High Court dismisses planning challenge where Minister's intervention to favor wind energy renders quashing consent perverse.

[2025] IEHC 541

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2022.0001006]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS

AMENDED

BETWEEN

SAVE THE SOUTH LEINSTER WAY AND TARA HEAVEY

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA, MINISTER FOR HOUSING, LOCAL GOVERNMENT AND

HERITAGE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

SPRINGFIELD RENEWABLES LIMITED

NOTICE PARTY

(No. 2)

Date of impugned decision: 26 September 2022

Date proceedings commenced: 21 November 2022

Date remitted by the Supreme Court: 5 December 2024

Date of main hearing: 25 June 2025 & 14 July 2025

Date draft judgment circulated: 9 September 2025

JUDGMENT of Humphreys J. delivered on Wednesday the 15th day of October 2025

1. In the exercise of statutory powers to that effect, the Minister intervened in the development

plan-making process to ensure a policy regime that was more favourable to wind energy projects.

That gave rise to unanticipated technical questions as to the status of the old development plan.

The applicants seize on the technical issue thereby created as to the temporary continuation of a

provision of an old development plan as a basis to quash a development consent for renewable

energy infrastructure, which is the sort of outcome that is the direct opposite of the purpose of the

Minister’s intervention. The primary question here is whether the court is required to give effect to

such an effectively perverse conclusion by quashing the permission.

Judgment history

2. In Save the South Leinster Way & Another v. An Bord Pleanála (No. 1) [2023] IEHC 577

(Unreported, High Court, 25 October 2023), I set aside the leave order on foot of a time objection

from the opposing parties.

3. In Save the South Leinster Way & Another v. An Bord Pleanála [2024] IESC 55 (Unreported,

Supreme Court, 5 December 2024), the Supreme Court held that the leave application was not out

of time, and remitted the matter back to the High Court.

Geographical context

4. The applicants seek to quash the board’s decision of 26 September 2022, to grant planning

permission for the development of 21 wind turbines and ancillary works at Castlebanny, County

Kilkenny. The board’s reference is 309306 (https://www.pleanala.ie/en-ie/case/309306).

5. The application was made under the strategic infrastructure development (SID) regime. The

developer’s SID website is https://castlebannyplanning.ie/

6. The South Leinster Way is part of the European E8 walking route linking Dublin with Dursey

Island. The impugned development traverses the southern section of the South Leinster Way.

Facts

7. On 28 January 2021, the notice party applied to the board under s. 37E of the Planning and

Development Act 2000 for permission for the impugned development.

8. When the SID application was made, the Kilkenny County Development Plan 2014-2020 (the

2014 CDP) was in force.

9. The 2014 CDP designated the Castlebanny area as ‘open for consideration’ – meaning no

more than 5 turbines; output not greater than 5 MW; turbines not exceeding 65 m to hub height.

10. When the SID application was submitted, a review of the 2014 CDP was ongoing, with a

draft 2021 CDP going out to consultation in December 2022. In the draft 2021 CDP, Castlebanny

was to be designated as ‘acceptable in principle’ for ‘large scale’ wind farms.

11. On 8 June 2021, the elected members of the council adopted the following motion to amend

the draft 2021 CDP –“The elected members agree to change the wind strategy map for Castlebanny

area from ‘acceptable in principle’ to ‘open for consideration’”.

12. These and other revisions were made the subject of a revised strategic environmental

assessment (SEA) and remained in the adopted CDP, notwithstanding the recommendation of the

Office of the Planning Regulator (the OPR) to revert to the provisions of the draft 2021 CDP.

13. In the impugned planning process, on 10 August 2021, the board (by way of letter) sought

further information from the notice party on the subject application. The board in this regard

requested the developer to respond to various matters raised in the submissions made in respect of

the subject application. The board, amongst other things, also sought further details on the turbine

dimensions proposed.

14. On 26 November 2021, the board received a response from the notice party to the aforesaid

request for further information. The said response included, inter alia, turbine dimension details and

also updated the environmental impact assessment report (EIAR) and Natura impact statement

(NIS) in respect of new information set out in the response regarding turbine dimensions.

15. The developer’s response was not advertised by the board.

16. The 2021–2027 Kilkenny City and County Development Plan was made on 3 September

2021, and by s. 12(17) of the 2000 Act came into effect on 15 October 2021. The full adopted

development plan including its notice of adoption is available on the website of Kilkenny City and

County Council: https://kilkennycoco.ie/eng/services/planning/development-plans/city-and-

county-development-plan/adopted-city-and-county-development-plan.html

17. On 15 October 2021, the Minister issued a notice to the planning authority under s. 31(3)

containing a draft direction with a requirement to “Reinstate areas designated at Castlebanny to

‘acceptable in principle’ in accordance with the ‘draft wind energy strategy’ of the draft Plan”.

18. Thereafter in accordance with s. 31(8) and (9) the chief executive officer report on the draft

direction and consultation was issued on 10 December 2021, and thereafter the OPR issued a

s. 31AN(4) notice on 10 January 2022.

19. The Minister’s intervention has not reached a conclusion, and no final direction has issued.

20. On 26 September 2022, the board made the impugned decision to grant planning

permission.

Procedural history

21. The proceedings were issued on Monday 21 November 2022.

22. Leave was granted on 23 January 2023, with liberty to file an amended statement of

grounds. An amended statement of grounds was filed on 31 January 2023.

23. The board filed its opposition papers on 4 May 2023. The second, third and fourth named

respondents filed their opposition papers on 23 May 2023 and 29 May 2023. The notice party filed

its opposition papers on 21 June 2023.

24. As noted above, the time issue was resolved in favour of the applicants by the Supreme

Court, with an order for the applicants’ costs against the respondents collectively (i.e., not the notice

party).

25. On 16 December 2024, I ordered that core ground 7 (except insofar as it relates to the

Lesser Black Backed Gull in the Saltee Islands SPA) and core ground 9A be postponed to a

subsequent Module of the proceedings, alongside any relief against the State (this including core

ground 9), and the State respondents were excused from further participation until that Module.

26. The rationale for that was because those matters were awaiting a decision of the CJEU in

Case C-27/25, Knocknamona.

27. Module I was originally listed for 16 May 2025, but was postponed to 25 June 2025 and was

heard on that date.

28. At the end of that hearing the notice party produced maps of the development site with the

various land use objectives overlain. As reinforced by the subsequent information provided, these

showed that:

(i) in the 2014 map, most of the development site was open for consideration but about

20% of it on the south-western side (7 turbines) was not subject to one of the three

specified area wind turbine policies;

(ii) in the draft 2021 plan, virtually all of the site apart from a marginal sliver on the

north was acceptable in principle for wind farms; and

(iii) in the adopted 2021 plan the entire site was open for consideration.

29. This was to be put on affidavit by 27 June 2025, with the applicants having 10 days to reply

and the matter to be listed for finalisation on 14 July 2025.

30. Seamus Todd furnished an affidavit for the notice party on 27 June 2025. Pat O’Donnell for

the applicant replied on 7 July 2025. Kenneth Dunne furnished a replying affidavit on 11 July 2025

on behalf of the notice party.

31. In the meantime, on 7 July 2025, the commission amended the board order here under

s. 146A of the 2000 Act.

32. On 14 July 2025, the matter was listed again, the main issues being the new maps and the

commission’s s. 146A order.

33. Liberty to formally file the notice party’s latest affidavit was also given without significant

objection (the developer’s affidavit was not in the correct form apparently not including the

necessary address), subject to my considering in the judgment whether it significantly advanced the

position and warranted a reply – the answer to both is No. There isn’t anything significantly new in

the final affidavit that goes to anything crucial, so further reply isn’t necessary.

34. The applicants were given liberty to file an amended statement of grounds, the amendments

being limited to a challenge to the commission order amending the original board order, subject to

submitting the text to the court, without objection. The hearing was thus in effect modularised with

the s. 146A and habitats issues to be dealt with at a later stage.

35. Judgment was reserved at the end of that hearing. I would like to record my thanks to all

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

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

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

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

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

36. On 9 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.

37. 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).

38. The listing date was to be 29 September 2025. On that date, the parties confirmed the

nature of their proposed changes to the draft judgment and no particular need for further elaboration

on those suggestions was identified.

39. The commission helpfully pointed out some inevitable typos.

40. As far as the changes sought by the applicants are concerned, the commission commented

as follows:

“The Commission has considered the submissions made by the Applicants on the draft

judgment and believes that the submissions go far outside the parameters of the draft

judgment procedure as set out at paragraph 36 and 37 and seeks to argue the merits of the

Court's conclusions without identifying any actual legal or factual errors.”

41. The notice party stated as follows:

“We have reviewed the Applicants’ submissions dated 12 September 2025. In our respectful

view, these submissions go well beyond the parameters of the draft judgment procedure.

They do not identify typographical, factual, or legal errors, but rather seek to reargue the

merits of the case and contest the Court’s evaluative conclusions. In our respectful

submission, the Applicants’ submissions should not result in any amendment of the draft

judgment.”

42. I think there could be some validity in these observations. However I would not wish to be

unduly critical of the applicants because it’s only when one hears the point that a party wants to

make that one can evaluate whether it is one that is procedurally appropriate or not. So I wouldn’t

want to preclude anyone from suggesting issues for the agenda, within reason. I also appreciate

that the applicants stated that they offered views in an attempt to be constructive. It’s generally

better to let people say what they want to say first and then evaluate that. I have endeavoured to

address such views as appropriate later in this judgment. In some places I have amended the

wording where the applicants queried it, but that doesn’t mean that the original wording was wrong

or ambiguous – just that it wasn’t worth arguing about. And there is also the fact that the

submissions on the draft stimulated thought, which is welcome insofar as it goes.

43. Finally, the draft order proposed amending the Central Office cause books, but this was done

in the meantime by mass re-naming of cases by virtue of orders made on 15 September 2025.

44. On 29 September 2025, it also emerged that the applicants had failed to file the amended

statement of grounds challenging the s. 146A decision. The commission decision was made on 7

July 2025, as noted above. The order giving liberty to challenge it by way of filing an amended

statement of grounds was perfected on 8 August 2025. The eight week period of challenge expired

on 1 September 2025. The amended statement was filed on 29 September 2025, after the foregoing

came to light. I gave the applicants liberty to bring a motion seeking an extension of time, which

would be heard together with the substance of Module II on Monday 24 November 2025. Obviously

opposing parties need to file amended opposition papers in the meantime (which will, also obviously,

be without prejudice to any time objection).

Relief sought

45. The reliefs sought are as follows (including the latest amendment subject to extension of

time):

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

made by the Respondent (‘the Board’) on or about 26 September 2022 to grant planning

permission to the Notice Party (‘the Developer’) for the construction of 21 wind turbines with

an overall blade tip height of 185 metres and ancillary works at Castlebanny, County

Kilkenny (‘the impugned development’).

1A An Order of Certiorari by way of application for judicial review quashing decision made

by the Respondent (‘the Board’) on or about 7 July 2025 to amend Condition 8(a) of the

permission granted in September 2022 by substituting “182.5 metres” for “179 metres”.

2. An Order of Certiorari quashing the impugned decision, and a 2. A Declaration that

the Second and or Third and Fourth Respondents failed to fulfil their obligations under Article

6(1) 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 implemented by SI 477 of 2011 and

in particular Article 26 thereof, by failing to establish the necessary site specific conservation

objectives and conservation measures in the Saltee Islands SPA involving, if need be,

appropriate management plans specifically designed for the site or integrated into other

development plans, and appropriate statutory, administrative or contractual measures which

correspond to the ecological requirements of the site’s qualifying interests the Lesser Black-

backed Gull and or in for the River Nore SPA in relation to the Kingfisher and or in the River

Barrow and River Nore SAC in relation to the Freshwater Pearl Mussel and the impugned

decision is invalid as a result because the Board could not conduct an appropriate

assessment and therefore had no jurisdiction to make the decision.

3. Further and in the alternative such Order as may be appropriate including an Order

of Certiorari Mandamus regarding the establishment of the site specific conservation

objectives and conservation measures referred to in relief D2 above.

4. A Declaration that s.31(16) of the Planning and Development Act 2000 as amended

is invalid in so far as it requires the Second Respondent to issue a direction and in doing so

fetters the discretion of the Minister under s. 31AN (9) to disagree with the recommendation

of the Office of the Planning Regulator that the said direction be issued;

5. A Declaration that the Board when deciding to grant permission for the proposed

development section under s.37G of the Planning and Development Act, as amended, in

circumstances where the proposed development, or part thereof, contravenes materially the

Kilkenny County Development 2014-2021 and or the Kilkenny City and County Development

Plan 2021 to 2027 had an enhanced duty to give reasons for contravening a provision of

the development plan relating to the protection of the environment or habitats or species

under EU law, and or arising from the recognition given by the State to the role of local

government in providing a forum for the democratic representation of local communities, in

exercising and performing at local level powers and functions conferred by law and in

promoting by its initiatives the interests of such communities pursuant to Article 28A.1 of

Bunreacht na hÉireann and erred in failing to give reasons and the decision must be quashed;

6. 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.

7. 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.

8. 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.

9. Further and other orders including interim orders.”

Grounds of challenge

46. The core grounds of challenge (including the latest ground added on the s. 146A issue) are

as follows:

“PART 1 - CORE GROUNDS

DOMESTIC LAW GROUNDS

1. The impugned decision is invalid and contrary to s.37G(1) (c) of the Planning and

Development Act, 2000 as amended because the Board failed to consider those provisions

of the Kilkenny Development Plan 2014 to 2021 that did not cease to have effect on the

coming into effect of the Kilkenny City and County Development Plan 2021 to 2027 due to

the issuing of a Notice by the Office of the Planning Regulator to the Minister for Local

Government and Planning (‘the Minister’) pursuant to s.31AM (8) of the Planning and

Development Act, 2000 and which remains in effect until the Minister makes a direction

under s.31AN(9) in relation to that notice. Further particulars are set out in Part 2 below.

2. In the alternative, if the Board claims that it considered the relevant provisions of

the Kilkenny Development Plan 2014 to 2021 and granted planning permission in material

contravention of the said development plan pursuant to s.37G(6), the Board erred and acted

contrary to fair procedures by giving no reasons in relation to said decision and had an

enhanced duty to give reasons arising from the recognition given by the State to the role of

local government in providing a forum for the democratic representation of local

communities, in exercising and performing at local level powers and functions conferred by

law and in promoting by its initiatives the interests of such communities pursuant to Article

28A.1 of Bunreacht na hÉireann, and because the provision of the development plan that

was materially contravened was put in place to protect the environment and had been the

subject of a Strategic Environmental Assessment pursuant to Directive 2001/42/EC and s.10

(5A) of the Planning and Development Act, 2000, as amended and a public participation

process in accordance with Article 7 of the Aarhus Convention, and where the material

contravention relates to a matter which may require further Strategic Environmental

Assessment if the Minister so decides. Further particulars are set out in Part 2 below.

