High Court dismisses planning application challenge, holding noise fears at 886m are unreasonable and not actionable.

[2025] IEHC 600

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000120]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE

PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

RURAL RESIDENTS WIND AWARE AND ENVIRONMENTAL GROUP, JOHN NOLAN AND

CATRIONA NOLAN

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

WHITE HILL WIND LIMITED

NOTICE PARTY

(I)

Date of impugned decision: 21 November 2023

Date proceedings commenced: 24 January 2024

Application for a hearing date: 25 February 2025

Date of main hearing: 30 September – 1 October 2025

Date draft judgment circulated: 15 October 2025

JUDGMENT of Humphreys J. delivered on Thursday the 6th day of November 2025

1. The third named applicant lives 886 m from the nearest of a number of proposed wind

turbines, most of which are significantly further away. While she fears noise impacts particularly on

behalf of her son, that is equivalent to the distance as the crow files between Chancery Place and

the GPO. At such a distance the noise of a turbine in terms of volume and quality should not be

significantly more intrusive than a washing machine at a less vigorous stage of its cycle. That is not

the sort of impact that public policy should accept as precluding the grant of permission or indeed

on the face of things as giving rise to any actionable tort. In such matters it is just human nature

that there can be a risk of fears running ahead of realities, so the commission in particular is there

to bring objective assessment to bear on the situation. Stating the obvious, the consideration of the

merits of a development are for the decision-taker, and the assessment of validity is for the court.

The primary question here is whether the applicants have overcome the onus of proof to show

invalidity of the decision at issue.

Geographical context

2. The proposed development is a 7-turbine windfarm and associated works in the townlands

of Ridge, Knocknabranagh and Knockbaun, Baunreagh, and Agharue, Co. Carlow and Coolcullen,

Cloneen and Coan East, Co. Kilkenny (https://www.pleanala.ie/en-ie/case/315365).

Facts

3. On 19 December 2022, an application for strategic infrastructure development (SID) under

s. 37E of the Planning and Development Act 2000, ABP-315365-22, was lodged with the board (now

commission) by Galetech Energy Services on behalf of White Hill Wind Limited for proposed

development comprising a wind energy development (a 7-turbine wind farm with an electrical output

of 50.4 MW) and all associated works at Ridge, Knocknabranagh and Knockbaun, Baunreagh, and

Agharue, Co. Carlow; and Coolcullen, Cloneen and Coan East, Co. Kilkenny.

4. The notice party’s application for strategic infrastructure development was accompanied by

supporting documentation including an environmental impact assessment report (EIAR) and Natura

impact statement (NIS).

5. The application was the subject of public consultation. A number of prescribed bodies were

notified by the notice party of the subject application. The following bodies each made a submission

on the application: the Department of Housing, Local Government and Heritage Development

Applications Unit, the Health Service Executive (HSE), Inland Fisheries Ireland, Transport

Infrastructure Ireland. Seventy-seven third-party observations were made on the subject

application, including by the first named applicant and the third named applicant. The second named

applicant did not make a submission on his own behalf to the commission.

6. The proposed windfarm is located across two planning jurisdictions with the western area of

the site being located in Co. Kilkenny and the eastern area being located in Co. Carlow. A

submission/report was received from each of the relevant planning authorities, Carlow County

Council (dated 20 January 2023) and Kilkenny County Council (dated 21 February 2023), in

accordance with s. 37E(4) of the 2000 Act. Both of the submissions/reports of the respective

planning authorities were accompanied by resolutions of the elected members of each council,

recording the views of the elected members on the subject application for permission.

7. By way of letter dated 26 July 2023, the commission sought further information from the

notice party, namely a response to matters raised in the submissions on the subject application.

The notice party responded to that request for further information by way of response dated 18

August 2023. The further information received was not the subject of a further round of public

consultation/submission.

8. The commission decided not to hold an oral hearing (at a meeting held on 17 July 2023) in

relation to the subject application, having considered that there was sufficient written evidence on

file to enable an assessment of the issues raised.

9. The commission appointed a planning inspector to prepare a report in relation to the subject

application and this was done. The inspector’s report, which is dated 30 September 2023, records

that the inspector carried out a site inspection on 1 June 2023. The inspector recommended that

permission should be granted for the proposed development, subject to conditions and for stated

reasons and considerations (at section 8.0 of the report).

10. The board direction (BD-014581-23) dated 15 November 2023 states, inter alia, that the

commission decided to grant permission generally in accordance with the inspector’s report and that

same and the submissions on file were considered at a meeting held on 14 November 2023.

11. By order dated 21 November 2023 (ABP-315365-22), the commission granted planning

permission in respect of the proposed development subject to 22 conditions and for stated reasons

and considerations.

12. The applicant has brought two sets of proceedings, the present case being Rural Residents

I challenging the parent permission, and a second case, Rural Residents II challenging an

amendment to the permission.

Procedural history

13. The first proceedings were issued on 24 January 2024.

14. Leave was granted on 29 January 2024, with liberty to file an amended statement of grounds

adding in a para. 9. An amended statement of grounds was filed on 2 February 2024.

15. The matter was listed for mention on 12 February 2024, and default directions were agreed.

16. The matter was listed for mention on 15 April 2024, but the first respondent’s opposition

papers were late. The notice party indicated that they would be seeking a date in the April List to

Fix Dates.

17. On 15 April 2024 a hearing date was fixed for December 2024 but this was later vacated in

the context of the second, related set of proceedings having been instituted in November 2024.

18. The issue of modularisation was also raised on the same date, with relief D3 and ground 8A

modularised and the State excluded until Module II. The first respondent’s opposition papers were

due by 29 April 2024, after which ordinary directions were to follow.

19. The statement of opposition of the first named respondent was filed on 29 May 2024.

20. The statement of opposition of the notice party was filed on 15 August 2024.

21. The submissions of the applicants were filed on 30 October 2024.

22. The submissions the first named respondent were filed on 8 August 2025.

23. The submissions of the notice party were filed on 16 September 2025.

24. The second proceedings were issued on 4 November 2024.

25. Leave in the second set of proceedings was granted on 11 November 2024, with liberty to

file an amended statement of grounds. An amended statement of grounds was filed on the 14

November 2024.

26. On 2 December 2024, I made an order modularising the case against the State in both

proceedings.

27. On the same date, on request of the applicants, I lifted the limit on the wordcount for

submissions to provide some balance for the expedition requested by opposing parties.

28. The application for a date was made by the notice party on 25 February 2025.

29. The expedited procedure was directed in tandem with the No. II case thus allowing for two

days overall.

30. The statement of opposition of the first named respondent was filed on the 26 March 2025.

31. The statement of opposition of the notice party was filed on the 9 April 2025.

32. The statement of opposition of the second, third and fourth named respondents was filed on

the 16 May 2025.

33. The submissions of the applicants were filed on the 17 July 2025.

34. The submissions of the first names respondents were filed on the 7 August 2025.

35. The matter was listed for callover on 15 September 2025.

36. The submissions of the notice party were filed on the 16 September 2025.

37. The proceedings (both cases together) were heard on 30 September and 1 October 2025.

38. 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.

39. On 15 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. 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,

for example by rephrasing/redaction of any personal information.

40. 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, [2018] 1

I.L.R.M. 245, 780).

41. The mention date to review matters following the 7 day period was to be 09:30 on Thursday

23 October 2025. The commission helpfully proposed some typographical changes. The applicant

raised issues about the provisional order as to costs which I address below. I have also updated the

discussion about harmless error by noting that the Supreme Court recently affirmed the doctrine in

a determination context in Massey v. An Bord Pleanála [2025] IESCDET 126 (Woulfe, Murray and

Donnelly JJ., 16 October 2025).

42. There was then further correspondence from the parties about the scope of Module II and

costs, which I also address below, and the matter was then listed on 3 November 2025 at which

point I sought to clarify with the parties the following issues:

(i) The State’s application to dismiss, as moot, the case against it at this stage. I

indicated that I wasn’t persuaded about that because the relevance of that case was

linked to the outstanding Module II of the No. II case. So Module II proceeds as

planned.

(ii) The question of a date for Module II (the balance of core grounds 1 and 8A) and for

consequential directions regarding any outstanding papers. Friday 13 February 2026

was fixed as the date for the balance of both cases for 5.5 hours together.

(iii) The applicants’ concerns about costs protection. I attempted to clarify that it was

not intended to reduce the applicants’ existing costs protection and that some of the

wording they didn’t particularly like could be deleted – see further below.

43. On that basis the draft judgment was revised accordingly.

Relief sought

44. The reliefs sought are as follows:

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

(’the impugned decision’) of the First Respondent (‘the Board’) of on or about 21 November

2023 (file 315365), pursuant to section 37G of the Planning and Development Act 2000, as

amended, to grant planning permission to the Notice Party for development of a wind farm

and associated infrastructure comprising 7 no. wind turbines with hub height of 104 metres,

a rotor diameter of 162 metres and an overall tip height of 185 metres and associated

development including underground electrical and communications cabling, site entrances,

a 30 metre high meteorological mast, 3 no. borrow pits, 2 no. further dedicated spoil

deposition areas; change of use of existing residential dwelling to wind farm site office,

felling of 15 hectares of commercial forestry plantation to facilitate the construction of wind

farm infrastructure, access road (150m in length) between the N78 national road and L1834

local road, strengthening works at ‘Black Bridge’ on the L1835 and L3037, temporary works

to public roads along the turbine component haul route, the provision of site drainage

infrastructure and environmental mitigation measures, described as being located in 7

named townlands being the 4 Co. Carlow townlands of Ridge, Knocknabranagh and

Knockbaun, Baunreagh, and Agharue; and the 3 Co. Kilkenny townlands of Coolcullen,

Cloneen and Coan East, Co. Kilkenny.

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

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

3. In the alternative, a Declaration that Article 214(1) of the Planning and Development

Regulations 2001 as amended is invalid and contrary to the Constitution because it does not

require the planning applicant to provide written consent from the owner of the land where

the planning applicant is not the owner.

4. An Order providing for the costs of the application pursuant to Art. 9(4) of the Aarhus

Convention and as transposed into Section 50B of the Planning and Development Act, 2000,

as amended and or Section 3 of the Environmental (Miscellaneous Provisions) Act 2011, as

amended with respect of the costs of this application.

5. Further and other orders including interim orders.

6. Liberty to apply for a Stay if necessary.”

Grounds of challenge

45. The core grounds of challenge are as follows:

“PART 1 - CORE GROUNDS

Domestic Law Core Grounds

1. The impugned decision is invalid and contrary to s.37E(2) of the Planning and

Development Act and fair procedures, because the Board having received from the developer

an application form in its own required format, failed to use its discretion to refuse to deal

with the application when it knew or ought to have known that the information provided by

the developer in section 7 of the application form wrongly implied that letters of consent to

make the application from the Second Applicant John Nolan of Coolcullen, Co. Kilkenny and

his father James Nolan of Coolcullen, Co. Kilkenny (the administrator of the estate of the

late Sean Nolan deceased), had been supplied to the Board with the planning application

when no such consent had been given, and the Notice Party had no standing to make a

planning application for development on the lands of John Nolan and the late Sean Nolan

(deceased). Further particulars are set out in Part 2 below.

2. The impugned decision is invalid because the Board erred in law and acted contrary

to fair procedures by excluding from its decision-making more relevant considerations on

wind turbine noise and shadow flicker than are contained in the Wind Energy Development

Guidelines of 2006, and in particular failed to engage properly or at all with several

submissions made by the parents and guardians of vulnerable persons in the local

community known to suffer from sensory disturbances triggered by visual and aural impacts,

including the son of the Third Applicant, contrary to the decision of the Supreme Court in

Balz -v- An Bord Pleanála [2019] IESC 90, and in granting the impugned planning permission

and conditioning therein outdated limit values for noise and shadow flicker, failed to have

any regard to best current scientific practice (including in relation to amplitude modulation)

and determined a harmful level of noise and shadow flicker to be legally acceptable (per

Smyth -v- RPA [2010] IEHC 290) and harmful noise nuisance that is nonetheless defensible

under section 108(2) of the Environmental Protection Act 1992. Further particulars are set

out in Part 2 below.

3. The impugned decision is invalid in that it contravenes s. 37A(1) and s. 37E(1) and

(2) of the Planning and Development Act as amended, because the Board accepted a

planning application from the Notice Party under s. 37E for a development, without first

ensuring that the condition in s.37A(2) had been complied with, and the Board had not first

engaged in consultations with the Notice Party or served on the Notice Party a notice in

writing under s. 37B in relation to development in Agharue, Co. Carlow and Cloneen and

Coan East, Co. Kilkenny to allow the Notice Party apply for planning permission directly to

the Board for development in these places and bypassing local planning application

processes of the Carlow and Kilkenny planning authorities and their public participation

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

4. The impugned decision is invalid and contrary to fair procedures in that it

contravenes article 214 (1) because the Board accepted the planning application without

proper plans or particulars of the battery storage facility and substation and the development

works to be carried out to the haul route from Waterford Port and without describing these

components of the project on legible drawings to an appropriate scale. Further particulars

are set out in Part 2 below.

EU Law Grounds

5. The impugned decision is invalid because it was made contrary to Articles 6(3), 6(5)

and 11 of the EIA Directive as transposed by Section 146 of the Planning and Development

Act, 2000, as amended and article 210 (4A) of the Planning and Development Regulations

2001, as amended because the Board failed to ensure that relevant information, including

submissions made by public bodies, planning authorities, members of the public and the

developer, were made available to the public within reasonable timeframes and through a

central portal. Further particulars are set out in Part 2 below.

6. The impugned decision is invalid because it was made contrary to Article 2(1) and

Article 3(1)(a) of the EIA Directive as transposed by section 37G(2) and because the Board

failed to ensure that before development consent was given the project was made subject

to an Environmental Impact Assessment that identified, described and assessed in an

appropriate manner the direct and indirect significant effects of the project on population

and human health (and in particular noise) including the impact of the development on

several adults and children known to suffer from sensory disturbances triggered by visual

and aural impacts including the dependant son of the Third Applicant and the decision was

made contrary to Article 5(1) and Annex IV as transposed by section 37E(1) of the Planning

and Development Act as amended, inter alia because the Board failed to ensure that the

Environmental Impact Assessment Report properly described the project and its likely effects

including the emission of noise, light, the creation of nuisances and the risks to human

health. Further particulars are set out in the grounds below.

7. The impugned decision is invalid because it was made contrary to Article 2(1) and

Article 3(1)(a) of the EIA Directive as transposed by section 37G(2) and because the Board

failed to ensure that before development consent was given, the proposed battery storage

facility and substation as part of the whole development were made subject to an

Environmental Impact Assessment properly or at all. Further particulars are set out in Part

2 below.

