High Court dismisses quashing of planning decision over Irish language delay but grants EU law declaration.

[2025] IEHC 726

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000539]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AND

SECTION 3 OF THE ENVIRONMENTAL (MISCELLANEOUS PROVISIONS) ACT 2011

BETWEEN

WILD IRELAND DEFENCE CLG

APPLICANT

AND

AN COIMISIÚN PLEANÁLA, MINISTER FOR HOUSING, HERITAGE AND LOCAL

GOVERNMENT, IRELAND, THE ATTORNEY GENERAL AND THE MINISTER FOR TOURISM

ARTS, GAELTACHT, SPORT AND MEDIA

RESPONDENTS

AND

GORTYRAHILLY WIND DAC

NOTICE PARTY

Date of impugned decision: 25 February 2025

Date proceedings commenced: 23 April 2025

Date of main hearing: 3 December 2025

Date draft judgment circulated: 10 December 2025

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

1. The applicant’s central point is the whimsical notion that a commission decision permitting

renewable energy infrastructure is wholly invalid and must be quashed because, despite there being

clear bilingual policies in place, through human oversight there was a delay in issuing an Irish

version. Without in any way diminishing the importance of the Irish language, this is the sort of

overwrought fetishisation of technical quibbling in pursuit of certiorari and costs that appeals to few

outside the applicant community and that gives judicial review a bad name in certain quarters. The

fact that the applicant’s pleadings and written and oral submissions relating to need for automatic

certiorari based on offence to the Irish language were delivered entirely in English does little to

diminish such an impression. The question here is whether a decision can be quashed on such a

basis or on any other asserted basis, such as matters for which no proper evidential foundation has

been laid.

Geographical context

2. The proposed development (https://www.pleanala.ie/en-ie/case/314602) is a strategic

infrastructure development (SID) comprising, inter alia, a wind farm development of 13 turbines

(with an overall ground to blade tip height range from 179 m to 185 m inclusive, with a rotor

diameter ranging from 149 m to 155 m inclusive and a hub height ranging from 102.5 m to 110.5

m inclusive) with a 110 kV electrical substation and all related site works and ancillary development

located within various townlands (Cahernacaha, Gortnabinna, Derryfineen, Gortyrahilly, Rath West,

Derree, Fuhiry, Derreenaculling and other townlands, Co. Cork and Derryreag, Cummeenavrick,

Glashacormick, Clydaghroe and Cummeennabuddoge, Co. Kerry).

Facts

3. The planning application was made directly to the commission by the notice party under

provisions of s. 37E of the 2000 Act on 9 September 2022. The application was made subsequent

to the pre-application consultation with the commission under s. 37B of the 2000 Act (ABP-313440-

22), where the commission determined that the proposed development would constitute SID.

4. Pre-application consultation was also held with the commission for the same site, but for a

proposed development of 12 turbines (ABP-308173-20). Having regard to the inclusion of two

additional turbines the applicant for permission undertook separate pre-application consultation

under ABP-313440-22.

5. The SID planning application was accompanied by a range of supporting documentation,

including an environmental impact assessment report (EIAR), and a screening for appropriate

assessment (AA) and Natura impact statement (NIS).

6. Ten third-party observations (including one by the applicant) were made to the commission

on the application for permission (summarised at section 5.0 of the inspector’s report, at §5.1.1 to

§5.1.22). The applicant’s submission was made in English language and in the Irish language. The

other nine third-party submissions were made in English language only.

7. Cork County Council (the council) submitted a report to the commission addressing the

application (summarised at section 7.0 of the inspector’s report at §7.1 to §7.2).

8. Six other prescribed bodies made submissions/observations in response to the application

(namely the Department of Housing, Local Government & Heritage, Development Applications Unit

(DAU), Geological Survey of Ireland, Inland Fisheries Ireland, the Irish Aviation Authority, Uisce

Éireann and Transport Infrastructure Ireland, which are summarised at section 6.0 of the inspector’s

report at §6.1 to §6.6.14).

9. On or about 20 July 2023, the commission requested further information (RFI) from the

notice party on a number of matters (summarised at section 8.2 of the inspector’s report, at §8.2.1

to §8.2.36).

10. The notice party submitted a response to the further information request on or about 29

September 2023 (the notice party having sought and been given additional time to respond). At

section 8.4 of the inspector’s report, the inspector records (at §8.4.2) that due to the absence of

any significant new information in the notice party’s submission, it was not considered necessary to

undertake further public consultation on the information submitted. At §8.4.1, the inspector states

that the further information that was submitted by the notice party was assessed by the commission

on receipt of same and that it did not significantly amend the information in the original plans and

particulars nor was there considered to be any new information of significance; rather, the additional

information that was provided either clarified or expanded on information in the original information

submitted to address the issues of concern raised in the commission’s further information request.

11. The applicant and another third-party observer requested that the commission hold an oral

hearing in relation to the application. The commission considered that request and for stated reasons

refused that request for an oral hearing.

12. The commission appointed an inspector to prepare a report in relation to the subject SID

application, and this was done. Two inspectors were assigned to the application and the report was

prepared by the lead inspector, who is an assistant director of planning in the commission (a fact

recorded at p. 304 of the inspector’s report), having previously been a senior planning inspector for

the commission. The inspector’s report, which is dated 23 December 2024, records on p. 2 that site

inspections were carried out on 16 June 2023, 2 July 2024 and 13 December 2024. The inspector

(at section 13.0) recommended that permission be granted for the proposed development for stated

reasons and considerations (at section 14.0) and subject to conditions (at section 15.0). Condition

4 as recommended/proposed by the inspector, recommended/proposed that the turbine referenced

as T12 together with associated hardstands and access tracks, be omitted from the proposed

development, meaning that the permitted number of turbines would be 13. The commission agreed

with the inspector’s recommendation in this regard, as reflected in condition 4 in the commission’s

order dated 25 February 2025 (at p. 12).

13. Appended to the inspector’s report are the respective reports of the commission’s ecologist

(dated 29 July 2024) and the commission’s environmental scientist (dated 15 August 2024) on the

subject application for permission. The ecologist and environmental scientist were asked to assist

and advise the inspector in relation to the assessment of particular aspects of the proposed

development / its potential effects.

14. The commission’s direction (BD-018857-25) dated 10 February 2025, records on p. 1 that

the “submissions on this file and the Inspector’s report were considered at a Board meeting held on

07/02/2025” and also that “[t]he Board decided to grant permission generally in accordance with

the Inspector’s recommendation, for the following reasons and considerations, and subject to the

following conditions”.

15. The commission’s order (ABP-314602-22) dated 25 February 2025, records, inter alia, the

commission’s decision to grant permission for the wind farm development subject to 28 conditions

(set out at pp. 11-23 of the order) and for stated reasons and considerations. As noted above, by

virtue of condition 4 of the commission decision, and consistent with the recommendation of the

inspector, the turbine referenced as T12 together with associated hardstands and access tracks, was

omitted.

16. As regards AA, the commission’s order (at pp. 6-10) also, inter alia, records that the board

carried out a stage 1 AA screening and stage 2 AA, and that it carried out an EIA of the proposed

development.

17. The commission’s order also records (at pp. 10-11) that, for stated reasons and

considerations, the board considered that the proposed development would be in accordance with

the proper planning and sustainable development of the area.

18. The commission’s order was initially in the English language only.

19. The commission’s order has subsequently been published in the Irish language on 9 July

2025 on the relevant page on the Commission’s website (https://www.pleanala.ie/en-

ie/case/314602), with the applicant and the other parties being notified of such publication and

provided with said link to the commission’s website, by email from the commission’s solicitors, dated

9 July 2025.

Procedural history

20. The proceedings issued by filing in the Central Office on 23 April 2025.

21. On 28 April 2025, leave was granted with liberty to file an amended statement of grounds.

22. The amended statement of grounds was filed on 7 May 2025.

23. On 26 May 2025, the matter was listed for mention and the State applied for modularisation.

The commission was neutral on modularisation, although the notice party was opposed to it, and

the matter was adjourned to the June List to Fix Dates.

24. On 30 June 2025, the invalidity relief D5 and ground E6 were modularised strictly on the

basis that a combined Module II would deal with the Power and validity issues.

25. The commission filed its statement of opposition on 26 September 2025.

26. The State respondents filed their statement of opposition on 23 October 2025.

27. The notice party filed its statement of opposition on 20 October 2025.

28. The commission filed an amended statement of opposition on 20 November 2025.

29. On 26 September 2025, the first affidavit of Robert Brophy was filed.

30. On 16 October 2025, the verifying affidavit of Cliona O’Brien was filed.

31. On 17 October 2025, the verifying affidavit of Ciara Carberry was filed.

32. On 20 October 2025, a second affidavit of Robert Brophy, affidavit of Peter Lynch (17

October 2025) and affidavit of Sarah Moore (17 October 2025) were filed.

33. On 29 October 2025, supplemental affidavit of Elizabeth Davidson was filed.

34. On 3 November 2025, the matter was listed at the request of the parties. The applicant

sought to put in additional evidence by 12 November 2025, and an issue with the modularisation

order was raised. I clarified what was modularised as follows:

(i) relief 5/ core ground 6 modularised (although in fact core ground 6 turns out to be

academic in the light of the following); and

(ii) ground 3 remains save for the Power/Knocknamona point.

35. The applicant requested an extension of time for further affidavits to 12 November 2025,

which I allowed de bene esse without prejudice to the opposing parties with a possibility to reply.

The opposing parties were to file their submissions and affidavits by 21 November 2025 de bene

esse.

36. The modularisation order of 30 June 2025 was corrected under the slip rule.

37. The matter was listed for callover on 17 November 2025, at which point the applicant’s

affidavits were late. I directed that the Minister of State should be deleted as a respondent. I also

clarified that the conservation measures point was in, and that all opposing parties could reply by

affidavit.

38. On 17 November 2025, the affidavit of Marie Louise Heffernan was filed.

39. On 19 November 2025, the third affidavit of Robert Brophy was filed.

40. On 24 November 2025, the affidavit of David Tierney was filed.

41. The matter was heard on 3 December 2025.

42. 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.

43. On 10 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.

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

in writing within 7 days or by the next mention date whichever is sooner, 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.

45. 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).

46. 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.

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

Relief sought

48. The reliefs sought are as follows:

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

made by the Respondent (‘the Board’) on or about 25 February 2025 to grant planning

permission to the Notice Party (‘the Developer’) for the construction of 13 wind turbines and

ancillary works at Gortyrahilly and other townlands in Co. Cork and Derryreag,

Cummeenavrick, Glashacormick, Clydaghroe and Cummeennabuddoge in Co. Kerry (An Bord

Pleanála case file PA04. 314602).

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

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

3. A Declaration that the Second and or Third and Fourth Respondents:

(i) failed to fulfil their obligations under Articles 3, 4(1) and 4(2) of the Birds Directive

and Article 6 of the Habitats Directive as implemented by S.I. 477 of 2011 and in particular

Article 26 thereof, by failing to establish the necessary site-specific conservation objectives

and conservation measures for birds that use the Gearagh Special Protection Area; and or

(ii) acted contrary to reg. 26 (7) of S.I. No. 477/2011 by failing to identify additional

species referred to in Article 4(1) and 4(2) of the Birds Directive as the subject of site-

specific conservation objectives for the Gearagh SPA and the Mullaghanish to Musheramore

Mountains SPA, and measures which they consider to correspond to the ecological

requirements of the species.

4. A Declaration that the impugned decision was made contrary to Article 8 of the

Constitution and or fair procedures because the Order of the First Respondent was made in

the English language only and not also in the Irish language.

5. A Declaration that s.20(3) of the Official Languages (Amendment) Act 2021

and/or S.I. No. 692/2024 - Official Languages (Amendment) Act 2021 (Commencement)

(No. 2) Order 2024 is are invalid and was were made contrary to fair procedures and natural

justice and Art. 8 of the Constitution because it they brought into operation Section 17

of the Official Languages (Amendment) Act 2021 (No. 49 of 2021), without first

ensuring that there was in place the section 18E Scheme (inserted by the 2021 Act

into the Official Languages Act 2003) or the sections 19A-19D ‘Language

Standards’ regime (inserted by the 2021 Act into the Official Languages Act 2003)

intended to replace the ‘Language Scheme’ regime provided for in the Official

Languages Act 2003 as originally enacted or otherwise failing to ensure that An Bord

Pleanála would continue its established practice of issuing its Board Orders in the Irish

language for decisions concerning significant developments in Gaeltacht areas or when an

appeal had been made in the Irish Language concerning a development in a Gaeltacht area.

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

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

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

this application.

7. If necessary, a stay preventing the operation of the impugned decision until after

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

8. Further and other orders including interim orders.”

Grounds of challenge

49. The core grounds of challenge are as follows:

“Domestic Law Grounds

1. The impugned decision is invalid and was made unreasonably and contrary to Article

8 of the Constitution because the Board Order was made in the English language only and

not also in the Irish language, in circumstances where the proposed windfarm is to be located

predominantly in the Gaeltacht area of Múscraí, and the First Applicant submitted an appeal

in Irish (and English) and part of the Environmental Impact Assessment (the non-technical

summary of the Environmental Impact Assessment Report) was in the Irish language, and

when it has been the practice and the policy of the Board to publish bilingual decisions in

other developments in Gaeltacht areas. The Board erred in failing to seriously consider

issuing a bilingual Board Order.

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

the Applicant applied for an Oral Hearing and the Board failed to exercise its discretion under

s.134 to decide whether or not to hold an oral hearing of an application under section 37E

and the decision not to hold an Oral Hearing was unlawfully delegated to persons other than

the members of the Board of the first Respondent.

EU Law Grounds

3. The impugned decision is invalid because it contravenes Article 6 of Council Directive

92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and

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

Development Act 2000 and Article 4 of the EIA Directive as transposed by Part X of the PDA

2000, as amended, and the Aarhus convention and in accordance with the case law of the

CJEU by:

• failing to carry out an Appropriate Assessment properly or at all without lacunae and

which contains complete, precise and definitive findings and conclusions capable of dispelling

all reasonable scientific doubt as to the effects of the proposed works on the conservation

interests of the Mullaghanish to Musheramore Mountains SPA and Gearagh SPA having

regard to site specific conservation objectives and or special conservation measures; and

• failing to carry out an Appropriate Assessment properly or at all without lacunae and

which contains complete, precise and definitive findings and conclusions capable of dispelling

all reasonable scientific doubt as to the effects of the proposed works on the conservation

of other species of birds which must be protected under Article 4 and Annex I of the Birds

Directive namely the Golden Plover, a regularly occurring migratory species to the Gearagh

SPA and the Merlin in the Mullaghanish to Musheramore Mountains SPA, having regard to

site specific conservation objectives or site specific special conservation measures.

Further particulars are set out in Part 2 below.

4. The impugned decision is invalid in that it contravenes Article 2(1) and Article 3 of

the EIA Directive as implemented by Part X of the Planning and Development Act 2000 and

Part 10 and Part 18 of the Planning and Development Regulations 2001 as amended, because

the Board failed to ensure that, before development consent was given, the whole project

was made subject to the requirement for development consent and a proper assessment of:

• the expected effects on the White-Tailed Eagle (Haliaetus albicilla)

• the effects deriving from the vulnerability of the project to risks of major accidents

and/or disasters that are relevant to the project concerned which in this case includes the

elevated risk that the construction and or operation of Turbines T1 and or T2 and or T13 will

cause a landslide and associated risk to the environment including drinking water and

cultural heritage assets ; or the effects of the relocated Turbine T7.

Transposition Ground

5. The impugned decision is invalid because the Second and or Third and Fourth

Respondents :

(i) failed to fulfil their obligations under Articles 3, 4(1) and 4(2) of the Birds Directive

and Article 6 of the Habitats Directive as implemented by S.I. 477 of 2011 and in particular

Article 26 thereof, by failing to establish the necessary site-specific conservation objectives

and conservation measures for birds that use the Gearagh Special Protection Area; and or

(ii) acted contrary to reg. 26 (7) of S.I. No. 477/2011 by failing to identify additional

species referred to in Article 4(1) and 4(2) of the Birds Directive as the subject of site-

specific conservation objectives for the Gearagh SPA and the Mullaghanish to Musheramore

Mountains SPA, and measures which he or she considers correspond to the ecological

requirements of the species.

Invalidity Ground

6. Section 20(3) of the Official Languages (Amendment) Act 2021 and/or S.I.

No. 692/2024 - Official Languages (Amendment) Act 2021 (Commencement) (No.

2) Order 2024 is are invalid and was were made contrary to fair procedures and

natural justice and Art. 8 of the Constitution because it they brought into operation

Section 17 of the Official Languages (Amendment) Act 2021 (No. 49 of 2021),

thereby repealing the provisions of the Official Languages Act 2003 concerning

‘Language Schemes’, without first ensuring that there was in place the section 18E

Scheme or the section 19A-D ‘Language Standards’ regime intended to replace the

‘Language Scheme’ regime provided for in the Official Languages (Amendment)

Act 2003 as originally enacted or an alternative provision to ensure that An Bord

Pleanála would continue its established practice of issuing its Board Orders in Irish

for decisions concerning significant developments in the Gaeltacht including when

an appeal had been made in the Irish Language. The issue of the Board Order in

English alone is therefore invalid and contrary to the provisions of the

Constitution.”

50. Core ground 2 is not pursued. The Eagle and landslide points in core ground 4 are not

pursued.

The impugned decision

51. The impugned decision provides as follows:

“Decision

Grant permission under section 37G of the Planning and Development Act 2000, as

amended, for the above proposed development in accordance with the said plans

and particulars based on the reasons and considerations under and subject to the

conditions set out below.

Determine under section 37H(2)(c) the sum to be paid by the applicant in respect

of costs associated with the application as set out in the Schedule of Costs below.

