High Court dismisses appeal where developer failed to conduct mandatory physical archaeological surveys before planning application.

[2026] IEHC 137

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2022.0000672]

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

ACT 2000 AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT (HOUSING) AND

RESIDENTIAL TENANCIES ACT 2016

BETWEEN

DEIRDRE CONDON

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

RUDEN HOMES

NOTICE PARTY

(No. 2)

Date of impugned decision: 3 June 2022

Date proceedings commenced: 28 July 2022

Application for a hearing date: 12 February 2024

Substantive hearing date: 10 April 2025

Date of substantive judgment: 2 May 2025

Submissions seeking leave to appeal: 22 September 2025

Main hearing date for leave to appeal: 10 November 2025

Date draft judgment circulated: 13 February 2026

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

“[A]s stated in the Development Plan Objective 2014 HE 3-4 these buildings shall be

subjected to careful assessment. The assumption that they can be demolished without

acknowledgement and due regard to their heritage value is unacceptable and development

in this area should be omitted pending the outcome of the Historic assessment of the

buildings.” [Archaeology officer of Cork County Council, report to the Board]

“The northern part of the proposed development site, comprising the wooded area and the

grounds around The Highlands dwelling house and outbuildings was not available for

inspection and were not accessed during fieldwalking. ... ” [Archaeological Assessment

prepared by developer’s archaeologists, dated December 2021, 4.3 and 4.5].

“I had no direct engagement with [the archaeologist] relating to the Archaeology Assessment

and it was only after the within proceedings issued that I became aware that she had stated

in the Archaeology Assessment that Highlands House was not available for inspection. I was

concerned by [her] use of words as she never requested me to provide access to

Highlands House and if there was any difficulty whatsoever arrangements were

required would be put in place immediately.” [affidavit of director of notice party, para.

3]

1. An old Jewish saying defines chutzpah as the quality demonstrated by “the boy who

murdered his parents and then pleaded for mercy from the court on the grounds that he was an

orphan” (as recounted by Irvin D. Yalom in The Schopenhauer Cure (New York, HarperCollins, 2005)

p. 73). Almost as if viewing this as a how-to guide for forensic success, the developer here put

forward an archaeology report to the commission that claimed that the relevant old structures were

not available for inspection during the site visit, failed to mention that there was no site visit at all

for the purposes of the application but rather an earlier site visit for a different application was

recycled at a desk, failed to mention that the reason for this was lack of time, incorrectly claimed

that the structures were not “available” when in fact they were simply not relevant to the earlier

application as they fell outside the red-line for that earlier and more limited application, failed to

explain any of this in the report until the matter was queried in these proceedings, incorrectly claimed

through its consultant on affidavit that there was a “Heritage Report” supporting a conclusion of no

historic merit, exhibited the archaeology assessment which made no such claim but which to the

contrary advocated inspection and assessment of the structures, unwisely doubled down when the

non-existence of this confabulated report was raised and sought refuge in various other documents,

some of which either don’t support such a conclusion or positively contradict it, and finally sought

leave to appeal with the startling claim that compliance with the development plan here would have

sweeping implications, when minimal effort was in fact made to engage with the plan in the first

place.

Procedural history

2. In Condon v. An Bord Pleanála (No. 1) [2025] IEHC 255 (Unreported, High Court, 2 May

2025), I granted an order of certiorari quashing the commission’s decision. The notice party now

seeks leave to appeal.

3. Following the substantive judgment on 2 May 2025, the notice party took some time – the

best part of 5 months, albeit one of those was August – to formulate proposed questions of law for

appeal, and ultimately delivered legal submissions seeking leave to appeal on 22 September 2025.

The applicant delivered replying submissions. The matter was heard on 10 November 2025.

Following that there were a number of mention dates and further affidavits and exchanges to attempt

primarily to clarify why the archaeologist’s report stated that the structures were not available for

inspection when in fact they were so available at all times material to the present proceedings.

4. Judgment was reserved at the final mention date of 9 February 2026. 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.

5. On 13 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.

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

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

disregarded) but are confined to matters such as:

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

issues;

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

both modes;

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

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

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

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

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

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

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

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

party considers could beneficially be decided;

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

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

for; and

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

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

reason.

7. 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 deadline specified, 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).

8. 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.

9. The deadline for submissions was to be 09:30 on Friday 20 February 2026. The notice party

asked for further time but did not in the end suggest any changes. It did want the option of

considering the costs position so I put the matter in for one final mention on 9 March 2026.

Leave to appeal

10. The statutory criteria for leave to appeal are familiar. Some of the major elements required

for the grant of leave to appeal are as follows:

(i) The point must properly arise

(a) The question must fall within the pleadings: 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). The issue of whether a point falls within the pleadings, as

determined by the trial court, does not normally raise a point of law

suitable for an appeal: see Leech v. An Bord Pleanála [2025] IESCDET 106

(O’Malley, Murray and Donnelly JJ., 30 July 2025) at 30 “The essential

point made by the Applicant is that the trial judge granted relief quashing

the decision of the Board on a basis that was not pleaded, that

misinterpreted the decision of the Board granting the permission in

question, and that failed to properly apply the general presumption that a

decision of an administrative body is lawful. Issues of pleading and of an

alleged misinterpretation of a specific administrative decision will usually

be case specific and will not present issues of law of public importance.

While the presumption of validity attaching to administrative decisions

represents an important legal principle, the fact of that presumption and

its effect are not the subject of any uncertainty and the application of the

presumption to a particular decision will not usually involve an issue of law

of public importance”.

(b) The question must actually arise on the facts and should not be

launched in the abstract: see analogously Minister for Justice and Equality

v. Andrzejczak (No. 2) [2018] IEHC 11, [2018] 1 JIC 1603 (Unreported,

High Court, Donnelly J., 16 January 2018), para. 10.

(c) The question raised must actually have been argued by the would-be

appellant and must not be a new issue formulated for the purposes of an

appeal: GOCE Limited v. An Bord Pleanála [2025] IEHC 43 (Unreported,

High Court, Farrell J., 31 January 2025).

(d) While not an absolute rule, the question should be determinative in some

sense and should make a difference to the outcome – generally it

should not be one which, if answered in a sense favourable to the would-

be appellant, would leave the result unchanged: S.A. v. Minister for Justice

and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC

1404 (Unreported, High Court, 14 November 2016); Morehart v. An Bord

Pleanála [2025] IEHC 701 (Unreported, High Court, Farrell J., 8 December

2025) at 9. This is part of a broader principle that prolonging the process

by recourse to a further instance can’t be based on just identifying some

shiny and interesting point – the whole thing has to be going somewhere.

O’Donnell J. (Clarke and Dunne JJ. concurring) put this vividly in Rooney

v. Minister for Agriculture and Food [2016] IESC 1 (Unreported, Supreme

Court, 28 January 2016) at para. 3: “Some litigants, and not just those

who represent themselves, prefer the comfort of focusing exclusively on

the debatable ruling or judicial comment reinforcing a sense of grievance

rather than recognise the forest of problems in the overall case. The cycle

continues and becomes almost a form of litigious perpetual motion”.

(e) The question must accurately reflect the judgment and must not be

an addition, exaggeration or distortion launched for the purposes of

creating a case for appeal: Monkstown Road Residents Association v. An

Bord Pleanála [2023] IEHC 9, [2023] 1 JIC 1907 (Unreported, High Court,

19 January 2023) per Holland J. at §9(d); Stapleton v. An Bord Pleanála

[2025] IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J. As

put more generally by the Supreme Court in Cooper v. An Bord Pleanála

[2025] IESCDET 96 (O’Malley, Collins and Donnelly JJ., 28 July 2025) at

15, “The applicant’s misunderstanding of the legal situation does not

amount to a matter of general public importance”.

