High Court dismisses judicial review challenge to planning permission for solar farm due to lack of prejudice and procedural errors.

[2025] IEHC 662

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000783]

IN THE MATTER OF S.50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AND S.3 OF

THE ENVIRONMENTAL (MISCELLANEOUS PROVISIONS) ACT 2011

BETWEEN

MERVYN CUMMINS, JOSEPHINE CURRY, PAUL FOGARTY, DES O’DONOVAN AND

THE CLONEA GUN CLUB

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

BNRG MOTHEL LIMITED

NOTICE PARTY

(No. 2)

Date of impugned decision: 24 April 2024

Date proceedings commenced: 18 June 2024

Date of main hearing of Module I: 29 May 2025 & 14 July 2025

Date of main hearing of Module II: 10 November 2025

Date draft judgment sent to parties: 18 November 2025

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

1. The developer here was granted permission to construct a solar farm in 2019. It then sought

permission for a phase 2 of the project about 1 km to the south of the existing development site,

which was granted by the council in 2023. The commission’s inspector recommended a grant of

permission which was reaffirmed by further reports of 8 and 11 March 2024. The commission

granted permission on appeal in April 2024. The first module of the applicants’ challenge has been

dismissed. The question is whether anything else in their case warrants the grant of relief by way

of judicial review, albeit that has generated some procedural skirmishing which doesn’t involve

anything of any great substance.

Judgment history

2. In Cummins v. An Coimisiún Pleanála (No. 1) [2025] IEHC 521 (Unreported, High Court, 3

October 2025), the proceedings were dismissed in respect of the grounds other than core grounds

1 and 2 (and any implications for other grounds arising from those grounds). The matter had been

modularised due to a failure by the notice party to file its statement of opposition which led to a

need to consider its application for late filing of that document as well as further elaboration of the

factual basis of its contents.

Geographical context

3. The commission granted planning permission for the construction of a solar farm on a total

site area of 141 hectares (348 acres) close to the historic settlements of Clonea Power and Mothel,

Co. Waterford, approximately 5 km south of Carrick-on-Suir.

4. The development site is located at the townlands of Bishopstown, Bridgetown, Ballyhest and

Ballyneale, Carrick-on-Suir, Co. Waterford in the functional area of Waterford City and County

Council (https://www.pleanala.ie/en-ie/case/317188).

5. The river Clodiagh passes through Clonea Power village, and two of its tributaries intersect

the site of the impugned development.

6. The river Clodiagh is within the Lower Suir Special Area of Conservation (SAC) and is a

known habitat for Freshwater Pearl Mussel. The National Parks and Wildlife Service (NPWS) has

prepared conservation documents for the SAC which was also designated for other species including

Otter.

Facts

7. Phase 1 of the solar farm, about a kilometre further to the north, was granted planning

permission by the commission in September 2019 (https://www.pleanala.ie/en-ie/case/304651).

The commission also granted planning permission for a substation on the same date in 2019. The

solar farm and substation granted planning permission in 2019 did not anticipate the impugned

development as a ‘phase 2’. The infrastructure granted planning permission in 2019 has not yet

been constructed.

8. On 10 March 2023, the planning application was made to Waterford City and County Council

(the council).

9. The council’s planning file is at:

https://waterfordcouncil.eplanning.ie/iDocsWebDPSS/listFiles.aspx?catalog=planning&id=2360089

&orderBy=type.

10. All five applicants participated in the impugned process. The first four named applicants live

in the locality and the fifth named applicant is the local gun club. The gun club say that since 1966,

they have held sporting rights on the lands by agreement with the Marquis of Waterford who owns

those rights. The Marquis of Waterford was not an applicant but has provided an affidavit confirming

his willingness to be joined to the proceedings if necessary. That was a decision for the applicants

rather than the court and no such joinder was in fact applied for.

11. The Clonea Mothel Solar Action Group, an association of local residents, made a submission

which included an opinion by the Fresh Water Pearl Mussel expert Dr Evelyn Moorkens. The fifth

named applicant gun club also made a submission to the planning authority, as did the Marquis of

Waterford who contended that the application should be considered void ab initio. The submission

of the fourth named applicant incorporates photographs illustrating the proximity of his home to the

proposed development and the absence of any existing screening of the proposed development from

the upstairs floor of his home.

12. On or about 19 April 2023, the council’s executive conservation officer submitted a report to

the process, setting out the architectural significance of the village of Clonea and recommended

further information, specifically an architectural heritage impact assessment (AHIA). This further

information was not sought.

13. The council’s executive planner prepared a report dated 17 April 2023 on its heading and 27

April 2023 at the end. The planner’s report considered that an AHIA was not warranted. The

planner’s report recommended that planning permission be granted, subject to conditions.

14. By order dated 3 May 2023, the planning authority decided to grant planning permission for

the proposed development, subject to the conditions recommended by its planner.

15. On 24 May 2023, the decision of the planning authority was appealed to An Bord Pleanála.

The commission recorded a record-breaking (as far as recent proceedings are concerned) 17 third-

party appeals and three observations by third parties to those appeals.

16. An appeal was made on behalf of the first and third named applicants in these proceedings

and others by BPS Planning Consultants. This submission also included the opinion of Dr Moorkens

in relation to impacts on Freshwater Pearl Mussel.

17. Separately appeals were made by the second named applicant Josephine Curry and the

fourth named applicant, Des O’Donovan. An appeal was also lodged by Henry De La Poer, Marquis

of Waterford, whose seat is Curraghmore, Co. Waterford, apparently the record-holder for the oldest

family home in Ireland and the largest private demesne in Ireland

(https://curraghmorewhiskey.com/curraghmore-estate/). Lord Waterford’s appeal included a letter

from Vincent Whelan who is identified as Chairman of the Clonlea Gun Club, the fifth named

applicant. The said letter from Vincent Whelan included what the applicants describe as a copy of

the lease agreement between the gun club and Lord Waterford. The fifth named applicant did not

lodge an appeal. The developer submitted two responses to the various appeals dated 5 July 2023

and 24 July 2023.

18. The commission appointed an inspector to report on the appeals. The inspector visited the

site on or about 24 October 2023, and prepared what seems to be a PowerPoint presentation of

photographic images taken on the visit. The inspector made a report to the commission dated 15

November 2023, favouring the grant of permission.

19. The commission met to consider the inspector’s report and decided to request a report from

the commission’s own ecologist. That report, also favourable, was prepared on 8 March 2024.

20. The inspector reviewed the report of the ecologist and prepared an addendum inspector’s

report, again favourable, dated 11 March 2024.

21. The commission met again on 26 March 2024, and prepared a direction recording its

recommendation that planning permission be granted for the proposed development.

22. The impugned decision was made by order of the commission on 24 April 2024.

Procedural history

23. The proceedings were issued on 18 June 2024.

24. Leave was granted by Holland J. on 29 July 2024, with liberty to file an amended statement

of grounds. An amended statement of grounds was filed on 2 August 2024. Significantly for present

purposes, the applicants narrowed their claim in relation to wayleaves in the amended statement.

25. The commission filed its opposition papers on 30 January 2025.

26. The statement of opposition of the notice party was delivered but never filed.

Compounding this problem, not only was that document not filed, but a document with a file name

inaccurately describing itself as the notice party statement of opposition was uploaded to ShareFile,

which was in fact a different document, their legal submissions.

27. On 7 March 2025, a statement of opposition of the notice party was served. On 11 March

2025, an unsworn affidavit of Emma Burrows was served, followed later that day by a sworn version

which is dated 6 March 2025. An unsworn affidavit of John O’Flaherty was served on 21 March 2025,

followed by a sworn version on 27 March 2025.

28. The applicants served three supplemental affidavits on 7 and 8 April 2025, which were filed

on 16 and 28 April 2025.

29. In its contribution to the statement of case, the applicants highlighted the unfiled nature of

the notice party’s statement of opposition. They were later to state (quite reasonably) that they

had assumed that in doing so, the notice party would do something about it at that point, but

unfortunately that didn’t happen.

30. The matter was heard on 29 May 2025.

31. Following the hearing, on reviewing the papers against the High Court Search and UCMS

platforms, it became apparent to me that the notice party’s statement of opposition had still not

been filed.

32. On 9 June 2025, the registrar contacted the parties seeking clarification. The matter was

listed on 30 June 2025. In advance of this, the applicants wrote raising issues about which version

of the statement was verified, among other matters.

