High Court dismisses challenge to planning permission, ruling rural telecom project does not trigger EU EIA requirements.

[2025] IEHC 727

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000477]

IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT

2000

BETWEEN

NOEL MCGOWAN AND KAROL WARNOCK

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

VANTAGE TOWERS LIMITED AND LEITRIM COUNTY COUNCIL

NOTICE PARTIES

Date of impugned decision: 14 February 2025

Date proceedings commenced: 9 April 2025

Date of main hearing: 18 November 2025

Date draft judgment circulated: 5 December 2025

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

1. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011

on the assessment of the effects of certain public and private projects on the environment as

amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014

amending Directive 2011/92/EU on the assessment of the effects of certain public and private

projects on the environment (the EIA directive), and transposing law, specifies “[u]rban

development projects” as a category for potential assessment. There is no corresponding

requirement applicable to “rural development projects”. So whatever the concept of urban

development means, it would be inappropriate to ignore this clear legislative distinction or to blur

the concepts in a way not envisaged by the directive and transposing law, or otherwise to improperly

assimilate the rural into the urban. Given the essentially rural-related scale, location, nature and

general features of this project, the primary question here is whether there is any ground to quash

the commission’s conclusion that environmental impact assessment (EIA) was not engaged.

Geographical context

2. The project (https://www.pleanala.ie/en-ie/case/319695) involves the construction of a

telecommunications structure with all associated site works at Laghta (Townland), Kinlough, Co.

Leitrim. The applicants challenge the decision of the commission made on 14 February 2025 (ref:

ABP-319695-24) granting permission to the first named notice party to erect a 24 m high lattice

telecommunications support structure together with antennae, dishes and associated

telecommunications equipment all enclosed in security fencing with a new access track. A view at

the national school looking in the general direction of the locus in quo is at

https://maps.app.goo.gl/2YSDv8kJmAaWqxs68.

3. At para. 2.1 the inspector states:

“The appeal site, which has a stated area of 0.0596 hectares, is located to the west of the

settlement of Kinlough, just outside of the defined development boundary. The appeal site

is part of an existing field with the main body of the site located at the south eastern corner

of the existing field and along its eastern boundary (proposed access track). The site is

accessed off an existing laneway that serves agricultural lands and a number of existing

dwellings and links into the public road to the east of the site. The nearest dwelling is located

approximately 100m to the east of the northern boundary of the site (at it’s closest point)

off the same laneway providing access to the site. The boundaries of the site are defined

by existing hedgerow along the eastern and southern boundaries and no existing boundaries

to the north or west. The site rises gently from north to south, from +37m A.S.L to +40m

A.S.L. at near the site of the proposed mast.”

4. The location of the project is not entirely irrelevant. The redline boundary is a reverse L-

shape with the mast location at the lower left side, i.e., away from the town. Using the draw-line

function on Google Maps shows a distance of about 280 m from there to the concentrated residential

settlement boundary near Dartry Vale, even bearing in mind that there is a single house 100 m

away. The zoning objectives map for Kinlough (map 21 in the CDP) shows a dark red zoning (social

& community use) for the school plus two fields to the West which apparently the school owns and

intends to expand into.

5. Based on the application documents, the mast is 40 m from the edge of the field it is located

in, and on a Google Maps (satellite view) draw-line basis is approximately 86.6 m from the nearest

point of the site owned by the school and not yet developed.

6. There is a pink zoning further to the West but no designation in the legend – which seems

to be enterprise and employment from table 6.5. There is a blue line designated as “development

envelope”, and the mast is effectively contiguous with that, just marginally to the north and certainly

in the immediate vicinity of it.

Facts

7. On 10 October 2022, Vantage lodged an application to Leitrim County Council (the council)

for the proposed development.

8. A planner’s report was prepared by a senior executive planner of the council on 29 November

2023, which recommended that further information be sought from Vantage.

9. A request for further information (RFI) was made by the council to Vantage on 30 November

2022.

10. Vantage responded to the RFI on 27 February 2023.

11. The applicants each made a further submission to the council dated 22 March 2023.

12. A planner’s report was prepared by a senior executive planner of the council on 31 March

2023.

13. The council issued a notification of decision on 31 March 2023 that permission for the

proposed development be refused. By way of decision dated 3 April 2023 (reg. ref. 22/215), the

council refused planning permission for the proposed development.

14. Vantage lodged a first-party appeal with the commission, which was dated 20 April 2023.

The applicants made submissions on the appeal.

15. The commission appointed an inspector who carried out a site inspection on 15 July 2023.

16. The council made a submission on the appeal on 23 May 2023, recommending that planning

permission be refused.

17. The inspector furnished a report to the commission on 17 July 2023, recommending that

permission be granted for the proposed development subject to 20 conditions.

18. By commission direction (BD-013489-23) dated 30 August 2023, the commission directed

that permission for the proposed development be granted.

19. By order of the commission dated 31 August 2023 (ABP-316566-23), the commission

granted permission subject to nine conditions.

20. On 25 October 2023, the applicants brought an application for leave to challenge the

commission’s said decision by way of judicial review and on 20 November 2023, the High Court

(Hyland J.) granted the applicants leave to apply for judicial review.

21. The applicants challenged that grant of permission by way of judicial review in October 2023

[McGowan v. An Bord Pleanála H.JR.2023.0001222]. On 26 February 2024, the commission

conceded the proceedings (on the basis of not having taken into account material from the planning

authority), and an order of certiorari was made on consent, which included an order remitting the

matter back to the commission for re-consideration (which order was made by Hyland J. on 30 April

2024 and was perfected on 1 May 2024). The appeal was then reactivated with a new file number

(ABP-31695-24).

22. On 17 May 2024, the commission wrote to the parties to the appeal inviting them to make

submissions. Responses were received from inter alia the council, Vantage, and the applicants.

23. The commission appointed a planning inspector to prepare a report on the remitted appeal.

The inspector’s report, dated 19 December 2024, records that the inspector carried out a site

inspection on 21 November 2024, and recommended that permission be refused.

24. The commission direction (BD-018804-25) dated 10 February 2025 records, amongst other

things, that “The submissions on this file and the Inspector's report were considered at a Board

meeting held on 31/01/2025”.

25. By order of the commission dated 14 February 2025 (ABP-319695-24), the commission

granted permission subject to nine conditions.

Procedural history

26. Proceedings issued on 9 April 2025.

27. An ex-parte application for leave to apply for judicial review was made on 12 May 2025. An

order was made granting leave.

28. An originating notice of motion issued on 16 May 2025, returnable to 26 May 2025.

29. On 30 June 2025, I fixed a hearing date of 18 November 2025.

30. The commission filed its statement of opposition on 16 September 2025.

31. The first named notice party delivered its statement of opposition dated 19 September 2025,

which was filed on that date (for some reason this was not evident to the court from the High Court

search platform but a filed copy was placed on ShareFile).

32. The applicants served their submissions on 4 November 2025.

33. The commission served its submissions on 13 November 2025.

34. The first named notice party served its submissions on 17 November 2025.

35. The matter was heard on 18 November 2025. Judgment was reserved at the end of that

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

professional and helpful assistance. As I have previously sought to make clear, insofar as any points

advanced are not being accepted in this or any other given judgment, that is solely to do with the

inherent merits of such points and is no reflection on those instructed to convey such points, a

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

concerned.

36. On 5 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.

37. 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.

38. 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).

39. 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.

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

41. I can note that according to the High Court search platform, it would appear that the

applicant’s submissions were not filed. The parties were to attend to these matters prior to the

mention date and if there are omissions in that regard, papers can be filed de bene esse without

prejudice to any later objection.

42. The commission and first named notice party helpfully highlighted some typographical/

minor corrections.

Relief sought

43. The reliefs sought are as follows:

“1. An Order of certiorari, by way of application for judicial review, quashing the decision

of the Respondent (‘the Board’), dated 14 February 2025 (Ref: ABP- 319695-24) granting

permission to the First-Named Notice Party (‘Vantage’) to erect a 24m high lattice

telecommunications support structure together with antennae, dishes and associated

telecommunications equipment all enclosed in security fencing with a new access track at

Laghta, Kinlough, County Leitrim.

2. Such declarations of the legal rights and/or legal position of the Applicants and/or

persons similarly situated and/or of the legal duties and/or legal position of the Respondent

and/or Notice Parties as the Court considers appropriate.

3. A stay on the operation of the planning permission being challenged pending the

determination of the proceedings and/or further order of this Honourable Court.

4. Such further or other order as this Honourable Court shall deem fit.

5. A Declaration that the within proceedings are covered by the protective costs

provisions of s.50B of the Planning and Development Act 2000 (as amended), and/or

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

and/or the Legal Services Regulation Act 2015 and/or Order 99 RSC.

6. The costs of these proceedings.”

Grounds of challenge

44. The core grounds of challenge are as follows:

“1. The Board erred in law in concluding that the site was not a site of ‘last resort’ and/or

failed to provide any or any adequate reasons for rejecting the Inspector’s recommendation

that permission be refused due to Vantage’s failure to demonstrate that alternative sites,

including co-location with existing mast, had been examined to a sufficient extent, contrary

to section 34(10)(b) of the 2000 Act and is, accordingly, ultra vires, void and in breach of

the Applicant’s entitlement to natural and constitutional justice. Furthermore, the Board’s

conclusion that the site was not a site of last resort was irrational.

2. The Respondent’s decision is invalid and/or ultra vires its powers in that failed to

have any adequate regard to the Telecommunications Antennae and Support Structures

Guidelines for Planning Authorities, as updated by circular letter PL 07/12 in 2012 in arriving

at its decision to grant permission for the proposed development.

3. The Board erred in law in concluding that the site the proposed mast would not be

highly visible or obtrusive or have a significant impact on protected views and prospects as

defined in table 11.8, Figure 11.4 and Volume III of the Leitrim County Development Plan

2023 – 2029, in particular V3 and V20. Furthermore, the Board’s decision is contrary to

section 34(10)(b) of the 2000 Act and is, accordingly, ultra vires, void and in breach of the

Applicant’s entitlement to natural and constitutional justice in circumstances where the

Inspector concluded that, in the absence of a Visual Impact Assessment there was no

evidence before the Board to demonstrate that the proposed mast would not have an

adverse impact on Protected Views and Prospects identified in V3 and V20 in Table 11.8,

Figure 11.4 and Volume III of the Leitrim County Development Plan 2023-2029 and that the

proposed development thereby contravened Policies TEL POL 5 and LD POL 1 of the Leitrim

County Development Plan 2023-2029 and the requirements of Section 13.20.3 of said plan.

4. The Board misdirected itself in law in failing to consider health and safety issues

raised in the appeal, with the effect that the decision to grant permission is ultra vires, void

and of no legal effect.

5. The impugned decision is in error of law and invalid in that it materially contravenes

the Leitrim County Council Development Plan 2023-2029, by failing to provide reasons for

the material contravention, failing to take into account relevant considerations and taking

into account irrelevant considerations, further particulars of which are set out in Part 2 below.

EUROPEAN LAW GROUNDS

6. The Board erred in law in concluding that the proposed development did not fall

within a class of development set out in Schedule 5, Part 1 and/or Part 2 of the 2001

Regulations for which EIA may be required.

7. The Board’s decision is invalid and/or ultra vires in that it contravenes Art.6(3) of

the Habitats Directive (Council Directive 92/43/EC) and Part XAB of the 2000 Act, in

circumstances where, in purporting to carry the Screening for Appropriate Assessment, the

Board permitted the decommissioning of the proposed development and reinstatement of

the site leaving over details to be agreed with the planning authority contrary to Case C-

461/17, Holohan & Ors. v An Bord Pleanála.”

The impugned decision

45. The impugned decision provides as follows:

“Planning and Development Acts 2000 to 2022 Planning Authority: Leitrim County Council

Planning Register Reference Number: P.22/215

Appeal by Vantage Towers Limited care of Charterhouse of HQ, 27 Market Street, Listowel,

County Kerry against the decision made on the 3rd day of April, 2023 by Leitrim County

Council to refuse permission for the proposed development.

Proposed Development: Erect a 24 metre high lattice telecommunications support structure

together with antennas, dishes and associated telecommunications equipment, all enclosed

in security fencing with a new access track at Laghta (Townland), Kinlough, County Leitrim,

as amended by the further public notices received by the planning authority on the 13th day

of March, 2023.

Decision

GRANT permission for the above proposed development in accordance with the said plans

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

set out below.