(f) The application for leave to appeal should be made within time,

generally within 28 days from the order to be appealed against: S.A. v.

Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC

439, [2016] 11 JIC 1404 (Unreported, High Court, 14 November 2016).

(g) The question should be specific and should identify something specific that

makes a difference – it should not be an invitation to an appellate

court to write an essay on a particular topic or engage in a discursive,

roving response: S.A. v. Minister for Justice and Equality (No. 2) [2016]

IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High

Court, 14 November 2016); Stapleton v. An Bord Pleanála [2025] IEHC

178 (Unreported, High Court, 1 April 2025) per Holland J.

(ii) The point must be one of law

(a) The point cannot be an essentially factual question such as construing

the import and effect of a particular decision: Leech v. An Bord Pleanála

[2025] IEHC 157 (Unreported, High Court, 24 March 2025) per Farrell J.

(b) Relatedly, the question should not be one of application of law to

particular facts but rather one of the substance, content and

interpretation of law. Questions about the application of established

principles to particular facts are not pure questions of law and are at best

mixed questions of fact and law, and are generally unsuitable for appeal

in such a context: B.S. v. Director of Public Prosecutions [2017] IESCDET

134 (Clarke C.J., O’Donnell, McKechnie, MacMenamin, Dunne, Charleton

and O’Malley JJ., 6 December 2017); per Simons J. in Halpin v. An Bord

Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 (Unreported, High Court, 15

May 2020), para. 60; per Barniville J. in Rushe v. An Bord Pleanála [2020]

IEHC 429, [2020] 8 JIC 3101 (Unreported, High Court, 31 August 2020);

per Phelan J. in Stanley v. An Bord Pleanála [2022] IEHC 671, [2022] 11

JIC 2805 (Unreported, High Court, 28 November 2022); Eco Advocacy CLG

v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The

National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62

(Charleton, Woulfe and Collins JJ., 27 May 2024); per Farrell J. in Leech

v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court, 24 March

2025).

(iii) The point of law must be of public importance

(a) The question must not be fact-specific arising in the particular context

of a particular case – rather it must transcend the facts in order to create

a point of public importance: see analogously and albeit non-

precedentially, Patrick McCaffrey & Sons Limited v. An Bord Pleanála

[2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 20 November 2024).

See also Leech v. An Bord Pleanála [2025] IESCDET 106 (O’Malley, Murray

and Donnelly JJ., 30 July 2025) at 30: “The essential point made by the

Applicant is that the trial judge granted relief quashing the decision of the

Board on a basis that was not pleaded, that misinterpreted the decision of

the Board granting the permission in question, and that failed to properly

apply the general presumption that a decision of an administrative body is

lawful. Issues of pleading and of an alleged misinterpretation of a specific

administrative decision will usually be case specific and will not present

issues of law of public importance. While the presumption of validity

attaching to administrative decisions represents an important legal

principle, the fact of that presumption and its effect are not the subject of

any uncertainty and the application of the presumption to a particular

decision will not usually involve an issue of law of public importance”.

(b) Advancing the proposed question should resolve doubt rather than

create doubt where none exists – this is consistent with the views of

Baker J. in Ógalas v. An Bord Pleanála [2015] IEHC 205, [2015] 3 JIC

2008 (Unreported, High Court, 20 March 2015) that an appeal may be

necessary in the public interest to resolve doubt. But if no doubt exists,

the function of the appeal mechanism is not to introduce new uncertainty

into the system. Nagle View Turbine Aware Group v. An Bord Pleanála

(No. 2) [2025] IEHC 3 (Unreported, High Court, 10 January 2025)

endorsed a submission that “where the law is not uncertain, the public

interest suggests an appeal is not warranted”.

(c) The application for leave to appeal should engage with the rationale of

the judgment being appealed against and provide a plausible basis

as to why that judgment is wrong to the level that meets the criteria

for an appeal. While a leave to appeal application is in one sense premised

on the view that the decision may be incorrect, that does not relieve a

would-be appellant from actually engaging with the logic and reasoning of

the judgment as opposed to merely repeating his or her position: see

analogously and non-precedentially, Nagle View Turbine Aware v. An Bord

Pleanála [2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10 March

2025).

(d) The fact that an official body is seeking leave to appeal is a relevant factor

(Sherwin v. An Bord Pleanála (No. 2) [2023] IEHC 232, [2023] 5 JIC 0802

(Unreported, High Court, 8 May 2023)) but the mere fact that the

request for leave to appeal is made by an official entity does not

convert a point into one being suitable for appeal if it would not

otherwise be so. As pointed out in Stapleton v. An Bord Pleanála [2025]

IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J., a body

concerned that it is bound by a decided issue is the whole point – the

system is not a one-way ratchet whereby only applicants are bound by

caselaw.

(e) The fact that a point is “novel” is not determinative as to whether a point

is suitable for the granting of a certificate, or to put matters another way,

the mere fact that a point is novel does not render it a suitable

basis for appeal if it would not otherwise be so: Callaghan v. An Bord

Pleanála [2015] IEHC 493, [2015] 7 JIC 2405 (Unreported, High Court,

Costello J., 24 July 2015). And as Hyland J. observed in Maguire T/A Frank

Pratt & Sons (No. 2) [2023] IEHC 209, [2023] 3 JIC 1307 (Unreported,

High Court, 13 March 2023) at §27: “the mere fact that an applicant for

leave disagrees with a conclusion in the judgment cannot be relied upon

to characterise the state of the law as being uncertain”.

(f) The mere inclusion of a request for a reference to the CJEU does

not convert a point into one suitable for appeal if it is otherwise

unsuitable for appeal by reason of being abstract, or not arising having

regard to the findings of fact, or being an issue of application of law rather

than interpretation, or due to lacking sufficient factual foundation or due

to there not being any demonstrable reasonable doubt, for example: see

analogously Carrownagowan Concern Group v. An Bord Pleanála [2025]

IESCDET 8 (Charleton, Collins and Donnelly JJ., 27 January 2025);

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

(Charleton, Collins and Donnelly JJ., 27 January 2025).

(iv) The public importance must be exceptional

If the would-be appellant establishes that there is a point of law of public importance,

it must also be established that the importance is exceptional.

(v) An appeal must be in the public interest

(a) The context is the objective of the Oireachtas in seeking finality, certainty

and expedition in challenges brought by way of judicial review in planning

cases (Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála

[2022] IEHC 231, [2022] 4 JIC 2601 (Unreported, High Court, 26 April

2022) per Barniville J. at para. 32; Freeney v. An Bord Pleanála [2025]

IEHC 36 (Unreported, High Court, 24 January 2025) per Bradley J.). The

nature of the project and the risks of further delay are factors going to the

requirement that an appeal must be in the public interest: see per

McGovern J. in Dunnes Stores v. An Bord Pleanála [2015] IEHC 387,

[2015] 6 JIC 1805 (Unreported, High Court, 18 June 2015) at §15 and

§16. See also analogously and non-precedentially Eco Advocacy CLG v.

An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National

Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton,

Woulfe and Collins JJ., 27 May 2024) at para. 24: “The Court must have

regard to the potential impact upon the notice party of any further delay

in these proceedings”.

