High Court refuses certiorari against planning decision, upholding Board's reliance on July Memorandum despite procedural irregularities.

THE HIGH COURT PLANNING AND ENVIRONMENT

[2025] IEHC 418

RECORD NO: 2024/1278 JR

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

Between:

JOHN MOREHART Applicant -and-

AN BORD PLEANALA Respondent -and-

ABBOTT IRELAND Notice Party

JUDGMENT of Ms. Justice Emily Farrell delivered the 12th day of August 2025

Introduction 1.The Applicant is the owner and occupier of Bellamont Forest Estate which includes Bellamont House, an 18th Century Palladian villa which is a protected structure, an original eighteenth century demesne and Dromore Lough. The lands owned by the Applicant adjoin the site the subject of Notice Party’s application for planning permission.

2.On 29th November 2022, the Notice Party applied to Monaghan County Council for planning permission for the expansion of the facility operated by it at Cootehill, Co. Cavan, for development including additional warehousing, a laboratory area, ancillary office and staff facilities and four powder silos together with a new standalone water treatment plant, and an ingredients’ storage area. As appears from the Planning Report, the facility is self-sufficient in terms of potable water supply and the application relates to a water treatment plant and does not include any development involving wastewater treatment. The development applied for, and the subject of the decision to grant, shall not increase the manufacturing capacity of the plan. The planning register reference number for the application was 22/497.

3.The Applicant avers that his property adjoins the site and will be directly and particularly affected by the proposed development. The impact on his property, of which he complains in his affidavits, relates to the development as proposed. He does not specify any particular effect on his ability to enjoy his lands, or the value of those lands, arising from any difference in the proposed development when compared with the development applied for. However, the Board did not make any finding in relation to that aspect of the test for leave to appeal.

4.The Applicant sought to make a submission on the application the subject of the proceedings, by hand-delivering it to the offices of Monaghan County Council on 1st February 2023. On that date, the submission was rejected as having been made outside the prescribed period. The rejection of the submission was not challenged by the Applicant.

5.Monaghan County Council issued a notification to grant permission on 1st February 2023, subject to 12 conditions.

6.A third-party appeal was brought by An Taisce, (PL18.315932 (ABP-315932-23)) on 28th February 2023. An observation was made in respect of that appeal by John Bonner, Town Planning Consultant on behalf of the Applicant on 27th March 2023.

7.By letter dated 28th February 2028, an application was made by Joe Bonner, on behalf of the Applicant, for leave to appeal that decision under section 37(6)(a) of the Planning and Development Act 2000.

“In this application, it will demonstrate as is required by Section 37(6) of the Planning and Development Act 2000 (as amended) that: - … The applicant has an interest in land adjoining, the site of the decision to grant permission (Section 2.0), and the requirements of both 37 (6) (d) (i) and (ii) above have been complied with in that:

-

(i) the development in respect of which a decision to grant permission has been made will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject, and

(ii) that the imposition of such conditions will materially affect the applicant’s enjoyment of the land or reduce the value of the land,”

…

“With any planning application the Planning Authority has a discretion. It can accept the development or alter it by way of conditions. The 12 conditions imposed amend the permission for which development has been granted by the very nature of the amendment themselves. The conditions imposed at 3, 4, 5, 6, 7, 8, 9 & 11 of the grant of been imposed for reasons such as protecting the environment and the orderly development of the proposal. These are all significant reasons as to why the development was amended and it is evident that Condition 12 copper fastens the reasoning identified by the Planning Authority in the earlier conditions.”

8.Although Condition 12 was quoted in the submission, the substance of the submission related solely to Conditions 4 and 6. In the conclusion, it was submitted that “The imposition of such conditions will materially affect the applicant's enjoyment of the land and will reduce the value of the land. In particular the provision of a condition for the collection/ storage and disposal of hazardous waste and material and the works required to mitigate the impacts of pollution will undoubtedly seriously impact upon the proper use of Mr Morehart's lands which are intended to be maintained as a pristine natural environment, the enjoyment of which cannot but be undermined by the threat and the acknowledged likelihood of significant pollution and contamination of these lands arising from the modifications provided for in Condition 4, 6 and 12.”

9.Separately, the Applicant applied for leave to apply for judicial review in respect of the decision of Monaghan County Council. That application, which was opened on 28th March 2023, was ultimately refused by the High Court on 23rd February 2024: Morehart v Monaghan County Council [2024] IEHC 100.

10.On 21st March 2023, a document entitled “Memorandum ABP-315937-23 Reg Ref : 22497” was prepared by an Executive Officer, who is a Member of the Administrative Staff of the Board. She is neither a Planning Inspector nor Senior Planning Inspector. Counsel for the Board accepted that this document amounted to a report made under section 146.

11.On 24th March 2023, the Board refused the application for leave to appeal. That refusal was quashed by the High Court, Hyland J., on 5th December 2023 in proceedings brought by the Applicant (2023/532 JR) and the application for leave to appeal was remitted to the Board for determination in accordance with law. The Board had conceded that it was appropriate that an order of certiorari be made.

12.Reference is made to a Memorandum of the Board dated 11th December 2023 which referred to the fact that the previous decision had been quashed by the High Court and that matter had been remitted to the Board to be determined in accordance with law. That document is not before the Court. On 5th January 2024, the Board decided to refer the appeal to a differently constituted Board, which Direction was made on 8th January 2024.

13.On 9th January 2024, the Board met and determined the application for leave to appeal. By Order, with reference ABP 318631-23, the Board refused the application for leave to appeal the

decision of Monaghan County Council. That decision was challenged by the Applicant in proceedings bearing Record No. 2024/307 JR. On 5th July 2024, the Board wrote to the Applicant conceding that it was appropriate that an order of certiorari would be granted. On 29th July 2024, Holland J. made an Order of certiorari quashing the decision of 9th January 2024 and remitted the application for leave to appeal back to the Board. The Order was perfected on 31st July 2024.

14.On 31st July 2024, a Memorandum was signed and dated by a Senior Planning Inspector of the Board. As the Applicant has invited the court to draw an inference from the fact that, as the date was added in handwriting rather than typed, this means it was completed in advance of 31st July 2024. This question is considered below.

15.The Memorandum recommended that the Board refuse leave to appeal under section 37(6) on the basis that the matters to be addressed by Conditions 4 and 6 did not result in a development which differed materially from the development as set out in the application for permission. The Inspector accepted that the Applicant was the owner of adjoining lands, and did not consider whether the impact of the said conditions would reduce the Applicant’s enjoyment of his lands or the value of those lands.

16.The file was subsequently reactivated on the Board’s IT system and a new reference number ABP 320351024 was assigned to the application.

17.The submissions on the file and Inspector’s report dated 31st July 2024 were considered by the Board at its meeting on 19th August 2024. The Board concurred with the Inspector and by Direction of the Board made on 20th August 2024, the Board decided to refuse the application. An Order to that effect was made by the Board on 21st August 2024.

18.The Board considered the application for leave to appeal for the third time on 21 st August 2024 and decided to refuse the application.

19.The Memorandum dated 21st March 2023 was before the Board when it made the decision challenged in these proceedings. However, it was not referred to directly or indirectly in the Senior Inspector’s Memorandum dated 31st July 2024, or the Board Direction or Order.

20.The Applicant was granted leave to apply for judicial review to challenge that decision by Humphreys J. on the grounds set out at paragraph E of the Statement of Grounds which was filed on 15th September 2024.

21.Three previous applications had been made by the Notice Party in respect of this site, each of which had been the subject of a decision to grant permission but was appealed by the Applicant to An Bord Pleanála. The decisions of the Board to grant permission in respect of the first two such appeals (planning register reference numbers 20/300 and 20/433) were quashed by the High Court. The third application for permission (planning register reference number 20/490)

was withdrawn after the appeal was lodged, but before the Board had determined the application.

Application for leave to appeal to the Board

22.The application before the Board was made under section 37(6) as amended, which provides:

“(6) (a) Notwithstanding subsection (1)(a), a person who has an interest in land adjoining land in respect of which a decision to grant permission has been made may, within the appropriate period and on payment of the appropriate fee, apply to the Board for leave to appeal against a decision of the planning authority under section 34.

…

(d) The Board, or any member or employee of the Board duly authorised by the Board in that behalf, shall, where an applicant under this subsection shows that—

(i) the development in respect of which a decision to grant permission has been made will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject, and

(ii) that the imposition of such conditions will materially affect the applicant’s enjoyment of the land or reduce the value of the land, within 4 weeks from the receipt of the application grant the applicant leave to appeal against the decision of the planning authority under subsection (1).

(e) The Board shall notify in writing the applicant and the planning authority of a decision to grant or refuse an application under this subsection within 3 days from its making.

…

(g) Notwithstanding section 34(11)(a)(i), where an application is made under this subsection a planning authority shall not make a grant of permission unless the application is refused. … .”

23.The parties agree that section 37(6) should be applied in the manner described by Haughton

J. in Gleann Fia Homes Ltd v. An Bord Pleanála [2019] IEHC 618. If each of the three criteria specified in section 37(6) are satisfied, the Board is required to grant leave to appeal; otherwise the Board has no discretion and must refuse the application. The criteria are:

- the applicant for leave to appeal has an interest in the adjoining land;

- the development will differ materially from the development as set out in the application, by reason of conditions imposed by the Council; and

- that the imposition of those conditions will materially affect the Applicant's enjoyment of the land or reduce the value of the land.

24.It is also accepted by the Applicant that the onus of demonstrating that “the development in respect of which a decision to grant permission has been made will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject” rested on him. The Board does not have an independent obligation to enquire into conditions, or issues, not raised in the application for leave.

25.In Gleann Fia, Haughton J. rejected the argument made by the Board that subsection (6) should be given a wide meaning or a broad meaning, stating “s.37(6) should be given a literal interpretation, and should not be broadly construed in a manner that might undermine the policy or legislative intent behind either s.37(6) or s.37(1)(a), whatever that may be.” (para.74)

26.The Board must engage with the original planning application and compare the development applied for with the development as granted by the Council. The planning documents must be construed in the manner required by Re XJS Investments Limited [1986] IR 750. As Haughton

J. held, the comparison required by section 37(6)(d) must focus on differences in the development arising from the conditions imposed by the Council's decision. He stated:

“In particular, objective comparison by an intelligent and informed layperson or a developer of the plans and particulars originally lodged with the application with the revised plans and particulars accompanying the further information (which are listed in Condition 1), would not perceive any material difference in the development works permitted in the ‘red line’ site.” (para.85)

27.Haughton J. held that there was no basis in fact or in law upon which the first and second criteria could be met. He applied the O’Keeffe test, noting in respect of the third criterion that the weight to be attached to the evidence presented was entirely a matter for the Board.

28.Referring to Condition 35, which required a financial contribution in respect of a pedestrian bridge on lands not owned by the developer, Haughton J. stated that “a condition in line with Condition 35 could ‘objectively’ have been anticipated by an intelligent and informed layperson or a developer or their agent on reading the planning application. Condition 35, save as regards the quantum of the contribution, is not materially different to any condition that could reasonably have been anticipated.” (para.

90)

29.Haughton J. held that there was no factual basis on which the Board could have concluded that Condition 1 or Condition 35 caused the permission granted by the Council to differ materially from that applied for. He also held that “As a matter of law neither condition made any difference at all to the development ‘works’ within the ‘red line’ site. Further no intelligent well informed layperson or developer would objectively consider that there was any material difference between the initial application and that in respect of which a decision to grant permission was made, by reason of either of these conditions.” (para. 99) The Board’s decision to grant leave to appeal was quashed on those grounds.

30.In the instant case, it is accepted that the Applicant owns lands adjoining the lands for which development had been granted permission by the planning authority. The Board found that the conditions imposed by the Council had not materially altered the development from that for which permission was sought. The third criterion was not addressed by the Board.