Reasons and Considerations

The Board made its decision consistent with the:

• Climate Action and Low Carbon Development Act 2015, as amended,

• Climate Action Plan 2024,

• National Biodiversity Plan 2023 - 2030,

EU Legislation

• The relevant provisions of EU Directive 2014/52/EU amending Directive 2011/92/EU (EIA

Directive) on the assessment of the effects of certain public and private projects on the

environment.

• Directive 92/43/EEC (Habitats Directive) and Directive 79/409/EEC as amended by

2009/147/EC (Birds Directives) which set the requirements for Conservation of Natural

Habitats and of Wild Fauna and Flora throughout the European Union.

• EU Renewable Energy Directive 2009/28/EC which aims to promote the use of renewable

energy.

and in coming to its decision, the Board had regard to the totality of information on the file

including the following:

(a) National policy with regard to the development of alternative and indigenous energy

sources and the minimisation of emissions from greenhouse gases.

(b) The provisions of Project Ireland 2040 National Planning Framework

(c) The provisions of the Wind Energy Development Guidelines - Guidelines for planning

authorities issued by the Department of the Environment, Heritage and Local Government

in June 2006, and the Draft Revised Wind Energy Development Guidelines 2019 issued by

the Department of Housing in 2019.

(d) The policies, as set out in the Regional Spatial and Economic Strategy of the Southern

Region 2020.

(e) The policies and objectives, as set out in the Cork County Development Plan 2022 - 2028

and the Kerry County Development Plan 2022 - 2028.

(f) The character of the landscape in the area of the site and in the wider area of the site.

(g) The pattern of the existing and permitted development in the area.

(h) The distance between the turbines and surrounding dwellings and other sensitive

receptors from the proposed development.

(i) The Environmental Impact Assessment Report submitted.

G) The Natura Impact Statement submitted.

(k) The submissions and observations made in connection with the planning application.

(I) The report of the Inspector.

(m) The report of the Board's Ecologist.

(n) The report of the Board's Environmental Scientist.

Appropriate Assessment: Stage 1:

The proposed development was considered in light of the requirements of Section 177U of

the Planning and Development Act 2000, as amended. Having carried out screening for

Appropriate Assessment, it has been concluded that the proposed development, either

individually or in-combination with other plans or projects, would not be likely to have a

significant effect on Mullaghanish Bog Special Area of Conservation (Site Code: 001890),

Saint Gobnet's Wood Special Area of Conservation (Site Code: 000106), Blackwater River

(Cork/Waterford) Special Area of Conservation (Site Code: 002170), Derryclogher

(Knockboy) Bog Special Area of Conservation (Site Code: 001873), Glanlough Woods Special

Area of Conservation (Site Code: 002315), Kilgarvan Ice House Special Area of Conservation

(Site Code: 000364), Old Domestic Building, Curraglass Wood Special Area of Conservation

(Site Code: 002041 ), Great Island Channel Special Area of Conservation (Site Code:

001058), and Cork Harbour Special Protection Area (Site Code: 004030), in view of the sites'

conservation objectives, and Stage 2 Appropriate Assessment) is not, therefore, required in

relation to the above mentioned European Sites.

This determination is based on the following:

• The qualifying criteria of each of the European Sites.

• The distance from the application site and study area.

• The absence and lack of meaningful ecological connections to those sites.

This screening determination is not reliant on any measures intended to avoid or

reduce potentially harmful effects of the project on a European Site.

Appropriate Assessment: Stage 2:

The proposed development, including the wind farm site, turbine delivery route and grid

connection route and all associated works have been considered in light of the assessment

requirements of Sections 177U and 177Vof the Planning and Development Act 2000, as

amended. Having carried out screening for Appropriate Assessment of the project, it was

concluded that the proposed development may potentially have a significant effect on

Killarney National Park, Macgillycuddy's Reeks and Caragh River Catchment Special Area of

Conservation (Site Code: 000365), Mullaghanish to Musheramore Mountains Special

Protection Area (Site Code: 004162), The Gearagh Special Area of Conservation (Site Code:

000108) and The Gearagh Special Protection Area (Site Code: 004109). Consequently, an

Appropriate Assessment was required of the implications of the project on the qualifying

features of these sites in light of their conservation objectives.

Following an Appropriate Assessment, it has been ascertained that the proposed

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

adversely affect the integrity of the European Sites, Killarney National Park, Macgillycuddy's

Reeks and Caragh River Catchment Special Area of Conservation (Site Code: 000365),

Mullaghanish to Musheramore Mountains Special Protection Area (Site Code: 004162), The

Gearagh Special Area of Conservation (Site Code: 000108) and The Gearagh Special

Protection Area (Site Code: 004109), or any other European Site, in view of the sites'

conservation objectives. This conclusion is based on a complete assessment of all aspects

of the proposed project and there is no reasonable doubt as to the absence of adverse

effects.

This conclusion is also based on:

• A full and detailed assessment, including information presented in the Environmental

Impact Assessment Report, of all aspects of the proposed project including proposed

mitigation measures and ecological monitoring in relation to the Conservation Objectives of

the Killarney National Park, Macgillycuddy's Reeks and Caragh River Catchment Special Area

of Conservation (Site Code: 000365), Mullaghanish to Musheramore Mountains Special

Protection Area (Site Code: 004162), The Gearagh Special Area of Conservation (Site Code:

000108) and The Gearagh Special Protection Area (Site Code: 004109).

• Detailed assessment of in-combination effects with other plans and projects.

• No reasonable scientific doubt as to the absence of adverse effects on the integrity of the

Killarney National Park, Macgillycuddy's Reeks and Caragh River Catchment Special Area of

Conservation (Site Code: 000365), Mullaghanish to Musheramore Mountains Special

Protection Area (Site Code: 004162), The Gearagh Special Area of Conservation (Site Code:

000108) and The Gearagh Special Protection Area (Site Code: 004109).

Environmental Impact Assessment:

The Board completed an Environmental Impact Assessment of the proposed development,

taking into account:

(a) The nature, scale, location, and extent of the proposed development.

(b) The Environmental Impact Assessment report (EIAR) and associated documentation

submitted with the application, including the further information.

(c) The submissions received during the course of the application.

(d) The Inspector's report, which includes reports from the Board's Ecologist and

Environmental Scientist.

The Board considered that the Environmental Impact Assessment Report, supported by the

documentation submitted by the applicant, provided information which is reasonable and

sufficient to allow the Board to reach a reasoned conclusion on the significant effects of the

proposed development on the environment, taking into account current knowledge and

methods of assessment. The Board is satisfied that the information contained in the

Environmental Impact Assessment Report is up to date and complies with the provisions of

EU Directive 2014/52/EU amending Directive 2011/92/EU. The Board considered that the

main significant direct and indirect effects of the proposed development on the environment

are those arising from the impacts listed below.

The main significant effects, both positive and negative, are:

• Population and Human Health: Negative impacts on human health and population

arising from construction and operation including noise, traffic and dust disturbance to

residents of neighbouring dwellings can be adequately mitigated through the implementation

of the Construction Environmental Management Plan, best practice construction methods,

installation of shadow flicker systems on the turbines and noise levels within levels

recommended in the national wind energy guidelines. There will be a long term significant

positive effect on population and human health due to the displacement of carbon dioxide

from the atmosphere arising from fossil fuel energy production and from the implementation

of the Community Benefit Fund.

• Biodiversity: The removal of habitats on site, including wet heath and blanket bog will

have a moderate long term negative impact on biodiversity which can be mitigated through

the delivery of mitigation measures including the inclusion of a Habitat Enhancement Plan

within the site. The impact on peat habitats will not have any effect on the nature or range

of any habitats or the conservation objectives of any European Sites. Negative impacts on

species within the site, including the Kerry Slug and bats, which are likely to arise in the

construction and operational phase can be mitigated through a Conservation Management

Plan and the careful design of the turbines, and are not considered to be significant. The

watercourse crossing will not impact on water connectivity or movement of fish or result in

the loss of instream habitat. Negative effects on aquatic species and habitat which are likely

to arise from potential release of sediments and other pollutants into watercourses can be

adequately mitigated by measures outlined in the application.

• Land, Soils, Water, Air and Climate: Negative effects on surface water and ground

water as a result of accidental spillage of hydrocarbons, increased sedimentation, including

any release of organic carbon, and any other contaminants entering the drainage system

can be adequately mitigated by measures outlined in the application. The proposed

development will not impede the ability of surface waters to achieve good or high status and

the Water Framework Directive and the removal of Turbine T12 will ensure that any risk

from unstable peat is removed.

• Landscape and Visual and Cultural Heritage: Negative Landscape and Visual and

Cultural Heritage impacts arise during the operational phase of the development given the

placement of significant structures within the local landscape thereby changing the existing

visual context in a slight to substantial-moderate magnitude. The impacts have been

mitigated where possible by the proposed layout and the use of the existing landscape

contours. Potential construction impacts on cultural heritage interest can be adequately

mitigated through pre-construction surveys and buffer zones.

• Material Assets: Negative traffic impacts arise during the construction phase of the

proposed development; these impacts will be mitigated through the implementation of a

Traffic Management Plan. Impacts arising from traffic can be appropriately mitigated.

Potential negative effects on other material assets, telecommunication links and aviation

during operation can be adequately mitigated.

Having regard to the above, the Board is satisfied that the proposed development would not

have any unacceptable direct or indirect effects on the environment. The Board is satisfied

that the reasoned conclusion is up to date at the time of making the decision. The Board

completed an environmental impact assessment in relation to the proposed development

and concluded that, subject to the implementation of the mitigation measures proposed and

subject to compliance with the conditions set out herein, the effects on the environment of

the proposed development by itself, and, cumulatively with other development in the

vicinity, would be acceptable. In doing so, the Board adopted the report and conclusions of

the reporting Inspector.

Proper Planning and Sustainable Development

It is considered that the proposed development would accord with European, national,

regional and local planning policy provision. The Board was satisfied that an approval for

the proposed development would be consistent with national climate ambitions and with the

relevant provisions of the Climate Action Plan 2024. Furthermore, the Board has performed

its functions in relation to the making of its decision, in a manner consistent with Section

15(1) of the Climate Action and Low Carbon Act 2015, as amended by Section 17 of the

Climate Action and Low Carbon Act 2021. The Board considered that by reason of scale,

form and extent, that, subject to compliance with the following conditions, the proposed

development would

be in accordance with the relevant provisions of the Cork County Development Plan 2022-

2028, and the Kerry County Development Plan 2022- 2028. The proposed development,

would therefore, be in accordance with the proper planning and sustainable development of

the area.

Conditions

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

plans and particulars lodged with the planning application, 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 mitigation measures contained in the submitted Environmental Impact Assessment

Report (EIAR) and in the applicant's further information submitted on the 29th day of

September 2023 shall be implemented. Details of a time schedule for implementation of

mitigation measures and associated monitoring shall be submitted to the relevant planning

authority. In addition to the mitigation measures contained in the EIAR, the following shall

be submitted:

(a) The annual bird survey and bird monitoring programme shall include for general breeding

birds, all species listed in the EIAR and the Hen Harrier to establish presence and abundance

of bird species including possible prey species. The survey and monitoring shall include an

audit and review of all the species and the results of monitoring shall be submitted to Cork

County Council and to the National Parks and Wildlife Services.

Reason: To protect the environment and to ensure appropriate monitoring of the impact of

the development on the avifauna of the area.

3. The mitigation measures contained in the submitted Natura Impact Statement (NIS), shall

be implemented.

Details of a time schedule for implementation of mitigation measures and associated

monitoring shall be submitted to the relevant planning authority.

Reason: To protect the integrity of European Sites.

4. The proposed development shall be amended as follows:

(a) Turbines referenced as Turbine T12, together with associated hard stands and access

tracks, shall be omitted from the development hereby permitted.

(b) Turbine T7 together with associated hardstands and access track shall be shifted south

to remove the impact on the public road L-34011-20.

For clarity, the permitted wind farm shall relate to thirteen wind turbines only.

Revised drawings showing compliance with these requirements and showing the final turbine

design and layout shall be submitted to, and agreed in writing with, the planning authority

prior to commencement of construction.

Reason: In the interest of clarity and to ensure the protection of the environment and the

public road.

5. This permission shall be for a period of 35 years from the date of the first commissioning

of the wind farm.

Reason: To enable the planning authority to review its operation in the light of the

circumstances then prevailing.

6. The operation of the development, either by itself or in-combination with any other

permitted wind energy development, shall not result in noise levels when measured

externally at nearby noise sensitive locations which exceed:

(a) Between the hours of 0700 and 2300:

(i) the greater of 5 dB(A) L90,10min above background noise levels, or 45 dB(A)

L90,10min, at standardised 10 metres height above ground level wind speeds of 7m/s

or greater.

(ii) 40 dB(A) L90,10min at all other standardised 10 metres height above ground level

wind speeds.

(b) 43 dB(A) L90,10min at all other times.

Prior to the commissioning of the development, the developer shall submit to, and agree in

writing with, the planning authority, a Noise Compliance Monitoring Programme (NCMP) for

the subject development, including any mitigation measures such as the de-rating of

particular turbines. The NCMP shall include a detailed methodology for all sound

measurements, including frequency of monitoring (initially six months, with confirmatory

monitoring in the third year post commissioning) and recording of results, which shall be

made publicly available.

The results of the initial noise compliance monitoring shall be submitted to, and agreed in

writing with, the planning authority within six months of commissioning of the wind farm.

Reason: In the interests of residential and/or amenities.

7. (a) The Habitat Enhancement Plan (HEP) shall be implemented in accordance with the

commitments outlined therein for a period of at least fifteen years following first

commissioning of the wind farm hereby permitted. Prior to commencement of development,

the applicant shall enter into a written agreement with the planning authority under Section

4 7 of the Planning and Development Act 2000, as amended to this effect.

(b) Within six months prior to the expiry of the Section 47 planning agreement mentioned

in paragraph (a), the applicant shall provide details in relation to HEP lands for the remainder

of the duration of the permission. The details provided shall be commensurate in area to

those contained within the HEP submitted with the application and subject to the provisions

of paragraph (a).

The applicant shall enter into a further written agreement with the planning authority under

Section 47 of the Planning and Development Act 2000, as amended, to this effect prior to

expiry of the initial agreement mentioned in paragraph (a). This condition shall not affect

the sale of land or buildings by a mortgagee in possession or the occupation of such land or

buildings by any person deriving title from such a sale.

Reason: In the interest of biodiversity.

8. An updated Construction Environmental Management Plan (CEMP) containing site specific

details of all on-site construction works, post-construction reinstatement, drainage,

mitigation, and monitoring measures, together with details of their timetabling, shall be

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

development. The development including the grid connection route and delivery haul route

shall be carried out in strict accordance with the CEMP, which shall be implemented in full,

unless otherwise approved in advance in writing by the planning authority.

Reason: To ensure that all construction operations are carried out in a manner that

minimises their impact on road safety, amenity, and the environment, and that the

mitigation measures contained in the Environmental Impact Assessment Report and the

Natura Impact Statement accompanying the application, or as otherwise agreed, are fully

implemented.

9. Water supply, wastewater treatment and surface water attenuation and disposal shall

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

Reason: In the interest of public health.

10. The following design requirements shall be complied with:

(a) No development shall commence unless and until full details of the proposed wind

turbines (including, but not limited to, the power rating and sound power levels, the size,

type) have been submitted to, and agreed in writing with, the planning authority.

(b) The wind turbines including masts and blades, and the wind monitoring mast, shall be

finished externally in a light grey colour.

(c) Cables within the site shall be laid underground.

(d) The wind turbines shall be geared to ensure that the blades rotate in the same direction.

(e) No name, logo, sign, or advertisement (other than health and safety signage) material

shall be placed on, or otherwise be affixed to, any structure on the site without a prior grant

of planning permission.

(f) The wind turbines shall be constructed and operated in accordance with the approved

details and maintained in the approved colour, free from external rust, staining or

discolouration, until such time as the wind farm is decommissioned.

Reason: To ensure that the environmental impacts of the turbines forming part of the

development conform to the impacts assessed in the Environmental Impact Assessment

Report and in the interest of the visual amenity of the area.

11. (a) No development shall commence unless and until a Construction Traffic Management

Plan (CTMP) has been submitted to, and agreed in writing with, the planning authority in

consultation with Transport Infrastructure Ireland. The CTMP shall include (but is not limited

to: details of pre-start road condition and condition monitoring surveys; arrangements to

ensure that any damage to the road infrastructure as a result of the works is repaired;

measures to ensure that the specified traffic routes are adhered to (including monitoring

procedures); details of abnormal loads including a load assessment of the route; details of

all signage and lining arrangements, and notification arrangements). The development shall

be carried out in strict accordance with the approved CTMP which shall be implemented in

full, unless otherwise agreed in advance in writing with the planning authority.

(b) Any works to the local roads including strengthening and widening works shall be carried

out in accordance with a specification and timescale agreed in advance with the planning

authority.

(c) Works on, or adjacent to, national roads including the N22 shall be carried out in

compliance with Transport Infrastructure Ireland's requirements and with the agreement of

the planning authority and Transport Infrastructure Ireland.

(d) The temporary bridge of the Sullane River and associated access road and road junctions

shall be removed and the land reinstated prior to the commissioning of the wind farm.

The development shall be carried out in strict accordance with the approved Construction

Traffic Management Plan which shall be implemented in full, unless otherwise agreed in

advance in writing with the planning authority.

Reason: In the interests of traffic safety and public safety.

12. The developer shall agree with Transport Infrastructure Ireland a strategy for the

proposed directional drilling under the N22.

Reason: In the interests of environment protection and traffic safety.

13. There will be no shadow flicker at any existing nearby dwelling or other relevant existing

affected sensitive property and the necessary measures outlined in the Environmental

Impact Assessment Report submitted with the application, such as turbine shut down during

the associated time periods, shall be taken by the wind energy developer or operator to

eliminate the shadow flicker.

