High Court declares planning permission invalid for missing public notice but allows it due to future remedial phase.

THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 608

RECORD NO. 2019/297JR

BETWEEN

NORTH WESTMEATH TURBINE ACTION GROUP

AND

NORTH WESTMEATH TURBINE ACTION GROUP LIMITED BY GUARANTEE

APPLICANTS

AND

AN BORD PLEANÁLA

AND

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

WESTMEATH COUNTY COUNCIL, COOLE WINDFFARM LIMITED AND

GREENWIRE LIMITED AND GREENWIRE WINDFARMS LIMITED

NOTICE PARTIES

JUDGMENT of Mr. Justice Quinn delivered on the 10th day of November 2025 (Form of Order and Relief)

1. In these proceedings and in a related case (Sweetman v. An Bord Pleanála & Ors. 2019/305JR) the applicants sought declarations that in granting planning permission for a 13 turbine windfarm located near the village of Coole, County Westmeath, and associated works the first named respondent failed to carry out an environmental impact assessment in accordance with the requirements of Council Directive 2014/52/EU (the EIA Directive) as transposed into Irish law, and a declaration that the proposed development was not validly assessed in accordance with the requirements of Council Directive 92/43/EEC as transposed (the Habitats Directive). The applicants sought also an order of certiorari quashing the decision of the first named respondent to grant planning permission for the development.

2. The applicants advanced the claims under a series of grounds referable to the Planning and Development Act 2000, the Planning and Development Regulations 2001, the EIA Directive and the Habitats Directive.

3. The applicants pursued their claim under 19 separate grounds. In the related proceedings Mr. Sweetman identified 8 grounds. There was much overlap between the grounds relied on by the applicants in the separate proceedings. On 16 June 2025 this Court delivered its judgment ([2025] IEHC 367). The application of Mr. Sweetman was dismissed entirely. The applicants’ grounds were all dismissed except for one, which I found to be fundamental.

4. The ground on which the applicants succeeded was that the environmental impact assessment (“EIA”) made by the first named respondent, and which under the EIA Directive must be performed before planning permission can be granted for a project of this nature and scale was defective in that the requirement to give public notice of the environmental impact assessment of the project was not complied with.

5. The detail of my reasoning for this conclusion is in Part 12 (6) of the judgment (paras.

505 to 599). The conclusion is stated in summary form also in Part 1 (paras. 10 to 12 and Part

14 (paras. 904 to 907).

6. The defect in the assessment arose as follows. Firstly, as a matter of Irish law, environmental impact assessment of a windfarm project must, if it is to be valid, be an assessment of the integrated single project which comprises a first phase namely the windfarm and immediately associated works, and a second phase which is the works to connect it to the national power grid. Without a grid connection the windfarm can never be functional. Any EIA which does not assess all these works as one offends the well-established rule against project splitting as it applies to wind farm projects in Ireland. See O’Grianna v. An Bord Pleanála & Ors. [2014] IEHC 632.

7. Secondly in this case the developer, being the second named notice party, recognising this rule, submitted an environmental impact assessment report, and the respondent in its EIA all treated the obligation to make such an assessment of the project as extending to the entire project including the grid connection.

8. Thirdly, environmental impact assessment is a process comprising a series of steps, one of which is the giving of public notice (Article 6.2 of the Directive and s. 171 (A) of the Act).

9. The published notices in this case described in detail the works at the windfarm itself, being construction of turbines, on-site electrical substations, a construction compound, underground and electrical and communications cabling connecting the turbines to the on-site station, new site access roads and upgrade of existing access roads and associated drainage. These works were all to be located within five townlands namely Coole, Monktown, Camagh, Doon and Clonsura.

10. The notice referred also to a proposed borrow pit to be located in a different town land at Mullagh, and the construction of a new link road between two regional roads at another location to facilitate turbine delivery. Finally, the notice referred to junction improvement works at two other locations in the separate townlands of Joanstown and Boherquill.

11. The environmental impact assessment report submitted by the notice party and the assessment undertaken by the respondent’s Inspector each considered in detail the works referred to above and the grid connection works, extending over a 26 km route through 21 townlands. But the notices published, having taken the care to identify not only the windfarm site works and works at four other locations, over 8 townlands, made no reference to the grid connection works over 21 townlands, through 21 kilometres. They therefore did not meet the requirement in Art. 6.2. to give public notice of the entire of the integrated project, per O’Grianna, being assessed.