8. The impugned decision is invalid because it was made contrary to Article 5(1)(d) of

the EPA Directive as transposed by section 37E(1) of the Planning and Development Act as

amended, because the Board failed to ensure that the EIAR included a description of the

reasonable alternatives studied by the developer, which are relevant to the project and its

specific characteristics, and an indication of the main reasons for the option chosen, taking

into account the effects of the project on the environment, and erred in failing to ensure that

the developer supplied information in relation to the environmental impact of both the

chosen option and of all the main alternatives studied by the developer, together with the

reasons for the developer’s choice, taking into account at least the environmental effects,

even if such an alternative was rejected at an early stage. Case C‑461/17 Holohan. Further

particulars are set out in Part 2 below.

Validity Ground

8A. Article 214(1) of the Planning and Development Regulations 2001 as amended is

invalid because it does not require the planning applicant for a Strategic Infrastructure

Development to provide written consent from the owner of the land where the planning

applicant is not the owner. Further particulars are set out in Part 2 below.”

The impugned decision

46. 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 the 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 had regard to the following:

National planning, related policy and guidance, including:

• Project Ireland 2040 National Planning Framework,

• National policy including the Climate Action Plan 2023, with regard to the

development of alternative and indigenous energy sources and the minimisation of

emissions from greenhouse gases,

• the provisions of the Wind Energy Development Guidelines, Guidelines for Planning

Authorities issued by the Department of the Environment, Heritage and Local

Government in June 2006, and the Draft Wind Energy Guidelines published by the

Department of Housing Local Government and Heritage in December 2019.

Regional and local level policy, including:

• The Regional Spatial Economic Strategy for the Southern Region 2020,

• the policies of the planning authority as set out in the Carlow County Development

Plan 2022-2028 including the Wind Energy Strategy for County Carlow and Carlow

County Renewal Energy Strategy,

• the policies of the planning authority as set out in the Kilkenny County Development

Plan 2021-2027.

Other matters, including:

• The character of the landscape in the area and of the general vicinity,

• the distance to dwellings and other sensitive receptors from the proposed

development,

• the nature, scale and design of the proposed development as set out in the planning

application and the pattern of development in the vicinity,

• 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,

• the documentation submitted with the planning application, including the Natura

Impact Statement and the Environmental Impact Assessment Report and the further

information furnished to the Board,

• the submissions made to An Bord Pleanala in connection with the planning

application and the submissions made to the further information response,

• the report and recommendation of the Planning Inspector, including the

examination, analysis and evaluation undertaken in relation to appropriate

assessment and environmental impact assessment.

[EIA and AA]

Proper Planning and Sustainable Development:

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

development would be in accordance with the National Planning Framework, the Regional

Spatial and Economic Strategy for the Southern Region, 2020, in relation to wind energy,

would be in accordance with the totality of the relevant provisions of the Carlow County

Development Plan 2022-2028 and the Kilkenny County Development Plan 2021-2027 and

the Kilkenny County Development Plan 2014-2020, as they apply to the subject site, and

other related policies and guidelines, would not have an unacceptable impact on the

biodiversity of the area, would not seriously injure the visual amenities of the area including

property in the vicinity, would not adversely affect the archaeological or natural heritage of

the area and would be acceptable in terms of pedestrian and traffic safety.

Specifically, Appendix 2b (VI) 'Renewable Energy Strategy' of the Carlow County

Development Plan 2022-2028 refers. In this regard it is noted that while the portion of the

subject site within the jurisdiction of Carlow County is located within the uplands landscape

type and that objective WEP4 states that windfarm development will not normally be

permissible in this landscape type, the Board considered the totality of the overarching

provisions of the Carlow Development Plan 2022-2028. In particular it is noted that the

Killeshin Hills landscape character area (within which the Carlow portion of the subject site

is located) is determined as having moderate capacity to absorb wind farming. Furthermore,

the development plan states, 'in the Killeshin landscape character area, close to border with

County Kilkenny the wind speeds are favourable and there are no environmental

designations that preclude windfarm construction. However, the constraints mapping

suggests that it may be difficult to meet separation distances between wind turbines and

dwellings.'

The plans and particulars submitted with the application confirm that separation distances

between the proposed wind farm elements and dwellings are sufficient and in accordance

with proper planning and sustainable development principles in this regard. In this context

the Board was satisfied that the proposed development can be considered acceptable and

generally in compliance with the overall policies and objectives of the current Carlow County

Development Plan 2022-2028 as they relate to the windfarm development, including those

set out at Chapter 7 and the Renewable Energy Strategy of the Development Plan, such that

there is an allowance for the proposed development, within the meaning of objective WEP4

and all associated development plan policies and objectives. The subject site also falls in

part within the jurisdiction of Kilkenny County and from the information on the file, the Board

is satisfied that the proposed development is in accordance with the relevant provisions of

the Kilkenny Development Plan, which remain in place at this time, as provided for in section

31(6)(b) of the Planning and Development Act 2000, as amended, (noting Figure 10.2 Wind

Energy Strategy of the Kilkenny County 2014- 2020 development plan,).

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

sustainable development of the area.”

The climate context

47. 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) and Toole v. Minister for Housing (II)

[2024] IEHC 610 (Unreported, High Court, 1 November 2024).

(ii) At the international level, the United Nations Framework Convention on

Climate Change (1992) (UNFCCC) opened for signature at UN Conference on

Environment and Development, Rio de Janeiro, Brazil, 3-14 June 1992, is the main

international treaty on fighting climate change. The EU and all member states are

parties.

(iii) Before the Paris Agreement, greenhouse gases (GHGs) were limited by the 1997

Kyoto Protocol, ratified by the EU and its member states.

(iv) 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.

(v) At the conference of parties of the UNFCCC (COP21) in Paris, all UNFCCC Parties

adopted the Paris Agreement (2015) on 12 December 2015.

(vi) 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.

(vii) By way of implementation of the Paris Agreement, the European Climate Law

(2021) (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) involves a reduction

of GHG emissions for the EU by at least 55% by 2030 compared to 1990 levels.

Ireland’s Nationally Determined Contributions (NDCs) under Paris are as part of the

EU contribution to GHG reductions.

(viii) The Climate Action and Low Carbon Development (Amendment) Act 2021

(amending the Climate Action and Low Carbon Development Act 2015) mandates

the achievement of a net-zero carbon economy by 2050 (s. 3(1) of 2015 Act as

substituted by the 2021 Act), with a legally binding 51% reduction in emissions by

2030 compared to 2018 levels (s. 6A(5) of 2015 Act as substituted by the 2021 Act).

(ix) Pursuant to s. 6A of the 2015 Act, the Climate Change Advisory Council has

submitted four carbon budgets (https://www.climatecouncil.ie/carbonbudgets/):

Carbon Budget 1 (2021–2025) – 295 MtCO2eq, Carbon Budget 2 (2026–2030) – 200

MtCO2eq, Proposed Carbon Budget 3 (2031–2035) – 160 MtCO2eq and Provisional

Carbon Budget 4 (2036-2040) – 120 MtCO2eq (provisional). The latter two have

been the subject of consultation: https://www.gov.ie/en/department-of-climate-

energy-and-the-environment/consultations/consultation-on-carbon-budgets/

(x) Pursuant to s. 6C of the 2015 Act, within each carbon budget, sectoral emissions

ceilings are to be established. Ceilings within the first budget were established in

July 2022: https://www.gov.ie/en/department-of-climate-energy-and-the-

environment/publications/sectoral-emissions-ceilings/

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

accelerate the deployment of renewable energy. Article 3(1) introduced 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 was made for the acceleration of such projects.

(xii) The current version of the Renewable Energy Directive (REDIII), 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, 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.

(xiii) In terms of factual context in the public domain, the WHO estimates a quarter of a

million deaths per year due to climate change in the coming decades:

https://www.who.int/news-room/fact-sheets/detail/climate-change-and-health. As

to the pollution context separate from the climate impacts, by way of context, the

WHO estimates that the more direct effects of air pollution (much of which is related

to fossil fuels) are associated with seven million deaths every year:

https://www.who.int/health-topics/air-pollution#tab=tab_2. Obviously such

impacts impose vast social and financial costs globally.

Judicial review principles

48. 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.

Onus of proof

49. Some relevant legal principles concerning the onus of proof which have been rehearsed in

previous caselaw include the following:

(i) With only defined and extremely limited exceptions, in judicial review the onus of

proof is on the applicant at all times: per Denham J. (Murray C.J. and Fennelly

J. concurring) in Meadows v. Minister for Justice, Equality and Law Reform [2010]

IESC 3, [2010] 2 I.R. 701 at p. 743; Cork County Council v. Minister for Housing,

Local Government and Heritage (No. 1) [2021] IEHC 683 (Unreported, High Court,

5 November 2021) at §57; Monkstown Road Residents Association v. An Bord

Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) at para. 96 per

Holland J.; that remains the case even when in a constitutional challenge it is proved

that constitutional rights have been interfered with: O’Doherty and Waters v.

Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per

O’Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring)

at para. 116.

(ii) To put the same point another way, there is a presumption of validity for

administrative decisions: per Finlay P. in In re Comhaltas Ceoltóirí Éireann

(Unreported, High Court, 5 December 1977) and per Keane J. in Campus Oil v.

Minister for Industry and Energy (No. 2) [1983] I.R. 88 at 102; Grassridge v. Dun

Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High Court,

Holland J., 25 November 2024), para. 22.

(iii) The onus shifts only in defined special circumstances. For example, where an error

is demonstrated by an applicant, the onus shifts to opposing parties to show

that the error is harmless: H.A. v. Minister for Justice [2022] IECA 166, [2022] 7

JIC 2201 (Unreported, Court of Appeal, Donnelly J., 22 July, 2022) at para. 48. An

onus on a decision-taker in the administrative process (e.g. to conduct a valid AA)

does not convert into an evidential or any burden in the judicial process to show that

the decision is valid (for reasons explained in Sherwin v. An Bord Pleanála [2023]

IEHC 26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023) at para.

85).

(iv) The onus of proof does not shift to a developer merely because the decision-

taker does not defend the decision on a given point or generally. Such a rule

would be inconsistent with the Supreme Court’s finding in Ballyboden Tidy Towns

Group v. An Bord Pleanála & Ors. [2024] IESC 4 (Unreported, Supreme Court,

Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ.

concurring) that a developer can defend a permission even if the decision-taker does

not.

(v) In the context of a challenge to an environmental assessment, the onus of proof to

show, by evidence (normally expert evidence), or by demonstrating a flaw

on face of material, that AA/EIA was defective, or that there were factual

circumstances requiring a decision-taker to consider any other autonomous

obligation, lies on the applicant: R v. Crischuk, 2010 BCSC 716 (Barrow J.) at paras.

36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141; Reid v. An Bord Pleanála (No.

1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021),

para. 19; An Taisce v. An Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173,

[2022] 1 I.L.R.M. 281 per Hogan J. at para. 124 (O'Donnell C.J., Dunne, Charleton

and Woulfe JJ. concurring); Carrownagowan Concern Group v. An Bord Pleanála

[2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v) (leave to appeal

refused in Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9

(Charleton, Collins and Donnelly JJ., 27 January 2025); Salmon Watch Ireland,

Inland Fisheries Ireland, Sweetman & Ors. v. Aquaculture Licences Appeals Board &

Ors. [2024] IEHC 421 (Unreported, High Court, Holland J., 12 July 2024), §1097;

Minoa Ltd v. An Bord Pleanála [2024] IEHC 704 (Unreported, High Court, Heslin J.,

10 December 2024), para. 333; onus to adduce evidence: Nagle View Turbine Aware

Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November

2024) at para. 115. Thus, apart from (i) failure to consider something that the

decision-taker was autonomously required to consider, (ii) patent flaw on the face

of the materials, or (iii) other legal error, inadequate consideration or failure to dispel

scientific doubt has to be established by admissible evidence (normally expert

evidence) in the judicial review showing either that reasonable doubt was created

by the material before the decision-taker at the time (albeit not limited to what was

adduced by the applicant specifically), or that such material even if uncontradicted

would on its face have created doubt in the mind of a reasonable expert: An Taisce

v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021] 7 JIC 0205 (Unreported, High

Court, 2 July 2021) at §7 and §8; Carrownagowan Concern Group v. An Bord

Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v), leave

to appeal refused: Carrownagowan Concern Group v. An Bord Pleanála [2025]

IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025); Kennedy v. An

Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024) at §105;

Roache v. An Bord Pleanála [2024] IEHC 311 (Unreported, High Court, Phelan J., 21

May 2024) at §117; Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported,

High Court, 7 October 2024) at 73; Ryanair DAC v. An Bord Pleanála [2025] IEHC

74 (Unreported, High Court, 14 February 2025) at §64 et seq.; analogously, Donegal

County Council v. Planree [2024] IECA 300 (Unreported, Court of Appeal, Butler J.,

18 December 2024), para. 141; Massey v. An Bord Pleanála (No. 2) [2025] IEHC

206 (Unreported, High Court, 11 April 2025). As noted in Nagle View Turbine Aware

Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November

2024), summarised in the non-precedential determination refusing leave to appeal

[2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10 March 2025) at para. 8,

“the critical point was that scientific and factual shortcomings in EIA or indeed in an

Appropriate Assessment, must be established by the applicant who bore the burden

of proof”. Similarly, leave to appeal was refused in Eco Advocacy v. An Bord Pleanála

[2025] IESCDET 74 (Dunne, Hogan and Donnelly JJ., 4 June 2025) where “The

applicant’s claim failed for the reason that the High Court accepted that the

respondent had come to a lawful conclusion of no doubt that an appropriate

assessment was not needed and that the respondent had given reasons for that

conclusion. On the judicial review the applicant had not displaced that conclusion by

way of evidence” (para. 25). That is consistent with the general law: O’Doherty and

Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M.

421 per O’Donnell C.J. (Irvine P., MacMenamin, O’Malley, Baker and Murray JJ.

concurring).

(vi) The onus of proof as to an inadequacy in the decision cannot be discharged by

mere assertion: Joyce Kemper v. An Bord Pleanála [2020] IEHC 601, [2020] 11

JIC 2402 (Unreported, High Court, Allen J., 24 November 2020) at §9; Murphy v.

An Bord Pleanála [2024] IEHC 59 (Unreported, High Court, Bolger J., 6 February

2024) at §14, nor does mere assertion create scientific doubt for AA purposes:

Harrington v. An Bord Pleanála [2014] IEHC 232, [2014] 5 JIC 0909 (Unreported,

High Court, O’Neill J., 9 May 2014); Murphy v. An Bord Pleanála [2024] IEHC 59

(Unreported, High Court, Bolger J., 6 February 2024) at §14; Duffy v. An Bord

Pleanála [2024] IEHC 558 (Unreported, High Court, Holland J., 27 September 2024)

at §40-§41.

(vii) If demonstration of error depends on expert opinion, the onus of demonstration in

that regard cannot be discharged by non-expert views articulated by or on

behalf of an applicant. Such an exercise in ultracrepidarianism is generally

inadmissible on standard evidential principles insofar as matters of opinion are

concerned: Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High

Court, 11 April 2025).

