High Court dismisses judicial review where planning inspector's decision on site layout is deemed reasonable and valid.

[2025] IEHC 641

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000042]

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

PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

AAI BANESHANE LIMITED

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

FINGAL COUNTY COUNCIL

NOTICE PARTY

Date of impugned decision: 13 November 2024

Date proceedings commenced: 14 January 2025

Date of main hearing: 6 November 2025

Date draft judgment circulated: 10 November 2025

JUDGMENT of Humphreys J. delivered on Friday the 21st day of November 2025

1. A developer who decides to split a development into multiple applications runs the risk of

creating a problem for themselves that would not otherwise exist. The problem is that a planning

decision-taker should be satisfied that each application has to stand alone as a proper development.

Even if that is the case, where there is an overall project involved, the decision-taker has to be

satisfied with the overall development also. A project only makes sense in its context, and part of

that context has to be the plan for the overall site. To put it another way, splitting the project means

that the decision-taker has to be satisfied with the project both on the assumption that the other

part of the project is built, and also on the assumption that it is not built. Of course, project-splitting

in and of itself is not unlawful (only if it gives rise to evasion or dilution of EU law assessments,

which is not an issue here), but perhaps this is just another example of the point that just because

you can do something doesn’t mean you should do it.

Geographical context

2. The proposed development (https://www.pleanala.ie/en-ie/case/315425) comprises the

construction of 99 build-to-rent apartments across two blocks on lands at Canterbury Gate, Old

Navan Road, Mulhuddart, Dublin 15. The site is positioned between the M3 to the south and the Old

Navan Road to the north. The village of Mulhuddart is located c. 500 m to the south-east of the

site. Blanchardstown Shopping Centre is also located c. 2 km to the site’s south-east. To the north

of the site on the opposite side of the Old Navan Road is the Tolka Valley Park. The site is bound to

the east by an existing residential development known as ‘Canterbury Gate’ within the control of the

applicant, and to the east of the site are a range of commercial/employment uses which include the

‘Maxol M3 Mulhuddart Services’ service station, the RSA Driving Test Centre and the ‘M3 Van Centre’.

The site is in the vicinity of https://maps.app.goo.gl/fCm8h8HwP8AYK1PW9.

Facts

3. On 27 October 2021, the developer (in a different corporate form – NME Capital Ltd) sought

permission (https://www.pleanala.ie/en-ie/case/311771) for a strategic housing development

(SHD) SHD/013/20 (ABP-311771-21) similar to the combined nature of the Phase I and II

applications subsequently made.

4. That SHD application was refused by the commission on 2 March 2022.

5. The developer then made the fateful decision to split the application into two separate normal

planning applications, of which this is Phase I.

6. It’s not clear why two separate applications were made and indeed the developer didn’t see

fit to explain that – on the face of things the most plausible explanation (bearing in mind that the

combined project was similar to the previous SHD application) is project-splitting to avail of ordinary

planning rather than what would otherwise be mandatory SHD (s. 4 of the Planning and Development

(Housing) and Residential Tenancies Act 2016).

7. On 7 October 2022, the applicant applied for permission to Fingal County Council (the

council) to construct 99 build-to-rent apartments at Canterbury Gate, Mulhuddart, Dublin 15 (reg.

ref. FW22A/0228) (Phase 1).

8. On 19 October 2022, the applicant applied for permission to the council to construct 91

build-to-rent apartments at Canterbury Gate, Mulhuddart, Dublin 15 (reg. ref. FW22A/0237) (Phase

2).

9. On 25 November 2022, the council refused permission for Phase 1.

10. On 1 December 2022, the council refused permission for Phase 2.

11. In December 2022, the applicant appealed the decisions in respect of Phases 1 (link above)

and 2 (https://www.pleanala.ie/en-ie/case/315450) to the commission and they were assigned

references ABP 315425-22 and ABP-315450-23 respectively.

12. On 30 January 2023, the council made submission in respect of both appeals and stated that

in its view permission should be refused on the grounds that the development would be premature,

until such time as the route for the proposed N3 Littlepace to M50 upgrade was finalised.

13. On 30 January 2024, the commission’s inspector carried out an inspection of the site for

Phases 1 and 2.

14. On 28 February 2024, the inspector completed reports in respect of Phases 1 and 2 and

recommended that permission be granted.

15. On 22 May 2024, the commission invited the applicant and the council, pursuant to s. 137

of the Planning and Development Act 2000 (the 2000 Act), in both appeals, to make submissions on

the new development plan that had come into effect and the Sustainable Residential Development

and Compact Settlement Guidelines for Planning Authorities (the 2024 Guidelines) that came into

effect in January 2024 (https://www.opr.ie/wp-content/uploads/2024/01/Sustainable-Residential-

Development-and-Compact-Settlements-Guidelines-for-Planning-Authorities.pdf).

16. On 7 June 2024, the council responded to the commission’s s. 137 notice and stated that it

had no further submissions to make.

17. On 17 June 2024, the applicant responded to the commission’s s. 137 notice.

18. On 20 June 2024, the commission, pursuant to s. 131 of the 2000 Act, invited the council to

comment on the response of the applicant in respect of the appeals concerning Phases 1 and 2.

19. On 10 July 2024, the council responded to the s. 131 notice in respect of the appeals

concerning Phases 1 and 2 and stated that it had no further submissions to make.

20. On 20 August 2024, the commission issued a further request pursuant to s. 137 of the 2000

Act to both the applicant and the council in respect of the appeal concerning Phase 1, stating the

notice superseded the notice of the 22 May 2024. In addition to requesting comment on the issues

raised in the original notice, the applicant was invited to comment as to how residential amenities

requirements for Phase 1 would be met in the absence of Phase 2.

21. On 6 September 2024, the council replied to the s. 137 notice recording that it had no further

submissions to make.

22. On 13 September 2024, the applicant responded to the s. 137 notice, stating how the

recreational amenities requirement for Phase 1 would be met in the absence of Phase 2.

23. On 16 September 2024 , the commission, pursuant to s. 131 of the 2000 Act, invited the

council to comment on the responses of the applicant.

24. On 19 September 2024, the council replied stating that it had no further comment.

25. On 21 October 2024, the inspector prepared an addendum report in respect of Phase 2. He

continued to recommend that permission be granted for Phase 2.

26. On 23 October 2024, the inspector prepared an addendum report in respect of Phase 1. He

continued to recommend that permission be granted for Phase 1.

27. On 4 November 2024, the commission met in respect of both the appeals concerning Phase

1 and Phase 2, and made a direction that permission be refused for both Phases.

28. On 13 November 2024, the commission made an order in both appeals refusing permission.

29. The applicant has brought two sets of proceedings, the present case being AAI Baneshane I

challenging the refusal for Phase 1, and a second case, AAI Baneshane II challenging the refusal for

Phase 2.

Procedural history

30. The proceedings were issued on 14 January 2025.

31. On 20 January 2025, I granted the applicant leave to seek judicial review.

32. On 17 February 2025, both matters were listed for the first return date of originating notice

of motion, and default directions were ordered.

33. Statements of opposition were delivered in both proceedings on 25 May 2025.

34. On the List to Fix Dates on 30 June 2025, both proceedings were assigned a trial date of 6

November 2025.

35. The composite written submissions of the applicant were delivered on 6 October 2025.

36. Both matters were listed for callover on 13 October 2025.

37. The composite written submissions of the respondent were delivered on 24 October 2025.

38. Both matters were listed for callover on 3 November 2025, and papers were in order on that

date.

39. The matter was heard on 6 November 2025 in tandem with AAI Baneshane II.

40. 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.

41. On 10 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.

42. 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) any typographical, factual or legal errors in the decision;

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

(e) 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; identifying points that the

court proposes to address but that the parties consider it unnecessary to address;

(f) requesting the court to decide a point that, while unnecessary to decide, is one the

party considers could beneficially be decided;

(g) identifying significant procedural, factual or legal points that the party considers that

the court was required to address but has not addressed or not provided reasons

for; and

(h) 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1

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

44. 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 publication

(indeed given their lack of status it is impracticable to refer to them, even in the context of

considering such drafts in other litigation, until the judgment is formally issued) or for any other

transmission save for the legitimate purposes of the litigation. Therefore anyone with information as

to the text, content or proposed outcome of any draft is required not to transmit such information

to others save solely by way of private transmission for the legitimate purposes of the litigation and

subject to a similar restriction on any recipient (see Attorney General v. Crosland (No. 2) [2021]

UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication

of draft judgments is in the interests of the administration of justice). The contents of this paragraph

constitute an immediately effective direction of the court to the parties and anyone having notice of

the draft judgment with effect from the date of circulation of the draft.

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

changed at the developer’s request to 18 November 2025. The commission proposed a minor

phrasing correction. The developer wrote on 17 November 2025, seeking more substantive change

in relation to core ground 1 which I deal with below.

Relief sought

46. The reliefs sought are as follows:

“(i) An order of certiorari quashing the decision of the first respondent ‘the Board’ dated

the 13th November, 2024, refusing permission in respect of application ref ABP 315425-22.

(ii) An Order remitting the application to the Board to be determined in accordance with

law.

(iii) Such Declaration(s) of the legal rights and/or legal position of the Applicant and/or

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

(iv) A declaration that the protective cost provisions contained in s.50B of the Planning

and Development Act 2000 ‘the PDA 2000’, and/or the Environment (Miscellaneous

Provisions) Act 2011 as amended and/or O.99 of the Rules of the Superior Courts and/or

section 169 of Legal Services Regulation Act 2015, as interpreted in light of Article 9 of the

Aarhus Convention, apply to these proceedings.

(v) If necessary, an order for discovery.

(vi) Such further or other order.

(vii) Liberty to Apply.

(viii) An Order in respect of the costs of these proceedings.”

Grounds of challenge

47. The core grounds of challenge are as follows:

“PART I – CORE GROUNDS

DOMESTIC CORE GROUNDS

CORE GROUND 1

The conclusion of the Board that the location of the site for the proposed development was

in relative isolation from high frequency public transport, and consequently not suitable to

cater for the density ranges that were open for consideration in circumstances where the

site was within a ‘City-Suburban/Urban Extension’ for the purposes of the Sustainable

Residential Development and Compact Settlements Guidelines for Planning Authorities 2024,

(‘the Compact Settlements Guidelines 2024’), was irrational and ultra vires the Board, as

the evidence before the Board was not capable of supporting such a conclusion. Further, or

in the alternative, the Board erred in law by failing to have regard to, and/or misinterpreting

the true meaning and effect of, the definition of accessible location in Table 3.8 of the

Compact Settlements Guidelines 2024, in breach of s.34(2)(ia) of the Planning and

Development Act 2000, as amended (‘the PDA 2000’).

CORE GROUND 2

The Board acted ultra vires s.34(10)(b) of the PDA 2000, and/or its obligation to give reasons

in accordance with Constitutional justice, in failing to explain adequately or at all, the basis

for its disagreement with the conclusion of the Inspector that the site the subject of the

application for permission was an ‘accessible location’ within the meaning of Table 3.8 of the

Compact Settlements Guidelines 2024.

CORE GROUND 3

The Board acted ultra vires s.34(10)(b) of the PDA 2000, and or its obligation to give reasons

as a requirement of Constitutional justice, in failing to identify the basis for its conclusion

that the proposed layout on the site represented a ‘poor disposition of units on the overall

site’, in circumstances where the Inspector had assessed and indicated his approval of the

proposed layout.

CORE GROUND 4

The Board erred in law and/or acted ultra vires s.34(4) (a)(i) and/or s.34(2)(a) of the PDA

2000 when concluding that it would be inappropriate to grant permission with a condition

that the development could only be developed concurrently with the proposed development

on the immediately adjacent lands the subject of application ABP ref. 315450 as

recommended by the inspector (which condition also specifically provided that the units in

Blocks A and B would not be occupied until the completion of Blocks C and D within Phase 2

of the overall development). Further, or in the alternative, the Board failed to give any or

any adequate reasons as to why the imposition of such a condition was ‘inappropriate’ and/or

its conclusion in that regard was ultra vires and/or irrational in circumstances where the

attachment of the said condition would achieve a clear planning purpose, namely,

compliance with the requirements of the Guidelines for Planning Authorities issued under

Section 28, PDA, entitled Sustainable Urban Housing: Design Standards for New Apartments

(December 2020) (‘the Apartment Guidelines’), in relation to BTR development and in

particular SPPR 7 (b) thereof, which relates to the provision of communal and recreational

amenities.

