High Court dismisses planning challenge claims as unpleaded or legally incorrect regarding EIA requirements.

[2025] IEHC 521

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000783]

IN THE MATTER OF S.50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AND S.3 OF

THE ENVIRONMENTAL (MISCELLANEOUS PROVISIONS) ACT 2011

BETWEEN

MERVYN CUMMINS, JOSEPHINE CURRY, PAUL FOGARTY, DES O’DONOVAN AND

THE CLONEA GUN CLUB

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

BNRG MOTHEL LIMITED

NOTICE PARTY

Date of impugned decision: 24 April 2024

Date proceedings commenced: 18 June 2024

Date of main hearing: 29 May 2025 and 14 July 2025

Date draft judgment circulated: 11 September 2025

JUDGMENT of Humphreys J. delivered on Friday the 3rd day of October 2025

1. The developer here was granted permission to construct a solar farm in 2019. It then sought

permission for a phase 2 of the project about 1 km to the south of the existing development site,

which was granted by the council in 2023 and by the board on appeal in April 2024. The applicants

launch a battery of miscellaneous complaints including administrative law and planning law points

and defects in European assessments, particularly in relation to Otter (Lutra lutra), Freshwater Pearl

Mussel (Margaritifera margaritifera) and environmental impact assessment (EIA) screening. The

question is whether any of these (insofar as they fall for decision now) have been pleaded and

evidenced in such a way as to constitute a sufficient ground to quash the latest permission.

Geographical context

2. The board granted planning permission for the construction of a solar farm on a total site

area of 141 hectares (348 acres) close to the historic settlements of Clonea Power and Mothel, Co.

Waterford, approximately 5 km south of Carrick-on-Suir.

3. The development site is located at the townlands of Bishopstown, Bridgetown, Ballyhest and

Ballyneale, Carrick-on-Suir, Co. Waterford in the functional area of Waterford City and County

Council (https://www.pleanala.ie/en-ie/case/317188).

4. The river Clodiagh passes through Clonea Power village, and two of its tributaries intersect

the site of the impugned development.

5. The river Clodiagh is within the Lower Suir Special Area of Conservation (SAC) and is a

known habitat for Freshwater Pearl Mussel. The National Parks and Wildlife Service (NPWS) has

prepared conservation documents for the SAC which was also designated for other species including

Otter.

Facts

6. Phase 1 of the solar farm, about a kilometre further to the north, was granted planning

permission by the board in September 2019 (https://www.pleanala.ie/en-ie/case/304651). The

board also granted planning permission for a substation on the same date in 2019. The solar farm

and substation granted planning permission in 2019 did not anticipate the impugned development

as a ‘phase 2’. The infrastructure granted planning permission in 2019 has not yet been constructed.

7. On 10 March 2023, the planning application was made to Waterford City and County Council

(the council).

8. The council’s planning file is at:

https://waterfordcouncil.eplanning.ie/iDocsWebDPSS/listFiles.aspx?catalog=planning&id=2360089

&orderBy=type.

9. All five applicants participated in the impugned process. The first four named applicants live

in the locality and the fifth named applicant is the local gun club. The gun club say that since 1966,

they have held sporting rights on the lands by agreement with the Marquis of Waterford who owns

those rights. The Marquis of Waterford was not an applicant but has provided an affidavit confirming

his willingness to be joined to the proceedings if necessary. That was a decision for the applicants

rather than the court and no such joinder was in fact applied for.

10. The Clonea Mothel Solar Action Group, an association of local residents, made a submission

which included an opinion by the Fresh Water Pearl Mussel expert Dr Evelyn Moorkens. The fifth

named applicant gun club also made a submission to the planning authority, as did the Marquis of

Waterford who contended that the application should be considered void ab initio. The submission

of the fourth named applicant incorporates photographs illustrating the proximity of his home to the

proposed development and the absence of any existing screening of the proposed development from

the upstairs floor of his home.

11. On or about 19 April 2023, the council’s executive conservation officer submitted a report to

the process, setting out the architectural significance of the village of Clonea and recommended

further information, specifically an architectural heritage impact assessment (AHIA). This further

information was not sought.

12. The council’s executive planner prepared a report dated 17 April 2023 on its heading and 27

April 2023 at the end. The planner’s report considered that an AHIA was not warranted. The

planner’s report recommended that planning permission be granted, subject to conditions.

13. By order dated 3 May 2023, the planning authority decided to grant planning permission for

the proposed development, subject to the conditions recommended by its planner.

14. On 24 May 2023, the decision of the planning authority was appealed to An Bord Pleanála.

The board recorded a record-breaking (as far as recent proceedings are concerned) 17 third-party

appeals and three observations by third parties to those appeals.

15. An appeal was made on behalf of the first and third named applicants in these proceedings

and others by BPS Planning Consultants. This submission also included the opinion of Dr Moorkens

in relation to impacts on Freshwater Pearl Mussel.

16. Separately appeals were made by the second named applicant Josephine Curry and the

fourth named applicant, Des O’Donovan. An appeal was also lodged by Henry De La Poer, Marquis

of Waterford, whose seat is Curraghmore, Co. Waterford, apparently the record-holder for the oldest

family home in Ireland and the largest private demesne in Ireland

(https://curraghmorewhiskey.com/curraghmore-estate/). Lord Waterford’s appeal included a letter

from Vincent Whelan who is identified as Chairman of the Clonlea Gun Club, the fifth named

applicant. The said letter from Vincent Whelan included what the applicants describe as a copy of

the lease agreement between the gun club and Lord Waterford. The fifth named applicant did not

lodge an appeal. The developer submitted two responses to the various appeals dated 5 July 2023

and 24 July 2023.

17. The board appointed an inspector to report on the appeals. The inspector visited the site on

or about 24 October 2023, and prepared what seems to be a PowerPoint presentation of

photographic images taken on the visit. The inspector made a report to the board dated 15

November 2023.

18. The board met to consider the inspector’s report and decided to request a report from the

board’s own ecologist. That report was prepared on 8 March 2024.

19. The inspector reviewed the report of the ecologist and prepared an addendum inspector’s

report dated 11 March 2024.

20. The board met again on 26 March 2024, and prepared a board direction recording its

recommendation that planning permission be granted for the proposed development.

21. The impugned decision was made by order of the board on 24 April 2024.

Procedural history

22. The proceedings were issued on 18 June 2024.

23. Leave was granted by Holland J. on 29 July 2024, with liberty to file an amended statement

of grounds. An amended statement of grounds was filed on 2 August 2024.

24. The board filed its opposition papers on 30 January 2025.

25. The statement of opposition of the notice party was delivered but never filed.

Compounding this problem, not only was that document not filed, but a document with a file name

inaccurately describing itself as the notice party statement of opposition was uploaded to ShareFile

which was in fact a different document, their legal submissions.

26. On 7 March 2025, a statement of opposition of the board was served. On 11 March 2025,

an unsworn affidavit of Emma Burrows was served, followed later that day by a sworn version which

is dated the 6 March 2025. An unsworn affidavit of John O’Flaherty was served on 21 March 2025,

followed by a sworn version on 27 March 2025.

27. The applicants served three supplemental affidavits on 7 and 8 April 2025, which were filed

on the 16 and 28 April 2025.

28. In its contribution to the statement of case, the applicants highlighted the unfiled nature of

the notice party’s statement of opposition. They were later to state (quite reasonably) that they

had assumed that in doing so, the notice party would do something about it at that point, but

unfortunately that didn’t happen.

29. The matter was heard on 29 May 2025.

30. Following the hearing, on reviewing the papers against the High Court Search and UCMS

platforms, it became apparent to me that the notice party’s statement of opposition had still not

been filed.

31. On 9 June 2025, the registrar contacted the parties seeking clarification. The matter was

listed on 30 June 2025. In advance of this, the applicants wrote raising issues about which version

of the statement was verified, among other matters.

32. On that date, I directed that the notice party file an affidavit specifying which version of the

statement of opposition was being verified and exhibiting that version, and the explanation for not

filing the statement of opposition. The notice party would have liberty to explain the substantive

factual plea of there being no wayleave, without being directed to do so at this stage. The logic for

dealing with the latter was that it would be an uncomfortable and dubious procedure to wave through

the unfiled notice of opposition as a mere technicality, and then (if the notice party’s position was

to be accepted) hand the notice party a potential slam-dunk victory on the basis of its contents not

having been fully rebutted. So I wanted to know whether the contents had a solid factual foundation.

33. This was to be on the basis that any further affidavits would not be evidence in the case

unless the court permitted the filing of the statement of opposition or made a further order to that

effect. In other words the affidavits were for interlocutory purposes only at this stage.

34. The matter was adjourned to 14 July 2025, on the basis that if reply was required by the

applicants there would be a facility for that.

35. In the meantime, the notice party’s solicitor filed an affidavit explaining that the non-filing

was an oversight and that the version uploaded was a slightly earlier version to that actually verified.

The notice party’s mapper Mr Nolan also furnished an affidavit basically indicating that:

(i) wayleaves shown on the folio were noted on the application plans;

(ii) he is not aware of other wayleaves;

(iii) wayleave/ rights of way information was taken from landdirect.ie;

(iv) the poles are not ESB poles based on review of ESB data; and

(v) Google Streetview demonstrates a lack of insulators which indicates that the poles

and lines are a communications utility line not an electricity line.

36. On 14 July 2025, the applicants agreed that a modularised judgment could be given on core

grounds 3 to 5, 7 and 8 with core grounds 1 and 2 to await clarity on the notice party statement of

opposition and wayleave issue. The commission acquiesced in that albeit that they didn’t see much

merit in modularising core ground 2 or the shooting rights part of core ground 1. The notice party

wanted a single judgment but since their default caused the problem I don’t see that objection as

having decisive weight. The applicants were to respond to the notice party’s evidence, with the

matter listed for mention (for the further module) on 13 October 2025.

37. Judgment was then reserved on that modular basis. I would like to record my thanks to all

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

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

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

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

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

38. On 11 September 2025, a draft of the present judgment was sent to the parties to give an

opportunity to identify any errors. The rules of engagement in such a situation are that the draft is

without prejudice to the right of the court ultimately to issue a judgment in whatever form or with

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

assistant and uploaded to ShareFile in writing within 7 days and should not be to reargue the

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

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

issues;

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

both modes;

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

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

one the party considers could beneficially be decided;

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

address but has not;

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

unnecessary to address;

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

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

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

such material should not lead to the proposed conclusion; and

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

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

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

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

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

further notice following the expiry of the 7 day period, whether comments are made or not. That

period will not be extended save in exceptional circumstances on application explained on affidavit

within the period. All parties involved are requested to positively confirm to the court the position

including if they have no observations on the draft legitimately falling within the foregoing

parameters. Overall the draft judgment procedure is a concession which parties can engage with

but must do so with immediate dispatch, discipline and focus – it is not the opening of a new phase

of the litigation that gives rise to “an entitlement to elaborate procedures at every point” (borrowing

the point made by O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE

[2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 39).