(viii) Where there is a conflict of admissible evidence, in the absence of cross-examination

then such a conflict must generally be resolved against the party carrying the

onus of proof: 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 (Clarke C.J.) (O’Donnell, MacMenamin,

Dunne and Finlay Geoghegan JJ. concurring). That is normally the applicant but in

the case of an opposing party asserting that a demonstrated error is harmless, the

conflict will be resolved against the opposing party.

(ix) That said, while conflict between equally inherently credible averments, with no

cross-examination, is generally resolved against the party carrying the onus of proof,

a court is not always obliged to regard all averments as being equally

credible, or to disregard internal or evident problems with them (see by

analogy the manner in which the Supreme Court considered it was entitled to prefer

an affidavit over even oral evidence in Koulibaly v. Minister for Justice, Equality and

Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court,

Denham J. (Geoghegan and McCracken JJ. concurring), 29 July 2004)). Among the

matters to which regard might be had would be included the failure to explain

patently relevant questions that are clearly within that party’s responsibility (Doorly

v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022) at para.

137). This specific and common sense power of the court to evaluate inherent

defects in evidence remains notwithstanding caselaw on cross-examination such as

RAS Medical or Re Bayview Hotel (Waterville) Limited [2022] IEHC 516 (Unreported,

High Court, Butler J., 8 September 2022). This is consistent by analogy with the

judgment of Hardiman J. in DPP v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130,

[2007] 1 I.L.R.M. 350 at para. 95 – the court as finder of fact is “not ... constrained”

to accept “the only account available” even if that account is provided by oral

evidence.

Reasons

50. Key elements of the law relating to reasons include:

(i) The standard is the obligation to provide the main reasons on the main issues:

Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 45 (Clarke C.J.)

(O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Balscadden Road

SAA Residents Association Ltd. v. An Bord Pleanála (No. 1) [2020] IEHC 586, [2020]

11 JIC 2501 (Unreported, High Court, 25 November 2020); Atlantic Diamond v. An

Bord Pleanála [2021] IEHC 322 (Unreported, High Court, 14 May 2021); Grassridge

v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High

Court, Holland J., 25 November 2024), para. 59; Pat O’Donnell v. Dublin City Council

[2024] IEHC 671 (Unreported, High Court, Holland J., 26 November 2024), para.

129; per 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); see also non-precedentially Morris v. An Bord

Pleanála [2025] IESCDET 25 (Dunne, Woulfe and Hogan JJ., 17 February 2025);

reasons are to be understood in context of the “Broad issues” – Finlay C.J. (Griffin,

Hederman and Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993] 1 I.R.

39, [1992] I.L.R.M. 237 at p. 76 or “Broad gist” – Faulkner v. Minister for Industry

and Commerce 1997 WJSC-SC 962, [1996] 12 JIC 1007 (Unreported, Supreme

Court, 10 December 1996) per O’Flaherty J. (Hamilton C.J. and Barrington J.

concurring).

(ii) Certain issues are objectively main reasons given the nature of the process

or decision at issue – for example if it is in dispute as to whether key statutory

criteria for the decision have been satisfied. By way of other example, where the

commission is disagreeing with a council (Sherwin v. An Bord Pleanála [2023] IEHC

26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023)) or with its own

inspector (Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303 (Unreported,

High Court, 7 May 2021)) on a point on which the grant or refusal of permission

turns, such an issue is virtually by definition a main issue, speaking objectively, such

that a decision not to give reasons on it would be held to be erroneous.

(iii) As to what are the main issues arising from submissions of interested parties,

the decision in Friends of the Irish Environment CLG & Anor. v. Minister for Housing,

Local Government and Heritage & Ors. [2025] IECA 128 (Unreported, Court of

Appeal, 5 June 2024) is clear that, per Hyland J. (Costello P. and Collins J.

concurring) at para. 148, it is for the decision-taker in the first instance to decide

whether submissions raise relevant issues. Failure to address an issue in a

submission can be challenged in the normal way.

(iv) There is no obligation to provide a discursive, narrative consideration or to

“engage with” submissions in such a sense, or to provide an issue-by-issue or

submission-by-submission response: see Oguekwe v. Minister for Justice, Equality

and Law Reform [2008] IESC 25, [2008] 3 I.R. 795, per Denham J. (Murray C.J.,

Fennelly, Kearns and Finnegan JJ. concurring) referring to the lack of a need for a

“micro specific format” (at p. 819); per Clarke J. (Fennelly and MacMenamin JJ.

concurring) in Rawson v. Minister for Defence [2012] IESC 26 (Unreported, Supreme

Court, 1 May 2012) at para. 6.9, referring to the need for a “reasoned but not

discursive ruling”.

(v) Reasons may be found anywhere, not necessarily in the decision itself, for

example in an inspectors report: Connelly v. An Bord Pleanála [2018] IESC 31,

[2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, para. 9.2 per Clarke C.J. (O’Donnell,

Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Sherwin v. An Bord Pleanála

[2024] IESC 13 (Unreported, Supreme Court, 11 April 2024) per Woulfe J.

(Charleton, O’Malley, Baker and Murray JJ. concurring) at para. 129; thus no

additional requirement for reasons is required when adopting a reasoned report (for

example of a chief executive or indeed an inspector): Killegland Estates v. Meath

County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July

2022) at para. 65; Pat O’Donnell v. Dublin City Council [2024] IEHC 671

(Unreported, High Court, Holland J., 26 November 2024) at para. 144, Shadowmill

v. An Bord Pleanála [2023] IEHC 157 (Unreported, High Court, Holland J., 31 March

2023), para 84.

(vi) Reasons may be implicit from the context, for example it can be implicit that

matters submitted were held not to be outweighing when placed against factors

supporting the conclusion arrived at: Rana v. Minister for Justice [2024] IESC 46

(Unreported, Supreme Court, O’Malley J., 18 October 2024), paras. 96-99 (Dunne,

Hogan, Collins and Donnelly JJ. concurring).

(vii) There is no obligation to state reasons for what is obvious: Killegland Estates

v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High

Court, 1 July 2022) (from which the Supreme Court dismissed an appeal, [2023]

IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023) (O’Donnell C.J.,

Charleton, O’Malley, Baker, Woulfe and Donnelly JJ. concurring)), para. 83;

Industrial Development Agency v. Information Commissioner [2024] IEHC 649

(Unreported, High Court, Phelan J., 15 November 2024), para. 132.

(viii) There is no obligation to give reasons for rejecting a legally incorrect point:

see Ironborn v. Dun Laoghaire Rathdown County Council [2023] IEHC 477

(Unreported, High Court, Mulcahy J., 31 July 2023). Reasons are tied into the

exercise of evaluation and judgement, so if the latter do not arise then neither does

the former – thus there is no need for reasons if there is in fact no evaluation

by the decision-taker - if the issue is correctly applying a mandatory, non-

discretionary, non-evaluative, legal rule, a valid decision does not become invalid

due to failure to explain the law or indeed to give reasons for the rejection of a

legally incorrect submission.

(ix) There is generally no obligation to give reasons for not changing one’s mind

from a previously articulated position absent a significant change in circumstances

or a significant new point: Killegland Estates v. Meath County Council [2022] IEHC

393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022), para. 67; Pat

O’Donnell v. Dublin City Council [2024] IEHC 671 (Unreported, High Court, 26

November 2024), para. 145 per Holland J.

(x) A decision should not be quashed for lack of reasons if nobody could be in any

real doubt as to what the reasons were: Killegland Estates v. Meath County Council

[2023] IESC 39, [2023] 12 JIC 2109 (Unreported, Supreme Court, 21 December

2023) per Hogan J. (O’Donnell C.J., Charleton, O’Malley, Baker, Woulfe and Donnelly

JJ. concurring).

(xi) If some reasons are good and others are bad, the decision may be severable if the

good reasons are stand-alone (Murtagh v. An Bord Pleanála [2023] IEHC 345

(Unreported, High Court, Owens J., 29 March 2023), Ironborn v. Dun Laoghaire

Rathdown County Council [2023] IEHC 477 (Unreported, High Court, Mulcahy J., 31

July 2023)), but not if there is a certain link between the reasons (Element Power

[2017] IEHC 550 (Unreported, High Court, Haughton J., 28 September 2017)).

(xii) Reasons should not be created ex post facto: K v. Minister for Justice [2022]

IEHC 582 (Unreported, High Court, Bolger J., 21 October 2022), Ballindooley

Developments Limited v. Minister for Housing Local Government and Heritage & Ors.

[2025] IEHC 109 (Unreported, High Court, Holland J., 20 February 2025), although

reasons that existed at the relevant time can be evidenced after the event if

appropriate: RPS Consulting Engineers Ltd v. Kildare County Council [2015] IEHC

113, [2017] 3 I.R. 61 at para. 109.

Inadequacy of assessments

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

rehearsed in previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College

van gedeputeerde staten van Limburg and College van gedeputeerde staten van

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

101.

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

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

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

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

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

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

Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot

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

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

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

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

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

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

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

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

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

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

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

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

Assessment where multiple consents involved/ project-splitting

52. Key elements of the law relevant to an assessment involving multiple consents include:

(i) Article 1(2)(c) of the EIA directive expressly envisages that multiple authorities may

be involved in a consent (and hence that the overall project can occur in multiple

stages. It defines ‘development consent’ as (emphasis added) “the decision of the

competent authority or authorities which entitles the developer to proceed with

the project”. Thus there is no EU obligation to centralise all EIA functions in

one decision-maker. Multiple authorities are clearly permissible, as indeed is

evident in the text of the 2011 directive itself. There is no obligation to transpose

EIA into the planning legislative regime but only into the overall legislative regime:

Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála (No. 1)

[2022] IEHC 700 (Unreported, High Court, 16 December 2022) para. 55; Concerned

Residents of Treascon and Clondoolusk v. An Bord Pleanála (No. 2) [2023] IEHC 112

(Unreported, High Court, 10 March 2023); Concerned Residents of Treascon and

Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court,

Murray J., 4 July 2024), para. 82.

(ii) The project as a whole must be considered for EIA purposes – even if this

goes beyond the project for which consent is sought. Thus for example if consent is

sought for a sub-threshold project which is part of a supra-threshold project

(whether already part-consented in successive phases, or involving separate consent

applications in process or yet to be made) then the project for which consent is

sought must be treated as supra-threshold if either:

i. an EIA was not carried out initially and thus an EIA that would otherwise be

required would be avoided by the splitting: judgment of 21 September 1999,

Commission of the European Communities v Ireland, C-392/96,

ECLI:EU:C:1999:431; judgment of 16 September 2004, Commission v

Spain, C-227/01, ECLI:EU:C:2004:528; judgment of 17 March 2011,

Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest, C-275/09,

ECLI:EU:C:2011:154; judgment of 21 March 2013, Salzburger Flughafen

GmbH v Umweltsenat, C-244/12, ECLI:EU:C:2013:203; judgment of 11

February 2015, Marktgemeinde Straßwalchen and Others v Bundesminister

für Wirtschaft, Familie und Jugend, C-531/13, ECLI:EU:C:2015:79;

judgment of 25 May 2023, WertInvest Hotelbetriebs GmbH, C-575/21,

ECLI:EU:C:2023:425; or

ii. an EIA was carried out initially but the part of the project being consented

has significant unassessed effects on the environment in conjunction with

another part that has already been subjected to EIA such that the combined

effects were not all assessed initially: judgment of 4 May 2006, Commission

v United Kingdom, C-508/03, ECLI:EU:C:2006:287.

(iii) Whether sub-projects are part of a larger project primarily relates to “their

geographical proximity, their similarities and their interactions” judgment of

25 July 2008, Ecologistas en Acción-CODA v Ayuntamiento de Madrid, C-142/07,

ECLI:EU:C:2008:445, para. 45.

(iv) Nonetheless, there are situations in which otherwise functionally unrelated projects

need to be considered collectively for threshold purposes (piecemeal peat harvesting

in Ireland; accumulated urban development in Austria, for example) if significant

effects on the environment by sub-threshold projects would otherwise go

unassessed. See the judgment of 21 September 1999, Commission of the

European Communities v Ireland, C-392/96, ECLI:EU:C:1999:431, paras. 76 and

82; judgment of 25 May 2023, WertInvest Hotelbetriebs GmbH v Magistrat der Stadt

Wien, C-575/21, ECLI:EU:C:2023:425; Byrne v. Fingal County Council [2025] IEHC

204 (Unreported, High Court, 11 April 2025).

(v) As regards the relationship with other projects falling outside the “project as a

whole”, the cumulative and in-combination effects must still be considered

as part of any EIA screening or EIA itself, even in relation to different types of

projects: judgment of 11 February 2015, Marktgemeinde Straßwalchen and Others

v Bundesminister für Wirtschaft, Familie und Jugend, C-531/13,

ECLI:EU:C:2015:79.

(vi) In-combination effects are likely to require consideration of applications not yet

consented: Toole v. Minister for Housing, Local Government & Heritage (No. 7)

[2023] IEHC 716 (Unreported, High Court, 21 December 2023), European

Commission, Environmental Impact Assessment of Projects: Guidance on the

preparation of the Environmental Impact Assessment Report (2017), in particular,

part B, section 1.4.3.

(vii) In principle there is nothing premature about submitting an application for

part of a project: 100 Meter Tall Group v. An Bord Pleanála [2025] IEHC 42

(Unreported, High Court, 31 January 2025), paras. 168-169. However the whole

project may require assessment in the context of submitting a partial application,

insofar as effects can be identified at that time.

Harmless error

53. The law in relation to harmless error and discretion can be summarised as follows:

(i) A decision should not be quashed for error (including in application of EU

law) if the error was harmless and did not materially affect the result: Walton v.