EU LAW CORE GROUNDS

N/A.”

Some general considerations

48. It may be of assistance to set out some general considerations arising from previous caselaw,

under a number of headings as follows.

Judicial review principles

49. Some relevant legal principles concerning judicial review which have been rehearsed in

previous caselaw include the following:

(i) Judicial review is concerned with the legality rather than the correctness of the

decision: per Clarke J. (Dunne J. concurring) in Sweeney v. Fahy [2014] IESC 50

(Unreported, Supreme Court, 31 July 2014) at paras. 3.8-3.15. It is not an appeal

on the merits and it is not for the court to substitute its view for that of the decision-

taker: per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal

[1986] I.R. 642 at p. 654 (Hamilton P. concurring); per Denham J. in Meadows v.

Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at p.

743; per Lady Hale in R (Cart) v. Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663

at para. 47: “it is not difficult to dress up an argument as a point of law when in

truth it is no more than an attack upon ... factual conclusions”. See also Stapleton

v. An Bord Pleanála & Savona [2025] IEHC 178 (Unreported, High Court, Holland J.,

1 April 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court,

26 September 2025) per Farrell J. at 11.

(ii) As Singh L.J. and Carr J. put it in R (Hoareau and Bancoult) v. Secretary of State for

Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), [2019] 1 W.L.R.

4105 at [326] (emphasis added): “Judicial review is not, and should not be

regarded as, politics by another means”. The court must keep the separation

of powers firmly in mind: Sinnott v. Minister for Education [2001] IESC 63, [2001]

2 I.R. 545 (Keane C.J., Denham, Murphy, Murray, Hardiman, Geoghegan and

Fennelly JJ.); T.D. v. Minister for Education [2001] IESC 101, [2001] 4 I.R. 259

(Keane C.J., Denham, Murphy, Murray and Hardiman JJ.); B. v. Child & Family

Agency & Ors. [2025] IESC 2 (Unreported, Supreme Court, Hogan J., 27 January

2025) (O’Donnell C.J., Murray, Collins and Donnelly JJ. concurring), para. 62;

consequently the courts must respect the principle that policy choices are for other

branches of government. To stray into policy fundamentally distorts the process

because “[t]he administrator is often concerned with broad considerations of the

public interest whereas the judge tends to focus on the claims of the parties to the

case before him” De Blacam, Judicial Review, 2nd ed, p. 97.

(iii) Insofar as concerns evaluative judgement, the weight to be given to any

consideration or piece of evidence is quintessentially a matter for the decision-taker:

Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 (HL),

780 (Lord Hoffmann); per Keane C.J. (Denham, Murphy and McGuinness JJ.

concurring) in Baby O v. Minister for Justice [2002] IESC 44, [2002] 2 I.R. 169,

[2003] 1 I.L.R.M. 24; M.E. v. Refugee Appeals Tribunal [2008] IEHC 192

(Unreported, Birmingham J., 27 June 2008) at para. 27; Heathrow Airport Ltd

[2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 WLUK 212,

Lord Hodge and Lord Sales SCJJ. at 121; Moran v. An Bord Pleanála [2025] IEHC

510 (Unreported, High Court, 26 September 2025) per Farrell J. at 12. Generally

speaking evaluative judgements involving a significant degree of planning

judgement and not tainted by other procedural, legal or factual errors are reviewable

on an irrationality standard: Sherwin v. An Bord Pleanála [2024] IESC 13

(Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton, O’Malley, Baker

and Murray JJ. concurring); Barr J. in Graymount House Action Group v. An Bord

Pleanála [2024] IEHC 327 (Unreported, High Court, 31 May 2024), leave to appeal

refused in Graymount House Action Group v. An Bord Pleanála [2025] IESCDET 22

(Dunne, Woulfe and Hogan JJ., 17 February 2025).

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

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

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

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

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

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

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

2024) at §57).

(v) 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); Friends of Killymooney Lough v. An

Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025); Moran

v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025)

per Farrell J. at 13.

(vi) It is not appropriate to engage in legalistic over-parsing or micro-analysis of

decisions, or of legal instruments generally, frequently based on semantic

querulousness: per Sullivan J. in R (Blewett) v Derbyshire County Council [2003]

EWHC 2775 (Admin), [2004] Env LR 29 at para. 41; R. (Friends of the Earth Ltd and

others) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021]

P.T.S.R. 190, [2020] 12 WLUK 212, Lord Hodge and Lord Sales SCJJ.; per O’Donnell

C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE [2023] IESC

11 (Unreported, Supreme Court, 10 May 2023) at para. 37. As stated by Peart J. in

G.T. v. Minister for Justice, Equality and Law Reform [2007] IEHC 287, [2007] 7 JIC

2708 (Unreported, High Court, 27 July 2007), para. 3: “It is not desirable that a

decision be parsed and analysed word for word in order to discern some possible

infelicity in the choice of words or phrases used and to hold that a finding of

credibility adverse to the applicant is invalid, unless the matters relied upon have

been clearly misunderstood or mis-stated by the decision maker. The whole of the

decision must be read and considered in order to reach a view as to whether, when

the decision is read in its entirety and considered as a whole, there was no

reasonable basis for the decision maker reaching that conclusion”. See also A.I.M.Z.

v. Refugee Applications Commission & Ors. [2008] IEHC 420, [2008] 11 JIC 0705

(Unreported, High Court, 7 November 2008) at para. 24 per Clarke J.; per McCarthy

J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009] IEHC 383, [2010] 7 JIC 2803

(Unreported, High Court, 28 July 2009), para. 13; per Clark J. in Obuseh v. Minister

for Justice, Equality and Law Reform & Ors. [2010] IEHC 93, [2010] 1 JIC 1404

(Unreported, High Court, 14 January 2010), para. 21; per MacEochaidh J. in Bondo

v. Minister for Justice & Ors. [2012] IEHC 454, [2012] 11 JIC 0903 (Unreported,

High Court, 9 November 2012), para. 24; per Barr J. in P.M. v. Refugee Appeals

Tribunal [2014] IEHC 497, [2014] 10 JIC 0204 (Unreported, High Court, 2 October

2014), para. 59; per Faherty J. in O.S. v. Refugee Appeals Tribunal [2015] IEHC

839, 2015 WJSC-HC 25494, [2015] 12 JIC 1505 (Unreported, High Court, 15

December 2015), para. 59; X.E. v. International Protection Appeals Tribunal [2018]

IEHC 402, [2018] 7 JIC 0405 (Unreported, High Court, Keane J., 4 July 2018); B.D.C.

(Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460, [2018] 7 JIC

2006 (Unreported, High Court, 20 July 2018), para. 7; Moran v. An Bord Pleanála

[2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13.

Mere technicalities are not normally a proper basis for the grant of relief: see e.g.

Moore v. Dun Laoghaire Rathdown County Council [2016] IESC 70, [2017] 3 I.R. 42,

[2017] 2 I.L.R.M. 21 (Clarke, Laffoy and O’Malley JJ.) para. 4.8 (distinguishing a

substance point from “a technicality”). In Save Cork City Community Association

CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60, Woulfe J. (Dunne,

Charleton, O’Malley and Hogan JJ. concurring) said (without needing to decide the

point) that there was “a great deal of force” in the submission that it would be

disproportionate to quash a decision on the basis of a “technical procedural error”.

See also Watchhouse Cross Shopping Centre v. An Coimisiún Pleanála [2025] IEHC

520 (Unreported, High Court, 3 October 2025).

(vii) Relatedly, a decision must be read in the round and in its context. One has to view

an administrative decision in the round, and not place undue weight on semantic

quibbles in respect of micro-sub-elements of it: O.A.A. v. Minister for Justice,

Equality and Law Reform & Anor. [2007] IEHC 169, [2007] 2 JIC 0904 (Unreported,

High Court, Feeney J., 9 February 2007); J.B.R. v. Refugee Appeals Tribunal & Ors.

[2007] IEHC 288, [2007] 7 JIC 3110 (Unreported, High Court, Peart J., 31 July

2007); per Cooke J. in I.R. v. Minister for Justice [2009] IEHC 510, [2015] 4 I.R.

144 at p. 152; M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020]

IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 6. A

decision should be read not solely from an applicant’s point of view (an impossible

standard), but from the starting point of it being valid rather than invalid where

possible. One has to stand back and ask what the decision is fundamentally

saying (O’Donnell & Ors. v. An Bord Pleanála [2023] IEHC 381 (Unreported, High

Court, 1 November 2023), para. 54; St. Margaret’s Recycling v. An Bord Pleanála

[2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024) at §57;

Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September

2025) per Farrell J. at 13.

(viii) Judicial review is not an exercise in pointless formalism: see for example Okunade

v. Minister for Justice [2018] IESC 56, [2018] 11 JIC 1401 (Unreported, Supreme

Court, 14 November 2018) per O’Donnell J. (Clarke C.J. and O’Malley J. concurring)

at para. 21. It is not a game where the respondents can score as many goals as

they like, but if the applicant scores one goal, the game is over. The court must

make a balanced and reasonable assessment of the overall sustainability of

a decision, even if there is an argument for saying that limited parts of it are sub-

optimal: M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC

41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 21.

(ix) It is not for the applicant to dictate the procedures to be adopted or the form

of a decision: see for example per Ryan P. (Peart and Hogan JJ. concurring) in A.B.

v. Minister for Justice and Equality [2016] IECA 48, [2016] 2 JIC 2602, 2016 WJSC-

CA 1525 (Unreported, Court of Appeal, 26 February 2016) at para. 43.

Onus of proof

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

previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

at para. 116; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court,

26 September 2025) per Farrell J. at 14. To put the same point another way, there

is a presumption of validity for administrative decisions: per Finlay P. in In re

Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5 December 1977) and per

Keane J. in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 at

102; Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669

(Unreported, High Court, Holland J., 25 November 2024), para. 22; Moran v. An

Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per

Farrell J. at 15.

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

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

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

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

Raifeartaigh and Collins JJ. concurring). An onus on a decision-taker in the

administrative process (e.g. to conduct a valid AA) does not convert into an

evidential or any burden in the judicial process to show that the decision is valid (for

reasons explained in Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC

2701 (Unreported, High Court, 27 January 2023) at para. 85).

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

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

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

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

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

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

not.

(iv) 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;

Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported,

High Court, 1 November 2024) at para. 115; Minoa Ltd v. An Bord Pleanála [2024]

IEHC 704 (Unreported, High Court, Heslin J., 10 December 2024), para. 333; Ó

Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J.,

19 September 2025) at 55. 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). The Supreme Court determination in 100 Meter Tall Group v. An

Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1 July 2025) is

to the same effect: “17. As [the trial judge] pointed out (at para. 196) the Court of

Justice ruled in Case C-721/22 Eco Advocacy CLG (EU:C: 2023: 477) the Board

simply provides ‘reasons sufficient to explain that the decision does not create

reasonable scientific doubt as to impact on European sites.’ This was simply the test

which [the trial judge] applied in the present case. He concluded (at para. 230) that

the Board had addressed the issue of potential bird movements of water birds and

hen harriers and ‘gives reasons for that conclusion which the applicants have not

displaced evidentially.’ 18. The Court considers that this second issue involves the

application of standard principles and does not meet the constitutional criteria”. See

also Eco Advocacy CLG v. An Bord Pleanála & Statkraft [2025] IEHC 15 (Unreported,

High Court, 15 January 2025) at §95; Concerned Residents of Coolkill v. An Bord

Pleanála & Midsal Homes [2025] IEHC 265 (Unreported, High Court, Holland J., 19

May 2025) at 309.