33. On that date, I directed that the notice party file an affidavit specifying which version of the

statement of opposition was being verified and exhibiting that version, and the explanation for not

filing the statement of opposition. The notice party would have liberty to explain the substantive

factual plea of there being no wayleave, without being directed to do so at this stage. The logic for

dealing with the latter was that it would be an uncomfortable and dubious procedure to wave through

the unfiled notice of opposition as a mere technicality, and then (if the notice party’s position was

to be accepted) hand the notice party a potential slam-dunk victory on the basis of its contents not

having been fully rebutted. So I wanted to know whether the contents had a solid factual foundation.

34. This was to be on the basis that any further affidavits would not be evidence in the case

unless the court permitted the filing of the statement of opposition or made a further order to that

effect. In other words the affidavits were for interlocutory purposes only at that stage (the final

position is set out below).

35. The matter was adjourned to 14 July 2025, on the basis that if reply was required by the

applicants there would be a facility for that.

36. In the meantime, the notice party’s solicitor filed an affidavit explaining that the non-filing

was an oversight and that the version uploaded was a slightly earlier version to that actually verified.

The notice party’s mapper Mr Nolan also furnished an affidavit basically indicating that:

(i) wayleaves shown on the folio were noted on the application plans;

(ii) he is not aware of other wayleaves;

(iii) wayleave/ rights of way information was taken from landdirect.ie;

(iv) the poles are not ESB poles based on review of ESB data; and

(v) Google Streetview demonstrates a lack of insulators which indicates that the poles

and lines are a communications utility line not an electricity line.

37. On 14 July 2025, the applicants agreed that a modularised judgment could be given on core

grounds 3 to 5, 7 and 8 with core grounds 1 and 2 to await clarity on the notice party statement of

opposition and wayleave issue. The commission acquiesced in that albeit that they didn’t see much

merit in modularising core ground 2 or the shooting rights part of core ground 1. The notice party

wanted a single judgment but since their default caused the problem I don’t see that objection as

having decisive weight. The applicants were to respond to the notice party’s evidence, with the

matter listed for mention (for the further module) on 13 October 2025. Judgment then stood

formally reserved on Module I, with further submissions to be made on the outstanding issues.

38. On 11 September 2025, a draft of the No. 1 judgment was sent to the parties to give an

opportunity to identify any errors. The No. 1 judgment was delivered on 3 October 2025.

39. Following affidavit evidence on the statement of opposition issue (and wayleave issues in

the context of that application), Module II was listed for hearing on 10 November 2025, and heard

on that date. At the end of the hearing I extended time for the statement of opposition to be filed

up to 14 November 2025 with reasons to follow, which I now give. It was then agreed by the parties

to allow all post-Module I affidavits to be evidence in the case.

40. In that context, judgment was then reserved. I would like to record my thanks to all of the

lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have

previously sought to make clear, insofar as any points advanced are not being accepted in this or

any other given judgment, that is solely to do with the inherent merits of such points and is no

reflection on those instructed to convey such points, a distinction that most certainly should be, and

I believe generally is in fact, self-evident to all concerned.

41. On 18 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. Any comments must be emailed to the relevant judicial

assistant and uploaded to ShareFile in writing within 7 days and should not be to reargue the

substance (submissions to that effect will be disregarded) but are confined to matters such as:

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

issues;

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

both modes;

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

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

one the party considers could beneficially be decided;

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

address but has not;

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

unnecessary to address;

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

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

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

such material should not lead to the proposed conclusion; and

(h) any suggestions as to the wording (as opposed to substance) of the decision if the

proposed wording causes any significant issue for a party for any identified reason.

42. 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).

43. The mention date to review matters following the foregoing was to be 24 November 2025.

The commission pointed out a minor drafting error. The applicants queried the wording of para. 103

and an alternative wording was discussed with the parties.

Relief sought

44. The reliefs sought in the amended statement of grounds are as follows:

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

made by the Respondent (‘the Board’) on or about 24th April 2024 to grant development

consent to the developer BNRGN Mothel Limited (a previous name for the Notice Party) for

the construction of a Solar Farm on a total site area of 141 hectares (348 acres), consisting

of photovoltaic panels on ground mounted steel frames with associated cabling and ducting;

28 no. single storey inverter stations; perimeter fencing; permeable gravel access track; 49

no. onsite pole mounted CCTV cameras; 4 no. new site accesses; 4 no. security gates; 3 no.

temporary construction compound/material storage area; 3 no. temporary construction

stage wheelwash systems (with overhead settlement tank); 6 no. temporary storage

containers and all associated ancillary development services and works at Bishopstown,

Bridgetown, Ballyhest and Ballyneal, Co. Waterford.

2. Such Declaration(s) of the legal rights and/or legal position of the applicant and/or

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

3. An Order providing for the costs of the application and an Order pursuant to Section

50B of the Planning and Development Act, 2000, as amended and Section 3 of the

Environmental (Miscellaneous Provisions) Act 2011, as amended with respect of the costs of

this application.

4. A stay preventing the operation of the impugned decision until after the matters that

are the subject of these proceedings have been decided by the courts.

5. Further and other orders including interim orders.”

Grounds of challenge

45. The core grounds of challenge are as follows:

“PART 1 - CORE GROUNDS

Domestic Law Ground

1. The impugned decision is invalid and was made contrary to art. 26(3) of the Planning

and Development Regulations 2001, as amended (‘the PDR 2001’) because, contrary to s.

37(1)(b) of the Planning and Development Act 2000, the Board exceeded its jurisdiction and

ought to have treated the planning application as being invalid ab initio because it knew or

ought to have known from the planning file before it that art. 22(2)(b) (iii) of PDR 2001 had

not been complied with, because the developer did not supply with its planning application

maps upon which wayleaves are identified clearly in yellow; and/or that the developer did

not have sufficient interest to carry out the proposed development so that the application

was made contrary to the scheme and provisions of the PDA 2000, or alternatively that art.

22 (2) (g)(i) had not been complied with because the Fifth Applicant in these proceedings

as lessees holders of sporting rights on the lands and or the Marquis of Waterford as owner

of those rights did not (either or both of them) give their written consent to the making of

the planning application. Further particulars are set out in Part 2 below.

2. The impugned decision is invalid and was made contrary to fair procedures and the

Constitutionally protected property rights of the Fifth Applicant. Further particulars are set

out in Part 2 below.

3. The impugned decision is invalid and made contrary to fair procedures and s.34(2)

of the Planning and Development Act, 2000, as amended because when making its decision

the Board did not properly consider the proper planning and sustainable development of the

area and had no proper regard to the provisions of the development plan, in particular the

objective in policy objective UTL13 of the Waterford City and County Development Plan to

consider reasonable alternatives at the initial design stage of renewable energy

infrastructure. Further particulars are set out in Part 2 below.

4. The impugned decision is invalid and was made contrary to fair procedures and

37(1)(b) and 34(2) and the Board in making its decision had regard to matters that it ought

not have had regard to when it satisfied itself that a 40 year operational period was

appropriate for the solar farm for the stated reasons of ‘…because the planning applicant

had specifically applied for a 40-year permission for reasons of economic viability, the

necessity for alignment for phases was not sufficiently justified in this instance, and the

planning authority had originally approved the proposed development for a 40-year period.’

Further particulars are set out in Part 2 below.

5. The impugned decision is invalid and was made contrary to fair procedures and the

Board failed to consider matters that it ought to have considered and gave no proper reasons

for failing to seek further information in the form of an Architectural Heritage Impact

Assessment as requested by the Conservation Officer of the County Council and or an

updated habitat and botanical survey, given that the habitat and botanical survey was

conducted at the wrong time of the year for some species. Further, the Board failed to

properly consider the likely noise impacts at the homes of the Third and Fourth Applicants

because there was no background noise measurement or proper night time noise impact

assessment made in the location of either home. Further particulars are set out in Part 2

below.

6. The impugned decision is invalid because there is an error on the face of the record

and the impugned planning permission was granted to BNRGN Mothel Limited which is not

the name of the company that applied for the planning permission. Further particulars are

set out in Part 2 below.

