High Court refuses leave to quash CPO, dismissing judicial review application on procedural and substantive grounds.

THE HIGH COURT PLANNING & ENVIRONMENT [2025] IEHC 528 Record No: 2022/983 JR IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000 AND IN THE MATTER OF SECTION 78 OF THE HOUSING ACT 1966, AS AMENDED BETWEEN JOHN CLANCY AND SHEENA CLANCY APPLICANTS AND AN BORD PLEANÁLA, CLARE COUNTY COUNCIL, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS

JUDGMENT of Ms. Justice Emily Farrell delivered the 9th day of October 2025

Introduction

1. The Applicants’ family home and business premises in Ennistymon, Co.Clare are included in lands which are the subject of a Compulsory Purchase Order (“CPO”) made by Clare County Council on 12th June 2020 and confirmed by an Bord Pleanála on 20th September 2022, after an oral hearing.

2. The Applicants objected to the making of the CPO, entitled “N67/N85 Inner Relief Road, Ennistymon (Blake’s Corner) Compulsory Purchase Order 2020” and have sought leave to quash the CPO by way of judicial review and other orders. Very understandably they are deeply unhappy with the decision to confirm the CPO which applies to their family home, where they live with their young children, and the premises from which they have run a family flower shop for many years.

3. The purpose of the CPO is to enable the local authority to permanently acquire compulsorily, for the purposes of road construction and improvement comprising of development of an inner relief road in Ennistymon vehicle bridge crossing the Inagh/ Cullinagh River approximately 80 m upstream of the existing bridge. The CPO, as made by the County Council, states that the development includes the pedestrianisation of the existing bridge, among other works. Prior to the making of the CPO, the Council had made a decision under Part 8 of the Planning and Development Regulations 2001 in respect of works including the construction of the inner relief road and construction of a bridge crossing the Inagh / Cullinagh River. That decision was made on 9th April 2018 and is unchallenged. The Applicants state in their written submissions that the altered development proposal was relied upon in the decision under Part 8. The Council’s decision under Part 8 was preceded by decisions of the Board dated 5th October 2016 that a full EIA and Natura Impact Statement were not required (ABP 03.HD0037 and 03.JM0013). The EIA Screening Report refers to pedestrian enhancements on the Michael Conway Bridge. Those decisions, which considered the original proposal, were not challenged.

4. These proceedings were issued on 14th November 2022. An Amended Statement of Grounds was filed on 12th January 2023, pursuant to the Order of Humphreys J. made the 14th November 2022 allowing the amendment. There have been two contested applications relating to costs protection orders, which have resulted into in written judgments by Humphreys J. ([2023] IEHC 233 and [2023] IEHC 464). Meenan J. directed that the application for leave be brought on notice to the Respondents. Affidavits were filed by and on behalf of the Respondents and 23rd November 2023 was fixed for the hearing of that contested leave application.

5. On 23rd November 2023, the hearing was adjourned on the application by of the Applicants.

They applied for the adjournment to enable them consider documents which had been received by the first named Applicant under the Freedom of Information Act. The request for Freedom of Information was made on 12th September 2023. The documents obtained included documents relating to the Part 8 procedure, which had concluded in 2018.

Summary of main issues

6. The following four applications were made on 12th November 2024:

(a) liberty to amend the Amended Statement of Grounds;

(b) leave to apply for judicial review, including on the amended grounds;

(c) an application for costs protection by the applicants, on the issue remaining after delivery of judgment by Humphreys J. on the initial costs protection application;

(d) An application by the County Council for the costs of the application for leave which had been listed for hearing and was adjourned on 23rd November 2023.

The amendment of pleadings issue

7. The amendments sought in the Draft Amended Amended Statement of Grounds are identified in green and are underlined. Liberty to amend the Statement of Grounds was previously granted at the initial leave stage on 14th and 21st November 2022. The earlier amendments are marked in red and underlined. The new proposed amendments appear extensive, and can be summarised as follows.

8. An amendment is sought in respect of the reliefs at paragraph D of the Statement of Grounds by the expansion of the declaratory relief sought at paragraph D (4). The Applicants seek to add the following words “and fails to transpose properly or at all Article 6 of the Habitats Directive.”.

9. As regards the extent to which the amendment to the grounds is still sought, the Applicants appeared to imply that they were only seeking an amendment in respect of reliefs (at para.21 of the Applicants’ submissions) but the oral submissions were not limited to Core Ground

2. I will consider each of the additional grounds in the draft Amended Amended Statement of Grounds also.

10. Core Ground 2 is amended by the addition of an argument that confirmation of the CPO is invalid as the primary purpose of acquiring the lands is stated to be unnecessary and to have a disproportionate impact on the constitutional rights of the Applicants.

