High Court dismisses judicial review where rectified planning errors lack standing for certiorari.

[2026] IEHC 135

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000120]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE

PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

RURAL RESIDENTS WIND AWARE AND ENVIRONMENTAL GROUP, JOHN NOLAN AND

CATRIONA NOLAN

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

WHITE HILL WIND LIMITED

NOTICE PARTY

(I)

(No. 2)

Date of impugned decision: 21 November 2023

Date proceedings commenced: 24 January 2024

Dates of main hearing of Module I: 30 September – 1 October 2025

Date of main hearing of Module II: 12 February 2026

Date draft judgment sent to parties: 17 February 2026

JUDGMENT of Humphreys J. delivered on Friday the 6th day of March 2026

1. Judicial review is there to remedy tangible legal problems, not to pursue technicalities. In

the present case, the original planning permission erroneously encroached on neighbouring land

without landowner consent, but that problem has since been rectified by the lawful amendment of

the permission. The question is whether there is anything left in this challenge.

Judgment history

2. In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (I) [2025]

IEHC 600 (Unreported, High Court, 6 November 2025), the proceedings were dismissed in respect

of grounds other than the balance of core grounds 1 and 8A.

3. In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (II)

[2025] IEHC 601 (Unreported, High Court, 6 November 2025), proceedings challenging the

amending permission were dismissed in respect of grounds other than core grounds 6 and 7.

Geographical context

4. The proposed development is a 7-turbine windfarm and associated works in the townlands

of Ridge, Knocknabranagh and Knockbaun, Baunreagh, and Agharue, Co. Carlow and Coolcullen,

Cloneen and Coan East, Co. Kilkenny (https://www.pleanala.ie/en-ie/case/315365).

Facts

5. On 19 December 2022, an application for strategic infrastructure development (SID) under

s. 37E of the Planning and Development Act 2000, ABP-315365-22, was lodged with the board (now

commission) by Galetech Energy Services on behalf of White Hill Wind Limited for proposed

development comprising a wind energy development (a 7-turbine wind farm with an electrical output

of 50.4 MW) and all associated works at Ridge, Knocknabranagh and Knockbaun, Baunreagh, and

Agharue, Co. Carlow; and Coolcullen, Cloneen and Coan East, Co. Kilkenny.

6. The notice party’s application for strategic infrastructure development was accompanied by

supporting documentation including an environmental impact assessment report (EIAR) and Natura

impact statement (NIS).

7. The application was the subject of public consultation. A number of prescribed bodies were

notified by the notice party of the subject application. The following bodies each made a submission

on the application: the Department of Housing, Local Government and Heritage Development

Applications Unit, the Health Service Executive (HSE), Inland Fisheries Ireland, Transport

Infrastructure Ireland. Seventy-seven third-party observations were made on the subject

application, including by the first named applicant and the third named applicant. The second named

applicant did not make a submission on his own behalf to the commission.

8. The proposed windfarm is located across two planning jurisdictions with the western area of

the site being located in Co. Kilkenny and the eastern area being located in Co. Carlow. A

submission/report was received from each of the relevant planning authorities, Carlow County

Council (dated 20 January 2023) and Kilkenny County Council (dated 21 February 2023), in

accordance with s. 37E(4) of the 2000 Act. Both of the submissions/reports of the respective

planning authorities were accompanied by resolutions of the elected members of each council,

recording the views of the elected members on the subject application for permission.

9. By way of letter dated 26 July 2023, the commission sought further information from the

notice party, namely a response to matters raised in the submissions on the subject application.

The notice party responded to that request for further information by way of response dated 18

August 2023. The further information received was not the subject of a further round of public

consultation/submission.

10. The commission decided not to hold an oral hearing (at a meeting held on 17 July 2023) in

relation to the subject application, having considered that there was sufficient written evidence on

file to enable an assessment of the issues raised.

11. The commission appointed a planning inspector to prepare a report in relation to the subject

application and this was done. The inspector’s report, which is dated 30 September 2023, records

that the inspector carried out a site inspection on 1 June 2023. The inspector recommended that

permission should be granted for the proposed development, subject to conditions and for stated

reasons and considerations (at section 8.0 of the report).

12. The board direction (BD-014581-23) dated 15 November 2023 states, inter alia, that the

commission decided to grant permission generally in accordance with the inspector’s report and that

same and the submissions on file were considered at a meeting held on 14 November 2023.

13. By order dated 21 November 2023 (ABP-315365-22), the commission granted planning

permission in respect of the proposed development subject to 22 conditions and for stated reasons

and considerations.

14. The applicant has brought two sets of proceedings, the present case being Rural Residents

I challenging the parent permission, and a second case, Rural Residents II challenging an

amendment to the permission.

Procedural history

15. The first proceedings were issued on 24 January 2024.

16. Leave was granted on 29 January 2024 with liberty to file an amended statement of grounds.

An amended statement of grounds was filed on 2 February 2024.

17. The statement of opposition of the first named respondent was filed on the 29 May 2024.

18. The statement of opposition of the notice party was filed on the 15 August 2024.

19. The submissions of the applicant were filed on the 30 October 2024.

20. The second proceedings were issued on the 4 November 2024, and leave was granted on 11

November 2024 with liberty to file an amended statement of grounds. An amended statement of

grounds was filed on the 14 November 2024.

21. On 2 December 2024, I made an order modularising the case against the State in both

proceedings.

22. The statement of opposition of the first named respondent was filed on the 26 March 2025.

23. The statement of opposition of the notice party was filed on the 9 April 2025.

24. The statement of opposition of the second, third and fourth respondents in 2024 1380 JR

was filed on the 16 May 2025.

25. The submissions of the applicant for Module I were filed on the 17 July 2025.

26. The submissions of the first named respondents for Module I were filed on the 7 August

2025.

27. The submissions of the notice party for Module I were filed on the 16 September 2025.

28. The hearing of Module I in both proceedings was on 30 September 2025 and 1 October 2025.

29. Judgment in both cases (Module I) issued on 6 November 2025.

30. The matter was listed on Monday 3 November 2025 to fix a date for Module II.

31. The opposition papers of the State parties for Module II were served on 13 January 2026.

32. On 26 January 2026, the matter was listed for callover for Module II, and submissions from

the applicants were served on the same date with consequential extensions to be agreed.