EU Law Grounds

7. The impugned decision is invalid because it contravenes Article 6(3) and Article 12

of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and

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

the Planning and Development Act 2000, as amended, and in accordance with the case law

of the CJEU by:

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

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

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

the Freshwater Pearl Mussel in the Lower Suir SAC; and

• failing to identify and examine the implications of the proposed project for the Otter

species to be found outside the boundaries of the SAC where those implications are liable to

affect the conservation objectives of the SAC. Case 461/17 Holohan; and

• failing to ensure that there is in place a system of strict protection for the Otter in

its natural range, prohibiting deliberate disturbance of this species, particularly during the

period of breeding, rearing, hibernation and migration and or deterioration or destruction of

breeding sites or resting places and in placing reliance on a future art. 16 derogation, failed

to consider if there is a satisfactory alternative or if such a derogation would be detrimental

to the maintenance of the populations of Otter at a favourable conservation status in their

natural range Further particulars are set out in Part 2 below.

8. The impugned decision is invalid in that it contravenes art 103(1B)(b) of the Planning

and Development Regulations 2001 and the EIA Directive as amended because the Board

failed to make a screening determination for an Environmental Impact Assessment for (i)

private roads within the development, (ii) a project for the restructuring of a rural land

holding within the meaning of Annex II paragraph 1(a) of the EIA Directive Part 2 (1)(a) and

or Schedule 5 of the Planning and Development Regulations, 2001, as amended, (iii)

industrial installations for the production of electricity, steam and hot water (projects not

included in Annex I), the undefined grid connection, (iv) transmission of electrical energy by

overhead cables (projects not included in Annex I), (v) urban development projects within

the meaning of Annex II of the EIA Directive. Further particulars are set out in Part 2 below.”

46. Core ground 6 was withdrawn as appears from the foregoing.

Some general considerations

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

under a number of headings as follows.

Workability

48. 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).

Proper pleadings

49. 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.

Standing to raise issues

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

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

51. 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.

52. 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.

53. 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

J., 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).

54. 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).

55. 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.

56. 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)

57. 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.”

Onus of proof

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

previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J. at 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

not.

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

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

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

circumstances requiring a decision-taker to consider any other autonomous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

19 September 2025) at 55. Thus, apart from (i) failure to consider something that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JJ. concurring). The Supreme Court determination in 100 Meter Tall Group v. An

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

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

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

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

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

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

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

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

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

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

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

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

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

May 2025) at 309.

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

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

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

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

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

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

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

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

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

at §40-§41.

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

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

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

inadmissible on standard evidential principles insofar as matters of opinion are

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

Court, 11 April 2025).

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

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

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

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

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

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

conflict will be resolved against the opposing party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Costello and Noonan JJ. concurring).

Harmless error

59. 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).

Discretion

60. 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

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 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 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.

The issues in Module II

61. The issues in Module II (arising from what was left over from Module I plus the parties’

submissions in the meantime) can be summarised as follows:

(i) should the notice party be allowed to file its statement of opposition;

(ii) should the affidavits filed for the purposes of the late opposition be evidence in the

case;

(iii) should the applicant succeed on core ground 1 insofar as it concerns the shooting

rights claim;

(iv) should the applicant succeed on core ground 1 insofar as it concerns the wayleave

claim;

(v) should the applicant succeed on core ground 2; and

(vi) if the applicant succeeds on core grounds 1 and/or 2, should core grounds 3-5, 7

and/or 8 be revisited in a manner favourable to the applicant?

Issue I – whether the statement of opposition should be admitted

62. The basic issue isn’t in dispute – the statement of opposition should have been filed. As the

applicants point out, “it seems inappropriate in view of the central importance of equality of arms in

the legal context to require one party to formally file a pleading and allow the other party to deliver

an informal pseudo-pleading with no clear legal basis” (Li v. Minister for Justice [2015] IEHC 638

(Unreported, High Court, 21 October 2015)).

63. The notice party begins its submission uncompromisingly:

“10. It is respectfully submitted that the Applicants have taken a highly technical

approach to the present application. That being so, it is appropriate to meet fire with fire

and to begin by noting that—technically—the Rules of the Superior Courts (‘RSC’) do not

require a ‘notice party’ to file a statement of opposition. Order 84, rule 22(4) states:

‘(4) Any respondent who intends to oppose the application for judicial review by way of

motion on notice shall within three weeks of service of the notice on the respondent

concerned or such other period as the Court may direct file in the Central Office a statement

setting out the grounds for such opposition and, if any facts are relied on therein, an affidavit,

in Form No 14 in Appendix T, verifying such facts, and serve a copy of that statement and

affidavit (if any) on all parties…’”

64. This appears correct. On the other hand, it is normal practice in the List, and I certainly

envisaged in directions made, that there would be a statement of opposition from all opposing

parties. If one wants to be technical about it, the directions amount to an order fixing the doing of

time for something so if the notice party wants to file a statement of opposition it would have to

seek an extension of time.

65. Order 122 r. 7 RSC allows time fixed by the rules or any order to be extended for doing any

act. That does apply here (Butler v. District Justice Ruane [1989] I.L.R.M. 159 (McCarthy J. nem.

diss.); DPP v. Hamill [1999] IEHC 242, [2000] 1 I.L.R.M. 150 (McGuinness J.)). That seemed to be

agreed.

66. The test must be the interests of justice (see e.g. in this context Ballyboden Tidy Towns

Group v. An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court, 22 February 2024), §58,

Donnelly J (nem. diss.)). The notice party’s comment is apposite:

“28. While the administration of justice is not, as Fennelly J. put it in a somewhat different

context, ‘confined to the relentless search for perfect truth’ [Ryanair PLC v. Aer Rianta CPT

[2003] 4 I.R. 263 at p.277 per Fennelly J., speaking in the context of discovery],

nonetheless the pursuit of truth is a legitimate desideratum of the system. The Court should,

therefore, generally be slow to close its eyes to relevant evidence or to ignore pertinent

argument, without a compelling reason for doing so.”

67. The balance of justice overwhelmingly favours that in a context where the problem has been

evidenced as mere human oversight. While the court could impose terms, any possible argument

for any term at all favourable to the applicants is massively outweighed by the insubstantial grounds

(even relying unstateably on lack of payment of stamp duty) on which the applicants have opposed

the application for the formality of late filing.

68. While stamp duty is payable on motions and affidavits in judicial review proceedings, there

is nothing in the Supreme Court and High Court (Fees) Order 2014 (S.I. No. 24 of 2014) making it

payable on a statement of opposition (or of grounds). Even if it was payable the complaint would

be an insubstantial point because payment of duty on any document would arise on the version to

be filed immediately prior to such filing. Sensibly the applicants didn’t press this point.

69. The argument that the statement of opposition should not be filed after the hearing is

unprincipled. At a generalistic level, the lateness of an application is often a factor in deciding

whether to accede to the application (see Kirwan v. Connors [2023] IECA 120 (Unreported, Court of

Appeal, 18 May 2023) para. 111 – it was too late to set aside judgment after delivery on the basis

of a lack of hearing of an improperly filed motion). But at the level of jurisdiction, the case remains

live until the perfection of the order and the extent to which corrections of errors can be made

depends on the error and the consequences, in the context of the balance of justice. One example

– in J.K. (Uganda) v. Minister for Justice and Equality [2011] IEHC 473 (Unreported, High Court, 13

December 2011), Hogan J. took an important point of his own motion after having reserved

judgment, so the hearing was reconvened for further argument. Amendments have also been

allowed after the hearing. So this is small potatoes – the hearing didn’t conclude on the point

affected by the extension of time for filing being ordered here.

70. There is no question of the applicants not having had actual notice of the points of opposition

– this is just a formality and a technicality. The only even arguable prejudice to the applicants is

having the notice party’s defence before the court, but having to deal with a potentially winning

point is not the sort of prejudice that carries weight in this situation. But in fact they have to deal

with that point anyway (due to the court having to be satisfied of their entitlement to relief), so even

that isn’t actual prejudice.

71. I do not accept the complaint that the version being verified has not been adequately

clarified. The notice party’s submission is convincing:

“22. On 6 March 2025, Emma Burrows swore an affidavit verifying the Statement of

Opposition. That affidavit was filed on 11 March 2025. The affidavit of the Developer’s

solicitor, Mr Hunter-McGowan, filed on 11 July 2025, identifies and exhibits a copy of the

Statement of Opposition verified by Ms Burrows (§4). This, he says (§5), is the Statement

of Opposition served by email on the Applicants’ and Commission’s solicitors on 7 March

2025. In her replying affidavit sworn on 13 October 2025, Orla Clarke asserts (§5) that

there is no evidence of which version of the Statement of Opposition was verified by Ms

Burrows. Respectfully, this is not correct. Mr Hunter-McGowan’s evidence identifies the

version verified and his supplemental affidavit of 15 October 2025 confirms (§12) that Ms

Burrows verified the PDF version.