3. Should it be pleaded that a final Ministerial Direction is deemed to have been issued

under s.31(16) of the Planning and Development Act 2000 as amended, then s.31(16) is

invalid in so far as it may be pleaded that it obliges the Second Respondent to issue a

direction without further question, because to do so would unlawfully fetter the discretion of

the Minister under s. 31AN (9) to disagree with the recommendation of the Office of the

Planning Regulator that he issue said direction and his discretion to require a further

Strategic Environmental Assessment or Appropriate Assessment pursuant to s.31AN(16)(b).

Further particulars are set out in Part 2 below. [Moved to Core Ground E9A]

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

common sense and the Board made an error on the face of the record in Condition 8 of the

impugned decision when it conditioned the developer to construct wind turbines of fixed tip

height 179 metres and hub height 105 metres and rotor diameter 155 metres which is a

mathematical impossibility and the decision was made contrary to s. 172 IJ of the Planning

and Development Act, as amended in that the Board failed to make available to the public

the main reasons and considerations for the attachment of Condition 8. Further particulars

are set out in Part 2 below.

4A The Commission acted ultra vires its powers under s.146A PDA2000 in purporting to

amend Condition 8(a) of the permission granted in September 2022 by substituting “182.5

metres” for “179 metres”.

EU LAW GROUNDS

5. The impugned decision is invalid and contrary to Articles 2(1) of Directive

2011/92/EU as amended by Directive 2014/ 52/ EU (‘the consolidated Environmental

Impact Assessment Directive’) as transposed by s.172(1) of the Planning and Development

Act, as amended, because the Board failed to adopt all measures necessary to ensure that,

before development consent was given, the project was made subject to a requirement for

development consent and an assessment with regard to its effects on the environment and

was contrary to Article 3(1) because the environmental impact assessment conducted by

the Board did not identify, describe and assess in an appropriate manner, in the light of each

individual case the direct and indirect significant effects of the project on the factors set out

in subsections (a)to (e ) of that section and the Board failed to comply with the transposing

legislation in s.172(1D) and the Environmental Impact Assessment Report did not comply

with the definition set down in s.2(1) of the Planning and Development Act 2000, as

amended and failed to comply Article 1(2)(g)(iv) of the EIA Directive in that are no proper

reasons for the attachment of Condition 8 in the absence of an EIA for the turbine

configurations proposed. Further particulars are set out in Part 2 below.

6. The impugned decision is invalid and the Board acted contrary to s. 172(1g)(c ) of

the Planning and Development Act 2000, as amended because the Board in purporting to

carry out an Environmental Impact Assessment failed to consider properly or at all the

submission made by Kilkenny City and County Council in respect of the visual impacts of

siting a windfarm of the size and scale of the proposed development in the location in

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

7. The impugned decision is invalid in that it contravenes Article 6(3) of the Habitats

Directive as transposed by s. 177V of the Planning and Development Act 2000, as amended,

and in accordance with the case law of the CJEU, in failing to contain complete, precise, and

definitive findings and conclusions capable of removing all reasonable scientific doubt as to

the effects of the proposed works on the Lesser Black Backed Gull, a qualifying interest of

the Saltee Islands Special Area of Conservation (‘SPA’) and or the Kingfisher, a qualifying

interest of the River Nore SPA and or the Freshwater Pearl Mussel a qualifying interest of

the River Barrow and River Nore SAC. Further particulars are set out in Part 2 below.

8. The impugned decision is invalid in that it contravenes Article 6(2) of the Habitats

Directive as transposed into domestic law by s.177S(1) of the Planning and Development

Act, as amended, because the Board failed to take appropriate steps to avoid the disturbance

to the Lesser Black-backed Gull in so far as such disturbance could be significant in relation

to the objectives of the Habitats Directive. Further particulars are set out in Part 2 below.

9. The Second and or Third and Fourth Respondents have failed to fulfil their obligations

under Article 6(1) 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 implemented by SI

477 of 2011 and in particular Article 26 thereof by failing to establish the necessary site

specific conservation objectives and conservation measures in the Saltee Islands SPA

involving, if need be, appropriate management plans specifically designed for the site or

integrated into other development plans, and appropriate statutory, administrative or

contractual measures which correspond to the ecological requirements of the site’s qualifying

interests the Lesser Black-backed Gull and or

• in for the River Nore SPA in relation to the Kingfisher, for which there are no site

specific conservation objectives and or measures; and or

• in for the River Barrow and River Nore SAC in relation to the Freshwater Pearl Mussel,

for which there are no site specific conservation objectives and or measures, and the

published documentation states that the making of conservation objectives is ‘under review’;

and

the impugned decision is invalid as a result because the Board could not conduct an

appropriate assessment and therefore had no jurisdiction to make the decision. Further

particulars are set out in Part 2 below.

INVALIDITY GROUND

9A. Should it be pleaded that a final Ministerial Direction is deemed to have been issued

under s.31(16) of the Planning and Development Act 2000 as amended, then s.31(16) is

invalid in so far as it may be pleaded that it obliges the Second Respondent to issue a

direction without further question, because to do so would unlawfully fetter the discretion of

the Minister under s. 31AN (9) to disagree with the recommendation of the Office of the

Planning Regulator that he issue said direction and his discretion to require a further

Strategic Environmental Assessment or Appropriate Assessment pursuant to s.31AN(16)(b).

Further particulars are set out in Part 2 below.”

The impugned decision

47. The impugned decision provides as follows:

“Decision

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

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

based on the reasons and considerations under and subject to the conditions set out below.

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

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

Reasons and Considerations

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

(a) the National Planning Framework – Ireland 2040,

(b) the Climate Action Plan, 2021,

(c) the Regional Spatial & Economic Strategy for the Southern Region 2020,

(d) the ‘Wind Energy Development Guidelines – Guidelines for Planning Authorities’, issued

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

Draft Amendments, 2019,

(e) the relevant policies and provisions of the planning authority as set out in the current

Kilkenny County Development Plan,

(f) the distance to dwellings or other sensitive receptors,

(g) the submissions made in connection with the planning application,

(h) the likely consequences for the environment and the proper planning and sustainable

development of the area in which it is proposed to carry out the proposed development and

the likely significant effects of the proposed development on European Sites, and

(i) the reports and recommendation of the Inspector.

Appropriate Assessment: Stage 1:

The Board agreed with the screening assessment and conclusion carried out in the

Inspector's report that the River Barrow and River Nore Special Area of Conservation (Site

Code: 002162), the Lower River Suir Special Area of Conservation (Site Code: 002137), the

River Nore Special Protection Area (Site Code: 004233) and the Saltee Islands Special

Protection Area (Site Code: 004002) are the only European sites for which there is a

possibility of significant effects and must therefore be subject to appropriate assessment.

Appropriate Assessment: Stage 2:

The Board considered the Natura Impact Statement and all other relevant submissions and

carried out an appropriate assessment of the implications of the proposed development for

European Sites in view of the site’s conservation objectives for the River Barrow and River

Nore Special Area of Conservation (Site Code: 002162), the Lower River Suir Special Area

of Conservation (Site Code: 002137), the River Nore Special Protection Area (Site Code:

004233) and the Saltee Islands Special Protection Area (Site Code: 004002). The Board

considered that the information before it was sufficient to undertake a complete assessment

of all aspects of the proposed development in relation to the site’s conservation objectives

using the best available scientific knowledge in the field.

In completing the assessment, the Board considered, in particular, the following:

(i) Site specific conservation objectives for these European Sites,

(ii) current conservation status, threats and pressures of the qualifying interest features,

(iii) likely direct and indirect impacts arising from the proposed development both

individually or in combination with other plans or projects,

(iv) view of the Department of Arts, Heritage and the Gaeltacht, and

(v) mitigation measures which are included as part of the current proposal.

In completing the appropriate assessment, the Board accepted and adopted the appropriate

assessment carried out in the Inspector's report in respect of the implications of the

proposed development on the integrity of the aforementioned European Sites, having regard

to the site’s conservation objectives.

In overall conclusion, the Board was satisfied that the proposed development would not

adversely affect the integrity of European Sites in view of the site’s conservation objectives

and there is no reasonable scientific doubt as to the absence of such effects.

Environmental Impact Assessment:

The Board completed an environmental impact assessment of the proposed development

taking account of:

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

(b) the Environmental Impact Assessment Report and associated documentation submitted

in support of the application,

(c) the submissions received from the prescribed bodies and observers, and

(d) the Inspector's report.

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

documentation submitted by the applicant, adequately considers alternatives to the

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

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

Board agreed with the examination, set out in the Inspector's report, of the information

contained in the Environmental Impact Assessment Report and associated documentation

submitted by the applicant and submissions made in the course of the application.

Reasoned Conclusions on the Significant Effects:

The Board considered that the main significant direct and indirect effects of the proposed

development on the environment are, and would be mitigated, as follows:

• Positive environmental impacts would arise during the operational phase from the

generation of renewable energy.

• Noise, vibration, dust, shadow flicker, risk of soil instability and soil erosion and risk of

pollution of ground and surface waters during the construction and/or the operational

phases would be avoided by the implementation of the measures set out in the

Environmental Impact Assessment Report and the Construction and Environment

Management Plan, which include specific provisions relating to the above.

• Biodiversity impacts, including on habitats, badgers, birds, bats, fisheries and aquatic

invertebrates, would be mitigated by the implementation of specific mitigation to protect

badgers, birds, bats, fisheries and aquatic invertebrates, during the construction and/or

operational phases and the implementation of a Biodiversity Management Plan.

• The increase in vehicle movements and resulting traffic during the construction phase

would be mitigated by the upgraded site access, the preparation of a Construction Traffic

Management Plan.

• Landscape and visual impacts would arise during the operational phase from the

insertion of the turbines and met mast into the upland setting, the location and siting of

which would assist in assimilating the works into the landscape.

• The impact on cultural heritage would be mitigated by archaeological monitoring with

provision made for resolution of any archaeological features or deposits that may be

identified.

The Board completed an environmental impact assessment in relation to the proposed

development and concluded that, subject to the implementation of the mitigation measures

proposed as set out in the Environmental Impact Assessment Report, and the

implementation of the measures proposed in the Biodiversity Management Plan, and subject

to compliance with the conditions set out below, the effects of the proposed development

on the environment, by itself and in combination with other plans and projects in the vicinity,

would be acceptable. In doing so, the Board adopted the report and conclusions of the

Inspector.

Proper planning and sustainable development:

It is considered that subject to compliance with the conditions set out below the proposed

development would accord with European, national, regional and local planning, renewable

energy, other and related policy, it would not have an unacceptable impact on the landscape

or ecology, it would not seriously injure the visual or residential amenities of the area or of

property in the vicinity, and it would be acceptable in terms of traffic safety and convenience.

The proposed development would, therefore, be in accordance with the proper planning and

sustainable development of the area.”

Some general considerations

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

under a number of headings as follows:

(i) climate context;

(ii) judicial review principles;

(iii) the law on pleadings;

(iv) the law on challenges to alleged inadequate assessments; and

(v) discretion.

Climate context

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

been rehearsed in previous caselaw include the following:

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

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

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

emphasised a binding legal obligation to address climate change: International Court

of Justice Advisory Opinion of 23 July 2025, Obligations of States in respect of

Climate Change, Verein KlimaSeniorinnen Schweiz and Others v Switzerland (9 April

2024, App. no. 53600/20), International Tribunal for the Law of the Sea, Advisory

opinion, Request by Commission of Small Island States, 21 May 2024, Inter-

American Court of Human Rights, Request by Chile and Colombia, Opinión Consultiva

Oc-32/25 De 29 de Mayo de 2025. At the domestic level see Friends of the Irish

Environment v. Government of Ireland [2020] IESC 49, [2021] 3 I.R. 1, [2020] 2

I.L.R.M. 233, [2020] 7 JIC 3107 (Clarke C.J.) (Irvine P., O'Donnell, MacMenamin,

Dunne, O'Malley and Baker JJ. concurring).

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

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

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

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

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

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

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

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

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

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

mandatory targets for the consumption of energy from renewable sources by

member states.

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

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

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

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

legislation (ss. 14B and 15).

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

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

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

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

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

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

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

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

commitments.

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

2021 establishing the framework for achieving climate neutrality and amending

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

establishes the framework for achieving climate neutrality.

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

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

presumption of overriding public interest for renewable energy projects for the

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

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

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

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

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

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

overriding public interest and for accelerated timelines including requiring judicial

remedies to be the most expeditious available in national law.

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

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

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

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

establishing a relevant domestic regulatory framework relating to budgeting for and

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

Convention on Human Rights Act 2003.

Judicial review principles

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

previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

make a balanced and reasonable assessment of the overall sustainability of

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

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

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

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

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

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

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

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

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

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

per Holland J.

(x) Relief whether by judicial review or otherwise should only be granted where the

point is not academic or hypothetical, in proceedings brought by an applicant

with appropriate standing who has normally been affected in some definite way by

the impugned measure: Cahill v. Sutton [1980] I.R. 269; Mohan v. Ireland and the

Attorney General [2019] IESC 18, [2021] 1 I.R. 293, per O’Donnell J. at pages 301-

302; Odum v. Minister for Justice [2023] IESC 3, [2023] 2 I.L.R.M. 164 per O’Donnell

C.J.

Pleadings

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

in previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2024).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12 May 2017).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

repetition”.

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

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

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

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

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

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

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

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

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

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

Court, 19 October 2023) at §117.

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

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

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

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

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

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

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

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

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

standard is acceptable clarity, not express enumeration.

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

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

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

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

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

objection if it fails either way.

Assessments

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

rehearsed in previous caselaw include the following:

(i) Standard of assessment: appropriate 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).

Discretion

53. Some issues regarding discretion established by the caselaw are as follows:

(i) Judicial review is a discretionary remedy: per Murray J. (Whelan and Pilkington JJ.

concurring) in O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, 1

July 2021) at 43, per Charleton J. in Dun Laoghaire Rathdown County Council v.

Westwood Club Ltd [2019] IESC 43, [2020] 3 I.R. 417 at 10. This historically arose

from the development of judicial review out of the power to grant equitable relief.

(ii) In exercising that discretion however the court is not at large. Factors to be

considered as part of a holistic review of all relevant circumstances in deciding

whether to grant relief and if so what type of relief include the following (see Reid

v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High

Court, 24 January 2024) para. 134):

(a) The action or inaction of the claimant (such as a failure to exhaust an

alternative remedy, delay, laches, waiver, acquiescence or misconduct in

connection with the proceedings)” (O’Connell v. Behan [2021] IECA 186

at 43).