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

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

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

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

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

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

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

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

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

at §40-§41.

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

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

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

inadmissible on standard evidential principles insofar as matters of opinion are

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

Court, 11 April 2025).

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

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

of proof: RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC 4,

[2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273 (Clarke C.J.) (O’Donnell, MacMenamin,

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

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

conflict will be resolved against the opposing party.

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

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

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

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

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

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

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

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

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

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

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

137 (Ní Raifeartaigh and Pilkington JJ. concurring)). This specific and common sense

power of the court to evaluate inherent defects in evidence remains notwithstanding

caselaw on cross-examination such as RAS Medical or Re Bayview Hotel (Waterville)

Limited [2022] IEHC 516 (Unreported, High Court, Butler J., 8 September 2022).

This is consistent by analogy with the judgment of Hardiman J. (Hanna and Feeney

JJ. concurring) in DPP v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130, [2007] 1

I.L.R.M. 350 at para. 95 – the court as finder of fact is “not ... constrained” to accept

“the only account available” even if that account is provided by oral evidence. The

evidence of experts is one area where the court is not automatically obliged to accept

evidence absent cross-examination: Tesco Ireland Limited v. Stateline Transport

Limited [2024] IECA 46 (Unreported, Court of Appeal, Butler J., 23 February 2024)

(Costello and Noonan JJ. concurring).

Reasons

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

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

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

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

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

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

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

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

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

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

129; per Barr J. in Graymount House Action Group v. An Bord Pleanála [2024] IEHC

327 (Unreported, High Court, 31 May 2024), leave to appeal refused in Graymount

House Action Group v. An Bord Pleanála [2025] IESCDET 22 (Dunne, Woulfe and

Hogan JJ., 17 February 2025); see also non-precedentially Morris v. An Bord

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

Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J.,

19 September 2025) at 49; Moran v. An Bord Pleanála [2025] IEHC 510

(Unreported, High Court, 26 September 2025) per Farrell J. at 33; reasons are to be

understood in context of the “Broad issues” – Finlay C.J. (Griffin, Hederman and

Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993] 1 I.R. 39, [1992]

I.L.R.M. 237 at p. 76 or “Broad gist” – Faulkner v. Minister for Industry and

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

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

(ii) A decision-taker is not required to give “reasons for the reasons”: Munby L.J.

(Tomlinson and Patten LJJ. concurring) in In re A. and L. (Children) [2011] EWCA

Civ. 1611, [2011] 12 W.L.U.K. 725, [2012] 1 F.L.R. 1243, [2012] Fam. Law 285, at

para. 35 (in the context of judicial reasoning – the administrative obligation can’t be

greater); N.P.B.K. (D.R.C.) v. International Protections Appeals Tribunal [2020]

IEHC 450 (Unreported, High Court, 25 September 2020) at 29; Ó Murthuile v. An

Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September

2025) at 49.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

submission can be challenged in the normal way.

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

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

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

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

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

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

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

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

discursive ruling”. Confusing a lack of narrative discussion with a lack of reasons is

a classic applicant’s fallacy: see e.g. Ó Murthuile v. An Bord Pleanála [2025] IEHC

498 (Unreported, High Court, Farrell J., 19 September 2025) at 23.

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

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

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

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

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

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

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

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

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

2022) at para. 65; Shadowmill v. An Bord Pleanála [2023] IEHC 157 (Unreported,

High Court, Holland J., 31 March 2023), para 84; Pat O’Donnell v. Dublin City Council

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

144.

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

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

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

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

Hogan, Collins and Donnelly JJ. concurring).

(viii) Consistently with the principle that there do not need to be reasons for the reasons,

a decision-maker doesn’t need to give reasons for not changing her mind from

an already-articulated position, or for not making an exception to a clear policy

for which reasons have been previously articulated, unless there is a significant

change in circumstances or the unusual case of a new point being made of such

significance that it needs to be expressly addressed. That principle in turn reflects

an even broader principle that a re-iteration of a previous position or decision is not

a new decision for the purposes of judicial review, and does not for example re-start

the clock for challenge: Killegland Estates v. Meath County Council [2022] IEHC 393,

[2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022). That said, a new plan is

indeed a new decision and can be challenged afresh even if it contains the proverbial

old wine in a new bottle. But an individual decision does not become a fresh decision

merely because the decision-maker is asked to change her mind and doesn’t.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

legally incorrect submission.

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

from a previously articulated position absent a significant change in circumstances

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

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

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

November 2024), para. 145 per Holland J.

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

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

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

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

JJ. concurring); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High

Court, 26 September 2025) per Farrell J. at 34.

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

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

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

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

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

Ireland Ltd v. An Bord Pleanála [2017] IEHC 550 (Unreported, High Court, Haughton

J., 28 September 2017)).

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

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

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

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

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

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

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

The lens of the material before the decision-maker

52. The foundational concept is that consideration by a decision-taker involves essentially three

elements, which are probably best categorised as follows (see Rural Residents Wind Aware v. An

Coimisiún Pleanála I [2025] IEHC 600 (Unreported, High Court, 6 November 2025) at 76):

(i) matters that must be considered either autonomously – normally finite and well

identified – or only if they are raised, such as submissions;

(ii) matters that must not be considered; and

(iii) an infinite range of other matters which a decision-taker may consider if she wants

to but does not have to.

53. Therefore if an autonomous duty does not arise, and if there is no breach of a prohibition on

considering something, then everything else falls under the rubric of what was before the decision-

taker at the time of the decision. Thus:

(i) a basic principle is that in general, the legality of a decision is viewed through the

lens of the material before the decision-taker at the time of the decision,

and not with the benefit of further evidence in hindsight, although there are defined

exceptions: I.S.O.F. v. Minister for Justice, Equality and Law Reform [2010] IEHC

457 (Unreported, High Court, Cooke J., 17 December 2010); Jahangir v. Minister for

Justice and Equality [2018] IEHC 37, [2018] 2 JIC 0102 (Unreported, High Court, 1

February 2018); M.H. (Bangladesh) v. Refugee Appeals Tribunal [2018] IEHC 496,

[2018] 6 JIC 2607 (Unreported, High Court, 26 June 2018); B.D. (Bhutan and Nepal)

v. Minister for Justice and Equality [2018] IEHC 461, [2018] 7 JIC 1709 (Unreported,

High Court, 17 July 2018); A.J.A. (Nigeria) v. International Protection Appeals

Tribunal [2018] IEHC 671, [2018] 11 JIC 1403 (Unreported, High Court, 14

November 2018); O.A. (Nigeria) v. International Protection Appeals Tribunal [2018]

IEHC 661, [2018] 11 JIC 2003 (Unreported, High Court, 20 November 2018); De

Souza v. Minister for Justice and Equality [2019] IEHC 440, [2019] 6 JIC 0407

(Unreported, High Court, 4 June 2019); Ratushnyak v. Minister for Justice and

Equality [2019] IEHC 619 (Unreported, High Court, 16 August 2019) per Keane J.

at paras. 35 to 36; J.W. v. Minister for Justice and Equality [2020] IEHC 500, [2020]

10 JIC 1501 (Unreported, High Court, 15 October 2020); Reid v. An Bord Pleanála

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

Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303, [2021] 5 JIC 0706

(Unreported, High Court, 7 May 2021) at para. 87; Google v. Data Protection

Commission [2024] IEHC 577 (Unreported, High Court, Barr J., 11 October 2024);

Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September

2025) per Farrell J. at 16; Eglington Residents Association v. An Bord Pleanála

[2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025) at 9;

(ii) it follows that if the consideration of something isn’t an autonomous obligation, and

if nobody in the process raises that something, then belatedly introducing the

point in judicial review is not generally a plausible or permissible basis for quashing

a decision: North Great Georges Street Preservation Society v. An Bord Pleanála

[2023] IEHC 241 (Unreported, High Court, 15 May 2023), though see exceptions

specified in Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230 (Unreported, High

Court, 12 April 2021) – if such exceptions apply then the court can potentially receive

new evidence; and

(iii) it follows a fortiori that if an applicant not only fails to make the point to the decision-

taker but makes a contrary point, that is disqualifying in terms of permitting an

applicant to obtain an order quashing a decision on such an inconsistent basis (see

Clifford v. An Bord Pleanála [2021] IEHC 459 (Unreported, High Court, 12 July

2021), para. 52(ii) where landowners tried to object to a condition that had been

inserted on foot of their own substantive submissions).

Lack of conditions/ inconsistent conditions

54. Some principles established in previous caselaw on conditions include the following:

(i) A planning decision-taker has power to alter a development by condition

including by accepting an alternative proposal from a developer, without this

constituting a new application: Eglington Residents Association v. An Bord Pleanála

[2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025) at 144-145.

(ii) However there is no obligation on the commission to impose conditions to save a

development: “the Board is not under an obligation to help applicants for permission

by reconfiguring their projects in a more acceptable format. While sometimes there

are cases where it would be beneficial to do so, there is no basis to suggest that this

is a legal requirement”: Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported,

High Court, 26 September 2025) per Farrell J. at 39.

(iii) It is settled law that a statutory provision such as the commission’s power to impose

conditions should not be interpreted so as to extend to conditions that are

unworkable and unenforceable for example by reason of relating to the use of

land outside of the control of the developer – McGowan v. An Coimisiún Pleanála

[2025] IEHC 405 (Unreported, High Court, 8 July 2025).

(iv) Conditions should be read harmoniously if possible: Fahybeg Windfarm Opposition

Group v. An Bord Pleanála [2025] IEHC 310 (Unreported, High Court, 30 May 2025).

Harmless error/ non-material error

55. The law in relation to harmless error and non-material error can be summarised as follows:

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

law) if the error was harmless and did not materially affect the result. The

Supreme Court has described this (in the determination context) as a “well-

established” concept: Carrownagowan Concern Group v. An Bord Pleanála [2025]

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

Bord Pleanála [2025] IESCDET 126 (Woulfe, Murray and Donnelly JJ., 16 October

2025) at 12 referring to Carrownagowan: “it is well-established as a matter of Irish

law that where a decision is challenged in judicial review proceedings, not every

error on the part of a decisionmaker will result in a quashing of that decision. It

found that the applicants in that case had not identified any arguable basis for

contending that EU law compels a different approach, whether by reference to the

provisions of the Habitats Directive, the jurisprudence of the CJEU or otherwise”,

and at 13: “The trial judge held that the uncontested evidence in this case was that

the lack of [site-specific conservation objectives] made no difference. The applicant

had the opportunity to contest that evidence, but he did not do so. On the evidence,

it was clearly open to the trial judge to take the view that any defect (if any) arising

from the absence of SSCOs was ‘harmless’, and did not warrant quashing the

planning permission”, and at 14: “the issues arising involve the application of well-

established principles regarding the doctrine of ‘harmless error’, which do not call

for the making of an Article 267 reference on any question”. See also Walton v.

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

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

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

52, [2015] 1 W.L.R. 3710 (Lord Carnwath SCJ.) (Lord Neuberger, Lord Mance, Lord

Clarke and Lord Toulson SCJJ. concurring); Canterbury City Council v. Secretary of

State for Housing Communities and Local Government [2019] EWHC 1211 (Admin.),

[2019] 5 W.L.U.K. 225 (Dove J.); Sliabh Luachra Against Ballydesmond Windfarm

Committee v. An Bord Pleanála [2019] IEHC 888, [2019] 12 JIC 2017 (Unreported,

High Court, McDonald J., 20 December 2019); R. (Hudson) v. Windsor and

Maidenhead Royal Borough Council [2021] EWCA Civ 592, [2021] 1 W.L.R. 5588

(Coulson L.J. at §§77-78); opinion of Advocate General Bobek delivered on 14

January 2021, UH v An tAire Talmhaíochta Bia agus Mara and Others, C-64/20,

ECLI:EU:C:2021:14; Reid v. An Bord Pleanála (No. 2) [2021] IEHC 362, [2021] 10

JIC 0606 (Unreported, High Court, 6 October 2021) at §53; Heather Hill

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

(Unreported, High Court, Holland J., 16 March 2022) at §257 et seq. and §326(d)

and (e); Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála

[2022] IEHC 700, [2022] 12 JIC 1609 (Unreported, High Court, 16 December 2022)

at §80; Toole v. Minister for Housing (No. 6) [2023] IEHC 592, [2023] 10 JIC 3102

(Unreported, High Court, 31 October 2023) at §39; Eco Advocacy v. An Bord

Pleanála [2025] IEHC 15 (Unreported, High Court, 15 January 2025); Massey v. An

Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025).

