High Court dismisses certiorari against wind farm consent, allowing declaratory relief proceedings on EU bird directive obligations.

[2026] IEHC 136

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0001380]

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, THE ATTORNEY GENERAL AND THE MINISTER FOR

HOUSING, LOCAL GOVERNMENT AND HERITAGE

RESPONDENTS

AND

WHITE HILL WIND LIMITED

NOTICE PARTY

(II)

(No. 2)

Date of impugned decision: 10 September 2024

Date proceedings commenced: 4 November 2024

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

Date of main hearing of Module II: 13 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. The applicants raise questions about the extent of obligations under Directive 2009/147/EC

of the European Parliament and of the Council of 30 November 2009 on the conservation of wild

birds (the birds directive) and Council Directive 92/43/EEC of 21 May 1992 on the conservation of

natural habitats and of wild fauna and flora (the habitats directive) when setting conservation

objectives for European sites. Those questions can’t however affect the validity of the development

consent here, having regard to the conclusion based on the evidence of the notice party as to a lack

of impact of the project on the relevant species. The primary question now is the extent to which

such issues warrant consideration in the context of a claim for declaratory relief.

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), proceedings challenging the parent

permission 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), these proceedings which challenge

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

Geographical context

4. The project (https://www.pleanala.ie/en-ie/case/319903) consists of proposed amendments

to the previously authorised White Hill Wind Farm (ABP-315365-22) to alter the location of two wind

turbines located at Ridge, Knocknabranagh and Knockbaun, Baunreagh, and Agharue, Co. Carlow

and Coolcullen, Cloneen and Coan East, Co. Kilkenny.

Facts

5. On 7 June 2024, the notice party made a request to the first named respondent, pursuant

to s. 146B of the 2000 Act, to alter the terms of the grant of permission for the proposed wind farm

development granted permission by the first named respondent on 21 November 2023 (ABP-

315365-22). The proposed alterations to permitted strategic infrastructure development (SID) in

essence related to the relocation of two of the permitted turbines (T6 and T7) from their permitted

locations to new locations by reason of the withdrawal of involvement by two landowners from the

permitted wind farm project (in circumstances where turbines T6 and T7 were permitted within those

landholdings). More particularly, the proposed alterations consisted of the following:

(i) relocation of turbine T6 – c. 170 m to the southwest of its permitted position;

(ii) relocation of turbine T7 – c. 220 m to the south of its permitted position;

(iii) alteration of the location on ancillary wind turbine infrastructure including

foundations and crane hardstanding;

(iv) alteration of the alignment of access tracks and underground electricity and

communications cabling associated with turbines T6 and T7; and

(v) undertaking all associated ancillary site development works related to the above

alterations including excavations and groundworks, drainage infrastructure, felling

of existing commercial forestry plantation, watercourse crossing, landscaping and

site reinstatement.

6. The notice party’s s. 146B request was accompanied by the following supporting

documentation: a planning statement, environmental impact assessment (EIA) screening - Schedule

7A information, addendum to appropriate assessment (AA) screening and Natura impact statement

(NIS), environmental report and associated annexes (Annex 1 to Annex 10), and certain drawings,

plans and particulars.

7. Mr Peter Sweetman attempted to make an unsolicited third-party submission on the s. 146B

request. That submission was treated as invalid by the first named respondent, and this was

communicated to Mr Sweetman by the first named respondent by letter dated 19 July 2024.

8. The commission appointed an inspector to prepare a report in relation to the notice party’s

s. 146B request and this was done. The inspector’s report, dated 13 August 2024, records on p. 1

that the inspector carried out a site inspection on 25 July 2024.

9. The commission decided, in accordance with s. 146B(2)(b) of the 2000 Act, not to invite

submissions or observations in relation to whether the proposed alterations would constitute the

making of a material alteration to the terms of the development concerned.

10. The first named respondent’s meeting record (ABP-319903-24) records, inter alia, that the

commission met on 4 September 2024 in relation to the s. 146B request at issue.

11. By order dated 10 September 2024, bearing reference ABP-319903-24, the commission

determined that the proposed alterations would not result in a material alteration of the terms of

the development, the subject of the permission and, in accordance with s. 146B(3)(a) of the 2000

Act, made the said alterations. The decision of the commission is impugned in the second

proceedings.

Procedural history

12. The proceedings were filed on 4 November 2024. The No. II case was first mentioned to

the court on 11 November 2024. Leave was granted subject to an amended statement of grounds

to be filed.

13. While there was some shifting of position on whether ground E6 against the State should be

modularised it was eventually decided that this ground would be modularised – ultimately the fact

that there wasn’t time before the hearing to allow a full joinder of issue on this and the fact that

certain matters were being modularised anyway, and having regard to the applicants’ preferences

as expressed on their behalf.

14. Module I was heard on 30 September and 1 October 2025 in tandem with Rural Residents

I. 15. The matter was then listed for mention on 23 October 2025.

16. Judgment in Module I was delivered on 6 November 2025.

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

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

the applicants were to be filed by close on business on the same date with consequential extensions

to be agreed.

19. Module II (both cases together) was heard on 13 February 2026.

20. 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.

21. 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.

22. 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.

23. 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).

24. 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.

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

The notice party helpfully suggested some typographical changes. The State requested an amended

timetable for consequential submissions.

Relief sought

26. The reliefs sought are as follows:

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

(’the impugned decision’) of the First Respondent (‘the Board’) of on or about 10 September

2024 (file PM01.319903), pursuant to section 146B of the Planning and Development Act

2000, as amended, to grant permission to the Notice Party (‘White Hill Wind Limited’), in the

absence of public participation, for proposed amendments to the previously authorised White

Hill Wind Farm (ABP-315365-22 ‘the parent permission’) to alter the location of turbines T6

and T7, being of 2 no. of the 7 no. number previously authorised wind turbines, and also to

fell some 3.4 hectares (8.4 acres) of forestry, and to alter the location of associated

development including foundations and crane hard stands and site roads, to alter the

previously permitted location of a bridge crossing over the Coolcullen River and a second

bridge crossing over a tributary of same, in the townland of Knocknabranagh and

Knockbaun, in Co. Carlow and the townland of Coolcullen in 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. A Declaration that the Fourth Respondent erred and acted contrary to reg 24 of S.I.

No. 477/2011 - European Communities (Birds and Natural Habitats) Regulations 2011 by

failing to establish the necessary conservation measures involving, if need be, appropriate

management plans specifically designed for the Gray Heron and the Mallard in the River

Nore SPA and the Golden Plover in the River Barrow and River Nore SAC, integrated into

other development plans and appropriate statutory, administrative, or contractual measures

which correspond with the ecological requirements of those species that ought to be subject

to the conservation objectives of the site, and the Fourth Respondent erred and acted

contrary to reg. 26 by failing to exercise their functions relating to nature conservation so

as to secure compliance with the requirements of the Habitats Directive and Birds Directive

by establishing conservation objectives and measures for the Gray Heron and Mallard on the

River Nore SPA and the Golden Plover in the River Barrow and River Nore SAC and acted

contrary to reg. 7(b) by failing to identify additional species referred to in Article 4(1) and

4(2) of the Birds Directive for inclusion in the conservation objectives of the sites, when they

knew or ought to have known that Gray Heron and the Mallard and the Golden Plover were

present in such numbers on such sites to require specific protections.

4. A Declaration that section 146B of the Planning and Development Act, 2000, as

amended, is invalid because the Second and Third Respondents have failed to ensure that

the public participatory rights therein are in every case triggered by an Appropriate

Assessment under Article 6 (3) of the Habitats Directive, read in the light of article 47 of the

Charter of Fundamental Rights and/or the obligations under Article 6 of the Aarhus

Convention for the public to be informed, either by public notice or individually as

appropriate, early in an environmental decision-making procedure, and in an adequate,

timely and effective manner when all options are open and effective public participation can

take place.

5. 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.

6. Further and other orders including interim orders.

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

Grounds of challenge

27. The core grounds of challenge are as follows. Core ground 2 was withdrawn.

“Domestic Law Core Grounds

1. The impugned decision is invalid and contrary to s.146B(1) of the Planning and

Development Act, 2000, as amended, because the Board strayed beyond its jurisdiction to

alter the terms of the development the subject of a planning permission when it purported

to alter the very development for which the planning permission had been granted; and or

the decision is invalid and contrary to s.146B(2) because the Board erred in deciding that

the making of the alteration to which the request relates would not constitute the making of

a material alteration of the terms of the development concerned. Further particulars are set

out in Part 2 below.

2. 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 what in effect was a planning application to construct two new wind turbines and

ancillary development and to cut down and remove 3.4 hectares of forestry in order to

construct the new development, when it knew that no notice had been served under section

37B(4)(a) in respect of the proposed development, ought to have advised the developer to

apply for planning permission in the normal way and to make public notification. Further

particulars are set out in Part 2 below.

3. The impugned decision is invalid and contrary to s.28(2) of the Planning and

Development Act 2000, as amended because the Board failed to have regard to the

provisions of the Wind Energy Development Guidelines 2006 that concern the degree of

flexibility generally allowable for the siting of wind turbines and ought to have had regard to

the s.28 guideline that the extent to which a turbine should be moved before a new planning

application is necessary should not generally extend beyond 20 metres, when deciding if

the proposed amendment was material. Further particulars are set out in Part 2 below.

4. The First Respondent has erred in law and acted contrary to fair procedures by

creating an apprehension of objective bias or by allowing a situation to arise which could be

perceived by a rational observer to be biased. Further particulars are set out in Part 2 below.

EU Law Grounds

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

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

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

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

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

CJEU by:

• failing to carry out an Appropriate Assessment without lacunae and which

contains complete, precise and definitive findings and conclusions capable of

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

the conservation of the Otter in the river Barrow and River Nore SAC and the

Kingfisher in the River Nore SPA and failing to allow public participation for same;

and

• failing to carry out an Appropriate Assessment screening, properly or at all,

to assess, in view of best scientific knowledge, if the proposed development of 2

turbines, individually or in combination with another plan or project is likely to have

a significant effect on the Otter in the river Barrow and River Nore SAC and the

Kingfisher in the River Nore SPA; and

• failing to carry out an Appropriate Assessment Screening for other species

of birds which must be protected under Article 4 of the Birds Directive and which are

present in a significant manner in the River Nore SPA, namely the Mallard (Anas

platyrhynchos) and the Gray Heron (Ardea cinerea) even though that site was not

designated as an SPA for those other species, and this was contrary to Article 6(3)

of the Habitats Directive, read in the light of Article 4 of the Birds Directive; Further

particulars are set out in Part 2 below.

5A. The impugned decision is invalid because it contravenes the EIA Directive by failing

Failing to carry out any or any proper screening assessment or preliminary examination in

respect of the significant alterations to the proposed development and failing to record and

make available any such screening assessment in accordance with Article 4(5) of the EIA

Directive and in particular 4(5)(b) thereof in failing to state the main reasons for not

requiring such assessment with reference to the relevant criteria listed in Annex III, and/or

state any features of the project and/or measures envisaged to avoid or prevent what might

otherwise have been significant adverse effects on the environment

6. Without prejudice to any ground pleaded against the Board, the Fourth Respondent

erred and acted contrary to reg 24 of S.I. No. 477/2011 - European Communities (Birds and

Natural Habitats) Regulations 2011 by failing to establish the necessary conservation

measures involving, if need be, appropriate management plans specifically designed for the

Gray Heron and the Mallard in the River Nore SPA and the Golden Plover in the River Barrow

and River Nore SAC, integrated into other development plans and appropriate statutory,

administrative, or contractual measures which correspond with the ecological requirements

of those species that ought to be subject to the conservation objectives of the site, and the

Fourth Respondent erred and acted contrary to reg. 26 by failing to exercise their functions

relating to nature conservation so as to secure compliance with the requirements of the

Habitats Directive and Birds Directive by establishing conservation objectives and measures

for the Gray Heron and Mallard on the River Nore SPA and the Golden Plover in the River

Barrow and River Nore SAC and acted contrary to reg. 7(b) by failing to identify additional

species referred to in Article 4(1) and 4(2) of the Birds Directive for inclusion in the

conservation objectives of the sites, when they knew or ought to have known that Gray

Heron and the Mallard and the Golden Plover were present in such numbers on such sites to

require specific protections. Further particulars are set out in Part 2 below.

Invalidity Ground

7. Without prejudice to any ground pleaded against the Board, section 146B of the

Planning and Development Act, 2000, as amended, is invalid because the Second and Third

Respondents have failed to ensure that the public participatory rights therein are triggered

in every case by an Appropriate Assessment under Article 6 (3) of the Habitats Directive,

and Article 11 EIA, read in the light of article 47 of the Charter of Fundamental Rights and/or

the obligations under Article 6 of the Aarhus Convention for the public to be informed, either

by public notice or individually as appropriate, early in an environmental decision-making

procedure, and in an adequate, timely and effective manner when all options are open and

effective public participation can take place. Further particulars are set out in Part 2 below.”