33. The submissions of the Commission for Module II in both proceedings were served on 6

February 2026.

34. The submissions of the Notice Party for Module II in both proceedings were served on 9

February 2026.

35. The submissions of the State for Module II in both proceedings were served on 9 February

2026.

36. Module II (both cases together) was heard on 12 February 2026.

37. 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.

38. On 17 February 2026, 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.

39. Any comments must be emailed to the court and uploaded to ShareFile in writing by the

notified deadline, and should not be to reargue the substance (submissions to that effect will be

disregarded) but are confined to matters such as:

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

issues;

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

both modes;

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

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

(v) 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;

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

party considers could beneficially be decided;

(vii) 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

(viii) 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.

40. 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. Health Service Executive [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).

41. 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.

42. The deadline for such comments from the parties was to be 09:30 on 23 February 2026.

Relief sought

43. The reliefs sought are as follows:

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

(’the impugned decision’) of the First Respondent (‘the Board’) of on or about 21 November

2023 (file 315365), pursuant to section 37G of the Planning and Development Act 2000, as

amended, to grant planning permission to the Notice Party for development of a wind farm

and associated infrastructure comprising 7 no. wind turbines with hub height of 104 metres,

a rotor diameter of 162 metres and an overall tip height of 185 metres and associated

development including underground electrical and communications cabling, site entrances,

a 30 metre high meteorological mast, 3 no. borrow pits, 2 no. further dedicated spoil

deposition areas; change of use of existing residential dwelling to wind farm site office,

felling of 15 hectares of commercial forestry plantation to facilitate the construction of wind

farm infrastructure, access road (150m in length) between the N78 national road and L1834

local road, strengthening works at ‘Black Bridge’ on the L1835 and L3037, temporary works

to public roads along the turbine component haul route, the provision of site drainage

infrastructure and environmental mitigation measures, described as being located in 7

named townlands being the 4 Co. Carlow townlands of Ridge, Knocknabranagh and

Knockbaun, Baunreagh, and Agharue; and the 3 Co. Kilkenny townlands of Coolcullen,

Cloneen and Coan East, Co. Kilkenny.

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

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

3. In the alternative, a Declaration that Article 214(1) of the Planning and Development

Regulations 2001 as amended is invalid and contrary to the Constitution because it does not

require the planning applicant to provide written consent from the owner of the land where

the planning applicant is not the owner.

4. An Order providing for the costs of the application pursuant to Art. 9(4) of the Aarhus

Convention and as transposed into Section 50B of the Planning and Development Act, 2000,

as amended and or Section 3 of the Environmental (Miscellaneous Provisions) Act 2011, as

amended with respect of the costs of this application.

5. Further and other orders including interim orders.

6. Liberty to apply for a Stay if necessary.”

Grounds of challenge

44. The core grounds of challenge are as follows:

“PART 1 - CORE GROUNDS

Domestic Law Core Grounds

1. The impugned decision is invalid and contrary to s.37E(2) of the Planning and

Development Act and fair procedures, because the Board having received from the developer

an application form in its own required format, failed to use its discretion to refuse to deal

with the application when it knew or ought to have known that the information provided by

the developer in section 7 of the application form wrongly implied that letters of consent to

make the application from the Second Applicant John Nolan of Coolcullen, Co. Kilkenny and

his father James Nolan of Coolcullen, Co. Kilkenny (the administrator of the estate of the

late Sean Nolan deceased), had been supplied to the Board with the planning application

when no such consent had been given, and the Notice Party had no standing to make a

planning application for development on the lands of John Nolan and the late Sean Nolan

(deceased). Further particulars are set out in Part 2 below.

2. The impugned decision is invalid because the Board erred in law and acted contrary

to fair procedures by excluding from its decision-making more relevant considerations on

wind turbine noise and shadow flicker than are contained in the Wind Energy Development

Guidelines of 2006, and in particular failed to engage properly or at all with several

submissions made by the parents and guardians of vulnerable persons in the local

community known to suffer from sensory disturbances triggered by visual and aural impacts,

including the son of the Third Applicant, contrary to the decision of the Supreme Court in

Balz -v- An Bord Pleanála [2019] IESC 90, and in granting the impugned planning permission

and conditioning therein outdated limit values for noise and shadow flicker, failed to have

any regard to best current scientific practice (including in relation to amplitude modulation)

and determined a harmful level of noise and shadow flicker to be legally acceptable (per

Smyth -v- RPA [2010] IEHC 290) and harmful noise nuisance that is nonetheless defensible

under section 108(2) of the Environmental Protection Act 1992. Further particulars are set

out in Part 2 below.

3. The impugned decision is invalid in that it contravenes s. 37A(1) and s. 37E(1) and

(2) of the Planning and Development Act as amended, because the Board accepted a

planning application from the Notice Party under s. 37E for a development, without first

ensuring that the condition in s.37A(2) had been complied with, and the Board had not first

engaged in consultations with the Notice Party or served on the Notice Party a notice in

writing under s. 37B in relation to development in Agharue, Co. Carlow and Cloneen and

Coan East, Co. Kilkenny to allow the Notice Party apply for planning permission directly to

the Board for development in these places and bypassing local planning application

processes of the Carlow and Kilkenny planning authorities and their public participation

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

4. The impugned decision is invalid and contrary to fair procedures in that it

contravenes article 214 (1) because the Board accepted the planning application without

proper plans or particulars of the battery storage facility and substation and the development

works to be carried out to the haul route from Waterford Port and without describing these

components of the project on legible drawings to an appropriate scale. Further particulars

are set out in Part 2 below.

EU Law Grounds

5. The impugned decision is invalid because it was made contrary to Articles 6(3), 6(5)

and 11 of the EIA Directive as transposed by Section 146 of the Planning and Development

Act, 2000, as amended and article 210 (4A) of the Planning and Development Regulations

2001, as amended because the Board failed to ensure that relevant information, including

submissions made by public bodies, planning authorities, members of the public and the

developer, were made available to the public within reasonable timeframes and through a

central portal. Further particulars are set out in Part 2 below.