(b) Any assertion of problems in practice caused by a judgment must be

backed up with evidence: see Stapleton v. An Bord Pleanála [2025]

IEHC 178 (Unreported, High Court, 1 April 2025) per Holland J.; Phoenix

Rock Enterprises v. An Bord Pleanála & Ors. [2023] IESCDET 97 (Dunne,

Baker and Donnelly JJ., 20 July 2023) at §22 and §30 which dealt with an

argument that alleged uncertainty in the law was creating alleged

difficulties in practice, but rejected this on the basis that there was “no

evidence before the High Court that the quarry industry was being

seriously affected by the issues in the case”, and that “[t]he decision in

this case was fact-specific to this quarry and it must be recalled that the

role of the Supreme Court on an Article 34 appeal is not to give advisory

opinions but to deal with the controversy at issue between the parties once

the constitutional thresholds have been met”. See also McCaffrey v. An

Bord Pleanála [2024] IEHC 476 (Unreported, High Court, Gearty J., 26 July

2024) at §3.7, leave to appeal refused McCaffrey v. An Bord Pleanála

[2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 29 November 2024).

11. Contextually, perhaps I can point out that if there is a solid case for leave to appeal, it will

presumably be granted – see R.A. v. Refugee Appeals Tribunal [2015] IEHC 830 (Unreported, High

Court, 21 December 2015); B.W. v. Refugee Appeals Tribunal [2015] IEHC 833 (Unreported, High

Court, 21 December 2015); K.R.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 421

(Unreported, High Court, 24 June 2016); S.T.E. v. Minister for Justice and Equality [2016] IEHC 544

(Unreported, High Court, 14 October 2016); R.A. v. Refugee Appeals Tribunal (No. 3) [2016] IEHC

671 (Unreported, High Court, 21 November 2016); B.S. (India) & Anor. v. Minister for Justice and

Equality & Ors. (No. 3) [2020] IEHC 485, [2020] 10 JIC 1202 (Unreported, High Court, 12 October

2020); Dublin City Council v. An Bord Pleanála (No. 2) [2021] IEHC 34 (Unreported, High Court, 28

January 2021); Waltham Abbey Residents Association v. An Bord Pleanála [2021] IEHC 597, [2021]

10 JIC 0702 (Unreported, High Court, 7 October 2021); Sweetman v. An Bord Pleanála (Sweetman

XVII) (No. 2) [2021] IEHC 662, [2021] 10 JIC 2601 (Unreported, High Court, 26 October 2021);

Save Roscam Peninsula CLG v. An Bord Pleanála (No. 2) [2022] IEHC 328, [2022] 6 JIC 0903

(Unreported, High Court, 9 June 2022); Joyce-Kemper v. An Bord Pleanála (No. 5) [2022] IEHC 349

(Unreported, High Court, 10 June 2022); Kerins v. An Bord Pleanála (No. 5) [2023] IEHC 280

(Unreported, High Court, 25 May 2023); Coolglass v. An Bord Pleanála [2025] IEHC 1 (Unreported,

High Court, 10 January 2025); Heavey v. An Bord Pleanála (No. 2) [2025] IEHC 311 (Unreported,

High Court, 30 May 2025). It does not necessarily assist matters to certify superfluous issues that

do not meet the necessary criteria.

The proposed questions of alleged exceptional public importance

12. The notice party’s proposed questions are as follows:

(i) “Whether, as held in South West Regional Shopping Centre v An Bord Pleanála [2016]

IEHC 84; [2016] 2 I.R. 481, the Board is entitled to exercise its own expertise and

determine for itself whether or not an application materially contravenes a CDP for the

purposes of s.37 of the PDA”; and

(ii) “Whether a CDP objective, of a type such as Objective 4-3 [sic], providing for

archaeological assessment requires a mandatory physical survey of all relevant

structures such as to definitively determine the existence, nature and extent of any

remains prior to the date of the making of a planning application”?

Do the points properly arise?

13. What is somewhat surprising about the first question is that the now apparently central case

of South West Regional Shopping Centre v. An Bord Pleanála [2016] IEHC 84, [2016] 2 I.R. 481

(Costello J.) is mentioned nowhere in the notice party’s written legal submissions on the substance

of the matter. Not having been the subject of proper written argument then it cannot plausibly be

contended to be central now.

14. Secondly the notice party is misunderstanding what Costello J. said in that case. To be sure,

at para. 95, she uses the words “the Board was entitled to exercise its own expertise and determine

for itself whether or not the 2014 Application materially contravened the development plan”. But

that is not a statement that everything to do with material contravention is totally subjective for the

board/commission. It is in the context of rejecting the argument actually made, which is set out at

para. 90 – “The applicants argued that as a matter of principle it was not open to the Board to revisit

the determination of the Planning Authority as to whether or not the proposed development

materially contravened the development plan as this would permit the Board to avoid the

requirement of s. 37(2)(b)”. That’s what she means by “own expertise” – in the sense of not being

bound by the council’s view.

15. The notice party misreads a case which it didn’t rely on at the substantive hearing, and now

claims this is a point of law of exceptional public importance arising from the judgment. This is

about as far from the correct procedure as you can get.

16. Perhaps predictably, no oral submissions were made about South West Regional Shopping

Centre v. An Bord Pleanála when the notice party came to actually move the application for leave to

appeal.

17. If anything is settled law it is that the interpretation of the development plan is for the court.

The question gives the incorrect impression that I did something other than interpret the

development plan. The commission’s approach foundered at that point – we didn’t need to get into

their evaluation of the plan having correctly interpreted it. The notice party misunderstands the

principal judgment in this question, albeit that the oral submissions tried to be more nuanced.

18. The second point queries whether “a CDP objective, of a type such as Objective 4-3 [sic],

providing for archaeological assessment requires a mandatory physical survey of all relevant

structures such as to definitively determine the existence, nature and extent of any remains prior to

the date of the making of a planning application”.

19. The reference to 4-3 is erroneous. The relevant provision is 3-4.

20. Moreover, the words “of a type such as objective 4-3 [sic]” are total speculation. The claim

or inference that there are other similar provisions is unparticularised – it would not be difficult to

provide other examples if there are other examples but none have been identified. General

scaremongering assertions even on affidavit are of limited value in this context.

21. More fundamentally, the principal judgment does not decide that “a CDP objective, of a type

such as Objective 4-3 [sic], providing for archaeological assessment requires a mandatory physical

survey of all relevant structures such as to definitively determine the existence, nature and extent

of any remains prior to the date of the making of a planning application”.

22. I did not say that this plan (still less any other plan) required “a mandatory physical survey

of all relevant structures such as to definitively determine the existence, nature and extent of any

remains”. That is the prototypical appellant’s move of exaggerating the decision in order to launch

a straw-man appeal. Insofar as the notice party’s deponent articulates concerns, they are therefore

based on an incorrect premise. Furthermore the question unfortunately ignores the context in which

this all arose. The applicant’s summary gets to the point:

“21. Objective HE3_4 of the CDP requires:

‘…Proposals for refurbishment, works to or redevelopment/conversion of these sites should

be subject to careful assessment.’

22. §12.3.11 of the CDP requires

‘…Buildings shown on the first and second edition Ordnance Survey’s Maps from 1840s and

1900s have the potential to contain earlier structures and features. Prior to development of

these buildings an assessment should be carried to assess the heritage value of the

structure.’

23. The Commission interpreted the CDP as permitting the demolition of buildings

subject to Objective HE3_4 and §12.3.11 without any assessment prior to development

consent being granted. It did so in respect of a building where it had no internal survey,

photographs or any other information and in respect of which it had no carried out a site

visit.

24. Furthermore, the Conservation Officer of the Planning Authority had strenuously

objected to the proposed development (as quoted at §52 of the judgement):

‘The Highlands dwelling house and associated buildings and grounds are Post medieval

heritage buildings. Apart from some photographs in the Architectural Design Statement no

details are provided, there is no assessment of the building complex…as stated in the

Development Plan Objective 2014 HE 3-4 these buildings shall be subjected to careful

assessment. The assumption they can be demolished without acknowledgement and due

regard to their heritage value is unacceptable’”

23. The applicant’s objection is unfortunately justified here:

“7. The basic problem for the Developer is that its proposed point of law bears no

relation to the judgement.”

