High Court dismisses challenge to planning decision for telecom mast, ruling it not an EIA project.

[2025] IEHC 725

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000932]

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT

ACT 2000

BETWEEN

SHAMSA DOYLE

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

ON TOWER IRELAND LIMITED

NOTICE PARTY

Date of impugned decision: 28 May 2024

Date proceedings commenced: 19 July 2024

Date of main hearing: 19 November 2025

Date draft judgment circulated: 4 December 2025

JUDGMENT of Humphreys J. delivered on Wednesday the 17th day of December 2025

1. Telecoms masts are not specified in Annex I or II to Directive 2011/92/EU of the European

Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain

public and private projects on the environment as amended by Directive 2014/52/EU of the European

Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment

of the effects of certain public and private projects on the environment (the EIA directive) as being

environmental impact assessment (EIA) projects. In the absence of any definition of “urban

development”, the commission took the view that the mast in the present case fell outside that

notion. The primary question here is whether the applicant has demonstrated an invalidity in that

decision.

Geographical context

2. The proposed development (https://www.pleanala.ie/en-ie/case/317745) consists of a new

21 m monopole telecommunications support structure carrying antennas, dishes, associated

equipment, ground-based equipment cabinets, fencing and all associated site development works

for high-speed wireless data and broadband services. This is in the curtilage of a protected structure

at Laytown Railway Station, Laytown, Ninch, Co. Meath.

Facts

3. Meath County Council (the council) adopted its Development Plan 2021-2027 (the CDP) in

September 2021, and it came into effect in November 2021. The zoning for Laytown is shown on

the Laytown land use zoning map sheet 05.4a and heritage map 05.4b.

4. On 3 March 2023, the notice party applied for permission to develop a mobile phone mast

in the station car park of Laytown station. The application for permission contained an application

form, cover letter, planning statement, landowner consent, newspaper notice, site notice, letter from

Three Ireland confirming base stations comply with International Commission on Non-Ionizing

Radiation Protection (ICNIRP) guidelines, photomontages, radiofrequency (RF) technical justification

report and drawings.

5. On 3 March 2023, the council notified prescribed bodies of the application. Between 27 and

31 March 2023, Protect East Meath and Anthony Keenan made submissions. Between 4 and 24 April

2023, various council departments reported on the proposed development.

6. On 26 April 2023, the council planner reported and decided further information was required.

The council requested that information (a Natura impact statement (NIS) screening report).

7. On 21 June 2023, the notice party submitted the report sought and on 29 June 2023, the

council determined the report did not amount to significant further information and did not need to

be circulated. On 11 July 2023, the council’s planner reported his views of the proposed development

and on 18 July 2023, the council gave its decision.

8. On 8 August 2023, Protect East Meath appealed that decision, and on 10 August 2023, the

commission acknowledged the appeal. On 23 August 2023, the council submitted its planner’s report

on the appeal. On 24 August 2023, the commission requested a copy of the council’s conservation

officer’s report.

9. Between 27 and 31 August 2023, submissions were made on the appeal by Peadar Laighléis,

the applicant, Laytown Mast Action Group (signed by the applicant), Meath County Council, Brian

and Teresa Stack, and FP Logue on behalf of Protect East Meath.

10. On 5 September 2023, the notice party replied to the appeal (by document dated 2

September 2023), and its reply was accompanied by photomontages and revised photomontages,

revised and original drawings, updated technical justification and cultural heritage report of Courtney

Deerie.

11. The revised drawings reduced the height of the structure to 21 metres.

12. On 12 September 2023, the commission sent a letter inviting further submissions and

submissions were made between 23 September and 2 October 2023 by Colin Blake, Protect East

Meath Ltd, the applicant, Peadar Laighléis, Laytown Mast Action Group (attaching report by Anú

Heritage (Caroline Kearns Gethings)), and by Brian and Teresa Stack.

13. The commission appointed a planning inspector to prepare a report on the third-party

appeal. The inspector’s report, dated 5 January 2024, records that the inspector carried out a site

inspection on 14 December 2023 and recommended that permission be granted subject to

conditions.

14. On 26 April 2024, the commission held a meeting (BM-004022-24) in respect of the appeal.

15. The commission direction (BD-016368-24) dated 21 May 2024 records that the commission

considered the appeal and the inspector’s report and decided to grant permission generally in

accordance with the inspector’s recommendation.

16. By order of the commission dated 28 May 2024 (ABP-317745-23), the commission granted

permission subject to eight conditions.

Procedural history

17. The proceedings were issued on 19 July 2024.

18. The matter was first listed on 29 July 2024 before Holland J., and adjourned to 9 September

2024.

19. On 9 September 2024, leave was granted with liberty to file an amended statement of

grounds.

20. The applicant issued its motion for judicial review on 18 September 2024, returnable before

the court on 14 October 2024.

21. The commission sought to have a number of cases relating to mobile phone mast

developments determined as test cases for a series of grounds that were emerging in similar cases,

and ultimately following directions from the court, the applicant and commission agreed that this

matter would be one of those cases. The case was listed for this purpose on 30 June 2025, and was

given a date for hearing on 19 November 2025.

22. Thereafter the commission filed its opposition papers on 22 September 2025, and the notice

party did likewise on 30 September 2025.

23. The applicant served replying affidavits by herself, Kent Chamberlin and Caroline Kearns

Gethings (unsworn) on 21 October 2025, and filed them (sworn) on 30 October 2025, with the

exception of the affidavit of Kent Chamberlin which was filed on 10 November 2025. There is a

dispute about the additional affidavits filed by and on behalf of the applicant (see below).

24. The notice party filed a replying affidavit of Mark Perrem on 31 October 2025.

25. Also on 31 October 2025, the applicant served its written submissions.

26. The commission objected to the applicant’s additional affidavits which were one week later

than the two weeks after the notice party’s papers provided for in directions, and requested that the

applicant seek leave to file them.

27. The matter was called over on 3 November 2025, and the applicant duly sought leave to file

the supplemental affidavits, to which the commission objected. The applicant also applied for liberty

to cross-examine in respect of the affidavits – the commission and notice party also objected to that.

I granted liberty to file and issue a motion to cross-examine returnable to the trial, both de bene

esse and without prejudice to any objection the commission and notice party might raise at that

time. In fact the applicant did not issue such a motion.

28. The applicant served its written submissions on 30 October 2025.

29. The commission served its written submissions on 14 November 2025.

30. The notice party served its written submissions on 17 November 2025.

31. The matter was then heard on 19 November 2025. Judgment was reserved at the end of

that hearing. I would like to record my thanks to all of the lawyers involved for their unfailingly

courteous, professional and helpful assistance. As I have previously sought to make clear, insofar

as any points advanced are not being accepted in this or any other given judgment, that is solely to

do with the inherent merits of such points and is no reflection on those instructed to convey such

points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to

all concerned.

32. On 4 December 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.

33. Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile

in writing before the mention date specified, and should not be to reargue the substance

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

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

issues;

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

both modes;

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

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

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

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

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

such material should not lead to the proposed conclusion; identifying points that the

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

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

party considers could beneficially be decided;

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

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

for; and

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

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

reason.

34. 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 specified 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).

35. For the avoidance of doubt, draft judgments are not public domain materials and, while they

can be shared between the lawyers concerned and their clients, they are not intended for publication

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

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

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

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

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

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

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

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

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

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

36. The mention date to review matters following the foregoing was to be 15 December 2025.

37. The commission and developer made helpful comments regarding typographical/ minor

corrections. The applicant indicated an intention to seek leave to appeal.

Relief sought

38. The reliefs sought are as follows:

“1. An Order of Certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986

as amended and Section 50 of the Planning and Development Act 2000 as amended quashing

the Order of the First Respondent, An Bord Pleanála (the Board), dated 28 May 2024, file

reference ABP-317745-23, to grant permission for a proposed 24m high mobile phone mast

at Laytown, County Meath, reduced by the Developer on appeal to a 21m mast, referred to

in the Application as:

a new 24 metres Monopole telecommunications support structure carrying antennas, dishes,

associated equipment, ground-based equipment, cabinets, fencing and all associated site

development works for high-speed wireless data and broadband services. This development

will take place in the Curtilage of a Protected Structure.

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

and insofar as legally permissible and appropriate) persons similarly situated and/or of the

legal duties and/or legal position of the Respondents as the court considers appropriate.

3. A stay on works being carried out pursuant to the impugned Order pending the

resolution of these proceedings.

4. A declaration pursuant to Section 7 of the Environment (Miscellaneous Provisions)

Act 2011 as amended, Order 99 of the Rules of the Superior Courts, and / or the inherent

jurisdiction of the Court confirming that Section 50B of the Planning and Development Act

2000 as amended, Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011

as amended, and / or Article 9 of the Convention on Access to Information, Public

Participation in Decision-Making and Access to Justice in Environmental Matters (‘The Aarhus

Convention’) apply to the within proceedings.

5. Further or other relief.

6. Costs.”

Grounds of challenge

39. The core grounds of challenge are as follows:

“E1 Core grounds

National Law Grounds

1. The Board Decision is invalid because the Application for permission was invalid in

that the plans and elevations submitted did not comply with R23 PDR. The 1:500 scale plans

submitted failed to show features on, adjoining or in the vicinity of the land or structure to

which the application relates contrary to R23(1)(a) PDR. The 1:100 scale plans submitted

failed to show both the level or contours of the land and the proposed structures, relative to

Ordnance Survey datum or to any temporary local benchmark, contrary to R23(1)(c) PDR.

The elevations failed to show the main features of any buildings which would be contiguous

to the proposed structure if it were erected, whether on the application site or in the vicinity,

contrary to R23(1)(d) PDR.

2. The Board Decision is invalid because the Application for permission was invalid in

that adequate public notice was not given, contrary to R17 and R19(1) PDR.

3. The Board Decision is invalid because the Board misinterpreted the Antenna

Guidelines, and as a result failed to determine the appeal before it in accordance with the

Antenna Guidelines as required by policy INF POL 56 of the Development Plan. It thereby

misdirected itself in law as to the proper interpretation of the Development Plan, failed to

have any or any proper regard to the Development Plan contrary to S34(2), contravened

the Development Plan without taking a decision to do so and without determining whether

such contravention was material, thereby failing to comply with S37(2) PDA. It also or in

the alternative misdirected itself in law as to the proper interpretation of the Antenna

Guidelines, and / or failed to have regard, adequate regard, or lawful regard to them contrary

to S28 PDA. In the further alternative it failed to give any, any adequate, or any lawful

reasons to explain its interpretation of the Development Plan and Antenna Guidelines and

the Development Plan, and / or how or whether it considered the Proposed Development

accorded with that Plan and / or those Guidelines. In so doing it acted contrary to S34(10)

and S37(1) of the 2000 Act.

4. The Board failed to comply with S146(5) PDA in that it failed to place on its file page

2 or any subsequent page of its EIA ‘Form 1, EIA Pre-Screening [EIA not submitted]’.

European Law Ground

5. The Board erred in law in screening for EIA, by determining that the Proposed Mast

did not fall within a class of development set out in Schedule 5 Part 2 PDR (interpreted in

accordance with Annex II of the EIA Directive) for which EIA may be required.”

40. Core ground 4 was withdrawn.

The impugned decision

41. The impugned decision provides as follows:

“Decision

GRANT permission for the above proposed development in accordance with the

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

subject to the condition(s) set out below.

Reasons and Considerations

Having regard to-

(a) the National Planning Framework,

(b) the TU Transport and Utility Infrastructure land use zoning objective pertaining to the

site in the Meath County Development Plan 2021-2027,

(c) the location of the monopole structure on the western side of the rail line, a remove from

established residential areas,

(d) Policies INF POL 54, 55, 56, 57, 58, 59 and 60 and Objectives INF OBJ 51, 52 and 53 of

the planning authority as set out in the Meath County Development Plan 2021-2027,

(e) the established character, being of an industrial/utilitarian landscape nature, of

[Laytown] Railway Station including the area surrounding the Protected Structure,

(f) the utilitarian nature of the monopole structure,

(g) the ‘Courtney Deery - Cultural Heritage Impact Assessment Report’ (for the applicant),

the planning authority's Architectural Conservation Officer Report and the Anu Heritage

Report for the observers,

(h) the ‘Architectural Heritage Protection - Guidelines for Planning Authorities’ (Department

of Arts, Heritage and the Gaeltacht, 2011 ):

(i) Policies HER POL 14, 15, 16 and 17 of the planning authority as set out in the Meath

County Development Plan 2021-2027,

(j) the reduction in height to 21 metres at appeal stage and photomontages indicating

amended height,

(k) the separation distance between the application site and the coastline and the nature of

the intervening townscape,

(I) the updated Appropriate Assessment Screening Report submitted at appeal stage which

included consideration of an obstacle light at the top of the structure,

(m) the Telecommunications Antennae and Support Structures Guidelines for Planning

Authorities issued by the Department of the Environment and Local Government in July,

1996 and Circular Letter PL 07/12 issued by the Department of the Environment, Community

and Local Government in 2012,

(n) the scale, nature and design of the proposed development, and

(o) the report of the Inspector,

it is considered that the proposed development would be in accordance with national policy

for telecommunications infrastructure and the provisions of the Meath County Development

Plan 2021-2027. It is also considered that, subject to compliance with the conditions set

out below, the proposed development would not adversely impact the character of the area,

would not adversely impact on the architectural character, setting or heritage of [Laytown]

Railway Station (including the protected structure at this location), would not interfere with

any protected views or prospects or Landscape Character Areas of high sensitivity as

identified in the Meath County Development Plan 2021-2027, and would not seriously injure

the residential amenities of the area. The proposed development would, therefore, be in

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

The Board considered that the development is a project for the purposes of the

Environmental Impact Assessment Directive. However, the Board concluded that the

proposed development does not fall within a class of development set out in Part 1 or Part

2 of Schedule 5 to the Planning and Development Regulations 2001, as amended, and

therefore no preliminary examination, screening for Environmental Impact Assessment or

Environmental Impact Assessment is required.

Appropriate Assessment Screening

The Board noted that the proposed development is not directly connected with or necessary

to the management of a European Site.

