High Court dismisses leave to appeal as new points were not pleaded and lack public importance.

[2025] IEHC 576

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000141]

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

ACT 2000

BETWEEN

FRIENDS OF KILLYMOONEY LOUGH

APPLICANT

AND

AN COIMISIÚN PLEANÁLA, MINISTER FOR THE ENVIRONMENT, CLIMATE AND

COMMUNICATIONS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

TESCO IRELAND LIMITED

NOTICE PARTY

(No. 2)

Date of impugned decision: 3 December 2024

Date proceedings commenced: 4 February 2025

Date of principal judgment: 16 July 2025

Date of leave to appeal hearing: 6 October 2025

Date draft judgment circulated: 21 October 2025

JUDGMENT of Humphreys J. delivered on Friday the 31st day of October 2025

1. For an appellate court to be asked to take on points that were neither pleaded, evidenced,

argued, considered by the trial court or decided would be to act as a court of first instance and to

that extent would be constitutionally improper enough. But for such a venture to be launched

against a complex factual background that was uninterrogated by reference to such belated and

unpleaded points, and against an emerging and evolving legal background such as climate law,

where concepts are far from settled, and outcomes are not a matter of mechanical application of

existing law, would be to invite the appellate courts to take over all of the fact-finding,

contextualising, processing and legal ground-clearing functions of the trial level so as to be virtually

an exercise in jurisprudential recklessness. For the purposes of leave to appeal, the applicant for

the first time makes the newsworthy claim that the present case raises a point suitable for appeal

because the point is “complementary to Coolglass [i.e., Coolglass Wind Farm Limited v. An Bord

Pleanála [2025] IEHC 1 (Unreported, High Court, 10 January 2025)] which is pending in the Supreme

Court”. That needs to be reality-checked against the context that the Eureka moment that the case

is all about such a complementary duty under s. 15 of the Climate Action and Low Carbon

Development Act 2015 (the 2015 Act) first struck the applicant only after the proceedings were

dismissed.

Judgment history

2. In Friends of Killymooney Lough v. An Coimisiún Pleanála (No. 1) [2025] IEHC 407

(Unreported, High Court, 16 July 2025), I upheld the validity of the permission. The applicant now

seeks leave to appeal.

Procedural history

3. Following the substantive judgment, the applicant delivered legal submissions seeking leave

to appeal, dated 19 September 2025. The opposing parties delivered replying submissions and the

matter was heard on 6 October 2025. Prior to the hearing I requested details of what the applicant

was saying were the correct steps to be taken in considering an emissions-causing project,

something to which we will return to.

4. 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.

5. On 21 October 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. For the avoidance of doubt, draft judgments are not

public domain materials and, while they can be shared between the lawyers concerned and their

clients, they are not intended for wider transmission (indeed it is impracticable to effect that, even

in the context of referring to such drafts in other litigation, until the judgment is formally issued).

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

one the party considers could beneficially be decided;

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

address but has not;

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

unnecessary to address;

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

(g) any redaction of personal information that the party wishes to request;

(h) 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

(i) any other 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.

6. 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. 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” (to use a phrase of 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); and still less should the procedure invite the perhaps “serious error, to which lawyers are

prone, to approach any such case on the tacit assumption that only procedures which approximate

to a criminal trial are fair, and anything which departs from that is somehow dubious" (O’Donnell J.

in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, 780).

7. The mention date to review matters following the foregoing was to be 3 November 2025. In

the meantime all parties confirmed that they had no comments.

General principles on leave to appeal

8. The general principles have been rehearsed elsewhere – for present purposes I can simply

refer to Massey v. An Bord Pleanála (No. 4) [2025] IEHC 309 (Unreported, High Court, 30 May

2025).

