High Court dismisses judicial review against planning decision due to lack of merit and standing.

[2025] IEHC 659

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000781]

BETWEEN

JOHN REILLY, DEREK LYNCH, CONOR COYLE, KEVIN FITZSIMONS AND VILLA PARK AND

BLACKHORSE COMMUNITY GROUP

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

LARK FINANCE LIMITED AND SM BLACKHORSE LIMITED

NOTICE PARTIES

Date of impugned decision: 25 April 2024

Date proceedings commenced: 18 June 2024

Date of main hearing: 7 November 2025

Date draft judgment circulated: 11 November 2025

JUDGMENT of Humphreys J. delivered on Friday the 28th day of November 2025

1. Following the grant of a permission for a housing project that was considered acceptable by

the city council, the inspector, and the commission itself, the applicants have combed microscopically

through hundreds of pages of material to come up with a host of technicalities which they present

as grounds for legal invalidity in a situation where their merits-based objections were rejected. The

developer called the first named applicant’s appeal to the commission “frivolous” in its response

document (section 4.2), by reason of the scattergun nature of the complaints made. The issue here

is whether relief by way of judicial review properly arises on such a basis.

Geographical context

2. The proposed development (https://www.pleanala.ie/en-ie/case/315001) will consist of a

residential development of 31 residential units comprising of one four-storey apartment block

(ranging from three to four storeys) (11 one-bedroom units and 20 two-bedroom units) with

balconies/terraces to the south east elevation, two communal roof terraces located at fourth floor

level, one ESB substation and switch room, waste storage area, entrance lobbies, two bicycle parking

rooms (each with 28 spaces, providing 56 spaces in total), landscaping, public lighting, boundary

treatment, 25 surface-level car parking spaces, ten surface-level bicycle parking spaces, new

vehicular access from Villa Park Road, pedestrian access from Villa Park Road and Blackhorse

Avenue, playground and all associated site development and engineering works necessary to

facilitate the proposed development. The proposed development would also consist of the demolition

of the two existing single-storey detached dwellings and associated outbuildings and sheds all at

353 and 363 Blackhorse Avenue, Dublin, which is bound by Blackhorse Avenue to the south and Villa

Park to the west (approximately at https://maps.app.goo.gl/jNEaL2HmHA7s8rfr8).

Facts

3. A legally separate but functionally very similar application on the same site was previously

granted in 2021 and then quashed on judicial review [2021 0351 JR] on 6 June 2024. Following

remittal to the commission, a new permission was granted recently, currently the subject of a

separate judicial review [2025 1402 JR].

4. The notice party developers submitted the present application to the planning authority on

28 February 2022.

5. A further information request (RFI) was made by the planning authority on 16 June 2022.

6. This was responded to by the developers on 9 September 2022.

7. The planning authority determined the developers’ planning application by reference to the

Dublin City Development Plan 2016-2022 on 6 October 2022, and made a decision granting

permission subject to a number of conditions.

8. A first-party appeal was submitted on the 1 November 2022 by Mr Reilly, the first named

applicant on behalf of the Villa Park and Blackhorse Avenue community group (the fifth named

applicant). The appeal included a list of “names and addresses of those who have requested to be

acknowledged as concurring with this appeal”, including the second, third and fourth named

applicants.

9. So only one of the applicants in the judicial review was an appellant – it was either the first

named applicant, or the fifth named applicant with the first named applicant being an agent only.

The concept of appealing on behalf of others isn’t a legally recognised concept – each individual

appellant has to pay a fee to make an appeal.

10. The council and the notice parties submitted responses to the appeal. The developers’

appeal response noted (at pp. 24-25) that “[i]t is acknowledged that the application was submitted

to and assessed by the Planning Authority under the Dublin City Development Plan 2016-2022, as

that was the local Development Plan in effect at the time of the application and decision. However,

as of December 2022, the new Dublin City Development Plan 2022-2028 will come into effect.

Downey can confirm that the land use zoning pertaining to the site has not changed and is still zoned

Objective Z1 with the proposed development being permitted in principle. The overall development

is consistent with the new Development Plan and the relevant sections of the Development Plan

have been referenced in section 4 of this report, in response to the third-party appeal”.

11. No third-party observations were received by the commission.

12. The Dublin City Development Plan 2022-2028 (the CDP 2022-2028) was adopted at a special

council meeting on 2 November 2022.

13. By letter dated 2 December 2022, the commission invited the first named applicant and the

council to make submissions in relation to the developers’ response to the appeal.

14. On 14 December 2022, the CDP 2022-2028 came into effect.

15. The first named applicant made a submission on behalf of the Blackhorse Avenue Villa Park

Road Residents Group, dated 16 December 2022. The council did not make a further submission.

16. The commission’s inspector recommended a grant of permission subject to 20 conditions in

a 51-page report dated 28 February 2024.

17. On 25 April 2024, the commission granted permission for the demolition of two houses,

construction of an apartment block consisting of 31 apartments and all associated site works subject

to 19 conditions.

Procedural history

18. The proceedings were issued on 18 June 2024.

19. The matter was listed in the P&E List for the first time on 8 July 2024.

20. Leave was granted on 29 July 2024 by Holland J.

21. The notice of motion and amended statement of grounds were issued on 15 August 2024.

22. The matter was listed for mention on 25 November 2024, and adjourned to the January

2025 List to Fix Dates.

23. The respondent filed its statement of opposition and affidavit on 7 May 2025.

24. The developers filed their statement of opposition on 10 July 2025.

25. The applicants filed their legal submissions on 7 October 2025.

26. The matter was listed for callover on 13 October 2025. The statement of case was

outstanding. A late affidavit was allowed without prejudice (this is the affidavit of the third named

applicant which is objected to).

27. The respondent filed its legal submissions on 30 October 2025.

28. The matter was again listed for callover on 3 November 2025.

29. The developers filed their legal submissions on 4 November 2025.

30. The matter was heard on 7 November 2025. 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.

31. On 11 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.

32. 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.

33. 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).

34. 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.

35. The mention date to review matters following the foregoing was to be 20 November 2025.

The parties confirmed no comments beyond some limited matters referred to in correspondence

from the commission.

Relief sought

36. The reliefs sought are as follows:

“1. An Order of Certiorari quashing the Order of An Bord Pleanala dated the 25rd of April

2024, to grant planning permission to the Notice Party in respect of a development

comprising 31 residential units at 353 and 363 Blackhorse Avenue, Dublin 7 (ABP Case

reference 315001).

2. Interim and/or interlocutory relief.

3. Liberty to apply.

4. A Declaration that Section 50B of the 2000 Act, as amended, and /or Sections 3 and

4 of the Environment (Miscellaneous Provisions) Act 2011 and/or that the interpretative

obligation set out in Case C-470/16 North East Pylon Pressure Campaign Limited v. An Bord

Pleanála whereby in proceedings where the application of national environmental law is at

issue, it is for the national court to give an interpretation of national procedural law which,

to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and

(4) of the Aarhus Convention apply to these proceedings.

5. Further and other relief.

6. The costs of the proceedings.”

Grounds of challenge

37. The core grounds of challenge are as follows:

“Domestic Law Ground

1. The decision of the Respondent (‘the Board’) granting planning permission to the

Notice Party Developers (‘the Developer’) for the construction of 31 residential at 353 and

363 Blackhorse Avenue, Dublin 7 (ABP Case reference 315001) (‘the impugned decision’) is

invalid as no notice was given and/or no consideration was given (and/or no or no adequate

reasons were given in respect thereof) to putting relevant statutory consultees on notice

pursuant to Article 28(1)(c) and/or as required in respect of a development that might have

significant effects in relation to nature conservation and archaeological heritage for the

purposes of the Board’s EIA assessment, further particulars of which are at Part 2 below.

2. The impugned decision is invalid as the Board granted permission on the basis of a

planning application which does not comply with the requirements of the statutory

application form and Article 22 of the Planning and Development Regulations 2001 (as

amended) (‘the 2001 Regulations’) and/or does not comply with the drawing requirements

of Articles 22 and 23 of the 2001 Regulations and which application was invalid pursuant to

Article 26(3) of the 2001 Regulations, further particulars of which are at Part 2 below.

3. The impugned decision is invalid as the Board had no jurisdiction to decide the appeal

in the absence of a decision of the planning authority made under the operative development

plan. Section 37 of the Planning and Development Act 2000 is limited to an appeal of the

decision of the Planning Authority. The Board has no jurisdiction to consider the application

de novo and/or had no jurisdiction to grant permission where the Planning Authority did not

reach a conclusion on whether the proposed development would constitute a material

contravention of the Dublin City Development Plan 2022-2028 for the purposes of section

37(2)(b) of the Planning and Development Act 2000.

4. The impugned decision is invalid as the Board did not exercise its powers under

section 131 and/or section 137 of the Planning and Development Act 2000 (‘the 2000 Act’)

in relation to the application of the Dublin County Development Plan 2022-2028 to the

proposed development and/or did not comply with the requirements of fair procedures and

natural justice and/or is irrational and unreasonable, further particulars of which are at Part

2 below.

5. The impugned decision is invalid as the proposed development materially

contravenes the Dublin City Development Plan 2022-2028 in respect of the requirements of

Table 15-1 of the CDP and BHA 2 and 24 and/or the Board erred in law in failing to consider

relevant considerations, further particulars of which are at Part 2 below.

European Ground

6. The impugned decision is invalid because the Board erred in law in excluding the

possibility of significant effects on the Northwest Irish Sea SPA (Site Code 004236) at

Screening Stage and/or failing to consider that SPA for the purposes of its Screening

assessment and/or the Board’s conclusion of no significant effect is irrational and

unreasonable and/or the Board failed to provide any or any adequate reasons, further

particulars of which are at Part 2 below.

38. Core Grounds 1, 3 and 6 are not being maintained.

The impugned decision

39. The impugned decision provides as follows:

“Decision

GRANT permission for the above proposed development in accordance with the

said plans and particulars based on the reasons and considerations under and

subject to the conditions set out below.

Reasons and Considerations

Having regard to the land-use zoning objectives for the site, as set out in the Dublin City

Development Plan 2022-2028 and to the nature, height, scale and design of the proposed

development, it is considered that, subject to compliance with the conditions set out below,

the proposed development would constitute an acceptable residential density in this urban

location, would be acceptable in terms of layout, height, scale and design, would provide a

suitable level of amenity for future residents, would not seriously injure the amenities of the

area or of property in the vicinity, would be acceptable in terms of traffic safety and

convenience, would be served by adequate parking and environmental services, would not

endanger the health and safety of persons using neighbouring buildings, and would comply

with the provisions of the development plan, the Urban Development and Building Heights

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

Government in December 2018, the Sustainable Urban Housing: Design Standards for New

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

Planning and Local Government in March 2018 and the Sustainable Residential Development

and Compact Settlement Guidelines, 2024. The proposed development would, therefore, be

in accordance with the proper planning and sustainable development of the area.

Conditions

1. The development shall be carried out and completed in accordance with the plans and

particulars lodged with the application, as amended by the further plans and particulars

received by the planning authority on the 9th day of September 2022, and by An Bord

Pleanala on the 1st day of December, 2022 except as may otherwise be required in order to

comply with the following conditions. Where such conditions require details to be agreed

with the planning authority, the developer shall agree such details in writing with the

planning authority prior to commencement of development and the development shall be

carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.

2. Details of the materials, colours and textures of all the external finishes to the proposed

development shall be submitted to, and agreed in writing with, the planning authority prior

to commencement of development. A panel of the proposed finishes shall be placed on site

to enable the planning authority to adjudicate on the proposals.

Reason: In the interest of visual amenity.

3. The management and maintenance of the proposed development following its completion

shall be the responsibility of a legally-constituted management company. A management

scheme providing adequate measures for the future maintenance of roads and communal

areas shall be submitted to, and agreed in writing with, the planning authority prior to

commencement of development.

Reason: To provide for the satisfactory future maintenance of this development in the

interest of residential amenity.

4. The developer shall comply with all requirements of the planning authority in relation to

roads, access, lighting and parking arrangements, including facilities for the recharging of

electric vehicles. In particular:

(a) the footpath along the site boundaries with Blackhorse Avenue and Villa Park Road

shall be a minimum of two metres in width,

(b) a separation rail or similar shall be provided from the access to the children's play

area along the pedestrian route bordering the parking area,

(c) no car parking spaces shall be sold separately or let independently of the proposed

development,

(d) the developer shall undertake to implement the measures outlined in the Mobility

Management Plan and to ensure that future occupants of the proposed development

comply with this strategy. A Mobility Manager for the overall scheme shall be

appointed to oversee and co-ordinate the preparation of individual plans. The

Mobility Management Plan shall also, aside from the on-site car club facility, identify

car club spaces outside of the development and in the vicinity of the site,

(e) a Parking Management Plan shall be prepared and submitted for the written

agreement of the planning authority prior to the occupation of the proposed

development. This plan shall indicate how spaces will be assigned and segregated

by use, and how use of the car parking will be continually managed. Car parking

shall not be assigned to individual residential units and car parking spaces shall be

permanently allocated to the proposed development use and shall not be sold,

rented or otherwise sub-let or leased to other parties. A minimum of one number

car parking space within the development shall be permanently allocated to car club

use,

(f) the roads and traffic arrangements serving the site, including footpath connections

and signage, shall be in accordance with the detailed requirements of the planning

authority for such works and shall be carried out at the developer's expense,

(g) the roads layout at the vehicular entrance, parking areas, footpaths, kerbs, car

parking bay sizes, and road access to the development shall comply with the

requirements of the Design Manual for Urban Roads and Streets and with any

requirements of the planning authority for such road works,

(h) the materials used in any roads/footpaths provided by the developer shall comply

with the detailed standards of the planning authority for such road works, and

(i) a minimum of 10% of all communal car parking spaces shall be provided with

functioning electric vehicle (EV) charging stations/points. Ducting shall be provided

for all remaining car parking spaces, to facilitate the installation of electric vehicle

charging points/stations at a later date. Such proposals shall be submitted to, and

agreed in writing with, the planning authority prior to commencement of

development, and the agreed provisions shall be carried out and completed prior to

the making available by the developer for occupation of any of the residential units

in the proposed development.