In completing the screening for Appropriate Assessment, the Board accepted and adopted

the screening assessment and conclusion in the Inspector's report in respect of the

identification of the European sites which could potentially be affected, and the identification

and assessment of potential significant effects of the proposed development, either

individually or in combination with other plans or projects, on these European sites in view

of the site's Conservation Objectives. The Board was satisfied that the proposed

development, either individually or in combination with other plans or projects, would not

be likely to have a significant effect on the River Nanny Estuary and Shore Special Protection

Area (Site code: 004158), or any other European site, in view of the site's conservation

objectives.

This screening determination is based on the following:- the nature of the works proposed,

the separation distance between the application site and the said River Nanny Estuary and

Shore Special Protection Area (Site code: 004158), the nature of the intervening space, the

conservation objectives of the European site, the lack of a hydrological connection between

the application site and the European site, the absence of a source-pathway receptor chain

between the application site and the European site, and the absence of any ex-situ issue

arising.

Conditions

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

particulars lodged with the application as amended by the further particulars submitted to

the planning authority on the 26th day of June 2023 and by the further plans and particulars

received by An Bord Pleanala on the 5th day of September 2023, except as may otherwise

be required in order to comply with the following conditions. Where such conditions require

details to be agreed with the planning authority, the developer shall agree such details in

writing with the planning authority prior to commencement of development and the

development shall be carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.

2. The monopole structure shall not exceed 21 metres in height as indicated in drawings and

documentation submitted to the Board on the 5th day of September 2023 except to comply

with condition number 3 hereunder.

Reason: In the interest of clarity and visual amenity

3. The monopole structure can be fitted with suitable obstacle lighting as close to the top of

the structure as possible and visible from every angle in azimuth unless otherwise agreed in

writing with the planning authority prior to the commencement of development.

Reason: In the interest of orderly development and public safety

4. Surface water drainage arrangements shall comply with the requirements of the planning

authority for such services and works.

Reason: In the interest of public health.

5. The developer shall allow, subject to reasonable terms, other licensed mobile

telecommunications operators to co-locate their antennae onto the subject structure.

Reason: In order to avoid the proliferation of telecommunications structures in the interest

of visual amenity.

6. Details of the specific colour finish for the telecommunications structure shall be submitted

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

development.

Reason: In the interest of the visual amenities of the area and to protect residential

amenity.

7. On decommissioning of the telecommunications structure, the structure and all ancillary

structures shall be removed and the site reinstated at the developer's expense.

Reason: In the interest of clarity.

8. Site development and building works shall be carried out only between the hours of 0800

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

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

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

authority.

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

The eight-fold test for judicial review

42. As set out in Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28

November 2025), there is an eight-fold path to obtaining relief by way of judicial review. These

tests are cumulative, and relief should only be granted if the proceedings meet all of the following:

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

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

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

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

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

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

that while standing can relate to issues such as ius tertii it does not generally require

prior participation in the process insofar as there is an EU/Aarhus Convention

dimension);

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

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

primarily related to failure by the decision-taker to fulfil her autonomous

obligations);

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

relief;

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

lacking real-world consequences, bearing in mind that if error is demonstrated, then

the onus shifts to the opposing parties to show harmlessness; and

(viii) the exercise of discretion properly favours the making of the order (such as

considering the proportionality of the order sought), bearing in mind that discretion

is limited in an EU law context.

43. The most pertinent issues here are workability and onus of proof and the doctrines of

harmless error and discretion.

44. Before dealing with the tests in detail, some general comments are worth noting at this

juncture:

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

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

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

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

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

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

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

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

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

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

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

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

26 September 2025) per Farrell J. at 11.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Unreported, Birmingham J., 27 June 2008) at para. 27; Heathrow Airport Ltd [2020]

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

Hodge and Lord Sales SCJJ. at 121; Moran v. An Bord Pleanála [2025] IEHC 510

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

speaking evaluative judgements involving a significant degree of planning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2024) at §57).

(v) Thus a decision should not be read as invalid if a valid reading is reasonably

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

[2020] IEHC 41 (Unreported, High Court, 29 January 2020) at §7; Mulloy v. An Bord

Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12 March 2024) at

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

Court, 1 November 2023)); Save Roscam Peninsula CLG v. An Bord Pleanála (No.

6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024) at §64); thus for example

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

the decision can be read as valid – E.M. v. Minister for Justice and Equality [2024]

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

Woulfe, Murray and Donnelly JJ. concurring); Friends of Killymooney Lough v. An

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

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

per Farrell J. at 13.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025) per Farrell J. at 13.

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

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

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

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

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

make a balanced and reasonable assessment of the overall sustainability of

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

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

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

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

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

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

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

Test II – Workability

45. 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. (MacMenamin, Charleton,

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

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

produce a workable and coherent interpretation, thereby avoiding interpretations

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

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

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

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

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

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

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

concluded that such an interpretation such render the legislation effectively

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Test VI – Onus of proof

46. 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).

Test VII – Harmless error

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JJ., 16 October 2025).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

absence of a mandatory provision that compels such an approach.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging

tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en

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

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

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

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

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

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

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

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

Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging

tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en

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

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

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

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

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

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

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

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

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

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

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

“conceivable”, but not everything is reasonable.

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

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

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

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

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

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

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

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

Finlay Geoghegan JJ. concurring).

(vi) The determination of whether a particular error would have made a difference must

also be carried out by reference to the totality of the material before the decision-

taker, considered as a whole, as well as to such further material as the court may

receive in the proceedings: Carrownagowan Concern Group v. An Bord Pleanála (No.

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

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

also relevant: Altrip.

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

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

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

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

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

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

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

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

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

Test VIII – Discretion

48. 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. in Friends [2021] IECA 317 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, [2021] 1 I.R. 384 at para. 78)”: O’Connell v. Behan [2021] IECA 186

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

Pilkington JJ. concurring) at 43.

(l) Any other relevant circumstances.

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

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

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

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

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

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

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

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

party doesn’t plead that.

Preliminary issues

49. As regards the preliminary issues raised, the parties’ positions are as follows:

“Date of Filing of Affidavits

The Commission objects to what it terms the late filing of the Applicant’s replying Affidavits,

and says they are filed ‘well outside’ the time limited for filing.

Applicant

The Applicant’s replying Affidavit was only filed one week later than the agreed directions

provided for, and that is no greater than the delay in filing of the Commission’s opposition

papers. The only reason this is an issue at all is because the date for hearing was set before

the Commission had filed its opposition papers, and because the Commission took 3 months

(1 of which was Court vacation) to file its papers. This was on top of 9 months (October

2024 to June 2025) after service with no opposition papers. It would be unfair and

inequitable, and contrary to the Applicant’s right to fair procedures under Irish and EU law,

if the Applicant were to be penalised for such a short delay after such a long delay by the

Commission (and Notice Party, which waited until the Commission had filed its opposition,

though there was no requirement for it to do so.) The Applicant is entitled to equality before

the law and to a procedure that is fair and equitable under A40.1 and A34 of the Constitution,

under A11 of the EIA Directive, under A20 of the Charter on Fundamental Rights of the

European Union and under A9 of the Aarhus Convention. It would be a breach of these

rights if she were to be penalised for delays which are much shorter than the Commission’s,

in circumstances where delay is only an issue because of the Commission’s earlier delays,

and where it does not suffer an equal or greater penalty.

Commission

What is addressed here is the pleaded case. No attempt is made to address anything based

on affidavits which are inadmissible, and in this respect the three affidavits of Shamsa Doyle,

Caroline Kearns Gethings and Kent Chamberlain are simply not replying affidavits nor,

indeed, do they even profess to be same in any real sense. It is simply not compatible with

modern and ordered litigation that this sort of approach can be taken by an Applicant (and

the sheer volume and technical nature of the material exhibited speaks for itself), less than

a month before a hearing date in this list and (assuming one counts from the earliest affidavit

filed on 30 October 2025) some 13 working days pre-hearing. The complaints about

inequality of arms simply does not arise. There is nothing at all in the facts that explains

why this was not done earlier, since they do not actually reply to anything and prima facie

comprise matters which were known or should have been known to the Applicant from the

outset. The Applicant is not being penalised for a short delay by these affidavits being ruled

inadmissible, should the Court so rule – rather, the Applicant is being held to Order 103.

Notice Party

The Notice Party objects to the admission of the Applicant’s three additional affidavits,

namely the further affidavit of the Applicant and the affidavits of Caroline Kearns Gethings

and Dr Kent Chamberlin on the following grounds:

The affidavits were filed after the close of pleadings, without prior liberty from the Court,

and do not qualify as ‘replying’ affidavits within the meaning of Order 103 RSC or Practice

Direction HC126. They seek to introduce a new evidential narrative rather than rebut specific

matters raised in opposition.

The procedural framework for judicial review allows replying evidence only to meet a point

first raised by the respondent. None of the three affidavits meets that test. Their

introduction at this stage undermines the orderly conduct of proceedings and is contrary to

the approach endorsed in Fahybeg Windfarm Opposition Group v An Bord Pleanála [2025]

IEHC 310.

The Applicant provides no explanation as to why the evidence, if relevant, was not furnished

at the outset. As held in Reid v An Bord Pleanála (No. 1) [2021] IEHC 230, new affidavits

are only admissible in limited categories (e.g. where the matter could not reasonably have

been raised earlier or is jurisdictional in nature). None of these criteria is satisfied.

In particular, the affidavit attributed to Dr Chamberlin fails to identify his qualifications or

the scientific basis of his opinions and contains extensive legal argument rather than expert

analysis. The attached ‘New Hampshire Report’ lacks recognised scientific reliability. Such

evidence is inadmissible or of negligible probative value (Duffy v McGee [2022] IECA 254).

Even if admitted, the late affidavits do not go to any jurisdictional or procedural error. They

amount to ex post facto evidence seeking to bolster the merits of the Applicant’s case, rather

than addressing the lawfulness of the Commission’s decision.

The Notice Party’s own supplemental affidavit (Mark Perrem, 31 October 2025) was sworn

strictly to rebut a specific factual averment made in the Applicant’s late material and is filed

expressly without prejudice to this objection.

Accordingly, the Notice Party submits that the late affidavits should be ruled inadmissible in

their entirety, or alternatively accorded no weight, and that the Court should proceed on the

evidence properly before the Commission at the time of its decision.

Introduction of New Evidence

The Commission objects to the introduction of expert evidence at this stage in the

proceedings.

Applicant

The Affidavits of Caroline Kearns and Kent Chamberlin reply to the Commission’s opposition

which argues that there is no expert evidence of visual impacts or health impacts from

mobile phone masts. The new Affidavits do not seek to introduce new issues into the case:

they merely confirm that there is a factual basis for the arguments advanced to the

Commission, insofar as that may be necessary to the proof of the case.

There is no rule of court that says that new evidence cannot be introduced to address matters

raised in opposition. If that were so, the rules on discovery according to which discovery

normally arises after a defence has been filed would not apply to judicial review, and in fact

they do, even if discovery is rarely necessary.

An Applicant is entitled to introduce expert evidence to support an existing ground outside

the 8 week period for instituting judicial review, and ‘no special leave is required to file such

an affidavit’ provided there is no attempt to extend the grounds, in which case an application

to amend would also be required (Hayes v EPA, [2024] IECA 162 §127).

Thus the Applicant maintains in the first instance that she is entitled to bring her case on

the basis of the submissions put to the Commission in the appeal, and she does not have to

support it with additional expert evidence. In the alternative, insofar as expert evidence is

required, she is entitled to introduce it in reply as she has done here.

Commission

This is a somewhat remarkable point for the Applicant to make. The Applicant actually says

these affidavits do not introduce new matters (which is self-evidently wrong) but actually

says they are part of the necessary proofs of her case. These affidavits do not reply to

anything, and the points made above apply with equal force here.

Notice Party

Contrary to the Applicant’s position, the affidavits introduce new matters.

The Applicant provides no explanation as to why the evidence, if relevant, was not furnished

at the outset. As held in Reid v An Bord Pleanála (No. 1) [2021] IEHC 230, new affidavits

are only admissible in limited categories (e.g. where the matter could not reasonably have

been raised earlier or is jurisdictional in nature). None of these criteria is satisfied.

In particular, the affidavit attributed to Dr Chamberlin fails to identify his qualifications or

the scientific basis of his opinions and contains extensive legal argument rather than expert

analysis. The attached ‘New Hampshire Report’ lacks recognised scientific reliability. Such

evidence is inadmissible or of negligible probative value (Duffy v McGee [2022] IECA 254).

Even if admitted, the late affidavits do not go to any jurisdictional or procedural error. They

amount to ex post facto advocacy seeking to bolster the merits of the Applicant’s case rather

than address the lawfulness of the Commission’s decision.

The Notice Party’s own supplemental affidavit (Mark Perrem, 31 October 2025) was sworn

strictly to rebut a specific factual averment made in the Applicant’s late material and is filed

expressly without prejudice to this objection.

Accordingly, the Notice Party submits that the late affidavits should be ruled inadmissible in

their entirety, or alternatively accorded no weight, and that the Court should proceed on the

evidence properly before the Commission at the time of its decision.

Cross-Examination

The applicant was given liberty to bring a motion for cross-examination but does not propose

to seek cross-examination.

Section F - details of any reliefs or grounds on the pleadings that are not being pursued;

Applicant

None

Commission

The Applicant has confirmed in written submissions that it is not pursuing Core Ground 4 of

the Amended Statement of Grounds. That appears to be confirmed in this document, where

the Applicant has inserted a strikethrough over Core Ground 4.

Notice Party

The Notice Party has proceeded on the basis that Core Ground 4 in the Amended Statement

of Grounds is not being pursued. It also notes that in the Applicant’s legal submissions,

health issues are not being pursued in the context of Core Ground 3 and an alleged breach

of Article 23(1)(a) in the context of Core Ground 1, are not pursued .”

50. This is not a complex point. Insofar as the applicant has purported to supplement the case

by late affidavits under the guise of a reply this is not a permissible procedure. Replying affidavits

are limited to reply and are inadmissible if they go beyond that, as they do here. An applicant has

to marshal her evidence at the appropriate stage barring a clear demonstration of that not being

possible with reasonable diligence – that has not been established here.