23. Accordingly, there is no real doubt as to what facts Ms Burrows verified in her

affidavit.”

72. That leaves a few typographical and formatting errors but nothing of substance turns on

these. I agree with the notice party:

“35. It is respectfully submitted that the Applicants are looking for confusion in the hope

of trying to take advantage of it. On a fair reading of the Statement of Opposition and Ms

Burrows’ affidavit, an impartial reader might conclude that there were some trivial cross-

referencing mistakes, but none that would cause confusion in any significant respect.”

73. Even if the statement of opposition were not to be filed, none of this matters. It follows

from Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court,

22 February 2024) that even in the absence of opposition, the court must be satisfied that an

applicant has made out her case. I am not so satisfied here, for the reasons in the No. 1 judgment

and the further reasons below. Therefore the lack of a statement of opposition makes no difference.

74. So for the avoidance of doubt, the result would be the same even if I disallowed the

statement of opposition.

75. Such disallowance does not have the effect of nullifying affidavits duly filed by the notice

party. Affidavits verifying an unfiled document do not thereby become entirely inadmissible. A

party is allowed to put in evidence to assist the court without formal opposition. Any other rule

would be pointlessly inflexible. The applicants’ argument has no basis in the rules or in logic.

76. For the further avoidance of doubt, I have considered the case on the basis of all affidavits

from the notice party being disallowed, and have come to the same result on an onus of proof basis.

The applicant bears a duty, undischarged here, to prove their case.

77. The applicants argued that the roads issue should be reconsidered in that event (submissions

para. 41), but I placed no decisive reliance on the notice party’s affidavits in relation to that. The

applicants’ case failed at the outset due to the way it was pleaded – para. 89 of the No. 1 judgment.

Given the applicants’ enthusiasm for hyper-technical points they should be taking that on the chin.

78. I did refer to Mr O’Flaherty’s affidavit at para. 103 but the applicants’ reading of that is

completely misconceived because I was making a point in favour of the applicants. What I was

saying was that despite Mr O’Flaherty’s affidavit, if the Roads Act 1993 definition applies then these

are roads. What I said was “The opinions of the notice party’s deponents are not particularly relevant

and do not appear even admissible in this context insofar as they go beyond describing the ways

and start categorising them as roads. There is in fact no dispute about the facts as to the structure

of the primitive roads here”. The submission that this might be reconsidered if Mr O’Flaherty’s

affidavit is disallowed is unfortunately grasping the wrong end of the stick – that statement self-

evidently disregards the affidavit to begin with. Insofar as belated reliance is placed on art. 13(2)

of the Forestry Regulations 2017 (S.I. No. 191 of 2017), that was not pleaded or argued so it is

procedurally improper to opportunistically take advantage of the existence of a second module in

order to revisit findings in Module I.

79. Overall, the objection to the late filing of the statement of opposition is meritless technicality

and an opportunistic attempt to capitalise on human error by the other side. Ultimately what applies

here is the view of Lynch J. in DPP v. Corbett 1992 WJSC-HC 1756, [1992] 3 JIC 2601 (Unreported,

High Court, 26 March 1992):

“The day is long past when justice could be defeated by mere technicalities which did not

materially prejudice the other party.”

Issue II – belated affidavits

80. In fact the parties agreed to the proposition that the post-Module I affidavits should all be

admitted so I am happy to proceed on that basis.

Issue III – core ground 1 – shooting rights

81. Core ground 1 is:

“1. The impugned decision is invalid and was made contrary to art. 26(3) of the Planning

and Development Regulations 2001, as amended (‘the PDR 2001’) because, contrary to s.

37(1)(b) of the Planning and Development Act 2000, the Board exceeded its jurisdiction and

ought to have treated the planning application as being invalid ab initio because it knew or

ought to have known from the planning file before it that art. 22(2)(b) (iii) of PDR 2001 had

not been complied with, because the developer did not supply with its planning application

maps upon which wayleaves are identified clearly in yellow; and/or that the developer did

not have sufficient interest to carry out the proposed development so that the application

was made contrary to the scheme and provisions of the PDA 2000, or alternatively that art.

22 (2) (g)(i) had not been complied with because the Fifth Applicant in these proceedings

as lessees holders of sporting rights on the lands and or the Marquis of Waterford as owner

of those rights did not (either or both of them) give their written consent to the making of

the planning application. Further particulars are set out in Part 2 below.”

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

“CORE GROUNDS 1 and 2

Summary of Applicant’s Position –

1. The Applicants plead that the planning application ought to have been invalidated

for want of the written consent of the Fifth Applicant and or the failure to mark the location

of wayleaves on the submitted drawings. The Fifth Applicant (‘the Gun Club’) say that they

holds sporting rights on the lands by agreement with the Marquis of Waterford who owns

those rights. The Marquis of Waterford is not yet an applicant but has provided an affidavit

confirming his willingness to be joined to the proceedings if necessary.

2. Along the boundary of the development, the Notice Party relies on the growth of

hedgerow to reduce the visual impact of the development including impacts on the home of

the Fourth Applicant. Wayleaves of utility lines were not marked on the planning application

drawings, including wayleaves of the utility line carried on poles in the boundary hedge

facing the home of the Fourth Applicant. As a consequence, the Board could not have been

aware of the conflict between the need to cut the hedgerow to facilitate the proper operation

of the utility line and allowing the hedge to grow in order to screen the proposed

development from the home of Mr O’Donovan. Contrary to the position of the Board, this is

particularised at paragraph 9 of the Statement of Grounds including where it is stated: ‘There

are utility poles within the existing hedge, carrying lines above. The development lands at

that location are within the folio WD236F, the ownership of which is registered to the centre

of the road, therefore the overhead line and poles within the folio ought to have been marked

on the site plans, in accordance with art. 22(2)(b) (iii) of PDR 2001, and the planning

application was void ab initio.’

Board’s Position –

1. First, no complaint about validity was made to the Board and it cannot be made now;

North Great George’s Street Preservation Society v. An Bord Pleanála [2023] IEHC 241 at

§35 and §§59-62.

2. Second, with regard to the shooting rights issue, there is no requirement for the written

consent of the holder of a lease of shooting rights under Article 22(2)(g) or under the Frescati

decision. That person is not the owner of land nor the owner of a structure. That is what

Article 22(2)(g) targets and no more. Frescati further, as is well recognised, exists to ensure

applications cannot be made by the meddlesome interloper which is not the case here nor it

is even alleged that such a label would be accurate (see in Pembroke Road Association v. An

Bord Pleanála [2021] IEHC 403 at §40, Heather Hill Management Co CLG v. An Bord Pleanála

[2019] IEHC 450 at §185 and Heather Hill Management Company CLG v An Bord Pleanála

[2022] IEHC 146 at §36 et seq.). Further, there is no requirement for the written consent

of the lessor of same, but in any event, that party is not a party to the proceedings and it’s

a matter for the Applicants as to why, to date, he has not been joined. Simply saying he is

ready to be joined doesn’t address the fact he is not joined. It would not, in any event, save

the point being made Article 22(2)(g) does not require his written consent.

3. Third, the point about wayleaves is utterly without merit. As the case is now phrased,

the substance underlying the point is the allegation that the Board was not aware of the

presence of the hedgerow which was the subject of supplementation proposals and the

location of the wire simply because the line and poles were not marked in yellow. The

premise of this has no basis. The Fourth Named Applicant provided photographs showing

the wires. The Inspector took photographs of the wires, poles and hedges. The need to

supplement the hedging and the proposals to keep same cut across the whole development

to 3-4m was clearly set out. So, insofar as the Applicants now move this case on the basis

the absence of yellow marking means the Board was not aware of the existing situation and

the proposals, this is simply not borne out by any evidence. Further, the Notice Party has

denied the existence of the wayleaves and the Applicants have not responded to that denial

with any evidence at all nor has any evidence been tendered to explain what conflict exists

between hedges cut at 3m and the existing lines and poles.