Reason: In the interest of residential amenity.

14. Details of aeronautical requirements, including any necessary lighting on the tower,

crane, and stacks, shall be submitted to, and agreed in writing with, the planning authority

prior to commencement of development and provide 30 days notification of same.

Subsequently, the developer shall inform the planning authority and the Irish Aviation

Authority of the as constructed tip heights and co-ordinates in WGS84 format of the as

constructed positions of the turbines.

Reason: In the interest of air traffic safety.

15. (a) Details of measures to address interference with the 2RN FM link from Mullaghanish

to Bantry shall be agreed with the planning authority in consultation with the

provider/operator, and thereafter, be installed and tested at the developer's expense prior

to the commissioning of the wind turbines, and maintained for the lifespan of the

development, unless otherwise agreed.

(b) In the event that the development causes interference with telecommunications signals,

effective measures shall be introduced to minimise interference with telecommunications

signals in the area. Details of these measures, which shall be at the developer's expense,

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

relevant provider/operator and thereafter installed, tested, and maintained for the lifespan

of the development, unless otherwise agreed.

Reason: In the interests of protecting telecommunications signals and of residential

amenity.

16. The developer shall ensure that all plant and machinery used during the works should

be thoroughly cleaned and washed before delivery to the site to prevent the spread of

hazardous invasive species and pathogens.

Reason: In the interest of the proper planning and sustainable development of the area.

17. The developer shall retain the services of a suitably qualified and experienced

Environmental Clerk of Works (ECoW) prior to the commencement of the development and

retain their services to fulfil the mitigation and monitoring measures as specified in the EIAR

including Appendix 17 .1 . The role of the ECoW is applicable to the construction of the

development including the grid connection route and turbine delivery route (including

removal works), and to the operation of the wind farm. To assist the ECoW in carrying out

their role, the developer shall retain services of technical experts as necessary to the tasks

required.

Reason: In the interest of protecting ecology, the environment, and European sites.

18. The developer shall retain the services of a suitably qualified and experienced bird

specialist to undertake appropriate annual bird surveys of this site. Details of the surveys

to be undertaken and associated reporting requirements shall be developed following

consultation with, and agreement in writing with, the planning authority, prior to

commencement of development. These reports shall be submitted on an agreed date

annually for five years, with the prior written agreement of the planning authority. Copies

of the reports shall be sent to the Department of Housing, Local Government and Heritage.

Reason: To ensure appropriate monitoring of the impact of the development on the avifauna

of the area.

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

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

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

of any site operation (including hydrological and geotechnical investigations) relating to the

proposed development.

(b) Employ a suitably qualified archaeologist who shall monitor all site investigations and

other excavation works.

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

the removal of any archaeological material which the authority considers appropriate to

remove.

(d) Ensure a buffer zone of at least 25 metres if retained around any recorded site and/or

standing stone.

(e) The road section at Gortnabinna contains a number of Devonian trace fossils.

Construction work should identify and avoid these sections, or where necessary, provide

appropriate mitigation measures to minimise potential impacts.

(f) The planning authority and the National Monuments Service shall be furnished with a

final archaeological report describing the results of any subsequent archaeological

investigative works and/or monitoring following the completion of all archaeological work on

site and the completion of any necessary post-excavation work. All resulting and associated

archaeological costs shall be borne by the developer.

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

Bord Pleanála for determination.

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

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

20. (a) The curtailment measures for the wind farm in relation to bat activity shall be

reviewed annually and provide for adaptive monitoring, reviewed by a competent expert for

the first five years of the operation of the wind farm and, thereafter, every three years for

the operational life of the wind farm, unless otherwise required arising from the adaptive

monitoring programme. The results of the monitoring will be reported to the regional staff

of the National Parks and Wildlife Service.

(b) The developer shall review usage by birds and bats of the wind farm site and document

bird and bat casualties through an annual monitoring programme, which shall be submitted

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

of development. This programme shall be developed in consultation with the National Parks

and Wildlife Service and shall cover the entire period of the operation of the wind farm.

Reason: To ensure appropriate monitoring of the impact of the development on the birds

and bats of the area.

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

buildings, including details of any signage, 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.

22. Construction operations including Heavy Goods Vehicle movements to and from the site

shall be restricted to between 0800 hours and 1900 hours from Monday to Friday and

between 0800 hours 1400 hours on Saturdays, save for any necessary deviations required.

These deviations shall be agreed in advance with the relevant planning authority.

Reason: In the interest of local amenity.

23. Facilities shall be installed to minimise interference with radio or television reception in

the area. Details of the facilities to be installed which shall be at the developer's expense

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

commissioning of the turbines and following consultation with the relevant authorities.

Reason: In the interest of residential amenity.

24. On full or partial decommissioning of the turbines or if the turbines cease operation for

a period of more than one year, the mast and the turbine concerned shall be removed and

all decommissioned structures shall be removed and foundations covered with soil to

facilitate re-vegetation, within three months of decommissioning.

Reason: To ensure satisfactory reinstatement of the site upon cessation of the development.

25. (a) An updated decommissioning plan incorporating an Environmental Management Plan,

Transport Management Plan and a Waste Management Plan shall be submitted to, and

agreed in writing with, the planning authority, 12 months before the decommissioning of the

wind farm, unless a further permission has been obtained for the continuation of the wind

farm. The plan shall incorporate a programme and scheduling of the decommissioning

works.

(b) The developer shall retain the services of a suitably qualified and experienced Civil

Engineer and Ecologist for the duration of the decommissioning works in order to prevent

damage to the integrity or stability of the peatland environment.

Reason: In the interests of protecting the environment and traffic safety.

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

authority a cash deposit, a bond of an insurance company, or such other security as may be

acceptable to the planning authority, to secure the reinstatement of public roads which may

be damaged by the transport of materials to the site, coupled with an agreement

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

reinstatement of the public road. The form and amount of the security shall be as agreed

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

referred to An Bord Pleanála for determination.

Reason: In the interests of traffic safety and the proper planning and sustainable

development of the area.

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

authority a cash deposit, a bond of an insurance company, or such other security as may be

acceptable to the planning authority, to secure the satisfactory reinstatement of the site

upon cessation of the project, coupled with an agreement empowering the planning authority

to apply such security or part thereof to such reinstatement. The form and amount of the

security shall be as agreed between the planning authority and the developer or, in default

of agreement, shall be referred to An Bord Pleanála for determination.

Reason: In the interests of orderly development and visual amenity and to ensure

satisfactory reinstatement of the site.

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

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

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

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

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

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

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

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

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

agreement, the matter shall be referred to the Board to determine the proper application of

the terms of the Scheme.

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

a condition requiring a contribution in accordance with the Development Contribution

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

Some general considerations

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

under a number of headings as follows.

The climate context

53. Insofar as relevant, some relevant legal principles concerning the climate context which have

been rehearsed in previous caselaw include the following:

(i) The climate emergency represents a critical risk to human and natural life on earth.

There is already a vast and growing body of jurisprudence making this point. Of the

global or continental apex judicial bodies seized of the issue, all so far have

emphasised a binding legal obligation to address climate change: International Court

of Justice Advisory Opinion of 23 July 2025, Obligations of States in respect of

Climate Change, Verein KlimaSeniorinnen Schweiz and Others v Switzerland (9 April

2024, App. no. 53600/20), International Tribunal for the Law of the Sea, Advisory

opinion, Request by Commission of Small Island States, 21 May 2024, Inter-

American Court of Human Rights, Request by Chile and Colombia, Opinión Consultiva

Oc-32/25 De 29 de Mayo de 2025. At the domestic level see Friends of the Irish

Environment v. Government of Ireland [2020] IESC 49, [2021] 3 I.R. 1, [2020] 2

I.L.R.M. 233, [2020] 7 JIC 3107 (Clarke C.J.) (Irvine P., O'Donnell, MacMenamin,

Dunne, O'Malley and Baker JJ. concurring) and Toole v. Minister for Housing (II)

[2024] IEHC 610 (Unreported, High Court, 1 November 2024).

(ii) At the international level, the United Nations Framework Convention on

Climate Change (1992) (UNFCCC) opened for signature at UN Conference on

Environment and Development, Rio de Janeiro, Brazil, 3-14 June 1992, is the main

international treaty on fighting climate change. The EU and all member states are

parties.

(iii) Before the Paris Agreement, greenhouse gases (GHGs) were limited by the 1997

Kyoto Protocol, ratified by the EU and its member states.

(iv) Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009

on the promotion of the use of energy from renewable sources and amending and

subsequently repealing Directives 2001/77/EC and 2003/30/EC established

mandatory targets for the consumption of energy from renewable sources by

member states.

(v) At the conference of parties of the UNFCCC (COP21) in Paris, all UNFCCC Parties

adopted the Paris Agreement (2015) on 12 December 2015.

(vi) Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11

December 2018 on the Governance of the Energy Union and Climate Action,

amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European

Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC,

2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament

and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and

repealing Regulation (EU) No 525/2013 of the European Parliament and of the

Council (the Governance Regulation) was adopted to implement the Paris Agreement

commitments.

(vii) By way of implementation of the Paris Agreement, the European Climate Law

(2021) (Regulation (EU) 2021/1119 of the European Parliament and of the Council

of 30 June 2021 establishing the framework for achieving climate neutrality and

amending Regulations (EC) No 401/2009 and (EU) 2018/1999) involves a reduction

of GHG emissions for the EU by at least 55% by 2030 compared to 1990 levels.

Ireland’s Nationally Determined Contributions (NDCs) under Paris are as part of the

EU contribution to GHG reductions.

(viii) The Climate Action and Low Carbon Development (Amendment) Act 2021

(amending the Climate Action and Low Carbon Development Act 2015) mandates

the achievement of a net-zero carbon economy by 2050 (s. 3(1) of 2015 Act as

substituted by the 2021 Act), with a legally binding 51% reduction in emissions by

2030 compared to 2018 levels (s. 6A(5) of 2015 Act as substituted by the 2021 Act).

(ix) Pursuant to s. 6A of the 2015 Act, the Climate Change Advisory Council has

submitted four carbon budgets (https://www.climatecouncil.ie/carbonbudgets/):

Carbon Budget 1 (2021–2025) – 295 MtCO2eq, Carbon Budget 2 (2026–2030) – 200

MtCO2eq, Proposed Carbon Budget 3 (2031–2035) – 160 MtCO2eq and Provisional

Carbon Budget 4 (2036-2040) – 120 MtCO2eq (provisional). The latter two have

been the subject of consultation: https://www.gov.ie/en/department-of-climate-

energy-and-the-environment/consultations/consultation-on-carbon-budgets/.

(x) Pursuant to s. 6C of the 2015 Act, within each carbon budget, sectoral emissions

ceilings are to be established. Ceilings within the first budget were established in

July 2022: https://www.gov.ie/en/department-of-climate-energy-and-the-

environment/publications/sectoral-emissions-ceilings/.

(xi) Council Regulation (EU) 2022/2577 of 22 December 2022 lays down a framework to

accelerate the deployment of renewable energy. Article 3(1) introduced a

presumption of overriding public interest for renewable energy projects for the

purpose of the birds, habitats and strategic environmental assessment (SEA)

directives, and provision was made for the acceleration of such projects.

(xii) The current version of the Renewable Energy Directive (REDIII), Directive (EU)

2023/2413 of the European Parliament and of the Council of 18 October 2023

amending Directive (EU) 2018/2001, Regulation (EU) 2018/1999 and Directive

98/70/EC as regards the promotion of energy from renewable sources, and repealing

Council Directive (EU) 2015/652, provides for a presumption of overriding public

interest and for accelerated timelines including requiring judicial remedies to be the

most expeditious available in national law.

(xiii) In terms of factual context in the public domain, the WHO estimates a quarter of a

million deaths per year due to climate change in the coming decades:

https://www.who.int/news-room/fact-sheets/detail/climate-change-and-health. As

to the pollution context separate from the climate impacts, by way of context, the

WHO estimates that the more direct effects of air pollution (much of which is related

to fossil fuels) are associated with seven million deaths every year:

https://www.who.int/health-topics/air-pollution#tab=tab_2. Obviously such

impacts impose vast social and financial costs globally.

The eight-fold test for judicial review

54. 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.

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

harmless error and discretion.

56. 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. What O’Donnell C.J.

has recently said of Article 42A is true of the Constitution and law generally – it is

not “an open-ended provision that requires courts to substitute their

judgment on social issues ... for that of the Oireachtas” (G. v. Ireland [2025]

IESC 49 (Unreported, Supreme Court, 26 November 2025) at 68).

(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.

Element II – Workability

57. 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).

Element III – Proper pleadings

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

in previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

High Court, 24 January 2024).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2020) per Barniville J.; attempts to launch for example non-transposition claims not

set out on the pleadings are impermissible: Alen-Buckley v. An Bord Pleanála [2017]

IEHC 311, [2017] 5 JIC 1211 (Unreported, High Court, Costello J., 12 May 2017).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

repetition”.

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

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

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

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

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

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

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

on are expressly enumerated if they are implicitly identifiable with acceptable

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

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

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

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

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

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

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

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

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

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

accept the point made by the applicant without first addressing the

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

objection if it fails either way.

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

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

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

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

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

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

(ii) matters that must not be considered; and

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

to but does not have to.

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

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

taker at the time of the decision. Thus:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

new evidence; and

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

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

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

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

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

inserted on foot of their own substantive submissions).

Element VI – Onus of proof

61. 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).

Element VII – Harmless error

62. 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).

Element VIII – Discretion

63. 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. IA [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.

Inadequacy of assessments

64. Some relevant legal principles regarding inadequacy of assessments which have been

rehearsed in previous caselaw include the following:

(i) European assessments are an iterative process not a single document, so flaws at

one point can be addressed at a later point in the process: R (Edwards) v.

Environment Agency [2008] UKHL 22, [2008] 1 WLR 1587, para 38; R. (Friends of

the Earth Ltd) 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.) at 66 and

143; Cogent Land LLP v. Rochford District Council [2012] EWHC 2542 (Admin),

[2013] 1 P & CR 2, Singh J (paras. 111-126); No Adastral New Town Ltd v. Suffolk

Coastal District Council [2015] EWCA Civ. 88, [2015] Env. L.R. 28 per Richards LJ.

(Underhill and Briggs LJJ. concurring) (paras. 48-54); hence amendments to a plan

under assessment can be introduced in the process, R. (Friends of the Earth Ltd) v.

Heathrow Airport Ltd at 67.

(ii) “Deciding whether an effect of a project on the environment is ‘significant’

clearly requires a value judgment and carries the potential for cases to arise in

which different decision-makers may legitimately reach different conclusions without

it being possible to say that any of them has made an error in interpreting or applying

the term”: R (on the application of Finch on behalf of the Weald Action Group) v.

Surrey County Council and others [2024] UKSC 20, [2024] 4 All E.R. 717, [2024]

P.T.S.R. 988, [2024] 6 WLUK 315 per Lord Leggatt SCJ. (Lord Kitchin and Lady Rose

SCJJ. concurring) at 58 (emphasis added).

(iii) Determining whether an effect is capable of being assessed, or whether it is a

likely effect, is also evaluative: Finch at 77-78.

(iv) Standard of assessment: AA must, by reference to best scientific knowledge,

dispel all reasonable scientific doubt as to adverse effects on European sites (art. 6

habitats directive); EIA must be as complete as possible: judgment of 3 March 2011,

Commission v Ireland, C-50/09, ECLI:EU:C:2011:109.

(v) As with any evaluative conclusion by a decision-taker, the AA evaluation is one

in the first instance for the decision-taker: 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; per Sales L.J. in Smyth v. Secretary of State for

Communities and Local Government [2015] EWCA Civ 174, [2015] P.T.S.R. 1417 at

para. 83; judgment of 7 November 2018, Holohan v An Bord Pleanála, C-461/17,

ECLI:EU:C:2018:883 at para. 44; R. (on the application of Wyatt) v. Fareham

Borough Council [2022] EWCA Civ 983, [2023] P.T.S.R. 1952, [2022], 7 W.L.U.K.

197, [2023] Env. L.R. 14.

(vi) Ultimately it is for the national courts to carry out a thorough and in-depth

examination of the scientific soundness of the AA: judgment of 7 November 2018,

Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College

van gedeputeerde staten van Limburg and College van gedeputeerde staten van

Gelderland, joined cases C-293/17 and C-294/17, ECLI:EU:C:2018:882 at para.

101. This may go beyond the mere review for reasonableness accepted in the UK:

R. (Friends of the Earth Ltd) 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.) at 143.

(vii) While the standard for the decision-taker’s carrying out of AA is removal of

reasonable scientific doubt as to effects on the integrity of European sites by

reference to their conservation objectives, and by the application of best scientific

knowledge, that does not require the decision-taker to disprove “any effect

whatsoever”, matters 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,

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 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).

(viii) It is settled law that the EIA directive 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).

Standing regarding challenges to general measures

65. In the absence of a timely challenge to a specific decision (or a properly pleaded challenge

to a failure to apply a remedial obligation which was sought to be activated), neither of which apply

here, then an applicant is not entitled to challenge the underlying legislation because this would be

impermissibly abstract and/or because an applicant doesn’t have locus standi in the absence of a

valid concrete complaint (see e.g. Morris v. Ireland [2022] IEHC 472, [2022] 7 JIC 2703

(Unreported, High Court, Barr J., 27 July 2022)).

66. I noted this point in McGreal v. Minister for Housing, Local Government and Heritage of

Ireland [2024] IEHC 690 (Unreported, High Court, 6 December 2024) at §49: “[i]f an applicant is

out of time for a challenge to an individual decision, she doesn’t have standing to challenge the

enactment or measure in the abstract merely because there was an unchallenged individual decision

previously”.