11. Additional Core Grounds numbered para. 1A, 1B and 1B (which should be 1C) are included under the heading European Law. Para. 1A and the first para. 1B seek to introduce new claims as follows:

“1A. The impugned decision to affirm the CPO, including the affirmation of schedules therein of extinguishment of rights of way, is invalid because the First Named Respondent in failing to carry out an Appropriate Assessment under art. 6(3) of the Habitats Directive and or screening for same for the project of extinguishing rights of way as set out in the CPO schedules and acted contrary to s.177U and 177V of the Planning and Development Act 2000 as amended.

1B. The First Named Respondent in making the impugned decision to affirm the CPO including schedule of extinguishment of rights of way erred in failing to have any regard to its obligation to remedy the failure of the Planning Authority and the Board to carry out a proper Appropriate Assessment under art. 6(3) of the Habitats Directive and or screening for same and erred in failing to have regard to the principle of cooperation in good faith laid down in Article 10 EC which obliges Member States to nullify the unlawful consequences of a breach of Community law.

1B. Section 76 of, and the Third Schedule to, the Housing Act, 1966 as extended by section 10 of the Local Government (No.2) Act, 1960 (as substituted by section 86 of the Housing Act, 1966), as amended by section 6 and the Second Schedule to the Roads Act, 1993, and as amended by the Planning and Development Act, 2000, as amended is inconsistent with and or fails to transpose Article 6 of Council Directive 92/43/EEC”

12. It is proposed that para. 6 of the particulars of the grounds be amended and paras. 13A, 13B and 13C inserted. Paras. 30 – 42, which recite the facts and details of the documents received by the first named Applicant pursuant to her FOI Request dated 12th September 2023, are also proposed to be added. Finally, the draft Amended Amended Statement of Grounds provides different names for the Applicants’ solicitors and counsel, to reflect a change in instructions, which amendment is non-controversial.

13. It is well established that amendment of pleadings requires three elements – arguability, explanation and lack of irremediable prejudice: BW v. RAT [2017] IECA 296. Furthermore, the Courts have leaned against extensive reprogramming of an entire case by way of amendment (see generally O’Lone v An Bord Pleanála [2023] IEHC 136 and Sherwin v. An Bord Pleanála [2023] IEHC 26, at para. 40). As Humphreys J. held in Sherwin, it follows from Keegan v. Garda Siochana Ombudsman Commission [2012] 2 IR 570 that prejudice does not arise by reason of an amendment which permits the advancement of a new argument which may ultimately succeed.

14. Here the amendments (particularly the new core grounds) go well beyond permissible adjustment and collectively introduce what amounts to an entirely new case – see e.g.

Sweetman v. An Bord Pleanála [2007] IEHC 153 per Clarke J. (as he then was) at 37, cited by Collins J. in North Westmeath Turbine Action Group v An Bord Pleanála [2022] IECA 126, para. 54; Hewitt v. HSE [2016] IECA 194 per Hogan J. at paras. 36 – 37 citing Dunne

J. in in Farrell v. Coffey [2009] IEHC 537. While there can be some flexibility in what amounts to a new case (and in that regard I would be inclined to consider that North Westmeath Turbine Action Group and Sherwin can be read in a harmonious sense rather than automatically in a conflicting sense) the amendments here go well beyond any such flexibility. Where a proposed amendment challenges a separate decision or introduces a ground which is not ‘reasonably related’ to the original grounds, it is necessary for the applicant to satisfy the requirement of providing a good and sufficient reason for not bringing the proceedings within time.

15. There is also the perhaps more basic difficulty that the Applicants’ claim to have only discovered the Council’s 2015 intentions as of 20th November 2023 is clearly a misconception. The Council’s proposals as of 2015 were available prior to the bringing of these proceedings with the exercise of reasonable diligence. The Part 8 process concluded on 9th April 2018. The fact that the Applicants only sought information at a later stage does not amount to a valid or reasonable explanation for not having advanced the point when the proceedings were initiated. The submissions were made on the basis that the Applicants were unaware of the details of the Part 8 process, but the important question whether they could have reasonably been aware of those details within the time for challenging that

decision or before instituting these proceedings was not addressed, although the first named Applicant did exhibit submissions made on their behalf on 23rd February 2018 (Exhibit SC6).

16. Even assuming that I am incorrect about that, there is no valid explanation or good reason why the Applicants did not seek further information forthwith following the issue of the proceedings.

17. The Applicants waited until nearly ten months after the proceedings issued on 14th November 2022 before they made an initial FOI request to the Public Access Department of the Board. That request was made on 12th September 2023, and is exhibited at SC2- Tab

2 to the supplemental affidavit of Sheena Clancy sworn the 23rd November 2023. In the context of the strict time limits for judicial review, information sought after such a delay does not come within the contours of a reasonable explanation (indeed no explanation for this delay was provided in evidence) in circumstances such as those of the present case.