40. The listing date was to be 29 September 2025. On that date the parties clarified the limited

extent of their comments. The applicants stated that the intention was that they would have a

period until 13 October 2025 for replying evidence (that wasn’t contested), and the commission

helpfully pointed out a typographical error in the draft. I have redrafted para. 88 to correct that and

hopefully to make the point clearer. In terms of the proposed order, the amendment of the Central

Office cause books has been addressed in the meantime by mass orders on 15 September 2025, so

this has been deleted from the order. I have also proposed adding that costs be reserved. Finally,

on reviewing the proposed definition of “road” at para. 120 I have amended it to incorporate more

of the applicants’ language, which was largely my original intention but may not have been fully

reflected in the draft judgment. Should anyone be interested, I did seek to clarify at draft stage

whether counsel had any contrary views as to the terms in which their comments were credited or

uncredited, and no such contrary views were forthcoming.

Relief sought

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

“1. An Order of Certiorari by way of application for judicial review quashing a decision

made by the Respondent (‘the Board’) on or about 24th April 2024 to grant development

consent to the developer BNRGN Mothel Limited (a previous name for the Notice Party) for

the construction of a Solar Farm on a total site area of 141 hectares (348 acres), consisting

of photovoltaic panels on ground mounted steel frames with associated cabling and ducting;

28 no. single storey inverter stations; perimeter fencing; permeable gravel access track; 49

no. onsite pole mounted CCTV cameras; 4 no. new site accesses; 4 no. security gates; 3 no.

temporary construction compound/material storage area; 3 no. temporary construction

stage wheelwash systems (with overhead settlement tank); 6 no. temporary storage

containers and all associated ancillary development services and works at Bishopstown,

Bridgetown, Ballyhest and Ballyneal, Co. Waterford.

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

respondents and/or persons similarly situated as the Court considers appropriate.

3. An Order providing for the costs of the application and an Order pursuant to Section

50B of the Planning and Development Act, 2000, as amended and Section 3 of the

Environmental (Miscellaneous Provisions) Act 2011, as amended with respect of the costs of

this application.

4. A stay preventing the operation of the impugned decision until after the matters that

are the subject of these proceedings have been decided by the courts.

5. Further and other orders including interim orders.”

Grounds of challenge

42. The core grounds of challenge are as follows:

“PART 1 - CORE GROUNDS

Domestic Law Ground

1. The impugned decision is invalid and was made contrary to art. 26(3) of the Planning

and Development Regulations 2001, as amended (‘the PDR 2001’) because, contrary to s.

37(1)(b) of the Planning and Development Act 2000, the Board exceeded its jurisdiction and

ought to have treated the planning application as being invalid ab initio because it knew or

ought to have known from the planning file before it that art. 22(2)(b) (iii) of PDR 2001 had

not been complied with, because the developer did not supply with its planning application

maps upon which wayleaves are identified clearly in yellow; and/or that the developer did

not have sufficient interest to carry out the proposed development so that the application

was made contrary to the scheme and provisions of the PDA 2000, or alternatively that art.

22 (2) (g)(i) had not been complied with because the Fifth Applicant in these proceedings

as lessees holders of sporting rights on the lands and or the Marquis of Waterford as owner

of those rights did not (either or both of them) give their written consent to the making of

the planning application. Further particulars are set out in Part 2 below.

2. The impugned decision is invalid and was made contrary to fair procedures and the

Constitutionally protected property rights of the Fifth Applicant. Further particulars are set

out in Part 2 below.

3. The impugned decision is invalid and made contrary to fair procedures and s.34(2)

of the Planning and Development Act, 2000, as amended because when making its decision

the Board did not properly consider the proper planning and sustainable development of the

area and had no proper regard to the provisions of the development plan, in particular the

objective in policy objective UTL13 of the Waterford City and County Development Plan to

consider reasonable alternatives at the initial design stage of renewable energy

infrastructure. Further particulars are set out in Part 2 below.

4. The impugned decision is invalid and was made contrary to fair procedures and

37(1)(b) and 34(2) and the Board in making its decision had regard to matters that it ought

not have had regard to when it satisfied itself that a 40 year operational period was

appropriate for the solar farm for the stated reasons of ‘…because the planning applicant

had specifically applied for a 40-year permission for reasons of economic viability, the

necessity for alignment for phases was not sufficiently justified in this instance, and the

planning authority had originally approved the proposed development for a 40-year period.’

Further particulars are set out in Part 2 below.

5. The impugned decision is invalid and was made contrary to fair procedures and the

Board failed to consider matters that it ought to have considered and gave no proper reasons

for failing to seek further information in the form of an Architectural Heritage Impact

Assessment as requested by the Conservation Officer of the County Council and or an

updated habitat and botanical survey, given that the habitat and botanical survey was

conducted at the wrong time of the year for some species. Further, the Board failed to

properly consider the likely noise impacts at the homes of the Third and Fourth Applicants

because there was no background noise measurement or proper night time noise impact

assessment made in the location of either home. Further particulars are set out in Part 2

below.

6. The impugned decision is invalid because there is an error on the face of the record

and the impugned planning permission was granted to BNRGN Mothel Limited which is not

the name of the company that applied for the planning permission. Further particulars are

set out in Part 2 below.

EU Law Grounds

7. The impugned decision is invalid because it contravenes Article 6(3) and Article 12

of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and

of wild fauna and flora (‘the Habitats Directive’) as transposed by s. 177U and s. 177V of

the Planning and Development Act 2000, as amended, and in accordance with the case law

of the CJEU by:

• failing to carry out an Appropriate Assessment without lacunae and which contains

complete, precise and definitive findings and conclusions capable of dispelling all reasonable

scientific doubt as to the effects of the proposed works on the conservation of the Otter and

the Freshwater Pearl Mussel in the Lower Suir SAC; and

• failing to identify and examine the implications of the proposed project for the Otter

species to be found outside the boundaries of the SAC where those implications are liable to

affect the conservation objectives of the SAC. Case 461/17 Holohan; and

• failing to ensure that there is in place a system of strict protection for the Otter in

its natural range, prohibiting deliberate disturbance of this species, particularly during the

period of breeding, rearing, hibernation and migration and or deterioration or destruction of

breeding sites or resting places and in placing reliance on a future art. 16 derogation, failed

to consider if there is a satisfactory alternative or if such a derogation would be detrimental

to the maintenance of the populations of Otter at a favourable conservation status in their

natural range Further particulars are set out in Part 2 below.

8. The impugned decision is invalid in that it contravenes art 103(1B)(b) of the Planning

and Development Regulations 2001 and the EIA Directive as amended because the Board

failed to make a screening determination for an Environmental Impact Assessment for (i)

private roads within the development, (ii) a project for the restructuring of a rural land

holding within the meaning of Annex II paragraph 1(a) of the EIA Directive Part 2 (1)(a) and

or Schedule 5 of the Planning and Development Regulations, 2001, as amended, (iii)

industrial installations for the production of electricity, steam and hot water (projects not

included in Annex I), the undefined grid connection, (iv) transmission of electrical energy by

overhead cables (projects not included in Annex I), (v) urban development projects within

the meaning of Annex II of the EIA Directive. Further particulars are set out in Part 2 below.”

43. Core ground 6 was withdrawn as appears from the foregoing.

Pleading principles

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

in previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2024).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12 May 2017).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

repetition”.

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

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

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

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

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

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

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

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

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

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

Court, 19 October 2023) at §117.

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

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

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

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

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

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

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

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

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

standard is acceptable clarity, not express enumeration.

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

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

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

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

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

objection if it fails either way.

Inadequacy of assessments

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

rehearsed in previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College

van gedeputeerde staten van Limburg and College van gedeputeerde staten van

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

101.

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

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

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

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

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

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

Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot

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

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

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

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

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

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

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

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

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

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

in R. (on the application of Champion) v. North Norfolk District Council [2015] UKSC

52, [2015] 1 W.L.R. 3170 at para. 41).

General principles of statutory interpretation

46. While there are extensive authorities on statutory interpretation, the following really central

points should be stressed:

(i) Legislation should be given a workable, sensible interpretation where this is at

all possible: 100 Meter Tall [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1

July 2025), para. 13, citing the statement that where the statutory words used “are

reasonably capable of a meaning which is in accord with the essence of the provision,

it is that interpretation which should prevail”: see Kellystown Co. v. Hogan [1985]

I.L.R.M. 200 at 203, per Henchy J.

(ii) Text, context and purpose are all generally relevant. While the starting point is

the text, this should be considered in its legislative context and having regard to the

statutory purpose(s): in Heather Hill Management Company v. An Bord Pleanála

[2022] IESC 43, [2022] 2 I.L.R.M. 313 at §106 per Murray J., language, context and

purpose are potentially in play in every exercise in statutory interpretation, none

ever operating to the complete exclusion of the other: A, B, & C v. Minister for

Foreign Affairs and Trade [2023] IESC 10, [2023] 1 I.L.R.M. 335, Murray J. at §73,

Maher v. Dublin City Council [2024] IESC 14 (Unreported, Supreme Court, Baker J.,

11 April 2024), Donegal County Council v. Quinn [2025] IESC 19 (Unreported,

Supreme Court, Hogan J., 27 April 2025).

(iii) As regards textual or literal meaning, as Nugee L.J. said in Blackbushe Airport Ltd.

v. The Queen and the Secretary of State for Environment and Food and Rural Affairs

[2021] EWCA Civ. 398, [2022] Q.B. 103, [2022] 1 All E.R. 524, [2021] 3 W.L.R.

567, [2021] PLSCS 56 at 131 (emphasis added): “If we want to know what a word's

ordinary meaning is, it is to my mind more helpful to ask how it is used in

practice. This is after all what we do with everyday words. We do not know what

the word house means because we have looked it up in the dictionary; we know

what a house is because we have experience of how the word house is used. In the

same way if we want to know what curtilage means, it is helpful to look at examples

of how it has been used in practice. Such an exercise may not indicate the outer

edges of its meaning with precision, but it does help to illustrate its central

meaning.”

