, on the basis of the asserted premise that the applicant

was in fact affected by CAP24 in some sense that gave rise to grounds of challenge. But we need

to be clear as to why this is not the case. In C.C. v. Ireland & Ors. [2006] IESC 33, [2006] 2 I.L.R.M.

161, the Supreme Court declared that s. 1(1) of the Criminal Law (Amendment) Act, 1935 was

inconsistent with the provisions of the Constitution. The applicant in A. was convicted under that

precise provision, as was the applicant in C.C. Here there is no analogy with either stage of that

process. The board didn’t expressly rely on CAP24. It was background and part of the statutory

conclusion of climate compliance. The applicant didn’t make any submissions on the corresponding

provisions of CAP23. Furthermore, there is nothing specific in CAP24 that was relied on by the board

in some way that was pivotally adverse to the applicant – by analogy with provision in criminal law

for an offence for which an applicant is convicted. Rather the applicant’s complaint is the amorphous

will-o’-the-wisp that CAP24 should have been more ambitious in some unspecified way and therefore

the board decision would have been different. That chaotic theory engages the underlying point

made in A. that an ordered society has to operate on workable rules, not rigid logic. Murray C.J.

quoted from previous decisions in this sense when opening his judgment in A.:

“‘… [T]he fact that a provision was held to be no longer in force since 1937 does not

automatically carry the corollary that what has been done under and in pursuance of that

provision after the Constitution came into force will necessarily be condemned for lack of

validity’, Griffin J. in Murphy –v- Attorney General [1982] I.R. 241.

‘… [I]t does not necessarily follow that Court Orders lack binding force because they were

made in proceedings based on an unconstitutional statute.’ Henchy J. in The State (Byrne)

–v- Frawley [1978] I.R. 326 at p. 349.”

143. And even assuming, for the sake of argument, that CAP24 is invalid, that creates an absence

of policy, but absence of policy is not a basis for refusal or a ground for certiorari as set out in cases

such as Byrne v. Fingal County Council cited above; see also Element Power v. An Bord Pleanála

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

Planning Law, 3rd ed., p. 328. A decision-taker just has to soldier on with what it has, not throw

down the tools to await a perfect policy landscape.

144. Returning to the present case, having regard to the foregoing, there is no plausible route-

map between the suggested invalidity of CAP24 and certiorari of the commission decision. It follows

from that that the applicant doesn’t have standing to pursue a challenge to CAP24 as a measure of

general application on the grounds that this would be impermissibly abstract. So this point ends

here. It would be inappropriate and impermissible to proceed on a further investigation of the

validity of CAP24 in circumstances where it is challenged out of time in a way that does not properly

impact on the validity of any decision that affects the applicant in a manner that confers standing to

pursue such a challenge. The fact that there was nothing particularly relevant in CAP24 that wasn’t

in CAP23 doesn’t help the applicant in this regard, and neither does the fact that no reliance was

placed on CAP24 by anybody so that it retreated in relevance to being context and an aspect of the

statutory compliance conclusion, as reflected in Mr McGarry’s affidavit.

145. For the avoidance of doubt, in the event that further procedures are contemplated in relation

to the dismissal of the challenge to CAP24, the parties might note the point that leave to appeal

applies by virtue of the principle, noted above, that where a challenge to a measure of general

application is relied on in substance to challenge an individual decision the challenge of which is

subject to statutory restrictions, the challenge to the measure of general application is also subject

to such restrictions: Nawaz v. Minister for Justice, Equality and Law Reform [2012] IESC 58, [2013]

1 I.R. 142 (Clarke J.) (Fennelly, O’Donnell, McKechnie, MacMenamin JJ. concurring).

EU law issues

Core ground 4 – invalid EIA

146. Core ground 4 is:

“4. Core Ground 4: The Board Decision is invalid because the Board failed to carry out

a valid EIA. It misdirected itself in law as to the concept of ‘significant effect’ and failed to

recognise that an effect is significant if it may result in a breach of a standard set or

recognised by national or European law. It specifically misdirected itself in failing to

determine significance of a development that would increase vehicle journeys and emissions

by reference to a government objective to reduce such journeys and emissions. (In the

alternative the Board failed to consider relevant material, failed to give any or any adequate

reasons, and / or acted irrationally or unreasonably.)”

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

“Core Ground 4 – EIA Significance

Applicants

The Applicant submits that the Board, in carrying out an EIA, failed to identify a significant

effect, namely the effect of the traffic increase that the Developer EIA acknowledges the

Proposed Development would cause. This effect is significant not in terms of its absolute

emissions, but rather in its legal context: it is an increase in emissions at a time when

emissions are required to reduce, and when they are failing to do so. The requirement for

a reduction is set out above: it results from the Climate Act, from the State’s international

commitments, and from CAP-24 and its predecessors. The failure to achieve this objective

is set out in stark terms in the EPA’s publications exhibited by the Applicants, and the

increase in emissions is a significant issue.