18. A further difficulty with the Applicants’ reliance on Council Directive 92/32/EEC, the Habitats Directive, for the purpose of the amendments is that, on the facts of this case, it is an attempt to impermissibly revisit the development consent decision out of time. In fact, the Applicants do not seek relief in respect of the Part 8 authorisation, nor the earlier decisions of the Board that EIA and a Natura Impact Statement are not required. Any such application would require a very lengthy extension of time.

19. There may be situations in which a CPO is made prior to a development consent decision.

In such cases the CPO limits the design/ construction options and therefore could amount to a sufficiently significant constraint on the development consent process so as to potentially trigger requirements under the Habitats or EIA Directives (also thereby triggering potential costs protection). I understand that to be the rationale of Simons J.’s judgment in King v. An Bord Pleanála [2024] IEHC 6, which referred to a CPO in advance of a consent decision as being arguably part of a “multi-stage development consent” (at para. 77). As Simons J. noted at “The acquiring authority is not entitled to carry out the proposed development by reliance solely on the compulsory purchase order. Rather, it will normally be necessary for the acquiring authority to obtain an additional “authorisation” (to use a neutral term)”.

(para. 21)

20. In this case the works had already been authorised by the Council invoking the Part 8 procedure.

21. There is however a very real distinction between the situation analysed in King and the more usual situation, such as in this case, where development consent has already been granted and is unchallenged before the application for confirmation of the CPO is made.

(For that reason I would not be inclined to think that there was anything per incuriam about the earlier judgments in the present case as potentially suggested on one reading of King – rather the present case simply deals with a different situation.) In the instant case, the CPO merely gives effect to the existing consent and is premised on the contours determined by that consent. It is not a further stage at which the consent can be revisited or amended, as it would be if the CPO had been made first. Therefore, an attempt to revisit the development consent now by reference to the Habitats Directive or any other argument which could have been made at the appropriate time is not a permissible procedure. An amendment to that effect, out of time, should not be regarded as arguable without a basis for granting the necessary extension of time – which does not exist here. The Applicants have not sought to challenge the sequencing of the development consent process and the confirmation of the CPO.

22. In King, Simons J. contrasted the sequencing in that case with that which occurred in this case, stating:

“60. It should be emphasised that the sequence of decision-making in the present case differs from that considered in the earlier case law. It is for this reason that the judgments of the High Court (Humphreys J.) in Clancy v. An Bord Pleanála (No.

1) [2023] IEHC 233 and Clancy v. An Bord Pleanála (No. 2) [2023] IEHC 464 are not dispositive of the specific issue raised in the present proceedings. As appears from the narrative in those two judgments, the impugned development project had been authorised pursuant to Section 179 of the Planning and Development Act 2000 and Part 8 of the Planning and Development Regulations 2001 prior to the making of the compulsory purchase order. As put pithily in the first judgment, the development consent was a “done deal” by the time the application to confirm the compulsory purchase order came to be made and that development consent had never been challenged.”

23. As the Supreme Court explained in Dunne v. Minister for the Environment Heritage and Local Government [2006] IESC 49, [2007] 1 IR 194 (para. 44), the question as to whether a particular decision constitutes a “development consent” cannot be determined simply by the application of a “but for” test. The fact that a development might not be permitted to proceed “but for” the particular decision in issue is not per se conclusive. The availability and assessment of alternatives is important in a decision to grant development consent, particularly where the alternatives are capable of influencing the environmental effects of the project concerned. (King, at para. 33 – 34; Holohan, Case C-461/17, EU:C:2018:883).

In Dunne it was held that the project which was subject to environmental impact assessment was the road development itself, which was authorised under the decisions of 1998 approving the Council’s scheme for the construction of the road under the Roads Act 1993, not under the directions of August 2004 impugned in the proceedings. The Supreme Court rejected the argument that the decisions of 1998 and that of 2004 are different stages in the same decision-making process. The Supreme Court held that the decisions made in relation to the approval of the scheme in 1998 were stand-alone decisions which allowed the road development to proceed, whereas the impugned Ministerial directions regulated the activities for which the principal consent had already been given. In reaching that conclusion the Supreme Court found that the Ministerial directions of August 2004 did not fulfil any of the requirements necessary to constitute “a development consent”. namely:

“(a) Firstly, the Minister does not have power under s. 8 to embark upon a reconsideration of the environmental issues arising for the road development, and, more importantly, does not have power to modify the road development. All that is left for the Minister is a power to regulate the manner in which the works which are necessary to allow the road to proceed are carried out.