24. The fallacy behind the notice party’s whole approach here is that it is settled law that

interpretation of the plan is for the court. The applicant sets out the problem:

“13. This is not an open question, still less is it a systemic question. Interpretation of a

CDP to identify if the approach adopted by the Commission is lawful in a given decision is

precisely the type of analysis carried out by the Planning and Environment Court in

effectively every case before it.

14. The Developer says that the error was (§6) ‘In doing so, the Court substituted its

own view of material contravention for the purposes of s.37 for that of the Commission.’

15. Leaving temporarily aside that section 37 does not arise at all, the interpretation of

the Development Plan is precisely the function of the Court. As summarised by McGuiness

J. in Wicklow Heritage Trust v [Wicklow] County Council [[1998] IEHC 19] after a

comprehensive survey of the pre-2000 Act case law:

‘It is for the Court and not for the planning authority to decide as a matter of law whether a

particular development is a material contravention of the local development plan.’

16. After a further comprehensive review of the case law to date (§74 et seq.) Holland

J. made a very similar observation in Jennings [v. An Bord Pleanála [2023] IEHC 14] (§108):

‘First is the question of interpretation of the relevant content of the development plan; that

is undoubtedly a question of law, subject to “full-blooded review”.

17. This proposition has never been disputed and the Developer correctly does not do

so here.”

25. To get around this difficulty, the notice party claims that in the principal judgment

“substituted its own view of material contravention for the purposes of s.37 for that of the Board”.

The confused and unfortunately irrelevant reference to s. 37 only goes to show the scattergun nature

of the issue raised. This was not a permission granted under s. 37 of the 2000 Act. It was granted

under s. 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016,

subsection (6)(c) of which provides (emphasis added):

“(c) Where the proposed strategic housing development would materially contravene the

development plan or local area plan, as the case may be, other than in relation to the zoning

of the land, then the Board may only grant permission in accordance with paragraph (a)

where it considers that, if section 37(2)(b) of the Act of 2000 were to apply, it would grant

permission for the proposed development.”

26. The reason this is irrelevant is that the board never considered whether to apply this

provision so never got to the question of what would happen if s. 37(2)(b) of the 2000 Act were to

apply. There is no substitution of my view for that of the commission on this question because (a)

there was nothing for which my view was to be substituted and (b) I didn’t express a view either on

whether if s. 37(2)(b) were to apply, permission should be granted. To have second-guessing there

needs to be a first guess. Here there isn’t even a second guess, let alone a first one. The sleight of

hand is the vagueness of the words “its own view of material contravention”. In the sense submitted,

that means that by requiring the commission to follow the correct legal methodology on material

contravention, the court is adopting “its own view of material contravention”, and that by quashing

a decision that does not follow the correct legal methodology, the court “substituted its own view of

material contravention ... for that of the Board”. Once we see how this verbal three-card-trick

works, the whole thing collapses immediately. The applicant again identifies the problem with this:

“27. Plainly and simply, the error identified by the Court lay in the Commission’s

interpretation of the CDP and not the result of any evaluative assessment by the Court or

any disagreement as to the merits or otherwise of that assessment. The Court decided that

the complete absence of a pre-consent survey offended the requirements of the CDP. There

simply is not a ‘substitution’ of the Court’s view on the merits of the demolition or otherwise

of Highlands House – all there is in an interpretation of the requirements of the CDP, which

the Developer accepts (§20) is a matter for the Court.”

27. The other textbook move is to claim a conflict of jurisprudence. The outlandish claim is

advanced that the judgment conflicts with Nee v. An Bord Pleanála (No. 1) [2012] IEHC 532

(Unreported, High Court, O’Malley J., 12 November 2012) at [36], Balz and Heubach v. An Bord

Pleanála & Ors. [2016] IEHC 134 (Unreported, High Court, Barton J., 25 February 2016) at [97] and

Freeney v. An Bord Pleanála [2024] IEHC 427 (Unreported, High Court, Bradley J., 9 July 2024),

because those cases “make the crucial distinction between a contravention of or a conflict with

provisions of a CDP as against material contravention of that CDP”.

28. There is something deflating about having to point out that this distinction didn’t arise in this

case because the commission didn’t correctly interpret the plan in the first place, so it never got to

the next stage of addressing the legal procedure for consideration of potential contravention of a

properly-interpreted plan. I sympathise with the applicant’s misgivings about the approach being

adopted by the notice party:

“55. There is no conflict because the authorities cited and the judgement are considering

two completely separate legal issues – to say this is comparing apples and oranges is an

understatement – unlike here, at least those two comparators are both fruit with at least

some similar characteristics.

56. The Developer, respectfully, rather compares apples with Bactrian camels. It then

asks this Court to certify a point of law of exceptional public importance because it is

allegedly important for an appellate Court to decide if apples and Bactrian camels are in fact

different and/or in conflict – the section 37(2)(b) jurisprudence is not only an invalid

comparator, it is in fact entirely incommensurable with the judgement the subject matter of

this application.

57. The Developer’s error, respectfully, can be readily demonstrated by three factual

propositions none of which are open to serious dispute:

a) This is not a decision of the Commission where there was any prior decision by the

Planning Authority for the purposes of section 37(2)(b) - and therefore the alleged

comparators and/or jurisprudential conflict fall away, and

b) This is not a decision where the Commission considered, or in any way assessed or

applied, the application of section 37(2)(b) or the associated jurisprudence - and therefore

the alleged comparators and/or jurisprudential conflict definitively fall away, and,

c) This is not a decision where the Court assessed, impugned or considered the legality

of the Commission’s (non-existent) conclusions pursuant to section 37(2)(b), and therefore,

for a third and final time, the alleged comparators and or jurisprudential conflict simply falls

away.”

29. The larger problem for the notice party is that its analysis is inconsistent with the definitive

statement of the law on material contravention in Sherwin v. An Bord Pleanála [2024] IESC 13

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

concurring).

30. I didn’t recite Sherwin in the principal judgment because the law was clear and didn’t seem

to be in dispute, what I was saying was totally consistent with that and it never occurred to me that

a submission inconsistent with that authority would be made. But now that it has been made, it’s

worth emphasising that the essential problem for the notice party is that the way I disposed of the

point is totally in line with Sherwin’s strictures. Obviously hindsight is perfect vision and had I

anticipated this objection, I would have spelled out the lessons from that case:

(i) Sherwin emphasised the importance of the development plan: Attorney General

(McGarry) v. Sligo County Council [1991] 1 I.R. 99, [1989] I.L.R.M. 768 (Walsh J.)

(Hederman and McCarthy JJ. concurring); Byrne v. Fingal County Council [2001]

IEHC 141, [2001] 4 I.R. 565 (McKechnie J.) (Sherwin paras. 90-92).

(ii) “It is well established that the interpretation of a development plan is

ultimately a matter for the courts. Any misinterpretation of the development

plan by the relevant planning authority is an error of law which goes to jurisdiction.

It is also well established that the development plan is not to be treated as if it were

a piece of primary or secondary legislation emanating from skilled draughtsmen, and

inviting the exceptive canons of construction applicable to such material. Instead,

a development plan falls to be construed in its ordinary meaning as it would be

understood by members of the public without legal training, as well as by developers

and their agents, unless the document, read as a whole, necessarily indicates some

other meaning” (Sherwin para. 96, emphasis added). For the benefit of the notice

party, where the court interprets a plan it is not “substituting” its view for that of

the decision-taker. It is carrying out its role in the system.