(b) The importance of the provision not complied with - “consideration of

whether the matter concerned is one of importance or of triviality”: per

Finlay C.J. in G. v. DPP [1994] 1 I.R. 374 at p. 378. Thus an

“inconsequential” breach was not a basis for the grant of relief as a

matter of discretion in Kenny v. Dublin City Council [2009] IESC 19

(Unreported, Supreme Court, 5 March 2005) at 79 per Fennelly J.

(Macken and Peart JJ. concurring).

(c) The extent of the non-compliance.

(d) Prejudice or the lack of it to the applicant or anyone else (see O’Connell v.

Behan [2021] IECA 186 at 43: “grounds relating to the impact a remedy

will have on others (such as where the grant of relief would represent an

unwarranted interference with the settled rights or expectations of third

parties)”).

(e) Whether the error was once-off.

(f) Whether the issue is purely historic and cannot reoccur.

(g) The level of deliberation involved in the error and the extent to which

reasonable steps were taken to prevent or identify such an error.

(h) Whether the error was rectified promptly when it came to light (if capable

of rectification).

(i) Whether there is a pattern of non-compliance.

(j) The proportionality of certiorari (as opposed for example to either no

order or declaratory relief only) may also be a factor: in Save Cork City

Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024]

1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ.

concurring) said (without needing to decide the point) that there was “a

great deal of force” in the submission that it would be disproportionate to

quash a decision on the basis of a “technical procedural error”.

(k) grounds relating to “the practical value of the remedy (such as mootness

or futility)” (see Independent Newspapers (Ireland) Ltd. v. IA [2020] IECA

19, [2021] 1 I.R. 384 at para. 78) (O’Connell v. Behan [2021] IECA 186

at 43).

(l) Any other relevant circumstances.

(iii) Discretion also applies at the leave stage of judicial review: De Róiste v. Minister for

Defence, [2001] IESC 4, [2001] 1 I.R. 190 at 204 per Denham J.), per Finlay C.J. in

G. v. DPP [1994] 1 I.R. 374 at p. 378.

(iv) The court can exercise discretion of its own motion because the court itself has to

be satisfied as to the correctness of granting relief: Ballyboden Tidy Towns Group v.

An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22

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

implies that the court has an entitlement to exercise such discretion itself even if a

party doesn’t plead that.

Preliminary issues

54. Core ground 3 was deleted. Core grounds 9 and 9A, and core ground 7 insofar as it concerns

Kingfisher and Freshwater Pearl Mussel, do not arise at present and await the CJEU’s judgment in

Case C-27/25, Knocknamona.

55. Turning to core ground 4, an initial issue was whether the issue of the alleged error in the

board order should be adjourned pending any amendment by the commission under s. 146A of the

2000 Act. The applicants initially said they were largely neutral but complained about whether they

would have to launch separate proceedings and whether the change in the turbine dimensions would

affect bird surveys. They also demanded pre-emptive guarantees that they would get declaratory

relief and costs in such a situation. Ultimately the applicants declined to agree to proceed on the

basis of an assumption that the order would be corrected even subject to the right to challenge that

purported correction and even given their right to revisit this Module if the assumption was falsified.

Unfortunately, that posture doesn’t really make a whole lot of sense.

56. Overall and despite the objection, the separation of powers militates in favour of allowing a

matter to be dealt with administratively rather than have the court wade in to “assist” where its

assistance is neither necessary nor appropriate.

57. So despite the applicants’ unfortunately largely illogical reservations I directed that this

Module would proceed on the assumption that the board order was to be corrected as now proposed,

but that this assumption would be revisited if the commission didn’t carry out the amendment, if

they introduced a different amendment, or if any such amendment was quashed when the applicants

inevitably challenge such amendment by seeking to amend these proceedings. The applicants don’t

have to bring separate proceedings – amendment of the current case will be the quickest way to

deal with this in similar manner to a similar point made by O’Donnell J. in Y.Y. v. Minister for Justice

and Equality [2017] IESC 61, [2018] 1 I.L.R.M. 109. In principle, the statutory time limits apply to

challenge a decision whether one acts by way of new proceedings or by way of an amendment to

add such a challenge to an existing action. Therefore, subject to extension to the extent that it is

available, a statement of grounds, or an amended statement of grounds, needs to be filed within 8

weeks of the decision the subject of the new relief claimed. The detail and ramifications of this can

be addressed in due course along with any counter-arguments.

58. The applicants’ demand for declarations and costs is not only premature but misconceived.

Minor errors don’t warrant even declaratory relief – indeed to grant relief and costs for typographical-

type problems would incentivise querulousness and pointless nit-picking. Indeed the applicants’

querulousness here is rather one-way, because (and one could almost have predicted this) they

opened their case by confessing to errors in their own written submissions.

Domestic law issues

Core ground 1 – effect of the ministerial notice

59. Core ground 1 is:

“1. The impugned decision is invalid and contrary to s.37G(1) (c) of the Planning and

Development Act, 2000 as amended because the Board failed to consider those provisions

of the Kilkenny Development Plan 2014 to 2021 that did not cease to have effect on the

coming into effect of the Kilkenny City and County Development Plan 2021 to 2027 due to

the issuing of a Notice by the Office of the Planning Regulator to the Minister for Local

Government and Planning (‘the Minister’) pursuant to s.31AM (8) of the Planning and

Development Act, 2000 and which remains in effect until the Minister makes a direction

under s.31AN(9) in relation to that notice. Further particulars are set out in Part 2 below.”

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

“CORE GROUND E1

Applicant’s Position:

1. The Minister on 15 October 2021 issued a notice to the Planning Authority under

s.31(3) of the Planning and Development Act containing a draft direction with a requirement

to ‘Reinstate areas designated at Castlebanny to ‘acceptable in principle’ in accordance with

the ‘draft wind energy strategy’ of the draft Plan.’ The Minister’s intervention never came

to a conclusion, and no final direction issued. (See §83-84 State’s Opposition and §11-12

Affidavit of Clara Mulhern).

2. Once the Minister issued the notice, the provisions of s.31(6)(b) PDA2000 were

engaged. The Applicants say the effect of this was that the parts of the 2014 CDP containing

matters that correspond to the matters referred to in the Minister’s notice did not cease to

have effect in relation to those matters and the Board erred in failing to have regard to

matters that it ought to have had regard to.

Board’s Position:

3. The Applicants’ interpretation of s.31(6) is incorrect.

4. First, s.31(6)(a) provides that the provisions referred to in the s.31(3) notice do not

have effect. Section 31(6)(b) means that the corresponding prior provisions in the plan

‘proposed to be replaced’ do not cease to have effect by reason of the s.31(3) notice. It

does not extend those prior provisions beyond the statutory life-span of a development plan,

which would require express and clear terms none of which are present.

5. Second, even taking the Applicants’ case at its high point, proper scrutiny of the

term ‘corresponding’ is required here. In this case, the draft CDP contained (see section

11.4) county specific renewable energy targets including a 100% renewable coverage by

2030. To achieve this, certain ‘zoning’ (and this term is used in a loose sense here purely

for convenience) was proposed to enable this to occur. In this respect, the particular

association between the 100% target and the land which could assist in this is well set out

in the Chief Executive Report on Material Alternations (see Tab 11, TH1) at Section 3.4,

applied pagination, pp.161-162). However, in the prior CDP from 2014 there was no

corresponding county target. Rather, the CDP in 2014 simply recited national and regional

targets and committed to ‘support and implement national and regional renewable energy

targets.’ Indeed, every single one of those national or regional targets was stated to apply

only to 2020 (which, of course, makes sense in 2014). Further, all this was done before

even the advent of SPPRs and SPPR 2 in the Development Plan Guidelines, 2022. The point

here is that when the contents of the notice are viewed as a whole, there is no corresponding

bundle of measures in the 2014 plan. There is nothing corresponding to the contents of the

notice in the 2014 plan.

6. Third, the interpretation offered by the Applicant produces obviously unintended

consequences such as here where the intention of the OPR and Minister (and, indeed, the

thrust of all relevant national guidance) is to the effect that the restriction on achieving

renewable energy targets introduced in the Material Amendments is inappropriate, but that

the price of engaging on that inappropriateness via the statutory scheme would be the ‘re-

engagement’ of prior policies which are to the same, if not worse, effect. Further, insofar

as matters have clearly moved on (e.g. with regard to SPPR 2 in the Development Plan

Guidelines, 2022, changed national and European targets and so on) the term

‘corresponding’ cannot be given an interpretation which simply ignores the reality that the

provisions referred to in the s.31(3) notice do not have any corresponding provisions in the

2014 plan as the 2014 plan and 2021 draft plan were made against materially different

backdrops in terms of both the obligations relevant to the making of a CDP and applicable

renewable targets.

Notice Party Position:

7. The Applicants’ interpretation of s.31(6)(b) would lead to an absurd result, as it

would reinstate the very policy that the Minister sought to remove. This would undermine

the legislative purpose of Section 31 and frustrate the implementation of national and

regional policies: The Appellants purported interpretation involves the cardinal error

cautioned against by the Supreme Court in Heather Hill, of an overly literal interpretation

focusing exclusively on the words of the subsection, ignoring the legislative context and

purpose. Instead of reading section 31(6)(a) and (b) in harmony with each other, the

Applicants have sought to interpret the subsections in disharmony to each other.

8. The Notice Party submits that the Applicants’ argument is based on a strained and

overly narrow and ultimately erroneous reading of s.31(6) of the 2000 Act. The Notice Party

contends that the provisions of the 2014 Development Plan do not continue to apply for the

following reasons:

(i) Section 31(6)(a) ensures that the part of the 2021 Development Plan covered by

the draft Direction (i.e., the ‘open for consideration’ designation) does not take effect. This

reflects the purpose of the Minister’s intervention to prevent such policies from adversely

impacting planning applications.

(ii) Section 31(6)(b) applies only where there is a corresponding matter in the earlier

plan. The wind energy strategy under the 2014 Development Plan does not correspond to

the 2021 Development Plan, as the frameworks and national policy considerations

significantly differ. The Applicants’ narrow focus on the designation of the Castlebanny area

ignores the broader context of the wind energy strategy.

(iii) The Minister’s notice under s.31(3) was intended to reinstate the ‘acceptable in

principle’ designation under the draft 2021 Development Plan, not to revive the ‘open for

consideration’ designation under the 2014 Development Plan. The Applicants’ interpretation

entirely omits the express terms of the draft direction which referred to reinstating the

‘acceptable in principle’ designation.

(iv) Sections 31(6)(a) and (b) must be interpreted harmoniously to ensure that the

offending policy does not have effect. The Applicants interpretation is to disharmoniously

interpret the subsections pulling against each other. The Applicants’ interpretation would

render the Minister’s notice otiose and contradict the legislative intent behind Section 31,

which is to ensure compliance with national and regional policies. The Notice Party relies on

Heather Hill Management Company v. An Bord Pleanála [2022] 2 ILRM 313, where the

Supreme Court emphasised that statutory interpretation must consider the language,

context, and purpose of the legislation. The Applicants’ narrow focus on the literal wording

of s.31(6)(b) ignores the broader legislative context and purpose.

(v) Even if the Applicants were correct and ‘open for consideration’ designation in the

2014 Development Plan continued to apply, the Board would still have been able to grant

permission for the windfarm under s.37G(6) of the 2000 Act. This provision allows the Board

to grant permission for development that materially contravenes the development plan. The

Notice Party refers to Coolglass Windfarm Limited v. An Bord Pleanála [2025] IEHC 1, where

the High Court confirmed that the Board’s power to materially contravene a development

plan under s.37G(6) is broader than under a ‘standard’ s.34 planning application. The

Inspector’s report confirmed that the proposed windfarm was compatible with the general

climate change and renewable energy aspirations of the 2021 Development Plan.

(vi) Even if the Inspector erred in failing to consider the 2014 Development Plan, this

error would fall into the category of harmless error. The Board’s decision would not have

been materially different, as the Inspector and the Board were satisfied that the proposed

windfarm was suitable for the Castlebanny lands. The Notice Party relies on Massey v. An

Bord Pleanála (No. 2) [2025] IEHC 206, where the High Court held that a decision should

not be quashed for harmless error if the error did not materially affect the outcome.”

61. Section 31(6) of the 2000 Act (substituted on 5 October 2010 by the Planning and

Development (Amendment) Act 2010, s. 21, commenced by S.I. No. 477 of 2010) provides:

“(6) (a) Notwithstanding section 12(17), 13(11) or 20(4A), a plan shall not have effect in

accordance with those sections in relation to a matter contained in the plan which is referred

to in a notice under subsection (3).

(b) If a part of a plan proposed to be replaced under section 12, 13 or 20 contains a matter

that corresponds to any matter contained in that plan which is referred to in a notice under

subsection (3), that part shall not, save where subsection (17) applies, cease to have effect

in respect of that matter.”

62. Sections 13(11) and 20(4A) are not especially relevant here.

63. Subsection 31(17) provides:

“(17) The direction issued by the Minister under subsection (16) is deemed to have

immediate effect and its terms are considered to be incorporated into the plan, or, if

appropriate, to constitute the plan.”

64. This doesn’t apply because the Minister never got to the stage of following up the notice with

a direction under sub-s. (16).

65. Section 12(17) provides:

“(17) A development plan made under this section shall have effect 6 weeks from the day

that it is made.”

66. There are essentially three issues:

(i) interpretation of the section – does it have the effect that the old plan continues

into the lifetime of the new plan;

(ii) application of the section – is the relevant provision of the old plan here actually

one that corresponds to the new plan; and

(iii) discretion – if the applicants are correct on the interpretation of the section and its

application here, should relief be refused having regard to discretionary factors.

67. As regards interpretation, the applicants are clearly correct. If the section meant, as the

commission contend, that the old plan ceased to have effect in toto when the new plan came into

force, whether there was a notice or not, then s. 31(6)(b) would be meaningless and unnecessary.

68. The commission attempts to brush the problem aside by invoking the phrase ex abundante

cautela (relying on Carney v. Balkan Tours Ltd [1997] 1 I.R. 153).

69. There are two obvious and insuperable problems with that attempt to spray a veneer of

legalism over the problem:

(i) The new correspondence provision was clearly regarded as significant by the

legislature – that wouldn’t be consistent with an ex abundante cautela approach. In

other words, if the Oireachtas was introducing something for the avoidance of doubt,

that is inconsistent with creating what would, on that hypothesis, be massive new

doubt by for the first time expressly distinguishing between corresponding and non-

corresponding provisions.

(ii) There is a logic to reading the provision as meaning what it says. The concept of

provisions continuing to apply on the basis of correspondence has a clear policy

rationale – because it would allow continuation of the status quo but not new

provisions.