The impugned decision

28. The impugned decision provides as follows:

“REQUEST received by An Bord Pleanala on the 7th day of June, 2024 from White Hill Wind

Limited care of Galetech Energy Services of Clondargan, Stradone, Cavan under section

146B of the Planning and Development Act, 2000, as amended, to alter the terms of a

strategic infrastructure development described as the White Hill Wind Farm comprising seven

turbines and all associated works, all at Ridge, Knocknabranagh and Knockbaun, Baunreagh,

and Agharue, County Carlow and Coolcullen, Cloneen and Coan East, County Kilkenny, the

subject of a permission under An Bord Pleanala Reference Number ABP-315365-22.

WHEREAS the Board made a decision to grant permission subject to conditions for the above-

mentioned development by Order dated the 21st day of November, 2023,

AND WHEREAS the Board has received a request to alter the terms of the development, the

subject of the permission,

AND WHEREAS the proposed alterations are described as follows:

(a) Alter the location of turbine T6 by circa 170 metres to the south-west of its permitted

position;

(b) Alter the location of turbine T7 by circa 220 metres to the south of its permitted position;

(c) Alter the location of ancillary wind turbine infrastructure including foundations and crane

hardstanding;

(d) Alter the alignment of access tracks and underground electricity and communications

cabling associated with turbines T6 and T7, and

(e) Undertake all associated ancillary site development works related to the above

alterations including excavations and groundworks, drainage infrastructure, felling of

existing commercial forestry plantation, watercourse crossing, landscaping and site

reinstatement.

AND WHEREAS the Board decided, in accordance with section 146B(2)(b) of the Planning

and Development Act 2000, as amended, not to invite submissions or observations in

relation to whether the proposed alterations would constitute the making of a material

alteration to the terms of the development concerned,

AND WHEREAS the Board decided, in accordance with section 146[B](2)(a) of the Planning

and Development Act 2000, as amended, that the proposed alterations would not result in

a material alteration of the terms of the development, the subject of the permission,

AND WHEREAS having considered all of the documents on file and the Inspector's report,

the Board considered that the making of the proposed alteration would not be likely to have

significant effects on the environment or on any European Site,

NOW THEREFORE in accordance with section 146B(3)(a) of the Planning and Development

Act, 2000, as amended, the Board herby alters the above-mentioned decision so that the

permitted development shall be altered in accordance with the plans and particulars received

by An Bord Pleanala on the 7th day of June, 2024, for the reasons and considerations set

out below.

REASONS AND CONSIDERATIONS

Having regard to:

(i) the nature and scale of the wind farm development permitted under An Bord Pleanala

Reference Number ABP-315365-22 for this site, which includes seven turbines and all

associated infrastructure and works;

(ii) the examination of the environmental impact, including in relation to European Sites,

carried out in the course of that application;

(iii) the limited nature and scale of the alterations when considered in relation to the overall

permitted development;

(iv) the absence of any significant new or additional environmental concerns (including in

relation to European Sites) arising as a result of the proposed alterations, and

(v) the report of the Board's Inspector, which is adopted,

it is considered that the proposed alterations would not be material. In accordance with

section 146B(3)(a) of the Planning and Development Act 2000, as amended, the Board

hereby makes the said alterations.”

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

29. 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.

30. 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 MacEochaidh J.

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

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

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

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

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

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

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

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

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

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

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

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.

Pleadings

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

in previous caselaw include the following:

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

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

2501; Khashaba v. Medical Council [2016] IESC 10, [2016] 3 JIC 0701, 2016 WJSC-

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

v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42,

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

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

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

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

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

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

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

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

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

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

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

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

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

High Court, 24 January 2024).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

repetition”.

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

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

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

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

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

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

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

on are expressly enumerated if they are implicitly identifiable with acceptable

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

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

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

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

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

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

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

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

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

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

accept the point made by the applicant without first addressing the

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

objection if it fails either way.

Onus of proof

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

previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J. at 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

not.

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

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

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

circumstances requiring a decision-taker to consider any other autonomous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

19 September 2025) at 55; Oxigen v. An Coimisiún Pleanála [2025] IEHC 632

(Unreported, High Court, 19 November 2025) (for example, in relation to proving

that a decision-taker lacks expertise). Thus, apart from (i) failure to consider

something that the decision-taker was autonomously required to consider, (ii) patent

flaw on the face of the materials, or (iii) other legal error, inadequate consideration

or failure to dispel scientific doubt has to be established by admissible evidence

(normally expert evidence) in the judicial review showing either that reasonable

doubt was created by the material before the decision-taker at the time (albeit not

limited to what was adduced by the applicant specifically), or that such material

even if uncontradicted would on its face have created doubt in the mind of a

reasonable expert: An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021]

7 JIC 0205 (Unreported, High Court, 2 July 2021) at §7 and §8; Carrownagowan

Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20

May 2024) at §191(v), leave to appeal refused: Carrownagowan Concern Group v.

An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January

2025); Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7

October 2024) at §105; Roache v. An Bord Pleanála [2024] IEHC 311 (Unreported,

High Court, Phelan J., 21 May 2024) at §117; Kennedy v. An Bord Pleanála [2024]

IEHC 570 (Unreported, High Court, 7 October 2024) at 73; Ryanair DAC v. An Bord

Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February 2025) at §64 et seq.;

analogously, Donegal County Council v. Planree [2024] IECA 300 (Unreported, Court

of Appeal, Butler J., 18 December 2024), para. 141; Massey v. An Bord Pleanála

(No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025). As noted in Nagle

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

Court, 1 November 2024), summarised in the non-precedential determination

refusing leave to appeal [2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10

March 2025) at para. 8, “the critical point was that scientific and factual

shortcomings in EIA or indeed in an Appropriate Assessment, must be established

by the applicant who bore the burden of proof”. Similarly, leave to appeal was

refused in Eco Advocacy v. An Bord Pleanála [2025] IESCDET 74 (Dunne, Hogan and

Donnelly JJ., 4 June 2025) where “The applicant’s claim failed for the reason that

the High Court accepted that the respondent had come to a lawful conclusion of no

doubt that an appropriate assessment was not needed and that the respondent had

given reasons for that conclusion. On the judicial review the applicant had not

displaced that conclusion by way of evidence” (para. 25). That is consistent with

the general law: O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023]

2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin,

O’Malley, Baker and Murray JJ. concurring). The Supreme Court determination in

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

Collins JJ., 1 July 2025) is to the same effect: “17. As [the trial judge] pointed out

(at para. 196) the Court of Justice ruled in Case C-721/22 Eco Advocacy CLG

(EU:C:2023:477) the Board simply provides ‘reasons sufficient to explain that the

decision does not create reasonable scientific doubt as to impact on European sites.’

This was simply the test which [the trial judge] applied in the present case. He

concluded (at para. 230) that the Board had addressed the issue of potential bird

movements of water birds and hen harriers and ‘gives reasons for that conclusion

which the applicants have not displaced evidentially.’ 18. The Court considers that

this second issue involves the application of standard principles and does not meet

the constitutional criteria”. See also Eco Advocacy CLG v. An Bord Pleanála &

Statkraft [2025] IEHC 15 (Unreported, High Court, 15 January 2025) at §95;

Concerned Residents of Coolkill v. An Bord Pleanála & Midsal Homes [2025] IEHC

265 (Unreported, High Court, Holland J., 19 May 2025) at 309.

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

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

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

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

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

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

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

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

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

at §40-§41.

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

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

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

inadmissible on standard evidential principles insofar as matters of opinion are

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

Court, 11 April 2025).

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

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

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

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

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

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

conflict will be resolved against the opposing party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harmless or immaterial error

33. 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).

Challenges to validity of general measures

34. Legislation is not invalid if it can be read conformingly (as long as this is available and not

contra legem). This applies to an interpretation conforming to the Constitution (East Donegal Co-

Operative Livestock Mart Ltd v. Attorney General [1970] I.R. 317, [1970] I.R. 317 (Digest), 104

I.L.T.R. 81), the ECHR (European Convention on Human Rights Act 2003, s. 2(1)) and EU law (the

judgment of 13 November 1990, Marleasing SA v La Comercial Internacional de Alimentacion SA,

C-106/89, ECLI:EU:C:1990:395). It follows from the need for an EU-law conforming interpretation

that the interpretation of transposing legislation must have regard to the meaning of the EU law

instrument being transposed, and in particular that terms should be given the same meaning, a

principle reflected in numerous legislative texts including the Planning and Development Act 2000,

s. 2(8).

35. “[W]here a case consists of a direct challenge to the validity of a piece of primary legislation

enacted by the Oireachtas and entitled therefore to a presumption of constitutionality, such a claim

should be brought by way of plenary proceedings” per O’Donnell C.J. in G. v. Ireland [2025] IESC

49 (Unreported, Supreme Court, 26 November 2025) at 22. However a challenge to an

administrative decision accompanied by a challenge to the underlying legislation may be brought by

judicial review – para. 23.

36. In the absence of a timely challenge to a specific decision (or a properly pleaded challenge

to a failure to apply a remedial obligation which was sought to be activated), an applicant is not

entitled to challenge the underlying legislation because this would be impermissibly abstract and/or

because an applicant doesn’t have locus standi in the absence of a valid concrete complaint (see

e.g. Morris v. Ireland [2022] IEHC 472, [2022] 7 JIC 2703 (Unreported, High Court, Barr J., 27 July

2022)).

37. I noted this point in McGreal v. Minister for Housing, Local Government and Heritage of

Ireland [2024] IEHC 690 (Unreported, High Court, 6 December 2024) at §49: “[i]f an applicant is

out of time for a challenge to an individual decision, she doesn’t have standing to challenge the

enactment or measure in the abstract merely because there was an unchallenged individual decision

previously”.

38. This is sometimes misunderstood by applicants in the prospective appeal context – an

applicant can’t successfully appeal a finding as to the validity of legislation if they have had a

challenge to an actual decision definitively dismissed. They don’t have standing in such a situation

because the constitutional issue would be presented in a procedural context that doesn’t involve the

prospect of a specific decision affecting the applicant being quashed. That is judicial restraint in

action – an appeal from a decision that legislation is constitutionally valid, say, brought in a manner

that is detached from any complaint as to the validity of a decision under the legislation, doesn’t

arise as the putative appellant lacks locus standi to pursue such a procedurally abstract challenge.

To put the matter another way – and this is the way the Supreme Court put it in Nawaz v. Minister

for Justice, Equality and Law Reform [2012] IESC 58, [2013] 1 I.R. 142 (Clarke J.) (Fennelly,

O’Donnell, McKechnie, MacMenamin JJ. concurring). at para. 6.6 – an attack on a general measure

that has as its real aim the invalidation of specific measures subject to the rules applying to the

specific measure. In that case, the court held that a constitutional challenge which has as its purpose

and effect the invalidation of measures subject to special judicial review rules (analogous to s. 50)

is itself subject to such rules (that was in the context of the similar provisions of s. 5 of the Illegal

Immigrants (Trafficking) Act 2000). (See generally Ballyboden Tidy Towns v. An Bord Pleanála IV

(No. 2) [2025] IEHC 277 (Unreported, High Court, 16 May 2025)).

The climate context

39. Insofar as relevant, some relevant issues concerning the climate context include the

following:

(i) According to the statutory Climate Action Plan 2025 published under the Climate

Action and Low Carbon Development Act 2015 as amended, as well as known critical

risks of climate change, “We also face increasing risks of reaching irreversible climate

tipping points, with unknown and potentially catastrophic consequences for

societies, ecosystems and economies” (p. 22). Previous decisions have noted that

“[t]he climate emergency represents a critical risk to human and natural life on

earth” (e.g. Wild Ireland Defence v. An Coimisiún Pleanála [2025] IEHC 726

(Unreported, High Court, 17 December 2025) at 53). One recent widely-reported

study noted that “research on climate tipping points, amplifying feedbacks, and

cascading interactions shows that several Earth system components may be closer

to destabilizing than once believed. These processes are thought to be the

precursors of a potential “hothouse trajectory”: a pathway in which self-reinforcing

feedbacks push the climate system past a point of no return, committing the planet

to substantially higher long-term temperatures, even if emissions are later

reduced. Policymakers and the public, however, remain largely unaware of the risks

posed by such a practically irreversible transition” (William J. Ripple et al, “The

risk of a hothouse Earth trajectory”, One Earth, 101565, 11 February 2026).

(ii) Domestic law imposes significant climate-related obligations on national decision-

takers, including in the field of planning. The Climate Action and Low Carbon

Development (Amendment) Act 2021 (amending the Climate Action and Low Carbon

Development Act 2015) mandates the achievement of a net-zero carbon economy

by 2050 (s. 3(1) of 2015 Act as substituted by the 2021 Act), with a legally binding

51% reduction in emissions by 2030 compared to 2018 levels (s. 6A(5) of 2015 Act

as substituted by the 2021 Act): see Coolglass v. An Coimisiún Pleanála [2026] IESC

5 (Unreported, Supreme Court, 4 February 2026) .