67. This is sometimes misunderstood by applicants in the prospective appeal context – an

applicant can’t successfully appeal a finding as to the validity of legislation if they have had a

challenge to an actual decision definitively dismissed. They don’t have standing in such a situation

because the constitutional issue would be presented in a procedural context that doesn’t involve the

prospect of a specific decision affecting the applicant being quashed. That is judicial restraint in

action – an appeal from a decision that legislation is constitutionally valid, say, brought in a manner

that is detached from any complaint as to the validity of a decision under the legislation, doesn’t

arise as the putative appellant lacks locus standi to pursue such a procedurally abstract challenge.

To put the matter another way – and this is the way the Supreme Court put it in Nawaz v. Minister

for Justice, Equality and Law Reform [2012] IESC 58, [2013] 1 I.R. 142 (Clarke J.) (Fennelly,

O’Donnell, McKechnie, MacMenamin JJ. concurring) at para. 6.6 – an attack on a general measure

that has as its real aim the invalidation of specific measures subject to the rules applying to the

specific measure. In that case, the court held that a constitutional challenge which has as its purpose

and effect the invalidation of measures subject to special judicial review rules (analogous to s. 50)

is itself subject to such rules (that was in the context of the similar provisions of s. 5 of the Illegal

Immigrants (Trafficking) Act 2000). (See generally Ballyboden Tidy Towns v. An Bord Pleanála IV

(No. 2) [2025] IEHC 277 (Unreported, High Court, 16 May 2025)).

Preliminary issues

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

“The Applicant raises no preliminary issues.

The Commission’s position is that the affidavit of Marie Louise Heffernan that the Applicant

purports to rely on is inadmissible and/or no weight should be given to the averments in

same. The Commission in this regard relies on §12-§14 of its written legal submissions and

the case law cited, which addresses this matter.

The State Respondents’ position: The State Respondents raise the preliminary objection that

the grounds pleaded against the State Respondents, in particular Core Grounds 5 and 6, are

not pleaded with sufficient particularity, as required by Order 84, rule 20(3) and Order 103,

rule 14 of the Rules of the Superior Courts, and that relief ought to be refused on that ground

alone. In Core Ground 5, the Applicant has only asserted reliance on particulars pleaded in

support of Core Ground 3 without specifying which particulars paragraphs are relied upon.

The Applicants are not entitled to relief on the basis of those unparticularised pleas.

As set out at §45 of the Statement of Opposition, the State Respondents have made a

concession in respect of the site specific conservation objectives for The Gearagh SPA.

‘A Declaration that, contrary to their obligations under EU law, until the publication of the

Gearagh SPA Site-Specific Conservation Objectives on 25 April 2025 (including at the time

of the impugned decision), the Second and Third named Respondents failed to have in place

site-specific conservation objectives for the Gearagh SPA.’

The Notice Party’s Position The Affidavit of Marie Louise Heffernan, and related content of

the Applicant’s written submissions, is inadmissible, and should be excluded. It is not

properly a reply, seeks to adduce further evidence that was reasonably available originally

and should not be adduced at this late stage of proceedings.

More generally, the Notice Party has raised a number of preliminary objections. First, the

Applicant is not entitled to raise issues in these proceedings, which it could have raised, but

failed to raise, before the Commission during the public consultation process, including in

relation to potential impacts on the Hen Harrier, Merlin and Golden Plover. The Applicant

has failed to provide any adequate explanation as to the circumstances in which it failed to

raise the issues in submissions or observations made to the decision-maker on the planning

application. Second, the Applicant has latterly sought to adduce expert evidence which takes

issue with aspects of the application documentation submitted on behalf of the Notice Party

to the Respondent. Such evidence, however, is inadmissible. Third, the Applicant

impermissibly, and repeatedly, makes merit-based complaints and assertions which are not

substantiated. Fourth, a number of the Core Grounds, and their purported particulars of

legal grounds, lack sufficient particularity. Fifth, to the extent to which the Applicant

addresses matters in their written submissions which do not form part of the pleaded case,

the Applicant is not entitled to expand its case by way of written submissions.”

69. The notice party in submissions sets out objections as follows:

“8. In its Statement of Opposition, the Notice Party has pleaded out a number of

preliminary objections, including:

(a) the Applicant is not entitled to raise issues in these proceedings which it could have

raised, but failed to raise, before the Respondent during the public consultation process.

The Applicant has failed to provide any adequate explanation as to the circumstances in

which it failed to raise these issues in submissions or observations made to the decision-

maker on the planning application;

(b) latterly, the Applicant has sought to adduce expert evidence which takes issue with

aspects of the application documentation submitted on behalf of the Notice Party to the

Respondent. However, for the reasons set out in these submissions, such evidence is

inadmissible;

(c) the Applicant impermissibly, and repeatedly, makes merit-based complaints and

assertions which are not substantiated;

(d) a number of the Core Grounds, and their purported particulars of legal grounds, lack

sufficient particularity, as required by Order 84, rule 20(3) of the Rules of the Superior

Courts, as amended; and

(e) to the extent to which the Applicants address matters in their written submissions

which do not form part of the pleaded case, the Notice Party submits that the Applicant is

not entitled to expand its case by way of written submissions: see, by way of example, 100

Meters Tall Group v. An Bord Pleanála [2025] IEHC 42, at §38.”

Objection I – Ex post facto points

70. The notice party complains of the fact that the applicant’s submission to the commission did

not raise numerous issues which are now pleaded – including the Power issues.

71. I noted in An Taisce v. An Bord Pleanála [2021] IEHC 254 (Unreported, High Court, 2 July

2021) at para. 37 that this was an issue on which a reference to the CJEU might arise:

“For the record, if it had been necessary to decide this aspect, I don’t think the position is

properly acte clair and would have leaned towards seeking the assistance of the CJEU on the

two questions raised, namely:

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

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

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

public participation and environmental impact assessment, insofar as it includes grounds

relating to other provisions of EU law, cannot be maintained by reason of the failure of the

applicant to raise such points before the decisionmaker; and

(ii). whether art. 9(2) and (3) of the Aarhus Convention approved by decision 2005/370/EC,

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

domestic procedure that only complaints directed against the same aspects of the contested

decision as those which were the subject of observations by the applicant during the

administrative procedure are open to challenge before the court, either in general or in the

absence of an acceptable explanation.”

72. It seems that a potentially similar issue could arise here if the matter was decisive. However,

the notice party wasn’t pressing the objection as a response to the Power issue. Since the opposing

parties succeed on the issues other than Power, I don’t need to decide the question of issue-specific

standing, so the question of a reference does not arise.

Objection II – Affidavit of Ms Heffernan

73. Insofar as objection is raised to the Affidavit of Marie Louise Heffernan, this belated, ex post

facto evidence is clearly inadmissible because (a) it is not properly a reply and (b) it is largely not

relevant given that the decision must be viewed through the lens of the material before the decision-

taker. I accept the commission’s objections:

“12. Further, the belated affidavit of Marie Louise Heffernan that the Applicant purports

to rely on is inadmissible and/or no weight should be given to the averments in same. The

affidavit contains ex post facto argument, commentary and submission to a large extent,

and such matters are not appropriate for averment and/or no weight can be given to any

such averments (per Kennedy [2024] IEHC 570 at §57; Pierse v. An Bord Pleanála [2018]

IEHC 669 at §15-§16). The affidavit extensively comprises assertions that were not made

to the Commission in the planning application process but ought to have been, that is not

permissible either and/or no weight should be given to any such averments (per Kennedy

[2024] IEHC 570 at §58; Sliabh Luachra v. An Bord Pleanála [2019] IEHC 888 at §35). The

affidavit includes matters that are not properly matters of reply to the opposing parties’

affidavits and to the extent is does so, it is inadmissible on that basis also (per Kennedy

[2024] IEHC 570 at §58). As the Court stated in Kennedy [2024] IEHC 570 at §58 and

apposite here in relation to said affidavit, ‘it isn’t relevant (and thus isn’t admissible) for a

deponent to simply give their view that in effect the application does not remove all scientific

risk to European sites or was not prepared with best scientific knowledge’.

13. Furthermore, the belated introduction of the affidavit of Marie Louise Heffernan is

further objectionable for the same reason articulated in Oxigen [2025] IEHC 632 at §52 ‘The

really fatal problem for the applicant is that there is not an ongoing entitlement to put in

further evidence that was reasonably available originally. The applicant has to have all such

evidence marshalled and before the court at leave stage. Any further affidavits are limited

to reply. This affidavit goes far beyond anything that could legitimately be called a reply.’

Likewise, the affidavit is objectionable for the reason set out at Oxigen [2025] IEHC 632 at

§53, namely that ‘insofar as it seeks to add a new evidential status to what is already there

that is not permissible in principle’. This is relevant insofar as the Applicant is clearly

attempting by said affidavit to add some evidential basis or status to the non-expert mere

assertions it pleaded at Core Grounds 3, 4 and 5.

14. In addition, having regard to RAS Medical Ltd [2019] 1 IR 63 (and noting also the

points made in Eco Advocacy CLG [2025] IEHC 15 at §95(vi); Massey (No.2) [2025] IEHC

206 at §78 to §80, and Doyle [2025] IEHC 158 at §79; and McGowan [2025] IEHC 405 at

§50), and the operation of the onus of proof (which is on the Applicant), and noting the

uncontested expert affidavit evidence from the Notice Party (namely from Sarah Moore,

Senior Environmental Scientist), and affidavit evidence from the State Respondents (namely

from Cliona O’Brien, Grade I Wildlife Inspector in the NPWS), the Applicant cannot succeed

on the basis of the assertions contained in the affidavit of Marie Louise Heffernan in any

event. Per Fahybeg [2025] IEHC 310 at §18, even if the views of Ms. Heffernan weren’t

inadmissible, ‘joining issue doesn’t discharge the onus of proof absent cross-examination.’”

74. I also accept the notice party’s objections:

“9. As regards the Affidavit of Marie Louise Heffernan, and related content of the

Applicant’s written submissions, the Notice Party contends that this Affidavit is inadmissible,

including on the ground that it is not properly a reply and so should not be adduced at this

late stage of the proceedings but should have been before the court at leave stage.

10. In this regard, reliance is placed on the recent judgment of the High Court in Oxigen

Environmental Unlimited Company v. An Coimisiún Pleanála [2025] IEHC 632, in which

Humphreys J. held, inter alia (at §§51 to 53):

• Affidavit evidence can be excluded where there has been excessive and unexplained

delay in filing same causing prejudice to the other parties – Sliabh Luachra v. An Bord

Pleanála [2019] IEHC 888 (§§30 et seq);

• the Affidavit in dispute did not reply to the opposition pleadings – it simply proffered

a range of criticisms, most of which strayed beyond the pleaded case, of the Inspector and

Commission’s reasons for refusal – Kennedy v. An Bord Pleanála [2024] IEHC 570 (§57);

and

• ‘there is not an ongoing entitlement to put in further evidence that was reasonably

available originally. The applicant has to have all such evidence marshalled and before the

court at leave stage. Any further affidavits are limited to reply. This affidavit goes far

beyond anything that could legitimately be called a reply.’ [Emphasis in the original]

11. Moreover, in Oxigen Environmental (at §41(iii)), the High Court confirmed the well-

established principle that:

‘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… 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…’ [Emphasis in the original]

12. The Applicant seeks to rely on an Affidavit of Marie Louise Heffernan sworn on 12

November 2025. The Notice Party submits that this Affidavit is inadmissible because: (i) it

is not properly replying evidence, (ii) it seeks to adduce further evidence that was reasonably

available originally, and (iii) was produced almost six months after the proceedings were

issued and three weeks before the hearing on the application for judicial review. In essence,

almost six months after leave was sought, and 21 days before the hearing, the Applicant

delivered a detailed Affidavit dealing with matters, namely, alleged inadequacies in the

planning application documentation that could have been part of its case from the outset.

As concluded in Oxigen Environmental, the facility for replying Affidavits made in Order 103

of the Rules of the Superior Courts and Practice Direction HC126 and in the directions made

in these proceedings, ‘is limited to affidavits that are properly replying. It does not entitle

an applicant to rewind the clock and put in evidence that should have been part of its case

from day one.’

13. In this respect, the Affidavit of Sarah Moore filed on behalf of the Notice Party

addressed certain issues arising in respect of Core Grounds 3 and 4, by express reference

to application documents which were before the Respondent when it made the Impugned

Decision. However, in purporting to reply to the Affidavit of Sarah Moore, Marie Louise

Heffernan has actually taken issue with a number of aspects of the application

documentation, in circumstances where the Applicant could, and should, have raised those

issues before the decision-maker. Similar issues arose in Fahybeg Windfarm Opposition

Group v. An Bord Pleanála [2025] IEHC 310 (§18).

14. In addition, insofar as the Affidavit of Marie Louise Heffernan deposes to matters

which were not before the Board, it is irrelevant. The Notice Party submits that the Court

should not admit into evidence or, in the alternative, attach any weight to the Affidavit of

Marie Louise Heffernan.

15. Insofar as issue is taken, in paragraph 81 of the Applicant’s submissions, with the

statement made in paragraph 37 of the Affidavit of Sarah Moore that, records included in

Appendix 7.6 from vantage points 1 to 4 related to a different wind farm, it is clearly stated

in that Affidavit that ‘as the EIAR itself makes clear, at section 7.2.2 and Table 7.1, the

vantage points relevant to Gortyrahilly wind farm were vantage points 6 to 9’.”

75. What’s notable is that while this affidavit purports to be a reply, it fails to actually frame

itself as a reply and goes far beyond anything that could conceivably be regarded as a reply. This

is not a permissible procedure.

76. The essential points are:

(i) While an applicant is not rigidly confined to furnishing all evidence within the initial

eight weeks (Hayes v. Environmental Protection Agency [2024] IECA 162

(Unreported, Court of Appeal, Butler J., 24 June 2024)), an applicant’s evidence

must be put before the court at the appropriate procedural time, generally

prior to opposition papers, subject to limited exceptions and generally involving

an explanation for not doing so earlier (see e.g. Reid v. An Bord Pleanála (No. 1)

[2021] IEHC 230 (Unreported, High Court, 12 April 2021)).

(ii) Affidavit evidence can be excluded where there has been unexplained delay

causing prejudice: Sliabh Luachra v. An Bord Pleanála [2019] IEHC 888 (Unreported,

High Court, McDonald J., 20 December 2019) (§§30 et seq).

(iii) Replying affidavits must be genuinely replying, not raising new evidence

(subject to limited exceptions).

(iv) The mere fact that an opposing affidavit points to a lacuna in an applicant’s case

does not constitute a new point that allows the applicant to fill the lacuna for the

first time.

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

It is simply not compatible with modern and ordered litigation that drip-feeding

evidence could be permitted. Such a process undermines the orderly conduct of

proceedings and requires further reply and potentially revision of opposing papers.

(vi) In any event the court’s directions for papers must be complied with –

affidavits are impermissible if not so provided for.

77. Even leaving all that aside, the content of this affidavit is to a large extent an impermissible

merits-based challenge insofar as it deals with matters not properly before the decision-taker.

78. On any one or more of these grounds, this affidavit is impermissible.

Objection III – Merits based objections

79. There is a general objection that the applicant’s points are merits-based objections and there

is quite some validity to this. However this is best dealt with by looking at the grounds individually

through the appropriate legal lens.

Objection IV – Inadequate pleading

80. The State majored on the inadequacy of the pleading in relation to the case against it but in

fairness to the applicant, I consider that the key points are acceptably clear insofar as concerns the

State, as discussed further below.

81. The notice party placed particular reliance on the inadequacy of core ground 4 and I will deal

with that below.

Objection V – Expansion of pleadings via submissions

82. There is some merit to the complaint that the pleaded case has been expanded upon in

submissions. The most prominent example of that is the plea of failure to apply the precautionary

principle, which is not a pleaded point (para. 79 of applicant’s written submissions). This can be

dealt with by simply ignoring any such wholly impermissible points. We can focus on the text of the

pleaded case and I refer to some of this below where appropriate.

Domestic law issues

Core ground 1 – Irish language issues

83. Core ground 1 is:

“1. The impugned decision is invalid and was made unreasonably and contrary to Article

8 of the Constitution because the Board Order was made in the English language only and

not also in the Irish language, in circumstances where the proposed windfarm is to be located

predominantly in the Gaeltacht area of Múscraí, and the First Applicant submitted an appeal

in Irish (and English) and part of the Environmental Impact Assessment (the non-technical

summary of the Environmental Impact Assessment Report) was in the Irish language, and

when it has been the practice and the policy of the Board to publish bilingual decisions in

other developments in Gaeltacht areas. The Board erred in failing to seriously consider

issuing a bilingual Board Order.”

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

“9. The Applicant’s position is that the impugned decision is invalid and was made

unreasonably and contrary to Article 8 of the Constitution because the Board Order was

made in the English language only and not also in the Irish language, in circumstances where

the proposed windfarm is to be located predominantly in the Gaeltacht area of Múscraí, and

the First Applicant submitted an appeal in Irish (and English) and part of the Environmental

Impact Assessment (the non-technical summary of the Environmental Impact Assessment

Report) was in the Irish language, and when it has been the policy and practice of the Board

to publish bilingual decisions in other developments in Gaeltacht areas and the Board erred

in failing to seriously consider issuing the Board Order in both languages.

10. The Commission’s position is that its decision is not invalid as alleged at Core Ground

1. There are a number of reasons as to why Core Ground 1 does not go to certiorari

(addressed in detail at §15-§41 of the Commission’s written legal submissions), as follows.

