High Court dismisses planning applicants' challenge to wind farm amendment, ruling complaints properly directed at legislation rather than the Commission.

[2025] IEHC 601

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0001380]

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 AND MINISTER FOR

HOUSING, LOCAL GOVERNMENT AND HERITAGE

RESPONDENTS

AND

WHITE HILL WIND LIMITED

NOTICE PARTY

(II)

Date of impugned decision: 10 September 2024

Date proceedings commenced: 4 November 2024

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. In this case, the first named respondent decided to grant permission for a wind farm, but

the developer then sought a change in the location of two turbines in order to avoid any overlap

between the original redlined area and the lands of the second named applicant. The applicants

(including the second named applicant whose property rights are being vindicated by the

amendment) now complain that this relatively modest amendment is invalid on a range of grounds.

Facts

2. The present judgment should be read in tandem with the Rural Residents I judgment (Rural

Residents v. An Coimisiún Pleanála (I) [2025] IEHC 600) which sets out relevant background facts

and material.

3. On 7 June 2024, the notice party made a request to the first named respondent, pursuant

to s. 146B of the 2000 Act, to alter the terms of the grant of permission for the proposed wind farm

development granted permission by the first named respondent on 21 November 2023 (ABP-

315365-22). The proposed alterations to permitted strategic infrastructure development (SID) in

essence related to the relocation of two of the permitted turbines (T6 and T7) from their permitted

locations to new locations by reason of the withdrawal of involvement by two landowners from the

permitted wind farm project (in circumstances where turbines T6 and T7 were permitted within those

landholdings). More particularly, the proposed alterations consisted of the following:

(i) relocation of turbine T6 – c. 170 m to the southwest of its permitted position;

(ii) relocation of turbine T7 – c. 220 m to the south of its permitted position;

(iii) alteration of the location on ancillary wind turbine infrastructure including

foundations and crane hardstanding;

(iv) alteration of the alignment of access tracks and underground electricity and

communications cabling associated with turbines T6 and T7; and

(v) undertaking all associated ancillary site development works related to the above

alterations including excavations and groundworks, drainage infrastructure, felling

of existing commercial forestry plantation, watercourse crossing, landscaping and

site reinstatement.

4. The notice party’s s. 146B request was accompanied by the following supporting

documentation: a planning statement, environmental impact assessment (EIA) screening - Schedule

7A information, addendum to appropriate assessment (AA) screening and Natura impact statement

(NIS), environmental report and associated annexes (Annex 1 to Annex 10), and certain drawings,

plans and particulars.

5. Mr Peter Sweetman attempted to make an unsolicited third-party submission on the s. 146B

request. That submission was treated as invalid by the first named respondent, and this was

communicated to Mr Sweetman by the first named respondent by letter dated 19 July 2024.

6. The commission appointed an inspector to prepare a report in relation to the notice party’s

s. 146B request and this was done. The inspector’s report, dated 13 August 2024, records on p. 1

that the inspector carried out a site inspection on 25 July 2024.

7. The commission decided, in accordance with s. 146B(2)(b) of the 2000 Act, not to invite

submissions or observations in relation to whether the proposed alterations would constitute the

making of a material alteration to the terms of the development concerned.

8. The first named respondent’s meeting record (ABP-319903-24) records, inter alia, that the

commission met on 4 September 2024 in relation to the s. 146B request at issue.

9. By order dated 10 September 2024, bearing reference ABP-319903-24, the commission

determined that the proposed alterations would not result in a material alteration of the terms of

the development, the subject of the permission and, in accordance with s. 146B(3)(a) of the 2000

Act, made the said alterations. The decision of the commission is impugned in the second

proceedings.

Procedural history

10. Much of the procedural history in the first set of proceedings is relevant here.

11. The proceedings were filed on 4 November 2024. The No. II case was first mentioned to

the court on 11 November 2024. Leave was granted subject to an amended statement of grounds

to be filed.

12. While there was some shifting of position on whether ground E6 against the State should be

modularised it was eventually decided that this ground would be modularised – ultimately the fact

that there wasn’t time before the hearing to allow a full joinder of issue on this and the fact that

certain matters were being modularised anyway, and having regard to the applicants’ preferences

as expressed on their behalf.

13. The matter was heard on 30 September and 1 October 2025 in tandem with Rural Residents

I. 14. 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.

15. 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.

16. 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).

17. The mention date to review matters following the foregoing was to be 09:30 on 23 October

2025. The commission helpfully noted some typos. The applicant raised some issues on costs which

deal with in the No. I case judgment, and I make consequential adjustments to the order here based

on the discussion there. I can also note that there was an inconsistency in the provisional costs

order by reserving the opposing parties’ costs but also making no order as to the commission’s costs.

In the absence, at this albeit modest remove, of any particular recollection of why it was worded

that way, I think the inconsistent reference to no order as to the commission’s costs was simply a

production error. Further thought results in a conclusion that it is better to reserve the costs of all

winning parties in Module I which would also keep the proposed provisional order consistent with

the No. I case by reserving the commission’s costs. I also informed the parties that I intended to

add in a reference to O. 103 insofar as relevant to core ground 4 (nobody had mentioned this at the

hearing, although when I raised it the commission said it had intended to refer to it but overlooked

doing so). So human error all round – it’s never the preserve of one protagonist exclusively.

18. The matter was then listed again on 3 November 2025 to fix a date for Module II (core

grounds 6 and 7). The comments in the No. I case judgment as to progress made on that date are

also largely relevant here.

Relief sought

19. The reliefs sought are as follows:

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

(’the impugned decision’) of the First Respondent (‘the Board’) of on or about 10 September

2024 (file PM01.319903), pursuant to section 146B of the Planning and Development Act

2000, as amended, to grant permission to the Notice Party (‘White Hill Wind Limited’), in the

absence of public participation, for proposed amendments to the previously authorised White

Hill Wind Farm (ABP-315365-22 ‘the parent permission’) to alter the location of turbines T6

and T7, being of 2 no. of the 7 no. number previously authorised wind turbines, and also to

fell some 3.4 hectares (8.4 acres) of forestry, and to alter the location of associated

development including foundations and crane hard stands and site roads, to alter the

previously permitted location of a bridge crossing over the Coolcullen River and a second

bridge crossing over a tributary of same, in the townland of Knocknabranagh and

Knockbaun, in Co. Carlow and the townland of Coolcullen in 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. A Declaration that the Fourth Respondent erred and acted contrary to reg 24 of S.I.

No. 477/2011 - European Communities (Birds and Natural Habitats) Regulations 2011 by

failing to establish the necessary conservation measures involving, if need be, appropriate

management plans specifically designed for the Gray Heron and the Mallard in the River

Nore SPA and the Golden Plover in the River Barrow and River Nore SAC, integrated into

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

which correspond with the ecological requirements of those species that ought to be subject

to the conservation objectives of the site, and the Fourth Respondent erred and acted

contrary to reg. 26 by failing to exercise their functions relating to nature conservation so

as to secure compliance with the requirements of the Habitats Directive and Birds Directive

by establishing conservation objectives and measures for the Gray Heron and Mallard on the

River Nore SPA and the Golden Plover in the River Barrow and River Nore SAC and acted

contrary to reg. 7(b) by failing to identify additional species referred to in Article 4(1) and

4(2) of the Birds Directive for inclusion in the conservation objectives of the sites, when they

knew or ought to have known that Gray Heron and the Mallard and the Golden Plover were

present in such numbers on such sites to require specific protections.