The term “procedural defect” in Altrip has an autonomous EU meaning which is not

limited to narrow technical issues that do not include errors in relation to the facts

– the phrase covers any defects committed in the impugned procedure: see for

example the opinion of Advocate General Cruz Villalón delivered on 20 June 2013 in

Altrip, ECLI:EU:C:2013:422 at paras. 44 and 45. In Altrip the law in relation to

environmental impact assessment was viewed as procedural. In any event there is

no logical or rational basis to limit the Altrip doctrine to particular kinds of harmless

error. The Supreme Court recently affirmed the doctrine in a determination context

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

JJ., 16 October 2025).

(ii) As memorably put by Holland J. in Colbeam v. Dun Laoghaire Rathdown County

Council [2025] IEHC 437 (Unreported, High Court, 5 August 2025) at 125, a minor

error such as irrelevant considerations introduced by an elected member, Cllr Saul,

in that case, “can be viewed as marginal, merely ancillary, non-central or as an

isolated undisciplined utterance not hair-triggering certiorari” (emphasis added).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

absence of a mandatory provision that compels such an approach.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

taker to disprove “any effect whatsoever” even those having “no appreciable effect”

or “hypothetical risk”: opinion of Advocate General Kokott of 29 January 2004 in

Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging

tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en

Visserij, C-127/02, ECLI:EU:C:2004:60, paras. 102-106; judgment of 7 November

2018, Holohan v An Bord Pleanála, C-461/17, ECLI:EU:C:2018:883 at paras. 33-37;

Holland J. in Heather Hill Management Company CLG v. An Bord Pleanála [2022]

IEHC 146, [2022] 3 JIC 1603 (Unreported, High Court, 16 March 2022), citing R

Mynydd Y Gwynt Ltd v The Secretary of State for Business, Energy and Industrial

Strategy [2016] EWHC 2581 (Admin), [2016] 10 W.L.U.K. 396, [2017] Env. L.R. 14

(at para. 259). Absence of reasonable doubt therefore does not mean “absolute

certainty” (paras. 44, 58, 59, and 61 of the CJEU's judgment of 7 September 2004,

Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging

tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en

Visserij, C-127/02, ECLI:EU:C:2004:482 (Grand Chamber) and paras. 102 to 108 of

the Advocate General's opinion in Waddenzee, and the judgment in Holohan, at

paras. 33-37, Lord Carnwath in R. (on the application of Champion) v. North Norfolk

District Council [2015] UKSC 52, [2015] 1 W.L.R. 3170 at para. 41). Insofar as

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

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

I.L.R.M. 281 (Noonan J.); Baile Eamoinn Teoranta v. An Bord Pleanála [2020] IEHC

642, [2020] 12 JIC 0405 (Unreported, High Court, Barr J., 4 December 2020)) those

statements were fact-specific. It is not the law that any conceivable possibility of

difference, no matter how tenuous, theoretical or unreasonable, would be deadly to

a permission. That can’t be the law in any workable sense – virtually anything is

“conceivable”, but not everything is reasonable.

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

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

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

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

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

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

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

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

Finlay Geoghegan JJ. concurring).

(vi) 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: Carrownagowan Concern Group v. An Bord Pleanála (No.

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

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

also relevant: Altrip.

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

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

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

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

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

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

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

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

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

The impugned decision

56. 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. Having regard to the relevant provisions of the Fingal Development Plan 2023-2029 and

to the density provisions of the Sustainable Residential Development and Compact

Settlements Guidelines for Planning Authorities issued by the Department of Housing, Local

Government and Heritage in January 2024, it is considered that the proposed development

of itself constitutes a poor disposition of units on the overall site. This is compounded

by the overall scheme, including the elements proposed under the concurrent planning

application (ABP-315450-23/planning register reference FW22A/0237), which would lead to

a net density of 184 dwellings per hectare, significantly in excess of the range

which would generally be considered for such a site under the Ministerial

Guidelines. Having regard to the specific location of the site, which it is considered to be

'City-Suburban/Urban Extension' as set out in the Guidelines and in relative isolation

from high frequency public transport, it is considered that the proposed development would

not be in accordance with the density ranges which are open for consideration.

The proposed development would, therefore, be contrary to the proper planning and

sustainable development of the area.

2. Having regard to the Sustainable Urban Development Design Standards for New

Apartments Guidelines for Planning Authorities issued by the Department of Housing, Local

Government and Heritage in January 2024 (2023), which includes transitional arrangements

for Build to Rent schemes, and Specific Planning Policy Requirement (SPPR) 7, which seeks

to ensure such schemes include detailed proposals for resident support facilities, services

and amenities, and noting the reliance on the provision of such facilities as part of a separate

concurrent planning application (ABP 315450-23/planning authority reference

FW22A/0237), it is considered that the proposed development would result in a

substandard form of residential and recreational amenity for future occupants and

would not be in accordance with the relevant design standards. The proposed

development would, therefore, be contrary to the proper planning and sustainable

development of the area. In deciding not to accept the Inspector's recommendation to grant

permission, the Board considered it appropriate to consider the density of the overall

scheme, taking account of the concurrent planning applications, (ABP-315425-22/ planning

register reference FW22A/0228 and ABP-315450-23/planning register reference

FW22A/0237), on the subject site, which it is considered would meet the definition of a 'City-

Suburban/Urban Extension' location as set out in Sustainable Residential Development and

Compact Settlements Guidelines for Planning Authorities (January 2024). In such suburban

areas, densities in the range 40 dwellings per hectare to 80 dwellings per hectare (net) shall

generally be applied. While the Board noted that densities of up to 150 dwellings per

hectare (net) shall be open for consideration at 'accessible' suburban/urban

locations, it is considered that the subject site fails to meet this test, given the

distance to existing or planned high frequency public transport services.

Furthermore, in relation to the provision of an appropriate level of residential and

recreational amenities in accordance with design standards for Build to Rent schemes, the

Board did not agree with the Inspector's view that it would be appropriate to attach

a condition to require the concurrent development of both phases of development,

given Phases 1 and 2 are being pursued as separate planning applications. The

Board, in agreement with the planning authority, considered that the proposals put forward

by the applicant on appeal to provide 'temporary' residential and recreational facilities

as part of Phase 1 would not be acceptable, given the lack of certainty regarding

the duration of this 'temporary' period and timing for the delivery of the Phase 2

development.

Given these matters, a refusal of planning permission is warranted.

…

Member of An Bord Pleanála

duly authorised to authenticate

the seal of the Board

Dated this 13th day of November 2024.”

Core ground 1 – misinterpretation of guidelines/ irrationality

57. Core ground 1 is:

“CORE GROUND 1

The conclusion of the Board that the location of the site for the proposed development was

in relative isolation from high frequency public transport, and consequently not suitable to

cater for the density ranges that were open for consideration in circumstances where the

site was within a ‘City-Suburban/Urban Extension’ for the purposes of the Sustainable

Residential Development and Compact Settlements Guidelines for Planning Authorities 2024,

(‘the Compact Settlements Guidelines 2024’), was irrational and ultra vires the Board, as

the evidence before the Board was not capable of supporting such a conclusion. Further, or

in the alternative, the Board erred in law by failing to have regard to, and/or misinterpreting

the true meaning and effect of, the definition of accessible location in Table 3.8 of the

Compact Settlements Guidelines 2024, in breach of s.34(2)(ia) of the Planning and

Development Act 2000, as amended (‘the PDA 2000’).”

58. This issue generated a greater than usual degree of controversy so I will attempt to sub-

divide the treatment of it under the following headings: the preliminary objection, the parties’

positions, the regulatory context, the decision-taking process here, and an analysis of the challenge

to the conclusion on whether this was an accessible location.

I – preliminary objection

59. The commission goes on to make a preliminary point as follows:

“PRELIMINARY ISSUE OF THE RESPONDENT

It is the Commission’s position that the Applicant has failed to challenge all of the reasons

for the refusals and, in particular, has failed to challenge the Commission’s approach in

respect of the calculation of density with applies across both Decisions.

On any reading of the Commission Orders, it is clear that the concurrent density breached

the range in the Compact Settlement Guidelines and that the Commission refused permission

on this basis. The Commission Orders clearly stated that a density of 184 dph is ‘significantly

in excess of the range which would generally be considered for such a site under the

Ministerial Guidelines’. Clearly, the terms ‘generally be considered’ refers to the density

level of up to 150 dph, which is ‘open for consideration’ under Table 3.1 of the Compact

Settlement Guidelines. Contrary to what is advanced by the Applicant, the suggestion that

the Commission must have been referring to the other category of density being 40-80 dph

which is to be ‘generally applied’ is simply not made out.

RESPONSE OF THE APPLICANT

The Applicant argues that this plea is contrived and fashioned as an ex post facto analysis

to evade the consequence of irrational/unlawful reasoning on the part of the Respondent.

In particular, the Applicant submits that the Respondent is attempting to impose on its own

decision a meaning it simply cannot bear.

The 2024 Guidelines stipulate in Table 3.1 ‘it is a policy and objective of these Guidelines

that residential densities in the range 40 dph to 80 dph (net) shall generally be applied at

suburban and urban extension locations in Dublin and Cork, and that densities of up to 150

dph (net) shall be open for consideration at “accessible” suburban / urban extension

locations (as defined in Table 3.8)’

The Respondent in its decision determined that the site of the proposed development was

not an accessible location, being in its words ‘in relative isolation from high frequency public

transport’. Consequent on that finding the Respondent concluded that the proposed density

of 184 units per hectare would be ‘significantly in excess of the range which would generally

be considered for such a site under the Ministerial Guidelines.’ i.e. the range of 40dph to

80dph.

That the Board excluded the upper range of up to 150 dph from its consideration consequent

on its finding that the site was not an accessible location is made explicit later in its decision

where it states:-

‘While the Board noted that densities up to 150 dwellings per hectare (net) shall be open for

consideration at “accessible” suburban/urban locations, it is considered that the subject site

fails to meet this test, given the distance to existing or planned high frequency public

transport services.’

Notwithstanding the clarity of what the Respondent says in its own decision, that it formed

the view that it was confined to considering the density range generally applicable to a

suburban/urban location, i.e. 40dph to 80 dph, the Respondent now argues that the when

it stated that the proposed density was ‘significantly in excess of the range which would

generally be considered for such a site’ the word ‘generally’ in its decision referred to the

density of 150 dph which is ‘open for consideration’ under Table 3.1 (Respondent’s

submissions, §62). The Respondent argues that because the applicant has not put in issue

this conclusion, but only the more narrow question of whether the site was an accessible

location, the case must be dismissed in limine.

With respect, this argument is unstateable. The reasoning of the Board is crystal clear. It

finds that the site is not an accessible location and consequent on that finding concludes that

it is confined to assessing what density would be appropriate for the site by reference to the

lower range of 40dph to 80 dph and concludes that the proposed density of 184 dph would

be significantly in excess of that range. The Applicant submits that if it is successful in

demonstrating to this Court that the Respondent’s conclusion that the site at issue not an

accessible location, it follows, logically, that the conclusions of the Respondent on the issue

of density that flowed from that premise must be deficient also.”

60. The commission summarises its objection in the statement of case:

“The Commission (and the Inspector) determined that the concurrent density for Phase 1

and Phase 2 was 184 dph (net), and the Applicant has not challenged this aspect of the

Commission’s Decisions. In the circumstances, the complaint raised in Core Ground 1 simply

does not arise as the proposed development exceeds 150 dph net the proposed density is

significantly in excess of any of the ranges identified for a site of this nature in the Compact

Settlement Guidelines.”