12. This omission may have arisen from the fact that planning permission was applied for only in respect of the wind farm site and immediately associated works. But for the purpose of environmental impact assessment, which requires the giving of public notice, the grid connection and references to its location were no less relevant than the references either to the wind farm itself or the various separate works including the borrow pit and junction improvement works all at various locations separated from the windfarm turbine site itself.

13. Fifthly, the State having elected, as the EIA Directive contemplates, to incorporate compliance with the EIA Directive by utilising the processes and procedures to be followed for planning permission pursuant to the Act, that single process, including the giving of public notice, serves the dual purpose of compliance with domestic planning laws and the requirements of the Directive. No other or different notice of the EIA is required to be or was given in this case.

14. I therefore concluded that since the notice omitted any reference to the grid connection or its location, it did not comply with the requirements of the Directive. In its essence, this is the combined effect of Article 6.2 of the Directive, s. 171 (A) of the Act as amended, article 17 of the Planning and Development Regulations 2001 and O’Grianna.

Relief

15. At the conclusion of my judgment I stated that the consequence of my finding was that there would be a declaration that the assessment did not comply with the EIA Directive and that the respondent lacked jurisdiction to grant planning permission for the project, and I would grant an order of certiorari of the decision.

16. I stated also that I would hear the parties as to the form of the order and as to costs and any other matters arising.

17. When the matter was listed for mention to hear the parties as to the form of order and as to costs and any other matters, I was informed that the first respondent and the second notice party intended to apply for a certificate of leave to appeal pursuant to section 50 A (7) of the Act as amended.

18. The respondent and the notice party also stated that before moving to that stage it wished to address the court as to the form of the order. It submitted that, without prejudice to its intended application for an appeal certificate, the order following the judgment should take the form of a declaration only and not also an order of certiorari of the grant of planning permission. The form of the declaration sought in the Notice of Motion and which would follow my findings is a declaration that the respondent failed to carry out an environmental impact assessment in accordance with the obligations contained in the EIA Directive.

19. The Board stated that it supports the notice party in this application, again without prejudice to its intended application for a certificate for leave to appeal.

20. The applicants oppose this application and I have now heard submissions by all parties.

21. Arising from the submissions three questions now fall for a decision. Firstly, whether having regard to the terms of the judgment already delivered I have jurisdiction now to revisit the form of relief. Secondly, whether it is appropriate in the circumstances of this case to revisit this question. Thirdly, if the first two questions are answered affirmatively, whether to grant certiorari or limit the relief to a declaration.

Jurisdiction

22. The applicants say that in my judgment I have already stated my conclusion that an order of certiorari must follow from the findings made in the judgment. That is correct. In para. 18 I stated the following: “As the giving of such notice is a prerequisite to a valid environmental impact assessment, which is mandatory before making the decision to grant or refuse permission, the Board had no jurisdiction to grant permission and the decision must be quashed”. “20. Between the two cases, the only ground in which either of the applicants succeed is the Action Groups claim that the requirement in the EIA Directive for public notice of the environmental impact assessment of the project was not complied with. This is a fundamental requirement and the consequence of the finding must be a declaration that the decision of the Board failed to comply with EIA Directive, and an order of certiorari of the decision.”

23. In para. 599: “For these reasons I conclude that the grounds stated by the Action Group in paragraphs E10, 11 and 12 (and E13 insofar as it cites the absence of public notice) have been made out. Therefore, the relief sought in paras. D1 and D2 must be granted, and the decision of the Board quashed.”

“905. An EIA which complies in every respect with the EIA Directive is mandatory before planning permission can be given for such a project, and therefore the court has no discretion.” “906. There will be a declaration that by reason of the respondents’ failure to inform the public of the environmental impact assessment of the project, as required by Article

6 of Council Directive 2014/52/EU, the assessment did not comply with the Directive and the respondent lacked jurisdiction to grant planning permission for the project, and an order of certiorari of the decision made on 26 March 2019.”