(iii) EU law also involves significant climate-related objectives and obligations. Directive

2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the

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

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

mandatory targets for the consumption of energy from renewable sources by

member states. Regulation (EU) 2018/1999 of the European Parliament and of the

Council of 11 December 2018 on the Governance of the Energy Union and Climate

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

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

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

European Parliament and of the Council, Council Directives 2009/119/EC and (EU)

2015/652 and repealing Regulation (EU) No 525/2013 of the European Parliament

and of the Council (the Governance Regulation) was adopted to implement the Paris

Agreement commitments (agreement at conference of parties of the UNFCCC (the

United Nations Framework Convention on Climate Change opened for signature at

UN Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14 June

1992) (COP21) in Paris, on 12 December 2015). By way of implementation of the

Paris Agreement, the European Climate Law (2021) (Regulation (EU) 2021/1119 of

the European Parliament and of the Council of 30 June 2021 establishing the

framework for achieving climate neutrality and amending Regulations (EC) No

401/2009 and (EU) 2018/1999) involves a reduction of GHG emissions for the EU

by at least 55% by 2030 compared to 1990 levels. Ireland’s Nationally Determined

Contributions (NDCs) under Paris are as part of the EU contribution to GHG

reductions. Council Regulation (EU) 2022/2577 of 22 December 2022 lays down a

framework to accelerate the deployment of renewable energy. Article 3(1)

introduced a presumption of overriding public interest for renewable energy projects

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

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

version of the Renewable Energy Directive (REDIII), Directive (EU) 2023/2413 of

the European Parliament and of the Council of 18 October 2023 amending Directive

(EU) 2018/2001, Regulation (EU) 2018/1999 and Directive 98/70/EC as regards the

promotion of energy from renewable sources, and repealing Council Directive (EU)

2015/652, provides for a presumption of overriding public interest and for

accelerated timelines including requiring judicial remedies to be the most expeditious

available in national law.

(iv) The ECHR, relevant to domestic law via the European Convention on Human Rights

Act 2003, involves a binding legal obligation to address climate change: Verein

KlimaSeniorinnen Schweiz and Others v Switzerland (9 April 2024, App. no.

53600/20) (this is consistent with the decisions of all other international courts/

tribunals: International Court of Justice Advisory Opinion of 23 July 2025,

Obligations of States in respect of Climate Change; International Tribunal for the

Law of the Sea, Advisory opinion, Request by Commission of Small Island States,

21 May 2024; Inter-American Court of Human Rights, Request by Chile and

Colombia, Opinión Consultiva Oc-32/25 De 29 de Mayo de 2025).

Preliminary issues

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

summarised as follows:

“[State respondents]

(a) The Applicants could have pleaded Ground 6 in relation to the setting of the

conservation objectives for the relevant sites following the setting of conservation objectives

and/or measures for the River Nore SPA and/or the River Barrow and River Nore SAC or in

the first proceedings and should not be permitted to circumvent the time limits by way of

these proceedings. They have not sought an extension of time.

(b) The Applicants have failed to establish that they have and/or retain sufficient interest

to challenge the Minister in respect of the setting of conservation objectives and/or measures

for the River Nore SPA and/or the River Barrow and River Nore SAC by way of Ground 6

where it was determined in the judgment on Module 1 that the Notice Party’s development

would not have any impact on any grey heron or mallard and the Applicants have not pleaded

at any stage that the development would have any effect on the golden plover.

(c) Ground 6 is inadequately pleaded, where the particulars of the ground do not state

precisely and clearly what is alleged in respect of each limb in breach of Order 84, rule 20(3)

RSC. The pleading rules apply with particular force where it is alleged that the State has

failed to give proper effect to EU law and it is well established that raising points of EU law

does not have the effect of disapplying the stringency of the national procedural requirement

for clear and precise pleading in judicial review proceedings. In this regard it is relevant

that the Applicants rely in their written submissions on the judgment in Case C-66/23 Elliniki

Ornithologiki Etaireia but the pleaded case is entirely by reference to the Birds and Habitats

Regulations. Neither the Amended Statement of Grounds nor the Applicants’ submissions

identify the manner in which the Minister is claimed to have breached any of the identified

provisions of the Birds and Habitats Regulations. Nor have the Applicants challenged the

Birds and Habitats Regulations on the basis that they fail to transpose the (unspecified) EU

law obligation that the Applicants claim has been clarified by Elliniki Ornithologiki Etaireia.

(d) Ground 7 is inadequately pleaded and entirely hypothetical given the facts of the

case before the Court and/or the Applicants are attempting to re-open matters already

determined by the Court in Module 1 as to whether there was a material amendment to the

original permission.

The Notice Party

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

41. As regards the preliminary issues raised, apart from the question of navigating the pleadings,

I don’t need to make a final decision on these at the moment for reasons that will become apparent.

EU law issues

Core ground 7 – lack of public participation

42. It is easiest to start with core ground 7, which is:

“7. Without prejudice to any ground pleaded against the Board, section 146B of the

Planning and Development Act, 2000, as amended, is invalid because the Second and Third

Respondents have failed to ensure that the public participatory rights therein are triggered

in every case by an Appropriate Assessment under Article 6 (3) of the Habitats Directive,

and Article 11 EIA, read in the light of article 47 of the Charter of Fundamental Rights and/or

the obligations under Article 6 of the Aarhus Convention for the public to be informed, either

by public notice or individually as appropriate, early in an environmental decision-making

procedure, and in an adequate, timely and effective manner when all options are open and

effective public participation can take place. Further particulars are set out in Part 2 below.”

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

“Applicant’s Position –

1. Section 146B of the Planning and Development Act, 2000, as amended, is invalid

because the Second and Third Respondents have failed to ensure that the public

participatory rights therein are triggered in every case by an Appropriate Assessment under

Article 6 (3) of the Habitats Directive, and Article 11 EIA, read in the light of article 47 of

the Charter of Fundamental Rights and/or the obligations under Article 6 of the Aarhus

Convention for the public to be informed, either by public notice or individually as

appropriate, early in an environmental decision-making procedure, and in an adequate,

timely and effective manner when all options are open and effective public participation can

take place.

2. The Applicants have pleaded, without prejudice to any grounds against the Board,

that the Second and Third Respondents erred in failing to ensure that the amendment

process under s.146B triggered public participation for Appropriate Assessment under the

Habitats Directive. The requirement for AA ought to trigger mandatory public participation

under the section and it does not do so and s. 146B is invalid as a result.

3. An analogous administrative process was considered by Mr Justice Simons in

Sweetman v Environmental Protection Agency [2019] IEHC 81. The facts involved a

technical amendment to a wastewater discharge licence to allow a different discharge point

to be used as the primary discharge point from the newly commissioned WWTP. The Court

found at paragraphs 81 and 82 that ‘it would not be consistent with EU law, when read in

the light of the Aarhus Convention, to allow what is more than a mere technical amendment

to be made without any provision for public participation...It would undermine the

effectiveness of the earlier decision-making process and, in particular, the public

participation in the EIA and AA process, if this amendment could be made without any public

participation.’

State Position –

4. The Applicants are attempting to re-open the question of materiality. The

Commission, as part of its determination as to whether or not the proposed alteration was

material, considered the screening report furnished by the Notice Party in relation to the

proposed alteration of the development and its lack of relevant effects on the appropriate

assessment carried out in respect of the original development. The Commission did not

carry out appropriate assessment in respect of the amendment application, having concluded

(lawfully, per the judgment in Module 1) as a result of the screening that a new appropriate

assessment was not required where the alteration was not material. The Applicants are

therefore not entitled to impugn section 146B on the basis that it fails to require public

participation where there is appropriate assessment, where no obligation to carry out

appropriate assessment arose on the facts of this case.

5. Even if the Applicants were entitled to make this case, it is not the case that the lack

of an express reference to public participation in section 146B renders the section invalid.

Section 146B should not be read such as to exempt the Commission from the obligation to

carry out appropriate assessment and/or to provide for public participation in respect of an

application to amend a permission where such appropriate assessment is required by the

Habitats Directive as a matter of EU law, in line with the principle of conforming

interpretation.

6. The Applicants do not plead that section 146B of the 2000 Act is invalid due to any

alleged failure to provide for public participation where the Commission carries out screening

for appropriate assessment, so are not entitled to impugn section 146B on this basis. Even

if the Applicants had made this case, it is not apparent that public participation is required

at the screening stage as a matter of EU law. Further, even if an obligation to provide for

public participation at the screening stage does arise under EU law (and the State

Respondents do not accept that it does), the same principle as to adopting a conforming

interpretation of section 146B would apply. Section 146B clearly contemplates that where

assessments are required under EU law, they will be lawfully carried out. It is also relevant

that section 146B(2)(b) confers a wide statutory discretion on the Commission by which it

may invite submissions in respect of whether or not a requested alteration to a planning

permission would be a material alteration. To the extent that EU law may require a

competent authority to facilitate public participation at the screening stage (and the State

Respondents do not accept that it does), section 146B(2)(b) expressly provides the

Commission with the necessary power to do so.

Commission Position –

11. The Commission makes the following points:-

a. The Applicants’ case appears to be that s.146B excluded them in a way that

European law would have required them to be included. They contend that a need for AA

ought to have triggered participation rights.

b. However, it appears that the Applicants here are asserting that the need for AA

arose. They specifically say their case is that ‘the requirement’ for AA ought to trigger

mandatory public participation.

c. It remains unclear what the mandatory need for AA arising on the s.146B application

is or is alleged to be. The pleadings and submissions are equally unilluminating on this point.

Certainly, the case argued (as against the Commission’s s.146B Decision in Module 1) was

that an AA was required, but that case failed. The Applicants’ point there was that AA was

required, and the Commission successfully contended that the Applicants were not correct

in this respect. Yet now, the whole energy behind the s.146B point is that a need for AA

(which has been rejected) ought to have triggered participation rights. The case just doesn’t

arise because the need for AA has not been established, yet that is the whole basis for the

argument.

d. In any event, there has been no engagement at all with how participation rights can

possibly arise for ‘non-material’ amendments (noting the Applicants’ assertions to the

contrary regarding alleged materiality were rejected in Module 1).

Notice Party Position

12. This ground is not adequately pleaded and should be dismissed in limine.

Furthermore, it is a plea that is restricted to declaratory relief only. Without prejudice the

alleged breach of ‘public participation’ does not arise on the facts because the section 146B

application (which is limited to a very minor amendment to the two turbines) screened out

the necessity for AA. The Court has already determined that any complaint as to lacunae or

lack of appropriate findings was not established evidentially and rejected the Applicants’

complaint as to the substance of the Commission’s findings on AA screening. In the absence

of a requirement for AA, the contended for public participation right does not arise per the

decision of the Court of Appeal in Carvill v Dublin City Council [2025] IECA 84.”

44. The basic reason why this point fails is that this is not a case where AA was required. It is

acte clair that the contended for public participation right does not arise in a mere AA screening

decision: Carvill v. Dublin City Council [2025] IECA 84 (Unreported, Court of Appeal, 11 April 2025)

at 354. That follows from the express terms of the habitats directive itself.

45. In any event, the principle of conforming interpretation applies. If an AA is required, the

commission could not regard the change as immaterial, and hence would be obliged to use its

consultation powers in a manner compatible with EU law.

46. Admittedly s. 146B (and for that matter s. 143 of the 2024 Act) appears sub-optimal for not

expressly referencing the habitats directive, but that doesn’t make it invalid because it can be given

a conforming interpretation and application in a case where AA is required. This is not such a case.

While I don’t consider it to be invalid, the lack of reference to the habitats directive may arguably

constitute inadequately transparent transposition, contrary to the principle of legal certainty.

Fortunately for me, that isn’t a pleaded issue here. I made a similar point about an analogous

legislative problem in relation to transposing EIA, at issue in Save Cork City v. An Bord Pleanála

[2021] IEHC 509 (Unreported, High Court, 28 July 2021) at para. 61.

47. That is the essential answer to the very reductionist logic of sub-ground 26 which is the sum

total of the “particulars” of core ground 7 (emphasis added):

“26. Without prejudice to any grounds against the Board, the Second and Third

Respondents erred in failing to ensure that the amendment process under s.146B triggered

public participation for Appropriate Assessment under the Habitats Directive. The

requirement for AA ought to trigger mandatory public participation under the section and it

does not do so and s. 146B is invalid as a result.”

48. We can see the problem more clearly if we look at the declaration actually sought (emphasis

added):

“4. A Declaration that section 146B of the Planning and Development Act, 2000, as

amended, is invalid because the Second and Third Respondents have failed to ensure that

the public participatory rights therein are in every case triggered by an Appropriate

Assessment under Article 6 (3) of the Habitats Directive, read in the light of article 47 of

the Charter of Fundamental Rights and/or the obligations under Article 6 of the Aarhus

Convention for the public to be informed, either by public notice or individually as

appropriate, early in an environmental decision-making procedure, and in an adequate,

timely and effective manner when all options are open and effective public participation can

take place.”

49. This simply doesn’t arise because this is not a case where AA is required. Thus we don’t get

to the public participatory rights that are pleaded to follow from that.