31.The Board must interpret the planning application and permission granted by the Council correctly to validly determine an application under section 37(6). However, the consideration of the materiality of any difference between the development applied for and the development as modified by the conditions imposed by the planning authority necessarily involves the exercise of planning judgement.

The issues

32.Core Grounds 1, 5 and 6 relate to the Board’s consideration of Memoranda dated 21st March 2023 (‘the March Memorandum’) and 31st July 2024 (‘the July Memorandum’). The Board relied on the July Memorandum and rejected the application for leave to appeal, generally accepting the recommendation of the Inspector in that Memorandum and found that Conditions

4 and 6 did not result in a development which differed materially from that applied for. It did not refer to the March Memorandum.

33.The first issue to be determined is whether the Board was entitled to rely on the July Memorandum. The Applicant asserts at Core Ground 5 that the Board was not entitled to do so as it had been prepared before the application was remitted to the Board. The Applicant submits that the case can be determined on Core Ground 5 alone but maintains the application in respect of each of the other grounds also. At Core Ground 1, the Applicant argues that the Board failed to consider the March Memorandum adequately or at all. He contends, at Core Ground 6, that the Board failed to give reasons for relying on the March Memorandum rather than the July Memorandum and failed to appreciate that the latter Memorandum did not refer to the earlier one.

34.The Applicant submits, at Core Ground 2, that the Board looked behind the conditions imposed in the Council’s decision to grant permission, specifically those at Condition 4(a)(i) – (v), and considered them to be unnecessary or considered that they had been imposed for a purpose other than that expressed in the reason stated on the face of the decision. At Core Ground 3, the Applicant maintains that the Board erred in its application of section 37(6)(d), in considering whether Condition 4 will result in a development that is materially different to that set out in the application for permission. The Applicant argues, in Core Ground 4, that the Board had regard to irrelevant considerations insofar as it had regard to the fact that the facility held an Industrial Emissions Licence, and that the Licence was not before the Board.

Statement of Opposition and Evidence of the Board

35. The Board filed its Statement of Opposition on 9th January 2024, which was verified by an affidavit sworn by Kevin Baneham, the Director of Legal Affairs. Mr. Baneham subsequently swore two further affidavits. The Applicant is extremely critical of the evidence of the Board, and in particular highlights the fact that neither the Director of Planning, nor the Senior Inspector who prepared the Memorandum dated 31st July 2024 have sworn affidavits.

36.Core Ground 5 pleaded that the Memorandum of 31st July 2024 had been prepared before the application was remitted to the Board. The Statement of Grounds pleads that the remittal occurred on 31st July 2024, on which date the Order of Holland J. quashing the previous

decision and remitting the application to the Board was perfected. The Applicant relies on the fact that the Memorandum was dated 31st July 2024, and that the date was added in handwriting. The Applicant was not in a position to put forward direct evidence in support of the contention that the Inspector’s Memorandum was prepared prior to the remittal. At the hearing, the Applicant conceded that the date of remittal was 29th July 2024, being the date on which the Order was made, and not the date on which the Order was perfected, but maintained the position that the Memorandum was prepared, at least commenced, prior to the remittal order. The Applicant did not seek to amend the Statement of Grounds in that regard.

37.In the Statement of Opposition, it was pleaded that:

- The Board appointed a Senior Planning Inspector (also referred to as “the Inspector”)

to prepare a Memorandum in relation to the remitted application and this was done. The Senior Planning Inspector prepared a 12-page Memorandum, signed and dated 31 July 2024, which, inter alia, concluded (at section 6) that leave to appeal under s.37(6) should be refused for stated reasons and considerations (set out on page 12 of that Memorandum)…. (para. 12)

- It is clear from the Board’s Decision under challenge that the Board agreed with the analysis and conclusion of the Senior Planning Inspector contained in the more detailed 12-page Memorandum dated 31 July 2024 that was prepared specifically in respect of the remitted application at issue herein …(para. 28)

- Contrary to what the Applicant asserts, the 12-page Memorandum was not prepared before the application was remitted to the Board (para. 35)

- The Memorandum prepared by the Senior Planning Inspector is dated 31 July 2024 and thus after the date that the relevant order was pronounced in Court by Holland J.. The fact that the Board and its Inspector complied with the order in an expeditious manner does not give rise to any unlawfulness or legal infirmity and is not a basis for certiorari of the Board’s Decision or any other relief. (para. 58)

- The Senior Planning Inspector was requested to prepare a Memorandum for the Board on the remitted application for leave to apply and this was done. (para. 59)

- the Board agreed with the analysis and conclusion of the Senior Planning Inspector contained in the more detailed 12-page Memorandum dated 31 July 2024 that was prepared specifically in respect of the remitted application at issue herein. (para. 62 and 68)

38. The Statement of Opposition was verified by the first affidavit of Mr. Baneham, in which he also stated that the Board appointed a Senior Planning Inspector to prepare a Memorandum in respect of the remitted application and this was done. That Memorandum is dated 31st July 2024.

39.However, Mr. Baneham stated in his second affidavit that the Inspector was appointed on 29th July 2024, but in the third affidavit he states that the file had been given to the Inspector on 11th July 2024, although the date on which she was assigned to prepare a report is not specified. It is clear from the second affidavit that the Inspector had received the file before the perfection of the Order of Holland J. (on 31st July 2024). At para 14, Mr. Baneham states that the assertion that the July Memorandum was prepared before any remittal is incorrect. He refers to the fact that the Memorandum was dated 31st July 2024. At para. 15 of the second affidavit, Mr. Baneham states that the Inspector was appointed to consider the application on 29th July 2024 when the Order was perfected, and that the Inspector’s Report was prepared thereafter and signed on 31st July 2024. At para. 22, he avers that Inspector had the file before the Order was perfected. He also states, at para. 15, that the file was assigned to three Board Members for their consideration on 7th August 2024.

40.At. para. 20 -21, Mr. Baneham stated:

“20. … because of the nature of the case and the truncated timeframe for making a

decision on the remitted application for leave to appeal, a decision was made by the Board to appoint a Senior Planning Inspector to prepare a report on the application, in aid of the Board making its decision on the remitted application for leave to appeal. This was in the context where, as is common case between the parties, there had already been two prior decisions by the Board on the application for leave to appeal (which had both been subject to judicial review and remittal to the Board). It was open to the Board to appoint an Inspector in this regard and there was nothing untoward or improper in the Board appointing an Inspector to prepare a Memorandum on the application, and insofar as the Applicant is or means to suggest that in some sense there was, whether by reference to other applications for leave to appeal or otherwise, I respectfully disagree and do not accept any such suggestion.

21. Furthermore, contrary to what is contended at paragraph 62 of Mr. Morehart’s Second Affidavit, the Legal Affairs section of the Board had no role in determining the subject leave to appeal application at issue in these proceedings and have never had a role in those applications. The practice is that the Legal Affairs Section only become involved in relation to a Leave to Appeal decision where such decisions are challenged by way of an application for Judicial Review.”

41.A third affidavit was sworn by Mr. Baneham on 21st February 2024. He explains that after proceedings are remitted to the Board following an application for judicial review, that application is returned to the Legal Affairs Section of the Board to be administered in accordance with the Order. He states, at para. 6:

“If it is considered that a new or an addendum Inspector’s Report is required the procedure is for the file to be then given by the Legal Affairs Section to the relevant Director of Planning for assignment in accordance with the resources available to them.

If no such report is deemed necessary the file is given to the Chair or Deputy Chair of the Board for assignment by them to Board members. I am not involved in the selection of the relevant Inspector or Board member save for identifying who has worked on the file previously where this is relevant.”

42.At para. 8 Mr. Baneham avers that:

“In this case, having regard to the history of the application and the prior applications for Judicial Review, I decided that it would be appropriate for an Inspector to be appointed to consider the application and to provide a report to the Board. I took this course of action because of the statutory test for leave to appeal applications, the tight timeline to decide such applications and the particular complexities arising in this leave to appeal application. That decision was taken after the Board had conceded the second set of Judicial Review proceedings, in anticipation that the matter would again be remitted to the Board for a further decision.”

43.He states that he brought the file to Ms. Kellett, Director of Planning, after the case had been conceded by the Board and that it was she who assigned the Senior Planning Inspector to prepare the Report. Mr. Baneham avers that Ms. Fitzpatrick informed him that she received the file on 11th July 2024. He states that the averment in his second affidavit stating that this occurred on 29th July 2024 was an error.

44. The third affidavit also corrects the averment at para. 15 of the replying affidavit. The file was assigned by the Chairperson of the Board to the lead Board Member, Mr. Logan, on 7 th

August 2024. Mr. Logan brought the file to the Board meeting comprised of himself and Stephen Bohan and Martina Hennessy on 19th August 2024. Mr. Baneham acknowledges that there were two errors in his second affidavit and states that he regretted that. He states that the Applicant’s solicitors had raised queries in respect of his second affidavit in a letter dated 14th February 2025, which he exhibits. He also states he has endeavoured to address those queries in his third affidavit and to provide the necessary clarifications.

45.The Applicant is very critical of the fact that the evidence provided by the Board changed over the course of the three affidavits, and particularly that there is no evidence stating exactly when the Inspector was directed to prepare a report, or the date on which she commenced preparing that report.

46.The Applicant did not apply for leave to cross-examine Mr. Baneham on his affidavits.

47.The only plea in the Statement of Opposition in respect of which the evidence of Mr. Baneham has changed is the plea that “the Board” assigned Ms. Fitzpatrick to prepare the report, whereas that assignment was carried out by the Director of Planning, an employee who was duly authorised by the Board to do so. As noted above, the Board explains that by stating that the term ‘the Board’ was used in the institutional sense, and not to contrast it with an employee who was duly authorised to make such an assignment.

48.It was submitted on behalf of the Board that the reference to “the Board” having appointed a planning inspector in the Statement of Opposition, referred to the Board in the institutional sense, i.e. that the Board, through its agents, its employees and officers undertook a particular act. The undisputed evidence is that the Director of Planning was authorised to assign Ms. Fitzpatrick to prepare a report under section 146(1). It was not submitted that the reference to the Board having assigned the Senior Inspector to prepare a report in the Statement of Opposition was an error. An application was not made for liberty to amend the Board’s Statement of Opposition, nor did the Board concede that there was such an error, although undoubtedly the language used could have been more precise and clearer. Although he clearly stated that the assignment had been made by the Director of Planning, and that she was duly authorised to make the assignment, he did not seek to correct the reference to the Board having made the assignment in the Statement of Opposition or his earlier affidavits. This is consistent with the explanation offered by counsel at the hearing – that the term “the Board” was used in the institutional sense. Section 146 is considered below. It empowers either the Board, or an employee who is duly authorised to do so to assign a person to report on a matter for the consideration of the Board. It is appropriate that opposition papers should indicate in a precise way whether the assignment was made by the Board itself, or an authorised employee. The challenge to the validity of the July Memorandum in the pleadings was limited to the timing of its making. As no issue had been raised as to who had assigned the Senior Planning Inspector to make a report, and no application was made to amend the Statement of Grounds to add such a challenge to the validity of the July Memorandum, I am not satisfied that the infelicity in language, or error, if that is what it is, is material to the issues to be determined.

49.It is submitted on behalf of the Board, and I agree, that it is entirely appropriate that when mistakes are made on affidavit that they are corrected by public authorities. That is true regardless of who the deponent or litigant is. The correction of an error in the evidence given by a party is not only consistent with the duty of candour, but necessary to ensure that the court and any opposing parties are not misled by such an error. An affidavit should be entirely accurate when sworn, and regardless of how many drafts there have been, a deponent is required to be satisfied of the accuracy of their averments when swearing or affirming the affidavit.

50.I do not consider that the errors made by Mr. Baneham in his evidence are of sufficient seriousness to undermine his credibility generally. The Applicant did not make an application to cross-examine him, whether in relation to the matters he corrected in subsequent affidavits or otherwise. The fact that mistakes were made is not a basis for claims to be made in respect of other matters in relation to the proceedings without evidence, direct or inferential, to support such claims.