51. Insofar as the applicant may place reliance on Hayes v. Environmental Protection Agency

[2024] IECA 162 (Unreported, Court of Appeal, Butler J., 24 June 2024), that is not susceptible to

a radical interpretation that would create an ongoing entitlement to drip-feed the applicant’s

evidence right up to the last minute.

52. At para. 127, Butler J. says that an applicant’s evidence may be furnished outside the eight

week period as long as the proceedings are initiated within that. That is not an issue here because

the applicant is not being prevented from introducing further evidence merely on an eight-week

basis. Where Butler J. refers to no “special” leave being required, that is referable to a situation

where there are no inconsistent directions of the court. Obviously if the court has got involved in

the management of the proceedings, its directions have to be complied with like any other order.

53. The issue in that case was, as set out in para. 128, the question of whether the affidavits

were introducing facts that were not before the decision-taker and that were not properly ones for

the court (inferentially (see final sentence of para. 130) as not coming within any recognised

exception). As was stated at para. 130, “the EPA is the independent body responsible for resolving

any conflict in the scientific evidence. It cannot do this if participants in the process choose not to

engage with the scientific evidence which is adduced by the developer before the EPA but then seek

to present new and potentially contrary evidence to the court”.

54. The court went on at para. 132 to point out that an applicant who wants to demonstrate

gaps in an AA is entitled to put forward scientific evidence as to the existence of such gaps – or as

it has been put in other decisions, that a reasonable expert would have seen such gaps from the

material before the decision-taker. That is distinct from simply disagreeing with the factual

conclusions of the decision-taker – a point Butler J. makes at para. 133. Previous High Court caselaw

is all totally consistent with this point, if I may respectfully say so (e.g., Reid v. An Bord Pleanála

(No. 1) [2021] IEHC 230 (Unreported, High Court, 12 April 2021)). The affidavits in that case were

partially disallowed to the extent to which they (“frequently”) went beyond those parameters.

55. Unfortunately for the applicant, Hayes is not authority for a general proposition that an

applicant has an ongoing entitlement to add new evidence to support its case (as opposed to properly

by way of reply). It does not go further than saying that the eight-week limit is not a bar to a further

affidavit. But once issue is joined by opposing pleadings and evidence then matters are different.

A moment’s thought illustrates why this is so. If an applicant can develop her case in a drip-feed

manner, this nullifies directions in case-managed proceedings, and undermines the scheme of

statement of grounds and statement of opposition dictated by rules of court. It allows intolerable

uncertainty up to the last minute as to whether an applicant is going to produce further rabbits out

of a hat that could knock the hearing off schedule, deprive opposing parties of meaningful reply, or

generally cause procedural mayhem or at a minimum waste of costs and effort, requiring

amendment of statements of opposition or further replying affidavits from opposing parties dealing

with the “new” points from an applicant. Sure, an applicant can reply, provided that what is offered

is in fact a reply. What the applicant puts up here goes far, far beyond anything that could

legitimately be classified as a reply. If I am wrong about that, the applicant bears the onus of proof,

so any conflict of evidence must be resolved against the applicant absent cross-examination.

56. Ultimately I uphold the following opposing objections:

(i) Not replying affidavits: The three affidavits of Shamsa Doyle, Caroline Kearns

Gethings and Kent Chamberlain are not replying affidavits nor, as the commission

submits, do they profess to be in any real sense.

(ii) They do not qualify as ‘replying’ affidavits within the meaning of O. 103 RSC or

Practice Direction HC126. They seek to introduce a new evidential narrative rather

than rebut specific matters raised in opposition.

(iii) The procedural framework for judicial review allows replying evidence only to meet

a point first raised by the respondent. None of the three affidavits meets that test.

(iv) Allowing a rolling drip-feed of an applicant’s case creates procedural chaos:

As the commission submits, “it is simply not compatible with modern and ordered

litigation that this sort of approach can be taken by an Applicant (and the sheer

volume and technical nature of the material exhibited speaks for itself), less than a

month before a hearing date in this list and (assuming one counts from the earliest

affidavit filed on 30 October 2025) some 13 working days pre-hearing”.

(v) As the notice party submits, their introduction at this stage undermines the orderly

conduct of proceedings: Fahybeg Windfarm Opposition Group v. An Bord Pleanála

[2025] IEHC 310 (Unreported, High Court, 30 May 2025).

(vi) The issues were there on day one: The affidavits prima facie comprise matters

which were known or should have been known to the applicant from the outset.

(vii) As the notice party submits, the applicant provides no explanation as to why the

evidence, if relevant, was not furnished at the outset.

(viii) As held in Reid v An Bord Pleanála (No. 1) [2021] IEHC 230, new affidavits are only

admissible in limited categories (e.g. where the matter could not reasonably have

been raised earlier or is jurisdictional in nature). None of these criteria is satisfied.

(ix) Lack of objectivity: I also agree with the objection that Dr Chamberlin’s affidavit

fails to identify his qualifications or the scientific basis of his opinions and contains

extensive legal argument rather than expert analysis. The attached ‘New Hampshire

Report’ lacks recognised scientific reliability.

(x) Breach of directions: The affidavits were filed after the close of pleadings, without

prior liberty from the court.

(xi) The affidavits are filed in breach of directions and outside the time limited for filing.

Domestic law issues

Core ground 1 – lack of features on plans

57. Core ground 1 is:

“1. The Board Decision is invalid because the Application for permission was invalid in

that the plans and elevations submitted did not comply with R23 PDR. The 1:500 scale plans

submitted failed to show features on, adjoining or in the vicinity of the land or structure to

which the application relates contrary to R23(1)(a) PDR. The 1:100 scale plans submitted

failed to show both the level or contours of the land and the proposed structures, relative to

Ordnance Survey datum or to any temporary local benchmark, contrary to R23(1)(c) PDR.

The elevations failed to show the main features of any buildings which would be contiguous

to the proposed structure if it were erected, whether on the application site or in the vicinity,

contrary to R23(1)(d) PDR.”

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

“Ground 1, Drawings

Applicant

48. The requirement to furnish adequate drawings is a mandatory one, not a directory

one. S34 PDA makes it very clear that an application which does not comply with the

permission regulations is not valid, and that only an application which does comply can be

considered. The drawings in this instance breach R23(1)(d) PDR because they do not show

the elevation of the station building, which is only 4m away from the proposed mast

development, even though that station building is within the curtilage of a protected

structure, is therefore itself protected, and is in any event listed on the National Inventory

of Architectural Heritage. The drawings also breach R23(1)(c) because they fail to show the

level or contours of the land relative to Ordnance Survey datum. All they show is spot

heights ‘above sea level’ without making it clear whether they mean low tide, high tide, or

ordnance datum. This is not a merits based challenge; it is a matter of interpreting the legal

requirements for a valid application. The purpose of the regulations is to ensure that

drawings are of a sufficient standard for public participation, or indeed for eventual

enforcement should it become necessary, and the regulatory requirements should not be

reduced. The breach in this case is particularly egregious considering that the development

in question is proposed within the curtilage of a Protected Structure. Ms Kearns Gethings

has set out the possible implications in terms of cultural heritage from the lack of any

elevation drawings showing the foundations for construction of the proposed mast.

Commission

49. No particularised complaint is made regarding Article 23(1)(a), so there is nothing

to reply to.

50. With regard to Article 23(1)(c), whereas the Applicant notes the use of ASL

measurements, but complains about the absence of confirmation as to whether same are

OD measurements, E.10 in the ASOG actually says the Applicant ‘assumes’ that the ASL

measurements are OD measurements. In any event, the only particularised complaint

made about this is that whereas the Applicant cannot understand the ground level of the

mast as between whether it is intended to be the floor level of the building beside the site

location (itself on a stone plinth bringing the floor level to platform level) or actual ground

level. Two points are made in reply. First, from the photographs and drawings it is

abundantly clear that the mast is proposed to be placed on the ground and not with some

new plinth being constructed to bring it to platform level. Further, the fact that a retaining

wall is proposed between the differing areas of height undercuts any perceived

misconception that the site is proposed to be at the same level of the higher ground against

which the retaining wall is positioned. The drawings clearly indicate the height of the mast

and it’s clear what the ground level is. Second, the Applicant accepts this in its submissions

now at §71, but the evidence referred to at §71 is not evidence relied on by any other party,

but what has been available to the Applicant all along. Thus, no real or actual complaint is

revealed here.

51. With regard to Article 23(1)(d), the proposed development is not contiguous to the

building which the Applicant refers to as 4m away nor is it contiguous to the apartment block

20-30m away. Elevations of same do not have to be shown. Insofar then as the Applicant

now makes a case (which is not pleaded in Core Ground 1, nor in Sub-Grounds E.6-E.12)

the building 4m away must be viewed as a protected structure and thus argues that the

second requirement in Article 23(1)(d) required a particular mapping of the features

materially affected by same, that only arises (aside from only arising if pleaded) where works

are proposed to the protected structure that are actually materially affecting same, and even

assuming this building is a protected structure, no such works are proposed.

52. With general regard to Core Ground 1, at the planning authority level, it seems

reasonable to propose that the executive planner, senior executive planner and chief

executive had no difficulty understanding the proposal. Nor did the Inspector nor the

Commission. The drawings were adequate under law, but if not, it is respectfully submitted

that any deviations from the requirements in the PDR are not such as to warrant certiorari.

Notice Party

53. No complaint is advanced in the submissions in respect of alleged non-compliance

with Article 23(1)(a) of the 2001 Regulations.

54. The application drawings, as originally lodged, substantially complied with Article

23(1) of the 2001 Regulations. The site layout plan included spot levels clearly annotated

‘ASL’ (Above Sea Level), expressed relative to Ordnance Survey datum at Malin Head, which

is the standard benchmark used in Irish mapping. Elevation drawings depicted the height

and form of the monopole with clarity, and the photomontages illustrated its relationship

with nearby station buildings. The Planning Authority validated the application as being in

compliance with the permission regulations and the Inspector expressly confirmed that ‘in

relation to the submitted drawings and other documentation that the development can be

assessed and the relationship of the proposed development to its surroundings and wider

receiving landscape can be evaluated’ (Inspector’s Report §8.2).

55. Furthermore, both the photographs and the application drawings make clear that

the monopole is to be installed at existing ground level, and not on any elevated plinth or

platform. The proposed retaining wall, which delineates the change in levels within the site,

reinforces this. Its very purpose is to retain the higher ground to the west, thereby making

plain that the mast compound remains at the lower level. The drawings unambiguously

identify both the existing ground level and the full height of the structure; there is no room

for misunderstanding on this point. The Applicant ultimately acknowledges this reality in

§71 of her submissions.

56. Article 23(1)(d) did not require a contiguous elevation drawing of the railway station

building. The proposed monopole is not physically contiguous to any building. It is not

contiguous to the building 4m away or the apartment block 20-30m away. Accordingly,

elevations of same are not required to be shown. The new complaint in the submissions

that the proposed development is within the curtilage of a proposed protected structure is

not pleaded and thus, the Applicant can’t advance same. In any event, the proposed

development does not materially affect the protected structure.

57. The Applicant identifies no prejudice. She clearly understood the proposal,

participated at appeal stage, and made detailed visual-impact submissions. No person was

misled as to the nature or scale of the development.

58. The test for compliance with Article 23 is not exhaustive technical perfection (Alf-a-

Bet; Ballyboden). Minor or immaterial omissions do not invalidate an application. Only

defects which materially impede public understanding or assessment of the proposal go to

validity. No such defect arose here and relief can be withheld where no prejudice arises

(McAnenely).

59. Core Ground 1 amounts to an impermissible merits-based challenge to the

sufficiency of technical presentation. The adequacy of information is classically a matter for

the planning authority and the Commission, not the High Court on judicial review.”

59. Article 23(1) of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (the

2001 regulations) provides (the issues allegedly breached are emphasised):

“23. (1) Plans, drawings and maps accompanying a planning application in accordance with

article 22 shall all be in metric scale and comply with the following requirements:

(a) site or layout plans shall be drawn to a scale (which shall be indicated thereon) of not

less than 1:500 or such other scale as may be agreed with the planning authority prior to

the submission of the application, the site boundary shall be clearly delineated in red, and

buildings, roads, boundaries, septic tanks and percolation areas, bored wells,

significant tree stands and other features on, adjoining or in the vicinity of the land

or structure to which the application relates shall be shown,

(b) other plans, elevations and sections shall be drawn to a scale of not less than 1:200

(which shall be indicated thereon), or such other scale as may be agreed with the planning

authority prior to the submission of the application in any particular case,

(c) the site layout plan and other plans shall show the level or contours, where applicable,

of the land and the proposed structures relative to Ordnance Survey datum or a

temporary local benchmark, whichever is more appropriate,

(d) drawings of elevations of any proposed structure shall show the main features of any

buildings which would be contiguous to the proposed structure if it were erected, whether

on the application site or in the vicinity, at a scale of not less than 1:200, as may be

appropriate, and where the development would involve work to a protected structure or

proposed protected structure, shall show the main features of any buildings within

the curtilage of the structure which would be materially affected by the proposed

development,

(e) plans relating to works comprising reconstruction, alteration or extension of a structure

shall be so marked or coloured as to distinguish between the existing structure and the

works proposed,

(f) plans and drawings of floor plans, elevations and sections shall indicate in figures the

principal dimensions (including overall height) of any proposed structure and the site, and

site or layout plans shall indicate the distances of any such structure from the boundaries of

the site.

(g) any map or plan which is based on an Ordnance Survey map shall indicate the relevant

Ordnance Survey sheet number, and

(h) the north point shall be indicated on all maps and plans other than drawings of elevations

and sections and maps or plans referred to in paragraph (g) of [this] sub-article.”

60. Any complaint about lack of contours on plans was withdrawn.

61. I appreciate the applicant’s point that for the purposes of enforcement it is important to have

definite plans and particulars. However we need to be clear as to whether there is any real

uncertainty here.

62. As regards buildings, roads, boundaries, septic tanks and percolation areas, bored wells,

significant tree stands and other features on, adjoining, or in the vicinity of the land or structure to

which the application relates, no particular breach has been clearly identified let alone demonstrated.

