High Court dismisses planning application challenge regarding wastewater capacity and zoning compliance.

THE HIGH COURT PLANNING & ENVIRONMENT [2025] IEHC 715 Record No: 2023 / 661 JR

In the matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

MICHAEL DUFFY

Applicant

and

AN BORD PLEANÁLA

and

ENVIRONMENTAL PROTECTION AGENCY

and

MINISTER FOR HOUSING LOCAL GOVERNMENT AND HERITAGE

IRELAND and THE ATTORNEY GENERAL

Respondents

and

GLENVEAGH HOMES LTD

and

CLARE COUNTY COUNCIL

Notice Parties

JUDGMENT of Ms. Justice Emily Farrell delivered the 30th day of December 2025

Introduction

1. In previous proceedings against An Bord Pleanála (which has since been replaced by An Coimisiún Pleanála, hereinafter referred to as ‘the Commission’), in which the Applicant sought orders quashing the grant of planning permission for the construction of a motorway service area at Kilbrecon, Doora, Ennis, Co. Clare, grounds were advanced relating to the capacity of the Clareabbey Wastewater Treatment Plant. Those proceedings were dismissed:

Duffy v An Bord Pleanála [2024] IEHC 558. Counsel for the Commission and the first named Notice Party (‘the developer’) acknowledged the sincerity of Mr Duffy’s observations and proceedings.

2. In the present case, the developer made an SHD application under the Planning and Development (Housing) and Residential Tenancies Act, 2016 in respect of 289 houses, a crèche and associated works on a 11.32ha site at Circular Road, Ennis, Co Clare, which is beside Ennis Golf Club.

3. The Chief Executive recommended a refusal of the application, for reasons which include the zoning of the lands as “Low Density Residential” and three further reasons which are unconnected with the issues arising in these proceedings. The Report of the Chief Executive also included 29 conditions which were proposed in the event that the Commission decided to grant planning permission.

4. The Applicant made observations to the Commission. The Applicant had raised no issue with the details of the proposed development, nor does he object to development of the site in principle. Save insofar as Core Ground 1 raises an issue of zoning, the Applicant’s complaints are confined to issues relating to the capacity of the wastewater network, operated by Uisce Éireann. In particular, the Applicant submits that the overflows from the Ennis sewage network, particularly those leading to the Francis Street pumping station and Ennis North wastewater treatment plant are operating over capacity and that overflows therefrom exceed the frequency and volume permitted under EU law.

5. In making his submission to the Commission, the Applicant set out his argument and enclosed hyperlinks to 18 Annual Environmental Reports in respect of Ennis North Wastewater Treatment Plant, 10 Site Visit Reports relating to Clareabbey and documents on certain planning files. The documents so referred to were not included in the Applicant’s submission, nor attached to his appeal in any form.

6. The Commission granted permission for the proposed development subject to 22 conditions, on 18th April 2023 (ABP-314448-22). Condition 13 provides:

“Prior to commencement of development, the developer shall enter into water and or wastewater collection agreement(s) with Irish Water.

Reason: In the interest of public health.”

7. The Board Direction refers to “water and wastewater connection agreement(s)” and the Applicant and developer both interpret Condition 13 as requiring both agreements to be entered into before development may commence in accordance with the permission granted.

8. On 16th December 2022, Irish Water became known only as Uisce Eireann, by virtue of section 5, Water Services (Amendment) Act, 2022, which was commenced by S.I. 678 of 2022.

9. Leave to apply for judicial review was granted on the Second Amended Statement of Grounds, on Core Grounds 1 to 12 inclusive. The Applicant no longer pursues Core Grounds 2, 4, 9 and 12. An Order was made at the commencement of the hearing, on consent, striking out the proceedings as against the EPA; the application for Relief D4 and Core Ground 9 were struck out.

Preliminary matter – application to leave for cross-examination

10. The Applicant was granted liberty to bring a motion for liberty to cross-examine the developer’s deponent. His affidavit was served on 27th November 2024. By letter dated 4th December 2024, the Applicant served his written submissions. The decision to seek crossexamination of this deponent appears to have been made in January 2025, and the developer was put on notice of the intention to make such an application by letter dated 20th January 2025. The application was made returnable to 10th February 2025. At the hearing of that application, the Commission and the developer accepted that the meaning of documents, specifically those from Uisce Éireann, is a matter for interpretation by the Court and therefore is not a matter for which expert evidence is required.

11. I refused the application because of the inability of the Applicant to demonstrate that there is a conflict of evidence which it is necessary to resolve, in order to decide the legal issues arising in the proceedings. The Applicant did not assert any lack of candour or inaccuracy in any averment on behalf of any deponent. The Applicant had submitted that the affidavit sworn by Mr. Harris did not respond to the evidence of Mr. Duffy; in effect the evidence provided related to a different question or issue rather than contradicting, or conflicting with, the evidence of Mr. Duffy. Therefore, it is not necessary for the Court to decide between the evidence given by Mr. Duffy and Mr. Harris to determine the issues raised in these proceedings. Whilst the responding parties had raised the issue of delay in bringing the application for cross-examination as a ground for refusing that application, I made no finding in relation to timing of the application, and I did not rely on delay as a ground to refuse the application.

Summary of main issues

12. The Applicant accepts that the Inspector’s summary of his submissions is fair and that the Inspector was alive to the issues which he had raised. The Applicant’s criticism is directed to the manner in which the Inspector and the Commission dealt with those submissions and determined the application.

13. Core Grounds 2, 4, 9 and 12 were withdrawn.

14. The main issues are, in summary, as follows:

(i) Material contravention – zoning

(ii) Letter from Uisce Éireann

(iii) Failure to have regard to relevant matters

(iv) Lack of Jurisdiction to grant permission to discharge to an overloaded system

(v) Non-transposition

(vi) Failure to notify the EPA

(vii) Suggested CJEU reference

Material contravention – zoning

15. As set out in Core Ground 1, the Applicant contends that the decision is invalid because it materially contravened the zoning of the site.

16. An analogous argument was rejected by Humphreys J. in O’Donnell v. Bord Pleanála [2023] IEHC 381 para. 7 and Save Roscam v An Bord Pleanála [2024] IEHC 335 at paras.