6. The impugned decision is invalid because it was made contrary to Article 2(1) and

Article 3(1)(a) of the EIA Directive as transposed by section 37G(2) and because the Board

failed to ensure that before development consent was given the project was made subject

to an Environmental Impact Assessment that identified, described and assessed in an

appropriate manner the direct and indirect significant effects of the project on population

and human health (and in particular noise) including the impact of the development on

several adults and children known to suffer from sensory disturbances triggered by visual

and aural impacts including the dependant son of the Third Applicant and the decision was

made contrary to Article 5(1) and Annex IV as transposed by section 37E(1) of the Planning

and Development Act as amended, inter alia because the Board failed to ensure that the

Environmental Impact Assessment Report properly described the project and its likely effects

including the emission of noise, light, the creation of nuisances and the risks to human

health. Further particulars are set out in the grounds below.

7. The impugned decision is invalid because it was made contrary to Article 2(1) and

Article 3(1)(a) of the EIA Directive as transposed by section 37G(2) and because the Board

failed to ensure that before development consent was given, the proposed battery storage

facility and substation as part of the whole development were made subject to an

Environmental Impact Assessment properly or at all. Further particulars are set out in Part

2 below.

8. The impugned decision is invalid because it was made contrary to Article 5(1)(d) of

the EPA Directive as transposed by section 37E(1) of the Planning and Development Act as

amended, because the Board failed to ensure that the EIAR included a description of the

reasonable alternatives studied by the developer, which are relevant to the project and its

specific characteristics, and an indication of the main reasons for the option chosen, taking

into account the effects of the project on the environment, and erred in failing to ensure that

the developer supplied information in relation to the environmental impact of both the

chosen option and of all the main alternatives studied by the developer, together with the

reasons for the developer’s choice, taking into account at least the environmental effects,

even if such an alternative was rejected at an early stage. Case C‑461/17 Holohan. Further

particulars are set out in Part 2 below.

Validity Ground

8A. Article 214(1) of the Planning and Development Regulations 2001 as amended is

invalid because it does not require the planning applicant for a Strategic Infrastructure

Development to provide written consent from the owner of the land where the planning

applicant is not the owner. Further particulars are set out in Part 2 below.”

The impugned decision

45. The impugned decision provides as follows:

“Decision

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

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

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

out below.

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

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

Reasons and Considerations

In coming to its decision, the Board had regard to the following:

National planning, related policy and guidance, including:

• Project Ireland 2040 National Planning Framework,

• National policy including the Climate Action Plan 2023, with regard to the

development of alternative and indigenous energy sources and the minimisation of emissions

from greenhouse gases,

• the provisions of the Wind Energy Development Guidelines, Guidelines for Planning

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

in June 2006, and the Draft Wind Energy Guidelines published by the Department of Housing

Local Government and Heritage in December 2019.

Regional and local level policy, including:

• The Regional Spatial Economic Strategy for the Southern Region 2020,

• the policies of the planning authority as set out in the Carlow County Development

Plan 2022-2028 including the Wind Energy Strategy for County Carlow and Carlow County

Renewal Energy Strategy,

• the policies of the planning authority as set out in the Kilkenny County Development

Plan 2021-2027.

Other matters, including:

• The character of the landscape in the area and of the general vicinity,

• the distance to dwellings and other sensitive receptors from the proposed

development,

• the nature, scale and design of the proposed development as set out in the planning

application and the pattern of development in the vicinity,

• the likely consequences for the environment and the proper planning and sustainable

development of the area in which it is proposed to carry out the proposed development and

the likely significant effects of the proposed development on European Sites,

• the documentation submitted with the planning application, including the Natura

Impact Statement and the Environmental Impact Assessment Report and the further

information furnished to the Board,

• the submissions made to An Bord Pleanala in connection with the planning

application and the submissions made to the further information response,

• the report and recommendation of the Planning Inspector, including the

examination, analysis and evaluation undertaken in relation to appropriate assessment and

environmental impact assessment.

[EIA and AA]

Proper Planning and Sustainable Development:

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

development would be in accordance with the National Planning Framework, the Regional

Spatial and Economic Strategy for the Southern Region, 2020, in relation to wind energy,

would be in accordance with the totality of the relevant provisions of the Carlow County

Development Plan 2022-2028 and the Kilkenny County Development Plan 2021-2027 and

the Kilkenny County Development Plan 2014-2020, as they apply to the subject site, and

other related policies and guidelines, would not have an unacceptable impact on the

biodiversity of the area, would not seriously injure the visual amenities of the area including

property in the vicinity, would not adversely affect the archaeological or natural heritage of

the area and would be acceptable in terms of pedestrian and traffic safety.

Specifically, Appendix 2b (VI) 'Renewable Energy Strategy' of the Carlow County

Development Plan 2022-2028 refers. In this regard it is noted that while the portion of the

subject site within the jurisdiction of Carlow County is located within the uplands landscape

type and that objective WEP4 states that windfarm development will not normally be

permissible in this landscape type, the Board considered the totality of the overarching

provisions of the Carlow Development Plan 2022-2028. In particular it is noted that the

Killeshin Hills landscape character area (within which the Carlow portion of the subject site

is located) is determined as having moderate capacity to absorb wind farming. Furthermore,

the development plan states, 'in the Killeshin landscape character area, close to border with

County Kilkenny the wind speeds are favourable and there are no environmental

designations that preclude windfarm construction. However, the constraints mapping

suggests that it may be difficult to meet separation distances between wind turbines and

dwellings.'

The plans and particulars submitted with the application confirm that separation distances

between the proposed wind farm elements and dwellings are sufficient and in accordance

with proper planning and sustainable development principles in this regard. In this context

the Board was satisfied that the proposed development can be considered acceptable and

generally in compliance with the overall policies and objectives of the current Carlow County

Development Plan 2022-2028 as they relate to the windfarm development, including those

set out at Chapter 7 and the Renewable Energy Strategy of the Development Plan, such that

there is an allowance for the proposed development, within the meaning of objective WEP4

and all associated development plan policies and objectives. The subject site also falls in

part within the jurisdiction of Kilkenny County and from the information on the file, the Board

is satisfied that the proposed development is in accordance with the relevant provisions of

the Kilkenny Development Plan, which remain in place at this time, as provided for in section

31(6)(b) of the Planning and Development Act 2000, as amended, (noting Figure 10.2 Wind

Energy Strategy of the Kilkenny County 2014- 2020 development plan,).

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

sustainable development of the area.”

Some general considerations

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

under a number of headings as follows.

