High Court dismisses planning appeal, ruling Commission's decision fell within evaluative judgement zone.

[2025] IEHC 632

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2023.0000282]

BETWEEN

OXIGEN ENVIRONMENTAL UNLIMITED COMPANY

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

LOUTH COUNTY COUNCIL

NOTICE PARTY

Date of impugned decision: 26 January 2023

Date proceedings commenced: 22 March 2023

Date of main hearing: 23 October 2025

Date draft judgment circulated: 7 November 2025

JUDGMENT of Humphreys J. delivered on Wednesday the 19th day of November 2025

1. The council’s planning department, the council’s chief executive, the commission’s inspector

and the commission itself all declined to favour the development of a large waste facility functioning

round the clock and involving noise impacts and smell emissions of the most offensive category at

an unserviced rural site only 70 m from the nearest existing residential dwelling. The disappointed

applicant for permission now turns to the court for a fifth opinion, but the central issue is whether

the commission is correct in its oral submission that “this case screams merits disagreement”.

Geographical context

2. The proposed development (https://www.pleanala.ie/en-ie/case/310829) is a waste

recovery and recycling facility on lands located at Ardee Road, Carnabreagh, Dundalk, Co. Louth. It

involves recovery and recycling of municipal solid waste, comprising a processing building, ancillary

administration building, gated vehicular access off the L3168, and an internal access road with two

weighbridges, ESB substation, fuel storage, two underground tanks, underground drainage including

underground tank, 33 car parking spaces, 10 bicycle parking spaces, photovoltaic panels on the roof

of processing building, security cameras, lighting, boundary fence and mounding on southern

boundary, all associated landscaping and site works. An environmental impact assessment report

(EIAR) and Natura impact statement (NIS) were prepared in respect of the proposed development.

The proposed development would require an industrial emissions licence from the Environment

Protection Agency (EPA).

Facts

3. The applicant made a planning application to the Louth County Council (planning reg. ref.

21/486) for the proposed waste facility on 29 April 2021. The application documentation included

an EIAR.

4. Submissions and observations were made to the council on the proposed waste facility

including from the council’s environment department.

5. The council’s planning report was then prepared, dated 18 June 2021, together with an

addendum to same, which recommended that permission be refused for five reasons.

6. The council issued its refusal decision, dated 18 June 2021. The applicant appealed to the

commission.

7. A significant number of observations were made in relation to the appeal, including from the

council and local residents.

8. The commission’s inspector prepared a report, dated 8 November 2022, on the appeal and

recommended that permission be refused for stated reasons.

9. The applicant’s submissions at para. 3 complain that the inspector previously worked for the

council, but very sensibly the applicant withdrew that issue in oral submissions. Even if it had been

a pleaded issue it would have been without substance because the mere fact of previously working

for a local authority concerned would not, without considerably more, give rise to an apprehension

of conflict/bias in the mind of a reasonable, well-informed and not-unduly-sensitive person. People

generally leave their previous affiliations at the door when they take on a new role, and a reasonable

person would expect and accept that. In fact that is a surprisingly easy exercise, and the passage

of time makes it even easier.

10. The commission direction was made on 23 January 2023 (BD-011673-23) (ABP-310829-

21).

11. The commission order (ABP-310829-21) was made on 26 January 2023 to refuse permission,

on appeal, pursuant to inter alia s. 37 of the Planning and Development Act 2000 (the 2000 Act) for

the development of a waste recovery and recycling facility on lands located at Ardee Road,

Carnabreagh, Dundalk, Co. Louth.

Procedural history

12. The applicant filed its pleadings on 22 March 2023, and the matter was opened before

Meenan J. in the judicial review list.

13. On 17 April 2023, the matter was listed for mention in the predecessor to the Planning &

Environment Court List. I directed that the applicant needed to issue a motion to admit to the list

within two weeks and granted the residents’ association access to ShareFile to allow them to consider

participation, which they decided not to avail of.

14. The matter was listed for mention on 22 May 2023, and the applicant indicated that the

motion to admit was ready to issue by 5 June 2023, returnable for 12 June 2023.

15. On 12 June 2023, the matter was listed for mention with a view to admission and

amendment of pleadings.

16. On 3 July 2023, the matter was listed for mention and admitted to the List. It was then

adjourned for one week for a properly amended statement of grounds.

17. On 10 July 2023, the matter was adjourned further for a week as the applicant’s files were

not in the correct format.

18. On 17 July 2023, the matter was again adjourned for one week, as the files in PDF format

were not opening and the word document was not tracked.

19. On 24 July 2023, I granted leave. The applicant was directed to file the amended statement

of grounds with proper underlining and strikethrough, and the council was added as a notice party.

20. The applicant prepared an amended statement of grounds, dated 31 July 2023.

21. The matter was listed for mention on 9 October 2023.

22. The commission filed its opposition papers on 25 March 2024.

23. The notice party is not participating in the proceedings.

24. The matter was listed for mention on 8 April 2024, continued directions were agreed and

the matter was adjourned to the List to Fix Dates.

25. The matter was listed for mention on 21 October 2024. A hearing date was assigned.

26. On 24 March 2025, the matter was listed for mention, the hearing date vacated and the

matter was adjourned to the June 2025 List to Fix Dates.

27. On 30 June 2025, the matter was assigned a hearing date of 23 October 2025.

28. On 29 September 2025, the matter was listed at the request of the parties. The applicant

needed an extension of time for its submissions and to file further affidavits, which I granted without

prejudice to the opposing parties (we will come back to that).

29. The applicant filed its legal submissions and a further affidavit on 3 October 2025.

30. On 13 October 2025, the matter was listed for callover.

31. The commission filed its legal submissions on 16 October 2025.

32. The matter was heard on 23 October 2025.

33. 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.

34. On 7 November 2025, a draft of the present judgment was sent to the parties to give an

opportunity to identify any errors. The rules of engagement in such a situation are that the draft is

without prejudice to the right of the court ultimately to issue a judgment in whatever form or with

whatever content it considers appropriate. For the avoidance of doubt, draft judgments are not

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

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

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

Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile in writing

within 7 days and should not be to reargue the substance (submissions to that effect will be

disregarded) but are confined to matters such as:

(a) informing the court as to whether a formal judgment is required, and if so on what

issues;

(b) informing the court as to whether a judgment might be oral or written or partly in

both modes;

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

one the party considers could beneficially be decided;

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

address but has not;

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

unnecessary to address;

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

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

(h) in the event that the court proposes to place pivotal reliance on any authority or

material not previously adverted to, as opposed to where such material merely

reinforces a point that the court was making in any event, any comment as to why

such material should not lead to the proposed conclusion; and

(i) any other suggestions as to the wording (as opposed to substance) of the decision

if the proposed wording causes any significant issue for a party for any identified

reason.

35. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the expiry of the 7 day period, whether comments are made or not. That

period will not be extended save in exceptional circumstances. All parties involved are requested to

positively confirm to the court the position including if they have no observations on the draft

legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a

concession which parties can engage with but must do so with immediate dispatch, discipline and

focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to

elaborate procedures at every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker

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

para. 39); and still less should the procedure invite the perhaps “serious error, to which lawyers are

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

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

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

36. The mention date to review matters following the foregoing was to be 17 November 2025.

Relief sought

37. The reliefs sought are as follows:

“1. An Order of Certiorari quashing reason for refusal no. 2 of An Bord Pleanála decision

reference no. 310829-21, which decision was made in respect of a proposed waste recovery

and recycling facility development located at Carnabreagh, Dundalk, County Louth and which

decision was made by order dated 26th January 2023.

2. An Order of Certiorari quashing reason for refusal no. 3 of An Bord Pleanála decision

reference no. 310829-21, which decision was made in respect of a proposed waste recovery

and recycling facility development located at Carnabreagh, Dundalk, County Louth and which

decision was made by order dated 26th January 2023.