4. A Declaration that section 146B of the Planning and Development Act, 2000, as

amended, is invalid because the Second and Third Respondents have failed to ensure that

the public participatory rights therein are in every case triggered by an Appropriate

Assessment under Article 6 (3) of the Habitats Directive, read in the light of article 47 of the

Charter of Fundamental Rights and/or the obligations under Article 6 of the Aarhus

Convention for the public to be informed, either by public notice or individually as

appropriate, early in an environmental decision-making procedure, and in an adequate,

timely and effective manner when all options are open and effective public participation can

take place.

5. 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.

6. Further and other orders including interim orders.

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

Grounds of challenge

20. The core grounds of challenge are as follows. Core ground 2 was withdrawn.

“Domestic Law Core Grounds

1. The impugned decision is invalid and contrary to s.146B(1) of the Planning and

Development Act, 2000, as amended, because the Board strayed beyond its jurisdiction to

alter the terms of the development the subject of a planning permission when it purported

to alter the very development for which the planning permission had been granted; and or

the decision is invalid and contrary to s.146B(2) because the Board erred in deciding that

the making of the alteration to which the request relates would not constitute the making of

a material alteration of the terms of the development concerned. Further particulars are set

out in Part 2 below.

2. 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 what in effect was a planning application to construct two new wind turbines and

ancillary development and to cut down and remove 3.4 hectares of forestry in order to

construct the new development, when it knew that no notice had been served under section

37B(4)(a) in respect of the proposed development, ought to have advised the developer to

apply for planning permission in the normal way and to make public notification. Further

particulars are set out in Part 2 below.

3. The impugned decision is invalid and contrary to s.28(2) of the Planning and

Development Act 2000, as amended because the Board failed to have regard to the

provisions of the Wind Energy Development Guidelines 2006 that concern the degree of

flexibility generally allowable for the siting of wind turbines and ought to have had regard to

the s.28 guideline that the extent to which a turbine should be moved before a new planning

application is necessary should not generally extend beyond 20 metres, when deciding if

the proposed amendment was material. Further particulars are set out in Part 2 below.

4. The First Respondent has erred in law and acted contrary to fair procedures by

creating an apprehension of objective bias or by allowing a situation to arise which could be

perceived by a rational observer to be biased. Further particulars are set out in Part 2 below.

EU Law Grounds

5. The impugned decision is invalid because it contravenes Article 6 of Council Directive

92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and

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

Development Act 2000 and Article 4 of the EIA Directive as transposed by Part X of the PDA

2000, as amended, and the Aarhus convention and in accordance with the case law of the

CJEU by:

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

contains complete, precise and definitive findings and conclusions capable of

dispelling all reasonable scientific doubt as to the effects of the proposed works on

the conservation of the Otter in the river Barrow and River Nore SAC and the

Kingfisher in the River Nore SPA and failing to allow public participation for same;

and

• failing to carry out an Appropriate Assessment screening, properly or at all,

to assess, in view of best scientific knowledge, if the proposed development of 2

turbines, individually or in combination with another plan or project is likely to have

a significant effect on the Otter in the river Barrow and River Nore SAC and the

Kingfisher in the River Nore SPA; and

• failing to carry out an Appropriate Assessment Screening for other species

of birds which must be protected under Article 4 of the Birds Directive and which are

present in a significant manner in the River Nore SPA, namely the Mallard (Anas

platyrhynchos) and the Gray Heron (Ardea cinerea) even though that site was not

designated as an SPA for those other species, and this was contrary to Article 6(3)

of the Habitats Directive, read in the light of Article 4 of the Birds Directive; Further

particulars are set out in Part 2 below.

5A. The impugned decision is invalid because it contravenes the EIA Directive by failing

Failing to carry out any or any proper screening assessment or preliminary examination in

respect of the significant alterations to the proposed development and failing to record and

make available any such screening assessment in accordance with Article 4(5) of the EIA

Directive and in particular 4(5)(b) thereof in failing to state the main reasons for not

requiring such assessment with reference to the relevant criteria listed in Annex III, and/or

state any features of the project and/or measures envisaged to avoid or prevent what might

otherwise have been significant adverse effects on the environment

6. Without prejudice to any ground pleaded against the Board, the Fourth Respondent

erred and acted contrary to reg 24 of S.I. No. 477/2011 - European Communities (Birds and

Natural Habitats) Regulations 2011 by failing to establish the necessary conservation

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

Gray Heron and the Mallard in the River Nore SPA and the Golden Plover in the River Barrow

and River Nore SAC, integrated into other development plans and appropriate statutory,

administrative, or contractual measures which correspond with the ecological requirements

of those species that ought to be subject to the conservation objectives of the site, and the

Fourth Respondent erred and acted contrary to reg. 26 by failing to exercise their functions

relating to nature conservation so as to secure compliance with the requirements of the

Habitats Directive and Birds Directive by establishing conservation objectives and measures

for the Gray Heron and Mallard on the River Nore SPA and the Golden Plover in the River

Barrow and River Nore SAC and acted contrary to reg. 7(b) by failing to identify additional

species referred to in Article 4(1) and 4(2) of the Birds Directive for inclusion in the

conservation objectives of the sites, when they knew or ought to have known that Gray

Heron and the Mallard and the Golden Plover were present in such numbers on such sites to

require specific protections. Further particulars are set out in Part 2 below.

Invalidity Ground

7. Without prejudice to any ground pleaded against the Board, section 146B of the

Planning and Development Act, 2000, as amended, is invalid because the Second and Third

Respondents have failed to ensure that the public participatory rights therein are triggered

in every case by an Appropriate Assessment under Article 6 (3) of the Habitats Directive,

and Article 11 EIA, read in the light of article 47 of the Charter of Fundamental Rights and/or

the obligations under Article 6 of the Aarhus Convention for the public to be informed, either

by public notice or individually as appropriate, early in an environmental decision-making

procedure, and in an adequate, timely and effective manner when all options are open and

effective public participation can take place. Further particulars are set out in Part 2 below.”

Some general considerations

21. General legal considerations relevant to the matters at issue here are set out in the Rural

Residents I judgment so again the two should be read in tandem.

Domestic law issues

Core ground 1 – excess of jurisdiction

22. Core ground 1 is:

“1. The impugned decision is invalid and contrary to s.146B(1) of the Planning and

Development Act, 2000, as amended, because the Board strayed beyond its jurisdiction to

alter the terms of the development the subject of a planning permission when it purported

to alter the very development for which the planning permission had been granted; and or

the decision is invalid and contrary to s.146B(2) because the Board erred in deciding that

the making of the alteration to which the request relates would not constitute the making of

a material alteration of the terms of the development concerned. Further particulars are set

out in Part 2 below.”

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

“Second proceedings: CORE GROUND 1

Applicants’ Position

48. The impugned decision is invalid and contrary to s.146B(1) of the Planning and

Development Act, 2000, as amended, because the Board strayed beyond its jurisdiction to

alter the terms of the development the subject of a planning permission when it purported

to alter the very development for which the planning permission had been granted; and or

the decision is invalid and contrary to s.146B(2) because the Board erred in deciding that

the making of the alteration to which the request relates would not constitute the making of

a material alteration of the terms of the development concerned.