Core ground 6 – lack of conservation measures or objectives

50. Core ground 6 is:

“6. Without prejudice to any ground pleaded against the Board, the Fourth Respondent

erred and acted contrary to reg 24 of S.I. No. 477/2011 - European Communities (Birds and

Natural Habitats) Regulations 2011 by failing to establish the necessary conservation

measures involving, if need be, appropriate management plans specifically designed for the

Gray Heron and the Mallard in the River Nore SPA and the Golden Plover in the River Barrow

and River Nore SAC, integrated into other development plans and appropriate statutory,

administrative, or contractual measures which correspond with the ecological requirements

of those species that ought to be subject to the conservation objectives of the site, and the

Fourth Respondent erred and acted contrary to reg. 26 by failing to exercise their functions

relating to nature conservation so as to secure compliance with the requirements of the

Habitats Directive and Birds Directive by establishing conservation objectives and measures

for the Gray Heron and Mallard on the River Nore SPA and the Golden Plover in the River

Barrow and River Nore SAC and acted contrary to reg. 7(b) by failing to identify additional

species referred to in Article 4(1) and 4(2) of the Birds Directive for inclusion in the

conservation objectives of the sites, when they knew or ought to have known that Gray

Heron and the Mallard and the Golden Plover were present in such numbers on such sites to

require specific protections. Further particulars are set out in Part 2 below.”

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

“Applicant’s Position –

1. The Fourth Respondent erred and acted contrary to reg 24 of S.I. No. 477/2011 -

European Communities (Birds and Natural Habitats) Regulations 2011 by failing to establish

the necessary conservation measures involving, if need be, appropriate management plans

specifically designed for the Gray Heron and the Mallard in the River Nore SPA and the

Golden Plover in the River Barrow and River Nore SAC, integrated into other development

plans and appropriate statutory, administrative, or contractual measures which correspond

with the ecological requirements of those species that ought to be subject to the

conservation objectives of the site, and the Fourth Respondent erred and acted contrary to

reg. 26 by failing to exercise their functions relating to nature conservation so as to secure

compliance with the requirements of the Habitats Directive and Birds Directive by

establishing conservation objectives and measures for the Gray Heron and Mallard on the

River Nore SPA and the Golden Plover in the River Barrow and River Nore SAC and acted

contrary to reg. 7(b) by failing to identify additional species referred to in Article 4(1) and

4(2) of the Birds Directive for inclusion in the conservation objectives of the sites, when they

knew or ought to have known that Gray Heron and the Mallard and the Golden Plover were

present in such numbers on such sites to require specific protections.

2. The Applicants plead that the Minister acted contrary to EU law as clarified in the

judgment of the CJEU in Case C-66/2023 Elliniki Ornithologiki delivered on 12 September

2024, by failing to establish the necessary conservation objectives and measures and or

failing to apply the appropriate level of protection to the Heron and the Mallard birds that

rely on and or are associated with the River Nore SPA but for whom the site was not

designated, and by failing to establish the necessary conservation objectives and measures

and or failing to apply the appropriate level of protection to the Golden Plover bird that rely

on and are associated with the River Barrow and River Nore SAC but for whom the site was

not designated.

State Position –

3. The Applicants have failed to establish any error on the part of the Minister. The

Applicants’ case, to the extent that it can be discerned from the written submissions, relies

on an interpretation of the judgment of the CJEU in Elliniki Ornithologiki Etaireia that would

require the Minister to include the identified bird species in the conservation objectives for

the River Nore SPA (mallard and grey heron) and the River Barrow and River Nore SAC

(golden plover) and/or to establish conservation measures for those bird species. The

Applicants do not explain how this judgment supports their case even at the abstract level

(and it was clearly found by the Court in its judgment on Module 1 that the relevant bird

species are not affected by the Notice Party’s development and therefore that arguments

based on the Elliniki Ornithologiki Etaireia case ‘cannot get off the ground’).

4. Member States are obliged to define the conservation objectives for a particular SPA

by reference not only to the SPA’s classification interests but also to ‘other species of birds

which must be protected under Article 4 of the Birds Directive and which are present in a

significant manner in the SPA concerned’. The birds protected under Article 4 are, as is

evident from the text of Article 4 itself and clarified by the CJEU, the species listed in Annex

I of the Birds Directive and regularly occurring migratory species not listed in Annex I. It

follows that where populations of birds attracting Article 4 protection are not present in a

significant manner within an SPA then no obligation arises. The evidence before the Court

establishes that the conservation objectives for the River Nore SPA were lawfully established.

Contrary to the position adopted by the Applicants, therefore, Elliniki Ornithologiki Etaireia

has no relevance to any obligation of the Minister in relation to the recorded grey heron and

mallard populations in the Standard Data Form for the River Nore SPA. The Applicants have

established no breach by the Minister of the Birds and Habitats Regulations.

5. While the Applicants’ case in relation to the obligations arising in respect of SPAs is

flawed in any event, it is not a stateable proposition that any obligation under Article 4 of

the Birds Directive arises in respect of SACs. The Applicants identify no authority for this

surprising proposition, which ought to be rejected. Without prejudice to that position, the

State Respondents’ evidence establishes that full and lawful consideration of all important

species of flora and fauna was undertaken by the Minister in identifying the qualifying

interests for the River Barrow and River Nore SAC.

Commission Position-

6. The Commission makes the following observations:-

a. The Applicants’ whole case is that more should have been done in terms of objectives

and measures for the Mallard, Heron and Plover. In this case, however, the State has fully

and clearly explained the position and justification behind the way in which those species

are treated and none of that has been engaged with.

b. Insofar as the Applicant is seeking to somewhat pivot to a generic contention that

more should have been done in relation to unspecified ‘other birds’ this should not avail

them. However, their pleadings don’t even allow this. It is patently clear when reading the

claim for relief D.3 that the ‘other birds’ in question were the Heron, Mallard and Plover in

respect of which the Applicants said enough had not been done.

c. In terms of the Court’s analysis thus far, it should be recalled that on Core Ground

5 in Rural Residents (II) [2025] IEHC 601 - which was all about the Heron and Mallard -

there simply was no factual evidence of any relevant impact at all. At paragraph 51, the

Court held:

‘So arguments based on the judgment of 12 September 2024, Elliniki Ornithologiki Etaireia

v Ypourgos Esoterikon, C‑66/23, ECLI:EU:C:2024:733, simply don’t get off the ground (to

stick with an airborne metaphor) because they lack the necessary basis on the facts – other

bird species are not going to be affected.’

The character of this observation doesn’t change depending on what relief one seeks. There

is something very wrong with the legal system if, in fact, an Applicant can (leaving all legal

sophistication aside about relief) be permitted (or have standing) to argue this point when

the High Court has already found it lacked any credible factual basis when deployed against

the Decision the Applicants were obviously concerned with. It simply should not be the case

that an Applicant can pursue relief like D3 in the face of that finding in paragraph 51.

d. The Applicants do not engage with how it only raised Habitats on the s.146B case.

In that respect, their case should be about the differences they allege between the permitted

and proposed-to-be-altered development. However, they run this argument as if it is a

‘clean-slate’ case made entitling them to engage on a first-run basis about the underlying

position on Habitats protection. They needed to run that point, if it was a point, against the

permission in the first place, and they didn’t.

e. Saying this is about ‘jurisdiction’ doesn’t have the legal-lottery-winning effect that

the Applicants contend for. It remains perfectly open to the Court to conclude that even if

more had to be done for these birds (despite the State’s evidence herein), and even if one

assumes that the AA architecture would, abstractly require that and even if one assumes a

defect in AA ‘goes to jurisdiction’ the Court is still more than able to conclude that on the

facts absolutely none of the interests of justice would be served in granting relief because

on the actual AA point, the Applicants failed on the facts. In other words, even assuming

that the Applicants are right here (and recalling the State contends they are far from right

in this case) and that the CJEU will conclude in such a manner that means ‘more’ should

have been done, and even assuming that thus a legally valid AA was not possible, the Court

really has to look at the actual defect that arises from all this and there isn’t a slip of evidence

of any actual impact on any of the relevant species. This doesn’t mean the Court has to

conclude with the Applicants on these steps, but rather the Court can look to the future in

the sense of assuming even all these matters in the Applicants’ favour, the Court would – it

is submitted – be unlikely to grant any relief.

f. It is even worse when it comes to the Golden Plover because whereas the Applicants

pray that in aid in relation to declarations, in Core Ground 5 it didn’t even allege that this

bore on the AA carried out. Further, the State’s position on this in the Statement of

Opposition fully defeats the Applicants’ case and it is not even engaged with in the written

submissions.

Notice Party Position

7. Core Ground 6 was pleaded to be ‘without prejudice to any ground pleaded against

the Commission and the Applicants are limited to a declaration even if successful and cannot

rely on this ground to impugn the Commission’s decision.

8. Furthermore, this plea is limited to the section 146B proceedings and therefore the

Applicants are limited to a contention that the lack of conservation objectives is relevant to

the Commission’s determination in respect of screening for Appropriate Assessment (‘AA’)

of a minor alteration of two turbines.

9. However, this issue also does not arise on the facts given that the Applicants’ pleas

are entirely unsubstantiated and/or the ornithological evidence submitted by the Developer

in relation to Mallard, Grey Heron and Golden Plover has not been contradicted.

10. Furthermore, the Applicants have not contradicted the evidence adduced by the

State Respondents in respect of the Conservation Objectives for the River Nore Special

Protection Area (‘SPA’) and the River Barrow and River Nore Special Area of Conservation

(‘SAC’). The purported analogy with Power/Knocknamona is inapt, as the State has provided

evidence that appropriate and valid conservation objectives were identified and established

in each case (which has not been challenged) and, therefore, the outcome of the

Knocknamona reference could have no relevance to the s.146B decision. There is no basis

whatsoever for the proposed reference.”

52. For the purposes of understanding this issue, it is essential to be clear on what is and is not

pleaded. I will start by identifying matters that fall outside the pleadings and then deal with the

specific points that properly fall for consideration.

Issues that are not pleaded

53. We need to start with the grounds. As noted above the core ground is (emphasis added):

“6. Without prejudice to any ground pleaded against the Board, the Fourth Respondent

erred and acted contrary to reg 24 of S.I. No. 477/2011 - European Communities (Birds and

Natural Habitats) Regulations 2011 by failing to establish the necessary conservation

measures involving, if need be, appropriate management plans specifically designed for the

Gray Heron and the Mallard in the River Nore SPA and the Golden Plover in the River Barrow

and River Nore SAC, integrated into other development plans and appropriate statutory,

administrative, or contractual measures which correspond with the ecological requirements

of those species that ought to be subject to the conservation objectives of the site, and the

Fourth Respondent erred and acted contrary to reg. 26 by failing to exercise their functions

relating to nature conservation so as to secure compliance with the requirements of the

Habitats Directive and Birds Directive by establishing conservation objectives and

measures for the Gray Heron and Mallard on the River Nore SPA and the Golden Plover in

the River Barrow and River Nore SAC and acted contrary to reg. 7(b) by failing to identify

additional species referred to in Article 4(1) and 4(2) of the Birds Directive for inclusion in

the conservation objectives of the sites, when they knew or ought to have known that

Gray Heron and the Mallard and the Golden Plover were present in such numbers on such

sites to require specific protections. Further particulars are set out in Part 2 below.”

54. The sub-grounds do not add much by way of the promised further particulars, and if anything

they could suggest by omission that the final complaint of “additional species” is simply to be

assimilated into the earlier complaints about a lack of conservation objectives and measures

(something that also follows from the wording of the declaration). The sub-grounds are (emphasis

added):

“24. The Minister acted contrary to EU law as clarified in the judgment of the CJEU in

Case C-66/2023 Elliniki Ornithologiki delivered on 12 September 2024, by failing to establish

the necessary conservation objectives and measures and or failing to apply the appropriate

level of protection to the Heron and the Mallard birds that rely on and or are associated with

the River Nore SPA but for whom the site was not designated, and by failing to establish

the necessary conservation objectives and measures and or failing to apply the appropriate

level of protection to the Golden Plover bird that rely on and are associated with the River

Barrow and River Nore SAC but for whom the site was not designated.

25. If the Court should find that it is not acte clair that the obligation to establish

conservation objectives and measures for all bird species listed in Annex I to

Directive 2009/147 and regularly occurring migratory species not listed in that

annex and their habitat. [sic] applies to Special Areas of Conservation in the same

manner it applies to Special Protection Areas the Applicants would welcome a reference

under Art. 267 of the Treaty of the Functioning of the European Union.”

55. The specific declaration sought is (emphasis added):

“3. A Declaration that the Fourth Respondent erred and acted contrary to reg 24 of S.I.

No. 477/2011 - European Communities (Birds and Natural Habitats) Regulations 2011 by

failing to establish the necessary conservation measures involving, if need be,

appropriate management plans specifically designed for the Gray Heron and the

Mallard in the River Nore SPA and the Golden Plover in the River Barrow and River

Nore SAC, integrated into other development plans and appropriate statutory,

administrative, or contractual measures which correspond with the ecological requirements

of those species that ought to be subject to the conservation objectives of the site, and the

Fourth Respondent erred and acted contrary to reg. 26 by failing to exercise their functions

relating to nature conservation so as to secure compliance with the requirements of the

Habitats Directive and Birds Directive by establishing conservation objectives and

measures for the Gray Heron and Mallard on the River Nore SPA and the Golden

Plover in the River Barrow and River Nore SAC and acted contrary to reg. 7(b) by

failing to identify additional species referred to in Article 4(1) and 4(2) of the Birds

Directive for inclusion in the conservation objectives of the sites, when they knew

or ought to have known that Gray Heron and the Mallard and the Golden Plover

were present in such numbers on such sites to require specific protections.”