3. A Declaration that the lands the subject matter of planning application reference no.

21486, An Bord Pleanála decision reference no. 310829- 21 are not zoned subject to a

development Objective for the zoning of land for the use solely or primarily of particular

areas for particular purposes in the current Louth County Development Plan 2021 to 2027.

4. In the alternative, an Order of Certiorari quashing the decision of the Planning

Appeals Board to refuse planning permission for the proposed development of a waste

recovery and recycling facility located at Carnabreagh, Dundalk, County Louth, with an Order

remitting the matter to the Board of the Respondent to be determined in accordance with

law.

5. An Order that the said proceedings are subject to costs protection under the

provisions of Section 50B of the Planning and Development Act, 2000 (as amended) and

pursuant to section 7 of the Environmental (Miscellaneous Provision) Act, 2011 (as

amended) that sections 3 and 4 of the said Act apply to the within proceedings

6. Further and other relief.

7. The costs of this application.”

Grounds of challenge

38. The core grounds of challenge are as follows:

“1. Reason No. 2: The Respondent Planning Appeals Board had no basis either in law or

in fact for the determination that the proposed waste recovery and recycling facility

development would seriously injure the residential amenities of properties in the immediate

proximity to the proposed development by reason of air quality and noise effects which is

the basis for the decision deciding to refuse planning permission as set out and recorded in

reason no. 2 of the decision to refuse planning permission under planning register reference

no. 21486, An Bord Pleanála reference no. 310829-21.

2. The Respondent Planning Appeals Board had no basis either in law or in fact for the

determination that the proposed waste recovery and recycling facility development would

seriously injure or have the potential to serious affect the amenities of residential properties

in the immediate proximity to the proposed development by reason of the potential to affect

air quality in the manner set out and recorded in reason no. 2 of the decision to refuse

planning permission under An Bord Pleanála reference no. 310829-21 or at all.

3. The Respondent Planning Appeals Board had no basis either in law or in fact for the

determination that the proposed waste recovery and recycling facility development had the

potential to affect the residential amenities of properties in the immediate proximity of the

proposed development by virtue of the noise effects in the manner set out and recorded in

reason no. 2 of the decision to refuse planning permission under An Bord Pleanála reference

no. 310829-21 or at all

4. The basis grounding the rationale of reason for refusal no. 2 is contrary to plain

reason and common sense and further is irrational in that it relies on the potential which is

an inappropriate and incorrect basis to ground any reason for refusal and which must be

based on the effect of the proposed development having regard to the plans and particular

lodged, the nature of the receiving environment and the potential mitigation measures in

place within the statutory powers of the Respondent, and as a consequence the Respondent

had regard to inappropriate and irrelevant considerations and failed to have regard to

relevant considerations in the consideration and determination of the application.

5. Reason no 3: The Respondent Planning Appeals Board erred in law and in fact for

the determination that the proposed waste recovery and recycling facility development

would have the potential to affect the hydrological regime underlying the site the subject

matter of the application and further erred in law and in fact in finding that this has the

potential in turn to have a significant effect on the water supply and further erred in law and

in fact that this would therefore be prejudicial to public health as set out at and recorded in

reason no. 3 of the decision to refuse planning permission under planning application register

reference 21486, An Bord Pleanála reference no. 310829- 21, which decision was made on

26th January 2023.

6. There is no basis or evidence to support the Respondent’s conclusion as set out and

recorded in reason no. 3 nor to displace the position of the Applicant and its specialist

evidence that the proposed development will have no material impact on groundwater, on

water supply nor is there any risk to public health in respect of the plans and particulars

lodged on in planning application register reference no. 21486, An Bord Pleanála reference

no. 310829-21.

7. The decision of the Respondent Planning Appeals Board is grounded on fundamental

errors of law and fact and specifically a fundamental error of fact that the proposed

development will affect recharge levels in respect of groundwater in circumstances where

the Applicant’s proposal will have no effect on recharge rates for groundwater as

demonstrated in the plans and documentation lodged on planning application register

reference no. 214816, An Bord Pleanála reference no. 310829-21.

8. Reason no. 1: The lands the subject matter of the application are not zoned for the

use of lands solely or primarily for particular areas to be used for particular purposes in the

current Louth County Development Plan 2021 to 2027.

9. Contrary to what appears on the face of the decision of the Respondent the lands

are acknowledged in the Inspector’s report which the Respondent Planning Appeals Board

accepted as being white lands, in other words lands which were unzoned, being located in a

rural area.

10. The Respondent made an error of law and fact in deeming lands which are subject

to Objectives in the current Louth County Development Plan 2021 to 2027 in respect of the

regulation of particular categories of development as being lands zoned for particular

purposes and accordingly made an error of law in ascribing the lands as being zoned as set

out and recorded in reason no. 1 grounding the decision to refuse planning permission in An

Bord Pleanála reference no. 310829-21.”

The impugned decision

39. The impugned decision provides as follows (emphasis added):

“Decision

REFUSE permission for the above proposed development in accordance with the reasons and

considerations set out below.

Reasons and Considerations

1. The proposed development is located in a rural area on lands zoned as Rural Policy

Zone 2 (Area Under Strong Urban Influence) in the Louth County Development Plan

2021-2027 where the policies and objectives of the development plan (Policy

Objectives EE 55 and EE 59) direct employment activities to settlements or

appropriate locations in rural areas. Taken in conjunction with the existing residential

properties in the immediate vicinity, it is considered that the principle of locating a waste

processing facility on this unserviced site would not be acceptable and would not come

within the scope of the economic and rural objectives of the development plan for

the area. The proposed development would contravene materially the development plan

objectives, as set out in the development plan, and would, therefore, be contrary to the

proper planning and sustainable development of the area.

2. It is considered that, based on the information provided in the Environmental Impact

Assessment Report, the nature, scale, siting, and operation of the proposed waste recovery

and recycling facility would have the potential to seriously injure the residential

amenities of properties in immediate proximity to the proposed development by reason

of air quality and noise effects. The proposed development would, therefore, be contrary

to the proper planning and sustainable development of the area.

3. Having regard to the information provided in the Environmental Impact Assessment

Report in relation to geology, hydrogeology, and hydrology in the vicinity of the site, the

Board is not satisfied that the groundwater reserves would not be significantly

diminished by reason of abstraction and failure to recharge satisfactorily, notwithstanding

the proposed use of rainwater harvesting for the processing facility. The proposed

development would have the potential to have a negative impact on water bodies

within the catchment of the site achieving/maintaining a ‘Good Water Status’, as required

under the Water Framework Directive, and would, therefore, be prejudicial to public health

and contrary to the proper planning and sustainable development of the area.”

Some general considerations

40. It may be of assistance to incorporate by reference some general considerations arising from

previous caselaw, and as the commission points out:

“Recent judgments have set out several clear synthesises of the relevant general principles

for judicial review - Cummins v An Coimisiún Pleanála [2025] IEHC 521; McGowan v An

Coimisiún Pleanála [2025] IEHC 405; Save the South Leinster Way v An Coimisiún Pleanála

[2025] IEHC 541; and Friends of Killymooney Lough v An Coimisiún Pleanála [2025] IEHC

407.”

41. Without taking from the generality of that, some particularly pertinent points include:

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

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

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

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

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

errors are reviewable on an irrationality standard: Sherwin v. An Bord Pleanála

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

O’Malley, Baker and Murray JJ. concurring); Barr J. in Graymount House Action

Group v. An Bord Pleanála [2024] IEHC 327 (Unreported, High Court, 31 May 2024),

leave to appeal refused in Graymount House Action Group v. An Bord Pleanála

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

circumstances requiring a decision-taker to consider any other autonomous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin, O’Malley, Baker and Murray

JJ. concurring).

(iv) As regards what is a material contravention of a plan, “Certain aspects of the plan

may have a high level of specificity. In those cases, it may not be at all difficult to

determine whether what is proposed is in contravention of the plan, and it would

only remain to exercise a judgment as to the materiality of any such contravention.