(iv) As regards statutory context, as Stamp L.J. said in Bourne (Inspector of Taxes) v.

Norwich Crematorium Ltd [1967] 1 W.L.R. 691, [1967] 2 All E.R. 576, [1967] 3

WLUK 24, 44 T.C. 164, (1967) 46 A.T.C. 43, [1967] T.R. 49, (1967) 111 S.J. 256 at

696 (emphasis added): “Sentences are not mere collections of words to be

taken out of the sentence, defined separately by reference to the dictionary or

decided cases, and then put back again into the sentence with the meaning which

one has assigned to them as separate words, so as to give the sentence or phrase

a meaning which as a sentence or phrase it cannot bear without distortion of the

English language.”

(v) Overlaying this is the need to give legislation an interpretation conforming to the

Constitution (East Donegal Co-Operative Livestock Mart Ltd v. Attorney General,

[1970] I.R. 317, [1970] I.R. 317 (Digest), 104 I.L.T.R. 81), the ECHR (ECHR Act

2003 s. 2(1)) and EU law (the judgment of 13 November 1990, Marleasing SA v La

Comercial Internacional de Alimentacion SA, C-106/89, ECLI:EU:C:1990:395), if

such interpretations would not be contra legem. It follows from the need for an EU-

law conforming interpretation that the interpretation of transposing legislation must

have regard to the meaning of the EU law instrument being transposed, and in

particular that terms should be given the same meaning, a principle reflected in

numerous legislative texts including the Planning and Development Act 2000 s. 2(8).

(vi) Relatedly, words in instruments generally have the same meaning as terms in

the parent Act: s. 19 of the Interpretation Act 2005.

Domestic law issues

Core ground 3 – alleged lack of regard to development plan

47. Core ground 3 is:

“3. The impugned decision is invalid and made contrary to fair procedures and s.34(2)

of the Planning and Development Act, 2000, as amended because when making its decision

the Board did not properly consider the proper planning and sustainable development of the

area and had no proper regard to the provisions of the development plan, in particular the

objective in policy objective UTL13 of the Waterford City and County Development Plan to

consider reasonable alternatives at the initial design stage of renewable energy

infrastructure. Further particulars are set out in Part 2 below.”

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

“CORE GROUND 3

Applicant’ Position –

1. ULT13 is the policy objective for renewable energy in the Waterford City and County

Council Development Plan 2022 to 2028. It is to be found in Volume 1: Section 6.9 of the

Development Plan and the relevant part of that section states:

At initial design stage full consideration should be to reasonable alternatives and existing

infrastructural assets. In this regard environmental assessments should address reasonable

alternatives for the location of new energy developments, and where existing infrastructural

assets such as sub-stations, power lines and roads already exist within proposed

development areas, then such assets should be considered for sustainable use by the

proposed development where the assets have capacity to absorb the new development.

2. The Inspector recognised in his report that it is a policy objective under UTL13 of

the Waterford Development Plan to consider reasonable alternatives at initial design stage

of this type of infrastructure. The Inspector agreed that scant information is provided in

relation to alternative locations in this planning application. The Inspector goes on to justify

this by having regard to this project being ‘phase 2’ of a 2 phase project. The Applicants

plead that the Inspector erred in this analysis and led the Board into error. The Applicants

plead that it could not be the case that the simple naming of the development as ‘phase 2’

could allow it to bypass a Development Plan objective for alternatives to be considered.

Board’s Position –

1. The Applicants here carefully avoid the fact that the pleaded case is the Board did

not have ‘proper regard’ to UTL13 which is completely incorrect on the facts. Policy objective

UTL13 was considered at §8.1.13.4 of the Inspector’s Report. Thus, the Board obviously did

have regard and the question of what weight is attached to that regard is for the Board.

There is, accordingly, no bypassing of a Development Plan objective. Indeed, the Applicants’

case here requires one to ignore that part of UTL13 which positively encourages the sharing

of infrastructure.

Notice Party Position –

The Notice Party supports the position of the Board and adds the following observations.

The Inspector gave extended consideration to the requirements of UTL. This is sufficient to

dispose of this Core Ground, as the Applicants (wisely) have not pleaded that the Decision

represented a material contravention of the objective in question.”

49. Section 37(2)(a) of the 2000 Act provides:

“(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section

decide to grant a permission even if the proposed development contravenes materially the

development plan relating to the area of the planning authority to whose decision the appeal

relates.”

50. It is common case that there is a duty to have regard to the development plan. Was that

duty breached? Unfortunately for the applicants, the commission has correctly summarised the

problem with this point:

“Policy objective UTL13 was considered at §8.1.13.4 of the Inspector’s Report. Thus, the

Board obviously did have regard and the question of what weight is attached to that regard

is for the Board.”

51. The notice party has set out in the statement of opposition the numerous references

demonstrating consideration of the plan in this respect by the inspector and in underlying

documentation:

“44. The Inspector referred to UTL 13 at §6.2 of his first report, saying (p.13):

‘UTL 13 is specific to Renewable Energy and similarly seeks to promote and facilitate a

culture of adopting renewable energy technologies. It goes onto promote and encourage

the: use of solar photovoltaic and solar thermal among the agricultural sector; and

community engagement and participation in renewable energy projects. UTL 13 places

emphasis on the consideration of reasonable alternatives and utilisation of existing

infrastructure assets such as substations, powerlines and roads when considering renewable

energy developments.’

45. This reference occurred in the context of references by the Inspector to other

Development Plan objectives relating to solar farms, including the overall strategic objective

in Chapter 6 of the Development Plan (p.169):

‘To promote and facilitate the provision of energy efficient, low carbon infrastructure and

utilities and support infrastructure, whilst supporting industry to innovate, decarbonising the

energy sector in order to contribute to a national target of zero net emissions of greenhouse

gases in Ireland by 2050.’

46. In addition, the Inspector considered the aforesaid policy objectives in the wider

context of the Climate Action Plan 2023, Project Ireland 2040: National Planning Framework,

the Regional Planning Guidelines for the South East Region 2020-2032, and the Renewable

Energy Strategy for Waterford City and County 2016-2030.

47. UTL 13 was referred to again at §8.1.13.4 of the Inspector’s first report (p.45), as

follows:

‘It is a policy objective under UTL 13 of WCCDP [i.e. the Development Plan] to consider

reasonable alternatives and existing infrastructural assets at initial design stage. The

appellants draw attention to the fact that scant information is provided in this regard – this

point is agreed with.

The applicant has not provided any information addressing reasonable alternatives for the

location of this new energy development. While Further Information could be requested by

the Board in this regard it is not consider [sic] necessary in this instance. This is on that

[sic] basis that the principle [sic] development, set out in Section 8.1.1 of this report [i.e.

the section entitled ‘Principle of the Development’], was considered acceptable subject to

compliance with the proper planning and sustainable development of the area and

compliance with the relevant plan. It is also assumed any consideration of alternatives

would have likely identified available lands in close proximity to Phase 1 in any case.’

48. Contrary to the assertion at §E.14 of the Amended Statement of Grounds, objective

UTL 13 was not ‘bypassed’. On the contrary, that objective was expressly considered.

49. The Developer notes the Applicants’ concession (§E.16) ‘that the policy objective

promotes the use of existing substation capacity before the development of further

substation infrastructure’.

50. The Inspector and the Board were entitled to conclude that, based on the information

available to them, it was not necessary to seek further information in relation to this issue.

51. The Planning and Environmental Considerations Report (‘PECR’) submitted with the

application stated (§1.1, p.4):

‘This planning application follows Mothel Solar Farm (now referred to as Phase 1) which was

permitted in 2019 (planning ref. no. 19/183) located approx. 800 m north of the Phase 2

proposed development site. Phase 1 was granted permission for the development of a 30

MW Solar Farm and 110 kV Substation. The Phase 1 application [included] a 110 kV

substation, overhead line and battery storage system. These infrastructural elements will

also be utilised for the Phase 2 development and therefore this application does not require

any additional substation, battery energy storage system (BESS) or any overhead line

infrastructure. The grid connection will be via a 38 kV underground cable. A grid connection

which is outside the scope of this application will connect Phase 2 to Phase 1. The permitted

Phase 1 solar farm project is also illustrated in Figure 1-1: Site Location (Including Phase 1

and Phase 2). Together, Phase 1 and Phase 2 will have a cumulative capacity of up to 90

MW of power to supply to the local network.’

52. The Inspector noted (§8.1.13.2, p.44) that the Proposed Development comprised

Phase 2 of a ‘wider project’, including the renewable energy development at Mothel Phase 1

(ABP-304651-19) and that the two phases would ‘share a grid connection’. He noted also

(§8.1.13.3, p.44) that: ‘The planning application, including the PECR [Planning and

Environmental Considerations Report] and NIS, have been explicit and circumspect to

present and assess the overall project. The cumulative impacts and in-combination effects

of both the Phase 1 Solar Farm (ref: ABP-304651-19) and associated grid infrastructure (ref:

ABP-303930-19) has been factored into the assessment for the subject application under

appeal.’”

52. A claim of failure to have “proper” regard to the plan is a merits complaint. The applicants

haven’t pleaded material contravention so much of their criticism of the commission doesn’t properly

arise. Much of the submission on this heading goes well beyond the pleaded case. Anyway even if

we were to reach the merits of this, the logic of concentrating the infrastructure here and avoiding

replication of existing/consented assets is clear.

Core ground 4 – alleged irrelevant consideration

53. Core ground 4 is:

“4. The impugned decision is invalid and was made contrary to fair procedures and

37(1)(b) and 34(2) and the Board in making its decision had regard to matters that it ought

not have had regard to when it satisfied itself that a 40 year operational period was

appropriate for the solar farm for the stated reasons of ‘…because the planning applicant

had specifically applied for a 40-year permission for reasons of economic viability, the

necessity for alignment for phases was not sufficiently justified in this instance, and the

planning authority had originally approved the proposed development for a 40-year period.’

Further particulars are set out in Part 2 below.”

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

“CORE GROUND 4

Applicant’ Position –

1. The so-called ‘first phase’ has a planned life of 25 years. The impugned decision

allowed a 40 year life for the so called ‘second phase’ for reasons connected with the

financing of the development. The applicants plead that the cost of financing the solar farm

is not a valid consideration for the Board. The Board’s position as set out below was not

pleaded in its Statement of Opposition.