Reason: In the interests of traffic safety and of sustainable transportation.

5. The landscaping scheme submitted to the planning authority, shall be carried out within

the first planting season following substantial completion of the external construction works.

All planting shall be adequately protected from damage until established. Any plants that

die, are removed or become seriously damaged or diseased, within a period of five years

from the completion of the development, shall be replaced within the next planting season

with others of similar size and species, unless otherwise agreed in writing with the planning

authority.

Reason: In the interests of residential and visual amenity.

6. Public lighting shall be provided in accordance with a scheme, details of which shall be

submitted to, and agreed in writing with, the planning authority prior to commencement of

development. Such lighting shall be provided prior to the making available for occupation

of any apartment.

Reason: In the interest of public health and to ensure a satisfactory standard of

development.

7. A plan containing details for the management of waste (and, in particular, recyclable

materials) within the development, including the provision of facilities for the storage,

separation and collection of the waste and, in particular, recyclable materials and for the

ongoing operation of these facilities shall be submitted to, and agreed in writing with, the

planning authority prior to commencement of development. Thereafter, the waste shall be

managed in accordance with the agreed plan.

Reason: To provide for the appropriate management of waste and, in particular recyclable

materials, in the interest of protecting the environment.

8. Prior to commencement of the development, the developer shall enter into water and

wastewater connection agreements with Uisce Eireann.

Reason: In the interest of public health.

9. Drainage arrangements, including the attenuation and disposal of surface water, shall

comply with the requirements of the planning authority for such works and services.

Reason: In the interest of public health and to ensure a satisfactory standard of

development.

10. The developer shall facilitate the preservation, recording and protection of archaeological

materials or features that may exist within the site. In this regard, the developer shall –

(a) notify the planning authority in writing at least four weeks prior to the

commencement of any site operation (including hydrological and geotechnical

investigations) relating to the proposed development,

(b) employ a suitably-qualified archaeologist who shall monitor all site investigations

and other excavation works, and

(c) provide arrangements, acceptable to the planning authority, for the recording and

for the removal of any archaeological material which the authority considers

appropriate to remove.

In default of agreement on any of these requirements, the matter shall be referred

to An Bord Pleanala for determination.

Reason: In order to conserve the archaeological heritage of the site and to secure the

preservation and protection of any remains that may exist within the site.

11. Proposals for a naming and numbering scheme and associated signage shall be

submitted to, and agreed in writing with, the planning authority prior to commencement of

the development. Thereafter, all signs, and apartment numbers, shall be provided in

accordance with the agreed scheme. The proposed name shall be based on local historical

or topographical features, or other alternatives acceptable to the planning authority. No

advertisements/marketing signage relating to the name of the development shall be erected

until the developer has obtained the planning authority's written agreement to the proposed

name.

Reason: In the interest of urban legibility and to ensure the use of locally appropriate place

names for new residential areas.

12. No additional development shall take place above roof parapet level, including lift motor

enclosures, air handling equipment, storage tanks, ducts or other external plant,

telecommunication aerials, antennas or equipment, unless authorised by a further grant of

planning permission.

Reason: To protect the residential amenity of property in the vicinity and the visual amenity

of the area.

13. Prior to the commencement of development, the developer or any agent acting on its

behalf, shall prepare a Resource Waste Management Plan (RWMP) as set out in the EPA's

Best Practice Guidelines for the Preparation of Resource and Waste Management Plans for

Construction and Demolition Projects (2021) including demonstration of proposals to adhere

to best practice and protocols. The RWMP shall include specific proposals as to how the

RWMP will be measured and monitored for effectiveness; these details shall be placed on

the file and retained as part of the public record. The RWMP must be submitted to the

planning authority for written agreement prior to the commencement of development. All

records (including for waste and all resources) pursuant to the agreed RWMP shall be made

available for inspection at the site office at all times.

Reason: In the interest of sustainable waste management.

14. The construction of the development shall be managed in accordance with a Construction

and Environmental Management Plan, which shall be submitted to, and agreed in writing

with the planning authority prior to commencement of development. This plan shall provide,

inter alia, details and location of the proposed construction compound(s), details of intended

construction practice for the development, including noise and dust management measures,

measures to prevent the spillage or deposit of clay, rubble or other debris on the public road

network, details of arrangements for routes for construction traffic, parking during the

construction phase and off-site disposal of construction/demolition waste.

Reason: In the interests of public safety and residential amenity.

5. Site development and building works shall be carried out only between the hours of 0700

to 1900 Mondays to Fridays inclusive, between 0800 to 1400 hours on Saturdays and not at

all on Sundays and public holidays. Deviation from these times will only be allowed in

exceptional circumstances where prior written approval has been received from the planning

authority.

Reason: In order to safeguard the residential amenities of property in the vicinity.

16. Prior to commencement of the development, the applicant or other person with an

interest in the land to which the application relates shall enter into an agreement in writing

with the planning authority in relation to the provision of housing in accordance with the

requirements of section 94(4) and section 96(2) and (3) (Part V) of the Planning and

Development Act 2000, as amended, unless an exemption certificate shall have been applied

for and been granted under section 97 of the Act, as amended. Where such an agreement

is not reached within eight weeks from the date of this order, the matter in dispute (other

than a matter to which section 96(7) applies) may be referred by the planning authority or

any other prospective party to the agreement to An Bord Pleanala for determination.

Reason: To comply with the requirements of Part V of the Planning and Development Act

2000, as amended, and of the housing strategy in the development plan of the area.

17. Prior to commencement of development, the developer shall lodge with the planning

authority a cash deposit, a bond of an insurance company, or other security to secure the

provision and satisfactory completion of roads, footpaths, watermains, drains, open space

and other services required in connection with the development, coupled with an agreement

empowering the local authority to apply such security or part thereof to the satisfactory

completion of any part of the development. The form and amount of the security shall be

as agreed between the planning authority and the developer or, in default of agreement,

shall be referred to An Bord Pleanala for determination.

Reason: To ensure the satisfactory completion of the development,

18. The developer shall pay to the planning authority a financial contribution in respect of

public infrastructure and facilities benefiting development in the area of the planning

authority that is provided or intended to be provided by or on behalf of the authority in

accordance with the terms of the Development Contribution Scheme made under section 48

of the Planning and Development Act 2000, as amended. The contribution shall be paid

prior to commencement of development or in such phased payments as the planning

authority may facilitate and shall be subject to any applicable indexation provisions of the

Scheme at the time of payment. Details of the application of the terms of the Scheme shall

be agreed between the planning authority and the developer or, in default of such

agreement, the matter shall be referred to An Bord Pleanala to determine the proper

application of the terms of the Scheme.

Reason: It is a requirement of the Planning and Development Act 2000, as amended, that

a condition requiring a contribution in accordance with the Development Contribution

Scheme made under section 48 of the Act be applied to the permission.

19. The developer shall pay to the planning authority a financial contribution in lieu of public

open space in accordance with the terms of the Development Contribution Scheme made

under section 48 of the Planning and Development Act 2000, as amended. The contribution

shall be paid prior to commencement of development or in such phased payments as the

planning authority may facilitate and shall be subject to any applicable indexation provisions

of the Scheme at the time of payment. Details of the application of the terms of the Scheme

shall be agreed between the planning authority and the developer or, in default of such

agreement, the matter shall be referred to An Bord Pleanala to determine the proper

application of the terms of the Scheme.

Reason: It is a requirement of the Planning and Development Act 2000, as amended, that

a condition requiring a contribution in accordance with the Development Contribution

Scheme made under section 48 of the Act be applied to the permission.”

The eight-fold test for judicial review

40. This may be an opportune occasion to pull together some of the strands of the jurisprudence

to identify an overall test for the grant of relief by way of judicial review.

41. If one were to try to sum up judicial review in one sentence it might be: is there a legal

problem with the decision that has been demonstrated to make a genuine difference to a meaningful

objective interest that the applicant is entitled to advance?

42. A one-line summary does run the risk of over-simplification, but it may be helpful

nonetheless. It certainly gets across the main point which is that having a good legal point isn’t

enough in itself.

43. Taking a more systematic overview, one can identify an eight-fold path to obtaining relief

by way of judicial review. These tests are cumulative, and relief should only be granted if the

proceedings meet all of the following:

(i) the applicant complies with jurisdictional requirements (e.g. time or standing to

bring the proceedings at all (as opposed to standing for particular issues within a

case that the applicant can bring at a general level));

(ii) the applicant’s point is legally correct and workable;

(iii) the applicant’s point is properly pleaded with the requisite specificity;

(iv) the specific point is one that the applicant has standing to make (bearing in mind

that while the requirement for standing can preclude raising issues which are a ius

tertii for example, it does not generally require prior participation in the process

insofar as there is an EU/Aarhus convention dimension);

(v) material capable of sustaining the point was properly before the decision-taker

at the relevant time such as to give rise to a duty to consider it (subject to exceptions

primarily related to failure by the decision-taker to fulfil autonomous obligations);

(vi) the applicant has discharged the onus of proof to evidentially establish all facts

necessary for relief;

(vii) any error must transcend the harmless, the non-material and the purely technical

and must have real-world consequences, bearing in mind that if error is

demonstrated, then the onus shifts to the opposing parties to show harmlessness;

and

(viii) a consideration of the court’s discretion properly favours the making of the order

(such as weighing the proportionality of the order sought), bearing in mind that

discretion is more limited in an EU law context than in relation to a domestic law

issue.

44. As well as legal correctness, which is an issue in every case, the relevant tests here are

workability, standing, onus of proof, harmlessness and discretion.

45. While not a problem for the applicants here, it may be useful for reference purposes (i.e.,

simply to give an overall view of the law in one place) to make some brief comments on the other

legs of the test regarding jurisdiction, pleadings, and the lens of the material before the decision-

taker.

46. Before dealing with the tests in detail, some general comments on the judicial review process

from previous caselaw are worth recapitulating at this juncture:

(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, High Court, 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. L.R. 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.

47. We can now turn specifically to the eight limbs of the test for relief by way of judicial review.

Test I – Jurisdiction

48. The essential jurisdictional requirements, by way of summary, are:

(i) that the applicant has standing by way of having a sufficient interest (O. 84 r.

20(5) RSC, s. 50A(3)(b)(i) of the 2000 Act);

(ii) that the applicant has complied with time limits, normally eight weeks in the

planning context (s. 50(6) and (7)), noting that any extension must be expressly

sought (O. 103 r. 10(1) RSC);

(iii) that the applicant has capacity to bring proceedings (as a matter of general law –

this is only an issue in applications by unincorporated bodies);

(iv) that the applicant has exhausted reasonable alternative remedies (see G. v.

DPP [1994] 1 I.R. 374 – the only effective remedy, on the facts established by the

applicant, which the applicant could obtain would be an order by way of judicial

review) or, if there is an alternative remedy, that the application by way of judicial

review is, on all the facts of the case, a more appropriate method of procedure (s.

50A(3)(c) inserted by s. 22 of the Planning and Development, Maritime and

Valuation (Amendment) Act 2022, which has been in force since 20 October 2022

by virtue of the Planning and Development, Maritime and Valuation (Amendment)

Act 2022 (Commencement of Certain Provisions) (No. 3) Order 2022 (S.I. 523 of

2022)); and

(v) compliance with essential procedural requirements, primarily the requirement

under s. 50(2) of the 2000 Act that a decision covered by that section cannot be

challenged otherwise than exclusively by judicial review under that section – as to

the details of that see O. 103 RSC and the terms of High Court Practice Direction

HC126.

Test II – Workability

49. Legal provisions and obligations should be given a workable, sensible interpretation

where this is at all possible:

(i) Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord Pleanála

[2022] IESC 30, [2022] 2 I.L.R.M. 417 per Hogan J. (Mac Menamin, Charleton,

O'Malley and Baker JJ. concurring) at 43: “There is clear judicial authority for the

proposition that statutory provisions should be read, where possible, so as to

produce a workable and coherent interpretation, thereby avoiding interpretations

which were either incongruous or which imposed unfair or anomalous obligations on

private citizens in particular. Thus, for example, as far back as Frescati Estates Ltd.

v Walker [1975] IR 177 at 187 this Court held that the Planning Acts should, where

possible, not be interpreted in a way which would lead to ‘strange incongruities.’ In

a subsequent Housing Act case, this Court rejected an interpretation of what

constituted the relevant dates for the service of notices to treat for the purposes of

the making of compulsory purchase orders under the Housing Act 1966 where it

concluded that such an interpretation such render the legislation effectively

unworkable: see In re Murphy [1977] IR 243 at 251 per Henchy J.”.