(b) Secondly, the project is prescribed for the purposes of the environmental impact assessment Directive as the road development, the subject matter of the 1998 consent. Excavation works of the type the subject matter of the Ministerial directions under s. 8 are not a prescribed project.”

24. Delivering judgment of the Court, Murray C.J. stated that “it is the construction of the road development which gives rise to the environmental impact, not the archaeological resolution measures contained in the Ministerial directions”.

25. While there is a change in the description of the works which are envisaged between the Part 8 decision and the impugned decision of the Board which confirms the CPO of lands including the Applicants’ property, the CPO does not authorise the carrying out of works, but rather approves the compulsory acquisition of property by the Council, which intends to carry out works thereon, in accordance with the development consent obtained in 2018.

26. The Applicants submit, relying on C-411/17 Inter-Environement Wallonnie ASBL & Anor v. Conseil des Ministres, that the definition of “project” under the Habitats Directive is wider than under the EIA Directive. While developments which are authorised by the legislature are included in the scope of a “project” for the purposes of the Habitats Directive, they do are excluded from that definition in the EIA Directive. At para. 62 the CJEU stated that the term “project” for the purposes of EIA refers to works or interventions involving alterations to the physical aspect of the site. As the CJEU held “Work that is inextricably linked to those measures must also be subject to such an assessment before the adoption of those measures if its nature and potential impact on the protected sites are sufficiently identifiable at that stage, a finding which it is for the referring court to make.” (para. 145).

27. In Namur-Est Environnement, Case C-463/20, EU:C:2022:121, which is also relied upon by the Applicants, the CJEU held (at paras. 70 to 79) that the EIA Directive did not require public participation for a preliminary decision in respect of the environmental impacts of a project, provided that effective public participation is available at an early stage and, in any event, before a decision is taken on whether to grant development consent for the project. It was also held that effective public participation implies, inter alia, that the public should be able to express views on the project concerned and its environmental impact not only in a useful and comprehensive manner, but also “at a juncture when all options are open” (para.

72).

28. At the time the impugned decision was made, as in Dunne, the decision to authorise the project, and the carrying out of works in relation thereto, had already been made before the Board decided to confirm the CPO, which is the only decision challenged in these proceedings. When the Board made the impugned decision, it was empowered neither to embark upon a reconsideration of the environmental issues arising from the underlying project nor to modify the development project. This is not comparable to C-504/14 Commission v. Greece where it was held that the plans and projects included the opening up of new roads affecting the breeding grounds of the Caretta caretta sea turtle. At para.

121, the CJEU held that Article 6(3) of the Habitats Directive is relevant only when the competent national authorities grant authorisation for a project. In this case, the effect of the Board’s Order is to authorise the Council compulsorily purchase lands to be utilised to carry out development in accordance with a prior unchallenged development consent.

29. There is a further problem with the claim sought to be made, which is that the decision regarding the extinguishment of the right of way has not yet been made. If and when made, it can presumably be challenged at that time if grounds exist in that regard. The misconception underlying the proposed amendments in this regard is that the Board’s

decision effects an extinguishment of public rights of way. What has happened, as the Council submits is that it “has proposed and obtained approval from the Board for a potential order by the Council (not the Board) to extinguish the public rights of way (for vehicular traffic only), which order will, as made clear in the Council’s CPO, only fall to be made by the Council after the acquisition of the lands, the subject of the CPO. The

decision of the Board in this case which is simply to confirm the Council’s CPO does not, of itself, either effect such extinguishment and a challenge in that regard is premature unless and until the Council actually make any such order and no challenge is made herein to any steps taken or to be taken by the Council.” Any provisional statement to the contrary in Clancy (No. 2) was acknowledged by Humphreys J. to have been based on arguments having been made in the absence of the Council (para. 44), which has now appeared to clarify the position. The Council is not obliged to extinguish the right of way by virtue of the order of the Board.

30. A related problem is that insofar as the grounds plead potential impacts by way of probable congregation of persons on the plaza for example, such grounds are not supported by meaningful or cogent evidence.

31. Insofar as the remedial obligation is concerned, the claim proposed to be advanced is misconceived as a matter of law because the Applicants do not meet the conditions for such a claim as set out in the judgments of the High Court and Court of Appeal in Carrownagowan Concern Group v. ABP [2023] IEHC 579; [2024] IECA 234.

32. Insofar as there is a proposed new claim of non-transposition, it is settled law that in the case of an allegation of a failure to properly transpose an obligation under EU law, the requirements of Order 84 r. 20(3) must be strictly observed: per Murray J. in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28; per McDonald

J. in Sweetman v. An Bord Pleanála [2020] IEHC 39, at para. 103, and per Barniville J. in Rushe v. An Bord Pleanála [2020] IEHC 122. The proposed transposition claim here is generalised and does not specify precisely how the Directive has not been transposed properly by the State Respondents. A similar issue arises in terms of a failure to set out in the pleadings precisely how the impugned statutory provisions are contrary to EU law.