(1) Non-publication of the Decision in the Irish language does not go to the validity of the

Decision, as non-publication per se does not go to the validity of the Decision. The

Applicant’s submissions tellingly fail to address this point and the relevant settled law on

same. (2) Article 8 of the Constitution does not include or give rise to any provision requiring

the publication in the Irish language of the Commission’s Order impugned in this case. (3)

The Applicant has not identified any specific provision in the 2000 Act (or any other

enactment) that has been breached by the publication of the Decision as occurred here. (4)

The Commission’s Order has in fact been published in the Irish language on the

Commission’s website and been provided to the Applicant. Any issue as to publication has

been rectified as the Commission’s Decision has been in fact been published in Irish, albeit

belatedly. (5) The absence of the Irish language version of the Order when it was first made

did not prevent or impede the Applicant from issuing these proceedings within time. (6)

There was no prejudice to the Applicant by reason of the initial publication of the Order in

the English language only. Evidence of prejudice is required and is absent here. (7) The

absence of the Irish language version of the Order when it was first made had no bearing

upon the substance, including the reasonableness of the Commission’s Decision. There is

no pleaded case or evidence to the contrary. The claim at Core Ground 1 is formalistic and

advanced in the abstract as a technicality, not as something that makes any difference to

anything in specific terms. (8) The Applicant was able to participate in the subject planning

process before the Commission, including in making submissions on the subject planning

application through the medium of the Irish language, in circumstances, inter alia, where

the site notices were published in Irish and the non-technical summary of the EIAR was

published in Irish. For context, it is noted that no other third-party submissions were made

in the Irish language, all other submissions by third parties and by the participating

prescribed bodies were in the English language. (9) In the premises, even if there were a

legal error (which is denied), to quash the Commission’s Decision on the basis of Core

Ground 1 would be a disproportionate and improvident use of certiorari and would serve no

discernible purpose. The law is well-established and clear in that disproportionality is a

legitimate basis to refuse relief in judicial review.

11. Further, having regard to the relevant factors as set out in Reid (No.7) [2024] IEHC

27 at §134(i) to (ix), it is respectfully submitted that declaratory relief is not warranted in

relation to Core Ground 1 either, namely in circumstances where: (1) no non-compliance

with a statutory provision has been identified or established by the Applicant; (2) given the

lack of prejudice to the Applicant or anyone else; (3) the issue—one of an inadvertent failure

of the Commission to follows its own standard practice—is a once-off (there is no evidence

of similar incidents); (4) the matter was rectified when it came to light; (5) there is no

evidence of a pattern of non-compliance in relation to the matter; and (6) the complaint has

a formalistic or technical aspect where the Irish language version of the Order is not being

relied on by the Applicant to advance any specific point or complaint of substance and the

proceedings at all times have been and are being conducted by the Applicant exclusively in

the English language without any issue or difficulty in that regard.

12. The State Respondents’ position: This ground is pleaded as against the Commission.

Insofar as this ground relates to Relief D5 and Core Ground 6 in Module 2, on 9 July 2025,

the Commission published a translated version in Irish of the original Board Order dated 25

February 2025. In those circumstances, Core Ground 6 as against the State Respondents

is now moot as the Commission has now published a translated copy of the original order

and the Applicant has now been provided with said Order.

13. The Notice Party’s position is that the Commission’s decision is not invalid for the

reasons alleged by the Applicant in respect of Core Ground 1. The Commission has not

breached any legal obligation by reason of either the English and Irish versions of the

decision not having issued in the same document, or by reason of delay in publishing the

decision in Irish. However, even if such a breach of duty were established by the Applicant,

it is clear from the case-law that this would not require the decision to be quashed. The

complaint that the Order was not published in bilingual form on 25 February 2025 does not

entitle the Applicant to an order of certiorari. In particular: (i) the Order has since been

published in the Irish language; (ii) the absence of an Irish language version of the Order

when it was first made did not prevent the Applicant from issuing the within proceedings;

(iii) the Applicant was able to participate in the planning process, including making

submissions and observations to the Respondent, through the medium of Irish; (iv) there

was no prejudice to the Applicant; and (v) the absence of an Irish language version of the

Order when it was first made had no bearing upon the substance of the impugned decision.

The Applicant seeks to rely on formalistic arguments as a basis for invalidating the entire

decision, notwithstanding the prejudice this would cause the Notice Party, through no fault

of its own. There is no clear and compelling evidence of prejudice and it would be

inappropriate and entirely disproportionate to grant an order of certiorari quashing the

decision.”

85. Sub-ground 7 pleads:

“The affidavit of Peadar O’Riada sets out the traditional Irish cultural context of the

development site, centred as it is in Gaeltacht area of Múscraí and predominantly within the

townland of Gortyrahilly (O’Rahilly’s Field) associated with the Gaelic poet Aodhagán Ó

Rahilly (c1670 -c1747), whose father John Mor Ua Raghailligh is said to have lived at

‘Gortyrahilly in Iveleary’, and also the 18th century Gaelic poet Seamus Mor O

Muimhneachain, whose ruined cottage still stands in Gortyrahilly.”

86. That is just factual context. Sub-ground 8 says:

“Article 8 of the Constitution provides that the Irish language as the national language is the

first official language and that the English language is recognised as a second official

language. Provision may, however, be made by law for the exclusive use of either of the

said languages for any one or more official purposes, either throughout the State or in any

part thereof. No such provision appears to have been made.”

87. The applicant is correct that there is no provision for the exclusive use of English in planning

law, but that doesn’t result in certiorari. That is not inconsistent with Ó Beoláin v. Fahy [2001]

IESC 37, [2001] 2 I.R. 279. Tellingly, the only sub-ground to reference the Constitution is sub-

ground 8 which provides no basis for certiorari, no description of any clear breach, and no pathway

between any breach and the claimed relief. Furthermore, given that it is not unconstitutional for

there to be non-simultaneous publication of an Irish version of primary legislation it is beyond

implausible that there is some breach in non-simultaneous publication of an individual decision.

88. Sub-ground 9 states:

“By s.120 of the Planning and Development Act, 2000, as amended, the Board shall appoint

such and so many persons to be employees of the Board…having regard to the need to

ensure that an adequate number of staff are competent in the Irish language so as to be

able to provide service through Irish as well as English. By Section 135(8) where an oral

hearing relates to development within the Gaeltacht, the hearing shall be conducted through

the medium of the Irish language, unless the parties to the application to which the hearing

relates agree that the hearing should be conducted in English. There is a presumption in

the planning legislation therefore that services by the Board to a Gaeltacht area may be

provided through Irish.”

89. That is just legal context.

90. Sub-ground 10 states:

“The practice of An Bord Pleanála in recent years in relation to developments in a Gaeltacht

area and or involving appeals in Irish has been to make its decision Order in both English

and Irish (see examples exhibited at Tab 26A to 26C of grounding affidavit).”

91. That’s just factual context. The existence of a “practice”, however commendable, doesn’t

give rise to certiorari if there is some delay in complying with the practice.

92. Sub-ground 11 states:

“The Board’s ‘Language Scheme 2021 to 2024’ (exhibited at Tab 25 of the grounding

affidavit) is the fourth such scheme which had been established and approved under the

Official Languages Act 2003. The Language Scheme is currently communicated to the public

on the Board’s website, has not been replaced and appears to have continued after its initial

three-year period, as per para. 2.3 of the scheme:

‘This Scheme has been confirmed by the Minister for Tourism, Culture, Arts, Gaeltacht, Sport

and Media. The scheme will commence with effect from 01 December 2021 and will remain

in force for a period of three years from this date or until a new scheme has been confirmed

by the Minister under section 15 of Official Languages Act 2003, whichever is the later.’

[underlining added]”

93. The problem with reliance on the scheme is that it is a statutory measure, and statutory

measures cease to be in force where their enabling provisions are repealed, in the absence of a

saver clause. Any other approach would create intolerable uncertainty and chaotic unpredictability,

and would deprive the concept of repeal of much of the core of its meaning. The fact that the

scheme didn’t contemplate the repeal of its own enabling legislation doesn’t change anything – that’s

not something that a scheme-maker could reasonably contemplate but even if it did, a subordinate

scheme-maker can’t bootstrap their way into the continuance of force in a statutory instrument

despite the repeal of the enabling power, by wording an instrument to that effect. This is a

counterpoint to the principle that the Minister can’t give guidelines an imperative effect by using

imperative language if under statute they are only matters to which regard is to be had. Indeed the

whole argument that the scheme remains hovering above ground and in force despite the knocking

down of its legislative stilts is frivolous and unstateable. The notion that the scheme can give itself

legal force by its own wording in the teeth of the decision of the Oireachtas to repeal the enabling

legislation is equally nonsensical.

94. Sub-ground 12 is:

“The Board’s obligation, through para. 3.1(i) of its Language Scheme commits the Board to

issuing the Board Order in English and in Irish in circumstances where an appeal had been

made in Irish, and the development was in a Gaeltacht:

‘Where the application relates to development in a Gaeltacht area and where the application,

appeal or observation was made in Irish, it is the policy to issue an order bilingually. In

addition, it is An Bord Pleanála’s practice to issue a bilingual order on any decision relating

to a significant development in a Gaeltacht area notwithstanding that no submission was

received in Irish.’”

95. The scheme no longer has statutory effect. Anyway it has been complied with albeit after a

modest delay.

96. Sub-ground 13 is:

“An amendment of the Official Languages Act 2003 by Section 17 of the Official Languages

Amendment Act 2021 was commenced on 21 December 2024 by S.I. No. 692/2024 - Official

Languages (Amendment) Act 2021 (Commencement) (No. 2) Order 2024. This

commencement had the effect of repealing the sections of the Official Languages Act 2003

concerning language schemes. The intention of the 2021 Amendment Act, in providing for

a repeal, seems to have been for the repeal to be made in conjunction with a plan to replace

the language schemes with more strict obligations on public authorities providing services

to new ‘Gaeltacht Planning Areas’. The Gaeltacht area of Múscraí is a Gaeltacht Planning

Area but as yet it appears that the intended proposals for providing public services to such

Gaeltacht areas in Irish have not been put in place.”

97. That is just legal context.

98. Sub-ground 14 is:

“The Board does not appear to have made a formal decision to end its latest Language

Scheme even if there is no longer a statutory obligation to replace it because of the repealed

legislation. Also, the commitment in para. 3.1(i) of its Language Scheme distinguishes

between its policy where the application, appeal or observation was made in Irish, to issue

an order bilingually and its practice to issue a bilingual order on any decision relating to a

significant development in a Gaeltacht area notwithstanding that no submission was received

in Irish. Both policy and practice apply to the facts in this case. The Applicant in these

proceedings made an appeal in Irish and the development of a 50MW windfarm is significant

infrastructure.”

99. The flaw in this argument is addressed above. The scheme is not in force following the

repeal of the enabling legislation. If the commission want to follow it as a matter of policy and

practice that is all well and good but failure to do so does not give rise to relief. Anyway the scheme

was complied with albeit after a modest delay – the delay is not such as to give rise to any basis for

relief. The obvious fact that the Irish language is important as submitted by the applicant (as if this

were somehow a revelation to be greeted with the immediate grant of relief) doesn’t mean that any

shortcoming, error, delay or infelicity warrants certiorari. The point is pleaded and argued, in

English, as a technical gotcha point, not as having caused any tangible harm to anybody, still less

to the applicant. This is not a legal breach at all given the lack of legal obligation here (and a

conclusion of lack of legal breach is not inconsistent with Ó Maicín v. Éire [2014] IESC 12, [2014] 4

I.R. 477 and Glann Mór Céibh Teoranta [2022] IESC 40, [2024] 1 I.R. 1, [2023] 1 I.L.R.M. 1 at §84

per Hogan J.), but even if there was a legal breach, it falls easily into the category of harmless error,

or alternatively being a case where discretion must be exercised against relief. There is absolutely

no case whatsoever for declaratory relief, and such a claim doesn’t even get off the starting blocks

as it fails to meet the minimum tests – there is no dispute needing to be resolved (the commission

accepts they overlooked the matter), the problem has been rectified and the judgment clarifies

matters anyway.

100. The fact that relief would be inappropriate and disproportionate means that the constitutional

challenge does not properly arise. While this was initially modularised, I am satisfied that it cannot

assist the applicant because even assuming that repeal of the statutory provision for schemes was

somehow unconstitutional, and thus assuming that the scheme remained in force at all material

times, that does not give rise to relief for the reasons explained. Such a breach is harmless error

and/or does not warrant relief as a matter of discretion. Any exploration of whether repeal was or

was not constitutional is therefore totally academic and inappropriate.

101. Sub-ground 15 is:

“Notwithstanding the change to the statutory basis of the An Bord Pleanála Language

Scheme going forward, the Board erred in failing to give reasons to explain why for this case

it changed its established practice in relation to the making of Board Orders in Irish and

acted contrary to fair procedures and or Art.8 of the Constitution by failing to consider

making its Order in Irish in these circumstances and or by removing a right that it had

previously granted to Irish speakers to obtain an Irish language order in certain

circumstances. Further or in the alternative, by s.9(3) of the Official Languages Act 2003

as amended, ‘Where a public body communicates in writing or by electronic mail with the

general public or a class of the general public for the purpose of furnishing information to

the public or the class or for the purpose of the marketing of the public body or its services

to the public or the class, the body shall ensure that the communication is in the Irish

language or in the Irish and English languages.’ In communicating the Order to those who

had participated in the appeal, the Board was communicating in writing or by electronic mail

with the general public or a class of the general public for the purpose of furnishing

information to the public or the class and was accordingly obliged, but failed, to ensure that

the communication was in the Irish language or in the Irish and English languages.”

102. Dressing this up as a reasons issue is totally misconceived. The failure to issue the order in

Irish was obviously an oversight and indeed the commission says that. A decision isn’t invalid

because a public body fails to give reasons for having done something by mistake – indeed the

implication that there is such an obligation is frivolous and unstateable. A certain degree of human

error in human affairs is inevitable. One small example will suffice – the applicant commenced the

hearing of the present matter by causing totally avoidable misunderstanding about the state of the

orders made regarding the extent of modularisation. Had the applicant troubled itself to check the

amendment of the order of 30 June 2025 under the slip rule (which I announced in open court on 3

November 2025) then it would not have got the hearing off to a confused start. That isn’t criticism

as such, just an illustration that mistakes and oversights happen. On a similar basis, mistakes by a

decision-taker should not be seen as hair-triggering certiorari in all circumstances and certainly not

in this circumstance.

103. Section 9(3) of the 2003 Act is about communications for the purposes of information and

marketing. It does not on its own terms apply to the text of decisions. It does not provide a legal

basis for relief here. That said, it is obviously appropriate for public bodies making administrative

decisions about the Gaeltacht to do so in Irish or at least bilingually. But failure to do so does not

give rise to certiorari in circumstances such as we have here.

104. If I am wrong in respect of all of the foregoing, the importance of renewable energy

infrastructure in the context of the climate emergency is relevant to the exercise of discretion on a

point such as this.

105. A final point relevant to discretion is that it is clear from the commission’s evidence that they

have bilingual policies in place with particular emphasis on the use of Irish in the Gaeltacht. This is

not a case where a public body is failing to acknowledge language needs in some general way that

requires urgent judicial intervention. The issue that arose here is just human error.

106. Finally to repeat the point in relation to core ground 6 for clarity, this is now academic

because the validity of the decision is not affected even if the repeal of the statutory provision for

schemes was itself unconstitutional. While the applicant advances the notion that core ground 6 is

wider and the legislation should not have been repealed, any given applicant cannot simply leaf

through the statute book, point to something that they think looks unconstitutional, and march into

court demanding declarations to that effect. What gives the applicant standing is, and is pleaded to

be, participation in a process leading to a specific planning decision. The fact that that decision

stands independently of the validity or otherwise of the repeal of provision for language schemes

means that any challenge to the repealing legislation makes no difference to the validity of the

decision and is impermissibly abstract and academic.

107. This point therefore fails, as does core ground 6 in consequence.

EU law issues

108. It makes sense to start with core ground 5, for the simple reason that the applicant’s position

is that core ground 3 is essentially parasitic on core ground 5. The commission is not alleged to

have committed any error independently of the State’s alleged errors. So we need to find out to

what extent the State has erred before we can turn to the commission.

Core ground 5 – lack of conservation objectives

109. Core ground 5 is:

“5. The impugned decision is invalid because the Second and or Third and Fourth

Respondents:

(i) failed to fulfil their obligations under Articles 3, 4(1) and 4(2) of the Birds Directive

and Article 6 of the Habitats Directive as implemented by S.I. 477 of 2011 and in particular

Article 26 thereof, by failing to establish the necessary site-specific conservation objectives

and conservation measures for birds that use the Gearagh Special Protection Area; and or

(ii) acted contrary to reg. 26 (7) of S.I. No. 477/2011 by failing to identify additional

species referred to in Article 4(1) and 4(2) of the Birds Directive as the subject of site-

specific conservation objectives for the Gearagh SPA and the Mullaghanish to Musheramore

Mountains SPA, and measures which he or she considers correspond to the ecological

requirements of the species.”

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

“The Applicant’s position is that the impugned decision is invalid because the Second and or

Third and Fourth Respondents failed to fulfil their obligations under Articles 3, 4(1) and 4(2)

of the Birds Directive and Article 6 of the Habitats Directive as implemented by S.I. 477 of

2011 and in particular Article 26 thereof, by failing to establish the necessary site specific

conservation objectives and conservation measures for birds that use the Gearagh Special

Protection Area.

46. Further the Second and or Third and Fourth Respondents acted contrary to reg. 26

(7) of S.I. No. 477/2011 by failing to identify additional species referred to in Article 4(1)

and 4(2) of the Birds Directive as the subject of site specific conservation objectives for the

Gearagh SPA and the Mullaghanish to Musheramore Mountains SPA, and measures which he

or she considers correspond to the ecological requirements of the species.

47. The State in its opposition papers concedes a declaration that Site Specific

Conservation Objectives were not in place for Gearagh SPA until 25 April 2025, i.e. after the

making of the impugned decision.