Board

The Board’s Decision is not invalid as alleged at Core Ground 4. The EIA that the Board

completed was a full assessment carried out in accordance with the requirements applicable

to that assessment. The Applicant’s complaint at Core Ground 4 in relation to the EIA the

Board carried out, in particular as to potential impacts of increased vehicle journeys and

emissions, in substance involves impermissible non-expert merits-based disagreement with

the result of the Board’s EIA in relation to the Proposed Development (which is not a basis

for certiorari of the Board’s Decision or any other relief). Proffering a different opinion on

that merits-based question of significance in an EIA context (as the Applicant in substance

does at Core Ground 4) is not a basis for relief in judicial review. Further, Core Ground 4 is

Board’s Decision in a way that renders it invalid rather than valid. The Board and its

Inspector were entitled to prefer the materials submitted by the Notice Party for EIA

purposes and on a correct interpretation of the Inspector’s Report it is clear why same were

accepted and preferred in the context of the EIA that it carried out, and the reasons in the

Board’s Decision were adequate and comply with the relevant legal principles on reasons

and the assertion to the contrary (advanced in the alternative by the Applicant) is baseless

and incorrect. The Applicant has not demonstrated that the evidence and materials that

were before the Board were so flawed on their face that a reasonable expert would have

objected to them. There was sufficient information before the Board, including in relation to

EIA, to allow it to reach the decision it did on the subject appeal. A fundamental difficulty

for the Applicant in this case is that scientific and factual shortcomings in EIA must be

established by the Applicant who bears the burden of proof, and they have manifestly failed

to satisfy that evidential burden in this case. Core Ground 4 involves impermissible non-

expert merits-based disagreement with the EIA that the Board carried out and in particular

the Board’s conclusion that impacts predicated to arise regarding climate are not ‘significant’

environmental effects for EIA purposes. However, 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.

As to increased vehicle journeys and emissions, the same were lawfully considered in the

context of EIA by the Board and its Inspector having regard to information which the Board

considered was adequate for the purposes of that assessment (such as e.g., Chapter 12 of

the EIAR). Further, the word ‘significant’ (in the concept of ‘significant effect’) does not lay

down a precise legal test. Whether a project is likely to have significant effect on the

environment is a question of degree which calls for the exercise of judgement – being a

function for the Board in the context of its expert planning function. Significance of effect is

not a question of hard fact to which there can only be one possible correct answer in any

given case and is a matter for the Board reviewable as to its merits only for irrationality, and

the Applicant has failed to establish or demonstrate that the Board’s Decision is irrational or

unreasonable in this regard. Irrationality is plainly not made out on the evidence in this

case. The Applicant’s interpretation of the law as proffered in support of Core Ground 4 is

incorrect and has no basis in the EIA Directive or in any relevant authority.

State

N/A

Notice Party

Both the EIA Directive and Section 171A of the Planning and Development Act 2000 confer

a discretionary evaluative function on the Board to assess the significance of impacts.

Significance is a matter of expert judgment and planning discretion, not a legal

determination. The Courts respect and defer to the expertise of the Board in conducting

EIAs and will only intervene if there is irrationality or legal error. Judicial review does not

permit the Court to substitute its judgment for the Board’s expert evaluation. Against that

backdrop, Core Ground 4 is really an impermissible merits-based challenge to the Board’s

decision.

The EIAR quantified the emissions impact of the proposed development as negligible, stating

that the increase in CO2 emissions would be approximately 0.0000022% of Ireland’s EU

2030 emissions target and traffic emissions would increase by less than 0.001% of Ireland’s

2020 and 2030 emissions objectives. The Board accepted the EIAR’s findings that the

emissions increase was de minimis and not significant. Accordingly, the Board’s conclusion

was rational and supported by evidence.

The Applicant’s assertion, which his not supported by evidence, that any increase in

emissions must be deemed ‘significant’ is legally incorrect. The EIA Directive does not

mandate such an approach, and significance must be assessed in context.

The Applicant’s argument is a subjective disagreement with the Board’s expert judgment,

which is impermissible in judicial review.

The Board considered the proposed development’s impact on climate in the context of

national and local climate policies, including the Cavan Climate Action Plan 2024-2029. The

Board concluded that the proposed development was consistent with these objectives.

The Board appropriately balanced the emissions impact against climate objectives. The

Applicant has not demonstrated that this balancing exercise was irrational or unlawful. The

Applicant has not provided expert evidence to challenge the Board’s conclusions. Non-expert

subjective assertions are insufficient to discharge the Applicant’s onus of proof.”

148. This is a complex ground so the basis of it is best examined by looking at the sub-grounds

individually.

149. As regards the overall ground:

“Core Ground 4: The Board Decision is invalid because the Board failed to carry out a valid

EIA. It misdirected itself in law as to the concept of ‘significant effect’ and failed to recognise

that an effect is significant if it may result in a breach of a standard set or recognised by

national or European law. It specifically misdirected itself in failing to determine significance

of a development that would increase vehicle journeys and emissions by reference to a

government objective to reduce such journeys and emissions. (In the alternative the Board

failed to consider relevant material, failed to give any or any adequate reasons, and / or

acted irrationally or unreasonably.)”