33. Finally, there is the question of irremediable prejudice and the balance of justice. The one major factor that the Applicants do not acknowledge, while of course their concerns as to the loss of their property (which includes their family home and premises from which they run their family business) are readily understandable, is the significant public interest in the project as a matter of road safety. Where a project is designed for safety purposes, allowing claims to be made that potentially delay or complicate the project creates a risk of irremediable prejudice, in particular of death or injury at an unsafe location. Whether there is such a risk is primarily a matter for the statutory authorities, having regard to the separation of powers. Here the existence of such a risk has been so determined, and the development approval under Part 8 which was made on that basis was unchallenged. Having regard to those facts, any further delay by allowing amendments would give rise to irremediable prejudice, and in any event the balance of justice leans against the amendments.

34. On any or all of these grounds collectively, I am compelled to decline the application to amend the proceedings.

The leave to seek judicial review issue

35. In order to address the question of whether leave should be granted I will set out the grounds as pleaded and review these individually. I will assume for the sake of argument that I am wrong about refusing the amendments and will consider the grounds on the basis of incorporating the proposed amendments.

36. The Applicants state at para. 30 of their submissions that they are not pursuing Domestic Core Ground 7 and EU Law Core Grounds 2 and 3 on the Amended Statement of Grounds (and draft Amended Amended Statement of Grounds).

37. The Board did not oppose the grant of leave in terms of the existing pleaded case, but that was on the basis that if leave is granted it would be without prejudice to any points which may be raised subsequently. The State Respondents consented to the grant of leave on those grounds, but this was also subject to the caveat that they reserved the right to argue subsequently that leave should not have been granted. That said, the Council, as developer, did oppose the grant of leave and asks the Court to “Refuse Leave on all Grounds and dismiss the proceedings”. It is settled law that a developer can object to an application for judicial review even if statutory bodies consent: Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2024] IESC 4. Ultimately it is a matter for the court to decide whether leave ought to be granted.

38. In that context, some of the critical reasons for rejection of the amendments also apply to the leave application and preclude the grant of leave. This will be clearer from a consideration of the pleaded case on a ground-by-ground basis.

39. In relation to Domestic Law Core Ground 1, the Applicants allege that “The First Respondent impugned decision is invalid, failed to apply the appropriate legal test and/or procedure in respect of its consideration and determination of application 307413/20 of the Compulsory Acquisition of the Applicants’ lands”. The test of substantial grounds applies, and in my view the Applicants have not met this test in the absence of any evidence that there was a failure to consider the correct test and procedure. I would uphold the Council’s submission that “it is clear that the Inspector (and by extension the Board) considered the appropriate test and specifically the issue of necessity and public interest, and in this regard, the Council refers to §6.0 of the Inspector’s Report and in particular §6.1 which outlines the test to be applied and cites the decision of Clinton v An Bord Pleanála [2005] IEHC 84.

Community need is considered in §6.0 and in particular at §6.3 and §6.5. The Inspector concluded at §7.1 that she considered that “that the proposed acquisition of the lands would be in the public interest and the common good and would be consistent with the policies and objectives of the Clare County Development Plan 2017-2023”.

40. The development which was approved under Part 8 in 2018 was not capable of being changed by the Board. The question which it was required to consider was whether or not the lands which the Council maintains are required to carry out that development could be acquired compulsorily by it. As noted by the Inspector, at the oral hearing, it was stated that the planning merits of the Part 8 scheme had already been determined by the local authority.

At Section 6 of the Inspector’s Report, the criteria identified by Galligan and McGrath, Compulsory Purchase and Compensation in Ireland: Law and Practice (Bloomsbury Professional, 2013) (at §3.26), and quoted by Simons J. at para. 19 of King, were set out.

41. The Board’s decision to confirm the CPO included an analysis of the community need, or the public good which would be achieved by the development. It was also noted by the Inspector that the development had been subject to a Part 8 development application and is included as an objective of the Development Plan. At para. 6.4.4 the Inspector specifically acknowledged that the preferred route (authorised by the Part 8 process) presents burdens in relation to residential and business owners, which impacts may be permanent and will be addressed by way of compensation. The Board did not fail to have regard to the significant impact of the CPO on the Applicants.

42. The Inspector also found that the extent of the land covered by the CPO was no more than was required to facilitate the works authorised and that it would be suitable to meet the community need. At para. 6.6.3 the Inspector stated:

“Ultimately, however, I consider that the significant benefits of the Inner Relief Road for the common good of the city, county and region outweigh the profound impacts on affected home and business owners and, on that basis, I consider the proposed acquisition of a dwelling, retail unit, office premises and part of funeral home premises to be generally acceptable.”