70. On the applicants’ interpretation, there is a clear rationale for para. (b) – the ministerial

notice acts as a block on any new provision in an incoming plan to which the Minister objects – but

not as a block on the continuation of any provision that was validly adopted in a previous plan and

not objected to at that stage. That is a reasonable balance between the powers of the Minister to

intervene and a presumption in favour of continuing the status quo adopted by the council, but not

of allowing a new provision.

71. Contra the commission, the concept of “corresponding” provisions relates to the extent of

the provision itself, not the amorphous rationale of the provision. The fact that the reason for the

provision has changed here since 2014 is not decisive. Otherwise the section would be unworkable

because the policy context is constantly changing in all areas so the rationale for anything will change

over time. The commission’s logic, if you want to unjustifiably dignify it with that term, proves too

much because it shrinks the provision to vanishing point and renders it academic and essentially

meaningless.

72. Something can’t cease to be corresponding by reason of immaterial differences. So if a new

provision partly corresponds to an old provision, but any differences are not material in a particular

context, then that can’t prevent the application of the section.

73. The 2014 plan involves four different categorisations, preferred, open for consideration and

unsuitable, as well as a residual area of “rest of county”:

“10.5.4 Wind Energy Policy Areas

Wind energy developments can be divided into four categories depending on their scale, as

follows:

(a) Individual wind turbines

(b) Autoproducer

(c) Small scale wind developments (5 or less turbines and output less than 5MW)

(d) Large scale wind developments

The county has now been divided into three policy areas for the development of wind farms,

based on an assessment of viability against other considerations; Preferred, Open for

Consideration and Unsuitable. A matrix is set out below outlining which of the various

category scales will be considered in each Wind Strategy area.”

74. There is then a matrix providing that large scale wind farms are only an option in preferred

areas, not open for consideration.

75. As regards the rest of the county, the applicants argue, convincingly, that the designation

“rest of county” applies (para. 10.5.4) and thus there is not a policy vacuum – large scale wind

farms remain unacceptable in any other area. That’s what the plan expressly provides. The notice

party argues that only high wind speed areas were considered but that in itself reinforces the idea

that other areas weren’t intended to be covered by permissive provisions.

76. The developer summarises the position in respect of this particular area:

“Castlebanny is identified as Area 18 ‘Open for Consideration’. Is states that ‘this area has

some heritage considerations but due to its location at a remove from centres of large

populations, windfarms developments may be acceptable’. in response to the potential for

impacts, this EIAR has carried out assessments on cultural heritage in Chapter 15 and

tourism in Chapter 5 Human Health and Population and has taken into account the potential

impacts to Jerpoint Abbey as well as the South Leinster way (See Chapter 13 (Landscape

and Visual Impact) and Chapter 15 (Cultural Heritage).”

77. The adopted 2021 plan includes:

“11 Renewable Energy

Strategic Aim: To generate 100% of electricity demand for the County through renewables

by 2030 by promoting and facilitating all forms of renewable energies and energy efficiency

improvements in a sustainable manner as a response to climate change in suitable locations

having due regard to natural and built heritage, biodiversity and residential amenities.

11.1 Introduction

Kilkenny County Council is a signatory to the Covenant of Mayors – a European cooperation

movement involving Regional and Local Authorities which is aimed at increasing energy

efficiency and the use of renewable energy. Renewable energy sources are defined here as

inexhaustible natural resources which occur naturally and repeatedly in the environment.

These sources include the wind, solar, oceans, bio (plant life) and falling water. Kilkenny

County Council has also signed up to the Climate Action Charter for Local Authorities which

commits the local government sector to a range of measures including: delivering a 50%

improvement in energy efficiency by 2030 (compared to the 2009 baseline); exercising

planning and regulatory roles to help improve climate outcomes in the wider community and

beyond the public sector, by developing and implementing robust evidenced based policy

and standards on climate action, through appropriate and relevant adaptation and mitigation

measures. Kilkenny County Council has also recently joined the European Climate Alliance

(in September, 2020), which among other things commits the Council to reduce CO2

emissions by 10 percent every 5 years, equivalent to the halving of per capita emissions by

2030 (from a 1990 baseline).

Ireland and Kilkenny have excellent renewable energy (RE) resources, which will be a critical

and growing component of Irish energy supply to 2020 and beyond. Indigenous renewable

energy already plays a vital role in our domestic fuel mix. It also increases sustainability

through the use of clean power sources and enhances energy security by reducing Ireland’s

dependence on imported fuels. Ireland has established an ambitious and challenging target

of increasing reliance on renewables from 12.8% to 34.1% by 2030, 70% of which is

renewable electricity.

Kilkenny County Council passed a Sustainable Energy Action Plan in January 2017 and are

monitoring and reporting this through 3 Counties Energy Agency every 2 years on

www.energyhub.ie

From data collected, CO2 emissions values for Kilkenny began moving off the 2020 trajectory

as we moved out of recession period earlier in the last decade.”

78. It goes on to draw from Climate Plan targets that didn’t exist in 2014:

“11.1.1 National Renewable Energy Targets

Table 11.1: …

It is the policy of this Plan to:

• Support the implementation of the NECP (National Energy & Climate Plan (NECP) 2021-

2030 https://www.dccae.gov.ie/en-ie/energy/publications/Pages/National-Energy--

Climate-Plan(NECP)-2021-2030.aspx) and associated adaptation & mitigation measures

• Support the implementation of Ireland’s Transition to a Low Carbon Energy Future

• Support the implementation of the All of Government Climate Action Plan (CAP) and

associated adaptation and mitigation measures

• Support the sustainable development, maintenance and upgrading of electricity and gas

network grid infrastructure to integrate a renewable energy sources and ensure our national

and regional energy system remains safe, secure and ready to meet increased demand as

the regional economy grows.

• Support the sustainable development of renewable solar photovoltaic energy at

appropriate locations and related grid infrastructure in the region in conjunction with the

Renewable Electricity Support Scheme (RESS).

• Support alternative forms of renewable energy for the electricity, heat, and transport

sectors

• Support the integration of indigenous renewable (Non fossil) Compressed Gas, either by

local virtual pipelines or grid injection into existing or future Fossil Gas Lines.

Due to the ambitious targets set out by the Irish Government for renewables, this City and

County Development Plan sets out a Renewable Energy Strategy here, taking into account

the ever-changing landscape and the demand for renewable energy supply.

In this chapter the policy context for all renewables is outlined. This includes an analysis of

each type of renewable energy within the county, covering three aspects as follows:

• An analysis of the resource potential,

• An outline of development management guidelines including potential impacts and

• Objectives and policies for their future development.”

79. And:

“11.2 Three Counties Energy Agency (3CEA)

The 3 Counties Energy Agency was established to provide independent and sustainable

energy information, support and services to the people of Carlow, Kilkenny and Wexford, to

local businesses and community groups and to their Core Local Authorities.

The 3CEA has extensive experience in supporting energy efficient and renewable energy

projects for public and private actors, in particular for community developments. The 3CEA

has the following Strategic Goals:

• Energy Efficiency

• Clean Energy (Increase Renewable Energy production locally)

• Empowered Citizens

• Sustainability

11.3 Policy context

As a signatory to the Paris Agreement, the Irish Government has committed to a

decarbonisation pathway to 2030 consistent with reaching the EU Target of Zero emissions

by 2050. The EU key targets are;

• At least 40% cuts in greenhouse gas emissions (from 1990 levels)

• At least 32% share for renewable energy

• At least 32.5% improvement in energy efficiency

Ireland’s targets include at least 40% reduction in domestic Green House Gas emissions by

2030 compared to 1990 and an increase to 27 percent in renewable energy consumption.

The Government’s Climate Action Plan sets out an ambitious course of action over the

coming years to address climate disruption. The Plan clearly recognises that Ireland must

significantly step up its commitments to reduce emissions and sets out targets per sector.

In relation to onshore wind energy, the Plan estimates that in 2017 the total contribution of

onshore wind was 3.3 GW. To meet the required level of emissions reduction, by 2030 the

Plan aims to increase electricity generated from renewable sources to 70%, indicatively

comprised of:

• at least 3.5 GW of offshore renewable energy

• up to 0.4 GW of grid-scale solar energy (NDP: 1.5 GW)

• up to 8.2 GW total of increased onshore wind capacity The National Planning Framework

(NPF) identified the importance of climate change in National Strategic Outcome (NSO) 8,

which relates to ensuring a ‘Transition to a Low Carbon and Climate Resilient Society’.

National Policy Objective 55 seeks to ‘Promote renewable energy use and generation at

appropriate locations within the built and natural environment to meet national objectives

towards achieving a low carbon economy by 2050’.

Action no. 21 states as follows: Ensure that updated planning guidelines for onshore wind

are published in 2019. These Guidelines are currently in draft.

The Department of Communication, Climate Action and Environment (DCCAE) published in

2020 the National Energy and Climate Plan (NECP) 2021-2030 and a revised Renewable

Electricity Policy Development Framework, intended to guide the development of large scale

renewable electric projects on land. These plans, together with the Climate Action Plan 2019

are committed to a net zero carbon energy system for Ireland. The Climate Action Plan

identifies how Ireland will achieve its 2030 targets for carbon emissions and puts the country

on a trajectory to achieve net zero carbon emissions by 2050.

The key objectives of the Climate Action Plan are as follows:

• Increase renewables from 30% to 70% adding up to 8.2GW of renewable onshore wind

energy capacity

• Deliver the Renewable Electricity Support Scheme (RESS) which will provide support for

renewable electricity projects in Ireland through a series of scheduled, competitive auctions.

• Put in place a coherent support scheme for micro-generation with a price for selling power

to the grid for homes and businesses.

• Open up opportunity for community participation in renewable generation as well as

community gain arrangement;

• Streamline the consent system, the connection arrangements and the funding support for

the new technologies both onshore and off shore.”

80. The narrative text provides:

“The final Strategy map, Figure 11.4 was then modified by resolutions at the Council

meetings on the 8th June 2021 on the 3rd September 2021.

The Council’s Wind Energy Strategy is attached as Appendix K.

Accordingly, the county has been divided into three policy areas for the development of wind

farms, based on an assessment of viability against other considerations; ‘Acceptable in

principle’, ‘Open for Consideration’ and ‘Not normally permissible’. A matrix is set out below

outlining which of the various category scales will be considered in each Wind Strategy area.

Figure 11.4 shows a map of County Kilkenny with areas designated in accordance with their

suitability for wind energy development.

Wind Energy Policy Areas:

Wind energy developments can be divided into five categories depending on their scale, as

follows:

(a) Individual wind turbines

(b) Auto producer

(c) Small scale wind developments/Community Schemes (Compliant with the RED II

Directive definition of community)

(d) Large scale wind developments

The Plan provides policy areas for a wide range of wind energy developments. The plan

considers the potential for the landscape to absorb a variety of projects, ranging from large

scale wind farm projects to relatively small-scale wind energy developments within urban

and industrial areas, and for small community-based proposals outside the key areas that

are identified as being appropriate for wind energy development. Community ownership of

wind energy projects enables local communities to benefit directly from local wind energy

resources being developed in their local areas, ensuring longterm income for rural

communities and community benefit funds being mandatory for projects built post 2021

(Contact www.3cea.ie for further information).”

81. There is then a matrix whereby “large-scale wind farm” is only permitted in acceptable in

principle areas, not open for consideration.

82. Appendix K to the written statement includes narrative explanation for the categories:

“Wind Energy Strategy Areas

Strategic Area Description and Guidance

Acceptable in Principle This is the preferred area for wind energy

development, characterised by high wind

speeds, and no significant conflict with

environmental designations or sensitivities.

Open for Consideration This area is characterised by no significant

conflict with environmental designations or

sensitivities.

Not Normally Permissible This area is considered to be generally

unsuitable for wind farm development.

Individual turbines will be considered on a

case-by-case basis.

Detail on the project categories and policies for their development are set out in Chapter 11

of Volume 1.”

83. The problem for the commission is that while there are differences, and differences in the

rationale and policy context, the old plan and the adopted plan have the same provision that large-

scale wind farms are not permitted at (most of) the development site. That is a corresponding

provision and thus continues in force under para. (b) to the extent that it corresponds – in particular

only in geographical areas subject to both the 2014 and adopted 2021 provisions. The notice party’s

argument that if a particular geographical area changes for planning policy purposes then there is

no corresponding provision takes matters too far – one can have correspondence to a particular

extent and in this case, to a particular geographical extent.

84. That doesn’t take from the technical nature of the problem or what the commission calls “an

utterly changed legal environment”.

85. The key part of the ministerial notice of 15 October 2021 is as follows (emphasis added):

“The Planning Authority is hereby directed to take the following steps with regard to the

‘wind energy strategy’ within the Development Plan:

a) Reinstate sections 11.4 and 11.5.1 of the draft Development Plan, including the

identification of 201 MW renewable energy to meet the objective for the generation of 100%

of electricity needs from renewable sources for the county by 2030 consistent with the

Climate Action Plan.

b) Amend the adopted wind energy strategy map (reference Figure 11.4) to ensure

consistency with the renewable energy target at (a) above as follows:

i. Reinstate areas designated at Templeorum/Mullenbeg to ‘acceptable in principle’ in

accordance with the ‘draft wind energy strategy’ of the draft Plan.

ii. Reinstate areas designated at Castlebanny to ‘acceptable in principle’ in

accordance with the ‘draft wind energy strategy’ of the draft Plan.

iii. Reinstate the 3 no. smaller areas to the south of the county as ‘acceptable in principle’ in

accordance with the ‘draft wind energy strategy’ of the draft Plan.”

86. Then inspector dealt with the matter as follows:

“The proposed windfarm would be compatible with the general climate change and

renewable energy aspirations contained in the current Development Plan, which seek to

promote sustainable development and measures to reduce energy demand and greenhouse

gas emissions, and adapt to climate change. However, there are no specific local planning

policies pertaining to renewable energy following a Ministerial Direction dated 15th October

2021. This Directive stated that those parts of the Kilkenny City and County Development

Plan 2021-2027 referred to in the notice served on the Council shall be taken not to have

not come into effect, been made or amended, namely, Chapter 11, Renewable Energy

Section 11.4 Kilkenny Targets, Section 11.5.1 Current status and targets and Figure 11.4

Wind Strategy areas. Notwithstanding this Direction, the Development Plan continues to

contains a plethora of policies and objectives which seek to protect the environment,

European sites, biodiversity, scenic landscapes, views, residential amenity, cultural heritage

and the road network. These issues will be addressed in the relevant Environmental Impact

Assessment sections and Appropriate Assessment chapters of this report.”

