High Court dismisses judicial review challenging planning permission for data centre on climate grounds.

[2026] IEHC 156

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000708]

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

SECTION 15 OF THE CLIMATE ACTION AND LOW CARBON DEVELOPMENT ACT 2015

BETWEEN

COLIN DOYLE, FRIENDS OF THE IRISH ENVIRONMENT CLG, FUTUREPROOF CLARE,

MARTIN KNOX AND CHRISTINE SHARP

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA, THE GOVERNMENT OF IRELAND, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

AND

ART DATA CENTRES LIMITED

NOTICE PARTY

(No. 3)

Date of impugned decision: 5 April 2024

Date proceedings commenced: 30 May 2024

Date of main hearing of Module I: 25 February 2025

Date of main hearing for Module II: 2 March 2026

Date draft judgment circulated: 6 March 2026

JUDGMENT of Humphreys J. delivered on Friday the 13th day of March 2026

1. The applicants who challenge a data centre development here comprise two environmental

NGOs with a strong record of relevant activism, and three individuals who have obviously very

genuine concerns and strong awareness of the ramifications of the climate emergency. The first

named applicant Dr Doyle holds a BA (Mod) in Physics, an MSc in Physics, a Postgraduate Diploma

in Environmental Pollution, and a PhD in Climate Science. He has over twenty-five years of

experience in environmental science in Ireland, including consultancy in the preparation of

environmental impact assessments and emissions monitoring for a wide range of industrial and

commercial projects. The fourth named applicant is a retired academic and environmental manager.

The fifth named applicant is a horticulturalist and an environmental activist. Professor Daly who is

well-known for her penetrating and lucid contributions to public understanding of climate science

has weighed in to support the applicants, along with a body of other material and affidavits put

forward. The primary question for the court, however, is not whether it would have interrogated

the application for permission more sceptically. It is whether the applicants have overcome the onus

to demonstrate that the permission fell outside the spectrum of options open to the commission in

determining what was consistent with the matters referred to in climate legislation. Judicial review

is not politics by other means. As far as jurisdictions like ours are concerned, a court’s role, to state

the obvious, is to limit itself to reviewing the legality rather than merits of any given decision, and

to do so by reference only to the issues that are duly pleaded and that properly arise, having regard

to what was before the decision-taker, and within the confines of the substantive law, particularly

as definitively interpreted domestically by the apex court within the given jurisdiction, and by the

CJEU in the case of European law issues where those arise, as well as subject to the rules of forensic

engagement, particularly the onus of proof generally resting with a challenger. Upholding a decision

is not necessarily an endorsement of its merits any more than quashing a decision is necessarily

indicative of a lack of merit. Amongst the many aspects of the case one could highlight at the outset,

three points particularly stand out. Firstly, by virtue of the game-changing response document from

John Spain Associates, this is a project that is going to be powered from renewable energy. It is

therefore a project that prima facie the commission was able to regard as not being one that in

itself causes major net emissions. Secondly, the climate challenge is virtually exclusively

pleaded as a matter of domestic law. No principle of EU law (such as the EU Charter, art. 191(2)

TFEU, the polluter pays principle, the European Climate Law (Regulation 2021/1119), Council

Regulation (EU) 2022/2577 (see Case C-325/25 Eneco Wind) or otherwise) is pleaded in that regard.

Even the environmental impact assessment (EIA)/ habitats directive/ derogation licence issue is

focused on bats, not on climate. The strategic environmental assessment (SEA) and water

framework (WFD) directive points were not pursued. The glancing and purely narrative reference

to the environmental impact assessment report (EIAR) in sub-ground 25 does not constitute a proper

or any legal plea of contravention of EU law. And thirdly, this was a case where the applicants did

not suggest to the other parties the possibility of seeking input from independent expert

scientific entities (such as the Environmental Protection Agency (EPA) for example) in an amicus

role to assist the court on any of the more general questions, given the particular difficulties that

arise in science-heavy climate litigation, as discussed in Friends of Killymooney Lough v. An

Coimisiún Pleanála No. 1 [2025] IEHC 407 (Unreported, High Court, 8 July 2025) at 174.

Judgment history

2. In Doyle v. An Bord Pleanála (No. 1) [2025] IEHC 158 (Unreported, High Court, 21 March

2025), I held that the inspector’s failure to acknowledge the single Leisler’s bat (Nyctalus leisleri)

roost in Building 6C constituted a harmless error which did not warrant quashing the permission and

dismissed the applicants’ case in relation to Module I of the proceedings.

3. In Doyle v. An Bord Pleanála (No. 2) [2025] IEHC 205 (Unreported, High Court, 11 April

2025), the applicants argued that their Module I costs of making failed points should be reserved

rather than be the subject of no order, a submission which I rejected.

Geographical context

4. Two related commission decisions are challenged here. The data centre decision

(https://www.pleanala.ie/en-ie/case/314474), involves the construction of six two-storey data

centre buildings, associated structures and all ancillary site works on a 60 hectare site at Tooreen,

Cahernalough and adjacent townlands, Tulla Road, Ennis, Co. Clare, subject to conditions for a 10-

year period at Tooreen, Cahernalough, Knockanean, Ballymacahill, Muckinish and Rosslevan, Tulla

Road, Ennis, Co. Clare

5. The substation decision (https://www.pleanala.ie/en-ie/case/313895) involves the

development of a 110 kV GIS substation with two 110 kV underground transmission cables

connecting to existing 110 kV overhead lines to the north, and two 110 kV underground cables

connecting to the existing Ennis 110 kV substation and associated works in the Townlands of

Tooreen, Cahernalough, Knockanean, Ballymacahill, Muckinish and Rosslevan to the north-east of

Ennis, on the Tulla Road (R352), Co. Clare.

Facts

6. On 16 July 2021, the notice party submitted a planning application to Clare County Council

for a development comprising the construction of six two-storey data centre buildings, associated

structures and all ancillary site works on a 60 hectare site at Tooreen, Cahernalough and adjacent

townlands, Tulla Road, Ennis, Co. Clare (planning reg. ref. no. 21/757 refers). The data centre

application was accompanied by, inter alia, an EIAR and a Natura impact statement (NIS).

7. On 8 September 2021, the planning authority requested further information in relation to

the data centre application (RFI) and a response to the RFI was provided on behalf of the notice

party on 25 February 2022. The RFI response was readvertised as required by the planning authority

on the basis that it contained significant additional data.

8. Clarification on the RFI response was sought by the planning authority on 28 April 2022, and

a reply to same was submitted on 10 June 2022, which included an updated EIAR (described in the

commission’s order as a “consolidated EIAR”). Chapter 8 of the consolidated EIAR includes the

following:

“Electricity providers form part of the EU-wide Emission Trading Scheme (ETS) and thus

greenhouse gas emissions from these electricity generators are not included when

determining compliance with the targeted 30% reduction in the non-ETS sector i.e.

electricity associated greenhouse gas emissions will not count towards the Effort Sharing

Decision target. Thus, any necessary increase in electricity generation due to data centre

demand will have no impact on Ireland’s obligation to meet the EU Effort Sharing Decision.

Under this scenario, as outlined in the Regulation, the new electricity provider will be treated

as a ‘new entrant’ under Phase IV of the ETS (i.e. an electricity generator obtaining a

greenhouse gas emissions permit for the first time after 30th June 2018). The new electricity

provider will be required to purchase allocations in the same manner as existing players in

the market using the European Energy Exchange. EU leaders have also decided that during

Phase IV (2021-2030) 90% of the revenue from the auctions will be allocated to the Member

States on the basis of their share of verified emissions with 10% allocated to the least

wealthy EU member states. The revised EU ETS Directive has enshrined in law the

requirement that at least 50% of the auctioning revenues or the equivalent in financial value

should be used for climate and energy related purposes.

…

In terms of the Proposed Development, as the facility generates over the threshold of 20

MW, a greenhouse gas emission permit will be required which will be regulated under the

ETS scheme also. Thus, whether the facility is operated by electricity or gas engines onsite,

the emissions are not included when determining compliance with the targeted 30%

reduction in the non-ETS sector. In addition, on a EU-wide basis, where the ETS market in

2018 is approximately 1,655 million tonnes CO2eq, the impact of the emissions associated

with the proposed development will be less than 0.040% of the total EU-wide ETS market

which is imperceptible.

…

Data centres are typically 84% more efficient than on-premises servers and the GHG savings

associated with this are not included in the GHG emissions total. In addition, in terms of

total forecasted capacity, it is predicted that 1,700MW of data centres capacity will be

operational by 2025 in Ireland. However, the carbon intensity of electricity is predicted to

decrease from 331 gCO2/kWh in 2019 to 100 gCO2/kWh in 2030 as a result of the increase

in renewables to 70% of the electricity market by 2030. Overall, it is predicted that data

centres will peak at 2.2% of total GHG emissions in 2024 and will fall or level off after this

date.

The indirect CO2 emissions from electricity to operate the facility will not be significant in

relation to Ireland’s national annual CO2 emissions. A Report titled ‘Energy Related CO2

Emissions In Ireland 2005 – 2018 (2019 Report)’ published by the Sustainable Energy

Authority of Ireland (SEAI, 2020) states the average CO2 emission factor for electricity

generated in Ireland was 375 gCO2/kWh in 2018. This average CO2 emission factor is based

on the national power generating portfolio. On the basis that the Proposed Development

will consume 200 MW of power this equates to 1752 GWh annually based on the assumption

of the national fuel mix. This translates to approximately 657,000 tonnes of CO2eq per

year. This will have an indirect, long-term, negative and slight impact on climate.”

9. The clarification response was readvertised as required by the planning authority on the

basis that it contained significant additional data.

10. The council’s planner prepared three reports as part of the consideration of the application

– dated 8 September 2021, 18 April 2022, and 4 August 2022. Same, inter alia, considered the

issue of climate impacts, including the submissions/objections raised; and noted, as to energy supply

for the development, that a balance would be achieved as Ireland moves towards the achievement

of its renewable energy targets. The council’s planner’s report also provides the conclusions on the

planning assessment, including in relation to, inter alia:

“• The design of the data centre development to facilitate the use of renewable

hydrogen energy in the future and, in order to minimise air quality impacts, incorporate gas

engines for selective catalytic deduction.

• The proposed development including an energy centre which runs on natural gas

and is capable of generating 120MW. The proposed energy centre is also capable of running

on hydrogen when supplies become available, thereby providing a path to the use of

decarbonised energy sources for the entire development.

• By reference to the previous Climate Action Plan 2021 and various other policies,

the data centre development would be ‘in accordance with the proper planning and

sustainable development of the area’.”

11. On 8 August 2022, the planning authority made a decision to grant planning permission.

12. Seven third-party appeals were lodged with the commission in respect of the PDC – by An

Taisce, Friends of the Irish Environment, Futureproof Clare, Clare Green Party, Christine Sharp,

Martin Knox, and Colin Doyle.

13. The commission’s reference for the data centre application appeal was ABP-314474-22.

14. Relatedly, on 23 June 2022, the notice party submitted a strategic infrastructure

development (SID) application to the commission under s. 182A of the Planning and Development

Act 2000 (the 2000 Act) for the development of a 110 kV gas insulated switchgear substation with

two 110 kV underground transmission cables connecting to existing 110 kV overhead lines to the

North, and two 110 kV underground cables connecting to existing Ennis 110 kV substation to the

West, and associated works. The commission’s reference for the substation application was ABP-

313895-22.

15. As the commission points out, the notice party submitted substantial documentation in

response to the appeals, inter alia addressing the greenhouse gas (GHG) emissions issues. I would

broadly accept the commission’s summary of these:

“38. Following various appeals by third parties, the Developer lodged a comprehensive

suite of appeal documents to the Commission in response – which included:

• Appeal Response Report from John Spain Associates, dated 26 September 2022,

which addressed the various grounds of appeal, including by reference to the evidence

informing the application and the further evidence adduced for the purposes of responding

to the appeal. In this respect, it provided a response to the submissions made alleging

errors or omissions in the application documentation in respect of the consideration of

climate – stating, inter alia:

‘…

Contrary to the submission of Dr Colin Doyle (at para 2) the applicant has not sought to

argue, solely on the basis that the development operates within the ETS, that the proposed

development complies with both European and national policy. The applicant has fully

addressed the requirements of EU, national, regional and local policy in the EIAR and other

technical reports submitted in relation to the application.

…

As is clear from Chapter 8 of the EIAR, the Applicant's references to GHG emissions falling

within the EU ETS regime are simply directed at highlighting that in Ireland, as in all EU

Member States, the EU ETS is an EU wide regime; and that EU ETS emissions are not

calculable for the purpose of Member States' EU targets and reduction obligations in respect

of non-trading sector emissions (e.g. transport, agriculture, buildings (heating) etc (under

the EU's 'Effort-Sharing Regulation'). That is an entirely accurate and factual statement in

relation to the basic structure/intent of the EU ETS relative to non-trading sector emissions,

targets and reduction obligations of Member States.

The same part of the Appeal has suggested that, by expressing the quantum of estimated

GHG emissions (related to energy generated for the proposed facility) by reference to total

EU-wide EU ETS-related emissions, that the Applicant is somehow avoiding or concealing

the quantum of GHG emissions relative to national GHG emissions. That is, again, not an

accurate reading or interpretation of the information that the Applicant has provided in the

EIAR; because it is very clear that the Applicant has referenced estimated GHG emissions

from the facility as well as referencing national-level GHG emissions.

The EU ETS has been the flagship GHG reduction mechanism within the EU – both collectively

across the EU and within individual Member States - since the commencement of its pilot

phase in 2005. Since then, through phases 1, 2 and 3 and, most recently, the current

phases 4 (running to 2030) of the EU ETS system, it covers c. 10,000 installations across

the EU. As referred to in the environmental response note prepared by AWN (appendix 3 to

this response document) significant GHG reductions have been achieved under the EU ETS.

These have been achieved by virtue of its design, its ‘pricing in’ of carbon and also by virtue

of its annual ‘linear reduction factor’.

As indicated above, when it comes specifically to non-trading sector specific emission

reduction targets for EU Member States, the EU ETS is not calculable – for the simple reason

that the EU ETS is separate to the non-trading sector. That is simply the discrete point that

that the Applicant has made; and it is erroneous of the Appellant to state that the Applicant,

in making that point/distinction, is somehow avoiding indicating EU ETS emissions in national

terms.

In any event, outside of EU-wide targets i.e. in relation to domestically-set, economy- wide

GHG reduction targets set by Member States for themselves, EU ETS- regulated installations,

because they are GHG sources, will, in relation to the reductions they achieve, contribute to

the overall performance of individual Member States in achieving those domestically-

set/national economy-wide (combined EU ETS and Non-EU ETS) targets. In that regard,

contrary to the Appellant’s assertions regarding the Applicant’s references to the EU ETS,

the position is that the EU ETS is an important mitigation mechanism for all Member States

GHG reduction efforts.…

…

Indeed in relation to the most important target – the 2050 target - just as the EU's ultimate

target ( and most legally- binding target - under the EU ‘Climate Law’) is one of achieving

climate neutrality (‘Net Zero’) by 2050, that is precisely the same target as Ireland has

undertaken under the Climate Action and Low Carbon Development Act 2015 (as amended

in 2021) and all reductions achieved by Irish EU ETS-participating installations will contribute

towards that.’

• Response addressing the principles for sustainable data centre development (§4.54

et seq).

• AWN Appeal Response, dated September 2022 (Appendix 3 of Appeal document) –

outlining:

‘…the energy generated and associated GHG emissions to serve the proposed development

will fall within the scope of the EU Emissions Trading System (ETS) either as a result of

electricity from the national grid (with diesel generators as an emergency measure) (for

Phase 1) or as a result of onsite generation of electrical power using gas generators (Phase

2 & 3) with all phases requiring a Greenhouse Gas Permit in order to operate…’ (§1.4)

‘…Within the context of global or EU-wide emissions, the GHG emissions associated with the

project are small. The approach that has been adopted at EU level is the EU Climate and

Energy Package…’ (§1.8)

‘The ETS is a “cap and trade” system where an EU-wide limit, or cap, is set for participating

installations. Thus, the geographical location of a given development within the EU is not

relevant as there is only one EU-wide target which is applicable to the ETS and thus the

cumulative direct and indirect climate assessment of relevance in this context is the GHG

emissions associated with the EU under the ETS. When viewed in this context, on an EU-

wide basis, where the ETS market in 2021 was approximately 1,307 million tonnes CO2eq,

the impact of the emissions from the proposed development, either from electricity

generation from the national grid or from onsite generation, will be less than 0.05% of the

total EU-wide ETS market. Thus, where there is a medium sensitivity environment and the

magnitude of impact of the project is small, this equates to a slight impact.’ (§1.10)

‘In terms of the specific references to CO2 emissions within the third party appeals, the

emissions associated the development (either directly or indirectly) will be within the ETS

mechanisms as outlined in Section 8.7.2.2 of the EIAR’. (§1.15)

‘It should be noted that the projected CO2 emissions (as quoted in Section 8.7.2.2 of the

EIAR) associated with the proposed development are calculated based on the 2018 grid mix.

The national fuel mix will decrease in carbon intensity as the grid reaches the 80% in

renewables predicted for 2030 (see Figure 3 below). Therefore, the servicing of Phase 1

from the national grid will allow for a reduction in the emissions associated with the proposed

development over time. In addition, the introduction of biomethane into the natural gas

network will also lead to reductions in emissions from Phases 2 & 3 over time.’ (§1.16)

It should also be observed that the appeal submission addressed PAS 2050 (inter alia, §1.17)

– noting that same was raised by the Applicants in their appeal.

This report proceeds to then set out an assessment of the significance of the emissions

(§1.27 et seq) – by reference to the Institute of Environmental Management and Assessment

(IEMA) guidance note on ‘Assessing Greenhouse Gas Emissions and Evaluating their

Significance’ (IEMA, 2022) – concluding:

‘Thus, through a series of measures including project replacement, a reduction in residual

emissions through best practice and the implementation of a series.’

Thus, we see an identified methodology which informed the consideration of GHG emissions

– a methodology which the Commission was entitled to consider as appropriate. In this

respect, the Applicants are not correct that there was a failure to consider the extent of

emissions (Submissions, §77), same were considered, and found to be acceptable in the

Developer’s documentation, with which the Commission agreed.

It further addressed the contentions raised in the appeal regarding alleged non-compliance

with s.15 of the 2015 Act and the CAP – addressing the carbon budgets and sectorial

emission ceilings (§3.10 et seq), and setting out for stated reasons that:

‘…as outlined below, the facility will operate in compliance with the policies and objectives

of the 2021 Climate Act. The phasing of the development and the period taken to reach full

capacity within each planned phase will result in the “ramping up” of demand associated

with the project over a number of years during the lifetime of the 10 year permission.’

(§3.15)

In this context, the report (pg.19) expressly quotes s.15 of the 2015 Act in its amended

form – consistent with ‘so far as practicable’ – and explains that the ‘GHG emissions

associated with the proposed project are in compliance with the above mentioned plans,

strategies and objectives’ (§3.17 et seq).

Noting the foregoing, the Applicants complaint that there was a failure to address the

development by reference to sectoral emissions ceiling and carbon budgets (Submissions,

§93 et seq) is not correct. Noting the relevant policy context, which conforms with s.15, the

assessment of GHG emissions, including by reference to the sectoral emissions ceiling and

carbon budgets was analysed in the Developer’s documentation – which aligns with the

requirements of the Development Plan in terms of the requirement to provide an analysis

and which the Commission was lawfully entitled to accept (contrary to the Applicants’

complaints at Submissions, §106).

The report also addresses the national climate objective – stating (§3.22):

‘Thus, the proposed project aligns with the national climate objective as the project will be

within the EU ETS which is the cornerstone of the EU’s objective to reduce GHG emissions

by at least 55% by 2030 (compared to 1990) and to achieve climate neutrality by 2050.’

The report addresses each of the matters arising under s.15 of the 2015 Act, insofar as same

arose, and provides informed responses. In this respect, for example, in respect of

mitigating GHG emissions, the report outlines (§3.23 et seq):

‘The project will replace activities which have a higher GHG profile. Data storage facilities

represent a significantly more efficient means of data storage when compared to a

distributed model of enterprise data storage by individuals and companies (or “enterprise

sites”). …

A range of measures will be employed which is in line with “best practice” as outlined in

IEMA (IEMA, 2022) including the installation of solar panels, the installation of a vertical

farm and the installation of flow and return pipes from the Energy Centre which will allow

an onward connection to a local user for heat or a future heat network.

Measures will be implemented in line with “best practice” as outlined in IEMA (IEMA, 2022).

As set out within the appended letter from the applicant, the applicant has had positive

engagement in relation to the securing of a CPPA to provide renewable power to offset that

used by the proposed development. The letter forms Appendix 5 to the JSA response

document. The letter notes that the timeline associated with the delivery of the proposed

development over the duration of the 10-year permission sought aligns with the intended

delivery of significant renewable capacity by renewable energy providers in the vicinity of

the proposed development…’

The AWN Appeal Response also addresses climate adaption (§3.25 et seq) and decarbonised

data centres by design (§4.0 et seq) – this included further consideration of the Data Centre

Enterprise Strategy.

The foregoing report is important in the context of this case as same is largely ignored by

the Applicants. However, when same is considered – noting that the Inspector and the

Commission ultimately agreed with the Developer’s position – it is clear that the evidence

was informed by a correct understanding of s.15 of the 2015 Act (i.e. the correct legislative

text).

• Appendix 5 of the appeal response comprises correspondence regarding a Corporate

Power Purchasing Agreement (‘CPPA’) – which details the Developer’s engagement with

renewable energy providers.

• Appendix 6 of the appeal response included a HDR Response which further addressed

how same accords with the Data Centre Enterprise Strategy by reference to the principles

set out in same – including in relation to the proposed use of gas. As to energy usage and

renewable policy, noting the phased nature of the development, it provides:

‘The data centre building design is based on best in class low energy technologies to ensure

that the buildings have the lowest energy usage possible in the first instance.

Where possible, direct renewable energy production is provided on the data centre campus,

primarily in the form of solar/PV arrays.

The energy centre will be provided with gas engines that will be enabled to run on initially

natural gas but also onto blends of natural gas, biomethane and hydrogen. The engines will

then have the ability to provide power to the data centres and also, if required, to disconnect

the data centre campus to be off grid and even to allow export to the electricity grid.

CPPAs and/or direct private wire connections will be avidly encouraged to link up with local

renewable energy sources, particularly local wind farms.’

The report also addressed submissions regarding the potential future use of hydrogen –

stating:

‘In this regard it is correct that currently there is no production of hydrogen on any significant

scale that is being used by Gas Networks Ireland (GNI) in their gas transmission system.

This is not a surprise, in GNI’s Vision 2050, they say that hydrogen production (green or

blue) is being considered and the intention for it to be in the mix of gases in the gas network

by 2030 onwards as per Figure 1 above (extracted from GNI’s Vision 2050). For the first 5

or more years from 2030, the quantum of hydrogen intended to be injected is small, a few

percent, but will increase but even by 2050 it is only likely to make up around 12% of the

total volume supplied.

It is true that fully replacing Natural Gas completely with hydrogen is currently not an option

due to the embrittlement of pipework by hydrogen itself, however there are already many

gas networks around the world where natural gas has been replaced in part (up to 20%)

with hydrogen with no issues at all. So a mix of only 12% hydrogen is clearly an achievable

target.

… the intention by GNI to introduce biomethane sources from existing waste streams (see

earlier reference to KPMG/GNI report 2021) from a range of food and agricultural waste

products…”

16. The council’s submission on the appeal is highlighted by the commission as follows:

“40. The Council also provided submissions on the various appeals, reiterating the

rationale for the first instance grant of permission, whilst also addressing the points raised

in the appeals. The Council’s submissions:

• Included a detailed consideration of the Data Centre Enterprise Strategy.

• Included submissions on the EIAR, including air and climate.

• Addressed the 2015 Act and climate impacts/justice – outlining that, for stated

reasons, it was considered that ‘the proposed development is in line with the overarching

principles underpinning’ the 2015 Act.

• Noted that the potential for the energy centre to run off alternative supplies, such

as hydrogen, provided a path to the use of decarbonised energy resources. The Council

further outlined that it was a matter for the Developer ‘to engage commercially with end

users / tenants of the proposed development in relation to Corporate Power Purchase

Agreements’.

• Outlined that Government Policy ‘advocates for a plan led approach in the delivery’

of data centres, which the Council considers it adopted in zoning the lands in the

Development Plan. The Council’s submission concluded by stating that it:

‘…considers that the proposed development represents a plan led approach to the

development of a data centre in Ennis, which has the potential to contribute to enterprise

and regional policy objectives and represent a strategically important element of Ireland’s

economic prospects…’”

17. The inspector carried out a site inspection on 3 September 2022.

18. The notice party submitted a response to the appeals (with appendices) on 26 September

2022.

19. Submissions were made in response, notably by Dr Doyle.

20. The Climate Action Plan 2023 (the first to be prepared under the Climate Action and Low

Carbon Development (Amendment) Act 2021, and following the introduction, in 2022, of economy-

wide carbon budgets and sectoral emissions ceilings (SECs)) was launched on 21 December 2022.

21. On 11 January 2023, the commission gave notification that it would not be possible to

determine the appeal within the statutory period of 18 weeks and indicated its intention to determine

the appeal by 4 April 2023.

22. On 3 April 2023, the commission gave notification that it would not be possible to determine

the appeal by 4 April 2023. It expressed the hope that it would receive the inspector’s report and

recommendation “in the near future”.

23. As part of the Climate Action Plan 2023, the National Hydrogen Strategy was published by

the Department of the Environment, Climate and Communications on 12 July 2023.