24. The applicants also submit that certiorari should follow since the court has considered the gravity of the defect in the notice when stating in para. 597 the following: “The requirement to give public notice of the assessment is not a mere formality, or an academic or cosmetic exercise in democracy. It goes to the very validity of the process. There are good reasons for the requirement. The decision maker performing an EIA is required by the Directive to be informed not only by his own expertise, by the expertise of the developers professional experts, and the expertise and submissions of statutory consultees but also to have the benefit of observations by members of the public. No matter how professional expert or comprehensive are the reports and other information submitted, or how skilled the authors and readers of such reports are, if the assessing authority is deprived of the possibility of submissions by the public its assessment is made without the benefit of contributions by persons having direct knowledge of the location of the project and likely to be most directly affected. This is why public consultation is at the heart of the Directive. Therefore, an assessment process of which the public have not been notified, does not comply with the Directive.”

25. The applicants submit that since these are reasoned conclusions of the court, it is not now open to this Court to revisit them.

26. The notice party submits that in a case where no final order has been made and, as here, where the court has stated that it would hear the parties as to the form of order, I have jurisdiction to now hear submissions and consider whether or not to limit the relief to a declaration without making an order of certiorari.

27. The applicants submit that this is a more substantive question than merely the “form of the order”. They say that this invitation at the conclusion of the judgment is typically intended to refer to any finer points of detail to be contained in an order and any consequential orders. They submit that the notice party is now inviting the court to reopen a substantial question already decided and recorded in the judgment. They submit that if the court were to alter its decision on this question this would offend all the principles and objectives of finality in litigation.

28. The notice party submits that this Court has an untrammelled jurisdiction to change its mind in relation to the final disposition of proceedings up to the time of perfection of the order in the proceedings. It relies on the judgment of the Supreme Court in Nash v. The Director of Public Prosecutions [2015] IESC 32, Lavery v. The Director of Public Prosecutions [2018] IEHC 185, citing with approval Re L. (2013 1 WLR 634) and HKR Middle East Architects Engineering LLC and Ors. v. English [2021] IEHC 376.

29. The parties referred me also to the judgment of Clarke J. (as he then was) in re McInerney Homes Limited [2011] IEHC 25. Clarke J. made it clear that a judge has jurisdiction to revisit the contents of a judgment but emphasised that there must be “strong reasons” for so doing. In that case the strong reasons were that new information had come to light after the delivery of the judgment and before the final orders were made, and the court decided that the balance of justice required that the matter be reopened.

30. There is therefore clear authority for the proposition that it is open to the court to revisit its judgment before the making of final orders, and particularly, as here where the court had invited the parties to make submissions before final orders were made.

31. The applicants sought to characterise the application now made by the notice party as a “Greendale” application. (See Re Greendale Developments Limited (In Liquidation) 2000 2 IR 514). The “Greendale” line of authority relates to cases where the court has not only delivered its judgment but where a final order has been made. This is no such case. Not only has no final order had been made, but I stated in the judgment that I would hear the parties before making the final order.

32. It is clear from all of these authorities that the court has jurisdiction to consider now the form of relief to be granted. Is it appropriate in this case to reopen the question of relief?

33. For all of the detail and analysis in the first judgment, which ran to 907 paragraphs over

274 pages, it contains no reasoned examination of whether an order of certiorari, as distinct from the more limited relief of a declaration, is appropriate necessary or proportionate.

34. In para. 905 I stated that “the court has no discretion”. Elsewhere I say that the requirement for public notice is “fundamental and that the consequence must be a declaration and an order of certiorari.

35. The applicants say that at the hearing of the action the respondents and the notice parties had submitted that even if the court were to find that grounds advanced by the applicants were made out the court should exercise its discretion to refuse to order certiorari. They say that the notice party is now seeking to revisit that issue and improve or expand on its submissions “after the final whistle has blown”.

36. The applicants also submit that even if this question had not been addressed or submissions made on the question by the notice party at the hearing the effect of the rule in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 is that it is not open to the notice party now to advance submissions on this question having failed to do so in the hearing.

37. The important question of the form of a relief was not the subject of any submissions or debate at the original hearing. In as much as any reference was made by the notice party to the exercise of a discretion to decline certiorari, the judgment contains no analysis of that question or reasoned conclusion as to how any such discretion should be exercised.

38. The notice party submits that whatever about the extent or otherwise of references to discretion at the hearing, which was limited, parties are entitled to make submissions as to the appropriate relief or remedy after the court has delivered its reasoned judgment on the merits of the case. They say that a submission on the form of relief will be informed by the substance of the judgment itself. In this case the court, in the first judgment, after reaching its conclusions on the EIA moved on to state that it would grant certiorari without having heard any submissions as to the form of relief. This deprived the notice party of the opportunity to be heard on that subject by making submissions informed by the judgment itself.