The eight-fold test for relief by way of judicial review

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

November 2025) and other cases (see also Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC

23), 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 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 does not militate against 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.

48. Before dealing with specific elements in detail, some general comments are worth noting at

this juncture:

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

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

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

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

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

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

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

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

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

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

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

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

26 September 2025) per Farrell J. at 11.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

case before him” De Blacam, Judicial Review, 2nd ed, p. 97. What O’Donnell C.J.

(Charleton and Woulfe JJ. concurring) has recently said of Article 42A is true of the

Constitution and law generally – it is not “an open-ended provision that requires

courts to substitute their judgment on social issues ... for that of the

Oireachtas” (G. v. Ireland [2025] IESC 49 (Unreported, Supreme Court, 26

November 2025) at 68). Nor is the equality guarantee to “become instead a more

general power to second guess legislative choices in difficult areas where the courts

have very limited insight. ” (at para. 86). He noted:

“In Re SC [2021] UKSC 26, [2022] AC 223, Lord Reed cautioned against an

expansive application of the equality guarantee contained in Article 14 ECHR

observing that, in effect, since legislation was the art of differentiation, any

legislation could be contested from the point of view of equality, and that a

broad and expansive application of the guarantee risked undue interference

with the sphere of political choice. I agree. Once it is established that a

classification is not arbitrary or capricious or based on prejudice or

stereotype, then this is an area where there is particular merit in the

observations of Chief Justice Stone that ‘[c]ourts are not the only agency of

government that must be assumed to have capacity to govern’ (United

States v Butler (1936) 297 US 1).”

(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 W.L.U.K. 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); Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court,

Farrell J., 30 December 2025) at 32.

(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, and this applies even if the wording is sub-optimal: Duffy v. An

Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December

2025) at 32.

(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. L.R. 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 W.L.U.K. 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 Mac Eochaidh 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.

The State (Toft) v. Galway Corporation [1981] ILRM 439, Pembroke Road

Association v. An Bord Pleanála [2022] IESC 20, [2022] 2 ILRM 417, 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.

Harmless or immaterial error

49. 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. Appropriate assessment 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).

(x) An error may be immaterial where, for example, the applicant’s own material is

capable of supporting the finding of the respondent: AAI Baneshane v. An Coimisiún

Pleanála [2025] IEHC 641 (Unreported, High Court, 21 November 2025).

Issue-specific standing

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

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

51. The general rule is:

(i) standing to bring the proceedings in the planning context requires sufficient interest

(s. 50A(3)(b) of the 2000 Act) normally involving having participated in the process,

or else that the applicant is an environmental NGO;

(ii) once an applicant has the required interest to bring the proceedings they are not

debarred from raising any point merely because they did not raise it in the process;

(iii) but that does not mean that an applicant can raise any point at all in the judicial

review, and they cannot argue for the rights of third parties or for rights that do not

arise on the particular facts;

(iv) nor does it mean that failure to raise a point is irrelevant; such failure is relevant to

(a) whether the decision is flawed when viewed through the lens of what was before

the decision-taker at the relevant time (b) the evaluation of whether any

contravention was material, or (c) the exercise of discretion.

52. As to ius tertii, it is settled law that an applicant can’t advance the rights of a third party.

Likewise an applicant can’t argue for a legal outcome of a hypothetical situation that doesn’t arise

on the facts – for example claiming a breach of fair procedures when they did in fact have an

opportunity to participate.

53. Even if an applicant has standing in some capacity to bring the proceedings, that doesn’t

translate into an entitlement to make any and every possible argument particularly where such an

argument is premised on the rights of some other person (such as an unidentified person who might

have been involved in public participation): Cahill v. Sutton [1980] I.R. 269 (O’Higgins C.J.) (Henchy

J., Griffin, Kenny and Parke JJ. concurring); Hellfire Massy Residents Association v. An Bord Pleanála

[2021] IEHC 424, [2021] 10 JIC 1302 (Unreported, High Court, 13 October 2021) at §54(i); Conway

v. Minister for Housing, Local Government & Heritage & Ors. [2024] IESC 34 (Unreported, Supreme

Court, 23 July 2024) per O’Donnell C.J. paras. 6-10, per Hogan J. paras. 11-14 (O'Donnell C.J.,

Dunne, Collins and Donnelly JJ. concurring).

54. As to discretion in that regard, the following view of Costello J. (Haughton and Murray JJ.

concurring) in Friends of the Irish Environment CLG v. Government of Ireland & Ors. [2021] IECA

317 (Unreported, Court of Appeal, 26 November 2021) (albeit under appeal) is relevant:

“275. The applicant made a submission on 10 November 2017, but it made no reference

to crucial issues which were central to the appeal. It did not object to the SEA Environmental

Report on the basis that it failed to assess the reasonable alternatives in a comparable

manner to the preferred option, though that was a major plank of its case on appeal, and it

did not assert that the NDP was required to be subject to AA and SEA on the grounds that it

was an integral part of the NPF, which was the key argument advanced to this court to quash

the NDP.

276. This approach was unfair to the respondents, at the very least, and inimical to good

decision making. One of the objectives of public consultation is to permit the public to

highlight defects in the process they believe have occurred before a final decision is taken

so that any such defects may be corrected and the risk of inadvertently reaching an invalid

decision thereby avoided. It is incumbent upon a party who chooses to participate in a

consultative process (as on one who files objections or observations in a planning process)

to raise any points at the earliest possible time in the process. This is conducive to good

administration and ought to reduce the number of legal challenges to administrative

decisions. This court cannot endorse a practice where a point is raised for the first time in

proceedings challenging a final decision which was not, but which could have been, raised

before a decision was reached.

277. This is precisely what occurred in this case and it was not appropriate, even where

the application for judicial review is brought within the time limits established in the Rules

of the Superior Courts. If the applicant wished to raise either of these points it had ample

opportunity to do so. The factual basis for the argument it advanced in these proceedings

was clear from the SEA Environmental Report. It has never suggested that it was not in a

position to argue these issues in its submission of November 2017, nor given any explanation

why this was not done. A party may not reserve or withhold submissions which could and

ought to be made during a public consultation prior to the adoption of a decision to the

hearing of a challenge to the validity of the decision. Such conduct may be relevant to the

exercise of the discretion of the court where an applicant succeeds in its argument but does

not arise for consideration in these proceedings.”