Board’s Position –

1. Referring to the pleaded case, the notion that this is not a consideration under the

banner of proper planning and sustainable development is absolutely without merit. The

Notice Party clearly explained in the PECR at p.1 (and none of this is actually challenged)

why the 40 year life span was necessary to render this renewable energy project financially

viable and how the life span here actually requires less government support than a shorter

life span. The 40 year life span is necessary on the unchallenged facts for the very purpose

of ensuring sustainable development. A development like this cannot be viewed as

sustainable development if having been built, it becomes financially unviable to operate.

That would then be liable to be described as an unjustified intervention into the environment

and an example of ignoring sustainability in planning. Indeed, the Notice Party reasoned

(and, again, this is not challenged) that the longer life span would enable increased

competitiveness at auction and ‘in turn lower the cost for the consumers of electricity in

Ireland.’ It is somewhat remarkable (if at least understandable, given that the Applicants

do not want the solar farm) that given the climate crisis that we all face, the Applicants

would champion the concept of proper planning and sustainable development to say all these

are unlawful considerations. The Board at paragraphs 39 to 42 of its Statement of Opposition

pleaded that the Board did not stray outside of its jurisdiction by considering the financial

viability of the project. The Board’s position as set out above comes within the Board’s

pleaded case.

Notice Party Position –

The Notice Party supports the position of the Board”

55. The basic reason why this point fails is that the applicants illogically divorce the concept of

proper planning and sustainable development from the financial and other logistics of carrying out

the project. If the terms of the permission are such that the project can’t viably be carried out then

the permission is not in accordance with proper planning and sustainable development. Those

concepts inherently involve consideration of what would actually be required for the project to take

place. The developer’s material as to its requirement as to what would support a more sustainable

project is totally unchallenged. The reasons are clear – any vagueness complaint is without merit.

Agreement with the developer’s justification or the council’s view is not a rubber stamp or anything

of the type. Acceptance of something by a decision-taker is not to be equated to a failure to exercise

one’s own mind.

56. The commission quite reasonably points out by way of context that the REDIII directive

(directive (EU) 2023/2413 of the European Parliament and of the Council of 18 October 2023

amending Directive (EU) 2018/2001, Regulation (EU) 2018/1999 and Directive 98/70/EC as regards

the promotion of energy from renewable sources, and repealing Council Directive (EU) 2015/652)

supports the concept of smoother procedures to extend existing renewable energy projects which

necessarily implies a more facilitating attitude to longer permissions in the first place.

57. Article 16(6) of the 2018 directive provides:

“6. Member States shall facilitate the repowering of existing renewable energy plants by

ensuring a simplified and swift permit-granting process. The length of that process shall not

exceed one year.”

58. Recital 40 of the 2023 directive provides:

“In order to further promote and accelerate the repowering of existing renewable energy

power plants, a simplified permit-granting procedure for grid connections should be

established where the repowering results in a limited increase in total capacity compared to

the original project. The repowering of renewable energy projects entails changes to or the

extension of existing projects to different degrees. The permit-granting procedure, including

environmental assessments and screening, for the repowering of renewable energy projects

should be limited to the potential impact resulting from the change or extension compared

to the original project.”

59. The notice party quite correctly sets out the policy and economic rationale for this condition

in its statement of opposition:

“60. In the present case, the PECR stated (§1.0, p.1):

‘The applicant for this development, BNRG, is an Irish developer and operator of solar

projects. BNRG are applying for the proposed solar farm to have planning permission that is

effective for 10 years (and an operational period of 40 years). The request for a 10-year

planning permission is based on the grid connection from EirGrid. Connection to the grid

will be subject to timeframes currently unspecified by EirGrid/ESB Networks for the provision

of a viable grid connection.

The request for an operational lifetime of 40 years will ensure that Mothel Phase 2 Solar

Farm can provide low-cost green energy to homes, businesses and farms in the region. The

new government Renewable Energy Support Scheme (RESS) seeks to provide price certainty

for projects through a competitive auction scheme which forms part of the Project Ireland

2040 strategy and the new Climate Action Plan 2023 which was launched on December 21st

2022 BNRG are seeking to make the solar farm as competitive as possible for the auction

and in turn lower the cost for the consumers of electricity in Ireland. By providing a 40-year

operational life for the site, BNRG can submit a more competitive support price by allowing

for a greater capacity to repay the finance required to construct the site. A site with a 35-

year operational life will require greater financial support from the government than one

with a 40-year operational life.

In similar jurisdictions and environments as Ireland where solar farms are now common, it

is now typical to be given a 40-year operational life term as part of the planning consent

process.’

61. The PECR then set out Ireland’s Climate obligations arising out of the Paris

Agreement and specific policy objectives contained in the Department of Communications,

Energy and Natural Resources White Paper on Energy and the Development Plan. The PECR

stated (p.2):

‘In 2017, Ireland imported approximately 66% of its energy needs from abroad. The

proposed project will help minimise the dependence on imported fossil fuels and will power

approximately 13,500 homes locally. This project will help contribute to develop a low

carbon economy and reduce our national dependence on fossil fuels to produce our electricity

and eliminate up to 580,000 tonnes of carbon dioxide emissions over its lifespan (40 years).’

62. The Council in the first instance granted permission for the Proposed Development

for an operational period of 40 years subject to Condition 5, which provided, inter alia:

‘(a) The permission shall be for a period of 40 years from the date of commissioning of the

solar array. The solar array and related ancillary structures shall then be removed unless,

prior to the end of the period, planning permissions shall have been granted for their

retention for a further period.

[…]

Reason: To enable the planning authority to review the operation of the solar farm having

regard to the changes in technology and design during this period and to ensure the

satisfactory reinstatement of the site.’

63. On appeal, the Board’s Inspector’s assessment of the construction and operational

periods was at §8.1.13.1 (p.43) and §8.1.13.2 (p.44). In the latter section, the Inspector

stated:

‘The applicant has applied for a planning permission for an operational period of forty years.

The applicant has stated that such an operational period will increase the economic viability

of the proposed development both for the project promoter and the government who may

be providing certain supports to the proposed development under the [Renewable] Energy

Support Scheme (RESS).

Notwithstanding the validity of this submission, consideration must be had to the wider

project and the operation period given planning permission at Mothel Phase 1 (ABP-304651-

19). In this instance, a twenty-five year operational period was permitted to enable the

planning authority to review the operation of the solar farm, having regard to the

circumstances then prevailing. To ensure appropriate coordination and orderly development

of the wider project, which will share a grid connection, an operational period of twenty-five

years would seem applicable in this instance. This would bring both Phase 1 and Phase 2

into temporal alignment.’

64. The Board, however, disagreed with its Inspector, favouring the reasoning of the

Council in the first instance. As recorded in a note to the Board’s Direction of 26 March 2024

(p.13):

‘The Board had regard to the application for inter alia an operational period of forty years.

While the Board noted the Inspector’s recommendation for a 25-year operational condition

in order to align with phase 1 development and enable the planning authority to review the

operation of the solar farm, the Board was satisfied with a 40-year operational timeframe

because the applicant had specifically applied for a 40-year permission for reasons of

economic viability, the necessity for alignment between phases was not sufficiently justified

in this instance, and the planning authority had originally approved the proposed

development for a 40-year period’.

65. The Board Order granted permission subject to a number of conditions, including

Condition 3, as follows:

‘(a) The permission shall be for a period of 40 years from the date of the commissioning to

decommissioning of the solar array. The solar array and related ancillary structures shall

then be removed unless, prior to the end of the period, planning permission shall have been

granted for their retention for a further period.

(b) Prior to commencement of development, a detailed restoration plan, including a

timescale for its implementation, providing for the removal of the solar arrays, including all

foundations, anchors, inverter/transformer stations, substation, CCTV cameras, fencing and

site access to a specific timescale, shall be submitted to, and agreed in writing with, the

planning authority.

(c) On full or partial decommissioning of the solar farm, or if the solar farm ceases operation

for a period of more than one year, the solar arrays, including foundations/anchors, and all

associated equipment, shall be dismantled and removed permanently from the site. The

site shall be restored in accordance with this plan and all decommissioned structures shall

be removed within three months of decommissioning.

Reason: To enable the planning authority to review the operation of the solar farm over the

stated time period, having regard to the circumstances then prevailing, and in the interest

of orderly development.’

66. Insofar as this is alleged (§E.18), it is denied that, in relation to a renewable energy

project, considerations of financial viability are irrelevant or not material to consideration of

the proper and, in particular, sustainable development of the area. The Developer will

submit that renewable energy development that is not financially viable is not sustainable.”

60. This all reinforces the basic point that for a project to be sustainable it has to be capable of

being implemented in an economic, viable and workable manner. Any theory to the contrary files

in the face of common sense at best, and touches down from such a flight in the outer suburbs of

frivolity at worst. The applicants characterised the commission as facilitating the “late-stage

capitalist era” here, but that isn’t a legal ground to impugn the decision. Anyway, as the developer

devastatingly replied, “it remains to be seen ... whether it’s late stage”. I am not sure that all this

needs a reply from me, but if it does, what is clear is that the Constitution, the EU treaties and the

ECHR are instruments for a market economy, albeit one that also involves a strong public sector and

social role, so facilitating developers in making their projects economically viable is not an irrelevant

consideration when it comes to the detail or duration of a development consent, subject to the

overall statutory framework.

Core ground 5 – further information

61. Core ground 5 is:

“5. The impugned decision is invalid and was made contrary to fair procedures and the

Board failed to consider matters that it ought to have considered and gave no proper reasons

for failing to seek further information in the form of an Architectural Heritage Impact

Assessment as requested by the Conservation Officer of the County Council and or an

updated habitat and botanical survey, given that the habitat and botanical survey was

conducted at the wrong time of the year for some species. Further, the Board failed to

properly consider the likely noise impacts at the homes of the Third and Fourth Applicants

because there was no background noise measurement or proper night time noise impact

assessment made in the location of either home. Further particulars are set out in Part 2

below.”

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

“CORE GROUND E5

Applicant’ Position –

1. The nearby village of Clonea Power is of architectural significance. The Conservation

Officer of the County Council recommended further information in the form of an

Architectural Heritage Impact Assessment, a requirement of government guidelines issued

under s.28 of the Planning and Development Act, 2000, as amended. An Architectural

Heritage Impact Assessment was not sought. The developer’s photomontages do not include

a View Point in the village. The Inspector’s own photographs prepared for the Board do not

include the images from the village of Clonea Power. In the absence of an Architectural

Heritage Impact Assessment, the Board had insufficient information before it to enable it to

consider properly or at all the impacts on architectural heritage.