63. As regards measurements relative to Ordnance Survey datum or a temporary local

benchmark, whichever is more appropriate, the decision should be read as valid if possible. Hence

the above sea level (ASL) levels should be read as meaning Ordnance Datum (OD). Indeed the

applicant’s own submissions reinforce a conclusion that there isn’t any real confusion on this issue

(emphasis added):

“71. The drawings also breach R23(1)(c) in that they give heights ‘above sea level’, ASL,

but fail to say whether the sea level to which they refer is the Malin Head Ordnance Survey

datum, or to explain why the vague ‘sea level’ might be more appropriate. This prevents

comparability with OS maps. R23(1)(c) requires the drawings to ‘show the level or contours,

where applicable, of the land and the proposed structures relative to Ordnance Survey datum

or a temporary local benchmark, whichever is more appropriate.’ (In the present case there

is even some doubt identified in the Appeal over whether the indicated height of the mast,

indicated as ground level, is the same as the ground level of the car park, or might be the

ground level of the adjacent railway platform. The indication of a retaining wall between the

mast and the platform probably resolves this as establishing that the mast base will

be at car park level, but clarity is important here, because the absence of clarity would

make enforcement more difficult if the mast were to be constructed higher than proposed,

because this would make it more difficult for an engineer or surveyor to establish if there

has in fact been a breach.)”

64. As regards the main features of any buildings within the curtilage of the structure which

would be materially affected by the proposed development, insofar as there were visual impacts on

the protected structure there was plenty of information produced in the process so any technical

infirmity, if there was one, was not material. The protected structures (the stationmaster’s house

and buildings within its curtilage including the wooden railway building and possibly the railway

station) were illustrated by the photomontages so the absence of further detail on the plans was not

significant. There were also reports on conservation from the council and the developer. So there

is no real issue under this heading.

65. More generally the concept of what is materially affected is evaluative – the commission’s

being satisfied with the material presented indicates a conclusion that the protected structure would

not be materially affected. The conservation officer of the council noted the industrial context of the

railway station which implies a lack of problematic impacts on the protected structure. It is clear

that none of the planning professionals at any level had any issue with the drawings/plans.

66. So this point has not been made out.

Core ground 2 – lack of public notice

67. Core ground 2 is:

“2. The Board Decision is invalid because the Application for permission was invalid in

that adequate public notice was not given, contrary to R17 and R19(1) PDR.”

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

“Ground 2

Applicant

60. The public notice of the Proposed Development fails to comply with R19(1) PDR

because notice was not posted at all public entrances to the station as required. There was

notice at the actual mast site at the back of the car park, which is out of the way of most

foot passengers; and there was notice at the south western road entrance which is used by

those arriving by car; but there was none at the south eastern entrance, which is the

pedestrian entrance closest to Laytown. As for Ground 1, S34 is mandatory, not directory,

and the purpose of the regulations is to ensure that the application is of a sufficient standard

to encourage public participation. The Applicant is not raising a jus tertii, but is raising a

basic prerequisite to the making of a valid application. The Applicant has set out how she

was unaware of the application until after the planning permission was granted, and she was

only able to put in an observation because another party appealed. The Applicant was

entitled to participate at all levels of the planning application and should have been able to

do so.

Commission

61. Insofar as a third site notice was required at or about the location of what is

described as the entrance to the railway station to the east of the railway bridge, there is no

evidence that same was present. In that respect, insofar as the PDR requires same, it was

not there. However, the public newspaper notice is not impugned, and there were two site

notices present, one at the entrance to the west of the bridge and one further in at the

railway station buildings. Whereas not participating in the process before the planning

authority, the Applicant (and the group for whom she signed a submission but whom is not

a co-Applicant) made submissions before the Commission on Appeal. Further, whereas not

always the case, the circumstances in this case afforded the Applicant a facility to make

submissions on the Appeal (28 August 2023, Exhibit SD1, Tab 28) and a further submission

(28 September 2023, Exhibit SD1, Tab 45). The Commission submits that in all the

circumstances of the case, a defect in compliance with the PDR ought not to result in

certiorari which would require the full process to restart (which commenced on 24 February

2023) some 20 months after it commenced.

62. The Commission submits that overarching importance of the delivery of better

quality wireless services including 5G services should mean that undue delay should (if

possible) be and insofar as the domestic planning system tolerate single stage processes

(e.g. SID) and insofar as is been architecturally lawful to have single stage processes with

single opportunity submission chances (e.g. SHD), it is respectfully submitted that fair

procedure rights in terms of participation are respected by the actual participation in this

particular case.

Notice Party

63. The Applicant contends that the application was invalid because the site notices were

not erected in accordance with Articles 17 and 19(1) of the 2001 Regulations, principally on

the basis that an additional notice ought to have been placed at the eastern station entrance.

64. Two site notices were in fact erected, their locations are clearly identified on drawing

PD-030, and the Planning Authority validated the application without difficulty. Article 19(1)

requires that notices be securely fixed at or near the main entrance(s) from a public road,

and the Notice Party maintains that the notice was placed at the main vehicular entrance to

the station and that both notices complied with the statutory requirements. The Applicant’s

argument rests on a subjective view of what constitutes the ‘main entrance’.

65. In any event, the Applicant suffered no prejudice. The Applicant was able to make

an observation on the appeal, as did the Laytown Mast Action Group. Protect East Meath

participated in the process before the planning authority and was able to appeal its decision.

The suggestion that the alleged inadequacy of the notices prevented public participation is

contradicted by the record, and the Applicant adduces no evidence that any person was

misled or impeded.

66. Insofar as the Applicant seeks to rely on alleged prejudice to third parties, such as

the Laytown Mast Action Group, that approach is impermissible. The principle in Watchhouse

Cross Shopping Centre Ltd v An Coimisiún Pleanála [2025] IEHC 520 precludes reliance on

the rights of others, jus tertii, to advance one’s own challenge.

67. Even if there was a breach of Article 19 regarding a failure to erect a site notice at

or near the south eastern entrance, given the lack of any evidence that the public were not

made aware of the planning application, the Court should exercise its discretion against

quashing the decision, having regard to the need for the proposed development: see Save

the South Leinster Way v. An Bord Pleanála [2025] IEHC 541.”

69. While the applicant avers to unawareness of the application by herself and others, that

doesn’t get her very far in the absence of also showing non-compliance with the actual requirements

of the legislation. No system of notice can guarantee that everyone will be aware of something in

all circumstances, so disproving the latter scenario doesn’t constitute proof of a legal breach – one

has to see what the obligation imposed by the system is and whether it was complied with.

70. The current version of art. 19(1) of the 2001 regulations states:

“(1) A site notice erected or fixed on any land or structure in accordance with article 17(1)(b)

shall be—

(a) in—

(i) the form set out at Form No. 1 of Schedule 3,

(ii) where the development is one that is covered by the provisions of the Renewable

Energy Directive, the form set out at Form No. 23 of Schedule 3,

or

(iii) in either case mentioned in subparagraph (a) or (b), a form substantially to the

like effect,

(b) subject to sub-article (4), inscribed or printed in indelible ink on a white background,

affixed on rigid, durable material and secured against damage from bad weather and other

causes, and

(c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near

the main entrance to the land or structure concerned from a public road, or where there is

more than one entrance from public roads, on or near all such entrances, or on any other

part of the land or structure adjoining a public road, so as to be easily visible and legible by

persons using the public road, and shall not be obscured or concealed at any time.”

71. Article 19(2) says:

“(2) Where the land or structure to which a planning application relates does not adjoin a

public road, a site notice shall be erected or fixed in a conspicuous position on the land or

structure so as to be easily visible and legible by persons outside the land or structure, and

shall not be obscured or concealed at any time.”

72. The concept of the land or structure to which the application relates is identified in art.

22(2)(b)(i):

“(2) A planning application referred to in sub-articles (1) and (1A) shall be accompanied by

– (a) the relevant page of the newspaper, or a copy of the relevant page, including the date

and title of the newspaper, in which notice of the application has been published pursuant

to article 17(1)(a), and a copy of the site notice erected or fixed on the land or structure

pursuant to article 17(1)(b),

(b) 6 copies of a location map of sufficient size and containing details of features in the

vicinity such as to permit the identification of the site to which the application relates, to a

scale (which shall be identified thereon) of not less than 1:1000 in built up areas and 1:2500

in all other areas, or such other scale as may be agreed with the planning authority prior to

the submission of the application, in any particular case and marked so as to identify clearly:

(i) the land or structure to which the application relates and the boundaries thereof

in red,

(ii) any land which adjoins, abuts or is adjacent to the land to be developed and

which is under the control of the applicant or the person who owns the land which

is the subject of the application in blue.

(iii) any wayleaves in yellow, and

(iv) the position of the site notice or notices erected or fixed to the land or structure

pursuant to article 17(1)(b),”

73. Is this adjoining a public road? It is adjoining a car park. Whether that is a public road

depends on the definition. The term is not defined in the 2001 regulations, so the definition in the

2000 Act applies – that refers to the 1993 Act, which in turn has the following definition:

“‘public road’ means a road over which a public right of way exists and the responsibility for

the maintenance of which lies on a road authority;”

74. The onus of proof to establish a breach is on an applicant – but this applicant hasn’t proved

that this is a public road. Hence art. 19(2) applies, as opposed to the requirement to have notices

at every entrance. Article 19(2) was complied with or at least non-compliance hasn’t been proven.

So this point ends here.

Core ground 3 – misinterpretation of guidelines

75. Core ground 3 is:

“3. The Board Decision is invalid because the Board misinterpreted the Antenna

Guidelines, and as a result failed to determine the appeal before it in accordance with the

Antenna Guidelines as required by policy INF POL 56 of the Development Plan. It thereby

misdirected itself in law as to the proper interpretation of the Development Plan, failed to

have any or any proper regard to the Development Plan contrary to S34(2), contravened

the Development Plan without taking a decision to do so and without determining whether

such contravention was material, thereby failing to comply with S37(2) PDA. It also or in

the alternative misdirected itself in law as to the proper interpretation of the Antenna

Guidelines, and / or failed to have regard, adequate regard, or lawful regard to them contrary

to S28 PDA. In the further alternative it failed to give any, any adequate, or any lawful

reasons to explain its interpretation of the Development Plan and Antenna Guidelines and

the Development Plan, and / or how or whether it considered the Proposed Development

accorded with that Plan and / or those Guidelines. In so doing it acted contrary to S34(10)

and S37(1) of the 2000 Act.”

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

“Ground 3, Breach of Guidelines and Development Plan

Applicant

68. INFPOL56 of the Meath Development Plan makes it a plan objective to comply with

the 1996 Antenna Guidelines as amended by Circular Letter PL07/12. In effect, breach of

the Guidelines thereby becomes a material contravention of the plan. The Board may decide

to grant a material contravention, but must direct itself correctly in law when it does so.

Laytown is within the category of small towns and villages for the purposes of the Guidelines,

and the proposed mast is within the settlement boundary, not in the rural area outside.

Contrary to the Commission’s submission, this is not a matter of planning judgment: it is

the County Council that gets to define the settlement boundary for planning purposes and

the correct interpretation of the Plan is a matter of law.

69. The Commission breached the Guidelines in a number of ways. It breached the ‘last

resort’ test by allowing for location of the proposed mast in a small town or village without

establishing that the location was a last resort. Instead, it only established that there was

no evidence regarding suitable alternative locations, but without evidence of what sites

might be available and why they are not suitable, the last resort test cannot be satisfied. It

is not for the Applicant to show that there are alternatives; it is for the Notice Party to show

that there are not. It is not intended to be an easy test to satisfy.

70. The Commission also misinterpreted or misapplied the Guidelines by holding that it

did not have jurisdiction to consider health and safety issues of masts.

Commission

1996 Guidelines

71. The Applicant’s pleaded case is what is relevant here. The pleaded case at E.35 and

E.36 is that first, the Inspector must be taken as misunderstanding the nature of the area

concerned for the purposes of the 1996 Guidelines and – the Applicant says – has positively

concluded it is not a site that requires a last resort analysis. The case at E.36 mis-quotes

(and in this respect, the inclusion of the ‘…’ in the quote shows clearly that the Applicant has

not simply transcribed, but omitted words) the Inspector to allege the Board mis-directed

itself on law. When the true quote is read, the case about mis-direction falls away.

Generally, then, the Applicant seems to say that the Inspector and Commission simply

cannot be read as applying the correct test.

72. First, the Commission accepts that decisions must be ‘in accordance’ with the 1996

Guidelines per this Court’s judgment in Four Districts Woodland Habitat Group v An Bord

Pleanála [2023] IEHC 335.

73. Second, with regard to the complaint at E.35, this seeks to read the text of §8.5.7

in a completely skewed manner. Indeed, insofar as the Applicant contrasts that text with

what is evidenced on Map 5.4(a) (Exhibit BL1, Tab 14) a reasonable reading shows clearly

the Inspector does not quarrel or demur from anything on that map which clearly shows the

settlement boundary. In short, nothing in §8.5.7 actually advances the case the Applicant

is making. Indeed, the Notice Party did not seek to avoid the last resort test as it positively

reasoned out why the location in question was the ‘last resort’ (see Technical Justification

Report, Exhibit SD1, Tab 7, at §3.1 and the Response on Appeal, Exhibit SD1, Tab 33 at 38)

and this was precisely what the Inspector and Commission were considering. Certainly, the

Applicant might disagree over the outcome here, but the case that the Inspector and

Commission simply ‘avoided’ the last resort analysis is baseless. Indeed, the Commission

Decision itself concludes that the grant is ‘in accordance’ with national policy (i.e. the 1996

Guidelines) and the Development Plan (i.e. including INF POL 56 which was cited in the

Decision). A proper and reasonable reading of the Commission Decision is that it accepted

the Notice Party’s case here which positively was one about the ‘last resort’.