51.Insofar as the complaints made relate to the issues which are required to be determined in order to resolve the proceedings, they are considered below. In particular, the inference which the Applicant sought to draw that the July Memorandum had been completed prior to the remittal and was dated after the remittal order had been made is considered below.

CORE GROUND 5

The Board erred in law in failing to have any memorandum prepared and/or the Board erred in law in relying on a report prepared before the application was remitted to the Board and accordingly had no basis upon which to rely on the report referred to on the face of the Board’s Decision.

52.The case as pleaded, and as advanced in the Applicant’s first written submissions, was that the application for leave to appeal was not remitted to the Board until 31st July 2024, being the date of the perfection of the Order of Holland J. made on 29th July 2024. On 29th July 2024, Holland J. also quashed the previous decision of the Board refusing the application for leave on 9th January 2024.

53.In the Applicant’s replying submissions, and at the hearing, it was accepted that the date of the remittal to the Board was 29th July 2024, as the Order of remittal took effect on the date on which it was made by Holland J.. The Applicant now contends that the Board was functus officio between the refusal of the application for leave to appeal on 9th January 2024 and 29th July 2024.

54.The second Memorandum was signed and dated 31st July 2024 in biro, as the Applicant states at para. 58 of the Statement of Grounds. It is also pleaded that “As of 31 July 2024, there was already in being a typed document entitled memorandum prepared by Inspector Fitzpatrick but this memorandum could only have been prepared before the application was remitted to the Board.” It is asserted:

“The memorandum contains no reference number and deals with issues in circumstances before the application was remitted and can only have been part of the previous consideration which was the subject matter of the decision to quash which was made after the said report was prepared although the said report is dated in Biro on 31 July 2024.”

55.The Applicant contends that the Inspector was directed to prepare this Memorandum prior to the remittal and submits that, as a result, the Board was not entitled to rely on it. The Applicant invites the court to draw an adverse inference from the fact that the report was dated in biro on 31st July 2024 and to find that the report had been prepared before the application was remitted back to the Board. At para. 59, the Statement of Grounds states:

“The memorandum and/or report must have been prepared before the date as the remittal was made on 31 July 2024 and the file subsequently allocated a new cover and record number on that date. It could not then have been remitted to the Inspector who prepared a memorandum on the same date.”

56.It is no longer in dispute that the remittal took effect on 29th July. I am also satisfied that the Board did not allocate a new record number or add a new file cover until after 31st July 2024. However, putting a new file cover on the file and allocating a new file reference number are internal administrative matters. Neither of these steps were required to enable the Board resume considering the application. The jurisdiction of the Board was revived by the Order of 29th July 2024 quashing its decision of 9th January 2024 and remitting the application for determination. Once the Orders were made on 29th July 2024, there was an extant application for leave to appeal to the Board, which it was required to determine in accordance with law.

57.The Applicant has exhibited the file cover which was added over the earlier file covers. As he notes, the new file cover does not include any reference to Ms. Fitzpatrick and the first date on which it is stated that the file was taken or moved is 20th August 2024, on which date it was given to Mr. Logan, who ultimately signed the Board’s decision. However, that fact is not inconsistent with the evidence of the Board. Mr. Baneham avers, and it has not been disputed, that the names on the file cover record file movements within the internal post system, and that files are often moved in an informal fashion without the use of the internal post system.

58.At paragraph 61 of the Statement of Grounds, it is pleaded that the Memorandum had regard to certain materials and documents which were not on the file and were not before the Board made its decision. As a result, the Applicant contends the Board’s Decision is null and void. The Statement of Grounds does not identify any documents or materials which are alleged to have been considered by the Inspector and are alleged not to have been before the Board. In his grounding affidavit, the Applicant refers to the Environmental Impact Assessment Screening Report, the Construction Environmental Management Plan and the Resource and Waste Management Plan, which he avers were not included on the Board’s file. As appears from the affidavit sworn by Kevin Baneham on 9th January 2025, those documents were submitted by the Notice Party as part of its application for permission. He has also averred that a complete copy of the planning authority documents (which includes these documents) was on the relevant Board file. As appears from the documents exhibited by him, each of the documents were stamped and received by the Board on 8th March 2023. The file cover refers to Bankers Box 928956. No application was made to cross-examine Mr. Baneham. The Board was required to consider the development the subject of the application to determine whether it differed materially from that which was the subject of the Council’s decision to grant permission. It must be presumed that the Board did consider material which it was obliged to consider, particularly as the Board Direction and Order recite that the Board had regard to “the documentation accompanying the application.” That presumption may be rebutted by evidence, direct or inferential as is clear from GK v. Minister for Justice [2001] IESC 205; [2002] 2 IR

418 Having regard to the averments of the Applicant and on behalf of the Board, and the statements in the Board Direction and Order, I not am satisfied that the Applicant has established that the Board’s decision is invalid by reason of the Inspector having considered documents which were not before the Board when it made its decision.

59.As an alternative proposition, the Applicant maintains that the Board failed to consider the conflicting Memoranda of the two inspectors (in fact, one was an Executive Officer and the other a Senior Planning Inspector). The authors of both Memoranda are described as inspectors in the Statement of Grounds, but the March Memorandum is signed by Ms. Hickey, who is described as an EO and addressed to Ms. Byrne, SEO. Nowhere in the documents held by the Board was Ms. Hickey described as an inspector, and the undisputed evidence is that she is not an Inspector. This issue is considered below under Core Ground 1.

60.It was submitted by the Applicant that the July Memorandum was not obtained in a manner which was compliant with section 146 of the 2000 Act for two reasons; by reason of the Director of Legal Services having decided that an Inspector’s Report would be appropriate, and the date on which the Memorandum was sought. The Applicant also argued that the Board failed to comply with its obligations under section 112 of the 2000 Act. It is conceded that the Statement of Grounds did not include grounds relating to the alleged breach of sections 146 and 112 and the Applicant has not applied for liberty to amend the Statement of Grounds. Therefore this issue is not before the Court. As the Court does not have jurisdiction to determine grounds in respect of which the Applicant has not been granted leave to seek relief by way of judicial review, the views expressed in relation to any issue on which to seek judicial review was not granted is necessarily obiter.

61.Section 146 provides:

“(1) The Board or an employee of the Board duly authorised by the Board may in connection with the performance of any of the Board’s functions under this Act, assign a person to report on any matter on behalf of the Board.

(2) A person assigned in accordance with subsection (1) shall make a written report on the matter to the Board, which shall include a recommendation, and the Board shall consider the report and recommendation before determining the matter.

…”

62.It is not necessary to decide whether the power to assign a person to report on any matter to the Board is limited to adjudicative matters as the Applicant submits. No question arises as to whether the July Memorandum relates to the exercise of an adjudicative function by the Board. The Memorandum related to the application for leave to appeal to the Board, which required adjudication by the Board.

63.Although it was pleaded at para. 55 of the Statement of Grounds that the remittal occurred on 31st July 2024, and it has now been accepted that the Order of remittal took effect on 29 th July 2024, I am satisfied that the contention that there was no jurisdiction to direct the Inspector to prepare a report until it had been remitted to the Board is acceptably clear from the Statement of Grounds. However, the grounds on which leave was granted do not encompass a challenge to the Board’s decision on the basis of a failure to comply with section 146 of the 2000 Act.

64.As conceded by the Applicant, the argument that the Inspector was directed to prepare a report by a person other than the Board or a person authorised by the Board was not pleaded. It was submitted that that was not possible as it only became clear from the third affidavit sworn by Mr. Baneham on 21st February 2025 that he considered that an Inspector’s Report should be obtained and that he had brought the file to the Director of Planning who directed Ms. Fitzpatrick to prepare the July Memorandum. No application was made for an amendment. Therefore, it is not open to the Applicant to argue that the July Memorandum is invalid due to the involvement of Mr. Baneham in the assignment of the file to the Senior Planning Inspector.

65.Either the Board or an employee of the Board who is duly authorised by the Board has the power to assign a person to prepare a report under section 146. It is clear from the evidence filed on behalf of the Board, which has not been challenged by cross-examination or otherwise, that Mr. Baneham “decided that it would be appropriate for an Inspector to be appointed to consider the application and to provide a report to the Board” and that he “physically brought the hard copy file from the Legal Affairs Section to Ms. Ciara Kellett, Director of Planning for the purposes of Ms. Kellett assigning an Inspector to prepare a report in relation to the application for leave to appeal. Ms. Kellett is duly authorised to assign inspectors for the purposes of preparing reports for the Board.”. He continued by stating that he had been informed by Ms Kellett that she then assigned the file to Pauline Fitzpatrick, Senior Planning Inspector and, by Ms. Fitzpatrick, that she received the file on 11th July 2024.

66.Subject to determining whether the July Memorandum is invalid by reason of the date on which it was requested and/or completed, I am satisfied that both it and the March Memorandum are reports under section 146. The Board has accepted that the March Memorandum is a report under section 146. It follows that the Board was required to have regard to that report under section 146(2) and no submission has been made to the contrary, although the Board lays emphasis on the fact that it was authored by an Executive Officer and not a Planning Inspector. The fact they are described as memoranda rather than reports is not significant.

67.At para. 56 of the Statement of Grounds, it is pleaded that the Board’s file does not include a written referral or decision by the Board to obtain report following the remittal of the application back to the respondent on 31st of July 2024. I do not consider it to be acceptably clear from the statement of grounds that the Applicant sought to impugn the decision of the Board on the ground that a formal direction or other written record of the decision to assign a person to report on any matter was required by section 146. Section 146 does not expressly require writing.

68.The uncontradicted evidence before the Court is that the Director of Planning assigned Ms. Fitzpatrick to report on the application under section 37(6) and that she was authorised by the Board to make such an assignment. Section 146 requires a report under section 146 to be in writing, but section is silent as to how the assignment may be made.

69.I reject the argument made by the Applicant, in submissions, that the absence of a written direction or record of the assignment invalidates the report and the decision of the Board.

70.The Applicant pleaded that the July Memorandum was already in being as of 31st July 2024 and that this could only have been prepared before the application was remitted to the Board. As already noted, the Applicant now accepts that the application was remitted to the Board on 29th July 2024 not on 31st July 2024 when the Order was perfected.

71.In the third affidavit of Kevin Baneham sworn the 21st February 2025, he states that he had brought the file to the Director of Planning after the concession of the case by the Board (5th July 2024) but prior to 29th July 2024. He also states that the Director of Planning had given the file to the Senior Planning Inspector prior to 29th July 2024. There is no evidence before the Court as to the date on which the Senior Planning Inspector was assigned under section 146, nor as to the date on which she commenced analysing the file or preparing the Memorandum.

72. Undoubtedly the Inspector was assigned to prepare a report prior to the making of the Order remitting the appeal to the Board on 29th July 2024, having regard to the evidence of Mr. Baneham, in particular the averment that Ms. Fitzpatrick informed him that she received the file on 11th July 2024. No explanation has been given as to why no specific evidence has been put before the Court in respect of the date on which Ms. Fitzpatrick was assigned by the Planning Director to report on the application to the Board. However, it is reasonable to infer that that was the reason the Director of Planning gave the file to the Senior Inspector, who prepared the July Memorandum, on 11th July 2024. Counsel for the Board submitted that the file had been assigned or allocated to the Inspector on 11th July 2024. That submission is consistent with the evidence. There is no evidence from which it could reasonably be inferred that she was assigned prior to that date. Therefore, I do accept that the assignment was made after the Board had decided, and conceded in correspondence, that its previous decision was invalid, but before the Court had quashed that decision and remitted the application to the Board.

73.Under section 146, an assignment to prepare a report can only be made “in connection with the performance of any of the Board’s functions under this Act”. The Board refers to Section 22(1) of the Interpretation Act 2005 which provides that "A power confirmed by an enactment may be exercised from time to time as occasion requires." I do not consider that the effect of section 22(1), which must be read with section 4 of that Act, is to enable the Board exercise powers under the Act unless there is an application or appeal before the Board.