24. The inspector carried out a further site inspection 13 October 2023.

25. On 11 December 2023, the inspector submitted a report to the commission which contained

a recommendation that planning permission should be granted subject to 17 conditions. The

inspector also conducted an EIA and an appropriate assessment (AA).

26. She was also appointed by the commission to prepare a report on the substation application

and on the same date, she submitted a report to the commission on that application in which she

recommended that planning permission be granted subject to 14 conditions.

27. A commission direction dated 27 March 2024, in respect of the data centre application

indicated that the commission decided to grant permission generally in accordance with the

inspector’s recommendation. The commission direction indicated that the commission had

undertaken an AA in respect of a number of “screened in” European sites. The direction indicated

that the commission considered that the information before it was sufficient to undertake a complete

assessment of all aspects of the proposed development in relation to the conservation objectives of

the said European sites using the best available scientific knowledge in the field.

28. The commission’s direction also indicated that the commission undertook an EIA of the

proposed development.

29. A commission direction dated 27 March 2024, in respect of the substation application is

framed in similar terms to that relating to the data centre application.

30. On 5 April 2024, the commission granted planning permission for the data centre

development subject to 17 conditions. On the same date, it granted permission for the substation

development subject to 14 conditions. The commission’s orders in respect of both records that it

carried out an EIA and an AA of the proposed development.

Procedural history

31. On 30 May 2024, the applicants’ statement of grounds was filed in the High Court Central

Office.

32. On 24 June 2024, I granted leave to apply for judicial review seeking, inter alia, an order

quashing the commission’s decisions taken on 5 April 2024. On the same date I fixed a hearing

date of 25 February 2025 for the judicial review for two days.

33. On 7 October 2024, in advance of delivering a statement of opposition the commission’s

solicitors wrote to the other parties indicating that the commission had decided not to oppose the

applicants’ claim for certiorari quashing the commission’s decisions on the data centre application

and the substation application. Their letter stated:

“Having regard to the circumstances of this case and, in particular, the plea(s) advanced at

Core Ground 6 of the said Statement of Grounds – namely, that the Board erred in law in

failing to consider adequately the environmental effects of the proposed developments on

the environment, specifically in terms of impacts on bat fauna for the purposes of the

Environmental Impact Assessment carried out by the Board.”

34. The legal community will be forever grateful to the unsuccessfully appealing applicants 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),

because that case clarified the really important procedural point that a developer can defend a

permission even if the decision-taker does not. On foot of the procedure recognised in that decision,

on 25 November 2024, the notice party communicated to the court that it was seeking that the

hearing date of 25 February 2024 would be retained to facilitate a hearing in relation to core ground

6 only, as the notice party intended to resist certiorari being granted by reference to the ground on

which the commission’s concession was made. I directed that the matter proceed as a modular

hearing for one day on 25 February 2025, on the question of whether I should quash the decisions

in light of the commission’s concession.

35. On 5 December 2024, the notice party’s solicitors wrote to the commission’s solicitors

stating:

“We note that there are sixteen paragraphs contained in the Applicant's Statement of

Grounds with respect to Core Ground 6. Can you please confirm the exact point(s) pleaded,

under Core Ground 6, which forms the basis of your client's concession, so that the precise

contours of the upcoming hearing can be defined.”

36. On 9 December 2024, the commission’s solicitors wrote to the solicitors for the other parties,

clarifying that:

“The Board accepts the errors pleaded in the particulars set out at §91-§93 of the Statement

of Grounds insofar as same are premised on the Inspector’s statement (at pg.74 of the

Inspector’s Report) … On the basis that the information before the Board, including the

updated EIAR, the evidence demonstrated that the Proposed Development would result in

the loss of a bat roost. Thus, in failing to recognise the loss of the bat roost, it is conceded

that the Inspector and the Board erred in failing to identify, consider and assess the potential

impacts of the Proposed Development on bat fauna for the purposes of EIA.”

37. On 16 December 2024, I directed that the hearing scheduled for 25 February 2025 would

be in relation to the matters in §§91-93 only of the applicant’s statement of grounds, following

clarification from the commission in its letter of 9 December 2024 that its concession related only to

the matters pleaded thereunder.

38. On 23 December 2024, the notice party served a limited statement of opposition, together

with a verifying affidavit sworn by Deborah Delaney and an affidavit of Colm Clarke.

39. On 23 January 2025, the applicants’ solicitors sent a letter to the notice party’s solicitors

asserting that the notice party’s statement of opposition addressed the entirety of the grounds

pleaded in relation to core ground 6. The letter stated that:

“This was not what was required, and would appear to be an attempt to impermissibly

expand on the matters directed to be heard at the hearing. The Affidavit of Ms Delaney

traverses matters far beyond those in ground 91- 93 of the Statement of Opposition.

Furthermore, your client has delivered an affidavit of Colm Clarke ecologist and it is clear

that this Affidavit also addresses issues which go far beyond what is in issue in relation to

grounds 91-93 of the Statement of Opposition.”

40. The letter indicated that the applicants would apply to have parts of the statement of

opposition struck out and the notice party’s affidavits “resworn to address the matters relevant to

those to be addressed at the forthcoming hearing”.

41. On 24 January 2025, the notice party’s solicitors sent a letter to the applicant’s solicitors

stating:

“…[o]ur client fully accepts that the issue which the Court has to decide on 25 February 2025

relates specifically to paragraphs 91-93 of the Statement of Grounds, concerning the effect

of a factual error which appears on page 74 of the Inspector’s report on the Data Centra

application, in the section of her report dealing with ecology issues and bats in particular.

The extract states, inter alia, that ‘[t]he various EIAR desk-top and site surveys confirm that

the site and environs are frequented by bats, and although some of the older farm buildings

may also have roosting potential, the applicant confirmed that no roosts were recorded

during the surveys …

It would be entirely unrealistic and artificial, and a waste of court time, to ask the Court to

determine whether the Inspector’s factual error should result in the Board’s decision being

quashed without addressing the other matters [in Core Ground 6], including the allegation

that the Board had no objective information before it in terms of the impacts on bat fauna

for the purposes of the EIA and/or the issue of whether a derogation licence was required in

advance of the Board’s decision. Indeed, were our client to simply deal with the issue of the

Inspector’s factual error in isolation from the treatment of the issue of bat fauna generally,

it could expect to be criticised by both your client and the Court, given the overlap between

the issues and the critical requirement of the Court to have an understanding of the totality

of the matters raised in Core Ground 6 in considering proportionality. Furthermore, given

that our client is asking the Court to exercise its discretion against quashing, it is imperative

that the Court has a full picture of the issues in order to properly consider the matter. In so

doing, our client is not asking the Court to do anything other than determine the issue with

respect to the Inspector’s factual error.”

42. On 27 January 2025, on the application of the applicants, the matter was listed before the

court and I clarified – with the agreement of the applicants and the notice party – that where the

commission concedes a ground and the court conducts a modular hearing on the notice party’s

application determining whether the decision should be quashed in light of the commission’s

concession, for the purposes of determining that issue, the court approaches the application on the

basis that all other issues would be resolved in the notice party’s favour. However, in the event that

the court exercises its discretion against quashing and the matter proceeds to a further module

dealing with the remaining grounds which the commission has not conceded, those other issues

revert to being fully in contest for the purposes of the subsequent module.

43. On 3 February 2025, the applicants’ solicitors confirmed that the applicants would not be

filing replying affidavits in response to the notice party’s limited statement of opposition and

affidavits.

44. On 5 February 2025, the notice party delivered its legal submissions.

45. On 19 February 2025, the applicants delivered their legal submissions.

46. Module I was heard on 25 February 2025.

47. In the No. 1 judgment delivered on 21 March 2025, I dismissed the argument raised in that

Module.

48. Module II would have happened much sooner but for the fact that the issue got caught up

in the appeal in Coolglass. The proceedings were adjourned from time to time thereafter to await

the decision in the Coolglass proceedings which was delivered on 4 February 2026 (Coolglass v. An

Coimisiún Pleanála [2026] IESC 5 (Unreported, Supreme Court, 4 February 2026).

49. Module II was heard shortly thereafter on 2 March 2026. At the end of that hearing the

notice party produced a document, which I had suggested as a possible way to clarify the point

made in written submissions, which was their attempt at classifying the point in time at which various

issues had been raised by the applicants. I indicated that I might review and reformat the document

and put the matter in for mention at 09:30 the following morning for arrangements to be made for

the applicants input by way of response.

50. At the conclusion of the foregoing final mention, I decided that it was not necessary to pursue

further written submissions subject to reserving the right to revisit that if I thought it necessary in

the course of writing, so judgment was then reserved at the end of that listing. I record my thanks

to all of the lawyers for their endeavours to assist the court.

51. On 6 March 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.

52. 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.

53. 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).

54. Draft judgments are not public domain materials and, while they can be shared between the

lawyers concerned and their clients, subject to the following, it is inappropriate for any person to

refer to them for any purpose other than to assist the court in relation to the finalisation of the

formal judgment. Therefore anyone with information as to the text, content or proposed outcome

of any draft is required not to publish or transmit such information to others save solely by way of

private transmission for the legitimate purposes of assisting in the finalisation of the judgment and

subject to a similar restriction on any recipient. Trial participants should take reasonable steps to

keep drafts confidential. On this topic, 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; see also Baigent v. Random House

Group Ltd [2006] EWHC 1131 (Ch), [2006] 5 WLUK 45, (2006) 150 S.J.L.B. 603 (Smith J.); R.

(Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy

[2022] EWCA Civ 181, [2022] 1 W.L.R. 1915, [2022] 4 All E.R. 599 (Sir Geoffrey Vos MR; Davies

and Dingemans LJJ. concurring); Public Institution for Social Security v. Banque Pictet & Cie SA and

others [2022] EWCA Civ 368, [2022] 3 WLUK 291, [2022] B.L.R. 349 (Carr LJ; Jackson and Simler

LJJ. concurring); Itkin v. Wood [2023] JRC 101 (Unreported, Royal Court of Jersey, 22 June 2023).

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.

55. While on some previous occasions periods of 7 or more days have been allowed for

comments this has led to unintended slippage so there is a case for a tighter timeline, as in the High

Court of England & Wales (the draft is provided “by 4 p.m. on the second working day before handing

down”, Practice Direction 40E, Reserved Judgments, para. 2.3). The deadline for such comments

from the parties was to be 16:00 on Tuesday 10 March 2026. The opposing parties pointed out a

typographical error (in fact one that had its origin in the applicants’ material). Contrary to the

request set out above, the applicants failed to respond to the court in any manner by the specified

deadline.

Relief sought

56. The reliefs sought are as follows:

“1) An Order of Certiorari quashing the decisions, and each of them, dated 5 April 2024

of the first named Respondent granting planning permission to the Notice Party for:

(a) the construction of a proposed data centre (PDC) located in Ennis, County Clare,

comprising six two-storey data centre buildings with three storey plant/office levels and

associated ancillary development that will have a combined gross floor area of 118,740

square metres, including a 120MW gas powered electricity generation facility and

dispatchable electricity generation facility powered by 66 diesel generators (ABP-314474-

22, ‘the Data Centre Decision’);

(b) the provision of a new 110 kilovolt (kV) Gas Insulated Switchgear (GIS) grid

substation (the Substation), two 110 kV underground transmission cables connecting to

existing 110kV overhead lines to the north of the proposed substation, and two 110kV

underground transmission cables connecting to the existing Ennis 110kV grid substation

(located to the east of the M18 and to the north of the Tulla Road (R352), along with

associated and ancillary works) (ABP-313895-22, ‘the Substation Decision’).

[In this Statement of Grounds any reference to a document contained in the planning files

before the Board or the Planning Authority relate to the application and appeal in respect of

the PDC, unless otherwise stated].

2) Such declaration(s) of the legal rights and/or legal position of the applicants and (if

and insofar as legally permissible and appropriate) persons similarly situated and/or of the

legal duties and/or legal position of the respondents as the court considers appropriate.

3) A declaration that the State's adoption of the ‘Government Statement on the Role of

Data Centres in Ireland's Enterprise Strategy July 2022’ is invalid as it was not subject to

assessment for the purposes of Articles 1 and 3 of Directive 2001/42/EC of the European

Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain

plans and programmes on the environment.

4) If necessary, a stay on works being carried out pursuant to the Data Centre Decision

and the Substation Decision pending the resolution of these proceedings.

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

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

otherwise.

6) Further or other orders.

7) Costs.”

Grounds of challenge

57. The core grounds of challenge are as follows:

“DOMESTIC LAW GROUNDS

1. The Data Centre Decision is invalid in that the Board failed to apply and/or consider

its mandatory obligation under section 15 of the Climate Action and Low Carbon

Development Act 2015 (as amended by Section 17 of the Climate Action and Low Carbon

Development (Amendment) Act 2021), namely in so far as practicable, to perform its

functions in a manner consistent with the matters stated in section 15, including (a) the

most recent approved climate action plan, (the Climate Action Plan 2023), (d) the

furtherance of the national climate objective, and (e) the objective of mitigating greenhouse

gas emissions (GHG emissions) and adapting to the effects of climate change in the State;

and/or failed to provide sufficient reasons to explain how it sought to apply and/or consider

its mandatory obligation under the 2015 Act, further particulars of which are contained

below.

2. The Data Centre Decision is invalid in that the Board acted irrationally, erred in law

and/or failed to provide reasons and/or adequate reasons, in finding that the PDC would

have potentially positive environmental impacts, based on a future switch to the use of

sustainable/renewable gas supplies, which do not exist in sufficient volumes for any practical

application in respect of the PDC and which are not expected to exist in sufficient volumes

for any practical application in respect of the PDC at any point during the operational phase

of the PDC, further particulars of which are contained below.

3. The Data Centre Decision is invalid in that the Board acted irrationally by failing to

require any mitigation of the GHG emissions from the PDC, further particulars of which are

contained below.

EUROPEAN LAW GROUNDS

4. The Data Centre Decision is invalid in that the Board treated the Government

Statement on the Role of Data Centres in Ireland's Enterprise Strategy July 2022 as the

framework for development consent in respect of data centres: while simultaneously

deciding that the Government Statement on the Role of Data Centres in Ireland's Enterprise

Strategy July 2022 is not a plan or programme to which Article 3(2) of the Strategic

Environmental Assessment (SEA) Directive applies, further particulars of which are

contained below.

5. The Data Centre Decision is invalid as it relied on the Government Statement on the

Role of Data Centres in Ireland's Enterprise Strategy July 2022 which is invalid as it was not

assessed for the purposes of Articles 1 and 3 of Directive 2001/42/EC of the European

Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain

plans and programmes on the environment, further particulars of which are contained below.

6. The Data Centre Decision and the Substation Decision are invalid as the Board failed

to consider adequately or at all the environmental effects of the proposed development on

the environment in terms of impacts on bat fauna for the purposes of the EIA assessment

carried out by the Board and/or had no objective information before it to support a conclusion

of no significant effects on the environment for the purposes of the Board's EIA assessment

and/or impermissibly granted development consent prior to a decision granting a derogation

licence authorising bat roost removals and/or disturbance to bat species, further particulars

of which are contained below.

7. The Data Centre Decision is invalid as the Board granted planning permission in

breach of Article 4(1) of Directive 2000/60/EC of the European Parliament and of the Council

of 23 October 2000 establishing a framework for Community action in the field of water

policy (the ‘Water Framework Directive’) and/or Regulations 4 and 5 of the European

Communities Environmental Objectives (Surface Waters) Regulations 2009 because the

Board did not ensure that the grant of planning permission would not cause a deterioration

of the status of a body of surface water or that it would not jeopardise the attainment of

good surface water status or of good ecological potential and good surface water chemical

status and/or the Board could not have arrived at that conclusion in the absence of the

developer making available to the public during the procedure for approving the project the

data which were necessary in order to assess the effects of the development on receiving

waterbodies, further particulars of which are contained below.

VALIDITY GROUND

8. The State's adoption of the Government Statement on the Role of Data Centres in

Ireland's Enterprise Strategy July 2022 is invalid as it was not subject to assessment for the

purposes of Articles 1 and 3 of Directive 2001/42/EC of the European Parliament and of the

Council of 27 June 2001 on the assessment of the effects of certain plans and programmes

on the environment, further particulars of which are contained below.”

The impugned decision

58. The impugned decision provides as follows:

“An Bord Pleanála

Board Order ABP-314474-22

Planning and Development Acts 2000 to 2022

Planning Authority: Clare County Council

Planning Register Reference Number: 21/757

Appeal by Colin Doyle of 12 Cottage Gardens, Station Road, Ennis, County Clare and by

others against the decision made on the 8th day of August, 2022 by Clare County Council to

grant subject to conditions a permission to Art Data Centres Limited care of John Spain

Associates of 39 Fitzwilliam Place, Dublin in accordance with plans and particulars lodged

with the said Council.

Proposed Development: Permission of 10 years in duration sought for development

consisting of: the demolition of an existing single storey with pitched roof farm dwellinghouse

together with eight number farm outbuildings on the overall site. The construction of six

number two-storey data centre buildings with three-storey plant/office levels and associated

ancillary development that will have a combined gross floor area of 118,740 square metres.

These data halls are maximum 19 metres high and will consist of the data halls and air

handling units and offices and ancillary plant and support. Each of the six data centre

buildings will include data halls, associated electrical and mechanical plant rooms, loading

bays, maintenance and storage spaces, office administration areas, pump rooms, water

storage tanks, and plant, as well as backup (standby) generators (11 number per building)

for emergency use only situated along one elevation of each building. The standby diesel

generators will have associated eight-metre-high flues. Each generator will also include local

diesel storage tanks with a single refuelling area to serve the proposed emergency

generators. A gas-powered energy centre and Above Ground Installation (AGI) 4,674 square

metres in size. The energy centre will primarily comprise 18 number lean-burn natural gas

engines, two number pump rooms, and fuel storage compound. Each generator will have

its own flue of 25 metres height. The energy centre and buildings within the compound will

be 12 metres high, single storey with mezzanine level. The buildings will house ancillary

office, welfare facilities and associated parking. A two-storey Vertical Farm Building. The

vertical farm will be circa 2,430 square metres and 12 metres high. It will comprise circa

service area of 1,444 square metres, handling area of 844 square metres and ancillary areas.

Solar panels located on each of the data centres and rainwater harvesting included in the

development. Undergrounding of two existing overhead 110kV electricity transmission lines.

Ancillary site development works that will include attenuation ponds and the installation of

pipes and connections to the public water supply, foul and storm water drainage network

and installation of utility ducts and cables. Other ancillary site development works will

include hard and soft landscaping throughout the site, lighting, fencing, signage, central

services road and internal access roads, security gate, 299 number car parking spaces and

126 number bicycle parking spaces. The development will be enclosed with landscaping to

all frontages, including the retention of an ecological buffer area to the west. The

development will be accessed from the Tulla Road (R352) with the provision of a new

vehicular access road, together with an emergency access/egress road to the south-west of

the site. A shared surface cycle/footpath is to be provided along both sides of the Tulla

Road across the campus site's full road frontage. All associated and ancillary works. The

application site has a total of circa 60 hectares with a nett area for development of circa 45

hectares, and is bound to the south by R352 (Tulla Road), to the east and the north by

agriculture land, to the west by the M18, all in the townlands of Tooreen, Cahernalough,

Knockanean, Ballymacahill, Muckinish and Rosslevan, Tulla Road, Ennis, County Clare, as

revised by the further public notices received by the planning authority on the 9th day of

March, 2022 and on the 14th day of June, 2022.

Decision

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

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

set out below.

Reasons and Considerations

The Board in making its decision had regard to the following:

(a) the National Planning Framework - Ireland 2040,

(b) the Climate Action Plan 2023,

(c) the Regional Spatial and Economic Strategy for the Southern Region 2020,

(d) the policies of the planning authority as set out in the Clare County Development

Plan 2023-2029,

(e) the Government Statement on the Role of Data Centres in Ireland's Enterprise

Strategy July 2022,

(f) the distance to dwellings or other sensitive receptors,

(g) the submissions made in connection with the planning application and the appeal,

(h) the likely consequences for the environment and the proper planning and sustainable

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

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

(i) the report and recommendation of the Inspector.

Appropriate Assessment: Stage 1:

The Board agreed with the screening assessment and conclusion carried out in the

Inspector's Report that the Old Domestic Building (Keevagh) Special Area of Conservation

(Site Code: 002010), the Dromore Woods and Laughs Special Area of Conservation (Site

Code: 000032), the Old Domestic Buildings, Rylane Special Area of Conservation (Site Code:

002314), the Lower River Shannon Special Area of Conservation (Site Code: 002165), the

Ballyallia Lough Special Protection Area (Site Code: 004041), the River Shannon and River

Fergus Estuaries Special Protection Area (Site Code: 004077), the Slieve Aughty Mountains

Special Protection Area (Site Code: 004168) and the Corofin Wetlands Special Protection

Area (Site Code: 004220) are the European Sites in respect of which the proposed

development has the potential to have a significant effect in view of the Conservation

Objectives for the sites and that Stage 2 Appropriate Assessment is, therefore, required.

Appropriate Assessment: Stage 2:

The Board considered the consolidated Natura Impact Statement, and all the other relevant

submissions on file, and carried out an appropriate assessment of the implications of the

proposed development on the Old Domestic Building (Keevagh) Special Area of Conservation

(Site Code: 002010), the Dromore Woods and Loughs Special Area of Conservation (Site

Code: 000032), the Old Domestic Buildings, Rylane Special Area of Conservation (Site Code:

002314), the Lower River Shannon Special Area of Conservation (Site Code: 002165), the

Ballyallia Lough Special Protection Area (Site Code: 004041), the River Shannon and River

Fergus Estuaries Special Protection Area (Site Code: 004077), the Slieve Aughty Mountains

Special Protection Area (Site Code: 004168) and the Corofin Wetlands Special Protection

Area (Site Code: 004220) in view of the sites' Conservation Objectives. The Board

considered that the information before it was sufficient to undertake a complete assessment

of all aspects of the proposed development in relation to the sites' Conservation Objectives

using the best scientific knowledge in the field. In completing the assessment, the Board

considered, in particular, the following:

(i) the site-specific Conservation Objectives for the European Sites,

(ii) the current conservation status, threats and pressures on the qualifying

interest/special conservation interest features,

(iii) the likely direct and indirect impacts arising from the proposed development, both

individually or in combination with other plans or projects,

(iv) the view of the Department of Arts, Heritage and the Gaeltacht, and

(v) the mitigation measures which are included as part of the current proposal.

In completing the appropriate assessment, the Board accepted and adopted the appropriate

assessment carried out in the Inspector's Report in respect of the potential effects of the

proposed development on the aforementioned European Sites.

In overall conclusion, the Board was satisfied that the proposed development would not

adversely affect the integrity of the European Sites in view of the sites' Conservation

Objectives and there is no reasonable scientific doubt as to the absence of such effects.

Environmental Impact Assessment:

The Board completed an environmental impact assessment of the proposed development

taking account of:

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

(b) the Environmental Impact Assessment Report (EIAR), the consolidated EIAR report,

and associated documentation submitted in support of the application,

(c) the submissions received from the prescribed bodies, planning authority and third

parties, and

(d) the Inspector's report.

The Board considered that the Environmental Impact Assessment Report (EIAR) and

consolidated EIAR report, supported by the documentation submitted by the applicant,

adequately considers alternatives to the proposed development and identifies and describes

adequately the direct, indirect, secondary and cumulative effects of the proposed

development on the environment. The Board agreed with the examination, set out in the

Inspector's report, of the information contained in the EIAR report and consolidated EIAR

report and associated documentation submitted by the applicant and submissions made in

the course of the application.

The Board considered that the main significant direct and indirect effects of the proposed

development on the environment are, and would be mitigated, as follows:

• The risk of pollution of ground and surface waters, or changes to ground water flow

paths during the construction phase through a lack of control of surface water during

excavation and construction, the mobilisation of sediments and other materials during

excavation and construction. The construction of the proposed development could also

potentially impact negatively on ground and surface waters by way of contamination through

accidents and spillages, and disrupting flow paths. These impacts would be mitigated by the

implementation of the Drainage Management Plan, agreement of measures within a

Construction and Environment Management Plan, and the implementation of mitigation

measures related to: design and avoidance; accidental spills and contamination; sediment

and erosion control; and drainage management.

• Biodiversity impacts arising from habitat loss and fragmentation, changes to the

vegetation on the site, loss of foraging habitat and disturbance to otters, badgers, birds and

bats, connections to foraging, aquatic and water dependent habitats and general disturbance

during the construction and operational phases. These impacts would be mitigated by the

agreement of measures within a Construction and Environment Management Plan, the

measures contained in the Landscape and Biodiversity Management Plan, and the

implementation of mitigation measures which include: Pre-construction Bird, Bat & Mammal

Surveys; Water Quality protection measures (as above); an Invasive Species Management

Plan; and the appointment of a Project Ecologist.

• The proposed development gives rise to an increase in vehicle movements and

resulting traffic impacts during the construction phase and significant impacts on the road

network can be avoided by the proposed works along the road network. These impacts

would be mitigated by the agreement of measures within a Construction and Environment

Management Plan and the implementation of mitigation measures related to: pre-

construction road condition surveys; deliveries; and implementation of a Construction Traffic

Management Plan and Construction and Demolition Waste Management Plan.

• Air pollution and noise during the construction and operational phase which would

impact negatively on sensitive ecological receptors and populations in the vicinity of the site.

These impacts are substantially avoided by the limited number of sensitive receptors in close

proximity to the proposed development. Any remaining impacts would be mitigated by the

agreement of measures within a Construction and Environment Management Plan and the

implementation of mitigation measures related to: air quality, dust and noise.

• The impacts on residential amenity during the construction and operational phases

would be avoided by the implementation of the measures set out in the Environmental

Impact Assessment Report (EIAR) and the consolidated EIAR report which include specific

provisions relating to the control and management of dust, noise, water quality and traffic

movement.