61. I am not persuaded that the applicant is precluded from making the point on this basis –

basically because part of the function of judicial review is to ensure that the decision is based on a

correct analysis.

II – parties’ positions on the merits

62. On the merits of the point, the parties’ positions as recorded in the statement of case are

summarised as follows:

“POSITION OF THE APPLICANT

The Applicant’s position is that the Inspector, when reporting on Phases 1 and Phase 2

engaged with and applied the 2024 Guidelines in a textbook fashion. First, he noted that as

the proposed development was within 500 metres of high frequency public transport it was

an accessible location within the definition of that term in Table 3.8 of the 2024 guidelines

and that accordingly a density of up to 150 dph was open for consideration. Then the

Inspector reasoned that it was possible to exceed the stated limit of 150dph in the 2024

guidelines, having regard to the particular suitability of the proposed location and the fact

that the scheme was Build to Rent, which typically involved higher density.

In contrast to the Inspector, the Respondent, when analysing the issue of density, concluded

that the development was ‘in relative isolation from high frequency public transport’. There

was no evidence available to the Respondent to support this conclusion, nor has the

Respondent been able in its opposition papers or submissions to point to any such evidence.

The Respondent argues in reply that the definition of accessible location in Table 3.8 allows

for a subjective case by case assessment and its reasoning was the product of that subjective

assessment. The Applicant has submitted that there are three difficulties with this position.

First, the conclusion of the Inspector that the site was within 500 metres of High Frequency

Public Transport and consequently an accessible location within the meaning of the 2024

guidelines, is not compatible with the Respondent’s conclusion that the site is in relative

isolation from high frequency public transport, as both are an assessment of the distance of

the site for the proposed development from high frequency public transport. Secondly,

nowhere does the Board record that it was departing from the stated definition of accessible

location in the 2024 guidelines. Finally, while Table 3.8 of the 2024 Guidelines does allow

for a decision maker to respond to the outcome of what is termed a local assessment, it

does not admit of the possibility of displacing the distance of 500m as being the

measurement against which to consider if a location is within sufficient distance of high

frequency public transport. In that regard Table 3.8 specifically states that this

measurement has been stated ‘to allow for consistent application.’

In addition to these matters, the Respondent failed to provide any reasons as to why it

concluded that the site was not an accessible location, which was a main issue in the appeal

and one in respect of which the Inspector had come to a diametrically opposed conclusion.

POSITION OF THE RESPONDENT

Core Ground 1

Core Ground No. 1 and the associated sub-pleas are premised on a selective reading of the

reasons for refusal and fail to address the contents of Table 3.1 of the Compact Settlement

Guidelines, which identify that a density range of 40 – 80 dph is appropriate in areas

identified as City – Suburban/Urban Extension with it being permissible to have a range of

‘up to 150 dph’ where the location is an ‘accessible location’ as defined in Table 8.3. Having

regard to Table 3.1 of the Compact Settlement Guidelines, there are two categories of

density ranges. At ‘suburban and urban extension locations in Dublin and Cork’ the range

‘generally applied’ is 40-80 dph (net) and at ‘“accessible” suburban / urban extension

locations’ density of up to 150 dph (net) shall be open for consideration.

The Commission (and the Inspector) determined that the concurrent density for Phase 1 and

Phase 2 was 184 dph (net), and the Applicant has not challenged this aspect of the

Commission’s Decisions. In the circumstances, the complaint raised in Core Ground 1 simply

does not arise as the proposed development exceeds 150 dph net the proposed density is

significantly in excess of any of the ranges identified for a site of this nature in the Compact

Settlement Guidelines.

Further, this ground of challenge is advanced on the basis that the definition of ‘accessible

location’ provided for in Table 3.8 of the Compact Settlement Guidelines is a set objective

assessment. This is not correct. As explained in the Compact Settlement Guidelines ‘The

characteristics detailed in Table 3.8 are not exhaustive and a local assessment will be

required.’. The Compact Settlement Guidelines advocate for a subjective case-by-case

assessment of whether the site of the Proposed Development is at a ‘accessible location’,

which is what the Commission did in this Appeal. The Commission clearly found that based

on a density of 184 dph of the Proposed Development, that ‘it is considered that the proposed

development would not be in accordance with the density ranges which are open for

consideration’. The analysis of the Commission is consistent with the Compact Settlement

Guidelines, and no legal error, which would justify the grant of relief, has been identified in

Core Ground 1.”

III – the regulatory context

63. The compact settlement guidelines, published in January 2024

(https://www.gov.ie/en/department-of-housing-local-government-and-

heritage/publications/sustainable-residential-development-and-compact-settlements-guidelines-

for-planning-authorities/) do contain SPPRs but it is agreed that the provisions relevant to density

are text only so subject to a have regard to duty under s. 28 only.

64. The guidelines provide at p. 21:

“Given the size, scale and structure of Dublin and Cork relative to the cities of Limerick,

Galway and Waterford, density ranges for the city and suburbs areas of Dublin and Cork are

set out in Table 3.1 and for the city and suburbs area of Limerick, Galway and Waterford in

Table 3.2. Density ranges for all towns and villages in the metropolitan areas of the five

cities and outside of the city and suburbs area (including designated Key Towns in the

metropolitan area) are set out in Table 3.3.”

65. It is agreed that this site comes within the suburban/urban extension part of Dublin as set

out in Table 3.1:

“City - Suburban/Urban Extension

Suburban areas are the lower density car-orientated residential suburbs constructed at the

edge of cities in the latter half of the 20th and early 21st century, while urban extension

refers to the greenfield lands at the edge of the existing built up footprint that are zoned for

residential or mixed-use (including residential) development. It is a policy and objective of

these Guidelines that residential densities in the range 40 dph to 80 dph (net) shall generally

be applied at suburban and urban extension locations in Dublin and Cork, and that densities

of up to 150 dph (net) shall be open for consideration at 'accessible' suburban / urban

extension locations (as defined in Table 3.8).”

66. Accessibility definitions are indicative and subject to local assessment (emphasis added):

“3.4 Refining Density

The application of the density ranges in the preparation of statutory development plans and

in the consideration of individual planning applications will be subject to local determination

by the planning authority, or by An Bord Pleanála in the case of an appeal or direct

application. The density ranges set out in Section 3.3 should be considered and refined,

generally within the ranges set out, based on consideration of centrality and accessibly to

services and public transport; and considerations of character, amenity and the natural

environment (Figure 3.3 refers). Section 3.3.6 addresses exceptional circumstances.

3.4.1 Step 1: Consideration of Proximity and Accessibility to Services and Public Transport

While densities within the ranges set out will be acceptable, planning authorities should

encourage densities at or above the mid-density range at the most central and accessible

locations in each area, densities closer to the mid-range at intermediate locations and

densities below the mid-density range at peripheral locations. Densities above the ranges

are ‘open for consideration’ at accessible suburban and urban extension locations to the

maximum set out in Section 3.3. Table 3.8 (below) sets out definitions for terms used to

define accessibility to allow for consistent application. The characteristics detailed in

Table 3.8 are not exhaustive and a local assessment will be required.”

67. Subject to the foregoing, Table 3.8 defines accessibility. An “accessible” location is defined

as follows (emphasis added):

“‘Planned public transport’ in these Guidelines refers to transport infrastructure and services

identified in a Metropolitan Area Transport Strategy for the five cities and where a public

authority (e.g. National Transport Authority, Transport Infrastructure Ireland or Irish Rail)

has published the preferred route option and stop locations for the planned public transport.

Accessible Location

Lands within 500 metres (i.e. up to 5-6 minute walk) of existing or planned high frequency

(i.e. 10 minute peak hour frequency) urban bus services.”

IV – the decision-taking process

68. We can now turn to the decision-taking process here. As regards the present application,

the two most relevant reports both predate the compact settlement guidelines.

69. The Traffic and Transport Assessment (Phase 1) dated September 2022 (GMG1 tab 9) says

at p. 19 (emphasis added):

“2.3.4 Public Transport

An assessment of the public transport service provision in the area has been carried out,

which includes analysis of the modes of transport available, ease of access and the number

and frequency of services currently available.

2.3.5 Dublin Bus

Dublin Bus operates route numbers 38, 38A and 38B along the Damastown Road, providing

links to Dublin City Centre, Tallaght, Clondalkin and Lucan. The bus stop for these routes is

located on Damastown Road, approximately 500m from the proposed site. The subject

site can also be accessed via bus routes 220, 236A, and 238. The bus stop for these routes

is located along the Old Navan Road, approximately 900m southeast of the proposed

development site. Figure 2.7 below illustrates the nearest bus stops and local interchanges

in the subject site’s vicinity.”

70. Figure 2.7 shows a 7-minute walk to one of the stops and an 11 minutes’ walk to the other.

Figure 2.7 also states: “Dublin Bus Stop No. 7382 Approx 500m from Subject Site; Route Nos. 38,

38A, 38B”.

71. Page 20 goes on:

“These Dublin Bus services operate on a daily basis and offer relatively frequent schedules

as summarized in Table 2.1 below. Figure 2.8 below shows the existing bus network

surrounding the subject site.”

72. It then gives a table 2.1, which shows buses per day going from 0 at weekends (38B, 236A)

to 6 during the week (same lines) up to 38 a day (no. 38 bus Mon-Fri).

73. At p. 21 the report states (emphasis added):

“It is widely accepted in the industry that the periods of maximum demand

generated upon the public transport networks on a typical weekday are focused

upon the AM (06:00-10:00) and PM (16:00-20:00) periods as predominantly

influenced by travel to work, school, and college patterns at any given location. The existing

capacity on the local public transport network has been determined based on (i) frequency

of services (i.e. timetabled services) and (ii) type / size of vehicle. The existing public

transport services accessible from the Proposed Development are outlined in Section 2.3

above. Table 2.3 below provides a summary of the bus capacity during the peak public

transport patronage times (i.e. AM 06:00-10:00 & PM 16:00-20:00 in the PM). It assumes

that the capacity for both Dublin Bus and Go-Ahead busses are 91 passengers. The existing

bus capacity analysis reveals, during peak travel periods, the existing bus services have the

capacity to accommodate up to 5,733 passengers in the AM peak period (06:00-10:00) and

5,096 passengers in the PM period (1600-20:00).”

74. Table 2.2 then gives “peak” time frequencies. For 6-10 am these are a maximum of 10

buses on the 38 and 38A routes.

75. Hughes consulting in their planning report of October 2022 state in §6.13.8 (p. 51)

(emphasis added):

“The proposed development is located northwest of Mulhuddart Village Centre and is

considered a suitable location for a higher density residential development due to its location

and proximity to public transport. The subject site is located 650 meters from a bus stop

on Huntstown Way and 350 meters from a bus stop on Damastown Road which are

serviced by Dublin Bus routes 39, 39a, 38 and 38a respectively. These routes access the

city via a Quality Bus Corridor running alongside the N3, providing access to the city centre

within one hour.”

76. Pages 52-53 note planned BusConnects upgrades without frequency details.

77. The June 2024 Hughes report in response to a request for further information includes the

following at p. 16:

“Access to Public Transport

The proposed development is located northwest of Mulhuddart Village Centre and is

considered a suitable location for a higher-density residential development due to its location

and proximity to public transport. The subject site is located 650 metres from a bus stop

on Huntstown Way and 350 metres from a bus stop on Damastown Road which are serviced

by Dublin Bus routes 39, 39a and 38, 38a and 38b respectively which operate at 10-minute

frequencies. These routes access the city via a Quality Bus Corridor running along the N3,

providing access to the city centre within one hour. An express route between IBM

Damsatown [sic] and O’Connell Street runs frequently. Dublin Bus Routes 220 and 238

operate from the bus stop located on the Old Navan Road in Mulhuddart village and provide

access to the city.

Express Bus Service runs a direct service into the city from the N3 bus stops which is located

c. 650m from the subject site and would be easily accessed via the proposed upgraded

footpaths which this application seeks to develop.