43. The Board decided to affirm the CPO for the reasons and considerations set out in the Board Direction dated 21st July 2022. It found that the CPO was necessary for the purpose stated and that the objections which had been made could not be sustained having regard to that necessity.

44. Issues of planning and the environment had been addressed under the Part 8 process. Whilst the Applicants raised the absence of an EIA and NIS in their submissions to the Board, they did not seek to challenge the relevant decisions of the Board, or the Council, in respect of Part 8. They cannot mount a collateral attack on those decisions in these proceedings.

45. In relation to Domestic Law Core Ground 2 (as proposed to be amended), the Applicants claim that “The First Respondent impugned decision is invalid, failed to and/ or would not apply properly or at all the test of proportionality as primary consideration as to confirm the Scheme for the Compulsory Acquisition of the Applicants’ lands and the primary purpose of acquiring the lands for the construction of a pedestrianised plaza was unnecessary and the impact on the constitutional rights of the Applicants is disproportionate to the purpose of acquiring of lands for developing a plaza after the council had decided that lands were not needed at that location anymore for the construction of a junction.”.

However, for similar reasons as under the previous ground, this is not a substantial ground of challenge. The issue of proportionality of the scheme as approved under Part 8 as against the effect of the CPO was considered by the Inspector and the Board. This Core Ground is in effect a merits-based challenge in legal form.

46. In relation to Domestic Law Core Ground 3, the claim is that “The First Named Respondent impugned decision is invalid, failed to facilitate, consider, or engage with the Applicants’ submissions with regard to the Compulsory Acquisition application in respect of their property in an appropriate manner or the circumstances arising from the said Compulsory Acquisition in application 307413/20”. Again, this is in effect a merits challenge. An applicant has an onus to show lack of consideration of material issues, and here is no such evidence – indeed the Inspector did consider the Applicants’ submissions at paras. 3.3.12, 4.4, 6.6.2, and pp. 15 and 17.

47. In relation to Domestic Law Core Ground 4, the complaint is that “The First Named Respondent erred in law in excluding a consideration of and/or the adequacy of a procedure for providing compensation which was required to be addressed in the particular circumstances of this case, which is contrary to the Applicants Constitutional rights”.

However, this misinterprets the statutory architecture. The Board is not given jurisdiction to investigate compensation at the CPO stage. If there is an infirmity in the compensation legislation, that is an issue which can be raised at the appropriate point, but an allegation of such infirmity does not operate as a substantial ground to invalidate a decision of the Board confirming the CPO.

48. In relation to Domestic Law Core Ground 5, the complaint is that “The First Named Respondent erred in law in the manner in which it considered and determined the Applicants’ application for costs, relied on a document that fettered its discretion and adopted a fixed rule as the determination as to how any costs application would be determined, no matter what the particular circumstances, which is unreasonable, inappropriate, and contrary to plain reason and common sense.”. Insofar as the Applicants complaint is that the Board fettered its discretion by way of policy, the policy itself provides that the “Board reserves the right to depart from the policy in the exercise of its absolute discretion where it considers that the particular circumstances warrant a different approach in any case.”. Insofar as the complaint relates to the application of this policy, I accept the Council’s submission that “the Board’s reasoning for the decision in this specific case to refuse costs clearly demonstrates individual consideration of the cost application.” The Board Direction in relation to the costs application referred to the Board’s general policy, which was appended to the Direction, and stated that “the payment of a contribution to the costs by the Local Authority to the objectors who submitted claims for costs stated to have been incurred by them or their representatives in respect of their appearance at the oral hearing, was not warranted in this instance.” The Board had deferred its decision on the costs applications on two occasions to allow for consideration of the applications for costs.

No substantial ground has been made out under this heading.

49. In relation to Domestic Law Core Ground 6, the complaint is that “The Scheme underlining the Compulsory Acquisition is ultra vires to the Second Named Respondent in that the nature and purpose of the Scheme grounding the Compulsory Purchase Order is not provided for and/or is inconsistent in the Clare County Development and as such the impugned decision is ultra vires, invalid and void.” The pleaded term “scheme” is somewhat amorphous as noted at an earlier stage of these proceedings. Whatever it is intended to mean, the allegation is one of inconsistency with the Clare County Development Plan. However, the Plan was considered and the view taken that the CPO was consistent with it (see Inspector’s Report paras. 5.1.7 and 6.4). The Plan refers, at Table 8.2 to proposed projects identified for future development including the N67, N85 Road Improvement Scheme, Ennistymon. No substantial ground has been advanced as to why that was unreasonable or otherwise unlawful.