50 – 59. The Applicant accepted that the authorities are against him, and that the High Court

was bound to follow those judgments. I see no valid reason to decline to follow that approach and I reject this ground.

Letter from Uisce Éireann

17. As set out in Core Ground 3, the Applicant claims that the application for permission was invalid, contrary to Article 297 of the Planning and Development Regulations 2001, because a letter from Uisce Eireann purporting to confirm “capacity” of the Ennis sewer system did not in fact do so. Article 297(2)(d) of the 2001 Regulations stipulates that, where the developer proposes to connect to the Uisce Éireann water network, it must provide “evidence that Irish Water has confirmed that it is feasible to provide the appropriate service or services and that the relevant water network or networks have the capacity to service the development.”

18. The letter from Uisce Éireann, dated 26th November 2021, provided by the developer stated:

“Irish Water has reviewed your pre-connection enquiry in relation to a Water & Wastewater connection at Golf Links Road, Ennis, Clare (the Premises). Based upon the details you have provided with your pre-connection enquiry and on our desk top analysis of the capacity currently available in the Irish Water network(s) as assessed by Irish Water, we wish to advise you that your proposed connection to the Irish Water network(s) can be facilitated at this moment in time.

OUTCOME OF PRE-CONNECTION ENQUIRY SERVICE THIS IS NOT A CONNECTION OFFER. YOU MUST APPLY FOR A CONNECTION(S) TO THE IRISH WATER NETWORK(S) IF YOU WISH TO PROCEED.

Water Connection Feasible without infrastructure upgrade by Irish Water

Wastewater Feasible Subject to upgrades Connection SITE SPECIFIC COMMENTS

There is sufficient capacity in the Irish Water assets to facilitate the Water Connection proposed development.

Feasible subject to minor upgrades at the WWTP. WW network Wastewater extension required with likely upgrades of the existing Irish Water Connection owned pumping station and rising main also required. Further details can be discussed prior to connection application stage.

19. I interpret this letter as confirming that water connection was feasible, but that wastewater connection was not immediately feasible (until those upgrades are completed).

20. Article 297 of the Planning and Development Regulations 2001 (as amended) provides:

“(1) An application shall be in the form set out at Form No. 14 of Schedule 3.

(2) An application in sub-article (1) shall be accompanied by— …

(d) where it is proposed to connect the development to a public water or wastewater network, or both, evidence that Irish Water has confirmed that it is feasible to provide the appropriate service or services and that the relevant water network or networks have the capacity to service the development,”

21. I am satisfied that it is appropriate to have regard to the prescribed form in considering whether the application was validly made: Waltham Abbey Residents Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417. Paragraph 20 of the application form prescribed by the 2001 Regulations states:

“20. Water services Note Where it is proposed to connect the strategic housing development to a public water or wastewater network or both, the application must be accompanied by— evidence that Irish Water has confirmed that there is or will be sufficient water network treatment capacity to service the development, …”

22. The applicant for permission is then required to identify the proposed source of the water supply and proposed wastewater management/ treatment in addition to proposed surface water disposal. Furthermore, the application form states that it must be accompanied by evidence of engagement with Irish Water and of its outcome where the proposed development has the potential to impact on the public water supply source. If the proposed

development will impact on the assets of Irish Water, the application must be accompanied by details of proposals to protect such assets.

23. The Applicant submits that the requirements of the 2001 Regulations must be construed in a manner which gives effect to Council Directive, 91/271/EEC, the Urban Wastewater Treatment Directive. Whilst that proposition is not disputed, the Commission and developer submit that the Commission is entitled to have regard to future works in considering whether capacity has been addressed satisfactorily and determining whether connection is feasible.

24. Article 4(1) of the Urban Wastewater Treatment Directive requires Member States to ensure that (for discharges to which it applies) urban wastewater entering collecting systems shall be subject to secondary treatment, or equivalent treatment. The Applicant submits that, as this obligation is an obligation of the State, the obligation to comply with Article 4(1)

also rests on the Commission and it is submitted the Commission cannot rely on section 34(13), or section 10(6) of the 2016 Act, as an answer thereto. However, the effect of a

decision of the Commission must be considered by reference to the statutory scheme. The

decision – in this case to grant permission subject to Condition 13 which requires the developer to enter into a wastewater connection agreement with Uisce Éireann before it may commence works on foot of the permission granted – does not authorise any wastewater discharge in breach of the State’s obligations under Article 4(1). As section 10(6) of the 2016 Act makes clear, and Condition 13 highlights, the grant of permission does not entitle the developer to carry out the proposed development without entering into a wastewater connection agreement with Uisce Éireann, and the permission requires this to be done “prior to development”. The Urban Wastewater Treatment Directive does not require a letter from Uisce Éireann which indicates that wastewater connection is immediately feasible or that capacity be interpreted in the restrictive manner proposed by the Applicant.

25. Therefore, the Applicant’s argument that the Commission’s interpretation of the Uisce Éireann letter and its reliance thereon, does not infringe the State’s obligations under Article 4(1) of the Urban Wastewater Directive.

26. Neither the 2001 Regulations, nor the Directive requires the Uisce Éireann letter dated 26th November 2021 to be interpreted as indicating that connection is not feasible, and/or that there is no capacity for the proposed connection by reason of the minor upgrade works which it states are required.

27. As noted above, the contested Uisce Éireann letter confirmed that water connection was “Feasible Subject to upgrades”. It is accepted by the Commission and the developer, that it was not contended that Uisce Éireann had confirmed that immediate connection could be facilitated without the minor upgrades, but that connection was feasible and there was capacity in the network. On that basis, they submit that the letter was sufficient to comply with the requirements of Article 297.

28. The email dated 1st July 2022 from Uisce Éireann provides:

“Please note, that in the latest capacity register there is WWT capacity to accept the proposed development. This will be reviewed again at connection application stage.”

29. Uisce Éireann stated on 15th August 2022:

“Based on the information provided, which included the documents outlined in Appendix A to this letter, Irish Water has no objection to your proposals.”