74. Third, with regard to the complaint at E.36 there was no mis-direction. In this

respect, specific reference should be had to E.36 in the Amended Statement of Grounds. In

E.36 the somewhat (if true) worrying allegation is made by reference to §8.6.4 in the

Inspector’s Report whereby it is quoted that the Inspector said there was ‘no substantive

evidence … regarding any alternative sites available within the wider area.’ However, the

actual quote is that ‘There is no substantive evidence within the application or appeal

regarding any suitable alternative sites available within the wider area.’ This is precisely the

point – there is no evidence of suitable alternative sites, because there aren’t any. It does

not avail the Applicant now to try to get away from this and make a different case in

submissions – the mis-direction was pleaded as it was, and that allegation is baseless.

75. Fourth, insofar as a reasons case is made, the Commission in adopting the

Inspector’s Report have given sufficient reasons here. It is clear the Commission can prefer

one view over another and it is overtly clear how the ‘last resort’ test has been resolved –

i.e. by reference to the very detailed submissions made by the Notice Party on precisely this

point.

Health

76. The manner in which this aspect of Core Ground 3 is now relied on is confusing.

However, insofar as it is contended that the Commission wrongly excluded any consideration

of public health from its consideration that is not correct. Rather, the point is that the

Commission is entitled to take compliance with ICNIRP standards as generally directive on

the question as to whether masts with associated apparatus will cause problems for human

health. The case put up by the Notice Party was that compliance with same will address

health issues, and the Commission can accept that.

Notice Party

77. The 1996 Guidelines and Circular PL07/12 were expressly identified, understood and

applied by both the Inspector and the Commission. The correct test, assessment ‘in

accordance with’ the Guidelines, was met: the requirements identified in Four Districts

Woodland Habitat Group v. An Bord Pleanála were followed.

78. The ‘last resort’ principle was directly engaged and satisfied. A central element of

the Applicant’s case is the assertion that the Commission ‘avoided’ the last-resort test in

§4.3 of the Guidelines. This is incorrect. The Notice Party’s Technical Justification Report

(updated at appeal stage) demonstrated that no upgrade or sharing option was technically

feasible and that the existing Alverno House installation was structurally incapable of

accommodating the equipment required. A range of alternative sites were evaluated

(including the roof of Alverno House and various pole and rooftop options), none of which

could deliver the necessary coverage or meet operational constraints. The Council’s

Broadband Officer independently confirmed that the only other recently permitted structure

nearby (at Laytown Racecourse) was not capable of sharing. The Inspector expressly noted

the applicability of the last-resort principle and concluded that a ‘sufficient technical

justification’ had been provided. Read fairly, the Inspector’s Report reflects the position that

this was the only viable option, which is precisely the conclusion required where §4.3 is

satisfied.

79. The Applicant’s arguments rely on misreading and selective quotation from the

Inspector’s report. Central to the Applicant’s case is a mischaracterisation of the Inspector’s

observations in §§8.5.7 and 8.6.4 of the Inspector’s report. The Inspector did not find that

the site was outside the settlement boundary or outside Laytown; rather, he described the

zoning pattern in Map 5.4(a) of the CDP. The Inspector’s statement at §8.6.4 that there

was ‘no substantive evidence within the application or appeal regarding any suitable

alternative sites available within the wider area. Having reviewed the information submitted,

I am satisfied that the applicant has demonstrated an adequate technical justification for the

proposed development’ is consistent with the Notice Party’s own evidence that no such sites

exist. The Applicant’s pleadings (§E2, 36) reverses the meaning of this passage to

manufacture an error that is not there. When read in its entirety, the Inspector’s report

clearly demonstrates acceptance, not rejection, of the last-resort justification.

80. The courts have repeatedly rejected this type of granular parsing of isolated

sentences: Killymooney (No.1); Donagher McGowan). The Applicant’s approach

contravenes that principle and seeks to read the Inspector’s report in the most invalid way

possible, which is not the correct approach: Killymooney (No.1); Roscam (No.6).

81. INF POL 56 requires proposals to be assessed in accordance with the Guidelines.

The Commission did precisely that. Nothing in the decision indicates any inconsistency with

the Development Plan, still less a material one.

82. The Commission summarised the applicable policy documents, including the CDP

and Guidelines, and stated that the proposal was in accordance with both. The Inspector’s

Report, expressly adopted by the Commission in this respect, contains a full assessment of

site selection, alternatives and visual impact. The reasons readily meet the Connelly / Balz

standard and far exceed the minimum threshold required for validity.

83. Should health issues remain in Core Ground 3, the Commission was entitled to rely

on the ICNIRP Declaration, which was lodged with the application, certifying that the

installation would operate within international safety standards for non-ionising radiation,

thus addressing the issue of health impacts. The Commission was also entitled to take into

account the fact that the planning permission only authorises the construction of the physical

works connected with the erection of the monopole structure only and does not permit the

operation of an electronic communications network. A general authorisation under the

European Union (Electronic Communications Code) Regulations 2022 applies. Compliance

with ICNIRP limits is mandatory. In addition, a wireless telegraphy licence is required from

ComReg to permit inter alia the use of specific bands of radio frequency under the Wireless

Telegraphy Act 1926 to operate and use the specific spectrum bands. There is no

requirement for planning authorities or the Commission to duplicate technical assessments

that fall under specialised regulatory regimes.

84. CG3 is, in substance, a merits challenge. The Applicant invites the Court to second-

guess matters of planning judgment, including the adequacy of the technical justification,

the weight given to alternative-site analysis, and the acceptability of the location in light of

zoning. These are classic merits issues within the exclusive province of the planning

authority under O’Keeffe. No jurisdictional error is demonstrated.”

77. As regards the complaint that “[t]he Commission also misinterpreted or misapplied the

Guidelines by holding that it did not have jurisdiction to consider health and safety issues of masts”,

there is a lack of reality to this complaint.

78. The basic reason why this point fails is that given the impracticability of reinventing the

wheel on human health in every telecoms mast case, the commission can generally rely on industry

standards, subject to any particularly compelling evidence in a particular case.

79. General standards are set out in 1999/519/EC: Council Recommendation of 12 July 1999 on

the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz). This is

referenced in the European Union (Electronic Communications Code) Regulations 2022 (S.I. No. 444

of 2022) which gives effect to Directive (EU) 2018/1972 of the European Parliament and of the

Council of 11 December 2018 and giving full effect to Commission Implementing Regulation (EU)

2019/2243 of 17 December 2019 and Commission Delegated Regulation (EU) 2021/654 of 18

December 2020. The touchstone for the 1999 recommendation is the ICNIRP Guidelines for limiting

exposure to time-varying electric, magnetic, and electromagnetic fields (up to 300 GHz), Health

Physics 74(4): 494-522 (1998) and Response to questions and comments on ICNIRP, Health Physics

75(4): 438-439 (1998) (https://www.icnirp.org/cms/upload/publications/ICNIRPemfgdl.pdf). The

first notice party requires authorisation under the 2022 regulations and has averred that its

operations will comply with the 1999 recommendation.

80. The ministerial Circular Letter PL 07/12 – and accepting that it is only a circular – states:

“2.6 Health and Safety Aspects

The 1996 Guidelines advise that planning authorities should not include monitoring

arrangements as part of planning permission conditions nor determine planning applications

on health grounds. This Circular Letter reiterates that advice to local planning authorities.

Planning authorities should be primarily concerned with the appropriate location and design

of telecommunications structures and do not have competence for health and safety matters

in respect of telecommunications infrastructure. These are regulated by other codes and

such matters should not be additionally regulated by the planning process.”

81. By way of a modest reality check, one wonders if one could be forgiven for pointing out that

according to the EPA (https://www.epa.ie/environment-and-you/radiation/emf/emf-and-your-

health/mobile-phones--health/):

“The exposure levels from a mobile phone in contact with the body can reach 100 to 400

times the levels of the typical exposure one receives from mobile phone masts or base

stations.”

82. But even if such an aside is deemed unacceptable, the basic point is that the health impacts

of masts have to be dealt with primarily at a general policy level. Having a debate in each case as

to their effects is a waste of time without anything more specific than what the applicant has here

(see e.g. Harris v. the First Secretary of State & Ors. [2007] EWHC 1847 (Admin), [2007] 7 W.L.U.K.

939, [2008] J.P.L. 538).

83. In the context of a specific national policy in the UK, the position following T-Mobile (UK)

Limited v. First Secretary of State [2004] EWCA (Civ) 1763, [2005] Env.L.R. 364 is that, where the

policy guidance applies, public concerns about the health implications of the creation of a radio base

station can be a material consideration only if there exist exceptional circumstances which justify

departure from the policy (Harris at 24). Despite the different context that throws some light on

what is reasonable and possible in such a situation.

84. Insofar as the inspector said that health issues are not a matter for the commission, that’s

the sort of statement that applicants like to read as a Balz-type a priori rejection (see Balz v. An

Bord Pleanála [2019] IESC 90, [2023] 3 I.R. 751, [2020] 1 I.L.R.M. 367), resulting in a reflexive

hand out for certiorari. But a decision has to be read as valid rather than invalid if a valid reading

is available. What it clearly means in context is that health issues of the type raised are not a matter

to which the commission should afford weight. That is a totally valid form of reasoning. It doesn’t

mean that there are no possible circumstances in which an estimate of radiation impact on a

particular receiving environment could ever give rise to health concerns – say for example due to

unusually sensitive medical equipment or something like that. One can’t rule out an exceptional

case on an ex ante basis, but in practice and in effect general health concerns are not matters of

weight that need to be placed in the balance in a given application. Such matters are addressed at

a policy level.

85. It would be an improvident use of the power of judicial review to hand out relief on the basis

of a wording issue of this kind just because lawyers would phrase it differently. One can perhaps

put it another way – if and to the extent that the wording was sub-optimal or even erroneous, it was

an error that was not relevant to the facts of the present case, so the applicant doesn’t have standing

to seek to strike down the decision and march through the gap and claim relief on the basis of a

point that makes no difference to the facts of this case, or alternatively discretion militates against

relief here. That said, I suggest the commission might reconsider its phrasing going forward in

terms of lack of weight and to acknowledge counterfactual exceptional cases and thus to avoid giving

false encouragement to those who incorrectly see any infelicity as hair-triggering certiorari.

86. As regards the complaint about the way the commission phrased the application of the last

resort test, the problem is that the test hasn’t been demonstrated to apply.

87. I appreciate that the commission proceeded on an assumption that it did apply, but under

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

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

the court itself has to be satisfied that certiorari should be granted. I certainly am not so satisfied

under this heading and indeed at the hearing the commission submitted that it was open to the court

to find that Laytown was not a small town.

88. I do take the point made with his usual eloquence by Holland J. in Fernleigh Residents

Association CLG v. An Coimisiún Pleanála [2025] IEHC 655 (Unreported, High Court, 28 November

2025) at 77 that the Ballyboden doctrine does not completely disapply the law on pleadings. Firstly,

any factual matters should be properly before the court – typically having been placed before the

court by opposing parties, but such parties are not precluded from relying on the applicant’s evidence

in opposing relief, any more than applicants are precluded from relying on opposing evidence.

Holland J. did state regarding opposing pleas that “such pleas may not limit the scope of judicial

discretion”, which is the key point. On his comment that “I see no reason why a respondent seeking

actively to argue such an issue should not be required to plead those discretionary points which it

thinks weighty”, and “respondents should [not] be permitted to keep their powder dry by not

pleading acceptably clearly discretionary points they later actively pursue at trial”, that is also a fair

point as long as we are clear what we mean by “required” and “should”. There is a strong sense of

“required” which is in the absence of X then Y cannot happen. That isn’t the case in relation to

discretion – regardless of what an opposing party pleads or doesn’t plead, the court itself has to be

satisfied whether to grant relief. The weaker sense is that X should happen but even if it doesn’t Y

can still happen. That’s the sense in which I read Holland J.’s comment that opposing parties should

elaborate on factors relevant to discretion. But even if they don’t the court can still refuse relief.

Insofar as Holland J. refers to the “possibility of imbalance in pleading obligations”, exact equality is

not required or possible. There are numerous structural pro-applicant inequalities – applicants only

have to win on one point, delay falls most heavily on notice parties, applicants have costs protection

and so on. A modest rule that a court has to be satisfied with granting relief is small potatoes in

this context. I appreciate that Holland J.’s remarks were more in the nature of raising questions

than supplying answers, but insofar as the question is “the extent to which judicial review is in reality

adversarial and fairness in that context”, the answer is that judicial review is predominantly

adversarial but not rigidly so in a conservative, doctrinaire fashion. For example, a court can

intervene in the hearing to ask questions – even to the extent of having the hearing take the form

of a Socratic dialogue of question and answer – see Heavey v. An Bord Pleanála (No. 2) [2025] IEHC

311 (Unreported, High Court, 30 May 2025) at 82. As in that case, the idea that just because a

court departs from a rigidly non-adversarial, non-interventionist stance, doesn’t make the hearing

unfair. The fact that the Supreme Court has clearly said that the court itself has to be satisfied as

to relief indicates that to the limited extent that this is non-adversarial, it is permissibly so. As

regards Holland J.’s final question in the context that “the scope of evidence adduced and

submissions made is generally in judicial review strictly circumscribed by the pleadings”, that is also

answered by Ballyboden. Since the court has to be satisfied as to relief at all times, an opposing

party can concede before filing any pleading or evidence. The doctrinaire non-adversarial position

would be that there would then be nothing by reference to which a non-adversarial court could

refuse relief. But that would clearly be an unsustainable position judged against the Supreme Court’s

decision in Ballyboden. Hence the opposing submissions and evidence cannot be the yardstick.

Finally under this heading, just to neutralise any Pavlovian salivations by would-be appellants, the

foregoing isn’t a conflict, merely a difference of emphasis: see per Barr J. in Graymount House Action

Group & Ors v. An Bord Pleanála & Ors [2024] IEHC 542 (Unreported, High Court, 13 September

2024) at 31:

“There will always be differences of emphasis, or phraseology, between one judge and

another. That does not give arise to a true conflict, or divergence, as to the applicable law,

on which it is desirable in the public interest that the point be resolved by way of an appeal.”