Board’s Position –

1. The premise of this aspect of the case is misplaced. There is no requirement for an

AHIA as is now alleged (and it is simply wrong to say s.28 guidelines made this a

‘requirement’ – that is a contradiction in terms). In this case, the Board was fully entitled

to proceed on the information it did given the examination carried out by the Inspector which

included a reasoned explanation as to why the Archaeology and Cultural Heritage Impact

Assessment (‘ACHIA’) submitted by the Notice Party coupled with the LVIA was sufficient for

the purposes of this aspect of the assessment. the approach of the Inspector and the Board

in addressing the issue was not unlawful and notably was consistent with the approach taken

by the planning authority at first instance. The ACHIA, in the view of the Inspector and

Board coupled with the LVIA was sufficient and that was a decision for the Board. Whereas

this amounts, in fact, to a disagreement with the Conservation Officer of the planning

authority (which the planning authority also disagreed with in not seeking the AHIA as

requested), that is a disagreement the Board was lawfully allowed to have and this Court

has rejected a very similar point in 100 Meter Tall Group & Ors v An Bord Pleanála [2025]

IEHC 42 at §80-83 regarding a radar impact assessment.

Notice Party Position –

The Notice Party supports the position of the Board and adds the following observations.

The Board was entitled to determine whether further information was required or whether

sufficient information was before it in order to make a decision. The adequacy of information

before it is a matter for the Board and is within its particular expertise (Coyne v. ABP [2023]

IEHC 412, §414, quoted with approval in St Margaret’s Recycling and Transfer Centre Ltd v.

ABP [2024] IEHC 94, §§72-73). The Applicants have not alleged that the Board acted

irrationally, nor is that case made out. Rather, the Applicants are seeking to launch an

impermissible merits-based challenge on the decision.”

63. The basic reason why this point fails is that whether and to what extent further information

was required was a merits judgement. The applicants haven’t demonstrated that to be unlawful.

The fact that the conservation officer thought that further information should have been sought is

something that no doubt should normally command respectful attention and serious consideration,

and the safest course is normally to follow such conservation advice. But the commission isn’t

absolutely obligated to follow the safest course, provided that in differing it complies with all

applicable legal norms such as reasons and having a sustainable chain of logic. The failure to agree

with a council doesn’t give rise to a position where the court can automatically impose that by order

in the absence of some identifiable legal breach, even acknowledging that there is a sense in which

disagreeing with conservation expertise is something a decision-taker does very much at her own

risk.

64. As regards reasons in particular this is clear – the inspector looked at what the developer

submitted and held that it was satisfied to proceed without further information. For example, the

complaint of non-consideration of visual impact on the Clonea ACA is unsustainable – see para.

8.1.8.4. The inspector’s report also has to be read in the context of the background material which

supplies reasons in more detail where such material is being accepted. The Architectural Heritage

Guidelines are not mandatory – the standard is a have-regard-to obligation under s. 28. The context

was the view being taken that there simply weren’t any impacts. Even at its closest point, the ACA

is 450 m away from the development site. Further assessment wasn’t going to change that.

EU law issues

Core ground 7 – alleged inadequate AA

65. Core ground 7 is:

“7. The impugned decision is invalid because it contravenes Article 6(3) and Article 12

of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and

of wild fauna and flora (‘the Habitats Directive’) as transposed by s. 177U and s. 177V of

the Planning and Development Act 2000, as amended, and in accordance with the case law

of the CJEU by:

• failing to carry out an Appropriate Assessment without lacunae and which contains

complete, precise and definitive findings and conclusions capable of dispelling all reasonable

scientific doubt as to the effects of the proposed works on the conservation of the Otter and

the Freshwater Pearl Mussel in the Lower Suir SAC; and

• failing to identify and examine the implications of the proposed project for the Otter

species to be found outside the boundaries of the SAC where those implications are liable to

affect the conservation objectives of the SAC. Case 461/17 Holohan; and

• failing to ensure that there is in place a system of strict protection for the Otter in

its natural range, prohibiting deliberate disturbance of this species, particularly during the

period of breeding, rearing, hibernation and migration and or deterioration or destruction of

breeding sites or resting places and in placing reliance on a future art. 16 derogation, failed

to consider if there is a satisfactory alternative or if such a derogation would be detrimental

to the maintenance of the populations of Otter at a favourable conservation status in their

natural range Further particulars are set out in Part 2 below.”

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

“CORE GROUND E7

Applicant’ Position –

21. The applicants plead that there are lacunae in the appropriate assessment with regard

to the conservation of the FPM and the appropriate level of mitigation and that there is

remaining scientific doubt. The Otter and Freshwater Pearl Mussel are qualifying interests

of the Lower River Suir SAC. In the context of an Appropriate Assessment (AA) under Art.

6(3) of the Habitats Directive, the Inspector omitted a portion of unknown length of their

report concerning the Otter: ‘An otter slide was found within the site a[blank].’ This omission

was not addressed by the Board in its decision. The position adopted in the Board’s

Statement of Opposition relies on the hearsay averment of the Board’s deponent who avers:

‘I am informed by the Inspector that there is a typographical error at page 53 of the

Inspector’s Report where the letters and symbol “a” were mistakenly included at the end of

the sentence ‘an otter slide was found within the site’. With respect, this explanation seems

unlikely. There is no full stop after the word ‘site’ in the Inspector’s partial sentence /

missing segment of the report, which would need to be the case for the Board’s contention

to be true. It seems more likely that the missing segment was meant to include an

explanation of the location of the otter slide and its significance. Further, the Applicants

argue that the developer’s Natura Impact Statement (‘NIS’) raises noise as a likely impact

on the otter, but it has not been stated in the NIS how otters are to be protected from noise.

The developer’s NIS was reviewed by Freshwater Pearl Mussel expert Dr Evelyn Moorkens

who found the information therein concerning the impacts on the species to be ‘woefully

inadequate from a Margaritifera perspective, is in no way precautionary, and is not in

keeping with the Conservation Objectives for Margaritifera in the Clodiagh River population,

or the CEN standard for Margaritifera.’

Board’s Position –

1. There are either factual errors or factual omissions in the above. First, the Board’s

papers have explained the textual error in the report. The Applicants’ assertions that the

explanation seems unlikely and that the missing segment was meant to include an

explanation of the location of the otter slide is purely speculative. There is no dispute but

that an otter slide was found on the site. It is so described in the PECR (see p.59 onwards)

and NIS (see pp.46-47). However, and whereas an otter slide was noted within the

development site, the PECR set out in considerable detail that the risk of disturbance to the

otter was, in turn, associated with the presence of holts of which none were found (see

p.70). That is the context within which one must view the possible impact of disturbance

from noise. In any event, the Inspector at §8.3.2.1 (p.62) in his first report described the

mitigation in relation to noise which had been set out otherwise than in the NIS and

recommended all that be implemented so as to further mitigate any potential impacts that

may arise to relevant species that may use the site ‘in particular otters.’ So, in reply to the

direct text above that ‘but it has not been stated how otters are to be protected from noise’

– it has.

2. It is noted that no complaints are maintained based on Article 12 or 16 of the

Habitats Directive regarding the Otter.

3. As to the Freshwater Pearl Mussel, whereas Dr. Moorken’s report was included in

one of the appeals to the Board, that, of itself does not mean the Board’s conclusion was

reached unlawfully. The contents of that report were carefully addressed by the Inspector

and, further, by Dr. Flynn, ecologist, who was appointed by the Board and then addressed

by the Board in the conclusions it reached on the basis of that evidence. The concerns raised

were dealt with and no gap or lacuna exists.

4. Simply because experts disagree does not mean an AA cannot be done, but the

Applicants’ case seems to mean that the only valid AA is one their expert agrees with, which

is simply untenable; see Environmental Trust Ireland v. An Bord Pleanála [2022] IEHC 540

(Unreported, High Court, 3rd October 2022) at §264 and Eco Advocacy v An Bord Pleanála

[2025] IEHC 15 at §103-105. In any event, if this a case of where (as the Applicants put

it) the Board has preferred one expert over another, then the principles in Eco Advocacy v

An Bord Pleanála [2025] IEHC 15 at §101-§102 arise and the Applicants need to have

brought something else into the litigation and the Court by way of evidence as is outlined

therein which simply has not occurred here.

Notice Party Position –

The Notice Party supports the position of the Board and adds the following observations.

The typographical error relating to otter is of no significance.

Noise impacts were fully addressed when the material before the Board is considered

holistically. There is in any event no evidence that noise from the Proposed Development

would in fact give rise to any significant impact on otter and if there was an error on the part

of the Board (which is denied), it falls into the category of harmless error in respect of which

relief should be refused (see Massey v. ABP (No.2) [2025] IEHC 206, §166, where the

principles are summarised).

Regarding freshwater pearl mussel, the Applicants’ case mistakenly proceeds on the basis

that the expression of doubt by a scientist means, ipso facto, that the standard of scientific

certainty cannot be met. This is not the law. The burden of proving the existence of scientific

doubt remains on the Applicants and they have failed to discharge it.

To the extent that any Article 12/16 issue is maintained, the Applicants are in fundamental

error in contending that the Board placed ‘reliance on future derogation licences to allow

disturbance of the otter species’ (SOG §E.48). There was no such reliance, in circumstances

where no otter holts or rests were found on the site.”

67. A typographical error is not a basis to quash an otherwise valid decision save in exceptional

circumstances which don’t apply here. To dole out certiorari on that basis would be to bring the law

into disrepute. Immaterial errors are not a basis for relief – that isn’t new.

68. As regards the merits of the appropriate assessment (AA), the burden of proving that the

AA was defective rests on the challenger.

69. In relation to the claim that it has not been stated in the Natura impact statement (NIS)

how Otter are to be protected from noise, the onus remains on the applicants to show that a

reasonable expert would have seen the NIS as defective in this respect. The applicants haven’t done

that. A court can’t simply pick up an NIS or other material and say that there is a flaw, save where

the flaw can be seen clearly without special knowledge. In essence the applicants read the comment

about noise in isolation from the conclusions of the NIS. That isn’t a correct procedure in the absence

of expert evidence to the effect that a reasonable expert would have seen the material as flawed on

its face. Indeed on the contrary, as the board points out (submissions, para. 42), “Dr. Moorkens

raised no issues regarding the Otter”. On the merits, the noise impact issue is in fact answered

because, as the board points out:

(i) at p. 70 it was recognised that disturbance may occur within 150 m of any holts at

which breeding females and cubs are present, but no holts were in fact found; and

(ii) the planning and environmental considerations report (PECR) said with construction

taking place during the day, significant disturbances for nocturnal animals such as

the Otter would not take place.