• The impacts on cultural heritage during the construction and operational phases

would be avoided by the implementation of the measures set out in the Environmental

Impact Assessment Report (EIAR) and the consolidated EIAR report, and by compliance with

the recommended conditions in relation to archaeological assessment of the site.

• The proposed development would have potentially positive environmental impacts

during the operational phase arising from the undergrounding of the existing overhead

transmission cables, and from the future switch to the use of sustainable/renewable gas

supplies in the energy centre for energy generation, with a corresponding reduction in carbon

emissions.

The Board completed an environmental impact assessment in relation to the proposed

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

proposed, and subject to compliance with the conditions set out below, the effects of the

proposed development on the environment, by itself and in combination with other plans

and projects in the vicinity, would be acceptable. In doing so, the Board adopted the report

and conclusions of the Inspector.

Conclusions on Proper Planning and Sustainable Development:

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

development would be in accordance with European, national, regional and local planning

and related policy, would not have an unacceptable impact on the landscape or ecology,

would not seriously injure the visual or residential amenities of the area or of property in the

vicinity, and would be acceptable in terms of traffic safety and convenience. The proposed

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

development of the area.

Conditions

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

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

particulars received by the planning authority on the 25th day of February, 2022, the 10th

day of June, 2022 and by An Bord Pleanala on the 26th day of September, 2022, except as

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

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

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

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

agreed particulars.

Reason: In the interest of clarity.

2. This permission shall be for a period of 10 years from the date of this Order.

Reason: In the interest of clarity and orderly development.

3. The mitigation measures identified in the Environmental Impact Assessment Report,

the Natura Impact Statement and other plans and particulars submitted with the planning

application and appeal shall be implemented in full by the developer, except as may

otherwise be required in order to comply with the conditions of this permission.

Reason: In the interest of clarity and the protection of the environment during the

construction and operational phases of the proposed development.

4. The developer shall comply with the following general requirements:

(a) The developer shall submit full details in relation to all external finishes of all

buildings to the planning authority for written agreement prior to commencement of

development.

(b) No additional artificial lighting shall be installed or operated on site unless authorised

by a prior grant of planning permission.

(c) Operational noise levels shall not exceed 55dB(A) Leq 1hr at the nearest existing

noise sensitive locations between 0800 and 2000 hours (Monday to Friday inclusive) and

shall not exceed 45dB(A) Leq 1hr at any other time.

(d) Each fencing panel shall be erected such that for a minimum of 300 millimetres of

its length its bottom edge is no less than 150 millimetres from ground level.

(e) Cables within the site shall be located underground.

(f) No additional signage or advertising shall be erected on the lands or buildings

without a prior grant of planning permission.

Reason: In the interest of clarity, of visual and residential amenity, to allow wildlife to

continue to have access to and through the site, and to minimise impacts on drainage

patterns and surface water quality.

5. The developer shall comply with the following nature conservation requirements:

(a) A suitably qualified and experienced Project Ecologist shall be appointed to oversee

the protection of biodiversity during the construction phase, and for a monitoring period of

five years following completion of the development.

(b) The Project Ecologist shall certify that the completed development is compliant with

the Environmental Impact Assessment Report and Natura Impact Statement mitigation

measures and the following conditions.

(c) No felling or vegetation removal shall take place during the period 1st March to 31st

August.

(d) A pre-construction bat survey shall be carried out by a suitably qualified ecologist

during the active bat season.

(e) Any destruction of bat roosting sites or relocation of bat species shall be carried out

by a suitably qualified ecologist under a Derogation Licence granted by the Minister for

Housing, Local Government and Heritage.

(f) A pre-construction otter survey shall be carried out by a suitably qualified ecologist.

(g) Any destruction or relocation of otter halts shall be carried out by a suitably qualified

ecologist under a Derogation Licence granted by the Minister for Housing, Local Government

and Heritage.

(h) Mammal friendly fencing shall be installed during the construction and post

construction phases.

Reason: In the interest of biodiversity and nature conservation.

6. The developer shall implement mitigation measures to lessen the potential for

impacts on badgers arising from the excavation and construction works:

(a) A 30-metre cordon shall be installed around any badger sett entrances, which shall

be screened and remain in place throughout the construction works.

(b) There shall be no artificial lighting of any badger sett entrances during the

construction and operational phases.

(c) During the breeding season, no works shall take place within 50 metres of the sett

for general construction and 150 metres for noisy and vibratory activities.

(d) The built-in construction design shall allow for escape from trenches.

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

the badger species of the area.

7. The landscaping proposals shall be carried out within the first planting season

following commencement of construction of the proposed development during the first phase

of the works. Only native species of trees and hedgerow shall be planted. All existing

roadside hedgerows (except at access point openings) and hedgerows around the outer

perimeter of the site shall be retained. The landscaping and screening shall be maintained

at regular intervals. Any trees or shrubs planted in accordance with this condition which are

removed, die, become seriously damaged or diseased within two years of planting shall be

replaced by trees or shrubs of similar size and species to those original required to be

planted. The landscaped berms located in the southern section of the site, shall be

constructed during the first phase of the works.

Reason: To assist in screening the proposed development from view and to blend it into its

surroundings in the interest of visual amenity, in the interest of biodiversity and to protect

wildlife.

8. The developer shall comply with the following transportation requirements:

(a) A final Traffic Management Plan for the construction phase of the proposed

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

to commencement of development.

(b) The Traffic Management Plan shall ensure that there is not a backlog of construction

traffic from the M18/Junction 13 and shall include for staggered deliveries to the site.

(c) Construction of the proposed right-hand turning lane at the main access shall be

commenced concurrently with the commencement of the site works and shall be completed

within six months of the commencement of development on site. The site access and right-

hand turning lane, including the proposed pavement overlay, shall be undertaken as

indicated in the details submitted with the planning application and detailed design, including

drainage arrangements, along the R352 Tulla Road. Works shall be carried out by the

developer at its own expense.

(d) Design details in relation to the proposed pedestrian crossing points on the R352

Tulla Road shall be submitted to the planning authority for written agreement prior to

commencement of development. The crossing points shall be fully in-situ prior to occupation

of the development and the works shall be carried out by the developer at its own expense.

(e) Design details in relation to the proposed shared use footpath/cycle track shall be

submitted to the planning authority for written agreement prior to commencement of

development. The shared use footpath/cycle track shall be located on both sides of the

R352 Tulla Road along the extent of the development boundary to a point just east of the

L8168 side road junction, and the works shall be carried out by the developer at its own

expense.

(f) Details of the exact location of the bus stop shall be submitted to the planning

authority for written agreement prior to commencement of development, which should be

constructed prior to the operation of any part of the proposed development.

(g) CCTV cameras shall be fixed and angled to face into the site and shall not be directed

towards adjoining properties or the road.

Reason: In the interest of pedestrian, cyclist and traffic safety, infrastructure provision, and

the proper planning and sustainable development of the area.

9. Water supply and drainage arrangements, including the attenuation and disposal of

surface water, and flood risk management, shall comply with the requirements of Irish Water

and the planning authority for such works and services, as appropriate.

Reason: In the interest of public health and to ensure a proper standard of development.

10. The developer shall comply with the following additional water supply and drainage

requirements:

(a) The storm water attenuation pond and primary network shall be installed in Phase 1

of the proposed development.

(b) Drainage on to the R352 Tulla Road and the site access shall be by means of a

separate drainage network and attenuation system that discharges directly to the

Ballymacahill/Spancelhill Stream. This system shall be independent of the M18 Motorway

Drainage network.

(c) The final size, volume and design of the proposed attenuation pond and associated

infrastructure shall comply with section 2.2.5 of the Engineering Report received by the

planning authority on the 25th day of February, 2022 and the clarification of further

information response received on the 10th day of June, 2022.

(d) The developer shall install the storm water network, hydrocarbon interceptors and

attenuation area as part as per the designer's requirements and the manufacturer's

instructions, and a suitability qualified Engineer shall certify same. The certification shall be

submitted to the planning authority for written agreement prior to the occupation of any

part of the proposed development.

(e) The developer shall submit details in relation to the maintenance requirements and

schedules for the storm water network and attenuation area to the planning authority for

written agreement prior to the occupation of any part of the proposed development.

(f) The proposed development shall provide 48-hour storage in respect of the adiabatic

cooling waters.

Reason: In the interest of public health and to ensure a proper standard of development.

11. The construction of the proposed development shall be managed in accordance with

a Construction and Environmental Management Plan, which shall be submitted to, and

agreed in writing with, the planning authority prior to commencement of development. This

plan shall provide details of intended construction practice for the proposed development,

including noise management measures, traffic management, protection of wayleaves, an

invasive species management plan, an asbestos management plan, and off-site disposal of

construction /demolition waste.

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

12. Site development and building works shall be carried out only between the hours of

0700 to 1900 Mondays to Fridays, inclusive, between 0800 to 1400 hours on Saturdays and

not at all on Sundays or public holidays. Deviation from these times shall only be allowed

in exceptional circumstances where prior written approval has been received from the

planning authority.

Reason: In order to safeguard the residential amenities of property in the vicinity.

13. The site development and construction works shall be carried out in such a manner

as to ensure that the adjoining roads are kept clear of debris, soil and other material.

Cleaning works shall be carried on the adjoining public roads by the developer and at the

developer's expense on a daily basis.

Reason: To protect the residential amenities of property in the vicinity.

14. The developer shall comply with the following archaeological requirements:

(a) Pre-development archaeological testing shall be undertaken by a suitably qualified

archaeologist licensed under the National Monuments Acts 1930-2004. No sub-surface work

shall be undertaken in the absence of the archaeologist without his/her written consent.

(b) A report, containing the results of the assessment, shall be submitted to the planning

authority and, arising from this assessment, the developer shall agree in writing with the

planning authority details regarding any further archaeological requirements (including, if

necessary, archaeological excavation) prior to commencement of construction works. A

copy of the report shall be submitted to the Department of Housing, Local Government and

Heritage.

(c) The planning authority and the Department of Housing, Local Government and

Heritage shall be notified in writing at least four weeks prior to the commencement of any

site operations (including hydrological and geotechnical investigations) relating to the

proposed development.

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

Bord Pleanala for determination.

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

preservation (in-situ or by record) and protection of any archaeological remains that may

exist within the site.

15. The developer shall submit details in relation to the occupation, operation and

management of the Vertical Farm to the planning authority for written agreement prior to

commencement of development.

Reason: In the interest of orderly development.

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

authority a bond of an insurance company, a cash deposit, or other security to secure the

provision and satisfactory completion of the development, coupled with an agreement

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

completion of any part of the development.

Reason: To ensure the satisfactory completion of the development.

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

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

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

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

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

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

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

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

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

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

the terms of the Scheme.

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

condition requiring a contribution in accordance with the Development Contribution Scheme

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

Some general considerations

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

under a number of headings as follows.

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

60. 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.

61. 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

62. 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.

The lens of the material before the decision-maker

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

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

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

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

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

(ii) matters that must not be considered; and

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

to but does not have to.

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

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

taker at the time of the decision. Thus:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025) at 54;

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

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

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

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

[2023] IEHC 241 (Unreported, High Court, 15 May 2023). In particular in the climate

context, although not confined to that, the extent to which issues were raised in the

process is of major importance (Coolglass para. 118(xiv)). Exceptions are discussed

in Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230 (Unreported, High Court, 12

April 2021) – if such exceptions apply then the court can potentially receive new

evidence;

(iii) the concept of autonomous duties should not be extended to nullify the requirement

to make the point to the decision-taker. Where the decision-taker fails to engage

with the relevant statutory test at all (as in Sherwin for example), one can

characterise that as a breach of an autonomous duty, whether or not submissions

on the point were also made, but where the decision-taker does address the

appropriate test, the outcome of that should not normally be condemned on the

basis of some new argument or evidence which was never put forward in the

process, consistently with the foregoing caselaw.

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

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

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

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

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

inserted on foot of their own substantive submissions; McGowan v. An Coimisiún

Pleanála [2025] IEHC 405 (Unreported, High Court, 16 July 2025) §§140 & 160;

Fernleigh RA v. An Coimisiún Pleanála [2025] IEHC 655 (Unreported, High Court,

Holland J., 28 November 2025) at 63).

Onus of proof

65. 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).

Reasons

66. Key elements of the law relating to reasons include:

(i) The standard is the obligation to provide the main reasons on the main issues:

Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 45 (Clarke C.J.)

(O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Balz v. An Bord

Pleanála [2019] IESC 90, [2023] 3 I.R. 751, [2020] 1 I.L.R.M. 367 per O’Donnell J.;

Balscadden Road SAA Residents Association Ltd v. An Bord Pleanála (No. 1) [2020]

IEHC 586, [2020] 11 JIC 2501 (Unreported, High Court, 25 November 2020);

Atlantic Diamond v. An Bord Pleanála [2021] IEHC 322 (Unreported, High Court, 14

May 2021); Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669

(Unreported, High Court, Holland J., 25 November 2024), para. 59; Pat O’Donnell v.

Dublin City Council [2024] IEHC 671 (Unreported, High Court, Holland J., 26

November 2024), para. 129; per 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); see also non-

precedentially Morris v. An Bord Pleanála [2025] IESCDET 25 (Dunne, Woulfe and

Hogan JJ., 17 February 2025); Ó Murthuile v. An Bord Pleanála [2025] IEHC 498

(Unreported, High Court, Farrell J., 19 September 2025) at 49; Moran v. An Bord

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

J. at 33; reasons are to be understood in context of the “Broad issues” – Finlay C.J.

(Griffin, Hederman and Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993]

1 I.R. 39, [1992] I.L.R.M. 237 at p. 76 or “Broad gist” – Faulkner v. Minister for

Industry and Commerce 1997 WJSC-SC 962, [1996] 12 JIC 1007 (Unreported,

Supreme Court, 10 December 1996) per O’Flaherty J. (Hamilton C.J. and Barrington

J. concurring).

(ii) A decision-taker is not required to give “reasons for the reasons”: Munby L.J.

(Tomlinson and Patten LJJ. concurring) in In re A. and L. (Children) [2011] EWCA

Civ. 1611, [2011] 12 W.L.U.K. 725, [2012] 1 F.L.R. 1243, [2012] Fam. Law 285, at

para. 35 (in the context of judicial reasoning – the administrative obligation can’t be

greater); N.P.B.K. (D.R.C.) v. International Protections Appeals Tribunal [2020]

IEHC 450 (Unreported, High Court, 25 September 2020) at 29; Ó Murthuile v. An

Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September

2025) at 49.

(iii) Certain issues are to be viewed objectively as main reasons given the

nature of the process or decision at issue – for example if it is in dispute as to

whether key statutory criteria for the decision have been satisfied. Where the

commission is disagreeing with a council (Sherwin v. An Bord Pleanála [2023] IEHC

26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023)) or with its own

inspector on a point on which the grant or refusal of permission turns, such an issue

is virtually by definition a main issue, speaking objectively, such that a decision not

to give reasons on it would be held to be erroneous (Crekav Trading GP Ltd v. An

Bord Pleanála and Ors. [2020] IEHC 400 (Unreported, High Court, Barniville J., 31

July 2020); Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303 (Unreported,

High Court, 7 May 2021); O'Donnell v. An Bord Pleanála [2023] IEHC 381

(Unreported, High Court, 1 November 2023); Killegland Estates Ltd v. Meath County

Council [2023] IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023);

Ventaway v. An Coimisiún Pleanála [2025] IEHC 406 (Unreported, High Court, 16

July 2025); Phelan Walsh v. An Bord Pleanála [2025] IEHC 533 (Unreported, High

Court, Nolan J., 8 October 2025) at 53 citing Connelly v. An Bord Pleanála [2018]

IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453 (Clarke C.J.)). In the case of the

inspector, there is the additional factor that by contrast with a normal case where

the commission adopts the inspector’s reasons, in a case where the commission

disagrees it must come up with reasons of its own. Where the commission disagrees

with the inspector’s conclusion but on a basis that was not dealt with at all by the

inspector, then any enhanced reasons obligation does not apply: AAI Baneshane v.

An Coimisiún Pleanála [2025] IEHC 641 (Unreported, High Court, 21 November

2025).

(iv) As to what are the main issues arising from submissions of interested parties,

the decision in Friends of the Irish Environment CLG & Anor. v. Minister for Housing,

Local Government and Heritage & Ors. [2025] IECA 128 (Unreported, Court of

Appeal, 5 June 2024) is clear that, per Hyland J. (Costello P. and Collins J.

concurring) at para. 148, it is for the decision-taker in the first instance to decide

whether submissions raise relevant issues. Failure to address an issue in a

submission can be challenged in the normal way.

(v) There is no obligation to provide a discursive, narrative consideration or to

“engage with” submissions in such a sense, or to provide an issue-by-issue or

submission-by-submission response: see Oguekwe v. Minister for Justice, Equality

and Law Reform [2008] IESC 25, [2008] 3 I.R. 795, per Denham J. (Murray C.J.,

Fennelly, Kearns and Finnegan JJ. concurring) referring to the lack of a need for a

“micro specific format” (at p. 819); per Clarke J. (Fennelly and MacMenamin JJ.

concurring) in Rawson v. Minister for Defence [2012] IESC 26 (Unreported, Supreme

Court, 1 May 2012) at para. 6.9, referring to the need for a “reasoned but not

discursive ruling”. Confusing a lack of narrative discussion with a lack of reasons is

a classic applicant’s fallacy: see e.g. Ó Murthuile v. An Bord Pleanála [2025] IEHC

498 (Unreported, High Court, Farrell J., 19 September 2025) at 23.

(vi) Reasons may be found anywhere, not necessarily in the decision itself, for

example in an inspectors report: Connelly v. An Bord Pleanála [2018] IESC 31,

[2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, para. 9.2 per Clarke C.J. (O’Donnell,

Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Sherwin v. An Bord Pleanála

[2024] IESC 13 (Unreported, Supreme Court, 11 April 2024) per Woulfe J.

(Charleton, O’Malley, Baker and Murray JJ. concurring) at para. 129; thus no

additional requirement for reasons is required when adopting a reasoned report (for

example of a chief executive or indeed an inspector): Killegland Estates v. Meath

County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July

2022) at para. 65; Shadowmill v. An Bord Pleanála [2023] IEHC 157 (Unreported,

High Court, Holland J., 31 March 2023), para 84; Pat O’Donnell v. Dublin City Council

[2024] IEHC 671 (Unreported, High Court, Holland J., 26 November 2024) at para.

144.

(vii) Reasons may be implicit from the context, for example it can be implicit that

matters submitted were held not to be outweighing when placed against factors

supporting the conclusion arrived at: Rana v. Minister for Justice [2024] IESC 46

(Unreported, Supreme Court, O’Malley J., 18 October 2024), paras. 96-99 (Dunne,

Hogan, Collins and Donnelly JJ. concurring).

(viii) Consistently with the principle that there do not need to be reasons for the reasons,

a decision-maker doesn’t need to give reasons for not changing her mind from

an already-articulated position, or for not making an exception to a clear policy

for which reasons have been previously articulated, unless there is a significant

change in circumstances or the unusual case of a new point being made of such

significance that it needs to be expressly addressed: AAI Baneshane v. An Coimisiún

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

principle in turn reflects an even broader principle that a re-iteration of a previous

position or decision is not a new decision for the purposes of judicial review, and

does not for example re-start the clock for challenge: Killegland v. Meath County

Council [2022] IEHC 393 (Unreported, High Court, 1 July 2022). That said, a new

plan is indeed a new decision and can be challenged afresh even if it contains the

proverbial old wine in a new bottle. But an individual decision does not become a

fresh decision merely because the decision-maker is asked to change her mind and

doesn’t.

(ix) There is no obligation to give reasons for not changing the status quo, for example

maintaining a previous plan provision, in respect of which reasons would have been

given at an earlier stage: Jones v. South Dublin County Council [2024] IEHC 301

(Unreported, High Court, 11 July 2024) at §209, Voyage Property v. Limerick City

and County Council [2025] IEHC 696 (Unreported, High Court, Holland J., 16

December 2025) at 106.

(x) There is no obligation to state reasons for what is obvious: Killegland Estates

v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High

Court, 1 July 2022) (from which the Supreme Court dismissed an appeal, [2023]

IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023) (O’Donnell C.J.,

Charleton, O’Malley, Baker, Woulfe and Donnelly JJ. concurring)), para. 83;

Industrial Development Agency v. Information Commissioner [2024] IEHC 649

(Unreported, High Court, Phelan J., 15 November 2024), para. 132.

(xi) There is no obligation to give reasons for rejecting a legally incorrect point:

see Ironborn v. Dun Laoghaire Rathdown County Council [2023] IEHC 477

(Unreported, High Court, Mulcahy J., 31 July 2023). Reasons are tied into the

exercise of evaluation and judgement, so if the latter do not arise then neither does

the former – thus there is no need for reasons if there is in fact no evaluation

by the decision-taker – if the issue is correctly applying a mandatory, non-

discretionary, non-evaluative, legal rule, a valid decision does not become invalid

due to failure to explain the law or indeed to give reasons for the rejection of a

legally incorrect submission.

(xii) There is generally no obligation to give reasons for not changing one’s mind

from a previously articulated position absent a significant change in circumstances

or a significant new point: Killegland Estates v. Meath County Council [2022] IEHC

393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022), para. 67; Pat

O’Donnell v. Dublin City Council [2024] IEHC 671 (Unreported, High Court, 26

November 2024), para. 145 per Holland J.

(xiii) A decision should not be quashed for lack of reasons if nobody could be in any

real doubt as to what the reasons were: Killegland Estates v. Meath County Council

[2023] IESC 39, [2023] 12 JIC 2109 (Unreported, Supreme Court, 21 December

2023) per Hogan J. (O’Donnell C.J., Charleton, O’Malley, Baker, Woulfe and Donnelly

JJ. concurring); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High

Court, 26 September 2025) per Farrell J. at 34.

(xiv) If some reasons are good and others are bad, the decision may be severable if the

good reasons are stand-alone (McCarthy Meats v. Minister for Housing, Planning

and Local Government [2020] IEHC 371, [2020] 7 JIC 2707 (Unreported, High Court,

Heslin J., 27 July 2020); Murtagh v. An Bord Pleanála [2023] IEHC 345 (Unreported,

High Court, Owens J., 29 March 2023); Ironborn v. Dun Laoghaire Rathdown County

Council [2023] IEHC 477 (Unreported, High Court, Mulcahy J., 31 July 2023);

Voyage Property v. Limerick City and County Council [2025] IEHC 696 (Unreported,

High Court, Holland J., 16 December 2025)).

(xv) Reasons are not severable if there is a certain link between the reasons (Element

Power Ireland Ltd v. An Bord Pleanála [2017] IEHC 550 (Unreported, High Court,

Haughton J., 28 September 2017)).

(xvi) Reasons should not be created ex post facto: K v. Minister for Justice [2022]

IEHC 582 (Unreported, High Court, Bolger J., 21 October 2022); Ballindooley

Developments Limited v. Minister for Housing Local Government and Heritage & Ors.

[2025] IEHC 109 (Unreported, High Court, Holland J., 20 February 2025), although

reasons that existed at the relevant time can be evidenced after the event if

appropriate: RPS Consulting Engineers Ltd v. Kildare County Council [2015] IEHC

113, [2017] 3 I.R. 61 at para. 109.

The climate law context

67. 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, “[w]e also face increasing risks of reaching irreversible

climate tipping points, with unknown and potentially catastrophic

consequences for societies, ecosystems and economies” (p. 22, emphasis added).

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”

(emphasis added) (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).

68. The Supreme Court summarises its conclusions on the 2015 Act at para. 118 of Coolglass.

Arising from that one can highlight the following, taking the liberty of eliding some text specific to

the arguments in that particular case (particularly the applicant’s phrasing of the test at first instance

which I had agreed with – the Supreme Court obviously didn’t uphold that particular wording but

one needs to bear in mind the general point that everything arises in context, and the arguments at

trial and appeal level seem to have been significantly different on all sides as the judgment seems

to recognise) (emphasis added):

(i) “The evident purpose and effect of s. 15 of the 2015 Act following the amendments

made in 2021, is to strengthen the obligations imposed upon bodies (including the

Commission) and to make the performance of all their functions consistent with the

climate objectives insofar as is practicable. That obligation is, in principle,

enforceable by a court.”

(ii) “The requirement imposed by s. 15, cannot simply be reduced to a purely procedural

obligation, or confined to operation at a programmatic level. Therefore, the

provision requires more than that bodies (including the Commission) that are

subject to its terms ‘have regard to’ the climate objectives referred to in

the section.”

(iii) “While the language ‘in a manner consistent with’ looks to the outcome of the

performance of the relevant function, it also implies that there is a range of

possible outcomes open to the relevant body which may satisfy the

application, and a degree of tolerance in the manner in which it is achieved.”

(iv) “That tolerance is further reinforced by the inclusion in s. 15 of the

qualification entailed by the words ‘in so far as practicable’. These make it

clear that the section contemplates that there may be circumstances in which a

relevant body may not be required to perform its functions in a manner consistent

with the s. 15(1) objectives. The decided cases propose that ‘in so far as practicable’

means something that is capable of being carried into action having regard to such

practical difficulties that exist, but does not permit the taking of mere matters of

convenience into consideration. That qualification is, however, to be contrasted with

phrases such as ‘insofar as possible’, which are more demanding. It comprehends

what is practical in the circumstances and appropriate to the requirements

of the situation.”

(v) “Because s. 15(1) applies to all relevant bodies, and the exercise of their functions,

the impact in fact of the section will vary depending on the functions of the

relevant body, and the matters to which they are obliged to have regard, or

to implement.”

(vi) “The question for a court where it is asserted that the actions of any relevant body

failed to comply with s. 15(1), is whether the performance of the functions of

the relevant body in that regard falls within the spectrum of possible

outcomes that could be said to be consistent, in so far as is practicable, with

the objective of s. 15.”