Furthermore, Clonsilla train station is located approximately 3.7km from the subject site

(46-minute walk, 15-minute cycle) and provides services into Dublin.

...

Furthermore, it is noted that under the proposed Bus Connects plans for the area, the bus

network will be expanded and improved, offering a wider range of routes and a higher

frequency of services. Upon completion of Bus Connects, the area will be connected to the

city centre as well as Tallaght, UCD, the Docklands and train/LUAS stations such as

Broombridge. The Blanchardstown to City Centre Core Bus Corridor Scheme is currently

under review by the Board and will drastically improve bus services in the area.”

78. At p. 21 it states:

“As outlined earlier in this report, the subject development provides for a net residential

density of approximately 74 dwellings per hectare, across Phase 1 and 2, which falls within

the upper-density range above. The site is considered an Accessible Location as defined in

Table 3.8 of the guidelines as it is located 500m from Bus Stop 7382 on Damastown Road

which provides bus routes operating at 10-minute frequencies under Route Nos. 38 38a, and

38b.”

79. Turning then to how the commission dealt with matters, at para. 7.4.7 of his report the

inspector concludes as follows (emphasis added):

“7.4.7. It is considered that the proposed scheme would represent infill development given

its proximity to Mulhuddart Village and its location between an existing apartment

development to the east and commercial development to the west. The Apartment

Guidelines (2023) note that it is necessary to significantly increase housing supply, and City

and County Development Plans must appropriately reflect this and that apartments are most

appropriately located within urban areas, and the scale and extent should increase in relation

to proximity to public transport as well as shopping and employment locations. The

Apartments Guidelines identify intermediate urban locations as sites within or close to i.e

reasonable walking distance of a principal town or suburban centres or employment locations

and/ or sites within reasonable walking distance of high frequency urban bus services. As

per the recently published Sustainable Residential Development and Compact Settlements

Guidelines for Planning Authorities (2024) (Compact Settlement Guidelines), the appeal site

could also be described as an accessible suburban location (Table 3.8: Accessibility). This

is due to its location relative to existing high frequency bus services, with the 38,

38A and 38B bus services located within 500m of the appeal site on Damastown

Road. Further to this, the site is accessible to large centres of employment and educational

centres with the Damastown Industrial Park c. 600m to the north, TU Dublin Blanchardstown

c. 1.6km to the north-east, Blanchardstown Shopping Centre c. 2km to the south-east,

Blanchardstown Corporate Park c. 2.5km to the north-east and Connolly Hospital

Blanchardstown c. 3km to the south-east. Table 3.1 of the Compact Settlement Guidelines

notes that densities of up to 150 dph (net) shall be open for consideration within these areas.

Whilst I acknowledge that the proposal exceeds this range, I am satisfied that the site can

absorb a higher density of development due to its robust interface to the south and its

location relative to the Tolka Valley Park to its north. Further to this, I am cognisant of the

BTR nature of the scheme, whereby 1 and 2 no. bedroom apartments are solely proposed

in this scheme. In developments such as this, densities will typically be higher when there

is no restriction on unit mix as allowable under the relevant SPPR (i.e. SPPR8(i)). On

balance, I am satisfied that the proposed development would not result in the

overdevelopment of the site and that the proposed density is appropriate in this instance

having regard to local, regional and national policy, the characteristics of the site and

surrounds and the site’s access to public transport, employment and educational centres

and its proximity to services and amenities.”

80. The inspector goes on:

“7.8.6. The Apartments Guidelines state that in intermediate urban locations, close to public

transport or close to town centres or employment centres, a reduction of overall car parking

standards must be considered, and an appropriate standard applied. Further to this, I note

that SPPR 8(iii) of the Apartment Guidelines notes that there shall be a default of minimal

or significantly reduced car parking provision on the basis of BTR development being more

suitable for central locations and/or proximity to public transport services. I am also

cognisant of Section 5.3.4 (Car Parking – Quantum, Form and Location) of the recently

adopted Compact Settlement Guidelines which acknowledges that the availability of car

parking has a critical impact on travel choices for all journeys, including local trips. The

policy notes that in areas where car-parking levels are reduced, studies show that people

are more likely to walk, cycle, or choose public transport for daily travel. As detailed earlier

in this report, the appeal site is located in an area what would be classified as an ‘accessible

location’ (Table 3.8 of the Compact Settlement Guidelines). In locations such as this, a

maximum rate of 1.5 no. spaces per dwelling shall apply (SPPR 3) and these standards

include provision for visitor car parking. As detailed in section 7.4 of this report, the site is

located in close proximity to large centres of employment and educational centres and there

are high frequency services within 500m of the appeal site. Having regard to the nature of

the proposed development and the site’s accessible location, I am satisfied that a reduction

in the car parking standards is appropriate in this instance and the proposal would not result

in undue on-street car parking pressures. SPPR 8(iii) notes that the requirement for a BTR

scheme to have a strong central management regime is intended to contribute to the

capacity to establish and operate shared mobility measures. As detailed in section 7.3 of

this report, I have recommended the inclusion of a condition which shall require the Applicant

to submit an Operational Management Plan for the proposed BTR development which shall

provide information with respect to car parking management/allocation and details of car

sharing.”

81. As stated above, the commission’s reasons were (emphasis added):

“1. Having regard to the relevant provisions of the Fingal Development Plan 2023-2029 and

to the density provisions of the Sustainable Residential Development and Compact

Settlements Guidelines for Planning Authorities issued by the Department of Housing, Local

Government and Heritage in January 2024, it is considered that the proposed development

of itself constitutes a poor disposition of units on the overall site. This is compounded by

the overall scheme, including the elements proposed under the concurrent planning

application (ABP-315450-23/planning register reference FW22A/0237), which would lead to

a net density of 184 dwellings per hectare, significantly in excess of the range which would

generally be considered for such a site under the Ministerial Guidelines. Having regard to

the specific location of the site, which it is considered to be ‘City-Suburban/Urban Extension’

as set out in the Guidelines and in relative isolation from high frequency public

transport, it is considered that the proposed development would not be in accordance with

the density ranges which are open for consideration.

The proposed development would, therefore, be contrary to the proper planning and

sustainable development of the area.

2. Having regard to the Sustainable Urban Development Design Standards for New

Apartments Guidelines for Planning Authorities issued by the Department of Housing, Local

Government and Heritage in January 2024 (2023), which includes transitional arrangements

for Build to Rent schemes, and Specific Planning Policy Requirement (SPPR) 7, which seeks

to ensure such schemes include detailed proposals for resident support facilities, services

and amenities, and noting the reliance on the provision of such facilities as part of a separate

concurrent planning application (ABP 315450-23/planning authority reference

FW22A/0237), it is considered that the proposed development would result in a substandard

form of residential and recreational amenity for future occupants and would not be in

accordance with the relevant design standards. The proposed development would,

therefore, be contrary to the proper planning and sustainable development of the area. In

deciding not to accept the Inspector's recommendation to grant permission, the Board

considered it appropriate to consider the density of the overall scheme, taking account of

the concurrent planning applications, (ABP-315425-22/ planning register reference

FW22A/0228 and ABP-315450-23/planning register reference FW22A/0237), on the subject

site, which it is considered would meet the definition of a ‘City-Suburban/Urban Extension’

location as set out in Sustainable Residential Development and Compact Settlements

Guidelines for Planning Authorities (January 2024). In such suburban areas, densities in the

range 40 dwellings per hectare to 80 dwellings per hectare (net) shall generally be applied.

While the Board noted that densities of up to 150 dwellings per hectare (net) shall

be open for consideration at ‘accessible’ suburban/urban locations, it is considered

that the subject site fails to meet this test, given the distance to existing or planned

high frequency public transport services. Furthermore, in relation to the provision of

an appropriate level of residential and recreational amenities in accordance with design

standards for Build to Rent schemes, the Board did not agree with the Inspector's view that

it would be appropriate to attach a condition to require the concurrent development of both

phases of development, given Phases 1 and 2 are being pursued as separate planning

applications. The Board, in agreement with the planning authority, considered that the

proposals put forward by the applicant on appeal to provide ‘temporary’ residential and

recreational facilities as part of Phase 1 would not be acceptable, given the lack of certainty

regarding the duration of this ‘temporary’ period and timing for the delivery of the Phase 2

development.”

V – the challenge to the conclusion on “accessible location”

82. As everyone knows, a merits-based disagreement with a decision is not a ground for relief

by way of judicial review. Irrationality or disproportionality are legal grounds, albeit of a quasi-

merits nature, but they are difficult to bring home – understandably so.

83. Hence, empirically speaking, applicants can tend to dress up a merits point as a

misinterpretation-of-the-applicable-legal-instruments point. This applicant effectively tries that

move here, but I am afraid unsuccessfully so. The claim in core ground 1 is:

“the Board erred in law by failing to have regard to, and/or misinterpreting the true meaning

and effect of, the definition of accessible location in Table 3.8 of the Compact Settlements

Guidelines 2024, in breach of s.34(2)(ia) of the Planning and Development Act 2000.”

84. Unfortunately no such misconstruction has been made out.

85. Indeed no such misconstruction compatible with what the applicant is now saying has been

pleaded. In oral submissions on the draft judgment the applicant identified the alleged

misconstruction as being treating “peak hour” as multiple hours rather than two hours (morning and

evening). To the benefit of the applicant, I don’t think it is necessary to decide what “peak hour”

means because this argument simply isn’t open to the applicant in this case for three reasons:

(i) No such misconstruction is pleaded. The applicant’s argument that this is a reply to

what the commission said in oral argument is an inadequate response.

(ii) This alleged interpretation is not readily compatible with the material put before the

commission by the applicant in this case to the effect that the industry standard is

multiple hours in the morning and evening. Admittedly, the applicant may argue

that industry standards have changed, or that the test has changed, and I am not

precluding an argument in due course that “peak hour” is in fact some sort of term

of art – but the applicant’s material as put before the board is open to a reasonable

reading in the other direction – without there being any need to resolve that in any

definitive way. In addition, singular generally includes plural and vice versa so “peak

hour” singular doesn’t in itself and in this context have some sort of inevitably

singular meaning. Whether it has an industry meaning in line with what the applicant

now says is not something that was put before the commission in any way that

would give rise to a need to decide it now.

(iii) The alleged misunderstanding is also contrary to the letter sent on 17 November

2025, when the applicant alleged that “peak hour” meant “the” (singular) peak hour.

The applicant’s current position (on one view, its third position) is that this means

two hours (one in the morning and one in the evening).

86. The developer’s letter of 17 November 2025 states, inaccurately:

“The Compact Settlement Guidelines 2024 provide that, in order to be an ‘accessible

location’, it is necessary for a site to be within 500 meters of high frequency public transport

- high frequency being defined as public transport that arrives at intervals of no more than

10 minutes during the peak hour.

For ease of reference, ‘accessible location’ is defined in Table 3.8 of the Compact Settlements

Guidelines 2024, in the following terms:- ‘Lands within 500 metres (i.e. up to 5-6 minute

walk) of existing or planned high frequency (i.e. 10 minute peak hour frequency) urban

bus services.’ [Emphasis added]”

87. The word “the” which the developer inserts before peak hour when purporting to describe

the guidelines is unfortunately inaccurate. It does not occur in the guidelines in this context.

88. If misinterpretation fails we fall back on unreasonableness. The claim in core ground 1 is:

“the conclusion of the Board that the location of the site for the proposed development was

in relative isolation from high frequency public transport, and consequently not suitable to

cater for the density ranges that were open for consideration in circumstances where the

site was within a ‘City-Suburban/Urban Extension’ for the purposes of the Sustainable

Residential Development and Compact Settlements Guidelines for Planning Authorities 2024,

was irrational, as the evidence before the Board was not capable of supporting such a

conclusion; and/or”

89. The applicant claims game over because of the Hughes June 2024 report which purports to

demonstrate compliance with the test for an accessible location. But unfortunately the commission

is entitled to take its own view, based on other material before it, including material that a reasonable

decision-taker could read as contradicting this. Ultimately this comes down to evaluative judgment

by the commission. The applicant has not discharged the onus of proof to show that the commission

exceeded its margin of evaluation.