However, at the other end of the spectrum, it is not uncommon to find objectives in

a development plan which may, to a greater or lesser extent, be properly described

as aspirational. Such objectives may be expressed in general terms. In such cases,

a much greater degree of judgment may need to be exercised as to whether the

development proposed amounts to a material contravention of the development

plan.” (Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court,

11 April 2024) per Woulfe J. at para. 95 citing Maye v. Sligo Borough Council [2007]

IEHC 146, [2007] 4 I.R. 678 (Clarke J.)).

Overall issues

42. The Louth County development plan states as follows at 5.19.3 (emphasis added)

(https://www.louthcoco.ie/en/publications/development-plans/louth-county-development-plan-

2021-2027/volume-1-lcdp-2021-2027-.html):

“5.19.3 Rural Enterprises

Rural businesses and enterprises are an important source of local employment in the County.

This includes agricultural, equine, engineering/manufacturing, recreational, tourism,

energy/renewable energy, and rural resource based enterprises. Whilst this Plan supports

such enterprises and the diversification of the rural economy, it is also recognised that a

balance is required between supporting rural based enterprises and projects and protecting

the local environment.

In the first instance, new employment related developments are directed to settlements

where services are available and lands have been identified for employment uses.

It is also recognised that there are instances where a development can be more

readily accommodated or is more appropriate to a rural area.

This can be due to a locational specific, or resourced based development, or a development

of regional or national importance.

An Economic Business Zone has been identified at Carrickcarnan which will facilitate

employment related development, subject to the preparation of a Masterplan. These lands

are strategically located along the Dublin-Belfast Economic Corridor and will assist in

providing strategic employment to the surrounding rural area. The location of this Economic

Business Zone is identified on Map 3.2 (Volume 1A) and Section 4 of Volume 2.

In relation to the expansion of an existing rural enterprise, consideration will be given to the

scale of the existing and proposed development, the capacity of local infrastructure to

accommodate the expansion, and the compatibility of the development with the surrounding

area.

Any development of a rural based enterprise, either new or expansion to existing in the open

countryside, must take account of the traffic related impacts and in particular the traffic

movements and capacity of the road network to accommodate a development. There are

restrictions on accesses to National and Protected Regional Roads in order to maintain the

efficiency and functionality of the National and Regional road network which shall be

considered if the development is to be accessed off a Protected Road. Further details on

these restrictions and exemptions are set out in Tables 7.9 and 7.10 in the Movement

Chapter. Chapter 13 (Section 13.13.11) provides further information on employment

development in rural areas.

Policy Objective EE 55

To support rural entrepreneurship and rural enterprise development of an appropriate

scale at suitable locations in the County.

Policy Objective EE 56

To support the implementation of the LEADER Programme for the County.

Policy Objective EE 57

To recognise the contribution of niche enterprises such as distilleries and breweries in

supporting economic development and promoting tourism.

Policy Objective EE 58

To support the provision of whiskey maturation facilities within the open countryside where

the scale of such development is appropriate to the location and surrounding area which is

located in reasonable proximity to appropriate levels of infrastructure and road access.

Policy Objective EE 59

To secure vibrant and viable rural communities by supporting the development of

rural based enterprises.

Policy Objective EE 60

To continue to support the agricultural sector and to facilitate the development of

environmentally sustainable agricultural activities.

Policy Objective EE 61

To facilitate the diversification of the agricultural sector by supporting alternative farm

enterprises subject to the nature and use of any enterprise being compatible with the

environment in which it is located.

Policy Objective EE 62

To consider, subject to the preparation of a Masterplan, the development of the Economic

Business Zone at Carrickcarnan for commercial development including an Off line Motorway

Services area, truck stop, service, repair and parking area and associated ancillary

infrastructure to include motel/hotel, ancillary retail shop and dining facility, light industrial,

storage and logistics facilities, retail warehousing (bulky goods only) and motor sales.

Policy Objective EE 63

To ensure that all applications for industrial and enterprise development submit a carbon

footprint calculation and demonstrates how the new buildings and processes/activities will

seek to achieve the targets set out in the Climate Action Plan 2019 or any amendments to

targets.”

43. The commission summarises the project here:

“2. The Applicant proposes to build a Mechanical Biological Treatment Waste Facility in

a rural area on an un-serviced site, not on [an] area identified for employment (or indeed

this specific) use. It generates what the EPA describes as the ‘most offensive’ type of odour.

This is proposed in close proximity to existing residences (adjacent to three residential

dwellings and in the vicinity of 12 residential dwellings) and is on a un-serviced, otherwise

greenfield site (effectively a rural field) just off the M1 on the Ardee Road in Carnabreagh,

Dundalk, Co. Louth. It would involve a processing building with a floor area of approximately

9,263m2 and a maximum height of 13.85m with space for 33 car-parking spaces. It was

proposed to treat up to 90,000 tonnes per annum of Municipal Solid Waste (‘MSW’) requiring

an operational staff of 18 persons all at a 2.6ha site in a rural area,

3. Also, the facility would operate waste acceptance via HGV traffic from 07.00-00.00

hours Monday to Saturday and its underlying systems and processes would operate on a 24

hour basis.”

44. The inspector said at §7.13.7:

“I consider the sites location within a rural area is not appropriate for a building of such a

scale and industrial design Having regard to the size of the building (superstructure), the

use of Kingspan panelling for the exterior and the location of the building close to the L3168

and surrounding dwelling, I consider the impact of the building will be significant and

negative. I note the proposed landscaping scheme, although, having regard to the scale of

the building, I do not consider the trees will provide effective mitigation against a negative

impact.”

45. The inspector placed emphasis on the unserviced nature of the site (§9.1.10):

“The proposed waste facility does not require to be located on the subject site, rather it is

my opinion that a serviced site (waste and water) would be more appropriate and have a

significantly lower impact on the natural environment.”

46. The inspector also said at §9.1.11:

“In the second instance, the Board will note my EIA undertaken above and the reasoned

conclusion which states the proposed development has a potential for odour and noise

nuisance, groundwater impacts and negative visual amenity. The environmental impacts of

locating a facility of this nature and scale in the rural area, adjacent to residential properties

is significant and negative (further detailed below). In this regard I concluded that the site

is not the most suitable location to accommodate a large-scale waste processing facility.”

47. The inspector went on to say at §9.1.12:

“Throughout both my assessment of the proposed development and my EIA, I have raised

serious concerns in relation to the both the overarching environmental impacts and the direct

negative impacts on those residents in the vicinity of the site and, overall, I do not consider

the site is suitable for an industrial type of development of this nature and scale. Having

regard to theses impacts and the nature and scale of the processing facility (detailed below)

it is my opinion that the proposal is contrary to the Policy Objectives EE55 and EE59 as it is

not at an appropriate scale nor will it secure vibrant and viable rural communities. Having

regard to the Rural Housing Policy Zone 2 on the site and those polices in relation to rural

development, I consider the proposal represents a material contravention of the Louth

County Development Plan 2021-2027.”

48. The applicant raised some issues that fall outside the pleadings, so I don’t need to consider

those further. I accept the commission’s submission that these include the following:

“(B) The reasons-type complaints advanced in Submissions (§4, §57, §67 et seq) are not

pleaded and the Applicant cannot maintain same.

(C) An attempt appears to be made in Submissions (§15) to allege a failure on the part

of the Commission to properly weigh up various policies, including conflicting policies, in the

Development Plan – this is not pleaded. This is somewhat remarkable. Not only are these

policies not pleaded, but the policies actually pleaded (and not even in the Core Grounds or

Particulars of Core Grounds, but in the Facts) are not the subject of any submission at all.

(D) The contention (inter alia, §31) that the Commission lacked expertise to assess

odour or air quality or noise impacts is not pleaded.”