The Commission’s Position

49. The Commission’s Decision is not invalid as alleged at Core Ground 1. The proposed

alterations to the permitted SID development in essence relate to the relocation of two of

the permitted turbines (T6 – which is to be relocated c170m to the southwest of its originally

permitted position and T7- which is to be relocated c220m to the south of its permitted

position) to new locations by reason of the withdrawal of involvement by two landowners

from the permitted windfarm project (in circumstances where turbines T6 and T7 were

permitted within those landholdings). The alterations do not change the overall number,

type, height or scale of the permitted turbines and will not result in any increase in the size

or output of the permitted windfarm. The proposed alteration to the location of T6 will be

from the permitted location within an agricultural field c170m to the southwest within a

commercial forest. T7 was permitted within commercial forestry and its relocation c220m

to the south of its permitted location will also be within commercial forestry. Accordingly,

there will be no change to the felling requirements for T7. The alteration in the location of

T6 will result in the felling of an additional 2.45ha of commercial forestry. The Environmental

Report submitted by the Notice Party with the s.146B request, notes at §2.5.3 of same that:

“it will be necessary to fell c. 0.95 hectares (ha) of existing commercial forestry to facilitate

the construction and operation of turbine T6. The proposed alteration would require the

removal of c. 3.4ha of forestry, or an increase of c. 2.45ha. It is estimated that this

additional forestry felling will give rise to 30 no. additional HGV movements removing timber

from the site. The construction and operation of the permitted project will require the felling

of 15ha; while the proposed alteration would increase this overall area to 17.45ha. As

detailed in the EIAR, an equivalent area of forestry will be planted off site which will be

subject to all necessary afforestation licences and consents.

50. The assessment of the materiality of the alteration and/or the conducting of a

comparison in order to establish whether the proposed alteration is a ‘material’ alteration of

the permitted SID development, is a matter of and/or involves planning judgement by the

Commission in the exercise of its expert planning function (the Commission relies by analogy

on Dietacaron Ltd v An Bord Pleanála 4 [2005] 2 I.L.R.M. 32 at 46; Shadowmill [2023] IEHC

157 at §257-§259; Eglington Residents Association [2025] IEHC 209 at §51; and Morehart

[2025] IEHC 418 at §31, §127). At Core Ground 1, the Applicants effectively do no more

than posit a merits-based disagreement with the Commission’s conclusion that the proposed

alterations are not material, which is legally irrelevant and not a basis for certiorari of the

Commission’s Decision or any other relief. The Court is essentially being invited by the

Applicants to make a finding of fact inconsistent with the view of the Commission (as

expressed it is impugned decision) as to the materiality of the alteration and thus to,

impermissibly, enter in on the merits of the s.146B request. The conclusion of the Inspector

and of the Commission that the proposed alterations would not be material was lawfully

reached, was a conclusion open to the Commission to be reached and was patently not

irrational or unreasonable (and the Applicants have not made out any such case) in

circumstances where it was based on the materials and evidence that were before it.

Notice Party Position

The Commission is empowered to alter any ‘term’ of an SID development pursuant to section

146[B]. This includes the proposed development and any condition to that development –

this is true irrespective of whether the proposed amendment is deemed to be ‘material’ or

not.

The change to the proposed development is not material. The degree of movement of the

turbines is non-material in the context of the development with the only environmental

consequence of any note an increase in the amount of sitka spruce agro-forestry that will

have to be felled. The Applicant’s challenge is a merits challenge to a determination of

materiality made by the Commission in discharge of its expertise. The Applicants have

adduced no admissible evidence to address the Commission’s decision and Dr. Bartley’s

evidence (such as it is) has, in any event, been fully addressed by Mr Broderick.”

24. The developer’s description of the amendment in written submissions includes the following:

“25. Firstly, the proposed alterations to the permitted SID development relate to the

relocation of two of the turbines (T6 and T7) from their permitted locations to new locations.

Although not relevant to the section 146B jurisdiction the reason for the alteration is that

the Developer became aware in August 2023 that Mr John Nolan was no longer providing

his consent. The Developer then took the prudent and pragmatic view that the appropriate

course of action was to relocate the turbines onto land that the Developer controls. The

proposed alterations consist of the following:

(a) Relocation of turbine T6 - c170m to the southwest of its permitted position.

(b) Relocation of turbine T7 - c220m to the south of its permitted position.

(c) Alter the location on ancillary wind turbine infrastructure including foundations and

crane hardstanding.

(d) Alter the alignment of access tracks and underground electricity and communications

cabling associated with turbines T6 and T7.

(e) Undertake all associated ancillary site development works related to the above

alterations including excavations and groundworks, drainage infrastructure, felling of

existing commercial forestry plantation, watercourse crossing, landscaping and site

reinstatement.

26. The alterations do not change the overall number, type, height or scale of the

permitted turbines and will not result in any increase in the size or output of the permitted

windfarm. Nor do they result in any changes to 5 of the 7 turbines, or any other aspect of

the project. …”

25. Section 146B of the 2000 Act provides (emphasis added):

“Alteration by Board of strategic infrastructure development on request made of it.

146B.—(1) Subject to subsections (2) to (8) and sections 146BA, 146BB and 146C, the

Board may, on the request of any person who is carrying out or intending to carry out a

strategic infrastructure development, alter the terms of the development the subject of a

planning permission other than a development for which permission was granted under

section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016,

approval or other consent granted under this Act.

(2) (a) As soon as practicable after the making of such a request, the Board shall make a

decision as to whether the making of the alteration to which the request relates would

constitute the making of a material alteration of the terms of the development concerned.

(b) Before making a decision under this subsection, the Board may invite submissions in

relation to the matter to be made to it by such person or class of person as the Board

considers appropriate (which class may comprise the public if, in the particular case, the

Board determines that it shall do so); the Board shall have regard to any submissions made

to it on foot of that invitation.

(3)(a) If the Board decides that the making of the alteration would not constitute

the making of a material alteration of the terms of the development concerned, it

shall alter the planning permission, approval or other consent accordingly and notify the

person who made the request under this section, and the planning authority or each planning

authority for the area or areas concerned, of the alteration.

(b) If the Board decides that the making of the alteration would constitute the making of

such a material alteration, it shall—

(i) by notice in writing served on the requester, require the requester to submit to

the Board the information specified in Schedule 7A to the Planning and Development

Regulations 2001 in respect of that alteration, or in respect of the alternative

alteration being considered by it under subparagraph (ii)(II), unless the requester

has already provided such information, or an environmental impact assessment

report on such alteration or alternative alteration, as the case may be, to the Board,

and

(ii) following the receipt of such information or report, as the case may be, determine

whether to—

(I) make the alteration,

(II) make an alteration of the terms of the development concerned, being

an alteration that would be different from that to which the request relates

(but which would not, in the opinion of the Board, represent, overall, a more

significant change to the terms of the development than that which would

be represented by the latter alteration), or

(III) refuse to make the alteration.

(3A) Where the requester is submitting to the Board the information referred to in subsection

(3)(b)(i), that information shall be accompanied by any further relevant information on the

characteristics of the alteration under consideration and its likely significant effects on the

environment including, where relevant, information on how the available results of other

relevant assessments of the effects on the environment carried out pursuant to European

Union legislation other than the Environmental Impact Assessment Directive have been

taken into account.