87. In terms of the provisions of the old plan that should have continued as being corresponding,

the commission argues (emphasis added):

“20. Taking the case at its height, the requirement under s.31(6)(b) would be to examine

the notice and see what it refers to and then examine the ‘plan proposed to be replaced’ and

see what matters corresponds to the matters in the notice, then the former does not cease

to have effect in respect of that matter. The notice here (i.e. the Draft Direction) ‘refers’ to

(insofar as is relevant) the very specific matter of restoring the original draft plan’s label of

‘acceptable in principle’ as displayed in the Draft Wind Strategy Area (also referred to as

Figure 8) in the Draft Appendix K (see applied pagination, p.20, Tab 7 to TH1) instead of the

adopted labelling as seen in the adopted Figure 8, Wind Strategy Areas (see applied

pagination, p.21, Tab 12B to TH1). In short, the change was to go from the adopted ‘open

from consideration’ to bring back the partial ‘acceptable in principle’ in the Castlebanny area

– i.e. ‘Reinstate areas designated at Castlebanny to “acceptable in principle” in accordance

with the “draft wind energy strategy” of the draft Plan’ (see Draft Direction and Letter of 15

October 2021, Tab 15 to TH1).

21. In addition, it required reinstatement of sections 11.4 and 11.5.1. The Court can

see the deleted text most clearly in Tab 9 of TH1 with the Proposed Material Amendments

at applied pagination of pp.24-25. This meant that text was required to ‘go back in’ that set

out the policy target (which does no more than track the Climate Action Plan in any event)

and outline the gap to meeting that target.

22. So, having identified that, the question is then what in the plan proposed to be

replaced corresponds to that. The first part of the answer is that the corresponding ‘zoning’

or geographic labelling for wind energy. And when one examines that and looks at Figure

10.2 in the 2014 CDP (see Tab 4A to TH1 on a non-paginated page between the applied

pagination at p.165 and p.166) the corresponding matter is a ‘zoning’ or geographic

labelling of open for consideration. And the second part of the answer is that in lieu of

statements of targets etc at 11.4 and 11.5.1 the only corresponding matter could be a

similarly forensically formed part of the text (which the Applicants have not identified).

23. The Applicant’s mistake is basically to say in their submissions at §31-45 that the

effect of the Direction when translated through s.31(6)(b) is that everything about wind

location in the 2014 plan ‘lives on’ ignoring that a far more forensic surgery is required by

the Court – i.e. what does not cease to have effect is that which, on a strict and close

analysis, corresponds, with the notice and no more. In this respect, the application of

s.31(6)(b) should be as strict as is commensurate with the clear enjoinder of the Courts to

recall that these powers must be interpreted cautiously and effect should not be given to

such legislation as Collins J held in Spencer Place Development Company Limited v. Dublin

City Council [2020] IECA 268 at §28 beyond what is clearly provided for.

24. So, if the Applicant is correct on this point the real and pressing question is – when

the Court applies the rigour necessary to the term ‘corresponding’ – what, in substance, are

the corresponding provisions of the 2014 plan that mean a grant in this case is a material

contravention of same? The land is open for consideration, and the statements of targets

do not, in any way, operate to ground a material contravention case. In short, nothing ‘real’

arises with this complaint once proper attention is given to the term ‘corresponding’ and

even if correct, none of this really advances the Applicant’s claim for certiorari as it makes

no difference at all. If anything, it actually means the Board should have viewed the lands

as ‘open for consideration.’”

88. When the commission’s misconceived approach to the meaning of the legislation began to

disintegrate on examination, it skilfully and astutely pivoted to the issue of discretion, which is a

much stronger vantage point to defend the outcome here. Under that heading, while ultimately I

agree with the applicants’ essential interpretation of the legislation (which leads me to the conclusion

that it would have been more correct for the board to hold that permission should be granted

notwithstanding the vestigial continuation in force of the old plan matrix regarding “open for

consideration” projects due to the ministerial notice – not that the applicants accepted that that was

the consequence), the is not a basis to quash the permission in the principled (and not at large)

exercise of the court’s discretion having regard to the following highly specific matters:

(i) What the commission calls the “true nature” of the policies indicates quite a bit of

text that is capable of supporting renewable energy developments rather than being

wholly preclusive. The text focuses on issues such as environmental effects rather

than being phrased in entirely absolutist terms.

(ii) The non-compliance is a highly technical point occurring in a highly technical context

– the interregnum between two plans and between a ministerial notice and a

direction that has yet to arrive.

(iii) The technical nature of the issue is further underlined by the fact that the provision

of the old development plan in this type of situation can continue indefinitely if no

direction is made, so potentially could be in force many years later. So the policy

value of any such provision must be diluted correspondingly.

(iv) The applicants haven’t pleaded any tangible environmental damage caused by the

non-compliance – the point is pleaded as a technicality. Unlike say removal of

hedges or visual impacts due to breach of heights requirements, this isn’t a case

where the project causes harm that could plausibly mean that the decision would

have been different.

(v) Insofar as the old plan was restrictive, the value of that in policy terms was diluted

to vanishing point by the fact that the Minister had countermanded that and required

the council to insert a more permissive provision for renewable energy, even bearing

in mind that the old plan was technically in force to a limited extent.

(vi) To quash the permission on the basis of an not-demonstrably-consciously-intended

side effect of a ministerial intervention which was designed to encourage permissions

of this nature would be perverse, counterproductive and inappropriate and indeed

would tend to bring the law into disrepute.

(vii) The board was not required to go through any special procedure to contravene or

materially contravene the development plan by virtue of the SID nature of the

development. Similar to Ryanair Designated Activity Company v. An Bord Pleanála

[2025] IEHC 74 (Unreported, High Court, 14 February 2025), the fact that there was

a (relatively technical) contravention of the matrix isn’t something that precluded

permission or required the board to do anything special by way of procedure.

(viii) The permission operates on the basis of what the commission calls a “blank slate”

and so concludes that the project is in accordance with proper planning and

development. In such circumstances it is unlikely to vanishing point that the

technical non-compliance with the temporarily continued provision of the old plan

(in a context when the Minister was seeking a more permissive provision in the new

plan) would have been a basis of refusal.

(ix) Thus the concerns are expressly met by the inspector’s first principles approach to

proper planning and sustainable development and renewable energy policy in

particular.

(x) More broadly, national, European and international law and policy on renewable

energy has changed beyond recognition in the years since the 2014 plan was

adopted.

(xi) Overall, we need to bear in mind the urgent need – recognised in international,

European and domestic law – for renewable energy infrastructure in the context of

the climate emergency as a strong factor affecting discretion.

(xii) Irrespective of how precisely climate legislation is to be interpreted, it either provides

a complete answer in itself to the question of whether the decision could lawfully

have been different or at a minimum reinforces the answer to be drawn from all of

the other circumstances.

(xiii) It is established law that discretion in a domestic context can be somewhat more

flexible than that in an EU law context. This is a breach of a purely domestic rule.

But the factors favouring discretion being exercised are so overwhelming that we

come nowhere near to the outer contours of the doctrine.

89. The applicants had a fair bit to say about the above in the draft judgment – so much so that

their complaints are nearly a masterclass in applicants’ fallacies. Most of the rest of this section of

this judgment (under the heading of core ground 1) is an attempt to examine the points made by

the applicants in response to the draft judgment. They started unpromisingly by a glaringly obvious

misconstruction of the opening sentences of the previous paragraph, but rather than waste time and

energy in a tedious debate about that, I have amended that phrasing. Their next point is:

“It is respectfully suggested that it is not appropriate for the Court to decide what the Board

should/would have held - if the Board had appreciated that the relevant parts of the 2014

Plan remained in force. It is for the Board and not the Court to make that decision, and that

separation of powers is not affected or altered by any of the factors which the Court has

identified.”

90. I am going to call this Fallacy A (argue for inoperable legal tests). The problem with

that argument is that it manifests a pervasive idée fixe on the applicants’ side of the house that

while (a) there may be a grudging admission that discretion or the harmless error doctrine or de

minimis principles may theoretically exist, this is subject to the notion that (b) the court can’t ask

what the decision would have been without an error (cue the tediously predictable clichés about

stepping into the shoes of the decision-taker, forbidden territory and so on). The problem with

adding proposition (b) is that it totally nullifies proposition (a). There can never be a doctrine of

harmless error unless the court was able to determine whether there was harm. That involves

asking what the decision would have been without the error – and receiving fresh evidence on that

including from a developer, not from the decision-taker. The CJEU said this expressly in the

judgment of 7 November 2013, Gemeinde Altrip and Others v Land Rheinland-Pfalz, C‑72/12,

ECLI:EU:C:2013:712 – and it is discussed elsewhere at excessive length in caselaw. One wonders

if it is really necessary to say all this again, but I suppose that goes with the territory when one is

confronted with the eternal Groundhog Day of an idée fixe.

91. We now come to Fallacy B (blow gas into any minor errors):

“Regarding ‘vestigial’ - and ‘merely vestigial’ in 83(iii) which refers back – the Applicants

suggest this is not an accurate description of the relevant parts of the 2014 plan, as it

appears to downplay their relevance and importance. The Cambridge English Dictionary

(Online) offers two definitions – ‘being a small remaining part or amount’; or (medical,

specialized) ‘used to describe something, especially a part of the body, that has not

developed completely, or has stopped being used and has almost disappeared’. It also offers

‘vestigial’ as a synonym for ‘Of little or less importance’.

While the relevant provisions of the 2014 may comprise a ‘small’ part of the overall plan,

they are an extremely significant and important part of the plan is it relates to wind energy,

and were the operative provisions for this application. They had not ‘stopped being used’

and had not ‘almost disappeared’ – they are precisely what the Board was meant to use.”

92. The problem with the second set of propositions is that they are just a very literate and

skilful presentation of something we know already, namely that the commission didn’t apply the

section correctly. Blowing gas into that problem by calling the plan provision extremely significant

and important, precisely what the board should have used, and so on, does precisely nothing to

nullify the far more weighty constellation of factors amassed on the other side of the equation. The

Minister was trying to make the plan more renewables-friendly (even acknowledging that, as we all

know, he didn’t see that attempt through to the final step as yet), and the commission reviewed the

situation on a first principles basis and approved the application anyway. Yes of course we also

know they should not have started on a blank page, but the fact that they came fresh to the problem

tells us a lot about where they thought the policy balance should lie. This wasn’t a case where the

plan, had it been considered, had some kind of impregnable status that would have prevented the

grant of the permission.

93. The applicants’ next point is:

“Para 82(ii) ‘The non-compliance is a highly technical point occurring in a highly technical

context’ (and other references to the ‘technical’ nature of the issue)

The transition between two plans, the possibility of ministerial intervention, and the effect

on decision makers, is of significant importance and is something for which the Oireachtas

has expressly legislated. The fact that the legislation is complex and detailed does not mean

the issue it addresses is unimportant or unmeritorious or can be downplayed. The County

Development Plan is central to the assessment of planning applications and the concept of

proper planning and development, so it is vital that a decision maker correctly identify the

applicable provisions. To characterise the point and the context as ‘technical’ is to devalue

its importance – the Board did not apply the relevant criteria, and there clearly is a significant

difference between the relevant criteria and the criteria the Board actually applied.”

94. I don’t know about the reader, but from my standpoint this submission totally proves the

point I was trying to make that this issue is a highly technical point occurring in a highly technical

context. What’s missing from this is why as a matter of substantive merits the fading shadow of a

provision in the new plan that is a ghostly remnant of the old plan has to be something that

automatically trumps every, or even any, other consideration in a context where the Minister has

triggered a procedure to eradicate that provision. If this isn’t technical I don’t know what is.

95. Otherwise this point is just a reformulation of Fallacy B.

96. I accept the submission of the commission:

“Para 82(ii)

The Court's conclusion that this is a highly technical point occurring in a highly technical

context is entirely correct in circumstances where the Court has concluded that even if the

Commission had taken into account the relevant provisions of the 2014 CDP it would have

made no difference to the decision. No legal or factual error is identified by the Applicants.”

97. I also accept the submission of the notice party:

“Para 82(ii) / ‘technical’ point: We agree with the Court that the issue is a technical one.

The Court’s conclusion that the outcome would have been unaffected even had the 2014

provisions been considered is a conventional and correct application of discretionary

principles.”

98. The applicants’ next point is:

“Para 82(iv) ‘The applicants haven’t pleaded any tangible environmental damage caused by

the non-compliance – the point is pleaded as a technicality. Unlike say removal of hedges

or visual impacts due to breach of heights requirements, this isn’t a case where the project

causes harm that could plausibly mean that the decision would have been different.’

Without prejudice to the contention that an Applicant is not required to plead matters

relevant to withholding relief on discretionary grounds, especially when the other parties

have not pleaded why relief should be withheld on discretionary grounds, in fact the

Applicants quoted at length (para 52) from the Kilkenny Chief Executive’s Report which in

the context of Non-compliance with ‘Open for Consideration’ criteria in the Development Plan

identifies - Excessive scale & height; sensitivities of the landscape; Insufficient consideration

of residential amenities within 1 to 2km; Visual impacts; Residential amenity impacts;

significant negative impacts on the natural and built environment of the area; see also para

12, 23 and 24.

The Applicants further at para 48 identified that according to Section 10.5.4 of Chapter 10

of the 2014 CDP the rationale behind the policy that Largescale wind energy development

would in normal circumstances only be considered in ‘preferred areas’ was to minimise the

visual impacts of such large scale developments, in addition to

effects on the environment of County Kilkenny as a whole, as well as to facilitate appropriate

grid connections.

Clearly the development was ‘opposed by local interests’ (see Roughan v. Clare County

Council [1991] 2 I.R. 527 and Maye v Sigo County Council [2007] IEHC) - and opposed by

reference to the relevant Development Plan provisions – see the submission of the Kilkenny

Chief Executive. However, the Board did not take into account the relevant provisions of

the Development Plan; and further, there is no evidence from the relevant Board members

as to what their decision would have been if they had.”

99. I will have to call this Fallacy C (refute points not made). Firstly I didn’t say that the

applicants were required to plead matters relevant to withholding relief on discretionary grounds.

In principle they aren’t – apart from the lack of a reply in judicial review, opposing parties aren’t

required to plead discretion at all since the court itself has to be satisfied as to the grant of relief –

Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4, now O. 103 r. 28(4) RSC. If the

court can refuse relief on a discretionary basis even if the opposing parties don’t plead discretion, or

even don’t oppose the application at all, an applicant can’t be faulted for not anticipating in her

pleadings what discretionary points might be thought weighty.

100. Secondly, it’s as may be that the council thought a ban on renewable energy developments

was required for environmental reasons, or that the application here aroused ire from local interests.

What the judgment refers to is the environmental harm caused by not considering the vestigial

shadow of the old plan as reflected in the technical continuation of the new plan. For that to cause

environmental harm it would mean that the decision would have been different, and the applicants’

claims in that regard are just speculation and rhetoric.

101. It is just a fact that the applicants haven’t expressly pleaded that that caused environmental

harm.

102. We can dismiss the complaint about no evidence from board members as simply another

reformulation of Fallacy A.