50. Domestic Law Core Ground 7 was withdrawn.

51. In relation to Domestic Law Core Ground 8, the complaint is:

“Insofar as Statutory provisions and procedure grounding the consideration of a compulsory purchase order excludes any consideration of the procedure for and adequacy of compensation in a procedure where the Applicants’ family home and its business is to be compulsorily acquired and where the effect of such acquisition will be to render the Applicants homeless and incapable of providing accommodation for themselves and for their children, such provisions are contrary to Article 40.3, Article 43, and Article 40.5 of the Constitution.”

52. This misreads the statutory scheme, in which compensation is separate from the CPO

decision. The Applicants’ rights to argue for adequate compensation are in no way affected by the impugned decision. The nature of this complaint in this regard is very unparticularised. To that extent I agree with the Council’s submission: “Nowhere in the Amended Statement of Grounds are there any pleas to support this ground. No statutory provisions are identified which are pleaded to be inconsistent with Article 43 and Article

40.5 of the Constitution. Furthermore, even from a review of the Applicants’ Second

Submissions no insight as to the particulars of this ground can be found and it simply refers to case law to the effect that compensation for interference with property rights is only appropriate where it is justified by the exigencies of common good. However, no particulars are set out and leave on this ground ought to be refused.” The question whether compensation would or should be available if the Council decides not to proceed to acquire the property is a matter which is separate to the issue determined by the Board and is not relevant to the validity of the Board’s decision to confirm the CPO. The statutory scheme is presumed to be constitutional and it must be read in a way which is consistent with the Constitution unless that is not possible. As the Inspector noted, the Council had entered into negotiations with property owners with a view to agreeing compensation amounts at an early stage in order to reduce stress and uncertainties for affected parties. The Applicants have not provided evidence to contradict this, nor have they demonstrated that it arguable that the statutory scheme must be interpreted in a manner which is repugnant to the Constitution.

53. In relation to European Law Core Ground 1, the complaint is “The First Named Respondent erred in law in relying on Section 179 of the Planning and Development Act 2000 and Part

8 of the Planning and Development Regulations 2001 in excluding the Applicants from raising submissions in respect of Directive 92/43EEC, predetermined the issue and where part of the scheme was located adjoining and/or within a European site.” This complaint seeks incorrectly to impose an analysis of a situation that arose in the King case into the quite different facts of the present case. For reasons explained earlier, where the CPO merely follows and gives effect to a prior development consent, it is not part of a multi-stage development consent procedure. The Applicants could have raised any issues under Directive 92/43 at the development consent stage, and their failure to do so does not give rise to an entitlement to raise such issues out of time when it comes to giving effect to that unchallenged consent, nor were the decisions of the Council and the Board, which were referred to in the Board’s decision were not challenged by the Applicants.

54. In relation to proposed European Law Core Grounds 1A, the complaint is “The impugned

decision to affirm the CPO, including the affirmation of schedules therein of extinguishment of rights of way, is invalid because the First Named Respondent in failing to carry out an Appropriate Assessment under art. 6(3) of the Habitats Directive and or screening for same for the project of extinguishing rights of way as set out in the CPO schedules and acted contrary to s.177U and 177V of the Planning and Development Act 2000 as amended.” This is not a substantial ground for similar reasons. Appropriate assessment is a matter for the development consent stage and failure to raise issues at that point does not allow such issues to be raised out of time, or in a challenge to the CPO made in respect of lands required for the development which has already been approved.

55. In relation to proposed European Law Core Grounds 1B, the complaint is “The First Named Respondent in making the impugned decision to affirm the CPO including schedule of extinguishment of rights of way erred in failing to have any regard to its obligation to remedy the failure of the Planning Authority and the Board to carry out a proper Appropriate Assessment under art. 6(3) of the Habitats Directive and or screening for same and erred in failing to have regard to the principle of cooperation in good faith laid down in Article 10 EC which obliges Member States to nullify the unlawful consequences of a breach of Community law.” The reasons why leave to amend should be refused on that basis also apply to refusal of leave for judicial review even if such an amendment were allowed.

56. In relation to proposed European Law Core Grounds 1C (also described as 1B), the complaint is “Section 76 of, and the Third Schedule to, the Housing Act, 1966 as extended by section 10 of the Local Government (No.2) Act, 1960 (as substituted by section 86 of the Housing Act, 1966), as amended by section 6 and the Second Schedule to the Roads Act, 1993, and as amended by the Planning and Development Act, 2000, as amended is inconsistent with and or fails to transpose Article 6 of Council Directive 92/43/EEC”.

Again, the rationale for refusing the amendment would apply to the substance of this ground.

This is not a substantial or even an arguable ground (as to the threshold I discuss this below).