(iii) As regards what is a contravention, “Certain aspects of the plan may have a high

level of specificity. In those cases, it may not be at all difficult to determine whether

what is proposed is in contravention of the plan, and it would only remain to exercise

a judgment as to the materiality of any such contravention. However, at the other

end of the spectrum, it is not uncommon to find objectives in a development plan

which may, to a greater or lesser extent, be properly described as aspirational. Such

objectives may be expressed in general terms. In such cases, a much greater degree

of judgment may need to be exercised as to whether the development proposed

amounts to a material contravention of the development plan.” (Sherwin para. 95

citing Maye v. Sligo Borough Council [2007] IEHC 146, [2007] 4 I.R. 678 (Clarke

J.)). In the present instance there was no meaningful assessment at all – it wasn’t

argued that the contravention wasn’t material, rather the argument was the

incorrect one that the plan should be interpreted in some highly artificial and

expedient way to avoid the need for assessment.

(iv) “the first step in making the required determination was for the Inspector to

consider the text of [the] policy … and to interpret that text to some degree, in

terms of what she understood it to mean. In many cases the interpretation of such

a provision may be clear and even self-evident, but in other cases there may be

some lack of clarity requiring some level of engagement with the text.” (Sherwin

para. 109, emphasis added). “it was necessary for the Inspector to give some

indication as to her understanding of what the test meant, before she

moved on to her application of that test, as so interpreted, to the facts of this

planning application.” (Sherwin para. 110, emphasis added). The inspector didn’t

do that here – the objective was only referred to in passing by way of the council’s

view that it had been breached, something the inspector and commission didn’t reply

specifically to.

(v) These requirements are not discharged merely by a planning assessment

that permission should be granted. Thus in Sherwin, “opinion as to Block D1

comfortably sitting side by side with existing protected structures, without detriment

to their character, cannot be viewed as an implicit or indirect assessment of

compliance with policy CHC2. It appears from the sentences which followed this

opinion that the opinion is essentially based on one consideration, that structures

from different periods can co-exist within the same land parcel etc, rather than based

on the considerations expressly stipulated in policy CHC2.” (para. 114).

31. One general point that people can lose sight of is that the content of a judgment at trial level

is significantly dependent on the fault-lines between the parties at that level and how matters are

argued in that context. Not mentioning X is not equivalent to not being aware of X, still less of being

in breach of X – all it means is that X didn’t seem to require mention given the lack of debate about

it. Even anticipating any complaint that I didn’t refer expressly to Sherwin (my defence being, as I

say, that the principles of law didn’t seem to be in dispute so didn’t call for discussion), the outcome

in this case is totally consistent with and amounts in effect to a simple application of the logic of

Sherwin.

32. Let’s recall the relevant provision of the development plan. Objective HE 3-4 of the CDP

states:

“Protect and preserve the archaeological value of industrial and post medieval archaeology

such as mills, limekilns, bridges, piers, harbours, penal chapels and dwellings. Proposals for

refurbishment, works to or redevelopment/conversion of these sites should be subject to

careful assessment.”

33. The introductory text is illuminating:

“Industrial and Post medieval Archaeology

12.3.12 Other important elements of our archaeological heritage are the later remains of

structures and features associated with industrial, agricultural, cultural, military, docks and

harbours, religious, social activities. These Industrial and post medieval items of built

heritage include penal chapels, limekilns, houses, mass paths, stepping stones, mills,

bridges, railway features and famine burial grounds. They can make a valuable contribution

to the local historic landscape and have potential to add to our understanding of the past.

Whilst some of these are Archaeological Monuments and/or Protected Structures, the vast

majority have no such protection and are consequently very vulnerable items of our

heritage.”

34. The point is that the CDP recognises that most of the buildings they are talking about

don’t have protection in themselves. The structures here are just a potential example. It is

simply a necessary logical consequence of that express recognition that the fact that an individual

structure is not protected does not dispense with the need for assessment as set out in the CDP. Or

to put it more simply, the lack of status for a structure doesn’t mean that objective HE 3-4 is

irrelevant. The reason that that is unquestionably the case is because the introductory text is

phrased in terms that include structures that “have no such protection”. A failure to appreciate

that is probably where the erroneous thinking came in, and on one optimistic reading perhaps there

is a hint of welcome acknowledgement of that point in the archaeologist’s latest affidavit.

35. The inspector and commission didn’t make any reference to Objective HE 3-4. They thus

did not engage in the first step of the Sherwin analysis.

36. The only reference to the development plan in the board order is in relation to zoning,

location and design-type matters:

“Reasons and Considerations

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

(a) The location of the site on lands with a zoning objective primarily for residential

development through its location within the Settlement Boundary and also for Open Space

uses, and the policy and objective provisions in the Cork County Development Plan 2014-

2020, as varied, and the Cobh Municipal District Local Area Plan 2017 in respect of residential

development;

(b) The nature, scale and design of the proposed development which is consistent with

the provisions of the Cork County Development Plan 2014-2020, as varied, and the Cobh

Municipal District Local Area Plan 2017 and appendices contained therein,”

37. There is no reference to Objective HE 3-4 at all or to the specific issue to which it relates.

38. The inspector’s discussion of the CDP doesn’t add much:

“Cork County Development Plan 2014 - 2020

6.3.1. The Cork County Development Plan 2014 - 2020 is the current statutory plan for the

Cork County area, and which includes the subject site. Chapter 2 sets out the Core Strategy

for the development of County Cork.

Note: A new Cork County Development Plan 2022 – 2028 comes into force on the 6th of

June 2022, following the adoption of the plan by the Council on the 25th of April 2022.”

39. The discussion of the archaeological report doesn’t take matters much further:

“9. An Archaeological Impact Assessment.

An Archaeological Assessment has been prepared ... This assessment states that there are

no recorded archaeological sites within the application site and that the nearest recorded

monument is a ringfort (CO075-010) which lies 20 m outside the north-western site

boundary and a second ringfort (CO075-009) is located 95 m north of the subject site

boundary. The report states that the north-western site boundary, 20 m southeast of the

ringfort (CO075-010), will provide an exclusion/ buffer zone around the monument. Suitable

fencing will be provided in advance of construction commencing and no development or

construction will be undertaken within this area and the buffer zone will be maintained for

the duration of construction.

The report states that the development will require largescale topsoil stripping/ ground

reduction across the southern part of the site, and also the demolition of upstanding

buildings. It sets out that previously unrecorded sub-surface archaeological features/ finds

may exist in this area and they may be revealed during the earth works/ removal stage of

the development. Pre-construction archaeological investigations of the southern field are

therefore recommended in advance of development to include geophysical survey and

archaeological testing. The report also recommends that archaeological inspection of the

northern part of the proposed development site should be undertaken to include the

woodlands and the existing dwelling house and associated buildings and grounds.

The upstanding buildings should be assessed and recorded in advance of any development

in this section of the site. It is proposed to establish the northwest site boundary as an

exclusion area or buffer zone to the ringfort (CO075-010) 20 m to the northwest. Prior to

the commencement of development this will be securely fenced with post and wire fencing

and will incorporate clear signage prohibiting construction access and it will be retained for

the duration of construction. No machinery will access the exclusion zone, no materials etc.

will be stored within it and no works will be undertaken within this area.”

40. The inspector went on to record the council’s views (p. 47 onwards):

“Archaeology:

• The submitted application includes an archaeological assessment. The Cork County

Council Archaeologist reports that there is no visible or known archaeology within this area

and an adequate buffer is provided for the adjacent ringfort – CO075-010. Concern is

expressed that a geophysical survey and archaeological testing was not carried out and a

suitable condition should be included to ensure that topsoil removal be archaeologically

monitored.