56. The applicants suggested that there was a referrable EU law issue of the extent an alleged

obligation to designate the SAC as also being an SPA.

57. This is not a pleaded point. The applicants do not contend on the pleadings that the SAC

should also have been designated as an SPA. The pleaded claim, consistently, is in essence about

objectives/measures for the named SAC and the named SPA.

58. Nor do they plead that the instruments designating the SAC/SPA are invalid. Presumably

doing so would have had to involve demonstrating that at the time of designating the SAC/SPA, the

Minister had material showing that something else should have been done. That has not been

pleaded, still less established evidentially.

59. Nor did the applicants allege that these instruments are defective on the ground that the

decision-taking process was flawed because this issue wasn’t even considered. They have not

interrogated the decision-taking process at all.

60. There is no challenge to the legislative framework for designation of SACs or SPAs.

61. There is no plea that the State failed to include adequate ecological information in the

standard forms for the European Commission for this site. Nor is there any complaint as to lack of

reasons for not including objectives in the SPA concerned for other bird species.

62. Insofar as it was suggested that Case C-27/25 Knocknamona should be a basis to adjourn

this point, that deals with a separate matter – a breach of the requirement to have a conservation

objective at all in a case where AA is required. (This is not a case where AA was required.) It is not

a pleaded claim that there are no conservation objectives at all such that AA was not lawfully

possible. The argument is that there should have been additional objectives.

63. Furthermore the argument was expressly advanced in support of declaratory relief (as was

in any event made clear by the introductory wording of the declaration to the effect that it is without

prejudice to the case against the board/commission and by the fact that it alleges a legal error

by the fourth named respondent only). The applicants did not argue or even plead that the lack

of additional objectives made the AA screening decision invalid and thus made the permission invalid.

64. The situation is not a function of modularisation as the applicants at one point incorrectly

suggested – it is a situation that applies independently of that and would have arisen had all matters

been heard together in a unitary trial. The one thing that is certain is that parties generally, and

the applicants here, are not disadvantaged by modularisation. It is procedural rather than

substantive. Rubbing this in, the State made a point of reminding the applicants that it wanted to

deal with core ground 6 in Module I and the initiative to put it off was on the part of the applicants

themselves. But in fact that didn’t make any difference for the reasons outlined.

65. We can also note a pleadings weakness on the issue of the “other species” and on the

additional measures that the State should have taken but failed to. The pleadings don’t even specify

what the “other species” are, although the natural reading is that this is just another reference to

the Grey heron (Ardea cinerea), Mallard (Anas platyrhynchos) and Golden plover (Pluvialis

apricaria). That is the most favourable reading to the applicants that the pleadings would permit –

anything beyond that would be impossibly vague and unparticularised. Similarly as to the additional

steps supposedly required – the natural reading of the pleadings is that this comes under the heading

of conservation measures and objectives. Anything beyond that is vague, unparticularised, and

inadequately pleaded. The effect of that is to fold the “other species” complaint into one of the two

basic complaints made regarding the SPA and SAC respectively. Likewise insofar as reliance is

placed on the 2011 regulations, the wording ties all this back into the basic allegation of lack of

conservation objectives/measures, so the domestic regulations don’t in fact add anything of real

substance to the point, they only reference the domestic transposition of the underlying requirement.

66. For good measure I can note that there is no pleaded complaint about the Mute

swan (Cygnus olor) in the SPA, even though acknowledged as present by the National Parks &

Wildlife Service (NPWS) in the Europa 2000 form. Nor is there any complaint about Cormorant

(Phalacrocorax carbo) (14 present in 2010), Moorhen (Gallinula chloropus) (14 present), Snipe

(Gallinago gallinago) (17 present) or Sand martin (Riparia riparia) (1,029 present – these are in fact

a migratory species but the applicants haven’t relied on that), or about the presence of such species

in the Site Synopsis but their omission from the Europa 2000 form.

67. Nor was there any complaint about the lack of management plan or notified measures for

the Kingfisher (Alcedo atthis), as indicated in the Europa 2000 form.

The two sub-issues of core ground 6 that are pleaded with acceptable clarity

68. With those matters firmly situated as falling outside the pleaded case, the essence of the

complaint that is actually pleaded is that at some indeterminate point, possibly subsequent to the

designation of the SAC/SPAs, some additional objectives/measures should have been established in

respect of three identified species of birds. The complaint breaks down as relating to:

(i) a lack of measures regarding the Golden plover in the River Barrow and River Nore

SAC; and

(ii) a lack of measures regarding the Grey heron and the Mallard in the River Nore SPA.

Sub-issue 1 – the SAC – alleged lack of objectives/measures for Golden plover

69. The State’s explanation why birds of any kind are not included as qualifying interests in the

River Barrow and River Nore SAC is because it is an SAC (covered by the habitats directive) and not

an SPA (covered by the birds directive). The species listed in Annex II to the habitats directive cover

a wide range of plants, invertebrate animals and vertebrates but not birds: see consolidated version

at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01992L0043-

20130701#anx_II. The obvious reason for that is that birds are covered by a separate directive,

2009/147/EC.

70. As far as any complaint about the specific decision is concerned, as the notice party points

out, there is no evidence of any significant impact on Golden plover (Pluvialis apricaria) as a result

of the s. 146B application and no significant impact was noted on Golden plover as a result of the

first application for permission (per the inspector at 6.7.16 onwards). As a side note, the reason

“plover” is pronounced “plŭ-’”, as in “dug”, per the definitive 1976 Concise OED 6th ed., is that it

comes ultimately “f[rom] L[atin] pluvia rain” (p. 848) – some might say that the association between

plovers and rain could immediately explain their further association with Ireland. Another example

perhaps of the importance of Latin to our civilization – given how pervasive that is, those who sadly

don’t appreciate the legitimate continuing relevance of classical languages to modern law and society

are really missing out on a lot.

71. The failure to make provision for Golden plover in the SAC was not advanced as a reason to

quash the decision in any event but was argued as something in support of a declaration against the

State.

72. By contrast with the birds relied on for the purposes of the SPA argument, the Golden plover

is an Annex I species, coming in under the following heading (emphasis added):

“CHARADRIIFORMES

Haematopodidae

Haematopus ostralegus

Charadriidae

Pluvialis apricaria

Pluvialis squatarola

Vanellus vanellus”

73. However the crucial point is that the whole structure of the habitats directive is that it goes

out of its way to avoid covering birds. Annex II is headed:

“ANNEX II

ANIMAL AND PLANT SPECIES OF COMMUNITY INTEREST WHOSE CONSERVATION REQUIRES

THE DESIGNATION OF SPECIAL AREAS OF CONSERVATION”

74. No birds whatsoever are included.

75. Designation of SACs under the directive is by reference to habitats and species, but only

species in Annex II. As we have seen, this cannot include birds. Articles 4 to 6 make this clear

(emphasis added):

“Article 4

1. On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific

information, each Member State shall propose a list of sites indicating which natural habitat

types in Annex I and which species in Annex II that are native to its territory the sites

host. For animal species ranging over wide areas these sites shall correspond to the places

within the natural range of such species which present the physical or biological factors

essential to their life and reproduction. For aquatic species which range over wide areas,

such sites will be proposed only where there is a clearly identifiable area representing the

physical and biological factors essential to their life and reproduction. Where appropriate,

Member States shall propose adaptation of the list in the light of the results of the

surveillance referred to in Article 11.

The list shall be transmitted to the Commission, within three years of the notification of this

Directive, together with information on each site. That information shall include a map of

the site, its name, location, extent and the data resulting from application of the criteria

specified in Annex III (Stage 1) provided in a format established by the Commission in

accordance with the procedure laid down in Article 21.

2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of

each of the nine biogeographical regions referred to in Article 1 (c) (iii) and of the whole of

the territory referred to in Article 2 (1), the Commission shall establish, in agreement with

each Member State, a draft list of sites of Community importance drawn from the Member

States' lists identifying those which host one or more priority natural habitat types or priority

species.

Member States whose sites hosting one or more priority natural habitat types and priority

species represent more than 5 % of their national territory may, in agreement with the

Commission, request that the criteria listed in Annex III (Stage 2) be applied more flexibly

in selecting all the sites of Community importance in their territory.

The list of sites selected as sites of Community importance, identifying those which host one

or more priority natural habitat types or priority species, shall be adopted by the Commission

in accordance with the procedure laid down in Article 21.

3. The list referred to in paragraph 2 shall be established within six years of the notification

of this Directive.

4. Once a site of Community importance has been adopted in accordance with the procedure

laid down in paragraph 2, the Member State concerned shall designate that site as a special

area of conservation as soon as possible and within six years at most, establishing priorities

in the light of the importance of the sites for the maintenance or restoration, at a favourable

conservation status, of a natural habitat type in Annex I or a species in Annex II and for

the coherence of Natura 2000, and in the light of the threats of degradation or destruction

to which those sites are exposed.

5. As soon as a site is placed on the list referred to in the third subparagraph of paragraph

2 it shall be subject to Article 6 (2), (3) and (4).

Article 5

1. In exceptional cases where the Commission finds that a national list as referred to in

Article 4 (1) fails to mention a site hosting a priority natural habitat type or priority species

which, on the basis of relevant and reliable scientific information, it considers to be essential

for the maintenance of that priority natural habitat type or for the survival of that priority

species, a bilateral consultation procedure shall be initiated between that Member State and

the Commission for the purpose of comparing the scientific data used by each.

2. If, on expiry of a consultation period not exceeding six months, the dispute remains

unresolved, the Commission shall forward to the Council a proposal relating to the selection

of the site as a site of Community importance.

3. The Council, acting unanimously, shall take a decision within three months of the date

of referral.

4. During the consultation period and pending a Council decision, the site concerned shall

be subject to Article 6 (2).

Article 6

1. For special areas of conservation, Member States shall establish the necessary

conservation measures involving, if need be, appropriate management plans specifically

designed for the sites or integrated into other development plans, and appropriate statutory,

administrative or contractual measures which correspond to the ecological requirements of

the natural habitat types in Annex I and the species in Annex II present on the sites.

2. Member States shall take appropriate steps to avoid, in the special areas of conservation,

the deterioration of natural habitats and the habitats of species as well as disturbance of the

species for which the areas have been designated, in so far as such disturbance could be

significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the

site but likely to have a significant effect thereon, either individually or in combination with

other plans or projects, shall be subject to appropriate assessment of its implications for the

site in view of the site's conservation objectives. In the light of the conclusions of the

assessment of the implications for the site and subject to the provisions of paragraph 4, the

competent national authorities shall agree to the plan or project only after having

ascertained that it will not adversely affect the integrity of the site concerned and, if

appropriate, after having obtained the opinion of the general public.

4. If, in spite of a negative assessment of the implications for the site and in the absence

of alternative solutions, a plan or project must nevertheless be carried out for imperative

reasons of overriding public interest, including those of a social or economic nature, the

Member State shall take all compensatory measures necessary to ensure that the overall

coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory

measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the

only considerations which may be raised are those relating to human health or public safety,

to beneficial consequences of primary importance for the environment or, further to an

opinion from the Commission, to other imperative reasons of overriding public interest.”

76. Mr O’Donoghue for the State notes that bird species cannot be qualifying interests for an

SAC, but also accepts the presence of Golden plover as an Annex I species (at para. 21 of his

affidavit):

“The golden plover, a species that is included in Annex I of the Birds Directive, was listed in

section 3.2 of the Standard Data Form for the River Barrow and River Nore SAC as being

present on the site, as were other protected bird species that the available sources indicated

were present on the site. Section 4.5 of the Standard Data Form for the River Barrow and

River Nore SAC sets out the documentation relied upon in identifying the habitats and species

set out therein, including both published and unpublished sources.”

77. We need to keep the pleaded case firmly in mind – which is a failure to establish bird-related

objectives/measures in an SAC designated under the habitats directive. The insuperable problem

with that point is it is not an interpretation of the habitats directive – it is a massive re-writing of

the directive. This is not a point about the meaning of legislation – it is an attempted act of

legislation. The whole structure of the two directives is premised on objectives/measures under the

habitats directive not applying to birds. There is simply no reasonable doubt about that and no

reasonable possibility whatsoever of the CJEU upending the clear and settled meaning of the

directive arising from the express text, and, in defiance of all known principles of legal certainty,

suddenly demanding reconsideration of the objectives and measures of every habitats-directive-

designated site across Europe put in place over the 34 years since it was enacted. The point as

pleaded is just not remotely at the races. As the Minister correctly says, that argument is

unstateable.