Reasons and Considerations

Having regard to the relevant provisions of the Leitrim County Development Plan 2023-2029

and the relevant provisions of the ‘Telecommunications Antennae and Support Structures

Guidelines for Planning Authorities’ issued by the Department of the Environment and Local

Government in July, 1996, as updated by Circular Letter PL 07/12 issued in 2012, it is

considered that, subject to compliance with the conditions set out below, the proposed

development would not be visually intrusive, would not seriously injure the amenities,

including ecology, of the area, or the residential amenities of properties in the vicinity and

would constitute an acceptable form of development at this location. The proposed

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

development of the area.

In deciding not to accept the Inspector's recommendation to refuse permission, the Board,

in agreeing with the Inspector and the planning authority that the location of the site is

outside the development boundary of Kinlough and not in a residential area or immediately

adjacent to a school, considered that the location was not a site of ‘last resort’ as per the

provisions of the ‘Telecommunications Antennae and Support Structures Guidelines for

Planning Authorities. The Board considered that there was adequate evidence of

consideration by the applicant of alternative sites, including justification of why they were

unsuitable, and were satisfied that the photomontages submitted provided sufficient

information to demonstrate that the proposed mast would not be highly visible or obtrusive

or have a significant impact on the visual amenity of the surrounding area or on the Protected

Views and Prospects, as defined in Table 11.8, Figure 11.4 and Volume Ill of the Leitrim

County Development Plan 2023-2029. The proposed development would, therefore, be in

accordance with TEL POL 2, TEL POL 4 and TEL POL 5 and Section 13.20.3 of the Leitrim

County Development Plan 2023-2029 and the proper planning and sustainable development

of the area.

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

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

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

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

therefore no preliminary examination, screening for Environmental Impact Assessment or

Environmental Impact Assessment is required.

Conditions

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

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

submitted to the planning authority on the 27th day of February, 2023, except as may

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

conditions require details to be agreed with the planning authority, the developer shall agree

such details in writing with the planning authority prior to commencement of development

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

particulars.

Reason: In the interest of clarity.

2. (a) In the event of the proposed structure becoming obsolete and being

decommissioned, the developers shall, at their own expense, remove the mast, antenna and

ancillary structures and equipment.

(b) The site shall be reinstated on removal of the telecommunications structure and

ancillary structures. Details relating to the removal and reinstatement shall be submitted

to, and agreed in writing with, the planning authority at least one month before the removal

of the telecommunications structure and ancillary structures and the work shall be completed

within three months of the planning authority's approval in writing of these details.

Reason: In the interest of orderly development.

3. The transmitter power output, antenna type and mounting configuration shall be in

accordance with the details submitted with this application and, notwithstanding the

provisions of the Planning and Development Regulations 2001, and any statutory provision

amending or replacing them, shall not be altered without a prior grant of planning

permission.

Reason: To clarify the nature and extent of the permitted development to which this

permission relates and to facilitate a full assessment of any future alterations.

4. Surface water drainage arrangements for the proposed development shall comply

with the requirements of the planning authority.

Reason: In the interest of public health.

5. Details of the proposed colour scheme for the telecommunications structure and

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

prior to commencement of development.

6. No advertisement or advertisement structure shall be erected or displayed on the

proposed structure or its appendages or within the curtilage of the site without a prior grant

of planning permission.

Reason: In the interest of the visual amenities of the area.

7. The developer shall provide and make available at reasonable terms the proposed

support structure for the provision of mobile telecommunications antenna of third party

licenced telecommunications operators.

Reason: In the interest of avoidance of multiplicity of telecommunications structures in the

area, in the interests of visual amenity and proper planning and sustainable development.

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

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

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

provide details of intended construction practice for the development, including hours of

working, noise management measures, invasive species management plan and off-site

disposal of construction/demolition waste.

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

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

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

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

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

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

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

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

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

be

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

the matter shall be referred to An Bord Pleanala to determine the proper application of the

terms of the Scheme.

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

condition requiring a contribution in accordance with the Development Contribution Scheme

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

The eight-fold test for judicial review

46. 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.

47. The most pertinent issues here are workability and onus of proof and the doctrine of

harmless error.

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

juncture:

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

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

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

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

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

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

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

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

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

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

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

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

26 September 2025) per Farrell J. at 11.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

speaking evaluative judgements involving a significant degree of planning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2024) at §57).

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

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

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

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

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

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

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

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

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

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

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

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

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

per Farrell J. at 13.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025) per Farrell J. at 13.

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

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

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

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

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

make a balanced and reasonable assessment of the overall sustainability of

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

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

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

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

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

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

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

Element II – Workability

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

where this is at all possible:

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

[2022] IESC 30, [2022] 2 I.L.R.M. 417 per Hogan J. (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 VI – Onus of proof

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

previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J. at 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

not.

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

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

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

circumstances requiring a decision-taker to consider any other autonomous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 2025) at 309.

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

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

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

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

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

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

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

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

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

at §40-§41.

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

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

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

inadmissible on standard evidential principles insofar as matters of opinion are

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

Court, 11 April 2025).

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

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

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

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

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

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

conflict will be resolved against the opposing party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Costello and Noonan JJ. concurring).

Element VII – Harmless error

51. 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).

Domestic law issues

Core ground 1 – last resort

52. Core ground 1 is:

“1. The Board erred in law in concluding that the site was not a site of ‘last resort’ and/or

failed to provide any or any adequate reasons for rejecting the Inspector’s recommendation

that permission be refused due to Vantage’s failure to demonstrate that alternative sites,

including co-location with existing mast, had been examined to a sufficient extent, contrary

to section 34(10)(b) of the 2000 Act and is, accordingly, ultra vires, void and in breach of

the Applicant’s entitlement to natural and constitutional justice. Furthermore, the Board’s

conclusion that the site was not a site of last resort was irrational.”

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

“Applicant’s Position

36. The Guidelines indicate that only as a last resort should free-standing masts be

located within or in the immediate surrounds of smaller towns or villages. The Inspector’s

conclusion was that this not a site of last resort and was one of the main reasons for

recommending that there be a refusal of permission.

37. The Commission, on the face on the record, on the decision on the 14 February 2025

concluded that the site was not a site of last resort. Such a conclusion flies in the face of

plain reason and common sense is irrational in circumstances where all the parties to the

appeal, accepted that the site was not a site of last resort.

38. The Commission has provided no reasons for its conclusion that permission should

be granted despite their finding that the site was not a site of last resort and/or for

disagreeing with the Inspector’s recommendation and was, in breach of s.34(10)(b) of the

2000 Act and/or their duty to give reason.

39. The Commission placed entire reliance on Vantage’s documentation without any

consideration, scrutiny or analysis of both the observations of the Applicants, the decision

maker at first instance.

40. The Commission failed to provide any or any adequate reasons for rejecting the

Inspector’s recommendation that permission be refused due to Vantage’s failure to

demonstrate that alternative sites, including co-location with existing mast, had been

examined to a sufficient extent.

41. There is no engagement in the Commission’s Order on a point pivotal to the

Inspector’s recommendation to refuse namely the failure of the site as being a location of

last resort, implicitly a reference to the last resort test in the guidelines

Commissions’ Position

42. It is clear from the Commission Order that the Commission did not agree with the

Inspector that the location of the Proposed Development was not a site of last resort, as the

site ‘is outside the development boundary of Kinlough and not in a residential area or

immediately adjacent to a school’. The finding that the location of the Proposed

Development is outside the development boundary is clear from Map 21 Kinlough Land Use

Zoning Objective Map of the CDP. In any event on the facts, the Inspector and the

Commission agreed that the site was not in a residential area or immediately adjacent to a

school and no challenge is taken to that. Rather, the point that seems to be made is that

the Commission was incorrect in disagreeing with the Inspector about whether that the site

was not within ‘the immediate surrounds of smaller towns or villages.’ In that respect, it

was within the evaluative judgement scope of the Commission to determine on the basis of

the evidence, including Map 21, that it is not in such immediate surrounds.

43. In any event, the relevance of this is that being either ‘in a residential area or

immediately adjacent to a school’ or in ‘the immediate surrounds of smaller towns or villages’

means that the site can only be sited there ‘as a last resort’ and the information before the

Commission provided by Vantage was all aimed at proving that to be the case. The

documentation provided by Vantage :-

a. Explained that coverage for Vodafone in the area was not adequate and accepting

that coverage for competing providers was better for 4G, those providers could only offer

‘extremely weak’ 2G and 5G services (see the Application itself (See Exhibit BL1, Tab 1) at

§1.4, the Further Information Provided (See Exhibit BL1, Tab 3) (pp 4 of the PDF), the

Appeal to the Commission (see Exhibit KW1, Tab 7) at §4.2).

b. Reasoned by reference to line of sight requirements and contact needs with other

masts that at 24m height was required as a minimum (‘to secure the links’) (see the

Application itself (See Exhibit BL1, Tab 1) at §4.2.1, the Further Information Provided (See

Exhibit BL1, Tab 3) (pp 1-3 of the PDF), the Appeal to the Commission (see Exhibit KW1,

Tab 7) at §4.1.3).

c. Explained why the Garda Mast was ‘not realistic’ and why other structures were

discounted. See the Application itself (See Exhibit BL1, Tab 1) at §3.1, the Further

Information Provided (See Exhibit BL1, Tab 3) (pp 2-4 of the PDF), the Appeal to the

Commission (see Exhibit KW1, Tab 7) at §4.3.1).

d. Further explained that in such apparatus the top 6m must be reserved for

emergency services (not a fact challenged in the case) and given the existing placement on

the mast of existing apparatus, it would have to ‘take its place’ below same thus meaning

the required height was not available – ‘Vodafone requires a much greater height than that

available’. See the Application itself (See Exhibit BL1, Tab 1) at §3.1, the Further

Information Provided (See Exhibit BL1, Tab 3) (pp 2-4 of the PDF), the Appeal to the

Commission (see Exhibit KW1, Tab 7) at §4.3.1). It is worth recalling the Guidelines say at

§4.5 that ‘[s]upport structures used by emergency or other essential services are not

suitable for sharing with public mobile telephone services.’

e. With regard to P.21/226 explained that the site was not owned by Vantage and that

the owner no longer agreed with its use. It was also reasoned that its location required a

higher mast (30m) and mapped out as being far closer to the R280 (250m as opposed to

500m) and, indeed, the Court can see from the photographs at Section 4.4.1 the ‘Withdrawn

Site’ is far more integrated into a residential setting than the proposed. See the Appeal to

the Commission (see Exhibit KW1, Tab 7) at §4.4.1).

f. With regard to moving within the field, Vantage noted the Planning Authority’s

concern that perhaps a space within an existing group of trees could be used (which itself

envelops the barn structure on the site) and explained that the lower ground level would

need a higher mast, and would have a worse or similar visual effect and, further, noted that

the landowner in question simply did not wish to make this part of the land available. See

the Further Information Provided (See Exhibit BL1, Tab 3) (p.4 of the PDF), the Appeal to

the Commission (see Exhibit KW1, Tab 7) at pp.12-13).

44. There is no challenge in this case to the underlying merits of the position taken by

Vantage in terms of the need for additional service provision, nor to the statements made

regarding the level of service quality, nor about the factual accuracy of the matters

summarised above. Thus, all of the above has to be taken as correct, and the Commission

concluded that the above showed that ‘there was adequate evidence of consideration by the

applicant of alternative sites, including justification of why they were unsuitable’, which, it

is submitted, is in substance the same as meeting the last resort test, and the reasons are

clear. Indeed, it is submitted that even if the Court does not accept the Commission’s

arguments about the description of the location, it remains that, in substance, the last resort

test was met in this case.

First Named Notice Party’s Position

45. The First Notice Party largely adopts the Commission’s position. This ground

engages the merits of the question whether the site was a site of last resort. Vantage

provided detailed representations concerning this site’s location which provide an ample

basis to support the Commission’s view. In any case, even if the site is a site of last resort,

adequate evidence as to why other sites were outruled or unsuitable was provided and the

Commission was expressly satisfied with same. In relation to reasons, the Commission gave

the main reasons why it was not accepting the Inspector’s recommendation. What the

Applicants are seeking in substance are reasons for reasons, which they are not entitled to.”

54. Section 13.20.3 of the Leitrim CDP provides that:

“Proposals for telecommunications antennae and support structures will be assessed in

accordance with the Telecommunications Antennae and Support Structures-1996 Guidelines

for Planning Authorities' (DoELG, 1996), as revised by Circular Letter PL 07/12, and any

other publications and material as may be relevant in the circumstances.”

55. This gives a CDP-level status to the guidelines (that would otherwise lack status): Four

Districts Woodland Habitat Group v. An Bord Pleanála [2023] IEHC 335 (Unreported, High Court, 21

June 2023).