(vii) “That is a legal test. Section 15 creates a legal standard which must be

complied with by a relevant body, and if necessary enforced by courts, which

in any given case will be required to determine if any decision or action was in so

far as practicable consistent with the matters specified in s. 15.”

(viii) “Because of the range of options presented by the consistency obligation as so

explained – together with the qualification of practicability – and the difference

between an individual decision and objective stated at a high level of generality, it

should not be a difficult matter to establish such consistency, particularly

when the individual action can be shown to be consistent with some plan

or strategy which itself was prepared subject to the obligation contained in

s. 15(1) or can otherwise be taken to satisfy the obligation of consistency.”

(ix) “In the field of individual planning decisions, it is perhaps less likely that s. 15(1)

will have decisive effect than in respect of the actions of other relevant

bodies. That is because the pursuit and achievement of the climate

objective is already woven into the planning process to a significant

degree.”

(x) “... The question of consistency of an individual planning decision with the s. 15(1)

objectives, is much more complex than a traffic light system of climate friendly

‘go’ (unless impracticable), and climate unfriendly ‘stop’.”

(xi) “By the time a planning decision comes to be made, the manner in which it is

proposed the State will meet its climate objectives has been set at a national level,

percolating down to a local level through the specific context of the development

plan. A planning authority is entitled to commence into consideration with a

presumption that compliance with the development plan will itself be

compliant with its s. 15(1) duty.”

(xii) “[In the case of material contravention], it is not a case of asking whether material

contravention of the plan will assist in achieving the climate goals and therefore

granting permission for any renewable energy project that does so. The function

being exercised is the grant of permission for a development which

materially contravenes the development plan. It is this function which must

be performed so far as is practicable, consistent with the climate change

objectives in s. 15(1).”

(xiii) “If in such a case, the development plan is itself consistent with the climate

objectives set out in s. 15(1), then it will normally be the case that a decision

which complies with that plan will itself be consistent with those objectives.

However, it may be possible to contend that permission should be granted, because

it is established that the development plan does not meet the climate

objectives, or no longer does so because of a change in those objectives, or

because of particular features of the specific development. In any such

case, the Commission must consider whether it should grant the

permission, and if the matter is raised, should be able to explain why the

decision it has come to is indeed consistent with those objectives.”

(xiv) “Section 15(1) may also affect the planning process outside the question of any

material contravention. In most cases it will be the case that the project will be

entitled to permission or will be likely to be refused because of the application of

planning considerations which themselves have been shaped by the State’s plans

and strategies for the achievement of the climate objectives. But s. 15 may reinforce

that process. Where but only where it is raised in support of an application,

an authority should be able to explain why the decision it has come to is in

compliance with s. 15 (1).”

(xv) “... The duty on the Commission to perform its function in a manner consistent with

the climate objectives set out in s. 15(1), while real, effective and enforceable,

cannot be converted into the simple formula [of a traffic light system as

referred to above].”

(xvi) “… the decision and report are phrased in terms that seem to imply that the very

fact that the development would contravene the development plan was considered

itself a reason to refuse the permission. That was an error of law because the

Commission was required to consider whether the climate benefits of the

project required or justified the grant of permission notwithstanding the

material contravention of the development plan. This was reinforced, when

considered in light of the s. 15(1) obligation. …”

69. Operationalising this in the context of emissions-causing projects by way of taking the liberty

of essaying a comment in that specific context, some potential points of particular practical note

are:

(i) The extent to which climate issues were raised in the process is of major importance

(Coolglass para. 118(xiv)), such that a failure to raise climate issues may have the

effect of limiting the obligations on the decision-taker and correspondingly limiting

the scope for relief to be granted by the court.

(ii) A decision-taker can generally begin with a rebuttable presumption that other plans,

programmes and measures have been adopted in line with climate duties (Coolglass

para. 118(xi)). This presumption can be displaced, the onus to do so being

inferentially on an applicant (Coolglass para. 118(xiii)).

(iii) However, in such a case, the commission agrees that the formulation of the test

nowhere envisages an onerous obligation on an applicant to seek declaratory relief

declaring a non-2015-Act-consistent plan or programme to be invalid. Rather the

focus is on any given public body being required to exercise its relevant function in

a 2015-Act-consistent manner, including by way of considering whether the exercise

of a power to depart from a plan or programme is justified in that regard (Coolglass

para. 118(xvi)).

(iv) One can observe that the scenario that arises where a decision-taker has no

jurisdiction to depart from a plan or programme that is not 2015-Act-consistent was

not an issue in that case, but presumably that would fall under the lack of practicality

exception. By contrast with the more typical case where the commission does have

a relevant discretion, a challenger in a case where such discretion does not exist

would be required to challenge the validity of the plan or programme in order to

impugn the decision on such a ground.

(v) While the starting presumption that other entities will act consistently with the 2015

Act has the effect that climate objectives are or at least should be woven in to plans

and programmes (Coolglass para. 118(ix)), one might be allowed to point out that

the absence of any express mechanism to render such a weave meaningful was not

an issue in that case so may need further consideration if and when it arises. While

national measures distribute carbon objectives horizontally across sectors of

industry and other activity, it is not obvious how, for example, the burden of overall

national targets can be appropriately shared vertically across different geographical

areas by different planning authorities, all acting largely independently, other than

by postulating a particularly pertinent and emphatic co-ordinating responsibility on

the Minister and OPR.

(vi) The section involves a degree of flexibility and thus an applicant has the onus to

demonstrate that the performance of the functions of the relevant body falls outside

the spectrum of possible outcomes that could be said to be consistent, in so far as

is practicable, with the objective of s. 15 (Coolglass para. 118(vi)). This is not

however merely a reasonableness test: s. 15 imposes a legal duty (Coolglass para.

118(vii)).

(vii) One of the most inherent practical dimensions of consistency is the extent, if any,

of net GHG emissions in the context of a project that has gross emissions. The 2015

Act and instruments under it are geared towards an objective of “net zero” (art. 2(1)

of the European Climate Law, Regulation (EU) 2021/1119) equivalent to the “climate

neutral economy” referred to in s. 3(1) of the 2015 Act. That necessarily involves

consideration of mitigation, conditions and offsets which may change an otherwise

problematic project into a project that poses no major issue to consistency with

climate instruments and objectives.

(viii) That is additional to the more general point that the net climate objective is to be

achieved over a defined period of time so involves an overall balance between

different actions, some of which may involve net emissions in themselves (see

Coolglass para. 86).

(ix) It does not take from the foregoing, and nor does it create a simplistic traffic light

system, or dilute any of the necessary qualifications (inherent flexibility, range of

options, consistency as a spectrum, conditioned by practicability, viewed in the

context of points made in the process, a starting presumption that other plans are

climate-consistent, and so on) to observe that by necessary consequence from the

subject-matter, including the national climate objectives, the task of a decision-taker

in being readily in a position “to explain why the decision it has come to is in

compliance with s. 15 (1)” will be likely as a practical matter to be empirically

somewhat easier in the case of (a) approving or refusing a climate-neutral

development, approving a climate-positive development, or refusing a climate-

negative development, as opposed to (b) approving a climate-negative development

or refusing a climate positive-development.

(x) It can also be observed that while many of the climate instruments are

phrased in general terms, some of the duties are conceptualised in a precise

and even mathematical context. The concept of budgeting for instance, to

the extent that it arises, is inherently mathematical. This was not an issue

in Coolglass so is for a future case. But even where there are precise and

granular duties, judicial review of a decision-taker’s approach must be in the

context of the submissions made to the public body concerned, the approach

in other plans and programmes, the concept of practicability, and such a

range of options as may exist that are consistent even with granular duties.

In short, there is no automatic chain of reasoning (such as comparing

quantification of net emissions and available headroom) that applies

mandatorily and irrespective of process participants’ submissions, even for

consistency with precise mathematical limits. That said, one can argue that

that mathematical outcomes are in practice naturally facilitated by a

mathematical methodology – but we need to bear all of the foregoing

qualifications in mind.

(xi) A final important context is that while s. 15(1) requires consistency with a range of

climate instruments an objectives, the carbon budgets and SECs are omitted. Thus,

while inevitably, the climate instruments referred to in s. 15(1) will refer to budgets

and SECs, the extent to which such mention translates into a mandatory duty to act

consistently must be viewed from the starting point of the lack of independent

statutory obligation in that regard.

The issues in Module II

70. By letter of 7 October 2024, the commission indicated that it would not oppose an order of

certiorari on the basis of core ground 6 in so far as it alleged an error in the inspector’s report

concerning bat roosts. However, the notice party chose to defend the decisions and filed a limited

statement of opposition on 27 March 2024, addressing only the bat issue.

71. Due to the limited nature of the concession made by the respondent, Module I did not

consider the effect of requirement that a derogation licence be obtained in advance of consent being

given. As a result, the balance of ground 6 is at issue in this Module.

72. The commission’s written submissions seemed to be premised on a fairly enthusiastic

embrace of the No. 1 judgment, and following my having inquired as to the logical implications of

that, the commission stated that it was withdrawing its previous concession and clarified that it was

persuaded by the correctness of the No. 1 judgment (to the effect that the error about bat roosts

was, in context, harmless and not a proper basis for certiorari). That was expressly agreeing (i.e.,

on reflection) with the No. 1 decision and not simply submitting to it.

73. Core ground 4 (involving the draft data centre policy) was withdrawn. Core ground 5 (SEA

of the Government statement) was overtaken by the judgment of 4 October 2024, Friends of the

Irish Environment CLG v Government of Ireland and Others, C-727/22, ECLI:EU:C:2024:825 and is

no longer pursued. The applicants are also no longer pursuing core ground 7 (Water Framework).

The live issues are therefore confined to grounds 1, 2, 3, and the balance of 6.

Domestic law issues

Core grounds 1 to 3 – climate

74. The statement of case dealt with core grounds 1 to 3 collectively by breaking those grounds

down into a number of sub-issues.

75. Core ground 1 is:

“1. The Data Centre Decision is invalid in that the Board failed to apply and/or consider

its mandatory obligation under section 15 of the Climate Action and Low Carbon

Development Act 2015 (as amended by Section 17 of the Climate Action and Low Carbon

Development (Amendment) Act 2021), namely in so far as practicable, to perform its

functions in a manner consistent with the matters stated in section 15, including (a) the

most recent approved climate action plan, (the Climate Action Plan 2023), (d) the

furtherance of the national climate objective, and (e) the objective of mitigating greenhouse

gas emissions (GHG emissions) and adapting to the effects of climate change in the State;

and/or failed to provide sufficient reasons to explain how it sought to apply and/or consider

its mandatory obligation under the 2015 Act, further particulars of which are contained

below.”

76. Core ground 2 is:

“2. The Data Centre Decision is invalid in that the Board acted irrationally, erred in law

and/or failed to provide reasons and/or adequate reasons, in finding that the PDC would

have potentially positive environmental impacts, based on a future switch to the use of

sustainable/renewable gas supplies, which do not exist in sufficient volumes for any practical

application in respect of the PDC and which are not expected to exist in sufficient volumes

for any practical application in respect of the PDC at any point during the operational phase

of the PDC, further particulars of which are contained below.”

77. Core ground 3 is:

“3. The Data Centre Decision is invalid in that the Board acted irrationally by failing to

require any mitigation of the GHG emissions from the PDC, further particulars of which are

contained below.”

78. To understand the large amount of material the applicants have packed into these three

points we need to look at the various distinct points in the sub-grounds.

79. Unhelpfully, the applicants structured the statement of case around a separately numbered

series of headings (a) to (j) which did not follow the numerical sequence of the sub-grounds. I will

attempt to provide cross-references, but insofar as any point is inadvertently referred to under a

heading other than the potentially most appropriate one (something for which the applicants must

take complete and exclusive responsibility due to their idiosyncratic and inconsistent numbering

systems), the reader must take what follows as a whole so that all grounds should be assessed in

the light of all points made below where relevant.

Sub-grounds 1 to 6 (issue (a)) – alleged wrong question

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

“CORE GROUNDS 1-3 (Climate):

(a) The Wrong question

Applicants’ position

1. Firstly, the Commission has simply asked itself the wrong question for the purposes

of section 15.

2. In the Commission’s Order it records that it ‘had regard to the following…the Climate

Action Plan 2023’. That is simply the wrong question, given the amendments effected by

the 2021 Act and as further elaborated by the Supreme Court in Coolglass.

3. Where the Commission failed to even attempt to answer the correct question, the

Decision cannot stand. ‘Having regard’ to the 2015 Act would have been sufficient prior to

the 2021 Act amendments. In Coyne v An Bord Pleanala, Holland J. held that the ‘have

regard’ to obligation denoted an obligation only to (§27) ‘consider whether to take it into

account and, if so, what weight to give it’.

4. The problem for the Commission is that this is no longer the correct test. The

Applicant’s legal point is not that the Commission was not aware of the 2015 Act – it clearly

was - but rather that it failed to apply the correct legal test as required by that Act – it

merely had ‘regard’ to something that it was obliged to act ‘consistently’ with.

5. Not only did it ask itself the wrong question but the test it applied (‘have regard’) is

at the opposite end of the spectrum to the correct test (‘consistency’). Furthermore,

nowhere did the Commission’s Inspector identify the obligation to act ‘consistently’ and the

reference to ‘Compliance with Climate Policies’ is in fact a heading in the Inspector’s Report

that in fact does not mention section 15 of the 2015 Act at all.

6. The Commission applied a different test than required by the 2015 Act, and its error

is not minor. It clearly did not perform the type of analysis envisaged by Coolglass and

Killymooney. Consistency with section 15(1) is central to the proposed development given

the scale of its energy demands, and since the Commission did not ask the right question,

its decision cannot stand.

Commission’s Position

7. The jurisprudence of the Court favours substance - administrative decisions should

be not be [sic]read as unlawful or in error where a lawful readings is available. Applying

this approach, per Coyne v. An Bord Pleanála [2023] IEHC 412 Holland J. held (at §160)

that:

‘I agree with EngineNode that what matters in law is not whether the Board explicitly

mentioned s.15 or the matters it lists but is whether, in substance, it complied with s.15.’

8. On the facts, the grant of consent is consistent with the matters in s.15(1)(a)-(e)

including the CAP to the standard of consistency that Coolglass mandates.

9. If, in analysis of the rest of the grounds and sub-grounds, the Court is satisfied in

substance that ACP has performed this function, there should be no merit in this ground. If

the Court finds it has not, then this ground is largely irrelevant.

Developer’s Position

10. The Applicants’ contention that the Commission ‘asked itself the wrong question’

under section 15 of the 2015 Act (as amended) is not borne out when the Decision and

Inspector’s Report are read fairly and as a whole.

11. The gravamen of the complaint is that the Commission recorded in its Order that it

‘had regard to’ the Climate Action Plan 2023 (‘CAP 2023’), and that this language reflects

application of the pre-2021 ‘have regard to’ standard rather than the post-amendment

obligation to act ‘in so far as practicable… in a manner consistent with’ the matters set out

in s.15(1). That submission elevates form over substance. The question is whether the

Commission, in substance, performed its function in a manner consistent (in so far as

practicable) with the matters identified in s.15(1). Section 15 does not prescribe any

particular verbal formula in an order.

12. Section 15(1) does not prescribe any particular formula of words which must be

recited in an order of the Commission. What it requires is that the relevant body perform

its functions in a manner consistent, in so far as practicable, with the specified instruments.

The question for the Court, as articulated by the Supreme Court in Coolglass, is whether the

outcome falls within the spectrum of decisions that could lawfully be said to be consistent

with those instruments identified in s.15(1) and not whether the precise statutory wording

is reproduced in the decision. In this case, the Inspector identified and evaluated the

projected greenhouse gas emissions, the regulatory context (including EU ETS coverage),

mitigation measures, and national climate policy including CAP 2023, before concluding that

the development did not undermine the national climate objective. That evaluative exercise

constitutes the relevant consistency assessment.

13. The Applicants’ argument rests entirely on the appearance of the phrase ‘had regard

to’ within the list of matters considered in the Board’s Order. However:

(a) The Board was obliged to have regard to multiple instruments, some of which attract

a consistency obligation (e.g. CAP 2023 under s.15), and others which do not, e.g. the

applicable development plan. The neutral formulation in the Order reflects that composite

exercise.

(b) As a matter of logic, one cannot assess consistency without first having regard to

the instrument in question. The inclusion of CAP 2023 within the list of matters considered

is therefore a necessary step in the evaluative process.

(c) The legal question is whether the substance of the Inspector’s reasoning and the

Board’s adopted conclusions demonstrate engagement with the section 15 obligation. They

plainly do.

14. The Inspector included a discrete section dealing with climate compliance, national

climate policy, the EU Emissions Trading System, carbon budgets, and the design and

mitigation features of the project. The AWN appeal response addressed section 15 expressly

and in terms and analysed the proposed development against CAP 2023 and the national

climate objective. The Board adopted that reasoning. This is the antithesis of the defect

identified in Coolglass, where the Commission failed to engage in a real and substantive way

with the core climate argument in the context of a material contravention.

15. While the Inspector did not recite the wording of s.15 verbatim, she engaged directly

with CAP 2023, the national climate objective, and mitigation measures, and assessed the

development’s emissions profile within that framework. She concluded that the proposed

development did not undermine the objectives of those instruments. Section 15 does not

require ritualistic citation of its wording; it requires performance of the function in a

consistent manner. The Inspector’s analysis demonstrates precisely that structured

evaluative engagement.

16. The Supreme Court in Coolglass has clarified that s.15 imposes a legal obligation of

outcome, but one assessed within a spectrum of lawful possibilities, having regard to the

generality at which climate instruments are framed. That is the test to be applied here.

17. The Applicants’ further assertion that the Commission did not perform ‘the type of

analysis envisaged by Coolglass and Killymooney’ is unsustainable. This is not a case in

which the Commission ignored section 15. Climate policy was front and centre of the appeal

process. The development site was identified in the Development Plan for data centre use,

a plan presumed to have been adopted consistently with section 15. The Inspector evaluated

emissions, mitigation, ETS coverage, and decarbonisation pathways. The Board adopted

that evaluative reasoning.

18. The Applicants effectively invite the Court to require the Commission to

demonstrate, in express and formulaic terms, that it consciously applied the word

‘consistent’ rather than ‘have regard’. That is an exercise in excessive formalism. As

repeatedly emphasised in the jurisprudence on judicial review, decisions are to be read fairly,

in a common-sense manner, and so as to uphold rather than invalidate them where possible.

19. Ultimately, the Applicants have not identified any concrete respect in which the grant

of permission is inconsistent, in so far as practicable, with CAP 2023, the national climate

objective, or the objective of mitigating greenhouse gas emissions. The complaint is purely

semantic.”

81. Insofar as it is alleged that the commission asked the wrong question, there is simply nothing

in this complaint. Taking the decision as a whole it can’t be said that the commission understood

their duty as merely to have regard. The inspector referred to “compliance” with climate change

policies (p. 48 of data centre permission inspector’s report) – compliance being naturally understood

in the sense of consistency.

82. Litigation-by-selective-quotation is not a valid form of reasoning generally and certainly not

here.

83. Or to put the matter another way, if all the commission had said was that it had regard to

climate instruments, then the applicants would have a point. But they said a lot more. Putting the

different treatments of the issue together means that the reference to regard must be read in the

sense submitted by the commission here, namely that to act consistently with something one starts

with regard, but one goes on from there, as the commission did in this case. The law on asking the

wrong question (e.g. Stokes v. Christian Brothers High School Clonmel [2015] IESC 13, [2015] 2

I.R. 509; Walsh v. An Bord Pleanála [2022] IEHC 172 (Unreported, High Court, 1 April 2022)) is not

relevant because the decision can’t properly be read as indicating a misunderstanding of the test.

Sub-grounds 7 and 8 (issue (c)) – SECs and carbon budget

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

“(c) Failure to act consistently with the Sectoral Emissions Ceilings/Carbon Budget

Applicants’ Position

53. The obligation to comply with the SEC comes as a consequence of Section 15(1)(a).

The CAP 2023 (at 12.1.4) is required to be consistent with the SECs and the Carbon Budgets

and therefore non-compliance with the SECs and the Carbon Budgets also entails non-

compliance with the requirements of section 15(1)(a). It is also a consequence of the

Commission’s obligations pursuant to sections 15(1)(d) and (e) both of which objectives

necessarily entail or presuppose compliance with the SECs.

54. However, the Inspector (and the Commission) made no reference to same, other

than to recognise that they had been raised as an issue by the appellants. In circumstances

where there is extremely limited reference by the Commission to the Carbon Budgets (as

adopted) and the Sectoral Emissions Ceilings (as adopted), and still less any consideration

or assessment of such Budgets/ Ceilings, contrary to the requirements of section 15(1)(a),

(c), (d) and (e) of the Climate Action and Low Carbon Development Act 2015 (as amended),

the Commission cannot be said to be acting ‘in a manner consistent with’, the Climate Action

Plan 2023, the Sectoral Emissions Ceilings or the Carbon Budgets; and/or has not in any

way demonstrated the requisite consistency.

55. This is pure arithmetic, with two numbers required to perform the relevant

calculation. However the Commission didn’t establish either number. The Commission failed

to either establish the amount of emissions remaining in the relevant sectoral emissions

ceiling or the amount of emissions which would be created by the PDC. It utterly failed to

even attempt to perform its function in accordance with the Climate Action Plan and therefore

S15.

56. The Applicants' point is that there is no evidence at all that the Commission

considered, let alone acted consistently with the Carbon Budgets and Sectoral Emissions

Ceilings and in fact the information provided by the Developer shows that the PDC is

inconsistent with the electricity sectoral emissions ceiling.

Commission’s Position

57. The Commission understands the point as being that the Commission failed to either

establish the amount of emissions remaining in the relevant sectoral emissions ceiling or the

amount of emissions which would be created by the PDC – and that it utterly failed to even

attempt to perform its function in accordance with the Climate Action Plan and therefore

S15. The Applicants' point is that there is no evidence at all that the Commission considered,

let alone acted consistently with the Carbon Budgets and Sectoral Emissions Ceilings and in

fact the information provided by the Developer shows that the PDC is inconsistent with the

electricity sectoral emissions ceiling. There are three points in reply:-

58. First, the Applicants clearly chose to make their case on the basis of an assertion

that the PDC is ‘inconsistent with the electricity sectoral emissions ceiling.’ That has simply

not been proven or shown and since it is the bedrock of their argument here, and consistent

with the burden of proof in judicial review, nothing else should be entertained on this point.

59. Second, the emissions were described and by reference to the ceilings in question –

see e.g. Table 5 in the AWN Appeal Response, dated September 2022 (Appendix 3 of Appeal

document). The data is presented, and insofar as the Applicant complains elsewhere, its

presented at an 80% basis, just as the Applicant did in its pleadings, so too can the Court

expect the Commission to understand how an 80% figure looks at 100% (even if that was

relevant, given the evidence of the Notice Party on operational load). It expressly addresses

the carbon budgets and sectorial emission ceilings (§3.10 et seq), before setting out for

stated reasons that:

a. ‘…as outlined below, the facility will operate in compliance with the policies and

objectives of the 2021 Climate Act. The phasing of the development and the period taken

to reach full capacity within each planned phase will result in the “ramping up” of demand

associated with the project over a number of years during the lifetime of the 10 year

permission.’ (§3.15)

60. Third, as noted above, and consistent with the Government Statement of the Role

of Data Centre’s in Ireland’s Enterprise Strategy, the CDP operates a selective and plan lead

approach to data centres and the CDP was, in turn, examined by the Office of the Planning

Regulator and the CAP also refers to the ETS as a ‘measure’ to deliver sectoral emissions

ceilings in industry (§13.3 and §13.3.5).

61. In reality, the point amounts to no more than saying that the Applicant sees a gap

where the Commission didn’t expressly determine whether the proposed development here

exceeds the ceilings as things stand, but there is no evidence of that at all. It is in the space

of a baseless assertion which the Courts have decried in every other context when this

technique of argument in judicial review arises.

Developer’s Position

62. The Applicants’ contention that non-compliance with Sectoral Emissions Ceilings

(‘SECs’) or Carbon Budgets automatically entails non-compliance with section 15(1)

proceeds from a fundamental mischaracterisation of the statutory architecture.

63. Section 15(1) requires a relevant body to perform its functions, in so far as

practicable, in a manner consistent with the most recent CAP, the national climate objective,

and the objective of mitigating greenhouse gas emissions. It does not impose a free-

standing obligation on the Commission it convert national ceilings into project-level

prohibitions.

Carbon Budgets and SECs Operate at National Level

64. Carbon Budgets (required under s.6A of the 2015 Act) and SECs (required under

s.6C of the 2015 Act) are macro-level instruments adopted by Government, allocating

aggregate permissible emissions across sectors over multi-annual periods. They are tools

of national governance and policy implementation. They are not statutory caps directed at

individual planning authorities or at particular projects. Nothing in the 2015 Act requires

the Commission, when determining a planning application, to calculate ‘remaining

headroom’ within a sectoral ceiling or to allocate a portion of that ceiling to a proposed

development.

65. The Applicants’ submission that this is ‘pure arithmetic’ misunderstands the

structure of the legislation. The statutory question is not whether a project consumes a

percentage of a ceiling, but whether the decision to grant permission is consistent, in so far

as practicable, with the CAP and the national climate objective. The Act does not prescribe

a numerical compliance formula at project level. Notwithstanding this, the numbers

(Sectoral Emission Ceiling % and carbon budget %) are in AWN Response to the Third Party

Appeals.

No Legal Requirement for Project-Level Ceiling Reconciliation

66. The Applicants assert that the Commission was required to:

(a) establish the amount of emissions remaining within the relevant SEC; and

(b) calculate the project’s emissions;

(c) reconcile the two arithmetically; and

(d) refuse permission if a percentage threshold were exceeded.