49. The applicant seeks to rely on an affidavit of Paul Chadwick of 3 October 2025. This is

inadmissible primarily because it is not properly replying evidence. This case was commenced on

22 March 2023, with a trial date of 23 October 2025. So after over two years and six months, an

applicant puts in a detailed affidavit with 20 days to go before trial dealing with matters that could

have been part of its case from day one. That is an unacceptable procedure. The facility for replying

affidavits which is made available by O. 103 RSC, Practice Direction HC126 and schedules of

directions of the court in individual cases is limited to affidavits that are properly replying. It

does not entitle an applicant to rewind the clock and put in evidence that should have been part of

its case from day one.

50. Similar issues arose in Fahybeg Windfarm Opposition Group v. An Bord Pleanála [2025] IEHC

310 (Unreported, High Court, 30 May 2025), para. 18:

“The major and underlying problem was that the onus of proof was at all times on the

applicants. The claim that protected trees were being felled was a core part of their case

from day one – and was an issue that they should have had adequate evidence of in the

context of the leave application. The onus was on the applicants to prove that the felling

was going to take place in the protected area. The fact that they didn’t realise the need to

do that until very late in the day is on the applicants, not on anyone else. It would be

fundamentally unfair to the opposing parties to allow the applicants to reopen that now,

derail the case procedurally, and create a need for a further substantive hearing on a point

that was central to the applicants’ case from the word go. Such an approach would unleash

procedural chaos and goes well beyond any legitimate right to reply to new evidence from

the notice party.”

51. I accept the submission of the commission here generally regarding the inadmissibility of

the affidavit, but in particular the following:

“B. Affidavit evidence can be excluded where there has been excessive and unexplained

delay in filing same causing prejudice to the other parties – Sliabh Luachra v An Bord

Pleanála [2019] IEHC 888 (§30 et seq).

‘In my view, the delay in this case is such and the timing of delivery of the affidavits is such

that it was incumbent on the applicant, if it wished to be in a position to rely on such

affidavits, to fully explain and justify their delivery at such a late (and crucial) stage of the

proceedings. No satisfactory explanation or reason has been put forward to justify the late

delivery of these affidavits. The timing of the delivery of the affidavits is not addressed

anywhere on oath by the applicant. In light of the failure to properly explain and justify the

delivery of these affidavits, I am left with no alternative but to exclude them from

consideration.’

The originating proceedings in this case are dated March 2023, the Affidavit of Mr Chadwick

is dated October 2025 and was served after the trial date had been fixed, 18 months after

the opposition papers, and at the same time as the Applicant’s legal submissions – shortly

before the trial. No explanation has been provided for this delay and there is nothing in the

Affidavit which could not have been stated at the time the proceedings commenced – with

no explanation provided as to why such an Affidavit was not filed when the proceedings were

instituted. Whereas this perhaps more for the Court, the efficacy and justice of the expedited

procedures in planning and environmental matters simply require better of those who seek

to call on incredibly scarce judicial resources. Regardless of questions of prejudice or such

like, an entity such as the Applicant which has considerable resources and litigation

experience and expertise (unlike a lay litigant etc) simply should not be allowed to conduct

litigation like this.

C. The Affidavit does not reply to anything in the Commission’s opposition pleadings –

it simply proffers a range of criticisms, most of which stray far beyond the pleaded case, of

the Inspector and Commission’s reasons for refusal - Kennedy v An Bord Pleanála [2024]

IEHC 570 (§57). Indeed, this highlights a particular issue – insofar as the Applicant says

Mr. Chadwick deposes to no new material, then by very definition all he is doing is, in effect,

[making] the pleas that [...] are notable by their absence from the pleadings. Really, it

should be the Applicant highlighting this and seeking liberty to do this, but nothing of the

sort is offered up and it is left to other parties to engage on this. However, none of this

should matter in principle – as Mr. Chadwick offers no new fact and replies to no-one, then

either he is (and can only be) repeating pleas already made, and his contribution of

additional text is superfluous or, alternatively, if [it’s] not superfluous, then [it’s] not pleaded

and the Applicant really has to nominate which one it is. For the assistance of the Court,

the Commission at least can discern no basis in the pleadings for §7, §10, §11, §17, §18,

§19, §20-23, §26, §28, §29, §31, §32, §34-36 and the paragraphs in between simply

recount merits based disagreement which, of course, is pleaded in the case but pleading a

merits based disagreement doesn’t make it a legal point.”

52. The really fatal problem for the applicant is that there is not an ongoing entitlement to

put in further evidence that was reasonably available originally. The applicant has to have

all such evidence marshalled and before the court at leave stage. Any further affidavits are limited

to reply. This affidavit goes far beyond anything that could legitimately be called a reply.

53. Insofar as the affidavit summarises existing material already on the record to “make life

somewhat bearable for this court” as put by the applicant, that is all well and good and I appreciate

the sentiment as an exercise in presentation of existing material that could be adopted for an annex

to a written submission, but insofar as it seeks to add a new evidential status to what is already

there that is not permissible in principle. In addition it would certainly be unfair to the commission

in practice to allow such new evidence 20 days before a hearing when there was no time for the

commission to properly consider a reply.

54. With the foregoing in mind we can now turn to the specific complaints made.

Domestic law issues

Core ground 1 – noise and air impacts

55. Core ground 1 is:

“1. Reason No. 2: The Respondent Planning Appeals Board had no basis either in law or

in fact for the determination that the proposed waste recovery and recycling facility

development would seriously injure the residential amenities of properties in the immediate

proximity to the proposed development by reason of air quality and noise effects which is

the basis for the decision deciding to refuse planning permission as set out and recorded in

reason no. 2 of the decision to refuse planning permission under planning register reference

no. 21486, An Bord Pleanála reference no. 310829-21.

2. The Respondent Planning Appeals Board had no basis either in law or in fact for the

determination that the proposed waste recovery and recycling facility development would

seriously injure or have the potential to serious affect the amenities of residential properties

in the immediate proximity to the proposed development by reason of the potential to affect

air quality in the manner set out and recorded in reason no. 2 of the decision to refuse

planning permission under An Bord Pleanála reference no. 310829-21 or at all.

3. The Respondent Planning Appeals Board had no basis either in law or in fact for the

determination that the proposed waste recovery and recycling facility development had the

potential to affect the residential amenities of properties in the immediate proximity of the

proposed development by virtue of the noise effects in the manner set out and recorded in

reason no. 2 of the decision to refuse planning permission under An Bord Pleanála reference

no. 310829-21 or at all

4. The basis grounding the rationale of reason for refusal no. 2 is contrary to plain

reason and common sense and further is irrational in that it relies on the potential which is

an inappropriate and incorrect basis to ground any reason for refusal and which must be

based on the effect of the proposed development having regard to the plans and particular

lodged, the nature of the receiving environment and the potential mitigation measures in

place within the statutory powers of the Respondent, and as a consequence the Respondent

had regard to inappropriate and irrelevant considerations and failed to have regard to

relevant considerations in the consideration and determination of the application.”

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

“Reason for Refusal No.2

5. The Applicant’s Position: The Respondent Planning Appeals Board had no basis

either in law or in fact for the determination that the proposed waste recovery and recycling

facility development on the basis of the reasons set out in Reason No 2. and No. 3 which is

based on the conclusions in the Environmental Impact Assessment Report this proposal

would seriously injure the residential amenities of property in the immediate proximity by

reason of air quality and noise effects which is the basis for the decision deciding to refuse

planning permission as set out and recorded in reason No. 2 of the decision to refuse

planning permission under planning application register reference no. 21486, An Bord

Pleanála reference no. 310829-21.

6. The Applicants technical reports, as set out in the EIAR demonstrates that the noise

levels and air quality in the vicinity of the development proposed will not be affected by the

proposed development, having regard to the existing noise and air quality environment and

there was no technical or other evidence to contradict the specialist reports prepared by the

Applicant.

7. There was no evidence either from the Respondent Planning Appeals Board who did

not engage a specialist to consider the submission of the Applicant nor did any third party

engage any specialist advice in respect of air quality, and accordingly there was no evidence

that could displace the evidence submitted by the Applicant that there would be no adverse

effect arising from the proposed development on air quality, and no evidential basis for the

determination set out in respect of air quality in the Respondent’s decision.