39. I accept this submission. At paras. 20 and 905 I stated that certiorari should follow my conclusions. I did so without having heard submissions as to this question, much less submissions informed by the substance of the reserved judgment.

40. As O’Donnell J. (as he then was) said in Nash the jurisdiction to alter a decision prior to the making of a final order is well-established. He also said “the obligation to do justice fairly, and without fear or favour, which guided the judge to give the original judgment, should extend to a willingness to acknowledge error if justice should require it.” A fair and just outcome to this case will not be achieved if I were now to decline to consider submissions not only as to the mere wording of the order, but on the very important question of the form of relief. The error I made was to state a conclusion on this question before hearing submissions on the point informed by the substantive judgment. Accordingly, it is appropriate to consider the form of relief and the submission by the notice party that the court should exercise its discretion to refuse certiorari.

Discretion and harmless error

41. I was referred to three cases concerning public notification requirements where the court refused certiorari, and limited the relief to declarations, namely Save Cork City Community Association v An Bord Pleanála [2021] IEHC 509, Grafton Group plc v An Bord Pleanála [2023] IEHC 725 and Clifford & Sweetman v An Bord Pleanála (No. 3) [2022] IEHC

474. Each of those cases related to failures to comply with the letter of regulations relating to public access to application documents, or the use of different websites from those prescribed by regulations. They did not arise from a total omission to give public notice of an EIA, such as occurred in this case, and are of limited assistance.

42. There is nonetheless ample authority for the proposition that even in a case where the court finds that the applicant's case is made out in judicial review, the court has a discretion as to the form of remedy and in particular a discretion as to whether or not to grant an order of certiorari. See Kelly v. Minister for Agriculture [2021] IESC 62, Doyle v. An Bord Pleanála [2025] IEHC 158, Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 and Carrownagowan Concern Group v. An Bord Pleanála (No. 3) [2024] IEHC 549.

43. The two principal cases relied on to advance a “harmless error doctrine” were ‘Doyle’ and ‘Carrownagowan’.

44. Doyle related to an application for planning permission for a data centre. The original EIAR examined buildings proposed to be removed, and identified which buildings did and which did not have bat roosts, including buildings referenced as 6 A to C.

45. A revised EIAR in that case was submitted, which included an updated survey identifying a Leisler’s bat roost in Building 6C for one bat.

46. The original EIAR and a consolidated EIAR following the submission of the revised EAR made a conclusion as follows “considering the elements included within the design of the proposed development and the implementation of the mitigation measures proposed to the EIAR and the associated planning application documents to avoid or minimise the effects of the proposed development on the receiving environment, no likely significant residual effects on biodiversity are predicted.”

47. It was conceded by the Board that the Inspector in his consolidated report had overlooked the fact that a revised EIAR had referred to the existence of a single Leisler’s bat roosting in building 6C which would be removed as part of the development.

48. The court was persuaded that the overall examination of effects on bat fauna was comprehensive. In particular the court noted that bat behaviour involves frequent roost swapping and bat surveys were not confined to established roots. Therefore, the court found that the omission of a reference to one particular roost by the Inspector did not affect the overall

conclusion of “no likely significant residual negative effects”. In substance the Board had considered the destruction of actual and potential bat roosts and provided for mitigation measures envisaging bat mobility as between roosts. The mistake by the Inspector in omitting the reference to one roost for one bat in building 6C was not fundamental “given the precautionary nature of the approach taken”. The court also concluded in that case that “reasonable doubt as to whether the actual outcome would have been different without the error has been excluded”.

49. The error identified in that case was the omission of a reference in one part of the Inspectors report to one roosting location for one Leisler bat, which the court considered was a harmless error in the context of the extensive examination of bat roostings and that the outcome would have been no different if the error had not occurred.

50. Carrownagowan related to a windfarm project and it emerged that the Inspector, whose recommendations were followed by the Board, had made an error in his report addressing the question of hydrological connection between the proposed site and a special area of protection (SPA Lough Derg-Shannon). It emerged in the evidence that there was an inconsistency between the description of hydrological connections between the site and Lough Derg as between the environmental impact assessment report submitted and the screening undertaken for appropriate assessment. It was found that in fact there was a “pathway” between the site and the SPA. Therefore the reference by the Inspector to the absence of a hydrological connection was an error.

