High Court dismisses appeal certificate application as it fails statutory thresholds and reargues facts.

[2026] IEHC 174

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001283]

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

ACT 2000 AND IN THE MATTER OF PART 9 OF THE PLANNING AND DEVELOPMENT ACT

2024

BETWEEN

SHEILA HOCTOR, PATRICK CARNEY, JOHN DOOLEY, MICHAEL MAHON, AND REGINA

HOCTOR

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

CARRIG RENEWABLE ENERGY LIMITED

NOTICE PARTY

(No. 2)

Date of impugned decision: 30 June 2025

Date proceedings commenced: 25 August 2025

Date of principal judgment: 10 February 2026

Date of leave to appeal hearing: 12 March 2026

Date draft judgment circulated: 13 March 2026

JUDGMENT of Humphreys J. delivered on Friday the 20th day of March 2026

1. In Waltham Abbey Residents Association v. An Bord Pleanála [2022] IESC 30, [2022] 2

I.L.R.M. 417, the Supreme Court made the point that the planning regulations, like law generally,

must be given a workable interpretation. The applicants don’t now argue that there can never be

design flexibility allowed by a planning decision-taker, but major on the theoretical argument that

legislation can impose precise requirements that don’t allow for such flexibility in relation to

particular matters. In one way that stance is no surprise because a conclusion along those lines is

in effect a logical corollary of the view expressed by the Supreme Court in Boland v. An Bord Pleanála

[1996] 3 I.R. 435 that conditions imposed in a planning permission may afford a certain limited

degree of flexibility having regard to the nature of the matter, the extent of permissible flexibility

being effectively a matter for case-by-case consideration. The principal judgment merely applied

the foregoing to the particular facts of this case. There isn’t anything new, let alone revolutionary,

about such an approach. So the question is whether this renewable energy project, which was held

to be acceptable by both the inspector and the commission and which has survived an extensive

challenge on 133 grounds as set out in the principal judgment should now be subjected to further

delay on the basis of fairly artificial questions which have little or nothing to do with the logic of the

judgment sought to be appealed against. The impressive esprit d’escalier ingenuity of the applicants,

relying on a multitude of points and authorities not argued at the substantive stage, does not provide

a basis for pursuit of appellate procedures. As Clarke J. said in Ambrose v. Shevlin [2015] IESC 10

(Unreported, Supreme Court, 5 February 2015) at 4.21, most recently quoted by Hogan J. in Cave

Projects Ltd v. Gilhooley [2025] IESC 3 (Unreported, Supreme Court, 28 January 2025) at 28, “a

trial in the High Court is not a dress rehearsal”.

Judgment history

2. In Hoctor v. An Coimisiún Pleanála (No. 1) [2026] IEHC 65 (Unreported, High Court, 10

February 2026), I dismissed the applicants’ claim for certiorari and granted declaratory relief in

respect of core ground 6. The applicants now seek leave to appeal.

Procedural history

3. The draft substantive judgment was circulated on 27 January 2026. Following the formal

delivery of the substantive judgment, the notice party circulated draft directions proposing

applicants’ submissions by 27 February 2026. The applicants ultimately delivered legal submissions

seeking leave to appeal dated 5 March 2026 but not uploaded until 11 March 2026 (the applicants

may possibly have been under the misapprehension that filing the submissions would bring them to

my attention – that is not the case because the Central Office file remains in that office and it is

instead the upload to the ShareFile platform that makes the judge concerned aware of any given

item). The opposing parties delivered replying submissions on 11 March 2026. The matter was

heard on 12 March 2026.

4. Judgment was reserved at the end of that hearing. I would like to record my thanks to all

of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have

previously sought to make clear, insofar as any points advanced are not being accepted in this or

any other given judgment, that is solely to do with the inherent merits of such points and is no

reflection on those instructed to convey such points, a distinction that most certainly should be, and

I believe generally is in fact, self-evident to all concerned.

5. On 13 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.

6. 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:

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

issues;

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

both modes;

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

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

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

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

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

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

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

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

party considers could beneficially be decided;

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

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

for; and

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

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

reason.

7. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the expiry of the 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).

8. 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.

9. The deadline for such comments from the parties was to be 16:00 on 18 March 2026. The

commission and notice party had no comments. The applicant, contrary to the request referred to

above, did not reply by the deadline.

General principles on leave to appeal

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

for the grant of leave to appeal are as follows:

(i) The point must properly arise

i. The question must fall within the pleadings: Concerned Residents of

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

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

J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ.

concurring). The issue of whether a point falls within the pleadings, as

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

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

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

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

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

misinterpreted the decision of the Board granting the permission in

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

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

alleged misinterpretation of a specific administrative decision will usually

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

While the presumption of validity attaching to administrative decisions

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

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

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

of public importance”.

ii. The question must actually arise on the facts and should not be

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

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

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

iii. The question raised must actually have been argued by the would-be

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

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

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

iv. While not an absolute rule, the question should be determinative in some

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

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

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

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

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

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

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

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

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

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

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

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

who represent themselves, prefer the comfort of focusing exclusively on

the debatable ruling or judicial comment reinforcing a sense of grievance

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

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

v. The question must accurately reflect the judgment and must not be

an addition, exaggeration or distortion launched for the purposes of

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

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

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

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

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

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

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

amount to a matter of general public importance”.

vi. The application for leave to appeal should be made within time,

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

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

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

vii. The question should be specific and should identify something specific that

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

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

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

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

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

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

(ii) The point must be one of law

i. The point cannot be an essentially factual question such as construing

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

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

ii. Relatedly, the question should not be one of application of law to

particular facts but rather one of the substance, content and

interpretation of law. Questions about the application of established

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025).