48. There is considerable overlap between this ground and Core Ground 3.

49. The Commission’s position is that its decision is not invalid as alleged at Core Ground

5. The Commission notes the position of the State Respondents and the uncontested

affidavit evidence filed on its behalf. Save for limited declaratory relief conceded by the

State Respondents (§45, State Respondents’ Statement of Opposition) in respect of the

publication of site-specific conservation objectives in respect of the Gearagh SPA, the

balance of the Applicant’s claims at Core Ground 5 are disputed and rejected by the State

Respondents. In this regard, it is, for example, noted that site-specific conservation

objectives have been established in respect of both SPAs.

50. Core Ground 5 as pleaded does not go to the validity of the Commission’s Decision.

That purported automatic legal consequence as postulated by the Applicant does not follow

from the premises. The Applicant has failed to show/plead a route map from the alleged

errors relied on to the relief claimed in that regard. As regards the Commission’s Decision,

the pleas at Core Ground 5 by the Applicant ignore and/or do not correctly reflect the

presumption of validity and the principle that a party has to go further and prove by

reference to the evidence that the alleged failures by the Second, Third and Fourth Named

Respondents in turn rendered the Commission’s Decision unlawful. That has not been

established evidentially by the Applicant in the present case. In addition, the premise of the

complaint at Core Ground 5 is incorrect and not established as (i) conservation objectives

for an SPA are not a jurisdictional pre-requisite to the Commission’s jurisdiction to carry out

a stage 2 AA or a stage 1 AA screening, and (ii) conservation measures have no relevance

to the carrying out of a stage 2 AA or a stage 1 AA screening, and there is no obligation to

have regard to conservation measures when carrying out a stage 2 AA or stage 1 AA

screening and no basis to infer a jurisdictional bar to carrying out a stage 2 AA or stage 1

AA screening in the absence of conservation measures.

51. Further, as addressed in the context of Core Ground 3 (and repeated here), the

complaint at Core Ground 5 is entirely formalistic and abstract and is advanced on foot of

impermissible, ex post facto, non-expert assertion and merits-based disagreement. (The

belated affidavit of Marie Louise Heffernan sworn on 12th November 2025 on which the

Applicant purports to rely is inadmissible for several reasons, set out in the Commission’s

written legal submissions at §12-§14 of same). The complaint at Core Ground 5 must fail

on a purely evidential basis, the complaints advanced at Core Ground 5 lack the necessary

basis on the facts. The actual evidence before the Commission did not identify any risk to

the Gearagh SPA or the Mullaghanish to Musheramore Mountains SPA. The factual position

in the present case is that the objective justifying the designation of the Gearagh SPA and

Mullaghanish to Musheramore Mountains SPA would not be undermined in any way were the

windfarm project to proceed. It is settled law that any complaint as to lacunae or lack of

appropriate findings in an EU law assessment has to be established evidentially. Applying

such law to the facts here, the Applicant has failed to discharge that onus.

52. The State Respondents’ position: The State Respondents have made a concession in

respect of the Site-Specific Conservation Objectives for the Gearagh SPA at the time of the

impugned decision. However, Site Specific Conservation Objectives have since been

established for the Gearagh SPA on 25 April 2025. It is denied that the State Respondents

have failed to comply with their obligations under the Birds Directive the Habitats Directive,

or have failed to establish the necessary site-specific conservation objectives and

conservation measures for birds that use the Gearagh Special Protection Area. The State

Respondents refer to SSCOs of 25 April 2025 and the conservation measures identified in

the Statement of Opposition and Affidavit of Ciara Carberry. There is no ‘absence’ of

conservation measures as alleged by the Applicant. The State Respondents have also

established SSCOs and conservation measures for the Mullaghanish to Musheramore

Mountains SPA. Any alleged failure to establish conservation measures or alleged

inadequacy of conservation measures established under EU obligations should not be

challenged in judicial review proceedings against a planning decision of An Coimisiún

Pleanála. The Applicants in any event have not established that the conservation measures

are inadequate or insufficient.

53. It is denied that the State Respondents have acted contrary to Elliniki in respect of

the Golden Plover or Merlin. The State Respondents were entitled to carry out an assessment

of the significance of a species presence on the site. It has been determined that Merlin and

Golden Plover were not present in a significant manner on the sites the subject of these

proceedings such as to be treated as additional species triggering the requirements in Elliniki

to establish additional conservation objectives or conservation measures for those species.

54. Without prejudice to the State Respondents’ position that conservation measures

have been established, the existence of conservation measures is not a requirement for the

process of Appropriate Assessment under Article 6(3) of the Habitats Directive.

55. The Notice Party’s position is that the decision is not invalid for the reasons alleged

at Core Ground 5. Core Ground 5 is not pleaded with sufficient particularity in the Amended

Statement of Grounds. It has been addressed cumulatively with Core Ground 3 in the

Applicant’s written submissions. In opposing the application for judicial review premised on

Core Ground 5, the Notice Party also relies upon its grounds of opposition and written

submissions advanced in respect of Core Ground 3.

56. As a matter of fact, SSCOs have been established in respect of Mullaghanish to

Musheramore SPA and the Gearagh SPA. The Notice Party denies that the State

Respondents acted contrary to the provisions of Regulation 26(7) of S.I. No. 47 of 2011,

whether to the effect that the State Respondents failed to identify additional species referred

to in Article 4(1) or 4(2) of the Birds Directive as the subject of site specific conservation

objectives for the Gearagh SPA and the Mullaghanish to Musheramore SPA, or failed to

establish measures which they consider to correspond to the ecological requirements of the

species. The Notice Party has adopted the description of conservation measures established

by the State Respondents, which are set out at §§ 47 to 56 of the Statement of Opposition

of the State Respondents with respect to the Gearagh SPA and §§ 71 to 84 with respect to

the Mullaghanish to Musheramore SPA.

57. In any event, as set out by the Notice Party in relation to Core Ground 3, neither

site specific conservation objectives nor conservation measures are a pre-requisite to the

jurisdiction of the Commission to carry out an Appropriate Assessment. The matters pleaded

by the Applicant against the State Respondents do not vitiate the decision of the Commission

such that the relief of certiorari quashing the impugned decision is warranted.”

111. There are two aspects to the claim in relation to a lack of conservation objectives:

(i) lack of conservation objectives/measures regarding qualifying interest (QI) species

in Gearagh SPA; and

(ii) lack of conservation objectives/measures regarding non-QI bird species in both

SPAs.

112. The State in opposition papers conceded a declaration:

“A Declaration that, contrary to their obligations under EU law, until the publication of the

Gearagh SPA Site-Specific Conservation Objectives on 25 April 2025 (including at the time

of the impugned decision), the Second and Third named Respondents failed to have in place

site-specific conservation objectives for The Gearagh SPA.”

113. Whether or not any costs should follow from that can be considered in the context of the

balance of costs overall later in the case, given that subsequent to the declaration being conceded

significant costs were incurred as a result of the applicant’s pursuing failed points.

114. Inconsistently with conceding that declaration, the State submits that core grounds 3 and 5

are limited to a contention that “the impugned decision is invalid because” of the alleged lack of

objectives/measures, that these grounds do not advance any free-standing ground that the State

failed to put in place such objectives/measures as a free-standing basis for relief, and that the

complaint regarding the 2011 regulations is limited to those regulations, which are phrased

permissively, and not to be read in the light of the underlying directives.

115. Even leaving aside the technical illogicality of having conceded a declaration while making

such a point, I would be reluctant to accept this objection. The applicant’s point is, I think, on

balance acceptably clear. It is that the State has not put in place the necessary objectives/measures

both in relation to QI and non-QI birds.

116. That said, the pleaded sub-grounds for core ground 5 are threadbare:

“66. The Second and or Third and Fourth Respondents acted contrary to EU law by failing

to establish the necessary site-specific conservation objectives and conservation measures

and or special conservation measures for the Gearagh SPA. The Applicant relies on the

particulars pleaded in support of CG3.

67. The Second and or Third and Fourth Respondents acted contrary to EU law as

clarified in the judgment of the CJEU in Case C-66/2023 Elliniki Ornithologiki delivered on

12 September 2024, by failing to establish the necessary conservation objectives and

measures and or failing to apply the appropriate level of protection to birds that rely on and

or are associated with the Gearagh SPA and the Mullaghanish to Musheramore Mountains

SPA but for whom the site was not directly designated (other than as the category ‘wetland

and waterbirds’) and by failing to establish the necessary conservation objectives and

measures and or failing to apply the appropriate level of protection to the Golden Plover bird

that rely on and are associated with the Gearagh SPA and the Merlin that rely on and are

associated with the Mullaghanish to Musheramore Mountains SPA. The Applicant relies on

the particulars pleaded in support of CG3.”

117. Insofar as concerns conservation objectives, sub-ground 66 requires no further

consideration because the State has conceded that declaration. Whether that gives rise to certiorari

is an issue for core ground 3 post-Power.

118. That leaves conservation measures for the Gearagh SPA. As appears from Ms Carberry’s

affidavit there are a range of measures for that SPA, but they are not embodied in a document that

exists separately from exhibit CC1. Unfortunately for the applicant there is no plea that such a list

has to be a published, separate, formal and/or stand-alone document setting out the conservation

measures. The applicant just baldly pleads that there are no such measures. In circumstances

where Ms Carberry has set out the measures, the onus falls on the applicant to displace that, an

onus that it has not discharged or attempted to discharge.

119. As regards non-QI objectives/measures, the State submits that the need for objectives is

limited to non-QI species that are significantly present, with significance an evaluative concept. The

State goes on to say that their evaluation is that no other species meet the significance criterion for

these SPAs.

120. The problem for the applicant is that it bears the burden of proof to show the presence of

another species at a significant level. That was part of their case on day one – the fact that they

are now coming in with an affidavit of Ms Heffernan at the last minute is not a permissible procedure

because that was a point they needed to evidence prior to the filing of opposition papers. There is

not an ongoing entitlement to put in new evidence that should have been there initially, so this

affidavit must be disallowed. While an applicant is not limited to the initial eight weeks for all

affidavits, once opposition has been filed it would create procedural chaos and would by totally

inconsistent with case-management of commercial proceedings for an applicant to have any ongoing

entitlement to put in further evidence that could have been placed before the court earlier. The fact

that an opposing party points out a gap in their case does not create a new issue that triggers a

right to reply.

121. If I am wrong about that, Mr Tierney avers that any significantly present species were

addressed, and he has not been cross-examined. So this point fails on a basic evidential basis either

way.

Core ground 3 – defective AA

122. Core ground 3 is:

“3. The impugned decision is invalid because it contravenes Article 6 of Council Directive

92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and

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

Development Act 2000 and Article 4 of the EIA Directive as transposed by Part X of the PDA

2000, as amended, and the Aarhus convention and in accordance with the case law of the

CJEU by:

• failing to carry out an Appropriate Assessment properly or at all without lacunae and

which contains complete, precise and definitive findings and conclusions capable of dispelling

all reasonable scientific doubt as to the effects of the proposed works on the conservation

interests of the Mullaghanish to Musheramore Mountains SPA and Gearagh SPA having

regard to site specific conservation objectives and or special conservation measures; and

• failing to carry out an Appropriate Assessment properly or at all without lacunae and

which contains complete, precise and definitive findings and conclusions capable of dispelling

all reasonable scientific doubt as to the effects of the proposed works on the conservation

of other species of birds which must be protected under Article 4 and Annex I of the Birds

Directive namely the Golden Plover, a regularly occurring migratory species to the Gearagh

SPA and the Merlin in the Mullaghanish to Musheramore Mountains SPA, having regard to

site specific conservation objectives or site specific special conservation measures.

Further particulars are set out in Part 2 below.”

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

“14. The Applicant’s position is that that the impugned decision is invalid because it

contravenes Article 6 of the Habitats Directive as transposed, and Article 4 of the EIA

Directive as transposed by Part X of the PDA 2000, as amended, and the Aarhus convention

and in accordance with the case law of the CJEU.

15. The Commission failed to carry out an Appropriate Assessment properly or at all

without lacunae and which contains complete, precise and definitive findings and conclusions

capable of dispelling all reasonable scientific doubt as to the effects of the proposed works

on the conservation interests of the Mullaghanish to Musheramore Mountains SPA and

Gearagh SPA having regard to site specific conservation objectives and or special

conservation measures.

16. The Commission failed to carry out an Appropriate Assessment properly or at all

without lacunae and which contains complete, precise and definitive findings and conclusions

capable of dispelling all reasonable scientific doubt as to the effects of the proposed works

on the conservation of other species of birds which must be protected under Article 4 and

Annex I of the Birds Directive namely the Golden Plover, a regularly occurring migratory

species to the Gearagh SPA and the Merlin in the Mullaghanish to Musheramore Mountains

SPA, having regard to site specific conservation objectives or site specific special

conservation measures.

17. This ground arises in Module 1 to the extent that it is not impacted by the reference

question in Case C-27/25 Knocknamona:

Are valid conservation objectives for a Special Protection Area a pre-requisite to the

competent authority’s jurisdiction to carry out a valid appropriate assessment under Article

6(3) of Directive 92/43/EEC (1) on the conservation of natural habitats and of wild fauna

and flora as amended (the ‘Habitats Directive’) when considering an application for a grant

of development consent?

18. Note also that in Case C-356/25 Massey a similar question is raised in the context

of AA screening - by reference not only to conservation objectives but also conservation

measures; to date the issue in this case of the relevance of conservation measures to AA

itself has not been modularised.

19. The Commission’s position is that its decision is not invalid as alleged at Core Ground

3. The Commission’s AA was not defective as alleged. As regards AA, the Applicant has not

demonstrated that the evidence and materials that were before the Commission were so

flawed on their face that a reasonable expert would have objected to them. Core Ground 3

alleges defective AA in relation to Hen Harrier, Merlin and Golden Plover based on non-

expert, mere assertion and the Applicant’s selective misreading of the Inspector’s Report

and Commission’s Decision and the information that was before the Commission in a way

that does not make sense and renders the Decision invalid rather than valid, in

circumstances where a valid reading is available.

20. By way of preliminary objection and/or a legitimate matter relevant to the Court’s

discretion to refuse relief, in its submission to the Commission on the subject application for

permission the Applicant made no submission at all in relation to Hen Harrier, Merlin or

Golden Plover. Instead, as apparent from the Amended Statement of Grounds, at Core

Ground 3 the Applicant in substance purports to advance impermissible, ex-post facto, non-

expert, merits-based disagreement that, inter alia, entails re-agitating certain submissions

made by the DAU (which the Applicant refers to as the ‘NPWS’) that were fully addressed by

the further information submitted by the Notice Party and were fully considered and

addressed in detail by the Inspector and by the Commission’s Ecologist and by its

Environmental Scientist in their respective reports on the subject application.

21. As regards Mullaghanish to Musheramore Mountains SPA, there is no substance to

the Applicant’s mere assertions. The conclusions reached by the Inspector and by the

Commission (in agreeing with the Inspector), in relation to Hen Harrier and Mullaghanish to

Musheramore Mountains SPA, were open to the Commission based on the materials that

were before the Commission, including the Commission Ecologist’s Report, the NIS

submitted by the Notice Party (at e.g., sections 3.3.4, 4.1, 4.3, Figure 7, section 5 and Table

5), the further information submitted by the Notice Party (at e.g. Appendix F), and the EIAR

submitted by the Notice Party (at e.g., Vol II, Chapter 7 and corresponding Appendices in

Vol IV).

22. As regards Merlin, there is no substance to the Applicant’s assertions. The potential

impacts on Merlin arising from the proposed development (and submissions made by Cork

County Council and the NPWS regarding same) were lawfully considered and assessed by

the Commission and its Inspector (see e.g. §6.6.5, §6.6.14, §8.2.20, §8.3.11, §11.9.2,

§11.9.3.2, §11.9.3.3, §11.9.9.2, §11.9.9.3, §11.9.7.1, §11.9.9.1, and §11.9.9.2 of the

Inspector’s Report) and by the Commission’s Ecologist, based on the totality of the

information that was before the Commission in respect of Merlin, in particular the information

submitted by the Notice Party (see e.g. Vol II, Chapter 7 of the EIAR and the Notice Party’s

Response to Request for Further Information dated September 2023). Merlin is not a

Qualifying Interest for Mullaghanish to Musheramore Mountains SPA and there are no

conservation objectives relating to Merlin for that SPA. Having regard to the actual evidence

that was before it, the Commission was entitled to conclude as it did in respect of Merlin.

The Applicant’s ex-post facto, non-independent, non-expert, mere assertions in relation to

Merlin do not amount to a legal ground for certiorari of the Commission’s Decision or any

other relief.

23. As regards the Gearagh SPA, there is no substance to the Applicant’s assertions.

Potential effects on this European site were lawfully assessed in detail by the Commission

(see e.g. section 12.10 of the Inspector’s Report at §12.10.1 to §12.10.7 and the table on

page 283). The conclusions reached by the Inspector and the Commission (in agreeing with

the Inspector), in relation to the Gearagh SPA, were open to the Commission based on the

materials that were before the Commission, including the Commission Ecologist’s Report,

the NIS submitted by the Notice Party (at e.g., sections 3.3.2, 4, 4.1, 4.2, 4.4,5 5 and Table

5) and the EIAR submitted by the Notice Party (at e.g., Vol II, Chapter 7 and corresponding

Appendices in Vol IV). Having regard to the actual evidence that was before it, the

Commission was entitled to conclude as it did in respect of the Gearagh SPA.

24. As regards Golden Plover, these is no substance to the Applicant’s assertions. The

potential impacts on Golden Plover arising from the proposed development (and submissions

made by Cork County Council and the NPWS regarding same) were lawfully considered and

assessed by the Commission and its Inspector (see e.g. §6.6.7, §6.6.14, §8.2.30, §8.2.31,

§8.3.11, §8.3.12, §11.9.2, §11.9.3.2, §11.9.3.3, §11.9.8.1, §11.9.9.1, §11.9.9.5 of the

Inspector’s Report) and by the Commission’s Ecologist, based on the totality of the

information that was before the Commission in respect of Golden Plover, in particular the

information submitted by the Notice Party (see e.g. Vol II, Chapter 7 of the EIAR and the

Notice Party’s Response to Request for Further Information dated September 2023). Golden

Plover is not a Qualifying Interest for the Gearagh SPA and there are no conservation

objectives relating to Golden Plover for that SPA. Having regard to the actual evidence that

was before it, the Commission was entitled to conclude as it did in respect of Golden Plover.