• In relation to ‘The Highlands’ and the attendant farm building, the applicant’s

archaeologist states that they were not accessible and recommends an archaeological

inspection of this part of the site to include the woodland area to north. The Highlands

dwelling house and associated buildings and grounds are Post medieval heritage buildings;

two buildings are shown on the 1840’s OS map. As buildings are indicated on the 1842 OS

map, Section 12.3.11 of the County Development Plan states that they ‘have the potential

to contain earlier structures and features’ and prior to development of these buildings an

assessment should be carried to assess the heritage value of same. In addition, as outlined

in Section 12.3.12 of the County Development Plan later buildings such as this are important

elements of our heritage, though not specifically designated or protected they do make a

valuable contribution to the local historic landscape, and they have the potential to add to

our understanding of the past. Also stated in the Development Plan, Objective 2014 HE 3-

4, these buildings shall be subjected to careful assessment. The assumption that they can

be demolished without acknowledgement and due regard to their heritage value is

unacceptable to Cork County Council and this element of the development should be omitted

by condition pending the completion of the historic assessment of these buildings.

• The CE report recommends that an historic assessment of the building is carried out

by a suitably qualified consultant with experience in recording heritage buildings. It is also

recommended that the building is assessed by a suitably qualified conservation engineer to

assess the structural integrity of the building and the potential for renovation. The buildings

are recommended to be retained until such time as it can be demonstrated that demolition

is appropriate.”

41. Overall one couldn’t plausibly conclude that the commission had engaged with the

development plan in the sense contemplated in Sherwin. So the process didn’t even get to first

base. There is no new radical jurisprudence being created by the principal judgment.

Are the points ones of law?

42. I will give the notice party that much, but dreaming up points of law that have no real

relationship with a judgment is not difficult.

Are the points of public importance?

43. The points are not of public importance because they do not raise any genuine issues of

doubt or of any generality. There is no doubt about the principle that interpretation of the plan is

for the court, and the first proposed question is hopelessly confused on that point for the reasons

stated. There is no issue needing to be clarified. The second point derives its asserted importance

from unmooring itself from the actual facts and context and misunderstanding the principal

judgment. Once we correct those misconceptions there is nothing of importance left – this is a

context specific analysis of a particular provision in a particular development plan based on facts

where the plan called for careful assessment but no prior physical assessment at all was carried out.

44. Compounding this, we now know that the reason for that was lack of time on the part of the

archaeologist – the claim in the archaeology report that the structures were “not available” for

inspection is, I’m afraid, not accurate. This was a poor choice of words and caused a lot of confusion.

Access was not availed of (a very different thing from access not being available), because the report

was produced at a desk, not in the field, and recycled a site visit some years previously for a different

application which did not include the structures, and time did not permit a fresh visit to the expanded

site. The report should have explained this, but the reference to unavailability created a different

and, I’m afraid inaccurate impression – albeit that I am sure the archaeologist (and the notice party’s

side generally) had no intention to mislead.

45. A point based on such facts is not a solid or proper basis to explore the wilder shores of the

extent of obligations of assessment arising from this particular development plan. This is all

academic where the notice party’s expert didn’t even look at the structures due to lack of time.

46. The notice party’s submission reaches a near-paroxysm in its peroration as follows

(emphasis added):

“25. The approach of the Court shall fundamentally change the obligations in respect

of archaeology in respect of all developments where there are CDP provisions of this nature.

It would result in significant costs and delays for major infrastructural projects. For

example, where a road scheme proposes the compulsory acquisition of land, the land cannot

be the subject of a full archaeological survey prior to approval of the scheme and

development consent under ss.49 and 51 of the Roads Act, 1993.

26. The approach of the Board in this case is consistent with the approach that has been

adopted without any issue being raised by the Courts for many decades. This decision

will require a fundamental change in the manner in which the planning authorities or An

Bord Pleanála should approach these type of objectives, namely to require that prior to the

commencement of development a survey is carried out in every circumstance where

assessment is required. This will have the most serious effect on the capacity of

applicants to apply for permission and for the planning authority or the Board to consider

applications without the most detailed examination of both above and below ground

remains.”

47. It’s hard for anybody to cut through this level of moral panic but if we step back for a second

it can be seen that it is a not an accurate account of what I actually decided. Even more

fundamentally, it’s at odds with the actual facts – far from causing “significant costs and delays” and

“the most serious effect”, all that would have been required would have been for the developer to

take the totally normal and obviously appropriate step of getting its archaeologist to look at the site

before writing her assessment.

48. The only reference to a “fully physical” survey was a description of what the commission

actually decided on. That’s just a statement of fact, not a demand or legal rule that a full physical

survey must take place in every case. The only reference to a “full” survey I made was in the obiter

discussion of whether the commission could have given more consideration to omitting the

demolition altogether (para. 75). Other than that obviously obiter reference to a hypothetical, I

wasn’t prescriptive about the quality of the assessment pre-consent. Indeed I said expressly

(emphasis added):

“67. ... The terms of the CDP are clear and, while there could be evaluative issues as to

the exact methodology of surveys or how to respond to the outcome of surveys,

they do not leave the issue of whether to conduct a proper survey in advance of a decision

on permission as being a matter meaningfully in the realm of evaluative judgement.

...

69. Nor, as the board suggests, does the applicant’s argument have the

consequence that an internal assessment is mandatory in all cases. Whether an

internal assessment would be capable of engaging interests protected by the CDP in a given

case depends on the case. For example, if it is known that all historic features are external

and that the internal makeup of the structure has been totally remodelled, internal

examination would serve no particular purpose. Accepting without interrogation a bare

assertion that access was not possible doesn’t put the board in a particularly strong position

under this heading in any event.”

49. Obviously, the assessment has to be sufficient to provide assurance that the purposes of the

development plan are met. This may involve retention of some old buildings. The notice party’s

sleight of hand is to assume that the only old structures that could be retained are foundations –

that is absolutely not what the CDP says and is a misunderstanding of the plan. The plan refers to

incorporation of old structures into newer structures which could be above ground, below ground,

or both.

50. One other aspect of the affidavit on leave to appeal stands out – it purports to make the

sweeping factual claim that:

“46. The question of whether to carry out archaeological surveys in advance shall have

to be considered every major project throughout the State. Development consents for these

projects have contained a condition of this type where the approach of public authorities

has recognised that this has been the accepted practice of dealing with heritage

appraisals both under the relevant development plan and the EIA Directive relating

to cultural heritage. This decision will require all practitioners, developers, public

authorities and planning authorities to reconsider their approach. On my reading of the

judgment of this Honourable Court, I believe that I am obliged to advise clients, and in

particular public authorities, that they must investigate other mechanisms to ensure the type

of information that is provided for in these types of conditions be provided as part of the

application.” (emphasis added)

51. The word “this” (preceding “has been the accepted practice”) means a post-consent survey.

But what is striking about this purported evidence of an alleged “accepted practice” by “public

authorities” in relation to “the relevant development plan” is that it is utterly falsified by the facts of

the present case. There was no such accepted practice – the council went out of its way to argue

for the omission of demolition of the structures without a pre-consent survey. So this purported

evidence unfortunately illustrates the overheated and polemical nature of the affidavit and the fact

that it has lost its moorings from specific facts. Much of it is little more than a legal submission in

the guise of evidence, but a submission that misunderstands the law fairly significantly. Again I am

confident there was no intent to mislead but the foregoing is simply not factual based on what

actually happened in the present case.