4. The Board notes no complaint appears now made per Core Ground 2 about constitutional

rights but the Board would simply re-state that a planning permission does not permit any

actual intervention or activity that would otherwise be unlawful; Redmond v. An Bord

Pleanála [2020] IEHC 151 at §§ 153 and 154.

Notice Party Position -

The Notice Party supports the position of the Board and adds the following observations.

With regard to landowner consent, this was obtained from the registered owner (Mr Murphy),

in compliance with the only relevant obligation, namely that under article 22(2)(g)(i). There

is no other, free-standing obligation.

With regard to the wayleave issue, the only alleged wayleave pleaded is that pertaining to a

utility line across the road from the house of the Fourth Applicant, Mr O’Donovan. The case

that is made is that the absence of wayleave markings ‘has material consequences in this

case because the enhancement of boundary roadside hedgerows is relied upon as mitigation

for visual impact and the impacts of ‘glint and glare’ from the solar arrays’ (SOG §E.9). It

is asserted that overhead lines ‘are incompatible with high hedgerows or trees’. However,

the Glint and Glare Assessment conducted by the Notice Party (§4.3.2-3 and Table 4.2,

pp.16-18) demonstrates that any theoretical glint or glare impact on Mr O’Donovan’s

property (identified as H25) is eliminated by existing screening, without the need to rely on

any enhancement.”

83. Core ground 1 essentially comes down to two sub-points – wayleaves and shooting rights.

84. As regards the shooting rights issue, art. 22(2)(g) of the 2001 regulations provides that the

application shall be accompanied by (emphasis added):

“(g) where the applicant is not the legal owner of the land or structure concerned –

(i) the written consent of the owner to make the application, or

(ii) in the case of a proposed development, or part of a proposed development, that

is in, on, over or under a public road, written confirmation that the proposed

development concerned is to be undertaken by a statutory undertaker having a right

or interest to provide services in connection with the proposed development, or

(iii) in the case of a proposed development, or part of a proposed development,

where the applicant is Irish Water and it is the intention of the applicant to

compulsorily acquire the land for the purpose of such development, written

confirmation of the intention of such applicant to compulsorily acquire the land in

question should planning permission be granted for the proposed development, and

the statutory provision or provisions under which it intends to seek the compulsorily

acquisition of such lands,”

85. The words “legal owner” inform the meaning of the abbreviated phrase “the owner”. In

context, the latter means the legal owner, but in fact nothing much turns on this because “owner”

is defined in the 2000 Act:

“‘owner’, in relation to land, means a person, other than a mortgagee not in possession,

who, whether in his or her own right or as trustee or agent for any other person, is entitled

to receive the rack rent of the land or, where the land is not let at a rack rent, would be so

entitled if it were so let;”

86. This is normally the freeholder. The “rack rent” (a term with an 18th century flavour,

redolent, as the applicants appositely point out, of Maria Edgeworth’s classic Midlands novel Castle

Rackrent (1800, London, Joseph Johnson)), is defined by Murdoch and Hunt as “a rent which

represents the full annual value of a holding”.

87. The fact that “land” is generally defined broadly doesn’t mean that the owner of an interest,

which itself is a form of “land”, must be an owner of the land in the sense of the 2001 regulations.

88. Insofar as caselaw independent of the regulations is concerned, particularly Frescati Estates

v. Walker [1975] I.R. 177 this is no longer decisive. Browne in Simons on Planning Law (3rd ed.,

2021 Round Hall) correctly comments at para. 3-90 that “To a large extent the position following

Frescati is not materially relevant because [of provision in] art. 22(2)(b) of the 2001 Regulations

(as amended) …”. That paragraph was substituted by art. 2(a) of the Planning and Development

(Amendment) Regulations 2021 (S.I. No. 9 of 2021), so pre-2021 caselaw is no longer necessarily

operative. Anyway there isn’t any contradiction between Frescati, properly interpreted, and art.

22(2)(b).

89. That said, I agree with the developer that “the only relevant norm” is art. 22:

“32. [Frescati] Estates v. Walker [1975] IR 177 … has in any event been superseded in

this regard by the 2001 Regulations.”

90. The applicants argue – superficially plausibly – that an instrument can’t override a judicial

interpretation of an Act. But in fact that is just too simplistic. Assuming the instrument to be valid,

it is positive enacted law, to which the court must give effect, and in doing so that may in practice

alter the outcome that might have arisen from consideration of the Act alone. But there are deeper

problems with the applicants’ submission.

91. First of all the Act in question considered in Frescati has been repealed. Secondly the 2000

Act envisages that an application is to be made in accordance with regulations. So it is not a case

of an instrument overruling the Supreme Court’s interpretation of primary law. It is a question of

the overall statutory framework changing and hence calling for an interpretation through the lens of

the current law rather than jurisprudence from 50 years ago. It would be a breach of the separation

of powers to superimpose on clear express enacted language some sort of amorphous hovering

overall spirit to a different effect. Considerations to that effect explain why natural law has fallen

out of favour, and why unenumerated rights have been rebranded as derived rights and pretty much

confined to what follows from the express text. For the same reasons, courts have to be prepared

to let go of old, even hallowed, caselaw, and work off new enacted text. Admittedly it’s a bit of a

fiction to say that judges don’t make law – because as well as evolving judge-made law and dealing

with ambiguities in enacted law, courts have to derive meaning where there are gaps in legislation

or where there are conflicting norms. But the judicial contribution is subordinate and limited. It is

not the starting point, and nor is it an enduring touchstone. Those matters reside in the enacted

text.

92. Judges can’t be squeamish about the idea of court rulings on statutory interpretation being

revisited in the light of further legislation. This is the separation of powers at work. The fact that a

court – even an appellate or apex court – decides that legislation X means Y does not in itself have

the effect of inhibiting a legislative change setting out a replacement meaning Z. If they do so, then

Y is just irrelevant. This can apply to the judgments of courts at any tier of the system, including at

apex or European level. Only international or pan-continental courts that operate without legislative

checks and balances, such as the ECtHR, ICC and ICJ, are immune from this in practice due to the

absence of any meaningful counterweight (other than the contracting states amending the relevant

treaties – which doesn’t tend to happen very much), but it would be a digression to get into the

corresponding need on their part to be more restrained in their interpretations in the absence of

checks and balances, and even more of a digression to get into the extent to which there have been

conspicuous failures in practice to exercise such restraint. Overall, a hovering spirit of what seems

good to judges shouldn’t be superimposed on express language. Indeed it is a bit of a pretence to

say that what judges thought about a previous text decades ago requires a humbugging process of

hushed and deferential parsing, even though we have a new text, as if we were talking about a

judgment on principles of tort law or some other common law concept.

93. Another problem for the applicants is that paras. 10 and 11 of the amended statement of

grounds don’t actually plead that they (or the Marquis of Waterford) are “owners” within art.

22(2)(g). So the lack of their consent is not something that they can properly pursue – what is

pleaded is that they have interests which prevent the application from being lawfully carried out.

94. Admittedly the effect of the opposing argument is that as long as the legal (i.e., normally

the freehold) owner consents, the application can be validly made, even if there is some other rights-

holder out there whose consent would be necessary for the works or use to be carried out. That is

a reasonable balance between the need to screen out frivolous planning applications and the

impracticality of a detailed title investigation by planning decision-takers (see Simons J. Heather Hill

Management Co. CLG v. An Bord Pleanála [2019] IEHC 450 (Unreported, High Court, 21 June 2019)).

This is yet again a demonstration of the economist Thomas Sowell’s point that there are no solutions,

only trade-offs. Set the consent requirements too low and anybody can apply for permission

improperly. Set them too high and you create technical traps as well as work for planners that they

are not suited for. So there is a balance – which is a matter of judgement for our legislators. That

balance has been sent in art. 22 in terms which properly interpreted only require the consent of the

owner within the definition of s. 2 of the 2000 Act, normally the freeholder.

95. The fact that an application is valid notwithstanding the lack of consent of someone whose

consent would be required for the development to be carried out doesn’t mean that permission has

to be granted despite that lack of consent. If it is clear at the stage of considering the planning

application that the project simply can’t lawfully be carried out then permission should be refused –

but such a conclusion has to be clear without complex technical property or tort law investigations.

The commission can’t be expected to do the latter, but also can’t shut their eyes to clear

impracticability in terms of lawful execution either. So it is a question of balance again.