90. The applicant (at the draft judgment stage) said that the earlier report had not been drafted

with a view to demonstrating compliance with the compact settlement guidelines – but that is a good

thing. Presumably we all agree that facts should be presented objectively rather than being reverse

engineered into statutory tests. (I am not suggesting that the applicant is doing that, merely

highlighting the value of material produced without the confounding feature of a potential agenda.)

The applicant submits the following:

“Finally, Counsel for the Commission did not advert to the fact that under the definition of

‘accessible location’ for the purposes of the Compact Settlement Guidelines 2024, the

frequency of the bus service is to be calculated on the basis of the services during the ‘peak

hour’, rather than during a peak period, which latter measurement was not selected for the

purposes of the Compact Settlement Guidelines. This is relevant as the DBFL Traffic and

Transport Assessment of September, 2022 addressed only the frequency of bus services

over the entire day in Table 2.1 and over a 4 hour peak hour period in the morning and

evening in Table 2.2, but did not address the frequency at peak hour in the morning and

evening. This is of course because the DBFL report, unlike the later Hughes submission,

was not prepared for the purposes of responding to the Commission in relation to the

application of the Compact Settlement Guidelines 2024 (unsurprisingly as the DBFL report

pre-dated the Compact Settlement Guidelines 2024 by some 16 months). The reliance by

the Commission upon Figure 2.1 and Figure 2.1 of the DBFL report was accordingly entirely

misplaced and the factual deductions made were flawed as a result in so far as they were

linked to the definition of ‘accessible location’.”

91. I have already dealt with the inaccurate insertion into the language of the guidance of the

word “the”.

92. It is not entirely misplaced or flawed for the commission to rely on the developer’s own

material – especially if it is open to a reasonable reading of contradicting the confident assertion of

full compliance put forward in June 2024. Even if bus times have changed, the distance to the

nearest stop hasn’t been shown to have changed. That doesn’t preclude the developer from further

clarifying matters in a hypothetical future application.

93. The traffic and transport assessment at p. 20 shows a 7-minute walk to the bus stop and 38

buses a day which equates to 20-30 mins. wait as reflected in table 2.2 (p. 22). Page 31 shows

proposed services having a 15 minute frequency.

94. The TTA report envisaged 10 buses in four hours in the morning (06:00-10:00). Four hours

is 240 minutes – 10 buses in that period is one every 24 minutes. In any event the developer, who

has the onus to provide material showing whether there was compliance with the guidelines in the

first instance, did not identify any single peak “hour” in which the buses came at 10-minute intervals.

95. The developer’s current theory that there could be a single peak hour with buses every 10

minutes would use up 6 of the buses leaving only 4 for the remaining 3 hours, assuming that we

stick to the no. 38 route alone. That is implausible on its face and certainly the applicant hasn’t

provided evidence to get such a theory off the ground even making the debatable assumption that

it would be acceptable as a matter of interpretation to limit consideration to the busiest hour.

96. The applicant then tries to get around this problem with the following:

“Counsel for the Commission directed the Court to consider the frequency of only one of the

three bus services, namely the no. 38, operating from Damastown Road, rather than all

three services, i.e. nos.38, 38a and 38b, which the Inspector considered (see Inspector’s

Addendum Report §4.1.4) and which buses all have the same departure point and terminus

(the routes and timetables for these bus services were also publicly available when the

application was being considered)”

97. The onus is on the applicant for permission to put forward all relevant material, so reliance

on what is publicly available is not much of an answer absent demonstration of an autonomous duty

to seek such information out, which doesn’t apply here. If the technique of adding the 38a and 38b

is valid, and I am not saying it is not, the developer can adduce any material in that regard in any

new application.

98. In any event, even assuming buses are running like clockwork every 10 minutes, and even

assuming that the applicant’s latest interpretation of the guidelines is correct (a possibly debatable

proposition), there was material from the applicant that the nearest bus stop was approximately

500 m away rather than within 500 m which is the test. Even acknowledging that the guidelines are

not absolute, this gives the commission a margin of evaluation – it is not a slam dunk error of law

or of fact or of anything else that warrants relief.

99. Thus the allegation of no material on which the commission could have concluded that there

was not a high frequency service has not been made out. I don’t consider that the commission’s

interpretation of this document constitutes impermissible post-hoc reprogramming or evidence by

submission as alleged.

100. I however appreciate that:

(i) the applicant did have some evidence that could be viewed as supporting compliance

with the test for an accessible location;

(ii) this evidence went beyond the TTA report majored on by the commission in

submissions and included the Hughes report of June 2024;

(iii) the test itself is not rigid and has an express flexibility; and

(iv) the applicant’s 2022 reports did precede the guidelines, for what that’s worth.

101. I can also note that the outcome of this application and this judgment is not determinative

of any future application, which will be judged on the basis of the evidence at that point. To that

extent the following concern from the developer is misplaced (and the commission agrees that it is

misplaced):

“These matters are drawn to the Court’s attention as the Applicant has a serious concern

that the planning authority, or the Commission, as appropriate, may feel constrained in

dealing with any future application for the site having regard to the conclusions of the Court

as they are currently framed. In particular, both bodies may consider that they are restricted

in their discretion to revisit the issue of whether the site is or is not an ‘accessible location’,

within the meaning of the Compact Settlement Guidelines 2024, having regard to the terms

of paragraphs 69 and 70 of the draft judgment, in particular.”

102. That said however, and in a context where I have (in the foregoing paragraphs) attempted

to put the developer’s actual concerns on the record in some way, it would have been more helpful

if the developer’s letter of 17 November 2025 was phrased in a less combative way. Given that the

draft judgment procedure is a concession to assist parties, a response of this type runs the risk of

impairing the readiness with which the court can absorb the real concern involved, although perhaps

I am just speaking about my own limited capacity there. Insofar as it alleges “errors made in the

submissions by Counsel for the Commission which have been adopted into the Court’s judgment”,

or that “there are errors in §69 and 70 of its draft judgment”, or that “the “evidence by submission”

which Counsel advanced on the Commission’s behalf did not provide a correct evidential basis for its

conclusion as to whether the site was an ‘accessible location’”, or that “[i]t is important that the final

judgment of the Court would be free from the legal and/or factual errors contained in the ‘evidence

by submission’ presented to the Court”, I am afraid that I don’t accept such characterisations.

Nonetheless, I am prepared to put that aside and to endeavour to highlight the matters of concern

to the applicant insofar as they seem to me to warrant highlighting.

Core ground 2 – lack of reasons regarding accessible location

103. Core ground 2 is:

“CORE GROUND 2

The Board acted ultra vires s.34(10)(b) of the PDA 2000, and/or its obligation to give reasons

in accordance with Constitutional justice, in failing to explain adequately or at all, the basis

for its disagreement with the conclusion of the Inspector that the site the subject of the

application for permission was an ‘accessible location’ within the meaning of Table 3.8 of the

Compact Settlements Guidelines 2024”

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

“POSITION OF THE RESPONDENT

Similarly to Core Ground 1, even if the Applicant were correct on this ground that the

Commission erred in not accepting that the Proposed Development is at an ‘accessible

location’ (which is not accepted), then the permissible density is 150 dph and having not

challenged the Commission’s calculation on density, this ground of challenge cannot avail

the Applicant.

Contrary to what is advanced by the Applicant, the Commission provided a specific reasoning

for not accepting the Inspector’s recommendation to grant permission and expressly stated

why it did not accept the Inspector’s view that the Proposed Development was at an

‘accessible location’ within the meaning of Table 3.8 of the Compact Settlement Guidelines.

The Commission’s reason for not accepting the Inspector’s view on ‘accessible location’,

having regard to Table 3.8 of the Compact Settlement Guidelines (i.e. that it was in relative

isolation from public transport), is adequate and meets its statutory obligations arising from

section 34(10)(b) of the 2000 Act and/or the general obligation to give reasons has been

discharged. Put simply, the Applicant can be in no doubt why the Commission refused

permission and departed from the conclusions of the Inspector in respect of density.”

105. As above, I am not convinced that the applicant is precluded from making this point as

submitted, primarily because the commission’s reasoning should be robust in itself (and so based

on correct facts and reasons), but on these particular facts any lack of reasons is not a proper basis

for certiorari because the developer’s own material indicates that the site is not accessible as defined

by guidelines, even bearing in mind that the definition isn’t rigid and requires a case-by-case

analysis. So the lack of reasons, even assuming that it is an error, is not a material error.

106. As the commission points out, the developer’s posture in the proceedings is impermissibly

different from the information it put before the commission.

107. Insofar as the developer pleaded that the specific grounds of opposition weren’t pleaded that

doesn’t matter. The Ballyboden decision (Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors.

[2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe,

Hogan and Collins JJ. concurring)) is a real landmark in the law with very wide ramifications that are

not fully appreciated by everybody. In jurisprudential terms it is a gift that keeps on giving – that

decision has the consequence that relief is a matter for the court, so even if a point isn’t pleaded by

opposing parties the court can still consider it when deciding whether to grant relief.

Core ground 3 – lack of reasons regarding layout

108. Core ground 3 is:

“CORE GROUND 3

The Board acted ultra vires s.34(10)(b) of the PDA 2000, and or its obligation to give reasons

as a requirement of Constitutional justice, in failing to identify the basis for its conclusion

that the proposed layout on the site represented a ‘poor disposition of units on the overall

site’, in circumstances where the Inspector had assessed and indicated his approval of the

proposed layout.”

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

“POSITION OF THE APPLICANT

The applicant contends that a reference to unspecified provisions of the Fingal Development

Plan 2023-2029 and to unspecified density provisions of the Sustainable Residential

Development and Compact Settlements Guidelines for Planning Authorities, does not inform

the Applicant as to why Respondent came to an opposing conclusion of the Inspector on the

matter of layout. The absence of any reasoning on the part of the Board is in sharp relief to

the detailed reasons given by the Inspector as to why the layout of the development over

the entire site in respect of the issues of flood risk, access to daylight, overlooking, internal

traffic and open spaces/planting, was acceptable. In circumstances where the Respondent

did not provide a reasoned view on this a main issue and an evaluative judgment, the

decision is infirm, whether as breach of s.34(10)(b) of the PDA 2000 or the principles of fair

procedures.

The Applicant has argued in its written submissions that the Respondent’s SOO only serves

to highlight the substance of this ground of challenge in that the Respondent was not able

to identify in its pleading the provisions of the Development Plan and guidelines that the

Board has referenced in its decision, but could do no more than house its pleaded reply in

generic and boiler plate pleading.

The Respondent in its written submissions, presumably in response to this criticism, has

sought to migrate to a new ground of defence in relation to this Core Ground of challenge.

Specifically, in §78 of its composite submissions, the Respondent now argues that the

Respondent and the Inspector addressed two different matters: the Respondent considered

that the layout of the Phase 1 development was poor, while the Inspector only considered

the layout of the site overall. In that way the Respondent did not take a different view to

the Inspector on the issue of layout, but rather addressed an issue the Inspector ignored.

The Applicant objects to the Respondent advancing this argument as it is nowhere pleaded.

Without prejudice to that objection, the Applicant contends that the point is artificial and

contrived, in as much the Inspector engaged in a detailed way with the layout of Phases 1

and 2. The Respondent provides no reasoned analysis of any kind to support its conclusion

that the layout of Phase 1, and the development as a whole, was poor. Accordingly, it is not

that the Respondent and the Inspector addressed different issues, but that the Respondent

failed to reason its conclusions at all.

POSITION OF THE RESPONDENT

It is the Commission’s position that it stated expressly in each decision that one of the

reasons for refusal was due to the ‘poor disposition of units on the overall site’. The Applicant

contends that further narrative was required here by the Commission and / or that what the

Commission has said here is unclear. Neither are correct.