The proposed questions of alleged exceptional public importance

9. The applicant’s proposed questions are as follows:

(i) “Question 1 - Cumulative Effects

Under the EIA Directive does the Commission have an obligation to identify, describe

and assess the transport-related GHG emissions and increase of traffic from a project

cumulatively with other existing and/or approved projects to establish whether there

would be a significant effect on the environment by virtue of the proposed development

being inconsistent with Climate Action Plan 2024.”

(ii) “Question 2 – Significance

Under the EIA Directive are environmental effects which are inconsistent with the

matters set out in section 15(1)(a) to (e) significant within the meaning of Article

1(2)(g)(iv) of the EIA Directive and if so, is ACP required to carry out the environmental

impact assessment by reference to these matters?”

(iii) “Question 3 – Reasons and Considerations

In the context of climate change and specifically where a project involves activities which

are prima facie inconsistent with the matters set out in Section 15(a) to (e) of the 2015

Act, does ACP have to give specific reasons as to why it has decided to nonetheless

grant planning permission and explain precisely how it has performed its functions in a

manner consistent with those matters.”

The treatment of emissions-causing projects

10. Before coming to the specific questions in more detail, it might be helpful if we identify what

the applicant is saying about the correct treatment of projects causing emissions. In that regard in

preference to paraphrasing it I think it would be helpful to set out the applicant’s position in full:

“Response to Question Posed by the Court in Respect of the Applicants’ Application for a

Certificate of Leave to Appeal

1. The Court has posed the following question:

It would assist the court’s understanding of the leave to appeal application (without prejudice

to the various points of defence to the application) if the applicant could provide a numbered

list of the exact steps and the exact sequence of such steps that the applicant contends the

commission should take when faced with an emissions-causing project in order to comply s.

15 and EIA obligations.

2. In response, the Applicants note that they agree with the Court at §172 of its

judgment:

Thus a project has to be either climate-neutral (not causing emissions, or any emissions

being balanced by off-sets), or else provided for in the relevant climate action plan (either

as a specific project or as part of a category of projects which are sufficiently identifiable by

size and number such that the commission can determine whether any individual grant of

permission would be compatible with the plan).

3. According to this paragraph, the Commission should therefore ask itself is the project

climate neutral, or is it provided for in the relevant climate action plan or otherwise

compatible with climate law?

4. If it is not (and it is clear that it is neither), then the Commission must automatically

refuse permission unless it can find some other justification for the project. For instance, it

may impose a condition requiring measures to be taken to offset the emissions. The

Applicants do not rule out the possibility that there may be some other way of justifying the

project, but if there is, it must address at least the two steps which the Applicants have

identified: (a) it must explain why an increase is not significant when a decrease is required;

(b) and it must explain why the cumulative impact of this and all other increases is

acceptable in terms of CAP24.

5. It is not for the Applicants to prescribe the Commission’s procedures, or to say what

steps it should take when it decides that there is an exception to the rule identified at §172

of the Judgment. All the Applicants submit is that these two issues at least must be

addressed and resolved, before the Commission can consider what other steps it may need

to take in order to grant permission.

6. Because the Court has held that the reasoning given is sufficient, it necessarily

follows that the Court understands all the other steps taken. The Applicants, on the other

hand, do not, and they would reserve the right to challenge any other steps (if any) that the

Commission might say it did take.

7. For the purposes of the present case the steps to be taken by the Commission include

(though not necessarily exclusively):

Step 1 – Content of the Application

a. The developer is required to provide sufficient information and data prepared by

competent experts in relation to climate change, this includes an estimate of unmitigated

GHG emissions, which sector(s) those emissions are attributed to, any mitigation proposed

and the precise degree of mitigation and similar information in relation to other relevant

factors (for example increase in traffic).

b. If necessary, authorities holding relevant information must make this available to

the developer for the purpose of preparing the planning application.