103. I accept the submission of the commission:

“Para 82(iv)

The Court has concluded that the point is technical in nature, i.e. having no discernible

impact on the Commission's decision. In this part of the judgment, where the Court is

considering the exercise of its discretion, it is wholly appropriate and legitimate in that

context for the Court to consider whether, in the Court's view, there is any tangible

environmental damage caused by the non-compliance. No legal or factual error is identified

by the Applicants.”

104. I also accept the submission of the notice party:

“Para 82(iv) / absence of environmental damage: The Court was entitled to observe, in the

context of discretion, that the alleged error had no discernible environmental consequences.

That was a legitimate consideration and no legal error is identified.”

105. The applicants’ next point is:

“Para 82(v) – ‘Insofar as the old plan was restrictive, the value of that in policy terms was

diluted to vanishing point by the fact that the Minister had countermanded that and required

the council to insert a more permissive provision for renewable energy, even bearing in mind

that the old plan was technically in force to a limited extent.’

The Minister did not ‘countermand’ the old plan – he disapplied the relevant sections of the

new plan, pending a decision on whether to issue a final direction; thus keeping in force the

relevant provisions of the old plan.

The Minister did not ‘require the council to insert a more permissive provision for renewable

energy’ – he gave notice of his intention to issue a direction to that effect, but never did

issue the direction and give effect to any such intention. The whole point of the scheme is

that only the actual direction has that effect – not the notice. As is apparent from the

notice, there was to be public participation before any direction issued and the Minister

confirmed in the notice (emphasis added) that, following the various steps, ‘I may issue the

final direction’.

As per the Minister’s deponent Ms Mulhern §11 – ‘I confirm that a final Ministerial Direction

has not issued in respect of the Kilkenny City & County Development Plan 2021 — 2027.

This recommendation remains under consideration by the Minister in light of recent policy

developments in the areas concerned.’ ‘Policy’ was developing as far as the Minister was

concerned

Accordingly the conclusion on the ‘value … in policy terms’ is based on an incorrect premise.

The relevant development plan provisions are central to consideration of any application for

permission (see Callaghan already quoted).”

106. We come here to Fallacy D (read text as erroneous if possible). Sure, one can quibble

with the word “countermanded” – I mean it in the sense clearly explained in this judgment at paras.

17 and 19 above where I say that the Minister issued a notice to the planning authority under

s. 31(3) containing a draft direction with a requirement to “Reinstate areas designated at

Castlebanny to ‘acceptable in principle’ in accordance with the ‘draft wind energy strategy’ of the

draft Plan”, but that the Minister’s intervention has not reached a conclusion, and no final direction

has issued.

107. So if you want to read one word in isolation and give it the strongest and most erroneous

sense (i.e., complete and effective countermanding) then you emerge triumphant from that exercise

with an error. If you want to read the text as a whole in tandem with the context that we all know

and that is set out expressly, the word “countermanded” has to be read as shorthand for issuing a

notice with a draft decision requiring the removal of the plan provision. Text should be read as

making sense if such a reading is available. I don’t see any need to change the text here because I

think a sensible reader would interpret it in context, particularly the context of paras. 17 and 19. If

I am wrong about that, the reader should construe the judgment as referring to a proposed

countermand.

108. At this juncture the opposing parties give up responding to the applicants point-by-point –

and I can totally sympathise with that. The commission correctly submits:

“Para 82(v), 82(vi), 82(vii) and 82(viii)

The matters considered by the Court at each of these sub-paragraphs is a relevant and

legitimate consideration in the context of the Court’s exercise of its discretion. No legal or

factual error is identified by the Applicants.”

109. The notice party likewise correctly submits:

“Paras 82(v)–(viii): Each of these passages reflects legitimate factors for the Court to weigh

when deciding whether to grant certiorari. The Applicants’ disagreement is in substance an

attempt to re-argue the merits.”

110. The next fusillade from the applicants is:

“Para 82(vi) – ‘a not-demonstrably-consciously-intended side effect of a ministerial

intervention which was designed to encourage permissions of this nature’

Regarding ‘not-demonstrably-consciously-intended side effect’ - there is no evidence to

suggest the Minister did not intend the consequences of his actions; indeed the consequence

was spelt out in the legislation. Regarding ‘designed to encourage’ - see the quote above

from the Minister’s deponent Ms Mulhern - the Minister felt it necessary to postpone the

decision to confirm or reject ‘in light of recent policy developments’. The notice itself does

not bring the draft direction into force. The Minister never followed through on his draft

direction - so it cannot be assumed that he intended to encourage permissions of this

nature, or even if he did at one stage have such an intention, that he maintained that

intention. The Minister did not have, and still does not have, a concluded view.”

111. This is a nice combination of Fallacies B and D. The point I was obviously making at the

outset was that it had not been demonstrated that the Minister intended the side-effect at issue

here. The applicants don’t deny that – rather they deny a different proposition, which nobody

asserted, i.e., that there was evidence that he did not intend the consequences. The fact that the

consequence was spelled out in highly technical legislation does not mean that anyone consciously

intended what was to be the legal situation – that’s the point.

112. The wording that the ministerial notice was designed to encourage permissions then results

in refutation of a different proposition, which nobody asserted, i.e., that the notice brings the

direction into force, that the Minister followed through, that there was a concluded view. We know

all about that already: see paras. 17 and 19 of the judgment.

113. The next complaint is:

“Para 82(vii) – ‘The board was not required to go through any special procedure to

contravene or materially contravene the development plan by virtue of the SID nature of

the development.’

The statement is accurate in itself but incomplete - as it does not take account of the

following – ‘Clearly the content of any relevant development plan must be a significant part

of the relevant consideration….’( Callaghan v An Bord Pleanála [2018] IESC 39 8.10.) The

crucial point is that the Board did not actually consider the relevant content of the

development plan, and there is no evidence from the relevant Board members as to what

their decision would have been if they had.”

114. While one is nearly grateful for an acknowledgment of any accuracy, however incomplete,

this passage pointlessly repeats points already made by the applicant. We know there was an error.

The board member complaint goes back to Fallacy A.

115. This is repeated again:

“Para 82(viii) - The permission operates on the basis of what the commission calls a ‘blank

slate’ and so concludes that the project is in accordance with proper planning and

development. In such circumstances it is unlikely to vanishing point that the technical non-

compliance with the temporarily continued provision of the old plan (in a context when the

Minister was seeking a more permissive provision in the new plan) would have been a basis

of refusal.

The Board was not entitled to operate on the basis of a ‘blank slate’ – rather it should have

addressed the continuing provisions of the 2014 plan - which of course are highly relevant

to ‘proper planning and development’ (see Callaghan already quoted).

The Applicants respectfully repeat the point already made that it is not appropriate for the

Court to decide what the Board should/would have held if the Board had appreciated that

the relevant parts of the 2014 Plan remained in force; and also respectfully repeat the point

already made re Para 82(v) re the suggestion that the Minister was seeking a more

permissive provision.”

116. Again the same reply applies.

117. We can now return to the list of discretionary factors set out earlier. Having regard to the

foregoing and applying the general law as to discretion to the facts of this case, I would refuse relief

under core ground 1 as a matter of discretion.

118. As to whether declaratory relief should be granted, the applicants’ submissions did stimulate

further thought about the need for elaboration on my part, for which I am grateful.

119. Declarations are an equitable remedy so there are no absolutely fixed criteria as to when it

is just and convenient to make such orders. However in practical terms, a declaration should

normally only be granted if the following criteria are met:

(i) An applicant has identified a legal error.

(ii) The court is refusing certiorari or other imperative relief. The logic of that is that

if certiorari (or other substantive relief) is granted then a declaration adds nothing

and is unnecessary. Equitable relief does not involve labouring in vain.

(iii) Apart from invalidity of measures of general application, which has to be addressed

by declaration, the declaration relates to the specific error in the given case,

not to an attempt to clarify the law in general circumstances. There are

several reasons for that.

i. Firstly, judgments are there to set out reasoning and clarify the law in

general. Any explanations are to be found in judgments – declarations

therefore add nothing and are unnecessary. Again equity does not labour in

vain.

ii. Secondly, there is a significant risk of issuing some kind of formal order

about matters that affect a whole category of people who have not been

heard. Reasoning in judgments is one thing – if problematic, it can be

distinguished out of sight in the next case. A formal order could have

unpredictable consequences for people who have had no voice in the

process. That should be kept to a minimum. The judgment itself clarifies

the law – that’s the normal procedure.

iii. And thirdly, granting declarations for every minor slip-up would perversely

incentivise litigation, particularly of a legalistic, querulous and technical nit-

picking type, because declarations would be seized on as being relief that

warrants costs. The system is already one-sided enough as it is – in practice

and in general, costs are a one-way ratchet system in favour of applicants

(there may be a need to look more closely at that another day). That is

allied to the inherently advantageous position of challengers that the

opposing parties can score as many goals as they like but once an applicant

scores a goal the game is over. Handing out unnecessary declarations and

costs in respect of harmless errors merely imbalances an already imbalanced

system further.

(iv) A more rational system, and I appreciate that this could be viewed as a nuance of

some previous practice (although not a nuance that affects anything in the present

case), is that normally the error should be one that the decision-taker has

denied prior to the hearing. If the practice is that admitting an error means

conceding a declaration, and therefore costs, then there is a completely perverse

incentive to deny errors until that denial is totally untenable. There is also a perverse

incentive to litigate in any case where there are errors (lack of conservation

objectives come to mind as one where many hypothetical actions could

opportunistically be brought from that point of view, although I am not suggesting

that any particular cases were brought out of perverse incentives) purely because

there are errors, on the grounds that there will be a declaration and costs to be had

for the asking. A more rational system needs to have a procedure that allows an

opposing party to admit error but to argue that the error was harmless, without

thereby exposing themselves to declaratory relief and costs. If the party on the

other hand denies error, and error is found, they may be at risk of a declaration if

the other criteria are met.

(v) There must be some sufficiently affirmative public benefit or similar strong

reason in marking with declaratory relief (and consequentially with costs). An

example of that is where the error has been repeated despite having been identified

in previous proceedings, or where it involved a breach of law of potential significance

but just not one having significant effects on the particular applicant that warrant

certiorari.

(vi) An assessment of discretionary factors does not militate against the grant of

relief. Generally however the factors relevant to discretionary refusal of certiorari

are also relevant to support a conclusion of discretionary refusal of declaratory relief.

In other words, if the basis for refusal of certiorari is discretion then that may also

apply to any other relief such as a declaration.

120. We can now apply that here.

121. On the first criterion, the applicants have indeed identified a legal error.

122. On the second criterion, I am also refusing certiorari or other imperative relief. The

applicants deny that this should be a factor at all. They make the unreasoned assertion that:

“The fact that certiorari is refused is not in itself a reason for refusing declaratory relief.”

123. But it is a reason, as set out above.

124. The applicants fail on the third criterion. Indeed they revel in the generality of the

declaration sought:

“Declaratory relief would relate to the interpretation of the section, not to the particular facts

of the case.”

125. That is generally inappropriate for the reasons above and is so here. The commission hits

the nail on the head with the following submission:

“The Court's judgment is a clear statement of the correct interpretation of s.31. In the

unlikely event that this issue arises again, the meaning of the provision is clear from the

Court’s judgment, which speaks for itself. The Applicants have set out no basis for the Court

granting declaratory relief. The Court refused declaratory relief in the conventional

application of well-established principles that are discernible from relevant case law, and

which have been correctly summarised in the draft judgment. No legal or factual error is

identified by the Applicants.”

126. The applicants formally meet the fourth criterion – the error was denied prior to the hearing.

That is however significantly diluted by the fact that the commission, astutely as I say, did not waste

a lot of time on defending the indefensible interpretation originally contended for, and quickly pivoted

to the argument that assuming there was an error, it should not warrant relief. That is not a posture

that suggests anything in the way of deep-seated reluctance to apply the statute as interpreted in

this judgment. Indeed the just-quoted passage from the commission appears to put this beyond

any real doubt – the word “unlikely” is strongly suggestive of a view that the commission is going

to be part of the solution in ensuring that the problem is not going to arise again.

127. The applicants fail on the fifth criterion. There is no sufficiently affirmative public benefit or

similar strong reason in marking with declaratory relief (let alone with costs). The point is a

technicality – not of any huge weight or environmental impact for reasons I have sought to explain

– the continued existence of the old plan was merely vestigial here. The error did not harm the

environment – far from it. The point is so lacking in environmental merits that even declaratory

relief here is out of the question on that basis.

128. They also fail on the sixth criterion. An assessment of discretionary factors does militate

against the grant of relief for the same reasons as it militates against certiorari.

129. Having regard to the foregoing and even allowing for an overall exercise of discretion in the

light of all relevant circumstances, this ground must fail.

Core ground 2 – reasons

130. Core ground 2 is:

“2. In the alternative, if the Board claims that it considered the relevant provisions of

the Kilkenny Development Plan 2014 to 2021 and granted planning permission in material

contravention of the said development plan pursuant to s.37G(6), the Board erred and acted

contrary to fair procedures by giving no reasons in relation to said decision and had an

enhanced duty to give reasons arising from the recognition given by the State to the role of

local government in providing a forum for the democratic representation of local

communities, in exercising and performing at local level powers and functions conferred by

law and in promoting by its initiatives the interests of such communities pursuant to Article

28A.1 of Bunreacht na hÉireann, and because the provision of the development plan that

was materially contravened was put in place to protect the environment and had been the

subject of a Strategic Environmental Assessment pursuant to Directive 2001/42/EC and s.10

(5A) of the Planning and Development Act, 2000, as amended and a public participation

process in accordance with Article 7 of the Aarhus Convention, and where the material

contravention relates to a matter which may require further Strategic Environmental

Assessment if the Minister so decides. Further particulars are set out in Part 2 below.”

131. The statement of case doesn’t deal with this for some reason.

132. The basic reason why this point fails is set out by the commission in submissions (para. 25)

as follows:

“25. As regards Core Ground 2, the Applicants say that if the Board claims it considered

the provisions of the 2014 CDP then there is a material contravention of same pursuant to

s.37G(6) of the 2000 Act and the Board erred and acted contrary to fair procedures in giving

no reasons for doing so, in circumstances where the Applicants allege there is an enhanced

duty to give reasons. However, the problem for the Applicants is that the Board hasn’t

claimed to consider the provisions of the 2014 CDP and it falls away by direct analogy with

Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2022] IEHC 700 at

§15-16 and Core Ground 2 simply doesn’t arise.”

133. The point, as pleaded, is premised on the board claiming to have considered the 2014 plan.

Since they didn’t do that, and since that’s the pleaded case, we don’t need to, and indeed aren’t

permitted to, consider this point further.

134. It is settled law that relief cannot be granted on a hypothetical basis. Applying such law to

the facts here, insofar as a complaint is made about a lack of reasons for a conclusion in relation to

the 2014 plan, this would be hypothetical because the 2014 plan was not considered in the sense

underlying core ground 2.