The Applicant’s ex-post facto, non-independent, non-expert, mere assertions in relation to

Golden Plover do not amount to a legal ground for certiorari of the Commission’s Decision

or any other relief.

25. The Applicant suggests (§51, Applicants submissions) that Core Ground 3 raises the

issue of the relevance of conservation measures in the context of stage 2 AA and thus raises

a similar question as that referred (in the context of stage 1 AA screening) in Case C-356/25

Massey. For information purposes, it is noted that in Case C-27/25 Knocknamona, the issue

of conservation measures in the context of stage 2 AA does not feature in circumstances

where the applicant in that case (in the High Court before Holland J.) did not contend that

conservation measures affected the validity of the impugned Commission decision (see

Power v. An Bord Pleanála [2024] IEHC 108 at §14, and footnote 60 in same which refers

to Day 2, page 93 of the transcript). As to conservation measures and stage 2 AA, the

Commission submits that conservation measures have no relevance to the carrying out of a

stage 2 AA. There is no obligation to have regard to conservation measures when carrying

out a stage 2 AA and in those circumstances, no basis to infer into Article 6(3) of the Habitats

Directive a jurisdictional bar to carrying out a stage 2 AA in the absence of conservation

measures. There is no supporting CJEU or other case law, nor guidance produced by the

European Commission, that indicates or suggests that there is an obligation to have regard

to conservation measures when carrying out stage 2 AA. An assessment under Article 6(3)

of the Habitats Directive, as per the text of same, does not concern conservation measures.

Under Article 4(1) of the Birds Directive, designation of SPAs is itself a conservation measure.

Under both Article 4(1) of the Birds Directive and Article 6(1) of Habitats Directive,

conservation measures have no link to the assessment under Article 6(3) of the Habitats

Directive. At their height, the Applicant’s written submissions do not go so far as to expressly

assert that there is such an obligation either. Nor do they contend that consideration of

conservation measures is a ‘jurisdictional requirement’ to carrying out AA. The most that

the Applicants contend (§67) is that conservation measures ‘have the potential to inform

the interpretation and application of the Conservation Objectives’ and could be ‘highly

relevant’ in carrying out stage 2 AA or stage 1 AA screening. At §51 of their submissions,

they refer to the ‘relevance’ of conservation measures to AA. Indeed, given the actual

evidence that was before the Commission relevant to AA, and the lack of evidential basis to

the ex post facto assertions advanced by the Applicant in relation to AA in these proceedings,

much the same as in Massey (No.2) [2025] IEHC 206 at §123 et seq, Massey (No.4) [2025]

IEHC 309 at §26,§30, there is no reason or evidential basis as to why any question as to the

relevance of ‘conservation measures’ to stage 2 AA would go to certiorari of the

Commission’s Decision in this case.

26. The State Respondents’ position: Core Ground 3 is primarily directed against the

Commission. However, insofar as the Applicant seeks to rely on the particulars of Core

Ground 3 for the purpose of Core Ground 5, the State Respondents’ position is as follows:

27. The State Respondents have made a concession in respect of the Site Specific

Conservation Objectives for the Gearagh SPA at the time of the impugned decision.

However, Site Specific Conservation Objectives have since been established for the Gearagh

SPA on 25 April 2025. It is denied that the State Respondents have failed to comply with

their obligations under the Birds Directive the Habitats Directive, or have failed to establish

the necessary site-specific conservation objectives and conservation measures for birds that

use the Gearagh Special Protection Area. The State Respondents refer to SSCOs of 25 April

2025 and the conservation measures identified in the Statement of Opposition and Affidavit

of Ciara Carberry. There is no ‘absence’ of conservation measures as alleged by the

Applicant. The State Respondents have also established SSCOs and conservation measures

for the Mullaghanish to Musheramore Mountains SPA. Any alleged failure to establish

conservation measures or alleged inadequacy of conservation measures established under

EU obligations should not be challenged in judicial review proceedings against a planning

decision of An Coimisiún Pleanála. The Applicants in any event have not established that

the conservation measures are inadequate or insufficient.

28. It is denied that the State Respondents have acted contrary to Elliniki in respect of

the Golden Plover or Merlin. The State Respondents were entitled to carry out an assessment

of the significance of a species presence on the site. It has been determined that Merlin and

Golden Plover were not present in a significant manner on the sites the subject of these

proceedings such as to be treated as additional species triggering the requirements in Elliniki

to establish additional conservation objectives or conservation measures for those species.

29. Without prejudice to the State Respondents’ position that conservation measures

have been established, the existence of conservation measures is not a requirement for the

process of Appropriate Assessment under Article 6(3) of the Habitats Directive.

30. The Notice Party’s Position is that the impugned decision is not invalid as alleged at

Core Ground 3. The Commission carried out a lawful Appropriate Assessment. The Applicant

made no submission to the Commission in relation to Hen Harrier, Merlin or Golden Plover

and is, in substance, purporting to advance an impermissible ex post facto, non-expert,

merits-based challenge to the impugned decision. Insofar as the Applicant has sought to

latterly adduce expert evidence, it is inadmissible, and in particular, the Affidavit of Marie

Louise Heffernan should be excluded. It is not properly a reply, seeks to adduce further

evidence that was reasonably available originally and should not be adduced at this late

stage of proceedings. Further, the Applicant is not entitled to expand its case by way of

written submissions.

31. Neither site-specific conservation objectives nor special conservation measures are

a pre-requisite to the jurisdiction of the Commission to carry out a valid Appropriate

Assessment under Article 6 of the Habitats Directive. Insofar as the question of conservation

measures is to be addressed in Module 1 (pursuant to the directions of the High Court,

Module 1 includes issues arising in Core Ground 3 other than issues encompassed in the

preliminary reference by the Court of Appeal in Case C-27/25 Knocknamona), conservation

measures are not referenced in Article 6(3) of the Habitats Directive. It is clear that the EU

legislature has not predicated an Appropriate Assessment being carried out by reference to

conservation measures. In any event, the Court can, and should, conclude that it can

exclude any reasonable possibility that any failure to consider conservation measures in this

case would give rise to effects on either the Mullaghanish to Musheramore Mountains SPA

or the Gearagh SPA. Hence, the Court should refuse an order quashing the development

consent.

32. Having made no submission to the Commission during the decision-making process

as to the effects on the Hen Harrier, the Applicant cannot now raise issues as to the adequacy

of documentation before the Commission or rely on documentation which was not before

the Commission. The conclusions reached by the Inspector (and, by the Commission, in

agreeing with the Inspector) included the Inspector accessing the NPWS website on 11

August 2023, subsequent to the publication by the NPWS of the Conservation Objectives

Supporting Document dated 2022, as well as considering the reports of the Commission’s

Ecologist and Scientist, the NIS and EIAR and RFI Response submitted by the Notice Party.

The materials before the Commission were sufficient to enable it and its Inspector to

conclude that the Hen Harrier is an occasional winter visitor. The planning application

documentation clearly stated that there were no recorded observations of Hen Harrier during

the breeding season periods and the material before the Commission established that there

was no evidence of winter roosting on the site. The Commission and its Inspector were

entitled to conclude that there was no pathway identified for adverse effects on the

conservation condition of the Hen Harrier associated with the proposed development. The

Applicant has not demonstrated that the materials before the Respondent were flawed, still

less that those materials were so flawed on their face that a reasonable expert would have

objected to them.

33. In relation to Merlin and Golden Plover, the Applicant did not make the case before

the Commission and no evidence has been adduced as to the significance of the presence of

these species. The Applicant has failed to make out a case, on the facts, that the Merlin or

Golden Plover are going to be affected by the proposed development. There was sufficient

material before the Commission and its Inspector to lawfully conclude as it did in relation to

the Merlin and Golden Plover.

34. Insofar as the Applicant has sought to rely on collision risk modelling guidance issued

by Naturescot subsequent to the submission of the application documentation, there was no

legal obligation on the Commission or its Inspector to have considered or applied the revised

methodology. In any event, the Notice Party does not accept the purported analysis

pertaining to that methodology referenced in §§E31 and E32 of the Amended Statement of

Grounds.”

124. There are two SPAs involved:

(i) Mullaghanish to Musheramore Mountains SPA; and

(ii) Gearagh SPA.

125. In terms of Mullaghanish, there are essentially two species concerned:

(i) the Hen Harrier which are a qualifying interest; and

(ii) Merlin which are not.

126. In terms of Gearagh SPA, the relevant species are:

(i) the QI species Wigeon, Teal, Mallard and Coot and ‘Wetland and Waterbirds’ which

raise a Power point which has been modularised; and

(ii) Golden Plover which is not a QI.

127. Thus for present purposes there are three issues:

(i) defective consideration of Hen Harrier as a QI species in Gearagh SPA;

(ii) defective consideration of non-QI species in both SPAs; and

(iii) a subsidiary issue about not inviting further submissions.

128. One really crucial point is that as noted under core ground 5, the applicant has failed to

displace the State’s evidence in relation to the existence of measures and the significance of non-QI

species. That flows through into core ground 3, because the applicant can’t obtain relief on the basis

of a factual foundation which it has not established.

129. We can then turn to the specific issues. It makes sense to start with Hen Harrier.

Alleged defective consideration of Hen Harrier

130. The applicant’s main point is that site-specific conservation objectives were not

referenced/considered by the commission.

131. The Mullaghanish to Musheramore Mountains SPA was designated by S.I. No. 627 of 2011 -

European Communities (Conservation of Wild Birds (Mullaghanish to Musheramore Mountains

Special Protection Area 004162)) Regulations 2011.

132. Site-specific conservation objectives were established in September 2022 with particular

reference to Hen Harrier which are the subject of a supporting document:

https://www.npws.ie/protected-sites/spa/004162.

133. The SPA is discussed in the inspector’s report at §12.9.1 to §12.9.6 and the table on page

278. The table includes a link to the NPWS site. The inspector accessed the NPWS website on 11

August 2023.

134. The applicant complains in oral submissions that there was no “express consideration” of the

site-specific conservation objectives, but lack of express narrative discussion does not equate in law

to lack of consideration. The whole basis of this point is totally misconceived. The applicant has

failed to discharge the onus of proof to show defective consideration.

135. As regards the alleged failure to apply up to date knowledge regarding collision risks, the

developer relied on compliance with NatureScot guidelines which were published in 2017.

136. Current Scottish guidelines were published in September 2024 although at least some of the

guidelines were apparently actually written in 2016: https://www.nature.scot/doc/guidance-using-

updated-collision-risk-model-assess-bird-collision-risk-onshore-wind-farms.

137. Legal obligations have to be workable, and in a context where thousands of pages of

technical material may be submitted by parties to the decision-taker, it is unworkable to suggest

that there is a general obligation to keep all such technical information under constant review so

that any change or update must be autonomously investigated.

138. There may well be an autonomous obligation to apply clear new industry standards, but they

would need to reach a certain level of prominence and general acceptance. We need to retain sight

of what the alleged non-considered document is – a policy document published by a sub-national

authority of a non-EU member state that was already possibly somewhat out-of-date when

published.

139. In such circumstances there is no legal error in not rejecting the developer’s science so the

onus of proof to show a lack of best scientific practice is on the applicant, rather than it being a case

that the onus is on the commission to show that any error was harmless. The applicant has not

discharged the onus here.

140. Insofar as the applicant otherwise complains that the consideration in the AA was generally

inadequate, this has to be established evidentially which has not been done. I agree with the

commission:

“54. The conclusions reached by the Inspector and by the Commission (in agreeing with

the Inspector), in relation to Hen Harrier and Mullaghanish to Musheramore Mountains SPA,

were open to the Commission based on the materials that were before the Commission,

including the Commission Ecologist’s Report, the NIS submitted by the Notice Party (at e.g.,

sections 3.3.4, 4.1, 4.3, Figure 7, section 5 and Table 5), the further information submitted

by the Notice Party (at e.g. Appendix F), and the EIAR submitted by the Notice Party (at

e.g., Vol II, Chapter 7 and corresponding Appendices in Vol IV).

55. The Applicant (at e.g., Section E, Part 2, §26 to §29) essentially contends that the

Commission and its Inspector erred in relation to AA in considering that the risk to Hen

Harrier was specifically that of construction works carried out during breeding season that

could cause disturbance to displaying, nesting and/or foraging Hen Harriers, and contends

by way of a combination of misreading of the Inspector’s Report and the Commission’s

Ecologist’s Report and by way of the Applicant’s ex-post facto non-expert merits-based mere

assertion, that there were other risks to Hen Harrier that were not considered or properly

assessed (by reason of certain recordings of Hen Harrier flying over the site and given the

‘recognised foraging distance for this bird’ (§28)).

56. There is no basis to the Applicant’s claims in this regard and same are not established

evidentially.

57. For example, as to Collision Risk, as stated in Chapter 7 of the EIAR (at internal

pages 26 and 27), the evidence that was before the Commission (which the Applicant in its

submission on the application could have taken issue with or disputed, but did not) was that:

‘In a study of flight behaviour of adult and juvenile hen harriers at various wind farms in

Ireland, Wilson et al. (2015)28 found that adult hen harriers spent most of their time

(82.8%) flying below the reach of turbine blades.

It is important to note that there appears to be very few documented cases of hen harrier

collision mortality in the literature […]

[…]

The collision risk modelling for the proposed Development has calculated a rate of 0.003

collisions per year (or 1 bird every 333 years) for the Siemens Gamesa and Vestas turbine

models and 0.0026 collisions per year (or 1 bird every 384 years) for the Nordex turbine

model. This predicted collision rate is not significant in the context of the county and national

Hen Harrier population.’”

141. This point therefore fails.

Alleged defective consideration of non-QI bird species

142. The applicant majors on the judgment of 12 September 2024, Elliniki Ornithologiki Etaireia

and Others v Ypourgos Esoterikon and Others, C-66/23, ECLI:EU:C:2024:733.

143. The critical issue is para. 49 (emphasis added):

“The Court therefore finds that the conservation objectives of a site must be defined while

taking account of the ‘classification species’ and of other species of birds which must be

protected under Article 4 of the Birds Directive and which are present in a significant

manner in the SPA concerned, without that site having been designated as an SPA for those

other species.”

144. The Advocate General acknowledged this point as well (Opinion of Advocate General Kokott

delivered on 22 February 2024, Elliniki Ornithologiki Etaireia and Others v Ypourgos Esoterikon and

Others, C-66/23, ECLI:EU:C:2024:150):

“59. In this regard, an initial indication is provided by the classification of the occurrence

concerned in the standard data form for the site in question. This calls for an evaluation of

the population concerned in relation to the populations present within national territory.

[n31: See point 3.2(ii) of the explanatory notes on the standard data form provided for in

Implementing Decision 2011/484.] As the Commission explains, an evaluation of A, B or C

shows that the population is to some extent significant and, therefore, in principle merits

protection. If the population of a species is evaluated only as D, it is not significant and,

therefore (at least if the assessment is correct), does not as a rule require protection

measures.”

145. The data form was provided in Commission Implementing Decision of 11 July 2011

concerning a site information format for Natura 2000 sites (notified under document C(2011)4892).

146. This has now been replaced by Commission Implementing Decision (EU) 2023/2806 of 15

December 2023 concerning a site information format for Natura 2000 sites (notified under document

C(2023)8623).

147. The corresponding provision in the current form appears to be section 3.2.8, abundance

category:

“Pre-defined options:

☐ Common

☐ Rare

☐ Very rare

☐ Present”

148. The extent of prevalence of a species is crucial. The mere fact that a single bird was ever

seen in an area doesn’t and can’t create an obligation to establish site-specific objectives for that

species – that would be an endless and unworkable process.

149. The commission’s ecologist went through all species on a species-by-species basis and

considers the non-QI species. As the commission submits:

(i) “The potential impacts on Merlin arising from the proposed development (and

submissions made by Cork County Council and the NPWS regarding same) were

lawfully considered and assessed by the Commission and its Inspector (see e.g.

§6.6.5, §6.6.14, §8.2.20, §8.3.11, §11.9.2, §11.9.3.2, §11.9.3.3, §11.9.9.2,

§11.9.9.3, §11.9.7.1, §11.9.9.1, and §11.9.9.2 of the Inspector’s Report) and by

the Commission’s Ecologist, based on the totality of the information that was before

the Commission in respect of Merlin, in particular the information submitted by the

Notice Party (see e.g. Vol II, Chapter 7 of the EIAR and the Notice Party’s Response

to Request for Further Information dated September 2023).”

(ii) “The potential impacts on Golden Plover arising from the proposed development

(and submissions made by Cork County Council and the NPWS regarding same) were

lawfully considered and assessed by the Commission and its Inspector (see e.g.

§6.6.7, §6.6.14, §8.2.30, §8.2.31, §8.3.11, §8.3.12, §11.9.2, §11.9.3.2, §11.9.3.3,

§11.9.8.1, §11.9.9.1, §11.9.9.5 of the Inspector’s Report) and by the Commission’s

Ecologist, based on the totality of the information that was before the Commission

in respect of Golden Plover, in particular the information submitted by the Notice

Party (see e.g. Vol II, Chapter 7 of the EIAR and the Notice Party’s Response to

Request for Further Information dated September 2023).”

150. As noted above, the applicant’s entire case under this heading fails in consequence of its

evidential failure under core ground 5, for the simple reason that it has not discharged the evidential

burden to demonstrate as erroneous the State’s evaluation of whether the presence of non-QI

species was significant.