(3B) Where the requester is submitting to the Board the information referred to in subsection

(3)(b)(i), that information may be accompanied by a description of the features, if any, of

the alteration under consideration and the measures, if any, envisaged to avoid or prevent

what might otherwise have been significant adverse effects on the environment of the

alteration.

(4) Before making a determination under subsection (3)(b)(ii), the Board shall determine

whether the extent and character of—

(a) the alteration requested under subsection (1), and

(b) any alternative alteration it is considering under subsection (3)(b)(ii)(II)

are such that the alteration, were it to be made, would be likely to have significant effects

on the environment (and, for this purpose, the Board shall have reached a final decision as

to what is the extent and character of any alternative alteration the making of which it is so

considering).

(4A)(a) Subject to paragraph (b), within 8 weeks of receipt of the information referred to in

subsection (3)(b)(i), the Board shall make its determination under subsection (4).

(b) Subject to paragraph (c), the Board shall not be required to comply with paragraph (a)

within the period referred to in paragraph (a) where it appears to the Board that it would

not be possible or appropriate, because of the exceptional circumstances of the alteration

under consideration (including in relation to the nature, complexity, location or size of such

alteration) to do so.

(c) Where paragraph (b) applies, the Board shall, by notice in writing served on the requester

before the expiration of the period referred to in paragraph (a), inform him or her of the

reasons why it would not be possible or appropriate to comply with paragraph (a) within

that period and shall specify the date before which the Board intends that the determination

concerned shall be made.

(5) If the Board determines that the making of either kind of alteration referred to in [in

subsection (3)(b)(ii)—

(a) is not likely to have significant effects on the environment, it shall proceed to make a

determination under subsection (3)(b)(ii), or

(b) is likely to have such effects, the provisions of section 146C shall apply.

(6) If, in a case to which subsection (5)(a) applies, the Board makes a determination to

make an alteration of either kind referred to in subsection (3)(b)(ii), it shall alter the planning

permission, approval or other consent accordingly and notify the person who made the

request under this section, and the planning authority or each planning authority for the

area or areas concerned, of the alteration.

(7)(a) In making a determination under subsection (4), the Board shall have regard to—

(i) the criteria for the purposes of determining which classes of development are

likely to have significant effects on the environment set out in any regulations made

under section 176,

(ii) the criteria set out in Schedule 7 to the Planning and Development Regulations

2001,

(iii) the information submitted pursuant to Schedule 7A to the Planning and

Development Regulations 2001,

(iv) the further relevant information, if any, referred to in subsection (3A) and the

description, if any, referred to in subsection (3B),

(v) the available results, where relevant, of preliminary verifications or assessments

of the effects on the environment carried out pursuant to European Union legislation

other than the Environmental Impact Assessment Directive, and

(vi) in respect of an alteration under consideration which would be located on, or in,

or have the potential to impact on—

(I) a European site,

(II) an area the subject of a notice under section 16(2)(b) of the Wildlife

(Amendment) Act 2000 (No. 38 of 2000),

(III) an area designated as a natural heritage area under section 18 of the

Wildlife (Amendment) Act 2000,

(IV) land established or recognised as a nature reserve within the meaning

of section 15 or 16 of the Wildlife Act 1976 (No. 39 of 1976),

(V) land designated as a refuge for flora or a refuge for fauna under section

17 of the Wildlife Act 1976,

(VI) a place, site or feature of ecological interest, the preservation,

conservation or protection of which is an objective of a development plan or

local area plan, draft development plan or draft local area plan, or proposed

variation of a development plan, for the area in which the development is

proposed, or

(VII) a place or site which has been included by the Minister for Culture,

Heritage and the Gaeltacht in a list of proposed Natural Heritage Areas

published on the National Parks and Wildlife Service website,

the likely significant effects of such alteration on such site, area, land, place or

feature, as appropriate.

(b) The Board shall include, or refer to, in its determination under subsection (4) the main

reasons and considerations, with reference to the relevant criteria listed in Schedule 7 to the

Planning and Development Regulations 2001, on which the determination is based.

(7A) Where the determination of the Board under subsection (4) is that the alteration under

consideration would not be likely to have significant effects on the environment and the

applicant has, under subsection (3B), provided a description of the features, if any, of the

alteration concerned and the measures, if any, envisaged to avoid or prevent what might

otherwise have been significant adverse effects on the environment of the alteration

concerned, the Board shall specify such features, if any, and such measures, if any, in the

determination.

(8) (a) Before making a determination under a determination under subsection (3)(b)(ii) or

(4), the Board shall—

(i) make, or require the person who made the request concerned under subsection

(1) to make, such information relating to that request available for inspection for

such period,

(ii) notify, or require that person to notify, such person, such class of person or the

public (as the Board considers appropriate) that the information is so available, and

(iii) invite, or require that person to invite, submissions or observations (from any

foregoing person or, as appropriate, members of the public) to be made to it in

relation to that request within such period,

as the Board determines and, in the case of a requirement under any of the preceding

subparagraphs, specifies in the requirement; such a requirement may specify the means by

which the thing to which it relates is to be done.

(b) The Board shall have regard to any submissions or observations made to it in accordance

with an invitation referred to in paragraph (a).

(c) The Board shall notify any person who made a submission or observation to it in

accordance with that invitation of its determination under subsection (3)(b)(ii) or (4).

(9) In this section ‘term’ has the same meaning as it has in section 146A.”

26. Section 146A, which partially defines “term”, provides (emphasis added):

“Amendments of permissions, etc. of clerical or technical nature.

146A.—(1) Subject to subsection (2)—

(a) a planning authority or the Board, as may be appropriate, may amend a planning

permission granted by it, or

(b) the Board may amend any decision made by it in performance of a function under or

transferred by this Act or under any other enactment,

for the purposes of—

(i) correcting any clerical error therein,

(ii) facilitating the doing of any thing pursuant to the permission or decision

where the doing of that thing may reasonably be regarded as having been

contemplated by a particular provision of the permission or decision or the

terms of the permission or decision taken as a whole but which was not

expressly provided for in the permission or decision, or

(iii) otherwise facilitating the operation of the permission or decision.

(2) A planning authority or the Board shall not exercise the powers under subsection (1) if

to do so would, in its opinion, result in a material alteration of the terms of the development,

the subject of the permission or decision concerned.

(3) A planning authority or the Board, before it decides whether to exercise the powers under

subsection (1) in a particular case, may invite submissions in relation to the matter to be

made to it by any person who made submissions or observations to the planning authority

or the Board in relation to the permission or other matter concerned, and shall have regard

to any submissions made to it on foot of that invitation.

(4) In this section ‘term’ includes a condition.”

27. What’s clear is that the word term includes condition but is therefore not exhausted by

condition. The text, and indeed the purpose of the provision, does not support a conclusion that

text other than conditions cannot be amended.

28. The real question – as set out expressly in s. 146B – is materiality – if an amendment would

have a material effect on third-party rights or a material effect on habitats or species then such an

amendment is substantive and goes beyond the powers of s. 146B or indeed s. 146A. It can also

be noted that the powers under s. 146B are considerably wider than those under s. 146A because

the latter are limited to the three listed matters starting with clerical error, whereas there is no

particular limit under s. 146B other than that certain assessment procedures may be triggered by

materiality.

29. So the basis of this point is a misconception – the text of a permission, and not just its

conditions, can be amended by the commission under these provisions.