Step 2 – Compatibility with the Climate Action Plan

c. The Commission asks whether the proposed development is specifically provided for

in the applicable CAP

d. If the answer to c is ‘no’, The Commission asks whether the proposed development

is within a category specifically provided for in the applicable CAP, if it is the Commission

examines whether any constraints set by the CAP are satisfied, cumulatively if necessary.

e. If the answer to either c or d is ‘yes’ The Commission asks whether any mitigation

specified by the developer is provided for in the CAP for this project, or this category of

project.

f. Only if the answer to c or d is ‘yes’ and the answer to e is ‘yes’ the Commission may

grant permission, if not the Commission must either refuse permission, seek further

information and perform steps c to e again, or move to the next step.

Step 3 – If not compatible with Climate Action Plan is it compatible with Carbon Budgets and

Sectoral Emissions Ceilings?

g. Will the proposed development, without mitigation, increase GHG emissions?

h. If there is proposed mitigation, is this mitigation specified in the applicable CAP for

projects which are CAP-compatible, if yes then mitigation must be discounted and cannot be

permitted. If not then the mitigated GHG emissions are calculated.

i. If the project, including allowable mitigation, involves GHG emissions is there spare

budget in the applicable sector(s)’ sectoral emissions ceiling (note it is not permissible to

move budget between sectors, therefore the overall carbon budget is not a relevant factor

for the analysis)?

j. If there is spare budget in the applicable sector, is it compatible with the national

climate objective to allow a portion of the spare budget to be used for the proposed

development?

k. Only if the answer to j is ‘yes’ may the permission be given for the proposed

development, otherwise the Commission moves to the next step.

Step 4 – If not compatible with carbon budgets/sectoral emissions ceilings is it compatible

with the National Long term Climate Action Strategy

l. If the proposed development cannot be granted permission under steps 2 or 3, is

the proposed development otherwise compatible with the National Long Term Climate Action

Strategy.

m. If yes then permission can be granted, if not then move to the next step.

Step 5 – If not is it Compatible with the National Objective

n. If the proposed development cannot be granted permission under steps 2 - 4, is the

proposed development otherwise compatible with the National Climate Objective?

o. If yes then permission can be granted, if not move to the next step

Step 6 – If not, would it not be practicable to refuse permission?

p. If the proposed development cannot be granted under steps 2 – 5, the Commission

may, exceptionally, determine that compliance with climate goals is not practicable, due to

imperative reasons of social order.

Step 7 – Decision Making

q. Section 15 entails a presumption against granting permission for proposed GHG-

emitting developments unless compatible with the applicable CAP, and they don’t raise

carbon emissions in a way that is incompatible with the carbon budgets, sectoral emissions

ceilings, the national long term climate action strategy and the national climate objective.

r. The Commission is required to positively satisfy itself based on objective information

that it may grant permission in a way that is consistent with the section 15(1) matters, or

that it is not practicable to do so. If there is doubt it must seek further information from (i)

the developer and/or (ii) appropriate public authorities such as the EPA, NTA, TII, relevant

local authority etc. so that it has sufficient information to make its decision. If there remains

doubt, then permission cannot be granted.

s. Where the project is within the scope of the EIA Directive, EIA screening and EIA

are used to carry out the assessment described above. In particular, where reasonable

alternatives are considered by the developer, compatibility with section 15 must be

examined for each alternative.

t. A project that is not consistent with the section 15(1) matters by definition will have

a significant effect on the environment.

u. In the decision, the Commission must set out in a clear and unequivocal fashion the

reasoning followed by it to enable the persons concerned to ascertain the reasons for the

decision and to enable the court having jurisdiction to exercise its power of review.

v. Those reasons must be made publicly available at the same time as the decision is

published.

8. The Applicant reserves the right to clarify its submissions on the foregoing subject

to the direction of the Court.”

11. I appreciate that the foregoing elaborate and lengthy text was somewhat in the nature of a

first draft under some time pressure, subject to further refinement, and I think there may be a case

for looking at a more simplified approach. The applicant did offer to try to assay a second draft, but

I don’t think that further submission and counter-submission is necessary in the circumstances as

the foregoing gives us the general direction of travel advocated by the applicant.