(ii) 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and

Collins JJ., 1 July 2025), para. 13, citing the statement that where the statutory

words used “are reasonably capable of a meaning which is in accord with the essence

of the provision, it is that interpretation which should prevail”: see Kellystown Co.

v. Hogan [1985] I.L.R.M. 200 at 203, per Henchy J. (Griffin J. concurring).

(iii) A discretionary power should not be construed as extending to impose unworkable

and unenforceable requirements – McGowan v. An Coimisiún Pleanála [2025] IEHC

405 (Unreported, High Court, 8 July 2025).

(iv) Likewise, European law should not be read as imposing impossibly onerous

obligations: An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8, [2022]

2 I.R. 173, [2022] 1 I.L.R.M. 281, per Hogan J. (O'Donnell C.J., Dunne, Charleton

and Woulfe JJ. concurring) at para. 105, rejecting “impossibly onerous and

unworkable obligations”; Friends of Killymooney Lough v. An Coimisiún Pleanála

[2025] IEHC 407 (Unreported, High Court, 16 July 2025).

Test III – Proper pleadings

50. Some relevant legal principles concerning pleading requirements which have been rehearsed

in previous caselaw include the following:

(i) Applicants are confined to their pleadings: A.P. v. Director of Public

Prosecutions [2011] IESC 2, [2011] 1 I.R. 729, [2011] 2 I.L.R.M. 100, [2011] 1 JIC

2501 (Denham J. and Fennelly J., Murray C.J., Hardiman J. and Finnegan J.

concurring); Khashaba v. Medical Council [2016] IESC 10, [2016] 3 JIC 0701, 2016

WJSC-SC 12280 per O’Malley J. (Denham C.J. and Clarke J. concurring) at para. 56;

Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC

42, [2021] 7 JIC 1606 (Unreported, Supreme Court, Baker J., 16 July 2021) (Clarke

C.J., O'Donnell, MacMenamin and Dunne JJ. concurring) at §§29 and 31; Concerned

Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28,

[2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024) per Murray J. at paras.

39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring); Eglington

Residents Association v. An Bord Pleanála [2025] IEHC 209 (Unreported, High Court,

Farrell J., 15 April 2025) at 11. The rules of pleading are well-established, clear and

mandatory, and are of particular importance in a context of special complexity such

as technical EU-heavy areas of planning law; while exact specification of every jot

and tittle of a case is an impossible standard, an applicant can only be permitted to

advance at a hearing a point that is acceptably clear from the express terms of the

statement of grounds, subject to the grant of any order allowing an amendment:

Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported,

High Court, 24 January 2024).

(ii) Pleading requirements in judicial review are “stringent”, allowing “little room

for manoeuvre”: People Over Wind & Anor. v. An Bord Pleanála & Ors. (No. 1) [2015]

IEHC 271, [2015] 5 JIC 0106 (Unreported, High Court, Haughton J., 1 May 2015).

“It shall not be sufficient for an applicant to give as any of his grounds for the

purposes of paragraphs (ii) or (iii) of sub-rule (2)(a) an assertion in general terms

of the ground concerned, but the applicant should state precisely each such ground,

giving particulars where appropriate, and identify in respect of each ground the facts

or matters relied upon as supporting that ground”: Order 84 r. 20(3) RSC. “If on

the Grounds pleaded there is genuine ‘doubt, ambiguity or confusion’ an Applicant

in Judicial Review cannot have the benefit of it”, per Holland J. in Ballyboden Tidy

Towns Group v. An Bord Pleanála & Ors. [2022] IEHC 7, [2022] 1 JIC 1001

(Unreported, High Court, 10 January 2022) at para. 308.

(iii) Complex EU law arguments need to be articulated with particular clarity. It

is particularly important, in the case of an allegation of a failure properly to transpose

an obligation under EU law, that the requirements of O. 84, r. 20(3) be observed:

Sweetman v. An Bord Pleanála (Sweetman XV) [2020] IEHC 39, [2020] 1 JIC 3104

(Unreported, High Court, 31 January 2020) per McDonald J. at para. 103 (cited with

approval by Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring)

in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024]

IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024)); Rushe v.

An Bord Pleanála [2020] IEHC 122, [2020] 3 JIC 0502 (Unreported, High Court, 5

March 2020) per Barniville J.; attempts to launch for example non-transposition

claims not set out on the pleadings are impermissible: Alen-Buckley v. An Bord

Pleanála [2017] IEHC 311, [2017] 5 JIC 1211 (Unreported, High Court, Costello J.,

12 May 2017).

(iv) Recital of high-level principles does not create certiorari by osmosis – an applicant

must specify a route-map connecting the particular factual problem alleged with

the particular relief sought via a chain of reasoning: Ballyboden Tidy Towns v. An

Bord Pleanála [2021] IEHC 648 (Unreported, High Court, 7 January 2022), para. 20;

Foley v. Environmental Protection Agency [2022] IEHC 470 (Unreported, High Court,

Twomey J., 24 January 2023), paras. 71-72; Stapleton v. An Bord Pleanála & Savona

[2024] IEHC 3 (Unreported, High Court, Holland J., 13 February 2024), para. 124.

(v) Scattergun pleadings are liable to be viewed as “a witch’s brew designed to spread

maximum confusion and to permit any argument to be made at the hearing that

ingenuity can suggest”: Hellfire Massy Residents Association v. An Bord Pleanála

[2022] IESC 38, [2024] 1 I.R. 386, [2022] 10 JIC 2402 per O’Donnell C.J. at para.

22 (Dunne, Woulfe, Hogan and Murray JJ. concurring). MacMenamin J. (Fennelly

and Clarke JJ. concurring) in Babington v. Minister for Justice Equality and Law

Reform & Ors. [2012] IESC 65 (Unreported, Supreme Court, 18 December 2012)

referred to the pleading requirements in judicial review and said at para. 7:

“Regrettably, these explicit stipulations are frequently not complied with, and the

same grounds are set out in as many different, varying, (and wearying)

reformulations of the same point as can be conceived. Practitioners should realise

that, in this entirely counterproductive and unnecessary process, there is a real risk

of not being able to see the wood for the trees. A good point does not gain force by

repetition”.

(vi) While the court has jurisdiction to grant unpleaded reliefs it can allow such relief

only within the contours of the case as defined by the pleaded grounds:

Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC

28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024), para. 42 per

Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). Therefore a

court can’t grant relief if there is no supporting ground for it.

(vii) It is not necessary that the specific provisions of national or EU law relied

on are expressly enumerated if they are implicitly identifiable with acceptable

clarity: Eco Advocacy CLG v. An Bord Pleanála (No. 4) [2023] IEHC 713 (Unreported,

High Court, 18 December 2023); Kennedy & Anor. v. An Bord Pleanála [2024] IEHC

570 (Unreported, High Court, 7 October 2024), para. 132; Leech v. An Bord Pleanála

[2024] IEHC 599 (Unreported, High Court, Farrell J., 12 November 2024); Mount

Salus Residents' Owners Management Company Limited by Guarantee v. An Bord

Pleanála & Ors. [2025] IEHC 14 (Unreported, High Court, Holland J., 15 January

2025), para. 39. The standard is acceptable clarity, not express enumeration.

(viii) As noted by the Court of Appeal in Carvill v. An Bord Pleanála [2025] IECA 84

(Unreported, Court of Appeal, Barniville P., Collins and Faherty JJ., 11 April 2025)

at para. 148, where a developed pleading objection is made, the court should not

accept the point made by the applicant without first addressing the

objection. That said, the court can reject a point without deciding the pleading

objection if it fails either way.

Test IV – Standing to raise issues

51. Having standing is both a general requirement for anybody that brings proceedings, and

potentially a requirement for each individual issue advanced in the proceedings.

52. The general rule is:

(i) standing to bring the proceedings in the planning context requires sufficient interest

(s. 50A(3)(b) of the 2000 Act) normally involving having participated in the process,

or else that the applicant is an environmental NGO;

(ii) once an applicant has the required interest to bring the proceedings they are not

debarred from raising any point merely because they did not raise it in the process;

(iii) but that does not mean that an applicant can raise any point at all in the judicial

review, and they cannot argue for the rights of third parties or for rights that do not

arise on the particular facts;

(iv) nor does it mean that failure to raise a point is irrelevant; such failure is relevant to

(a) whether the decision is flawed when viewed through the lens of what was before

the decision-taker at the relevant time (b) the evaluation of whether any

contravention was material, or (c) the exercise of discretion.

53. As to the first issue, sufficient interest, in general terms, the advancing of an individual

issue in proceedings with an EU/Aarhus dimension does not require prior participation in the process.

That doesn’t mean that anybody and everybody can challenge any planning decision even if they

never engaged with the planning application. There is still a question as to the sufficiency of their

interest – that is the distinction between the public and “the public concerned”.

54. As regards the exception for EU matters regarding the requirement to participate in the

process, the CJEU held in the judgment of 15 October 2009, Djurgården-Lilla Värtans

Miljöskyddsförening, C-263/08, ECLI:EU:C:2009:631:

“37 The fact that development consent for housing electric cables and groundwater

abstraction such as that at issue in the main proceedings, which is a decision within the

meaning of Article 10a of Directive 85/337, is given by a court exercising administrative

powers does not prevent an association fulfilling the conditions set out in paragraph 35 of

this judgment, and in accordance with the detailed rules laid down by national law, from

exercising its right of access to a review procedure in order to challenge that decision.

38 First, the right of access to a review procedure within the meaning of Article 10a of

Directive 85/337 does not depend on whether the authority which adopted the decision or

act at issue is an administrative body or a court of law. Second, participation in an

environmental decision-making procedure under the conditions laid down in Articles 2(2)

and 6(4) of Directive 85/337 is separate and has a different purpose from a legal review,

since the latter may, where appropriate, be directed at a decision adopted at the end of that

procedure. Therefore, participation in the decision-making procedure has no effect on the

conditions for access to the review procedure.”

55. In the judgment of 15 October 2015, Commission v Germany, C-137/14,

ECLI:EU:C:2015:683, the CJEU said:

“Findings of the Court

75 Paragraph 2(3) of the UmwRG and Paragraph 73(4) and (6) of the VwVfG restrict the

pleas in law which may be raised by an applicant in support of legal proceedings against an

administrative decision falling within the scope of Article 11 of Directive 2011/92 and Article

25 of Directive 2010/75 to objections made during the administrative procedure.

76 In that regard, although, indeed, neither Article 11(4) of Directive 2011/92 nor Article

25(4) of Directive 2010/75 excludes an action before an administrative authority preceding

the legal proceedings and does not prevent national law from requiring the applicant to

exhaust all administrative review procedures before being authorised to bring legal

proceedings, those provisions of EU law do not, however, allow restrictions on the pleas in

law which may be raised in support of legal proceedings.

77 The Court has previously held that Article 11(1) of Directive 2011/92, pursuant to

which the decisions, acts or omissions covered by that article must be subject to a review

procedure before a court of law or another independent and impartial body established by

law to challenge their substantive or procedural legality, lays down no restriction whatsoever

on the pleas which may be relied on in support of such a review (see, to that effect, judgment

in Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen,

C‑115/09, EU:C:2011:289, paragraph 37). That consideration meets the objective pursued

by that provision of ensuring broad access to justice in the area of environmental protection.

78 Paragraph 2(3) of the UmwRG and Paragraph 73(4) of the VwVfG lay down specific

conditions restricting the review by the courts which are not provided for in either Article 11

of Directive 2011/92 or Article 25 of Directive 2010/75.

79 Such a restriction laid on the applicant as to the nature of the pleas in law which he

is permitted to raise before the court reviewing the legality of the administrative decision

which concerns him cannot be justified by considerations of compliance with the principle of

legal certainty. It is in no way established that a full review by the courts of the merits of

that decision would undermine that principle.

80 As regards the argument concerning the efficiency of administrative procedures,

although it is true that the fact of raising a plea in law for the first time in legal proceedings

may, in certain cases, hinder the smooth running of that procedure, it is sufficient to recall

that the very objective pursued by Article 11 of Directive 2011/92 and Article 25 of Directive

2010/75 is not only to ensure that the litigant has the broadest possible access to review by

the courts but also to ensure that that review covers both the substantive and procedural

legality of the contested decision in its entirety.

81 None the less, the national legislature may lay down specific procedural rules, such

as the inadmissibility of an argument submitted abusively or in bad faith, which constitute

appropriate mechanisms for ensuring the efficiency of the legal proceedings.

82 It follows that the third complaint raised by the Commission in support of its action is

well founded.”

56. In the judgment of 14 January 2021, Stichting Varkens in Nood and Others, C-826/18,

ECLI:EU:C:2021:7, the court said (emphasis added):

“The third to the sixth questions

53 Having regard to the disputes in the main proceedings and the answer given to the

first and the second questions, it should be noted that the third to sixth questions concern

the action of non-governmental organisations which are part of the ‘public concerned’

referred to in Article 2(5) of the Aarhus Convention and which fall within the scope of Article

9(2) of that convention, and that of a member of the ‘public’ referred to in Article 2(4) of

that convention and who falls within the scope of Article 9(3) of that convention.