78. That is not to say that the presence of Annex I birds in an SAC does not demand some

consideration or even action from the State. It just means that any such action arises under the

birds directive. No failure to take action of that kind has been properly pleaded.

79. Nor does this mean that the applicants are permanently shut out from raising this issue –

for example if they provide new evidence to the Minister regarding the presence of Golden plover in

the SAC and call for specific steps to be taken under the birds directive, a failure to take such steps

following a properly worded and evidenced prior demand is not in principle wholly beyond the scope

of judicial examination in properly constituted pleadings brought within an appropriate time from

the alleged act or omission complained of and grounded on appropriate evidence and a robust legal

argument. But that’s all hypothetical given the misconception underlying way the matter is pleaded

here.

Sub-issue 2 – the SPA – alleged lack of objectives/measures for Grey heron and Mallard

80. Article 4 of the birds directive provides (emphasis added):

“Article 4

1. The species mentioned in Annex I shall be the subject of special conservation

measures concerning their habitat in order to ensure their survival and reproduction in their

area of distribution.

In this connection, account shall be taken of:

(a) species in danger of extinction;

(b) species vulnerable to specific changes in their habitat;

(c) species considered rare because of small populations or restricted local distribution;

(d) other species requiring particular attention for reasons of the specific nature of their

habitat.

Trends and variations in population levels shall be taken into account as a background for

evaluations.

Member States shall classify in particular the most suitable territories in number and size as

special protection areas for the conservation of these species in the geographical sea and

land area where this Directive applies.

2. Member States shall take similar measures for regularly occurring migratory species

not listed in Annex I, bearing in mind their need for protection in the geographical sea

and land area where this Directive applies, as regards their breeding, moulting and wintering

areas and staging posts along their migration routes. To this end, Member States shall pay

particular attention to the protection of wetlands and particularly to wetlands of international

importance.

3. Member States shall send the Commission all relevant information so that it may take

appropriate initiatives with a view to the coordination necessary to ensure that the areas

provided for in paragraphs 1 and 2 form a coherent whole which meets the protection

requirements of these species in the geographical sea and land area where this Directive

applies.

4. In respect of the protection areas referred to in paragraphs 1 and 2, Member States

shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances

affecting the birds, in so far as these would be significant having regard to the objectives of

this Article. Outside these protection areas, Member States shall also strive to avoid

pollution or deterioration of habitats.”

81. What is crucial for this point is that mallard are an Annex II species, not an Annex I species.

Annex II starts as follows (emphasis added):

“ANNEX II

PART A

ANSERIFORMES

Anatidae

Anser fabalis

Anser anser

Branta canadensis

Anas penelope

Anas strepera

Anas crecca

Anas platyrhynchos

Anas acuta

Anas querquedula

Anas clypeata

Aythya ferina

Aythya fuligula”

82. Furthermore, only certain types of Heron (not including the Grey heron) are included in

Annex I:

“Ardeidae

Botaurus stellaris

Ixobrychus minutus

Nycticorax nycticorax

Ardeola ralloides

Egretta garzetta

Egretta alba (Ardea alba)

Ardea purpurea”

83. Protections for Annex II species relate to injury and hunting and the like (Articles 6 and 7),

not conservation objectives.

84. Turning to the pleaded case, the birds directive does not impose an unqualified “obligation

to establish conservation objectives and measures for all bird species listed in Annex I to Directive

2009/147” in the sense submitted by the applicants (albeit that that snippet of wording is taken out

of context from the judgment of the CJEU of 12 September 2024, Elliniki Ornithologiki Etaireia and

Others v Ypourgos Esoterikon and Others, C-66/23, ECLI:EU:C:2024:733). The context was that

the court said (emphasis added):

“47 As stated, in essence, by the Advocate General in point 44 of her Opinion, when

defining site-level conservation objectives, account must be taken of protected species, that

is, the species listed in Annex I of the Birds Directive and of regularly occurring migratory

species not listed in that annex, as those species are protected by the specifically targeted

and reinforced regime laid down in Article 4 of that directive.

48 In addition, the obligation to set conservation objectives for the selected sites applies

to the species concerned according to whether their presence within the sites

concerned is significant, without being restricted to only the species on which the

selection of the sites was based.

49 The Court therefore finds that the conservation objectives of a site must be defined

while taking account of the ‘classification species’ and of other species of birds which must

be protected under Article 4 of the Birds Directive and which are present in a significant

manner in the SPA concerned, without that site having been designated as an SPA for

those other species.”

85. The court went on however:

“54 In that context, as observed, in essence, by the Advocate General in point 52 of her

Opinion, the species and habitats for which a site has been designated as an SPA enjoy,

naturally, priority status regarding special conservation measures that must be adopted and

implemented on that site. That being said, the presence of other vulnerable species such

as rare bird species and bird species living naturally in an isolated manner on the site

concerned cannot be disregarded, and the adoption of such conservation measures in

relation to them may prove useful or necessary to attain the relevant conservation

objectives.”

86. This broadly endorses the opinion of Advocate General Kokott delivered on 22 February

2024, ECLI:EU:C:2024:150, who argued for a test of significance (emphasis added, notes omitted):

“Establishment of conservation objectives under the Birds Directive

54. The foregoing considerations concerning the establishment of conservation objectives

for conservation areas under the Habitats Directive cannot be directly transposed to SPAs

under the Birds Directive because Article 4(4) and Article 6(1) of the Habitats Directive are

not applicable to SPAs. As mentioned, SPAs continue to be governed instead by Article 4(1)

and (2) of the Birds Directive. Although the latter protection obligations are worded in less

precise terms, they are in practice intended to ensure protection in SPAs equivalent to that

afforded by Article 4(4) and Article 6(1) of the Habitats Directive. Consequently, the

protection status enjoyed by SPAs must also include conservation objectives.

55. The establishment of priorities is likewise already provided for in Article 4(1) and (2)

of the Birds Directive, inasmuch as measures must be taken in the light of the requirements

of protecting the species in question. Those requirements are dictated by the specific

situation obtaining in the SPA concerned.

56. In practical terms, this means that the competent authorities must determine which

bird species worthy of protection occur in an SPA, what contribution those species make to

the objectives of the Birds Directive and what risks and threats they are exposed to. The

conservation objectives to be pursued in SPAs, and the conservation measures necessary to

achieve those objectives, must be developed on that basis. In that context, the competent

authorities may prioritise certain conservation objectives over others and concentrate the

resources available accordingly. At the same time, they can avoid wasting such resources

on less effective protection measures, which is what the Czech Republic in particular wishes

to ensure.

57. The fact that an SPA is the most suitable site for the protection of certain bird species

must as a rule be reflected in those priorities, since it was with a view to the conservation

of those species that that site was designated.

58. However, the occurrence of other species worthy of protection in SPAs must not be

neglected wholesale either. Rather, a decision to refrain from adopting, or to restrict the

adoption of, conservation objectives and conservation measures in relation to other species

worthy of protection that occur in an SPA calls for a careful assessment of the

significance of those occurrences to the conservation of those species which must

also be reflected in the reasons for the respective priorities of the species

concerned.

59. In this regard, an initial indication is provided by the classification of the occurrence

concerned in the standard data form for the site in question. This calls for an evaluation of

the population concerned in relation to the populations present within national territory. As

the Commission explains, an evaluation of A, B or C shows that the population is to some

extent significant and, therefore, in principle merits protection. If the population of a

species is evaluated only as D, it is not significant and, therefore (at least if the

assessment is correct), does not as a rule require protection measures.

60. As the Netherlands recognises, other species worthy of protection which are listed in

Annex I to the Birds Directive warrant special attention if their populations are given a higher

evaluation (A, B or C), since these are the most endangered species. It therefore seems

fundamentally doubtful whether it is permissible to exclude them from protection measures

in SPAs in whose designation they are not decisive but in which they nonetheless occur.

61. Furthermore, the Network Association rightly notes that certain species are not

concentrated in particular areas but live by nature in isolation. In the case of such species,

the differences between SPAs which are most suitable for their conservation and other SPAs

in which they also occur are small. The Network Association thus notes that the occurrence

of the Bonelli’s eagle (Hieraaetus fasciatus) in each of the ten SPAs which Greece has

designated for that species is exactly as large as, if not smaller than, in the 81 other SPAs

in which it occurs only as another species worthy of protection. In the case of the lesser

spotted eagle (Aquila pomarina), too, most of the total population occurs, according to the

Network Association, in SPAs which were not specifically designated for that species. It can

hardly be said, therefore, that such species are already adequately protected in the areas

most suitable for their protection. Rather, there would have to be strong reasons to exclude

them from the protection measures adopted in all of the other areas in which they occur as

other species worthy of protection.

62. This is particularly true in so far as the Network Association refers to bird species

listed in Annex I or regularly occurring migratory species which occur in SPAs but for which

no SPAs at all, or fewer than those necessary, have been designated. It is true that the

question whether Greece has adequately fulfilled its obligation to designate SPAs for these

species does not have to be answered in the present case. Nonetheless, species with no or

too few SPAs of their own would seem to require protection at least as other species worthy

of such in SPAs in which they occur. Otherwise, after all, such species would be inadequately

protected or not protected at all in Greece.

63. The Netherlands submits, however, that certain migratory bird species in particular,

such as the chiffchaff (Phylloscopus collybita), the robin (Erithacus rubecula), the blackbird

(Turdus merula) and the jackdaw (Corvus monedula), may also regularly occur in SPAs but

are not endangered and are widespread irrespective of SPAs. In the case of species such as

these, it should indeed be sufficient as a rule to restrict protection measures to the SPAs

that were specifically designated for them, since that is where they occur in particularly high

concentrations during certain periods of their life or migration cycle.

64. Finally, the establishment of conservation objectives and priorities in this way also

allows for the appropriate reconciliation of conflicting objectives.

65. In the context of the measures provided for in Article 4(1) and (2) of the Birds

Directive, it therefore follows logically in principle that account must be taken of all bird

species worthy of protection and their habitats that occur in an SPA, but also that priorities

must be established in relation to their protection.”

87. Mr O’Neill for the applicants does not say a whole lot about this issue and unfortunately

appears to conflate two separate questions – whether this particular project would impact adversely

on other bird species in the SPA, and whether the SPA should more generally have covered such

species. What he says is:

“24. I say and believe that the new turbine configuration ought to have been considered

for collision risk for birds. It is common case that the Gray Heron and the Mallard have been

surveyed on the wind farm development site. No risk of these birds colliding into the turbines

has been undertaken to inform the assessments under the Habitats Directive. I say and

believe that there is a conservation significant population of these species on the River Nore

SPA, as reported to the European Commission by the NPWS in the River Nore SPA Standard

Data Form. The NPWS have also prepared conservation objectives for the Kingfisher, the

bird for whom the SPA was designated, and a site synopsis. I beg to refer to copies of said

Standard Data Form, Conservation Objectives document and Site Synopsis for the River

Nore SPA, pinned together and exhibited at TAB 13A, 13B and 13C of the booklet of exhibits.”

88. Mr O’Neill’s opinion about the impact of this particular development has been dealt with

already – the opposing parties have established evidentially a lack of impact.

89. The NPWS standard data form is exhibited: see also

https://www.npws.ie/sites/default/files/protected-sites/natura2000/NF004233.pdf.

90. Section 3.2 specifies the species present on site for the purposes of relevant directives (all

Group (G) type B – Birds):

(i) Alcedo atthis [Common Kingfisher], (code r, reproducing), size 22, Pop. C

(ii) Anas platyrhynchos [Mallard], (code w, wintering), size 267, Pop. C

(iii) Ardea cinerea [Grey heron], (code w, wintering), size 45, Pop. C

91. Dr Tierney for the State acknowledges the reference to “wintering" but contends that this

was in error, because the data collected during surveys carried out in the period 15 March to 1 June

2010.

92. In what looks like an extremely carefully worded averment, he states that “there is no sound

scientific basis for using the incidental data on the numbers of individuals from resident summer

populations of Grey heron and mallard … to estimate the number of wintering Grey heron and

mallard present on the site” (emphasis added).

93. That is not a denial that Mallard and Grey heron are wintering species in Ireland, or even on

this site; merely that the numbers referred to in the data form are not numbers of their wintering

presence.

94. Section 3.3 specifies other species present:

“Cygus olor [Mute Swan], size 35, abundance unspecified, motivation category C

(international conventions)”

95. Under 6.2, there was no management plan. Conservation measures were unspecified under

6.3.