67. Neither the 2015 Act nor CAP 2023 establishes a mechanism whereby individual

planning decisions allocate or deduct from a sectoral emissions ceiling. The Supreme Court

in Coolglass did not suggest that section 15 imposes a budget-allocation exercise on

individual planning decisions. Rather, it emphasised that section 15 creates a legal standard

of consistency assessed within a spectrum of possible outcomes (§78), having regard to the

generality at which climate instruments are framed.

68. Carbon Budgets and SECs are framed at high levels of abstraction and are

implemented through a combination of legislative, regulatory, fiscal, and infrastructural

measures. The planning code is one component of that wider machinery. The planning

decision making framework is not transformed by section 15 into a numerical gatekeeper of

sectoral quotas.

69. The Applicants’ premise that ‘the Commission didn’t establish either number’ is

factually incorrect. The EIAR quantified projected emissions. The AWN appeal response

modelled operational emissions conservatively. The figures cited by the Applicants (e.g.,

1.1% of national emissions or 12.3% of the electricity sector ceiling) derive from that

material.

70. The Inspector expressly addressed emissions, ETS coverage, mitigation, and

alignment with national policy. The suggestion that the Commission made ‘no reference’ to

Carbon Budgets other than noting that they were raised by appellants ignores the structured

climate analysis undertaken in §7 of the Inspector’s report.

71. What the Inspector did not do - because she was not required to do so - was to

conduct a speculative accounting exercise of ‘remaining sectoral headroom’ for 2030. That

exercise would in any event be inherently uncertain, as sectoral emissions trajectories

depend on a multiplicity of variables beyond any individual planning permission.

CAP 2023 Consistency Does Not Require Numerical Sectoral Alignment

72. The Applicants contend that because CAP 2023 must itself be consistent with the

Carbon Budgets and SECs (CAP 2023, §12.1.4), any development allegedly inconsistent with

a ceiling is automatically inconsistent with section 15(1)(a). That reasoning conflates

different statutory functions.

73. CAP 2023 is a national plan setting out measures to achieve the Carbon Budgets.

The Commission’s obligation is to perform its planning function in a manner consistent, in

so far as practicable, with that plan. It does not have the effect of imposing project-level

prohibitions by reference to the spare capacity in such budgets.

74. If the Applicants’ argument were correct, any project emitting GHGs within a

constrained sector would be presumptively unlawful once a projected percentage threshold

were reached. That would effectively paralyse development in emitting sectors and would

convert Carbon Budgets into rigid absolutes, which is not a result contemplated by the 2015

Act, as is clear from Coolglass.

The Electricity Sector Context

75. The Applicants assert that the projected emissions render the development

inconsistent with the electricity sectoral emissions ceiling. However, sectoral ceilings

operate at national aggregate level and are not applied as project-level thresholds.

Electricity-sector emissions are subject to the EU Emissions Trading System (ETS), which

imposes a binding cap at EU level. The Inspector was entitled to consider that regulatory

superstructure in assessing consistency with national climate objectives.

76. Secondly, sectoral ceilings operate at national aggregate level and are influenced by

grid decarbonisation, renewable deployment, interconnection, storage, and demand-side

management. It is legally incorrect to isolate a single project and equate its total emissions

with ‘inconsistency’ with a sectoral ceiling.

77. Thirdly, the development incorporated mitigation, efficiency measures, renewable

procurement potential, and adaptive capacity. The Inspector assessed these matters and

concluded that the development did not undermine the national climate objective.

The Statutory Test Remains Consistency ‘In So Far As Practicable’

78. Section 15(1) expressly qualifies the obligation by the phrase ‘in so far as

practicable.’ The Applicants’ formulation omits that statutory qualification. Planning

decisions involve balancing climate considerations with other dimensions of proper planning

and sustainable development, including economic development, regional policy,

infrastructure provision, and energy security.

79. The Board was required to integrate climate considerations into its decision-making

process, not to subordinate all other considerations to a project-level emissions arithmetic.

The Applicants’ argument seeks to transform Carbon Budgets and SECs into rigid,

numerically enforceable project-level ceilings. That is not the statutory scheme. The

Inspector quantified emissions, assessed their significance, considered mitigation and

regulatory context, and evaluated the proposal against CAP 2023 and the national climate

objective. When viewed through the lens articulated in Coolglass, the Decision falls within

the lawful spectrum of outcomes that could be regarded as consistent, in so far as

practicable, with section 15(1). The Applicants’ ‘pure arithmetic’ formulation is a merits-

based policy argument, not a legal infirmity.”

85. I have some sympathy for the applicants’ basic point which is that carbon budgeting is

ultimately mathematical. Nature cannot be fooled, as Richard Feynman was fond of saying (most

famously in Report of the Presidential Commission on the Space Shuttle Challenger Accident, Rogers,

William P.; Armstrong, Neil A.; Acheson, David C.; Covert, Eugene E.; Feynman, Richard P.; Hotz,

Robert B.; Kutyna, Donald J.; Ride, Sally K.; Rummel, Robert W.; Sutter, Joseph F., 1986). Nature

doesn’t care much for evaluative judgement, a spectrum of permissible flexibility, high-level general

principles and so on. What nature cares about is the actual number of GHG molecules in the

atmosphere. The Paris agreement, as reflected in EU law, reflects a specific mathematical

commitment, which is then translated into national levels by way of nationally determined

contributions (NDCs), also co-ordinated in EU law. That is then translated into sectoral limits in

precise numerical terms by domestic climate instruments. That’s the way it has to work.

86. Here we come up against the court’s limited role in the matter. The court is not an all-

purpose problem-solving agency. As outlined above, that role is limited by various factors, most

notably here by the extent to which substantive domestic law gives the court a function.

87. The basic problem with this ground is a straight read-across from budgets/SECs to lack of

consistency under s. 15. The first difficulty there is that budgets and SECs are not included in s.

15(1) as such – any indirect duty has to be demonstrated. The alleged pathway at 12.1.4 of CAP23

is not in fact pleaded – it first pops up in submissions. So the point fails at the outset. But if I am

wrong about that I will consider it anyway.

88. The claim of failure to have regard to relevant matters is self-defeating since the pleadings

acknowledge that the commission referred to the budgets/SECs.

89. Ultimately this ground is not sustainable in the light of Coolglass because it doesn’t

accurately reflect the doctrine of the spectrum of available options. The applicants have not

demonstrated that the decision falls outside the lawful spectrum.

90. Furthermore and even more fundamentally, it fails to take into account the mitigation of

effects as a result of corporate power purchasing agreements (CPPAs).

91. To that extent, the fact that, as the commission submits, “the Applicants clearly chose to

make their case on the basis of an assertion that the PDC is ‘inconsistent with the electricity sectoral

emissions ceiling’” leads the difficulty that, bearing in mind the CPPAs, that conclusion “has simply

not been proven or shown and since it is the bedrock of their argument here, and consistent with

the burden of proof in judicial review, nothing else should be entertained on this point”.

92. That is not to say that in another case an applicant might not put forward during the process

a more focused and nuanced critique of the net carbon impact of a development, comprehensively

taking into account both developer-friendly concerns such as risks of carbon leakage (i.e.,

displacement of projects to less regulated jurisdictions – one would have thought that data centres

were prone to this type of effect, but obviously that’s subject to evidence in an appropriate case),

or sufficiently defining the existing baseline scenario to encompass carbon-generating activities that

may be replaced by the project, as well as applicant-friendly points such as risks of rebound effects

of induced demand, or potentially displacement of renewable energy currently powering other

projects. If such a submission properly engaged with the correct legal framework for decision-

making, the commission might find itself facing a more difficult task in explaining how permission is

consistent with climate instruments. This would be particularly so where such a comprehensive

analysis indicates net GHG emissions after mitigation and offsets. That is basically a polluter pays

scenario. It is not immediately obvious as a general principle why projects creating net GHGs should

be allowed to use the sky as an open sewer for free.

Sub-grounds 9 to 11 (issue (d)) – CAP – extra-large energy users

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

“(d) Inconsistency with Climate Action Plan: Extra-large energy users

Applicants’ Position

80. The Climate Action Plan 2023 states (at 12.1.3) that:

‘Large energy users will need to play a critical role in the decarbonisation acceleration that

is required for the sector in delivering high levels of flexibility across time and geographical

locations, and matching energy consumption with renewable energy generation on an hourly

basis.’

81. The PDC does not match energy consumption with renewable energy generation at

all, let alone on an hourly basis.

82. As a result, in particular at peak times, the PDC will result in fossil fuel burning onsite

and through the national grid, by increasing demand generally. This is a material

inconsistency with CAP2023, which the Commission has failed to show was practicably

unavoidable. This, combined with the lack of spare carbon budget, is sufficient to

demonstrate that the Decision is inconsistent with Section 15.

83. At 12.3.4 (Further Measures) the Climate Action Plan 2023 states:

‘The third carbon budget (2031-2035) is expected to require continued electrification of

industry, the built environment, and transport, leading to substantial electricity demand

growth which will need to be almost fully decarbonised. This may require the following

potential policies in the third carbon budget period.

- A policy to require future dispatchable generation to be zero carbon gas ready.

- Policies to ensure that zero carbon gases, like hydrogen, are utilised in the electricity

sector to provide zero carbon dispatchable electricity at sufficient scale;’

84. The PDC’s dispatchable generation will be powered by diesel and will not be zero

carbon gas ready. This is a further material inconsistency with CAP 2023, which the

Commission has failed to show was practicably unavoidable.

Commission’s Position

85. The Applicant’s rely on Section 12.1.3 of CAP23 to say there needs to be matching

on an hourly basis, and they say there isn’t.

86. CAP23 cannot be read like this. In this respect, Section 12.1.3 is titled ‘the scale of

the challenge’ and the ‘challenge’ in this respect is how the electricity sector can de-

carbonise. The contents of Section 12.1.3 are not an immediate prescription of demands

for how development consent may be granted, but an essaying of what the challenge

involves setting out the scale of it and in that respect, over time, it is provided that ‘Large

energy users will need to play a critical role in the decarbonisation acceleration that is

required for the sector in delivering high levels of flexibility across time and geographical

locations, and matching energy consumption with renewable energy generation on an hourly

basis’ and, in particular, ‘More granular certification processes will be required, including

“time stamped” guarantees of origin, so that energy intensive users can demonstrate that

they are using zero emissions electricity during the same hour and geographical location to

match all of their consumption on a 24-hours a day, seven days a week basis.’ The point,

however, is that the very processes envisaged here to meet the challenge don’t presently

exist. Section 12.1.4 then sets out what CAP23 says about the measures to ‘meet the

challenge.’ Those measures are proposed at an architectural or high level, and do not

include, for example, at present, a measure requiring development consent conditioning to

match demand on an hourly basis. Indeed, it specifically says that between ‘now and 2030’

what is required is the national delivery of ‘a flexible system to support renewables and

demand.’

87. The point here is that a present absence of matching demand to supply on an hourly

basis (if that was proven) does not mean inconsistency with CAP23. And, insofar as the

point is about matching, generally, the Commission relies on the point made elsewhere

herein about CPPAs.

Developer’s Position

88. Section 12.1.3 the CAP relied upon by the Applicants is a policy aspiration describing

the role large energy users will need to play in sectoral decarbonisation. It does not create

a legally binding requirement that every large energy user must achieve hourly renewable

matching as a precondition to development consent. To the extent that the Applicants seek

to elevate §12.1.3 into a binding consent condition requirement, that contention does not

arise clearly from the pleaded grounds. Insofar as the Applicants seek to make such a case

via the Statement of Case, this is impermissible.

89. CAP 2023 does not prescribe a statutory rule that planning permission may only be

granted to large energy users capable of demonstrable hourly renewable alignment. The

language is directional and strategic, not prescriptive or self-executing at project level. The

relevant passages are framed in directional and systemic terms and contemplate progressive

implementation through market and regulatory reform.

90. Section 15 requires performance of functions in a manner consistent, in so far as

practicable, with CAP 2023. It does not require the Commission to ensure full operational

compliance with every forward-looking policy ambition at the date of consent.

91. The Inspector considered the project’s energy strategy, which includes:

(a) on-site generation;

(b) grid supply interaction;

(c) adaptability to renewable gases;

(d) load management and system integration; and

(e) renewable procurement potential, including CPPAs.

92. The development incorporates features aligned with CAP objectives for large users,

including:

(a) co-location of demand and generation, reducing transmission losses;

(b) load flexibility potential;

(c) infrastructure capable of transition to hydrogen and biomethane blends as same

come on line;

(d) solar PV integration;

(e) district heating potential and heat reuse;

(f) energy efficiency measures.

93. The Applicants’ assertion that the PDC ‘does not match energy consumption with

renewable energy generation at all’ ignores both the renewable procurement commitments

advanced in the appeal response and the adaptive design of the facility.

94. In any event, CAP 2023 doesn’t require real-time hourly renewable matching at the

point of consent. Such alignment is a system-wide objective to be implemented

progressively through market design, grid development, regulatory reform, and contractual

mechanisms.

95. The Applicants argue that at peak times the PDC will result in fossil fuel burning,

whether on-site or through grid demand. That observation is neither novel nor legally

determinative. The electricity system remains in transition and CAP 2023 contemplates a

phased decarbonisation of dispatchable generation. The existence of fossil generation in the

current system does not render every electricity-consuming development inconsistent with

CAP. Section 15(1) does not impose an immediate fossil-free threshold. The statutory

question is whether the decision is consistent, in so far as practicable, with the trajectory

toward decarbonisation. The Inspector’s analysis addressed precisely that trajectory.

96. The Applicants rely on §12.3.4 (Further Measures) of CAP 2023, which identifies

potential policies that ‘may’ be required in the third carbon budget period (2031–2035),

including:

- a policy to require future dispatchable generation to be zero carbon gas ready;

- policies to ensure hydrogen utilisation at scale.

97. That passage is explicitly forward-looking and conditional (‘may require’). It does

not constitute a binding rule presently in force.

98. The proposed development’s energy centre engines are capable of operating on

natural gas initially and transitioning to renewable gas blends (including biomethane and

hydrogen) as those fuels become commercially and physically available. The Inspector

addressed that adaptability.

99. The reference to diesel generators concerns back-up generation. Backup diesel plant

is standard in data centre infrastructure for emergency resilience. It does not define the

primary operational energy model. CAP 2023 does not prohibit the existence of diesel

backup plant during the transition period.

100. The Applicants’ argument effectively treats prospective future policy considerations

as if they were current statutory prohibitions. That is not the legal position.

101. The Applicants assert that any departure from hourly renewable matching or zero-

carbon dispatchable status constitutes a ‘material inconsistency’ unless shown to be

‘practicably unavoidable’.

102. That formulation inverts the statutory test. Section 15 doesn’t require the

Commission to demonstrate why full decarbonisation is ‘practicably unavoidable’. It requires

the Commission to perform its function in a manner consistent, in so far as practicable, with

the CAP.

103. The Inspector engaged with CAP 2023, sectoral context, energy system transition,

and mitigation measures. The Board adopted that reasoning. There is no requirement for

the Commission to prove the absence of any theoretical inconsistency; rather, the question

is whether the decision falls within the lawful spectrum of outcomes consistent with national

climate policy.”

94. Sub-grounds 9 to 11 are mere recitals of documents or statements of legal or policy context,

not actual pleas of a specific legal wrong, so there is nothing that one needs to deal with.

95. But assuming counterfactually that the point was properly pleaded, the previous problems

apply. The commission does not have an inherent obligation to apply any particular formula when

approaching the question of consistency.

96. The relied-on §12.3.4 (Further Measures) of CAP23 is inherently flexible and does not either

on its own terms or at all bindingly demand a negative outcome here in the way the applicants

assert.

97. The applicants have again failed to show that the commission acted outside the spectrum of

permissible options.

Sub-grounds 12 to 21 (issue (e)) – CAP – hydrogen

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

“(e) Inconsistency with Climate Action Plan: Hydrogen

Applicants’ Position

104. The Commission relied upon ‘the future switch to the use of sustainable / renewable

gas supplies in the energy centre for energy generation’, to find the PDC would have a

potentially positive environmental impact, despite such use of renewable gas being directly

excluded by 13.3.3 of CAP 2023.

105. The National Hydrogen Strategy (NHS), which is integrated and forms part of the

Climate Action Plan 2023, was published by the Department of the Environment, Climate

and Communications on 12 July 2023. At Section 3.2 the NHS 2023 states: ‘The use of

hydrogen as a primary energy source for large electricity users, such as data centres, is

considered a low priority end-use, as the direct supply of electricity from renewable sources

will be more efficient.

106. The NHS 2023 uses an estimated efficiency factor of 70% for the creation of

hydrogen using excess electricity, with the caveat that ‘Significant uncertainty exists around

these figures given renewable hydrogen is a nascent technology’. AWN Consulting provides

an estimate for the generation of electricity using such gas powered generation facilities of

45% efficiency. If such efficiency levels were achieved using hydrogen, the generation of

electricity using hydrogen produced using electricity might reach 31.5%. As such, 387MW

of constant renewable electricity would be required to fuel the 120MW gas powered

electricity generation.

107. However, the Government Statement on the Role of Data Centres (created on foot

of Climate Action Plan 2021 and incorporated into CAP2023) requires (at page 11), an

increased level of renewable energy production in order to address their intermittency.

Where offshore wind is the source, the requirement is increased by 80% (a directly electrified

100MW data centre requires 180MW of offshore wind). As such the PDC would require an

additional 696.6MW of offshore wind to be put in place, to mitigate its effects. For solar

power the requirements are an increase by a factor of 7.3, so the requirements would be

2.8GW by 2030 (in addition to the national target of 8GW under CAP 2023).

108. The NHS forms an integral part of the CAP 2023. Where the Decision expressly

relies upon a use of hydrogen which is inconsistent with the NHS (and the wording of CAP

2023 itself), such reliance is inconsistent with Section 15(1).

109. Furthermore, in relation to biomethane the developer used an assumption of

biomethane mix of 18% in 2030 (approximately 10 TWh) which assumption was derived

from a brochure produced by Gas Networks Ireland, whereas the then in force Climate Action

Plan 21 factored in only 3% of biomethane in the gas network in 2030 (1.6TWh). There was

no evidence that biomethane would, in fact, lead to the quantity of GHG emissions reductions

identified by the Commission.

110. The legal point here is simple – the Commission reached a conclusion that the

proposed development would be fuelled by biomethane (§7.3) where there was no evidence

before the Commission to support that proposition.

Commission’s Position

111. Again, there are multiple points here.

• First, they say use of renewable gas being directly excluded by 13.3.3 of CAP 2023

and say the NHS 2023 is preclusive of it.

• Second, they say the legal point here is simple – the Commission reached a

conclusion that the proposed development would be fuelled by biomethane (§7.3) where

there was no evidence before the Commission to support that proposition.

• Third, they say furthermore, in relation to biomethane the developer used an

assumption of biomethane mix of 18% in 2030 (approximately 10 TWh) which assumption

was derived from a brochure produced by Gas Networks Ireland, whereas the then in force

Climate Action Plan 21 factored in only 3% of biomethane in the gas network in 2030

(1.6TWh). There was no evidence that biomethane would, in fact, lead to the quantity of

GHG emissions reductions identified by the Commission.

112. As to the first point, the reading of policy is simply wrong here. It is not correct that

CAP23 nor the NHS is preclusive of a developer proposing that its future needs may be met

by such sources and proposing a development designed to be able to take advantage of

that. CAP23 simply does not support that reading where it actually says ‘[t]o facilitate

investment, we will bring forward policies and regulatory frameworks to stimulate domestic

biomethane production and use, and the development of a sizeable hydrogen sector’. To

propose that the NHS should be read as precluding the approach here is equally difficult to

understand. Certainly, one can see the notion that it is a low priority end-use for large

electricity uses as other renewable provision will be more efficient. None of this precludes

reference to the potentially positive effect of using this fuel if and when it becomes possible.

However, at no point all, has the Commission premised its conclusions on some assumption

that the PDC is only acceptable because it may ultimately be hydrogen fuelled. Indeed, it

does indeed require some careful pause before accepting an argument that it is contrary to

national policy for a proposed development to describe itself as hydrogen or biomethane

ready.

113. As to the second point, and related to this whereas the Inspector referred to the

‘potentially positive environmental impacts’ involved with ‘the future switch to the use of

sustainable / renewable gas supplies in the energy centre for energy generation’, this is one

aspect of a host of considerations reached under the heading of EIA whereby many impacts,

including obviously negative impacts were addressed and relevant mitigation discussed. The

Commission was not, on any fair reading relying on ‘the future switch to the use of

sustainable / renewable gas supplies’ as being a deal-breaker. It was an observation on

likely environmental effects that if that occurs, it is positive. Indeed, the positive impact is

described as ‘potentially’ positive and is part of the general notion that the PDC was informed

by decarbonisation agenda (as CAP 2023 requires) – i.e. there may be some developments

that simply cannot ever accommodate hydrogen. In short, the Applicant characterises the

Commission Decision as premising its view on the acceptability of the PDC, including from a

climate point of view, on the basis that ultimately there would be a ‘future switch to the use

of sustainable / renewable gas supplies’ when this is not the case. So, simply because it

may not arise that hydrogen or biomethane can fuel the whole development, does not mean

it was unreasonable to take into account both the State’s policy commitments to hydrogen

and green methane and the stated willingness of the Notice Party to accommodate that if it

arises. That is different, for example, from a proposed development where a developer

states that they don’t intend to make provision for future proofing in this way.

114. Third, this point is somewhat more technical but the response is straight forward.

The Applicants say there will only be 3% biomethane in the gas system by 2030, not 18%.

However, even if correct, this does not have the legal effect the Applicant relies on. As the

Applicant itself points out, the shift to hydrogen or the increased mix percent of biomethane

is not certain and it was not relied on as certain by the Commission nor relied on as de facto

and certain reduction on emissions. The Notice Party expressly said in the AWN Report

(AWN Appeal Response, dated September 2022 (Appendix 3 of Appeal document) that (at

Section 1.23) ‘In order to be conservative, the predicted penetration of hydrogen and natural

gas with carbon capture has been ignored in these calculations (i.e. it has been assumed

that neither of these sources will be available.’

Developer’s Position

115. The Applicants’ argument attributes to the Inspector a finding that was not in fact

made. The Inspector did not conclude that the proposed development would be fuelled by

hydrogen at commencement, nor that renewable gas would be available in sufficient

quantities at any defined point. Rather, the Inspector recognised that the energy centre

was designed to be compatible with future renewable gas supplies as and when commercially

and physically available. That is materially different from finding that hydrogen would in

fact be deployed as a primary fuel source in the near term.

116. The Inspector’s conclusion that the development had the potential for positive

environmental impact over time was expressly framed in prospective and conditional terms.

It reflected adaptability and transition capacity, not guaranteed hydrogen deployment.

117. The Applicants rely on §13.3.3 of CAP 2023, which indicates that green hydrogen

will be prioritised for end-uses where direct electrification is not feasible. That provision

does not prohibit hydrogen use in electricity generation. Nor does it preclude co-location of

hydrogen-ready generation with large energy users. CAP 2023 is a strategic policy

document setting priorities and trajectories. It does not establish an enforceable statutory

rule barring hydrogen use for electricity generation in all contexts. The relevant question

under section 15 is whether the decision is consistent, in so far as practicable, with the CAP’s

overall objectives, not whether every possible future hydrogen allocation is resolved at

consent stage.

118. The Applicants also pray in aid §3.2 of the National Hydrogen Strategy, which notes

that hydrogen use by large electricity users is a ‘low priority end-use’ compared to direct

renewable electricity supply. A low priority designation is not a prohibition. The NHS

recognises that hydrogen will be required for system balancing, dispatchable generation,

and grid support functions. The proposed development’s generation is dispatchable and

located adjacent to demand. That is not inconsistent with the strategic framework.

119. The Applicants’ output arithmetic (70% efficiency × 45% generation = 31.5%) is a

policy argument. Even if accepted at its highest, such modelling does not transform CAP

2023 into a prohibition on hydrogen-ready generation. Furthermore, this is not pleaded in

the Statement of Grounds and cannot permissibly be advanced via a Statement of Case. In

any event, section 15 does not require the Commission to endorse or reject hydrogen based

on a developer’s hypothetical efficiency modelling. The Inspector was entitled to accept that

compatibility with renewable gas infrastructure supports long-term decarbonisation

potential, even if hydrogen remains nascent.

120. Moreover, the AWN modelling expressly assumed, conservatively, that hydrogen and

carbon capture would not be available up to 2030. The emissions assessment did not depend

on hydrogen penetration. The Applicants’ suggestion that the Board’s conclusion rested on

speculative hydrogen use is therefore incorrect on the record.

121. The Applicants’ multiplication exercise (offshore wind × intermittency × hydrogen

inefficiency), impermissibly deployed here for the first time, attempts to convert high-level

policy modelling into a project-specific prohibition. The Government Statement on the Role

of Data Centres is a strategic framework; it does not require the Commission to secure a

quantified like for like renewable installation at the planning stage.

122. The Commission was entitled to consider renewable procurement mechanisms,

energy flexibility, and system integration features as relevant factors. Section 15 does not

mandate that the Board calculate national renewable build-out requirements for each

individual development.

123. The Applicants contend that the developer relied upon an 18% biomethane mix

assumption for 2030 derived from Gas Networks Ireland material, rather than the 3%

referenced in CAP 2021. First, the modelling assumption was clearly identified as a scenario

and was not presented as a guaranteed outcome. Secondly, biomethane penetration is a

dynamic policy area reflected in evolving national strategies. The Board was entitled to

consider credible projections from relevant national infrastructure bodies. Thirdly, and

critically, the Board did not grant permission on the basis that biomethane would definitively

fuel the development. The Inspector recognised compatibility with renewable gas supply as

part of a transition pathway. That is an evaluative judgment grounded in the evidence

before the Board.