Scottish Ministers [2012] UKSC 44, [2013] P.T.S.R. 51; judgment of 7 November

2013, Gemeinde Altrip and Others v Land Rheinland-Pfalz, C-72/12,

ECLI:EU:C:2013:712; R (Champion) v. North Norfolk District Council [2015] UKSC

52, [2015] 1 W.L.R. 3710; Canterbury City Council v. Secretary of State for Housing

Communities and Local Government [2019] EWHC 1211 (Admin.), [2019] 5

W.L.U.K. 225; R. (Hudson) v. Windsor and Maidenhead Royal Borough Council

[2021] EWCA Civ 592, [2021] 1 W.L.R. 5588 (Coulson L.J. at §§77-78); Sliabh

Luachra Against Ballydesmond Windfarm Committee v. An Bord Pleanála [2019]

IEHC 888, [2019] 12 JIC 2017 (Unreported, High Court, McDonald J., 20 December

2019); opinion of Advocate General Bobek delivered on 14 January 2021, UH v An

tAire Talmhaíochta Bia agus Mara and Others, C-64/20, ECLI:EU:C:2021:14; Reid

v. An Bord Pleanála (No. 2) [2021] IEHC 362, [2021] 10 JIC 0606 (Unreported, High

Court, 6 October 2021) at §53; Heather Hill Management Company CLG v. An Bord

Pleanála [2022] IEHC 146, [2022] 3 JIC 1603 (Unreported, High Court, Holland J.,

16 March 2022) at §257 et seq. and §326(d) and (e); Concerned Residents of

Treascon and Clondoolusk v. An Bord Pleanála [2022] IEHC 700, [2022] 12 JIC 1609

(Unreported, High Court, 16 December 2022) at §80; Toole v. Minister for Housing

(No. 6) [2023] IEHC 592, [2023] 10 JIC 3102 (Unreported, High Court, 31 October

2023) at §39; Eco Advocacy v. An Bord Pleanála [2025] IEHC 15 (Unreported, High

Court, 15 January 2025); and non-precedentially, Carrownagowan Concern Group

v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27

January 2025); Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported,

High Court, 11 April 2025). The term “procedural defect” in Altrip has an

autonomous EU meaning which is not limited to narrow technical issues that do not

include errors in relation to the facts – the phrase covers any defects committed in

the impugned procedure: see for example the opinion of Advocate General Cruz

Villalón delivered on 20 June 2013 in Altrip, ECLI:EU:C:2013:422 at paras. 44 and

45. In Altrip the law in relation to environmental impact assessment was viewed as

procedural. In any event there is no logical or rational basis to limit the Altrip

doctrine to particular kinds of harmless error. The Supreme Court recently affirmed

the doctrine in a determination context in Massey v. An Bord Pleanála [2025]

IESCDET 126 (Woulfe, Murray and Donnelly JJ., 16 October 2025).

(ii) The determination of whether the error would have affected the result is one for the

court, which can act on evidence in the proceedings from an interested

party such as a developer – the CJEU says this expressly in Altrip para. 53. While

non-precedential, this point was seen as not raising doubt by the Supreme Court in

Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton,

Collins and Donnelly JJ., 27 January 2025), para. 21: “Altrip – which was concerned

with the EIA Directive - clearly indicates that not every ‘defect’ will necessarily have

consequences that can possibly affect the purport of a decision to approve a

development: §49. While the defect in Altrip was characterised as ‘procedural’, the

complaint appears to have been that the EIA carried out before development consent

was given was ‘inadequate’ (§16). Altrip also makes it clear that in this context a

court may rely on evidence provided by the developer. The fundamental point in

Altrip was that a reviewing court might properly conclude that an error was

‘harmless’ without having to send the decision back to the original decision-taker”.

Accepting such evidence and making a finding of harmlessness is not a substitution

of the court’s views for those of the decision-taker, a standing in the latter’s shoes,

a trespass onto forbidden territory, or any other alarmist cliché: Altrip; R. (on the

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

1 W.L.R. 3170; Canterbury City Council v. Secretary of State for Housing

Communities and Local Government [2019] EWHC 1211 (Admin.), [2019] 5

W.L.U.K. 225; Carrownagowan Concern Group v. An Bord Pleanála (No. 3) [2024]

IEHC 549 (Unreported, High Court, 23 September 2024) at §52. There could not be

a rational and sensible system if there was some kind of exclusionary rule that

prevented the court from receiving developer’s evidence. Such a rule would be

inconsistent with the Supreme Court’s finding in Ballyboden Tidy Towns Group v. An

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

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

developer can defend a permission even if the decision-taker does not. Indeed

generally speaking it would trivialise judicial review and be an exercise in self-

indulgence to quash decisions because of things that make no difference, in the

absence of a mandatory provision that compels such an approach.

(iii) Whether the test should be set at the level of the error being unlikely to make a

difference or one being satisfied that it would not make a difference may be semantic

in most cases other than the borderline. A working approach is to phrase it by saying

that the court should exclude a reasonable possibility that the error would

have made a difference to the actual outcome. Obviously an error would

definitionally make a difference to the wording of the reasoning but that can’t be a

barrier to the application of the doctrine because the doctrine would be meaningless

on that impossible condition. The CJEU puts the matter in terms of excluding doubt

(Altrip para. 53: “impairment of a right cannot be excluded unless, in the light of the

condition of causality, the court of law or body covered by that article is in a position

to take the view, without in any way making the burden of proof fall on the applicant,

but by relying, where appropriate, on the evidence provided by the developer or the

competent authorities and, more generally, on the case-file documents submitted to

that court or body, that the contested decision would not have been different without

the procedural defect invoked by that applicant”) which means reasonable doubt

because exclusion of all doubt is an impossibility. AA does not require the decision-

taker to disprove “any effect whatsoever” even those 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, C-127/02, ECLI:EU:C:2004:60, 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 of 7 September 2004,

Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging

tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en

Visserij, C-127/02, ECLI:EU:C:2004:482 (Grand Chamber) 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). Insofar as

some caselaw refers to whether it is “conceivable” that the decision could have been

different (West Cork Bar Association v. Courts Service [2016] IEHC 388, [2017] 2

I.L.R.M. 281, [2016] 7 JIC 0802 (Noonan J.); Baile Eamoinn Teoranta v. An Bord

Pleanála [2020] IEHC 642, [2020] 12 JIC 0405 (Unreported, High Court, Barr J., 4

December 2020)) those statements were fact-specific. It is not the law that that

any conceivable possibility of difference, no matter how tenuous, theoretical or

unreasonable, would be deadly to a permission. That can’t be the law in any

workable sense – virtually anything is “conceivable”, but not everything is

reasonable.

(iv) An applicant has the burden to establish the existence of error, but the successful

demonstration of error shifts the onus. Therefore the onus of proof that a

demonstrated error was harmless lies not on an applicant but on the party

asserting harmlessness (Altrip para. 53). Hence if a developer’s affidavit

asserting harmlessness is properly controverted, that issue should be resolved in

favour of the applicant in the absence of cross-examination, applying RAS Medical

v. Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 I.R. 63, [2019] 2

I.L.R.M. 273, [2019] 2 JIC 0501 (Clarke C.J.) (O’Donnell, MacMenamin, Dunne and

Finlay Geoghegan JJ. concurring).

(v) The determination of whether a particular error would have made a difference must

also be caried out by reference to the totality of the material before the decision-

taker, considered as a whole, as well as to such further material as the court may

receive in the proceedings: Carrownagowan Concern Group v. An Bord Pleanála (No.

3) [2024] IEHC 549 (Unreported, High Court, 23 September 2024), para. 31.

(vi) The question of whether public participation was materially compromised is

also relevant: Altrip.

(vii) Where by contrast the error would have had a material effect on the outcome, any

breach of EU law should normally be remedied by certiorari. Any after-the-

event assessment which would allow a permission to stand should only be permitted

in exceptional circumstances: the judgment of 12 November 2019, Commission v

Ireland (Derrybrien Wind Farm), C-261/18, ECLI:EU:C:2019:955 (Grand Chamber).

(viii) Where the error relates to purely domestic law, then even if it would have had

a material effect, the court has a wider discretion although is not fully at large:

Independent Newspapers v. I.A. [2020] IECA 19 (Unreported, Court of Appeal,

Murray J. (Birmingham P. and Whelan J. concurring), 22 January 2020).

Domestic law issues

Core ground 1 – landowner consent

54. Core ground 1 is:

“1. The impugned decision is invalid and contrary to s.37E(2) of the Planning and

Development Act and fair procedures, because the Board having received from the developer

an application form in its own required format, failed to use its discretion to refuse to deal

with the application when it knew or ought to have known that the information provided by

the developer in section 7 of the application form wrongly implied that letters of consent to

make the application from the Second Applicant John Nolan of Coolcullen, Co. Kilkenny and

his father James Nolan of Coolcullen, Co. Kilkenny (the administrator of the estate of the

late Sean Nolan deceased), had been supplied to the Board with the planning application

when no such consent had been given, and the Notice Party had no standing to make a

planning application for development on the lands of John Nolan and the late Sean Nolan

(deceased). Further particulars are set out in Part 2 below.”

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

“First proceedings: CORE GROUND 1

Applicants’ Position

1. The Board erred in granting planning permission to the Notice Party for development

of substantial infrastructure on the lands of John Nolan (the Second Applicant) and his

father/deceased uncle for the development of turbines T6 and T7 and ancillary works in

which the Notice Party Developer had no interest or title and had no standing to make such

an application.

2. The planning application was made by persons with no legal interest to do so and

was invalid ab initio and An Coimisiún knew or ought to have known this when it received

the application form without the accompanying letters of consent indicated thereon.

The Commission’s Position

3. Taking the Applicants’ case at its high point here, even if an absence of letters

consent goes to validity, that doesn’t oust judicial discretion. Insofar as the consent issue

relates to Turbines T6 and T7 any such issue is taken away by reference to the s.146B

Decision which removes any real live issue on this point and, in any event, certiorari would

be entirely disproportionate where, inter alia, permission alone cannot permit a trespass.

However, even assuming SID has a consent requirement and accepting the Application Form

sought those consents, there is nothing in law that says an absence of such consents in SID

necessarily goes to validity ab initio.

Notice Party Position

4. Landowner consent is neither expressly required by the 2000 Act or the PDR (as

seems to be accepted by the Applicant) or indirectly required through the application

process. Insofar as there is an implied requirement through the application of the principle

in Frescati Estates v Walker, the evidence provided by the Notice Party demonstrates that it

was acting in good faith and genuinely believed that it had the Applicants’ consent to make

the application. The application could not fairly be construed as a frivolous or vexatious

application. Furthermore, neither John Nolan nor James Nolan (who is not an Applicant in

the case and has not sworn an Affidavit) made a submission to the Commission to inform it

that lands had been included in the proposed development without their consent. Insofar

as the Applicants seem to suggest that the Commission should have been ‘on notice’ or

independently carried out its own enquiries, there is no authority to support this.

Furthermore, this point is, in any event, moot and/or academic in circumstances where the

two turbines have been moved from the Nolans’ land by way of the impugned section 146B

application and this issue no longer arises for resolution. Therefore, this ground can be

resolved on purely discretionary grounds without the need to definitely resolve whether SID

applications require landowner consent as a matter of land.”

56. The opposing parties were happy to proceed on the assumption that the application should

have had the consent of the second named applicant.

57. Such an assumption would presumably be based on the theory that this follows implicitly

from the right to private property, barring any express or implied exception. That would be

consistent with the concept in Frescati Estates v. Walker [1975] I.R. 177 which linked “vexatious

and unnecessary” applications to scenarios where there were intrusions into property rights not

warranted by the common good (p. 190). But the fact that an application is not vexatious does not

make it something in the interests of the common good such that an application by a person with

no relevant rights should be acceptable. Non-vexatiousness is not the test. That was a decorative

flourish consistent with Henchy J.’s uniquely wordy style (imitation of which not being something

one would encourage more mortal writers to attempt – the Frescati case being a good example of

why not, because a literal reading could incorrectly give the impression of two different and

inconsistent tests being applied). To repeat, that was a stylistic expression before getting the main

point – the test is whether the intrusion into property rights is warranted by the common good,

which implies that the applicant for permission has or will have a legal right to conduct the

development. That in turn implies either (a) consent of the owner or (b) a legal entitlement such

as a statutory right or prospective right which is intended to be exercised that is capable of lawfully

operating in the absence of the owner’s consent.

58. On such an assumption however, it does not follow that any breach of this principle must

automatically result in the invalidity of a permission, any more than breach of any other legal

principle must have that result. We can leave aside the doctrine of ius tertii which may be relevant

in other situations. One has to ask whether the breach has any real impact on the rights of a given

applicant.

59. Assuming that is the case here, what potentially saves the commission from certiorari is the

attempted amendment of the decision (assuming that to be valid arising from the second set of

proceedings). If an otherwise invalid decision is taken but is then corrected so as to become valid,

it would be taking the metaphysics of invalidity way too far to hold that the first decision must be

quashed anyway. That doesn’t mean that discretion is irrelevant, just that I don’t need to get into

that unless or until the s. 146B amendment falls.

60. So the final disposition of this point can await the outcome of the s. 146B issue in the No. II

case.

Core ground 2 – considerations and related matters

61. Core ground 2 is:

“2. The impugned decision is invalid because the Board erred in law and acted contrary

to fair procedures by excluding from its decision-making more relevant considerations on

wind turbine noise and shadow flicker than are contained in the Wind Energy Development

Guidelines of 2006, and in particular failed to engage properly or at all with several

submissions made by the parents and guardians of vulnerable persons in the local

community known to suffer from sensory disturbances triggered by visual and aural impacts,

including the son of the Third Applicant, contrary to the decision of the Supreme Court in

Balz -v- An Bord Pleanála [2019] IESC 90, and in granting the impugned planning permission

and conditioning therein outdated limit values for noise and shadow flicker, failed to have

any regard to best current scientific practice (including in relation to amplitude modulation)

and determined a harmful level of noise and shadow flicker to be legally acceptable (per

Smyth -v- RPA [2010] IEHC 290) and harmful noise nuisance that is nonetheless defensible

under section 108(2) of the Environmental Protection Act 1992. Further particulars are set

out in Part 2 below.”

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

“First proceedings: CORE GROUND 2

Applicants’ Position

5. Condition 9 of the An Coimisiún decision states that cumulative shadow flicker arising

from the proposed development shall not exceed 30 minutes in any day or 30 hours in any

year at any dwelling. The Third Applicant avers to her belief that her dependant son’s special

needs are such that if he was exposed to 30 minutes of shadow flicker in one day it would

trigger adverse reactions. The developer proposed in Chapter 12 of the Environmental

Impact Assessment Report to implement a shut-down system for turbines to ‘fully eliminate

shadow flicker at all dwellings, places of work and schools’ to comply with the requirements

for zero shadow flicker set out in the draft 2019 wind farm guidelines. In Condition 9, there

is no obligation on the developer to operate the wind farm in a manner that produces zero

shadow flicker and no guarantee that any successor company would do so. Despite being

requested to do so, the developer did not address individually the submission of the Third

Applicant about her family’s vulnerability to impacts from the wind farm.

6. The purpose of the 2019 draft revised windfarm guidelines is to adopt new noise

limits for wind turbines introduced in 2018 by the World Health Organisation. The Applicants

plead that if proper regard had been given to the submissions made by parents of special

needs children in the vicinity of the proposed development, including the Third Applicant,

noise limits meeting World Health Organisation requirements and addressing amplitude

modulation (‘AM’), would have been set by the An Coimisiún in Condition 8. The also

Applicants argue that no representative background noise level was applied to the dwelling

of the Third

The Commission’s Position

7. Core Ground 2 is pleaded in a scatter gun fashion, and the Commission discerns 9

sub-grounds to state its position on, 6 related to noise and 3 related to shadow flicker.

Notwithstanding the manner in which Core Ground 2 and other grounds have been

summarised by the Applicants in this Statement of Case, for completeness, and insofar as

the Applicants may purport to advance such points at the hearing of this case (despite not

properly addressing same in this document – which is not an appropriate procedure), the

Commission addresses all points raised below, none of which go to certiorari of the

Commission’s Decision or any other relief.