30. These documents should not be read in isolation from each other. The Applicant seeks to interpret the Uisce Éireann letter dated 26th November 2021 in a negative sense contrary to its clear intention. Admittedly, Uisce Éireann stated that “minor upgrade works” were required to accommodate the wastewater connection to the Uisce Éireann network. That is not equivalent to a refusal of confirmation that capacity exists. Indeed, the letter expressly confirmed that there was sufficient capacity at the WWTP to facilitate the proposed development. This letter is reinforced by:

(a) the statement of design acceptance from Uisce Éireann dated 15th August 2022;

(b) the civil works design report from Tobin Consulting Engineers issued on 15th August 2022;

(c) Chapter 6 of the EIAR at e.g., paras. 6.6.1, 6.7.5, 6.8.2, 6.9.2 and

(d) the fact that Uisce Éireann subsequently re-confirmed that position in its observation on the application dated 28th September 2022.

31. The submissions of Uisce Éireann dated 28th September 2022, confirmed that it had reviewed the plans and particulars submitted for the proposed development and that, based on the details provided by the developer, and on the capacity available in the local networks, it had the following observations:

“In respect of Water:

There is sufficient capacity in the Irish Water assets to facilitate the proposed development.

In respect of Wastewater:

There is sufficient capacity at the Wastewater Treatment Plan to facilitate the proposed development. In order to accommodate the proposed wastewater connection to Irish Water network, the following works are required:

• Minor upgrades at the wastewater treatment plant will be required to enable this development. These upgrades are expected to be delivered as part of Irish Waters Capital Investment Plan (CIP) for the region.

• A network extension will be required to connect to the Irish Water wastewater network. These extension works, which take place within the public domain, are not currently on Irish Waters investment plan and therefore the applicant will be required to fund these local network upgrades.

• The Drainage Area Plan (DAP) for the area has commenced, the final findings/outputs from the DAP will inform the Capital Needs Assessment at (CNA)

at connection application stage. These works are expected to be progressed in 2022/2023 (subject to change). …”

32. The Commission submits that the Applicant seeks to interpret the letter of 26th November 2021 in a manner which rendered the planning application invalid, and by extension, the

decision of the Commission to accept the validity of the application as invalid. In Save Roscam v. An Bord Pleanála (No.6) [2024] IEHC 335, Humphreys J. stated:

“64. The applicants in effect misread the inspector as impermissibly using the definition of SHD to trump the zoning limitations of the board’s powers. This invokes the applicants’ fallacy that decisions must be read in the most erroneous way possible so

that they can get their order of certiorari: M.R. (Bangladesh) v. The International Protection Appeals Tribunal & Anor [2020] IEHC 41, [2020] 1 JIC 2903 at §7.”

33. The Inspector set out the position expressed by Uisce Éireann, at para. 9.2.1 and concluded, at para. 10.12.4:

“Conclusion on Drainage Infrastructure: In regards to wastewater sufficient capacity is confirmed to be available for the WWTP, however minor upgrades area required, but are planned upgrades with the [sic] no objection raised by Irish Water. The development does require a network extension within the public domain and such will need to be funded by the applicant. In relation to issues raised by third parties to carry out upgrades of the drainage network, I would refer to Section 34(13) of the Planning and Development Act, 2000 as amended under which it is stated that “a person shall not be entitled solely by reason of a permission under this section to carry out any development”. I would consider it reasonable to conclude that the proposed development may help remedy existing drainage issues such as the odour issue raised.

In relation to downstream river capacity the proposed surface water drainage proposal include attenuation/infiltration basin and the intention to have a greenfield runoff rate as well as a drainage system that takes account of exceptional stormwater events. I would refer to the following section relating to flood risk also. In terms of safety concerns regarding the infiltration basin, it is notable that such is located at the northern extremes of the site and not central to the scheme. I would recommend attaching a condition requiring some sort of secure fencing preventing public access while at the same time allow for movement of mammals through the site. I am satisfied that subject to appropriate conditions regarding drainage the proposed development would be satisfactory in the context of surface water, foul drainage and water supply.”

34. In Ballyboden v An Bord Pleanála [2024] IEHC 66, Humphreys J. stated “The existence or otherwise of capacity is an evolving situation” and that “Depending on the context, capacity is not all or nothing – it inherently involves trade-offs.” He held, at para. 53, and I agree, that it is for Uisce Éireann, as the relevant statutory decision maker to determine “how these tradeoffs should be managed, and for example to determine how many overflow incidents are acceptable before we hit a red line whereby no more additional connections can be allowed without expansion works.”

35. As the Commission observes, Uisce Éireann clearly envisaged permission would and could be granted for the proposed development despite considering that certain upgrades were required in respect of wastewater, but it clearly did not consider the application to be premature or that the upgrades required should preclude the grant of permission. The letter cannot be interpreted as evincing a position that permission should be refused by reason of the inability to provide appropriate water or the ability to deal adequately with wastewater discharges from the proposed development.

36. Furthermore, any complaint that amounts in substance to an allegation about the validity of the Uisce Éireann letter cannot be maintained without Uisce Éireann being a party: Ballyboden (para. 56). That the Applicant seeks to effectively impugn the letter is clear. At para. 10 of the affidavit sworn by Eoin Brady in support of the application for crossexamination he states “The issue in the case is one of non-compliance by UE with the requirements of the EPA licence in relation to storm water overflows.”

37. More generally, I agree with the developer that it would be an inappropriate interpretation of Article 297(2)(d) of the 2001 Regulations to infer that “connection to a wastewater network can be considered “feasible” only where that connection is capable of implementation immediately”. Such an interpretation would be far too prescriptive and indeed would obstruct the statutory intention where developments are given consent. Feasibility connotes capability but I do not consider that it requires that it can be carried out or achieved immediately.

38. It must be noted that in every case, the indication that connection is feasible must be obtained prior to the application for permission being made. To interpret connection feasibility and capacity as being present only where Uisce Éireann states that immediate connection would be possible would be to impose an unnecessarily high standard, having regard to the fact that immediate connection would not be required (except where the application is for retention permission, which does not arise here). The passage of time between Uisce Éireann indicating the position regarding capacity and feasibility of connections and the carrying out of any works is unavoidable, due to the time required for the planning process and, where permission is granted, the carrying out of the works. As Uisce Éireann stated, connection capacity will be reviewed again at the connection application stage, as it must, by which time other developments may have been carried out and been

connected to the network and/or upgrade works may have been carried out. This is recognised by the Commission through the imposition of Condition 13, which is a standard condition.