96. For good measure, the actual rights-holder (as opposed to his licensees) isn’t an applicant.

As the commission points out:

“5. Second, insofar as Core Ground No. 1 and the associated sub-pleas are premised on

an assertion of rights by Henry de Paor, Marquis of Waterford, those rights cannot be relied

upon by the Applicants. As this Court set out in Eco Advocacy v An Bord Pleanála [2015]

IEHC 15 at §64(iii) an applicant can’t assert the constitutional or fair procedures rights of a

third party absent exceptional circumstances (Cahill v. Sutton [1980] I.R. 269; Hellfire

Massy Residents Association v. An Bord Pleanála [2021] IEHC 424, [2021] 10 JIC 1302

(Unreported, High Court, 13th October 2021) at §54(i)). It is not an answer for the

Applicants to say the rights-holder consents to be joined in the proceedings if the Applicants

have not taken (for no clear reasons) any actual step to so join them and it is, quite simply,

too late now.”

97. Floating the concept of joining the proceedings isn’t the same thing as actually applying, and

the court can’t be expected to advise proofs on such matters. I can only deal with an application if

actually made, which it wasn’t.

98. In short, an application for permission such as here is not invalid due to a lack of consent of

a rights-holder other than the legal owner, normally the freeholder. So this ground must be rejected.

Issue IV – core ground 1 – wayleaves

99. There was some disagreement about whether a statutory power constitutes a wayleave as

that term is used in the 2001 regulations, but it is only necessary to decide on that if the applicants

point fails on its own assumptions. So for the time being I can proceed on the assumption in favour

of the applicant that a statutory right of conduit for electricity and/or telecommunications is a

wayleave.

100. The onus of proof to show that a wayleave exists that is not shown on application

documentation (under art. 22(1) and (2)(b)(iii) of the 2001 regulations) is on an applicant. If we

disregard the pleadings for a moment, there are two potential avenues for argument:

(i) telegraph lines such as at https://maps.app.goo.gl/EbMDTYyoTgonyDjGA

(something fairly similar to this is included in the inspector’s book of site visit

photos); and

(ii) an ESB line at the fourth named applicant’s house:

https://maps.app.goo.gl/SrQwN8roJkkm8XVMA.

101. There are multiple fatal problems with quashing the permission on the basis that these lines

were not shown on the application drawings. Firstly the mere existence of a communications or

electricity line on the ground does not make it a wayleave. The applicants have taken no steps to

call on the statutory undertakers to clarify the legal basis for these lines. Not having utilised the

instruments available for that purpose leads to a conclusion of failure to discharge the onus of proof.

102. Secondly the applicants know all about these lines or should have done so, so their failure

to object to the application documents or to make submissions about these matters testifies to a

complete lack of prejudice as well as to the non-consequential nature of such issues. Much

imagination has been spent on dreaming up why they might be theoretically relevant but that is all

post hoc speculation.

103. For what it’s worth, and even bearing in mind that visual impacts from the fourth named

applicant’s upper floor can’t be judged from the available images, it isn’t clear from a comparison

between the Google Maps link in his latest affidavit and the site layout as (to a degree illustratively)

set out on p. 14 of the glint and glare assessment, that the ESB line in fact cuts across the line of

the solar panels. But I don’t need to make any definite finding on that.

104. Even more fundamentally, the applicants at the leave stage abandoned a claim as to multiple

wayleaves and pinned their colours to the mast of there being a single wayleave supporting this

ground – the locus in quo across the road from the fourth named applicant’s house – that’s the

telegraph line, not the ESB line. The whole argument made now falls utterly outside the pleadings,

and is completely demolished by the commission in a submission that is worth quoting at length,

bearing in mind the stark contradiction between their latest affidavit and their pleaded and argued

case:

“2. The Applicants’ pleaded case in the Amended Statement of Grounds at §9 is that

‘Many of these hedgerows also coincide with electricity and telecommunications overhead

lines which are incompatible with high hedgerows or trees. This occurs in the site boundary

hedgerow directly across the road from the dwelling of the Fourth Applicant at Eircode

E32T859, immediately south of the proposed development and is also one of the closest

houses to solar panels.’ The Applicants’ pleaded case is also that the absence of wayleaves

‘has material consequences in this case because the enhancement of boundary roadside

hedgerows is relied upon as mitigation for visual impact and the impacts of “glint and glare”

from the solar arrays’.

3. The entire basis of the Applicants’ case at hearing was that an ESB line was in the

site boundary hedgerow and that ESB have a wayleave and a statutory right (under Section

98 of the Electricity (Supply) Act of 1927) to cut any tree, shrub or hedge so as to prevent

its growth from ultimately obstructing or interfering with the wires (which argument was

addressed in the Commission’s previous written and oral submissions). Put another way,

the whole basis of the locus standi (in a real sense, in terms of providing the alleged actual

contended-for prejudice to the Fourth Named Applicant’s rights) was that the prospect of

cutting those hedges effected their utility as screening. This was, in plain terms, the line

above the hedgerow across the road from the Fourth Named Applicant’s house.

4. Obviously, at the hearing, the Commission pointed out that:

(a) There is a complete absence of any evidence before the Court of the existence of

any wayleave in relation to that line.

(b) The Applicants did not raise either or any point regarding the line before the

Commission.

(c) The information before the Commission in the Glint and Glare Assessment was that

impact on Mr O’Donovan’s house with existing screening is none so the planning significance

asserted by the Applicants in relation to the alleged omission of either utility line simply does

not arise. It is worth re-stating that this conclusion has not been challenged. So, the

contended-for prejudice simply doesn’t arise.

(d) Critically, there is no evidence of what particular hedgerow height is of concern to

ESB and, indeed, there is evidence of the height at which the hedges would be cut and when.

And, again, none of this is engaged with by the Applicant at all – rather, the point is left that

‘the hedge may be cut’ and that’s it.

5. However, the Applicants now rely on another utility line and the reason is quite clear

– because the Applicants now have to accept that the line they made issue of in the pleadings

and at the hearing is not, in fact, an ESB line. The ESB line is described in paragraph 8 of

the Affidavit of Des O’Donovan as ‘passing over the roadside hedgerow’. Insofar as the

Applicants rely on the ESB line described in paragraph 8 of the Affidavit of Des O’Donovan

as ‘passing over the roadside hedgerow’, as outlined above, that utility line is not pleaded

and cannot be a basis for relief. Leaving that aside, without prejudice to the foregoing

pleading objection, as to the substance of the issue, the Applicants’ case is now that the ESB

line ‘passes over the hedgerow… and supplies electricity to that house’.

6. Now, the entire premise of the Applicants’ argument is that there is a material

planning significance because the hedgerows required for screening are incompatible with

the utility lines. The point here, however, is that as appears from the panel layout depicted

on page 15 of the Developer’s Glint and Glare Assessment, no solar panels are proposed in

this very corner of the site across the road from Mr O’Donovan’s house (which is H25) and

adjacent to the house into which the ESB line passes (which appears to be H26). Further,

and in any event, the Glint and Glare Assessment indicated on page 17 that, with existing

screening, the potential for impact on H25 is none. Similarly, the potential for impact, with

existing screening, on H26 is also none.

7. In short, the Applicants initially focussed on the line across the road, claimed it was

liable to cutting via ESB powers, but have not proved that.

8. Therefore, there is absolutely nothing to suggest that hedgerows are required for

screening at the precise location where the ESB line passes over the hedgerow, if it traverses

the site at all. Rather, the evidence is that there is no impact with existing screening.

However, the underlying substance of this shift in layman’s terms cannot be emphasised

enough – the Applicants started by saying the problem was with the cutting of the entire

length of the hedges across the road that would screen a field with panels in it, to now

making an entirely different case without, indeed, making any direct reference at all to what

specific prejudice is alleged with regard to the very small (if any) sliver of hedge that comes

under the traversing line, as opposed to the line above the hedge on the roadside.

9. Insofar as the Applicants rely on the old telephone line described in paragraph 9 of

the Affidavit of Des O’Donovan, the Applicants are seeking to advance a totally different case

to that advanced thus far (i.e. premised on the line being an ESB line). Without prejudice

to the foregoing, there is simply no evidence of a wayleave in this regard. The height of the

Applicants’ case at §37 of their supplemental submissions is that there is a power to create

a telephone line wayleave that derives from section 6 of the Telegraph Act, 1863. However,

there is simply no evidence before the Court of such wayleave having been created. Further,

the Applicants do not point to any statutory powers (or other) powers to cut hedgerows in

relation to such telecommunication lines. Therefore, there is nothing before the Court to

suggest that there is any incompatibility between the hedgerows and this telephone line.