(1) That the Board failed to have regard to the submissions of parents (E.14) with special

needs or particularly sensitive children when it comes to noise and shadow flicker, failed to

have regard to the HSE submission (E.15-16) on shadow flicker and noise and that the Wind

Energy Development Guidelines 2006 (‘the 2006 WEDG’) is outdated, failed to have regard

to Carlow County Council submission (E.17) that referred to study of actual versus modelled

noise on a particular windfarm.

8. Nagleview [2024] IEHC 603 at §70 is on point. Regard was had to these

submissions. Insofar as this is a Balz point (or indeed an attempt to re-run Balz regarding

WEDG 2006), sufficient reasons were given. In particular, it is evident on the face of the

Inspector’s Report that regard has to these matters and submissions and, indeed, regard

was had to the content of the Draft Wind Energy Development Guidelines 2019 (the ‘Draft

WEDG 2019 Guidelines’).

(2) That the Board wrongly ‘applied’ the 2006 WEDG (E.14).

9. This is not a valid legal point. These are the s.28 guidelines to which regard was

had. Indeed, the noise limit imposed was not slavishly adopted from the 2006 WEDG but

adopted against the case-specific assessment of noise here. Nagle View [2024] IEHC 603

at §76-77 is directly on point here.

(3) That the Board allowed a higher volume of noise than the Draft WEDG 2019

Guidelines (E.20, 29).

10. There is no legal point here. There is no law that says the noise limits that must be

applied are those found in the Draft WEDG 2019 Guidelines. This is just a merits complaint.

(4) That the Board did not set a lower noise limit (E.28-29) including by reference to

WHO requirements (unspecified).

11. Again, there is no legal point here. There is no requirement to set a given noise

level as is being alleged. This is just a merits complaint.

(5) There are mistakes when it comes to the Third Applicant’s house (E.21, 23-24)

because the nearest location used was H007 which Section 11.4.7.5 says was measured by

reference to a river and said the river noise produced increased levels. She says she lives

near no flowing water and thus has no background noise and so says there is no background

noise analysis near her house at H27.

12. The noise study does not purport to record background noise at each house at certain

identified locations. It was described as being done by reference to standards including ISO

9613: Acoustics – Attenuation of sound outdoors, Part 2: General method of calculation

(ISO, 1996), none of which has been cavilled with by the Applicants. In particular, the issue

of the river affecting background noise is discussed in Chapter 11 of the EIAR and it is

explained that ‘The IOA GPG allows for the use of a background noise curve measured at

one location to be used for other locations in a similar setting. In this instance, each of the

survey locations H001, H003 and H009 adopts noise criteria based on the measured

background noise levels as discussed above. All remaining locations, including H007 where

the measured noise level was affected by water flowing in the river, adopt noise criteria

based on the worst-case envelope. Table 11.19 outlines the derived noise criteria curves

based on the information contained within Table 11.11’ The Applicants has not adduced any

evidence at all to suggest that the extraction of predicted noise levels at the Third Named

Applicant’s house is defective nor have the Applicants argued or explained any reason about

how such may lead to any relief given that the Commission has determined what the

appropriate level of tolerable noise is to be by conditioning just that.

(6) The Board failed to apply ‘best scientific knowledge in the field’ when it comes to AM

and has not developed a ‘consistent approach’ to this (E.14).

13. There is no developed case or evidence about the alleged lack of ‘consistent

approach’ which is said to transcend the present case. It is just mere assertion.

14. Leaving that aside, if one examines the literature cited by Mr. Bowdler, one can see

the same literature is, by and large, cited by the Developer in the EIAR in Chapter 11 at

Pages 11:15-11:16 whereby largely the same conclusions are set out namely that AM is not

predictable, proposed AM restriction levels are not advocated for and, indeed, that more

research is required. Indeed, the very literature Mr. Bowdler exhibits says even on those

limited sites where it has been reported, its frequency of occurrence appears to be at best

infrequent and intermittent’ (See Exhibit ‘1C’ being read by the author in single PDF of 514

pages and see Page 437 of 514 in PDF pagination) and that ‘There is nothing at the planning

stage that can presently be used to indicate a positive likelihood of OAM occurring at any

given proposed wind farm site, based either on the site’s general characteristics or on the

known characteristics of the wind turbines to be installed’ (See Exhibit ‘1C’ being read by

author in single PDF of 514 pages and see Page 377 of 514 in PDF pagination). Rather, the

knowledge that both Mr. Bowdler and the Developer refer to is mainly about developing

approaches in measuring AM and then dealing with AM complaints on an ad hoc basis by

imposing noise penalties if such complaints are found well-founded. This was all set out by

the Developer in Chapter 11 of the EIAR.

15. The Commission has set the noise limit it has set. One option when considering AM

is to apply a specific addition to such a condition to the effect that if AM exceeds a particular

amount, the noise the limit may be lowered a particular amount. In this case, however, the

Commission has determined to impose the noise limit it has. If AM involves an exceedance

of that, then it is exceeded which the permission does not allow. In other words, if the noise

limit is exceeded by noise simpliciter or via the ‘infrequent occurrence of AM, it doesn’t

matter for the purposes of enforcement. There is nothing unlawful here. The whole concept

of AM was addressed by the Developer, referenced by the Inspector at §6.11.13 and the

Commission did not [choose] to apply a condition with a penalty, but instead applied the

condition it did. This is perfectly within the discretion and power of the Commission.

(7) E.22 complaints says there is no expected daily flicker rate modelled for the Third

Applicant’s home at H27.

16. Chapter 12 of the EIAR clearly explains the reason behind modelling shadow flicker

on an expected yearly hours basis (see Section 12.3) and the Applicants have adduced

nothing to say why this methodology is incorrect or inappropriate. The expected yearly

hours were modelled.

(8) On shadow flicker, it is said the Board imposed a limit beyond zero when the

developer proposed zero (E.18) and gave no reasons for this (E.19, 27).

17. This has been comprehensively determined in Fahybeg [2025] IEHC 310. There is

nothing to this point. It is based only on a misreading of the Commission’s Decision.

(9) The EIA is flawed (E.26) because the Board had no information on the flicker

conditioned because the health information was limited to what was modelled for H27.

18. The impact for H27 is 8 hours of flicker per year as compared to the WEDG 2006

s.28 Guidelines which recommended a limit of 30 minutes in a day or 30 hours in a year.

Further, insofar as the Applicants maintain the Commission had no information on health

impact, the Commission clearly had regard to the fact that the Draft WEDG 2019 Guidelines

proposed an approach for zero shadow flicker at inter alia, dwellings and, indeed, the

proposals of the Developer. EIA does not determine outcomes, but ensures information is

before the decision maker and that information does not have to come from the Developer.

The Commission, notwithstanding the position taken by the Third Named Applicant, was

content to take the approach this Court described in Fahybeg [2025] IEHC 310 by requiring

the Developer to keep operative the proposed mitigation measures, and determine the outer

limits of any non-compliance.

19. Without prejudice to this, the Commission notes that insofar as the Developer has

committed to the Court to operate the proposed mitigation measures to a zero shadow flicker

standard, and having regard to Fahybeg [2025] IEHC 310, there is no basis for relief here.

Notice Party Position

20. The Commission’s Inspector fully assessed the impacts from noise, Amplitude

Modulation and shadow flicker and specifically addressed the concerns raised by third

parties. The Inspector assessed a worst case scenario against both the Wind Energy

Guidelines 2006 and the Draft Guidelines from 2019 and concluded no significant noise issue

arose.

21. The Developer committed to zero shadow flicker in its EIAR and that has been

conditioned in by Condition 6 with Condition 9 operating as a back-stop only and identifying

the maximum tolerance for non-compliance for cumulative impacts. The Developer intends

to comply with the zero shadow flicker commitment in the EIAR. Similar to what this Court

said (§43) in Fahybeg Windfarm Opposition Group v An Bord Pleanála [2025] IEHC 310, it

is not the case that mitigation does not apply within the specified parameters – rather the

parameters are a fall-back determining the outer limits of any non-compliance. In any

event, the Applicants’ concerns as to the effect of Condition 9 will not arise because of the

Developer’s commitment to zero shadow flicker. Therefore, this ground can be dismissed

on the facts and having regard to discretionary principles.

22. The Applicants’ case is also based on a misapprehension that Condition 8 will provide

an absolute defence in any future putative nuisance proceedings. This is speculative and

incorrect in law. The Applicants retain their rights at common law.”

63. The full set of sub-grounds is as follows:

“Core Ground E2

The impugned decision is invalid because the Board erred in law and acted contrary to fair

procedures by excluding from its decision-making more relevant considerations on wind

turbine noise and shadow flicker than are contained in the Wind Energy Development

Guidelines of 2006, and in particular failed to engage properly or at all with several

submissions made by the parents and guardians of vulnerable persons in the local

community known to suffer from sensory disturbances triggered by visual and aural impacts,

including the son of the Third Applicant, contrary to the decision of the Supreme Court in

Balz -v- An Bord Pleanála [2019] IESC 90, and in granting the impugned planning permission

and conditioning therein outdated limit values for noise and shadow flicker, determined a

harmful level of noise and shadow flicker to be legally acceptable (per Smyth -v- RPA [2010]

IEHC 290) and harmful noise nuisance that is nonetheless defensible under section 108(2)

of the Environmental Protection Act 1992.

12. This ground is related to Core Ground E6 which pleads a breach of the EIA Directive

because of the failure to assess the direct and indirect significant effects of the project on

population and human health and because the Board failed to ensure that the Environmental

Impact Assessment Report properly described the project and its likely effects including the

emission of noise, light, the creation of nuisances and the risks to human health

13. The Board erred in law and contrary to fair procedures by failing to properly assess

the impact of shadow flicker and noise on dwellings at sensitive locations occupied by

persons with special needs and with heightened sensitivity to such impacts, including the

son of the Third Applicant in these proceedings, and failed to ensure that further information

was provided from the developer in response to the submissions made by several parents

of adult and minor children with special needs and failed to consider these very sensitive

individuals when recommending conditions for shadow flicker and noise and failed to have

any regard to the submission of the Third Applicant in relation to the heightened risk of noise

and shadow flicker to the health and wellbeing of her son.

14. The Board erred in law and contrary to fair procedures by applying the outdated

2006 windfarm guidelines instead of the draft Wind Energy Guidelines 2019 windfarm

guidelines and in doing so failed to have any proper regard to the submissions made by

parents of dependants with special needs and hypersensitivity to noise and shadow flicker,

whose children, because of the impugned consent may be denied a legal remedy for any

nuisance or injury caused to them that is done in compliance with the outdated and

unsuitable 2006 guidelines. The Board has failed to apply the current best scientific

knowledge in the field in respect of windfarm noise including in relation to amplitude

modulation. The Board has not developed a consistent approach to noise and AM and

appears to arbitrarily apply different limits to each windfarm. This is contrary to national

and EU law.

15. The Board erred in law and contrary to fair procedures by failing to have proper

regard to the submission of the Health Service Executive and its statutory role in guarding

public health and failed to have regard to the opinion of the HSE that the planning permission

for this development should have a prohibition on shadow flicker. The Board also erred in

law in failing to have regard to the submission of the HSE that the 2006 Windfarm guidelines

are outdated. Again, the Board is failing in its duties and obligations when setting noise

limits (which noise limits as a matter of law fix the levels that a reasonable person can be

expected to endure) to have regard to the best scientific knowledge in the field and the

individual sensitivities of receptors in any particular application.

16. The Board erred in law and contrary to fair procedures by failing to consider the

concerns of the HSE about the modelling of noise impacts in the EIAR and erred in adopting

the response of the developer to the HSE submission without first inviting the HSE to

comment on that response.

17. The Board erred in law and acted contrary to fair procedures by failing to consider

the resolution of Carlow County Council which requested the Board to have regard to a study

by Offaly County Council comparing the modelled noise impacts from a windfarm with the

actual measured values.

18. The Board acted unreasonably and erred in law and contrary to fair procedures in

granting development consent subject to a condition pursuant to the 2006 windfarm

guidelines that allows a daily and yearly amount of shadow flicker at affected dwellings, even

though the developer at Chapter 4 of the EIAR had made a ‘zero-shadow flicker’ proposal in

the planning application pursuant to the draft 2019 guidelines, offering to commit to ‘the

implementation of technological measures such that no dwelling will actually experience any

shadow flicker. This commitment can be achieved by switching off the wind turbines, if the

sun is shining, at predetermined times when shadow flicker is predicted to occur. This

process can be completed by software installed within the turbines computer system’ and

gave no reasons for its decision not to require the developer to prevent the making of shadow

flicker.

19. The Board erred in law and contrary to fair procedures in failing to give any reasons

for not formulating the said conditions on the basis of the science in the draft 2019 guidelines

and no reasons can be found in the Inspector’s Report.

20. The Board erred in law and contrary to fair procedures in granting the planning

permission subject to a condition pursuant to the 2006 windfarm guidelines that allows

higher volumes of noise to be emitted by the turbines than what would have been allowed

by the draft 2019 guidelines.

21. The Board erred in in law and contrary to fair procedures in failing to ensure that

the developer provided accurate measurements of background noise at the houses of

children and dependants with special needs including at the dwelling of the Third Applicant.

22. The developer in the planning application submitted a cumulative shadow flicker

assessment (annex 12.3 to the EIAR). The developer modelled the impact of shadow flicker

at the home of the Third Applicant H027, and predicted on a worst case scenario that there

would be cumulative shadow flicker for 59:03 hours per year over 179 days per year and a

worse case maximum daily rate of 44 minutes, with an ‘expected value’ of 9:57 hours per

year at my home. No modelling was carried out to measure the corresponding ‘expected’

daily rate at this home. The Third Applicant avers that any shadow flicker at all could trigger

sensory disturbances in her son.

23. The developer’s application documentation considered background noise in Chapter

11 of the Environmental Impact Assessment Report. The closest location to the home of the

Third Applicant where background noise was measured was house H007 but according to

section 11.4.7.5 of the said Chapter 11, the measurement at house H0007 was taken

adjacent to a river where flowing water is audible. ‘While the sound level meter was placed

at a location where the water is screened from the microphone by the river bank, the sound

of the river has resulted in elevated measured levels at this location.’

24. The Third Applicant avers to living in a quiet rural location with no flowing water or

other elevated background noise sources nearby. It is clear from the material before the

Board that the developer did not carry out any background noise monitoring at a location

relevant to the house of the Third Applicant H27.

25. On or 26 July 2023, the Board sought further information from the developer in the

form of a notice seeking a response to matters raised in submissions including the

submission of the Third Applicant. The developer’s response was received by the Board on

or about 18 August 2023. Despite being asked to address the concerns in my submission

the developer did not do so in any detail, stating only ‘Each of the matters raised by Mr. &

Mrs. Nolan have been fully assessed in the relevant chapters of the EIAR and/or addressed

by the Applicant in response to the observation of the Rural Residents Wind Aware and

Environmental Group.’