56. The Telecommunications Antennae and Support Structures Guidelines 1996

(https://www.gov.ie/en/department-of-housing-local-government-and-

heritage/publications/telecommunications-antennae-and-support-structures-1996/) state at p. 9

(emphasis added):

“Only as a last resort should free-standing masts be located within or in the immediate

surrounds of smaller towns or villages. If such location should become necessary, sites

already developed for utilities should be considered and masts and antennae should be

designed and adapted for the specific location. The support structure should be kept to the

minimum height consistent with effective operation.

In the vicinity of larger towns and in city suburbs operators should endeavour to locate in

industrial estates or in industrially zoned land. The possibilities offered by some commercial

or retail areas should be explored whether as rooftop locations or by way of locating

‘disguised’ masts. It should also be noted that substations operated by the ESB may be

suitable for the location of antennae support structures. This possibility should also be

investigated. In urban and suburban areas the use of tall buildings or other existing

structures is always preferable to the construction of an independent antennae support

structure. In urban areas the need for increased numbers of cells to cater for customer

growth will lead more and more to the subdivision of existing cells and, in some instances

to the introduction of ‘microcell’ technology. Microcells will normally have their antennae

located below roof level and will serve a very specific building (shopping centre, tunnel etc.)

or be used to boost a weak signal. Microcells are not an alternative to normal cells.

Only as a last resort and if the alternatives suggested in the previous paragraph are either

unavailable or unsuitable should free-standing masts be located in a residential area or

beside schools. If such a location should become necessary, sites already developed for

utilities should be considered and masts and antennae should be designed and adapted for

the specific location. The support structure should be kept to the minimum height consistent

with effective operation and should be monopole (or poles) rather than a latticed tripod or

square structure.”

57. Assuming for the sake of argument we read the commission’s decision in the most favourable

way to the applicants, as accepting that the last resort principle applies (on the basis of this being

in the immediate environs of the development envelope – contrary to the way the commission has

characterised the matter as quoted above), the applicants still have the problem that the commission

went on to deal with the last resort principle in substance.

58. The guidelines deal with three different scenarios:

(i) Only as a last resort should free-standing masts be located within or in the

immediate surrounds of smaller towns or villages. …

(ii) In the vicinity of larger towns and in city suburbs operators should endeavour

to locate in industrial estates or in industrially zoned land. … In urban areas the

need for increased numbers of cells to cater for customer growth will lead more and

more to the subdivision of existing cells ...

(iii) Only as a last resort and if the alternatives suggested in the previous paragraph are

either unavailable or unsuitable should free-standing masts be located in a

residential area or beside schools. ...

59. The only one of these that is potentially relevant is the first one. This is not a larger town

or city suburb per the settlement hierarchy in the development plan. The development site is not

an urban area. The inspector’s report is to the effect that this is not a residential area or beside a

school, and the applicants’ pleadings are to the effect that the commission was wrong in not agreeing

with the inspector. The inspector’s view that this wasn’t beside a school isn’t challenged. Thus as

regards incorrect reasoning in relation to the impact on the school, this is not a pleaded issue. Sub-

ground 16 merely recites the order. It does not set out any basis to challenge it by reference to the

school issue. Reciting a decision does not give an applicant a basis to make any and every point

that later occurs to them as to why the decision is invalid. The fact that the point involves children

whose school grounds will be 86-200 m from the mast is not a reason to disapply the rules of

pleading, unfortunately. There will always be objective interests that could be represented as being

affected by any given environmental point.

60. The test for the type of location here is that if such location should become necessary, sites

already developed for utilities should be considered and masts and antennae should be designed

and adapted for the specific location. The support structure should be kept to the minimum height

consistent with effective operation.

61. But the commission considered this in effect. The commission’s reasoning has not been

shown to be unreasonable or otherwise unlawful:

“The Board considered that there was adequate evidence of consideration by the applicant

of alternative sites, including justification of why they were unsuitable, and were satisfied

that the photomontages submitted provided sufficient information to demonstrate that the

proposed mast would not be highly visible or obtrusive or have a significant impact on the

visual amenity of the surrounding area or on the Protected Views and Prospects, as defined

in Table 11.8, Figure 11.4 and Volume Ill of the Leitrim County Development Plan 2023-

2029.”

62. As regards reasons there are reasons (emphasis added):

“In deciding not to accept the Inspector's recommendation to refuse permission, the Board,

in agreeing with the Inspector and the planning authority that the location of the site is

outside the development boundary of Kinlough and not in a residential area or immediately

adjacent to a school, considered that the location was not a site of ‘last resort’ as per the

provisions of the ‘Telecommunications Antennae and Support Structures Guidelines for

Planning Authorities. The Board considered that there was adequate evidence of

consideration by the applicant of alternative sites, including justification of why

they were unsuitable, and were satisfied that the photomontages submitted provided

sufficient information to demonstrate that the proposed mast would not be highly visible or

obtrusive or have a significant impact on the visual amenity of the surrounding area or on

the Protected Views and Prospects, as defined in Table 11.8, Figure 11.4 and Volume 111 of

the Leitrim County Development Plan 2023-2029. The proposed development would,

therefore, be in accordance with TEL POL 2, TEL POL 4 and TEL POL 5 and Section 13.20.3

of the Leitrim County Development Plan 2023-2029 and the proper planning and sustainable

development of the area.”

63. There was no obligation to give reasons by contrast with any previous planning decision.

That is unworkable and in any event there cannot practicably be a doctrine of precedent in

administrative decision-taking. As stated by Farrell J. in Ó Murthuile v. An Bord Pleanála [2025]

IEHC 498 (Unreported, High Court, 19 September 2025):

“The Board is not obliged to examine the planning history of the site for the purpose of

providing reasons for disagreeing with any and every previous decision or finding of fact

made therein. Previous decisions relate to the policy context and planning judgement

exercised at that time, but such matters can change, as can the evidence before the decision

maker. Reasons are not generally necessary in terms of differing implicitly from previous

decisions.”

64. For these reasons this point has not been made out.

Core ground 2 – regard to guidelines/ lattice structure

65. Core ground 2 is:

“2. The Respondent’s decision is invalid and/or ultra vires its powers in that failed to

have any adequate regard to the Telecommunications Antennae and Support Structures

Guidelines for Planning Authorities, as updated by circular letter PL 07/12 in 2012 in arriving

at its decision to grant permission for the proposed development.”

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

“Applicant’s Position

46. It is the Applicants case that the Commission did not consider why a lattice structure

was required, in circumstances where the Guidelines recommend the use of a monopole (or

poles) failing to have regard to the Guidelines, contrary to section 28(1) of the 2000 Act in

and/or provide reasons for its decision to permit the construction of a lattice structure,

contrary to section 4.3 of the Guidelines.

47. Although the Inspector considered that the Guidelines were such as to permit such

a development at that location, the Inspectors conclusion was that there was no other

indication of how the masts and antennae has been designed and/or adapted for the specific

location, as required by the Guidelines and that the proposed development was only

acceptable, in circumstances where there would not be any adverse visual impact from it.

The Commission did not overcome this aspect of the Inspectors findings in their reasoning.

Commission’s Position

48. It is readily apparent from the Inspector’s Report, the Commission Direction and

Order that the Commission had regard to the 1996 Guidelines.

49. Contrary to what is advanced by the Applicants, the Commission did not fail to

consider whether a monopole rather than a lattice structure should be utilised. Vantage’s

material clearly reasoned out the preference here; a lattice structure allows for equipment

sharing at the same height, whereas a monopole does not – see the Further Information

(Exhibit BL1, Tab 3) and the Appeal at Section 4.1.3 (Exhibit KW1, Tab 7). The Inspector’s

Report set out this point at §7.1.1 and again at §7.4.2. Therefore, the only ‘evidence’ of ‘no

regard’ to something that was described in the documents, part of the appeal, and the

subject of comment by the Inspector is a complaint that there is no text dealing with same.

That is not required.

50. In any event, the 1996 Guidelines provide for a preference for monopoles over lattice

structures only where a development is to be located ‘within or in the immediate surrounds

of smaller towns or villages’ or in a ‘residential area or beside schools’ and neither of which

factually arise here. For the reasons explained in the Commission’s response to Core Ground

1, the Proposed Development is not to be located ‘within or in the immediate surrounds of

smaller towns or villages’ and for the reasons in Core Ground 1, and as set out by the

Inspector at §8.4.1 of his Report and the Commission, the Proposed Development is not to

be located in a ‘residential area or beside schools’.

First Named Notice Party’s Position

51. The First Notice Party largely adopts the Commission’s position.”

67. If a decision says it has had regard to something, an applicant has an onus of proof to

displace that, something the applicants here haven’t discharged. The claim of lack of regard to the

1996 guidelines cannot be upheld as they are expressly considered by the inspector and their content

is expressly considered by the commission. The commission’s logic for finding that alternatives were

considered is equally applicable to the nature of the mast.

68. The claim of lack of reasons fails. Reasons are apparent from the developer’s material. As

the commission submits, “a lattice structure allows for equipment sharing at the same height,

whereas a monopole does not” (RFI appeal at section 4.1.3).

69. The pleaded point insofar as it relates to schools is (emphasis added):

“27. In rejecting the Inspector’s recommendation that planning permission be

refused and in concluding that the site was not a site of last resort, the Board ignored section

4.3 of the Guidelines and in so doing, failed to provide a site-specific analysis as to how the

proposed development satisfied section 4.3 of the Guidelines or how in objective terms, a

free-standing mast was appropriate at this location.”

70. But the inspector found that this was not a site beside a school – and hence the lattice issue

did not arise. The edict against lattices doesn’t apply to the edge of town locations, only to beside

schools and in residential areas (that’s what the guidelines say – the commission’s paraphrase in

the statement of case doesn’t quite capture the limited nature of the reference). So the pleading is

confused and contradictory and certainly doesn’t provide a route-map to relief.

71. This point has not been made out.

Core ground 3 – material contravention

72. Core ground 3 is:

“3. The Board erred in law in concluding that the site the proposed mast would not be

highly visible or obtrusive or have a significant impact on protected views and prospects as

defined in table 11.8, Figure 11.4 and Volume III of the Leitrim County Development Plan

2023 – 2029, in particular V3 and V20. Furthermore, the Board’s decision is contrary to

section 34(10)(b) of the 2000 Act and is, accordingly, ultra vires, void and in breach of the

Applicant’s entitlement to natural and constitutional justice in circumstances where the

Inspector concluded that, in the absence of a Visual Impact Assessment there was no

evidence before the Board to demonstrate that the proposed mast would not have an

adverse impact on Protected Views and Prospects identified in V3 and V20 in Table 11.8,

Figure 11.4 and Volume III of the Leitrim County Development Plan 2023-2029 and that the

proposed development thereby contravened Policies TEL POL 5 and LD POL 1 of the Leitrim

County Development Plan 2023-2029 and the requirements of Section 13.20.3 of said plan.”

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

“Applicant’s Position

52. It is submitted that the Commission erred in concluding that the site of the proposed

mast would not be highly visible or obtrusive or have a significant impact on protected views

and prospects as defined in Table 11.8 and Figure 11.4 and Volume III of the Leitrim CDP.

53. The Commissions finding that they ‘were satisfied that the photomontages submitted

provided sufficient. information to demonstrate that the proposed mast would not be highly

visible or obtrusive or have a significant impact on the visual amenity of the surrounding

area or on the protected views and prospects as defined in table 11.8, Figure 11.4 and

Volume III of the Leitrim County Development Plan 2023 – 2029’ is irrational in

circumstances where the Inspector expressly remarked and concluded that there was no

evidence before the Commission on the impact of the proposed mast on protected views V3

and V20, in particular where the photomontages relied on by the Commission did not deal

with the impact on protected views V3 and V20.

54. The Commission were duty bound under s.34(10)(b) and/or their general duty to

give reasons to set out the reason why the proposed development. The Commission failed

to provide any or any adequate reason for differing with the Inspector’s recommendation

that permission should be refused on the basis of the lack of a visual impact assessment or

his recommended that permission be refused because the application did not comply with

section 13.20.3 of the Development Plan and/or policy TEL POL 5 and/or Policy LD POL 1.

55. The impugned decision fails to provide reasons for the material contravention, failing

to take into account relevant considerations and taking into account irrelevant considerations

contrary to s.37(2)(b) of the PDA 2000 (as amended). There was no ‘middle ground’ or any

adequate reasons contained in the Board’s Reasons and Considerations as to its conclusion

on the conformity of the Proposed Development with V3 and V20 in Table 11.8, Figure 11.4

and Volume III of the Leitrim CDP of the Development Plan. The extent to which the

development was contravened was material as if the contravention was immaterial, it would

not form the basis of a reason for refusal and the contravention would in effect be de

[minimis].