70. Effects on Otter of sediment run-off is expressly addressed – this isn’t challenged.

71. As regards the view of Dr Moorkens that the NIS was flawed in respect of Margaritifera

(Freshwater Mussels, specifically the Freshwater Pearl Mussel), she hasn’t sworn an affidavit in this

case. Her views were put before the board which then commissioned its own ecologist, Dr Maeve

Flynn, to prepare a report which summarises her views (see p. 5) and responds to them, giving

reasons for so doing. If an applicant wants to displace such reasoning, she needs to produce

admissible and normally expert evidence in that regard absent a flaw on the face of the material or

breach of an autonomous duty, none of which is demonstrated. There is no gap which can be

identified by the court without special knowledge. The fact that the inspector recommended

enhanced mitigation measures doesn’t mean that Dr Flynn was somehow incorrect.

72. Points about strict protection and derogation licences were made but not pressed particularly

strongly, and similar points have been rejected in previous caselaw anyway (see e.g. Save Roscam

Peninsula CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024)).

73. Contextually, art. 16b(2) of directive (EU) 2018/2001 of the European Parliament and of the

Council of 11 December 2018 on the promotion of the use of energy from renewable sources

inserted by the REDIII directive provides:

“2. Where an environmental assessment is required pursuant to Directive 2011/92/EU or

92/43/EEC, it shall be carried out in a single procedure that combines all relevant

assessments for a given renewable energy project. When any such environmental impact

assessment is required, the competent authority, taking into account the information

provided by the project developer, shall issue an opinion on the scope and level of detail of

the information to be included by the project developer in the environmental impact

assessment report, of which the scope shall not be extended subsequently. Where a

renewable energy project has adopted necessary mitigation measures, any killing or

disturbance of the species protected under Article 12(1) of Directive 92/43/EEC and Article

5 of Directive 2009/147/EC shall not be considered to be deliberate. Where novel mitigation

measures to prevent as much as possible the killing or disturbance of species protected

under Directives 92/43/EEC and 2009/147/EC, or any other environmental impact, have not

been widely tested as regards their effectiveness, Member States may allow their use for

one or several pilot projects for a limited time period, provided that the effectiveness of such

mitigation measures is closely monitored and appropriate steps are taken immediately if

they do not prove to be effective.”

74. This doesn’t seem to have been transposed so far as researches of the parties are concerned

as of the date of the hearing – that needs urgent attention in order to ensure compliance with EU

law.

Core ground 8 – lack of EIA screening determination

75. Core ground 8 is:

“8. The impugned decision is invalid in that it contravenes art 103(1B)(b) of the Planning

and Development Regulations 2001 and the EIA Directive as amended because the Board

failed to make a screening determination for an Environmental Impact Assessment for (i)

private roads within the development, (ii) a project for the restructuring of a rural land

holding within the meaning of Annex II paragraph 1(a) of the EIA Directive Part 2 (1)(a) and

or Schedule 5 of the Planning and Development Regulations, 2001, as amended, (iii)

industrial installations for the production of electricity, steam and hot water (projects not

included in Annex I), the undefined grid connection, (iv) transmission of electrical energy by

overhead cables (projects not included in Annex I), (v) urban development projects within

the meaning of Annex II of the EIA Directive. Further particulars are set out in Part 2 below.”

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

“CORE GROUND E8

Applicant’ Position –

1. The Applicants plead that the impugned decision is invalid in that it contravenes art

103(1B)(b) of the Planning and Development Regulations 2001 and the EIA Directive as

amended because the Board failed to make a screening determination for an Environmental

Impact Assessment for:

• circa 3,500 metres of private roads within the development,

• industrial installations for the production of electricity, steam and hot water (projects

not included in Annex I),

• the undefined grid connection,

• transmission of electrical energy by overhead cables (projects not included in Annex

I)

• urban development projects.

2. The private roads are clearly identified on the site layout drawings, are to be a

permanent feature in the landscape, and are indicated as such on the mitigation and

restoration drawing of the site for 40 years after the commencement of operations. In

October 2024, the European Commission published guidelines ‘Interpretation of definitions

of project categories of annex I and II of the EIA Directive’ which confirm that solar

installations should be considered as falling under the category Annex II (3)(a) of the EIA

Directive Industrial installations for the production of electricity, steam and hot water

(projects not included in Annex I). The Inspector and the Board had no information before

it at all about the nature and location of the grid connection save a bald assertion that it

would be ‘undergrounded’. The threshold for which a mandatory EIA is required under the

domestic transposition in Class 10(b)(iv), Part 2 to Schedule 5 of the PDA 2001 (Urban

development) is 20 hectares when outside of a ‘built up area’. The site of the proposed

development is not in a built up area, hence the 20ha threshold applies. The development

scale of 141 hectares is significantly above the threshold.

Board’s Position –

1. These are not private roads. There is, in principle, a distinction between a ‘road’

(either private or public) and a track of the nature here which, whereas grounded on sub-

base is covered by a loose gravel or dust. Again insofar as the Applicants rely on the use of

the term ‘roads’ on drawings as proof of their point, by the same token the references to

same (all of which are catalogued by the Notice Party in its Statement of Opposition at §148-

161) otherwise than as roads are more probative and more in keeping with the fact of same

being gravel access tracks. In real terms, nothing that remotely attracts the label of a “road”

for any serious legal discussion is something like this, built purely for access and, in this

case, covered with a gravel or quarry dust top. Further, if the Board is incorrect in this

respect, it remains that the Applicants must still be entitled to certiorari to quash the Board

Decision and in the absence of any evidence on the alleged environmental effects of same

in the context of where the Notice Party has, in fact, provided details on the construction

methods of same and where the Board Inspector has – with regard to the actual proposed

development – concluded that there would be no significant effects on soil or water (see

§8.1.10) and that run off from pollutants or sediment were ‘comprehensively mitigated’ (see

§8.1.9) and where, indeed, out of an abundance of caution the Inspector actually reached a

conclusion (on the basis of a concern about the project involving a PRRL) on likely significant

effects on the environment at §8.2, on the facts of the present case, the Notice Party’s

pleading at §168 that any error here is in the category of ‘harmless error’ on the very specific

facts of this case and the facts of this specific analysis by the Inspector as against the wealth

of information provided in the PECR is apt and correct.

2. Regardless of the non-binding text in the aforesaid Commission document, a solar

farm is not a ‘industrial installation for the production of electricity, steam and hot water’

and the analysis in Kavanagh v. An Bord Pleanála [2020] IEHC 259 at §§15-41 is directly on

point here as is Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024]

IESC 28 at §§61-76.

3. It remains unclear how it is alleged that a grid connection renders the solar farm an

EIA project. In any event, the reasoning in Concerned Residents of Treascon and

Clondoolusk v An Bord Pleanála [2024] IESC 28 at §§61-76 is on point – one does not work

backwards to widen the definition of projects, so even if a grid connection was an EIA project,

it does not follow that anything it connects to is an EIA project requiring that to be the

separate and independent focus of EIA functions.

4. Again, with regard to transmission of electrical energy by overhead cables, it is not

clear what is being argued and the point made above about the grid connection is relied on.

5. This is not an urban development project and the reasoning in Reid v. Bord Pleanála

(No.5) [2022] IEHC 687 at §§96-105 and Ryan v. Bord Pleanála [2025] IEHC 111 at §§168-

219 is relied on here.

Notice Party Position –

The Notice Party notes the Board’s adoption of its plea at §168 of its Statement of Opposition.

The Inspector and the Board did in fact carry out a screening exercise in respect of the

Proposed Development. This was done on the basis that the Proposed Development might

constitute a project for the restructuring of rural landholdings undertaken as part of a wider

proposed development (see Inspector’s first report, §8.2.4, p.50 et seq.). It was concluded

that it was unlikely that there would be significant effects on the environment arising from

the Proposed Development (p.52). In these circumstances, if (which is denied) the Board

erred in not subjecting the application to screening as falling within one of the pleaded

classes, this falls within the category of harmless error in respect of which no relief should

be granted, as there is no basis – and, more importantly, no evidence – for supposing that

a different screening outcome would have been reached, had the application been screened

on the basis that it fell within a different development class. That is to say, there is no

evidence of likely significant effects on the environment.

The Notice Party supports the position of the Board and adds the following observations.

Any conflict of evidence in relation to the private roads issue must be resolved against the

Applicants, who have not sought to cross-examine the Notice Party’s expert, John O’Flaherty,

on his evidence (see RAS Medical Ltd v. RCSI [2019] IESC 4; Eco Advocacy [2025] IEHC

§96(vi)).

No particulars whatsoever are offered in respect of the class of ‘industrial installations for

the production of electricity, steam and hot water’. In these circumstances, the Notice Party

objects to the Applicant’s attempt to make a case based on this class, as the pleadings are

not in compliance with Order 84, rule 20(3) RSC. There is no attempt made to explain why

or on what basis the Proposed Development should be treated as within this class. The

Applicants are not now permitted to make or to expand this case in reliance on ‘facts or

matters’ that were never pleaded. This includes the Commission Guidance of October 2024.

In any event, the Proposed Development is not within this class, for the reasons given by

the Board.

On the evidence before the Board, the grid connection will not be by means of overhead

cables. The Applicants’ case proceeds on the basis of an erroneous factual (or hypothetical)

premise.

This is not an urban development project, as it is utterly dissimilar to the types of such

project recognised in the EIA Directive.”

77. The complaint about EIA can be divided on a rather utilitarian basis as follows:

(i) issues other than roads, which can be dealt with briefly; and

(ii) roads.

Issues other than roads

78. The claim that this is urban development, an industrial installation or electricity line (pleaded

scenarios (iii)-(v)) is totally implausible: see analogously Reid v. Bord Pleanála (No. 5) [2022] IEHC

687 (Unreported, High Court, 9 December 2022), Ryan v. Bord Pleanála [2025] IEHC 111

(Unreported, High Court, Holland J., 27 February 2025). The inclusion of incidental features in a

particular application doesn’t turn one type of project into another. On the facts, this is a solar farm

which is not an EIA project – something that has been emphasised numerous times in the caselaw

(see below).

79. Peculiarly, despite not pleading that solar farms are EIA projects, the applicants sought a

reference to the CJEU on that issue.