54 It must therefore be held that, by its third to its sixth questions, the referring court

asks, in essence, whether Article 9(2) of the Aarhus Convention and Article 9(3) thereof

preclude the admissibility of legal actions brought, respectively, by non-governmental

organisations which are part of the ‘public concerned,’ and by a member of the ‘public,’ in

the light, in the case of those organisations, of Article 6 of that convention and, in the case

of that member of the ‘public,’ of the national environmental law of a Member State, from

being made subject to their participation in the procedure preparatory to the contested

decision, unless they cannot reasonably be criticised for not having intervened. That court

also wishes to know whether those provisions preclude the admissibility only of complaints

directed against the same aspects of the contested decision as those which were the subject

of the applicant’s observations in this procedure.

55 It follows from the Court’s case-law that members of the ‘public concerned’ within the

meaning of the Aarhus Convention must be able to bring a legal action against the acts

referred to in Article 9(2) of that convention, whatever role they may have played in the

examination of the application, and that the parties to that convention cannot, therefore,

provide for the inadmissibility of such an action on the ground that the applicant participated

in the decision-making procedure of the contested decision and was able to put forward his

or her point of view on this occasion (see, to that effect, regarding similar provisions of

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain

public and private projects on the environment (OJ 1985 L 175, p. 40), judgment of 15

October 2009, Djurgården-Lilla Värtans Miljöskyddsförening, C–263/08, EU:C:2009:631,

paragraphs 38 and 39).

56 Participation in an environmental decision-making procedure under the conditions laid

down in that convention is separate from the exercise of a legal review and has a different

purpose from the latter, since that review may, where appropriate, be directed at a decision

adopted at the end of that procedure. Therefore, participation in the decision-making

procedure has no effect on the conditions for access to that review procedure (see, to that

effect, judgment of 15 October 2009, Djurgården-Lilla Värtans Miljöskyddsförening, C–

263/08, EU:C:2009:631, paragraph 38).

57 Furthermore, with regard, in particular, to environmental protection associations, it

should be recalled that in the second and third sentences of the second subparagraph of

Article 9(2) of the Aarhus Convention, it is provided that non-governmental organisations

which satisfy the conditions set out in Article 2(5) of that convention are to be regarded as

having either a sufficient interest or rights capable of being impaired, depending on whether

national law makes use of either of those admissibility criteria.

58 Lastly, it should be noted that the objective of ensuring ‘wide access to justice’

provided for in Article 9(2) of the Aarhus Convention and compliance with the effectiveness

of that provision would not be ensured by legislation which would make the admissibility of

an action brought by a non-governmental organisation conditional on the role it may or may

not have played during the participatory phase of the decision-making procedure, even

though that phase does not have the same purpose as the exercise of judicial proceedings

and the assessment that such an organisation may have of a project may, moreover, evolve

depending on the outcome of that procedure (see, to that effect, judgment of 15 October

2009, Djurgården-Lilla Värtans Miljöskyddsförening, C–263/08, EU:C:2009:631, paragraphs

38, 39 and 48).

59 It follows from the foregoing that Article 9(2) of the Aarhus Convention precludes the

admissibility of the judicial proceedings to which it refers, brought by non-governmental

organisations which are of the ‘public concerned’ within the meaning of the Aarhus

Convention, from being made subject to their participation in the decision-making procedure

which led to the adoption of the contested decision.

60 The fact that that condition would not apply, under the national law at issue in the

main proceedings, where those organisations cannot reasonably be criticised for not having

participated in that procedure, cannot justify a different solution, since the failure to comply

with the condition of prior participation is sufficient, in principle, to prevent those

organisations from bringing proceedings.

61 The solution would, however, be different if those proceedings were brought by a

member of the ‘public’ on the basis of more extensive rights to participate in the decision-

making procedure conferred solely by the national environmental law of a Member State.

62 In that case, as is apparent from paragraph 48 of this judgment, it would be necessary

to apply Article 9(3) of the Aarhus Convention, which provides a more flexible framework

for the discretion of the parties to that convention to be exercised.

63 Thus, it follows from the case-law of the Court that that provision does not, in principle,

preclude the admissibility of the actions to which it refers from being made subject to the

condition that the applicant has submitted his or her objections in good time following the

opening of the administrative procedure, since such a rule may allow areas for dispute to be

identified as quickly as possible and, where appropriate, resolved during the administrative

procedure so that judicial proceedings are no longer necessary (see, to that effect, judgment

of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation,

C‑664/15, EU:C:2017:987, paragraphs 88 to 90).

64 In such circumstances, notwithstanding the fact that it constitutes, as a precondition

for bringing judicial proceedings, a limitation on the right to an effective remedy before a

court within the meaning of Article 47 of the Charter of Fundamental Rights of the European

Union (‘the Charter’), the Court has found that such a condition may be justified, in

accordance with Article 52(1) of the Charter, to the extent that it is provided for by law, it

respects the essence of that law, it is necessary, subject to the principle of proportionality,

and it genuinely meets objectives of the public interest recognised by the European Union

or the need to protect the rights and freedoms of others (see, to that effect, judgment of 20

December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C–

664/15, EU:C:2017:987, paragraph 90).

65 In the present case, irrespective of whether Article 47 of the Charter should be applied

to judicial proceedings which would concern only the more extensive rights to participate in

the decision-making procedure which are conferred solely by national law, it is apparent that

the conditions set out in the previous paragraph of this judgment are, in any event, satisfied.

66 It follows from the order for reference that a condition of admissibility of an action

based on prior participation in the decision-making procedure is provided for by a law, for

the purposes of Article 47 of the Charter. That condition moreover respects the essential

content of the fundamental right to effective judicial protection, as enshrined in that article,

since it does not call into question that right as such but merely imposes an additional

procedural step in order to exercise it (see, to that effect, judgment of 27 September 2017,

Puškár, C–73/16, EU:C:2017:725, paragraph 64). In addition, it meets the objective of

general interest referred to in paragraph 63 of this judgment and it is not evident that any

disadvantages caused by the obligation to participate in the procedure preparatory to the

contested decision are clearly disproportionate to that objective (see, to that effect,

judgment of 27 September 2017, Puškár, C–73/16, EU:C:2017:725, paragraphs 66, 67 and

69).

67 The fact that that condition is not applied where the applicant cannot reasonably be

criticised for not having participated in the decision-making procedure is, moreover, such as

to comply with the requirement of proportionality, provided that it is assessed in the light of

the circumstances of the case.

68 Lastly, it does not appear to be necessary to determine whether Article 9(2)

and (3) of the Aarhus Convention precludes only complaints directed against the

same aspects of the contested decision as those which were the subject of

observations by the applicants during that procedure from being open to challenge

before the courts, since the applicants in the main proceedings did not, in any event,

participate in the preparatory procedure.

69 In the light of the foregoing considerations, the answer to the first to sixth questions

is that Article 9(2) of the Aarhus Convention must be interpreted as precluding the

admissibility of the judicial proceedings to which it refers, brought by non-governmental

organisations which are part of the ‘public concerned’ referred to in Article 2(5) of that

convention, from being made subject to the participation of those organisations in the

procedure preparatory to the contested decision, even though that condition does not apply

where such organisations cannot reasonably be criticised for not having participated in that

procedure. However, Article 9(3) of that convention does not preclude the admissibility of

judicial proceedings to which it refers from being made subject to the participation of the

applicant in the procedure preparatory to the contested decision, unless the applicant cannot

reasonably be criticised, in the light of the circumstances of the case, for not having

intervened in that procedure.”

57. Article 9 of the Aarhus Convention has the effect that even a domestic point could be

launched without having been raised in the process.

58. The applicants draw attention to the following views of the ACCC

(https://unece.org/fileadmin/DAM/env/pp/compliance/CC-52/ece.mp.pp.c.1.2016.3.eng.pdf)

(notes omitted):

“68. The Committee takes this opportunity to make a more general observation regarding

the relationship of the right to participate and the right of access to justice under the

Convention, while stressing that what follows is not in any way directed at the communicant

of the present communication. The Convention does not make participation in the

administrative procedure a precondition for access to justice to challenge the decision taken

as a result of that procedure, and introducing such a general requirement for standing would

not be in line with the Convention. On the other hand, the Convention recognizes that public

participation in decision-making procedures is a fundamental tool for enhancing the quality

of environmental decision-making. By ensuring that the public has the opportunity to

express its concerns and by requiring public authorities to take due account of those

concerns, the Convention helps to ensure that environmental considerations are integrated

into governmental decision-making. Therefore, the Committee considers that if NGOs were

to develop a practice to deliberately opt not to participate during public participation

procedures, though having the opportunity to do so, but instead to limit themselves to using

administrative or judicial review procedures to challenge the decision once taken, that could

undermine the objectives of the Convention.”

59. As to the entitlement of a person who has sufficient interest to raise points they didn’t

raise in the process, that follows from the foregoing subject to possible debate at the margins

depending on the terms of any domestic law to the contrary.

60. As to ius tertii, it is settled law that an applicant can’t advance the rights of a third party.

Likewise an applicant can’t argue for a legal outcome of a hypothetical situation that doesn’t arise

on the facts – for example claiming a breach of fair procedures when they did in fact have an

opportunity to participate.

61. Even if an applicant has standing in some capacity to bring the proceedings, that doesn’t

translate into an entitlement to make any and every possible argument particularly where such an

argument is premised on the rights of some other person (such as an unidentified person who might

have been involved in public participation): Cahill v. Sutton [1980] I.R. 269 (O’Higgins C.J.) (Henchy,

Griffin, Kenny and Parke JJ. concurring); Hellfire Massy Residents Association v. An Bord Pleanála

[2021] IEHC 424, [2021] 10 JIC 1302 (Unreported, High Court, 13 October 2021) at §54(i); Conway

v. Minister for Housing, Local Government & Heritage & Ors. [2024] IESC 34 (Unreported, Supreme

Court, 23 July 2024) per O’Donnell C.J. paras. 6-10, per Hogan J. paras. 11-14 (O'Donnell C.J.,

Dunne, Collins and Donnelly JJ. concurring).

62. A permission shouldn’t generally be quashed for failure to respect the property rights of a

third party. It’s different if the rights concerned are those of an applicant herself. Without that

feature, the point is a ius tertii – Mohan v. Ireland [2019] IESC 18, [2021] 1 I.R. 293, [2019] 2

I.L.R.M. 1, O’Donnell J. (MacMenamin, Dunne, Charleton and O’Malley JJ. concurring). Such an

outcome is consistent with the settled caselaw, specifically Frascati Estates Ltd v. Walker [1975] I.R.

177; Simons J. in Heather Hill Management Company CLG v. An Bord Pleanála [2019] IEHC 450

(Unreported, High Court, 21 June 2019); Balscadden Road SAA Residents Association Ltd v. An Bord

Pleanála [2020] IEHC 586 (Unreported, High Court, 25 November 2025); Holland J. in Heather Hill

Management Company CLG v. An Bord Pleanála & Ors. [2022] IEHC 146 (Unreported, High Court,

16 March 2022) at §65; Minoa Ltd v. An Bord Pleanála [2024] IEHC 704 (Unreported, High Court,

Heslin J., 10 December 2024); Watchhouse Cross Shopping Centre v. An Coimisiún Pleanála [2025]

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

63. As to the continued relevance of the failure to raise a point, even if not disqualifying

as such, failure to make a point is relevant to a range of matters including the factual assessment

or discretion.

64. Even if an applicant can make a challenge, not putting forward material about the point

may render the challenge empty and devoid of any prospect of success if there was otherwise no

basis for the decision-taker to have considered the pleaded point: North Great Georges Street

Preservation Society v. An Bord Pleanála [2023] IEHC 241 (Unreported, High Court, 15 May 2023).

65. As to discretion, the following view of Costello J. (Haughton and Murray JJ. concurring) in

Friends of the Irish Environment CLG v. The Government of Ireland & Ors. [2021] IECA 317

(Unreported, Court of Appeal, 26 November 2021) (albeit under appeal) is relevant:

“275. The applicant made a submission on 10 November 2017, but it made no reference to

crucial issues which were central to the appeal. It did not object to the SEA Environmental

Report on the basis that it failed to assess the reasonable alternatives in a comparable

manner to the preferred option, though that was a major plank of its case on appeal, and it

did not assert that the NDP was required to be subject to AA and SEA on the grounds that it

was an integral part of the NPF, which was the key argument advanced to this court to quash

the NDP.

276. This approach was unfair to the respondents, at the very least, and inimical to good

decision making. One of the objectives of public consultation is to permit the public to

highlight defects in the process they believe have occurred before a final decision is taken

so that any such defects may be corrected and the risk of inadvertently reaching an invalid

decision thereby avoided. It is incumbent upon a party who chooses to participate in a

consultative process (as on one who files objections or observations in a planning process)

to raise any points at the earliest possible time in the process. This is conducive to good

administration and ought to reduce the number of legal challenges to administrative

decisions. This court cannot endorse a practice where a point is raised for the first time in

proceedings challenging a final decision which was not, but which could have been, raised

before a decision was reached.

277. This is precisely what occurred in this case and it was not appropriate, even where the

application for judicial review is brought within the time limits established in the Rules of the

Superior Courts. If the applicant wished to raise either of these points it had ample

opportunity to do so. The factual basis for the argument it advanced in these proceedings

was clear from the SEA Environmental Report. It has never suggested that it was not in a

position to argue these issues in its submission of November 2017, nor given any explanation

why this was not done. A party may not reserve or withhold submissions which could and

ought to be made during a public consultation prior to the adoption of a decision to the

hearing of a challenge to the validity of the decision. Such conduct may be relevant to the

exercise of the discretion of the court where an applicant succeeds in its argument but does

not arise for consideration in these proceedings.”