74.As a creature of statute, the Board may only exercise the powers conferred on it by the Oireachtas. Undoubtedly, it has the power to defend legal proceedings which are instituted in respect of final decisions made by it. If such decisions are quashed and the application is remitted to the Board, the Board regains jurisdiction to make the decision which has been quashed. The Board submitted that it was abundantly clear that the application would be remitted to the Board as a consequence of the concession that its decision was invalid. It was virtually inconceivable that the application would not be remitted to the Board if an order of certiorari were made as otherwise the Applicant would be deprived of the benefit which he sought to achieve by instituting those proceedings.

75.Once the Board acknowledged that the decision of 9th January 2024 was invalid, it was reasonable for it to believe that the Order would be quashed, and the application remitted. However, as the Supreme Court has confirmed in Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4, an order of certiorari cannot be made on consent, but the Court must be satisfied that it is appropriate to grant it. The agreement of the parties that they consider it appropriate that an order of certiorari should be made does not have the effect of preventing the Board from being functus officio, or empowering the Board to take steps which have legal effect in relation to the application. That is not to say that a file cannot be read or moved from one department or section to another in preparation for an anticipated remittal.

76.The Applicant submits that the Board, or any authorised employee, did not have the power to make an assignment under section 146 from 9th January 2024 until the application had been remitted to the Board on 29th July 2024. It was submitted on behalf of the Board that the situation when the Board becomes functus officio is more nuanced than the Applicant contends. I have been referred to the dictum of Holland J. in Ballindooley Developments Ltd v. An Bord Pleanála [2025] IEHC 109 para. 43, where he stated "First, there was an argument, ultimately not strongly pressed, that the OPR and the Minister are functus officio and that this observation should stand in the way of an order. I respond that such a situation is commonplace of judicial review and it does not inhibit a remedy, most obviously for example, the remedy of remittal." In this case, there is no question but that the Board was not functus officio after the orders quashing the decision of 9th January 2024 and remittal order were made on 29th July 2024.

77.The decision which had rendered the Board functus officio had been quashed and no longer had any legal effect. The Board becomes functus officio when it makes a valid decision on the application before it. A decision is presumed to be valid, and therefore the Board must be presumed to be functus officio, unless and until a decision is quashed by way of judicial review.

78.It was argued that, as there were live legal proceedings which were expected to lead to the remittal of the application to the Board, the Board was empowered to take administrative steps which did not have legal effect. On that basis, it was submitted that an Inspector could be assigned, but that a recommendation could not be made until the application had been remitted, nor could the Board make a decision.

79.The recommendation of an Inspector is a more significant step in the process than the assignment of an Inspector to prepare such a report and recommendation. However, the Oireachtas has provided that only the Board or an employee thereof who is authorised to do so, may assign an Inspector, which demonstrates that this is a matter which the Oireachtas considers significant. That power is limited to being exercised “in connection with the performance of any of the Board’s functions under this Act”. I am not persuaded that the power to assign an Inspector to prepare a report existed before the remittal order was made. The consequences of this finding are considered below.

80.The Applicant invites the Court to find the report and recommendation had been completed prior to the remittal of the application to the Board, but that signature was delayed until after the remittal order had been made and perfected. The Applicant relies on Whelan v. AIB plc [2014] IESC 3 in which case O’Donnell J. (as he then was) stated, before setting out the Wisniewski principles:

“91. At the outset I should say that I deprecate the fashion of referring to the "drawing of an inference" in the abstract as if it was an end in itself, akin to the deduction or addition of points which might or might not alter the result of a game. The drawing of an inference in this context, as indeed in any other, is an exercise in logic: when one party asserts a given set of affairs, which the identified witnesses available to the other party could be expected to rebut if untrue, then, if the second party does not call those witnesses to give evidence, the court may draw the inference in support of the case made by the first party, that those witnesses were not called to give such evidence because they would not in fact rebut the case made by the first party. Each case therefore, involves a consideration of the specific inference which the court is invited to draw. The position is well put in two authorities relied on by the bank in this regard. In McQueen v. Great Western Railway Company (1874 - 75) L.R. 10 Q.B. 569 Cockburn L.J. said:

"If a prima facie case is made out, capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence, then the inference fairly arises, as a matter of inference for the jury and not as a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it were adduced it would not disprove the prima facie case. But that always presupposes that a prima facie case has been established; and unless we can see our way clearly to the conclusion that a prima facie has been established, the omission to call witnesses who might have been called on the part of the defendants amounts to nothing." (para. 574)

In Wisniewski v. Central Manchester Health Authority [1998] P.I.Q.R. P 324, Brooke L.J.

set out four applicable principles which were adopted in this jurisdiction in Fyffes:

"(1) In certain circumstances a court may be entitled to draw inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to drawn the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reasons for the witness's absence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified." (p. 340)”

81.The Applicant also relies on Crofter Properties Limited v. Genport Limited [2002] IEHC 26; [2002] 4 IR 73 in which case McCracken J. accepted the following statement of the House of Lords in R v. IRC, ex parte TC Coombs & Co. [1991] 2 AC 283, 300:

“In our legal system generally, the silence of one party in the face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”

82.Silence on a point for which it would have been possible to provide evidence may benefit the opposing party, but this is so only where that party has provided some evidence. The complaint made by the Applicant was that the July Memorandum had been completed in advance of the remittal. There is evidence to rebut that assertion, which has not sought to be tested by crossexamination.

83.The July Memorandum is headed “Application for leave to appeal…. (previously ABP 318631- 23)”. As appears from para. 10 of the Statement of Opposition and para 6(i) of the verifying (first) affidavit of Kevin Baneham, ABP 318631-23 was the reference given to the application after the first remittal i.e. after the decision of 24th March 2023 had been quashed. That reference number applied to the decision of 9th January 2024, which was quashed by Holland J. on 29th July 2024. I infer therefrom that the Memorandum was commenced prior to the allocation of the third reference number, ABP-320351-24. The unchallenged evidence is that the third reference number was assigned on 2nd August 2024. The fact that the title of the July Memorandum referred to the previous reference number is consistent with the evidence of the Board and does not give rise to an inference that the Memorandum was prepared before remittal order had been made.

84.The fact that the Statement of Opposition and affidavits filed on behalf of the Board refer to the Memorandum of 31st July 2024 as having been prepared, and to have been signed and dated 31st July 2024, rather that explicitly stating when the Inspector started working on the file or that Memorandum was completed on the date on which it was signed, is insufficient to persuade me, even in combination with the use of the earlier reference number, that the Inspector had completed the report or made her recommendation prior to the remittal of the application to the Board. It is pleaded at para. 62 of the Statement of Opposition and verified by Mr. Baneham that “The plea at §62 is based on a false premise as (i) contrary to what the Applicant asserts, the 12-page Memorandum was not prepared before the application was remitted to the Board.” The Board must be presumed to act in a lawful manner. I also consider that it must be presumed not to draft pleadings and have affidavits sworn in a misleading manner. No application was made to cross-examine Mr. Baneham.

85.The Applicant has provided no evidence on which he relies to prove that the Inspector’s report or recommendation had been made prior to the Order remitting the application to the Board nor has he provided any evidence to indicate that the Memorandum was signed or dated after the day on which it was competed. The fact that it was signed and dated in biro is not material having regard to the totality of the evidence before the Court. There was not a case to answer on the allegation that the report was prepared in advance of the remittal order such that an inference can be drawn from the Board not having explicitly provided the date on which the report and recommendation were completed. Insofar as that allegation was advanced by the Applicant, prior to the making of submissions, the Applicant relied on 31st July 2024 as the date on which the remittal occurred. It was accepted at the hearing that the application was remitted on 29 th July 2024.

86.I find that the report and recommendation to the Board was made by the Inspector on 31st July 2024, which is after the application had been remitted to the Board. Whilst it is unclear whether or not the Inspector had commenced working on the file or her report when the Order of 29th July 2024 was made, I am satisfied that the argument that the Board relied on a Memorandum which had been prepared before the application was remitted to the Board must fail. Similarly, the assertion that the Memorandum could only have been part of the previous consideration of the application, which had been quashed by Order of 29th July 2024 must also fail.

87.The Applicant submits that the Board had no jurisdiction to consider a report or Memorandum prepared by a person who was assigned to prepare a report prior to the date of the remittal, regardless of the date of the completion of that report, as that report is a legal nullity. I have rejected the contention that the July Memorandum was made or prepared before 31st July 2024, although it is probable that the Inspector had commenced working on the file prior to that date.

88.Even if the Applicant is correct in this submission that the Board had no jurisdiction to consider a report which had been commenced prior to the remittal order being made, I am satisfied that it would be disproportionate to quash the Board’s decision solely by reason of the date on which the Inspector was assigned to make a report and recommendation under section

146 in all the circumstances. The assignment was made by an employee who was duly authorised to make such assignments. The report was completed and the recommendation made at a time when the Board had jurisdiction to consider the application. Although the Board was functus officio on 11th July 2024, it was abundantly clear to the parties that if the decision of 9th January 2024 was quashed by the High Court, the Board having conceded that it was appropriate to do so, the application would be remitted to the Board. Whilst it was open to the Notice Party in those proceedings to have opposed the grant of relief, it did not do so. The Order of Holland J. recites that agreement had been reached.

89.An application for leave to appeal was made by the Applicant on 28th March 2023. As the two decisions of the Board on that application had been quashed, there remained an extant application before the Board, which the Board was required to determine. The fact that the Board chose to give the remitted appeal a new ABP reference number after each remittal does not alter the fact that there was a single application before the Board. It is not a new application.

90.No unfairness or prejudice was created by the assignment of the Inspector in anticipation of the remittal of the application. The substance of the Memorandum and the Board’s reliance thereon are challenged on grounds which are entirely unrelated to the timing of the assignment of the Inspector. They are considered below. I have found that the application for judicial review cannot succeed on those grounds.

91.The decision to grant permission was appealed by An Taisce to the Board on 28th February 2023. The Applicant had the opportunity to make observations on that appeal and he has done so. That appeal has not been determined. The delay in determining that appeal has been caused by the need for the Board to determine the Applicant’s application for leave to appeal and in particular the fact that two decisions of the Board in respect of that application have been quashed by the High Court. That is a factor outside the control of both the Applicant and Notice Party. The Notice Party, who made its application for planning permission on 29th November 2022, has not contributed in any way to the failure of the Applicant to make submissions or observations on the application to the planning authority, nor to the invalidity of the two previous decisions of the Board.

92.As an observer, rather than an appellant, the Applicant is in a more precarious position in relation to the appeal; there is nothing he can do if An Taisce opts to withdraw its appeal. However, there is no evidence from which it could be inferred that this is likely. In all other respects the Applicant had the same entitlement to make observations to the Board which were not limited in terms of scope or subject matter. The Applicant has averred that the appeal which he would make “would be not dissimilar to the observation which is already before the Board”. He maintains that the two appeals could be determined together.

93.The complaints made by the Applicant as to the impact of the proposed development on his lands relate exclusively, or almost exclusively, to the development itself and not any variations to the development required by the conditions. The Oireachtas has limited the right of a person with an interest in adjoining land who did not take part in the process before the planning authority to appeal to cases in which the enjoyment or value of adjoining land is materially affected by the difference in the proposed development brought about by the imposition of conditions. There is no other exception from the rule that only an applicant for permission or person who made submissions or observations in writing in relation to the application, in accordance with the Regulations, may appeal to the Board. The ability to make submissions on an appeal is not limited in a comparable fashion. As I reject the substance of the Applicant’s challenge to the Board’s decision, I am satisfied that quashing the Board’s decision solely on the ground that the Inspector was assigned to prepare a report, and (presumably) that she commenced working on that report before the orders were made on 29th July 2024 would be disproportionate. Therefore, I consider that it would be appropriate to exercise the Court’s discretion to refuse rather than grant certiorari on that sole ground.