Commission’s Position

56. In respect of Core Ground 3, it is the Commission’s position that no error arose in

its finding that concluding that the site of the proposed mast would not be highly visible or

obtrusive or have a significant impact on protected views and prospects as defined in Table

11.8 and Figure 11.4 of the Leitrim CDP.

57. It is accepted that section 13.20.3 of the Leitrim CDP required the application for

the Proposed Development be accompanied by a visual impact assessment; however same

was requested by the Council in its RfI on 30 November 2022 (request 4 refers), and this

was dealt with by Vantage in its response of 24 February 2023. A visual impact assessment

was provided, and thus there is no basis to any allegation that it was not. Whereas the

Inspector at §8.4.7 stated that no visual impact assessment was done, the Commission was

entitled to accept that the information provided by Vantage constituted same. Disagreement

over the comprehensiveness of a visual impact assessment does not mean that what is

provided is not a visual impact assessment.

58. The Commission was entitled to differ from its Inspector in the exercise of planning

judgement and assessment and provided clear reasons for so differing. The photomontages

submitted by Vantage do address V3 and V20 in Table 11.8, Figure 11.4 and Volume III of

the Leitrim CDP.

59. With regard to V20, as the Inspector says, this appears to be viewed in the South

Easterly direction along a road that runs south from Tullagha, a village about 3km away

from Kinlough. V3 is to the east and the view is directed entirely north, and in no possible

direction of the mast. The Inspector obviously did not believe the evidence enabled the

Inspector to reach a view on impact, but the Commission disagreed. In fact, the

Commission specifically recorded that it reached a conclusion on the sufficiency of the

information in its Decision. The Commission was entitled to reach this conclusion.

Photomontage 4 and 5 showed views of the proposed development from across flatland

views far closer than the viewing point marked for V3 or V20. Again, V20 is very far away

and V3 faces in a different direction, and the Commission was entitled to view that visual

impact as acceptable, and therefore, was entitled to take the view that same sufficed to

enable it to determine the acceptability of visual impact generally and, in particular, from

the views at issue.

60. Really, this is another case where the Applicant contends that the Commission just

cannot substitute its views for the views of an Inspector who carried out a site inspection.

But has been rejected before; Roache v An Bord Pleanála [2024] IEHC 311. It is clear that

the Commission is entitled to take a different view to that of an Inspector on the issue of

visual impact, even where such views are based on the same evidence is well established:

see People Over Wind v An Bord Pleanála [2015] IEHC 271, as cited by Phelan J in Roache,

above.

61. As to the material contravention point, Section 13.30.2 says a planning application

should include a ‘visual impact assessment’ and, through the further information, this was

done. Core Ground 3 also argued that TEL POL 5 and LD POL 1 were materially contravened,

but the conclusions reached by the Commission on visual impact show that the Commission

does not believe that TEL POL 5 or LD POL 1 has been materially contravened. This is for

the Commission’s evaluative judgment in the application of the CDP.

62. In respect of Core Ground 5, this ground of challenge simply doesn’t arise as the

Commission never professed to exercise the power under s.37(2)(a). In any event, it is also

based on the incorrect premise that the Council, in refusing permission at first instance, did

so on the basis of a material contravention of the Leitrim CDP.

63. Furthermore, the Applicants do not actually advance any plea that a material

contravention arises; rather, this ground is focused solely on the issue of whether the

Commission correctly interpreted the basis upon which the Council refused permission. It

is clear from the Council decision that permission was not refused on the basis of material

contravention of the Leitrim CDP. Again, however, none of this matters as the Commission

did not profess to exercise power under s.37(2)(a).

First Named Notice Party’s Position

64. The First Notice Party largely adopts the Commission’s position.”

74. The protected views are shown on figure 11.4 in the CDP at p. 287

(https://www.leitrim.ie/council/services/planning-building/forward-planning-development/leitrim-

county-development-plan/volume-i-written-statement-lcdp-23-29.pdf). From the map it’s clear

that the locus in quo is a substantial distance from either views V3 or V20.

75. The fundamental problem with the claim of irrationality is that the commission had, and

relied on, the photomontages. As regards the claim that “the Commission did not deal with the

impact on protected views V3 and V20”, a decision-taker does not have to deal expressly with

everything – only with what calls for express treatment. The onus is on the applicant to show that

there would have been an impact on these views – an onus these applicants haven’t discharged.

76. As the commission submits:

“Photomontage 4 and 5 showed views of the proposed development from across flatland

views far closer than viewing point marked for V3 or V20. Again, V20 is very far away and

V3 faces in a different direction and the Commission was entitled to view that visual impact

as acceptable, and therefore, was entitled to take the view that same sufficed to enable it

to determine the acceptability of visual impact generally and, in particular, from the views

at issue.”

77. As to the lack of a visual impact assessment, policy LD POL 1 states:

“LD POL 1

To safeguard the protected views and prospects contained in Table 11.8 and identified on

Map No. 11 (Volume III - Book of Maps) from intrusive development which would interfere

unduly with the character and visual amenity of the landscape.”

78. Policy LD POL 4 states:

“LD POL 4

To require that a landscape and visual impact assessment, prepared by a suitably qualified

professional, be submitted with planning applications for development which may have an

impact on the landscape character of the area.”

79. Policy LCA POL 5 states:

“LCA POL 5

To require that landscape and visual impact assessments prepared by suitably qualified

professionals be submitted with planning applications for development which may have

significant impact on landscape character areas of medium or high sensitivity.”

80. The problem here is that these are somewhat evaluative – insofar as they arose it is implicit

that the commission thought that the development was not intrusive and did not have an impact on

landscape character or landscape character areas.

81. Section 13.20.3 states (emphasis added):

“13.20.3 Telecommunications and Supporting Infrastructure

Proposals for telecommunications antennae and support structures will be assessed in

accordance with the ‘Telecommunications Antennae and Support Structures – Guidelines for

Planning Authorities’ (DoELG, 1996), as revised by Circular Letter PL 07/12, and any other

publications and material as may be relevant in the circumstances.

Planning applications for new facilities should include:

● A reasoned justification regarding the need for the particular development at the proposed

location. This shall detail the significance of the proposed development to the

telecommunications network, including a map of the area and existing coverage in the area.

A technical explanation shall be provided of the reasons why coverage cannot be provided

by existing antennae

● Details of efforts (i.e. written correspondence) made to share installations or co-

locate/cluster with existing structures; this should reference a map showing the location of

all existing structures within a minimum 2km radius of the proposed site

● Evidence of consideration of alternative sites and explanation of their unsuitability

● Visual impact assessment and mitigation measures (e.g. landscape screening, colour

treatment of masts/antennae), and

● Any impacts on rights of way and walking.”

82. The CDP does not require a visual assessment “report”. The developer provided photographs

and further explanations in the response to the RFI. At worst this is a debate as to the label to be

applied to this material.

83. Insofar as the inspector said at 8.4.7 that no visual impact assessment was provided, that

is not something that is binding on the commission – it was open to the commission to be satisfied

with the detailed visual information before it. Any argument to show that such visual information

was not equivalent to a visual impact report would have to be demonstrated evidentially which has

not been done. The inspector’s conclusion was that the information was not “sufficient” – the

commission disagreed and thought it was, which is valid.

84. The problem for the applicants is that it was open to the commission to take the view in

effect that the photomontages and other information provided were sufficient for the purposes of

visual impact assessment. No breach of the plan has been shown in substance.

85. Policy TEL POL 5 states:

“TEL POL 5

To ensure that telecommunications structures are located to minimise and /or mitigate any

adverse impacts on communities, residential properties, schools and the built or natural

environment.”

86. The problem for the applicants is that this is substantially evaluative and the commission

has not been shown to have exceeded its margin of evaluation.

87. Reasons are provided in the commission order – the applicants disagree on the merits but

that does not give rise to a legal ground for relief.

88. Any argument based on s. 37(2)(b) of the 2000 Act is untenable as that did not apply (see

further below).

89. So this point fails.

Core ground 4 – public health

90. Core ground 4 is:

“4. The Board misdirected itself in law in failing to consider health and safety issues

raised in the appeal, with the effect that the decision to grant permission is ultra vires, void

and of no legal effect.”

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

“[Applicants:]

65. The Commission, on the advice of its Inspector, which it accepted, adopted an

approach in consideration and determination of the appeal (and the application) that it

should not and did not have any regard to public health and/or human health considerations.

66. There is no provision under the 2000 Act or otherwise which would remove a

consideration of these effects of the jurisdiction of the Commission and in excluding these

considerations, the Respondent failed to have regard to relevant considerations in the

consideration and determination of application/appeal. The Planning Circular PL07-12

cannot and does not provide an exemption or allow the Commission to abdicate their function

in respect of public health considerations in dealing with an appeal.

67. The Commission is entitled to have regard to any other authorisation and the extent

to which it will mitigate or alleviate any effect but is not entitled to treat a matter as removed

from the scope of the Planning and Development Acts by virtue of a ministerial circular letter.

68. The licensing system operated by ComReg and the planning system exist in parallel

and the question of the location of the development and its suitability in terms of land-use

planning are matters for the Commission. Public/ human health concerns as to both

construction and operational stage of any development consent are part of that adjudication

and the two systems are intended to be complementary.

Commission’s Position

69. It is simply incorrect to state that the Commission did not consider ‘health impacts’

of the Proposed Development for which planning permission was sought. It is readily

apparent from the Inspector’s Report, which recorded submissions which had been made

relating to health impacts (at §4.4 and 7.3 of the Inspector’s Report). The Inspector further

addressed the issue of ‘Declaration of Conformity and Health Impacts’ at §8.5.1-§8.5.4, and

the Commission was satisfied that Vantage had provided a declaration of conformity with

the International Commission on Non-Ionising Radiation Protection Guidelines as required

by the 1996 Guidelines.

70. However, it is that the Commission did not address health complaints in respect of

operational telecommunications infrastructure. Whereas the Commission accepts that it has

a jurisdiction to consider health impacts in the context of applications before it, the decision

of the Commission was to grant permission for a 24 meter high lattice telecommunications

support structure and associated works and does not grant a wireless telegraphy licence or

a general authorisation for electronic communications network and/or service in the State,

which is regulated by ComReg under a separate statutory code. These are part of a separate

regulatory code where matters pertaining to public health are addressed, and the

Commission cannot consent to the operation of the structure for the purposes which the

Applicants apprehend create public health issues. That is simply a matter for a separate

code as pleaded above.

71. The approach adopted by the Commission is in accordance with the 1996 Guidelines,

as those guidelines recognise the factual position that planning authorities do not grant any

form of consent for electronic communications networks and/or services which are dealt with

under a separate statutory regime. The Applicant has not sought to challenge the 1996

Guidelines either as enacted or as amended by Circular PL07-12. Consistent with the

position in the UK as shown in cases such as T-Mobile (UK) Ltd v First Secretary of State &

Ors [2004] EWHC 1713 (Admin) and Harris v the First Secretary of State & Ors [2007] EWHC

1847 (Admin) it is not that public health is jurisdictionally foreclosed as a consideration, but

that in this present context, there is clear evidence arising from parallel regimes that, in

effect, answer the objection. The Commission does not understand the Guidelines to require

the Commission to abandon its statutory jurisdiction but that the Commission was entitled

to accept in this case that unchallenged statement (see exhibit B5) that apparatus will be in

‘full compliance’ with ICNIRP Guidelines as expressed in Council Recommendation

1999/519/EC of 12 July 1999, means that public health concerns are met.

First Named Notice Party’s Position

72. The First Notice Party largely adopts the Commission’s position.

73. The Commission, in substance, directed its mind to public health and was satisfied

with inter alia the declaration of compliance supplied by Vodafone as the proposed licensed

operator of active equipment (antennas and dishes) to be installed on the mast and the fact

that a separate regime regulated the specific concern over public health raised by the

Applicants (namely radiation). The fact that the development cannot come into operation

prior to further approvals from ComReg is addressed in detail in Mr. McHugh’s affidavit along

with the binding nature and substance of those approvals.

74. The grant of planning in this particular case does not in itself operationalise the

development. The Inspector expressly noted:

‘any future operators will be required to operate with the relevant legislation in relation to

the emissions of non-ionising radiation from such telecommunications equipment.’ (§8.5.3).’

75. The Commission did not, in substance, ignore this issue, nor did it treat this issue

as removed from the PDA or outside its jurisdiction. Rather, it considered the matter in

substance and was satisfied in light of the content of the 1996 Guidelines, the fact of a

statement of compliance (the weight to be attached to which is exclusively for the

Commission) and the fact of a robust regime referred to and set out in detail in Mr Mc Hugh’s

affidavit.