Suggested reference to the CJEU on issue of solar farms

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

“1. If this Honourable Court forms the view that it is not acte clair whether solar farms

of the type and scale proposed in this development by themselves require EIA, the Applicants

will welcome a Preliminary Reference under Art. 267 of the TFEU to clarify this significant

question, along the lines of the following:

Is Article 16c(3) and Article 16d(1) of Directive (EU) 2018/2001 as amended by Directive

2023/2413 of 18 October 2023 (‘the recast Renewable Energy Directive’), to be interpreted

as meaning that a Solar Installation is or may be a project within the meaning of Directive

2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the

assessment of the effects of certain public and private projects on the environment.

Board Position

1. There is, in fact, nothing at all alleged thus far in the written submission or even in

the pleadings about the relevance of 16c(3) and Article 16d(1) of Directive (EU) 2018/2001

as amended by Directive 2023/2413 of 18 October 2023. A new case cannot be introduced

at this point in this way. In any event, in circumstances where this is an unchallenged

conclusion by the Inspector on the facts that it would be unlikely that there would be

significant effects on the environment and where there is no challenge to the evidence from

the Notice Party supporting that conclusion, the reality and factual sustainability of such a

reference is lacking.

Notice Party Position –

The Notice Party supports the position of the Board.”

81. There are two insuperable problems with such a reference. The first problem is that the

opposing parties are obviously correct – this is a complete non-starter because this was not a

pleaded contention.

82. In any event, the second problem is that there is a consistent body of law that a solar farm

is not an EIA project (Sweetman v. An Bord Pleanála [2020] IEHC 39 (Unreported, High Court,

McDonald J., 31 January 2020) at §§45-48 and Kavanagh v. An Bord Pleanála [2020] IEHC 259

(Unreported, High Court, O’Moore J., 29 May 2020) at §31 and §39, and Concerned Residents of

Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray

J., 4 July 2024)). The applicants haven’t demonstrated any plausible doubt about that. In the

absence of either any inherent logic or any contrary relevant material from anywhere in the EU or

even former member states, the point would be acte clair against the applicants even if it didn’t fall

outside the pleadings.

83. For either or both reasons the proposed reference to the CJEU by the applicants would not

be “necessary” within the meaning of art. 267 TFEU. And indeed for the first reason it would be

inadmissible as it does not relate to anything the court can properly decide.

Roads

84. The factual context is that the project envisages 3.5 km of private access tracks, which the

applicants describe as private roads.

85. If they count as roads, they are above EIA thresholds. Schedule 5 part 2 para. 10(dd)

(inserted by art. 7 of Planning and Development Regulations 2008 (S.I. No. 235 of 2008)) includes

as supra-threshold projects:

“All private roads which would exceed 2000 metres in length.”

86. This was inserted following proceedings in the judgment of 16 July 2009, Commission of the

European Communities v Ireland, C-427/07, ECLI:EU:C:2009:457:

“43 Among the projects subject to Article 4(2) of Directive 85/337 as amended by

Directive 97/11, point 10(e) of Annex II to that amended directive refers to ‘construction of

roads’.

44 In that regard, by subjecting private road construction development to an

environmental impact assessment only if that development formed part of other

developments coming within the scope of Directive 85/337 as amended by Directive 97/11

and themselves subject to the assessment obligation, the Irish legislation, as applicable

when the time-limit set in the reasoned opinion expired, meant that any private road

construction development carried out in isolation could avoid an environmental impact

assessment, even if the development was likely to have significant effects on the

environment.

45 It should also be pointed out that a criterion relating to the private or public nature

of the road is irrelevant as regards the applicability of point 10(e) of Annex II to Directive

85/337 as amended by Directive 97/11.”

87. Article 103(1B) of the 2001 regulations, which is the pleaded clause, provides (emphasis

added):

“(1B) (a) Where a planning application for subthreshold development is not accompanied

by an EIAR but is accompanied by the information specified in Schedule 7A and sub-article

(1A), or where an applicant submits to the planning authority such information pursuant to

a requirement issued under sub-article (1)(b)(ii), the planning authority shall carry out an

examination of, at the least, the nature, size or location of the development for the purposes

of a screening determination.

(b) The planning authority shall make a screening determination and—

(i) if such determination is that there is no real likelihood of significant effects on the

environment arising from the proposed development, it shall determine that an EIA

is not required, or

(ii) if such determination is that there is a real likelihood of significant effects on the

environment arising from the proposed development, it shall—

(I) determine that the development would be likely to have such effects, and

(II) by notice in writing served on the applicant, require the applicant to

submit to the authority an EIAR and to comply with the requirements of

article 105.”

88. Thus the whole pleaded argument is premised on a statutory provision that applies only to

sub-threshold development. There are only two scenarios:

(i) if this is not a road, then the whole objection never arises in the first place; and

(ii) if this is a road, then it isn’t sub-threshold development – 3.5 km is larger than 2

km.

89. So the pleaded case fails either way – “unfortunately”, as the commission cuttingly put it in

submissions. An applicant is strictly confined to the pleaded case – see caselaw referred to above.

90. However I will go to consider the point in case I am wrong about that.

91. Hickwell v. Meath County Council [2022] IEHC 418 (Unreported, High Court, 12 July 2022)

addressed the question of what is a street. The answer was primarily an urban rather than a rural

road (recognising that there are semantic exceptions like Watling Street).

92. But what is a road? There are three possible answers – by virtue of the ordinary meaning,

the Roads Act 1993 or directive 2011/92/EU of the European Parliament and of the Council of 13

December 2011 on the assessment of the effects of certain public and private projects on the

environment (the EIA directive) and transposing legislation.

93. As regards ordinary meaning, the concept of a road needs to be considered by reference

to a hierarchy of roads. Our ancestral scholars had their own hierarchy related to the width of the

road:

“The bóthar was one of several types of road mentioned in medieval Irish manuscripts,

others being slige (on which two chariots could pass), rót (on which one chariot and two

riders could pass), lámraite (a road connecting two major roads) and tógraite (a road leading

to a forest or a mountain).” (https://spreadingthewords.ie/10-words/bo/)

94. A modern road hierarchy could be described as follows (no doubt there could be various

systems but the following seems to me to make most sense):

(i) European road (international or cross-continental);

(ii) other motorway;

(iii) express road/ national road;

(iv) regional road;

(v) local/unclassified road;

(vi) urban street;

(vii) way for pedestrian or non-vehicular traffic e.g. bridle path, cycleway, pavement;

(viii) primitive road (e.g. farm/forest track); and

(ix) way worn by passage rather than intentional improvement, such as a desire line.

95. The central meaning of road in its vernacular meaning is at points (i) to (v) which would be

regarded as roads in almost all situations. In some situations the lesser categories could be in or

they could be out.

96. If he will forgive me, the applicants’ counsel Mr Bland has to be credited with a particular

genius for definition, and his proposed wording was that a road is “a way across land improved for

travel”, which would cover (i) to (viii).

97. That said, the applicants did draw attention to the Robert Frost poem “The Road Not Taken”

(“A Group of Poems”, The Atlantic Monthly (August 1915)

(https://www.theatlantic.com/magazine/archive/1915/08/a-group-of-poems/306620/)) (an

ambiguous poem which retains the power of its first reading – take your own path even if less

travelled – but adds layers of comfort on re-reading to those who prefer what is more-travelled) in

which a path through a wood is equated to a “road”. What made this so-called road? “[A]s for that

the passing there/ Had worn them really about the same”. So a way made by the human foot as

opposed to the human hand (category (ix) – the desire line) can properly be called a “road”, at least

on a Frostian interpretation.

98. Ordinary meaning only takes us so far because words can be defined to mean anything by

statutory provisions (normally drafters try to keep this within reasonable bounds – they certainly

should do so as a matter of professional self-respect and in keeping with rule of law principles of

reasonable comprehensibility of legislation). We turn then to the definitions in the 1993 Act.

That is relevant because the 2000 Act defines the term thus:

“‘road’ has the same meaning as in the Roads Act, 1993;”

99. The 1993 Act defines road widely:

“‘road’ includes—

(a) any street, lane, footpath, square, court, alley or passage,

(b) any bridge, viaduct, underpass, subway, tunnel, overpass, overbridge, flyover,

carriageway (whether single or multiple and whether or not designated for a particular class

of vehicle), pavement or footway,

(c) any weighbridge or other facility for the weighing or inspection of vehicles, toll plaza or

other facility for the collection of tolls, service area, emergency telephone, first aid post,

culvert, arch, gulley, railing, fence, wall, barrier, guardrail, margin, verge, kerb, lay-by, hard

shoulder, island, pedestrian refuge, median, central reserve, channelliser, roundabout,

gantry, pole, ramp, bollard, pipe, wire, cable, sign, signal or lighting forming part of the

road, and

(d) any other structure or thing forming part of the road—

(i) used, or the use of which is reasonably required, for the safety, convenience or

amenity of road users or for the construction, maintenance, operation or

management of the road or for the protection of the environment, or

(ii) prescribed by the Minister;”

100. The 1993 Act does not distinguish between private and public roads for the purposes of the

definition of road. However, it defines “public road” separately:

“‘public road’ means a road over which a public right of way exists and the responsibility for

the maintenance of which lies on a road authority;”

101. As can be seen from for example the inclusion of footpaths, the use of vehicles is not

definitional for the purposes of a road – a road can be for use by cyclists, pedestrians, or persons

transporting themselves by other means on land.

102. The 1993 Act covers pretty much everything in the applicants’ definition of road and may

even include the maximalist Frostian definition.

103. Such a wide definition would answer the notice party’s objection:

“94. To the extent that there is a conflict of evidence on this issue, the Applicants have

failed to apply for leave to cross-examine John O’Flaherty on his affidavit. As the Applicants

continue to bear the burden of proof on any contested factual question relevant to

determining whether the access tracks proposed as part of this development qualify as

‘roads’, any such question must be resolved against them (see RAS Medical Ltd v. RCSI

[2019] IESC 4; Eco Advocacy [2025] IEHC §96(vi)).”

104. If the governing provision is the 1993 definition, then even primitive roads or access tracks

of the type described by the notice party would qualify. The opinions of the notice party’s deponents

are not particularly relevant and do not appear even admissible in this context insofar as they go

beyond describing the ways and start categorising them as roads. There is in fact no dispute about

the facts as to the structure of the primitive roads here – the real issue is a legal one as to whether

that comes within the definition of “road”. So are we to conclude that the board erred in failing to

consider EIA of the roads here? Not so fast.