Failure to have regard to relevant matters

39. Under Core Grounds 4 and 5, the Applicant alleged lack of regard to (a) certain Ministerial Guidelines contrary to section 28 of the Planning and Development Act 2000, in particular the Urban Waste Water Treatment Directive (91/271) Procedures and Criteria in relation to Storm Water Overflows, and (b) other relevant matters, including the EPA licence for the Ennis North Wastewater Treatment Plant and the Annual Environmental Reports for those plants. Core Ground 4 has been withdrawn by the Applicant.

40. At Core Ground 5, the Applicant contends that the Commission failed to obtain and consider relevant material which he had referred to as follows in his submission:

“As I can only upload one document with this submission I cannot attach copies of AER & SVR reports or planning reference files in relation to matters referred to herein.

Therefore I will list the reference locations here.

18 reports on Ennis North WWTP https://epawebapp.epa.ie/licsearchdownload/CombinedFileView.aspx?regno =D0048-01&classification=Enforcement

10 Reports on Clareabbey WWTP https://epawebapp.epa.ie/licsearchdownload/CombinedFileView.aspx?regno =D0199- 01&classification=Enforcement

Planners reports, environmental reports, water services reports, final grants of permission on the following planning files in Clare County council 06/642; 06/1754;

08/12; 12/249; 18/1004, https://www.eplanning.ie/ClareCC/SearchExact”

41. Insofar as the complaint can be construed as a failure to consider submissions, the decision states that submissions were considered, and the Applicant has not proved the contrary (see Reasons and Considerations item (x) on page 3 of the Board Order and sections 7.0 and 10.0 of the Inspector’s Report). He accepts that the Inspector correctly summarised the issues raised by him in his submissions. As Hardiman J. held in G.K. v. Minister for Justice [2002]

2 IR 418; [2002] 1 ILRM 401, “A person claiming that a decision making authority has, contrary to its express statement, ignored representations which it has received must produce some evidence, direct or inferential, of that proposition before he can be said to have an arguable case.”

42. As the Commission submits, “The Applicant’s submission is expressly referred to in the Inspector’s Report and was properly considered on a thematic basis, with the main issues raised in relation to drainage/ drainage infrastructure properly considered by the Inspector (see e.g., section 7.0, §7.2, §10.1, §10.2, §10.12.1 to §10.12.4 of the Inspector’s Report )

and by the Board (see e.g., Reasons and Considerations item (x) and (xii) on page 3 of the Board Order and page 1 of the Board Direction which records that the Board decided to grant permission generally in accordance with the Inspector’s recommendation). The Applicant’s submission was also summarised in the Council’s Chief Executive’s Report, which the Board and Inspector expressly had regard to (see e.g., Reasons and Considerations item (xi) on page 3 of the Board Order and section 8.0 of the Inspector’s Report).”.

43. Likewise, the plea that other relevant matters were not considered has not been established evidentially. Nor has the Applicant established evidentially that he was unable, by reason of problems with the Commission’s website or otherwise, to put relevant material before the Commission. The evidence relied upon by the Applicant goes no further than an averment verifying the Statement of Grounds, which pleads that the Applicant “was unable to upload due to limitations on the Board’s website”. (The amendments to the Statement of Grounds did not affect Core Ground 5). The limitations of the website are not explained. The Commission pleads, in its Statement of Opposition, which was verified by Pierce Dillon, that the Applicant failed to comply with the guidance for making submissions and observations on SHD applications, as set out in the form entitled “Observation on a Strategic Housing Development Application”, on its website. That Guidance provides that any supporting documentation should be either combined into one document and inserted into part 5 of the form, or physical objects must be sent with the observation by post or delivered in person to the office of the Commission. While the Applicant states that he “was unable to upload” the additional material “due to limitations on the Board’s website” the only limitation referred to by him is the restriction of submitting a single document. There is no evidence to the effect that, by reason of the size or number of the documents to which

Applicant referred or otherwise, it was impossible for him to include any documents he wished to have considered as part of his observations. Even if that were the case, it was open to him to submit copies of the reports by delivering them to the Commission’s office rather than using the uploader facility. There is no evidence to demonstrate that it was not possible for him to post or deliver any supporting material he wished to make in accordance with the Guidance.

44. The concept of regard to relevant matters is in essence misunderstood by the Applicant in his approach to these grounds. There are certain matters that must be considered by a

decision-maker in all cases – those are what can be described as autonomous obligations.

Then there are matters that a decision-maker must consider if raised – for example, submissions by participants in the process. Thirdly, there are a large number of other matters that a decision-maker is entitled to consider but is not obliged to consider. Failure to consider something under that last catch-all heading is not a legal basis for certiorari.

45. There may be some cases where an autonomous obligation to obtain information applies – for example where a document is submitted in another language, there may be a need to translate it (TN v. Minister for Justice [2007] IEHC 257, [2007] 4 I.R. 553). But in this case, the Commission did not have any (demonstrated) autonomous obligation to obtain and consider the documents referenced in Core Ground 5. Nor did the Applicant provide those documents – he merely made reference to them. That does not in itself generate an obligation on the part of the Commission to seek out such documents. So the documents fall into the third category (as identified at para.44) – it would have been lawful for the Commission to locate the documents and consider them but it was not obliged to do so, and failure to do so is not a ground for certiorari. In circumstances where the Commission had published Guidance regarding the means by which supporting material was to be provided in support of observations or submissions, its decision is not rendered invalid by reason of not seeking out and considering material which was cited or referred to by hyperlink in a submission or observation but not provided to the Commission. The substance of the Applicant’s submissions, that there was inadequate capacity in the system was considered.

Lack of Jurisdiction to grant permission to discharge to an overloaded system

46. In Core Grounds 6 and 7, the Applicant contends that the Commission cannot lawfully grant permission for a development where upgrades are required to the wastewater treatment system, because to do so contravenes its duties under Regulation 4(1) of the Surface Waters Regulations (2009/272) by reference to Directive 2000/60/EC the Water Framework Directive and the Urban Wastewater Treatment Directive (91/271). Core Grounds 6 and 7 are particularised together, at paras. 42 – 56 of the Second Amended Statement of Grounds.