124. The Applicants’ submission that ‘there was no evidence’ to support biomethane-

related reductions overstates the position. There was evidence of projected biomethane

development, renewable gas integration strategies, and adaptive design readiness. Whether

the Applicants agree with that evidence is immaterial to legality.

125. The Applicants assert that the Commission ‘reached a conclusion that the proposed

development would be fuelled by biomethane’. That is not an accurate reading of the

Inspector’s report. The Inspector acknowledged renewable gas compatibility and the

potential for transition. There was no definitive finding that biomethane would supply the

energy centre at a specified level or date. To read the decision as making such a categorical

commitment is precisely the form of over-parsing cautioned against in Killymooney (No.1).

The decision must be read in the round. When so read, it reflects an acknowledgment of

present fossil-based operation with transitional adaptability; not a speculative assumption

presented as fact.

126. The Applicants’ argument effectively imposes a standard of technological certainty

and future fuel allocation proof at the date of consent. Section 15 does not require that level

of determinism. The statutory obligation is to perform functions in a manner consistent, in

so far as practicable, with the relevant climate instruments. The Inspector considered CAP

2023 and the wider climate policy framework. She assessed emissions on a conservative

basis and recognised ETS coverage. She evaluated mitigation and renewable procurement

and noted adaptability to renewable gas supply. That analysis falls within the lawful

spectrum of evaluative outcomes contemplated by the Supreme Court in Coolglass.

Disagreement with hydrogen prioritisation or biomethane penetration assumptions does not

convert a policy judgment into a justiciable legal defect.”

99. Again the applicants are conveniently misreading policy documents as giving rise to

mandatory requirements to refuse permission, whereas a proper reading of for example para. 13.3.3

of CAP23 allows flexibility.

100. Insofar as it is alleged that there is a lack of evidence that the proposed development would

be fuelled by biomethane, that is again a convenient misreading of the decision as over-promising

something, whereas in fact it is expressly phrased in merely potential terms. The possibility of future

use of biomethane was assessed as part of the EIA. That does not equate to the commission granting

permission on the basis of a bedrock premise that this would 100% certainly happen.

101. Any argument about percentages fails for similar reasons – biomethane use at particular

percentages were presented, as the notice party says, “as a scenario”, not as something guaranteed.

102. The problem with this ground overall is that it does not have regard to the range of lawful

approaches recognised in Coolglass. It erects a particular approach into a mandatory one contrary

to the Supreme Court’s decision. The correct question is whether the applicant has shown that the

range of lawful decisions was exceeded – the answer here is that they have not.

103. Overall the applicants are reading the decision as erroneous when a non-erroneous reading

is available. This is an instance of the general applicant’s fallacy that deems anything said by a

decision-taker to be ratio and fundamental to the reasoning, so any possible infirmity in anything

whatsoever results in a reflexive hand out for certiorari, normally accompanied by thundering

rhetoric about fundamental error and so on. A similar appellant’s fallacy deems everything said by

a trial judge to be part of the ratio and regards anything debatable as nullifying the whole decision.

This is another aspect of the point made by O’Donnell J. 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”.

Sub-grounds 22 to 32 (issue (f)) – 2015 Act overall emissions and ETS

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

“(f) The PDC will be one of the main sources of GHG emissions in the State when

operational/non-consistency with 2015 Act

Applicants’ Position

127. The projected PDC emissions will be almost 10% of the indicative projected

emissions ceiling for the electricity sector in 2030, leaving aside the fact that there is no

spare budget to allocate to new projects outside the framework of the climate action plans.

128. The PDC would be powered by continuously drawing 80MW from the national grid,

and by producing 120MW of electricity in natural gas powered generators. Back-up demand

is to be met through the use of 66 diesel generators.

129. Despite this, the initial EIAR submitted on behalf of the Notice Party, considered the

effect of the emissions from the PDC as ‘slight’; and the Notice Party response to the Appeals

characterised the effect of the emissions as either ‘Minor Adverse’ (Appendix 3, Table 6) or

‘Moderate Adverse’ (before mitigation) and ‘Minor Adverse’ (after mitigation) (Appendix 3,

Table 7). These conclusions in Table 6 appear to be based on the EU Emissions Trading

System (ETS).

130. As will be addressed further below, the conclusion of ‘minor adverse’ in Table 7 is

based on operation using renewable electricity through a power purchase agreement.

However, the Commission did not set a condition for such a renewables power purchase

agreement to create additional renewable electricity. In the circumstances, the PDC would

directly undermine decarbonisation of the electricity network, by diverting renewable

electricity to the PDC. Nor is reliance on Emissions Trading Scheme (‘ETS’). Neither the

Climate Action Plan 2021 nor the Climate Action Plan 2023 make reference to ETS in respect

of the national reduction targets for the electricity sector.

131. All development participating in the ETS, including the proposed development, must

comply with all EU ETS rules but this does not in any way imply that a development is

consistent with national climate action policy, as there is no mechanism within the ETS to

implement national targets. Operating within the ETS therefore did not exempt the

development from assessment of its impact on national GHG emissions as defined in the

Climate Act, and in Climate Action Plan 2023 or in any way ensure compliance with those

targets.

132. If the Commission and other public authorities were entitled to use the Climate

Action Plan 2023, in order to permit significant increases in GHG emissions, without any

mitigation, and without any recognition of the cumulative effects of such decisions, all

climate action plans would be fundamentally undermined and the national climate objective

would be rendered impossible.

Commission’s Position

133. Stating this is simply not enough to show that the Commission Decision is unlawful.

Insofar as this is the argument that says reliance on the ETS is unlawful, that is not correct.

The generation of power can create GHG, that much is well known. However, the ability to

actually do that is regulated by the ETS. This is the specific methodology designed and

adopted to specifically control emissions from power generation across the European Union

to specific levels with a set ‘cap’ on the GHG permitted.

134. In this respect, at a European level, the acceptability of emission levels from power

generation is dealt with, so insofar as the point is made in this case that the Commission

simply did not look enough at emissions arising from the power generation needed for the

PDC, that is addressed at the ETS level. In short, to borrow a phrase from the Court recently

in McGowan v An Coimisiún Pleanala [2025] IEHC 727 at [92], the Commission does not

have to reinvent the wheel each time when it comes to a contention not that the PDC itself

causes direct emissions, but that the power generation (i.e. those participating in the ETS)

will create too much emissions.

135. Interestingly, the Applicants say that CAP 2021 and 2023 take no cognisance of the

ETS. This is plainly wrong. Simply referring to CAP 2023, Section 13.1.1, 13.3.5 and Box

2.1 are to the contrary of this point a point which the Applicant made in the AWN report at

Section 3.17-18, 3.24 and which was accepted by the Inspector and Commission.

136. And further, nothing about the ETS demonstrates a lack of awareness of the relevant

national targets and ceilings, all of which were clearly dealt with the Notice Party in the AWN

Report, e.g. at Table 7. Those projected emissions were before the Inspector and were not

rejected or recalculated by the Board.

Developer’s Position

137. The Applicants proceeds on the erroneous premise that section 15 of the 2015 Act

imposes a project-level carbon ceiling or prohibits the grant of permission for emissions-

generating development of scale and makes the decisions in the present case unlawful. It

does not and Coolglass makes that clear. Section 15 requires a relevant body to perform

its functions, in so far as practicable, in a manner consistent with the matters therein

specified. As confirmed by the Supreme Court in Coolglass, it operates within the statutory

planning function and does not supplant or override it.

138. The ‘almost 10% of the electricity ceiling’ assertion is a modelling construct based

on worst-case operational assumptions. Neither the 2015 Act, CAP 2023 nor the Carbon

Budgets establish any mechanism requiring the Board to allocate portions of a sectoral

ceiling to individual projects. The Board was not required to conduct a sectoral arithmetic

exercise.

139. The development’s electricity-related emissions fall within the EU Emissions Trading

System (ETS). The Board was entitled to consider that regulatory architecture when

assessing magnitude and significance. CAP 2023 expressly recognises the ETS as a central

mechanism for emissions reduction in electricity generation and large industry.

Consideration of the ETS was lawful and relevant: see Coyne.

140. The characterisation of residual climate effects as ‘minor adverse’ post-mitigation

reflects the expert assessment contained in the EIAR and appeal documentation, undertaken

in accordance with accepted methodology. It was an evaluative scientific judgment. Judicial

review does not permit substitution of the Court’s view for that of the decision-maker.

141. The absence of a specific CPPA condition does not establish failure to require

mitigation. The Applicants are reading the permission in the most erroneous manner

possible. Commitments regarding corporate power purchase agreements and energy

efficiency measures formed part of the mitigation framework before the Board and are

secured through Condition 3. Section 15 does not mandate any particular mitigation

mechanism. It requires evaluative consistency with national climate instruments, not the

imposition of any specific contractual device. A holistic reading of the permission and the

planning application documentation, including the John Spain Associates appeal response

and its appendices make clear that the developer must enter into CPPAs.

142. The Applicants’ contention that reliance on the ETS is irrelevant because it does not

implement national targets is legally incorrect. Section 2 of the 2015 Act preserves the

State’s obligations under Directive 2003/87/EC. The Board was entitled to assess emissions

within the national and EU regulatory context.

143. The assertion that granting permission ‘fundamentally undermines’ climate policy is

rhetorical and does not identify any specific inconsistency with CAP 2023. CAP 2023 does

not prohibit new large electricity users and the Applicants haven’t so identified. The Board

considered climate policy, carbon budgets, sectoral ceilings, ETS regulation and mitigation

measures and was entitled to conclude that the development did not undermine the national

climate objective.

144. These are impermissible merits-based complaints to the Board’s planning

judgment.”

105. Insofar as concerns the emission trading system (ETS), the commission sets out some of

the context in submissions as follows (see by way of a summary of the system the EPA’s public

domain information at https://www.epa.ie/our-services/licensing/climate-change/eu-emissions-

trading-system-/):

“8. The Emissions Trading System (‘ETS’) is summarised in Coyne v An Bord Pleanála

[2023] IEHC 412 (inter alia, §117 et seq). In this case, Chapter 1 of the EIAR also addresses

same:

‘The EU is committed to achieving a reduction of greenhouse gas emissions; this is being

implemented by the EU Emissions Trading Directive (Directive 2003/87/EC). The EPA has

been given the responsibility for implementing the Emissions Trading Directive in Ireland.

The Directive establishes an allowance-trading scheme for emissions to promote reductions

of greenhouse gases, in particular carbon dioxide.’

9. The ETS is further explained in the Developer’s appeal submission to the Commission

(AWN Appeal Response, dated September 2022 (Appendix 3 of Appeal document), §1.4 et

seq), including insofar as same applies to the development and the GHG emissions

emanating from same:

‘…the energy generated and associated GHG emissions to serve the proposed development

will fall within the scope of the EU Emissions Trading System (ETS) either as a result of

electricity from the national grid (with diesel generators as an emergency measure) (for

Phase 1) or as a result of onsite generation of electrical power using gas generators (Phase

2 & 3) with all phases requiring a Greenhouse Gas Permit in order to operate…’ (§1.4)

‘The ETS is a “cap and trade” system where an EU-wide limit, or cap, is set for participating

installations. Thus, the geographical location of a given development within the EU is not

relevant as there is only one EU-wide target which is applicable to the ETS and thus the

cumulative direct and indirect climate assessment of relevance in this context is the GHG

emissions associated with the EU under the ETS. When viewed in this context, on an EU-

wide basis, where the ETS market in 2021 was approximately 1,307 million tonnes CO2eq,

the impact of the emissions from the proposed development, either from electricity

generation from the national grid or from onsite generation, will be less than 0.05% of the

total EU-wide ETS market. Thus, where there is a medium sensitivity environment and the

magnitude of impact of the project is small, this equates to a slight impact.’ (§1.10)

‘In terms of the specific references to CO2 emissions within the third party appeals, the

emissions associated the development (either directly or indirectly) will be within the ETS

mechanisms as outlined in Section 8.7.2.2 of the EIAR’ (§1.15)

10. The ETS is also expressly addressed in the CAP, which notes that ‘Emissions from

electricity generation and large industry in the ETS are subject to EU-wide targets which

require that emissions from these sectors be reduced by 43% by 2030, relative to 2005

levels…’ (Box 2.1). The CAP also refers to the ETS in the context of highlighting the central

role of carbon taxing to reduce GHG emissions (§11.2) and measures identified to deliver

on the sectoral emissions ceilings – for example, it is identified as a ‘measure’ to deliver

sectoral emissions ceilings in industry (§13.3 and §13.3.5).

11. The ETS is also identified in the Development Plan as an important component of

the EU Climate Framework ‘to enable progress on the mitigation of emissions’ (Chapter 2,

pg.26). The ETS thus informs the policy context relevant to the assessment of data centre

proposals – which policy acknowledges same as relevant to the mitigation of emissions.

12. Moreover, in the context of EIA, the Court outlined in Coyne v An Bord Pleanála

[2023] IEHC 412 that the ETS was a relevant consideration in the assessment of climate

impacts (§57):

‘Notably, by Annex IV of the EIA Directive and Schedule 6 PDR 2001 the description in an

EIAR shall take “into account the environmental protection objectives established at

European Union level or by a Member State of the European Union which are relevant to the

proposed development”. It follows that that the Board is entitled to take them into account

in EIA. It appears to me that this implies that it is permissible in EIA of a project to consider

schemes such as the Emissions Trading System described later in this judgment.’”

106. The commission highlights the following aspects of the inspector’s report:

“- Assessed the data centre development by reference to ‘local planning policy’ (pg.46

et seq), noting ‘the extensive plan-led approach to the zoning of the site at Toureen for data

centre uses, and I am satisfied that the proposed development is compatible with the zoning,

policies and objectives for this site’. In this respect, noting the requirements of Objective

CDP6.27, the Inspector outlined:

‘I note that the applicant has submitted all the required information under CDP6.27 and

ENT3 (TS9) for the site. This information will assist in the identification of potential impacts

on climate and the environment which will be assessed in the following sections of this report

(Planning Assessment, EIA & AA).’

Thus, the Inspector and the Commission were satisfied that the information presented

complied with the requirements of the Development Plan insofar as same allowed for the

assessment of potential impacts on climate.

- The Inspector proceeded to consider ‘compliance with climate change policies’

(pg.48 et seq), noting that third parties had raised issues with sectoral emissions reduction

and climate change targets. In this respect, the Inspector noted the balance to be struck

between ‘the supply of energy from the national grid which will be increasingly powered by

renewables in the future, and from the proposed on-site energy centre which would initially

be fuelled by natural gas from the nearby gas pipeline, and potentially by renewable gas

supplies in the near future’.

- The Inspector also outlined that as renewable energy sources increase, this will

balance out any short-term emissions arising from the data centre development – stating:

‘In relation to resultant CO2 emissions, the applicant has confirmed that the existing

electricity providers (to the national grid) form part of the EU-wide Emission Trading Scheme

(ETS). I am satisfied that any greenhouse gas emissions from these electricity generators

are not included when determining compliance with the targeted reductions in the non-ETS

sector, with no adverse impacts on the overall EU reduction targets anticipated.

Notwithstanding the anticipated demand for energy to serve the data centre project and

taking account of the EU-wide Emission Trading Scheme (ETS), I am satisfied that this issue

will be ultimately addressed as Ireland moves towards meeting its objective of providing

most of its energy from renewable sources by 2030 and beyond, in accordance with the

Climate Action Plan, 2023.’”

107. As regards the claim of irrelevance, the basic problem with that argument is that,

consistently with Coyne v. An Bord Pleanála [2023] IEHC 412 (Unreported, High Court, Holland J.,

21 July 2023), the ETS is obviously relevant at least to some aspects of climate assessment under

the 2015 Act, as a corner-stone of EU and national policy in this area. It is absurd to suggest that

such a primary climate instrument cannot be considered.

108. So being subject to ETS is relevant, but it is sufficient for the purposes of the 2015 Act?

109. The commission’s central position as noted above is that “insofar as the point is made in this

case that the Commission simply did not look enough at emissions arising from the power generation

needed for the PDC, that is addressed at the ETS level”.

110. While that is not an argument obviously without merit, I have to admit that unfortunately I

don’t find it quite as self-evidently immediately and unquestionably conclusive as the commission

does. The fact that Problem X is addressed by System A doesn’t automatically mean that there is

always going to be complete consistency with System B also, even if the latter recognises that the

former may be relevant in some respects. If all the commission had going for it was the ETS, then

the matter might need to be considered in further detail, albeit that the present case is pleaded

exclusively as a matter of domestic law in this respect.

111. But the commission also has other matters going for it, particularly (a) the developer’s

material quantifying emissions and (b) the agreement to CPPAs.

112. For the purposes of the 2015 Act, a conclusion regarding impacts must be viewed by

reference not to the gross emissions involved but the net impacts as conditioned, mitigated and

offset.

113. Conditions 1 and 3 must be read as requiring compliance with the documentation submitted,

including the requirement to enter into a CPPA. The lack of an express condition is irrelevant and

such a condition would be repetitive and superfluous given the general obligation under conditions

1 and 3, as discussed further below.

114. The underlying problem with the applicants’ categorisation of the project as causing

emissions is its misunderstanding that the lack of an express condition about CPPAs equates to a

lack of a condition arising from the documentation submitted. I deal with this further below.

115. Ultimately, the false premise of the applicants’ budgeting/ sectoral ceilings argument is the

failure to recognise that mitigation is conditioned.

116. In such circumstances the applicants have not demonstrated that the spectrum of

permissible options has been exceeded.

Sub-grounds 33 to 45 (issue (g)) – irrationality – positive effects

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

“(g) The finding of the Commission that the PDC could have potentially positive

environmental impacts is irrational and/or is contrary to the Climate Action Plan 2023

145. The Notice Party estimates the GHG emissions from the PDC being used at 80%

capacity at 292,704 tonnes of CO2 equivalent. This amounts to 0.87% of the national ceiling

for GHG emissions for 2030, from all sectors, or 9.8% of the ceiling for GHG emissions for

2030 in the electricity sector.

146. At full capacity, for which the Decision grants permission, GHG emissions from the

PDC amount to 1.1% of the national ceiling for GHG emissions for 2030, from all sectors, or

12.3% of the ceiling for GHG emissions for 2030 in the electricity sector.

147. The finding of the Commission that the PDC could have potentially positive

environmental impacts is irrational in respect of the effect of carbon emissions. Even if the

120MW of gas generated electricity were entirely powered by hydrogen from the start of its

operational phase, (something which is universally accepted as impossible), the PDC would

not result in a net reduction in national emissions and in that scenario would divert renewable

energy away from the decarbonisation of other sectors in the economy.

Commission’s Position

148. This has been dealt with above.

149. The Commission was not, on any fair reading relying on ‘the future switch to the use

of sustainable / renewable gas supplies’ as being a deal-breaker. It was an observation on

likely environmental effects that if that occurs, it is positive. Indeed, the positive impact is

described as ‘potentially’ positive and is part of the general notion that the PDC was informed

by decarbonisation agenda (as CAP 2023 requires).

Developer’s Position

150. Core Ground 2, pleads that the ‘Data Centre Decision is invalid in that the Board

acted irrationally, erred in law and/or failed to provide reasons and/or adequate reasons, in

finding that the PDC would have potentially positive environmental impacts, based on a

future switch to the use of sustainable/renewable gas supplies, which do not exist in

sufficient volumes’ (emphasis added). The Applicant has misdescribed the Reasons and

considerations of the Board in this regard. The basis for the Board’s finding ‘that the PDC

would have potentially positive environmental impacts’ was based on two factors (as

reflected in its wording on p.9 of the Decision), the first being ‘the undergrounding of the

existing overhead transmission cables’. In effect, what the Commission/Board was saying

was that there were elements or aspects of the project that would have ‘potentially positive

impacts’ rather than suggesting that the project would not have potentially negative impacts

on the environment arising from the emission of greenhouse gases.

151. The Applicants incorrectly characterise the Commission’s finding as one that the PDC

produces a net positive climate impact. That is not what the Decision states.

152. The Inspector’s reference to a ‘potentially positive environmental impact’ was

confined to the future capacity of the energy centre to transition to sustainable/renewable

gas supplies. It was expressly framed as contingent and prospective. It was not relied upon

as a determinative justification for the grant of permission.

153. The Commission did not find - nor was it required to find - that the PDC would result

in a net reduction in national GHG emissions. The EIA identified emissions impacts

transparently. The Decision records those impacts and assesses them within the statutory

framework, including the ETS, carbon budgets and sectoral ceilings.

154. The Applicants’ arithmetic does not establish irrationality. Magnitude alone does not

determine unlawfulness under s.15. Coolglass confirms that ‘consistency’ admits a range of

outcomes and does not require zero emissions or sectoral neutrality at project level.

155. The Applicants’ assertion that even a full hydrogen switch would divert renewables

from other sectors is speculative and not the basis of the Decision. The Commission did not

assume universal hydrogen fuelling. It noted only that future decarbonisation pathways

(hydrogen/biomethane readiness) could reduce lifecycle emissions if realised. CAP 2023

does not prohibit such future-proofing. Nor does the NHS preclude infrastructure being

hydrogen-ready. The Decision reflects alignment with national policy encouraging regulatory

frameworks for biomethane and hydrogen development.

156. Within the EIA, the ‘potentially positive’ reference sits alongside identified adverse

effects and mitigation measures. It is one factor in a multi-factor environmental assessment.

It is not irrational to recognise that technological flexibility consistent with national

decarbonisation strategy may carry prospective environmental benefit.”

118. The problem with this argument is that the applicants have not shown that the decision is

irrational. The applicants are reading the decision as invalid and nonsensical where a valid and

sensible reading is available. The decision can readily be construed in a manner that avoids the

alleged or any irrationality, as the opposing parties submit. This point fails by analogy with the

biomethane point above, and it is unnecessary to repeat that discussion which applies mutatis

mutandis.

Sub-grounds 46 to 55 (issue (h)) – irrationality – reliance on PAS 2050

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

“(h) The Commission’s reliance on the PAS 2050 is irrational

Applicants’ Position

157. PAS 2050 allows businesses to disregard a source of GHG in one of their products,

if it accounts for less than 1% of the emissions of that product, so long as various other

conditions are met.

158. The Notice Party has used this exemption and applied it to national emissions, in

order to determine that the PDC would have a minor adverse impact on the national level

(Table 6). This analysis was accepted by the Inspector and Commission. A number of clear

errors apply to this analysis.

159. PAS 2050 does not apply to national emissions. It is a specification for the

assessment of life cycle emissions of goods and services. The PDC is neither. It is used for

the analysis of the climate effect of individual products. The exemption applies to elements

of a product which represent less than 1% of the GHG emissions of that product.

160. Secondly, the calculations are based on the use of the PDC at 80% capacity, rather

than at 100% capacity, for which the Decision grants permission. If calculations were based

on the use of the PDC at the full level permitted by the Decision, the (nonsensical) 1%

threshold would be breached and a significant adverse impact would be found.

161. Thirdly, even if PAS 2050 were to apply, it does not allow for mitigation or offsetting

before analysing whether a contribution comes below the 1% threshold. The Notice Party is

clear that the PDC breaches the 1% threshold, prior to proposed mitigation measures. As

such those GHG emissions cannot be discounted as minor under PAS 2050.

162. The Commission, relied on this irrational application of the PAS 2050 to find the PDC

would have a minor adverse impact. This fatally undermines the environmental analysis of

the PDC.

Commission’s Position

163. The point appears to be that the Commission is said, effectively, to have been misled

by an approach (PAS 2050). In essence, that document offers a view as to how one can

understand a carbon footprint of any given product, at least in terms of GHG. That standard

says, in effect, in calculating a footprint, one can exclude the contributions from parts of the

footprint that make up less than 1% of the anticipated life cycle GHG emissions associated

with the product in question. In essence, for that sort of analysis, it says less than 1%

contribution to an overall footprint can be excluded in reckoning up that footprint – i.e. see

per page 13, that one considers ‘all sources of emissions anticipated to make a material

contribution (more than 1%) to the life cycle GHG emissions of the functional unit.

164. So, the case goes, if the Notice Party presented the view that it was under the 1%,

then it was attempting to argue that this de jure meant it was acceptable under a standard

which does not apply, which the Commission must have accepted.

165. The Notice Party has explained why it was dealing with PAS 2050 and they say it

was because Mr. Doyle had positively argued that the approach in the EIAR was wrong and

that the approach which had been taken to the Shannon Technology and Energy Park

(‘STEP’) was to be preferred. That approach, however, had used the PAS 2050 to reason by

analogy that ‘that where emissions were greater than 1% of Irish GHG emissions then the

impact of the proposed development would be considered as of major adverse significance’

(see as explained in Section 1.17 of the AWN Report). Thus, the approach taken in the STEP

application was set out at Section 1.17 and 1.18 which involved (in that application) a view

being urged that a magnitude should be viewed as ‘high’ when emissions exceed 1% of the

Irish GHG inventory in the year they arise and ‘low’ when its less than 1%.

166. The Notice Party then, in Table 4 set out the expected values in emission tons and

then set out the relevant percent contributions to targets, ceilings and the ETS cap in Table

5. Save, of course, through their point about 80% versus 100%, none of this is challenged.

So, what is perfectly clear is whereas PAS 2050 may, for a very different type of analysis,

give one a 1% test basis, the actual percentages are set out and there is no evidence that

the Commission determined that any sub 1% aspect of this in terms of national targets,

meant it was prima facie acceptable. Indeed, PAS 2050 is not referred by the Inspector and

where the Notice Party (see Section 1.27 in the AWN Report) entered into an ‘Assessment

of Significance’ it did not apply the ‘high’ and ‘low’ approach apparently based on PAS 2050

in the STEPS application, but applied IEMA Guidance from 2022 in modelling what they

described as minor adverse effects.