51. The evidence before the court was that there was extensive examination of the potential for any impact to occur on the SPA. A hydrological pathway existed between a small section of the development site at its entrance and Lough Derg SPA. But the Inspector had found that “the actual potential for any impact to occur at Lough Derg was limited (and in practice approaches zero) by distance, by the nature of the intermediate watercourses (being depositing rivers), by the scale and nature of the works proposed within the catchment, by the significant hydraulic and dilution buffer that occurs within Lough O'Grady and by the very significant dilution and attenuation potential available from the wider contributing catchment that also flows to Lough Derg via the Grainey/Scariff river”.

52. Evidence was adduced by the developer that due to the limited development at the part of the proposed development site which drains towards Lough Derg, this did “not alter the

conclusion at 7.7 of the screening for appropriate assessment that the potential for significant effects on the Lough Derg (Shannon) SPA can be excluded at screening stage”. This evidence had not been challenged by the applicants. The court found that any arguments made by the applicants had been taken account.

53. The court found, in reciting the absence of any hydrological connection, the Inspectors had erred but on the evidence this was immaterial. The error made no difference to the

conclusion arrived at by the Board and the erroneous reference to the absence of a hydrological connection was a harmless error.

54. Again, in that case it is clear that there had been a comprehensive examination of the pathways and potential effects of the works on the development site on the relevant SPA, and the uncontested evidence was that the erroneous reference in one part of his report by the Inspector to the absence of a hydrological connection made no difference. This is an error of an entirely different order to the error identified in the case before me.

55. In Doyle, Humphreys J. summarised the law in relation to harmless error as follows:

(i) A decision should not be quashed for error (including in application of EU law) if the error was harmless. …it would trivialise judicial review and be an exercise in self-indulgence to quash decisions because of findings that make no difference, in the absence of a mandatory provision that compels such an approach.

(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.

(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 a 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.

(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.

(v) The determination of whether a particular error would have made a difference must also be carried 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.

(vi) The question of whether public participation was materially compromised is also relevant (See Altrip, discussed below).

(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. After the event assessment which would allow a permission to stand should only be permitted in exceptional circumstances.

(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 it is not fully at large.

56. In both Doyle and Carrownagowan the court was in a position to embark on a granular examination of the totality of the evidence which was before the Board and the Inspector and became satisfied that the error concerned was not only minor and trivial, but also one which clearly could not have affected the outcome. This is in contrast with the present case where the error identified is not minor.

57. In Gemeinde Altrip and others v. Rheinland–Pfalz (case C – 72/12) the court was concerned with the question of whether the outcome of a contested decision would have been different were it not for the procedural defect invoked by the applicant. The court stated at para. 53: “The new requirements arising under article 10(a) of that Directive (Directive 85/337 EEC on environmental impact assessment) mean that 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 document submitted to that court or body, that the contested decision would not have been different without the procedural defect invoked by the applicant.”

54. “ In the making of that assessment it is for the court of law or body concerned to take into account, inter alia, the seriousness of the defect invoked and to ascertain, in particular whether that defect has deprived the public concerned of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in

decision-making in accordance with the objectives of Directive 85/337.”

58. At para. 57: “Article 10 A of Directive 85/337 must be interpreted as not precluding national courts from refusing to recognise impairment of a right within the meaning of that article if it is established that it is conceivable having regard to the circumstances of the case, that the contested decision would not have been different without the procedural defect invoked by the applicant.”

59. The notice party cited Altrip as authority for a proposition that a defect going to the validity or efficacy of public notice can be a harmless error. That is correct, but it is clear from the judgment that particular care must be applied where the error relates to public participation.

60. The proposition advanced by the notice party by reference to Altrip requires this Court to speculate as to whether any persons other than those who made observations or submissions initially to the planning authority and later to the Board, would have made submissions or observations, to speculate as to the content of those observations, and ultimately to speculate as to the conclusions which the Inspector and the Board would make having considered those observations.

61. The notice party posits a reversed description of this speculative exercise, submitting that the court must find that there has been a “harmless error” unless it was found that there was a reasonable possibility that third parties were in fact unaware of the grid connection route, that they would have raised material issues and that they were in fact incapable of making their submissions in the context of the future application for the grid connection, which they say would include any submissions relevant to the overall project.