52. In that regard, the notice party’s affidavit grounding the leave to appeal application generally

labours under misconceptions about the context and import of the substantive judgment. One

example – it bewails the disadvantages of “a blanket requirement for internal inspection” which was

something I expressly disclaimed. It also purports to endorse an “evaluative” conclusion by the

commission which misses the point – the point being engagement with the development plan and

the statutory architecture. There simply was no evaluative conclusion by the commission that

correctly engaged with the plan as properly interpreted. That’s the whole reason why the applicant

succeeded. What happened in this case was that the plan was misconstrued (a) as effectively not

providing much in the way of assistance to unprotected structures, even though it expressly covers

such structures and (b) as meaning that the required “careful assessment” was an optional extra

that could in any event happen after the decision to demolish. That’s the ratio – that doesn’t involve

any “substitution” of my view (even if I had expressed a view) for any lawfully arrived at evaluative

view of the commission. The contravention that arose was simply a consequence of the foregoing

– the plan requires pre-consent careful assessment including for unprotected old structures. Those

requirements are fairly objective and specific and don’t leave a lot of room for evaluative discretion.

They are not at the end of the spectrum that involves appreciable planning judgement as discussed

in Sherwin. Compliance with those requirements didn’t happen, hence the contravention. Evaluation

could arise in an unlikely hypothetical where the commission would decide to tear up those

requirements and proceed under s. 9(6)(c) of the 2016 Act, although it doesn’t seem empirically

likely that they would feel the need to override a procedural heritage-protective plan provision. Any

further debate about the margin of evaluation will have to wait for a case where such an issue

actually arises.

53. It’s not the correct procedure to try to support by affidavit in judicial review a contested

proposition that the primary structure is modern for example, when the statutory decision-taker

never got to that point by reason of not having correctly engaged with the specific provision of the

development plan concerned. That is also the answer to the confounding and inaccurate claim on

affidavit by the developer’s consultant that a detailed “Heritage Report” supported a conclusion of

no heritage value attaching to the structures (para. 16 of affidavit of 30 November 2023: “I say that

the said structures were the subject matter of a detailed heritage report which concluded that these

were of no significance either in terms of their archaeology or in terms of their architecture...” –

there is no such report). He purports to exhibit the non-existent heritage report at exhibit G (tab

24 together with EIA screening), but what is exhibited there is the archaeology assessment which

most certainly does not state that there was no heritage value attached to the structures, it states

that the existing (what it calls “upstanding”) buildings should be inspected and assessed (para. 4.5,

p. 11). When challenged, the correct thing to have done would have been for the consultant to

simply withdraw this inaccurate and erroneous averment. Rather than clearly do that, he has no

answer to the proposition that there is in fact no document entitled a “Heritage Report”, but unwisely

he makes no reference whatever to the previously exhibited document but instead implausibly

attempts to stand over the incorrect impression his averment created by making floundering

reference to a miscellany of materials, some of which do not support such a conclusion at all. He

refers to the archaeology report and the council’s submission, but neither of those conclude as

alleged that there was no heritage value to the structures. Insofar as he says that the absence of

these structures from records of protected structures/monuments leads to a conclusion of no

heritage value, that misses the whole point that the CDP expressly includes non-protected

structures, as discussed in detail above. He also refers to the inspector’s report but that is a

somewhat different thing, because his original affidavit claimed in effect that the conclusion of the

commission and inspector was supported by the alleged heritage report (see para. 18 of affidavit of

30 November 2023). But if the words “heritage report” are now reprogrammed to mean the

inspector’s report insofar as it deals with heritage, then it is wholly circular to say that the inspector’s

report is supported by the inspector’s report. Again I consider this was not intentional and that

neither he nor the notice party’s side generally were trying to mislead. But this was, again, a very

poor choice of words.

54. Even leaving aside the fundamental problems of the false premises of the argument, the

affidavit is heavy on erecting the principal judgment into a Folk Devil, but light on any verifiable and

plausible specifics in that regard. I sympathise with the applicant’s objections to the consultant’s

claims:

“59. He then identifies a potential impact on Bus Connects and Luas Lines (§18) but

makes clear that his real issue is with the CDP and not with the Court’s judgement §24

‘…objectives such as Objective HE [3-4] are generally considered by professional planners

to be contrary to good practice in terms of planning policy’. He does not identify the source

of such a statement or his means of knowledge for same.

60. [The consultant] then goes evidence as to what Cork County Council were allegedly

told in relation to this objective (§25) and gives evidence as to the alleged intention of the

Elected Members of the Council (§28) and then goes on to identify allegedly dire

consequences for infrastructure development but without any actual concrete examples.

61. [The consultant] has means of knowledge for virtually none of these statements and

provides precisely no examples as to why the Court’s judgement in respect of a discrete part

of a single CDP will cause the sky-to-finally-fall-in are provided – as identified by Humphreys

J. in Killymooney, and as here, (§28) ‘The alleged practical ramifications are typically

hypothetical or speculative and/or the proceedings are not a suitable vehicle to explore

them’.

62. Furthermore and respectfully, [the consultant] seems to be entirely unaware that

the CDP is, as the name suggests, limited to the functional area of the Council and therefore

unlikely to impact on the roll-out of, for example, the DART.

63. Bizarrely he then goes on to offer his view on the archaeological value of Highlands

House having apparently belatedly conducted a survey of same and offers a view on the

allegedly disastrous consequences of the alleged divergence of jurisprudence, despite

neither being an archaeologist or a lawyer. Respectfully, he is qualified to offer an opinion

in relation to neither issue.

64. [The consultant]’s Affidavit, respectfully, adds absolutely nothing to the Developer’s

case.”

55. The overall problem for the notice party is that the approach in the principal judgment is

totally consistent with the Supreme Court decision in Sherwin. The first step is correct engagement

with the plan, and we never got past that. So the matter ends there. No further appellate

clarification is called for.

56. That also highlights the point that there is nothing blanket about the principal judgment –

once it is properly interpreted and engaged with, the commission does have the option of material

contravention of any given plan so the notice party is simply incorrect to say that the judgment

erects some sort of absolute requirement for prior assessment still less comprehensive assessment.

57. The possibility, as the notice party submits, that the judgment could be misinterpreted and

could provide ammunition for vexatious applicants, isn’t a basis for a need for further clarification.

You could say that about virtually any judgment because there isn’t anything that can’t be

misunderstood. What Upton Sinclair said about financial motives (“It is difficult to get a man to

understand something when his salary depends upon his not understanding it”, I, Candidate for

Governor, and How I Got Licked (Berkeley, University of California Press, 1934) p. 109) also applies

if his self-image as more knowledgeable than the next person depends upon it or indeed if any other

incentive applies.

58. The judgment does not have the implication that conditions requiring survey in the course

of demolition or other works (for the purposes of conservation by record) gives rise to an inference

that there should have been a pre-demolition survey for evaluative purposes as to whether the

project should be approved. My reference to the condition is essentially just a statement of fact as

to what happened in this case. If the notice party had made this point originally I would have

phrased the matter differently – and probably would have omitted the obiter reference to condition

4 altogether (obiter because I expressly said that the condition “reinforced” the conclusion – that

means that the decision would have been the same even without the condition). But the notice

party didn’t raise this argument, and only dreamed up an objection to my reference to condition 4

after the principal judgment was issued. (Something else that is generally true of the legal system

is that it is often easier to think of points by way of objection to a judgment when issued than to

think of the same points during the case itself.) So in the absence of any obviously better solution

and in the light of the developer’s not having made prior submissions along these lines, the principal

judgment will just have to be construed on the basis of the clarification in this paragraph.

59. Insofar as the notice party tried to seize on the applicant saying that condition 4 was unlawful

in the absence of a prior survey, they are missing the context. The context is that the development

plan requires “careful assessment”. If that doesn’t happen prior to the development consent

decision, and if there is no valid material contravention decision, then there is a non-compliance

with the development plan whether any conditions are imposed or not. So condition 4 is just a

sideshow in any event.