8. The Commission’s Position: The Applicant proposes to build a Mechanical

Biological Treatment Waste Facility in a rural area on an un-serviced site, not on an area

identified for employment (or indeed this specific) use. It generates what the EPA describes

as the ‘most offensive’ type of odour. This is proposed in close proximity to existing

residences (adjacent to three residential dwellings and in the vicinity of 12 residential

dwellings) and is on a un-serviced, otherwise greenfield site (effectively a rural field) just off

the M1 on the Ardee Road in Carnabreagh, Dundalk, Co. Louth.

9. The Proposed Development would involve a processing building with a floor area of

approximately 9,263m2 and a maximum height of 13.85m with space for 33 car-parking

spaces. It was proposed to treat up to 90,000 tonnes per annum of Municipal Solid Waste

requiring an operational staff of 18 persons all at a 2.6ha site in a rural area. Also, the

facility would operate waste acceptance via HGV traffic from 07.00-00.00 hours Monday to

Saturday and its underlying systems and processes would operate on a 24-hour basis.

10. At first instance the Council refused permission for five reasons - including that the

proposal would ‘represent overdevelopment of a limited and constrained sit that would be

inappropriate for this rural location’, that it would be ‘out of character with the scale and

pattern of development in the vicinity of the site’, and that ‘by reason of proximity would

have an undue negative impact on the existing amenities of nearby residential properties’.

11. The Commission’s second reason for refusal concerns the potential for the Proposed

Waste Facility to seriously injure the residential amenities of properties in immediate

proximity to the same by reason of air quality effects and noise effects.

12. The Applicant’s argument appears to conflate the examination of the EIAR by the

Inspector and the Commission, which is what actually occurred, with a non-existent

obligation to accept the conclusions of same without question. The repeated claim of a lack

of evidence or there being ‘no basis to depart from the findings in the EIAR is misconceived

– the role of the Commission is not to blindly accept same without question – it is entitled

to assess same and highlight concerns arising from that assessment. The repeated claim

that ‘potential’ is an incorrect standard is also without merit.

13. On air quality/odour - the pleaded case is that there is ‘no odour’ arising from the

Proposed Waste Facility. This is actually pleaded – ‘no odour’ – and tends to highlight the

scatter gun approach of the Applicant which is simply a merits-based attack disguised under

paragraph after paragraph of legalese.

14. The Applicant itself relies on the EPA Guidance describing this odour as the ‘most

offensive’ type and actually describes the odour impact in detail in its EIAR. The Applicant

believes it is an acceptable impact, the Commission does not but on no reasonable basis at

all could the Court reconcile the plea made (and verified on affidavit) at E.20 the facts as

presented by the Applicant to the Commission. Indeed, this is a recurrent [theme] in the

pleadings that the Applicant refers (E.30) to the ‘sealed” nature of the facility, but it remains

that the Applicant has modelled an odour impact of 1.32 OUE/m3 against what it says is an

appropriate limit (1.5 OUE/m3). So, it is completely untrue that there is ‘no odour’ but

rather the Applicant has modelled odour which it believes is acceptable, and the Commission

does not, and it is simply no answer to say odour will be dealt with under the EPA IE licensing

regime. Indeed, this gets to what is perhaps the Applicant’s point – i.e. the Applicant says

it has relied on EPA Guidance which suggests a limit of 1.5 OUE/m3 and all it will output is

1.32 OUE/m3. Taking that as it stands, the point has no merit. Even assuming the Applicant

is right here the height of its case is that a Guidance document (which is not a s.28 guideline)

contains a recommendation and the Inspector and Commission have determined that on the

facts here, the actual odour impact is too much. Indeed, the Inspector expressly reasons

this out at §7.8.11 positively accepting the level modelled, but concluding – in an exercise

of planning judgment – that the frequency of exposure to even this level is unacceptable.

15. Faced with that the Applicant then turns to a completely baseless allegation that the

Inspector has misunderstood the EPA Guidance cited in §7.8.11. Effectively, the Applicants

say that at §7.8.11 the Inspector is in error in considering the concept of FIDOL when it

comes to odour impact because they say that is modelled into the EPA Guidance. If correct,

of course, that would mean the EPA Guidance self-executes and in no given factual

circumstance does one need to go beyond the recommended 1.5 OUE/m3 as it is, all things

for all places. This is not correct. Indeed, all the Applicant has done is assert this. Indeed,

even if the Applicant was right, it is still a matter of planning judgment to determine that a

particular level of odour over a particular level of duration is too much.

16. On noise – the Applicant asserts that the proposed development won’t increase

noise, including during its operation – this is not correct. In reality, on the evidence, there

is an increase, but obviously once the Applicant accepts that it must accept that the

determination of the acceptability of an increase is for the expertise of the Commission.

17. Insofar as the case is that background noise is misunderstood, the Court will be able

to see that the Applicant’s modelling of noise baselines at the NSL’s was clearly understood

by the Inspector. Pointing to the general level of noise from the motorway does not take

away from the very different baseline noise levels the Applicant itself presented for the

relevant NSLs.

18. There was nothing irrational or unlawful about the Commission’s conclusions in

respect of potential air quality and noise impacts on the houses located in close proximity to

the Proposed Waste Facility.”

57. Reason no. 2 involves an evaluation that noise and air quality impacts are not acceptable,

and refers to the EIAR as the basis for this.

58. I agree with the applicant on the semantic issue that the words “based on” are sub-optimal,

and a better term would have been “having regard to”. But the decision should be read in a valid

sense if such a reading is available, as it is here.

59. The EIAR devotes 39 pages in chapters 11 and 12 to air quality and noise impacts.

60. The conclusion at 11.4.2.2 is that the odour impacts will be within EPA guidelines.

61. The conclusion regarding noise at 12.4.2.1 was that operational impacts will be within EPA

guidelines and traffic impacts would be negligible (12.4.2.2).

62. So on one view, one could argue that the EIAR does not support a refusal. But the problem

with that argument is that, as the commission points out, “The Applicant’s argument appears to

conflate the examination of the EIAR by the Inspector and the Commission, which is what actually

occurred, with a non-existent obligation to accept the conclusions of same without question”.

63. Ultimately the commission’s evaluative judgement was that the impacts were excessive.

That isn’t unchallengeable but an applicant has to overcome an onus to show a legal error – this

applicant hasn’t done that. The fundamental problem with all of the more detailed pleaded

complaints is that what it all comes down to is the applicant disagreeing with the commission’s

evaluation.

64. In particular, while the applicant attempted to deny the inspector’s/commission’s expertise

(e.g. sub-ground 42), that has to be established evidentially. The applicant has failed to do that.

As the commission points out “not a single interlocutory step” was taken to bring forward the

necessary proof of the alleged lack of expertise. In any event the directive only requires that

expertise be available to the commission, not that it requires that each and every actor within the

commission involved in a case personally have relevant expertise.

65. Insofar as a complaint is made about the use of the term “potential” impacts, it is settled

law that potential impacts must be considered in the EIA process. This is implicit in the directive

and reflected in some express provisions. Article 7(4) of the EIA directive provides (emphasis

added):

“4. The Member States concerned shall enter into consultations regarding, inter alia, the

potential transboundary effects of the project and the measures envisaged to reduce or

eliminate such effects and shall agree on a reasonable time- frame for the duration of the

consultation period.

66. Annex III includes the following (emphasis added):

“3. Type and characteristics of the potential impact

The likely significant effects of projects on the environment must be considered in relation

to criteria set out in points 1 and 2 of this Annex, with regard to the impact of the project

on the factors specified in Article 3(1), taking into account:

(a) the magnitude and spatial extent of the impact (for example geographical area and size

of the population likely to be affected);

(b) the nature of the impact;

(c) the transboundary nature of the impact;

(d) the intensity and complexity of the impact;

(e) the probability of the impact;

(f) the expected onset, duration, frequency and reversibility of the impact;

(g) the cumulation of the impact with the impact of other existing and/or approved projects;

(h) the possibility of effectively reducing the impact.”