55. There may be issues of the exact scope of the doctrine at the margins which may arise in

an appropriate case, but a scenario whereby a party wishes to raise a problem that has already been

rectified comes squarely within such a doctrine.

Discretion

56. Some issues regarding discretion more generally that are established by the caselaw are as

follows:

(i) Judicial review is a discretionary remedy: per Charleton J. in Dun Laoghaire

Rathdown County Council v. Westwood Club Ltd [2019] IESC 43, [2020] 3 I.R. 417

at 10; per Murray J. (Whelan and Pilkington JJ. concurring) in O’Connell v. Behan

[2021] IECA 186 (Unreported, Court of Appeal, 1 July 2021) at 43. This historically

arose from the development of judicial review out of the power to grant equitable

relief.

(ii) In exercising that discretion however the court is not at large. Factors to be

considered as part of a holistic review of all relevant circumstances in deciding

whether to grant relief, and if so, what type of relief include the following (see Reid

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

Court, 24 January 2024) para. 134):

(a) “the action or inaction of the claimant (such as a failure to exhaust an

alternative remedy, delay, laches, waiver, acquiescence or misconduct in

connection with the proceedings)” (O’Connell v. Behan [2021] IECA 186

(Unreported, Court of Appeal, 1 July 2021) at 43) or the failure by the

applicant to make the point in the process: Costello J. in Friends of the

Irish Environment CLG v. Government of Ireland [2021] IECA 317

(Unreported, Court of Appeal, 26 November 2021) at 277.

(b) The importance of the provision not complied with – “consideration of

whether the matter concerned is one of importance or of triviality”: per

Finlay C.J. in G. v. DPP [1994] 1 I.R. 374 at p. 378 (emphasis added).

Thus an “inconsequential” breach was not a basis for the grant of relief

as a matter of discretion in Kenny v. Dublin City Council [2009] IESC 19

(Unreported, Supreme Court, 5 March 2005) at 79 per Fennelly J. (Macken

and Peart JJ. concurring).

(c) The extent of the non-compliance.

(d) Prejudice or the lack of it to the applicant or anyone else (see O’Connell v.

Behan [2021] IECA 186 at 43: “grounds relating to the impact a remedy

will have on others (such as where the grant of relief would represent an

unwarranted interference with the settled rights or expectations of third

parties)”).

(e) Whether the error was once-off.

(f) Whether the issue is purely historic and cannot reoccur.

(g) The level of deliberation involved in the error and the extent to which

reasonable steps were taken to prevent or identify such an error.

(h) Whether the error was rectified promptly when it came to light (if capable

of rectification).

(i) Whether there is a pattern of non-compliance.

(j) The proportionality of certiorari (as opposed for example to either no

order or declaratory relief only) may also be a factor: in Save Cork City

Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024]

1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ.

concurring) said (without needing to decide the point) that there was “a

great deal of force” in the submission that it would be disproportionate to

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

(k) Grounds relating to “the practical value of the remedy (such as mootness

or futility) (see Independent Newspapers (Ireland) Ltd v. IA [2020] IECA

19, [[2021] 1 I.R. 384] at para. 78)”: O’Connell v. Behan [2021] IECA 186

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

Pilkington JJ. concurring) at 43.

(l) “It is a long-standing principle of the law relating to judicial review that

the court asked to quash an administrative decision has a discretion to

refuse to do so if there is an alternative remedy available to put right the

wrong complained of in the proceedings.” per Dunne J., S. v. Minister for

Justice and Equality [2025] IESC 48 (Unreported, Supreme Court, 25

November 2025) at 98.

(m) Any other relevant circumstances.

(iii) Discretion can also apply by reference to the conduct of the applicant such as:

(a) unwarranted failure to prosecute the proceedings: Delaney v. An

Coimisiún Pleanála [2025] IEHC 621 (Unreported High Court, 13

November 2025); or

(b) failure to avail of procedures or remedies or in certain circumstances to

take other actions to protect their position: Baile Bhruachlain Teoranta v.

Galway County Council [2024] IEHC 604 (Unreported, High Court, 1

November 2024); Voyage Property v. Limerick City and County Council

[2025] IEHC 696 (Unreported, High Court, Holland J., 16 December 2025)

at 263-264.

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

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

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

(v) Discretion is a general concept and its application certainly includes infirmities in

planning application documents. Even if there was a breach of the regulations,

certiorari is not automatic: Byrnes v. Dublin City Council [2017] IEHC 19

(Unreported, High Court, Baker J., 18 January 2017); Pembroke Road Association

v. An Bord Pleanála [2021] IEHC 403 (Unreported, High Court, Owens J., 16 June

2021); Ballyboden Tidy Towns Group v. An Bord Pleanála [2023] IEHC 722

(Unreported, High Court, Holland J., 21 December 2023) (§102 et seq.); and Reilly

v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November

2025) (§81 et seq.).

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

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

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

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

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

party doesn’t plead that.

The issues in Module II

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

submissions in the meantime) were (a) the consequential effect of the amendment issue as reflected

in core ground 1 and (b) core ground 8A – validity of 2001 regulations.

Preliminary issues

58. The parties’ positions on preliminary issues as recorded in the statement of case are

summarised as follows:

“22. The State Respondents have pleaded a number of preliminary objections and their

position is as follows:

2024 / 120 JR

(a) Ireland and the Attorney General are not the proper respondents to Ground 8A.

While Ireland and the Attorney General would be the proper respondents to a ground

impugning a provision of primary law, they are not the proper respondents to a challenge

that is entirely directed towards Regulations made by the Minister. The Minister is not a

respondent to these proceedings. Ground 8A therefore cannot be sustained before the Court

on the basis of the Applicants’ pleadings as no relief can be granted against the Minister,

whether by way of a declaration or otherwise.

(b) Ground 8A is now moot and/or the Applicants no longer have sufficient interest to

move Ground 8A. The Applicants are not seeking an order of certiorari of the Amendment

Decision on the basis of Ground 6 and/or Ground 7 in the second proceedings. It follows

that there is no possibility of the outcome of Module 2 in the second proceedings leading to

the Amendment Decision being quashed. This clearly renders Ground 8A moot, due to the

absence of any live controversy between the parties. The Applicants appear to accept that

they are asking the Court to entertain a moot point in determining Ground 8A. Alternatively,

the attempt to move Ground 8A now has to be seen as akin to a situation where an applicant

does not have sufficient interest to bring an application for judicial review in the first place.