30. As to whether the change was material in terms of planning considerations, that has not

been established. The onus to show that the decision is invalid lies on the applicants. Factors to be

considered in the materiality consideration include the relatively minor scale of the change in

comparison with the scale of the project, the circumstances in which the change arose, and the fact

that it does not affect compliance with conditions.

31. Insofar as Dr Bartley avers for the applicants that there would be impacts, that has been

replied to as set out in Mr Broderick’s affidavit, and in the absence of cross-examination that dispute

must be resolved against the applicants.

Core ground 3 – alleged failure to have regard to guidelines

32. Core ground 3 is:

“3. The impugned decision is invalid and contrary to s.28(2) of the Planning and

Development Act 2000, as amended because the Board failed to have regard to the

provisions of the Wind Energy Development Guidelines 2006 that concern the degree of

flexibility generally allowable for the siting of wind turbines and ought to have had regard to

the s.28 guideline that the extent to which a turbine should be moved before a new planning

application is necessary should not generally extend beyond 20 metres, when deciding if the

proposed amendment was material. Further particulars are set out in Part 2 below.”

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

“Second proceedings: CORE GROUND 3

Applicants’ Position

51. The impugned decision is invalid and contrary to s.28(2) of the Planning and

Development Act 2000, as amended because the Board failed to have regard to the

provisions of the Wind Energy Development Guidelines 2006 that concern the degree of

flexibility generally allowable for the siting of wind turbines and ought to have had regard to

the s.28 guideline that the extent to which a turbine should be moved before a new planning

application is necessary should not generally extend beyond 20 metres, when deciding if

the proposed amendment was material.

The Commission’s Position

52. The Commission’s Decision is not invalid as alleged at Core Ground 3. Core Ground

3 is misconceived. The Applicants’ reliance on a passage from section 5.3 of the WEDG 2006

is misplaced and based on a misconception as to the relevance of same to the impugned

Commission decision. The passage from section 5.3 of the WEDG 2006 that is pleaded at

§6 at E(Part 2) of the Amended Statement of Grounds, upon which the Applicants purport

to rely and on which Core Ground 3 is premised, is simply not relevant to the s.146B request

at issue. The relevant passage from section 5.3 of the WEDG 2006 makes a general

recommendation as to the extent of flexibility that should be built into a planning permission

(i.e. without having to make any further application) regarding the location of turbines (with

the recommendation being that the extent of such flexibility will be site specific but should

not generally extend beyond 20 metres). The WEDG 2006 were made in 2006, s.146B (in

its original form), by which provision the Oireachtas expressly legislated for the making of

alterations to existing SID planning permissions, entered into force on 31 January 2007 by

virtue of paragraph 3 of S.I. No. 684 of 2006. In other words, the statutory procedure at

issue here post-dates the WEDG 2006, and the WEDG 2006 does not address the situation

that arises here – i.e. a non-material alteration to a permitted development pursuant to a

request under s.146B. Nothing in the WEDG 2006 says that a s.146B request cannot be

made in relation proposed alterations relating to turbine relocation. The WEDG 2006 does

not address or refer to s.146B nor to SID. Section 28(2) of the 2000 Act provides that,

where applicable, the Commission in the performance of its functions, shall have regard to

any guidelines issued to planning authorities by the Minister under s.28(1). However, the

relevant passage from the WEDG 2006 is not applicable and so the Commission was not

obliged to have regard to same and the Commission not having regard to same is not

contrary to s.28.

Notice Party Position

53. The Applicant’s case is based on a misunderstanding as to the role of micro-siting in

the 2006 Guidelines. The critical distinction is that micro-siting flexibility occurs within the

scope of a grant of permission – its purpose is to allow developers to make minor

adjustments of turbine position (in response to, for example, the geophysical position once

ground is opened) without the necessity for a new application for planning permission.

54. On the other hand, the alteration decision pursuant to section 146B is to allow a

very modest movement of T6 and T7. This is a separate consent decision that was subject

to fresh environmental assessment, and which deals with a completely different subject

matter – the relocation of two turbines.”

34. The problem with the allegation of non-consideration of the 2006 guidelines at the

amendment stage is that the amendment decision refers to the original decision which in turn

referred to the 2006 guidelines.

35. As outlined on numerous previous occasions in the caselaw on reasons, the rationale and

considerations of a decision do not need to be stated in the decision document itself. They can be

stated anywhere from where such reasoning can be inferred, but that most certainly includes

documents referred to in the decision document.

36. So there is no factual foundation for the suggestion that they were not considered – they

were before the first named respondent.

37. Insofar as one could make an argument that the 2006 guidelines could have supported –

but only by analogy (since they don’t deal with s. 146B) – an argument against the amendment, the

commission wasn’t required to comply with them. The duty is to have regard only. There isn’t any

substance to this point.

Core ground 4 – objective bias

38. Core ground 4 is:

“4. The First Respondent has erred in law and acted contrary to fair procedures by

creating an apprehension of objective bias or by allowing a situation to arise which could be

perceived by a rational observer to be biased. Further particulars are set out in Part 2

below.”

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

“Second proceedings: CORE GROUND 4

Applicants’ Position

55. The Commission has erred in law and acted contrary to fair procedures by creating

an apprehension of objective bias or by allowing a situation to arise which could be perceived

by a rational observer to be biased.

The Commission’s Position

56. The Commission’s Decision is not invalid as alleged at Core Ground 4. Having regard

to the test for objective bias and associated principles (as considered in e.g. Salmon Watch

Ireland CLG v. ALAB [2024] IEHC 421 at §111 to §128; Word Perfect Translation Services

Limited v. Minister for Public Expenditure and Reform [2025] IECA 45 at §376; AB v The

Health Service Executive [2025] IECA 48 at §43 and Kelly v. University College Dublin [2025]

IESC 6 at §1-§10, §105-§106), and in application of those principles to the actual facts and

the legal context here, no apprehension of objective bias arises and no conflict of interest

arises by reason of the fact that the same Inspector and two of the three Commission

members determined and/or were involved in the determination of the Commission’s

decision to grant permission for the proposed wind farm development under ABP-315365-

22. A reasonable person, familiar with all relevant facts, would not apprehend any bias or

pre-determination or a conflict of interest arising. Core Ground 4 is premised only on the

subjective views of the Applicants and/or a tendentious and subjective interpretation of

certain matters by the Applicants which does not reflect a fair or reasonable interpretation

of the fact of the involvement of the same Inspector and two of the three Commission

members in the Commission decision granting permission under ABP-315365-22.

57. The Applicants’ apprehension of bias is not reasonable nor realistic. A reasonable

and fair-minded objective observer, who is not unduly sensitive, but who is in possession of

all of the relevant facts, would not reasonably apprehend that there is a risk that the

Commission was not/ would not be fair or impartial in determining the subject s.146B

request at issue. The mere fact of a decision contrary to the interests of the party alleging

bias or of legal or other errors, does not show bias (Salmon Watch Ireland CLG [2024] IEHC

421 at §124(viii) and the case law cited). The Applicants have failed to show the existence

of something external to the decision-making process in pursuit of Core Ground 4 as required

(per Salmon Watch Ireland CLG [2024] IEHC 421 at §124(ix) and the case law cited) and

instead purport to infer objective bias based on other alleged errors in the decision-making

process relating to the Commission’s conclusion as to the non-materiality of the proposed

alterations (which conclusion it was entitled to reach) and regarding the absence of public

participation in the impugned s.146B process (which is expressly provided for as part of the

statutory decision-making process at issue). The Applicants’ challenge to the SID permission

(ABP-315365-22) is not something external in this regard, as contended in legal submission

by the Applicants. Insofar as it is being suggested by the Applicants in their submissions

(§41 et seq) the chronology as to the making of the s.146B request does not of itself

demonstrate objective bias.