76. The Applicants’ interpretation of the Inspector’s report is strained, invalid and ought

not to be upheld.”

92. The basic reason why this point fails is that given the impracticability of reinventing the

wheel on human health in every telecoms mast case, the commission can generally rely on industry

standards, subject to any particularly compelling evidence in a particular case.

93. General standards are set out in 1999/519/EC: Council Recommendation of 12 July 1999 on

the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz). This is

referenced in S.I. No. 444 of 2022 – European Union (Electronic Communications Code) Regulations

2022 which gives effect to Directive (EU) 2018/1972 of the European Parliament and of the Council

of 11 December 2018 and giving full effect to Commission Implementing Regulation (EU) 2019/2243

of 17 December 2019, Commission Delegated Regulation (EU) 2021/654 of 18 December 2020. The

touchstone for the 1999 recommendation is the International Commission on Non-Ionizing Radiation

Protection (ICNIRP) Guidelines for limiting exposure to time-varying electric, magnetic, and

electromagnetic fields (up to 300 GHz), Health Physics 74(4): 494-522 (1998)

(https://www.icnirp.org/cms/upload/publications/ICNIRPemfgdl.pdf) and Response to questions

and comments on ICNIRP, Health Physics 75(4): 438-439 (1998). The first notice party requires

authorisation under the 2022 regulations and has averred that its operations will comply with the

1999 recommendation.

94. The ministerial Circular Letter PL 07/12 states:

“2.6 Health and Safety Aspects

The 1996 Guidelines advise that planning authorities should not include monitoring

arrangements as part of planning permission conditions nor determine planning applications

on health grounds. This Circular Letter reiterates that advice to local planning authorities.

Planning authorities should be primarily concerned with the appropriate location and design

of telecommunications structures and do not have competence for health and safety matters

in respect of telecommunications infrastructure. These are regulated by other codes and

such matters should not be additionally regulated by the planning process.”

95. The applicants seemed to be suggesting that this is unlawful although they haven’t

challenged it so I don’t need to decide that.

96. By way of a modest reality check, one wonders if one could be forgiven for pointing out that

according to the EPA (https://www.epa.ie/environment-and-you/radiation/emf/emf-and-your-

health/mobile-phones--health/):

“The exposure levels from a mobile phone in contact with the body can reach 100 to 400

times the levels of the typical exposure one receives from mobile phone masts or base

stations.”

97. But even if such an aside is deemed unacceptable, the basic point is that the health impacts

of masts have to be dealt with primarily at a general policy level. Having a debate in each case as

to their effects is a waste of time without anything more specific than what the applicants have here

(see e.g. Harris v. the First Secretary of State & Ors. [2007] EWHC 1847 (Admin), [2007] 7 W.L.U.K.

939, [2008] J.P.L. 538).

98. Admittedly in the context of a specific national policy in the UK, the position following T-

Mobile (UK) Limited v. First Secretary of State [2004] EWCA (Civ) 1763, [2005] Env.L.R. 364 is that,

where the policy guidance applies, public concerns about the health implications of the creation of a

radio base station can be a material consideration only if there exist exceptional circumstances which

justify departure from the policy (Harris at 24).

99. Insofar as the inspector said at 8.5.4 that “health issues are not a matter for An Bord

Pleanála in determining and deliberating on the application”, that’s the sort of statement that

applicants like to read as a Balz v. An Bord Pleanála [2019] IESC 90, [2023] 3 I.R. 751, [2020] 1

I.L.R.M. 367 -type a priori rejection, resulting in a reflexive hand out for certiorari. But a decision

has to be read as valid rather than invalid if a valid reading is available. What it clearly means in

context is that health issues of the type raised are not a matter to which the commission should

afford weight. That is a totally valid form of reasoning. It doesn’t mean that there are no possible

circumstances in which an estimate of radiation impact on a particular receiving environment could

not ever give rise to health concerns – say for example due to unusually sensitive medical equipment

or something like that. One can’t rule out an exceptional case on an ex ante basis, but in practice

and in effect general health concerns are not matters of weight that need to be placed in the balance

in a given application. Such matters are addressed at a policy level.

100. So this point has not been made out.

Core ground 5 – material contravention

101. Core ground 5 is:

“5. The impugned decision is in error of law and invalid in that it materially contravenes

the Leitrim County Council Development Plan 2023-2029, by failing to provide reasons for

the material contravention, failing to take into account relevant considerations and taking

into account irrelevant considerations, further particulars of which are set out in Part 2

below.”

102. The parties’ positions as recorded in the statement of case are summarised under core

ground 3 above.

103. This point is untenable because s. 37(2)(b) and (c) do not apply where s. 37(2)(a) has not

been applied: South West Regional Shopping Centre v. An Bord Pleanála [2016] IEHC 84, [2016] 2

I.R. 481 (Costello J.) at [91]-[95] and Balz v. An Bord Pleanála [2016] IEHC 134 (Unreported, High

Court, Barton J., 25 February 2016) at [115].

EU law issues

Core ground 6 – urban development

104. Core ground 6 is:

“6. The Board erred in law in concluding that the proposed development did not fall

within a class of development set out in Schedule 5, Part 1 and/or Part 2 of the 2001

Regulations for which EIA may be required.”

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

“Applicant’s Position

77. The Commission concluded erroneously that the proposed development did not fall

within any of the classes of development for the purposes of Annex I or Annex II od the

Directive or Part I or Part or Part II of Schedule 5 of the Planning and Development

Regulations 2001 (as amended).

78. The approach that the Respondent adopted in carrying out a pre-screening is

misconceived and the considerations that are attached thereto amount to an error of law

and fact that go to jurisdiction, error of law on the face of the record and constitute a failure

to properly consider and apply the provisions of Council Directive 2011/92/EU (as amended)

to the consideration and determination of the appeal.

79. Mobile phone systems, and specifically masts and antennae, constitute

infrastructure and urban development for the purposes of paragraph 10 (b) (iv).

Environmental impact assessment is required under section 172 of the 2000 Act and Article

5 of the EIA Directive for all developments within a category identified in Annex II and

Schedule 5 part 2 that are likely to have significant effects on the environment, even if they

are below the national threshold at which EIA becomes mandatory.

80. The location of the site of the proposed development being situate just outside the

development boundary of the LAP for the village [sic] of Kinlough is not in and of itself

dispositive of the matter constituting urban development within the meaning of Schedule 5

Part 2 Class 10(b)(iv) of the 2001 Regulations.

Commission’s Position

81. Mobile phone systems, and specifically masts and antennae do not constitute

infrastructure and urban development and on that basis it is denied that the Proposed

Development was required to have been subject to EIA (whether by way of preliminary

examination, screening for EIA or EIA) under either section 172 of the 2000 Act and / or

Article 5 of the EIA Directive and / or Article 109 of the 2001 Regulations.

82. The proposed development does not fall within a class of development set out in

Part 1 or Part 2 of Schedule 5 to the 2001 Regulations and as expressed in the Commission

Direction and Order. Given the manner in which the EIA Directive is drafted, a matter can

be a project as defined by Article 1(2)(a) but which does not require EIA, EIA Screening or,

to use the domestic phrase, a Preliminary Examination. This is because the only projects

that so require are those in the Annex, as Articles 2 and 4 make clear.

83. In short, where there is nothing inherently urban about the development, or its

location, nor does it urbanise a previously rural area (nor could it because a

telecommunications mast is nothing do with ‘urbanisation’) the proposed development

cannot be ‘urban development’ within the meaning of the EIA Directive nor Schedule 5, Part

2, Class 10(b)(iv) of the PDR 2001.

First Named Notice Party’s Position

84. The First Notice Party largely adopts the Commission’s position.

85. The question whether the development is infrastructure does not of itself bring it

within the scope of the EIA Directive. The question is whether it is ‘urban development’

within the meaning of the EIA Directive and its implementation in Irish law.

86. Various national plans, referred to by the Inspector, demonstrate that

telecommunications masts and services are matters of national concern and indeed rural

concern. Having regard also to the principle of interpreting terms in the context in which

they are used, it is notable that Class 10 of the EIA Directive refers to ‘Urban development

projects, including the construction of shopping centres and car parks.’ That is the type of

urban development in contemplation. A telecommunications mast located in a site described

by the Inspector as ‘rural’ and ‘unzoned’ does not sit easily with ‘the construction of shopping

centres and car parks.’ Nor does it sit easily with the types of development in contemplation

in the Commission’s Guidance on this topic.”

106. The inspector stated:

“EIA Screening

6.10.1. The proposed development is not a class for the purposes of EIA as per the classes

of development set out in Schedule 5 of the Planning and Development Regulations 2001,

as amended. Therefore, the requirement for EIA can be screened out. Please see Form 1

in Appendix 1.”

107. EIA has an international law dimension pursuant to the UNECE Convention on Environmental

Impact Assessment in a Transboundary Context done at Espoo on 25 February 1991. That doesn’t

help us here as it deals only with projects having transboundary effects, and urban development is

not one specifically identified in Appendix I.

108. Article 1(2)(a) of the directive defines project fairly widely:

“‘project’ means:

—

the execution of construction works or of other installations or schemes,

—

other interventions in the natural surroundings and landscape including those involving the

extraction of mineral resources;”

109. The fact that something is a project doesn’t get things very far however because it still has

to fall within a category of EIA projects.

110. Article 2 of the EIA directive provides (notes omitted, emphasis added):

“Article 2

1. Member States shall adopt all measures necessary to ensure that, before development

consent is given, projects likely to have significant effects on the environment by virtue,

inter alia, of their nature, size or location are made subject to a requirement for

development consent and an assessment with regard to their effects on the environment.

Those projects are defined in Article 4.

2. The environmental impact assessment may be integrated into the existing procedures

for development consent to projects in the Member States, or, failing this, into other

procedures or into procedures to be established to comply with the aims of this Directive.

3. In the case of projects for which the obligation to carry out assessments of the effects

on the environment arises simultaneously from this Directive and from Council Directive

92/43/EEC and/or Directive 2009/147/EC of the European Parliament and the Council,

Member States shall, where appropriate, ensure that coordinated and/or joint procedures

fulfilling the requirements of that Union legislation are provided for.

In the case of projects for which the obligation to carry out assessments of the effects on

the environment arises simultaneously from this Directive and Union legislation other than

the Directives listed in the first subparagraph, Member States may provide for coordinated

and/or joint procedures.

Under the coordinated procedure referred to in the first and second subparagraphs, Member

States shall endeavour to coordinate the various individual assessments of the

environmental impact of a particular project, required by the relevant Union legislation, by

designating an authority for this purpose, without prejudice to any provisions to the contrary

contained in other relevant Union legislation.

Under the joint procedure referred to in the first and second subparagraphs, Member States

shall endeavour to provide for a single assessment of the environmental impact of a

particular project required by the relevant Union legislation, without prejudice to any

provisions to the contrary contained in other relevant Union legislation.

The Commission shall provide guidance regarding the setting up of any coordinated or joint

procedures for projects that are simultaneously subject to assessments under this Directive

and Directives 92/43/EEC, 2000/60/EC, 2009/147/EC or 2010/75/EU.

4. Without prejudice to Article 7, Member States may, in exceptional cases, exempt a

specific project from the provisions laid down in this Directive, where the application of those

provisions would result in adversely affecting the purpose of the project, provided the

objectives of this Directive are met.

In that event, the Member States shall:

(a) consider whether another form of assessment would be appropriate;

(b) make available to the public concerned the information obtained under other forms of

assessment referred to in point (a), the information relating to the decision granting

exemption and the reasons for granting it;

(c) inform the Commission, prior to granting consent, of the reasons justifying the exemption

granted, and provide it with the information made available, where applicable, to their own

nationals.

The Commission shall immediately forward the documents received to the other Member

States.

The Commission shall report annually to the European Parliament and to the Council on the

application of this paragraph.

5. Without prejudice to Article 7, in cases where a project is adopted by a specific act of

national legislation, Member States may exempt that project from the provisions relating to

public consultation laid down in this Directive, provided the objectives of this Directive are

met.

Member States shall inform the Commission of any application of the exemption referred to

in the first subparagraph every two years from 16 May 2017.”

111. Article 4 provides (emphasis added):

“Article 4

1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an

assessment in accordance with Articles 5 to 10.

2. Subject to Article 2(4), for projects listed in Annex II, Member States shall

determine whether the project shall be made subject to an assessment in

accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination;

or

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

3. Where a case-by-case examination is carried out or thresholds or criteria are set for the

purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken

into account. Member States may set thresholds or criteria to determine when projects need

not undergo either the determination under paragraphs 4 and 5 or an environmental impact

assessment, and/or thresholds or criteria to determine when projects shall in any case be

made subject to an environmental impact assessment without undergoing a determination

set out under paragraphs 4 and 5.