66. There may be issues of the exact scope of the doctrine at the margins which may arise in

an appropriate case. I highlighted some of these questions in An Taisce - The National trust for

Ireland v. An Bord Pleanála [2021] IEHC 254 (Unreported, High Court, 20 April 2021) by reference

to arts. 6 and 9(2) and (3) of the Aarhus Convention, the judgment of 15 October 2009, Djurgården-

Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd, C-263/08,

ECLI:EU:C:2009:631; the judgment of 15 October 2015, European Commission v Federal Republic

of Germany, C-137/14, ECLI:EU:C:2015:683; the judgment of 20 December 2017, Protect Natur-,

Arten- und Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd, C-664/15,

ECLI:EU:C:2017:987; the judgment of 15 March 2018, North East Pylon Pressure Campaign Ltd. v

An Bord Pleanála, C-470/16, ECLI:EU:C:2018:185; the judgment of 14 January 2021, LB, Stichting

Varkens in Nood v College van burgemeester en wethouders van de gemeente Echt-Susteren, C-

826/18, ECLI:EU:C:2021:7; directive 2003/25/EC; and some Irish domestic caselaw, particularly

M28 Steering Group v. An Bord Pleanála [2019] IEHC 929 (Unreported, High Court, MacGrath J., 20

December 2019) and Highlands Residents Association v. An Bord Pleanála [2020] IEHC 622

(Unreported, High Court, McDonald J., 2 December 2020), and indicated that if it had arisen I would

have been minded to refer the following questions:

(i) whether art. 9(2) of Aarhus Convention, approved by decision 2005/370/EC, and/or

art. 47 of the Charter of Fundamental Rights, has the effect of precluding a rule of

domestic procedure that a challenge before a judicial body to a domestic decision

that is subject to public participation and environmental impact assessment, insofar

as it includes grounds relating to other provisions of EU law, cannot be maintained

by reason of the failure of the applicant to raise such points before the decision-

maker; and

(ii) whether art. 9(2) and (3) of the Aarhus Convention approved by decision

2005/370/EC, and/or art. 47 of the Charter of Fundamental Rights, has the effect of

precluding a rule of domestic procedure that only complaints directed against the

same aspects of the contested decision as those which were the subject of

observations by the applicant during the administrative procedure are open to

challenge before the court, either in general or in the absence of an acceptable

explanation?

Test V – The lens of the material before the decision-maker

67. 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.

68. 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).

Test VI – Onus of proof

69. 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 appropriate assessment (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/ environmental impact assessment (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).

Test VII – Harmless error

70. 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).

Test VIII – Discretion

71. Some issues regarding discretion established by the caselaw are as follows:

(i) Judicial review is a discretionary remedy: per Charleton J. in Dun Laoghaire

Rathdown County Council v. Westwood Club Ltd [2019] IESC 43, [2020] 3 I.R. 417

at 10; per Murray J. (Whelan and Pilkington JJ. concurring) in O’Connell v. Behan

[2021] IECA 186 (Unreported, Court of Appeal, 1 July 2021) at 43. This historically

arose from the development of judicial review out of the power to grant equitable

relief.

(ii) In exercising that discretion however the court is not at large. Factors to be

considered as part of a holistic review of all relevant circumstances in deciding

whether to grant relief, and if so, what type of relief include the following (see Reid

v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High

Court, 24 January 2024) para. 134):

(a) The action or inaction of the claimant (such as a failure to exhaust an

alternative remedy, delay, laches, waiver, acquiescence or misconduct in

connection with the proceedings)” (O’Connell v. Behan [2021] IECA 186

(Unreported, Court of Appeal, Murray J., 1 July 2021) (Whelan and

Pilkington JJ. concurring) at 43) or the failure by the applicant to make the

point in the process: Costello J. (Haughton and Murray JJ. concurring) in

Friends of the Irish Environment CLG v. The Government of Ireland & Ors.

[2021] IECA 317 (Unreported, Court of Appeal, 26 November 2021) at

277.

(b) The importance of the provision not complied with – “consideration of

whether the matter concerned is one of importance or of triviality”: per

Finlay C.J. in G. v. DPP [1994] 1 I.R. 374 at p. 378 (emphasis added).

Thus an “inconsequential” breach was not a basis for the grant of relief

as a matter of discretion in Kenny v. Dublin City Council [2009] IESC 19

(Unreported, Supreme Court, 5 March 2005) at 79 per Fennelly J. (Macken

and Peart JJ. concurring).

(c) The extent of the non-compliance.

(d) Prejudice or the lack of it to the applicant or anyone else (see O’Connell v.

Behan [2021] IECA 186, [2021] IECA 186 (Unreported, Court of Appeal,

Murray J., 1 July 2021) at 43: “grounds relating to the impact a remedy

will have on others (such as where the grant of relief would represent an

unwarranted interference with the settled rights or expectations of third

parties)”).

(e) Whether the error was once-off.

(f) Whether the issue is purely historic and cannot reoccur.

(g) The level of deliberation involved in the error and the extent to which

reasonable steps were taken to prevent or identify such an error.

(h) Whether the error was rectified promptly when it came to light (if capable

of rectification).

(i) Whether there is a pattern of non-compliance.

(j) The proportionality of certiorari (as opposed for example to either no

order or declaratory relief only) may also be a factor: 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”.

(k) Grounds relating to “the practical value of the remedy (such as mootness

or futility) (see Independent Newspapers (Ireland) Ltd. v. I.A. [2020] IECA

19, [[2021] 1 I.R. 384] at para. 78)”: O’Connell v. Behan [2021] IECA 186

(Unreported, Court of Appeal, Murray J., 1 July 2021) (Whelan and

Pilkington JJ. concurring) at 43.

(l) Any other relevant circumstances.

(iii) Discretion also applies at the leave stage of judicial review: De Róiste v. Minister for

Defence [2001] IESC 4, [2001] 1 I.R. 190, [2001] 2 I.L.R.M. 241 at 204 per Denham

J.; per Finlay C.J. in G. v. DPP [1994] 1 I.R. 374 at p. 378.

(iv) The court can exercise discretion of its own motion because the court itself has to

be satisfied as to the correctness of granting relief: Ballyboden Tidy Towns Group v.

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

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

implies that the court has an entitlement to exercise such discretion itself even if a

party doesn’t plead that.

Domestic law issues

Core ground 2 – allegedly defective application documents

72. Core ground 2 is:

“2. The impugned decision is invalid as the Board granted permission on the basis of a

planning application which does not comply with the requirements of the statutory

application form and Article 22 of the Planning and Development Regulations 2001 (as

amended) (‘the 2001 Regulations’) and/or does not comply with the drawing requirements

of Articles 22 and 23 of the 2001 Regulations and which application was invalid pursuant to

Article 26(3) of the 2001 Regulations, further particulars of which are at Part 2 below.”

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

“Core Ground 2

Applicants

The Applicants say that the decision is vitiated by four material errors. The statutory

application form was filled out incorrectly (insofar as it failed to identify proximity to a

National Monument), there were no details of plans and elevations of the buildings to be

demolished (the only dimension is the overall height), the drawings submitted by the

Developer lacked any details of the proposed mechanical plant (although this deficiency was

remedied during Further Information, the Applicants maintain this is not relevant for the

purposes of Articles 22,23 and 26 of Planning and Development Regulations 2001) and there

were no details submitted in relation to the proximity between the proposed development

and site boundary (the required dimensions are absent on each of the facades of the

buildings).

Each of these errors, individually and collectively are contrary to the requirements of the

Planning and Development Regulations 2001, as further specified in the written submissions.

Respondent

In response to the four alleged errors:

(i) The Commission denies that the Notice Party’s response of ‘No’ to the question ‘Does

the application relate to development which affects or is close to a monument or place

recorded under Section 12 of the National Monuments (Amendment) Act, 1994?’ invalidates

the grant of permission. Neither the Regulations nor the statutory application define what

is meant by ‘close to’. Even if it was incorrect for the Notice Party to respond ‘No’ to this

question, it is respectfully submitted that this fact alone does not warrant the grant of any

relief and that Certiorari in particular would be a disproportionate in circumstances where

the application documentation as a whole clearly acknowledged the presence of recorded

monument DU018-021 (Poor Man’s well), and where the potential effect of the proposed

development was ventilated and assessed during the process, including in the First and Third

Named Applicant’s submissions to DCC and the First Named Applicant’s appeal (which

indicated the agreement of the Second, Third and Fourth Applicants). No prejudice is

asserted and the Applicants didn’t raise it before the Commission.

(ii) The pleas at §8 ASOG are inadequately particularised contrary to the requirements

of Order 84, Rule 20(3) RSC. The Existing Site Plan, Existing Elevations and Existing

Sections clearly show the extent of demolition as marked in blue hatching. The Applicants

have failed to explain the basis on which it is alleged that those drawings fail to comply with

Articles 22 and 23. The Applicants do not assert that they are in any doubt as to the extent

of demolition proposed. No prejudice is asserted and the Applicants didn’t raise it before

the Commission.

(iii) The Applicants accept that this was addressed in the RFI Response. The fact that

the Council saw fit to seek further details at RFI stage does not mean that the initial

application failed to comply with Articles 22 and 23 of the 2001 Regulations in the first place

(and, notably, the Council, in the discharge of its obligation under Article 26, decided the

contrary – the planning application was validated). No prejudice is asserted and the

Applicants didn’t raise it before the Commission.

(iv) The pleas at §9 ASOG are inadequately particularised contrary to the requirements

of Order 84, Rule 20(3) RSC. The Site layout Plan (Proposed) indicates the distances of the

structures from the site boundaries and satisfies Article 23(1)(f). Further, the First Named

Applicant in the appeal to the Commission noted various distances between the proposed

development and the boundary wall and did not raise in his appeal the issues now sought to

be raised at §9 in relation to the adequacy of the drawings. No prejudice is asserted.

None of the alleged errors go to the validity of the Commission’s decision, or in the

alternative, the Court should refuse certiorari in the exercise of its discretion.

Developer

1. The Developer denies that the planning application was invalid under Articles 22–23

or 26 of the Planning and Development Regulations 2001. The planning authority validated

the application under Article 26, and that determination carries a presumption of regularity

(Monaghan County Council v. Alf-a-Bet Promotions [1980] I.L.R.M. 64; Balscadden

Residents Association v An Bord Pleanála [2020] IEHC 586). The Courts have repeatedly

held that only substantial or misleading omissions render an application invalid; substantial

compliance is sufficient.

2. Each of the Applicants’ four complaints under this Core Ground is addressed in turn:

(i) Application form – recorded monument

The application correctly indicated that the development did not ‘affect or [lie] close to’ a

recorded monument within the meaning of the National Monuments (Amendment) Act 1994.

The nearest recorded monument, DU018-021 (‘Poor Man’s Well’), lies approximately 30 m

southeast of the site and outside the zone of notification. The accompanying Archaeological

Assessment (p. 13) explicitly referenced this feature and concluded that its potential zone

of influence had been investigated and did not extend to the site boundary. The Inspector

recorded the same (§§ 3.2.3, 6.6.3) and imposed Condition 10 requiring archaeological

testing. The Department of Housing, Local Government and Heritage was notified under

Article 28 and furnished comments. The matter was therefore fully identified, assessed, and

mitigated.

Even if the ‘No’ answer could be considered technically inaccurate (which is denied), it could

not have prejudiced participation or affected the outcome. It was immaterial, caused no

prejudice, and cannot vitiate the permission (Save South Leinster Way v ACP [2025] IEHC

541). The Applicants’ submissions referred to DU018-021 (‘Poor Man’s Well’)

(ii) Drawings – demolition plans and elevations

Existing Site Plans, Elevations and Sections (Drawings Nos. XX180–182, scale 1:200)

accompanied the application and clearly identified the two single-storey dwellings to be

demolished, with dimensions and spot heights. Section 9(i) of the application form expressly

stated that the proposal ‘does involve demolition … of habitable houses’. It also stated the

precise dimensions of the floor area being demolished. The public notices likewise described

the demolition. The Applicants were in no doubt as to the extent of demolition and raised

no such issue before the planning authority or the Commission. The requirements of Articles

22(4)(a) and 23(1)(a) were satisfied in full.

(iii) Mechanical plant details

Details of rooftop plant were provided in response to the planning authority’s Further

Information (FI) request, including a Supplementary Noise Impact Assessment (Appendix

III) with plans and acoustic data. Article 22(4)(a) requires only those particulars ‘necessary

to describe the works’ at application stage; subsequent clarification through the FI process

is expressly contemplated by the Regulations and does not retroactively render the

application invalid. The planning authority and its Environmental Health Unit confirmed

satisfaction, and the Commission imposed a standard noise-control condition. The

documentation therefore achieved substantial compliance, far removed from the material

omissions in Balscadden. Even if the application should have contained the same, the

information was ultimately placed before the planning authority and the Applicant further

could make any submissions on the same in its appeal to the Commission.

(iv) Boundary distances

The Site Layout Plan and Landscape Plan (scale 1:200) indicated all structures and site

boundaries, enabling precise measurement. Article 23(1)(f) requires that distances be

‘indicated in figures’, but its purpose is to ensure clarity, not formal numeration. That

purpose was met here: the scaled drawings were clear, the Inspector expressly noted that

adequate separation distances were provided, and the Applicants’ own appeal referred to

specific boundary measurements. No prejudice or uncertainty arises, and the alleged

omission is immaterial.