67. Reference to probability of impact and possibility of reducing impact imply that possible/

potential impacts are to be assessed, and that unmitigated impacts are to be assessed as a distinct

issue from the assessment of mitigation. The applicant simply misreads the directive.

68. I agree with the commission’s submission:

“62. The Applicant also, oddly, takes issue with reference to the use of the word ‘potential’

(inter alia, §38) in the Commission’s reasoning, suggesting it is indicative of a flaw in the

approach of the Commission. Given the amount of time this complaint is repeated, it may

be worthwhile trying to attack it at the core by simply pointing out that Annex III of the EIA

Directive specifically refers to ‘the types and characteristics of the potential impact’ and a

key point of the Developer’s EIAR is – under the EIA Directive – to provide the information

in Annex III. There is no merit in seeking certiorari of a Commission Decision by reason of

the use of a lexicon actually contained in the EIA Directive.”

69. The applicant seemed to be arguing that unmitigated impacts should not be considered but

that is clearly wrong. The consideration of unmitigated impacts informs the question of the adequacy

of mitigation.

70. By way of a summary of why the main specific complaints under this heading fail:

(i) as regards the complaint in relation to reason no. 2 that the respondent planning

appeals board had no basis either in law or in fact for the determination that the

proposed waste recovery and recycling facility development would seriously injure

the residential amenities of properties in the immediate proximity to the proposed

development by reason of air quality and noise effects which is the basis for the

decision to refuse planning permission as set out and recorded in reason no. 2 of

the decision to refuse planning permission under planning register ref. no. 21486,

An Bord Pleanála ref. no. 310829-21, that is misconceived because the conclusion

of injury to residential amenities was within the commission’s zone of evaluative

judgement;

(ii) as regards the complaint that the respondent planning appeals board had no basis

either in law or in fact for the determination that the proposed waste recovery and

recycling facility development would seriously injure or have the potential to

seriously affect the amenities of residential properties in the immediate proximity to

the proposed development by reason of the potential to affect air quality in the

manner set out and recorded in reason no. 2 of the decision to refuse planning

permission under An Bord Pleanála ref.no. 310829-21 or at all, that is misconceived

because again the conclusion of injury to residential amenities was within the

commission’s zone of evaluative judgement;

(iii) as regards the complaint that the respondent planning appeals board had no basis

either in law or in fact for the determination that the proposed waste recovery and

recycling facility development had the potential to affect the residential amenities of

properties in the immediate proximity of the proposed development by virtue of the

noise effects in the manner set out and recorded in reason no. 2 of the decision to

refuse planning permission under An Bord Pleanála ref. no. 310829-21 or at all, that

is misconceived because again the conclusion of injury to residential amenities was

within the commission’s zone of evaluative judgement; and

(iv) as regards the complaint that the basis grounding the rationale of reason for refusal

no. 2 is contrary to plain reason and common sense and further is irrational in that

it relies on the potential which is an inappropriate and incorrect basis to ground any

reason for refusal and which must be based on the effect of the proposed

development having regard to the plans and particular lodged, the nature of the

receiving environment and the potential mitigation measures in place within the

statutory powers of the respondent, and as a consequence the respondent had

regard to inappropriate and irrelevant considerations and failed to have regard to

relevant considerations in the consideration and determination of the application,

that is misconceived because the potential of impacts is not an inappropriate

consideration but rather is a required consideration.

Core ground 2 – water impacts

71. Core ground 2 is:

“5. Reason no 3: The Respondent Planning Appeals Board erred in law and in fact for

the determination that the proposed waste recovery and recycling facility development

would have the potential to affect the hydrological regime underlying the site the subject

matter of the application and further erred in law and in fact in finding that this has the

potential in turn to have a significant effect on the water supply and further erred in law and

in fact that this would therefore be prejudicial to public health as set out at and recorded in

reason no. 3 of the decision to refuse planning permission under planning application register

reference 21486, An Bord Pleanála reference no. 310829- 21, which decision was made on

26th January 2023.

6. There is no basis or evidence to support the Respondent’s conclusion as set out and

recorded in reason no. 3 nor to displace the position of the Applicant and its specialist

evidence that the proposed development will have no material impact on groundwater, on

water supply nor is there any risk to public health in respect of the plans and particulars

lodged on in planning application register reference no. 21486, An Bord Pleanála reference

no. 310829-21.

7. The decision of the Respondent Planning Appeals Board is grounded on fundamental

errors of law and fact and specifically a fundamental error of fact that the proposed

development will affect recharge levels in respect of groundwater in circumstances where

the Applicant’s proposal will have no effect on recharge rates for groundwater as

demonstrated in the plans and documentation lodged on planning application register

reference no. 214816, An Bord Pleanála reference no. 310829-21.”

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

“Reason for Refusal No.3

19. The Applicant’s Position: The Respondent erred in law and in fact in finding that

the proposed development has the potential to affect the hydrological regime underlying the

site the subject matter of the application and further erred in law and in fact in finding that

this has the potential in turn to have a significant effect on the water supply and further

erred in law and in fact that this has the potential to be prejudicial to public health as set

out at reason no. 3 of the decision to refuse planning permission under planning application

register reference no. 21486, An Bord Pleanála reference no. 310829-21 which decision was

made on 26th January 2023. The Respondent erred in law and in fact in its determination

that the proposed development would have the potential to affect the hydrological regime

and the only basis relied on in that reason is the information contained in the Environmental

Impact Assessment Report which information is expressly to the contrary to the finding of

the Coimisiún relevant to that EIAR which in turn could have a significant effect on the water

supply and that would be prejudicial to public health.

20. The Applicant commissioned specialist hydrogeologists and hydrologist to prepare

the submission and concluded that the proposed development would have no impact on

hydrological conditions and there is significant evidence contained within the application

documentation of this position which is not engaged with or contradicted by any evidence

before the Respondent and accordingly on the basis of no contradictory evidence, the

evidence of the Applicant in this regard must be accepted.

21. The Commission’s Position: As outlined above, there contention that the

Applicant’s EIAR ‘must be accepted’ by the Commission is not correct – the role of the

Commission is to assess same, which it did, and having done so, found same to be lacking.

There is no legal error in adopting such an approach.

22. The development site is un-serviced. Hence the Proposed Development includes

proposals for obtaining water via rainwater harvesting and, via backup, from groundwater

abstraction. There are adjacent residences and multiple others nearby with well-based

sources of water, all drawing on groundwater.

23. In terms of the abstraction proposal, §9.4.3.3 of the EIAR dealt with same. It

identified that the abstraction back up would require 13.8m3 of water per day and stated

that it would not impact the levels and flows of the underlying [aquifers]. Table 9.9,

however, identified the potential effect on ‘off-site private groundwater usage’ noting the

proposals ‘includes potentially lowering the water table reducing the resources for private

groundwater users.’ However, when it came to actual impacts in Table 9.11, the same

potential is noted, but without any intervening text between Table 9.9 and 9.11 that is

relevant – it simply states there will be no effect and that ‘pump tests will be conducted prior

to the groundwater abstraction for operation to determine the yield.’

24. In reality, the Applicant has modelled a potential effect and has modelled the water

yield required in times of drought. It simply disagrees with the Inspector and Commission’s

conclusion that this is sufficient to warrant a refusal of permission.

25. Similarly, it will be for the Applicant to show the Court how where in Chapter 10,

there is any treatise of actual impact on local wells and water sources or, indeed, in the

Drainage and Water Supply Design Report. Indeed, Table 10.9 contains a different reason

to that set out in Table 9.11 which is now that whereas the water table may be potentially

lowered, the distance between the [borehole] and local surface water bodies is relevant to

determine the claimed negligible nature of the effect. The issue, however, is with

groundwater. This again is re-stated at Table 10.11 where once again the ‘mitigation’

against impact is that the ‘maximum yield of abstraction will not be exceeded’, but all this

does is say ‘we will abstract what we have said’ which the Inspector knows and which the

Inspector and Commission still – in their judgment – believe to be unacceptable.