4. Where Member States decide to require a determination for projects listed in Annex II,

the developer shall provide information on the characteristics of the project and its likely

significant effects on the environment. The detailed list of information to be provided is

specified in Annex IIA. The developer shall take into account, where relevant, the available

results of other relevant assessments of the effects on the environment carried out pursuant

to Union legislation other than this Directive. The developer may also provide a description

of any features of the project and/or measures envisaged to avoid or prevent what might

otherwise have been significant adverse effects on the environment.

5. The competent authority shall make its determination, on the basis of the information

provided by the developer in accordance with paragraph 4 taking into account, where

relevant, the results of preliminary verifications or assessments of the effects on the

environment carried out pursuant to Union legislation other than this Directive. The

determination shall be made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main

reasons for requiring such assessment with reference to the relevant criteria listed in Annex

III; or

(b) where it is decided that an environmental impact assessment is not required, state the

main reasons for not requiring such assessment with reference to the relevant criteria listed

in Annex III, and, where proposed by the developer, state any features of the project and/or

measures envisaged to avoid or prevent what might otherwise have been significant adverse

effects on the environment.

6. Member States shall ensure that the competent authority makes its determination as

soon as possible and within a period of time not exceeding 90 days from the date on which

the developer has submitted all the information required pursuant to paragraph 4. In

exceptional cases, for instance relating to the nature, complexity, location or size of the

project, the competent authority may extend that deadline to make its determination; in

that event, the competent authority shall inform the developer in writing of the reasons

justifying the extension and of the date when its determination is expected.”

112. So not all projects having effects on the environment require EIA – only those within Annex

I and II.

113. The heading to the relevant part of Annex II is:

“10. INFRASTRUCTURE PROJECTS”

114. A heading (which may be non-interpretative, but on the other hand may illuminate – I don’t

need to decide that here) does not render all infrastructure projects into EIA projects.

115. Class 10 of the EIA Directive in Annex II at (b) refers to:

“Urban development projects, including the construction of shopping centres and car parks.”

116. Schedule 5, Part 2, Class 10(b)(iv) of the PDR 2001 provides thresholds:

“Urban development which would involve an area greater than 2 hectares in the case of a

business district, 10 hectares in the case of other parts of a built-up area and 20 hectares

elsewhere.

(In this paragraph, ‘business district’ means a district within a city or town in which the

predominant land use is retail or commercial use).”

117. The judgment of 16 March 2006, Commission v Spain, C-332/04, ECLI:EU:C:2006:180 (not

available in English) was concerned with wide exclusion of projects in urban areas, which was

deemed unacceptable:

« Sur le quatrième grief tiré d’une transposition incorrecte des dispositions combinées du

point 10, sous b,) de l’annexe II ainsi que des articles 2, paragraphe 1, et 4, paragraphe 2,

de la directive 85/337 modifiée

70 La Commission constate que la loi 6/2001 prévoit, au groupe 7, sous b), de son annexe

II, l’évaluation d’impact environnemental uniquement pour les projets d’aménagement

urbain et de construction de complexes hôteliers situés en dehors des zones urbaines ainsi

que pour les constructions liées, y compris la construction de centres commerciaux et de

parkings (projets ne figurant pas à l’annexe I de la loi 6/2001).

71 Par conséquent, selon la Commission, seraient exclus de la procédure prévue pour les

projets visés à l’annexe II de la directive 85/337 modifiée de tels projets d’aménagement

lorsqu’ils sont situés en zone urbaine. Cette situation, découlant de la législation nationale,

ne serait pas corrigée, sauf dans de rares exceptions, par la législation régionale en matière

d’urbanisme, complétée par la législation régionale en matière d’évaluation des incidences.

En effet, ces dernières n’imposeraient pas non plus une évaluation de l’impact

environnemental en ce qui concerne les instruments de planification urbanistique.

72 Le gouvernement espagnol soutient que la directive 85/337 modifiée permet aux États

membres de décider que certains projets énumérés à son annexe II ne feront pas l’objet

d’une évaluation des incidences sur l’environnement.

73 Selon ledit gouvernement, ce serait en usant de cette faculté que la législation

espagnole soumettrait tous les projets d’aménagement urbain et de constructions de

complexes hôteliers hors des zones urbaines ainsi que les constructions qui s’y rattachent,

y compris la construction de centres commerciaux et de parkings, à l’obligation de fournir

une déclaration d’incidence sur l’environnement dès lors qu’ils se trouvent dans des zones

spécialement sensibles.

74 Le gouvernement espagnol ajoute que, de cette manière, les seuls projets

d’urbanisation qui ne sont pas soumis à une déclaration d’incidence sur l’environnement sont

ceux qui visent des zones urbaines dans lesquelles les incidences sur celui-ci sont

pratiquement nulles puisqu’il s’agit de terrains compris dans une zone urbaine.

75 Ce gouvernement estime que, partant, il n’a pas excédé les pouvoirs d’appréciation

qui lui sont confiés en vertu des articles 2 et 4 de la directive 85/337 modifiée.

76 Certes, la Cour a déjà souligné, à cet égard, que les États membres ont la possibilité

de fixer les critères et/ou les seuils permettant de déterminer quels projets relevant de

l’annexe II de la directive 85/337, dans sa version initiale, doivent faire l’objet d’une

évaluation (arrêt du 24 octobre 1996, Kraaijeveld e.a., C‑72/95, Rec. p. I‑5403, points 49 à

53). Toutefois, dans la fixation de ces seuils et/ou critères, les États membres doivent tenir

compte non seulement de la dimension des projets, mais aussi de leur nature et de leur

localisation (voir, en ce sens, arrêts du 21 septembre 1999, Commission/Irlande, C‑392/96,

Rec. p. I‑5901, points 65 à 67, et du 13 juin 2002, Commission/Espagne, C‑474/99, Rec. p.

I‑5293, point 31).

77 Or, en limitant l’évaluation de l’impact environnemental des projets d’urbanisation aux

seuls projets situés sur des sols non urbains, le gouvernement espagnol se limite à appliquer

le critère de la localisation, qui n’est que l’un des trois critères énoncés à l’article 2,

paragraphe 1, de la directive 85/337 modifiée, sans tenir compte des deux autres critères,

à savoir la nature et les dimensions du projet.

78 En outre, dans la mesure où elle prévoit l’évaluation de l’impact environnemental

uniquement pour les projets de travaux d’aménagement urbain en dehors des zones

urbaines, la législation espagnole fait une application incomplète du critère de la localisation.

79 En effet, les zones à forte densité de population, ainsi que les paysages importants

des points de vue historique, culturel et archéologique, repris au point 2, sous g) et h) de

l’annexe III, de la directive 85/337 modifiée, figurent parmi les critères de sélection dont les

États membres doivent tenir compte, conformément à l’article 4, paragraphe 3, de ladite

directive, pour l’examen cas par cas ou la fixation des seuils ou des critères prévus au

paragraphe 2 de cet article afin de déterminer si un projet doit être soumis à une évaluation.

Or, ainsi que le souligne à juste titre la Commission, ces critères de sélection concernent, le

plus souvent, des zones urbaines.

80 La thèse soutenue par le gouvernement espagnol selon laquelle, dans les zones

urbaines, l’impact environnemental des projets d’urbanisation serait pratiquement inexistant

ne saurait non plus être accueillie au vu de la liste des facteurs pouvant être affectés

directement ou indirectement par les projets visés par la directive 85/337 modifiée.

81 En effet, ces facteurs, énumérés à l’article 3 de la directive 85/337 modifiée, se

retrouvent tant à l’intérieur qu’à l’extérieur des zones urbaines et les probabilités qu’ils soient

affectés par l’un des projets susmentionnés ne varient pas nécessairement en fonction de la

situation de ces zones. En tout état de cause, ni les considérants ni les dispositions de la

directive 85/337 modifiée ne confortent l’interprétation selon laquelle tous les projets

concernant des travaux d’aménagement urbain dans des zones urbaines ne seraient pas

susceptibles d’avoir des incidences notables sur l’environnement au sens de l’article 1er,

paragraphe 1, de cette directive et pourraient dès lors être exclus de la procédure de

demande d’autorisation et d’évaluation en ce qui concerne leurs incidences.

82 Dans ces conditions, le quatrième grief soulevé par la Commission doit être accueilli. »

118. As regards Interpretation of definitions of project categories of annex I and II of the EIA

Directive, Publications Office of the European Union, 2024, https://data.europa.eu/doi/10.2779/678

h.985, this guidance states as follows (pp. 57-59) (emphasis added):

“(b) Urban development projects, including the construction of shopping centres and car

parks;

The EIA Directive provides two examples of what could be considered to fall within this

category, i.e. shopping centres and car parks, but these do not constitute an exhaustive list

of the activities covered.

Information on existing practices in Member States shows that interpretations differ

regarding the scope of this project category, although Member States have in most cases

interpreted this category in a broad sense. [n77: COM(2003) 334 final]

Housing developments, in particular, are frequently included in the ‘urban development

projects’ category, as are sports stadiums. In some Member States, this category also

includes leisure centres and multiplex cinemas. In one Member State, this project category

also includes projects for cemeteries, human crematoriums, the extension of theme and

amusement parks, and overhead roadways. Another example is that urban development

projects can include the construction of bus or trolleybus parks, car parks or garage

complexes, sports stadiums or wellness centres (with a construction area exceeding 0.5 ha).

Finally, one Member State introduced the following thresholds above which an environmental

impact assessment is to be conducted: shopping centres and supermarkets with a surface

greater than 2 500 m2; independent parking places with a capacity of more than 300

vehicles; football pitches and stadiums with a capacity greater than 2 000 seats; cinema

complexes with more than six screens; schools for higher education with a capacity greater

than 500 students; university campuses; and churches and other places for religious

worship. Urban development projects in sensitive areas have to be carefully assessed for

their environmental impact.

In interpreting the scope of Annex II (10)(b), the ‘wide scope and broad purpose’ of the EIA

Directive [n78: 78 Stated in case C-72/95, Kraaijeveld and Others, and consistently stressed

in subsequent Court rulings] should be borne in mind. The ruling of the Court in Case

C332/04, Commission v Spain, deals with the selection criteria of Annex III projects based

on an example of this project category. The case dealt with a recreational centre (cinema

complex) to be constructed in an urban area. The Court concluded that national legislation

that excludes all urban development projects in urban areas from this project category

amounts to incorrect transposition of Annex II (10)(b) project category. This is because,

given the size, nature and location of the recreational centre (cinema complex), it could not

have been ruled out from the outset that it is not likely to have a significant impact on the

environment. Therefore, in relation to project location, an urban development project should

be seen as a project that is urban in nature regardless of its location. [n79: COM(2003) 334

final]

To this end, the interpretation of this project category could take account of, inter alia, the

following:

(i) Projects with similar characteristics to car parks and shopping centres could be considered

to fall under Annex II (10)(b). This could be the case, for example, of bus garages or train

depots, which are not explicitly mentioned in the EIA Directive, but have similar

characteristics to car parks.

(ii) Construction projects such as housing developments, hospitals, universities, sports

stadiums, cinemas, theatres, concert halls and other cultural centres could also be assumed

to fall within this category. The underlying principle is that all these project categories are

of an urban nature and that they may cause similar types of environmental impact. [n80:

Including noise and traffic-related disruption during the construction phase, traffic

generation during the operational phase, land-take, impairment of soil function due to

sealing and visual impact]

(iii) Projects to which the terms ‘urban’ and ‘infrastructure’ can relate, such as the

construction of sewerage and water supply networks as well as

telecommunications/wireless communication deployment [n81: Commission

Recommendation (EU) 2020/1307 of 18 September 2020 on a common Union toolbox for

reducing the cost of deploying very high-capacity networks and ensuring timely and

investment-friendly access to 5G radio spectrum, to foster connectivity in support of

economic recovery from the COVID-19 crisis in the Union. https://eurlex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:32020H1307 points out to the application of the EIA

Directive to this type of infrastructure.], could also be included in this category.

Projects for integrated urban transport schemes (e.g. parallel works at different locations to

upgrade bus lanes, tramlines, bus, tram and/or metro stops), could also fall under this

project category.

Member States may decide in their national environmental impact assessment systems that

some of the above-mentioned projects (for example, sports stadiums or water supply

networks, [n82: In at least one Member State, sewerage and water supply networks are

considered to fall within Annex II (10)(j) ‘Installations of long-distance aqueducts’.] drinking

water treatment plants and pipes for carrying treated drinking water [n83: 83 They might

be qualified as Annex II (10)(b) projects although in some cases it may be that the treatment

works should instead be considered as an integral part of another category of project (e.g.

reservoirs, or deep drilling for water supplies).]) fall within other Annex II project categories.