150. This helpfully summarises the sub-grounds but doesn’t plead anything with the necessary

particularity in itself.

151. Sub-ground 77 is:

“The Board concluded that the Proposed Development was not likely to have significant

effects on the environment because it would only increase vehicle emissions by less than

0.001% of Ireland’s vehicle emissions objective for CO2, and this was not a significant

increase.”

152. That is not exactly a full summary of the decision but it is a fair point nonetheless. However

it is just factual context at best.

153. Sub-ground 78 is:

“Particulars 17 to 63 11 to 55 above are repeated here as if set out in full.”

154. Those sub-grounds are just legal and factual context. Insofar as they raise particular issues

I mention them elsewhere.

155. Sub-ground 79 is:

“The national objective is to actually to reduce emissions by 50% by 2030, not merely to

limit increases.”

156. That is a fair point but it doesn’t translate into requiring refusal of applications that don’t

reduce emissions. In any event it is just pleaded as a statement of legal context.

157. Sub-ground 80 is:

“The Board erred in law because the significance of impacts has to be assessed by reference

to national and European legal standards. The information that the developer must provide

to the Board in an EIAR includes, in accordance with R94 PDR and Article 5(3)(b) and (c) of

Directive 2011/92, includes a description of the measures envisaged in order to avoid,

reduce and, if possible, remedy significant adverse effects, and the data required to identify

and assess the main effects which the project is likely to have on the environment, and must

therefore contain the data that are necessary in order to assess the effects of a project

having regard to the legal obligations that constrain the Board’s power to grant permission.”

158. That is just a statement of legal context in itself – the word “because” is misplaced since

what follows it does not explain the postulation before it.

159. Sub-ground 81 is:

“The Board erred in law in considering the significance of the increase because it considered

only the amount of the increase, and did not apply the requirement to remain consistent

with the climate budget and to further the national climate objective, pursuant to S15B of

the Climate Act. It failed to determine significance by reference to the requirements to

reduce emissions by 50.1%, and to reduce vehicle kilometres travelled by 20%. In

particular, it failed to do so in circumstances where the trajectory of emissions is not in

accordance with that objective – it is rising rather then falling. That objective is a binding

legal objective to which the State has committed itself pursuant to the Climate Act and Paris

Accord, and to which it is committed by European law. The Board misdirected itself in law

because it failed to determine whether the effect of the Proposed Development on the

environment would be significant by reference to the legal and policy obligations requiring a

reduction of emissions. Accordingly, the Board misdirected itself in law when considering

the adequacy of the EIA for the purposes of R111 PDR. It also, or in the alternative,

misdirected itself in law by carrying out an assessment which failed to reach a lawful

reasoned conclusion as to the likely significant effects of the Proposed Development on the

environment for the purposes of S171A PDA.”

160. This is the applicant’s best point but as pleaded it isn’t a good point. The convoluted way

this is drafted makes this difficult to explain but I will try. The reason this is not a good point is that

it ostensibly postulates a theory that does not challenge the concept that a factual conclusion of no

significance could have been arrived at by reference to the amount of the increase (this is implicit

in the word “only”), but overlays on that a legal conceit that to be valid such a conclusion would

have had to have had regard to (a) national climate ambitions and (b) the trajectory of

implementation of such ambitions. The effect of that overlay appears to be (as suggested in sub-

ground 84, confusingly pleaded as an alternative argument) that no emissions-increasing project

could be regarded as having insignificant effects.

161. Considered as a failure-to-have-regard point, the board clearly did have regard to

national climate objectives, referenced by the inspector and by the county plan, and evidenced by

Mr McGarry. The commission’s plea is a reasonable response to this:

“58. As to increased vehicle journeys and emissions, the same were lawfully considered

in the context of EIA by the Board and its Inspector (see e.g. section §9.4.7, §9.4.7.1 to

§9.4.7.10 of the Inspector’s Report and more generally in relation to EIA, pages 5 to 7 of

the Board Order), having regard to information which the Board considered was adequate

for the purposes of that assessment (with such information including Chapter 12 of the EIAR

including e.g. §12.6.4, Table 12.11, §12.6.5, Table 12.13, Table 12.15, §12.9.5, and

§12.11.2).”

162. The problem for the applicant is that the inspector expressly addresses the issue of the effect

of GHG emissions from traffic during the operational phase, and essentially concludes that these are

not significant.

163. This is based on the information in the environmental impact assessment report (EIAR) e.g.

vol. 1 p. 12-11 which sets out a calculation of insignificance, particularly in relation to traffic impacts

contributing adversely to the extent of <0.001% of 2030 CO2 emissions objectives.

164. As regards knowledge of lack of practical progress in implementation, the pleadings suggest

that this is illustrated by CAP24 (sub-grounds 31-32) so if (as I find) the board had regard to CAP24

they had regard to that point also. Insofar as Environmental Protection Agency (EPA) reports or the

SEA report for CAP24 elaborated on this (sub-ground 38 and 40) the applicant hasn’t shown how

the board was obliged to have regard to such reports other than as embodied in submissions or

policies that were independently before the board.