12. At the most basic level, the commission’s task is not that hugely different from any other

decision-taker, including a court. It involves the following essential steps:

(i) correctly identify the legal test(s) so that the decision-taker asks the right question;

(ii) consider all relevant materials she is required to consider;

(iii) lawfully find facts relevant to the correct legal test(s) at issue;

(iv) correctly, rationally and lawfully apply the relevant legal test(s); and

(v) provide reasons to the appropriate standard.

13. The commission adds a few qualifications such as that this would have regard to what issues

were raised by the parties, as well as factoring in the question of reasonableness in terms of any

evaluative judgement applied. Also the commission made the point that a discussion of the correct

procedure was obiter in the present case.

14. But phrased broadly thus, and even acknowledging those qualifications, the parties didn’t

hotly argue with these headings. The disagreements will lie in the specifics which can only be worked

out in individual cases where such points are properly pleaded.

15. There are a medley of possible issues that could arise in the climate context. Here the

applicant has confined its pleadings to environmental impact assessment (EIA) issues – in an

appropriate case there could be an interesting discussion of scope 3 emissions or legislation on

transboundary impacts – but this is not such a case.

16. Assessments under the habitats and water framework directives may be of interest in

another case, as may issues relating to the concept of sustainable development, the polluter pays

principle, the European Climate Law (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 environmental liability

directive (2004/35/EC), or other legislation.

17. The 2015 Act obligations are due to be clarified by the Supreme Court, at least insofar as

they relate to projects that assist in reduction of emissions, in the appeal in Coolglass, but subject

to such clarification there appear to be three essential steps involved in assessing a project that

causes emissions:

(i) identification of net emissions – the budgetary nature of the process implies a

need to quantify net greenhouse gases (GHGs) attributable to the project, including

what would be scope 3 in EIA terms, net of mitigation and offsets (including

mitigation/offsets proposed to be conditioned), as compared with a counterfactual

baseline scenario of no project (and thus a baseline scenario which may well not

involve no emissions but rather an alternative level of emissions);

(ii) evaluation against targets – in the event that there are net GHG emissions, a

determination of whether the emissions so identified come within the available

headroom both nationally and sectorally as provided for in relevant climate policy

instruments; and

(iii) evaluation of practicability of compliance – in the event of any excess of

emissions over available headroom, a determination as to whether the non-

compliance involved is justified by considerations of practicability, such as for

example by imperative needs of energy security.

18. What the reader may now be expecting is a paragraph beginning “Applying that here ....”.

Unfortunately the reader is going to have to wait until the next case, for the simple reason that the

opposing parties have convincingly made the objection that the applicant didn’t plead the above at

any level that requires it to be considered now. The more elaborate case was made only having had

sight of the substantive judgment. And anyway the above is merely a provisional attempt to identify

the issues that may arise and is subject to further argument in a case where it all properly arises.

Do the points properly arise?

19. Since the answer to this is No, I could just as well stop here. I do have some sympathy for

the applicant in the sense that this is an evolving area so the temptation must be to try to

reprogramme the case as new developments come on stream. But that is not a basis for leave to

appeal. As in 100 Meter Tall Group v. An Bord Pleanála [2025] IEHC 42 (Unreported, High Court,

31 January 2025), mutatis mutandis, the mere mention of Hen Harrier in a pleading doesn’t allow

an applicant to raise whatever points she wants about Hen Harrier. Similarly here, the mere mention

of climate in a statement of grounds does not entitle an applicant to raise whatever points she

subsequently thinks of about climate, still less to think of further points having had sight of a

judgment rejecting the pleaded case.