Compliance with the Directive will be ensured, irrespective of which Annex II category is

considered applicable, provided that those projects which give rise to significant

environmental effects do not escape from the scope of application of the Directive.

In Case C-575/21, WertInvest Hotelbetriebs GmbH v Magistrat der Stadt Wien, the Court

dealt with a project falling within this category, namely the construction of a group of

buildings. The latter was subject to a screening, following the criteria set out by the Austrian

legislation, which exempt projects with a land take of below 15 ha and a gross floor area of

less than 150 000m2. In line with its jurisprudence, the Court stated that the power

conferred to Member States to set thresholds for projects under Annex II is limited

by Article 2(1), which imposes that projects likely, by virtue of their nature, size

or location, to have significant effects on the environment are subject to an EIA

before consent. Therefore, in the context of an urban environment in which there is limited

space, the criteria set out by the Austrian legislation are such that in practice all urban

development projects are exempted from an environmental impact assessment (paragraphs

46-47). A project that consists of redeveloping the city centre of Vienna by demolishing an

existing building and constructing two new buildings which among other things include hotel,

commercial and conference premises, an underground skating rink and underground sports

hall, falls within this category.”

119. The European Commission recommendation referred to includes the following at recital 21

(notes omitted, emphasis added):

“In order to avoid unduly delaying the processes for authorising spectrum use and the

installation of wireless communications networks, Member States should exchange best

practices on how to take account of the results of the environmental assessment, when this

is required, and in particular when authorities prepare the framework for future

development consent of projects, while fully respecting Union legislation, in particular

Directive 2001/42/EC of the European Parliament and of the Council (‘Strategic

Environmental Assessment Directive’), Directive 2011/92/EU of the European

Parliament and of the Council (‘Environmental Impact Assessment Directive’) and

Council Directive 92/43/EEC (‘Habitats Directive’). The environmental assessment should

take place at the stage when environmental effects can be identified and assessed.”

120. And at para. 17 (emphasis added):

“Where Union legislation, in particular Directive 2001/42/EC (‘Strategic Environmental

Assessment Directive’), Directive 2011/92/EU (‘Environmental Impact Assessment

Directive’) and Directive 92/43/EEC (‘Habitats Directive’), requires an impact assessment,

and in particular when authorities prepare the framework for future development consent of

projects, Member States should exchange best practices on how to perform and take account

of the results of the environmental assessment, at the stage when environmental effects

can be identified and assessed, such as when operators present overall plans for projects

entailing concrete installation or deployment of networks.”

121. This only gets us so far and obviously is phrased in very general terms. The fact that at the

level of principle the erection of telecommunications masts may in certain circumstances come within

EIA does not have the consequence that such erection always comes within EIA.

122. In other words, all that means however is that telecoms masts could be subject to EIA in

some circumstances. In principle a mast only comes under the EIA directive if it itself constitutes

an EIA project (specifically urban development) or if it forms part of a development that otherwise

is an Annex I or II project.

123. The commission in this case concluded:

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

Directive. However, the Board concluded that the proposed development does not fall within

a class of development set out in Part 1 or Part 2 of Schedule 5 to the Planning and

Development Regulations 2001, as amended, and therefore no preliminary examination,

screening for EIA or EIA is required.”

124. The applicants place outsize reliance on this being a “project”. But all that means is that it

involves works. The fact that something is a “project” or even that it has effects on the environment

doesn’t engage EIA. What engages EIA is the project coming within Annex I or II of the directive.

If that is not the case then no further consideration of EIA is required.

125. There are essentially two reasons why this complaint fails:

(i) given the nebulous nature of the notion of urban development it is open to the

commission to regard masts as not generally coming within that; and

(ii) even if a category exclusion is inappropriate, it is implausible that the present project

could reasonably constitute urban development.

Problem I - The commission’s entitlement to evaluate the application of the concept of

urban development

126. The important point here is that urban development is an inherently nebulous concept. While

the applicants try to present the issue as a pure question of law – a project is either “urban

development” or not, as determined by the courts – that is clearly an impossible standard. Such a

concept is largely evaluative within a wide zone of evaluation.

127. By definition, not everything that happens in an urban area is urban development – as in

Reid, it must relate to development of the area qua urban area or qua area being urbanised. That

leaves a wide margin for evaluation.

128. The starting point therefore is the onus of proof being on the applicant to demonstrate that

the margin of evaluation has been exceeded. That is nowhere near the case, especially when one

puts the type of project here – a single mast – alongside the types of projects referenced in the EIA

directive, which refers at point 10(b) of Annex II to (emphasis added):

“(b) Urban development projects, including the construction of shopping centres and

car parks;”

129. Talk about noscitur a sociis. A single mast (of which there are probably at least half a

million across Europe, according to public domain material, and at least 4,000 in Ireland) is clearly

at a much lower level of development than more major projects like shopping centres (measured

only in the dozens in Ireland) or car parks, both of which are inherently urbanising, whereas masts

are required for both urban and rural areas.

130. Admittedly the wording of the decision would have been better if the inspector had said that

single masts do not generally constitute urban development in and of themselves, and having

considered the characteristics of this project specifically that conclusion remained. But falling short

of the more lawyerly wording is harmless error if in fact there isn’t anything specific about this

project that makes it urban development when other masts are generally not such development, in

the evaluative judgement of the commission. If one wants to call that an error, it isn’t an error that

gives rise to relief in the absence of it making any difference – and there clearly isn’t anything that

makes this mast super-special so as to warrant setting aside a general evaluative judgement that

masts generally are not the type of project to be generally considered as urban development.

131. In short, there is nothing unlawful about an evaluation that places one-off masts generally

outside the concept of urban development, subject to the possibility – not relevant to the facts here

– of a particular project coming within that, due for example to multiple masts in a single project or

the mast(s) being part of a wider project requiring EIA under another heading. The fact that all

masts form part of an overall network makes the point for one – each individual mast is only a single

node in a web that applies across the country and indeed across the world. This particular one is

nothing special in that context. Nor is there anything inherently urban about the network of masts

to which this one will belong.

132. In view of the inherently evaluative element of deciding what is and is not an urban project

there is no acute question of interpretation of EU law that arises here. A reference (even by an apex

court) is only admissible on an issue of interpretation or validity of EU law, not its application: art.

267 TFEU. Thus a reference doesn’t arise if “no acute point of interpretation is really presented by

[the matter]: it really shades into issues of fact and the application of established principles of EU

law”: An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281

per Hogan J. at para. 156 (O’Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring).

133. Gratifyingly, this conclusion is also consistent with R. (Condron) v. Merthyr Tydfil County

Borough Council [2009] EWHC 1621 (Admin), where Beatson J. said (emphasis added):

“35. The qualification, however, is that identified most clearly in the speech of Lord Mustill

in R v Monopolies and Merger Commissions, ex parte South Yorkshire Transport [1993] 1

WLR 23 at 32. His Lordship recognised that where an authority misconstrued or

misunderstood a statutory expression, the court must correct it because it is an error of law,

and not a matter of discretion. But his Lordship Lord Mustill also recognised that where

the statutory expression is imprecise, even in respect of what is formally an error of

law, ‘the court is entitled to substitute its own opinion for that of the person to whom the

decision has been entrusted only if the decision is so aberrant that it cannot be classed

as rational’

...

40. As far as paragraph 13 is concerned, Mr Stookes correctly points out that Collins J's

statement, that since the application does not itself fall within Schedule 2 any extension

modification cannot fall within it, does not appear to attract the words of Section 13(a),

which refers to a development of a description listed in Schedule 1. But the development

relied on by the claimants is the Ffos-y-fran opencast coal mining project. That is on a

separate site, albeit geographically close to the disposal point. The applications do not

involve any change in that development. The disposal point operates in relation to other

coal fields as well, and the effect of this application does not facilitate increased extraction

from Ffos-y-fran. There is a link between Mr Stookes' submission on paragraph 13 and

ground 2 to which I will return. This is because the claimant is relying on the fact that, in

what is described as the planning application title (but in fact the page reference is a

reference to the officer's report), there is a reference to ‘related’ operations at Ffos-y-fran.

I return to this aspect when considering ground 2. However, on ground 1 I do not consider

that the defendants' decisions that the application did not require EIA are arguably

flawed because the applications arguably fell within the three paragraphs [of the UK

transposing legislation] which I have discussed.

41. I reach this conclusion without getting to what might be thought to be the second stage

of the inquiry, that is, the approach of Lord Mustill in the South Yorkshire Transport case.

However, lest I am wrong in my assessment of what is arguably within the three paragraphs,

I have also considered whether the conclusion that the applications were outside

the scope of the obligation to have an EIA was arguably so bad that it could not be

classed as rational and concluded it was not.”

134. So even aside from this not being a pure issue of interpretation, it does not seem to be an

issue on which doubt arises either.

135. Finally, one can anticipate the applicants’ inevitable complaint that interpretation is a matter

for the court and must be uniform throughout the EU, and it is only application that is a matter for

the commission. While that concept is valid at a general level, it has limited relevance to a very

amorphous instrument such as the EIA directive, where there are vast differences in interpretation

and thresholds across the European legal space. To put it another way, some legislation carries

within it the seeds of its own flexibility by conferring on competent authorities a wider than usual

zone of evaluation as to the situations to which the legislation is to be applied. The imperative need

for a uniform EU law interpretation as laid down by the CJEU is less central where the legislation

itself impliedly envisages an appreciable defining or determining role for national parliaments and

administrations. For this type of legislation, the normal rigid distinction between court-led

interpretation and administration-led application doesn’t have quite the same resonance, especially

for the more nebulous categories such as “urban development”, which as the caselaw indicates could

mean nearly anything in the opinion of some applicants. The enactment of such undefined and

generalistic categories inherently involves an acceptance of a considerable latitude for national

decision-takers and indeed legislatures. Our legislature hasn’t seen the necessity to get involved in

trying to clean up ambiguity about the concept of urban development, so the role of legal janitor

falls to the commission and then, familiarly, to the High Court. In such circumstances I can exercise

that role by saying that there isn’t anything particularly unlawful about the commission’s attempt to

apply the directive here.

Problem II – Even if a category exclusion is inappropriate, this project is obviously not

urban development

136. Even if masts cannot be generally regarded as falling outside the concept of urban

development, the ultimate problem for the applicants, and the reason why this case does not require

anything remotely approaching a comprehensive definition of “urban development”, is that there is

no plausible meaning of urban development that covers the project here.

137. The project is as follows:

(i) Firstly this is a stand-alone mast in a field.

(ii) It is outside the existing settlement.

(iii) It is outside the development envelope of the settlement.

(iv) The context is that of a small country town – even if the town expands to the full

development envelope it is still rural. The fact that people live in rural areas

otherwise than in one-off houses doesn’t make those areas urban areas. You could

fit 31,327 Kinloughs (population (2022) 1,196) into Tokyo and have room left over.

It is smaller than the smallest urban district council at the time of the abolition of

those councils in 2014, and 17 times smaller than the current size of the smallest

(also abolished) borough. What it is is a small country town – in the lowest tier of

town on the CDP settlement hierarchy above villages. There’s nothing wrong with

being small – famously associated with beauty by E. F. Schumacher – but it would

be illogical to assimilate small towns into an urban category. This is not a

development that urbanises a rural area (see R (Condron) v. Merthyr Tydfil County

Borough Council & Ors. [2009] EWHC 1621 (Admin); Ryan v. An Bord Pleanála

[2025] IEHC 111 (Unreported, High Court, Holland J., 27 February 2025); Carvill v.

v. Dublin City Council [2025] IECA 84 (Unreported, Court of Appeal, 11 April 2025)

at §229)) – for example by building out from a city or large town into a neighbouring

agricultural area.

(v) The project is not inherently urban – there isn’t anything intrinsically urban about

telecoms infrastructure, and as the commission says it is “essentially societally

inclusive”, society being understood as both rural and urban. Such infrastructure

serves those in settlements but also “the farmer seeking to rely on a viable wireless

connection to feed a camera in a remote lambing barn, or the rural resident, relying

on an LTE module to operate their electronic gate” as submitted by the commission.

(vi) Indeed stand-alone masts of this height are more characteristic of rural areas than

urban areas because in urban areas, urban comms equipment is more generally

placed on buildings, for example as roof plant – the antennae guidelines say at p. 5:

“In urban areas (centre city) these antennae can generally be mounted on buildings

or other structures. In rural areas, and in many suburban situations, because of the

low rise nature of most of our suburban buildings and structures a supporting mast

or tower is needed. As technology develops, the number and size of antennae may

change, becoming more efficient and less obtrusive”.