Para. 57 related to Core Ground 9, which is withdrawn.

47. Core Grounds 6 and 7 are predicated on the factual assertion that without the upgraded works, there is insufficient capacity in the Wastewater Treatment Plant. At para. 45, the Applicant pleads that the statement in the EIAR, that these works will not affect the development should it go ahead as there is sufficient capacity to accept the development incorrect and that the basis for this statement was the misreading of the Uisce Éireann letter which is the subject of Core Ground 3.

48. Therefore, the complaint as to lack of jurisdiction by reason of the need for upgrade works is in effect similar to the earlier complaint as to the inadequacy of the letter from Uisce Éireann. This complaint is misconceived for similar reasons – a need for minor upgrades does not equate to lack of capacity and therefore does not deprive the Commission of jurisdiction to grant permission under section 9 of the 2016 Act.

49. Furthermore, the Applicant pleads that, by reason of the lack of capacity, the Commission lacked jurisdiction “to grant permission for a development where it determined that upgrades to the wastewater treatment system were required, without requiring that the Proposed Development should not go ahead before those upgrades were completed.”

(emphasis added). Therefore, the pleaded case is not that the Commission had no jurisdiction to grant permission for the proposed development, but that the Commission was required to ensure, by way of condition, that the proposed development would not proceed without the upgrade works, stated by Uisce Éireann to be necessary, being carried out.

50. Regulation 4(1) of the Surface Water Regulations does not operate as a jurisdictional bar in the manner pleaded. I accept that it could be relevant where a project would risk a surface water body becoming (or worsening in terms of being) non-compliant with the relevant environmental quality standards, but a party advancing that assertion must discharge an onus of proof to show that in any given case. The Applicant has not discharged that onus in this case, in the absence of evidence to that effect. Similarly, adverse effects that would give rise to breach of the Water Framework Directive or Article 4 of the Urban Wastewater Treatment Directive or Article 4(3) of the Treaty on European Union have to be established by evidence. There was no evidence before the Commission sufficient to establish any breach of the Directive.

51. There is no evidence that the decision of the Commission has the effect, or potential effect, of increasing overflows otherwise than in exceptional circumstances (which are not prohibited by the Urban Wastewater Treatment Directive, particularly having regard to Condition 13, and the presumption that Uisce Éireann will act lawfully.

52. Condition 13 requires that a water and wastewater connection agreement must be entered into “prior to commencement of development”, and it must be presumed that Uisce Éireann will act lawfully. The letter of 26th November 2021 from Uisce Éireann stated “based upon the details you have provided with your pre connection inquiry and on our desktop analysis of the capacity currently available in the Irish water network bracket S bracket as assessed by Irish water, we wish to advise you that your proposed connection to the Irish water networks can be facilitated at this moment in time.” In the site specific comments, it is stated that wastewater is feasible subject to minor upgrades at the WWTP and that water network extension is required with likely upgrades of the existing Irish water owned pumping station and rising main. The letter clearly recognised the fact that it was not a connection offer, that the availability of capacity may change after the initial assessment, and that a connection agreement cannot be issued until all statutory approvals are successfully in place.

53. There was no evidence before the Commission which rebuts the presumption that Uisce Éireann will comply with its statutory and EU law obligations in deciding whether or not to enter into a connection agreement at the appropriate time. As the Applicant has pointed out (by reference to the Uisce Éireann Annual Environmental Report on Ennis North, 2021, which he referred the Commission to, but did not place before it), as of 2021, the funding was not yet in place to carry out those works.

54. As Humphreys J. held in An Taisce v. An Bord Pleanála (No. 1) [2021] IEHC 254 (para.

33), the validity of the Commission decision on the issue of compliance with the Water Framework Directive has to be judged by reference to the evidence before it.

55. In the event of any issues existing in relation to capacity of the network, and in particular issues which would prevent Uisce Eireann from complying with its obligations under Irish and EU law regarding treatment of wastewater, it must be presumed that Uisce Éireann would refuse to enter into a connection agreement to allow the developer discharge wastewater into the network. Not only does the Applicant’s submission fail to appreciate the presumption that Uisce Éireann will act lawfully, it is predicated on the opposite presumption.

56. The evidence which was before the Commission supports reliance on the presumption rather than rebutting it. The series of emails between the developer and Uisce Éireann which was before the Commission includes the following statement by Uisce Éireann:

“Upgrade works at the WWTP as part of Irish Waters Capital Investment Plan (CIP), under the CIP these works will be carried out by Irish Water. Please note, that in the latest capacity register there is WWT capacity to accept the proposed development.

This will be reviewed again at connection application stage.” (1st July 2022)

57. The assessment notes provided by Asset Planning regarding the wastewater treatment plant for the proposed development stated:

“existing Ennis North WWTP at Clonroadmore has a stated capacity of 31,5000PE and a current load of 24,178PE. However there are some restrictions in the process that limit hydraulic load.

The proposed development will discharge to the Ennis North (main town) collection Network and flow by gravity to Francis St. PS. There is an inlet screen at Francis St and forward feet pumps that may required upsizing to accommodate the increased hydraulic load from the development...

A feasibility study has commenced in 2021 to address the above issues, provide capacity for future growth and ensure compliance with the WWDA. Suggest that the proposed development is forwarded to the designers should a connection agreement be put in place, to ensure that the load is included for in the upgrade design. Time frame for completion of the development as well as phasing to be provided.” (8th July 2022)

58. In addition to Condition 13 which requires the developer to enter into a connection agreement prior to commencing the development authorised by the grant of permission, section 10(6) of the Planning and Development (Housing) and Residential Tenancies Act, 2016 provides “A person shall not be entitled solely by reason of a permission under section

9 to carry out any development.” While the Inspector referred to section 34(13) of the 2000

Act, at para. 10.12.4 of his report, nothing turns on this as the terms of section 34(13) of the 2000 Act and section 10(6) of the 2016 Act are identical in substance.

59. The Applicant submits that this cannot be relied upon to avoid a breach of the State’s obligations under the Urban Wastewater Treatment Directive and the Water Framework Directive, and that what is required is a condition preventing the commencement of the development until upgrade works have been carried out.