CORE GROUNDS 1 and 6:

CG1: The Board erred in law and in fact in respect of its decision to refuse the Applicant leave to appeal against the decision of the Council in circumstances where the Board failed to consider and/or adequately consider the Memorandum Report prepared and dated 21 March 2023 in respect of the Applicant's Application for Leave to Appeal against the

decision of the Council which was before the Board when it made its Decision of 21 August 2024.

CG6: The Board failed to consider and/or appreciate the fact its own memorandum of 31st July 2024 failed to reference and/or consider the memorandum of 21st March 2023 which was before the Board. The Board failed to contrast the memorandum of 21st March

2023 from the memorandum of 31st July 2024 in circumstances where the memorandum of 31st July 2024 differed materially in its findings to the 21st March 2023 memorandum and accordingly the decision of the Board is ultra vires, void and invalid.

94.The March Memorandum was not referred to in either the July Memorandum nor in the Board Order or Direction, whether expressly or inferentially.

95.The Notice Party submits that the only memorandum which was prepared in respect of the

decision under challenge in the proceedings was the July Memorandum. The Board accepts that the March Memorandum was before it. The Orders of Hyland and Holland JJ. quashing the previous decisions of the Board on the Applicant’s application for leave to appeal did not require that Memorandum to be removed from the Board’s file. The March Memorandum was prepared in respect of the Applicant’s application for leave to appeal against the decision of Monaghan County Council (planning reference 22/497). Whilst the Board had chosen to give the application a new reference number upon the quashing of earlier decisions on that application and remittal, a single application was before the Board.

96. It is necessary to consider exactly what was stated in the March Memorandum to determine whether the absence of a specific reference to it in the July Memorandum and/or Board Direction and Order is indicative of a failure on the part of the Board to consider that Memorandum. This is also necessary to determine the extent to which, if at all, the Board was required to contrast the March and July Memoranda.

97. Having identified the application which was made, and deeming it valid, the March Memorandum states:

“By virtue of section 37(6) of the Act, the Board may, within 4 weeks from receipt of the application, grant the applicant leave to appeal, where the applicant shows that:

(i) the development for which permission has been granted will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject and (ii) that the imposition of such conditions will materially affect the applicant's enjoyment of the property or reduce the value of the land.

Grounds The applicant for leave to appeal has indicated that they are adjoining landowners of the entirety of the waters in Dromore Lough which waters and land immediately adjoins this proposed development. They they did not make a submission to the planning authority. Mr Morehart explains that the proposed development would impact the enjoyment of their land and may reduce the value of their property.

As the provision of condition number 4 have has been left to be addressed by way of post

decision agreement and have not been subject to assessment by the Planning Authority or the public, including Mr Morehart, the condition has changed the nature of the development from that which was submitted to the planning authority to the extent that a real and likely threat to pollution has been identified by the planning authority but this threat has was not assessed and is addressed by the multi element condition that has been imposed "in the interest of ..environmental protection" and indicated that incidents of pollution need to be considered further and agreed with the planning authority.

The appellant claims condition 4 directly relates to and will negatively affect the private water body owned by Mr Morehart by the collection / storage .and disposal of hazardous waste and material, would have the likelihood of significant pollution and contamination of his waters and lands.

Comments

Having reviewed the application for Leave to Appeal, it would appear that the applicant has provided sufficient evidence to show he is the land owner of the waters and land adjoining the proposed development. This application differs materially from what was applied for from the conditions granted by the council.

However, it should be noted that there is a live appeal against the proposed development under case reference ABP-315932-22. Applicant for leave to appeal has been informed that there is an appeal for this development.

Therefore, I consider that the applicant for leave to appeal does appear to have satisfied the requirements of section 37(6)(d)(i)(ii) of the Planning and Development Act, 2000 (as amended).

Recommendation

I recommend that the file is forwarded to the Board to decide whether to grant or refuse leave to appeal.

This case is due to be decided by 21st March 2023.”

98.The Board submits that the Applicant mistakenly attributes certain aspects of the March Memorandum to being the views of the Executive Officer who wrote that Memorandum whereas the Memorandum includes a summary, or recitation, of the Applicant’s own submissions on the application for leave to appeal. Under the heading Grounds, the Memorandum includes an extract from the submission made on behalf of the Applicant. The following, which refers to Condition 4, appears verbatim in the Memorandum and Applicant’s submission to the Board:

“been left to be addressed by way of post decision agreement and have not been subject to assessment by the Planning Authority or the public, including Mr Morehart, the condition has changed the nature of the development from that which was submitted to the planning authority to the extent that a real and likely threat to pollution has been identified by the planning authority but this threat was not assessed and is addressed by the multi element condition that has been imposed "in the interest of ..environmental protection" and indicated that incidents of pollution need to be considered further and agreed with the planning authority.”

99.The Applicant relies on the contents of the Memorandum under the heading Grounds as indicating the conclusions of the author thereof. I note that the author was an Executive Officer, who reported to a Higher Executive Officer, and not a planning inspector or senior planning inspector. Ms. Byrne, HEO, added “Ms. Hickey, Please forward file to Drafting Section for allocation to Board.”

100.The March Memorandum contained a bare conclusion, without any supporting analysis. It does not demonstrate how it reached the conclusions that “This application differs materially from what was applied for from the conditions granted by the council.” or “Therefore I consider that the applicant for leave to appeal does appear to have satisfied the requirements of section 37(6)(d)(i) (ii) of the Planning and Development Act, 2000 (as amended).” The Memorandum does not address any impact on the Applicant’s land, save to note under the heading Grounds, that “Mr Morehart explains that the proposed development would impact the enjoyment of their land and may reduce the value of their property.” There is no finding, or even recitation of a submission by the Applicant, to the effect that by reason of the conditions imposed the development would materially affect the Applicant’s enjoyment of his lands or reduce the value thereof. No reference is made to that part of the test under the headings Comments or Recommendation.

101.It is significant that, insofar as the March Memorandum contains a recommendation, the recommendation was neither to grant or refuse the application, as the Applicant has submitted, but rather it recommends that the Board should decide whether to grant or refuse the application. The note of the Senior Executive Officer simply added “Please forward file to Drafting Section for allocation to Board.” Accordingly, it is clear that the Memorandum included neither a reasoned assessment or consideration of the application under section 37(6), nor did it recommend how the Board should determine the application.

102.As pleaded by the Board, the Memorandum includes the author’s summary of the Applicant’s submissions on the application for leave to appeal much of which is repeated verbatim from the submission made on behalf of the Applicant. If the author agreed with those submissions, the basis on which she did so was not explained in the Memorandum.

103.As the Applicant pleads, there is no record of the March Memorandum having been considered by the Board in making the Order of 21st August 2024. The record of the Board meeting held on 19th August 2024 casts no light on the question whether the March Memorandum was considered. The Board Order states that the Board “had regard to the submission and documents received with the application for leave to appeal, the conditions set out in the planning authority’s decision and to the documentation accompanying the planning application.” The Board Direction is expressed in similar terms. It also evident from these documents that the Board considered “the report of the Inspector”, which clearly refers to the July Memorandum. The March Memorandum is not referenced in the July Memorandum, the Board Direction or the Board Order.

104.The Statement of Opposition pleads that the March Memorandum was on the Board’s file when the application was determined, and this is accepted by the Applicant. The Statement of Opposition does not include that Memorandum in the list of documents considered by the Board, which list appears in the Board Direction and Order. The Applicant accepts that that Memorandum was on the Board’s file when the application was determined.

105.The Board was obliged to consider any report and recommendation made in connection with the application for leave to appeal under section 146(1) in determining that application: section 146(2). This included the March Memorandum as the Orders remitting the application to the Board did not require that Memorandum to be removed from the file, and it remained on the file. As the sole recommendation made therein was that the file should be forwarded to the Board so that the Board would make a decision whether to grant or refuse the application, I am satisfied that the Board was not required to expressly consider the recommendation made. If I am incorrect in this, I note that the Board did in fact go on to decide whether to grant or refuse the application for leave to appeal. If it failed to advert to the recommendation, such failure had no impact on the decision-making process and is immaterial as the Board acted in accordance with the recommendation made in the March Memorandum.

106.Whilst it is submitted that the scheme of the 2000 Act provided for reasons to be given when the decision of the Board differs from the Inspector’s recommendation, the Applicant has not pointed to any provision in the Act other than section 34(10)(a) and (b).The obligation to provide reasons where the Board differs from an inspector’s recommendation to grant or refuse permission under section 34(10)(b) does not apply. Not only did the March Memorandum not include a recommendation to grant or refuse the application for leave to appeal, the obligation in section 34(10)(b) arises only in respect of a recommendation to grant or refuse permission of a person assigned to report on an appeal. The application before the Board was not an appeal in respect an application for permission. Section 34(10)(a) required the Board to state the main reasons and considerations for its decision.

107.The Applicant contends that the Board’s decision is invalid as the Board failed to consider and/or appreciate that the July Memorandum did not reference or consider the March Memorandum in circumstances where the two Memoranda differed materially in their findings and that the Board failed to reconcile or resolve the differences between the two Memoranda.

108.The Applicant complains that there was no meaningful engagement with the March Memorandum. He also submits that an enhanced duty of meaningful engagement was required as the Board did not follow the recommendation of the author of that Memorandum, relying on the judgment of Bradley J. in Konisberry v An Bord Pleanála [2024] IEHC 194.

109.No authority was relied upon by the Applicant to support the contention that the Board was required to refer to the March Memorandum. Where a document is not referred to and issues of substance which are raised in that document are not included in the reasons or considerations of the Board, the court may draw an inference that the document was not considered. This is so even where such a document was referred to explicitly in the decision: GK v. Minister for Justice [2002] 2 IR 418; [2002] 1 ILRM 401. However, if a document is not referred to explicitly, but the decision demonstrates that the substance of that document was considered, that is sufficient. In Eco Advocacy v. An Bord Pleanála [2025] IEHC 15, Humphreys J. rejected the argument that the Board had failed to consider the flight of the Hen Harrier, stating “The applicant confuses lack of narrative discussion with lack of consideration. The latter has not been proved and does not follow from the former.”

110.The onus of demonstrating that the March Memorandum was not considered rests on the Applicant. The absence of an express reference to a document is not sufficient to demonstrate, in every case, that it was not considered. In certain cases, a particular document will be of such significance that the decision-maker must be seen to have considered it: T.G. v. Minister for Justice [2007] IEHC 377. Birmingham J. endorsed the view of Feeney J. in Banzuzi v. Minister for Justice [2007] IEHC 2, in which case he found that there is no obligation on a decision maker to refer to every aspect of evidence or to identify all the documents within its written

decision - a proposition which received the endorsement of Dunne J. in A.W.S. v. Refugee Appeals Tribunal [2008] IEHC 276.

111.Insofar as it might be open to the Court to find that the Board had failed to consider the March Memorandum because it was not referred to expressly and its contents were not interrogated, sight must not be lost of the fact that the Memorandum was comprised almost solely of the elements of the test to be applied under section 37(6), a summary or recitation of the Applicant’s application, and the recommendation that the Board should decide whether to grant or refuse that application. Having regard to the contents of the March Memorandum, I do not consider it was necessary for the Board to expressly recite that it had been considered. The Board’s reasons and considerations adequately addressed the contents of that Memorandum.

112.The Applicant does not contend that the Board misinterpreted the test for leave to appeal under section 37(6), but contends that the test was misapplied.

113.The purpose of the duty to give reasons or to engage meaningfully with submissions made is to enable a party know why the decision maker reached the decision it made. The extent of the obligation to state the reasons and considerations for a decision varies depending on the nature of the application being considered. As Bradley J. held in Konisberry v. An Bord Pleanála [2024] IEHC 194, in general terms, there is a spectrum between “a discursive analysis (which is not required); [and] a formulaic tick-box exercise (which is insufficient).” Having reviewed the authorities including Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 IR 752, [2018] 2 ILRM 453, he concluded that the responsibility of the Board is ‘meaningful engagement’.