135. Insofar as the applicants made an unpleaded point that the request for further information

(RFI) response was not advertised thereby subverting public participation, advancing points outside

the pleadings is wholly impermissible.

EU law issues

Core ground 5 – defective EIA

136. Core ground 5 is:

“5. The impugned decision is invalid and contrary to Articles 2(1) of Directive

2011/92/EU as amended by Directive 2014/ 52/ EU (‘the consolidated Environmental

Impact Assessment Directive’) as transposed by s.172(1) of the Planning and Development

Act, as amended, because the Board failed to adopt all measures necessary to ensure that,

before development consent was given, the project was made subject to a requirement for

development consent and an assessment with regard to its effects on the environment and

was contrary to Article 3(1) because the environmental impact assessment conducted by

the Board did not identify, describe and assess in an appropriate manner, in the light of each

individual case the direct and indirect significant effects of the project on the factors set out

in subsections (a)to (e ) of that section and the Board failed to comply with the transposing

legislation in s.172(1D) and the Environmental Impact Assessment Report did not comply

with the definition set down in s.2(1) of the Planning and Development Act 2000, as

amended and failed to comply Article 1(2)(g)(iv) of the EIA Directive in that are no proper

reasons for the attachment of Condition 8 in the absence of an EIA for the turbine

configurations proposed. Further particulars are set out in Part 2 below.

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

“CORE GROUND E5

Applicant’s Position:

20. There has been no proper EIA of noise impacts or impacts on birds. The idea to

permit a selection of three turbine dimensions by Condition 8 came from the Board and was

not based on an assessment by the Board or its Inspector of noise impacts or impacts on

birds due to those specific three turbine types.

21. The Notice Party’s EIAR relies on different turbine configuration for different

assessments and while an attempt was made to regularise this in the Further Information

Response, the impacts on birds relied on studies done for a different turbine to what was

permitted, while noise impacts were also been assessed using a different turbine diameter

to the selection permitted. For the purposes of the noise assessment, the developer

assessed the impact from a Vestas V150 5.6MW turbine which (as per its name) has a

diameter of 150 metres. For the purposes of collision risk modelling for birds, the developer

assessed the impact from the Siemens Gamesa SG 155 wind turbine with a rotor diameter

of 155 metres and a hub height of 107.5 meters, and assumed a ‘potential collision height

airspace’ of between 30 and 185 metres above the ground; however, a different turbine

configuration again was assumed for the bird surveys (conducted back in 2017 and 2018)

which assumed a potential collision height band from 35 to 135 metres above ground, i.e. a

130m diameter turbine with 35 metre clearance from the lowest blade level. (Exhibits Tab

2A and 2b Grounding Affidavit of Tara Heavey). The Further Information Response has not

addressed the fact that the Noise Chapter of the EIAR assumed a 150m diameter turbine

while the fixed height configurations in the Board's condition go to 155m diameter turbine.

Appendix 4 of the FI Response para 2.0 confirms that the FI assessment is based on the

EIAR diameter turbine.

Board’s Position:

22. Here the Applicants say there was no proper EIA of the turbine configurations

because there was no information on them. This is simply wrong. All the relevant

assessment information was provided in the RFI. Absolutely nothing has been offered to

engage with this. Indeed, even with regard to the alleged inconsistencies recited in underline

above, those relate to the EIAR or Appendices thereto and do not take any account of the

very clear proposals and assessments set out in the RFI. Essentially, this case was pleaded

out and brought without any regard whatsoever to the RFI which is an answer to all these

points. The Board’s Decision is not invalid as alleged at Core Ground E5.

23. As to the alleged inconsistency, it is noted that the Applicants have now limited the

matters complained to inconsistencies with the descriptions for noise and bird

surveys/collision modelling. Other matters (including references to non-exhibited material

which had been pleaded before) and the allegation that bats were assessed by reference to

a fictional 100m high turbine (which was not dealt within the submissions) are not pursued

nor dealt with herein.

24. First, this point only relates to the EIAR and does not engage with the RFI.

25. Second, in terms of alleged issues in the EIAR itself, for the Court’s information the

RFI itself (see Section 2.1.2.3) sets out what dimensions had been used in the various

chapters and reasons out what chapters and matters require re-assessment in light of the

concretisation of the proposals set out therein. There is absolutely no problem in law at all

with different turbine configurations being used for different EIA purposes unless that

actually has a bearing on the assessment and the Applicants simply do not engage on this

point. In this respect, taking the points they make, one can see the following.

26. For noise the EIAR expressly says in Chapter 12 on Noise (see p.12-31) that whereas

the Vestas V150 was used, a hub height of 110m was assumed and that ‘the turbine

eventually selected for installation on site will not give rise to noise levels of greater

significance than that used for the purposes of this assessment.’ So, leaving aside the point

that noise is assessed differently to, say, shadow flicker, the EIAR itself (and this is not

challenged) expressly says no other turbine choice will give rise to greater noise levels. So

where the Applicant says ‘the Further Information Response has not addressed the fact that

the Noise Chapter of the EIAR assumed a 150m diameter turbine while the fixed height

configurations in the Board's condition go to 155m diameter turbine’ the chapter on noise,

itself, explains this and the RFI in very clear terms at Section 2.1.2.5.5 addressed whether

re-assessment was required in light of the then proposed configurations. So this is a

completely and utterly artificial point.

27. As to the bird surveys, the bird surveys are not collision models. They are surveys

of bird activity and as is patently clear on their face, bird activity at all levels down to 0m

was scrutinised within different bands. Then, when it comes to collision modelling Table

A1.1 in Appendix 7.7 clearly showed in the EIAR that a turbine of 185m tip height, 107.5m

hub height and 77.5m rotor radius was used – i.e. exactly the same and consistent with that

described elsewhere in the EIAR. The bird surveys are used to record activity which is

modelled into collision risk and the Applicants have raised no issue nor advanced any

argument contra the modelling exercise that was carried out on the basis of the bird surveys.

28. In any event, neither of these two issues actually prove any defect in EIA. What

was proposed was clearly assessed.

Notice Party Position:

29. The EIA was valid and comprehensive. The EIAR, supported by the Notice Party’s

RFI response, adequately assessed the environmental impacts of the turbine dimensions,

including the range of configurations specified in Condition 8(a). The Inspector’s report

confirmed that the further information submitted did not materially alter the proposed

development and did not require further public consultation: see Eco Advocacy v. An Bord

Pleanála [2025] IEHC 15, where Humphreys J emphasised that the adequacy of information

for EIA purposes is primarily a matter for the discretion of the Board, and curial deference

should be afforded to its evaluative conclusions; see also Campus Oil v. Minister for Industry

and Energy (No. 2) [1983] I.R. 88, as to the presumption that the Board’s decision is valid

unless proven otherwise.

30. The Notice Party provided uncontroverted affidavit evidence from experts (Dr.

George Smith and Dr. Tom Gittings), confirming that the turbine dimensions were fully

assessed and that the EIAR adequately considered alternatives and identified direct, indirect,

secondary, and cumulative effects. The Applicants failed to provide expert evidence to

contradict these findings: see Massey v. An Bord Pleanála (No.2) [2025] IEHC 206, where

Humphreys J held that non-expert assertions by applicants amount to ultracrepidarianism

and cannot establish flaws in an EIA without expert evidence; Doyle v. An Bord Pleanála

(No.1) [2025] IEHC 158, where Humphreys J reiterated that the burden of proof lies with

the Applicants to demonstrate that the EIA was invalid.

31. The EIAR assessed the maximum tip height of 185m, which encompasses the

impacts of turbines with lesser tip heights, including the third option in Condition 8(a). The

Inspector’s report confirmed that the impacts of the turbine configurations were adequately

assessed, and the conclusions of the EIAR were not materially altered by the RFI response:

see Altrip, where the CJEU emphasised that an EIA must account for potential impacts, and

the assessment of maximum dimensions necessarily includes impacts of smaller

configurations; Doyle (No.1), where Humphreys J noted and agreed with the developer’s

statement that ‘the potentiality necessarily includes the actuality,’ meaning that an

assessment of maximum impacts covers lesser impacts.

32. The Applicants’ claim that further public consultation was required following the RFI

response is unpleaded and impermissibly raised in submissions: see, e.g., Heavey v. An

Bord Pleanála [2024] IEHC 480, confirming that parties cannot raise new grounds in

submissions that were not pleaded in their statement of grounds.

33. As noted, the Inspector concluded that the further information did not give rise to

material alterations requiring public consultation, which is a decision the Board was entitled

to make: see Eco Advocacy v. An Bord Pleanála [2025] IEHC 15, to the effect that the

Board’s discretion in determining whether further public consultation is required should be

respected.

34. The Applicants failed to provide expert evidence to challenge the findings of the EIAR

or the Inspector’s report, thus failing to discharge the onus of proof on them: see Eco

Advocacy, Massey (No.2), and Doyle (No.1), to support its position.

35. If which is denied, there was no EIA which covered option 3, insofar as option 3 is

not being implemented and/or incapable of being implemented it therefore wholly irrelevant

whether an EIA was conducted with respect to the same.”

138. The basic reason why this point fails is that it is clear that the onus of proof lies on an

applicant to demonstrate evidentially a flaw in the assessment process, absent clear error on the

face of the material which doesn’t apply here. The applicants haven’t discharged that, particularly

in the light of the lack of cross-examination of the notice party’s experts: RAS Medical Ltd v. Royal

College of Surgeons in Ireland [2019] IESC 4, [2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273.

139. As the notice party points out:

“80. The Notice Party has adduced evidence from the experts who prepared the EIAR (Dr.

George Smith and Dr. Tom Gittings), which confirm that the information which was before

the Board was sufficient to conduct a valid EIAR by reference to the turbine dimensions

specified in the EIAR.”

140. In the absence of cross-examination, the applicants’ complaint must be rejected. What core

grounds 5, 7 and 8 essentially ignore is the fact that an RFI was sought and responded to. The

applicants’ claim that there was no EIA in terms of the configurations proposed, the assessments

are done expressly on a tip height of 182.5 m and a free zone of 27.5 m below the turbines – despite

typographical errors. The grounds don’t acknowledge the clarifications in the further information

provided – indeed incorrectly they allege at sub-ground 22 that there was no supplementary

information.

Core ground 6 – council submission

141. Core ground 6 is:

“6. The impugned decision is invalid and the Board acted contrary to s. 172(1g)(c ) of

the Planning and Development Act 2000, as amended because the Board in purporting to

carry out an Environmental Impact Assessment failed to consider properly or at all the

submission made by Kilkenny City and County Council in respect of the visual impacts of

siting a windfarm of the size and scale of the proposed development in the location in

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

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

“CORE GROUND E6

Applicant’s Position:

36. The Board erred in failing to consider the submission made by Kilkenny City and

County Council in relation to the previous County Development Plan 2014-2021.

37. This ground is now maintained only insofar as relevant to CG1. If the applicants are

correct in relation to CG1, the submissions of the Council in relation to the CDP 2014-2021

are of particular relevance.

Board’s Position:

38. The Board’s Decision is not invalid as alleged at Core Ground E6. The Applicant’s

narrowed pursuit of a single aspect Core Ground E6 is without substance as it is premised

on the Applicants mistaken contention at Core Ground E1 that the 2014 CDP still applies and

continues to have legal effect by virtue of s.31(6)(b) of PDA 2000. Further, Core Ground E6

as pleaded is not made out evidentially and there is no merit to the ground at all. The

Applicants’ case that the Board failed to consider properly or at all consider the submission

made by the Council is undermined and/or contradicted by the text of the Board Order (at

pages 4 and 6), the Board Direction (at page 1) and the Inspector’s Report (at e.g., §4.1.1,

§6.4.5, §6.4.7, and §6.6.3). The Applicants have failed to overcome or displace the

evidential onus that the Board did not have regard to the Council’s submission as alleged.

The Applicants argument at Core Ground E6 is also flawed in that it fails to reflect or engage

at all with the point that lack of narrative discussion does not equate to failure to have regard

to something, having regard to something does not in itself impose a requirement to give

reasons for not accepting that something and there is the presumption that material has

been considered if the decision says so (and it does say so here).

Notice Party Position:

39. This ground does not arise as it is premised on ground C1 which is erroneous.

Without prejudice to the same, as the Applicants allege that the Board failed to consider

visual amenity policies under the Kilkenny County Development Plan (CDP) 2014, which they

claim were reinstated by the Minister’s notice under s.31(3) of the 2000 Act, the Board did

take visual amenity policies into account, as evidenced by the Inspector’s report, which

referenced the Chief Executive’s report on visual amenity concerns. Even if the 2014 CDP

policies applied, the Board was entitled to exercise its discretion to grant permission

notwithstanding such policies.

40. The planning application was made under s.37E of the 2000 Act as strategic

infrastructure development. Under s.37G(6), the Board can grant permission even if the

proposed development materially contravenes the CDP. The Inspector concluded that the

proposed windfarm was compatible with the general climate change and renewable energy

aspirations of the Development Plan: see Coolglass, where the court confirmed the Board’s

broad discretion under s.37G(6) to grant permission for strategic infrastructure

development, even in cases of material contravention. The Notice Party also relies on the

harmless errors or minor oversights that do not materially affect the outcome should not

lead to the quashing of a decision.

41. If the Inspector mistakenly failed to consider the 2014 CDP policies, this error is

harmless because the Board’s decision would not have been materially different. The Board’s

obligations under Section 15(1) of the Climate Action and Low Carbon Act 2015 (as

amended) further reinforce the necessity of granting permission for renewable energy

projects: see Doyle (No.1) to the effect that errors that do not materially affect the outcome

of a decision fall into the category of harmless error and do not warrant relief.”

143. The basic reason why this point fails is the principle articulated per Hardiman J. (Denham

and Geoghegan JJ. concurring) in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R.

418, [2002] 1 I.L.R.M. 401 – the board said that the council’s submissions were considered and the

applicants haven’t discharged that. Insofar as concerns the lack of consideration of the 2014

development plan this ground adds nothing to the core ground 1. It presents no new point of

substance that isn’t addressed above. Yes in theory the board should have considered the 2014

plan as having a continued effect on a vestigial basis but since the decision isn’t being quashed

under that heading it shouldn’t be quashed for lack of reasons or consideration either – that would

be totally contradictory and illogical.

Core ground 7 – Lesser Black-backed Gull – art. 6(3) of habitats directive

144. Core ground 7 is:

“7. The impugned decision is invalid in that it contravenes Article 6(3) of the Habitats

Directive as transposed by s. 177V of the Planning and Development Act 2000, as amended,

and in accordance with the case law of the CJEU, in failing to contain complete, precise, and

definitive findings and conclusions capable of removing all reasonable scientific doubt as to

the effects of the proposed works on the Lesser Black Backed Gull, a qualifying interest of

the Saltee Islands Special Area of Conservation (‘SPA’) and or the Kingfisher, a qualifying

interest of the River Nore SPA and or the Freshwater Pearl Mussel a qualifying interest of

the River Barrow and River Nore SAC. Further particulars are set out in Part 2 below.”