60. The Applicant states, at para. 66 of his written submissions that the Inspector had noted that Clare County Council had recommended that if planning permission were granted, it should be conditioned not to proceed until upgrade works have been completed.

61. The conditions imposed by the Commission do not include such a condition, although Condition 13 was imposed, and reference was made to section 34(13) of the 2000 Act (accepted to be an immaterial error as section 10(6) of the 2016 Act is applicable).

62. At para. 10.12.3 of the Inspector’s report, he stated “CE report Comments: In relation to wastewater it is noted that capacity is available to cater for the proposed development but some upgrade works are required and that in the event of permission the development should not proceed until such upgrades take place.” The report of the Chief Executive stated that the planning authority recommended that planning permission should be refused for the proposed development for four stated reasons, none of which related to wastewater discharge or treatment. The issues which the Chief Executive highlighted required particularly close consideration by the Commission, if considered that permission should be granted, were the suitability of a development of the scale, density and typology proposed on this particular site. The Chief Executive’s Report did not propose that a condition be added to prohibit the carrying out of the proposed development prior to completion of any upgrade works to the wastewater network. Under the heading ‘Wastewater connection’, the Chief Executive, noted that Uisce Éireann had confirmed that there is sufficient capacity in the Wastewater Treatment Plant to facilitate the proposed development and that “minor upgrades at the wastewater treatment plant will be required to enable the development”.

The Chief Executive stated:

“the Planning Authority considers that in the event planning permission is granted, no works on the proposed development should proceed unless and until such upgrade works have been completed, though it is acknowledged that this is a matter for Irish water and the applicant to resolve.”

63. Neither the Inspector, nor the Chief Executive recommended a condition of the type which the Applicant maintains was fundamental to the jurisdiction of the Commission to grant permission for the proposed development. Both the Chief Executive and the Inspector referred to the provision that a person shall not be entitled solely by reason of a permission to carry out any development (albeit by referring to section 34(13) of the 2000 Act rather than section 10(6) of the 2016 Act).

64. The essence of the Applicant’s argument is that without imposing a condition preventing the carrying out of the development until the upgrade works had been carried out, the Commission had no jurisdiction to grant permission for the proposed development as that would give rise to a breach of the State’s obligations under the Water Framework Directive and the Urban Wastewater Treatment Directive. The Applicant’s argument is that the Commission was required, as a matter of EU law, to ensure that those obligations of the State are not breached. I do not consider that the Applicant has laid the evidential foundation for that argument, having regard to the evidence which was before the Commission.

65. In any event, the complaint is to a substantial extent incorrectly pleaded. I accept the submission that “The Board does not have obligations under the UWWT Directive.

Regulatory and enforcement obligations relevant to ensuring the State’s compliance with the UWWT Directive have been conferred primarily on the EPA.” As the EPA have been discharged from the proceedings by consent, the complaints in this regard against the Board must fail. Much of the argument advanced under these Core Grounds amount to a challenge to the conclusion by Uisce Éireann that there is capacity in the system for the proposed development. As in Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IEHC 66, Uisce Éireann is not a party to the proceedings.

66. As Holland J. stated, in Heather Hill v. An Bord Pleanála [2022] IEHC 146, (para. 80):

“There is no obligation on the Board to be certain that the development can be carried out before approval can be granted. S.34(13) implies precisely that. Planning permissions are frequently granted on the basis of the intentions of a developer - for example to obtain consents of third parties. If third-party consent is not forthcoming, that does not invalidate the planning permission.”

67. Similarly, the Commission is not obliged to ensure that Uisce Éireann, nor indeed the EPA, will comply with its obligations under national and EU Law in order to grant permission for a development to which section 10(6) of the 2016 Act applies. It is not required to impose a condition which would make it impossible for development to proceed without upgrade works being carried out if those works are necessary for Uisce Éireann to satisfy its obligations. It can, and must, be presumed until the contrary is shown, that Uisce Éireann will comply with its obligations. If a connection agreement is entered into in breach of its obligations under EU Law, that would be a justiciable matter.

Non-transposition

68. In Core Ground 8, the Applicant contends that “The State has failed adequately to transpose A4 of the Urban Wastewater Directive which requires that all waters collected in a wastewater collecting system serving an agglomeration of more than 15,000 population equivalent must be treated prior to discharge. It has failed to prohibit the discharge prior to treatment of waters from overflows in wastewater collection systems.”

69. Insofar as the Applicant seeks to advance an argument that the Water Framework Directive, and in particular Articles 4 and 10 thereof, has not been transposed, that argument is simply not pleaded. That complaint has been advanced in submissions, written and oral, and is included in the Statement of Case, but leave to seek relief has not been granted to advance such an argument. The relief sought at para. D(3) of the Second Amended Statement of Grounds is a declaration that the State has failed to transpose Article 4 of the Urban Wastewater Directive adequately.

70. It is settled law that in the case of an allegation of a failure to properly transpose an obligation under EU law, the requirements of Order 84, rule 20(3) must be strictly observed:

per Murray J. in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28, per McDonald J. in Sweetman v. An Bord Pleanála [2020] IEHC 39, at para. 103, per Barniville J. in Rushe v. An Bord Pleanála [2020] IEHC 122 and per Allen J.

in Joyce-Kemper v. An Bord Pleanála [2020] IEHC 601 (at para. 213 et seq.). In Sweetman McDonald J. held:

“It is not sufficient to plead a case of alleged failure to transpose an EU Directive without properly setting out full particulars of the basis on which it is contended that a specific provision of Irish law fails to comply with a specific obligation imposed by the Directive concerned. An allegation of a failure to transpose an obligation of EU law is a serious and significant allegation and accordingly it is particularly important, in such a case, that the requirements of O.84 r.20(3) should be observed.”

71. Having quoted this passage from Sweetman, Allen J. commented, in Joyce-Kemper:

“In the case of an alleged failure to transpose, the ground must identify with precision the alleged shortcoming and the declaration sought must be framed in terms which, if made, would convey to the Attorney General precisely what the shortcoming is and so precisely what is needed to be done to rectify it.”

72. The Applicant’s pleadings clearly do not satisfy these requirements or set out any proper reasoned basis for a conclusion of non-transposition. The proposed transposition claim here is generalised and does not specify precisely how the Directive has not been transposed properly by the State Respondents. A similar issue arises in terms of a failure to set out in the pleadings precisely how the impugned statutory provisions are contrary to EU law.