58. As pleaded by the Commission (§46, Statement of Opposition) and verified via

uncontested affidavit (§11 of the affidavit of Pierce Dillon), the Commission’s function under

section 146B is a discrete and distinct function regarding a request by a person (who is

carrying out or intending to carry out a strategic infrastructure development) to alter an

already permitted strategic infrastructure development (SID). One of the key aspects of the

Commission’s function under section 146B is to consider whether the making of the

alteration would or would not constitute the making of a material alteration of the terms of

the development concerned. Accordingly, and in aid of efficiency and the timely

determination of requests made under section 146B, the practice of the Commission is to,

where possible, allocate the request to persons familiar with the grant of the relevant SID

planning permission (in relation to which the alteration is requested), such as the relevant

Inspector in particular and/or the deciding Commission members. This is because of their

familiarity with and knowledge of the underlying SID application and grant of permission as

well the submissions and concerns raised as part of the planning application process. The

Commission considers that, in practice, the same Inspector, for example, is typically best

placed to understand the materiality (if any) of the alteration(s) requested and to do so in a

timely manner. 45. In addition, the Commission is the statutory decision maker, it is not

the promoter of the proposed windfarm development and in this respect, it is a disinterested

party which has no stake in the commercial venture being pursued by the Notice Party.

Further, the Commission is the statutory decision maker, it is not the promoter of the

proposed windfarm development and in this respect, it is a disinterested party which has no

stake in the commercial venture being pursued by the Notice Party

The Notice Party’s Position

59. The Applicants haven’t pointed to anything external in the process, still less anything

that a reasonably well informed person that is fair, robust and not over-sensitive could

possibly conclude would suggest that the Commission was motivated by objective bias.

60. There is nothing on the face of the impugned decision (the Inspector’s Report, Order

or Direction) to suggest that the Commission’s decision was in any way pre-determined or

influenced in any way by the RR1 proceedings. There is an obvious benefit in terms of

efficiency and time-saving in having the same personnel determine the section 146B

application as they were involved with the original decision to grant the parent permission.”

40. This submission is a complete misconception and disintegrates under any examination. If a

public body has a statutory power, not subject to a court stay or injunction, then it can exercise that

power. It doesn’t need the court’s permission. It doesn’t even need to tell the court, although

information is always welcome. The fact that such exercise improves its position in litigation doesn’t

in itself make the exercise of the power unlawful or inappropriate, even if taken for the purpose of

achieving that, as long as it has an independently valid public purpose.

41. This is the separation of powers in action – deciding whether to take an administrative step

is a matter for the public body concerned in the absence of any court order, all other things being

equal. The mere bringing of proceedings does not freeze the public body’s powers and render them

ineffective. This is consistent with the Supreme Court decision in Okunade v. Minister for Justice

[2012] IESC 49, [2012] 3 I.R. 152, [2013] 1 I.L.R.M. 1 at 8.11 – the bringing of proceedings does

not in itself act as a stay on administrative action.

42. If a public body thinks that it can resolve a problem administratively rather than require the

court to deal with it, then that is consistent with the constitutional architecture of the division of

powers between the branches of government, consistent with the point that such exercise of power

can be challenged. The purported exercise of any power to amend is subject to challenge, but not

on the basis that the commission is biased by “improving” its forensic position through administrative

action. It either has the right to correct a decision or it doesn’t – the fact that a correction has the

effect of improving its defence in proceedings (or even the fact that it may be intended to do so)

doesn’t make the correction unlawful or make the commission biased.

43. The applicants’ objection would undermine equality before the law, given that the applicants

postulate no comparable restrictions on private law actors in litigation (for example by making a

fresh administrative law application that might render proceedings moot or require them to be

delayed).

44. To put it another way, a private law party to litigation isn’t debarred from improving its

position forensically, as long as the improvement is something it is lawfully entitled to do anyway,

and the same principle applies to a public body. The public body must be acting in the public interest

in improving its position, not carrying out some sort of cynical move with no valid legal basis – but

that isn’t the situation here (or alternatively, that hasn’t been proven by the applicant).

45. The principle is put beyond doubt by O. 103 r. 24 RSC, which it couldn’t have been if the

exercise of a power to amend in the course of proceedings is a form of bias (emphasis added):

“Amendment of decision

24.(1) Where the proceedings challenge the validity of a decision of a public law entity which

that entity has legal power to amend, the bringing of the proceedings shall not

preclude or constrain the exercise of such power unless the Court otherwise orders.

(2) Where the entity concerned wishes to stay the proceedings for the purpose of exercising

such power, it shall apply to the Court on notice. In the case of an application in relation to

Part 9 Judicial Review under section 284 of the 2024 Act, such application shall be brought

by notice of motion grounded on an affidavit verifying any facts relied on.

(3) Where a decision the subject of proceedings is amended, the public law entity concerned

shall forthwith inform the other parties of the amendment. Where any other party considers

that the amended decision gives rise to a requirement to amend the proceedings, such party

may apply for any amendment within the appropriate period from the making of the

amended decision, and may apply to the Court on notice for an order staying the proceedings

pending the bringing of the application for such an amendment.”

46. What is envisaged in this case is consistent with the principle of the rules, even

acknowledging the obvious point that the amendment was adopted here (10 September 2024) prior

to the rules (18 June 2025). But insofar as the rules are relaxed about amendment of decisions,

that is declaratory of the pre-existing law.

EU law issues

Core ground 5 – habitats directive

47. Core ground 5 is:

“5. The impugned decision is invalid because it contravenes Article 6 of Council Directive

92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and

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

Development Act 2000 and Article 4 of the EIA Directive as transposed by Part X of the PDA

2000, as amended, and the Aarhus convention and in accordance with the case law of the

CJEU by:

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

contains complete, precise and definitive findings and conclusions capable of

dispelling all reasonable scientific doubt as to the effects of the proposed works on

the conservation of the Otter in the river Barrow and River Nore SAC and the

Kingfisher in the River Nore SPA and failing to allow public participation for same;

and

• failing to carry out an Appropriate Assessment screening, properly or at all,

to assess, in view of best scientific knowledge, if the proposed development of 2

turbines, individually or in combination with another plan or project is likely to have

a significant effect on the Otter in the river Barrow and River Nore SAC and the

Kingfisher in the River Nore SPA; and

• failing to carry out an Appropriate Assessment Screening for other species

of birds which must be protected under Article 4 of the Birds Directive and which are

present in a significant manner in the River Nore SPA, namely the Mallard (Anas

platyrhynchos) and the Gray Heron (Ardea cinerea) even though that site was not

designated as an SPA for those other species, and this was contrary to Article 6(3)

of the Habitats Directive, read in the light of Article 4 of the Birds Directive; Further

particulars are set out in Part 2 below.”