20. The first question does not arise. The applicant didn’t argue that significance had to be

determined by reference to the Climate Action Plan 2024 (CAP24) – the core argument was the

factually unsustainable one of lack of regard to CAP24: core ground 2. The notice party’s submission

is correct:

“19. The formulation of question 1 is qualitatively different to what was pleaded in the

case and found in the judgment. It seeks to convert a fact-specific adequacy complaint into

an abstract legal duty to benchmark traffic emissions against national climate policy. That

was never pleaded or argued. As is clear from Treascon and Massey (No.4), the Applicant

cannot retrofit its case at this stage.”

21. Also the question is totally inconsistent with the confounding pleaded claim by the applicant

that CAP24 was invalid (for amorphous reasons) and that consequently this decision was also invalid

– confounding because the logical consequence would be that so also are virtually all other decisions

by the commission. The inadequately particularised mixum-gatherum of claims of lack of reasons,

lack of evidence, failure to allow comment from the applicant and so forth at sub-grounds 60 to 62G

doesn’t compensate for failing to plead, still less argue, the actual precise point now put centre

stage.

22. The second and third questions are also pure ad hoc invention and reprogramming having

had sight of the judgment. Never having been argued or pleaded, these questions do not arise at

leave to appeal stage. The only actual plea in relation to s. 15 of the 2015 Act is the extremely

technical and factually misconceived claim that the board did not consider the latest plan: core

ground 2, and sub-ground 59. This simply does not cover the points the applicant has now realised

it could have pleaded but did not. This applicant never pleaded or argued that the commission

breached s. 15 of the Climate Act 2015 by not preventing unmitigated and uncompensated GHG

emissions, still less that this was some sort of companion case to Coolglass.

23. Like the commission, the notice party in submissions also highlights one rather

uncomfortable fact for the would-be appellant – the latter accepts the central climate-related

concepts set out in the judgment. As the notice party submits:

“14. Critically, at §§11-12 of the Applicant’s submissions, it is acknowledged that the

Applicant that the considerations which the Court set out are the ‘key’ to the case and that

the Applicant ‘takes no issue with these principles’, even though as was noted at §173 of

the judgment ‘The applicant here didn’t argue much of this. Rather the focus of the

argument was on an incorrect conclusion of insignificance by not having regard to climate

goals. But the board did have regard to climate goals’.”

24. The acceptance of a further central feature is repeated in the latest submission from the

applicant quoted above. One can’t appeal a decision one accepts. So what in essence the applicant

is quibbling with is that these principles weren’t applied in its favour – but one threshold reason why

that never got off the ground was because they weren’t pleaded. Further debate is pointless once

we acknowledge that problem.

25. Finally, the third question is particularly problematical because at least the first two offer the

claim that they come legitimately within the EIA point argued by the applicant substantively. But

the third one abandons even that fig-leaf and simply asks outright what are the reasons obligations

under s. 15. To make such a context-free point now is not a valid basis for an appeal.

Are the points ones of law?

26. I would assume for present purposes that the points count as ones of law, but dreaming up

new points of law in the light of an adverse judgment is not difficult.

Are the points of public importance?

27. There is a sort of hellish legal bingo game played by would-be appellants when it comes to

satisfying a test involving public importance. Given the fact that the fall-back is a leapfrog procedure

involving a limited time to assess a leave to appeal application without full argument, such an

attempt at turning legal lemons into refreshing jurisprudential lemonade seems to be thought to be

worth a gamble. The clichés that are rolled out nearly every time are:

(i) the point is legally significant;

(ii) there is conflicting jurisprudence;

(iii) there is no appellate authority; and

(iv) the point has important practical ramifications.

28. Unfortunately, more often than one would like, the answers to these questions are along the

following lines:

(i) Coming up with an important-sounding point in the abstract is not difficult but the

postulated point is not one that properly arises on these facts and/or pleadings.

(ii) The claim of conflict of jurisprudence is frequently artificial and the perception of

conflict is typically stimulated for the purpose. Any two judgments picked at random

can be made to look inconsistent if one approaches them seeking inconsistency.