73. At Core Ground 8, the Applicant pleads:

“The State has failed adequately to transpose A4 of the Urban Wastewater Directive which requires that all waters collected in a wastewater collecting system serving an agglomeration of more than 15,000 population equivalent must be treated prior to discharge. It has failed to prohibit the discharge prior to treatment of waters from overflows in wastewater collection systems.”

74. At paras. 58 – 61, it is pleaded:

“58. The Court of Justice of the European Union has held that A4 of the Urban Wastewater Directive requires that all waters collected in a wastewater collecting system serving an agglomeration of more than 15,000 population equivalent must be treated prior to discharge, except in exceptional circumstances.

59. Ennis is a town with a population over 25,000 according to the 2022 census, and a population equivalent tending towards 41,000 according to the Development Plan.

60. The Wastewater Regulations do not contain an equivalent provision. Therefore, insofar as the EPA and the Board have failed to prohibit overflows from collection systems and treatment plants, or to refuse to authorise developments that exacerbate such flows, the responsibility lies ultimately with the State.

61. A Declaration of non-compliance is sought in this respect: the existing Regulation is valid so far as it goes, but it does not go as far as is required to give effect to A4 of the Directive.”

75. The complaint regarding Article 4 of the Urban Wastewater Treatment Directive, is as the State submits “wholly unparticularised”. The pleadings fail to engage with the transposing legislation or identify any inadequacy or shortcoming in that regard. As the State Respondents have submitted, their Statement of Opposition, which was filed in June 2024, had clearly put the lack of particularisation of Core Ground 8 in issue. The Applicant did not seek to amend the Second Amended Statement of Grounds upon receipt thereof.

76. Whilst the Applicant submits that the case he seeks to make in Core Ground 8 is perfectly clear, and that the Court must take a fair and reasonable approach, his argument is that the Wastewater Regulations (the Urban Wastewater Regulations 2001, which the State Respondents rely upon) do not go far enough to transpose Article 4 of the Urban Wastewater Directive. This argument was not elaborated in the written or oral submissions. At para. 90 of the written submissions, the Applicant submits that transposition of the Article 10 of the Water Framework Directive and “the requirements of the UWWT Directive in relation to overflow” is inadequate if the Commission was not required to refuse permission as a matter of a national law, having regard to the circumstances of the present case. Although it would not have satisfied the pleading requirement, the Applicant did not seek to engage with the detailed written submissions on behalf of the State Respondents, setting out the basis on which it is submitted that the Directive has been transposed into Irish law.

77. I accept the proposition that a Statement of Grounds must be read in a fair and reasonable way. However, the Applicant has not satisfied the pleading requirements to seek a declaration that the State has failed in its obligations under EU law to properly transpose Article 4 of the Urban Wastewater Directive. The allegation of failure to transpose a Directive has been described by McDonald J. in Sweetman as a serious and significant allegation, and for that reason, a party making such an allegation is required to provide full particulars of that claim. As noted in Joyce-Kemper, having regard to the judgment of the CJEU in C-66/06 Commission v. Ireland, “an examination of the facts will allow an assessment to be made as to whether there was compliance with the rules but any case as to a failure to transpose must be established by a juxtaposition of the EU law and the domestic law, an analysis of the requirements of the former and the effects of the latter, and the identification of the alleged gap.”

Failure to notify the EPA

78. By Core Ground 10 and 11, the Applicant complains firstly that “The Board Decision is invalid because the EIA carried out by the Board was invalid because it failed to notify relevant authorities likely to be affected by the Decision contrary to A6(1) of the EIA Directive, namely the EPA which, as licensing authority for the discharges from the Ennis North wastewater treatment plant, is likely to be concerned by a project that increases the input into that plant.”

79. Secondly the Applicant contends that “In respect of Ground 10 above, R295(1)(n) of the 2001 Regulations is defective in not requiring the EPA to be notified of an activity that is likely to impact on a discharge from a wastewater treatment plant authorised by it under the Wastewater Licensing Regulations, which the Board accepted the Proposed Development was likely to do.”

80. At para. 66 of the Statement of Grounds, the Applicant pleads that the Commission had the power under Regulation 302(6)(b) of the 2001 Regulations to request the EPA to make a submission or observations or elaborate upon a submission or observations in relation to an application at any time before making its decision. The Applicant’s case is that by not making such a request, the Commission failed to comply with its obligation under Article 4(3) of the Treaty on European Union to ensure compliance with Article 6 of the EIA Directive.

81. As in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors [2022] IEHC 700, the EIA Directive point is pleaded against the Commission and claims invalidity of the Commission’s decision because it failed to do something which the Applicant asserts is required by the Directive. The initial difficulty is that Article 6(1) of the

EIA Directive is addressed to Member States, not individual competent bodies. The Commission’s role is determined by statute, and here the relevant provision sets out the circumstances in which the Commission should notify the EPA of a particular application.

82. As the Commission points out, “Under Article 295(1)(n) of the 2001 Regulations, the EPA is required to be notified where the proposed strategic housing development includes an activity requiring an integrated pollution control licence or a waste licence. However, the proposed development does not include an activity requiring an integrated pollution control licence or a waste licence.”

83. I will assume, in favour of the Applicant, that there is an implied power to circulate additional observations requested under the discretionary power in Article 302(6)(b) of the 2001 Regulations (which is denied by the Commission), and I will therefore assume that the Commission could have voluntarily notified the EPA under that provision.

84. I will even assume for present purposes that the Commission was obliged to do so if Article 6(1) was to be complied with. Article 6(1) provides:

“Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent, taking into account, where appropriate, the cases referred to in Article 8a(3). To that end, Member States shall designate the authorities to be consulted, either in general terms or on a case-by-case basis. The information gathered pursuant to Article 5 shall be forwarded to those authorities. Detailed arrangements for consultation shall be laid down by the Member States.”

85. The conclusion of such an assumption is that the EPA should have been notified specifically even if that went beyond the requirements for notification in Article 295 of the 2001 Regulations. This is the case advanced by the Applicant at para. 66 of the Statement of Grounds.