26. Condition 9 of the Board’s decision states that cumulative shadow flicker arising from

the proposed development shall not exceed 30 minutes in any day or 30 hours in any year

at any dwelling, which is a condition derived from outdated provisions in the 2006 wind farm

guidelines. The only information that the Board had before it in relation to minutes per day

of cumulative shadow flicker at the home of the Third Applicant and her son was the

‘maximum’ value of 44 minutes per day predicted by the developer in the cumulative shadow

flicker assessment and despite seeking further information from the developer in response

to public submissions, the Board had no information before it that would have allowed it to

assess the health impacts at House H27 of the allowable conditioned amount of shadow

flicker of 30 minutes per day. The Third Applicant believes that if her son was exposed to

30 minutes of shadow flicker in one day it would trigger adverse reactions.

27. The Board erred in failing to give reasons for not mandating the zero-shadow flicker

approach of the draft 2019 wind farm guidelines, particularly when it knew or ought to have

known that the development had the potential to impact people with special needs including

the son of the Third Applicant. There is now no guarantee that the developer will operate

the wind farm in a manner that produces zero shadow flicker or no guarantee that any

successor company would do so.

28. Condition 8 of the Board’s decision regulates noise, setting a limit of 40 decibels

dB(A) between the hours of 7am and 11 pm at windspeeds below 7 metres per second and

45 decibels (or higher than 45 decibels if 5 decibels above background is higher) at

windspeeds of above 7 metres per second. The noise limit at all other times is to be 43

decibels.

29. The 2019 draft guidelines propose a stricter noise limit, referred to as a Relative

Rated Noise Limit (RRNL) in the range of 35 – 43 dB(A), while not exceeding the background

noise level by more than 5dB(A) with an upper limit of 43 dB(A). If proper regard had been

given to the submission of the Third Applicant and the submissions made by other parents

of special needs children in the vicinity of the proposed development, the strictest possible

noise limits, meeting World Health Organisation requirements, should have been set by the

Board.

30. The Board, in setting the noise limit for an area where there are several houses with

noise sensitive people, erred in failing to consider an upper limit of 35 decibels, which it

could have opted to do under the existing provisions of the 2006 guidelines, which states –

‘…in low noise environments where background noise is less than 30 dB(A), it is

recommended that the daytime level of the LA90, 10min of the wind energy development

noise be limited to an absolute level within the range of 35-40 dB(A).’ (emphasis added).”

64. Sub-dividing these as best I can, and limiting ourselves to what is pleaded, the complaints

can be considered under the following broad headings:

(i) alleged failure of consideration;

(ii) consideration of incorrect matters;

(iii) inadequate information;

(iv) setting an incorrect standard;

(v) lack of a consistent standard;

(vi) other errors;

(vii) incorrect/ unexplained conditions; and

(viii) lack of reasons.

65. By and large, this ground is an attempted re-run of failed similar points in Nagle View Turbine

Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November 2024), so

the statements there can be taken also to apply here.

66. If one takes a step back from this mixum-gatherum of complaints and asks what it looks

like as an overall package, such a scattershot approach to attacking the permission screams merits-

based disagreement dressed in legal language. That said, we will attempt to look individually at

each sub-item in this jurisprudential kitchen sink to see whether any such complaint has legal merit.

67. As regards alleged failure of consideration, in particular the complaint that “The

impugned decision is invalid because the Board erred in law and acted contrary to fair procedures

by excluding from its decision-making more relevant considerations on wind turbine noise and

shadow flicker than are contained in the Wind Energy Development Guidelines of 2006”, an allegation

that a decision-taker failed to have regard to something she was required to have regard to has to

be demonstrated evidentially.

68. Where a decision-taker states that she has had regard to something, then an applicant has

an onus to displace that. Any issues raised in submissions are stated to have been considered, and

the applicants have not displaced that evidentially. Lack of detailed narrative discussion does not

give rise to a presumption of lack of consideration.

69. Any complaint that a council’s submission was not considered fails for similar reasons.

70. The next complaint is that the commission “in particular failed to engage properly or at all

with several submissions made by the parents and guardians of vulnerable persons in the local

community known to suffer from sensory disturbances triggered by visual and aural impacts,

including the son of the Third Applicant, contrary to the decision of the Supreme Court in Balz -v-

An Bord Pleanála [2019] IESC 90”.

71. The applicants can’t credibly have a permission quashed for failure to consider the personal

rights and interests of third parties – that is far too much of a ius tertii to be a plausible basis for

certiorari. Insofar as concerns the third named applicant herself (and even assuming in her favour

that she can raise the rights of her son who is not a named applicant), her situation, as noted above,

is that she lives 886 m from the nearest turbine (submission of third named applicant, 17 February

2023), although the map attached to the submission shows she lives a great deal further from most

of the other turbines. Any assessment of her submission by the commission takes place in that

context but more fundamentally in the context that the commission had a great deal of technical

information from the developer, and was entitled to take that into account in deciding that

permission could be granted without there being unacceptable impacts. Reasons are given to the

appropriate standard – a complaint that the commission failed to “engage properly” is in substance

a merits complaint in legal language.

72. The next complaint is that the first named respondent “in granting the impugned planning

permission and conditioning therein [relied on] outdated limit values for noise and shadow flicker”.

73. The problem with that is that the commission is required to have regard to government

guidelines. The fact that they may be out of date is unfortunate but if so, they can be supplemented

by submissions of participants in the process. It would not have been lawful for the first named

respondent to have failed to have regard to the guidelines here.

74. Also relevant here is that the first named respondent expressly did have regard to the draft

2019 guidelines, so there would be no basis to suggest that they were completely stuck in a 2006

time-warp.

75. The next complaint is that the first named respondent “failed to have any regard to best

current scientific practice (including in relation to amplitude modulation)”.

76. Things that a decision-taker may be asked to have regard to might be categorised in the

following way:

(i) matters that must be considered – these are normally finite and well identified,

some of which arise only if they are raised – such as submissions;

(ii) matters that must not be considered; and

(iii) an infinite range of other matters which a decision-taker may consider if she wants

to but does not have to.

77. A general duty to keep up with “best current scientific practice” in the abstract in such a

situation isn’t a plausible candidate for category (i). Insofar as such matters came up in submissions,

they were considered or at least the applicants haven’t proved otherwise. Any other issues of

whether science was considered come into the residual category of matters that may or may not be

considered at the discretion of the decision-taker, so failure to consider anything under that heading

does not give rise to a ground for judicial review.

78. Insofar as there is a complaint about not considering the HSE views, that has to be borne

out evidentially, which is not the case. Insofar as the objection is that the HSE should have been

asked to comment on the developer’s further material, that is a ius tertii in the circumstances.

Anyway, in general terms and leaving aside the need to be able to comment on the application itself,

the EIA directive does not require an opportunity for process participants to comment on submissions

of other process participants: judgment of 1 August 2025, Asociación Autonómica Ambiental e

Cultural Petón do Lobo v Dirección Xeral de Planificación Enerxética e Recursos Naturais, Eurus

Desarrollos Renovables SLU, C-461/24, ECLI:EU:C:2025:620 at para. 55.

79. As regards consideration of incorrect matters, insofar as the complaint is that the first

named respondent wrongly “applied” the 2006 WEDG, the guidelines were not applied. They were

considered – the obligation is a have-regard to one only.

80. As regards inadequate information, insofar as the complaint is that there is no expected

daily flicker rate modelled for the third named applicant’s home at H27, there is no legal obligation

for any specific type of modelling. The developer has set out the rationale for their methodology in

ch. 12 of the EIAR and the applicant has not displaced the validity of that approach.

81. The next complaint is setting an incorrect standard, in other words that the first named

respondent “determined a harmful level of noise and shadow flicker to be legally acceptable (per

Smyth v. RPA [2010] IEHC 290) and harmful noise nuisance that is nonetheless defensible under

section 108(2) of the Environmental Protection Act 1992”.

82. That is unfortunately just a merits disagreement with the decision. Just because, for

example, noise at level X dB or of type Y is held unacceptable in one context it doesn’t make noise

at that level or of that type unacceptable in all contexts.

83. Insofar as the complaint is that the first named respondent allowed a higher volume of noise

than the draft WEDG 2019 guidelines, a draft does not provide a justiciable standard resulting in

invalidity if that standard is exceeded.

84. Insofar as that is reformulated by saying that the first named respondent did not set a lower

noise limit including by reference to WHO requirements, that is also just a merits complaint.

85. More generally, the permission and conditions such as condition 8 do not preclude civil action

if such be warranted. That said, the law of tort is not an independent field that should be at war

with central considerations of public policy – such public policy has always been part of the standard

of what gives rise to a cause of action and what doesn’t. As in Mulcahy v. Cork County Council

[2020] IEHC 547, [2022] 2 I.R. 783, whether liability should attach to an activity that otherwise

ticks all the tort boxes is ultimately subject to a test of public policy – the activity has to be the sort

of thing that society requires that tort law should prohibit. There needs to be an alertness to “the

possible hidden social cost of over-expansion of tort law” (para. 16). In the context of that case,

“danger plus allurement plus knowledge plus lack of legitimate purpose do not in themselves add up

to negligence in the absence of a final legal policy factor, which is that the danger is one that it is

reasonable for the law to require a defendant to obviate” (para. 19). The implications of such

concepts for the sort of nuisance that the law should recognise as deriving from wind turbines is for

another day of course.

86. As regards the allegation of a lack of a consistent standard, that is a misconception – the

commission like any administrative decision-taker is not subject to a doctrine of precedent for clear

reasons explained elsewhere in caselaw (including that it would fossilise necessary administrative

flexibility). Also no inconsistency has been made out factually.

87. As regards alleged other errors, the third named applicant complains that insofar as the

noise study related to her house, it incorrectly identified background noise by taking into account

river noise (location H007) but she does not live near flowing water. However this complaint

unnecessarily reads the noise study as being incorrect when a valid reading is available, to the effect

that it does not purport to measure background noise at the third named applicant’s house

specifically.

88. As regards allegedly inconsistent or unexplained conditions, Condition 1 is:

“1. The development shall be carried out and completed in accordance with the plans

and particulars lodged with the application, including the further information received by the

Board on the 18th of August 2023, except as may otherwise be required in order to comply

with the following conditions. Where such conditions require details to be agreed with the

planning authorities, the developer shall agree such details in writing with the planning

authorities prior to commencement of development and the development shall be carried

out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.”

89. Condition 6 is:

“6. The developer shall ensure that all construction methods and environmental

mitigation measures set out in the Environmental Impact Assessment Report, the Natura

Impact Statement and associated documentation are implemented in full, in conjunction

with the timelines set out therein, except as may otherwise be required in order to comply

with the following conditions. Prior to the commencement of development, the developer

shall submit to, and agree in writing with, each planning authority, a schedule of these

mitigation measures and monitoring commitments, and details of a time schedule for

implementation of the mitigation measures and associated monitoring.

Reason: In the interests of clarity and protection of the environment during the construction

and operational phases of the proposed development.”

90. Condition 9 is:

“9. The following shadow flicker requirements shall be complied with:

(a) Cumulative shadow flicker arising from the proposed development shall not exceed

30 minutes in any day or 30 hours in any year at any dwelling.

(b) The proposed turbines shall be fitted with appropriate equipment and software to

control shadow flicker at dwellings.

(c) Prior to commencement of construction, a windfarm shadow flicker monitoring

programme shall be prepared by a consultant with experience of similar monitoring work, in

accordance with details to be submitted to the planning authorities for written agreement.

Details of monitoring programme shall include the proposed monitoring equipment and

methodology to be used, and the reporting schedule.

Reason: In the interest of residential amenity.”

91. These conditions are not contradictory. Conditions 1 and 6 apply but 9 is a fall back in the

event of non-compliance.

92. The applicants take a fragment of a sentence from para. 41 of Fahybeg Windfarm Opposition

Group v. An Bord Pleanála [2025] IEHC 310 (Unreported, High Court, 30 May 2025), “condition 11

is to apply and condition 1 is subject to that”, and read that as meaning that condition 1 there

(similar to here) was essentially not operative and that condition 11 there (the fallback – condition

9 here) was the only operative one. That isn’t what I meant albeit that if one takes that fragment

out of context one could incorrectly postulate such a reading. What I meant there, and what applies

here, was:

(i) the uncontentious proposition that conditions should be read harmoniously rather

than in conflict, if such a reading is reasonably available;

(ii) the uncontentious proposition that all conditions therefore should be given effect if

possible; and

(iii) the fact that it logically follows that if one condition approves plans and particulars

or EIA/NIS information which envisages one standard, and another condition allows

a laxer standard, the stricter standard should be construed as being a condition with

the laxer standard as a fallback – as I said in Fahybeg at para. 41, “The basic logic

for that is that the turbines will be designed to avoid shadow flicker, but if there is

any it must be within the parameters of [the laxer] condition”.

93. Thus I meant “subject to” in the soft sense of “not in isolation from” as opposed to the hard

sense of “subordinate to”. I didn’t anticipate the sort of almost-propensity-to-misinterpret that I am

now being confronted with here – if I had done, I could have said that 1 is subject to 11 and vice

versa – the full context including the proposed order, the wording of the recital and the later

elaboration in the same paragraph makes clear that it was not a question of saying that condition 1

yields to 11 but rather that condition 1 can be read in the light of 11 so as to produce a result

whereby 1 is the standard and 11 is the fall-back.

94. There is nothing unusual about a standard/fall-back relationship – for example, planning

decisions must be challenged within eight weeks, but if they aren’t, an applicant needs an extension

of time. That is mutual qualification, not contradiction.

95. The argument that this wording was a mistake by the commission is simply misconceived.

The argument that it was a boilerplate cut-and-paste without due consideration is just rhetoric

without evidence, let alone proof. It follows that the argument that EIA was undermined is also

based on a false premise. The assessment was based on the primary and intended approach.

96. As regards lack of reasons, a process participant does not have an obligation to have their

submissions dealt with on a point-by-point basis. The entitlement is to the main reasons on the

main issues. The applicants got that here. The standard is not an amount of detail sufficient to

satisfy an applicant because that is an impossible standard.

97. It is incorrect to think that amplitude modulation is not something that the first named

respondent considered. It was considered. The applicants are not entitled to any specific condition

dealing with that – that is a merits complaint.

98. As the notice party submits:

“59. The issue of amplitude modulation (AM) was expressly considered in Chapter 11 of

the EIAR, with measures proposed in relation to same ‘in the unlikely event that a complaint

is received which indicates potential amplitude modulation (AM) associated with turbine

operation’. The Applicants’ complaints to the contrary are incorrect. It is also notable that

in Nagle View the Court stated at §123(v) that ‘the claim of lack of adequate assessment of

the noise issue or AM in particular for EIA purposes or any purposes has not been made out

evidentially’. The same problem arises here.”

99. As to reasons, the inspector said (§6.11.13):

“Noise mitigation measures are not deemed necessary for the operational phase of the

development. However, in the event of a complaint being made, an independent acoustic

consultant will be employed to assess the level of amplitude modulation associated with the

relevant turbine operation. Suitable measures as advised will be implemented as necessary.