Not only this, but this is just an attempt to remedy their problems and make a case for which

leave was not granted.

10. All of the points made at the hearing apply to both of the lines now relied upon by

the Applicants but now, in a stronger sense. This is because the line relied on doesn’t (on

the Applicants’ own case) appear to attract the powers relied on for hedge cutting and

because the line now raised doesn’t have any involvement with any hedgerow of significance

for the underlying energy of the Applicants’ case. In relation to the old telephone line, the

Applicants have identified no power to cut hedgerows in relation to telecommunication lines,

but even if there was such power, there is no evidence of what particular hedgerow height

would be of concern to the relevant bodies exercising any such powers (if such power did

exist). Finally, there is simply no evidence of any prejudice to anyone. Rather, the evidence

that does exist shows that the only Applicant whose interests are directly relied on to make

this point, Mr O’Donovan, was obviously and fully aware of the issue at all times (see Freeney

v. An Bord Pleanála [2024] IEHC 427 at §121-123).

11. It is submitted that there is no evidence before this Court of the existence of any

wayleave allegedly omitted from the location map in breach of Article 22(2)(b)(iii) of the

2001 Regulations. Even if there were such an omission, it does not go to certiorari in all the

circumstances, in particular in the absence of any appreciable risk that anyone was

prejudiced (see Ballyboden Tidy Towns Group v. An Bord Pleanála [2023] IEHC 722 at §89-

90).

12. Finally, as a point of some general application, cases about ‘consent’ or about the

specific demarcation of lands that are owned or not owned or which should be marked in

yellow are ultimately not always (and certainly not here) about proper planning and

sustainable development. There is no possible case to be made that anything about these

issues actually goes to proper planning here. Rather, they are cases that arise in the specific

context of the underlying constitutional protection afforded to property rights. That is,

indeed, precisely where Frescati Estates v. Walker [1975] IR 177 comes from. However,

once that is recognised then it really has to follow that a judicial response to any case

necessarily has to take account of context – i.e. insofar as the principles are forged in that

constitutional fire, their actual application demands the nuance of all constitutional principle,

not blindly applied to the prejudice of right action and proportion. In direct legal parlance,

the Court should necessarily look at the matrix of the standing whereby such points are

raised because in some cases, raising a consent or wayleave issue may simply arise

abstractly, technically and with no serious prejudice at all and do not, in any relevant legal

sense, activate the very principles underlying all of this, that Frescati is supposed to protect.

In a more blunt sense, if an Applicant raises a point borne out of a rights based doctrine

without actually showing a prejudice to the very rights at issue, it really shouldn’t be an

operative legal point at all. When it comes to the identification of wayleaves, however, the

point is even more diluted, but at least in recognition to the notion that a party who claims

an alleged benefit of a wayleave (not actually pleaded in this case), may invoke a rights-

based principle underlying Article 22(2)(b)(iii) in the sense of (one may think), perhaps

protecting some interest in how a property is served, the actual prejudice to that interest

should be highly relevant to the question of whether the provision should be viewed as

violated. In short, the Commission submits that an appropriate legal conclusion to this case

should be that a party cannot raise an Article 22(2)(b)(iii) point without, in fact, referring to

some prejudice in a real sense that is said to arise and proving that prejudice. Whereas one

may argue the Court could still examine the breach, this is still simply a pathway for litigation

of completely purposeless points (as in this case), and really the ‘wayleave’ requirement

(read in light of the constitutional basis of Frescati) should mean that a threshold issue

requires the actual proved demonstration of prejudice. This is even more so given the

importance of Section 34(13) of the PDA 2000.”

105. The wider context is the Supreme Court’s view in Waltham Abbey v. An Bord Pleanála;

Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] I.L.R.M. 417 (Hogan J.)

that the obligations regarding application documentation must be reasonably foreseeable and

workable for a developer and that burdensome additional obligations beyond those expressed in the

regulations should not be implied. The problem for the applicants here is that the combined effect

of ss. 69 and 72 of the Registration of Title Act 1964 is that a substantial number of easements/

wayleaves don’t need to be registered. Thus there is a real issue of workability in requiring a

developer to declare, on pain of certiorari of the ultimate decision, the existence of wayleaves which

she may not be aware of and which are not apparent on the title. There is no reason to question

the developer’s lack of awareness here.

106. Section 69 of the Registration of Title Act 1964 provides (emphasis added):

“Burdens which may be registered as affecting registered land.

69.—(1) There may be registered as affecting registered land any of the following burdens,

namely—

(a) any incumbrance on the land existing at the time of the first registration of the land;

(b) any charge on the land duly created after the first registration of the land;

(c) any rentcharge (not being a rentcharge to which, though not registered, the land is

subject under section 72) or fee farm or other perpetual rent issuing out of the land;

(d) any power to charge land with payment of money, whether created or arising before or

after the first registration of the land;

(e) any trust for securing money created or arising after the first registration of the land;

(f) any lien on the land for unpaid purchase money;

(g) any lease where the term granted is for a life or lives, or is determinable on a life or

lives, or exceeds twenty-one years [(or such other period as may be prescribed)], or where

the term is for any less estate or interest but the occupation is not in accordance with the

lease;

(h) any judgment or order of a court, whether existing before or after the first registration

of the land;

(i) any judgment mortgage, recognizance, State bond, inquisition or lis pendens, whether

existing before or after the first registration of the land;

(j) any easement, profit à prendre or mining right created by express grant or

reservation after the first registration of the land;

(jj) any easement or profit à prendre where the Authority is satisfied, pursuant to section

49A, that there is an entitlement to such an easement or profit à prendre;

(k) any covenant or condition relating to the use or enjoyment of the land or of any specified

portion thereof;

(kk) a freehold covenant within the meaning of section 48 of the Land and Conveyancing

Law Reform Act 2009;

(l) any estate in dower;

(m) any burden to which section 54 of the Forestry Act, 1946, relates;

(n) any right of the Land Commission or a local authority to lay pipe-lines for whatsoever

purpose and any right ancillary thereto;

(o) a power to appoint an estate or interest in the property exercisable within a period not

exceeding a life or lives in being and twenty-one years thereafter;

(p) a power of distress or entry;

(q) a right in the nature of a lien for money’s worth in or over the property for a limited

period not exceeding life, such as a right of support or a right of residence (whether an

exclusive right of residence or not);

(r) a burden created by statute or under a statutory power that is not one of the

burdens to which, though not registered, registered land is subject under section

72;

(rr) a judgment opening the proceedings referred to in Article 3(1) of Council Regulation

(EC) No 1346/2000 1 of 29 May 2000 on insolvency proceedings,

(rr) an agreement under section 18 of the Wildlife Act, 1976, which provides that it shall be

enforceable against persons deriving title to the relevant land under a party to the

agreement;

(rrr) an order under section 18(1) of the Wildlife (Amendment) Act, 2000;

(s) any such other matter as may be prescribed.

(2) A burden may be registered under this section on the application of the registered owner

of the land or of any person entitled to or interested in the burden but, if the application is

made without the concurrence of the registered owner of the land or such other person as

may be prescribed, the burden shall not be registered except in pursuance of an order of

the court.

(3) Any covenant or condition registered under this section may be modified or discharged

by order of the court on proof to the satisfaction of the court that the covenant or condition

does not run with the land, or is not capable of being enforced against the owner of the land,

or that the modification or discharge thereof will be beneficial to the persons principally

interested in the enforcement thereof, and may, with the consent of all persons interested

in the enforcement thereof, be modified or discharged by the Authority without any such

order.

(4) The Authority may, on the prescribed evidence and subject to the prescribed conditions,

modify or cancel any entry under this section of a burden not being such a covenant or

condition as aforesaid.”

107. Section 72 of the Registration of Title Act 1964 provides (emphasis added):

“Burdens which are without registration to affect registered land.