48. The parties’ positions as recorded in the statement of case relating to this and core ground

5A are summarised as follows:

“Second proceedings: CORE GROUND 5/5A

Applicants’ Position

61. The Commission’s Decision is invalid because it contravenes the EIA Directive and

Article 6 of the Habitats Directive as transposed by s. 177U and s. 177V of the 2000 Act and

Article 4 of the EIA Directive as transposed by Part X of the 2000 Act, and the Aarhus

Convention and in accordance with the case law of the CJEU by:

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

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

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

the river Barrow and 8 River Nore SAC and the Kingfisher in the River Nore SPA and failing

to allow public participation for same; and

• failing to carry out an Appropriate Assessment screening, properly or at all, to assess, in

view of best scientific knowledge, if the proposed development of 2 turbines, individually or

in combination with another plan or project is likely to have a significant effect on the Otter

in the river Barrow and River Nore SAC and the Kingfisher in the River Nore SPA; and •

failing to carry out an Appropriate Assessment Screening for other species of birds which

must be protected under Article 4 of the Birds Directive and which are present in a significant

manner in the River Nore SPA, namely the Mallard (Anas platyrhynchos) and the Gray Heron

(Ardea cinerea) even though that site was not designated as an SPA for those other species,

and this was contrary to Article 6(3) of the Habitats Directive, read in the light of Article 4

of the Birds Directive.

62. The Commission’s Decision is invalid because it contravenes the EIA Directive by

failing to carry out any or any proper screening assessment or preliminary examination in

respect of the significant alterations to the proposed development and failing to record and

make available any such screening assessment in accordance with Article 4(5) of the EIA

Directive and in particular 4(5)(b) thereof in failing to state the main reasons for not

requiring such assessment with reference to the relevant criteria listed in Annex III, and/or

state any features of the project and/or measures envisaged to avoid or prevent what might

otherwise have been significant adverse effects on the environment.

The Commission’s Position

63. The Commission’s Decision is not invalid as alleged at Core Ground 5 or 5A. As

regards Core Ground 5, no actual breach of sections 177U and 177V of the 2000 Act or,

Article 4 of the EIA Directive or of the Aarhus Convention has been demonstrated at all by

the Applicants. The complaints made by the Applicants in this regard are without basis and

invoke the fallacy of reading the Commission’s Decision in the most erroneous way possible

and in a way that renders same invalid rather than valid, which is the incorrect approach to

reading same (McGowan [2025] IEHC 405 at §49(ii) and the case law cited; Eco Advocacy

[2025] IEHC 15 at 63(vii) and the case law cited). On removing the cloak of legal language,

as to the substance of what is contended at Core Ground 5, the Applicants’ merits-based

disagreement with the Commission’s conclusions in its assessment of the subject s.146B

request is not a basis for certiorari of the Commission’s Decision. Judicial review is not an

appeal on the merits and insofar as it concerns evaluative conclusions, the weight to be

given to the evidence is quintessentially a matter for the decision maker (McGowan [2025]

IEHC 405 at §49(i) and (iii) and the case law cited; Eco Advocacy [2025] IEHC 15 at 63(iv)

and (v) and the case law cited). Relevant to Core Ground 5, a factor that militates in favour

of same being dismissed is the uncontested expert affidavit evidence of Jonathon Dunne,

Associate Ornithologist of SLR Consulting (Ireland) Ltd filed by the Notice Party, which in

detail addresses, refutes and undermines the non-expert merits based complaints advanced

by the Applicant at Core Ground 5.

64. As regards stage 2 Appropriate Assessment (AA), there was no requirement for the

Commission to carry out one in the context of the impugned decision. The requirement for

stage 2 Appropriate Assessment (AA) was not triggered and such an AA was not required

nor carried out as part of the Commission’s decision on the subject s.146B request. At

section 6.3 of the Inspector’s Report (which report the Commission adopted – see item (v),

page 3 of the Commission’s Order) the Inspector carried out a stage 1 AA screening and

evidently determined that stage 2 AA was not required. The Applicants’ non-expert merits-

based disagreement and subjective assertion that Stage 2 AA was required is not a legitimate

ground of challenge to the Commission’s Decision. Further, the stage 1 AA screening that

the Commission completed in respect of the proposed development was carried out in

accordance with the requirements applicable to such assessments. The Commission’s

conclusions for stage 1 AA screening purposes were open to it based on the materials that

were before it. As regards AA screening, the Applicants have not demonstrated that the

evidence and materials that were before the Commission were so flawed on their face that

a reasonable expert would have objected to them. The non-expert complaints and merits-

based submissions of the Applicants (who are the litigants in this action and are not

independent) are not a basis for and do not establish any inadequacy or deficiency in the

stage 1 AA screening carried out by the Commission nor any inadequacy in any of the

supporting documentation before the Commission that was submitted by the Notice Party

as part of the subject s.146B request or the materials on file ABP 315365-22 which were

also considered. The Applicants have not pointed to any scientific evidence that in any way

impugns the validity or correctness of the Inspector’s Report or the Commission’s Decision

as regards the stage 1 AA screening that the Commission carried out.

65. The Applicants’ complaints regarding the Mallard and the Grey Heron are mere

assertion, are without substance and not established evidentially. The Commission refers

to the points made at §59 of its written submissions in the second proceedings in this regard.

66. As regards allegations regarding EIA screening, Core Ground 5 is based on a

misconception and/or mischaracterisation of the impugned decision. The procedure under

s.146B of the 2000 Act (see Friends of the Irish Environment [2019] IEHC 80 at §29-§30)

requires the Commission to consider a number of issues in sequence. Specifically, the

Commission must consider (i) whether the proposed alteration is a ‘material alteration’; and

(ii) if the alteration is a “material alteration”, then the Commission must consider whether it

is likely to have significant effects on the environment such as to trigger a requirement for

an EIA. The question of whether the proposed alteration is a ‘material alteration’ is a

threshold issue. Consistent with the statutory scheme, if alterations proposed in a request

under s.146B are non-material - which is what the Commission lawfully determined in this

case - then there is no requirement for any further assessment or public participation, and

the Commission is obliged to allow the proposed alteration per s.146B(3)(a). Furthermore,

section 6.0 the Inspector’s Report is headed ‘Assessment’ and contains an analysis of the

s.146B request in terms of consideration of the issue as to the materiality of the proposed

alterations, analysis of the proposed alterations by reference to environmental

considerations, including relevant matters for the purposes of the EIA Directive. The

Inspector and the Commission were lawfully satisfied that there were no additional

significant effects on the environment arising from the non-material proposed alterations.

67. As to Otters and Kingfishers, the Applicants have manifestly not demonstrated that

the evidence and materials that were before the Commission were so flawed on their face

that a reasonable expert would have objected to them. the complaint made is without

substance as potential impacts on Otters and Kingfisher were addressed in the materials

that were before the Commission (which materials the Commission and Inspector had regard

to). In this connection, in respect of both species it was determined that there was ‘no

potential’ for the proposed alterations to affect the previously described pathways for

impacts on the relevant European sites as assessed under ABP315365-22 (see e.g.,

Addendum to Appropriate Assessment Screening and Natura Impact Statement, prepared

by SLR Environmental Consulting (Ireland) Ltd, dated 27th May 2024, at section 4.0, Table

4-1, and sections 5.0 to 8.0 – which document the Inspector expressly considered and which

is expressly referred to at section 24 6.3 of the Inspector’s Report). The Commission in its

Decision clearly and can only be interpreted as having accepted the information and

conclusions reached in the Addendum to Appropriate Assessment Screening and Natura

Impact Statement.