Post-commissioning operational noise monitoring will be undertaken to demonstrate

compliance with the relevant noise criteria and an Outline Noise Monitoring Programme has

been prepared by the applicant, Annex 11.9 refers.”

100. At §6.11.16:

“Having regard to the information available and based on the analysis undertaken, I am

satisfied that the proposed development will not have a significant adverse impact on

residential properties arising from noise and vibration. I am further satisfied that the

information submitted in the EIAR is acceptable. I have further considered the submissions

made with regard to the proposed development and I am satisfied that the impacts identified

can be avoided, managed or mitigated by measures identified as part of the project and

through appropriate conditions. I am, therefore, satisfied that the proposed development

would not have any unacceptable direct or indirect impacts in terms of noise and vibration.

I am further satisfied that issues of cumulative effect are unlikely to arise.”

101. As the commission submits, as in Nagle View Turbine Aware Group v. An Bord Pleanála

[2024] IEHC 603 (Unreported, High Court, 1 November 2024) at §123(v), “the claim of lack of

adequate assessment of the noise issue or AM in particular for EIA purposes or any purposes has

not been made out evidentially”.

102. While much stress was laid on the lack of a penalty system in conditions, that is an

impermissible merits complaint.

103. The applicants disagree with the decision as they are entitled to do but they have not

satisfied the onus to show it to be invalid under this heading.

Core ground 4 – inadequate plans and particulars

104. Core ground 4 is:

“4. The impugned decision is invalid and contrary to fair procedures in that it

contravenes article 214 (1) because the Board accepted the planning application without

proper plans or particulars of the battery storage facility and substation and the development

works to be carried out to the haul route from Waterford Port and without describing these

components of the project on legible drawings to an appropriate scale. Further particulars

are set out in Part 2 below.”

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

“First proceedings: CORE GROUND 4

Applicants’ Position

25. The impugned decision is invalid and contrary to fair procedures in that it

contravenes article 214 (1) because the Board accepted the planning application without

proper plans or particulars of the battery storage facility and substation and the development

works to be carried out to the haul route from Waterford Port and without describing these

components of the project on legible drawings to an appropriate scale. The proposed works

to public roads along the turbine component haul route were described in the public notice

as an element of the project, yet were not described or detailed in proper plans and

particulars on legible drawings to an appropriate scale suitable to allow An Coimisiún to

assess the impacts of same on the environment and habitats. The battery storage facility

and substation is not properly described or detailed in drawings.

The Commission’s Position

26. Core Ground 4 alleges an absence of particulars on works required on the haul route

and in relation to the battery storage facility and substation. There is no substance to this

ground. Core Ground 4 proceeds on a false basis. The particulars are provided. The

substation and battery storage facility are clearly described at inter alia Chapter 3 (Section

3.5.3.1) of the EIAR and necessary foundations or plinthing described at inter alia Page 3:31

in Chapter 3. Annexes 3.2, 3.6 and 3.7 also refer. As to the works for haul routes these

are comprehensively addressed in detail in the EIAR from Section 3.5.1 onwards and

summarized in Tables 3.4 and 3.5 (see also Annex 3.5) and the Inspector said at §5.4.4

that: ‘..A full description of the necessary works at each location along the route between

the Port of Waterford and the project site is provided at Annex 3.5. In addition, a summary

of the location of the works required, are provided at Table 3.4 and Table 3.5 in the body of

the EIAR.’

Notice Party Position

27. The substation and battery storage facility forms no part of the proposed

development in respect of which permission is sought. Drawing No. WTH_PAS_LOC_002,

dated 30/09/2022, labelled ‘Figure 2: Overall Site Location’, clearly states ‘Indicative

Substation & Battery Storage Location (to be applied for in subsequent planning

Application)’. Details in relation to any additional environmental effects are then provided

in the EIAR and were assessed by the Commission’s Inspector.

28. Full details of the identified haul route were also provided. The haul route will involve

effectively no permanent changes to the roads and all environmental effects were fully

assessed including in the EIAR and in a 50 page Road Access Survey. The environmental

impacts from the haul route were fully assessed by the Inspector and Condition 13 of the

grant of permission requires the preparation of a final Transport Management Plan”

106. The alleged inadequacy of plans and particulars is only pleaded on a scanty basis. The

applicant has not pleaded any specific shortcoming or overcome the evidential onus to show a

material shortcoming in fact in that regard. The sum total of the particulars of the pleaded case

under this heading is to effectively repeat the core ground:

“32. The proposed works to public roads along the turbine component haul route were

described in the public notice as an element of the project, yet were not described or detailed

in proper plans and particulars on legible drawings to an appropriate scale suitable to allow

the Board to assess the impacts of same on the environment and habitats. The battery

storage facility and substation is not properly described or detailed in drawings.”

107. This doesn’t identify anything specifically inadequate and isn’t therefore a proper basis for

certiorari.

108. The notice party submits:

“81. This pleading is a bare assertion, and the alleged deficiencies are not identified by

description, location, characteristics or any other descriptor that would allow the Developer

to identify the alleged deficiencies in the Commission’s decision. Nor are the alleged

environmental or habitat implications identified or explained in any way. Although not

strictly relevant, the alleged deficiencies for the purposes of this Core Ground have also not

been identified on Affidavit.

82. This approach to pleading is clearly inconsistent with the requirements of precise

pleading required by Order 84 of the Rules of the Superior Courts. This Core Ground

discloses no valid pleaded complaint and should simply be dismissed ab initio.”

109. I accept that complaint. But if I am wrong about that, the basic problem for the applicants

is that the matters to which they refer in this ground are not part of the development consent

application. Therefore the appropriate standard of detail is not the “plans and particulars” standard

for a planning application but only enough information to require a cumulative and in-combination

assessment for the purposes of EIA.

110. Where an applicant considers that information in an EIA process is inadequate, she carries

an evidential onus in that regard. In this case that onus has not been discharged.

111. Assessment of the adequacy of information is in the first instance for the decision-taker, and

the commission was satisfied with particulars of the matters concerned as set out in the application

documentation, particularly the EIAR.

112. Again the applicants here have not discharged the onus in this regard.

EU law issues

Core ground 5 – EIA portal

113. Core ground 5 is:

“5. The impugned decision is invalid because it was made contrary to Articles 6(3), 6(5)

and 11 of the EIA Directive as transposed by Section 146 of the Planning and Development

Act, 2000, as amended and article 210 (4A) of the Planning and Development Regulations

2001, as amended because the Board failed to ensure that relevant information, including

submissions made by public bodies, planning authorities, members of the public and the

developer, were made available to the public within reasonable timeframes and through a

central portal. Further particulars are set out in Part 2 below.”

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

“First proceedings: CORE GROUND 5

Applicants’ Position

29. The impugned decision is invalid because it was made contrary to Articles 6(3), 6(5)

and 11 of the EIA Directive as transposed by Section 146 of the Planning and Development

Act, 2000, as amended, and article 210 (4A) of the Planning and Development Regulations

2001, as amended, because An Coimisiún failed to ensure that relevant information,

including submissions made by public bodies, planning authorities, members of the public

and the developer, were made available to the public within reasonable timeframes and

through a central portal. Despite notifying the public of its intention to do so, the developer

did not put the relevant files on its standalone website, a requirement of the Planning

Authority.

The Commission’s Position

30. Any complaints in Core Ground 5 properly arise against the Minister and such case

has not been pleaded.

31. Core Ground 5 is not properly pleaded. It discloses no route-map from the complaint

made to the relief claimed. Insofar [as] it appears to be vaguely suggested in the Applicants’

written submissions (§61), documents not being on the Notice Party’s website is not a basis

for quashing the Commission’s Decision, and the Applicants’ pleaded case falls far short of

setting out any route map to relief based on such a complaint. Whereas section 146 of the

2000 Act is pleaded in Core Ground 5 itself, no breach of the publication requirements in

same regarding the Commission’s website has been made out at all (and such publication

occurs after the decision and cannot be a basis for quashing the Commission’s Decision.

There is in any event no substance to this complaint in circumstances where, inter alia, the

First Named Applicant and Third Named Applicants (who participated in the process) made

submissions without issue and by reference to the planning application documentation –

including the EIAR – and where there is no evidence and no pleaded complaint that the

Applicants were prejudiced by any non-publication of ‘relevant information’ (to which the

Applicants refer) and no prejudice to the Applicants has been identified.

Notice Party Position

32. There is no evidence of any lack of information and no evidence that any of the

Applicants were in fact prejudiced by any alleged lack of such information. Pursuant to

section 146 of the 2000 Act the Inspector’s Report, the Order, the Direction, the EIAR and

Annexes, the Natura Impact Statement, the planning application form, the Newspaper and

Site Notices, the planning application drawings, and the letters notifying prescribed bodies

of the making of the application, were (and remain) available on the Commission’s website.

In relation to the EIA Portal and the alleged deficiency therewith, this issue cannot arise for

determination in these proceedings as it is the State which bears the obligation under Article

6(5) of the EIA Directive.

33. Insofar as the Applicants criticise the lack of information available via the EIA portal

that is the responsibility of the State pursuant to section 172A of the 2000 Act and no relief

has been sought against the State in relation to this Core Ground and there, in fact, no

entitlement for the public concerned to make additional submissions on materials submitted

by other public authorities (in this case the HSE).”

115. The pleaded case is as follows:

“Core Ground E5

The impugned decision is invalid because it was made contrary to Articles 6(3), 6(5) and 11

of the EIA Directive as transposed by Section 146 of the Planning and Development Act,

2000, as amended, and article 210 (4A) of the Planning and Development Regulations 2001,

as amended, because the Board failed to ensure that relevant information, including

submissions made by public bodies, planning authorities, members of the public and the

developer, were made available to the public within reasonable timeframes and through a

central portal.

33. The Board erred and acted contrary to EU law and the Aarhus Convention in failing

to ensure that the public had access to the relevant information in an electronically accessible

format through at least a central portal or easily accessible points of access, at the

appropriate administrative level.

34. The EIA Portal for the development links to the developer’s public notice which in

turn links to the developer’s website which does not contain the relevant information. The

Board’s website, which was not identified as a source of application documentation on the

EIA portal, or the public notices does not include all of the relevant information and in

particular is missing the submissions from the public, the submissions from consultees, the

developer’s response to submissions, landowner consents and further information provided

by the developer. The EIAR and NIS and certain application documents are on the Board’s

website but this location was not identified on the site notices.”

116. The notice party objects to the pleaded ground as follows:

“94. The Developer repeats the pleading objection above. The Applicants’ pleadings are

a bare assertion, and the alleged deficiencies are not identified with precision or at all.

95. This is best demonstrated by the fact that after two Statements of Grounds, three

Affidavits and a lengthy set of legal submissions the Developer still does not know what

‘relevant information’ was allegedly not made available to the public, when this alleged

default occurred or what prejudice to one or more of the Applicants actually accrued. This

Core Ground discloses no valid pleaded complaint and should simply be dismissed ab initio.”

117. I accept that objection. The pleaded grounds fails to specify the particulars of the complaint

as the rules require. But if I am wrong about that, the problem with the merits of this complaint is

that it confuses the commission’s functions under s. 146 of the 2000 Act (which are only referred to

as context that the relevant EU law is transposed in that section) with the Minister’s function to

maintain the central portal. No breach of s. 146 is actually specified let alone a specific provision of

it. Specifics would have been required to enable the commission to deal with any factual allegation.

The central portal complaint is misconceived because it is not the commission’s role to maintain the

central portal – that’s the Minister. But the Minister has not been made a respondent so this point

is going nowhere.

118. This is just another iteration of the fallacy exposed in 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.) which is the misconception that all problems in the planning

system are somehow the responsibility of the commission.

Core ground 6 – EIA dimension of core ground 2 issues

119. Core ground 6 is:

“6. The impugned decision is invalid because it was made contrary to Article 2(1) and

Article 3(1)(a) of the EIA Directive as transposed by section 37G(2) and because the Board

failed to ensure that before development consent was given the project was made subject

to an Environmental Impact Assessment that identified, described and assessed in an

appropriate manner the direct and indirect significant effects of the project on population

and human health (and in particular noise) including the impact of the development on

several adults and children known to suffer from sensory disturbances triggered by visual

and aural impacts including the dependant son of the Third Applicant and the decision was

made contrary to Article 5(1) and Annex IV as transposed by section 37E(1) of the Planning

and Development Act as amended, inter alia because the Board failed to ensure that the

Environmental Impact Assessment Report properly described the project and its likely effects

including the emission of noise, light, the creation of nuisances and the risks to human

health. Further particulars are set out in the grounds below.”

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

“34. First proceedings: CORE GROUND 6

Applicants’ Position

35. The impugned decision is invalid because it was made contrary to Article 2(1) and

Article 3(1)(a) of the EIA Directive as transposed by section 37G(2) and because An

Coimisiún failed to ensure that before development consent was given the project was made

subject to an Environmental Impact Assessment that identified, described and assessed in

an appropriate manner the direct and indirect significant effects of the project on population

and human health, including the impact of the development on several adults and children

known to suffer from sensory disturbances triggered by visual and aural impacts including

the dependant son of the Third Applicant and the decision was made contrary to Article 5(1)

and Annex IV as transposed by section 37E(1) of the Planning and Development Act as

amended, because the Board failed to ensure that the Environmental Impact Assessment

Report properly described the project and its likely effects including the emission of noise,

light, the creation of nuisances and the risks to human health.

The Commission’s Position

36. Core Ground 6 relies on Core Ground 2 and the Commission’s position is set out

above. The Commission’s Decision is not invalid as alleged at Core Ground 6. The EIA that

the Commission completed in respect of the proposed development, including consideration

of population and human health, was carried out in accordance with the requirements

applicable to that assessment.

Notice Party Position

37. This Core Ground is an attack on the merits of the Commission’s decision which is

reviewable only on irrationality grounds. In any event the potential impact on human health

from the proposed development was fully assessed in the EIAR and by the Commission’s

Inspector who was satisfied that the proposed development would have no significant effects

(including cumulative effects). That was a decision open to the Commission on the facts

before it.”

121. This is essentially derivative on core ground 2. The entire pleaded case under core ground

6 is:

“35. See the particulars for Core Ground E2.”

122. No basis has been identified as to why viewing this as an EIA complaint makes any difference

to anything so this point must stand or fall with core ground 2. More specifically, it falls with that

ground.

Core ground 7 – project-splitting

123. Core ground 7 is:

“7. The impugned decision is invalid because it was made contrary to Article 2(1) and

Article 3(1)(a) of the EIA Directive as transposed by section 37G(2) and because the Board

failed to ensure that before development consent was given, the proposed battery storage

facility and substation as part of the whole development were made subject to an

Environmental Impact Assessment properly or at all. Further particulars are set out in Part

2 below.”