86. Assuming therefore that there was a breach of the Regulations, there is still the question of whether such a breach was a technical breach which does not warrant certiorari. In my view that is the case here for a number of reasons:

(i) the EPA were in fact consulted in relation to the scope of the EIAR, albeit by the Developer – see Chapter 1 of the EIAR (Volume II) at paragraph 1.4 (allowing for the typo of referring to the “Environmental Protection Authority”)

Therefore the EPA was aware of this planning application. No complaint has been made regarding publication of the application generally;

(ii) the EPA (who were a party to these proceedings) have not raised any complaint about not being notified (a point acknowledged by the Applicant in his written submissions);

(iii) the Applicant agreed to release the EPA from the proceedings despite the complaint under this heading.

87. So even assuming that the Applicant is correct on his legal submission, this is not, in the particular circumstances, a breach of the Regulations which would warrant the grant of certiorari.

88. The complaint against the transposition adequacy of the legislation therefore fails because I am proceeding on the basis of an assumption that the Applicant is correct in his contention that the Commission was obliged by the Regulations to notify the EPA. The Applicant submits that Regulation 302(6)(b) gives the Commission the means to comply with the obligation imposed on the State by Article 6(1) of the EIA Directive. I have not decided otherwise. Since the Applicant fails in challenging the validity of the Commission’s decision applying the assumption that it had the power to notify the EPA, the question whether the State has adequately transposed Article 6(1) does not arise for consideration; it would only arise if the contrary assumption were made – if the Applicant were wrong in how he interpreted the Commission’s power to notify the EPA. It is appropriate to leave the question whether the State was entitled to require the EPA be notified only in specified cases (where an integrated pollution control licence or a waste licence is required by the proposed development) for determination in a case in which that decision would affect the determination of the proceedings.

Suggested CJEU reference

89. The Applicant’s Proposed Questions are as follows:

“Having regard to A4, A10 and A11 of the Water Framework Directive, A4 of the Urban Wastewater Treatment Directive, A4(3) of the Treaty on European Union, and caselaw arising therefrom, can a national competent authority that is responsible for authorising projects (the Board) lawfully grant development consent to a private developer (Glenveagh) for a housing project that will discharge wastewater to a wastewater collecting system that overflows at unknown times and in unknown quantities (Ennis North WWTP) and that the separate competent authority operating that treatment plant (Uisce Eireann) has failed, since 2010, to upgrade in accordance with the terms of a separate consent granted to it by a third competent authority (the EPA) pursuant to which it operates that treatment plant?

Does A6(1) of the EIA Directive (2011/92) require a national authority that is responsible for granting consent for projects, in this case a housing project requiring EIA, to give notice of the application for consent to the national authority responsible for authorising the operation of the local wastewater collection and treatment systems into which wastewater from the project will discharge (pursuant to Directive 91/271 and A11 of the Water Framework Directive)? (And is the first national authority to be treated as one of the organs of the State, legislative, administrative or judicial for this purpose? And is that first authority required by general principles of European Union law to set aside any provision of national law which would prevent it from giving such notice.”

90. These questions simply do not arise. The first question is essentially an attempt to ask the CJEU to decide the case, based on a number of factual and legal presuppositions which cannot be sustained, having regard to the evidence which was before the Commission. It lacks any form of precision as to the specific question of interpretation of EU law that allegedly arises and is therefore not a permissible form of question under Article 267 of the TFEU.

91. The second question is perhaps more relevant at a broad theoretical level, but I am prepared to proceed on the assumption that the Applicant is correct about the point being made in relation to the obligation to notify the EPA. Therefore, it is neither necessary nor helpful to obtain the answer to that question from the CJEU in order to decide the issues which need to be decided to determine this case. A party cannot go to the CJEU on a point being dealt with in that party’s favour any more than a party can go to an appellate court in relation to a point on which that such party has succeeded. As I have explained at paras.69 -70, even assuming the EPA ought to have been notified, I would decline to grant certiorari.

Therefore, a reference to the CJEU is and would be unnecessary, which is contrary to the jurisdictional requirement for a reference in Article 267 of the TFEU.

Conclusion

92. In summary, the complaint about material contravention of zoning has already been rejected in O’Donnell v. Bord Pleanála [2023] IEHC 381 and Save Roscam v An Bord Pleanála [2024] IEHC 335. The Applicant accepts that there is no basis for not following the authorities. Therefore, he cannot succeed on Core Ground 1.

93. The complaint about the letter from Uisce Éireann is based on the incorrect premise that a need for minor works amounts to a statement that capacity is lacking. That would be an unduly restrictive reading of the Regulations. I am satisfied that the application was not invalid having regard to the terms of the Uisce Éireann letter.

94. The failure to have regard to relevant matters as pleaded at Core Ground 5 has not been demonstrated on the evidence.

95. The Commission’s jurisdiction to grant the permission sought was not limited to granting permission subject to a condition preventing the commencement of the development until after the upgrade works are carried out. Furthermore, the evidential basis for contending that the permission granted breached the State’s obligations under the Urban Wastewater Treatment Directive or Water Framework Directive is absent. The validity of the impugned

decision must be assessed on the basis of the evidence before the Commission.

96. The non-transposition complaint regarding Article 4 of the Urban Wastewater Treatment Directive is wholly unparticularised and impermissible. Therefore, the application for a declaration of non-transposition must fail.

97. As regard the failure to notify the EPA, I will assume in favour of the Applicant that there was an error on the part of the Commission in not requiring the EPA to be notified of the application. However, in all the circumstances, this is not a basis for granting an order of certiorari in the discretion of the Court. I rely in particular on the fact that the developer had notified the EPA of the proposed application in relation to the general scope of the EIAR, the EPA did not complain that it had not been notified of the application despite having been joined in the proceedings and being aware of the application, and of the Commission’s

decision to grant permission. Furthermore, the Applicant consented to discharge the EPA from the proceedings.

98. The answer to the questions which the Applicant proposes should be referred to the CJEU are unnecessary, and as such, a reference would not comply with Article 267 of the TFEU.

Order

99. For those reasons, I shall make an order dismissing the proceedings.

100. The matter is to be listed before me on 19th January 2026, on which date application can be made for any consequential orders.