If the Applicants would not have had standing to challenge Article 214(1) on the ground

pleaded if no issue of a lack of landowner consent had been raised by the Original Decision

(and it is clear that they would have not), then they have ceased to have standing to make

that challenge now that the Amendment Decision has been upheld and the Applicants are

no longer contending that they are entitled to an order of certiorari of the Amendment

Decision. The Applicants have not identified any basis for the Court to exercise its discretion

to hear Ground 8A despite the hypothetical nature of the challenge

(c) Ground 8A is inadequately pleaded and lacks precision and clarity as to the case that

is being made, in breach of Order 84, rule 20(3) RSC. The Applicants plead that Article

214(1) of the 2001 Regulations is ‘invalid because it does not require the planning applicant

for a Strategic Infrastructure Development to provide written consent from the owner of the

land where the planning applicant is not the owner’ and seek a declaration that Article 214(1)

is ‘contrary to the Constitution’ but identify no provision of the Constitution in their pleadings

or their written submissions upon which the alleged invalidity is said to be grounded. To the

extent that the contention is being made that the absence of an express requirement in

Article 214(1) that an applicant submits written consent from any relevant landowners with

an application submitted pursuant to section 37E of the 2000 Act renders Article 214(1)

incompatible with the judgment of the Supreme Court in Frescati, this allegation remains

insufficiently particularised.

…

The Notice Party

The Notice Party agrees with the State’s position set out above.”

59. For reasons that will become apparent it is not necessary to decide any of these issues other

than in relation to standing, given that the substance of the original problem with the permission

has been rectified.

Core ground 1 – landowner consent

60. Core ground 1 is:

“1. The impugned decision is invalid and contrary to s.37E(2) of the Planning and

Development Act and fair procedures, because the Board having received from the developer

an application form in its own required format, failed to use its discretion to refuse to deal

with the application when it knew or ought to have known that the information provided by

the developer in section 7 of the application form wrongly implied that letters of consent to

make the application from the Second Applicant John Nolan of Coolcullen, Co. Kilkenny and

his father James Nolan of Coolcullen, Co. Kilkenny (the administrator of the estate of the

late Sean Nolan deceased), had been supplied to the Board with the planning application

when no such consent had been given, and the Notice Party had no standing to make a

planning application for development on the lands of John Nolan and the late Sean Nolan

(deceased). Further particulars are set out in Part 2 below.”

61. The parties’ positions as recorded in the statement of case on Module I are summarised as

follows:

“First proceedings: CORE GROUND 1

Applicants’ Position

1. The Board erred in granting planning permission to the Notice Party for development

of substantial infrastructure on the lands of John Nolan (the Second Applicant) and his

father/deceased uncle for the development of turbines T6 and T7 and ancillary works in

which the Notice Party Developer had no interest or title and had no standing to make such

an application.

2. The planning application was made by persons with no legal interest to do so and

was invalid ab initio and An Coimisiún knew or ought to have known this when it received

the application form without the accompanying letters of consent indicated thereon.

The Commission’s Position

3. Taking the Applicants’ case at its high point here, even if an absence of letters

consent goes to validity, that doesn’t oust judicial discretion. Insofar as the consent issue

relates to Turbines T6 and T7 any such issue is taken away by reference to the s.146B

Decision which removes any real live issue on this point and, in any event, certiorari would

be entirely disproportionate where, inter alia, permission alone cannot permit a trespass.

However, even assuming SID has a consent requirement and accepting the Application Form

sought those consents, there is nothing in law that says an absence of such consents in SID

necessarily goes to validity ab initio.

Notice Party Position

4. Landowner consent is neither expressly required by the 2000 Act or the PDR (as

seems to be accepted by the Applicant) or indirectly required through the application

process. Insofar as there is an implied requirement through the application of the principle

in Frescati Estates v Walker, the evidence provided by the Notice Party demonstrates that it

was acting in good faith and genuinely believed that it had the Applicants’ consent to make

the application. The application could not fairly be construed as a frivolous or vexatious

application. Furthermore, neither John Nolan nor James Nolan (who is not an Applicant in

the case and has not sworn an Affidavit) made a submission to the Commission to inform it

that lands had been included in the proposed development without their consent. Insofar

as the Applicants seem to suggest that the Commission should have been ‘on notice’ or

independently carried out its own enquiries, there is no authority to support this.

Furthermore, this point is, in any event, moot and/or academic in circumstances where the

two turbines have been moved from the Nolans’ land by way of the impugned section 146B

application and this issue no longer arises for resolution. Therefore, this ground can be

resolved on purely discretionary grounds without the need to definitely resolve whether SID

applications require landowner consent as a matter of land.”

62. By way of reminder, what I said about this ground in the No. 1 judgment was as follows:

“52. The opposing parties were happy to proceed on the assumption that the application

should have had the consent of the second named applicant.

53. Such an assumption would presumably be based on the theory that this follows

implicitly from the right to private property, barring any express or implied exception. That

would be consistent with the concept in Frescati Estates v. Walker [1975] I.R. 177 which

linked ‘vexatious and unnecessary’ applications to scenarios where there were intrusions

into property rights not warranted by the common good (p. 190). But the fact that an

application is not vexatious does not make it something in the interests of the common good

such that an application by a person with no relevant rights should be acceptable. Non-

vexatiousness is not the test. That was a decorative flourish consistent with Henchy J.’s

uniquely wordy style (imitation of which not being something one would encourage more

mortal hands to attempt – the Frescati case being a good example of why not, because a

literal reading could incorrectly give the impression of two different and inconsistent tests

being applied). To repeat, that was a stylistic expression before getting the main point –

the test is whether the intrusion into property rights is warranted by the common good,

which implies that the applicant for permission has or will have a legal right to conduct the

development. That in turn implies either consent of the owner or a statutory right or

prospective right which is intended to be exercised.

54. On such an assumption however, it does not follow that any breach of this principle

must automatically result in the invalidity of a permission, any more than breach of any

other legal principle must have that result. We can leave aside the doctrine of ius tertii

which may be relevant in other situations. One has to ask whether the breach has any real

impact on the rights of a given applicant.