72.—(1) Subject to subsection (2), all registered land shall be subject to such of the following

burdens as for the time being affect the land, whether those burdens are or are not

registered, namely—

(a) estate duty, succession duty, former crown rents, tithe rentcharges and payments in lieu

of tithe or tithe rentcharge;

(b) land improvement charges and drainage charges;

(c) annuities or rentcharges for the repayment of advances made under the provisions of

any of the Land Purchase Acts on account of purchase money;

(d) rights of the Land Commission or of any person under a vesting order, vesting fiat, final

list or transfer order made or published under the Land Purchase Acts;

(e) rights of the Land Commission upon the execution of an order for possession issued

under section 37 of the Land Act, 1927;

(f) rights of the public or of any class of the public;

(g) customary rights, franchises and liabilities arising from tenure;

(h) easements and profits à prendre, unless they are respectively created by

express grant or reservation after the first registration of the land;

(hh) any wayleave which is a wayleave to which this section applies;

(i) tenancies created for any term not exceeding twenty-one years (or such other period as

may be prescribed) or for any less estate or interest, in cases where there is an occupation

under such tenancies;

(j) the rights of every person in actual occupation of the land or in receipt of the rents and

profits thereof, save where, upon enquiry made of such person, the rights are not disclosed;

(k) in the case of land registered with a possessory, qualified or good leasehold title, all

rights excepted from the effect of registration;

(l) a perpetual yearly rent (in this section referred to as the superior rent) which is superior

to another such rent (in this section referred to as the registered rent) registered as a burden

on registered land and which, as between the said registered land and the registered rent,

is primarily payable out of the registered rent in exoneration of such land;

(m) the covenants and conditions contained in the deed or other document creating the

superior rent, in so far as those covenants and conditions affect such land;

(n) a purchase annuity payable in respect of a cottage which is the subject of a vesting order

under the Labourers Act, 1936;

(o) restrictions imposed by section 21 of the Labourers Act, 1936, on the mortgaging or

charging of cottages purchased under that Act;

(p) rights acquired or in course of being acquired under the Statute of Limitations, 1957;

(q) burdens to which section 59 or 73 applies.

(r) covenants which continue in force by virtue of section 28 of the Landlord and Tenant

(Ground Rents) (No. 2) Act, 1978

(2) Where it is proved to the satisfaction of the Authority that any land registered or about

to be registered is exempt from, or has ceased to be subject to, any estate duty, succession

duty, former crown rent, tithe rentcharge, payment in lieu of tithe or tithe rentcharge, land

improvement charge, drainage charge or annuity or rentcharge for the repayment of any

advance made on account of purchase money as hereinbefore is mentioned, the Authority

may enter on the register notice of the fact.

(3) Where the existence of any such burdens is proved to the satisfaction of the Authority,

it may, with the consent of the registered owner or applicant for registration, or in pursuance

of an order of the court, enter notice thereof on the register.

(4)This section applies to any wayleave on, over or beneath the surface of land

which—

(a) pursuant to an agreement in writing is granted to or by the Irish Gas Board or

a relevant person (within the meaning of section 20 of the Gas (Amendment) Act,

2000), or pursuant to an acquisition order within the meaning of the Gas Act, 1976,

is granted to that Board or such a person, and

(b) is intended to be used, or is used, in providing either or both of the following:

(i) a pipeline for the transmission of gas;

(ii) ducts, cables, pipes or conduits for any other purpose where such

purpose is expressed in an agreement described in paragraph (a) (whether

such agreement is made before or after the coming into operation of section

33 of the Energy Act 2016),

and

(c) in case the wayleave is granted under such an agreement, under the agreement

it is to be enforceable against persons deriving title to the land under a party to

the agreement.”

108. The net effect of the above is that certain types of easement and wayleaves are effective

without registration. That creates an obvious problem of workability in terms of what can be

reasonably known about so as to be included in a planning application.

109. This is illustrated by looking at it from the notice party’s position – the only real way they

can know if there is a wayleave to include on application drawings is by checking the title. It would

create an unworkable obligation to invalidate an application based on something that evades such

checking.

110. As the wayleave argument fails on multiple grounds even assuming the applicants’

interpretation of the term, I don’t need to decide if that interpretation is correct.

Issue V – core ground 2 – constitutional rights

111. Core ground 2 is:

“2. The impugned decision is invalid and was made contrary to fair procedures and the

Constitutionally protected property rights of the Fifth Applicant. Further particulars are set

out in Part 2 below.”

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

113. This doesn’t add a whole lot to the previous point. If carrying out of the development

breaches anybody’s rights then they retain their right of action. So the grant of permission is not

unfair or in breach of fair procedures because it does not prejudice any such actions to enforce legal

or constitutional rights. Furthermore the main rights-holder isn’t an applicant.

114. Insofar as the pleaded case is concerned, in an appropriate case a third-party applicant could

contend that the commission erred in granting permission where the project was inherently

unworkable due to a clear breach of the legal rights of such third party, but that isn’t the actual case

made on the pleadings against the commission. The only ways in which the commission allegedly

erred are:

(i) in failing to assess the proportionality of interference with rights (sub-ground 11) –

but that is not an exercise they can meaningfully engage in, in such a context, and

is a long way from saying that the project constitutes a clear breach of such rights

such that a reasonable decision-maker would have to refuse the application; and

(ii) in failing to invalidate the application at the outset (see sub-ground 12) – that is a

misconception for similar reasons.

115. Neither point can succeed for the reasons outlined.

Issue VI – implications for other grounds

116. As core grounds 1 and 2 fail, there is no basis to revisit the dismissal of the other grounds.

Summary

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

(i) It is settled law that a power such as to extend time must be exercised having regard

to the interests of justice.

(ii) Applying such law to the facts here, the objection to the late filing of the statement

of opposition is a meritless technicality and an opportunistic attempt to capitalise on

human error by the other side. The balance of justice favours extending time.

(iii) It is settled law that irrespective of opposition, the court itself must be satisfied

as to the grant of relief by way of judicial review.

(iv) Applying such law to the facts here, even assuming the non-filing of the statement

of opposition, the result would be the same as I am not satisfied that relief should

be granted.

(v) It is settled law that an applicant is confined to her pleadings.

(vi) Applying such law to the facts here, any case based on the ESB line falls far outside

the pleadings, which refer only to the lines opposite the fourth named applicant’s

house which are the telegraph lines.

(vii) It is settled law that the onus of proof lies on an applicant.

(viii) Applying such law to the facts here, the applicants have not proved facts necessary

to draw the conclusion that the application was in breach of art. 22 of the 2001

regulations.

(ix) It is settled law that the consent of the legal owner is required for an application

for planning permission by a third party.

(x) Applying such law to the facts here, an application for permission such as here is not

invalid due to a lack of consent of a subordinate rights-holder other than the legal

owner.

(xi) It is settled law that the grant of permission does not terminate legal rights that

exist independently of the permission.

(xii) Applying such law to the facts here, the allegation that the commission erred in its

treatment of the rights of the applicants is misconceived. Any such rights persist

notwithstanding the permission, and the applicants haven't pleaded, still less

established, that the breach of rights alleged was so apparent without the need for

detailed legal consideration that the commission should have refused permission on

that basis.

(xiii) It is settled law that legal obligations must be workable.

(xiv) Applying such law to the facts here, detailed investigation of property rights at the

planning permission stage would have been unworkable, as would a duty to show

wayleaves on application forms if there is no demonstrated basis from the title on

which knowledge of such wayleaves could arise.

(xv) It is settled law that relief should not be granted for harmless or non-consequential

errors.

(xvi) Applying such law to the facts here, the opposing parties have pointed to facts

establishing the lack of consequence of any error in the application documents,

particularly the implausibility that the applicants were unaware of the lines, and their

lack of submissions on such issues and the lack of any evidence of prejudice.

(xvii) It is settled law that relief by way of judicial review is discretionary.

(xviii) Applying such law to the facts here, I would have declined certiorari as a matter of

discretion on the facts here including based on the lack of prejudice, absence of

submissions and hypothetical nature of the alleged consequences.

Order

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

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by written legal submission prior to the mention

date, the foregoing order incorporating the order in the Module I judgment be

perfected forthwith thereafter on the basis of no order as to costs including reserved

costs;

(iii) pursuant to O. 103 r. 40(4) RSC, for the avoidance of doubt, any unsuccessful

application to vary any provisional order as to costs proposed in the judgment may

give rise to an adverse award of costs (in the case of an award against a costs-

protected applicant, such award would not give rise to a positive balance at a level

that is prohibitively expensive); and

(iv) the matter be listed on Monday 8 December 2025 to confirm the foregoing.