89. Holland J., quite rightly, places emphasis on the need for opposing parties to give notice of

any major points of opposition contemplated by them at the time of filing their papers. It

complements rather than contradicts that for me to emphasise that even if they don’t do that to the

fullest extent desirable, the court still has to be satisfied about whether to grant relief. In any event,

irrespective of the Ballyboden case, the rule is now entrenched and put beyond doubt in rules of

court. Order 103 r. 28(4) RSC, which applies to proceedings already in being, provides:

“(4) The failure by an opposing party to plead a particular ground of opposition in its

Statement of Opposition (or, mutatis mutandis, other opposing document in proceedings

other than judicial review) shall not preclude the Court from refusing relief in the discretion

of the Court, if the Court considers that such relief ought, in all the circumstances, not be

granted.”

90. Returning to the present case, the inspector said:

“8.6.4. There is no substantive evidence within the application or appeal regarding any

suitable alternative sites available within the wider area. Having reviewed the information

submitted, I am satisfied that the applicant has demonstrated an adequate technical

justification for the proposed development. There is recognition in national guidance that

upgrading of telecommunications is necessary and changes arising from the ongoing and

future roll out of 4G and 5G technologies require development of new locations which vary

in the range of coverage provided and the increased use of shared facilities and replacement

of existing sites which may not address the changing requirements.”

91. The problem therefore with the applicant’s argument is that this is not a small town. The

settlement hierarchy in the development plan puts Laytown as part of a larger conglomeration with

a larger population.

92. The CDP at 3.3.1 describes Laytown as part of Laytown-Bettystown Municipal District with a

2016 population of 33,752. As to the urban area itself this is specified as Bettystown-Laytown-

Mornington-Donacarney with a population of 10,889 in table 3.1 in section 3.3.1.

93. This is above the lowest tier of towns (which would constitute small towns). The relevant

tier at 3.4.2 is:

“Self-Sustaining Towns

Towns with high levels of population growth and a weak employment base which are reliant

on other areas for employment and/or services and which require targeted ‘catch up’

investment to become more self sustaining.

Laytown/Bettystown/Mornington/Donacarney

Ratoath

Enfield

Duleek

Stamullen

Kilcock”

94. Below that is:

“Towns and Villages

Towns and villages with local service and employment functions.

Towns – Athboy, Oldcastle, Ballivor and Longwood”

95. Athboy, for example, is a small town. Laytown is a mid-sized town above that. The onus of

proof is on the applicant and the applicant certainly hasn’t shown that this is a small town, so the

premise of the pleaded case under this heading has not been made out.

96. If I am wrong about that, the decision should be read as valid rather than invalid, and while

the inspector’s language is somewhat sub-optimal, it should be construed as an acceptance of the

developer’s material which demonstrates compliance with the last resort test. This is ultimately a

gotcha point about the phrasing by the inspector rather than about a demonstration of inadequate

efforts by the developer to rule out alternatives.

97. One can note that the applicant’s insistence that Laytown is a mere village (for the purpose

of advancing a groundless claim under this heading which is going to fail anyway) seriously

undermines its claim that this is an urban area for the purposes of classifying the project as “urban”

development under the EIA heading. Perhaps a more logical if harsher approach would have been

to strike out both claims as contradictory since they are not pleaded as alternatives, but the opposing

parties didn’t ask me to do that.

EU law issue

Core ground 5 – EIA

98. Core ground 5 is:

“5. The Board erred in law in screening for EIA, by determining that the Proposed Mast

did not fall within a class of development set out in Schedule 5 Part 2 PDR (interpreted in

accordance with Annex II of the EIA Directive) for which EIA may be required.”

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

“Ground 5, EIA

Applicant

85. The Commission erred in law in considering that telephone masts are not urban

development within Annex II Class 10(b) of the EIA Directive, as implemented by Schedule

5 Part 2 Class 10(b)(iv) PDR. The European Commission in its Guidelines Interpretation of

definitions of project categories of annex I and II of the EIA Directive contradicts this, and

says ‘…telecommunications/wireless communication deployment, could also be included in

this category’, and that Recommendation (EU) 2020/1307 ...’ points out to the application

of the EIA Directive to this type of infrastructure’. Irish case law diverges as to whether it

is location or purpose that brings a development within the category. The CJEU has rejected

the locational criterion as determinative, because it has held that Spain could not lawfully

restrict EIA of urban developments to those located in a rural area. The category of urban

development is broad, and while not limitless, must receive a broad interpretation.

Telecommunications/wireless communication deployment is liable to have impacts on energy

consumption and consequently climate change, human health and on the built environment,

architectural heritage and landscape, and these are just some of the categories of effects

the EIA Directive is intended to address.

86. Having regard to:

a) the different approaches in Ryan and Reid,

b) the need for a common European interpretation,

c) the view of the European Commission in paragraph 17 of Commission

Recommendation (EU) 2020/1307 and its 2024 Guidance on EIA Directive project categories,

the question of whether the installation or deployment of telecommunication infrastructure

is within Annex II Class 10(b) EIA Directive, and therefore Schedule 5 Class 10(b)(iv)

PDR2001, should be referred to the CJEU for determination.

87. The following draft question is submitted for consideration:

‘Where the concrete installation of and/or the deployment of a telecommunications network

has not been subject to assessment under Directive 2001/42/EC (“Strategic Environmental

Assessment Directive”) or Directive 2011/92/EU (“Environmental Impact Assessment

Directive”) SEA or EIA, should the EIA Directive be interpreted as requiring assessment of

the concrete installation of and/or the deployment of individual components of that network?

Is such assessment dependent on location?’

Commission

88. This is not a project in Schedule 5, Part 2, Class 10(b)(iv) of the PDR 2001 nor in

Class 10 of the EIA Directive in Annex II at (b). Two preliminary points can be made. First,

the simple fact that the Inspector professed to carry out a screening is irrelevant. A mistake

like that, if a screening was not required, cannot make a screening required. Nor is – on

any stretch of justice – a ground for certiorari. Second, the fact that the development is

recorded as being accepted as a project for the purposes of the EIA Directive only indicates

that the project satisfies the Article 1(2) definition and therefore that analysis does not end

with a failure to meet that threshold. It remains that for EIA functions to arise, the project

must be one in either Annex I or II.

89. As to the main point, in this respect, not all development in an urban area (if this is

such) falls within either class. That is clear interpretative over-kill. Further, the Applicant’s

approach of effectively leading with the notion that there may be environmental effects via

visual impact is not the way the totality of the interpretative exercise should be carried out.

The test is not whether the candidate development would have a likely significant effect. If

it were, there would be no need for the Annexes. In this respect, the class has benefited

from considered interpretation in this jurisdiction in Reid v An Bord Pleanála [2022] IEHC

687, Ryan v An Bord Pleanála [2025] IEHC 111 and Carvill v Dublin City Council [2025] ICA

84 none of which assist the Applicant at all. It has also been considered in the UK in inter

alia Condron, R (on the application of) v Merthyr Tydfil County Borough Council & Ors [2009]

EWHC 1621 (Admin) which does not assist the Applicant. Indeed, the CJEU case-law relied

(e.g. Case C-575/21 WertInvest) on does not assist either and the very same case law was

considered and the reasons it does not assist were dealt with Ryan v An Bord Pleanála [2025]

IEHC 111. There is nothing urbanising about the proposed development at all, and simply

because people living in an urban area might get the benefit of increased coverage (just as

much as people living in a rural area will) does not mean this is ‘urban development’ within

the meaning of the class. There is nothing urbanising or inherently urban about this.

90. Finally, on this question, the Applicant makes some effort to say the mast is part of

a wider network of masts which, it seems to be alleged, constitute a wider project requiring

a different sort of focus. If the point is that viewed cumulatively, the impact is greater that

doesn’t matter if the constituent elements being aggregated don’t individually require EIA

functions. In any event, nothing of the sort is pleaded in the case.

Notice Party

91. The starting point is that a project may fall within Article 1(2) of the EIA Directive

without requiring EIA. EIA obligations arise only where the project falls within Annex I or

Annex II (transposed domestically via Schedule 5, Parts 1 and 2 of the 2001 Regulations).

The Commission (per its Order) expressly found that the development does not fall within

any class in Part 1 or Part 2 of Schedule 5, and therefore that no preliminary examination,

screening or EIA was legally required. That conclusion is correct as a matter of law. A

monopole telecommunications mast is not ‘urban development’ within Class 10(b)(iv). Class

10(b) concerns development of an urbanising character, which a monopole structure is not.

92. The Applicant’s approach would produce a definition of ‘urban development’ so broad

as to be meaningless: any structure in an urban context (or capable of serving an urban

context) would be captured. The Irish case law of Reid (No.5), Ryan and the judgment of

Condron, from the jurisdiction of England and Wales, makes clear that urbanising effect, not

mere presence in an urban area, is the fulcrum of the analysis. Telecommunications

structures are not inherently urbanising, frequently occur in both rural and urban contexts,

assist the rural dweller as much as the urbanite and does not convert non-urban land into

urban land. Nothing about the mast in Laytown meets the jurisprudential threshold for

‘urban development’.

93. In its written submissions the Applicant asserts, for the first time, that because

masts form part of a national telecommunications ‘network’, the entire network should be

treated as a single project for EIA purposes. That contention appears nowhere in the ASOG,

is an entirely new ground, would require leave to advance, and is wholly without legal

support. The Applicant can’t make that argument, based on its pleaded case.

94. The Applicant originally pleaded that the Commission erred in not assessing human-

health effects under the 1996 Guidelines. That complaint now appears to have been

abandoned under CG3, but is revived under CG5 as an EU-law argument. This re-

configuration fails because if a project is not an EIA project, issues such as human-health

effects do not create an EIA obligation: Kavanagh; Treascon.

95. The Applicant’s reliance on the Inspector’s preliminary screening comments is

misplaced. The Inspector conducted his own preliminary examination and screened the

development out. However, the Commission did not adopt that approach. The Commission’s

decision records its own distinct and lawful conclusion that the project is not within any class

of Schedule 5 of the 2001 Regulations and therefore no preliminary examination, screening

or EIA is required. Once the decision-maker has reached an independent conclusion, any

suggested error in the Inspector’s report is legally immaterial: per Doyle v. An Bord Pleanála

(No.1) [2025] IEHC 158, the Inspector’s error (if it were one) is harmless.

96. No basis exists for a reference to the CJEU. The legal principles governing the

meaning of ‘project’, the meaning of ‘urban development’, the role of parallel regulatory

regimes in human-health considerations, and the relationship between Annex II and national

threshold are all settled. The Notice Party concurs with the Commission that the matter is

acte clair.”

100. First of all there is no contradiction between Ryan v. An Bord Pleanála [2025] IEHC 111

(Unreported, High Court, Holland J., 27 February 2025) and Reid v. An Bord Pleanála [2022] IEHC

687 (Unreported, High Court, 9 December 2022) as alleged or at all. The “urbanisation” point in

Ryan just didn’t arise in, and wasn’t argued in, Reid. A difference in factual background and/or in

points argued and decided isn’t a conflict in jurisprudence. The asserted “contradiction” is pure

applicant’s fantasy and a by-product of the usual attempt to read caselaw as conveniently

inconsistent, with a predictably reflexive hand out seeking a conclusion that a point is not acte clair

or warrants leave to appeal or both. That is not how the common law method works or could ever

work.

101. The way the inspector dealt with EIA is:

“5.4. EIA Screening

The proposed development is not one to which Schedule 5 of the Planning and Development

Regulations, 2001, as amended, applies and therefore, the requirement for submission of

an EIAR and carrying out of an EIA may be set aside at a preliminary stage. Other than

works carried out during the construction phase of the project the development will not give

rise to any discharges to surface or groundwater.”

102. The board also gave a general conclusion:

“The Board considered that the development is a project for the purposes of the

Environmental Impact Assessment Directive. However, the Board concluded that the

proposed development does not fall within a class of development set out in Part 1 or Part

2 of Schedule 5 to the Planning and Development Regulations 2001, as amended, and

therefore no preliminary examination, screening for Environmental Impact Assessment or

Environmental Impact Assessment is required.”

103. The applicant’s pleas are:

“47. Schedule 5 Part 2 Class 10(b)(iv) PDR implements Annex II Class 10(b) EIAD in

relation to requirement for EIA of ‘infrastructure projects’ coming within the ‘urban

development’ category. Mobile phone systems, and specifically masts and antennae,

constitute infrastructure and urban development. EIA is required under S172 PDA and A5

EIAD for all developments within a category identified in Annex II and Schedule 5 part 2 that

are likely to have significant effects on the environment, even if they are below the national

threshold at which EIA becomes mandatory. R109 PDR requires screening of projects to

determine if an EIA is required.

48. Mobile phone masts and antennae are intended to have a significant impact on the

area they serve – at the very least by providing access to mobile communications and

broadband services, and they necessarily have a visual impact on the area (§7 and §8 of

the Inspector’s Report). The mobile coverage maps included in the Application and

Developer’s appeal response (Radio Frequency Justification Report, dated 6 October 2022

and Updated Technical Justification) indicate the proliferation of masts serving even a small

settlement such as Laytown as well as the range over which they broadcast.

49. The Board erred in law in failing to recognise that mobile phone masts and antennae

constitute urban development, and in failing to carry out screening for EIA in accordance

with R109 PDR.

50. Impacts on landscape, visual amenity and health were significant issues in the

appeal and are matters within the scope of the EIAD.”

104. EIA has an international law dimension pursuant to the UNECE Convention on Environmental

Impact Assessment in a Transboundary Context done at Espoo on 25 February 1991. That doesn’t

help us here as it deals only with projects having transboundary effects, and urban development is

not one specifically identified in Appendix I.

105. Article 1(2)(a) of the directive defines project fairly widely:

“‘project’ means:

—

the execution of construction works or of other installations or schemes,

—

other interventions in the natural surroundings and landscape including those involving the

extraction of mineral resources;”

106. The fact that something is a project doesn’t get things very far however because it still has

to fall within a category of EIA projects.

107. Article 2 of the EIA directive provides (notes omitted, emphasis added):

“Article 2

1. Member States shall adopt all measures necessary to ensure that, before development

consent is given, projects likely to have significant effects on the environment by virtue,

inter alia, of their nature, size or location are made subject to a requirement for

development consent and an assessment with regard to their effects on the environment.

Those projects are defined in Article 4.