167. The point here is that the percents of involvement are set out which are correct, and

insofar as 100% required to be understood, was clearly understandable by basic maths, and

for detailed substantive reasons a characterisation of that impact is offered in Table 6 and

7. There is simply no basis to the case that the Commission has somehow adopted an

approach which de jure says anything below 1% is automatically acceptable nor could it

because it's beyond any doubt at all (see Table 7) that more than 1% of the 2030 ceiling is

taken by the development even on the 80% basis.

Developer’s Position

168. The Applicants’ case proceeds on a false premise: that the Commission treated PAS

2050 as legally determinative of acceptability or as establishing a binding ‘1% rule’ for

national emissions. It did not. PAS 2050 was referenced in the AWN appeal response in

order to address an argument previously advanced by the Applicants in another case (STEP)

where a 1% threshold had been used by analogy. It was not relied upon as a statutory

test, nor as a legal basis governing national emissions assessment.

169. The Commission did not apply PAS 2050 to national emissions ceilings.

170. The Applicants contend that PAS 2050 cannot apply to national emissions; yet if

applied at 100% capacity, the 1% threshold would be breached. However, Table 7 in the

AWN appeal response makes clear that even on the 80% operational basis, the development

exceeds 1% of the electricity sector ceiling. It was therefore not ‘discounted’ on the basis

that it fell below 1%. The premise of concealment or exclusion is factually wrong.

171. The 80% utilisation assumption reflects realistic operational modelling and was

transparently explained.

172. Planning permission does not require modelling based on theoretical maximum

instantaneous output where evidence demonstrates phased ramp-up and typical load

factors. The Inspector was entitled to accept the evidence presented. In any event, the

100% figure is arithmetically obvious and was readily inferable.

173. The Applicants assert that PAS 2050 prohibits mitigation being considered before

applying a 1% threshold. That misunderstands both the role of PAS 2050 and the EIA

process. Significance in EIA is routinely assessed pre-mitigation; and post-mitigation. That

is normal practice. The Inspector assessed impacts before and after mitigation. There is

nothing irrational in that approach.

174. Even if PAS 2050 were misapplied (which is denied), that would not render the

Decision unlawful unless the Commission adopted it as a binding legal standard (which it

didn’t) or the assessment materially depended on a legally impermissible threshold.

120. PAS 2050 is the British Standards Institution (BSI) Publicly Available Specification (PAS)

2050:2011, Specification for the assessment of the life cycle greenhouse gas emissions of goods

and services, 30 September 2011. It is a form of industry standard, albeit that in any scientific

discipline there is normally room for debate about the value, relevance, exact meaning and correct

use of standards. But any argument ambitiously claiming that a public body erred by considering

an industry standard starts from a fairly major implausibility on its face.

121. The overall problem with this ground is that the applicants have not demonstrated that the

commission’s approach falls outside the range of permissible options that constitute compatibility

with 2015 Act considerations. This point is going nowhere in the light of Coolglass.

122. The more specific problem was that the reliance on PAS 2050 did not have the effect that

relevant information was ignored and overlooked. The information was put before the commission,

even if not presented as the applicants say they would have preferred.

Sub-grounds 56 to 66 (issue (i)) – lack of mitigation – CPPAs

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

“(i) Failure to ensure mitigation of GHG emissions.

Applicants’ Position

175. It is a standalone obligation under Section 15(1)(e), that the Commission ensure:

i. The mitigation of GHG resulting from its decision

ii. That its decisions (including any mitigation measures) do not run contrary to national

policies for mitigation of GHG.

176. In its response to the first Applicant’s appeal to the Commission, the Notice Party,

in order to mitigate the negative climate effect of the PDC, indicated (Response, p.13, para

4.4.8) that it was willing to accept a condition on the grant of permission, which would

require the Notice Party to enter a Corporate Power Purchasing Agreement (CPPA) for the

purchase of renewable energy equal to the power use of the PDC. ‘3.23 III. … the applicant

has confirmed that they would accept a condition on any grant of permission by the Board,

requiring the submission of details to the Planning Authority prior to the operation of

development, confirming that a CPPA has been entered into in respect of the proposed

development.’

177. The Notice Party presumed a CPPA condition would be imposed in its analysis. At

1.37 in the September 2022 submission: ‘Also presented in Table 7 is the impact post

mitigation. As outlined above the project will use “best practice” adaptive design measures

(solar panels, vertical farm, facilitating district heating) and by using long term power

purchase agreements. With the implementation of these measures the impact of the

proposed project … is reduced to a minor adverse, non-significant impact.’

178. However, there is no requirement that the CPPA in question requires additionality of

renewables which would not otherwise occur, which is equal to the energy to be used by

that data centre and which is not otherwise subsidised by government.

179. In fact, despite the suggestion of a condition by the Notice Party requiring a CPPA

and the reliance of the Notice Party of such a condition to find that the PDC would have a

minor adverse climate effect, the Decision does not place any condition requiring a CPPA to

provide additional renewable energy on the Notice Party. This can be seen from the

documentation submitted to the Commission, pointing to wind farms which were already at

various stages of the planning process, in other words not only are they not ‘additional’, they

are not even ‘new’.

180. The absence of such a condition fundamentally undermines the analysis of the Notice

Party, the Inspector and the Commission, though it must be noted that such a condition

could not, in any event, make the granting of permission for the PDC consistent with the

Climate Action Plan 2023.

181. As such, where, on every analysis, the GHG emissions from the PDC will not be

mitigated by the Commission’s Decision, the Commission has failed to perform its functions

in a manner consistent with the objective of mitigating greenhouse gas emissions in the

State, as required by 15(1)(e). The Commission has offered no evidence of how it was not

practicable to do so. As such the Decision is in breach of its obligations under 15(1)(e).

Commission’s Position

182. This is the CPPA point but now they say one must have one that requires additional

renewable energy. The additionality point has been dealt with above.

183. As to the CPPA the Notice Party specifically sought to ‘mitigate’ greenhouse gas

emissions in the ways described in Section 3.23. One of the manners proposed as mitigation

was that the immediate energy need (i.e. Phase 1) would be offset and that there is ‘there

is potential for CPPAs to offset the entire energy usage of the proposed development.’ The

Notice Party said:

‘Additionally, as set out within the JSA response document, the applicant has confirmed that

they would accept a condition on any grant of permission by the Board, requiring the

submission of details to the Planning Authority prior to the operation of development,

confirming that a CPPA has been entered into in respect of the proposed development.’

184. So, the Notice Party proposed this and did not, for example, outline any particular

difficulties or explain any reasons why this could not be done. And, they proposed this by

way of mitigation.

185. Condition 3 requires the mitigation. Condition 1 requires the development to be as

proposed. It is a requirement of the development consent that, in fact, the draw is offset

and the Commission relies on Fahybeg Windfarm Opposition Group v An Bord Pleanála

[2025] IEHC 310 (§43) and Rural Residents (No.1) [2025] IEHC 600 at §88-95 here in terms

of construction of the Decision.

186. This point sub-tends a lot of the Applicant’s case and insofar as the Applicant’s

concern is that this was not required, the Commission says it is, and the Notice Party indeed

offered it. In real terms, this should meet any concerns the Applicants have.

Developer’s Position

187. Section 15(1)(e) does not impose a project-level obligation to eliminate or fully

offset emissions, nor does it require ‘additional’ renewable generation. The statutory test is

whether the Commission acted consistently, insofar as practicable, with national mitigation

policy. It is not a net-zero requirement for individual developments.

188. The Notice Party expressly proposed mitigation measures, including phased

development and ramp-up, adaptive design (solar PV, district heating facilitation, vertical

farming) and long-term CPPAs to offset operational demand. The CPPA proposal was clearly

before the Commission and formed part of the environmental assessment.

189. The Applicants’ argument rests on the assertion that no CPPA requirement forms

part of the permission. That is incorrect as a matter of construction because Condition 1

requires the development to be carried out in accordance with the documentation before the

Board and Condition 3 requires implementation of mitigation measures and the CPPA

commitment was expressly advanced as mitigation.

190. On orthodox principles of construction (see Fahybeg Windfarm Opposition Group

[2025] IEHC 310; Rural Residents (No.1) [2025] IEHC 600), the permission must be read

as a whole and in light of the material before the decision-maker. The mitigation

commitments form part of the permitted scheme.

191. The Applicants introduce a new gloss that that any CPPA must secure additional

renewable generation not otherwise occurring. But there is no requirement in s.15 for

‘additionality’ in that sense and no mandatory CAP 2023 provision requiring project-specific

renewable surplus. There is no legal basis converting a policy aspiration into a binding

precondition. CAP 2023 speaks to energy matching and system decarbonisation at sectoral

level. It does not mandate that every large user create net new renewable capacity equal

to its draw.

192. The Applicants’ real complaint is that a high-emitting development cannot be

permitted unless it is rendered net-neutral or additional-renewable-positive. That is not the

law.

193. The Applicants introduce an ‘additionality’ requirement not found in s.15 or CAP

2023. There is no statutory or policy obligation that a data centre must generate renewable

capacity surplus to its own demand. CAP 2023 addresses sectoral decarbonisation, not

project-specific renewable surplus.”

124. CPPAs are addressed in the government statement:

“A corporate power purchase agreements (CPPA) is an arrangement whereby renewable

electricity is procured through a direct contractual agreement with a renewable electricity

generator. CPPAs have a role to play in decarbonising the electricity sector and ensuring

demand growth from large energy users, such as data centres, reduces the cost of reaching

renewable energy targets. Outside of the Renewable Electricity Support Scheme (RESS), a

number of CPPAs have been executed by data centres in Ireland in recent years to finance

renewable electricity generation projects. Data centre operators purchasing CPPAs that add

additional renewables, and use our electricity grid efficiently, can play a positive role in

Ireland’s renewable energy transformation. However, the location of data centre demand

in proximity to renewable generation will be key to this objective.”

125. The main problem with this ground is that the 2015 Act doesn’t require refusal of

developments that have gross GHG emissions. It is well within the range of options open to a

decision-taker to alternatively have regard to net emissions. The notice party is expressly accepting

that the conditions require CPPAs which means that the project will be powered by renewables.

Much of the applicants’ argument ignores this premise.

126. Insofar as concerns the question of whether the commission erred in conditioning CPPAs (via

the general conditions that the development must be in accordance with the documentation

submitted) without ensuring that the renewable energy would be additional to existing or stimulated

further demand, these are not pleaded points.

127. The essential point that a general condition about compliance with particulars encompasses

specific requirements in particular documents is not in doubt. As the Court of Appeal put it in Kelly

Dunne & Ors v. Guessford Limited [2022] IECA 223 (Unreported, Court of Appeal, Costello J., 14

October 2022) at 64:

“Where, as here, the grant incorporates by reference the plans and particulars lodged with

it, then the grant of planning permission must be construed by reference not only to the

contents of the grant of planning permission but also to the application and the plans lodged.

In determining the proper scope of the permission, it is the combined effect of the permission

and the documents incorporated by reference which must be looked at...”

128. I took a similar approach in Fahybeg Windfarm Opposition Group v. An Bord Pleanála [2025]

IEHC 310 (Unreported, High Court, 30 May 2025) at §43 and Rural Residents v. An Coimisiún

Pleanála (No. 1) [2025] IEHC 600 (Unreported, High Court, 6 November 2025) at §88-95, including

by way of a recital in the order clarifying matters if appropriate, on the clear basis that such a recital

does not give rise to a right to costs that would not otherwise exist.

129. Conditions 1 and 3 provide:

“Conditions

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

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

particulars received by the planning authority on the 25th day of February, 2022, the 10th

day of June, 2022 and by An Bord Pleanala on the 26th day of September, 2022, except as

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

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

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

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

agreed particulars.

Reason: In the interest of clarity.

3. The mitigation measures identified in the Environmental Impact Assessment Report,

the Natura Impact Statement and other plans and particulars submitted with the planning

application and appeal shall be implemented in full by the developer, except as may

otherwise be required in order to comply with the conditions of this permission.

Reason: In the interest of clarity and the protection of the environment during the

construction and operational phases of the proposed development.”

130. These clearly have the effect that the development is conditioned in accordance with the

documentation submitted with the application. This includes the agreement to a condition requiring

CPPAs as set out in para. 4.48 of the John Spain Associates response document. The absence of an

express condition doesn’t nullify that.

131. This is such a central point that it shouldn’t be open to even unreasonable doubt, so I am

going to include a recital in the order to clarify it. That does not create any costs implications that

would not otherwise exist.

132. The pleaded claim that conditions 1 and 3 couldn’t have the effect of rendering the grant of

permission consistent with the matters referred to in s. 15, when viewed in the light of what was

put before the decision-taker, misunderstands the correct procedure and the spectrum of options as

set out in Coolglass.

Sub-grounds 67 to 71 (issue (j)) – reasons

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

“(j) Failure to provide reasons and failure to take account of submissions

194. The first named Applicant drew the attention of the Commission to the flawed and

inaccurate nature of the information provided by the Notice Party, in an extremely detailed

further submission. Dr. Doyle holds a BA (mod) in Physics, an MSc in Physics, a Postgraduate

Diploma in Environmental Pollution, and a PhD in Climate Science. He has over twenty-five

years of experience in environmental science in Ireland, including consultancy in the

preparation of environmental impact assessments and emissions monitoring for a wide range

of industrial and commercial projects.

195. The following is a brief summary of the submission:

a) Critique of Environmental Impact Assessment (EIAR)

b) Failure to Address National Climate Targets

c) Misapplication of Assessment Standards

d) Inadequate Mitigation Measures

e) Unrealistic Assumptions on Renewable Energy and Biomethane

f) Impact on National Emissions and Renewable Targets

g) Contravention of Local Development Plan Objectives

h) Lack of Additionality in Renewable Energy Sourcing

196. Regarding further submissions from the appellants, the Inspector stated at p. 41:

‘The responses did not raise any new issues of substance.’

197. It is impossible to reconcile dismissal of the second submission of the first named

Applicant with the obligation of the Commission to perform its functions consistently with

the 2015 Act. Evident new issues of substance in the submission included a detailed critique

of the completely new climate assessment presented in the developer’s Appendix 3,

identification of serious new errors in the developer’s assessment, and fundamental flaws in

the claimed mitigation. The Commission was required, in order to demonstrate its obligation

of consistency with the 2015 Act, to engage with and address such an expert submission

critiquing the material placed before the Commission by the developer concerning the

matters upon which the Commission were required to be consistent with under the 2015

Act.

Commission’s Position

198. Reasons to the appropriate standard were given. This will be for the Court to

ascertain and the law is well known. Further, whereas the Inspector said responses did not

raise any new issues of substance, the key word here against the backdrop of what came

before is ‘new’. If the Court examines the extent of the information and submission during

the planning authority stage and on appeal, it can be seen that very clearly the issues were

joined. Indeed, the Applicants brought an Appeal to the Commission and the Notice Party

prepared a response to same and the Applicants were given a chance to respond to that.

There were no ‘new issues’ of substance. That does not mean the issues were not of

substance, but there was nothing new. There were responses and argument about the

points, but it is completely reasonable to have said nothing new in the context of the file

arose at this point.

199. Further, it is not correct that s.15 requires the Court to apply a standard requiring

issue by issue treatise of the submissions. Once the law on reasons is satisfied (and it was)

that suffices.

Developer’s Position

200. The applicable standard on reasons is well established. The decision must enable

the parties and the Court to understand what was decided and why it was decided: see

Connelly. There is no obligation to produce a point-by-point rebuttal of each submission,

nor to engage in an ‘issue-by-issue treatise’. Section 15 does not elevate the standard of

reasons beyond orthodox administrative law principles.

201. The Inspector’s statement that the further submissions raised ‘no new issues of

substance’ must be read in context. The key word is ‘new’. The climate issues were raised

at planning authority stage and advanced on appeal. They were responded to by the Notice

Party and replied to by the Applicants. The debate was already fully joined. The further

submission elaborated on existing arguments; it did not introduce a distinct, legally novel

issue requiring fresh analysis.

202. The qualifications of Dr. Doyle are not in issue. However, the weight to be afforded

to competing expert views is a matter for the decision-maker. The existence of a detailed

critique does not require a line-by-line rebuttal. The Commission was entitled to prefer the

EIAR and associated material before it.

203. The Applicants assert that consistency with the 2015 Act required express

engagement with each alleged flaw in Appendix 3. That is incorrect. The Board recorded

that it had regard to CAP 2023 and the Climate Act 2021 (which amended section 15(1)).

It assessed emissions and mitigation and reached a reasoned planning conclusion. Section

15 does not require a separate analytical appendix demonstrating mathematical

reconciliation with national targets.

204. There is no evidence that the submission was ignored. The Inspector expressly

referred to it. The fact that she concluded it raised nothing new does not equate to failure

to consider it. At its height, this ground amounts to disagreement with the weight afforded

to the Applicants’ critique. That is not a failure of reasons.”

134. We need to put the complaint about the response Dr Doyle’s submission in context.

135. The applicants have another try at litigation-by-snippet, and read the “no new issues”

comment as being a dismissal of major points of substance. But that is a grotesque misreading.

136. Section 6.0 of the inspector’s report deals with the appeals and responses, under the

following headings:

(i) 6.1 Third party appeals;

(ii) 6.2 Planning authority response No. 1 (to third parties);

(iii) 6.3 Applicant (for permission) response to third party appeals;

(iv) 6.4 Planning authority response No. 2 (to first party response); and

(v) 6.5 Further correspondence, described as “Further submissions were received from

the following Prescribed Bodies, Groups and individuals in relation to the Applicant’s

response to the grounds of appeal and the submission of additional technical

reports”.

137. By the time we get to stage (v) (which is where Dr Doyle’s allegedly trivialised document

comes in), the inspector has already set out 16 pages of summary of issues raised. Put in that

context, all she means by saying there are no new issues of substance is that the issues raised come

in under one or more headings already set out in the previous 16 pages.

138. The basic reason why this point fails is that the applicants are reading the decision in a way

that renders it unreasonable and invalid. But a valid reading is available – indeed a valid reading is

the obvious reading. What she means is that the points made in the fifth round of material come

within the headings (listed at enormous length) of issues raised in the first four rounds. There are

no new headings of substance that warrant a 17th page of points – it is screamingly obvious that

that’s what she means by no new issues of substance.

139. The applicants have not demonstrated that the commission acted unreasonably in that

regard or failed to give the main reasons on the main issues having regard to the law in that respect.

Sub-grounds 72 to 76 (issue (b) – irrationality regarding government statement

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

“(b) Failure to perform functions in a manner consistent with the 2015 Act

Applicants’ Position

20. Per the approach of the Supreme Court in Coolglass, planning permission for a

development that generates substantial GHG emissions and relies primarily on fossil fuels

cannot be regarded as consistent with the CAP in the absence of a clear demonstration by

the Commission of how consistency is achieved; or alternatively, a clear demonstration by

the Commission of why consistency was not practicable.

21. The Commission’s Inspector failed to make any determination as to what the actual

emissions from the proposed data centre (‘PDC’) would be. This failure is fatal to the legality

of the Decision. The Commission and Inspector cannot possibly demonstrate that the

Decision falls within the range of options that are consistent with Section 15(1) objectives

unless they first determine what the emissions actually are.

22. At full capacity, for which the Decision grants permission, GHG emissions from the

PDC would amount to 1.1% of the national ceiling for GHG emissions for 2030 from all

sectors, or 12.3% of the ceiling for GHG emissions for 2030 in the electricity sector. The

failure to determine actual emissions, in the face of such significant projected figures,

demonstrates that the Commission failed to conduct the analysis necessary to establish that

the Decision was within the range of options available to it.

23. Furthermore, even if it were sufficient, the proposed development is not consistent

with the Government Statement on the Role of Data Centres in Ireland – for example, the

Government Statement requires that developments ‘should provide clear additionality in

renewable energy delivery in Ireland’. Contrary to that principle, the Decision does not

require any additionality of renewables, nor any condition requiring a Corporate Power

Purchase Agreement that would create additional renewable energy.

24. The 2023 CAP says ‘In the short- and medium-term, new demand growth from large

energy users, such as data centres, will have to be moderated to protect security of supply

and ensure consistency with the carbon budget programme’. This was not addressed or

achieved by the Commission.

25. Nor is the Clare County Development Plan of any assistance to the Commission –

Objective CDP6.27 requires precisely the calculation of emissions, which is absent. The

Development Plan therefore explicitly contemplates that the assessment of climate impacts

and Section 15 compliance must be undertaken at the planning application stage for this

specific site. The presumption identified in Coolglass – that compliance with the

development plan will itself be compliant with the Section 15(1) duty – simply cannot apply

where the development plan itself requires an analysis of GHG emissions and climate impacts

to be undertaken at the application stage.

Commission’s Position

26. There are four separate arguments made here. To frame the Commissions reply,

they are set out with the Commission’s reply thereunder.

27. However, as a preliminary statement of the Commission’s position, the Commission

did not fail to act in a manner consistent with, in so far as practicable, s.15 of the 2015 Act

– including by reference to the CAP. The Applicants’ various contentions in this regard,

including by reference to the CAP, the Government’s Statement on the Role of Data Centres

in Enterprise Strategy (July 2022) and the Development Plan, are premised on a failure to

properly understand and apply the rationale of the Supreme Court in Coolglass to this case

and on a failure to acknowledge that the approach to the assessment of GHG emissions in

this case was one which was lawful and one which the Commission was entitled to accept.

As outlined in Coolglass, climate considerations are already woven into the planning process

– through, for example, existing policies and objectives, such as those contained in a

development plan. In this respect, the Supreme Court outlined (§112):

‘It follows that a planning authority is entitled to approach its task on a presumption

that any strategy or development plan adopted is consistent with climate objectives,

and that any decision consistent with such a plan and strategy will itself be consistent with

those objectives, and therefore in compliance with s. 15(1). That is so particularly having

regard to the range of outcomes implied by the concepts of consistency, and practicability.’

28. In this case there is no pleaded complaint that conformity with the Development

Plan is insufficient to achieve compliance with the requirements of s.15 of the 2015 Act –

this is noteworthy in circumstances where the Council, the Inspector and the Commission

all considered, in light of the evidence presented, that the development was in conformity

with the objectives in the Development Plan (which objectives expressly support the

development of a data centre).

29. As to the specific points set out by the Applicant:-

30. First, their case is stark and clear – ‘planning permission for a development that

generates substantial GHG emissions and relies primarily on fossil fuels cannot be regarded

as consistent with the CAP in the absence of a clear demonstration by the Commission of

how consistency is achieved; or alternatively, a clear demonstration by the Commission of

why consistency was not practicable’.

31. In reply, it is largely impossible to engage on the merits with the Applicants as the

premise of the case is simply that CAP23 is preclusive of the development because of how

the Applicant characterizes both the policy context and the process before ACP. Consistency

within the meaning of what is required as set out in Coolglass was demonstrated, permission

was granted, and the Inspector’s Report and Decision read in light of the material before the

Commission demonstrate this.

32. Second, they say the Commission’s Inspector failed to make any determination as

to what the actual emissions from the proposed data centre (‘PDC’) would be. This failure,

they say, is fatal to the legality of the Decision given.

33. In reply to this point, the Commission says this is effectively a species of a point

rejected many, many times by the Irish Courts. There is no case even made that the Notice

Party did not set out the actual emissions from the proposed development. They did in very

clear terms in (just to take one source) the AWN Report at, inter alia, Tables 6 and 7.

Neither the Inspector nor ACP disagreed over the projected emissions, all of which were

described and understood. The Inspector and ACP here clearly accepted the Notice Party’s

information and there is no need for ACP (on pain of a finding of non-

compliance/inconsistency with s.15) to recite that which it is accepting as a description of

the proposed development which it is assessing.

34. Third, they say ‘the proposed development is not consistent with the Government

Statement on the Role of Data Centres in Ireland – for example, the Government Statement

requires that developments “should provide clear additionality in renewable energy delivery

in Ireland”.’

35. In reply, even assuming that the Government Statement of the Role of Data Centre’s

in Ireland’s Enterprise Strategy requires a data centre development to offer ‘more’ renewable

energy back than the draw it will take, CAP 23 (as the Applicant itself says and relies on per

Section 12.1.3) speaks about energy matching not ‘additionality’ in the sense the Applicant

uses it here. Obviously, the Court will take into account the response to the CPPA point

made below, but in accordance with Coolglass, it is not just legally correct to read the

reference in CAP23 to the Government Statement of the Role of Data Centre’s in Ireland’s

Enterprise Strategy as mandating a CAP23 requirement that more-than-use is required. In

any event, insofar as the Applicant says the Government Statement of the Role of Data

Centre’s in Ireland’s Enterprise Strategy requires more-than-use, the concept of

‘additionality’ described therein refers to that arising ‘proportionate’ to the impact of energy

demand and can include repowering. The consistent reading of both policies together

indicates that the Government Statement of the Role of Data Centre’s in Ireland’s Enterprise

Strategy is speaking of matching impact, not requiring a more-than-use approach. In any

event, all of this is sub-tended by the Applicants’ case about CPPAs which is dealt with below.

36. Fourth, they say ‘the 2023 CAP says “In the short- and medium-term, new demand

growth from large energy users, such as data centres, will have to be moderated to protect

security of supply and ensure consistency with the carbon budget programme”. They

contend this was not addressed or achieved by the Commission.’

37. As to this, this is clearly a point in CAP23 taken into account in the preparation of

the CDP which carefully (in line with the Government Statement of the Role of Data Centre’s

in Ireland’s Enterprise Strategy) adopted a plan led approach to data centre development.

In any event, in terms of moderation of impact, this is built-into the development. It is

phased and no effort has been made by the Applicant to explain in its pleadings, submissions

or statement of case, how this aspect of CAP23 is said to be offended save citation at the

most generic level.