The alleged lack of understanding on the Applicant’s part of what the Commission meant

when refusing permission on this basis is simply not made out where the Applicant pleads

its understanding of this reason for refusal and which aligns which the Commission’s position.

It is clear from §31 of the Statement of Grounds that the Applicant fully understands the

meaning of the Commission Decisions and that this statement relates to the poor layout of

the units of the Proposed Development of itself (i.e. the single phase of the overall

development which was the subject of the application for planning permission) in respect of

the overall site in a context where permission for the overall scheme was not sought by way

of a unified application for planning permission but rather by way of two concurrent planning

applications. In other words, examining the layout of each of the phases of development on

their own merits, rather than collectively (as done by the Inspector), the Commission

considered each development to be poorly laid out having regard to the totality of the overall

site.

So, while the Applicant contends that the Commission’s Statement of Opposition has brought

some clarity to the matters, that is simply not correct, as it is clear that the Applicant has

always understood the reasoning of the Commission. In that regard, the issue identified by

the Commission is not one which was addressed by the Inspector, as the Inspector only

considered the layout of the development by reference to both phases together.

Consequently, this is not an issue in respect of which the Commission reached a different

conclusion to the Inspector, rather the Commission’s reason is directed at a different issue,

one which is fully understood by the Applicant, demonstrating that the obligation to give

reasons has been discharged.”

110. The commission’s reasoning is admittedly telegraphic:

“it is considered that the proposed development of itself constitutes a poor disposition of

units on the overall site.”

111. What does this mean? As explained in more depth at the hearing, and I accept this

interpretation, it means that given that this is a separate application, if one disregards the possibility

of development on the other part of the site, the development of blocks A and B on this half is a

poor disposition of the site overall.

112. A decision must be read as valid and as making sense if such an interpretation is available,

and it is available here.

113. Adopting that interpretation, this is, unfortunately from the applicant’s point of view, a

perfectly valid, reasonable and legally impregnable approach.

114. Since the inspector didn’t deal with this issue in this way there isn’t a disagreement that

warrants any higher level of reasons.

Core ground 4 – failure to consider condition regarding phasing

115. Core ground 4 is:

“CORE GROUND 4

The Board erred in law and/or acted ultra vires s.34(4) (a)(i) and/or s.34(2)(a) of the PDA

2000 when concluding that it would be inappropriate to grant permission with a condition

that the development could only be developed concurrently with the proposed development

on the immediately adjacent lands the subject of application ABP ref. 315450 as

recommended by the inspector (which condition also specifically provided that the units in

Blocks A and B would not be occupied until the completion of Blocks C and D within Phase 2

of the overall development). Further, or in the alternative, the Board failed to give any or

any adequate reasons as to why the imposition of such a condition was ‘inappropriate’ and/or

its conclusion in that regard was ultra vires and/or irrational in circumstances where the

attachment of the said condition would achieve a clear planning purpose, namely,

compliance with the requirements of the Guidelines for Planning Authorities issued under

Section 28, PDA, entitled Sustainable Urban Housing: Design Standards for New Apartments

(December 2020) (‘the Apartment Guidelines’), in relation to BTR development and in

particular SPPR 7 (b) thereof, which relates to the provision of communal and recreational

amenities.”

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

“POSITION OF THE APPLICANT

The Applicant pleads that the refusal of the Board to countenance the condition

recommended by the Inspector to require that Phases 1 and 2 be developed and completed

concurrently, which condition was designed to meet the amenities requirements of SPPR 7

of the Apartment Guidelines, simply because Phases 1 and 2 were the subject of separate

applications was ultra vires s.34(4)(a)(i) of the PDA 2000. In the alternative the Applicant

contends that the conclusion of the Board that it would be inappropriate to impose such a

condition was unreasoned.

The Respondent has accepted that s.34(4)(a)(i) of the PDA 2000 empowered it to grant a

condition of the type recommended by the Inspector in respect of the two concurrent

applications but has pleaded and argued in submission that in an ‘exercise of planning

judgment’ it decided that it would be inappropriate to impose such a condition. The Applicant

contends that the position of the Respondent is patently contradictory: it cannot on the one

hand accept that s.34(4)(a)(i) of the PDA 2000 empowers it to grant a condition that will

bind the development of two concurrent applications and then argue that it was open to the

Respondent to refuse to countenance such a condition in this matter, simply on the basis

that Phases 1 and 2 were the subject of concurrent applications. The position of the

Respondent amounts to accepting and rejecting the jurisdiction to impose such a condition

in the same breath.

However, in the event that there is some standalone reason as to why the Respondent

determined that it would be inappropriate impose the condition imposed by the Inspector

other than by virtue of the fact that it related to concurrent applications, the applicant simply

asks what is that reason?

The Applicant argues that the obligation on the Board to explain the conclusion that the

imposition of such a condition was inappropriate is derivative of its obligation to give reasons

on the main issues, and in so far as the conclusion of the Board, was an exercise in planning

judgment, which the Applicant does not accept, that was the reason for reaching the

conclusion it did. This obligation is in sharp relief here as the Inspector fashioned the

condition for the purposes of ensuring compliance with an SPPR, and s.28(1C) of the PDA

2000.

Finally, the Respondent argued in its SOO at §67 that its conclusion on this issue of imposing

the condition recommended by the Inspector, must be read in light of the views of the

Council. In the Applicant’s written submissions it highlighted at §90 that the Council had

not passed comment in any way on the Inspector’s proposed condition and consequently, it

wasn’t open to the Respondent in its opposition papers to pray in aid the Council’s

assessment in this way The Respondent now states in §97 of its written submissions ‘clearly,

what the Commission is saying is that the concerns of the Council are not overcome by the

proposed condition of the Inspector.’ With respect that proposition isn’t clear at all. There

is simply nothing in the decision of the Respondent, or indeed in its opposition papers, that

discloses that the Board was of the view that the condition proposed by the Inspector failed

to overcome the concerns of the Council and for the simple reason that the Councils concern

related to Phase 1 proceeding in the absence of Phase 2, whereas the proposed condition

was designed to specifically avoid that outcome and ensure both Phases were developed

concurrently.

POSITION OF THE RESPONDENT

Core Ground 4 is only directed to the Phase 1 Decision.

Insofar as the complaint is advanced that the Commission was required to give reasons for

not adopting a condition proposed by the Inspector, that is not correct as a matter of law.

The obligation on the Commission is to provide reasons for not accepting an Inspector’s

recommendation, but such an obligation does not extend to an obligation to give reasons

for not adopting a condition proposed by the Inspector.

Strictly without prejudice, as the substance of the complaint, the reasoning from the

Commission meets the standard of providing the main reasons on the main issues and the

standard of meaningful engagement with the rationale of the Inspector. It is clear from the

Commission Orders that the Commission considered the proposal from the Inspector to

include a condition, and the Commission did not agree with that proposal as Phase 1 and

Phase 2 were being pursued in separate applications. It is also clear that the Commission

also considered the Applicant’s own proposal to provide ‘temporary’ residential and

recreational facilities as part of Phase 1, but found this to be unacceptable given the lack of

certainty regarding the duration of the ‘temporary’ period and agreed with the planning

authority that permission should be refused. The Commission’s reference to concerns

regarding this issue are set out in the Inspector’s report at §7.3.4. and §.7.3.5 wherein the

Inspector explains the basis upon which a condition has been recommended and at §4.3.1

of the Inspector’s Addendum Report.

The conclusion of the Commission is the lawful exercise of planning judgment, having regard

to the totality of the evidence which was before it. The Applicant may not like that the

Commission did not consider that the issue of the Applicant’s choice of separate applications,

wherein it provided that amenities for Phase 1 in Phase 2 could be overcome by a condition,

but the Commission clearly set out the main reasons on the main issues and engaged with

the Inspector’s rationale to the standard required.

It is denied that the Commission breached section 34(4)(a)(i) of the 2000 Act by failing to

‘countenance the recommended condition’. The entitlement of the Commission to attach

such a condition is not in issue, but the Applicant has failed to identify any basis on which,

in the exercise of planning judgment, the decision of the Commission was unlawful. There

is no obligation on the Board to attach conditions to a grant of planning permission to make

the development more acceptable. The Commission Order clearly identifies that it

considered the Inspector’s recommended condition and also considered what the Applicant

has suggested in response to the FI request, and found that it was not satisfied to attach

such a condition and gave express reasons why this was the case.

Finally, even if the Applicant were to succeed on this ground alone (which is not accepted)

the Commission’s decision in respect of refusing to adopt a condition to overcome the

requirements of SPPR 7 of the Apartment Guidelines is separate and distinct from the other

two reasons for refusing permission (i.e. density and layout) and the Commission Decision

in respect of Phase 1 ought not to be quashed.”

117. It’s clear that a condition regarding the relationship between different phases of a

development is intra vires – Parolen v. Drogheda Corporation [2003] IEHC 8 (Unreported, High

Court, Finnegan P., 14 May 2003).

118. The commission has such a power but not an obligation – the commission is not obliged to

save an application by conditioning it differently from how the application was made.

119. As to the need to give reasons for disagreeing with the inspector, there is a general

conceptual difficulty with the argument that a decision-taker has to give reasons for making

exceptions from general reasons. That is a non-existent obligation. Where a general reason or a

general policy applies, any given applicant can boldly demand reasons why such reasons don’t apply

– but that is an artificial exercise and there is no legal obligation on a decision-taker in that regard.

120. The inspector agreed that there was non-compliance with SPPR7 in that it wasn’t apparent

that there was sufficient residential amenity in Phase I of itself to comply – hence the condition.

121. The condition thus is in the nature of an exception to general reasons for which there is no

particular requirement to give reasons. The commission just wasn’t minded to make an exception.

Anyway reasons are implicit albeit phrased as reasons regarding the temporary use – the uncertainty

as to the phasing.

Relationship between reasons

122. While there was some debate about the relationship between the reasons they are clearly

related to some extent, but that doesn’t matter because they survive in full.

Summary

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

(i) it is settled law that an applicant bears the onus of proof to demonstrate grounds

for relief including to show that there was no material on which a decision could have

been based;

(ii) applying such law to the facts here, the applicant has not discharged that onus;

(iii) it is settled law that decisions should not be quashed for non-material errors;

(iv) applying such law to the facts here, the fact that the developer’s own documentation

as it stood as of the date of the decision is capable of being read by a reasonable

decision-taker as supporting a conclusion that the site is not accessible as defined

by guidelines leads to the conclusion that any error about lack of reasons is not

material;

(v) it is settled law that a party cannot adopt a stance in judicial proceedings

inconsistent with its stance before the decision-taker;

(vi) applying such law to the facts here, the fact the developer’s own material as it stood

as of the date of the decision is capable of being read by a reasonable decision-taker

as supporting a conclusion that the site is not accessible as defined by guidelines

militates against the grant of relief by judicial review on a contrary basis;

(vii) it is settled law that a decision must be read as valid and as making sense if such

an interpretation is available;

(viii) applying such law to the facts here, this decision in terms of the issue regarding

site layout can be read as making sense;

(ix) it is settled law that if the inspector gives reasons for a particular conclusion,

there is an obligation on the commission to give reasons for a contrary conclusion;

(x) applying such law to the facts here, the inspector did not address the issue of the

problematic site layout on the assumption of the application being dealt with in its

own terms (i.e., without development of the other half of the site), and hence any

enhanced duty to give reasons for a contrary conclusion does not arise;

(xi) it is settled law that a planning decision-taker is not obliged to reconfigure an

application by conditions to produce a different development to that applied for;

(xii) applying such law to the facts here, the commission’s failure to save the application

by conditions does not give rise to grounds for certiorari;

(xiii) it is settled law that reasons for the reasons are not required, thus where

general reasons are given in a policy or otherwise there is no obligation for a

decision-taker to give reasons for not making exceptions to that; and

(xiv) applying such law to the facts here, there was no obligation on the commission to

go further than to identify the relevant ministerial guidance, which was not being

complied with, in giving reasons for declining to impose conditions that would have

saved the application from such a problem.

Order

124. 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.