26. Indeed, whereas the Applicant says the Commission is just wrong to believe no risk

assessment was done, the Council’s Environment Section noted the absence of a

Groundwater Risk Assessment – noting that same should be provided – together with other

information, including in respect of wells. This was in turn reflected in the Council’s last

reason for refusal. The Applicant seems to say this has been wrong all along and the risk

assessment is, in fact, in Section 9.4 of the EIAR. This, however, is simply a recognition of

the point – i.e. that the demand will be 13.8m3/day and this, in the Applicant’s view is not

significant. The whole point of the Council and the Commission is that none of this suffices.

It just a statement of the yield, and a statement of the view that it can’t really make a

difference. There is no assessment, for example, of the off-site wells capacity in terms of

drought or susceptibility to drought.

27. The Inspector says (and this is correct in fact) that there is no groundwater risk

assessment and no actual analysis of the impact on groundwater reserves. This is a

reasonable point to make in the context of a current field with a 60% recharge rates,

whereby a large industrial building is proposed to effectively ‘take in’ current rainfall which

otherwise goes into the ground in already somewhat compromised setting. Indeed, a critical

conclusion is that ‘The grounds of appeal note three private wells within 100m of the site.

No hydrological assessment or groundwater risk assessment has been submitted detailing

the recharge values of the groundwater reserve or the Zone of Contribution (ZoC)’ and,

notably, there is not one single plea in the Statement of Grounds that takes direct issue with

that. Similarly, the Inspector has clearly and directly stated that there is an ‘absence of

detailed investigations and analysis (not present in the EIAR)’ and yet no single plea has

been made nor averment set out that clearly directs the Court to how this is in error. This

is because it is not an error. It is a flaw in the application and one which is precisely the

sort of thing the Commission is supposed to be alive to.

28. Insofar as the Applicant’s Submissions raises a complaint about Reason 3 and the

part of same referring to the potential impact on achieving of Good Water Status under the

WFD, no such complaint is pleaded and cannot be maintained.”

73. The basic reason why this point fails is that again this is the exercise of evaluative judgement

by the commission. Abstractions are acknowledged (§9.4.3.3 of the EIAR) and it is up to the

commission to evaluate whether that is acceptable. The onus is on the applicant to show that that

evaluation is unlawful – this applicant hasn’t achieved that.

74. The conclusion of impacts was within the commission’s zone of evaluative judgement and it

is manifestly incorrect that there was no material on which it could have relied on in that regard.

75. The concept that water quality and water quantity are totally and completely separate is

untenable and indeed the EIAR itself does not support this.

76. By way of a summary of why the main specific complaints under this heading fail:

(i) as regards the complaint in relation to reason no. 3 that the respondent planning

appeals board erred in law and in fact for the determination that the proposed waste

recovery and recycling facility development would have the potential to affect the

hydrological regime underlying the site the subject matter of the application and

further erred in law and in fact in finding that this has the potential in turn to have

a significant effect on the water supply and further erred in law and in fact that this

would therefore be prejudicial to public health as set out at and recorded in reason

no. 3 of the decision to refuse planning permission under planning application

register reference 21486, An Bord Pleanála ref. no. 310829- 21, which decision was

made on 26 January 2023, that is misconceived because the conclusion of

unacceptable impacts was within the commission’s zone of evaluative judgement;

(ii) as regards the complaint that there is no basis or evidence to support the

respondent’s conclusion as set out and recorded in reason no. 3 nor to displace the

position of the applicant and its specialist evidence that the proposed development

will have no material impact on groundwater, on water supply nor is there any risk

to public health in respect of the plans and particulars lodged on in planning

application register ref. no. 21486, An Bord Pleanála ref. no. 310829-21, that is

misconceived because the conclusion of impacts was within the commission’s zone

of evaluative judgement and it is manifestly incorrect that there was no material on

which it could have relied in that regard; and

(iii) as regards the complaint that the decision of the respondent planning appeals board

is grounded on fundamental errors of law and fact and specifically a fundamental

error of fact that the proposed development will affect recharge levels in respect of

groundwater in circumstances where the applicant’s proposal will have no effect on

recharge rates for groundwater as demonstrated in the plans and documentation

lodged on planning application register ref. no. 214816, An Bord Pleanála ref. no.

310829-21, that is misconceived because it assumes a requirement to accept the

developer’s analysis, whereas the commission’s conclusions were within its zone of

evaluative judgement.

Core ground 3 – County Development Plan (CDP)

77. Core ground 3 is:

“8. Reason no. 1: The lands the subject matter of the application are not zoned for the

use of lands solely or primarily for particular areas to be used for particular purposes in the

current Louth County Development Plan 2021 to 2027.

9. Contrary to what appears on the face of the decision of the Respondent the lands

are acknowledged in the Inspector’s report which the Respondent Planning Appeals Board

accepted as being white lands, in other words lands which were unzoned, being located in a

rural area.

10. The Respondent made an error of law and fact in deeming lands which are subject

to Objectives in the current Louth County Development Plan 2021 to 2027 in respect of the

regulation of particular categories of development as being lands zoned for particular

purposes and accordingly made an error of law in ascribing the lands as being zoned as set

out and recorded in reason no. 1 grounding the decision to refuse planning permission in An

Bord Pleanála reference no. 310829-21.”

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

“Reason for Refusal No.1

2. The Applicant’s Position: The lands the subject matter of the application are not

zoned for the use of lands solely or primarily for particular areas to be used for particular

purposes in the current Louth County Development Plan 2021 to 2027. Contrary to what

appears on the face of the decision of the Respondent the lands are acknowledged in the

Inspector’s report which the Respondent Planning Appeals Board accepted as being white

lands, in other words lands which were unzoned, being located in a rural area and the

manner in which the development plan was interpreted was wrong as a matter of fact and

law.

3. The Respondent erred in law and fact in the consideration of lands which are subject

to Objectives in the Louth County Development Plan 2021 to 2027 in respect of E55 and E59

as being lands zoned for particular purposes and accordingly made an error of law in the

manner in which the lands were described that the lands as being zoned as set out in reason

no. 1 grounding the decision to refuse planning permission in Register reference no. 310829-

21. The Respondent erred in law and in fact in relying on the development plan provisions

as a basis for the decision in reason No. 1 in circumstances where the provisions relied on

do not justify the basis of refusal contained therein.

4. The Commission’s Position: There is no misunderstanding of zoning here and the

Applicant attempts to create a straw-man point. Chapter 5 of the LCDP is relevant and

Section 5.19.3 makes absolutely clear that in terms of rural enterprise, ‘new employment

related developments are directed to settlements where services are available and lands

have been identified for employment uses.’ The clear principle in the CDP is of suitability

of location for such development in the rural area and, in its own terms, seeks to balance

support for rural enterprise with a need to protect the local environment. Policy EE 55 and

59 are also relevant. The Development Plan outlines that ‘new employment related

developments are directed to settlements where services are available and lands have been

identified for employment uses.’ The Commission, by reference to Policy Objectives EE55

(which seeks to promote development of an appropriate scale at suitable locations) and EE59

(which looks to secure vibrant and viable rural communities), noting the existing residential

properties in the immediate vicinity of the site, the nature and scale of the development – a

waste facility accepting waste from 07:00-00:00 six days a week, and the fact that the site

was un-serviced, concluded that same materially contravened the said policies/objective –

this conclusion represents a reasonable and rational exercise of planning (nor does the

Applicant actually plead that there was).”

79. I agree with the applicant on the semantic issue that the word “zoned” isn’t the best – this

is an area subject to policies rather than a particular zoning. But this doesn’t make much difference

– the decision lends itself to a reading of that word in the sense of “described as”. A decision should

be read as valid where such a reading is available – and such a reading is available here.