114.There is an enhanced duty to give reasons where the Board disagrees with its inspector: Flannery & Ors v. An Bord Pleanála [2022] IEHC 83 (para. 155); Clonres CLG v An Bord Pleanála [2021] IEHC 303. In Clonres, which was considered in Konisberry, Humphreys J. identified two main reasons for the enhanced duty to give reasons when rejecting the inspector’s analysis. Humphreys J. stated that while section 34(10)(b) did not apply in that case, “Nonetheless, there is an independent administrative law requirement to give reasons which is enhanced where one is rejecting the inspector's analysis. That is essentially for two reasons: if the Board isn't accepting the inspector's reasons it has to come up with reasons of its own; and secondly, it has to engage with the inspector's rationale.”

115.The decision of the Board, which accepted the reasoning of the July Memorandum, contains its own reasons. As stated above, I am satisfied that the Board engaged with the substance of the statements, or such rationale as was contained in the March Memorandum. The March Memorandum contained nothing additional to the submission made to the Board by the Applicant. Insofar as the first Memorandum can be said to have made conclusions, it did not enlighten the reader as to the way in which the requirements of section 37(6)(d)(i) and (ii) were met. The Board was required to engage with the submission which had been made on behalf of the Applicant.

116.In O’Donnell v. An Bord Pleanála [2023] IEHC 381 Humphreys J. held that it was sufficient for a decision-maker to give the main reasons on the main issues when dealing with conflicting expert reports. He stated “If it is broadly clear why one expert is preferred, then the requirement is satisfied. Here, the board basically accepted that there would be additional traffic but that there would be elements in place to mitigate that. Reasonable people can and no doubt will disagree about that, but the basic broad logic of the decision-maker is acceptably clear.” In the instant case, the Board made it clear why it decided to refuse the application for leave to appeal which had been made by Mr. Bonnar on behalf of the Applicant and why it accepted the recommendation of the Senior Inspector in the July Memorandum. Whilst the Board has put evidence before the Court to clarify, if that is needed, that the author of the March Memorandum was an administrative official of the Board who is not a planning inspector, that is not given as a reason for the Board agreeing with the reasoning of the July Memorandum.

117.For the reasons set out above, the March Memorandum cannot be regarded as having made a recommendation whether to grant or refuse the application under section 37(6), nor does it include any reasoned findings which the Board was required to engage with. If I am wrong in finding that the March Memorandum did not include the rationale for the findings and conclusions made, I am satisfied that the reasoning of the Board as set out in the Board Direction and Order when read together with the July Memorandum is sufficient to explain why the Board agreed in general terms with the July Memorandum and did not accept the conclusions in the March Memorandum. Insofar as the March Memorandum includes a conclusion that the Applicant had satisfied the requirements of section 37(6)(d), the Board disagreed and explained why. The decision of the Board is not invalid by reason of the absence of a statement to the effect that the Board disagreed with the findings (if such were made) in the March Memorandum. There was no material conflict in reasoning between the two Memoranda, which required resolution by the Board. The Board could not have engaged any further with the contents of the first Memorandum. I make no criticism of the author of the first Memorandum, who was an Executive Officer, rather than a Planning Inspector. Her recommendation was to the effect that the application for leave was in order and should be put before the Board so that the Board would make a decision whether to grant or refuse that application. There is no obligation to state reasons for what is obvious: Killegland Estates v. Meath County Council [2022] IEHC 393, from which the Supreme Court dismissed an appeal, [2023] IESC 39 (para. 83). It was not necessary to state something to the effect of Therefore the Board follows the recommendation of the Inspector in the Memorandum dated 31st July 2024 rather than the

conclusion stated in the Memorandum of 21st March 2023.

118.The Board clearly accepted the conclusion and reasoning of the Inspector, and rejected the contentions of the Applicant in the application for leave to appeal. In doing so, the Board’s reason for not following the statements or conclusions in the March Memorandum are sufficiently clear. Whilst it may be preferable that it would have done so, there was no requirement for the July Memorandum to expressly refer to the first Memorandum nor for the Board to refer to the fact that it had not done so. In substance the Board could not do more than explain why it decided that the Applicant did not meet the requirements of section 37(6)(d) as the March Memorandum did not contain any findings which the Board was required to consider expressly.

119.The Board disagreed with the contention that the Applicant had met the criteria in section 37(6) and the reasons and considerations for finding that he did not meet the requirements of section 37(6)(d) is clear from the decision as a whole. The reasons given are sufficiently clear to satisfy the Board’s obligations, as explained in the authorities including Connelly v. An Bord Pleanála [2018] IESC 31; [2021] 2 IR 752; [2018] 2 ILRM 453, and to inform the Applicant and any interested party why it reached the decision to refuse leave to appeal. In Mulholland v. An Bord Pleanála [2005] IEHC 306, Kelly J. held, in granting leave, that the Board was required by section 34(10) to give reasons and considerations which are sufficient to give an applicant such information as may be necessary and appropriate to consider whether he has a reasonable chance of succeeding in appealing (if an appeal is open) or judicially reviewing the

decision, to arm himself for such hearing or review and to know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider, and to enable the courts to review the decision.

120.In the absence of reasoning in the March Memorandum, it was not possible for the Board to do anything other than agree with the conclusion expressed therein (if conclusions were in fact drawn) or reach the opposite conclusion. The Board reached the opposite conclusion for the reasons set out in the July Memorandum. There was nothing further which could have been said except to recite the fact that the March Memorandum had reached a contrary conclusion, albeit without explaining its reasoning. That would not have added to reasons or considerations provided by the Board, nor would it have put the Applicant in any better a position to understand the Board’s reasons or to seek to challenge the Board’s decision by way of judicial review. While the Applicant clearly does not agree with the Board’s reasoning, I am satisfied that the Board left no doubt as to why the decision went against the Applicant.

121.The Applicant has only challenged the adequacy of reasons in relation to the two Memoranda, in particular the Board’s decision to accept the recommendation in the July Memorandum rather than the March Memorandum. Insofar as the Applicant has challenged the validity of reasons given, that is considered below.

122.For the reasons set out above, Core Grounds 1 and 6, as particularised, must fail.

CORE GROUNDS 2 and 3

CG2: The Board erred in law erred in law in respect of an application made pursuant to section 37(6) of the 2000 Act by looking behind the conditions imposed in the decision to grant, to purport to give reasons different to those specified on the face of the decision are confined to a consideration of the conditions in fact imposed for the test in section 37(6)(d).

CG3: The Board erred in law in the manner in which it applied the provisions of section 37(6)(d) of the 2000 Act and the considerations that were applied to the application of that provision to the Applicant's application for leave to appeal against the decision of the Planning Authority under planning permission reg. ref. 22/497.

123.Applying the test of acceptable clarity, I consider that the grounds raised at CG 2 and CG 3, and particulars thereof, are limited to Condition 4 as attached by Monaghan County Council. The Applicant cannot expand the grounds in legal argument. The Applicant has sought to challenge the findings of the Board in respect of Condition 6 in submissions. As the Board noted, Condition 6 required the developer to contact Irish Water regarding the provision of water and sewerage services necessary for the proposed development and to confirm acceptability of the proposed development with regard to source/network infrastructure. No works are required by Condition 6, nor does it involve a change of use.

124.The Board shall grant leave to appeal under section 37(6) if the Applicant shows that “the development in respect of which a decision to grant permission has been made will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject”, but it may not do so otherwise. It was accepted by the Applicant, in response to the submission made by the Notice Party, that the onus is on the Applicant to demonstrate to the satisfaction of the Board that there was a material difference in the development authorised by the decision to grant by reason of the conditions attached thereto. There is no onus on Board to consider any conditions which are not relied upon by an applicant for leave to appeal in the application under section 37(6).

125.Condition 4 as imposed by the Monaghan County Council in respect of application 22/497 provides:

“4. a. Prior to commencement of development, developer shall submit to the Planning Authority for agreement in writing the following:

i An Asbestos Survey and Removal Plan for the proposed development works.

ii A Soil Excavation and Hazardous/Contaminated Waste Soil Management Plan. This plan shall include the following:

• Analysis completed on representative soil samples taken from the site to determine waste classification, associated tonnages, LoW codes, authorised waste collectors contracted for waste soil removal along with the names, addresses and waste license/waste permit numbers for final waste disposal/ recovery facilities.

• How excavated soil will be stored on site, location of storage onsite and mitigation and monitoring measures for the protection of surface waters/groundwaters during the temporary storage and also reinstatement of any clean soil onsite shall be detailed within the report.

• Method statement for the proposed demolition and excavation works.

iii A water protection plan checklist for the proposed development.

iv A contingency/ remedial plan to deal with any incidents or other occurrences which might cause polluting discharge to waters, including the provision of oil booms v A Construction Project Management Plan for the development hereby approved. The Construction Management Plan shall include inter alia construction traffic access arrangements, management of excess materials traffic management and maintenance of the public road.

b. Development shall be carried out in accordance with these details or as otherwise agreed in writing with the Planning Authority.”

Reason: In the interest of orderly development and environmental protection.”

126.The Board must interpret the conditions attached to the decision to grant correctly. The interpretation of the decision of the Council to grant permission, including the conditions which are attached thereto is a matter for the court, applying the XJS principles: re XJS Investments [1986] IR 750; [1987] ILRM 659. As Clarke J. (as he then was) noted in Lanigan v. Barry [2016] 1 IR 656, the principles applicable to the construction of planning permission are well settled, by reference to XJS, which requires the Court “to construe planning documents not as complex legal documents drafted by lawyers but rather in the way in which ordinary and reasonably informed persons might understand them.” (para. 30) In Ballyboden Tidy Towns Group v. An Bord Pleanála [2022] IEHC 7 Holland J. applied the standard of a reasonably intelligent person who is “not merely intelligent but careful”. It is appropriate to have regard to the material before the planning authority, including the Planning and Development Report and Environmental Report prepared by it in respect of the planning application, in interpreting the

decision to grant subject to conditions.

127. It follows from the judgments of Holland J. in Jennings v. An Bord Pleanála [2023] IEHC

14 and of Woulfe J. in Sherwin v. An Bord Pleanála [2024] IESC 13, that the materiality of any difference between the application as made and the development as authorised by reason of conditions imposed is a matter which requires the exercise of planning judgement. This is not in dispute. The assessment of the impact of a particular development on the land of the applicant for leave to appeal is also a matter for which judgement is engaged, but no findings were made by the Board in that regard.

128.The Applicant submits, and I agree, that the Court must treat conditions which have been imposed as valid as they have not been successfully challenged. The presumption of validity applies and has not been rebutted. Subject to the Applicant’s failed application for leave to apply for judicial review in respect of the Council’s decision to grant permission, the validity of the decision of Monaghan County Council has not been challenged. The grounds on which leave was sought are evident from the judgment of Humphreys J. [2024] IEHC 100. Leave to

seek judicial review was refused on the basis of a failure to exhaust alternative remedies. The Notice Party did not appeal the conditions to the Board.

129.Therefore Condition 4 is presumed to be, and must be treated as, valid. However, this does not affect the obligation to interpret the permission in accordance with the XJS principles and in a manner which is consistent with validity rather than invalidity. The condition must be interpreted in the context of the application which was made and the nature of the development which is the subject of the decision to grant.

130.Having reviewed the authorities, in Grafton Group plc v. An Bord Pleanála [2023] IEHC 725, I held that it is not appropriate to parse or over-analyse a Development Plan, or a decision under review. This is also true for a decision to grant of a planning authority, whether it is subject to an appeal or application for leave to appeal to the Board, or the Commission.