105. Rather than consider the meaning of “road” generally in the 1993 and 2000 Acts, we need

to consider the third context of interpretation – that of the meaning assigned by the EIA

directive and transposing legislation.

106. As noted above, it is a general interpretative principle (oddly not expressly set out in the

Interpretation Act 2005 but maybe the legislature can rectify that in due course) that the

interpretation of transposing legislation must have regard to the meaning of the transposed

provision.

107. The 2000 Act specifically says this in s. 2(8):

“(8) Subject to this Act, a word or expression that is used in this Act and that is also used

in the Environmental Impact Assessment Directive has, unless the context otherwise

requires, the same meaning in this Act as it has in that Directive.”

108. We need to bear in mind the 2005 Act principle that words in instruments generally have

the meaning in the parent Act. Section 19 of that Act provides:

“19.—A word or expression used in a statutory instrument has the same meaning in the

statutory instrument as it has in the enactment under which the instrument is made.”

109. So sch. 5 of the 2001 regulations needs to be read in the light of s. 2(8) of the 2000 Act

insofar as relevant.

110. While Carvill v. An Bord Pleanála [2025] IECA 84 (Unreported, Court of Appeal, Barniville P.,

Collins and Faherty JJ., 11 April 2025) is not directly on point, it certainly doesn’t support an

extensive interpretation of “road” for the purposes of the EIA directive.

111. Annex 1 of the directive includes:

“7. (a) Construction of lines for long-distance railway traffic and of airports(9) with a basic

runway length of 2 100 m or more;

(b) Construction of motorways and express roads(10);

(c) Construction of a new road of four or more lanes, or realignment and/or widening of an

existing road of two lanes or less so as to provide four or more lanes, where such new road

or realigned and/or widened section of road would be 10 km or more in a continuous length.”

112. Footnote 10 is:

“(10) For the purposes of this Directive, ‘express road’ means a road which complies with

the definition in the European Agreement on Main International Traffic Arteries of 15

November 1975.”

113. Annex 2 includes at para. 10:

“(e) Construction of roads, harbours and port installations, including fishing harbours

(projects not included in Annex I);”

114. Annex II para. I.1 of the 1975 agreement

(https://treaties.un.org/doc/Publication/UNTS/Volume%201302/volume-1302-I-21618-

English.pdf) provides:

“1.1. The fundamental characteristics of the construction or improvement of the main

international traffic arteries, hereafter designated ‘international roads’, are dealt with in the

following provisions, which are based on modern concepts of road construction technology.

They do not apply in built-up areas. The latter shall be by-passed if they constitute a

hindrance or a danger.”

115. What is critical here is that the term “road” in sch. 5 of the 2001 regulations has the meaning

of “road” in the EIA directive, not in the 1993 Act. The EIA directive meaning has to be influenced

by the following factors in particular in terms of text, statutory context and purpose:

(i) As regards the text, roads are defined as something constructed – ruling out the

expansive Frostian interpretation.

(ii) As regards the context, noscitur a sociis is a much misunderstood doctrine but it

is relevant here. The directive situates roads in the context of “harbours and port

installations”. Ports are obviously large infrastructural projects constructed by

extremely complex and sophisticated methods. Harbours can be small but they are

nonetheless significant pieces of infrastructure, constructed by sophisticated modern

methods. They are not primitive or rudimentary constructions.

(iii) The fact that the 1975 agreement is based on “modern concepts of road construction

technology” reinforces the forgoing, even bearing in mind that the immediate

context of that agreement relates to express roads.

(iv) That said, express roads are by definition limited to vehicles – there is no basis to

constrain the meaning of “road” generally in that way for EIA purposes. Similarly

express roads are multi-lane or at worst two-way – it would be an error to

extrapolate that to lower tiers of the roads hierarchy.

(v) As regards the purpose of the EIA directive, that purpose is to address projects

with significant effects on the environment. It is generally somewhat less likely

(although of course not impossible, as the applicants are keen to stress) that

rudimentary roads would have significant effects as compared with roads

constructed by modern and supra-rudimentary methods.

116. I would reject the opposing parties’ definitions insofar as they would require opposite

carriageways (a feature which underlies the term bóthar, the term for road (literally, cow-path),

which envisages bó thar bó – two cows being able to get across one another):

“In an Old Irish text which explains the meanings of words, it is claimed that a bóthar was

a track wide enough for two cows to pass.” (https://spreadingthewords.ie/10-words/bo/)

117. A road not wide enough for two cows is a bóthrín (boreen in English; literally, a little cow

path; effectively, a primitive road, possibly unpaved).

118. For the (surely unnecessary) avoidance of doubt, ancestral Irish thought-processes are

illuminative in terms of conceptualising the issues at a general level, but not of course directly

relevant to interpretation of the EIA directive. Returning to that directive, the imposition on the

concept of “road” a general requirement of two-way traffic is just too convenient and ad hoc, and

imports too much from the concept of express roads into that of roads generally. So I agree with

the applicants that two-way traffic is not a definitional requirement of a road.

119. A couple of final qualifications. A “road” inherently envisages travel on land, as opposed to

air, water or space. And roads are to be distinguished from rail (including light rail, maglev transport,

cable cars and similar technology) where the way for travel does not allow independent movement

of carriages. Roads also inherently come with ancillary infrastructure – a verge, railing, pole,

roundabout or ramp is in effect part of the road. Finally, as noted above, roads can be created for

pedestrians, animals (an example being a bridlepath for horses), mechanical vehicles, or non-

mechanical “vehicles” like bicycles.

120. The conclusion to be drawn from all of the foregoing is that the meaning of “road” in the EIA

directive and transposing legislation is a way (in one or more directions) over land for the

independent movement of persons, animals or vehicles (whether mechanically propelled

or otherwise), constructed by and finished with modern and more-than-rudimentary

methods, and including ancillary infrastructure.

121. Applying the foregoing here, the conclusion is that “road” in the EIA directive only covers

points (i)-(vii) in the hierarchy of roads above, not (viii) on a Blandian definition or (ix) on a Frostian

definition. So it doesn’t cover the access tracks in this case.

122. On the facts, and indeed on the applicants’ pleaded case, “a layer of geogrid or geotextile is

to be placed on the existing ground. This is to be overlain by 200 mm depth of Clause 803 or Clause

6F2 ‘Road Base’ layer which in turn is to be overlain by 100 mm depth of Clause 804 crushed rock,

which in turn is to be overlain by a road surface made from 50 mm depth of quarry dust” (sub-

ground 36). Such construction can perhaps be described in one sense as modern, but not

realistically as more than rudimentary when placed in the context of the overall roads hierarchy. A

track of crushed rock on a geotextile membrane, overlain with quarry dust, is well removed from

the concept of a modern paved or otherwise surfaced and finished way that can withstand regular

ongoing traffic. Whether one calls it crudely finished, primitive, or rudimentary doesn’t particularly

matter – there is a clear distinction between access tracks and roads, with the directive only applying

to the latter.

123. Given the language, context and purpose of the EIA directive, there is no inherent logic to a

more permissive definition. Furthermore the applicants haven’t produced any material from the EU

or judicial, official or academic sources in its member states or former member states that points to

an opposite conclusion. And indeed conjuring into existence such a more extensive definition would

re-write the directive by extending EIA requirements to numerous projects with internal access

routes that are not covered by the actual text – solar farms are a case in point, because it is inherent

in many developments that they have to have internal access routes. This would be creative re-

writing of the directive in favour of the applicants, in the guise of interpretation. So this point is, on

examination, acte clair against the applicants. But, as I say, none of this in any event properly

arises on the pleadings, which allege only a sub-threshold project, an argument that self-destructs

on take-off. An unpleaded point can’t be the basis of extensive (or, properly, any) further domestic

or European procedures.

Summary

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

(i) on the facts, the board did not fail to have regard to the development plan;

(ii) the economic viability of a project is not an irrelevant consideration in assessing the

conditions or duration of a permission;

(iii) on the facts, the board did not fail to consider the need for further information or

fail to give reasons in that regard;

(iv) on the facts, the applicants have not discharged the burden to show that the AA

assessment was flawed;

(v) on the facts, the claim that this is an urban development or other specified type of

EIA project is without merit;

(vi) it is settled law that a party is confined to its pleadings;

(vii) applying that here, the request for a reference on whether solar farms are EIA

projects is inadmissible as that is founded on an unpleaded point;

(viii) it is settled law that domestic law needs to be given an EU-conforming interpretation

if possible, and it follows that terms in domestic transposing legislation should be

construed consistently with the meaning of terms in the EU legislation which is

thereby transposed;

(ix) applying that here, terms in sch. 5 of the 2001 regulations have the meaning in the

EIA directive, not the meaning in s. 2 of the 2000 Act;

(x) the claim that EIA was required due to road construction is incorrect because “road”

in the EIA directive and sch. 5 of the 2001 regulations does not include primitive

roads such as farm or forest tracks; and

(xi) the applicants never get to that point anyway as the pleadings only complain of a

sub-threshold development which cannot arise on any interpretation (because if this

is not a road then EIA doesn’t arise and if it is a road then it is not sub-threshold).

Outstanding issues

125. For clarity, the position regarding the extent of disposition of the issues as of now is as

follows:

(i) core ground 1 – outstanding;

(ii) core ground 2 – outstanding;

(iii) core ground 3 – dismissed in this judgment (subject to any consequential issues that

may arise out of the disposition of core grounds 1 and 2);

(iv) core ground 4 – dismissed in this judgment (subject to any consequential issues that

may arise out of the disposition of core grounds 1 and 2);

(v) core ground 5 – dismissed in this judgment (subject to any consequential issues that

may arise out of the disposition of core grounds 1 and 2);

(vi) core ground 6 – deleted by applicants;

(vii) core ground 7 – dismissed in this judgment (subject to any consequential issues that

may arise out of the disposition of core grounds 1 and 2); and

(viii) core ground 8 – dismissed in this judgment (subject to any consequential issues that

may arise out of the disposition of core grounds 1 and 2).

Order

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

(i) subject to any consequential issues that may arise in the context of core grounds 1

and 2 when they are dealt with, the proceedings be dismissed in respect of core

grounds 3 to 5, 7 and 8;

(ii) costs be reserved;

(iii) the foregoing order not be perfected pending Module II (core grounds 1 and 2); and

(iv) the matter be listed on Monday 13 October 2025, to arrange for the hearing of

Module II on such date as may be fixed.