3. Each complaint is misconceived both factually and legally. The application contained

all information necessary for public participation and assessment; the Inspector and

Commission engaged fully with the material; and any minor irregularity was de minimis and

caused no prejudice. Applying the principles in Alf-a-Bet, Ballyboden Tidy Towns v An Bord

Pleanála [2023] IEHC 722 and Save South Leinster Way, substantial compliance suffices.

The ground reveals no basis for quashing the Commission’s decision.”

74. There are multiple insuperable problems with this ground. The most basic problem is that

it was not incorrect for the developer to claim, on the facts, that the site was not “near” the well,

given that its archaeologist Jacqui Anderson in her March 2022 report said that it was “most likely”

that the reason why the original (1994) RMP map zone of potential extended to the development

site, but not the current zone of notification on archaeology.ie, was that excavations had been carried

out in 2015 “which pin pointed its exact location”.

75. The report of this excavation, by Judith Carroll, is referenced in Ms Anderson’s report, and

one can trace that to the fuller account on the comprehensive website maintained by Isabel Bennett

at https://excavations.ie/report/2015/Dublin/0025298/:

“2015:406 - DUBLIN: Poorman's Well, Blackhorse Avenue, Dublin

County: Dublin

Site name: DUBLIN: Poorman's Well, Blackhorse Avenue

Sites and Monuments Record No.: DU018-021

Licence number: 15E0115

Author: Judith Carroll, Judith Carroll and Company

Author/Organisation Address: Ballybrack Road, Glencullen, Dublin 18

Site type: Well

Period/Dating: Modern (AD 1750-AD 2000)

ITM: E 712256m, N 736072m

Latitude, Longitude (decimal degrees): 53.362916, -6.313415

Monitoring and testing took place at the site between March and September 2015 in advance

of the proposed road realignment and improvements around the site of Poor Man’s Well

(DU018-021) at Blackhorse Avenue which is adjacent to the Cabra Gate of the Phoenix Park.

The work was carried out on behalf of Dublin City Council Roads and Traffic Department,

Road Design Division.

Monitoring at the site took place on 30–31 March 2015 while the contractors were clearing

scrub in the area. Vegetation was removed around the well to clear the area and also to

locate the hidden well. Some removal of topsoil also took place in a limited area as the well

was completely invisible. This revealed a cut stone in the spot of the well and it was decided

to cease investigative works at this point. Further investigation revealed further stones just

to the north of the well, along the edge of the road, partly concealed by vegetation. These

were found to be cut stone. One was part of the base of a pump. The other was a long

stone with a cut border which was partly under the tree root showing that it is not recent.

A suggestion was that it might be part of a horse trough. A testing programme was

recommended to answer questions about the nature of the well.

Testing was carried out on 7 September 2015 and revealed two walls and a substantial well

structure of cut and dressed stone. The dressed stone along the roadside identified during

monitoring was of the same style and size as the capping stones of the exposed wall and

indicates that there was a similar western wall corresponding with that exposed on the east

side. The roadside stone is at an angle to where a western wall is likely to be, most likely

the stone has been moved out of place.

The well still has to be excavated and the nature of the area flanked by walls in front of the

well still has to be established. Local people informed us that there was a horse trough at

the site in living memory though exact descriptions could not be gained. It is suggested

that the access to the well, deliberately set in from the road, was to allow horses to be

brought in from the main road (as it was in the 19th century) to drink without causing

blockage to the road. This well would seem likely to have been contemporary with the pump

which was adjacent to it. It is possible that the well was initially a main local source of water

and generally used by man and beast, but that in the later 19th century a pump was

established and the well was mainly used to water horses, hence its reputation in local

memory as a horse trough.”

76. Given this background one could not regard the form as erroneous.

77. More generally, it is in the nature of the planning process that a project can evolve as part

of the interrogation of material by planning decision-takers and as part of the EIA/AA process.

Application documentation should only be held invalid where the breach is significant having due

regard to whether it was remedied during the process.

78. The need for any error to be one of significance is consistent with Henchy J.’s comments in

Monaghan UDC v. Alf-a-Bet Promotions Ltd. 1980 WJSC-SC 1341, [1980] I.L.R.M. 64, [1980] 3 JIC

2403:

“S. 26(4)(a)(i) of the 1963 Act requires the application to be in accordance with the

Regulations. In my opinion the applicants failed to comply with the Regulations in at least

one vital respect. Art. 15 of the Regulations requires the notice in the newspaper to state,

inter alia, ‘the nature and extent of the development’. This it failed to do. Considering that

one of the primary objects of the published notice - if not the primary object - is to enable

interested members of the public to ascertain whether they have reason to object to the

proposed development, the efficacy of the notice in this case was negatived by the omission

from it of any indication of the real nature or extent of the proposed development. No

member of the public could have been expected to glean from the general words ‘alterations

and improvements’ that the development permission sought was for What we now know it

to have been, namely, the conversion of what had been a drapery shop in the town of

Monaghan into a betting office and amusement arcade. The publication of such a veiled and

misleading notice was a substantial and flagrant breach of the statutory requirement that

the application be in accordance with the Regulations.

In Dunne Ltd. v. Dublin County Council 1974 I.R. 45 Pringle J. gave consideration to

circumstances in which the statutorily required compliance with planning regulations similar

to those under consideration in the present case might be overlooked by the courts. I do

not feel called upon to express an opinion as to whether the non-compliances in that case

were properly ignored as merely trivial departures from what the regulations in question

mandated as being necessary, or whether such non-compliances would be excused in

circumstances other than those peculiar to that case. I do, however, feel it pertinent to

express the opinion that when the 1963 Act prescribed certain procedures as necessary to

be observed for the purpose of getting a development permission, which may affect radically

the rights or amenities of others and may substantially benefit or enrich the grantee of the

permission, compliance with the prescribed procedures should be treated as a condition

precedent to the issue of the permission. In such circumstances, what the legislature has,

either immediately in the Act or mediately in the Regulations, nominated as being obligatory

may not be depreciated to the level of a mere direction except on the application of the de

minimis rule. In other words, what the legislature has prescribed, or allowed to be

prescribed, in such circumstances as necessary should be treated by the courts as nothing

short of necessary, and any deviation from the requirements must, before it can be

overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so

technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the

spirit rather than the letter of the law that matters, the prescribed obligation has been

substantially and therefore adequately, complied with.

The combination of s. 26 of the 1963 Act and articles 14 and 15 of the Regulations makes it

clear that it was part of the expressed legislative intent that, in a case such as this,

development permission should not issue by default unless the notice published in ‘a

newspaper circulating in the district in which the relevant land or structure is situate’ has

specified, amongst other things, the nature and extent of the development asked for. Every

member of the public in the district in which the premises in question is situate has an

interest in seeing that undesirable development will not be permitted. The environmental

character of a district is the legitimate concern of, at least, all who live or work there. It is

unfortunate that the wide choice of newspaper publication allowed may lead on occasion to

development permission being granted before persons vitally affected are even aware that

it has been applied for. Many people would hold that the permitted modes of notification to

the public of planning applications are unfairly inadequate and merit amendment. It is

difficult to rebut such a complaint when one realizes how easily the present system allows

even the most assiduous watcher of the property or of the newspapers to miss the

notification of the application.

Be that as it may, when notification of the application is chosen to be made in a newspaper,

one of the primary purposes of the notification is defeated if the notice does not, at least in

fair and general terms, state the nature and extent of the proposed development. Whether

the unilluminating words used in this case (‘Alterations and reconstruction’) were chosen

deliberately for their vagueness, or casually through inattention to the stated requirements

of the Regulations, they were so wanting in compliance with the spirit and purpose of the

Act and the Regulations that the published notice, and therefore the application, must be

deemed to have been nullified. The planning authority were therefore entitled to treat the

application as a nullity, and there was no obligation on them to point out to the applicant

that the published notice was defective.

The precise extent to which a published notice must comply with the requirements specified

in the Regulations must depend on the circumstances of the particular case. Consequently,

notwithstanding decisions such as Dunne Ltd. v. Dublin County Council, it should not be

assumed that defects in a published notice, such as the wrong name of the applicant, or an

inaccurate or incomplete description of the premises or of its location, or a failure to state

the existing use of the premises, will necessarily be overlooked. Such powers as have been

given to planning authorities, tribunals or the courts to operate or review the operation of

the planning laws should be exercised in such a way that the statutory intent in its essence

will not be defeated, intentionally or unintentionally, by omissions, ambiguities,

misstatements or other defaults in the purported compliance with the prescribed

procedures.”

79. The applicants argued that public participation is critical and that a deficiency in the

application documentation (such as a failure to state in the public notice that the site was near a

monument) compromises such participation.

80. There are a number of problems with that. First of all there is no statutory requirement to

state in a notice whether the site is near a monument. There is a line in the particular form

apparently supplied by Dublin City Council that asks if the project involves works to a protected

structure or its curtilage and says that if it does so then this should be noted in the newspaper

notice. But this doesn’t apply because this apparently is not a protected structure. The line about

the newspaper notice doesn’t occur in the part of the form that deals with monuments. For

completeness, art. 18(3)(d) of the 2001 regulations provides (emphasis added):

“(d) a brief description of the nature and extent of the development, including –

(i) where the application relates to development consisting of or comprising the provision of

houses, the number of houses to be provided,

(ii) where the application relates to the retention of a structure, the nature of the proposed

use of the structure and, where appropriate, the period for which it is proposed to retain the

structure,

(iii) where the application relates to development which would consist of or comprise the

carrying out of works to a protected structure or proposed protected structure, an

indication of that fact,

(iv) where the application relates to development which comprises or is for the purposes of

an activity requiring an integrated pollution control licence, an industrial emissions licence

or a waste licence, an indication of that fact,

(v) where a planning application relates to development in a strategic development zone, an

indication of that fact,

(vi) where the application relates to an LRD, an indication of that fact and include the web

address referred to in article 20A,

(vii) where applicable, that the application is subject to section 34D of the Act, and that

where a notice is given under section 34D(b) of the Act, article 26A shall apply,”

81. This relates only to works to a protected structure, not works near it, and does not apply to

monuments. It also only refers to the newspaper notice. The site notice provisions of art. 19 do

not replicate these requirements in the context of that notice. So none of this is relevant here. In

passing I might say that it is not obvious that it is appropriate for a structure to be a recorded

monument but not on the record of protected structures. That seems on the face of things to be a

bit of a lacuna that does not immediately strike one as entirely explained by the need to avoid

unnecessary administration.

82. Even assuming counterfactually that there was an error in not stating that the site was near

a monument, relief would be a disproportionate in circumstances where there was no doubt from

the application documentation as to the proximity to recorded monument DU018-021 (Poor Man’s

Well), which was considered in the process and thus no objective reason to consider that the answer

to the question gave rise to a risk to the monument. Any error was minor in a context where details

of the monument were provided in the documentation and the Department of Housing, Local

Government and Heritage was notified and commented. In the absence of an objective risk to a

monument or other built or natural heritage asset, relief would be disproportionate in such

circumstances. Reinforcing that, there was no prejudice to the applicants and they did not complain

about the application form during the administrative process.

83. As regards the plea of lack of particulars of structures for demolition at sub-ground 8, that

is substantially factually incorrect (particulars set out in drawings nos. XX180–182, scale 1:200, and

the application form stated the precise dimensions of the floor area being demolished). In any

event, relief would be disproportionate where this was addressed at the RFI stage, where there was

no prejudice to the applicants and where they did not complain about the application form during

the administrative process.

84. As regards the plea of lack of distances to site boundaries at sub-ground 9, that is also

substantially factually incorrect (distances evident from site layout plan and landscape plan (scale

1:200)). The failure to provide distances in figures as opposed to in map form is a purely formal

technicality and not a proper basis for relief. Even assuming a defect in the mapping as alleged at

sub-ground 9, relief would be disproportionate where the first named applicant in the appeal to the

commission noted various distances between the proposed development and the boundary wall,

where details of rooftop plant were provided at the RFI stage, where there was no prejudice to the

applicants and where they did not complain about the application form during the administrative

process.

85. More generally, the complaints made about the application documentation are not

particularly material compared to cases where defective application documents have been fatal.

Balscadden Road SAA Residents Association v. An Bord Pleanála [2020] IEHC 586 (Unreported, High

Court, 25 November 2020) was about a much more fundamental defect in the application

documentation. Atlantic Diamond v. An Bord Pleanála [2021] IEHC 322 (Unreported, High Court,

14 May 2021) at §15-17, is also radically different because the enforcement information required by

the application form was not provided at all during the process.

86. As to whether any error transcends the harmless, the non-material and the purely technical

and formal, the opposing parties have demonstrated that this is not a material problem given the

other information regarding archaeology that was part of the application documentation and that

was available to any process participant. That is reinforced by the applicants’ failure to raise any

point about this in the process and the fact that the applicants were able to make submissions about

the monument anyway. As to discretion, such considerations clearly militate against relief under

this heading for reasons already outlined particularly the lack of prejudice to the applicants, the

minor nature of any problems and the lack of any submissions about the issues. The lack of prejudice

being an aspect of discretion is illustrated by the fact that the applicants made a submission about

the monument which clearly indicated that they were not misled about it.