165. Considered as an assessment-decontextualised-from-climate-goals point, the

problem there is that the conclusion of lack of significance was not decontextualised from climate

goals. The inspector notes various goals that are congruent with national policy:

“6.3.2. Section 4 of the Plan relates to the identification of a Decarbonising Zone for Cavan

Town as identified in Figure 4.1. The identified zone extends to include the appeal site. The

Plan outlines that A Decarbonising Zone (DZ) is defined as a designated area identified by

the local authority, within which various measures and stakeholders are identified to address

local energy efficiency, greenhouse gas emissions, and climate-related needs. The

overarching goal is to achieve national emission reduction targets, including a minimum

annual reduction of 7% in carbon emissions until 2030, leading to a cumulative 51%

reduction by 2030 and net-zero emissions by the end of 2050 compared to the baseline year

of 2018.

6.3.3. Section 4.4 of the Plan provides a summary of emissions within the Cavan Town

Decarbonisation Zone. The Plan outlines that the commercial and public sector accounts for

41% of the DZ’s carbon emissions and carbon emissions associated with the transport sector

equate s to 9.14% of the total emissions within the DZ. Within the transport sector, private

car use equates to 53% of carbon emissions within the Cavan DZ. Section 4.4.4 of the Plan

outlines that t Petrol and diesel are the most common sources of fuel for transport and

account for 99.95% of fuel used. Just 0.05% rely on electricity for transport fuel.

6.3.4. Section 4.7 of the Plan identifies Decarbonising Zone Actions. Table 4.3 relates to the

Built Environment and Transport. In terms of the Built Environment relevant actions include

- ensuring all new buildings are zero energy and enhancing the resilience of the built

environment to climate impact. Transport objectives include: (1) Promote a modal shift from

private to public transport in Cavan Town, (2) Support the development of active travel

infrastructure, cycling and walking initiatives and (3) Promote and enable the transition of

vehicles within the Cavan Town DZ to electric or other low-carbon transport options. Table

4.4 relates to Natural and Green Infrastructure and seeks to incorporation of a number of

measures including promotion of SUDs measures within development. Table 4.6 relates to

Sustainability and Resource Management and sets out measures including supporting the

circular economy.”

166. At 10.4.7.1 the following is noted:

“The appeal raises concern in relation to compliance of the development with objectives

NPO54 of the Cavan County Development Plan. Section 5.2.8 of the CCDP relates to the

objectives of the National Planning Framework including NPO54 as cited within the grounds

of appeal as follows.

• NPO 54 Reduce our carbon footprint by integrating climate action into the planning

system in support of national targets for climate policy mitigation and adaptation

objectives, as well as targets for greenhouse gas emissions reductions.”

167. Insofar as the applicant makes various points as to nuances of difference between CAP24

and CAP23 which was the basis of the EIAR conclusion of no significance, or between the county

plan and the national plan, one can’t identify any major piece of climate context that was

disregarded.

168. In particular the commission was self-evidently seized of the need to reduce car based

emissions. Indeed the applicant expressly pleads (sub-ground 30) that CAP23 and CAP24 had the

same objective in this regard:

“Under the 2023 Plan, the transport objective had become more stringent, and required a

reduction of 20% in kilometres travelled by all vehicles by 2030. This reduction requirement

was repeated in the 2024 Plan.”

169. Considered as a correct-legal-interpretation point, the position is a bit more complex.

170. The climate emergency is so big as a problem that it can only be addressed by a vast

agglomeration of drops in the ocean, so the fact that a particular project only has an insignificant

effect can’t automatically be decisive. One also has to bear in mind the vast timescale involved –

most GHGs remain in the atmosphere for immense periods of time – a portion will remain essentially

forever (“longer than the age of human civilization so far”:

https://www.nature.com/articles/climate.2008.122) unless captured. Even if all emissions stopped

tomorrow, world temperatures would remain elevated for a thousand years if not vastly more. So

an effect that is insignificant over one year might be significant over a thousand years. On this

basis, a de minimis argument is dubious depending on what we are talking about. Particularly so

when the suggestion that “[t]he development will increase CO2 emissions by 0.0000022% of

Ireland’s EU 2030 emissions target” was highlighted. That is all to the good but it only gets the

board so far – this figure is a bit of a red herring because it does not represent the emissions caused

by the development. The developer is basically talking about having an energy-efficient building

and operation there. But the applicant’s point is that the project will stimulate traffic and hence

emissions. How much emission isn’t just a matter of one year – one would have to project forward

until all vehicles are powered from renewable sources. Maybe that won’t be that far away, but

0.001% of the 2030 budget is not a complete or conspicuously transparent representation of the

total amount of emissions caused by this project.

171. How environmental consenting bodies should deal with projects that cause emissions is an

important question at a general level, but for the foregoing reasons in the context of the very limited

way this issue was pleaded in this case, I am not convinced that the present case is a suitable vehicle

to explore all aspects of that. In broad terms, it would not be consistent with the 2015 and 2021

Acts to conclude that significant emissions were justified on general planning grounds simpliciter –

but that isn’t what happened here.