96. The references given are:

(i) O. Crowe, Ireland’s Wetlands and their Waterbirds: Status and Distribution

(BirdWatch Ireland 2005);

(ii) O. Crowe, G.E. Austin, K. Colhoun, P.A. Cranswick, M. Kershaw and A.J. Musgrove,

‘Estimates and trends of waterbird numbers wintering in Ireland 1994/95 to

2003/04’ (2008) 55 Bird Study 66;

(iii) O. Crowe, G. Webb, E. Collins and P. Smiddy, Waterway Bird Survey 2008

(Unpublished report to the NPWS 2008);

(iv) S. Cummins, J. Fisher, R.J. McKeever, L. McNaghten and O. Crowe, Assessment of

the Distribution and Abundance of Kingfishers (Alcedo atthis) and Other Riparian

Birds on Six SACs (Unpublished report to the NPWS 2010);

(v) D.W. Gibbons, J.B. Reid and R.A. Chapman, The New Atlas of Breeding Birds in

Britain and Ireland: 1988–1991 (T & A D Poyser 1993);

(vi) J. Hunt, J. Derwin, J. Coveney and S. Newton, ‘Republic of Ireland’ in M.F. Heath

and M.I. Evans (eds), Important Bird Areas in Europe: Priority Sites for

Conservation, Volume 1: Northern Europe (BirdLife International 2000) 365; and

(vii) S. Newton, A. Donagh, D. Allen and D. Gibbons, ‘Birds of Conservation Concern in

Ireland’ (1999) 6 Irish Birds 333.

97. The data in these studies now goes back up to 35 years and I can hopefully be allowed to

note in passing that even a cursory search of public domain material (including the NPWS website)

brings up numerous more recent Irish studies of prevalence of wintering waterbirds.

98. The site’s conservation objectives are limited to the Kingfisher (see exhibit 13B,

https://www.npws.ie/protected-sites/spa/004233).

99. The site synopsis (exhibit 13C, also at the above link) is as follows:

“SITE SYNOPSIS

SITE NAME: RIVER NORE SPA

SITE CODE: 004233

The River Nore SPA is a long, linear site that includes the following river sections: the River

Nore from the bridge at Townparks, (north-west of Borris in Ossory) to Coolnamuck

(approximately 3 km south of Inistioge) in Co. Kilkenny; the Delour River from its junction

with the River Nore to Derrynaseera bridge (west of Castletown) in Co. Laois; the Erkina

River from its junction with the River Nore at Durrow Mills to Boston Bridge in Co. Laois; a

1.5 km stretch of the River Goul upstream of its junction with the Erkina River; the Kings

River from its junction with the River Nore to a bridge at Mill Island, Co. Kilkenny. The site

includes the river channel and marginal vegetation.

For a large part of its course the River Nore traverses Carboniferous limestone plains; it

passes over a narrow band of Old Red Sandstone rocks below Thomastown.

The site is a Special Protection Area (SPA) under the E.U. Birds Directive of special

conservation interest for the following species: Kingfisher.

A survey in 2010 recorded 22 pairs of Kingfisher (based on 16 probable and 6 possible

territories) within the SPA. Other species which occur within the site include Mute Swan

(35), Mallard (267), Cormorant (14), Grey Heron (45), Moorhen (14), Snipe (17) and Sand

Martin (1,029) – all figures are peak counts recorded during the 2010 survey.

The River Nore SPA is of high ornithological importance as it supports a nationally important

population of Kingfisher, a species that is listed on Annex I of the E.U. Birds Directive.”

100. On the issue of whether this particular project will impact on additional bird species, what I

said at para. 51 of the No. 1 judgment was that the developer’s evidence establishes a lack of impact

on Mallard and the Grey heron. As the notice party submits, the whole point must fail on a purely

evidential basis having regard to the opposing parties’ evidence on this issue. So arguments

(directed to challenging the permission) based on the judgment of 12 September 2024, Elliniki

Ornithologiki Etaireia v Ypourgos Esoterikon, C‑66/23, ECLI:EU:C:2024:733, simply don’t get off the

ground because they lack the necessary basis on the facts – other bird species are not going to be

affected. It is the lack of relevance to the present project – not modularisation – that makes

certiorari inappropriate by reference to this issue. So what’s left is the declaratory relief sought –

that would fall for consideration whether the point was modularised or not.

101. On the issue of the setting of objectives at a site level, the core of the State’s defence to

this is outlined in submissions:

“33. As explained in the evidence of Dr David Tierney, Ireland’s approach (as reported to

the European Commission every six years pursuant to Article 12 of the Birds Directive) is to

differentiate between wintering or migratory populations (which fall within the Article 4

obligation) and resident summer or breeding (non-migratory) populations (which do not fall

within the Article 4 obligation except insofar as they are listed in Annex 1).”

102. Protection an SPA context hinges on the species being either (a) an Annex I species – which

the pleaded species are not or (b) a regularly occurring migratory species. The issue then comes

down to whether the latter limb is satisfied here.

103. Dr Tierney says (emphasis added):

“32. Where it is considered that Ireland may well hold numbers of grey heron and

mallard that belong to wintering migratory populations and could potentially be either

classification interests or additional special conservation interests for an SPA, the wintering

grey heron is designated as a special conservation interest for four SPAs and the wintering

mallard is designated as a special conservation for nine SPAs. The 2013 Review sets out

the SPAs for which wintering grey heron is a special conservation interest (see pages 62-

63) and the SPAs for which wintering mallard is a special conservation interest (see pages

88-89).

33. The following SPAs have been classified for wintering grey heron and wintering mallard,

using data from the Irish Wetland Bird Survey (‘I-WeBS’) from the baseline period

1995/1996 to 1999/2000:

(i) The highest ranking site in Ireland for grey heron was selected for SPA classification on

the basis of the grey heron as a classification interest (Inner Galway Bay SPA, site code

8000004031);

(ii) Three further SPAs that exceeded the threshold of national importance for grey heron

(more than 50 individuals recorded) have the grey heron listed as an additional special

conservation interest (Cork Harbour SPA, site code 8000004030; Lough Swilly SPA, site code

8000004075; Wexford Harbour and Slobs SPA, site code 8000004076);

(iii) The highest ranking site in Ireland for mallard was selected for SPA classification on the

basis of the mallard as a classification interest (Wexford Harbour and Slobs SPA, site code

8000004076);

(iv) Eight further SPAs that regularly support nationally important mallard populations (480

or more individuals recorded) have the mallard listed as an additional special conservation

interest (Lough Foyle SPA, site code 8000004087; Lough Swilly SPA, site code 8000004075;

Lough Ree SPA, site code 8000004064; Dundalk Bay SPA, site code 8000004026; Tralee

Bay Complex SPA, site code 8000004188; Cork Harbour SPA, site code 8000004030;

Ballyallia Lough SPA, site code 8000004041; Castlemaine Harbour SPA, site code

8000004029).

34. As I noted above, the primary evidence base that underpinned the selection of these

SPAs for these species and other wintering waterbirds was l-WeBS. I have undertaken an

interrogation of the l-WeBS data for the relevant period and the River Nore SPA

was not identified as a site suitable for classification for any relevant wintering

waterbird population.”

104. The words “may well” and “could potentially” come across as conveying a not-altogether-

self-explanatory degree of uncertainty. Surely the NPWS knows whether there are wintering Grey

heron and wintering Mallard in the State. This needs to be considered in terms of what is regarded

as scientifically established (or at least likely) rather than mathematically certain – you don’t need

to be David Hume to interject to the effect that the fact that birds were seen last Winter does not,

in some cosmically absolute sense, mean that it is certain that they will be there next Winter, but

the question is whether there is any real scientific doubt about such a prediction – otherwise, on a

standard equating that which is not 100% certain to that which is just a possibility, the whole

business of designation of sites would just be a sub-branch of astrology. Indeed the affirmative

answer to this seems to follow from the fact that it is accepted that various sites have been

designated on that basis. In fairness to the State I will be giving them an opportunity to clarify all

of this before deciding the issue (see below).

105. This takes us back to the criteria to select SPAs in the first place:

“The classification of SPAs and the recording of species

14. The criteria adopted for selecting sites for SPA classification in Ireland are set out in the

2013 Review. The 2013 Review recorded the criteria that had already been used by the

NPWS for a number of years.

15. Section 3.1 of the 2013 Review sets out that sites that meet one or more of the following

criteria, during a defined baseline period, are eligible to be selected as SPAs:

(i) A site regularly supporting 20,000 waterbirds or 10,000 pairs of seabirds;

(ii) A site regularly supporting 1% or more of the all-Ireland population (i.e. the total

population in the island of Ireland) of a species listed in Annex I of the Birds Directive;

(iii) A site regularly supporting 1 % or more of the biogeographic population of a migratory

species (that is, 1% or more of a discrete population occurring within a geographic area

across which broadly similar groups of plants and animals are distributed, where that

discrete population is unlikely to breed or exchange individuals with other populations of the

same species);

(iv) A site considered to be one of the most suitable sites in Ireland for an Annex I species

or a migratory species.

16. It should be noted that while different biogeographic populations usually occur in distinct

geographic locations, there can be overlap as to geographic location from different

biogeographic populations of the same species at certain points of the annual cycle, such as

breeding, staging or wintering.

17. It is clarified in section 3.1 of the 2013 Review that the number of sites that meet the

criterion at (iv) is informed by ‘the importance of the Irish territory for the international

conservation of the species i.e. it is scaled according to the percentage share of the

biogeographic population that Ireland supports.’

18. When a site has been identified as meeting the requirements for classification, a list is

assembled identifying the specific features of interest present within that site that will be

afforded particular protection. These features are known as the special conservation

interests of the site. The special conservation interests of a site can be divided into two

categories: the classification species, for which the site was classified, and the additional

conservation interests. These special conservation interests are of relevance for the overall

protection and management of the SPA network.

19. As set out in section 6.2 of the 2013 Review:

The additional special conservation interests for an SPA includes all relevant Annex 1 and

regularly occurring migratory species whose recorded abundances during the relevant

baseline period meet or exceeded the all-Ireland 1 % threshold, but were not selection

species for the site.

20. The listing of a particular species as a special conservation interest for a particular site

is dependent upon various factors including, inter alia, the quality and quantity of the

evidence base (including bird numbers, behaviour and habitat within the sites) as well as

the ecology of the particular species in question including its seasonality at the site in

question (by which I mean the season or seasons in respect of which the particular bird

species attracts protection, which may be the breeding season, the winter (nonbreeding)

season or both).

21. It is not the case that either Annex I species or regularly occurring migratory species

qualify as additional special conservation interests by virtue of simply any recorded presence

within a site. The recorded population needs to be of sufficient significance on the basis of

the criteria documented in the 2013 Review, including whether or not a population is in fact

migratory.

22. Special conservation interests for SPAs are held on file by the NPWS, listed on the NPWS

Sites Registry Database, set out in the NPWS Site www.npws.ie. They are also specified in

the Statutory Instrument that formally classifies the site as an SPA.

23. Once SPAs have been classified by Ireland and the relevant special conservation interests

have been identified, these sites are notified to the Commission by way of the completion of

a Standard Data Form. The species identified as special conservation interests for that SPA

are listed on the Standard Data Form; other Annex I and/or regularly occurring migratory

species that have been recorded as present within the SPA may also be listed on the

Standard Data Form.

24. Formerly, the format of the Standard Data Form was that set out in the Annex to

Commission Implementing Decision 2011/484/EU. In that version of the Standard Data

Form, all bird species listed in Annex I of the Birds Directive or that qualified as regularly

occurring migratory species that were present on the site were recorded in section 3.2

without distinction as to which were special conservation interests for that SPA and which

were not.

25. The format of the Standard Data Form is now that set out in Commission Implementing

Decision (EU) 2023/2806. The new format allows Member States to indicate the distinction

between Annex I species and regularly occurring migratory species that are present on the

site and those that ‘met the ornithological criteria used to justify SPA classification (at the

time of site classification or at a later point in time)’ (see section 3.2.12).

26. It can be seen from the above that the fact that even if an Annex I species or a regularly

occurring migratory species is recorded as being present within an SPA does not mean that

it will necessarily qualify as an additional conservation interest such that site-specific

conservation objectives and measures must be put in place for that species.”

106. The logic of the State’s position seems to be that they apply the same criteria for designating

an SPA in the first place to whether particular species should be included in objectives for an SPA

that they have already decided to designate on the basis of other species. That is not self-evidently

illogical but it is not self-evidently beyond question either.

107. At the risk of over-summarisation, what emerges from the foregoing is that:

(i) Grey heron and Mallard are regularly occurring migratory species in Ireland.

(ii) They have also been present in the SPA (there is nothing to suggest this is no longer

the case).

(iii) The state of data, if any, as to the extent if any to which they are present in the SPA

as migratory birds has not been clarified by the State, and one infers a lack of

surveys/data (I will be giving the State the opportunity to clarify this).

(iv) The primary survey conducted (in 2010) was in Spring and thus was not capable of

answering the extent of the presence of a migratory population.

(v) It is not clear what specifically the l-WeBS data say about this precise issue other

than not identifying the site as suitable for designation on the basis of the Grey

heron and Mallard (I will be giving the State the opportunity to clarify this).

(vi) Inferentially at the time of designation of the SPA (again the State may be able to

clarify), Grey heron/ Mallard fell outside selection criteria that are used by the State

when deciding whether to designate a site based on a particular species in itself,

which relate to matters such as the percentage of significant populations present or

large absolute numbers of birds/pairs. However this could be somewhat circular if

there is in fact a lack of data because that inevitably means that there would be a

lack of a basis to meet the selection criteria.