131.The Applicant refers in his submissions to the function of the planning authority being to exercise its discretion to grant or withhold permission in a judicial manner and noted that Finlay C.J. held that “the practical consequences of that are that the decision making authority must have regard to all relevant and legitimate factors which are before it and must disregard any irrelevant or illegitimate factor which might be advanced.” P& F Sharpe v. Dublin City and County Manager [1989] IR 701; [1989] ILRM 565. The nature of conditions which may lawfully be imposed by a planning authority is very broad; it includes conditions to ensure that a development is carried out in an orderly manner and one which protects the environment. A condition requiring a construction management plan is not unusual.

132.The Applicant submits that Condition 4 materially alters the development for which the Notice Party sought permission, by requiring a new activity - namely the identification and removal of asbestos and other hazardous and contaminated waste from the entire site. The Applicant submits that this activity is not limited to the parts of the buildings which will be demolished and/or the areas which are proposed to be built on. The Applicant also contends that Condition 4 requires hazardous waste to be excavated, stored and removed from the site in accordance with the level of specificity to be identified in the plan and that full remediation of the site is required thereafter. This submission is advanced on the basis of the wording of Condition 4, in particular the phrase “representative soil samples taken from the site” in condition 4(a)(ii). It is submitted that the very significant new activity which the Applicant contends is required by Condition 4 in respect of the entire site was not heralded in the application documents. Not only is the Applicant correct in submitting that the testing and potential excavation and reinstatement of the entire site was not heralded in the application documents, but such a condition would be very onerous on the Notice Party and would amount to planning gain, unless it was necessary having regard to the risk to the environment created by the development proposed. In the application for leave which was received by the Board, the Applicant did not complain that Condition 4 required testing and potential remedial works over the entire site, but it was contended that the development would materially differ from that applied for by the Notice Party. Both the Notice Party and the Board submit that the Applicant has misinterpreted Condition 4. They submit that no informed intelligent layperson would objectively consider that Condition 4 made a material difference to the development for which the Notice Party sought permission.

133.As was held by the Supreme Court, Hardiman J., in Ashbourne Holdings Ltd. v. An Bord Pleanála & Ors [2003] IESC 18; [2003] 2 IR 114; [2003] 2 ILRM 446 “both the condition and the reason must refer to the development requiring permission”. A condition which gives rise to planning gain is ultra vires the planning authority and cannot be validated by estoppel, acquiescence or consent. Hardiman J. referred to State (FPH S.A.) v. An Bord Pleanála [1987] IR 698; [1989] ILRM 98 in which case a condition which required the preservation of Furry Park House, which was on adjoining lands, which were also controlled by the applicant for permission, was found to be invalid.

134.The Applicant refers to Quinlan v. An Bord Pleanála & Dublin City Council [2009] IEHC 228, in which case Dunne J. cited the judgment of Henchy J. in Killiney & Ballybrack Development Association Limited v. Minister for Local Government [1978] ILRM 78, 80 where he stated “If the reason given cannot fairly and reasonably be held to be capable of justifying the condition, the condition cannot be said to be a valid exercise with the statutory power.”

135.Dunne J. considered the criteria in Ashbourne Holdings and found that the condition imposed in that case was necessary, relevant to the permitted development and reasonable. Dunne J. rejected the argument that the condition had been imposed for an ulterior purpose, which had been found to be impermissible by the House of Lords in Newbury District Council v. Secretary of State for the Environment [1980] 1 All ER 731.

136.The Applicant submits that it must be inferred from Condition 4, as interpreted by him, that the Council had identified a real and likely threat of pollution, which was not addressed in the application documentation. On that basis, he submits, the planning authority considered Condition 4, as interpreted by the Applicant, to be necessary. Although the Applicant exhibited material which was before the planning authority, nothing was identified which demonstrates that the Council identified a real and likely threat of pollution. It was submitted, as appears to be the case, that Condition 4(a)(iv) was added as a response to the submission of the Inland Fisheries dated 13th January 2022.

137.However, it is not evident from the material before the Council that it had identified such a risk of environmental harm. In particular, the Environmental Report dated 16th January 2023, by Ms. Gaffney and Mr. Duffy stated that there was no objection to the grant of planning permission, subject to conditions. Nothing in that report suggests that there a risk of harm due to the existence of hazardous materials on the site, which require amelioration in the manner which the Applicant contends is required by Condition 4. The proposed Conditions 1 - 3 required “Any construction and demolition waste or excess soil generated during the construction phase which cannot be reused on site in accordance with Section 3(1)(c) and Section 39(1) of the Waste Management Act 1996 as amended, [to be] disposed/ recovered at an appropriately permitted facility …” It also recommended that the reports required by Condition 4(a) (i), (ii), (iii) and (iv) be submitted to the Planning Authority one month prior to the commencement of development. Condition 4 requires a Construction Project Management Plan which is required “to include inter alia construction traffic access arrangements, management of excess materials traffic management and maintenance of the public road.” That was not proposed in the Environmental Report. It is also stated that the site operates in compliance with a licence issued under Part IV of the Environmental Protection Agency Act 1992 (as amended by the Protection of the Environment Act, 2003).

138.The Planning and Development Report (which was prepared by an Executive Planner, Monaghan County Council on 30th January 2023 and approved on 1st February 2023) stated:

“the planning authority is of the opinion that the proposed development would not be likely to have significant effects on the environment and that the preparation and submission of an environmental impact assessment report is not therefore required.”

It was also stated that “Risk of major accidents and/or disasters are unlikely given the nature and scale of the proposed development in the location of the site.”

139.The Planning and Development Report noted that the proposed development did not require significant natural resources and that:

“Notably there will be no increase to any emissions currently arising from the existing facility as a result of the proposed development nor will there be the introduction of any new emissions and therefore it is stated that there is no requirement to revise, amend or otherwise alter the existing facility IED Licence.”

It concluded:

“as a result of the nature and scale of the proposed development, which is a ‘sub threshold’ development and is significantly under the threshold for environmental impact assessment, the location of the development proposed which will take place within an existing, established industrial complex which is located outside of any sensitive location and assessed against the criteria set out in schedule 7 of the Planning and Development Regulations 2001 (as amended), it is considered that the proposed development would not be likely to have significant effects on the environment and that the preparation and submission of an environmental impact assessment report is not therefore required.”

140.It was also found that a Stage 2 Appropriate Assessment was not required “having regard to the context and the development as proposed, the activities associated with the development proposal both during and post construction works, the distance of the proposed development from Natura 2000 sites, the absence of species of conservation interest in the vicinity of the site, and the absence of significant effects on the ecological network connecting the site to European sites.”

141.The contention that, in imposing Condition 4, the planning authority had implicitly found the EIA screening report, the Appropriate Assessment screening report, the Resource and Waste Management Plan and the Construction Environmental Management Plan to be inappropriate and inadequate is not borne out by the evidence, particularly the Environmental and Planning Development Reports prepared and relied upon by the Council in making the decision to grant permission subject to conditions.

142.The Planning Report also referred to best practice. The Inspector, and the Board, found that the site excavation and treatment and disposal of waste arising from the development was inherent in the nature and extent of the development as proposed. The Inspector noted that the Construction and Environmental Management Plan and Resource and Waste Management Plan give a breakdown of the types of waste anticipated, including contaminated soil, should there be any. She stated that the requirements of Condition 4(a)(i) and (ii) represent best practice which supplements the details as provided and found that they did not result in a material alteration to the development as set out in the application. The Inspector considered that the provisions of Condition 4(a)(iii) effectively replicate details provided in the application. A contingency/remedial plan is required by Condition 4(a)(iv) to deal with any incidents or other occurrences which might cause polluting discharges to waters. The Inspector found that the Emergency Response Plan, as set out in the CEMP, is effectively the same as that which is required by Condition 4(a)(iv) and that it would not materially alter the nature and extent of the proposed development. The Inspector considered the Industrials Emissions Discharge Licence, which is considered further below, under Core Ground 4.

143.While Condition 4 relates to lands inside the red line, it cannot be said that testing of the entire site, most of which is not proposed to be developed, and depending on the results thereof, excavation, removal of hazardous material and reinstatement, is linked to the actual development more closely than the restoration of Furry Park House was necessary or relevant to the development for which permission was sought. That would be unnecessary. The requirement that a Soil Excavation and Hazardous/Contaminated Waste Soil Management Plan includes the “Analysis completed on representative soil samples from the site to determine waste classification, associated tonnages, LoW codes, authorised waste collectors contracted for waste soil removal along with the names, addresses and waste licence/waste permit numbers for final waste disposal/recovery facilities” relates to soil which is waste, i.e. that which requires to be excavated in order to carry out the works the subject of the permission.

The Plan required by Condition 4 must also set out how excavated soil will be stored on site and that clean soil will be reinstated. There is no indication that sampling the entire site for hazardous materials is necessary to protect the environment, or for the orderly development of the site in accordance with the decision to grant. Therefore, I am satisfied that the interpretation which the Applicant seeks to put on Condition 4 is incorrect. The reason given for imposing Condition 4 would not justify the requiring the Notice Party to test and potentially excavate and reinstate the entire site, most of which does not require to be interfered with to carry out the works the subject of the application.

Condition 4 must not be interpreted in isolation, nor in a manner that would impose unreasonable or unintended obligations. The site layout plans show that significant areas of the site are green/open areas which they will remain untouched. The Planning Report noted that the site is extensively landscaped. Interpreting Condition 4 as requiring those areas to be sampled and possibly excavated and reinstated would impose obligations on the Notice Party beyond those which are necessary or appropriate to assess or mitigate any environmental risk associated with the proposed development.

The Board concurred with the findings of the Inspector, and found that having regard to the conclusions therein, and the fact that the site is already subject to an IED Licence, that the matters addressed by Conditions 4 and 6 do not result in a materially different development to that applied for.

144.Condition 4 regulates the implementation of the proposed development as permitted, principally under sub-condition (a) in terms of the submission of certain details (including certain identified ‘plans’ such as a Construction Project Management Plan) for agreement in writing with the planning authority prior to the commencement of development, and an associated requirement under sub-condition (b) that “Development shall be carried out in accordance with these details or as otherwise agreed in writing with the planning authority.”

145.I am satisfied that the Board was entitled to find that Condition 4 did not materially alter the development for the reasons set out herein. In Gleann Fia Homes Ltd v. An Bord Pleanála, Haughton J. referred to a condition which “could ‘objectively’ have been anticipated by an intelligent and informed layperson or a developer or their agent on reach the planning application.” As he found that condition 35 was not materially different to a condition which could reasonably have been anticipated, Haughton J. held that it did not materially alter the development for which the applicant had applied. Condition 4 is one which regulates the carrying out of the development in such a manner as to protect the environment and ensure orderly development, and as such it could reasonably have been anticipated.

146.Therefore, I reject the contention that the Board looked behind the conditions imposed by the Council and that it gave different reasons for the imposition of those conditions than were provided by the Council.

147. For the reasons set out above, the Applicant fails on Core Grounds 2 and 3.

CORE GROUND 4

The Board erred in law in having regard to the fact, as is identified at §5.2.9 of the Inspectors Report of 31 July 2024, that the site is required to obtain an Industrial Emissions Licence and therefore had regard to irrelevant considerations and failed to have regard to relevant considerations pursuant to the test in respect of s.37(6) of the 2000 Act.

148.The Applicant maintains that the Industrial Emissions Licence is an irrelevant consideration as the Board was permitted only to consider whether the conditions imposed in the decision to grant permission led to a development which differed materially to the development described in the application for permission. It is also contended that the Board did not have the IE Licence, or sufficient evidence relating to it to enable the Board make an informed decision that the proposed site has or is required to have an IE Licence.

149.The existence of an Industrial Emissions Licence was not in issue before the Board. The Applicant’s application for leave to appeal states that “The Abbott Ireland Cootehill site operates in compliance with a licence issued under Part IV of the Environmental Protection Agency Act 1992 (as amended by the Protection of the Environment Act, 2003)” (para, 1.0). Although this was taken from the description of the development for which permission was sought in the public notices, the Applicant did not dispute that statement in his application for leave to appeal. Section 34(13) provides that “A person shall not be entitled solely by reason of a permission under this section to carry out any development.” Therefore, if the Notice Party required an amendment to the Industrial Emissions Licence, the grant of permission would not authorise it to develop in accordance with the permission.