(iii) There frequently is in fact appellate authority of relevance to the matter. Even if

there isn’t, coming up with a question vaguely related to the case on which there is

no exact appellate authority is not difficult, but that doesn’t mean that the issue is

properly uncertain.

(iv) The alleged practical ramifications are typically hypothetical or speculative and/or

the proceedings are not a suitable vehicle to explore them.

29. Here all of these apply.

30. As to legal significance, the answer suggested to the first point is so unworkable that it

cannot be of public importance. Something loosely resembling the other two points could possibly

be important in another case, but since they were never pleaded or argued here they are not points

of public importance that arise in the context of this litigation.

31. Insofar as the applicant claims conflict of jurisprudence by attempting to introduce new

authority or reprogramme authorities having had sight of the judgment, it’s not necessary to attempt

to improve on the following from the commission’s submission:

“23. The Applicant (§25) refers to Finch [2024] UKSC 20 and to Greenpeace Nordic (Case

E-18/24) and to Hassard et al [2025] NIKB 42 (§27). Nothing in those cases supports the

unworkable interpretation of the EIA Directive that the Applicant proffered in this case in

relation to assessment of cumulative effects of all projects in the State. In reality, in

referencing those cases, the Applicant adopts a directly comparable approach to that which

the Court correctly rejected in Massey (No.4) [2025] IEHC 30 at §17 et seq:

‘17. One move straight out of the appellant’s handbook is to produce new authority and to

claim a conflict of jurisprudence (hence unlocking the magic door of the matter not being

acte clair and an appeal being necessary to resolve doubt). The problem of course is that

typically the doubt is stimulated artificially for the purpose.

18. Any two judgments picked at random can be made to look contradictory if you approach

them looking for contradiction. By contrast, the common law method is to try to read

caselaw as fitting together if such a reading is reasonably available.

19. The applicant produces the judgment of the EFTA Court of 21 May 2025 in Case E-

18/24, The Norwegian State v Greenpeace Nordic, Nature and Youth Norway, claiming

conflict, but misunderstands this judgment. […]

20. The ultimate point is that the applicant tries to generalise from an extreme case – no

EIA at all – to say that in this case an alleged shortcomings in assessment requires certiorari

even if it makes no difference. What this overlooks among so many other things is that if a

project isn’t going to have any effects on site X then it doesn’t matter what site X’s

conservation objectives are or whether there are any.’”

32. On the issue of alleged lack of appellate authority, the premise is unfounded. Appellate

authority is quoted and relied on in the principal judgment. Even leaving that aside, the commission

furthermore correctly submits:

“27. The Applicant also contends that lack of appellate court judgment in relation to s.15

of the 2015 Act means there is uncertainty in the law. However, there will be a judgment

considering same from the Supreme Court in Coolglass, the present case is not

‘complementary’ to that case as mischaracterised by the Applicant, and as the High Court

has held, the Applicant in this case did not directly plead a breach of s.15 of the 2015 Act.

More generally, the mere fact that there is no appellate decision on a particular point does

not per se reach any threshold for certification (see e.g., Carrownagowan (No.3) [2024]

IEHC 549 at §93(vi)), Fursey Maguire [2023] IESCDET 96 at §34-§35, Phoenix Rock [2023]

IESCDET 97 at §26). A fallacy that subtends points 1, 2 and 3 is that the absence of a

judgment from an Irish appellate court means that there is uncertainty in the law such that

the points should therefore be certified. However, this type of argument, which is without

legal basis, has already been rejected by the Supreme Court (albeit non-precedentially) in

refusing leave to appeal in a planning judicial review context in Fursey Maguire and Pheonix

Rock as aforesaid. Consistent with the Supreme’s Court’s rejection of that type of argument,

in refusing a s.50A(7) certificate for leave to appeal, this Honourable Court stated as follows

in Carrownagowan (No.3) [2024] IEHC 549 at §93(vi):

‘insofar as there are fragmentary points not expressly covered by express existing appellate

authority, the mere absence of express authority rejecting a point doesn’t have the

implication that the point must be one of uncertainty and relevance that warrants leave to

appeal’.”