62. I have already found that by reason of the failure to give public notice of the fact that an environmental impact assessment of the grid connection works was being undertaken as part of the EIA of the windfarm and related works, no member of the public, however interested either in this particular project, or in environmental matters generally and no matter how astute or interested a reader of such notices would be, would have had any reason to be on notice that works spanning 26 km and 21 townlands in addition to those already specified in the notice were to be undertaken.

63. The uncontradicted evidence before the court, in an affidavit sworn by Miss Pilkington on behalf of the applicants and put into evidence at the hearing was that landowners, through whose lands the grid connection cable would be routed, were not aware of the application.

64. The doctrine of “harmless error” as described by Humphreys J. in ‘Doyle’ and as the notice party applies it in this case is rooted in a number of pillars.

65. Firstly, it is said that no prejudice has been caused to any of the applicants in the case. They were on notice of the assessment and made submissions to the planning authority and An Comisiún, and of course initiated these proceedings. That does not mean that no prejudice has been caused to other persons who may be interested in the effects of the proposed development, including those who may be affected by the grid connection, or other members of the public interested in such matters. Such persons had, as I explained in the first judgment, no reason, even if reading such notices with care, to believe that any works were proposed outside the windfarm site itself and the five identified townlands beyond it.

66. Secondly the notice party submits that the result of the environmental impact assessment, and the decision of the Board would have been no different if public notice identifying all the works being assessed and their locations were given and other parties had the opportunity to make submissions. This relies on the fact that 112 submissions were received by the planning authority originally and a further 37 observations made when the matter was appealed to the respondent. It is said that many of the objections raised issues in relation to the grid connection, and that this in turn led to an in-depth examination of the grid connection as part of the respondent’s assessment.

67. Thirdly, it is said in respect of any other parties who might ever be affected by or prejudiced by the decision, that they will have an opportunity to make submissions in respect of the overall project when an application is made for planning permission for the grid connection. In submissions the court was informed that no construction of the windfarm has commenced or will commence unless and until the grid connection is granted permission. It is said that persons who may not have had reason from the notice published to believe that any part of the works may have affected them, including persons living or owning land on or adjacent to the 26 km route of the proposed grid connection, will then have an opportunity to make observations or submissions in relation to the overall project. I emphasise the word “overall”, and this point is made three times in the notice party’s legal submissions on this issue (paras. 23, 50(f) and 51(iii)). This is a compelling submission, and I return to it at paragraph

72 et seq below.

68. The notice party then expands on what it describes as “context”. In doing so, and with reference to the first judgment it says “it is significant that the identified failure to identify the townlands through which the proposed future grid connection will run is, therefore, classically a procedural or technical failure. It does not relate to a failure by the developer or the Commission to assess a substantive environmental impact. There is no lacuna in the assessment. Rather the identified failure relates to a concern over the exact parameters of the public notices”.

69. This submission is fundamentally misconceived. The failure to give public notice of the fact that an EIA was being undertaken of a windfarm project which, for EIA purposes included 26 kilometres of grid connection works through 21 onwards was total. It was not therefore “procedural or technical”. Nor can it be said that this did not affect the “substantive environmental impact”. It is true that this Court found that the analysis by the Inspector and the respondent of the contents of the EIAR and the AA, which included the grid connection, were in themselves comprehensive and I rejected the submissions in relation to its content. However insofar as it is suggested that there is “no lacuna in the assessment”, there is of course the serious lacuna that the step required by the Directive of public notification of the assessment was not taken and therefore the assessment did not comply with the Directive in every respect, as Peart J. described the requirement in O’Grianna. Nor did the judgment arise from a “concern over the exact parameters of the public notices”. There was no doubt or concern about the parameters of the notice. It was very precise, describing extensive works and listing townlands, and excluded any reference to the grid connection works or their location.

70. Because of the unitary process adopted by the State to comply with domestic planning regulations and the EIA Directive, the same notice is utilised for both purposes. This notice complied only with the regulations relevant to the parts of the project for which an application had been made for planning permission, but not with the Directive whose requirements applied to the integrated project (O’Grianna).

71. Taking all of this into account I cannot conclude that the result would have been no different if the failure to give public notice of the assessment of the grid connection works and their route had not occurred.