Developer’s Position

38. The Applicants’ submission that planning permission for a development generating

substantial greenhouse gas emissions ‘cannot be regarded as consistent with the CAP in the

absence of a clear demonstration of how consistency is achieved’ misstates both the

statutory test and the Supreme Court’s approach in Coolglass.

39. Section 15(1) does not impose a requirement that the Commission prove positive

consistency by way of quantified reconciliation against national ceilings, nor does it require

an express statement explaining why consistency was “not practicable”. The statutory

obligation is to perform the function in a manner consistent, in so far as practicable, with

the specified instruments. As the Supreme Court made clear in Coolglass, the Court’s task

is to determine whether the impugned decision falls within the “spectrum of possible

outcomes” that could lawfully be regarded as consistent (§78), not to require the decision-

maker to demonstrate mathematical alignment with national carbon budgets at project level.

40. The Applicants’ argument effectively converts section 15 into a project-level carbon

allocation regime. That is not what the Oireachtas enacted. Carbon budgets and sectoral

ceilings operate at national and sectoral level and are implemented through a suite of policy

measures. They are not transformed by section 15 into enforceable numerical caps

applicable to individual planning applications.

Alleged Failure to Determine ‘Actual Emissions’

41. The contention that the Inspector failed to determine projected operational

emissions does not reflect the record. The EIAR quantified projected operational emissions,

including worst-case scenarios. The AWN assessment (Appendix 3 to the appeal response)

modelled emissions on a conservative basis and expressly stated that hydrogen penetration

was not assumed in the calculations. The emissions figures relied upon by the Applicants

themselves are derived from the material before the Board. It is therefore untenable to

suggest that emissions were not determined.

42. What the Inspector did not do – because she was not required to do so – was to

treat those quantified emissions as a dispositive legal threshold. The assessment addressed:

(a) the projected emissions;

(b) the regulatory context, including EU ETS coverage;

(c) mitigation and efficiency measures;

(d) the adaptive capacity of the energy centre; and

(e) the broader planning and policy framework.

43. The Applicants’ reliance on the figures of ‘1.1% of the national ceiling’ or ‘12.3% of

the electricity sector ceiling’ illustrates the difficulty with their case. These percentages are

not statutory limits. Section 15 does not require the refusal of any development exceeding

a particular percentage of a sectoral ceiling. The statutory question remains whether the

grant of permission is consistent, in so far as practicable, with the CAP and the national

climate objective. The Inspector’s structured assessment addressed precisely that issue.

Alleged Inconsistency with the Government Statement on the Role of Data Centres

44. The Applicants’ reliance on the Government Statement on the Role of Data Centres

in Ireland is misplaced.

45. First, the Government Statement is not itself one of the instruments enumerated in

section 15(1). The statutory obligation concerns CAP 2023, the national long-term strategy,

adaptation framework, and the national climate objective.

46. Second, even taking the Government Statement into account, the Notice Party

demonstrated in the JSA Response to the Appeals that the principles set under the Statement

were met and, in particular, that the proposed development complied with the following

criteria:

(a) Mitigation of GHG emissions by entering long-term Corporate Power Purchase

Agreements … (CPPAs);

(b) compatible with renewable gas transition;

(c) incorporating energy efficiency measures (as set out at §90 of the Notice Party’s

Amended Statement of Opposition; and

(d) aligned with plan-led zoning for data centre development.

47. The Applicants’ submission that no ‘additionality’ was required overlooks the fact

that the mitigation commitments in the EIAR and appeal documentation formed part of the

material before the Board and were secured through the conditions attaching to the

permission. The fact that a CPPA condition was not framed in the precise wording suggested

by the Notice Party does not mean that renewable procurement commitments are absent.

Nor does the Government Statement create a legally enforceable additionality threshold as

a precondition to permission.

48. The Applicants reliance on the CAP 2023 statement that ‘new demand growth from

large energy users… will have to be moderated to protect security of supply and ensure

consistency with the carbon budget programme’ is misplaced. That statement is a policy

expression at national level. It does not constitute a prohibition on new large energy users.

CAP 2023 does not establish a moratorium on data centres, nor does it assign quantitative

allocations at project level.

49. The Inspector addressed security of supply, grid context, and energy strategy. The

development was assessed within the national electricity and regulatory framework,

including ETS coverage and EirGrid’s role. The Applicants’ argument again seeks to elevate

general policy language into a rigid legal rule.

The Development Plan and Objective CDP6.27

50. The Applicants contend that Objective CDP6.27 required a specific emissions

calculation which was ‘absent’. That is incorrect. The EIAR quantified emissions and

assessed climate impacts. The Development Plan objective contemplates precisely that such

analysis be undertaken at application stage, which is what occurred.

51. The presumption identified in Coolglass, that compliance with a lawfully adopted

Development Plan is ordinarily consistent with section 15, is not displaced merely because

the Plan requires climate assessment at project stage. On the contrary, the requirement for

such assessment reinforces the structured integration of climate considerations into the

planning code. The site was specifically identified for data centre use within the

Development Plan framework. That strategic zoning decision stands unchallenged. The

Commission was entitled to approach the application on the basis that the principle of data

centre development at this location had been determined at plan level, subject to detailed

assessment of environmental effects, which was carried out.

52. The Applicants’ case proceeds on the erroneous premise that any substantial GHG-

emitting project is presumptively inconsistent with section 15 unless accompanied by a

quantified demonstration of national budget compliance or project-level carbon neutrality.

That is not the law per Coolglass. When assessed through the lens identified in Coolglass,

the Decision plainly falls within the lawful spectrum of outcomes that could be regarded as

consistent, in so far as practicable, with section 15(1). The Applicants’ disagreement with

the evaluative planning judgment does not convert that judgment into legal error.”

141. The commission highlights the following from the inspector’s report:

“47. The Inspector also addressed the concerns raised by third parties regarding the

projected carbon emissions by reference to the proposed back-up generators – stating:

‘I note that varying estimates were submitted by the applicant and some of the Third Parties

in relation to the calculation of projected carbon emissions and/or savings for the project

relative to the various energy sources (incl. electricity, gas & diesel). As previously stated,

I am satisfied that the diesel-powered back-up generators would only operate in emergency

situations when there is a power outage. The proposed data centre would be connected to

the national grid via the Ennis 110kV substation to the W, and the on-site energy centre

would be connected to the natural gas pipeline to the E, however final approval to connect

to these utilities’ rests with the CRU, who will ultimately determine if adequate network

capacity exists.’

48. The Inspector concluded by stating that:

‘The proposed development, which would be located to the W of the Shannon and far away

from the Dublin metropolitan area and any other areas where there is a more intense

demand for data centres, would comprise a plan-led approach which complies with current

national, regional and local energy, planning and data centre locational policy.’

49. In relation to climate policies, the Inspector concludes that the data centre

development ‘would comprise a plan-led approach which complies with current national,

regional and local energy, planning and data centre locational policy’ (pg.49). In terms of

future gas supplies to the data centre development, the Inspector also noted (pg.57):

‘The on-site energy centre would be fuelled by natural gas via the nearby natural gas

pipeline, and it is possible that the 120:80 MW balance could shift in favour of the on-site

energy centre in the future. It is also anticipated that the energy centre would operate on

renewable gas supplies (incl. hydrogen & biomethane) depending on emerging technologies

at some stage in the future.’”

142. The overarching problem with this ground is that in the light of what was before the decision-

taker, the applicants have not demonstrated that the decision fell outside the range of options open

to the commission.

143. More specifically:

(i) It is not the law that planning permission for a development that generates

substantial GHG emissions and relies primarily on fossil fuels is automatically

precluded by s. 15. That said, such a situation does require the decision-taker to

validly arrive at a conclusion of either consistency or lack of practicability. The

applicants haven’t displaced the commission’s attempt to do that here.

(ii) It follows from the flexibility in s. 15 that a decision-taker is not mandatorily obliged

to quantify the amount of emissions from a development in every case. For example,

if no issue is raised in the process that requires such quantification, then a more

general conclusion may suffice. Or alternatively, if conditions are to be applied

requiring full mitigation or offsetting, then the actual quantum of emissions is not

legally determinative so there is no obvious need to engage in such quantification.

(iii) In any event, the notice party did quantify the emissions, in calculations which were

implicitly accepted by the commission. So any point about a duty to quantify doesn’t

arise in the present case.

(iv) The applicants are conveniently reading CAP23 as being more prescriptive than it in

fact is. As the commission submits, “even assuming that the Government Statement

of the Role of Data Centre’s in Ireland’s Enterprise Strategy requires a data centre

development to offer ‘more’ renewable energy back than the draw it will take, CAP

23 (as the Applicant itself says and relies on per Section 12.1.3) speaks about energy

matching not ‘additionality’ in the sense the Applicant uses it here”. That opens up

potential options on the spectrum which the applicants haven’t shown to be

exceeded here, based on what was before the decision-taker.

(v) This conveniently over-determined reading also applies to the moderation issue. The

statement in CAP23 regarding moderation of large energy users is too general to

warrant quashing the permission here, but in any event is a good example of a

climate principle “woven in” at a programmatic level, because the CDP here adopts

a firmly plan-led approach to data centre development at the development site.

EU law issues

Core ground 6 – EIA and the potential derogation licence

144. Core ground 6 is:

“6. The Data Centre Decision and the Substation Decision are invalid as the Board failed

to consider adequately or at all the environmental effects of the proposed development on

the environment in terms of impacts on bat fauna for the purposes of the EIA assessment

carried out by the Board and/or had no objective information before it to support a conclusion

of no significant effects on the environment for the purposes of the Board's EIA assessment

and/or impermissibly granted development consent prior to a decision granting a derogation

licence authorising bat roost removals and/or disturbance to bat species, further particulars

of which are contained below.”

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

“Core Ground 6 – Derogation

Applicants’ Position

205. There is no subjective or discretionary circumvention for the established legal

position that where a bat roost was identified in building 6C, a derogation licence must be

obtained by the developer, in advance of consent being granted.

206. Reliance in this regard is placed on the explicit finding of the Court of Justice of the

European Union in Namur Est (Case 463/20) that where a Member State confers power to

assess some of the environmental effects of a project and to take a decision upon the

conclusion of that partial assessment on an authority other than the one on which it confers

power to give development consent for the project, that decision must necessarily be

adopted before development consent is given (as concurred by Advocate General Medina in

her Opinion in O’Donnell v An Bord Pleanala (Case C-58/24) (delivered 11th September

2025).

207. Mr Clarke’s Affidavit sworn on behalf of the Developer helpfully makes this clear. He

says:

‘In reply to paragraph 28, I say and believe that planning permission and derogation

licensing are distinct processes under Irish law. It is my professional opinion that no works

can lawfully proceed without derogation, but that the absence of a licence at the date of

decision does not invalidate the permission. If the results of subsequent surveys require a

derogation licence to be obtained, the planning permission cannot be implemented in the

absence of same, meaning that no interference with roosting sites can occur unless or until

a bat derogation licence has been obtained.’

208. This contrives to ignore both that a derogation licence certainly was required prior

to the grant of planning permission as a result of an identified loss of a bat roost but also,

most particularly, this is precisely what the CJEU has identified as incompatible with the

requirements of the EIA Directive – the whole point is that no assessment of the

environmental effects is possible unless that assessment is made as part of the development

consent process and not post hoc as advocated by Mr Clarke.

209. There is no doubt that the Commission’s decision is incompatible with Namur Est.

The Commission, to its credit don’t seriously suggest that it is. This would be true if the

derogation licence requirement was limited to the roost in Building 6C but is irresistible in

circumstances where the Developer clearly could have, but opted not to, carry out the

relevant surveys in respect of other trees which may or may not contain roosts that are

specially protected for the purposes of Article 12. Rather it will carry out those surveys and

apply for any necessary derogation licences only after the development consent process has

concluded. This may suit the Developer’s purpose but it is a blatant breach of European law.

210. As pointed out by AG Medina in O’Donnell part of the rationale for the derogation

pre-ceding the grant of planning permission is to benefit developers by finding out at an

early stage whether they need to modify their development or whether it can go ahead at

all. The Developer chose not to apply for this determination in advance and therefore should

live with the consequences of its choice.

Commission’s Position

211. Their point is a derogation licence was required, by law, to be in place before ACP

could grant planning permission.

212. There are two responses to this point which the Applicant says is ‘unanswerable’.

213. First, it is not a proper reading of the Notice Party’s material to say a derogation

licence was necessary. In this respect, the Court’s finding of fact is very clear at paragraph

84(ix) which includes findings of fact which is that a single roosting bat from March 2022 is

‘almost certainly’ not to be at the same location if the development were to happen now.

The Notice Party’s material was clearly saying that whereas no roosting had been seen in

Building 6C at one point, a bat was seen in a crack at a later point and that insofar as a

derogation licence would be needed if it arose when the time came, it would – by law - have

to be sought.

214. To deal with this the Applicants have filed an affidavit from Mr. Marchant seemingly

in reply to the Court’s judgment, to urge the thesis that ‘once a roost always a roost’. In

this respect, the Court’s finding of fact is very clear at paragraph 84(ix) which includes

findings of fact which is that a single roosting bat from March 2022 is ‘almost certainly’ not

to be at the same location if the development were to happen now. In any event, leaving

aside how this deponent can swear as to what is ‘inferred’ into Regulation 51(2) of the EC

(Birds and Natural Habitats) Regulations 2011 (as amended), the very CJEU judgment he

relies on (IE v Magistrat der Stadt Wien Case C‑477/19) to ground that inference doesn’t

actually support the point he makes. The very paragraphs cited say that protection extends

to once but no longer occupied resting places ‘where there is a sufficiently high probability

that that species will return to such places, which is a matter for the referring court to

determine.’ The Court has already determined that probability doesn’t exist and Mr.

Marchant, choosing to deploy his expertise to aver about law, doesn’t actually make any

averments about this probability and this whole point falls away as a result. In short, the

way the Applicant has chosen to join issue with the Court over its findings, shows that the

Applicant accepts that a former roost can only be viewed as ‘still’ a roost if there is a

‘sufficiently high probability that that species will return to such place’ and that isn’t the case

here.

215. Second, more fundamentally, the case made completely misunderstands Namur Est

(Case C-463/20). In Namur Est (Case C-463/20) what was at issue was a single permit

which, if granted, authorised a predicted (and certain) disturbance. In Ireland it has …

always been accepted that a grant of planning permission cannot authorise what is otherwise

Article 12 harm, so the whole issue that arose in Namur Est just doesn’t arise in Ireland

because the harm-of-concern (i.e. Article 12 harm) is never authorised by a grant of

permission (see e.g. Redmond v An Bord Pleanála [2020] IEHC 151). That was the whole

problem in Namur-Est being that the single permit system would permit the harm. The

secondary problem arises due to the consequences of this – i.e. that if an Article 16

derogation was obtained first, the CJEU was alert to that foreclosing any debate under the

EIA banner about the relevant impact. Hence the CJEU was keen to point out, in effect, that

EIA remains supreme. Again, feeding all that back into the Irish system and the case here

one sees the reverse of Namur – i.e. you see a developer predicting a possible (even if

movable) impact, describing it as part of the EIA process (and not screening out EIA because

harm is avoided via a derogation licence). Indeed, that would enable the planning decision

maker – if it felt this was just too prejudicial – to even refuse permission for any works

remotely connected to the candidate-harm (i.e. in a given case where it is just too concerning

to even permit it, thus avoiding the harm and the derogation) which is precisely the sort of

inclusion-in-the-EIA which the CJEU was concerned to secure with its judgment. Indeed,

whereas the Applicant says all this is ‘unanswerable’ one can see it even in AG Medina’s

summary of the case in the later opinion in Case C-58/26 O’Donnell v An Bord Pleanala. In

the passage highlighted by the Applicant the AG pointed out how the CJEU concluded that

an Article 16 derogation can only be viewed as a partial assessment or preliminary decision

because, of course, the point was that EIA is supreme. Derogation is required first to enable

those identified effects be properly considered in the EIA process. Where everything is

considered in the EIA process, this just doesn’t arise. The concern of the CJEU in these

cases is to ensure that actual intervention is not permitted before derogation can be sought,

while, at the same time, ensuring that this doesn’t foreclose aspects of the EIA process.

And, in this respect, Ireland fares quite well. No intervention is permitted by planning

permission and certainly in this case, the issues were all out there for public comment and

participation for those who were concerned which, of course, doesn’t include the Applicants

as they weren’t concerned enough to make it. In short, Namur-Est says you can’t authorise

Article 12 harm before you’ve gone through the Article 16 process. Nothing of the sort

occurs in the Irish legal system as guarded by the jurisprudence of the High Court. Planning

permission simply doesn’t do this, and it's pretty simple and not remarkable to say in Ireland

you don’t have development consent (i.e. an ability to execute the project) until you have

all relevant consents.

216. In any event, the Court doesn’t need to address the second point, because the

Applicants here simply fail on the facts.

Developer’s Position

217. The Applicants raised no complaints about the matters which subtend Core Ground

6 during the planning process. The Notice Party says that this disentitles them to pursue

the issues raised now. The following is without prejudice to that position.

218. The Applicants’ case proceeds on the assertion that a derogation licence was

definitively required prior to the grant of permission. That is not borne out by the evidence.

As found by the Court in Doyle (No. 1) at §84(ix), the single bat observed in March 2022

was ‘almost certainly’ not going to be at the same location at the time of implementation.

The ecological evidence was that bats are highly mobile and frequently switch roosts.

219. Accordingly, it was not established that Article 12 harm would inevitably arise.

Furthermore, it was not established that a derogation licence was certainly required at the

date of decision. The position was conditional and contingent upon future surveys. That

factual finding is dispositive.

220. The Applicants now attempt to circumvent that finding by advancing a ‘once a roost,

always a roost’ theory. However, as recognised in IE v Magistrat der Stadt Wien (C-477/19),

protection extends to formerly occupied resting places only where there is a ‘sufficiently high

probability’ of return. The Court has already determined that such probability does not exist

on these facts. The Applicants’ expert affidavit, sworn by Mr Marchant, who was not

deployed as an expert in the planning process, does not establish otherwise. The premise

of automatic ongoing roost status therefore fails.

221. The Applicants fundamentally misread Namur Est (C-463/20). In Namur, the issue

arose because a single integrated permit would authorise certain disturbance of protected

species and the derogation decision operated as a partial environmental assessment outside

the EIA framework. The CJEU’s concern was to ensure that Article 12 harm is not authorised

before Article 16 assessment and EIA is not fragmented or bypassed. That situation does

not arise in Ireland.

222. Under Irish law, planning permission does not authorise Article 12 harm. Any

disturbance without derogation would constitute a criminal offence (see Redmond).

Implementation cannot proceed without all necessary consents. There is no ‘single permit’

system authorising protected harm.

223. The updated EIAR identified the single Leisler’s bat roost in Building 6C. It assessed

the environmental implications of its disturbance. It provided mitigation and recognised that

a derogation would be required if Article 12 harm arose at implementation stage. Thus, the

environmental effects were assessed within the development consent process. Nothing was

postponed ‘post hoc’.

224. Namur-Est does not establish a rigid rule that any possible need for derogation must

be resolved before planning permission. It establishes that where disturbance is certain and

authorised by the development consent, derogation must precede consent. Here

disturbance was not certain, harm was not authorised and the derogation regime remains

fully operative prior to works, with an entire brake on the permission being implemented

until a derogation licence is required, if found to be needed.

225. Even if the Court were to consider the sequencing issue abstractly, it need not do so

here. The Applicants fail because it was not established that a derogation licence was

definitively required at the time of consent and the Court has already made clear factual

findings on this point in Doyle (No.1).

226. Accordingly, Core Ground 6 discloses no incompatibility with EU law and no error of

law in the grant of permission.

227. Even if, contrary to the foregoing, it were established that an error arose in

conducting the EIA prior to the obtaining of a derogation licence, the Court retains a

discretion as to relief. On the uncontradicted ecological evidence before the Board, including

the conclusion that no significant adverse effect on bat populations would arise, subject to

mitigation and compensatory measures, any such error would be harmless and immaterial

in its practical effect. In those circumstances, and applying the proportionality principles

recognised in Save Cork and Pembroke Road, it would be neither necessary nor appropriate

to quash the decision.”

146. The basic reason why this point fails is that as explained in the No. 1 judgment by reference

to the notice party’s evidence, Bats are highly mobile. The once-a-roost-always-a-roost argument

impermissibly put forward by Mr Marchant comes one module too late. Modularisation is not a

mechanism for a party to “attempt to use module 2 to confound the court’s findings in order to

mend its hand to improve its chances on appeal” (as phrased in a submission quoted by Egan J. in

Webster v. Meenacloghspar (Wind) Ltd [2025] IEHC 587 (Unreported, High Court, 31 October 2025)

(see also Rural Residents (I) [2025] IEHC 600 at 137).

147. But even if that affidavit had been put forward originally, the argument is unfounded. All

there is is a possible need for a derogation licence, not a probable need. Admittedly the developer’s

EIA material originally was phrased in unconditional terms about derogation being required – but

that goes back a long way and we have had further evidence and debate on the matter since then

culminating in a finding in the No. 1 judgment in that regard. The judgment of 6 July 2023, Hellfire

Massy Residents Association v An Bord Pleanála and Others, C-166/22, ECLI:EU:C:2023:545 only

comes into play when we cross the threshold of probability. So I don’t need to consider the

commission’s argument that the Irish system does not render the absence of a derogation licence

fatal to EIA. That argument might even have required a further reference had it been decisive but

for the reasons explained there is no factual basis for that – we don’t get to that point here because

there is realistically zero chance of our bat still being in the crack in the wall in Building 6C, or indeed

of any of the bats being where they were when surveyed years ago. Bats typically remain in specific

locations for periods measured in days, not weeks, months or years. It is up to the applicant to

show that a derogation licence is probable as opposed to possible. They haven’t demonstrated that.

So the commission’s further defence is academic.

148. If I am wrong about everything else under this heading, I would be provisionally inclined to

exercise discretion against the applicants due to their having participated in the process and having

totally failed to make any submissions regarding the bat roost. However I appreciate that that would

raise some more general and possibly even referrable issues so I would prefer not to make any

definitive finding unless it were necessary to do so.

Summary

149. From the notice party’s perspective these proceedings have merely brought about delay and

uncompensatable financial prejudice. Obviously I sympathise with that point of view. From the

applicants’ perspective, the bringing of the proceedings has been the lawful expression of an urgent

and principled desire to take personal responsibility for addressing the climate emergency in a

context where across the world institutions have failed to meet the crisis with anything like the

radical action required. I sympathise with that point of view also. Despite the outcome, the

applicants’ efforts have not been entirely in vain as a careful reading of the judgment should indicate.

The practical albeit to an extent obiter takeaway in that regard is that the primary responsibility is

on planning decision-takers to appropriately scrutinise projects causing net emissions, and on the

OPR, as the only institutional actor meaningfully able to take the initiative in this respect, to ensure

that individually and independently adopted city and county plans are woven together with national

goals and instruments into a coherent and climate-objective-compatible whole.

150. 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, certain of the applicants’ issues are not properly

pleaded as set out in the judgment;

(iii) it is settled law that, apart from autonomous-type obligations, material capable of

sustaining the point must have been properly before the decision-taker at the

relevant time such as to give rise to a duty to consider it, and in particular the

extent to which climate issues were raised in the process is of major

importance, such that a failure to raise such issues may have the effect of limiting

the obligations on the decision-taker and correspondingly limiting the scope for relief

to be granted by the court;

(iv) applying such law to the facts here, the applicants’ failure to raise some of the

pleaded issues in the process (as set out in the judgment) makes it implausible and

inappropriate to grant relief on the basis of alleged failure to observe the duties

imposed by the 2015 Act on the basis of those issues, in circumstances where there

was a clear engagement with the autonomous duty under the 2015 Act;

(v) it is settled law that the applicant must have discharged the onus of proof to

establish all facts necessary for relief and to demonstrate that the performance of

the functions of the relevant body falls within outside the spectrum of possible

outcomes that could be said to be consistent, in so far as is practicable, with the

objective of s. 15, bearing in mind that much of the policy is phrased at a

general level;

(vi) applying such law to the facts here, the applicants have not discharged that onus

here, and have misread policy documents as being mandatory and prescriptive when

on a proper reading they are flexible;

(vii) it is settled law that a decision should be read as valid and as making sense where

such a reading is reasonably available;

(viii) applying such law to the facts here, this decision is capable of being read as valid

and rational;

(ix) it is settled law that a general condition that the development be carried out in

accordance with the plans and particulars submitted includes any specific

documentation submitted by the developer during the process;

(x) applying such law to the facts here, the agreement to power the project with

renewables via CPPAs is included in the general condition;

(xi) it is settled law that a derogation licence should be obtained before a development

consent if derogation is probable as opposed to being a mere possibility; and

(xii) applying such law to the facts here, the applicants haven’t shown that a derogation

licence here is more than a possibility.

Order

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

(i) the proceedings be dismissed;

(ii) there be a recital in the order noting that by consent of the notice party and the

commission, the court is satisfied that conditions 1 and 3 collectively have the effect

that the development is conditioned in accordance with the documentation

submitted with the application which therefore has the effect of requiring CPPAs as

set out in para. 4.48 of the John Spain Associates response document;

(iii) unless any party makes any consequential application otherwise by the time and in

the manner set out below, the foregoing order be perfected forthwith thereafter on

the basis of no order as to costs (including no order as to the costs of any previous

module or application in the proceedings having regard inter alia to O. 103 r.

38(1)(b) and/or (c) RSC, or any reserved or adjourned costs not otherwise dealt

with);

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

perfected immediately following the mention date below unless consequential or

contrary written legal submission are filed by that time, with replies by other parties

within a similar period thereafter;

(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; and

(vi) the matter be listed at 09:30 on Thursday 19 March 2026 to confirm the foregoing.