87. So this ground fails.

Core ground 4 – failure to exercise statutory powers

88. Core ground 4 is:

“4. The impugned decision is invalid as the Board did not exercise its powers under

section 131 and/or section 137 of the Planning and Development Act 2000 (‘the 2000 Act’)

in relation to the application of the Dublin County Development Plan 2022-2028 to the

proposed development and/or did not comply with the requirements of fair procedures and

natural justice and/or is irrational and unreasonable, further particulars of which are at Part

2 below.”

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

“Core Ground 4

Applicants

The decision of the Planning Authority to grant permission was made pursuant to the Dublin

City Development Plan 2016-2022. The Applicant’s Third Party appeal in November 2022

referred to that CDP. However, the Commission delayed and did not make the impugned

decision until April 2024 after the Dublin City Development Plan 2022-2028 The Commission

did not give an opportunity to the public to make submissions in respect of the compatibility

between the proposed development and the 2022 CDP. The Commission says that because

the Developers Third Party response referred to the 2022 CDP and Mr Reilly was given an

opportunity to make submissions in relation to same but did not raise any issue this

somehow obviates the necessity to consult with the public pursuant to section 131 and 137

of the Planning and Development Act 2000. This cannot be an adequate answer as only Mr

Reilly (as the sole appellant) was consulted and his response made it very clear that he

understood that the decision would be made by reference to the 2016 CDP. The Second,

Third and Fourth Applicants who had participated before the Planning Authority but not the

Commission were never given an opportunity to make a submission on the relevance of the

new CDP.

Respondent

By way of preliminary objection to this Core Ground, the Applicants did not raise before the

Commission the issues now pleaded at §28 and §29 regarding alleged differences between

the CDP 2016-2022 and the CDP 2022-2028 and ought not be permitted to raise those issues

for the first time in these proceedings.

The First Named Applicant in the submission dated 16 December 2022 (thus made after the

CDP 2022-2028 had come into effect), submitted as Chairman of the Blackhorse Avenue

Villa Park Road Residents Group, did not make any submission on whether the proposed

development complied with the CDP 2022-2028, did not identify any significant relevant

differences in the relevant policies in the CDP 2022-2028 when compared with those in the

CDP 2016-2022 or otherwise raise any issue in relation to the CDP 2022-2028. This is

notwithstanding that the First Named Applicant was responding to the Notice Party

developer’s response to the appeal, from which it was apparent that the 2022 CDP would

come into effect in December 2022.

It is not for the applicant to dictate the procedures to be adopted. The Second, Third and

Fourth Applicants elected not to participate in the appeal before the Commission in their own

right (the First Named Applicant’s appeal indicated their agreement to the appeal). The

coming into effect of a new Development Plan does not give rise to a positive obligation on

the part of the Commission to seek submissions from the public generally on the application

of the CDP 2022-2028 or to otherwise bring persons into the appeal process in circumstances

where they chose not to become involved in the appeal process.

Developer

1. The Applicants were afforded, and availed of, a full opportunity to make submissions

after the adoption of the 2022–2028 Dublin City Development Plan (‘2022 CDP’). The

Commission’s letter of 2 December 2022, issued under s.131 of the 2000 Act, invited

submissions on the developer’s appeal response, which expressly referred to the impending

2022 CDP. The First-named Applicant responded on 16 December 2022, after the new plan

had taken effect. Fair procedures were therefore satisfied in substance.

2. The adoption of a development plan follows a lengthy and public consultation process

and it is not too much to ask that the Applicants, as participants in the planning process,

who goes to bother of appealing a grant of permission, should acquaint themselves with

easily accessible and basic facts such as what development plan applies. It is not a breach

of fair procedures, therefore, for the Commission failing to afford the Applicant another

opportunity to make submissions relating to the applicable development plan due to their

unaccountable failure to appraise themselves of fact that a new development plan was

adopted. This is particularly so where it was specifically referenced in the submission of the

Developer, to which they were invited to respond. The standard to be applied to participants

in the planning process, is that of reasonably well informed member of the public as

objectively considered

3. Sections 131 and 137 of the Act confer discretionary powers on the Commission;

they are not mandatory. The adoption of a new development plan is a change in the legal

framework, not a ‘new matter’ introduced by the Commission under s.137 requiring re-

notification. Every participant in the planning process is deemed to know the law, including

the operative plan. The Applicants’ suggestion that the Commission was required to re-

advertise the appeal to the wider public misconceives the statutory scheme and would create

endless procedural regress.

4. Moreover, no prejudice has been shown. The 2022 CDP retained the same zoning

and materially identical policies applicable to the site. The Inspector’s Report explicitly

assessed the proposal against the 2022 CDP, and the Applicants identify no policy difference

that would have altered the outcome. Their complaint therefore fails both on the facts and

on the law.

5. Furthermore, if the Applicants are correct under this Core Ground (which is denied),

relief should in any event be refused on discretionary grounds, as quashing would serve no

practical purpose (Save South Leinster Way, §53; Eco Advocacy [2025] IEHC 15).”

90. The scheme of the 2000 Act has to be workable. It cannot have been intended that the

decision-making process grinds to a halt because differing statutory plans or indeed regional or

national policies are updated, amended or replaced. The applicant overstates the alleged difficulty

deriving from there having been a new development plan during the process.

91. Insofar as Mr Coyle avers in his latest affidavit that had he been aware that the application

would have been assessed against the 2022 plan he would have made a submissions about various

aspects of that plan, that doesn’t deal with the multiple problems with the premise of that argument:

(i) the developer’s response made copious reference to the 2022 plan so process

participants were on actual notice of that, whether they read or understood the

response properly or not;

(ii) the pending commencement of the 2022 plan was public domain information and

subject to statutory notice provisions; and

(iii) more generally people have to be deemed to know the law.

92. He says:

“3. However, when the matter fell to be addressed by the Commission the proposed

development was assessed by reference to the Dublin City Development Plan 2022-2028. I

say that I made a submission to the Commission that referred to the 2016 CDP which I

believed and understood to be the CDP against which the proposed development would be

judged. I say that if I had been given an opportunity I would have made a submission that

the proposed development was not consistent with the 2022 CDP, by reference to inter alia

Appendix 3 (Achieving Sustainable Compact Growth Policy for Density and Building Height

in the City), the requirements for children’s play space, Chapter 11 (including Objectives

BHA2, BHA9, BHA24, BHA26), the protection of trees and the necessity for a Climate Action

Energy Statement or all the other relevant statements in Table 15-1 of the CDP.”

93. That isn’t in fact correct. He didn’t make any submission and wasn’t an appellant.

94. This affidavit is inadmissible on the grounds that it is not properly a reply so should not be

adduced at this stage of the proceedings but should have been before the court at leave stage. But

even if it is admissible it doesn’t get the applicants anywhere.

95. Section 12(12)(a) of the 2000 Act provides for statutory notice, urbi et orbi:

“(12) (a) Where a planning authority makes a development plan, it shall publish a notice of

the making of the plan in at least one newspaper circulating in its area.

(b) A notice under this subsection shall state that a copy of the plan is available for inspection

at a stated place or places (and the copy shall be kept available for inspection accordingly).

(c) In addition to the requirements of paragraphs (a) and (b), a planning authority shall

send a copy of the development plan to the Minister, the Office of the Planning Regulator,

the prescribed authorities, any adjoining planning authorities, the Board, and any local

community development committee within its area.”

96. Ignorantia iuris neminem excusat applies here. The publication of statutory notice of

adoption of a measure of general application – whether that be notice of an enactment in Iris Oifigiúil

or in particular notice of a development plan in a local newspaper under the 2000 Act – constitutes

notice to the public. Similar rules apply, of necessity, in virtually all jurisdictions so far as I am

aware.

97. The applicants are not entitled to argue for the rights of the public generally. That is a ius

tertii – barring some sort of objectively fundamental breach of public participation that needs to be

addressed even if it did not affect a given applicant. This is not such a case.

98. Insofar as the first named applicant participated in the process he had the opportunity to

make a submission in response to the developers’ response to the appeal having been invited by

letter of 2 December 2022, issued under s. 131 of the 2000 Act. At that juncture it was apparent

(from that response if nothing else) that the CDP would commence in December 2022. The first

named applicant responded on 16 December 2022, after the new plan had taken effect and thus had

the opportunity to make any point on the new plan that he considered appropriate.

99. Not having put material before the commission raising any alleged differences between the

CDP 2016-2022 and the CDP 2022-2028 and/or requesting the exercise of the statutory powers

referred to in the ground, it is inappropriate to grant relief on the basis of such a complaint for the

first time in judicial review.

100. As noted above, the adoption and coming into effect of a CDP is the subject of public notice

and thus planning process participants are deemed to be on notice of it. Having regard to the

foregoing, any legal issue about the extent to which the adoption of a new CDP (or any other policy

instrument) during the process gives rise to obligations to allow further submissions does not

properly arise on these facts. In any event an open-ended duty to keep a process open based on

new developments “would create endless procedural regress” as submitted and is not workable as

a general proposition.

101. Ultimately the applicants’ complaints that they had “no opportunity” to deal with the 2022

CDP rings hollow. The applicants had the opportunity by way of having had the opportunity to

appeal, which not all of them availed of, they had the opportunity to be aware from public notice of

the adoption of the CDP and the opportunity to do whatever they thought appropriate about that

(they did nothing), and the opportunity to comment on the developers’ response, which refenced

the 2022 CDP – they didn’t avail of that opportunity to make any submissions on the 2022 plan.

102. It is clear that the planning application system must be workable (Waltham Abbey v. An

Bord Pleanála; Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M.

417) but a duty to jam on the brakes and send out notice to process participants whenever a new

policy instrument is adopted, which is the logical implication of the doctrine postulated by the

applicants, is clearly unworkable and inapplicable on these facts.

103. This point also fails.

Core ground 5 – material contravention

104. Core ground 5 is:

“5. The impugned decision is invalid as the proposed development materially

contravenes the Dublin City Development Plan 2022-2028 in respect of the requirements of

Table 15-1 of the CDP and BHA 2 and 24 and/or the Board erred in law in failing to consider

relevant considerations, further particulars of which are at Part 2 below.”

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

“Core Ground 5

Applicants

Table 15-1 includes a mandatory requirement for the submission of an Operational

Management Statement, Engineering Services Report, Construction/Demolition Waste

Management Plan, Construction Management Plan, Operational Waste Management Plan,

Climate Action and Energy Statement (including District Heating) for residential

developments in excess of 30 units. None of these were submitted in clear material

contravention of the requirements of the 2022 CDP.

The Commission response is to try and retrospectively justify compliance with these

requirements from the materials submitted by the Developers. There is absolutely no

evidence that the Commission undertook this exercise (as opposed to the Commission’s

lawyers) or that the Commission actually understood that the proposed development

complied with the requirements of Table 15-1. The Commission also say that the

requirements of Table 15-1 are not prescriptive despite being described as a ‘Threshold’.

Finally, and without prejudice to the above and that the exercise was not undertaken by the

Commission, the application documents do not in fact bring the proposed development into

compliance with the requirements of Table 15-1.

Respondent

By way of preliminary objection to this Core Ground, the Applicants did not raise before the

Board the issues now pleaded at §31 and §32 regarding alleged material contravention of

the CDP 2022-2028 and ought not be permitted to raise those issues for the first time in

these proceedings in circumstances where the First Named Applicant made a submission to

the Commission, as Chairman of the Blackhorse Avenue Villa Park Road Residents Group,

after the coming into effect of the CDP 2022-2028 and did not raise these matters before

the Commission. Strictly without prejudice to the foregoing, the Commission makes the

following submissions.

The Commission submits that Table 15-1 is not intended to be prescriptive or to impose

mandatory requirements as regards the particular documentation to be submitted with every

application. On the facts of this case, no inference properly arises that the Commission

failed to consider Table 15-1 (or the other provisions of the Development Plan referenced in

Core Ground 5). In respect of Table 15-1, the Applicants have failed to plead any particular

deficiency in the substance of the information submitted to the Commission and the

Commission submits the documentation referred to by the Applicants at §31 has in

substance been addressed in the application documentation. In the alternative, the

Applicants have not established that the absence of any of the reports constitutes a material

contravention.

Developer

1. The Developer deny that the permission involved any material contravention of the

2022 CDP, or that the Commission erred in law in its treatment of Table 15-1 or Objectives

BHA2 and BHA24. The Applicants’ case misconstrues the character of Table 15-1 and fails

to identify any inconsistency between the development and the operative plan provisions.

Nature and function of Table 15-1

2. Table 15-1 appears in Chapter 15.2.3 of the 2022 CDP under the heading ‘Supporting

documentation for planning applications.’ The accompanying text expressly provides that

the table ‘sets out the development thresholds for some of the documentation related to

specific planning applications. Applicants are advised to consult this table at an early stage.’

Its language is clearly indicative and advisory rather than mandatory. It is designed to assist

applicants in identifying the documentation likely to be required, not to prescribe a fixed

checklist of mandatory reports. On a proper reading of the CDP, Table 15-1 does not create

a binding policy threshold whose non-compliance could amount to a material contravention

under s.37(2) of the Planning and Development Act 2000 (Sherwin v. An Bord Pleanála

[2024] IESC 13, §§94–97; Watchhouse Cross Shopping Centre Ltd v. ABP [2024] IEHC 419,

§§71–76).