172. Some potential considerations are as follows:

(i) All consent functions have to be exercised as far as practicable in a manner

consistent with climate goals – as required by s. 15 of the 2015 Act as amended by

the 2021 Act.

(ii) Compatible essentially means contributing to the goals set out. Thus a project has

to be either climate-neutral (not causing emissions, or any emissions being balanced

by off-sets), or else provided for in the relevant climate action plan (either as a

specific project or as part of a category of projects which are sufficiently identifiable

by size and number such that the commission can determine whether any individual

grant of permission would be compatible with the plan). The commission is not a

catch-all national policy-making body – Government has to be specific enough to

allow the commission to make individual decisions. In the absence of specificity the

commission may not be able to come lawfully to a conclusion of consistency.

(iii) The commission’s conclusion that the project is compatible with such goals can be

challenged if irrational or unreasoned, or if based on flawed reasons.

(iv) Only the additional GHG emissions of the project are crucial, bearing in mind that

the scenario of no consent is not normally one of no emissions but of an alternative

(sometimes higher) level of emissions. Displacement effects such as relocation of

projects may be relevant in some cases but in other cases relocation may not lead

to higher emissions given the continually intensifying global focus on renewable

energy and the many areas of the world where renewables are more readily

accessible than here (solar energy in the tropics, geothermal power in Iceland, and

so on).

(v) Consistent with the 2015 Act, the commission may determine that it is not

practicable to ensure compliance with climate goals. This may arise by virtue of

imperative requirements of social order such as energy security or other essential

infrastructure, or even where energy projects based on fossil fuels are required to

stabilise the grid during periods when the winds are not blowing, to put it colloquially.

All that is a matter to be debated in an appropriate case.

(vi) Emissions can also be challenged on any other legally cognisable basis, such as the

polluter pays principle, which potentially applies even if the project is accounted for

in a climate plan or is required by imperative reasons of public policy. Subject to

argument in the appropriate case, there is no immediately obvious reason why

promoters of projects that cause emissions should not be required to put in place all

necessary offsets – failure to condition that would arguably be a breach of the EU

law principle that the polluter pays, which is one of the pillars of EU environmental

law. Otherwise the commission would be facilitating carbon fly-tipping on the

atmospheric commons.

173. The applicant here didn’t argue much of this. Rather the focus of the argument was on an

incorrect conclusion of insignificance by not having regard to climate goals. But the board did have

regard to climate goals.

174. In a case where more developed climate arguments are made about projects causing

emissions, I might need to consider adding the EPA for example as an amicus curiae to provide more

climate science context than any individual applicant can readily furnish. There are probably

numerous other bodies that could also assist, but parties would need to apply for that.

175. Here, the inspector held that the emissions would be immaterial. An applicant could displace

that either in isolation or by demonstrating that the project was of a category which viewed

collectively would have significant impacts. The applicant hasn’t succeeded in either.

176. Sub-ground 82 is:

“In the alternative, if, which is denied, the Board did make such a determination, its Decision

is nonetheless invalid because it failed to give any, or any adequate, reasons, capable of

making clear that it did so, and it thereby contravened S171A and / or S34(10) PDA.”

177. The answer to that is that nobody could be in any doubt as to the reasons given. The

applicant isn’t entitled to micro-reasons or reasons for the reasons.

178. Sub-ground 83 is:

“In the further alternative, the Board failed to consider the significance of the impact of the

Proposed Development on the environment by reference to the objective of a 20% reduction

in vehicle kilometres travelled, and / or the objective of a 50.1% reduction in transport

emissions by 2030, but considered it only by reference to the existing baseline, and in so

doing it failed to consider relevant information.”

179. This only makes sense as a plea of failure to consider national climate goals. But that has

to be established evidentially, which this applicant hasn’t done.

180. Sub-ground 84 is:

“In the further alternative, the Board acted irrationally and unreasonably because it had no

evidence before it on foot of which it could have come to a conclusion that the impact of the

Proposed Development would not be significant in circumstances where it was accepted that

the Proposed Development would increase emissions when there is a legal objective to

reduce emissions embodied in the Climate Action Plan and in legislation.”

181. If the point is that consideration of (a) and (b) referred to above would have led a reasonable

board to the conclusion that the effects were significant, that is something an applicant has to

demonstrate evidentially, which this applicant hasn’t done. The absolutist position adopted here –

the objective is reduction therefore anything causing an increase however insignificant is a breach

– is far too prescriptive and reductionist.

182. Viewed more broadly than the way the issue is pleaded here, if climate-neutral projects can

be consented, it is illogical to object to those that are virtually climate neutral if the excess of

emissions is genuinely trivial and as long as the polluter pays and all other legal prerequisites are

addressed. The real question in such cases may be the accuracy and logic of the emissions

calculations, and whether the developer is setting those off, however minor they may be, but the

applicant hasn’t got into that issue on these pleadings.