33. On practical ramifications, climate issues are of course practical to the extent that they

impact in an appropriate case where they have been fully argued and pleaded, but this case is not

such a case.

34. I would finally acknowledge that the applicant may have some sort of point loosely similar

to question 1 (not a point that they pleaded but leave that aside) that an assessment of the overall

situation in the State appears to be inherent in the budgeting situation envisaged by s. 15 to

ascertain whether there is any remaining headroom in the given sector or for the CAP overall. That

is at an EPA-report-level snapshot of how compliance is going, not at an EIA-level of assessing the

effects of all projects cumulatively. Only the latter was pleaded – s. 15 wasn’t pleaded in any sense

in which this point could, even at a stretch, arise.

Are the points of exceptional public importance?

35. This does not arise given the previous heading.

Is an appeal in the public interest?

36. An appeal is most certainly not in the public interest. The issues now sought to be advanced

do not come into acute focus on the facts here anyway, where the emissions are extremely limited

and temporary. Firing such questions up to the appellate courts at half-cock, as proposed by the

applicant here, would be a singularly unhelpful exercise on so many levels it is hard to know where

to begin.

37. I appreciate it is no consolation to the applicant but sending climate issues up the chain of

command on such a wobbly basis and on such weak facts here is unlikely to achieve a whole lot for

the development of climate law. Such issues need full debate at first instance, and careful

consideration of the various domestic and European strands. They are not the stuff of afterthought,

reprogramming, esprit d’escalier, throw-it-at-the-wall-and-see-what-sticks. I appreciate that an

individual applicant is only concerned to salvage something from the individual case, but the leave

to appeal procedure presupposes some level of attention to whether an appeal makes sense in the

context of the system as a whole. In this case the answer is so obviously negative that this is a

case where there is little point in debating at length why leave to appeal should be refused. Leave

to appeal here would be a significant setback for the rational and orderly development of climate

law, because it would be sending a half-developed and under-analysed set of propositions into the

line of fire that (in my possibly erroneous opinion) would, in such circumstances, be almost bound

to go down in flames on procedural grounds alone (see for example 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.). In the (I would have thought

unlikely) event that the appellate courts are particularly impatient to get their hands on such issues,

maybe it’s relevant to make the general point that there are other cases currently on hands in the

Planning & Environment Court that raise such issues much more squarely and that are likely to be

processed reasonably proximately (with all the usual and appropriate caveats, including the obvious

one that it would be imprudent to make any firm predictions or promises about how any future case

is likely to unfold).

38. Finally, uncompensatable financial prejudice to the notice party and through it, other third

parties, by way of the belated reconfiguration of the case to artificially prolong its life on appeal is a

factor militating against a conclusion that an appeal is in the public interest. This is in a context

where:

(i) 200 jobs in Cavan are depending on the project;

(ii) the project will also contribute to the local economy;

(iii) the permission has already been in the decision-making and judicial review

processes for the best part of three years;

(iv) the applicant never made these points during the process despite two bites of the

cherry in that process before the council and the board – their case mutated into the

substantive claim and has now mutated again at the leave to appeal stage; and

finally

(v) the notice party has had to meet a claim that is costs-protected and would, if appeal

is allowed, be facing an appeal that is costs-protected, which while not of course a

fact preclusive of an appeal, should nonetheless add some pause to an indiscriminate

handing out of leave to appeal which would make the system even more imbalanced

than it already is.