Substantive compliance in the application documents

3. In any event, the application was accompanied by comprehensive reports addressing

all of the matters identified in Table 15-1, including:

– an Outline Construction Traffic Management Plan;

– a Preliminary Construction and Demolition Waste Management Plan;

– a Drainage and Engineering Services Report;

– a Building Lifecycle Report and Energy Statement;

– an Architectural Design Statement and Housing Quality Assessment;

– an AA Screening Report, Archaeological Statement and Architectural Heritage Impact

Assessment; and

– a Landscape Design Rationale.

4. The Applicants’ complaint in effect is not more than the documents with

corresponding labels with Table 15-1 were not lodged. The Applicants are unable to point

to anything of any substance and the ground is inadequately particularised.

5. Section 2.1.1 of the Inspector’s Report listed these documents and recorded

satisfaction that the application contained ‘the required plans and particulars.’ Collectively,

these materials addressed construction management, waste, engineering services,

operational management and climate-action considerations. The suggestion that compliance

was ‘retrospectively justified’ is inconsistent with the documentary record.

Objectives BHA2 and BHA24

6. The development fully accords with Objectives BHA2 and BHA24, which seek the

conservation of architectural and archaeological heritage. The Archaeological Assessment

identified the recorded monument DU018-021 (‘Poor Man’s Well’) and proposed appropriate

mitigation. The Inspector addressed this at §§3.2.3 and 7.6.3 and recommended Condition

10 requiring archaeological testing, which the Commission imposed. The Architectural

Heritage Impact Assessment concluded that there would be no adverse effect on nearby

protected structures, a conclusion adopted by the Inspector (§7.4.3). The Commission thus

lawfully found that the development complied with the relevant heritage objectives of the

CDP.

Procedural and discretionary considerations

7. The Applicants did not raise before the Commission any allegation that the

development contravened Table 15-1 or the heritage objectives of the 2022 CDP.

8. In any event, the Commission expressly considered the operative CDP and the

Inspector’s reasoning demonstrates full engagement with it. No prejudice or procedural

unfairness is identified. Even assuming some technical shortcoming (which is denied), it

would be immaterial in the sense described in Ballyboden Tidy Towns and Save South

Leinster Way, where the Court held that immaterial procedural imperfections do not justify

certiorari where the substantive planning judgment is sound. Even if there was a

contravention it was not a material contravention, insofar as the matters are not likely to

give rise to local opposition . The reports are standard technical reports, the finalised version

of many of which, are routinely included by way of condition attaching to the permission.

9. The permission accords with the 2022 CDP. Table 15-1 is advisory, the application

achieved full substantive compliance, and the heritage objectives were satisfied through

assessment and condition. There was no material contravention within s.37(2) of the 2000

Act, and no legal or procedural defect. Core Ground 5 therefore discloses no basis for relief.”

106. Table 15-1 is introduced by the following (emphasis added):

“15.2.1 Legislative Context

Development management is an integral part of the planning process. Applicants are

encouraged to consult the development plan and other guidelines set out herein to

ascertain the requirements for development proposals. Part III of the Planning and

Development Act 2000, as amended, sets out the legislative context for the control of

development and the planning application process with reference to Part 4 of the Planning

and Development Regulations 2001, as amended, in respect of the requirements for

planning applications. In accordance with the relevant legislation, this chapter of the

development plan will provide further guidance and specific requirements in respect of

the necessary components to be submitted and considered as part of a planning

application.

15.2.2 Section 247 Pre Planning Consultation

Applicants are advised to engage in Pre Application Consultation with the Planning

Department prior to the lodgement of significant planning applications as provided for in

Section 247 of the Planning and Development Act 2000 (as amended). This process provides

for an opportunity for the planning authority to consider the development in principle and

advise the applicant of relevant policies and objectives to influence its design having regard

to the key objectives of the development plan in order to ensure the delivery of high quality

schemes.

15.2.3 Planning Application Documentation - Planning Thresholds

The planning application process involves the assessment of a range of different factors

including architectural design, landscape, ecology and the environment, services and

drainage, visual impact, conservation, transportation and microclimate including daylight

and sunlight access, noise and wind. Planning applications should be supported by the

necessary analysis and documentation to demonstrate the proposed design and rational for

a scheme. To assist in the planning application preparation, Table 15-1 sets out the

development thresholds for some of the documentation related to specific planning

applications. Applicants are advised to consult this table at an early stage in the planning

application process.”

107. The language is almost a classic political fudge involving an inconsistent mishmash of terms

suggestive of guidance mixed with terms suggestive of requirements. The critical clause is “this

chapter of the development plan will provide further guidance and specific requirements in respect

of the necessary components to be submitted”. One then turns to Table 15-1 and asks is it guidance

or is it a specific requirement. It reads naturally as a set of specific requirements. Thresholds are

set out and documents are sought depending in whether those are met. That reads on its own terms

as imperative not as merely exhortatory – words such as “advise” as above are not used.

108. The table is headed:

“Table 15-1: Thresholds for Planning Applications”

109. It sets out thresholds at which various reports need to be submitted with an application.

110. On the issue of how this applies to projects in the pipeline, the starting presumption would

be that it applies in the same way as any other plan provision. Any decision post the commencement

of a new plan should follow the provisions of the new plan, even if the original application was not

in contravention of the plan as it stood at that time.

111. Even allowing for the fact that this is all phrased in terms of what needs to be put in at the

stage of the application, it suggests that this material has to be there at the time of the grant of a

permission. One can see an argument that that means that where a plan tightens the requirements

for submission of documents, the decision-taker should endeavour to apply that to any live projects

so that such information is obtained before deciding on the permission.

112. That could however lead to unworkable outcomes if applied inflexibly, because a

development plan could commence at a point at which it is no longer practicable to take a particular

procedural step envisaged by the plan, such as to add further documentation into the mix in relation

to a particular application.

113. While there may be vague precatory process concepts in a plan that don’t meaningfully

reflect on the merits of development consents (such as an intention to consult residents: Byrne v.

Fingal County Council [2001] IEHC 141, [2001] 4 I.R. 565, [2002] 2 I.L.R.M. 321 (McKechnie J.)),

the concept of material contravention should be read as covering process issues that do have a

potential impact on such merits. Requiring reports on particular aspects of development consents

should on balance be regarded as such an issue.

114. So we have here a live application, a new plan that came in before the application was finally

decided, and a provision that on balance does come within the concept of material contravention.

Let’s also assume that it would have been practicable to apply the new plan by requiring further

reports as envisaged by the updated text.

115. But even on the basis of postulating such a maximalist duty, that still leaves the question of

what exactly was omitted by failing to have a more enthusiastic embracing of the new plan.

116. The applicants plead (emphasis added):

“31. By way of further particulars of the claim, Table 15-1 of the CDP identifies the

threshold for the submissions of a number of documents. These include the requirement for

an Operational Management Statement, Engineering Services Report,

Construction/Demolition Waste Management Plan, Construction Management

Plan, Operational Waste Management Plan, Climate Action and Energy Statement

(including District Heating) for residential developments in excess of 30 units. None of

these Reports were provided with the development, although the Developer did provide a

Preliminary Construction Waste Management Plan. The Board’s Inspector did not identify

the requirements of Table 15-1 as relevant to the proposed development despite noting all

the Reports submitted at §2.1.1 in the identified relevant parts of the CDP at §6.6.4. The

proposed development materially contravenes Table 15-1 of the CDP and the Board erred in

failing to identify that material contravention and/or erred in law in failing to take into

account relevant considerations. The Board is obliged to accurately identify if the proposed

development materially contravenes the requirements of the CDP as a condition precedent

for the making of a lawful grant of planning permission.”

117. I accept the submission that the applicants have not identified any particular deficiency in

the substance of the information actually submitted to the commission. Assuming that the pleadings

are sufficient, the applicants have nonetheless failed to demonstrate evidentially how the material

actually provided fell short of the material that should have been provided other than merely by

reference to the titles of the documents, which is clearly insufficient (see e.g. Residents of Coolkill

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

2025) at 108).

118. Turning to BHA2 and BHA24, BHA2 is as follows:

“Development of Protected Structures

That development will conserve and enhance protected structures and their curtilage and

will:

(a) Ensure that any development proposals to protected structures, their curtilage and

setting shall have regard to the Architectural Heritage Protection Guidelines for Planning

Authorities (2011) published by the Department of Culture, Heritage and the Gaeltacht.

(b) Protect structures included on the RPS from any works that would negatively impact

their special character and appearance.

(c) Ensure that works are carried out in line with best conservation practice as advised by a

suitably qualified person with expertise in architectural conservation.

(d) Ensure that any development, modification, alteration, or extension affecting a protected

structure and/or its setting is sensitively sited and designed, and is appropriate in terms of

the proposed scale, mass, height, density, layout and materials.

(c) Ensure that the form and structural integrity of the protected structure is retained in any

redevelopment and ensure that new development does not adversely impact the curtilage

or the special character of the protected structure.

(d) Respect the historic fabric and the special interest of the interior, including its plan form,

hierarchy of spaces, structure and architectural detail, fixtures and fittings and materials.

(e) Ensure that new and adapted uses are compatible with the architectural character and

special interest(s) of the protected structure.

(f) Protect and retain important elements of built heritage including historic gardens, stone

walls, entrance gates and piers and any other associated curtilage features.

(g) Ensure historic landscapes, gardens and trees (in good condition) associated with

protected structures are protected from inappropriate development.

(h) Have regard to ecological considerations for example, protection of species such as bats.”

119. BHA24 is:

“Reuse and Refurbishment of Historic Buildings

Dublin City Council will positively encourage and facilitate the careful refurbishment of the

historic built environment for sustainable and economically viable uses and support the

implementation of the National Policy on Architecture as it relates to historic buildings,

streetscapes, towns and villages, by ensuring the delivery of high quality architecture and

quality place-making, and by demonstrating best practice in the care and maintenance of

historic properties in public ownership.”

120. BHA24 is not contravened where the inspector made a judgement as to what would

constitute sustainable development of the site overall – in other words, it does not operate as a

blanket ban on demolition of anything non-recent, but rather is primarily directed to refurbishment

of “historic” properties, that is those worthy of maintenance in their own right. Most of BHA2 is also

of limited relevance because this does not involve works to a protected structure or its curtilage, but

only, to a very limited extent, to the setting of a recorded monument. Talk of being 30 m away is

of limited relevance if there is a busy road in between.

121. The developer’s response document asserts in section 5.0 that the development is consistent

with the new plan. It doesn’t require any great acknowledgement of the evaluative nature of the

objectives concerned to say that there is nothing obviously wrong about such a conclusion. Express

treatment would have been required if one could see a major argument for there being a

contravention – but that is not the case here.

122. We can also note that the most relevant part of BHA24, point (a), corresponds to point 8 of

the previous objective CHC9 which was expressly considered in the developer’s archaeology report.

123. Finally, the failure of the applicants to raise these issues, while not in itself preclusive of a

conclusion of material contravention, is nonetheless relevant to discretion. The lack of tangible

adverse impact on built or natural assets arising from this ground is distinctly relevant. In the

absence of that, the lack of prejudice to the applicants arising from this ground is relevant to

discretion.

124. So this point has not been made out.

Summary

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

(i) it is settled law that an applicant does not, in general, have standing to argue for

rights of third parties or to claim denial of rights that she was not in fact denied;

(ii) applying such law to the facts here, (a) the applicants are not entitled to

speculatively argue for the rights of the public generally in respect of a relatively

technical alleged breach of public participation rights of this nature and (b) the first

named applicant does not have standing to argue for not having had an opportunity

to comment on the CDP 2022 when he did have such an opportunity;

(iii) it is settled law that law generally and the planning application system in particular

must be workable;

(iv) applying such law to the facts here, an alleged duty to revert back to applicants

following the adoption of new documents during the process (being a conclusion that

follows from the doctrine postulated by the applicants) is clearly unworkable and

inapplicable on these facts;

(v) it is settled law that an applicant must discharge the onus of proof to establish all

facts necessary for relief;

(vi) applying such law to the facts here, (a) the applicants have not made out relevant

elements of sub-grounds 8 and 9 or demonstrated how the material actually

provided fell short of the material envisaged by Table 15-1 other than merely by

reference to the titles of the documents, (b) the applicants have not demonstrated

that any issue about a duty to activate the relevant statutory powers to consult

process participants properly arises on these facts, and (c) the applicants have not

established facts capable of demonstrating either contravention of the development

plan or materiality of such contravention;

(vii) it is settled law that an error in initial application documentation is not to be regarded

as fatal irrespective of significance and irrespective of the necessary evolution and

classification of a project in the process itself;

(viii) applying such law to the facts here, even if there are any errors in the application

documentation, they are not significant and were remedied in the process as a

whole;

(ix) it is settled law that judicial review is a discretionary remedy; and

(x) applying such law to the facts here, discretion militates against relief even assuming

error, given the lack of prejudice to the applicants, the minor nature of any arguable

problems and the lack of any submissions about the issues.

Order

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

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by written legal submission before the next

mention date, the foregoing order be perfected forthwith thereafter on the basis of

no order as to costs including reserved costs;

(iii) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in the judgment may be addressed pursuant to O. 103 r.

40(4) RSC; and

(iv) the matter be listed on Monday 8 December 2025 to confirm the foregoing.