Phase Two

72. The notice party confirmed in its written submissions that no works on the windfarm or any of the associated works have been commenced or will be commenced unless and until planning permission for the grid connection is secured. They make it clear (paras. 25, 50(f) and 51(iii)) that they recognise that when it comes to a planning application for the grid connection, entailing public notices and opportunities for observations and submissions, persons will have the opportunity to make any observations they wish in relation to the “overall project in the context of a necessary further application for planning permission for the grid connection”. The overall project is of course both phases, namely the windfarm, the ancillary works at or close to the windfarm site and the grid connection works. Therefore, the environmental impact assessment which will be undertaken at that stage will be an assessment of the entire project.

73. Every person, whether they be parties to these proceedings or others who wish to do so following the publication of a valid and complete notice in relation to the project as a whole, will have an opportunity to make submissions not limited, as the notice party confirms, to the grid connection, but extending to the windfarm itself and associated works. This is an inexorable consequence of O’Grianna since neither phase can be validly assessed in isolation from the other.

74. The notice party therefore now submits that not only are the applicants not prejudiced because they have had their opportunity to make submissions on phase one, but no other person either affected or potentially affected, including any person who had no reason to read the original notice, will be prejudiced because they will have the opportunity to make submissions and observations on the overall project.

75. Since the application in relation to the grid connection must be accompanied by an environmental impact assessment statement and, following O’Grianna, the assessment which must be undertaken will relate not only to the grid connection but to the entire project, and since parties will have the opportunity to make observations and submissions on that entire project, then the harm occasioned by the failure to give notice of the original application will be remedied.

76. I cannot prescribe or speculate as to how the planning authority or An Coimisiún would conduct or perform their assessment when an application is made for phase two. But since the notice party has confirmed to this court that no works will commence unless and until planning permission is granted for the grid connection, the opportunity for all persons to make observations, both the applicants and others who might otherwise have been prejudiced by the failure to give notice in phase one, is not a mere possibility but inevitable.

77. If the result of that assessment is a decision that the environmental impact of the project as a whole is such that planning permission should be refused then of course no prejudice will have been suffered by the applicants or others. If the result is to grant permission, then this can only occur after a full assessment of the integrated project, compliant with the Directive in every respect including the requirement to give full public notice of the project, has been made. Again, no person will suffer prejudice for want of a valid public notice.

78. There remains the legal infirmity of the original planning permission, as found in the first judgment. But, uniquely, any prejudice which could conceivably be suffered either by the applicants or by any other persons, is remedied by the circumstance that the overall project will be assessed for environmental impacts, that assessment including on the next occasion public notices which comply with the Directive and with O’Grianna. On either result of the phase two application, the interests of both the applicants and other parties who may be either affected by the proposed project or may otherwise have a sufficient interest to make submissions, will be respected and safeguarded. Harm is therefore avoided, and it would be disproportionate and artificial to quash the planning permission already granted. Whose failure?

The respondent has referred me to the text of para. 906 of the first judgment in which I stated that a declaration be made “by reason of the respondent’s failure to inform the public of the environmental impact assessment of the project as required by Council Directive 2014/52/EU” (emphasis added). The respondent has properly pointed out that the obligation to give notice to the public of the environmental impact assessment of the project was the obligation of the developer, in this case the notice party. That is correct. The failure to publish a valid notice was not a failure on the part of the respondent, but a failure on the part of the developer. The error of the respondent was to purport to conduct and complete the environmental impact assessment where valid public had not been given. Therefore, the record will be corrected by the deletion in the phrase I quoted above in para. 906 of the word “respondents” so that paragraph 906 will now read as follows: “There will be a declaration that by reason of the failure to inform the public of the environmental impact assessment of the project, as required by article 6 of the Council Directive 2014/52/EU, the assessment did not comply with the Directive and the respondent lacked jurisdiction to grant planning permission for the project”.

Conclusion

79. In O'Grianna the court remitted the application to the Board. No party has submitted that I should now remit in this case. It follows from the analysis above that no purpose would be served by doing so.

80. It is something of a curiosity that the planning permission, while declared to be in breach of the public participation requirement of the EIA Directive, should be saved from certiorari by the particular circumstance that none of the windfarm works will be undertaken unless and until planning permission for phase two has been granted, and that can only occur after a process which, once conducted validly, renders harmless the error which occurred in this case. However, that is the consequence of what has occurred and of applying O’Grianna. I am persuaded that certiorari is not warranted and I shall limit the order to declaratory relief.