The claim is not properly particularised, and there is no basis for an argument that the Habitats Directive must be transposed at the implementation stage when it has already been transposed at the consent stage – provided that the consent comes first, as it does in the present case.

57. European Law Core Grounds 2 and 3 were withdrawn.

58. In relation to European Law Core Ground 4, the complaint is “The Third and Fourth Named Respondents failed to transpose their requirements of Council Directives 92/43EC and/or 2011/92EU into the Statutory Scheme underlying the making of a Compulsory Purchase Order and as applied in application number ABP/307413-20 whereby Council Directive

92/43 EEC and/or 2011/92EU were excluded in the determination made of application 307413/20.” Even though the legislative challenge is designed to impugn the permission (and thus is subject to section 50 of the Planning and Development Act 2000 – see Nawaz v. Minister for Justice, Equality and Law Reform [2013] 1 IR 142) and so a requirement for substantial grounds applies, I will consider the claim against the State, out of an abundance of caution, on an arguability standard. I would accept, for the sake of argument, that such a point could potentially be arguable if the CPO preceded the development consent, on the logic of Simons J. in King. But it is not arguable if the development consent comes first, in a context where Directives 92/43 and 2011/92 are fully transposed in relation to the procedure at that point. The Applicants therefore had an opportunity (which they did not avail of) to challenge any issues arising from those Directives at that point. Not doing so does not entitle them to challenge the failure of the statutory scheme to allow a belated rerun of such arguments at the implementation stage. Whilst the Applicants received documents relating to the development consent in November 2023, no reasonable explanation has been provided for not seeking relevant information prior to September 2023, some ten months after these proceedings had been initiated. Submissions had been made on behalf of the Applicants in respect of the Part 8 procedure on 23rd February 2018 in which they had requested access to documents relating to or connected with the proposed scheme including decisions of An Bord Pleanála and Clare County Council. (Exhibit SC6 to the Affidavit of Sheena Clancy sworn the 12th January 2023).

59. Insofar as the Applicants suggest, at para. 74 of their written submissions, that the Board could modify the project at CPO stage, I agree with the Council that “The Applicants advance no legal basis for this proposition. In fact, having regard to the statutory framework under section 217C of the 2000 Act, the Board did not have any jurisdiction to modify the Part 8 development”.

60. In relation to European Law Core Ground 5, the complaint is that “The Statutory Scheme underlying the making of and determination of a Compulsory Purchase Order and/or in application 307413-20 which excluded any consideration of environmental issues either under Council Directive 92/43EEC, 2001/42EU or 2011/92EU is inconsistent with and contrary to and/or fails to transpose the provisions of the aforesaid Directives.” This point is essentially a repeat of points made in previous core grounds and unfortunately is not arguable for similar reasons.

61. For reasons that will follow from those conclusions, I would have refused leave on the proposed amended grounds even if I had allowed the amendments.

The costs protection issue

62. As this matter is going no further due to the refusal of leave to seek judicial review, it is unnecessary and inappropriate to decide whether the proceedings would have benefited from costs protection if leave were granted.

The wasted costs issue

63. Given that by the time the parties got to the proposed hearing of 20th November 2023, the Applicants had already the benefit of an (interim) order for costs protection, I am not inclined to consider that such benefit must be lost because the matter was adjourned due to a last-minute application. Of course, the opposing parties could have contested that adjournment, in which case the court presumably might not have granted it. A factor in allowing the adjournment seems to have been the fact that the Board and State both acquiesced in the adjournment. I would not be inclined to award wasted costs against a costsprotected Applicant in such circumstances.

64. Therefore, as a matter of discretion, in particular having regard to the pre-existing interim costs order, the lack of objection to the adjournment in November 2023, the benefit of erring on the side of the Applicants’ arguable right to invoke EU costs protection rules, and in the interests of finality, I would propose to make no order as to costs including the costs of the adjourned hearing.

Conclusion

65. In summary, the proposed amendments do not meet the appropriate legal tests to allow amendment for the reasons expressed above. Even assuming that the amendments were to be allowed, the pleadings (as so amended) do not demonstrate substantial grounds to challenge the decision of the Board or even arguable grounds for relief against the State Respondents (assuming that I am wrong that substantial grounds are required there also, where the purpose of the challenge to the legislation is to undermine a decision to which section 50 of the 2000 Act applies).

66. In those circumstances it is not necessary to decide the costs protection issues because the proceedings are being dismissed and there is nothing further to protect.

67. In the circumstances I would exercise discretion to make no order as to the wasted costs of the adjourned hearing.

Order

68. For those reasons, I shall make an order refusing the amendments sought, dismissing the leave application, and making no order as to costs of the adjourned hearing.

69. The matter is to be listed before me on 3rd November 2025 at which point application can be made for any consequential orders.