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

“CORE GROUND E7 and E8

Applicant’ Position:

42. The Lesser Black Backed Gull, a qualifying interest of the Saltee Islands SPA was

recorded in significant numbers on the development site (page 109 Inspector Report). The

impugned decision is invalid in that it contravenes Articles 6(2) and 6(3) of the Habitats

Directive in failing to take appropriate steps to avoid the disturbance to the Lesser Black-

backed Gull and in failing to contain complete, precise, and definitive findings and

conclusions capable of removing all reasonable scientific doubt as to the effects of the

proposed works on this bird.

43. At the time the bird surveys were carried out there was an assumption made by the

bird expert that a smaller turbine would be developed than what was eventually permitted

by the Board in its Condition 8. The bird survey guidance relied upon by the Notice Party as

best scientific practice is the NatureScot (formerly Scottish Natural Heritage) March 2017

document entitled ‘Recommended bird survey methods to inform impact assessment of

onshore wind farms’. (Exhibit TAB 3 Supplemental Affidavit of Tara Heavey) which states:

‘Flight heights should be classified into height bands, i.e. below the rotor- swept area, the

rotor-swept area and above the rotor-swept area, allowing for observer error. Where there

is doubt over the size of turbines to be used, further height bands to reflect the possible

turbine sizes can be included.’ [underlining added] This approach was not followed by the

developer because the choice of height bands for the surveys was based on turbines of

different dimensions from those ultimately sought and permitted. The collision risk

assessments could not rely on the results of the surveys actually carried out – because the

collision risk assessments were addressing turbine dimensions not contemplated by the bird

surveyors. The developer created its own methodology of retrospective calculations which

is not best practice and did not result in complete, precise, and definitive findings and

conclusions capable of removing all reasonable scientific doubt. Appropriate steps were not

taken to avoid disturbance of these birds in circumstances where the disturbance was not

properly assessed.

Board’s Position:

44. The relevant principles are set out in Eco Advocacy [2025] IEHC 15 at §95, 100

Meter Tall Group [2025] IEHC 42 at §85 and Massey (No.2) [2025] IEHC 206 at §95-97. In

application of those principles to the facts here, neither Core Ground E7 nor Core Ground E8

have been made out.

45. The case here is that birds will fly in areas not examined. The case is that no

attention was made to birds flying below 35m because, the Applicants’ say, birds were not

looked at below that band. This is simply and plainly wrong. Flights were recorded below

that band as is patently clear across the legion of detail in and recording in the Ornithology

Reports (see Appendix 7-2, Tab 8 to EM1).

46. Even leaving that aside the kernel of the Applicants’ case is – as they say – that

‘[t]he collision risk assessments could not rely on the results of the surveys actually carried

out – because the collision risk assessments were addressing turbine dimensions not

contemplated by the bird surveyors’ but the Notice Party’s experts have said that they can,

and explained the modelling basis used to do precisely that and none of that has been

challenged. In this respect, the Applicants, in advancing Core Ground E7 per their pleaded

case, critically omitted, for example, to refer to the further information (RFI) response

submitted by the Notice Party as part of the subject application, which at section 2.1.2.5.3

addressed Ornithology and, inter alia, makes clear that collisions risk was assessed based

on a technical modelling of collisions risk and that variation in the ground clearance affects

the wind farm collision risk model and that was included in the model. The uncontested

expert affidavit evidence adduced by the Notice Party from the authors of the ecology reports

(Dr. Gittings and Dr. Smith) confirm the accuracy of the information provided by the Notice

Party with regard to collision risk. See also pages 104 and 137 of the Inspector’s Report.

At page 104 the Inspector, as she was entitled to on the basis of on the information that

was before the Board, stated that ‘the collision risk and mortality rate is low for all species.

The EIAR did not predict any adverse impacts for birds which frequent or traverse the

windfarm site and the surrounding area, across the seasons. The EIAR conclusions were not

materially altered by the consideration of the various turbine dimension options that were

submitted as Further Information’.

47. Core Ground E8 is hopelessly undercut by a complete absence of engagement with

the facts. The evidence before the Board and the Notice Party’s confirmatory evidence in

affidavit is that there is no disturbance of the Lesser Black-backed Gull. The Applicant has

not – save bald assertion – reasoned out anything remotely close to a case regarding Article

6(2) or ‘disturbance’ in the context of the actual evidence here.

48. The Board’s assessment of proposed development as regards potential impacts of

collision risk for Lesser Black-backed Gull was lawful and valid, and the conclusions reached

in this regard were open to the Board based on the materials that were before it. Whereas

the Applicants notably omitted to refer to it in their pleaded case in advancing Core Ground

E8, there was ample material before the Board in relation to the matter of potential collision

risk impacts for Lesser Black-backed Gull (see e.g. Appendix 7-8 of the EIAR, Section

2.1.2.5.3 of the RFI response, page 81 of the NIS, and pages 109, 110 and 137 of the

Inspector’s Report).

49. Further, the uncontested expert affidavit of Tom Gittings, Ecologist, filed by the

Notice Party, in detail addresses, refutes and undermines the non-expert merits-based

points advanced by the Applicants in relation to the Habitats Directive and the Lesser Black-

backed Gull at Core Grounds E7 and E8. Insofar as the Applicants’ submissions, via non-

expert assertion, question whether the ornithology studies complied with NatureScot

guidance (§§127-311), there is no evidence of a suitably qualified expert before the Court

to ground such submissions (and the Applicants submissions are not evidence). Further,

the issue of compliance with the guidance is not pleaded as a ground of challenge to the

Board’s Decision by the Applicants.

Notice Party Position:

50. The AA conducted by the Board was lawful and based on robust scientific evidence.

The collision risk for the Lesser Black Backed Gull was assessed using technical modelling,

which accounted for turbine dimensions and flight activity. The Inspector’s report concluded

that the collision risk and mortality rate for all bird species, including the Lesser Black Backed

Gull, were low and did not predict adverse impacts.

51. The Notice Party’s RFI response provided updated collision risk predictions for

various turbine configurations, confirming negligible differences in mortality rates for the

Lesser Black Backed Gull compared to the EIAR. Expert affidavits from Dr Tom Gittings and

Dr George Smith confirm the accuracy of the collision risk modelling and the adequacy of

the AA. The Applicants failed to provide expert evidence to challenge the Notice Party’s

expert evidence in this regard. Their assertions of scientific doubt are non-expert critique

of expert evidence are unsupported and amount to impermissible ultracrepidarianism: see

Massey (No.2). The Notice Party relies on Massey (No.2) and Doyle (No.1) to argue that

the Applicants have not discharged their burden of proof.

52. The Applicants’ claim that the ornithology studies failed to comply with NatureScot

guidance is unpleaded and, in any event, unsupported by expert evidence. The Notice

Party’s RFI response confirmed that the collision risk model accounted for flight activity at

all relevant height bands, including below 35m and above 135m.

53. The Inspector concluded that the EIAR and AA adequately addressed the impacts on

bird species, including the Lesser Black Backed Gull. The AA findings were precise and

definitive, removing all reasonable scientific doubt regarding the effects on the Saltee Islands

Special Protection Area.”

146. The basic reason why this point fails is that the onus is on an applicant to demonstrate

evidentially that assessment is flawed, leaving aside error on the face of the material which the court

can identify without special knowledge, something that doesn’t apply here. These applicants have

failed to discharge that particularly bearing in mind the lack of cross-examination: RAS Medical.

147. The notice party is correct to submit:

“83. The first matter of note with regard to the Applicants’ submissions on this issue is

that they read more like an affidavit than a legal submission, which is extraordinary in light

of the fact that the Applicants have not put in any replying affidavits to those sworn by the

Notice Party’s experts dealing with ecology matters, including regarding the treatment of

the Lesser Black Backed Gull. As such, the Notice Party’s evidence is uncontroverted and

the Notice Party relies on the dicta of Humphreys J in Massey v An Bord Pleanala (No. 2),

Doyle (No.1) and Holland J in Environmental Trust Ireland v An Bord Pleanála [2022] IEHC

540 mutatis mutandis in responding to Core Grounds 7 and 8.

84. The Applicants’ assertions of scientific doubt in respect of the Lesser Black Backed

Gull which are contained in the Further Amended Statement of Grounds are made in the

abstract and fail to address the information which was before the Board regarding the air

space/clearance level from turbine foundation level to rotor level, i.e., alleged doubt about

birds flying in the zone below the 35 metres because ‘all vantage point bird counts were

done for a turbine having a distance of 35m from ground to rotor’ (SOG, §27). Again, as

per Massey, these inexpert assertions amount to ultracrepidarianism. The mere assertions

advanced by the Applicants in relation to this issue do not constitute or give rise to scientific

doubt for AA screening or AA purposes. The Applicants’ submissions attempt impermissibly

to expand this ground by also referring to collision risk at heights above 135m.

85. As pointed out in the Notice Party’s Statement of Opposition, the Applicants made

no reference in their pleadings to the Notice Party’s response to the RFI. …”

148. In such circumstances this ground can’t succeed.

Core ground 8 – Lesser Black-Backed Gull – art. 6(4) of habitats directive

149. Core ground 8 is:

“8. The impugned decision is invalid in that it contravenes Article 6(2) of the Habitats

Directive as transposed into domestic law by s.177S(1) of the Planning and Development

Act, as amended, because the Board failed to take appropriate steps to avoid the disturbance

to the Lesser Black-backed Gull in so far as such disturbance could be significant in relation

to the objectives of the Habitats Directive. Further particulars are set out in Part 2 below.”

150. The parties’ positions as recorded in the statement of case are summarised above.

151. As before, the basic reason why this point fails is that the onus is on an applicant to

demonstrate evidentially that assessment is flawed, leaving aside error on the face of the material

which the court can identify without special knowledge, something that doesn’t apply here. These

applicants have failed to discharge that particularly bearing in mind the lack of cross-examination:

RAS Medical. Ultimately the merits-based points launched by the applicants in core grounds 5, 7

and 8 are a masterclass in ultracrepidarianism.

Summary

152. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that relief by way of judicial review is discretionary;

(ii) applying such law to the facts here, it would be perverse and inappropriate to quash

the permission or grant other relief by reason of a technical situation brought about

by a ministerial intervention towards facilitating permissions of this type, a

conclusion reinforced by a range of other very specific and relevant factors in the

circumstances;

(iii) it is settled law that relief cannot be granted on a hypothetical basis;

(iv) applying such law to the facts here, insofar as a complaint is made about a lack of

reasons for a conclusion in relation to the 2014 plan, this would be hypothetical

because the 2014 plan was not considered in the sense underlying core ground 2;

(v) it is settled law that if a decision-taker says she has considered something then an

applicant has an onus to overcome that;

(vi) applying such law to the facts here, the applicants haven’t overcome that here;

(vii) it is settled law that an applicant has an onus of proof to establish any defects in an

assessment that require to be demonstrated evidentially, and that in the absence of

cross-examination of replying evidence such an onus will not be overcome; and

(viii) applying such law to the facts here, the applicants have failed to discharge that onus,

particularly in the context of failure to cross-examine the developer’s deponents.

Outstanding issues

153. For clarity, the position regarding the extent of disposition of the issues as of now is as

follows:

(i) core ground 1 – dismissed in this judgment (subject to s. 146A issue);

(ii) core ground 2 – dismissed in this judgment (subject to s. 146A issue);

(iii) core ground 3 – deleted by applicants;

(iv) core ground 4 – for Module II on the s. 146A issue;

(v) core ground 4A – for Module II (including the extension of time issue);

(vi) core ground 5 – dismissed in this judgment (subject to s. 146A issue);

(vii) core ground 6 – dismissed in this judgment (subject to s. 146A issue);

(viii) core ground 7 – dismissed in this judgment (subject to s. 146A issue) insofar as

relates to Lesser Black-Backed Gull – outstanding in relation to Kingfisher and

Freshwater Pearl Mussel pending decision in Case C-27/25, Knocknamona;

(ix) core ground 8 – dismissed in this judgment (subject to s. 146A issue);

(x) core ground 9 – outstanding pending decision in Case C-27/25, Knocknamona; and

(xi) core ground 9A – outstanding pending decision in Case C-27/25, Knocknamona.

154. Thus the remaining issues are:

(i) the s. 146A issue (including the extension of time) and consequential matters (which

will be Module II); and

(ii) the Knocknamona issue which will have to await the CJEU and thus which will have

to be Module III.

Costs

155. The applicants obtained an order for costs against the State and the commission in respect

of the time issue. The State confirmed by letter of 26 September 2025 that they were not “now”

seeking costs and set-off arising from the present module so there is no need to make any settled

decision as to costs at this point that would require the perfection of an order now. The commission’s

submission also sought costs being reserved rather than awarded in this order, on the following

basis:

“In respect of costs, the Commission does not wish to seek costs/set-off against such costs

as the Commission has been ordered to pay the applicants in the extension of time

proceedings (first part of para 109(iv)).

However, the Commission does wish for its costs to be reserved, on the basis that such

costs, if ultimately awarded in any outstanding module(s), would apply by way of set-off

only (not leaving a positive balance against the applicants at a level that would be

prohibitively expensive) (second part of para 109(iv)).”

156. So the order in the draft judgment has been simplified in these respects.

Order

157. For the foregoing reasons, it is ordered that:

(i) the proceedings be dismissed insofar as concerns Module I, i.e., core grounds 1, 2,

5 and 6, 7 (save insofar as it concerns Kingfisher and Freshwater Pearl Mussel) and

8, all considered on the assumption that the commission has validly corrected the

error in the board order under s. 146A of the 2000 Act and subject to that

assumption being revisited if that is not the case;

(ii) subject to contrary written legal submission within 7 days, there be no order as to

the applicants’ costs in Module I;

(iii) subject to contrary written legal submission within 7 days, the respondents’ and

notice party’s costs be reserved, on the basis that such costs, if ultimately awarded,

would apply by way of set-off only against any costs already awarded and/or to be

awarded in the proceedings (not leaving a positive balance against the applicants at

a level that would be prohibitively expensive);

(iv) the perfection of the order be postponed pending the outcome of the final Module;

and

(v) the matter be listed on 17 November 2025 to confirm the foregoing and for callover

of Module II (core ground 4 being revisited in the light of the outcome of the s. 146A

process and core ground 4A and the extension of time, together with the impact if

any of the outcome of the s. 146A complaint on the assumption underlying the

dismissal of the other grounds), which stands listed for hearing on 24 November

2025.