108. Remaining strictly within the pleaded case (which complains of a lack of

objectives/measures), the essential question arising from the foregoing (insofar as I can formulate

it at the moment – something which (if I can borrow Dr Tierney’s phrase) may well change in the

light of responses) is whether, in the case of a given SPA that has been designated for an

Annex I species (the first-mentioned species), a member state is relieved from any

obligation under Article 4 of the birds directive from establishing objectives/measures

relating to the SPA concerned for another species (the second-mentioned species), being

regularly occurring migratory birds in the member state taken as a whole, if (a) the

member state has established general criteria to determine significance of presence in a

particular site of any given species of birds by way of matters such as the percentage of

significant populations present or large absolute numbers of birds/pairs, (b) such criteria

are used both to decide on (i) whether to designate the SPA in the first place by reference

to any particular species such as the first-mentioned species, and (ii) whether to establish

objectives/measures additionally for another species present on the site such as the

second-mentioned species in a site already being designated for a particular species such

as the first-mentioned species, and (c) there is a lack of surveys and/or of data regarding

the extent of the migration-related presence of the second-mentioned species in the SPA

concerned such that the member state does not consider the criteria for significance as

so established are met so as to necessitate objectives/measures for that species.

109. To anticipate any potential querying of that initial attempted formulation, which is in any

event subject to submissions, an applicant is not obliged in pleadings to anticipate what the defence

is going to be, and indeed there is no reply pleading in judicial review. So while the question is

obviously more elaborate than the applicants’ original point, the elaboration derives from the points

made in opposition.

110. I am not satisfied that all aspects of this have been fully argued given that the point may

have been obscured or confounded by other arguments which are clearly not sustainable as outlined

in this judgment and the associated judgment in the challenge to the first decision. Isolating the

core issue should help to bring clarity to the resolution of the matter. The best approach to advance

matters would appear to be by giving the parties an opportunity to make further written submissions

on the issues that arise, which I set out below.

111. To be clear where this point is capable of going, core ground 6 was expressly not argued as

a basis for certiorari and is not pleaded as a basis for certiorari but even if it had been, I would have

rejected that due to the insuperable evidential deficit that arises from the notice party having

demonstrated a lack of impact of this particular project on the relied-on bird species. Even assuming

a developer’s-worst-case-scenario that joined cases C-27/25 and C-356/25 Knocknamona and

Massey result in a so-called jurisdictional bar to development consent in the absence of the fullest

possible elaboration of conservation objectives in any European sites in the zone of influence of any

given project (or the State as a whole – after all, we are talking about worst case scenarios), and

even assuming that the CJEU rejects the suggestion of a temporal limitation on any such judgment

(which was raised by Advocate General Kokott in those cases on 16 February 2026 (based on for

example, the judgment of 17 March 2021, Academia de Studii Economice din Bucureşti, C-585/19,

EU:C:2021:210, paras. 79 and 80)), it would be an imprudent and improvident exercise of the power

of judicial review to quash an individual consent if such an infirmity would not have made any

difference to the particular decision concerned. EU law recognises such a doctrine of harmless error,

which the Supreme Court has described as well-established. This should not be controversial. So if

hypothetically this point was to go further, it does not affect the making of an order now dismissing

the certiorari claim.

Issues that arise in relation to potential declaratory relief regarding the SPA issue

112. It follows from the foregoing that I will give the parties the opportunity to make further

written submissions on the issues that remain in relation to declaratory relief. The certiorari claim

can be dismissed now for the reasons outlined.

113. The points for further written submissions are:

(i) Whether the State wish to or should be invited to clarify the factual questions

including if the inference in the judgment as to a lack of data of the extent of

migratory populations of Grey heron and Mallard in the SPA concerned is correct.

(ii) Whether the State’s preliminary objections, assuming they are valid in EU law, are

an answer to the claim, those objections being:

i. Failure to litigate the matter following the setting of conservation objectives

and/or measures for the River Nore SPA and/or the River Barrow and River

Nore SAC and thus being outside the alleged time limits and/or having not

sought an extension of time.

ii. Failure to litigate the matter in the first proceedings – the applicants seemed

to bridle at my calling this a Henderson v. Henderson [1843-60] All E.R. Rep.

378, 67 E.R. 313, (1843) 3 Hare 100 point, but that wasn’t adding anything.

That is self-evidently what the objection is – a rose by any other name is

still a rose, and the fact that the State didn’t use that term doesn’t make

any difference to anything. Consideration of this point may perhaps require

examination of the decision in Clonres CLG v. The Minister for Arts, Heritage

and The Gaeltacht & Anor [2022] IECA 172 (Unreported, Court of Appeal,

Whelan J., 28 July 2025) and the High Court decision in that case.

iii. Not having and/or retaining sufficient interest to make this point in the

absence of the postulated error having any impact on the impugned

permissions based on the evidence in the case.

iv. Not having and/or retaining sufficient interest to make this point in the

absence of the postulated error having any pleaded impact on the impugned

permissions.

v. Inadequate pleadings – by and large I have addressed this problem in the

present judgment by identifying a large number of issues that are not

pleaded, and confining the applicants, insofar as concerns core ground 6, to

the two sub-issues set out above, only one of which survives the present

module because sub-issue 1 is fundamentally misconceived on the merits.

The matters identified seem acceptably clear from the pleaded case.

(iii) If yes, whether such objections are valid measured against EU law (including

whether the law regarding such objections is sufficiently clear as to comply with the

principle of legal certainty).

(iv) If either of the foregoing are negative, how the substantive question posed in this

judgment should be answered.

114. While the State will have to get involved in Module III, it is entirely up to the other opposing

parties to decide whether to do likewise. It hopefully goes without saying at this stage that as a

general approach I have almost invariably found that the wider the suite of voices involved in a

given issue the more helpful that is to the court, but parties should not take that general position as

putting them under any expectation whatsoever to remain involved and they are entirely at liberty

in that regard to do as they think best. The proposed order below reflects that right of election. The

commission at draft judgment stage said that it wanted to be helpful to the court and asked in

essence if I would like their assistance – the answer to that is always going to be Yes (as it will be

if the entity asking is the State or a significant eNGO or some other entity whether from a pro-

applicant, neutral or opposing standpoint that is going to be in a position to provide meaningful

additionality by way of particularly relevant and valuable perspectives), and “always” most certainly

includes the present case, in which the written and oral submissions from the commission were of

an exceptionally high quality (without taking from the excellence of all other submissions), but at

the same time I do want the commission to feel free to make its own decision and any court will

totally understand and accept that either way.

Summary

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

(i) it is settled law that the applicant’s point must be properly pleaded with the

requisite specificity;

(ii) applying such law to the facts here, the applicants’ proposed point about an alleged

obligation to designate an SPA when designating an SAC is not pleaded;

(iii) it is settled law (as reflected in the express terms of the habitats directive and

acknowledged in the terms in which the point is pleaded by these applicants) that

public participation only arises under the habitats directive when AA is required;

(iv) applying such law to the facts here, this is not such a case;

(v) it is settled law that legislation should be given a conforming interpretation where

available and not contra legem;

(vi) applying such law to the facts here, if AA had been required, the legislation can be

read conformingly so as to facilitate the commission in allowing public participation;

(vii) it is acte clair from the text of the habitats and birds directives that the whole

structure of the two directives is premised on the fact of objectives/measures under

the habitats directive not applying to birds because bird species are excluded

from Annex II to the habitats directive;

(viii) applying such law to the facts here, any bird-related actions allegedly required in

relation to Annex I species in an SAC designated under the habitats directive can

only arise as steps under the birds directive and not, as pleaded, by way of

designating measures/objectives for the SAC, the procedure for which arises under

the habitats directive;

(ix) it is settled law that a decision should not be quashed for harmless error; and

(x) applying such law to the facts here, any error by the Minister in not establishing

conservation objectives/measures for the additional pleaded bird species was not

capable of affecting the robustness of the permission due to the evidential conclusion

arising from the lack of impact of the project on such species.

116. By way of a ground-by-ground summary of the disposition of the matter thus far:

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

(ii) core ground 2 – withdrawn by applicants prior to Module I (confirmed in applicants’

written submissions);

(iii) core ground 3 – dismissed in No. 1 judgment;

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

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

(vi) core ground 5A – dismissed in No. 1 judgment (on the basis that any complaint

properly comes within core ground 7 as against the State);

(vii) core ground 6 – failure to establish conservation objectives – dismissed in part in

this judgment, balance regarding objectives for the SPA requires further

submissions; and

(viii) core ground 7 – invalidity of s. 146B – dismissed in this judgment.

Order

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

(i) the proceedings be dismissed save in respect of the following elements of the

amended statement of grounds:

i. relief 2 (general declaration);

ii. the following elements of relief 3:

“3. A Declaration that the Fourth Respondent erred and acted contrary

to reg 24 of S.I. No. 477/2011 - European Communities (Birds and Natural

Habitats) Regulations 2011 by failing to establish the necessary conservation

measures involving, if need be, appropriate management plans specifically

designed for the Gray Heron and the Mallard in the River Nore SPA ...

integrated into other development plans and appropriate statutory,

administrative, or contractual measures which correspond with the

ecological requirements of those species that ought to be subject to the

conservation objectives of the site, and the Fourth Respondent erred and

acted contrary to reg. 26 by failing to exercise their functions relating to

nature conservation so as to secure compliance with the requirements of the

... Birds Directive by establishing conservation objectives and measures for

the Gray Heron and Mallard on the River Nore SPA ... and acted contrary to

reg. 7(b) by failing to identify additional species referred to in Article 4(1)

and 4(2) of the Birds Directive for inclusion in the conservation objectives of

the site..., when they knew or ought to have known that Gray Heron and

the Mallard ... were present in such numbers on such sites to require specific

protections.”;

iii. relief 5 (costs) (only in respect of parties participating in the further module

regarding the remaining issues);

iv. the following elements of core ground 6:

“6. ... the Fourth Respondent erred and acted contrary to reg 24 of S.I.

No. 477/2011 - European Communities (Birds and Natural Habitats)

Regulations 2011 by failing to establish the necessary conservation

measures involving, if need be, appropriate management plans specifically

designed for the Gray Heron and the Mallard in the River Nore SPA ...

integrated into other development plans and appropriate statutory,

administrative, or contractual measures which correspond with the

ecological requirements of those species that ought to be subject to the

conservation objectives of the site, and the Fourth Respondent erred and

acted contrary to reg. 26 by failing to exercise their functions relating to

nature conservation so as to secure compliance with the requirements of the

... Birds Directive by establishing conservation objectives and measures for

the Gray Heron and Mallard on the River Nore SPA ... and acted contrary to

reg. 7(b) by failing to identify additional species referred to in Article 4(1)

and 4(2) of the Birds Directive for inclusion in the conservation objectives of

the sites, when they knew or ought to have known that Gray Heron and the

Mallard ... were present in such numbers on such site... to require specific

protections. Further particulars are set out in Part 2 below.”; and

v. the following elements of sub-ground 24:

“24. The Minister acted contrary to EU law as clarified in the judgment of

the CJEU in Case C-66/2023 Elliniki Ornithologiki delivered on 12 September

2024, by failing to establish the necessary conservation objectives and

measures and or failing to apply the appropriate level of protection to the

Heron and the Mallard birds that rely on and or are associated with the River

Nore SPA but for whom the site was not designated ... ”;

(ii) the foregoing order be perfected forthwith following the mention date of 23 March

2026 (subject to the below provisions as to costs and unless any written submission

is uploaded and served prior to 13:00 on Friday 20 March 2026 making any

consequential application);

(iii) in the event that particular opposing parties do not wish to participate in Module III

as to declaratory relief following the foregoing dismissal of certiorari, and subject to

any contrary submissions prior to 13:00 on Friday 20 March 2026, there be no order

as to costs between the applicants and such parties (including all costs previously

reserved or not otherwise dealt with), such order to be included in the order to be

perfected forthwith, with any such parties being excused from further participation

in the proceedings following such perfection;

(iv) in the event that particular opposing parties do wish to participate in Module III

regarding the declaration, subject to contrary submissions in due course, there be

no order as to the applicants’ costs of the dismissed issues, and such participating

opposing parties’ costs of such issues be reserved, and the applicants’ and

participating opposing parties’ costs of the continuing issues be reserved, such order

not to be perfected until the final module;

(v) 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;

(vi) the parties participating in Module III be directed to prepare a composite document

incorporating all sides’ submissions (in the format of a statement of case but with

submission-level word limits of an indicative 10,000 words per party), such

submissions to be self-contained insofar as possible rather than unnecessarily

referring the reader back to previous documents/ submissions, as follows:

i. within 21 days from the date of formal delivery of this judgment, the

participating opposing parties provide their input by way of submissions on

points (i) to (iii) of the list of issues for further submissions (facts,

preliminary objections and EU law compatibility of such objections);

ii. within a further period of 21 days, the applicants provide their input by way

of replies to points (i) to (iii) and submissions on point (iv) (substance);

iii. within a further period of 7 days, the participating opposing parties provide

their input by way of replying submissions on point (iv) (substance);

iv. the parties then forthwith combine the foregoing submissions into the

composite statement-of-case-type document and upload that document for

the attention of the court; and

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