60. If there weren’t enough fundamental problems with the present application, one other

unfortunate difficulty for the notice party is that three days after this decision was made, a new

development plan came into force, and the wording of the corresponding provision of the plan is

significantly different. The new text is:

“Industrial and Post Medieval Archaeology

16.2.16 Other important elements of our archaeological heritage are the later remains of

structures and features associated with industrial, agricultural, cultural, military, docks and

harbours, religious, and social activities. These industrial and post-medieval items of built

heritage include penal chapels, limekilns, houses, mass rocks, walls and boundaries, street

furniture, stepping stones, mills, bridges, railway features and famine burial grounds. They

can make a valuable contribution to the local historic landscape, our cultural heritage assets

and have potential to add to our understanding of the past. Whilst some of these are

Recorded Monuments and/or Protected Structures, the vast majority have no such protection

and are consequently very vulnerable items of our heritage. These are valuable elements

that contribute to our sense of place and of past methods and technology. See Chapter 3

Settlements and Placemaking.

16.2.17 Across the County, there are layers of archaeological and historic landscape. In

certain areas individual archaeological sites must be seen as part of a collective heritage

landscape. A unique example is in Allihies on the Beara [Peninsula] where an outstanding

example of a 19th century copper mining landscape survives. It encompasses many layers

of historic settlement from prehistoric to modern times and is a designated area of High

Value Landscape containing upland areas, a central basin and coastal edge and within it are

diffuse, vernacular settlement patterns and later settlement clusters associated with the

mining industry.

16.2.18 The landscape revolves around the five key mining complexes as identified in the

Record of Monuments and Places: Mountain Mine, Dooneen Mine, Kealogue Mine, Caminches

Mine and Coom Mine and are individually protected under the National Monument Act and a

significant number of associated industrial archaeology artefacts. This historic mining

landscape is acknowledged locally as an important heritage tourism product and is a growing

tourism destination focussed on Allihies Copper Mine Museum, and associated Allihies Copper

Mine Trail. There are plans to expand the heritage offer further associated with the Copper

mines.

16.2.19 The historic landscape still retains its heritage integrity, however it is also vulnerable

to insensitive development and could easily lose its unique character. The Plan therefore

provides additional protection to the wider inter-connected heritage and landscape assets of

the Allihies Coppermines Basin to aid in its future development and management. In addition

to protecting the mining complexes the Council will have regard to and protect buildings and

features associated with the mines that occur across the landscape. See also Volume Five,

West Cork Municipal District, Allihies.

County Development Plan Objectives

HE 16-6: Industrial and Post Medieval Archaeology

Protect and preserve industrial and post-medieval archaeology and long-term management

of heritage features such as mills, limekilns, forges, bridges, piers and harbours, water-

related engineering works and buildings, penal chapels, dwellings, walls and boundaries,

farm buildings, estate features, military and coastal installations. There is a general

presumption for retention of these structures and features. Proposals for appropriate

redevelopment including conversion should be subject to an appropriate assessment and

record by a suitably qualified specialist/s.”

61. The test and wording is new and distinct, so any continued agonising as to the meaning of

a plan adopted 12 years ago in 2014 is of very limited historical interest only and certainly not of

public importance for the purpose of appeal. The fact that the present matter is a legacy strategic

housing development (SHD) case of some antiquity dating back to 2022 does little to enhance the

relevance of this point.

Are the points of exceptional public importance?

62. This does not arise having regard to the foregoing.

Is an appeal in the public interest?

63. An appeal that is based on a misunderstanding of the principal judgment in a way that seems

to “spread maximum confusion” (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)) is not in the public interest.

64. There is no public interest in “clarification” of law on material contravention that has already

been clarified by the Supreme Court.

65. There is vanishingly minimal public interest in clarification of one provision of a particular

development plan adopted 12 years ago that cased to have effect on 6 June 2022 – coming up to

four years ago – and that has been replaced with a different wording.

66. Nor is it in the public interest that there be an appeal brought in this case where the basic

steps required were not taken – no physical examination of the structures by the archaeologists, no

engagement with the terms of the development plan by the commission – even though the council

pointed out the basic problem at the outset. The fact that the archaeologist and consultant gave

inadvertently inaccurate accounts of the process doesn’t improve the position from this point of view.

67. The applicant deserves the final word:

“[T]he Developer could potentially have avoided all of this by the simple expedient

of undertaking the survey of Highlands House that it was clearly able to do.”

Summary

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

(i) The law on material contravention has already been clarified by the Supreme

Court in Sherwin, and the outcome in this case is consistent with and amounts in

effect to a simple application of the logic of Sherwin. The basic problem for the

notice party is that the council contended that CDP policy HE 3-4 had been breached,

but the inspector and commission never engaged with that, thus failing step 1 of

Sherwin.

(ii) The principal judgment does not have the alleged implications. The core of the case

was a lack of correct interpretation and therefore of compliance or even engagement

with the plan. That is not new law. This is merely applying the correct procedure

for engagement with the development plan – it is not offering a view on whether

the plan could lawfully have been materially contravened.

(iii) The development plan at issue here was adopted 12 years ago and expired in

June 2022, and the wording of the new plan is significantly different. The judgment

has no wide ramifications as alleged or at all.

(iv) The points of law misunderstand the judgment and the factual context. The

question based on South West Regional Shopping Centre v. An Bord Pleanála [2016]

IEHC 84 does not properly arise as that was never argued and in any event the

submission misunderstands that case – there is no contradiction with the substantive

judgment. The question based on material contravention misunderstands the

principal judgment. I did not decide that “a CDP objective, of a type such as

Objective 4-3 [sic], providing for archaeological assessment requires a mandatory

physical survey of all relevant structures such as to definitively determine the

existence, nature and extent of any remains prior to the date of the making of a

planning application”.

(v) An appeal is not in the public interest having regard to the foregoing, the fact that

this case is about the lack of engagement with a specific term in a specific

development plan which expired the best part of 4 years ago and which has been

replaced by a different wording, and the fact that the whole issue could have

been avoided by the developer by the very simple and very normal step of

having its expert take a look at the structures before submitting her report,

as opposed to merely writing that report at a desk. The significant inaccuracies

in and omissions from the developer’s material on this issue do not assist its position.

Order

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

(i) the application for leave to appeal be dismissed;

(ii) in the event that an application for leapfrog leave to appeal is made and acceded to

by the Supreme Court, the costs of the leave to appeal application be costs in that

appeal;

(iii) otherwise, such costs be awarded to the applicant against the notice party, including

reserved costs and costs of written submissions, the quantum to be determined, in

default of agreement, in the legal costs adjudication process;

(iv) for the avoidance of doubt, the order for costs against the notice party shall include

an order for the costs of legal costs adjudication of such costs, and the order for

costs against the first named respondent, set out in the principal judgment, shall

include an order for the costs of legal costs adjudication of such costs;

(v) the foregoing order and the order arising from the substantive judgment, i.e.,

(a) an order of certiorari in terms of relief 1; and

(b) an order for costs (including the costs of written submissions) to the

applicant against the first named respondent in respect of the proceedings,

up to and including 19 May 2025, but disallowing:

i. the costs of the mentions on 28 November 2022, 5 December 2022

and 13 February 2023, and

ii. the costs of the initial incorrectly formatted amended statement of

grounds,

the quantum to be determined, in default of agreement, in the legal costs

adjudication process,

be perfected forthwith following the listing below, with no subsequent listing, as the

final order of the High Court in the proceedings; and

(vi) the matter be listed on 9 March 2026 to confirm the foregoing.