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

“First proceedings: CORE GROUND 7

Applicants’ Position

38. The impugned decision is invalid because it was made contrary to Article 2(1) and

Article 3(1)(a) of the EIA Directive as transposed by section 37G(2) and because An

Coimisiún failed to ensure that before development consent was given, the proposed battery

storage facility and substation as part of the whole development were made subject to an

Environmental Impact Assessment properly or at all.

The Commission’s Position

39. This is decided by O’Grianna and bears close similarity to a project splitting argument

unsuccessfully advanced by the applicant in Massey (No.2) [2025] IEHC 206 at §99 et seq

and same should likewise be rejected in this case. As stated in Massey (No.2) [2025] IEHC

206 at §110 ‘The basic principle is that the project to be assessed is that for which consent

is sought, but if the project is part of a larger project (or series of projects to be considered

together) then thresholds have to be considered in the light of the total project. Also in-

combination effects need to be factored in either way insofar as screening or EIA arises.’

The cumulative effect of the project as a whole was subjected to EIA to the extent required.

This ground is based on false premise. No project splitting has occurred. The electricity

substation, and accompanying underground cable grid connection, and energy storage

system (ESS) (what the Applicants refer to as the ‘battery storage facility’) do not form part

of the subject proposed development in relation to which permission was sought but the

same were all assessed within the EIAR (see e.g. Volume I, Chapter 3 and Volume 2, Annex

3.4, 3.6, and 3.7 of the EIAR) and formed part of the EIA of the project that was carried out

by the Commission (see e.g. §6.3.6, §6.8.4, §6.8.6, §6.8.9, §6.9.2, §6.9.10-§6.9.12,

§6.11.5, §6.11.8, §6.15.3 of the Inspector’s Report). There is not even an argument here

that cumulative assessment did not take place or was impossible, save the Applicants mere

assertion about particulars and in that respect, the particulars of the matters put up for

assessment, but not consent, are entirely adequate for that purpose.

Notice Party Position

40. The electricity substation and the battery storage facility do not form part of the

subject proposed development in relation to which permission was sought but same were all

assessed within the EIAR.

41. There is therefore no lacuna for the purposes of the EIA Directive where (as here)

all constituent elements of a proposed development are assessed for the purposes of

cumulative impact.”

125. But a project can happen in stages, provided that an individual stage does not evade EIA by

project-splitting. Thresholds must be interpreted having regard to the total project (which may in

certain circumstances include other not necessarily functionally related projects as explained in

Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025)).

However the other stages of the project need to be factored in as part of the cumulative and in-

combination effects. Unfortunately for the applicants, that happened here.

126. No infirmity in the assessment amounting to project-splitting or other pleaded error has

been demonstrated evidentially.

Core ground 8 – reasonable alternatives

127. Core ground 8 is:

“8. The impugned decision is invalid because it was made contrary to Article 5(1)(d) of

the EPA Directive as transposed by section 37E(1) of the Planning and Development Act as

amended, because the Board failed to ensure that the EIAR included a description of the

reasonable alternatives studied by the developer, which are relevant to the project and its

specific characteristics, and an indication of the main reasons for the option chosen, taking

into account the effects of the project on the environment, and erred in failing to ensure that

the developer supplied information in relation to the environmental impact of both the

chosen option and of all the main alternatives studied by the developer, together with the

reasons for the developer’s choice, taking into account at least the environmental effects,

even if such an alternative was rejected at an early stage. Case C‑461/17 Holohan. Further

particulars are set out in Part 2 below.”

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

“First proceedings: CORE GROUND 8

Applicants’ Position

42. An Coimisiún erred in failing to ensure that the Notice Party provided information in

relation to the environmental impact of the alternative turbine locations and the alternative

replanting lands in Co Monaghan, together with the reasons for the preferred choice, taking

into account the environmental effects. The proposed replanting lands Drumleek South

(RP1) and Drumagelvin (RP2) in County Monaghan are identified in Annex 2.5 of the EIAR.

While some environmental information has been provided for the Drumagelvin replanting

option, none has been provided for the Drumleek South option. Alternative windfarm

locations studied by the developer are identified in Annex 2.1 of the EIAR, but no information

has been provided on the environmental impacts of these alternatives, contrary to the

decision in Holohan. Alternative turbine layouts are presented in Annex 2.2 of the EIAR but

no information was before the Board in relation to the comparative environmental impacts

of the turbine layouts not chosen by the developer.

The Commission’s Position

43. Case C-461/17, Holohan v An Bord Pleanála at §66 determines this ground; ‘Further,

since, according to Article 5(3)(d) of the EIA Directive, only an outline of those alternatives

must be supplied, it must be held that that provision does not require the main alternatives

studied to be subject to an impact assessment equivalent to that of the approved project.

That said, that provision requires the developer to indicate the reasons for his choice, taking

into account at least the environmental effects.’ The Applicants say, however, it was not

done in respect of alternative wind-farm locations, alternative turbine layouts and an

alternative replanting area but in fact it was. This is clear in Chapter 2, Annex 2.1, 2.2 and

2.5 of the EIAR. The issue of alternatives was in fact subject to careful assessment through

an iterative process and the Applicants’ mere assertion of a failure to consider alternatives

is not borne out on a correct interpretation of the actual evidence and information that was

before the Commission relevant to the issue.

Notice Party Position

44. The Notice Party assessed alternative site locations, turbine layouts, grid

connections, haul routes and replant lands. In each case the alternatives were assessed

against 10 environmental factors and the alternative with the lowest environmental impacts

was selected and in each case extensive reasons for the selection was given. There is no

substance in the Applicant’s complaints when assessed against the content of the EIAR.”

129. In the judgment of 7 November 2018, Holohan v An Bord Pleanála, C-461/17,

ECLI:EU:C:2018:883, the CJEU stated (emphasis added):

“The fifth, sixth and seventh questions

60 By its fifth, sixth and seventh questions, which can be examined together, the referring

court seeks, in essence, to ascertain whether Article 5(3)(d) of the EIA Directive must be

interpreted as meaning that the developer must supply information in relation to the

environmental effects both of the chosen option and of all the main alternatives studied by

the developer, together with the reasons for his choice, taking into account their

environmental effects, even if such an alternative was rejected at an early stage.

61 In accordance with Article 3 of the EIA Directive, one of its objectives is to ensure

that the effects of projects on the environment are identified, described and assessed.

62 In that regard, Article 5 of the EIA Directive lists the information, specified in Annex

IV, that the developer is to supply in an appropriate form to the competent authorities, in

order to enable the latter to carry out an environmental impact assessment with respect to

the proposed project.

63 In particular, Article 5(3)(d) of the EIA Directive states that the developer must

provide at least ‘an outline of the main alternatives studied by the developer and an

indication of the main reasons for his choice, taking into account the environmental effects’.

64 It is stated explicitly in the wording of that provision that the developer is obliged to

supply to the competent authorities an outline of the main alternatives studied by him and

an indication of the main reasons for his choice, taking into account the environmental

effects.

65 In that regard, first, it must be observed that the EIA Directive contains no definition

of the concept of ‘main alternatives’, as referred to in Article 5(3)(d) of the EIA Directive.

The Court must, however, hold, as did the Advocate General in points 94 and 95 of her

Opinion, that the decisive factor, in order to identify those alternatives that should be

regarded as ‘main’ alternatives, is whether or not those alternatives influence the

environmental effects of the project. In that regard, the time when an alternative is rejected

by the developer is of no relevance.

66 Further, since, according to Article 5(3)(d) of the EIA Directive, only an outline of

those alternatives must be supplied, it must be held that that provision does not require

the main alternatives studied to be subject to an impact assessment equivalent to

that of the approved project. That said, that provision requires the developer to

indicate the reasons for his choice, taking into account at least the environmental

effects. One of the aims of imposing on the developer the obligation to outline the main

alternatives is that reasons for his choice should be stated.

67 That obligation on the developer ensures that, thereafter, the competent authority is

able to carry out a comprehensive environmental impact assessment that catalogues,

describes and assesses, in an appropriate manner, the effects of the approved project on

the environment, in accordance with Article 3 of the EIA Directive.

68 Last, it must be observed that the outline referred to in that provision must be supplied

with respect to all the main alternatives that were studied by the developer, whether those

were initially envisaged by him or by the competent authority or whether they were

recommended by some stakeholders.

69 In the light of the foregoing, the answer to the fifth, sixth and seventh questions is

that Article 5(3)(d) of the EIA Directive must be interpreted as meaning that the developer

must supply information in relation to the environmental impact of both the chosen option

and of all the main alternatives studied by the developer, together with the reasons for his

choice, taking into account at least the environmental effects, even if such an alternative

was rejected at an early stage.”

130. So the context is that comparable information to the chosen option is not required. An

assessment of the environmental effects is required, but any contention that this was inadequate

has to be made out evidentially. The applicants haven’t achieved that.

Scope of Module II having regard to the foregoing

131. The State sought to argue that core ground 8A should be struck out in the light of the

outcome proposed for core ground 1, but as signalled above I think this contention is more

appropriately addressed as part of an overall discussion of the s. 146A issue as part of Module II.

Summary

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

(i) it is settled law that decisions should not be quashed because of an error that makes

no difference;

(ii) applying such law to the facts here, the decision should not be quashed if the

amendment decision is upheld, and the question of discretion does not arise until a

final decision on that issue;

(iii) it is settled law that the merits are a matter for the decision-maker and lawfulness

is a matter for the court;

(iv) applying such law to the facts here, the applicants’ collection of administrative law

complaints against the decision amounts in substance to an impermissible merits-

based attack;

(v) it is settled law that if a planning decision-taker is satisfied as to the adequacy of

information for EIA purposes including by way of in-combination assessment, the

onus is on an applicant to displace that;

(vi) applying such law to the facts here, the applicants have not overcome that onus;

(vii) it is settled law that the Minister rather than the commission is responsible for the

EIA central portal and that any relief in relation to that portal must involve joining

the Minister;

(viii) applying such law to the facts here, the claim against the commission in respect of

the central portal must fail, and any claim against the Minister must fail where the

Minister has not been joined as a respondent;

(ix) it is settled law that insofar as all stages of a project subject to EIA need to be

considered for the purposes of cumulative and in-combination effects, the onus to

displace the decision-taker’s assessment lies on an applicant;

(x) applying such law to the facts here, the applicants have failed to overcome that

onus;

(xi) it is settled law that if a planning decision-taker is satisfied as to the adequacy of

information as to the environmental effects of reasonable alternatives for EIA

purposes, the onus is on an applicant to displace that; and

(xii) applying such law to the facts here, the applicants have not overcome that onus.

Outstanding issues

133. For clarity, the position regarding the extent of disposition of the issues as of now is as

follows:

(i) core ground 1 – dismissed subject to the question of whether the s. 146B decision

survives the No. II proceedings, this issue to be dealt with in tandem with Module II

of those proceedings;

(ii) core ground 2 – dismissed in this judgment;

(iii) core ground 3 – withdrawn by the applicants (confirmed in oral submissions on 30

September 2025);

(iv) core ground 4 – dismissed in this judgment;

(v) core ground 5 – dismissed in this judgment;

(vi) core ground 6 – dismissed in this judgment;

(vii) core ground 7 – dismissed in this judgment;

(viii) core ground 8 – dismissed in this judgment; and

(ix) core ground 8A – validity of 2001 regulations – modularised to Module II.

Costs

134. In the draft judgment I had suggested the following provisional order as to costs:

(i) subject to contrary written legal submission within 7 days, there be no order as to

the applicants’ costs in Module I; and

(ii) subject to contrary written legal submission within 7 days, the opposing parties’

costs be reserved, on the basis that such costs, if awarded, would apply by way of

set-off only (not leaving a positive balance against the applicant at a level that would

be prohibitively expensive).

135. The applicants expressed some misgivings about this and in the light of that and views

expressed by the notice party this can be simplified as follows:

(i) In particular, if it assists the applicants, I can clarify that I am not proposing that

any costs protection they already have should be diluted. The parties have already

agreed that the proceedings are covered by s. 50B of the 2000 Act so any

hypothetical adverse order would only be made where sub-s. (3) of that section

applies. The original proposed order would have stated, by way of safeguard, that

any adverse order would not be prohibitively expensive. I am gathering that the

applicants can live without such a wording, so I am happy to take it out. The

applicants aren’t thereby being foisted with any additional uncertainty that they

didn’t have anyway.

(ii) Assuming that the applicants object to the concept of contrary submissions being

required within 7 days, I don’t mind taking that out either. Any debate about costs

liability will be theoretical until we get through Module II anyway.

(iii) Insofar as the applicants object to the reference to set-off, it is unnecessary in this

context, so that reference can be deleted from the order in the present judgment.

136. If there are any other concerns they can await the full debate on costs in due course. In a

context like this, one might be forgiven for pointing out that it was open to the applicants to argue

against modularisation on the grounds that they might feel deterred from proceeding with Module

II if any particular costs approach was taken if they lost Module I. The fact that they didn’t do so

makes me think that they will not in fact be so deterred, but even assuming I am wrong about that

it’s up to them to object to modularisation if they (incorrectly, as explained in Doyle v. An Bord

Pleanála (No. 2) [2025] IEHC 205 (Unreported, High Court, 11 April 2025), but leave that aside)

think it is in some way harmful to them. Failure to do so doesn’t create some legal requirement for

me to propose an order different to that which would otherwise seem appropriate.

137. More generally, and not specifically referable to the applicants in this case, agitating issues

in the interval between module 1 and module 2 that properly arose at an earlier point, including

from the outset of the proceedings or at the time of making of the order for modularisation is a sub-

optimal procedure (at its most contentious it runs the risk of being characterised as conduct of a

party that “attempt[s] to use module 2 to confound the court’s findings in order to mend its hand to

improve its chances on appeal” (as phrased in a submission quoted by Egan J. in Webster v.

Meenacloghspar (Wind) Ltd [2025] IEHC 587 (Unreported, High Court, 31 October 2025)).

Modularisation, where it arises, is meant to make proceedings more efficient and manageable, not

to re-start Groundhog Day, downgrade everything that previously happened into a provisional

opening gambit, or open up new vistas for procedural obfuscation. As I say however I don’t attribute

any such attitudes to these applicants – on the contrary, I welcome their having raised their issues

because that has clarified my own thinking on the relevant procedures. In a dynamic area like Irish

planning law, there is always a gigantic undercurrent of dialogue going on, whether it is formally

acknowledged or not.

Order

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

(i) the proceedings be dismissed insofar as concerns Module I (grounds other than the

balance of core grounds 1 and 8A);

(ii) subject to contrary written legal submission in due course, there be no order as to

the applicants’ costs in Module I having regard inter alia to O. 103 r. 39(1)(c) RSC;

(iii) subject to contrary written legal submission in due course, the opposing parties’

costs be reserved having regard inter alia to O. 103 r. 39(2)(b) RSC;

(iv) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in the judgment may be addressed pursuant to O. 103 r.

40(4) RSC; and

(v) in accordance with O. 103 r. 32(11) RSC, the perfection of the order be postponed

pending the outcome of the final Module.