80. The really fundamental stumbling block for the applicant is that a decision on whether the

present application is one that is more suitable for a rural area and/or whether it is of appropriate

scale at a suitable location, inherently involves an evaluative judgment in the application of the CDP.

It is an issue of application of the CDP and not of interpreting the CDP and certainly no

misinterpretation has been shown.

81. Section 37(2)(b) of the 2000 Act provides that (emphasis added):

“Where a planning authority has decided to refuse permission on the grounds that a

proposed development materially contravenes the development plan, the Board may only

grant permission in accordance with paragraph (a) where it considers that— [certain

conditions are satisfied]”

82. The point is that the concept of material contravention isn’t limited to zoning objectives – it

relates to the plan generally. So the commission was entitled in principle to find that there was a

contravention even if the text being contravened was not a zoning objective properly so-called.

83. The basic reason why this point fails is that policy objectives EE55 (which seeks to promote

development of an appropriate scale at suitable locations) and EE59 (which looks to secure vibrant

and viable rural communities) involve an exercise of evaluative judgement. The onus is on an

applicant to demonstrate as unreasonable a particular judgement that a particular development falls

outside these objectives, and this applicant hasn’t done that.

84. The applicant submits that the commission wasn’t entitled to find a “material” contravention

even if they were entitled to find that the test in a policy had not been complied with, because it

would have to “fundamentally undermine a specific provision of the plan” as put in oral submissions.

That isn’t the ordinary meaning of material and isn’t the meaning intended by the 2000 Act. The

concept of materiality is illustrated by its opposite – immateriality. There are breaches of norms

that make absolutely no difference to anything. Then there are breaches that only have a de minimis

impact – a decision-taker should regard those as non-material. But anything that could have a real

impact on anything has to be above the zone of immateriality. That, as the commission points, out,

is consistent with the concept of the CDP as a solemn contract. There is no basis to invent some

kind of third category between the material and the immaterial. No such category exists.

85. The applicant argues that Freeney v. An Bord Pleanála [2024] IEHC 427 (Unreported, High

Court, Bradley J., 9 July 2024) is to the contrary but, as appears from the leave to appeal judgment,

the material contravention finding was just that s. 37(2)(b) of the 2000 Act was not engaged in that

particular case – Freeney v. An Bord Pleanála (No. 2) [2025] IEHC 36 (Unreported, High Court,

Bradley J., 24 January 2025). So there is no inconsistency in caselaw here. The nearest one can

get to tension in the caselaw is more at the other end of the spectrum – that materiality should be

set fairly low as a bar. But cases such as Leech v. An Bord Pleanála [2024] IEHC 599 (Unreported,

High Court, Farrell J., 12 November 2024) might be best viewed in the context that the commission

there failed to acknowledge the contravention at all – had they done so and then expressly treated

of the question of materiality there might have been some room for evaluative judgement.

86. There isn’t any basis under this heading or under any of the headings for relief (see the

discussion on the criteria for declaratory relief – clearly not satisfied in the present case – in Save

the South Leinster Way v. An Coimisiún Pleanála (No. 2) [2025] IEHC 541 (Unreported, High Court,

15 October 2025)). The fact that the applicant is concerned about seeking compensation for the

refusal doesn’t warrant relief because the lack of a declaration doesn’t prevent any application that

could otherwise be made. The commission didn’t contest the proposition that there was a contrary

“zoning” properly defined. There is no basis for a declaration of something that isn’t contested.

87. In that regard the applicant’s concern is para. 20 of the Fourth Schedule to the 2000 Act:

“20. The development would contravene materially a development objective indicated in the

development plan for the zoning of land for the use solely or primarily of particular areas for

particular purposes (whether residential, commercial, industrial, agricultural, recreational,

as open space or otherwise or a mixture of such uses).”

88. But this isn’t a case where such a reason for refusal was given. Indeed the statement of

opposition expressly denies the premise of this (emphasis added):

“20. The Applicant’s assertion (§E7-§E8) that Policy Objectives EE55 and EE59 do not

justify a basis for refusing permission is denied – as is apparent from the foregoing, the said

Policy Objectives clearly require the consideration and assessment of the suitability of a

proposed development in a rural area. The said Policy Objectives require the exercise of

planning judgment in such an assessment – which the Board lawfully and rationally did in

this case. The Applicant’s related complaint (§E67-§E70 and §E75-§E79 – Factual

Grounds), which appears to implicitly contend that the said objectives were

construed as land use zoning objectives, is denied and without substance. The said

objectives were not considered as such by the Inspector or the Board. The

Applicant’s assertions in this regard are also premised on an incorrect and incomplete

interpretation of the Development Plan.”

89. So recording in the judgment that the parties agreed that para. 20 of the Fourth Schedule

to the 2000 Act does not apply seems sufficient.

90. By way of a summary of why the main specific complaints under this heading fail:

(i) as regards the complaint in relation to reason no. 1 that the lands the subject matter

of the application are not zoned for the use of lands solely or primarily for particular

areas to be used for particular purposes in the current Louth County Development

Plan 2021 to 2027, that is misconceived because while I agree with the applicant

that the word “zoned” was not entirely correct, that is only a semantic point and

makes no difference because the commission’s decision can be read in a sense that

the CDP envisaged the land as being described as subject to the policies concerned;

(ii) as regards the complaint that contrary to what appears on the face of the decision

of the respondent the lands are acknowledged in the inspector’s report which the

respondent planning appeals board accepted as being white lands, in other words

lands which were unzoned, being located in a rural area, that is essentially just a

reformulation of the previous point and is misconceived for the same reason; and

(iii) as regards the complaint that the respondent made an error of law and fact in

deeming lands which are subject to objectives in the current Louth County

Development Plan 2021 to 2027 in respect of the regulation of particular categories

of development as being lands zoned for particular purposes and accordingly made

an error of law in ascribing the lands as being zoned as set out and recorded in

reason no. 1 grounding the decision to refuse planning permission in An Bord

Pleanála ref. no. 310829-21, that is misconceived because that is again just a

reformulation of the previous point and fails for the same reasons.

Overall summary

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

(i) it is settled law that the wording of a development plan may include highly specific

wording with a limited role for evaluation, or it may include very general language

that creates a zone of evaluative judgement for the decision-taker;

(ii) applying such law to the facts here, the development plan provisions relied on by

the commission in its decision are of a general nature that create a zone of evaluative

judgement in terms of their application;

(iii) it is settled law that generally speaking evaluative judgements not tainted by other

procedural, legal or factual errors are reviewable on an unreasonableness standard;

(iv) applying such law to the facts here, the commission’s conclusions in this case fell

within its zone of evaluative judgement and unreasonableness has not been

demonstrated;

(v) it is settled law that potential and unmitigated impacts are required to be considered

in the EIA process;

(vi) applying such law to the facts here, the commission did not err in considering

potential and/or unmitigated impacts and indeed was required to do so by the EIA

directive;

(vii) it is settled law that the onus of demonstration of error, including as to there being

a lack of expertise available to the commission for the purpose of the EIA directive,

lies on the applicant;

(viii) applying such law to the facts here, the applicant has failed to overcome that;

(ix) it is settled law that a decision should be read as valid rather than invalid if a valid

reading is available; and

(x) applying such law to the facts here, insofar as the wording of the decision is

semantically sub-optimal, it can be read in a way that makes sense and is valid.

Order

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

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by written legal submission within 7 days, the

foregoing order be perfected forthwith thereafter on the basis of no order as to costs

including reserved costs;

(iii) pursuant to O. 103 r. 40(4) RSC, for the avoidance of doubt, any unsuccessful

application to vary any provisional order as to costs proposed in the judgment may

give rise to an adverse award of costs (in the case of an award against a costs-

protected applicant, such award would not give rise to a positive balance at a level

that is prohibitively expensive);

(iv) perfection of the substantive provisions of the foregoing order be postponed pending

any post-judgment applications; and

(v) the matter be listed on Monday 1 December 2025 to confirm the foregoing.