55. Assuming that is the case here, what potentially saves the commission from

certiorari is the amendment of the decision (assuming that to be valid arising from the

second set of proceedings). If an otherwise invalid decision is taken but is then corrected

so as to become valid, it would be taking the metaphysics of invalidity way too far to hold

that the first decision must be quashed anyway. That doesn’t mean that discretion is

irrelevant, just that I don’t need to get into that unless or until the s. 146B amendment falls.

56. So the final disposition of this point can await the outcome of the s. 146B issue in

the No. II case.”

63. Given that the challenge to the amendment fails, as set out separately in the No. II case

Module II judgment, it follows from the No. 1 judgment in this case that the challenge to the decision

should be dismissed. In short, I agree there was a problem with the original decision, but law is not

so mechanical as to demand that it be quashed in full even though that problem has now been

corrected.

64. If I can be forgiven for a loose historical analogy, what this situation reminds me of

somewhat is the concern raised as to the constitutionality of certain provisions of the Income Tax

Bill 1966, which was raised by President de Valera when it was submitted for his signature. The

Oireachtas then immediately passed a separate bill, the Income Tax (Amendment) Bill 1967, to

remove the offending provisions (the background is explained by Minister Charles J. Haughey at

https://www.oireachtas.ie/en/debates/debate/dail/1967-03-07/40/). If the first piece of legislation

had been challenged, metaphysicians might claim it to be invalid but pragmatists would point out

that the problem had in fact been solved.

65. Practicality has to come into the picture at some stage – the principle of judicial restraint

enjoins a court not to rush into invalidating things in the absence of actual injury to somebody’s

rights or other objective interests, especially if there are more proportionate or more common sense

responses.

66. Here there is now no injury and hence no standing, or any injury is technical and de minimis,

or alternatively it is simply inappropriate to quash a decision on such a metaphysical basis. The

resolution of this problem by the amendment makes this an essentially technical or de minimis

problem which is not an appropriate basis for certiorari. Alternatively, the rectification of the problem

removes the breach of rights and thus the landowner applicant’s standing. Alternatively, the

reasonable exercise of discretion in such circumstances militates against relief. It all comes to the

same thing – certiorari in these circumstances would plainly be overkill.

Core ground 8A – validity of regulations

67. Core ground 8A is:

“8A. Article 214(1) of the Planning and Development Regulations 2001 as amended is

invalid because it does not require the planning applicant for a Strategic Infrastructure

Development to provide written consent from the owner of the land where the planning

applicant is not the owner. Further particulars are set out in Part 2 below.”

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

“Summary of Applicant’s Position –

1. Article 214(1) of the Planning and Development Regulations 2001 as amended is

invalid because it does not require the planning applicant for a Strategic Infrastructure

Development to provide written consent from the owner of the land where the planning

applicant is not the owner.

2. The Planning and Development Act, 2000 does not treat all landowners equally.

Most development under the Act (i.e. development for which consent must be sought under

s.34) requires the consent of the landowner to make a planning application on the lands.

Pursuant to s.34(1), the planning authority (and the Board on appeal) may decide to grant

planning permission where an application is made to it in accordance with permission

regulations, and where all requirements of the regulations are complied with. In such cases

therefore, the decision maker’s jurisdiction is dependent on compliance with the planning

regulations, including art. 22(2)(g)(i) (g) which provides that where the applicant is not the

legal owner of the land or structure concerned, the planning application must be

accompanied by the written consent of the owner to make the application.

3. But when it comes to an application for consent for Strategic Infrastructure

Development pursuant to section 37G of the Planning and Development Act 2000, there is

no equivalent obligation to provide evidence of landowner consent in a planning application

to ensure compliance with reg.214(1). The Applicants plead that this omission from the

legislative regime for Strategic Infrastructure Development is contrary to the ‘interest’ test

set out by the Supreme Court in Frescati Estates and Walker [1975] IR 177 and as applied

recently by the High Court in Pembroke Road Association v An Bord Pleanála [2021] IEHC

403. This omission could be corrected by the Minister inserting a line in reg.214(1) to

mandate the submission of letters of consent from landowners with the other information

mandated to accompany a SID application.

State Position –

4. The Court does not, within the confines of ruling on Ground 8A, need to determine

the extent to which, as the Applicants contend, Frescati and/or some provision in the

Constitution creates an obligation that binds the Commission in circumstances where there

is no provision in the 2001 Regulations expressly requiring a developer to provide landowner

consent as part of an application for permission. The Applicants’ case in respect of Article

214(1) fails regardless of whether the Applicants are correct that Frescati prohibits the

Commission from granting permission in the absence of landowner consent.

5. If there is an obligation placed on the Commission to require written consent from a

landowner before granting permission pursuant to section 37G, on the basis of the judgment

in Frescati and/or pursuant to an unspecified provision in the Constitution, there is no basis

for any assertion that such a requirement must be included in a statutory instrument. The

Commission, as a public body, is under an obligation to exercise its statutory functions in a

manner that does not infringe the Constitution. The Court should adopt a reading of both

Article 214(1) and sections 37E and 37G of the 2000 Act that is consistent with the

requirements of the Constitution, where such a reading is available. Article 214(1) benefits

from a presumption of validity. Legal provisions and obligations should be given a workable,

sensible interpretation where this is at all possible. The workable sensible interpretation of

Article 214(1) is that it does not absolve the Commission of any obligation to require

landowner consent where it arises. Even if the Court were to take the view that Article

214(1) cannot be read as implying that the Commission will comply with its constitutional

obligations in relation to landowner consent (such as they arise), it nonetheless remains the

case that this any vacuum cannot be a basis for a finding of invalidity in respect of Article

214(1). The Applicants fail to identify any legal basis for the contention that there is a

requirement for such a constitutional obligation to be included in a statutory instrument, still

less in a particular statutory instrument and/or that a failure to include a requirement to

submit documentation relating to landowner consent in Article 214(1) is a basis for a

declaration of invalidity in relation to that provision in particular.