151. Finally if I am wrong in relation to the foregoing, the absence of any submissions by the

applicant on the issues relevant to code ground 3 militates against the grant of relief as a matter of

discretion.

Complaint regarding not inviting further comment

152. Finally for completeness, I agree with the commission’s submission on the question of

inviting further comment:

“75. Furthermore, there was no obligation on the Commission to invite a submission from

the DAU/NPWS on the further information submitted by the Notice Party in September 2023.

No such obligation has been identified in the unparticularised assertion (which is contrary to

Order 84 rule 20(3) and/or Order 103 rule 14(3) RSC) that the Applicant advances on this

point at Section E, Part 2, §53 of the Amended Statement of Grounds. In addition, it is not

open to the Applicant to purport to rely on the participation rights of the DAU/NPWS in order

to invalidate the Commission’s Decision, same offends the ius tertii rule (see e.g. Rural

Residents (No.1) [2025] IEHC 600 at §76). Moreover, the DAU/NPWS has not raised any

issue with not being provided an opportunity to make such a submission on the further

information that was submitted by the Notice Party. This complaint discloses no invalidity

in the Commission’s Decision and no route map from the complaint made to the relief

claimed.”

153. The CJEU has recently clarified (in the judgment of 1 August 2025, Asociación Petón do Lobo

v Dirección Xeral de Planificación Enerxética Recursos Naturais de la Xunta de Galicia, C‑461/24,

ECLI:EU:C:2025:620) that the process of submission and counter-submission cannot be endless –

there is no right to comment on other people’s comments and certainly not as a ius tertii.

Conclusion on core ground 3

154. For the foregoing reasons this ground must fail insofar as it arises at this point.

Core ground 4 – defective EIA

155. Core ground 4 is:

“4. The impugned decision is invalid in that it contravenes Article 2(1) and Article 3 of

the EIA Directive as implemented by Part X of the Planning and Development Act 2000 and

Part 10 and Part 18 of the Planning and Development Regulations 2001 as amended, because

the Board failed to ensure that, before development consent was given, the whole project

was made subject to the requirement for development consent and a proper assessment of:

• the expected effects on the White-Tailed Eagle (Haliaetus albicilla)

• the effects deriving from the vulnerability of the project to risks of major accidents

and/or disasters that are relevant to the project concerned which in this case includes the

elevated risk that the construction and or operation of Turbines T1 and or T2 and or T13 will

cause a landslide and associated risk to the environment including drinking water and

cultural heritage assets ; or the effects of the relocated Turbine T7.”

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

“35. The Applicant’s position is that the impugned decision is invalid in that it contravenes

Article 2(1) and Article 3 of the EIA Directive as implemented by Part X of the Planning and

Development Act 2000 and Part 10 and Part 18 Planning and Development Regulations 2001

as amended, because: the Board failed to ensure that, before development consent was

given, the whole project was made subject to the requirement for development consent and

a proper assessment of the expected effects on the White Tailed Eagle (Haliaetus albicilla)

and the effects deriving from the vulnerability of the project to risks of major accidents

and/or disasters that are relevant to the project concerned which in this case includes the

elevated risk that the construction and or operation of Turbines T1 and or T2 and or T13 will

cause a landslide and associated risk to the environment including drinking water and

cultural heritage assets; or the effects of the relocated Turbine T7.

36. The Commission’s position is that its decision is not invalid as alleged at Core Ground

4. The Commission’s EIA was not defective as alleged. Applying the relevant legal principles

to the facts here, Core Ground 4 has not been made out. The EIA completed by the

Commission in respect of the proposed development was carried out in accordance with the

requirements applicable to that assessment.

37. The Applicant asserts that the Inspector and the Commission erred in failing to have

proper regard to the two mitigation measures proposed by the DAU/NPWS in relation to

White-Tailed Eagle. That is incorrect and not established evidentially. The Commission was

lawfully entitled to conclude as it did in respect of White-Tailed Sea Eagle and in this regard

was entitled to accept the further information response from Notice Party in relation to

White-Tailed Sea Eagle. The Applicant has failed to evidentially establish any defect in

relation to the EIA carried out by the Commission with respect to potential impacts on White-

Tailed Sea Eagle.

38. As regards alleged risks of landslides and Turbines T1, T2 and T13, all of the

Applicant’s ex-post facto, non-expert assertions are without substance having regard to the

actual evidence that was before the Commission. The Commission was entitled to conclude

as it did in respect of the risks of landslide and in respect of granting permission for Turbines

T1, T2 and T13, and conditioning the minor relocation of Turbine T7. The Applicant’s

complaints fail to accurately reflect the position as to landslide risk and the information that

was before the Commission in relation to same and also the actual reason/basis for the

omission of Turbine T12.

39. As regards the minor relocation of Turbine T7, which is required pursuant to

Condition 4, following a submission and recommendation made by the Council, there is no

substance to the Applicant’s complaint regarding same. The Commission carried out a lawful

EIA and considered the development proposal with due regard to its possible final extent,

and the fact that Condition 4(b) requires agreement with the planning authority and revised

drawings showing a minor relocation of Turbine T7 (addressing a point made by the Cork

County Council during the application process) such that it does impact/overlap with the

existing public road L-34011-20, does not mean or prove that matters requiring assessment

under the EIA Directive were not assessed by the Commission. Properly construed,

Condition 4(b) relates to technical matters or matters of detail in respect of the minor

relocation of Turbine T7; further agreement as between the developer and the planning

authority will, inter alia, provide appropriate scrutiny of the development of the detail of the

construction and operation of Turbine T7 that was included with the EIAR and which the

Commission considered as part of the EIA that it carried out. The decision of the planning

authority in that regard is also amenable to judicial review. Condition 4 is not ambiguous

and can be given a sensible and ascertainable meaning that accords with a commonsense

and pragmatic interpretation of the planning decision as a whole; the Commission’s power

to impose conditions was lawfully exercised in relation to Condition 4.

40. The State Respondents’ position: This ground is directed against the Commission.

41. The Notice Party’s position is that the impugned decision is not invalid and was

lawfully made in compliance with Articles 2(1) and 3 of the EIA Directive, as implemented

in Irish law, including in respect of the assessment of likely significant effects on both the

White-Tailed Eagle and the risk of landslides. The submissions of the Applicant reflect

baseless and subjective contentions that the Commission carried out a defective EIA and the

Applicant is incorrect in its contention that such allegedly deficient assessment breaches the

requirement to carry out as complete an assessment as possible of the direct and indirect

effects of the project concerned on the factors set out in Article 3(1) of the EIA Directive.

The approach suggested by the Applicant is fundamentally flawed in its reliance on an open-

ended interpretation of Article 3(1) of the EIA Directive of the type rejected by the Supreme

Court in An Taisce v An Bord Pleanála [2022] 2 IR 173, including as entailing an artificial

expansion of the scope of the EIA Directive beyond its remit.

42. The Commission had proper regard to both the presence of White-Tailed Eagle on

the site and to the contents of the DAU submission. The Applicant has not adduced evidence

capable of discharging its burden of proof, insofar as the Applicant pleads that the

Commission failed to have proper regard to the recommendations of the DAU regarding

mitigation measures. Indeed, the Commission sought further information to address the

concerns raised by the DAU, which were addressed in the RFI Response. The Notice Party’s

responses were comprehensively addressed by the Commission, including in its Ecologist’s

Report.

43. In relation to the risk of landslides, the Notice Party relies upon the technical

expertise of the authors of the Site Investigation Report, including in circumstances where

the Applicant has not adduced any expert or technical evidence to substantiate the purported

grounds of challenge in this respect. The Commission was entitled to find as it did in relation

to the risk of landslides, on the basis of the documentation before it, in relation to Turbines

T1, T2, T7 and T13. The Applicant’s Amended Statement of Grounds and submissions fail

to accurately reflect the actual level of landslide risk which was set out in the documentation

before the Commission, or the actual reason for omission of Turbine T12 (and not T13). In

relation Condition 4(b) of the decision which stated that Turbine T7 together with associated

hardstands and access track shall be shifted south to remove the impact on the public road

L-34011-20, the Commission’s power to impose conditions was lawfully exercised and a

lawful and adequate assessment of the location of Turbine T7 was carried out by the

Commission and its Inspector.

44. In light of the extensive materials and evidence that was before the decision-maker

and, in addition, the fact that the Applicant did not make a submission or observation in

relation to the issue relating to the White-Tailed Eagle or potential landslides, the Notice

Party’s position is that Court should dismiss Core Ground 4.”

157. Core ground 4 has largely been withdrawn by the applicant apart from the moving of T7.

158. The plea in relation to T7 is inadequately pleaded and there is no clear route map from an

error to relief. So it should fail on that basis, but if I am wrong about that, it fails because no such

route-map has been demonstrated as a basis for relief. Section 11 of the inspector’s report has not

been shown to be inadequate or unlawful. The applicant doesn’t even put up any plausible legal

argument in that regard let alone establish such a point.

159. In any event, the issue regarding T7 was considered by the inspector as being of a minor

impact. The applicant carries the burden of proof to show that to be erroneous and hasn’t discharged

that onus.

Summary

160. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that the applicant is confined to the pleadings;

(ii) applying such law to the facts here, the pleading of core ground 4 is clearly

inadequate insofar as there is a lack of a route-map from any claimed issues to any

claimed relief, and generally the applicant cannot by evidence or submission go

beyond the matters set out on the pleadings;

(iii) it is settled law that an applicant must demonstrate the legal basis of any claimed

breach;

(iv) applying such law to the facts here, there is no legal basis for the alleged breach of

the language scheme because the scheme did not have binding effect at the material

time due to the repeal of enabling provisions;

(v) it is settled law that lack of narrative discussion does not equate to lack of

consideration;

(vi) applying such law to the facts here, the applicant has failed to discharge the onus

to show any lack of consideration of relevant matters;

(vii) it is settled law that the onus of proof lies on an applicant;

(viii) applying such law to the facts here, the applicant has failed to discharge the

evidential onus to show anything unlawful about the conservation measures or the

exclusion of non-QI species as being non-significant, or about the carrying out of

the AA or EIA;

(ix) it is settled law that legal provisions should be given a workable interpretation

where possible;

(x) applying such law to the facts here, it would be clearly unworkable to interpret the

autonomous obligations of the board as requiring constant updating in real time of

all technical material put forward by a developer, save by reference to a new

standard of notability well beyond the type of document represented by the

NatureScot guidelines at issue here;

(xi) it is settled law that decisions should not be quashed on mere technicalities;

(xii) applying such law to the facts here, any non-compliance with language objectives,

even if (counterfactually) binding, was minor and temporary and certiorari would be

disproportionate;

(xiii) it is settled law that legislation cannot be challenged on an academic basis;

(xiv) applying such law to the facts here, the challenge to the legislation cannot properly

arise because even if the repealing provision is invalid and thus the language scheme

remains in force, it was complied with or alternatively any non-compliance does not

warrant relief, and hence the validity of the legislation makes no difference in a

context where the applicant’s standing derives from participation in the process

leading to the decision;

(xv) it is settled law that decisions should not be quashed for harmless error and that

relief by way of judicial review is discretionary; and

(xvi) applying such law to the facts here, any error in relation to the Irish version of the

order was effectively harmless and in any event relief on any of the pleaded issues

would be disproportionate and should be refused as a matter of discretion even if

counterfactually there was an error, having regard in particular to (a) the lack of

submission on many of these points by the applicant and (b) the critical importance

of renewable energy infrastructure in the context of the climate emergency.

Achoimre

161. Mar achoimre ghinearálta, agus gan baint ó théarmaí níos sainiúla an bhreithiúnais seo:

(i) is dlí socraithe é go bhfuil an t-iarratasóir teoranta do na pléadálacha;

(ii) agus an dlí sin á chur i bhfeidhm ar na fíricí anseo, is léir go bhfuil pléadáil

phríomhfhoras 4 neamhleor a mhéid nach bhfuil treoirlínte ann ó aon

saincheisteanna a éilítear go dtí aon fhaoiseamh a éilítear, agus go ginearálta ní

féidir leis an iarratasóir, trí fhianaise ná trí aighneacht, dul thar na nithe a leagtar

amach sna pléadálacha;

(iii) is dlí socraithe é go gcaithfidh iarratasóir bunús dlíthiúil aon sárú líomhnaithe a

léiriú;

(iv) agus an dlí sin á chur i bhfeidhm ar na fíricí anseo, níl aon bhunús dlíthiúil ann don

sárú líomhnaithe ar an scéim teanga toisc nach raibh éifeacht cheangailteach ag an

scéim ag an am ábhartha mar gheall ar aisghairm na bhforálacha cumasaithe;

(v) is dlí socraithe é nach ionann easpa plé insinte agus easpa machnaimh;

(vi) agus an dlí sin á chur i bhfeidhm ar na fíricí anseo, níor chomhlíon an t-iarratasóir

an dualgas chun aon easpa machnaimh ar nithe ábhartha a léiriú;

(vii) is dlí socraithe é go bhfuil an dualgas cruthúnais ar an iarratasóir;

(viii) agus an dlí sin á chur i bhfeidhm ar na fíricí anseo, níor chomhlíon an t-iarratasóir

an dualgas fianaiseach chun aon rud mídhleathach a thaispeáint faoi na bearta

caomhnaithe nó eisiamh speiceas nach speicis QI iad mar speicis nach speicis

shuntasacha iad, nó faoi chur i gcrích an AA nó an EIA;

(ix) is dlí socraithe é gur cheart léirmhíniú inoibrithe a thabhairt d’fhorálacha dlíthiúla

nuair is féidir;

(x) agus an dlí sin á chur i bhfeidhm ar na fíricí anseo, ní bheadh sé inoibrithe go soiléir

oibleagáidí uathrialacha an bhoird a léirmhíniú mar rud a cheanglaíonn nuashonrú

leanúnach i bhfíor-am ar gach ábhar teicniúil a chuireann forbróir chun cinn, ach

amháin trí thagairt do chaighdeán nua suntasachta i bhfad níos faide ná an cineál

doiciméid a léirítear le treoirlínte Nature Scot atá i gceist anseo;

(xi) is dlí socraithe é nach ceart cinntí a chur ar neamhní ar bhonn teicniúlachta

amháin;

(xii) agus an dlí sin á chur i bhfeidhm ar na fíricí anseo, bheadh aon neamhchomhlíonadh

cuspóirí teanga, fiú dá mbeadh sé ceangailteach (go frithfhíriciúil), beag agus

sealadach agus bheadh sé díréireach i gcás certiorari;

(xiii) is dlí socraithe é nach féidir dúshlán a thabhairt don reachtaíocht ar bhonn acadúil;

(xiv) agus an dlí sin á chur i bhfeidhm ar na fíricí anseo, ní féidir dúshlán na reachtaíochta

teacht chun cinn i gceart mar fiú má tá an fhoráil aisghairme neamhbhailí agus dá

bhrí sin go bhfanann an scéim teanga i bhfeidhm, gur comhlíonadh í nó mar mhalairt

air sin ní thugann aon neamhchomhlíonadh faoiseamh, agus dá bhrí sin ní dhéanann

bailíocht na reachtaíochta aon difríocht i gcomhthéacs ina ndíorthaítear seasamh an

iarratasóra ó rannpháirtíocht sa phróiseas a threoraíonn an cinneadh;

(xv) is dlí socraithe é nach ceart cinntí a neamhniú mar gheall ar earráid

neamhdhíobhálach agus go bhfuil faoiseamh trí athbhreithniú breithiúnach

lánroghnach; agus

(xvi) agus an dlí sin á chur i bhfeidhm ar na fíricí anseo, bhí aon earráid i ndáil leis an

leagan Gaeilge den ordú neamhdhíobhálach go héifeachtach agus ar aon chuma

bheadh faoiseamh ar aon cheann de na saincheisteanna pléadáilte díréireach agus

ba cheart é a dhiúltú mar ábhar lánroghnach fiú dá mbeadh earráid ann go

frithfhíriciúil, ag féachaint go háirithe do (a) easpa aighneachta ar go leor de na

pointí seo ag an iarratasóir agus (b) tábhacht ríthábhachtach an bhonneagair

fuinnimh in-athnuaite i gcomhthéacs na héigeandála aeráide.

Outstanding issues

162. For clarity, the position regarding the extent of disposition of the issues as of now is as

follows:

(i) core ground 1 – dismissed in this module;

(ii) core ground 2 – withdrawn;

(iii) core ground 3 – partly awaiting Power issue, balance dismissed in this module;

(iv) core ground 4 – partly withdrawn, balance dismissed in this module;

(v) core ground 5 – declaration granted by consent, balance dismissed in this module;

and

(vi) core ground 6 – dismissed as academic in the light of the disposition of core ground

1 for the reasons explained.

Order

163. For the foregoing reasons, it is ordered that:

(i) by consent, there be a declaration that, contrary to their obligations under EU law,

until the publication of the Gearagh SPA Site-Specific Conservation Objectives on 25

April 2025 (including at the time of the impugned decision), the second and third

named respondents failed to have in place site-specific conservation objectives for

Gearagh SPA;

(ii) the proceedings be otherwise dismissed save in relation to the balance of core

ground 3;

(iii) subject to contrary written legal submission in due course:

i. the applicants’ costs of core ground 5 up to the date of the State’s statement

of opposition (16 October 2025) insofar as relates to the declaration be

reserved;

ii. there be otherwise no order as to the applicants’ costs in Module I;

iii. there be no order as to the opposing parties’ costs of core ground 5 insofar

as concerns the declaration up to the date of the State’s opposition; and

iv. the opposing parties’ costs be otherwise reserved;

(iv) 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;

(v) the matter be listed on 12 January 2026 for mention; and

(vi) in accordance with O. 103 r. 32(11) RSC, the perfection of the order be postponed

pending the outcome of the final Module.