2. The environmental impact assessment may be integrated into the existing procedures

for development consent to projects in the Member States, or, failing this, into other

procedures or into procedures to be established to comply with the aims of this Directive.

3. In the case of projects for which the obligation to carry out assessments of the effects

on the environment arises simultaneously from this Directive and from Council Directive

92/43/EEC and/or Directive 2009/147/EC of the European Parliament and the Council,

Member States shall, where appropriate, ensure that coordinated and/or joint procedures

fulfilling the requirements of that Union legislation are provided for.

In the case of projects for which the obligation to carry out assessments of the effects on

the environment arises simultaneously from this Directive and Union legislation other than

the Directives listed in the first subparagraph, Member States may provide for coordinated

and/or joint procedures.

Under the coordinated procedure referred to in the first and second subparagraphs, Member

States shall endeavour to coordinate the various individual assessments of the

environmental impact of a particular project, required by the relevant Union legislation, by

designating an authority for this purpose, without prejudice to any provisions to the contrary

contained in other relevant Union legislation.

Under the joint procedure referred to in the first and second subparagraphs, Member States

shall endeavour to provide for a single assessment of the environmental impact of a

particular project required by the relevant Union legislation, without prejudice to any

provisions to the contrary contained in other relevant Union legislation.

The Commission shall provide guidance regarding the setting up of any coordinated or joint

procedures for projects that are simultaneously subject to assessments under this Directive

and Directives 92/43/EEC, 2000/60/EC, 2009/147/EC or 2010/75/EU.

4. Without prejudice to Article 7, Member States may, in exceptional cases, exempt a

specific project from the provisions laid down in this Directive, where the application of those

provisions would result in adversely affecting the purpose of the project, provided the

objectives of this Directive are met.

In that event, the Member States shall:

(a) consider whether another form of assessment would be appropriate;

(b) make available to the public concerned the information obtained under other forms of

assessment referred to in point (a), the information relating to the decision granting

exemption and the reasons for granting it;

(c) inform the Commission, prior to granting consent, of the reasons justifying the exemption

granted, and provide it with the information made available, where applicable, to their own

nationals.

The Commission shall immediately forward the documents received to the other Member

States.

The Commission shall report annually to the European Parliament and to the Council on the

application of this paragraph.

5. Without prejudice to Article 7, in cases where a project is adopted by a specific act of

national legislation, Member States may exempt that project from the provisions relating to

public consultation laid down in this Directive, provided the objectives of this Directive are

met.

Member States shall inform the Commission of any application of the exemption referred to

in the first subparagraph every two years from 16 May 2017.”

108. Article 4 provides (emphasis added):

“Article 4

1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an

assessment in accordance with Articles 5 to 10.

2. Subject to Article 2(4), for projects listed in Annex II, Member States shall

determine whether the project shall be made subject to an assessment in

accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination;

or

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

3. Where a case-by-case examination is carried out or thresholds or criteria are set for the

purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken

into account. Member States may set thresholds or criteria to determine when projects need

not undergo either the determination under paragraphs 4 and 5 or an environmental impact

assessment, and/or thresholds or criteria to determine when projects shall in any case be

made subject to an environmental impact assessment without undergoing a determination

set out under paragraphs 4 and 5.

4. Where Member States decide to require a determination for projects listed in Annex II,

the developer shall provide information on the characteristics of the project and its likely

significant effects on the environment. The detailed list of information to be provided is

specified in Annex IIA. The developer shall take into account, where relevant, the available

results of other relevant assessments of the effects on the environment carried out pursuant

to Union legislation other than this Directive. The developer may also provide a description

of any features of the project and/or measures envisaged to avoid or prevent what might

otherwise have been significant adverse effects on the environment.

5. The competent authority shall make its determination, on the basis of the information

provided by the developer in accordance with paragraph 4 taking into account, where

relevant, the results of preliminary verifications or assessments of the effects on the

environment carried out pursuant to Union legislation other than this Directive. The

determination shall be made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main

reasons for requiring such assessment with reference to the relevant criteria listed in Annex

III; or

(b) where it is decided that an environmental impact assessment is not required, state the

main reasons for not requiring such assessment with reference to the relevant criteria listed

in Annex III, and, where proposed by the developer, state any features of the project and/or

measures envisaged to avoid or prevent what might otherwise have been significant adverse

effects on the environment.

6. Member States shall ensure that the competent authority makes its determination as

soon as possible and within a period of time not exceeding 90 days from the date on which

the developer has submitted all the information required pursuant to paragraph 4. In

exceptional cases, for instance relating to the nature, complexity, location or size of the

project, the competent authority may extend that deadline to make its determination; in

that event, the competent authority shall inform the developer in writing of the reasons

justifying the extension and of the date when its determination is expected.”

109. So not all projects having effects on the environment require EIA – only those within Annex

I and II.

110. The heading to the relevant part of Annex II is:

“10. INFRASTRUCTURE PROJECTS”

111. A heading (which may be non-interpretative, but on the other hand may illuminate – I don’t

need to decide that here) does not render all infrastructure projects into EIA projects.

112. Class 10 of the EIA Directive in Annex II at (b) refers to:

“Urban development projects, including the construction of shopping centres and car parks.”

113. Schedule 5, Part 2, Class 10(b)(iv) of the PDR 2001 provides thresholds:

“Urban development which would involve an area greater than 2 hectares in the case of a

business district, 10 hectares in the case of other parts of a built-up area and 20 hectares

elsewhere.

(In this paragraph, ‘business district’ means a district within a city or town in which the

predominant land use is retail or commercial use).”

114. The judgment of 16 March 2006, Commission v Spain, C-332/04, ECLI:EU:C:2006:180 (not

available in English) was concerned with wide exclusion of projects in urban areas, which was

deemed unacceptable:

« Sur le quatrième grief tiré d’une transposition incorrecte des dispositions combinées du

point 10, sous b,) de l’annexe II ainsi que des articles 2, paragraphe 1, et 4, paragraphe 2,

de la directive 85/337 modifiée

70 La Commission constate que la loi 6/2001 prévoit, au groupe 7, sous b), de son annexe

II, l’évaluation d’impact environnemental uniquement pour les projets d’aménagement

urbain et de construction de complexes hôteliers situés en dehors des zones urbaines ainsi

que pour les constructions liées, y compris la construction de centres commerciaux et de

parkings (projets ne figurant pas à l’annexe I de la loi 6/2001).

71 Par conséquent, selon la Commission, seraient exclus de la procédure prévue pour les

projets visés à l’annexe II de la directive 85/337 modifiée de tels projets d’aménagement

lorsqu’ils sont situés en zone urbaine. Cette situation, découlant de la législation nationale,

ne serait pas corrigée, sauf dans de rares exceptions, par la législation régionale en matière

d’urbanisme, complétée par la législation régionale en matière d’évaluation des incidences.

En effet, ces dernières n’imposeraient pas non plus une évaluation de l’impact

environnemental en ce qui concerne les instruments de planification urbanistique.

72 Le gouvernement espagnol soutient que la directive 85/337 modifiée permet aux États

membres de décider que certains projets énumérés à son annexe II ne feront pas l’objet

d’une évaluation des incidences sur l’environnement.

73 Selon ledit gouvernement, ce serait en usant de cette faculté que la législation

espagnole soumettrait tous les projets d’aménagement urbain et de constructions de

complexes hôteliers hors des zones urbaines ainsi que les constructions qui s’y rattachent,

y compris la construction de centres commerciaux et de parkings, à l’obligation de fournir

une déclaration d’incidence sur l’environnement dès lors qu’ils se trouvent dans des zones

spécialement sensibles.

74 Le gouvernement espagnol ajoute que, de cette manière, les seuls projets

d’urbanisation qui ne sont pas soumis à une déclaration d’incidence sur l’environnement sont

ceux qui visent des zones urbaines dans lesquelles les incidences sur celui-ci sont

pratiquement nulles puisqu’il s’agit de terrains compris dans une zone urbaine.

75 Ce gouvernement estime que, partant, il n’a pas excédé les pouvoirs d’appréciation

qui lui sont confiés en vertu des articles 2 et 4 de la directive 85/337 modifiée.

76 Certes, la Cour a déjà souligné, à cet égard, que les États membres ont la possibilité

de fixer les critères et/ou les seuils permettant de déterminer quels projets relevant de

l’annexe II de la directive 85/337, dans sa version initiale, doivent faire l’objet d’une

évaluation (arrêt du 24 octobre 1996, Kraaijeveld e.a., C‑72/95, Rec. p. I‑5403, points 49 à

53). Toutefois, dans la fixation de ces seuils et/ou critères, les États membres doivent tenir

compte non seulement de la dimension des projets, mais aussi de leur nature et de leur

localisation (voir, en ce sens, arrêts du 21 septembre 1999, Commission/Irlande, C‑392/96,

Rec. p. I‑5901, points 65 à 67, et du 13 juin 2002, Commission/Espagne, C‑474/99, Rec. p.

I‑5293, point 31).

77 Or, en limitant l’évaluation de l’impact environnemental des projets d’urbanisation aux

seuls projets situés sur des sols non urbains, le gouvernement espagnol se limite à appliquer

le critère de la localisation, qui n’est que l’un des trois critères énoncés à l’article 2,

paragraphe 1, de la directive 85/337 modifiée, sans tenir compte des deux autres critères,

à savoir la nature et les dimensions du projet.

78 En outre, dans la mesure où elle prévoit l’évaluation de l’impact environnemental

uniquement pour les projets de travaux d’aménagement urbain en dehors des zones

urbaines, la législation espagnole fait une application incomplète du critère de la localisation.

79 En effet, les zones à forte densité de population, ainsi que les paysages importants

des points de vue historique, culturel et archéologique, repris au point 2, sous g) et h) de

l’annexe III, de la directive 85/337 modifiée, figurent parmi les critères de sélection dont les

États membres doivent tenir compte, conformément à l’article 4, paragraphe 3, de ladite

directive, pour l’examen cas par cas ou la fixation des seuils ou des critères prévus au

paragraphe 2 de cet article afin de déterminer si un projet doit être soumis à une évaluation.

Or, ainsi que le souligne à juste titre la Commission, ces critères de sélection concernent, le

plus souvent, des zones urbaines.

80 La thèse soutenue par le gouvernement espagnol selon laquelle, dans les zones

urbaines, l’impact environnemental des projets d’urbanisation serait pratiquement inexistant

ne saurait non plus être accueillie au vu de la liste des facteurs pouvant être affectés

directement ou indirectement par les projets visés par la directive 85/337 modifiée.

81 En effet, ces facteurs, énumérés à l’article 3 de la directive 85/337 modifiée, se

retrouvent tant à l’intérieur qu’à l’extérieur des zones urbaines et les probabilités qu’ils soient

affectés par l’un des projets susmentionnés ne varient pas nécessairement en fonction de la

situation de ces zones. En tout état de cause, ni les considérants ni les dispositions de la

directive 85/337 modifiée ne confortent l’interprétation selon laquelle tous les projets

concernant des travaux d’aménagement urbain dans des zones urbaines ne seraient pas

susceptibles d’avoir des incidences notables sur l’environnement au sens de l’article 1er,

paragraphe 1, de cette directive et pourraient dès lors être exclus de la procédure de

demande d’autorisation et d’évaluation en ce qui concerne leurs incidences.

82 Dans ces conditions, le quatrième grief soulevé par la Commission doit être accueilli. »

115. As regards Interpretation of definitions of project categories of annex I and II of the EIA

Directive, Publications Office of the European Union, 2024,

https://data.europa.eu/doi/10.2779/678985, this guidance states as follows (pp. 57-59) (emphasis

added):

“(b) Urban development projects, including the construction of shopping centres and car

parks;

The EIA Directive provides two examples of what could be considered to fall within this

category, i.e. shopping centres and car parks, but these do not constitute an exhaustive list

of the activities covered.

Information on existing practices in Member States shows that interpretations differ

regarding the scope of this project category, although Member States have in most cases

interpreted this category in a broad sense. [n77: COM(2003) 334 final]

Housing developments, in particular, are frequently included in the ‘urban development

projects’ category, as are sports stadiums. In some Member States, this category also

includes leisure centres and multiplex cinemas. In one Member State, this project category

also includes projects for cemeteries, human crematoriums, the extension of theme and

amusement parks, and overhead roadways. Another example is that urban development

projects can include the construction of bus or trolleybus parks, car parks or garage

complexes, sports stadiums or wellness centres (with a construction area exceeding 0.5 ha).

Finally, one Member State introduced the following thresholds above which an environmental

impact assessment is to be conducted: shopping centres and supermarkets with a surface

greater than 2 500 m2; independent parking places with a capacity of more than 300

vehicles; football pitches and stadiums with a capacity greater than 2 000 seats; cinema

complexes with more than six screens; schools for higher education with a capacity greater

than 500 students; university campuses; and churches and other places for religious

worship. Urban development projects in sensitive areas have to be carefully assessed for

their environmental impact.

In interpreting the scope of Annex II (10)(b), the ‘wide scope and broad purpose’ of the EIA

Directive [n78: 78 Stated in case C-72/95, Kraaijeveld and Others, and consistently stressed

in subsequent Court rulings] should be borne in mind. The ruling of the Court in Case

C332/04, Commission v Spain, deals with the selection criteria of Annex III projects based

on an example of this project category. The case dealt with a recreational centre (cinema

complex) to be constructed in an urban area. The Court concluded that national legislation

that excludes all urban development projects in urban areas from this project category

amounts to incorrect transposition of Annex II (10)(b) project category. This is because,

given the size, nature and location of the recreational centre (cinema complex), it could not

have been ruled out from the outset that it is not likely to have a significant impact on the

environment. Therefore, in relation to project location, an urban development project should

be seen as a project that is urban in nature regardless of its location. [n79: COM(2003) 334

final]

To this end, the interpretation of this project category could take account of, inter alia, the

following:

(i) Projects with similar characteristics to car parks and shopping centres could be considered

to fall under Annex II (10)(b). This could be the case, for example, of bus garages or train

depots, which are not explicitly mentioned in the EIA Directive, but have similar

characteristics to car parks.