39. Arlene Maguire, Tesco Ireland Head of Property (Acquisitions and Assets Estates), avers to

these matters – her affidavit is uncontradicted:

“5. These proceedings concern a challenge by the Applicant to a decision of An Bord

Pleanála (the ‘Board’) dated 3 December 2024 under its reference ABP-318406-23 to grant

planning permission to Tesco for a proposed development consisting of the construction of

a single storey retail unit (5147m2 gross), 297 car parking spaces, drive through ‘café"

(174m2 gross), petrol filling station (255m2) and associated development at Cock Hill,

Cavan Town, County Cavan.

6. The proposed development represents a significant investment in Cavan Town,

providing much-needed retail facilities, employment opportunities, and economic benefits to

the local community. Once operational, Tesco expects that the new store and ancillary

facilities will give employment to an estimated 200 people.

7. Furthermore, the proposed development will provide improved retail infrastructure,

and enhanced connectivity.”

40. In the context of all of the foregoing matters I accept the notice party’s submission under

this heading:

“56. In the present case, the planning application was lodged with Cavan County Council

on 16 January 2023, accompanied by a range of supporting documentation, including an

Environmental Impact Assessment Report (‘EIAR”), an Appropriate Assessment (‘AA’)

screening report and Natura Impact Statement (‘NIS’). It is now close to three years since

the application was lodged and an appeal will conservatively add another nine months to a

year to the process. Given that the intention of the Oireachtas in enacting section 50 of the

2000 Act was that planning judicial reviews should be restrictive in nature and normally

determined at the High Court, permitting an appeal in this case would work an unfairness to

the Notice Party, which is, in itself, contrary to the public interest.

...

58. The Applicant participated fully in the planning process, albeit that it did not raise

the issues which it sought to ventilate in these proceedings. Its public participation rights

have been vindicated, but its complaints, whilst fully considered, have been unsuccessful at

all stages of the proceedings. It has had a full airing in the High Court with the benefit of

costs protection under section 50B of the 2000 Act. There can be no injustice in finalising

matters at this stage, particularly where the project will bring local benefits to Cavan. The

public interest is better served by leave to appeal being refused.”

41. A final relevant factor is that the emissions here, while not exactly de minimis, are certainly

very low in relative terms, making this case a singularly unsuitable candidate to be a test case for

all of the major climate issues now agitated. Or to look at the other side of the coin, the notice party

has certainly made notable efforts to reduce the emissions directly associated with the project. The

public interest does not favour selecting such a developer as the one whose project is to be delayed

while further appellate processes are attempted.

42. Having regard to the foregoing an appeal would not be in the public interest.

Summary

43. In outline summary, without taking from the more specific terms of this judgment:

(i) The questions were never pleaded or argued either at all or in any form that can

legitimately be rephrased into the issues now advanced.

(ii) The first question, postulating a totally unworkable suggestion that the board was

required to assess all transport emissions in the State, is inconsistent with the

judgment in An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8, [2022]

2 I.R. 173, [2022] 1 I.L.R.M. 281, per Hogan J. at para. 105, rejecting “impossibly

onerous and unworkable obligations”.

(iii) The second question postulates that the assessment was of a situation inconsistent

with compliance with s. 15, but this was not something that the applicant factually

established (or even tried to establish).

(iv) The third question seeks clarification as to the law of reasons, but clarification as to

the law of reason has already been provided by the Supreme Court: Connelly v. An

Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453.

(v) The points thus fail the tests of being ones that properly arise. Not properly arising

they fail the test of public importance. The first proposition is in any event wholly

impracticable and not of public importance for that reason also.

(vi) Finally the applicant has not established a public interest in an appeal.

Order

44. For the foregoing reasons, it is ordered that:

(i) the application for leave to appeal be dismissed;

(ii) in the event that an application for leapfrog leave to appeal is made and acceded to

by the Supreme Court, the costs of the leave to appeal application be costs in that

appeal;

(iii) otherwise, there be no order as to such costs; and

(iv) the foregoing order and the order already pronounced in the substantive judgment

be perfected forthwith with no further listing as the final order of the High Court in

the proceedings.