138. One can debate the weight of these elements to a greater or lesser extent but I don’t need

to resolve all such debates or lay down absolute definitions for the simple reason that there is simply

no plausible argument by reference to which this project constitutes urban development.

139. To put it more simply, the fact that a project is near, or even adjacent, to a modest-

sized settlement or even the fact that it serves the settlement to a greater or lesser extent

does not make it unlawful for a decision-taker to decline to regard it as urban

development. The bigger the settlement concerned the greater the evaluative scope for a decision-

taker to hold such a project to be urban development, but there is no basis to hold that the

commission’s approach here was unreasonable, still less wrong. Opening the door to classing this

rural project as “urban development” would transmogrify a vast number of rural projects into urban

projects and radically extend the EIA directive far beyond anything envisaged by the European

legislature. The anarchy can’t be confined to one single mast.

140. As regards reasons for the EIA conclusion, reasons are only required if there is something

calling for reasons. Reasons are not required for the obvious. This, unfortunately, is so obviously

not urban development that there was no particular requirement for further reasoning and it would

be pointless formalism and overkill to quash the decision or make any other order on a mere reasons

basis here. So this point fails.

Core ground 7 – AA screening

141. Core ground 7 is:

“7. The Board’s decision is invalid and/or ultra vires in that it contravenes Art.6(3) of

the Habitats Directive (Council Directive 92/43/EC) and Part XAB of the 2000 Act, in

circumstances where, in purporting to carry the Screening for Appropriate Assessment, the

Board permitted the decommissioning of the proposed development and reinstatement of

the site leaving over details to be agreed with the planning authority contrary to Case C-

461/17, Holohan & Ors. v An Bord Pleanála.”

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

“Applicant’s Position

87. The Commission did not carry out any assessment in respect of the impacts of the

proposed works that would be required as part of the foregoing. The Board decision does

not meet the test set out by the CJEU in Case C- 461/17, Holohan & Ors v An Bord Pleanála

and in particular the conclusion at paras.45-46, that Art.6(3) of the Habitats Directive

requires the competent authority to catalogue and assess all aspects of a plan or project

that might affect the conservation objectives of the protected site before granting the

development consent at issue.

88. S.34(4) does not incorporate any provision relating to the Habitats Directive. In

order to comply with the Habitats Directive, the Commission is required to provide for the

incorporation of the said directive into the decision-making procedures and Condition 2 (b).

89. Only those parameters as to the effects of which there is no scientific doubt that

they might affect the site can be entirely left to be decided later by Vantage. There is no

consideration of the removal of the equipment or the re-instatement of the site in future in

the screening report submitted by Vantage.

Commission’s Position

90. The Commission in this matter screened out the need for Stage two Appropriate

Assessment, and the Applicants have not challenged that determination. The Proposed

Development does not purport to permit or authorise the future works in respect of

decommissioning and / or works required to restore the site. Condition 2 is directed at (a)

removal of the mast, antenna and ancillary structures and equipment, (b) site reinstatement

and (c) the submission of a removal and reinstatement plan to be agreed with the Council,

not the implementation of the same.

91. However, the facts are perhaps more important here because the Inspector did, in

fact, carry out an analysis of matters with decommissioning in mind (i.e. in the same manner

as where a competent authority may assess something for which consent is not sought, but

should be viewed in-combination with same). In the Inspector’s Report, Appendix 2 contains

the details on AA. The Inspector expressly dealt with decommissioning at pages 41, and

44-45. The Inspector expressly examined the nature of the connections to European sites

and reasoned (p.41) that ‘potential impacts from decommissioning would be similar to those

arising at construction stage.’ The Inspector then expressly reasoned with regard to both

the construction and decommissioning stages that there would be no likely significant

effects. The Applicant’s pleadings engage with none of this, and no evidence is adduced to

show error. Thus, there is simply no error revealed in the Decision: see Cummins v An

Coimisiún Pleanála [2025] IEHC 521.

First Named Notice Party’s Position

92. The First Notice Party largely adopts the Commission’s position.”

143. The first reason why this point fails is that the factual premise was wrong – there was an

assessment of the effects of decommissioning. As the commission submits:

“[W]hereas AA Screening Report was not submitted originally, it was included with the

Further Information on 27 January 2023 (Exhibit BL1, Tab 3) and an addendum was

submitted with the further submissions on 5 June 2024 (Exhibit BL1, Tab 10). The latter

specifically gave an opinion on decommissioning (page 7 of 51 PDF). The Applicant has not

adduced any evidence to counter that position.”

144. The inspector expressly notes this at 7.4.2:

“7.4.2. A submission on behalf of the appellant was received on 5th June 2024. This is

summarised below:

• Board decision to grant permission was based on a supported case where low visual impact

telecommunications infrastructure was proposed to offer significantly improved coverage to

Kinlough and surrounding areas.

• Attached addendum that clarifies that a Stage 2 Appropriate Assessment is not required

for the construction or decommissioning of the application structure.”

145. At p. 39:

“The application has included an Appropriate Assessment Screening Report (dated 27th

January 2023) submitted at Further Information Stage, as well an addendum to same

enclosed as an addendum to the appellants submission of 5th June 2024. The main body of

the report states that, from an examination of aerial photography and relevant mapping,

that there are no notable surface water features onsite, and that these is no connectivity

from the site to the Kinlough Stream (and hence no connectivity to the Lough Melvin SAC).

Impacts on Lough Melvin SAC, and other European Sites are ruled out on the basis of the

lack of any connectivity to same, the distance from any European Sites and the nature of

the proposed development. The potential for in-combination impacts is also ruled out in the

Screening Report. The addendum to the Screening Report (dated 4th June 2024) reiterates

that there are no pathways to Lough Melvin SAC or to other European Sites, and further

notes that no significant impacts would result from the decommissioning stage.”

146. At p. 41:

“Potential impacts from decommissioning would be similar to those arising at construction

stage.”

147. At p. 44:

“In relation to surface water quality, I would note that the proposed development will be in

relatively close proximity to the drainage ditch to the east of the site. However, at

construction stage, and at decommissioning stage, standard best practice construction

measures will prevent pollutants entering this ditch. Even if these standard construction

measures should not be implemented or should they fail to work as intended, the potential

indirect hydrological link represents a weak ecological connection, in my view, given the

distance to the Lough Melvin SAC (which is greater than 1.2km). As such, any pollutants

that should enter the drainage ditch will be subject to dilution and dispersion, rendering any

significant impacts on water quality within the Lough Melvin SAC unlikely.”

148. At p. 45:

“I would note that the best practice measures that would be adhered to at construction

stage, and at decommissioning stage, are not mitigation measures intended to reduce or

avoid any harmful effect on any Natura 2000 site and would be employed by any competent

operator, notwithstanding any proximity to any Natura 2000 site.”

149. So the premise of this point is lacking and the point fails.

Possible reference to the CJEU

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

“Applicant’s position

93. The Applicant proposes that it may be necessary for the Court to consider whether

the granting of a development consent for telecommunications infrastructure within or in

the immediate surrounds of smaller towns or villages or in a residential area or beside

schools is something that is within and captured by Annex II Class 10(b) of Council Directive

2011/92/EU (as amended).

Commission’s Position

94. It is the Commission’s position that there is no basis for a preliminary reference.

The potential for a reference was raised for the first time in the Applicants submissions at

§66, and the potential question was outlined for the first time in this statement of case. The

Applicants pursue a potential reference arising from Core Ground 6, it is presumed. The

Applicant has not identified any issue of EU law that is not acte clair and has not

demonstrated that a reference is needed.

95. Fundamentally, the Commission oppose this proposed reference on the basis that

the factual premise underlying the question does not arise. The Proposed Development is

not located ‘within or in the immediate surrounds of smaller towns or villages or in a

residential area or beside schools’ for the reasons already set out above.

First Named Notice Party’s Position

96. The First Notice Party largely adopts the Commission’s position.”

151. The first problem with the proposed question is that it is not properly a question of law. It

is obviously a mixed question of fact and law with a heavy emphasis on the evaluative. A reference

(even by an apex court) is only admissible on an issue of interpretation or validity of EU law, not its

application in a particular case: art. 267 TFEU. Thus, a reference doesn’t arise if “no acute point

of interpretation is really presented by [the matter]: it really shades into issues of fact and the

application of established principles of EU law”: An Taisce v. an Bord Pleanála & Ors. (No. 3) [2022]

IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281 per Hogan J. at para. 156 (O’Donnell C.J., Dunne,

Charleton and Woulfe JJ. concurring).

152. A second problem is that even assuming for the sake of argument that the commission’s

thought processes were less than legally perfect here, that is not a problem that benefits the

applicants because their proposition is simply too outlandish. It sounds reasonable enough in

complete and total isolation but when one thinks about it for a moment it means that any industrial

development anywhere near a small rural town is to be classed as urban development. This would

mean that vast amounts of development would be brought within the directive, nullifying the specific

categories and restrictions set out in Annexes I and II. This is not a plausible interpretation,

especially on a purposive reading.

153. Finally, in order to demonstrate that a point is not acte clair, there are essentially two

options. First of all, a party has to show that there is an inherent logic to the contrary position.

Alternatively, they can show that there is some relevant material to the contrary either at European

or at national level that is capable of affecting the result. The European legal space is fairly big. If

one starts with 27 member states, there are 10 candidate or potentially candidate accession

countries (9 recognised states and Kosovo) that are all in the process of assimilating EU law in one

shape or form. There is obviously one former European member state (the UK) and (for the sake

of absolute technical inclusivity) one former non-European member state, Algeria (a part of France

as an EEC member from, relevantly, 1957-62). That leaves 13 other European states, virtually all

of which have some formal relationship with the EU that involves some level of incorporation of EU

law, most notably the 3 other EEA states and the one EFTA member (Switzerland) that is not a

member of the EEA, plus 6 other European countries, most of which have some level of EU

association. In addition, there are a large number of European and non-European special territories

of these states, two of which (Greenland and Saint Barthélemy) are former EU territories. EU law

also influences non-EU states through cooperation agreements and otherwise. We are talking about

a population of 500 million just sticking with the EEA, over 750 million taking a wider view of the

European space that has engaged with EU law. If a party – typically but not exclusively in this

context an applicant – can’t come up with a single court decision or academic work either at EU level

or from that gigantic pool that would change the result of this case then a court can reasonably

conclude that there is no demonstrated doubt about the point such that a reference to the

CJEU would arise, even as an obligation for an apex court.

154. The applicants’ position here does not have inherent logic for the reasons outlined. Nor have

the applicants produced anything from anywhere to support it. All they have is the European

Commission saying that there can be EIA of masts in some circumstances. That’s fine and may be

relevant in a case about an urban context but it doesn’t get the applicants anywhere because the

particular circumstances of this case are not such as to engage that possibility.

Summary

155. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that a decision should not be quashed on a technical infirmity if

the points were correctly dealt with in substance;

(ii) applying such law to the facts here, the commission applied the last resort test in

substance and gave adequate reasons;

(iii) it is settled law that if a decision says it has had regard to something, an applicant

has an onus of proof to displace that;

(iv) applying such law to the facts here, the applicants haven’t discharged that onus;

(v) it is settled law that a planning decision-taker has a margin of evaluation in

respect of evaluative elements of applicable instruments such as development plans;

(vi) applying such law to the facts here, the commission has not been shown to have

exceeded its margin of evaluation here;

(vii) it is settled law that a decision should be read as valid rather than invalid if a valid

reading is available;

(viii) applying such law to the facts here, the inspector’s ruling out of health impacts

should be read as ruling out weight being given to submissions about health impacts

of the type canvassed, which was a valid approach;

(ix) it is settled law that the onus lies on an applicant to establish the factual premise

of any complaint about inadequate appropriate assessment;

(x) applying such law to the facts here, the applicants have failed to discharge that

onus;

(xi) it is settled law that the onus is on the applicant to establish the factual premise

for a question of EU law; and

(xii) applying such law to the facts here, the applicants have failed to discharge that onus

because there is no plausible interpretation of the EIA directive by reference to which

on these facts this project constituted urban development.

Order

156. For the foregoing reasons, it is ordered that:

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by written legal submission within 7 days, the

foregoing order be perfected forthwith thereafter on the basis of no order as to costs

including reserved costs;

(iii) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in the judgment may be addressed pursuant to O. 103 r.

40(4) RSC;

(iv) perfection of the substantive provisions of the foregoing order be postponed pending

any post-judgment applications; and

(v) the matter be listed on Monday 12 January 2026 to confirm the foregoing.