(ii) Construction projects such as housing developments, hospitals, universities, sports

stadiums, cinemas, theatres, concert halls and other cultural centres could also be assumed

to fall within this category. The underlying principle is that all these project categories are

of an urban nature and that they may cause similar types of environmental impact. [n80:

Including noise and traffic-related disruption during the construction phase, traffic

generation during the operational phase, land-take, impairment of soil function due to

sealing and visual impact]

(iii) Projects to which the terms ‘urban’ and ‘infrastructure’ can relate, such as the

construction of sewerage and water supply networks as well as

telecommunications/wireless communication deployment [n81: Commission

Recommendation (EU) 2020/1307 of 18 September 2020 on a common Union toolbox for

reducing the cost of deploying very high-capacity networks and ensuring timely and

investment-friendly access to 5G radio spectrum, to foster connectivity in support of

economic recovery from the COVID-19 crisis in the Union. https://eurlex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:32020H1307 points out to the application of the EIA

Directive to this type of infrastructure.], could also be included in this category.

Projects for integrated urban transport schemes (e.g. parallel works at different locations to

upgrade bus lanes, tramlines, bus, tram and/or metro stops), could also fall under this

project category.

Member States may decide in their national environmental impact assessment systems that

some of the above-mentioned projects (for example, sports stadiums or water supply

networks, [n82: In at least one Member State, sewerage and water supply networks are

considered to fall within Annex II (10)(j) ‘Installations of long-distance aqueducts’.] drinking

water treatment plants and pipes for carrying treated drinking water [n83: 83 They might

be qualified as Annex II (10)(b) projects although in some cases it may be that the treatment

works should instead be considered as an integral part of another category of project (e.g.

reservoirs, or deep drilling for water supplies).]) fall within other Annex II project categories.

Compliance with the Directive will be ensured, irrespective of which Annex II category is

considered applicable, provided that those projects which give rise to significant

environmental effects do not escape from the scope of application of the Directive.

In Case C-575/21, WertInvest Hotelbetriebs GmbH v Magistrat der Stadt Wien, the Court

dealt with a project falling within this category, namely the construction of a group of

buildings. The latter was subject to a screening, following the criteria set out by the Austrian

legislation, which exempt projects with a land take of below 15 ha and a gross floor area of

less than 150 000m2. In line with its jurisprudence, the Court stated that the power

conferred to Member States to set thresholds for projects under Annex II is limited

by Article 2(1), which imposes that projects likely, by virtue of their nature, size

or location, to have significant effects on the environment are subject to an EIA

before consent. Therefore, in the context of an urban environment in which there is limited

space, the criteria set out by the Austrian legislation are such that in practice all urban

development projects are exempted from an environmental impact assessment (paragraphs

46-47). A project that consists of redeveloping the city centre of Vienna by demolishing an

existing building and constructing two new buildings which among other things include hotel,

commercial and conference premises, an underground skating rink and underground sports

hall, falls within this category.”

116. The European Commission recommendation referred to includes the following at recital 21

(notes omitted, emphasis added):

“In order to avoid unduly delaying the processes for authorising spectrum use and the

installation of wireless communications networks, Member States should exchange best

practices on how to take account of the results of the environmental assessment, when this

is required, and in particular when authorities prepare the framework for future

development consent of projects, while fully respecting Union legislation, in particular

Directive 2001/42/EC of the European Parliament and of the Council (‘Strategic

Environmental Assessment Directive’), Directive 2011/92/EU of the European

Parliament and of the Council (‘Environmental Impact Assessment Directive’) and

Council Directive 92/43/EEC (‘Habitats Directive’). The environmental assessment should

take place at the stage when environmental effects can be identified and assessed.”

117. And at para. 17:

“Where Union legislation, in particular Directive 2001/42/EC (‘Strategic Environmental

Assessment Directive’), Directive 2011/92/EU (‘Environmental Impact Assessment

Directive’) and Directive 92/43/EEC (‘Habitats Directive’), requires an impact assessment,

and in particular when authorities prepare the framework for future development consent of

projects, Member States should exchange best practices on how to perform and take account

of the results of the environmental assessment, at the stage when environmental effects

can be identified and assessed, such as when operators present overall plans for projects

entailing concrete installation or deployment of networks.”

118. This only gets us so far and obviously is phrased in very general terms. The fact that at the

level of principle the erection of telecommunications masts may in certain circumstances come within

EIA does not have the consequence that such erection always comes within EIA.

119. In other words, all that means however is that telecoms masts could be subject to EIA in

some circumstances. In principle a mast only comes under the EIA directive if it itself constitutes

an EIA project (specifically urban development) or if it forms part of a development that otherwise

is an Annex I or II project.

120. The important point here is that urban development is an inherently nebulous concept. While

the applicant tries to present the issue as a pure question of law – a project is either “urban

development” or not, as determined by the courts – that is clearly an impossible standard. Such a

concept is largely evaluative within a wide zone of evaluation.

121. By definition not everything that happens in an urban area is urban development – as in

Reid, it must relate to development of the area qua urban area or qua area being urbanised. That

leaves a wide margin for evaluation.

122. The starting point therefore is the onus of proof being on the applicant to demonstrate that

the margin of evaluation has been exceeded. That is nowhere near the case, especially when one

puts the type of project here – a single mast – alongside the types of projects referenced in the EIA

directive, which refers at point 10(b) of Annex II (emphasis added):

“(b) Urban development projects, including the construction of shopping centres and

car parks;”

123. Talk about noscitur a sociis. A single mast (of which there are probably at least half a

million across Europe, according to public domain material, and at least 4,000 in Ireland) is clearly

at a much lower level of development than more major projects like shopping centres (measured

only in the dozens in Ireland) or car parks, both of which are inherently urbanising, whereas masts

are required for both urban and rural areas.

124. Admittedly the wording of the decision would have been better if the inspector had said that

single masts do not generally constitute urban development in and of themselves, and having

considered the characteristics of this project specifically that conclusion remained. But falling short

of the more lawyerly wording is harmless error if in fact there isn’t anything specific about this

project that makes it urban development when other masts are generally not such development, in

the evaluative judgement of the commission. If one wants to call that an error, it isn’t an error that

gives rise to relief in the absence of it making any difference – and there clearly isn’t anything that

makes this mast super-special so as to warrant setting aside a general evaluative judgement that

masts generally are not the type of project to be generally considered as urban development.

125. In short, there is nothing unlawful about an evaluation that places one-off masts generally

outside the concept of urban development, subject to the possibility – not relevant to the facts here

– of a particular project coming within that, due for example to multiple masts in a single project or

the mast(s) being part of a wider project requiring EIA under another heading.

126. The basic applicant’s fallacy at work in the present case is to improperly generalise from the

possibility of exceptional or particular cases to assert illegality in the given case. Thus the applicant

here incorrectly assumes that merely because in some circumstances telecoms infrastructure is

capable of coming within the notion of urban development (as referenced in the European

Commission guidance), for example where it is part of larger urban development or otherwise

constitutes or forms part of an EIA project, it supposedly follows that she can make an assertion of

legal error merely because an individual mast is not so treated.

127. The fact that all masts form part of an overall network makes the point for one – each

individual mast is only a single node in a web that applies across the country and indeed across the

world. This particular one is nothing special in that context. Nor is there anything inherently urban

about the network of masts to which this one will belong.

128. In view of the inherently evaluative element of deciding what is and is not an urban project

there is no acute question of interpretation of EU law that arises here. A reference (even by an apex

court) is only admissible on an issue of interpretation or validity of EU law, not its application: art.

267 TFEU. Thus a reference doesn’t arise if “no acute point of interpretation is really presented by

[the matter]: it really shades into issues of fact and the application of established principles of EU

law”: 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. 156 (O’Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring).

129. Gratifyingly, this conclusion is also consistent with R. (Condron) v. Merthyr Tydfil County

Borough Council [2009] EWHC 1621 (Admin), where Beatson J. said (emphasis added):

“35. The qualification, however, is that identified most clearly in the speech of Lord Mustill

in R v Monopolies and Merger Commissions, ex parte South Yorkshire Transport [1993] 1

WLR 23 at 32. His Lordship recognised that where an authority misconstrued or

misunderstood a statutory expression, the court must correct it because it is an error of law,

and not a matter of discretion. But his Lordship Lord Mustill also recognised that where

the statutory expression is imprecise, even in respect of what is formally an error of

law, ‘the court is entitled to substitute its own opinion for that of the person to whom the

decision has been entrusted only if the decision is so aberrant that it cannot be classed

as rational’

...

40. As far as paragraph 13 is concerned, Mr Stookes correctly points out that Collins J's

statement, that since the application does not itself fall within Schedule 2 any extension

modification cannot fall within it, does not appear to attract the words of Section 13(a),

which refers to a development of a description listed in Schedule 1. But the development

relied on by the claimants is the Ffos-y-fran opencast coal mining project. That is on a

separate site, albeit geographically close to the disposal point. The applications do not

involve any change in that development. The disposal point operates in relation to other coal

fields as well, and the effect of this application does not facilitate increased extraction from

Ffos-y-fran. There is a link between Mr Stookes' submission on paragraph 13 and ground 2

to which I will return. This is because the claimant is relying on the fact that, in what is

described as the planning application title (but in fact the page reference is a reference to

the officer's report), there is a reference to ‘related’ operations at Ffos-y-fran. I return to

this aspect when considering ground 2. However, on ground 1 I do not consider that the

defendants' decisions that the application did not require EIA are arguably flawed

because the applications arguably fell within the three paragraphs [of the UK transposing

legislation] which I have discussed.

41. I reach this conclusion without getting to what might be thought to be the second stage

of the inquiry, that is, the approach of Lord Mustill in the South Yorkshire Transport case.

However, lest I am wrong in my assessment of what is arguably within the three paragraphs,

I have also considered whether the conclusion that the applications were outside

the scope of the obligation to have an EIA was arguably so bad that it could not be

classed as rational and concluded it was not.”

130. So even aside from this not being a pure issue of interpretation, it does not seem to be an

issue on which doubt arises either.

131. The applicant’s failure to come up with anything substantial from across the EU to show that

a competent authority acts unlawfully by finding that a single mast does not constitute an EIA project

as urban development is also of particular relevance. In the absence of anything to the contrary it

is hard to say that there is any doubt in the matter. The European Commission guidance is not

contrary material for the reasons explained. The applicant’s fallacy is akin to that of applicants in

the deportation space, where they inevitably generalise from ECtHR jurisprudence that in certain

(very extreme) cases, deportation can breach art. 8 ECHR rights, to a conclusion that such rights

are breached in every given case. A similar illogic affects the applicant’s case here.

132. Finally, one can anticipate the applicant’s inevitable complaint that interpretation is a matter

for the court and must be uniform throughout the EU, and it is only application that is a matter for

the commission. While that concept is valid at a general level, it has limited relevance to a very

amorphous instrument such as the EIA directive, where there are vast differences in interpretation

and thresholds across the European legal space.

133. The essential principle is that EU legislation must be given a uniform interpretation across

the EU – but only where it does not involve a role for member states in such interpretation. Where

there is such a role, the requirement of uniform interpretation carries lesser status.

134. To put it another way, some legislation carries within it the seeds of its own flexibility by

conferring on competent authorities a wider than usual zone of evaluation as to the situations to

which the legislation is to be applied. The imperative need for a uniform EU law interpretation as

laid down by the CJEU is less central where the legislation itself impliedly envisages an appreciable

defining or determining role for national parliaments and administrations. For this type of legislation,

the normal rigid distinction between court-led interpretation and administration-led application

doesn’t have quite the same resonance, especially for the more nebulous categories such as “urban

development”, which as the caselaw indicates could mean nearly anything in the opinion of some

applicants. The enactment of such undefined and generalistic categories inherently involves an

acceptance of a considerable latitude for national decision-takers and indeed legislatures. Our own

legislature hasn’t seen the necessity to get involved in trying to clean up ambiguity about the concept

of urban development, so the role of legal janitor falls to the commission and then, familiarly, to the

High Court. In such circumstances I can exercise that role by saying that there isn’t anything

particularly unlawful about the commission’s attempt to apply the directive here.

Summary

135. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that a decision should be read as valid if possible;

(ii) applying such law to the facts here, (a) ASL should be read as meaning OD and

hence as complying with the 2001 regulations, (b) the inspector’s discounting of

health impacts should mean impacts of the type the subject of submissions;

(iii) it is settled law that decisions should not be quashed for immaterial errors or

alternatively that discretion may be exercised against relief on the basis of a

problem it is not material, and that an applicant does not have standing to have a

decision quashed on the basis of a problem that does not arise in the given case;

(iv) applying such law to the facts here, (a) if there is any shortcoming in the plans in

relation to protected structures, the opposing parties have clearly demonstrated the

immateriality of this given the other material before the decision-takers and the way

the issue was addressed, (b) any shortcoming in relation to the wording of the health

issue is immaterial on these facts or alternatively phrased the applicant doesn’t have

standing to have the decision struck down on a wording error that doesn’t affect her

in any way that would make any difference and/or discretion should be exercised

against relief;

(v) it is settled law that legal obligations must be workable;

(vi) applying such law to the facts here, an obligation to re-invent the wheel and consider

health impacts of masts at a general level in all planning applications is not workable;

(vii) it is settled law that the onus of proof lies on an applicant; and

(viii) applying such law to the facts here, (a) this clearly is not a “small town” based on

the way Laytown is treated in the CDP and hence the applicant has not discharged

the onus of proof to show a misinterpretation/ misapplication of the guidelines, (b)

the applicant has not demonstrated that this site adjoins a public road and hence

has not proven the premise of the argument regarding the site notice, and (c) the

applicant has not demonstrated that the commission exceeded its margin of

evaluation in its determination as to whether this project constituted urban

development.

Order

136. For the foregoing reasons, it is ordered that:

(i) the proceedings be dismissed;

(ii) subject to contrary written legal submission within 7 days, there be no order as to

costs;

(iii) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in the judgment may be addressed pursuant to O. 103 r.

40(4) RSC; and

(iv) the matter be listed for mention on 12 January 2026 and for hearing of the

applicant’s proposed leave to appeal application on 28 January 2026.