183. In an EIA context, there is a margin of evaluative judgement around what sort of effects are

to be regarded as significant: see for example judgment of Lord Leggatt in R (on the application of

Finch on behalf of the Weald Action Group) v. Surrey County Council and others [2024] UKSC 20,

[2024] 4 All E.R. 717, [2024] P.T.S.R. 988, [2024] 6 W.L.U.K. 315 at [58]; R. (Boswell) v. Secretary

of State for Energy Security and Net Zero [2025] EWCA Civ 669, [2025] 5 W.L.U.K. 359 at 80-82

and 95-96. The issue of significance in the present case was primarily pleaded as an EIA point so

the Boswell margin applies. The 2015 Act obligations are more hard-edged – decisions must be

compatible with climate goals unless that is impracticable. Breach of that requirement wasn’t the

focus of the pleadings so remains for debate in another case.

184. Boswell was primarily an EIA case rather than one about a statutory provision directly

comparable to s. 15. Here, the applicant hasn’t directly pleaded breach of s. 15 but rather attacked

the conclusion of insignificance in EIA terms. That hasn’t been made out for the reasons explained.

185. So I would agree with the board’s pleaded opposition up to a point, but only “all other things

being equal”:

“63. Further, the word ‘significant’ (in the concept of ‘significant effect’) does not lay

down a precise legal test. Whether a project is likely to have significant effect on the

environment is a question of degree which calls for the exercise of judgement – being a

function for the Board in the context of its expert planning function. Significance of effect is

not a question of hard fact to which there can only be one possible correct answer in any

given case and is a matter for the Board reviewable as to its merits only for irrationality, and

the Applicant has failed to establish or demonstrate that the Board’s Decision is irrational or

unreasonable in this regard.”

186. Where I would caution as to the limits of this is that a conclusion on significance has to be

based on correct facts and legal understandings and a valid chain of reasoning, duly explained, as

well as all other substantive and administrative law requirements. It isn’t just a question of

“evaluative judgement” brushing aside all complaints.

187. To put it another way, all this is framed on the pleadings as an EIA point. Whether Ireland

is on course or off course on climate targets (and there is a sizeable body of material from the EPA

indicating that the position is very much the latter) doesn’t affect the validity of the permission if

the board made a valid determination that the effects would not be significant. That determination

is not invalid on the basis of any of the points pleaded by the applicant under this heading. Whether

that is an unlawful approach on some other basis will have to await some other case.

188. A final reinforcing point is that the core points made on the pleadings go significantly further

than anything the applicant put to the board. Their submission insofar as relied on in the statement

of grounds is:

“Friends of Killymooney request that An Bord Pleanála thoroughly examine the granting of

planning permission with a specific focus on objectives NPO54 and NPO60 from the COP.

We are concerned about Cavan County Council's compliance with the Cavan County Climate

Adaptation Strategy 2019 to 2024 and its alignment with national policies, particularly the

Northern and Western Regional Assembly Regional Spatial and Economic Strategy 2020 and

the Climate Action Fund National Development Plan 2018 to 2027 within the framework of

Project Ireland 2040. It is essential to ascertain whether the awarding of planning

permission underwent a comprehensive consultation process to ensure it adheres to the

objectives and policies outlined in these critical climate and development strategies. This

examination is vital to ensure that the decisions align with the collective commitment to

sustainable development and climate action at the local, regional, and national levels.

Notably, both planners' reports from Planning Application 238 do not mention or reference

these policies.

Furthermore, we would like to draw attention to Section 5.5 of the Cavan County

Development Plan, which outlines the development objective of supporting the

decarbonizing zone, specifically incorporating Cavan Town and its surrounding areas,

contingent upon departmental approval. Notably, the draft Climate Action Plan for Cavan

has recently been published. It is imperative to inquire whether the local authority has

thoroughly examined the proposed Tesco Superstore and filling station, situated within this

designated decarbonization zone, to ensure their alignment with the objectives clearly

outlined in the draft action plan and the development plan. This scrutiny is fundamental to

confirm that development within the area is in harmony with the local authority's

commitment to decarbonization and sustainable growth, as articulated in its official

documents.

Has this development undergone an evaluation in alignment with the Climate Action Plan?

Is the construction of a service station within a decarbonization zone in accordance with

regulations? Does the presence of a drive-through cafe adhere to compliance requirements?

Doesn't this aspect potentially encourage vehicular travel within the town centre, which is

contradictory to the local authority's efforts to promote active transportation and climate

action? This raises concerns when the local authority is striving to encourage sustainable

and climate-conscious practices. We also note that the construction of a superstore on such

a scale is inconsistent with SCCC 7, which supports the introduction of car restriction zones

in close proximity to urban schools to encourage active travel.

Climate Action objectives from Chapter 5 of the CDP.

Decarbonising Zone Development

• Objective

• It is a development objective of Cavan County Council to:

o Support a decarbonising zone incorporating Cavan Town and surrounding

areas, subject to Departmental approval.

• NP054

o Reduce our carbon footprint by integrating climate action into the planning

system in support of national targets for climate policy mitigation and

adaptation objectives, as well as targets for greenhouse gas emissions

reductions.

• NP060

o Conserve and enhance the rich qualities of natural and cultural heritage of

Ireland in a manner appropriate to their significance.”