150.The application form for the planning application was submitted with a document, described as a letter, which states:

“15 Development Details, item 6 (Question 15 (6) of application form)

For the above question, please note that the construction of the proposed development will not necessitate any alteration or review of the site IED licence (P0687- 02). The licence will remain in place during the construction phase and the facility will adhere to the emission levels and monitoring requirements of the licence throughout this phase.”

151.The Construction Environmental Management Plan which was submitted as part of the application also referred to the Industrial Emissions Discharge Licence, which was issued by the EPA, ref. P0687-02. It was acknowledged in that Plan that the Notice Party was required to comply with that licence and submitted that the development the subject of the application would not require amendment of that licence.

152.The Licence does not appear to have been before the Board, but it has been exhibited by Darren Gaffney in the replying affidavit sworn on behalf of the Notice Party on 10th February 2025.

153.The Board has not countered the assertion in the Statement of Grounds that the Licence itself was not before it. It states that it was the existence of the Licence which was considered by the Board not the specifics of its terms. The Notice Party submits that it was not necessary for the Board to have a copy of the Licence before it when considering the application for leave to appeal.

154.The Applicant submits that the IED Licence was one of two cumulative reasons given for rejecting the application for leave to appeal. There is a slight difference in the terms of the Board Direction and Order, the latter having been made on 21st August 2024. Insofar as there is a difference between Board Direction and Order, I rely on the Board Order which refers to the two reasons as (a) and (b). Both documents state that the Board concurred with the

conclusion of the report of the Inspector that having regard to the entire facility, including water abstraction and waste disposal via the onsite wastewater treatment system being subject to an IED Licence (licence reference P0687-02) that the matters addressed by Conditions 4 and 6 do not result in a development that differs materially from the development as set out in the application for permission. In the Board Order, this reason is referred to as consideration (b);

(a) refers to the details of the procedures required for demolition and waste, soil excavation etc. as being described in the public notices and the documentation which accompanied the application. The Board concluded that the Applicant had not shown that the development for which a decision to grant permission had issued will differ materially to the development set out in the application.

155.The Board submits that the Board did not rely on the existence of the Licence to downplay or incorrectly interpret the question of material difference for the purpose of section 37(6)(d)(i)

as submitted by the Applicant. It submits that the Licence was considered as part of the assessment of whether the decision to grant authorised a materially different development by reason of Conditions 4 and 6.

156.The IED Licence was referred to by the Inspector in three parts of the July Memorandum. She referred to the Licence in the introductory paragraphs, as follows:

“1.5 The site, including abstraction from the Dromore River (and abstraction from Dromore Lake during periods of low flow) in addition to discharge to the river via the onsite waste water treatment plant is permitted, controlled and monitored by the site IED licence under ref. P0687-02.”

157.This is a correct statement of facts, confirmed by the undisputed averment of Darren Gaffney at para. 8 of his replying affidavit. He states:

“The abstraction from and discharge to the Dromore River is permitted, controlled and monitored by IED Licence P0687-02, and the abstraction is also registered with the EPA water abstraction database (Registration Number R00023). The site operates within the limits of the IED Licence, which imposes controls on emissions and discharges, which prevents contamination of the watercourse …”

158. At para. 5.2.9, which is relied upon in Core Ground 4, the Inspector stated:

“The contingency/remedial plan required by subsection (iv) pertains to any incidences or other occurrences that may arise during the construction phase, only. As noted previously the facility is covered by an IED licence.”

159.She continued, at paras. 5.2.11-12, finding that the requirement of Condition 4(a)(iv) was effectively the same as the Emergency Response Plan in the CEMP and that it would not materially alter the development authorised by the decision to grant.

160. The IED Licence was referred to again at para. 5.2.14 – 15, in which the Inspector found that Condition 6 would not give rise to a development which differed materially from that applied for. She stated:

“5.2.14 As per the details provided on the planning application form water is by means of an existing private abstraction from the Dunmore River which is registered with the EPA

(registration number R00023). As noted, the entire facility including water abstraction and water disposal via the onsite waste water treatment plant is subject to an IED licence (ref. P0687-02). The competent authority is the Environmental Protection Agency. Details of the licence are provided in the EIA Screening Report.

“5.2.15 On this basis I consider that the requirements of condition 6 will not result in a development that differs materially from that as set out in the application for permission or that the imposition of the requirements will materially affect the applicant's enjoyment of his property or its value.”

161.In the Reasons and Considerations, the Inspector concluded, having regard to the submissions and documents before the Board, “and having regard to the fact that the facility is subject of an Industrial Emissions Licence for which the Environment Protection Agency is the competent authority” that the matters to be addressed by Conditions 4 and 6 as imposed by the planning authority do not result in a materially different development from that set out in the application for permission.

162.The Applicant pleads that “conditions that may be imposed by other authorities cannot be had regard to as seeking to moderate or mitigate the impact of the adjoining lands of the Applicant and amounts to irrelevant and inappropriate considerations that have no basis in law, are ultra vires the Respondent Board and renders the decision invalid and void.” (emphasis added). The Inspector did not rely on the possibility of additional conditions being imposed by the Environmental Protection Agency, or any other body, to mitigating or moderating the impact of the development as modified by Condition 4 or 6.

163.The Board concurred with the findings of the Inspector, and found that having regard to the conclusions therein, and the fact that the site is already subject to an IED Licence, that the matters addressed by Conditions 4 and 6 do not result in a materially different development to that applied for.

164.The fact that the existing facility was subject to an IED Licence was also noted by the planning authority in both the Planning and Development Report and the Environmental Report. Those documents are relevant to the interpretation of the conditions imposed by the planning authority in the decision to grant. Accordingly, those documents, and the contents thereof do appear relevant to the interpretation of the conditions imposed, and the assessment of the extent to which the conditions materially alter the development from the terms of the application.

165.In the Planning and Development Report, it was noted that “there will be no increase to any emissions currently arising from the existing facility as a result of the proposed development nor will there be the introduction of any new emissions and therefore it is stated that there is no requirement to revise, amend or otherwise alter the existing facility IED Licence.” It concluded:

“As a result of the nature and scale of the proposed development, which is a ‘sub threshold’ development and is significantly under the threshold for environmental impact assessment, the location of the development proposed which will take place within an existing, established industrial complex which is located outside of any sensitive location and assessed against the criteria set out in Schedule 7 of the Planning and Development Regulations 2001 (as amended), it is considered that the proposed development would not be likely to have significant effects on the environment and that the preparation and submission of an environmental impact assessment report is not therefore required.”

166. The Environmental Report states that the site operates in compliance with a licence issued under Part IV of the Environmental Protection Agency Act 1992 (as amended by the Protection of the Environment Act, 2003). It also states that “The abstraction and discharge of water from the Dromore River and the discharge of water to the Dromore River is continuously monitored via an online flow meter with recorder in accordance with the licence.”

167.Details of the Licence were included in the AWN Planning Statement and the EIA Screening Report, submitted by the Notice Party as part of its application. The EIA Screening Report stated that “All of the existing activities on site (including the treatment of process water in the WWTP and subsequent discharge to the Dromore River) are licensed, controlled and monitored by the EPA via IED licence no. (P0687-02).” It also stated that there is no proposed increase in abstraction or discharge limits or ELVs arising from the proposed development, nor will there be an increase in any emissions arising from the facility or any new emissions. As appears therefrom, the conditions of the Licence include the requirement to obtain agreement of the EPA if the activities on the site would be altered in a manner which would, or is likely to, result in a material change or increase in emissions. While the Applicant avers, at para. 10 of his grounding affidavit, that abstraction may increase significantly during the commissioning and operating phase of the proposed development, the basis for that contention is not clear. This is disputed by Mr. Gaffney who explains in his first affidavit, that on very rare occasions of naturally occurring extreme drought conditions, the Notice Party is required by Inland Fisheries, to augment the water flow in the Dromore River, but that this is done in accordance with the Licence. Mr. Gaffney also denies that the Notice Party extracts water from Dromore Lough, as averred by the Applicant.

168.The finding of the Board in relation to Condition 6 is challenged solely on the grounds that the Board was not entitled to have regard to the IED Licence, and that the Licence was not before the Board. Condition 6 must be interpreted in accordance with the XJS principles. It is appropriate therefore to interpret it and consider whether it alters the development in a material way, it in light of the material before the planning authority. It was not in dispute before the Board that the facility was subject to an IED Licence nor did the Applicant put compliance with the Licence in issue before the Board. Condition 6 cannot be interpreted as potentially resulting in additional emissions which were not proposed by the Notice Party in the application. The application documents clearly state that there is no need to apply for a variation of the IED Licence as there will not be an increase or material change in emissions or discharges. This was accepted by the planning authority.

169.The Applicant does not succeed on Core Ground 4, as particularised.

Conclusion and Proposed Orders

170. The Applicant applied for leave to appeal the decision of Monaghan County Council to grant the Notice Party permission subject to conditions. The Board did not have a discretion but was permitted to grant such permission only if the conditions of Section 37(6) are satisfied. The Board made two invalid decisions in this application, the second of which was quashed by Holland J on 29th of July 2024, the Board having conceded that its decision was invalid on 5th July 2024.

171. An Inspector was assigned to prepare a Memorandum or Report under section 146(1) after the concession of the previous judicial review proceedings, but before the Orders were made on 29th July 2024. The Inspector’s Memorandum was completed and signed by her on 31st of July 2024. An earlier memorandum dated 21st of March 2023 remained on the file and was before the Board when the impugned decision was made.

172.The Board refused the application for leave to appeal, generally in accordance with the July Memorandum. Neither the July Memorandum nor the Board Direction or Order referred to the March Memorandum.

173.The Applicant has not succeeded on Grounds 2, 3 and 4 which relate to the substance of the Board’s decision for the reasons set out above.

174.The decision of the Board is not invalid by reason of its reliance on the substance of the July Memorandum, or the absence of express reasons for rejecting the March Memorandum. However, the assignment of the Inspector did occur before the High Court had quashed the previous decision, but after the Board had conceded that it was invalid.

175.Whilst I have not definitively determined that the Board’s decision is invalid by reason of the timing of the assignment to the Inspector, I am satisfied that it is not appropriate to grant certiorari solely on that basis. No unfairness or prejudice was created by the premature assignment of the Inspector, who completed and signed the Memorandum after the application had been remitted. The challenge to the substance of the Memorandum and the Board’s reliance thereon have not succeeded.

176.The Notice Party applied for planning permission on 29th November 2022 and has not contributed in any way to the delays in the determination of the appeal, which was lodged by An Taisce on 28th February 2024, or to the length of time it took for the Applicant’s application for leave to appeal to be determined.

177.While the Applicant is in a more precarious position in relation to the appeal as an observer, rather than an appellant, there is no reason to expect that An Taisce will withdraw its appeal, which was lodged 2 ½ years ago. The Applicant has averred that the grounds of any appeal which he would make, if the decision is quashed and the Board were to grant him leave to appeal “would be not dissimilar to the observation which is already before the Board”. Furthermore, the complaints made by the Applicant as to the impact of the proposed development on his lands relate exclusively, or almost exclusively, to the development itself and not to any variations to the development required by the conditions. I have found that the Applicant has misinterpreted Condition 4 and therefore any fears held by him arising from the testing and potential excavation and reinstatement of the entire site owned by the Notice Party do not arise.

178.As I have rejected the substance of the Applicant’s challenge to the Board’s decision, I am satisfied that quashing the Board’s decision solely on the ground that the Inspector was assigned to prepare a report, and (presumably) that she commenced working on that report before the orders were made on 29th July 2024 would be disproportionate. Therefore, the application for certiorari is refused.

179.I propose to make an Order refusing the relief sought. The proceedings should be listed before me on 13th October 2025, on which date application can be made for any consequential orders.

Emily Farrell