68. For completeness, having regard to the materials that were before the Commission

and in the particular factual circumstances of this case, the complaint at Core Ground 5,

insofar as concerns the validity of the Commission’s Decision and the AA screening that the

Commission carried out, (and in these proceedings the uncontested expert affidavit evidence

of Jonathon Dunne, Associate Ornithologist of SLR Consulting (Ireland) Ltd filed by the Notice

Party), there is no reason to think that a different process would have resulted in a different

decision, in particular as regards Mallard and Grey Heron, and if there is an error (which is

denied) same is in the category of harmless error.

69. Insofar as the Applicants’ case is that the presence of the Mallard and Grey Heron

at the SPA qua presence in its own right or qua presence as a migratory species within the

meaning of Case C-66/23 required some difference in the manner and/or outcome of the

Commission’s assessments under the Habitats Directive, the Applicants simply have failed

to engage with the position adopted by the State Parties (and explained in its papers)

regarding the significance of such presence which is a complete answer to the Applicants’

case.

70. As regards Core Ground 5A, the Commission’s Decision is not invalid as alleged.

Core Ground 5A is formalistic and/or trivial and is not properly particularised. No particulars

are provided in relation to same, rather Core Ground 5A is merely repeated verbatim at §23

of E(Part 2) of the Amended Statement of Grounds. The pleading is clearly deficient in light

of the consistent and settled law regarding pleadings (see McGowan [2025] IEHC 405 at

§51(i) to (ix) and the case law cited). Core Ground 5A is based on a false premise as the

proposed alterations the subject matter of the s.146B request at issue do not compromise

‘significant alterations’ to the proposed development as the Applicants incorrectly assert and

there is no evidence (and there was none before the Commission) of ‘significant adverse

effects on the environment’ in relation to the proposed alterations the subject matter of the

s.146B request. In addition, Core Ground 5A is based a misconception and/or

mischaracterisation of the impugned decision. If, as is the case here, alterations proposed

in a request under s.146B are non-material, then there is no requirement for any further

assessment or public participation, and the Commission is obliged to allow the proposed

alteration per s.146B(3)(a).

Notice Party’s Position

71. Core Ground 5A is (again) based on a misconception and/or mischaracterisation of

the impugned decision. Where, as is the case here, alterations proposed in a request under

s.146B are non-material, then there is no requirement for any further assessment or public

participation, and the Commission is obliged to allow the proposed alteration per

s.146B(3)(a).”

49. On the first point, any complaint as to lacunae or lack of appropriate findings has to be

established evidentially – the applicants haven’t achieved that.

50. On the second point, the applicants are attempting to take particular wording out of context.

Taking the decision as a whole it is clear that the commission were aware of the correct test.

51. On the third sub-point the developer’s evidence establishes a lack of impact on Mallard (Anas

platyrhynchos) and the Gray Heron (Ardea cinerea). As the notice party submits, the whole point

must fail on a purely evidential basis. So arguments based on the judgment of 12 September 2024,

Elliniki Ornithologiki Etaireia v Ypourgos Esoterikon, C‑66/23, ECLI:EU:C:2024:733, simply don’t get

off the ground (to stick with an airborne metaphor) because they lack the necessary basis on the

facts – other bird species are not going to be affected.

52. Given that the whole understructure of the applicants’ ground here is based on

misconception as to the procedural rules of engagement, the onus of proof, and the factual situation,

it would be a waste of time and energy to elaborate further on the problems infecting this ground.

Core ground 5A – lack of EIA screening

53. Core ground 5A is:

“5A. The impugned decision is invalid because it contravenes the EIA Directive by failing

Failing to carry out any or any proper screening assessment or preliminary examination in

respect of the significant alterations to the proposed development and failing to record and

make available any such screening assessment in accordance with Article 4(5) of the EIA

Directive and in particular 4(5)(b) thereof in failing to state the main reasons for not

requiring such assessment with reference to the relevant criteria listed in Annex III, and/or

state any features of the project and/or measures envisaged to avoid or prevent what might

otherwise have been significant adverse effects on the environment”

54. The parties’ positions as recorded in the statement of case are summarised above under

core ground 5.

55. The answer on 5A for the purposes of this module is that the legislation is clear that the

commission’s power to seek EIA information only arises following a finding of materiality – see s.

146B(2) and (3) and discussion by Simons J. in Friends of the Irish Environment v. An Bord Pleanála

[2019] IEHC 80 (Unreported, High Court, 15 February 2019) at §§29-30. If that is invalid that is a

matter for the State to address in Module II. It doesn’t give rise to a basis to challenge the

commission’s application of the directive when the transposing legislation is clear.

Summary

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

(i) it is settled law that the onus of proof to show an error (such as materiality of an

amendment) is on an applicant, and it is clear from the express wording of s. 146B

of the 2000 Act that the test for requiring consideration of EIA of an amendment is

such materiality;

(ii) applying such law to the facts here, the applicants have failed to discharge that

onus;

(iii) it is settled law that the rationale and considerations of a decision do not need to be

stated in the decision document itself – they can be stated anywhere from where

such reasoning can be inferred, but that most certainly includes documents referred

to in the decision document;

(iv) applying such law to the facts here, the amendment decision referred to the original

decision which in turn refers to the 2006 guidelines, so the applicants have not

overcome the onus of proof to show that the 2006 guidelines were not considered;

(v) it is settled law that the bringing of proceedings does not in itself act as a stay on

administrative action, so consequently it cannot freeze a public body’s powers and

render them ineffective, something now expressly recognised in the context of the

commission’s power to amend a decision by O. 103 r. 24 RSC;

(vi) applying such law to the facts here, the commission’s exercise of its statutory power

to correct a decision under challenge was not unlawful on grounds of objective bias;

(vii) it is settled law that any complaint as to lacunae or lack of appropriate findings in

an EU law assessment has to be established evidentially;

(viii) applying such law to the facts here, the applicants have failed to discharge that

onus;

(ix) it is clear from the express terms of s. 146B of the 2000 Act that the commission as

a statutory entity is subject to a provision that its power to seek EIA information

only arises following a finding of materiality; and

(x) applying such law to the facts here, the applicants’ complaint is properly against the

legislation and not against a statutory body giving effect to such legislation, and thus

is a complaint that will be dealt with in Module II as against the State.

Outstanding issues

57. For clarity, the position regarding the extent of disposition of the issues as of now is as

follows:

(i) core ground 1 – dismissed in this judgment;

(ii) core ground 2 – withdrawn by applicants (confirmed in applicants’ written

submissions);

(iii) core ground 3 – dismissed in this judgment;

(iv) core ground 4 – dismissed in this judgment;

(v) core ground 5 – dismissed in this judgment;

(vi) core ground 5A – dismissed in this judgment (on the basis that any complaint

properly comes within core ground 7 as against the State);

(vii) core ground 6 – failure to establish conservation objectives - modularised to Module

II; and

(viii) core ground 7 – invalidity of s. 146B – modularised to Module II.

Costs

58. The discussion in the No. I case judgment can be taken to apply here also.

Order

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

(i) the proceedings be dismissed insofar as concerns Module I (all core grounds other

than 6 and 7);

(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.