189. In particular we don’t see the applicant’s radical objection to even trivial increases in

emissions being reflected in this submission. That doesn’t help the applicant’s position here.

Core ground 5 – cumulative impacts

190. Core ground 5 is:

“5. Core Ground 5: The Board Decision is invalid because the Board carried out a

defective EIA. It failed to consider the cumulative impacts of all vehicle emissions from all

projects, considering instead only a limited selection of 5 developments proximate to the

Proposed Development.”

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

“Core Ground 5 – EIA Cumulative.

Applicant

This ground overlaps with 4: it is that the effect of increased emissions from the Proposed

Development is cumulatively significant, because there has been an overall 0.3% increase

in emissions identified by the EPA (Ireland’s Final Greenhouse Gas Emissions 1990-2023,

April 2025), and this is a significant non-compliance with the State’s commitment to reduce

emissions. The Board’s error was in not factoring in the cumulative increase nationally, and

the impact of that increase on its ability to authorise new projects. This is not an unworkable

requirement, as claimed by the Board, because it should be able to keep a tally, at least, of

the increased emissions (if any) authorised by it in the course of any relevant period.

Board

The Board’s Decision is not invalid as alleged at Core Ground 5. The Applicant’s non-expert,

subjective contentions that the Board carried out a defective EIA in particular in relation to

consideration of cumulative effects, are incorrect and baseless. It is no answer at all to this

point for the Applicant to contend in reply (§98, Applicant’s submissions) that they are

making legal submissions on based on public documents. Core Ground 5 is based on a false

premise in that there is no requirement in the context of assessment of cumulative effects

for EIA purposes to consider the ‘the cumulative impacts of all vehicle emissions from all

projects’. The self-evidently unworkable and implausible assertion of the Applicant in this

regard is without legal basis and does not arise from the text, context or purpose of the EIA

Directive correctly interpreted. The Applicant hasn’t pointed to anything in EU legislation or

jurisprudence or that of member states or former member states to support such an

interpretation – which is not surprising because the interpretation proffered by the Applicant

is obviously unworkable. The problem for the Applicant (being one for which no cogent

response is provided in their submissions) is that nothing in the EIA Directive required the

EIAR submitted by the Notice Party (or the EIA carried out by the Board) to assess, by way

of a national approach, the cumulative impacts of the Proposed Development in combination

with developments as geographically disparate as ‘all projects’ in Ireland and in this regard

‘all vehicle emissions’ from those projects, as pleaded by the Applicant. In its submissions,

the Applicant incorrectly contends that such a requirement does arise from the requirement

to carry out as complete assessment as possible of the direct and indirect effects of the

project concerned on the factors set out in Article 3 of the EIA Directive. The fundamental

flaw in that argument is that an open-ended interpretation of Article 3(1) of the EIA Directive

of the kind the Applicant contends for is one that has been rejected by the Supreme Court

(in An Taisce (Kilkenny Cheese) [2022] IESC 8, [2022] 2 IR 173) as one that would lead to

the imposition of an impossibly onerous and unworkable obligation on developers preparing

an EIAR that leads me to the conclusion that this interpretation should be rejected, and

same also entails an artificial expansion of the scope of the EIA Directive beyond its remit in

the very manner that the Supreme Court said shouldn’t occur (at §107 of [2022] IESC 8,

[2022] 2 IR 173).

Further, as pleaded in its Statement of Opposition and addressed in its written submission,

the Board’s position is also that, if necessary, relief should be refused in the exercise of the

Court’s discretion.

State

N/A

Notice Party

Annex IV of the EIA Directive requires the assessment of cumulative impacts with other

existing and/or approved projects, but this must be interpreted reasonably and in the specific

context of the proposed development. The Directive does not impose an obligation to assess

cumulative impacts on a national scale.

In An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8, the Supreme Court

(Hogan J) held that overly broad interpretations of the EIA Directive would impose

‘impossibly onerous and unworkable obligations’ on developers and competent authorities.

Cumulative impacts must be assessed proportionately and practically: see also Coyne v. An

Bord Pleanála [2023] IEHC 412, where the High Court (Holland J) emphasised that

cumulative impacts must be assessed proportionately, avoiding overly broad or unworkable

obligations.

The Board’s EIA appropriately considered cumulative impacts in relation to five proximate

developments, including residential, educational, and institutional projects near the

proposed development. These were identified in the EIAR (Chapter 7, Table 7.14), and the

Inspector concluded that cumulative impacts were ‘negative, slight, and temporary.’

The Board’s focus on proximate developments was appropriate. The Applicant’s reliance on

Case C-50/09 Commission v Ireland and Case C-404/09 Commission v Spain is misplaced.

These cases require a ‘complete assessment’ of cumulative impacts, but this must be

interpreted in the context of the specific project and its geographic scope.

The Applicant’s suggestion that the Board should have assessed cumulative impacts on a

national scale is inconsistent with the principle of proportionality embedded in EU law. The

Applicant’s argument mirrors the type of artificial expansion of the EIA Directive that the

Supreme Court expressly cautioned against in Kilkenny Cheese. Broader environmental

consequences must be addressed at a programmatic level, not through individual EIAs.