6. If there is no obligation on the Commission to be satisfied that some form of consent

from the relevant landowners has been obtained by the developer on the basis of the

judgment in Frescati, then it is equally clear that no invalidity can be alleged as regards

Article 214(1). Landowner consent is not the only basis upon which sufficient legal interest

can be established. Further, section 37H(6) of the 2000 Act provides that ‘A person shall

not be entitled solely by reason of a permission under section 37G to carry out any

development’. Planning permission is a necessary condition but may not be sufficient for a

developer to proceed lawfully. Therefore, it cannot be argued that the statutory scheme as

a whole allows a strategic infrastructure development to proceed in breach of any provision

of law, including any constitutionally protected rights.

Commission Position -

7. This is a case for the State. However, it is obvious that the Article 214 point is bound

up with the points made about landowner consent. The Applicant says Article 214 is

unconstitutional because it doesn’t have a landowner consent requirement. There are 5

points to make:

a. The Commission did not defend its Decision by contending there was no landowner

consent requirement. Paragraph 56 of the High Court Judgment in Rural Residents (I)

[2025] IEHC 600 records this clearly. There ought to be little scope for a constitutional

challenge where the alleged defect has not been prayed in aid contra the interests of the

challenger.

b. Paragraph 59-60 in Rural Residents (I) shows the High Court concluding that the

resolution of the landowner consent point depended on the outcome of Rural Residents (II).

That did not go in the Applicant’s favour. The ultimate point, in short, is that consent defects

were remedied by the s.146B Decision. There ought to be even less scope for a

constitutional challenge where the alleged defect has been found (or should be found), in

effect, to be insubstantial in light of the s.146B Decision.

c. Another way, perhaps, to describe the position is as being moot.

d. Perhaps this repeats the three points above, but the Applicants didn’t lose their case

because of Article 214 and insofar as the principle of judicial self-restraint has continued

vitality, it is particularly important where the underlying matrix of a challenge has fallen

away.

e. Insofar as the case is now about a temporal alleged impairment of rights, it might

be recalled that Mr. Nolan had every opportunity to participate in the process and explain

the position he now relies on, but he didn’t.

Notice Party Position

8. This point is clearly moot in circumstances where the permitted Wind Farm

(consequent on the s.146 decision to allow an alteration of the original grant of permission)

does not propose any turbines on the lands of the Second Applicant, Mr. Nolan.

Consequently, there is no impairment of Mr Nolan’s rights (which now appears to be limited

to a claim of temporal infringement of rights) and, consistent with the principle of judicial

restraint, the Court should decline to decide it. Insofar as the Applicants claim that Article

214(1) of the Planning and Development Regulations 2001 (‘PDR’) as amended is invalid,

they have not identified how it is said to be invalid by reference to any Constitutional

provision but base this claim on what is described as an ‘omission’. However, the Court

already determined in Module I that the landowner consent issue could be determined on

the assumption that the application should have had the consent of the Second Applicant

(noting that this follows implicitly from the right to private property) and did not decide the

issue on the basis that the text in Article 214 of the PDR excluded a requirement to obtain

landowner consent. Therefore, the premise of this plea does not arise and is hypothetical

given how the Court treated of the issue (which is also consistent with what the Supreme

Court said in Callaghan v An Bord Pleanála [2018] IESC 39) and therefore does not require

to be determined. Finally, and relevant to the Court’s discretion, the Second Applicant

conspicuously failed to make a submission or raise any issue before the Commission and

should not be entitled to pursue any complaints in respect of Core Ground 8A.”

69. In fact I do not need to elaborate on this further because in the oral submissions at the

hearing the applicants sensibly withdrew this ground. It is clearly without substance in any event

for reasons that follow from the earlier discussion. The regulations are not invalid by reason of a

lack of an express requirement for landowner consent because more generally, legislation is not

invalid for not expressly requiring that it can’t be operated contrary to rights – that is implicit. The

need for one or other of (a) landowner consent or (b) the availability or prospective availability of a

statutory power to act without such consent, prior to a valid planning application, follows from the

right to private property. Legislation does not need to spell out that it can only be exercised in a

constitutional manner and is not invalid merely because it doesn’t do so. This goes back to East

Donegal Co-Operative Livestock Mart Ltd v. Attorney General [1970] I.R. 317, 104 I.L.T.R. 81.

Summary

70. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that the specific point must be one that the applicant has standing

to make;

(ii) applying such law to the facts here, the ephemeral breach of landowner’s rights has

been rectified so there is no material breach (other than a historical and technical

one) capable of affording continuing standing to obtain certiorari;

(iii) it is settled law that any error must transcend the harmless, the de minimis, the

non-material and the purely technical lacking real-world consequences;

(iv) applying such law to the facts here, the fact that the error has been rectified makes

any problem harmless, historical, technical and de minimis;

(v) it is settled law that judicial review is a discretionary remedy; and

(vi) applying such law to the facts here, the fact that the problem has been rectified

disposes the court to exercise discretion against quashing the decision.

71. By way of a ground-by-ground summary of the disposition of the matter:

(i) core ground 1 – dismissed in the No. 1 judgment, subject to the question of whether

the s. 146B decision survives the No. II proceedings – following the failure of that

point now, this core ground is dismissed in this judgment;

(ii) core ground 2 – dismissed in No. 1 judgment;

(iii) core ground 3 – withdrawn by the applicants prior to Module I (confirmed in oral

submissions on 30 September 2025);

(iv) core ground 4 – dismissed in No. 1 judgment;

(v) core ground 5 – dismissed in No. 1 judgment;

(vi) core ground 6 – dismissed in No. 1 judgment;

(vii) core ground 7 – dismissed in No. 1 judgment;

(viii) core ground 8 – dismissed in No. 1 judgment; and

(ix) core ground 8A – validity of 2001 regulations – withdrawn by applicants in oral

submissions but in any event lacking foundation as set out in this judgment.

Order

72. For the foregoing reasons, it is ordered that:

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by the time and in the manner set out below, the

foregoing order be perfected forthwith thereafter on the basis of no order as to costs

(including no order as to the costs of any previous module or application in the

proceedings having regard inter alia to O. 103 r. 38(1)(b) and/or (c) RSC, or any

reserved or adjourned costs not otherwise dealt with);

(iii) the foregoing proposed orders as to costs, directions or the form of the order be

subject to contrary written legal submission prior to 13:00 on Friday 20 March 2026,

with replies by other parties within 7 days;

(iv) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in this judgment may be addressed pursuant to O. 103

r. 40(4) RSC; and

(v) the matter be listed on Monday 23 March 2026 to confirm the foregoing.