Once again, the Applicant’s argument is based on subjective, non-expert opinions, which are

insufficient to discharge the Applicant’s onus of proof in establishing that Core Ground 5

provides a basis for quashing the Board’s decision.”

192. The commission pleads:

“67. 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 were

expressly and lawfully satisfied as to the adequacy of the information submitted for EIA

purposes, including as regards cumulative effects with other projects within the vicinity of

the Proposed Development, and the Applicant has not established that the Board’s Decision

was irrational in this respect, nor has the Applicant evidentially established an inadequacy

here in relation to the EIA that the Board carried out.

68. The Applicant’s non-expert, subjective contentions that the Board carried out a

defective EIA in particular in relation to consideration of cumulative effects, are incorrect

and are denied. Core Ground 5 is based on a false premise in that there is no requirement

in the context of assessment of cumulative effects for EIA purposes to consider the ‘the

cumulative impacts of all vehicle emissions from all projects’.

69. The self-evidently unworkable and implausible assertion of the Applicant in this

regard is without legal basis and does not arise from the text, context or purpose of the EIA

Directive correctly interpreted.

70. Nothing in the EIA Directive required the EIAR submitted by the Notice Party (or the

EIA carried out by the Board) to assess, by way of a national approach, the cumulative

impacts of the Proposed Development in combination with developments as geographically

disparate as ‘all projects’ in Ireland and in this regard ‘all vehicle emissions’ from those

projects, as pleaded by the Applicant.”

193. The problem with this argument is that it is framed as an EIA point. The directive does not

require that all projects in the State be assessed cumulatively – that isn’t a workable obligation and

of course there is nothing to support it in terms of European material. This is acte clair against the

applicant in the light of existing caselaw, particularly An Taisce v. An Bord Pleanála (Kilkenny Cheese)

[2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281, per Hogan J. at para. 105, rejecting

“impossibly onerous and unworkable obligations”.

194. The applicant pleads at sub-ground 81 (emphasis added):

“The Board misdirected itself in law because it failed to determine whether the effect of

the Proposed Development on the environment would be significant by reference to

the legal and policy obligations requiring a reduction of emissions. Accordingly, the Board

misdirected itself in law when considering the adequacy of the EIA for the purposes of R111

PDR. It also, or in the alternative, misdirected itself in law by carrying out an assessment

which failed to reach a lawful reasoned conclusion as to the likely significant effects of the

Proposed Development on the environment for the purposes of S171A PDA.”

195. The problem with this is that it isn’t correct – the commission did, through the inspector,

expressly determine whether the effect would be significant and concluded that it wouldn’t be, and

in doing so it considered the legal (referenced in the commission order) and the policy (referenced

as far as county policy is concerned in the inspector’s report, but national policy is similar and is

impliedly involved in a consideration of the legislation). No other complaint apart from failure to

determine that issue and the legal consequences of that is expressly pleaded in this passage.

196. So there isn’t any basis for certiorari pleaded under this heading.

Summary

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

(i) it is settled law that a decision should be read as valid if a valid reading is reasonably

available;

(ii) applying such law to the facts here, the inspector’s wording can be construed as

merely reflecting the developer’s material and not as relying on a non-existent

document in some unlawful way;

(iii) it is settled law that decision-takers are not novices and carry with them their own

experience and learnings;

(iv) applying such law to the facts here, there is nothing implausible about Mr McGarry’s

averment that he was aware of CAP24, but in any event compliance with CAP24 is

implicit in the commission’s express conclusion of compliance with climate

legislation;

(v) it is settled law that fair procedures involves having a reasonable opportunity to

make one’s point, not a right to be spoon-fed;

(vi) applying such law to the facts here, the applicant could have made the points now

advanced by reference to similar provisions of CAP23 when making its appeal – it

didn’t do so, and accordingly the claim of unfairness rings hollow at this stage;

(vii) it is settled law that a measure of general application should not be challenged on

an academic basis and that legal obligations should not be unworkable;

(viii) applying that here, the applicant’s basis for challenging CAP24 is impermissibly

abstract and academic, and that postulating a metaphysics of invalidity that nullifies

planning decision-making pending some hypothetically better climate plan is not a

workable concept;

(ix) insofar as the EIA complaint is a failure-to-have regard or failure-to-contextualise

point, that is incorrect on the facts, and insofar as it is an unreasonableness point,

that hasn’t been evidentially demonstrated by reference to anything properly

pleaded;

(x) it is settled law that the EIA directive should not be read as imposing impossibly

onerous obligations; and

(xi) applying such law to the facts here, the notion that all vehicular emissions in the

State ought to have been assessed is impossibly onerous and not a valid

interpretation of the directive – this point is acte clair against the applicant.

Order

198. 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;

(i) the proceedings be dismissed;

(ii) 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

(iii) 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 party concerned provide written

legal submissions by 12 September 2025, the matter be listed on 15 September

2025 for mention, and the proposed application be heard on 25 September 2025

with the parties to agree arrangements for replying submissions in the meantime.