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

i. The question must not be fact-specific arising in the particular context

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

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

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

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

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

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

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

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

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

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

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

administrative decision will usually be case specific and will not present

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

attaching to administrative decisions represents an important legal

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

any uncertainty and the application of the presumption to a particular

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

ii. Advancing the proposed question should resolve doubt rather than

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

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

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

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

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

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

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

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

interest suggests an appeal is not warranted”.

iii. The application for leave to appeal should engage with the rationale of

the judgment being appealed against and provide a plausible basis

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

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

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

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

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

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

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

2025).

iv. The fact that an official body is seeking leave to appeal is a relevant factor

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

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

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

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

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

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

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

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

caselaw.

v. The fact that a point is “novel” is not determinative as to whether a point

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

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

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

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

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

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

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

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

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

vi. The mere inclusion of a request for a reference to the CJEU does

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

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

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

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

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

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

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

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

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

(iv) The public importance must be exceptional

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

it must also be established that the importance is exceptional.

(v) An appeal must be in the public interest

i. The context is the objective of the Oireachtas in seeking finality, certainty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in these proceedings”.

ii. Any assertion of problems in practice caused by a judgment must be

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

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

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

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

argument that alleged uncertainty in the law was creating alleged

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

evidence before the High Court that the quarry industry was being

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

do not meet the necessary criteria.

The proposed questions of alleged exceptional public importance

12. The applicants’ proposed questions are as follows:

(i) “Is design flexibility in a development where the height can vary between 5.5 metres in

terms of total height, 5 metres in terms of hub height, and where the blade diameter

can vary within 14 metres, and where there are multiple variations possible within and

between each of the turbines, consistent with or contrary to Articles 17, 18, 19, and in

particular Articles 22 and 23 of the Planning and Development Regulations, 2001, and

is a breach of the requirements in respect of a provision that is required to be complied

with a matter that goes to jurisdiction or can such departures be treated as de minimis?”

(ii) “Where it can be shown that there is non-compliance with a requirement of Articles 17,

18, 19, 22 and 23, is there any obligation on the Applicants to adduce evidence of a

planning issue, or is it for the person seeking to be excused from the requirements of

the Planning and Development Regulations, 2001, to adduce evidence that no planning

issue can arise from the said departures?”

(iii) “Is ‘evidence’ for the purposes of paragraph 57.12.i of the Judgment of the 10th of

February 2026 met by assertions by the Applicants that as the design submitted entail

a multiplicity of options arising from different heights (both in respect of overall height,

hub height and height of rotor blades above ground level) within an individual turbine

and as between turbines such that it was asserted that it was impossible to make

submissions or have assessed the effect of the proposed development on landscape and

visual amenity, on noise vibration, shadow flicker, on the effect of avian impacts and/or

residential amenity, a ‘genuine planning issue’ for the purposes of the said paragraph of

the Judgment?”

Do the points properly arise?

13. The only possible answer to whether these points properly arise is that unfortunately they

do not. They are points somewhat reconfigured after the event based on the false premise that

there was non-compliance with the planning regulations.

14. What I said in the principal judgment was that the planning regulations do not prohibit

reasonable design flexibility that does not create a planning issue. The applicants don’t provide any

particularly plausible argument to contradict that other than by making the theoretical point that

such flexibility can be excluded by particular legislative provision. Thus, rather than object to the

entire principle, they postulate that the flexibility here was unreasonable and/or precluded by the

regulations. They also inferentially suggest that I disregarded a breach as being de minimis but of

course I didn’t do that. My comments on discretion were obiter, “fall-back” (para. 115) and

“counterfactual[l]” (para. 116) and in any event were not based on a de minimis argument as such.

Insofar as the applicants suggest that the design flexibility here was unreasonable, they didn’t prove

that at the hearing. Insofar as they suggest that the onus was on the opposing parties to prove that

the flexibility was reasonable, that isn’t how the onus of proof works, and reframing the issues as

opposing parties having to prove that a “breach” should be excused is a classic case of begging the

question – if there is permissible flexibility and if the decision came within that then there is no

breach. Insofar as the applicants now say that the planning regulations exclude flexibility, I rejected

that reading based on the need for a workable interpretation as decided by the Supreme Court

Waltham Abbey Residents Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417.

The applicants haven’t meaningfully engaged as to why that is wrong.

15. The notice party correctly states the position at para. 7 of submissions:

“7. It is respectfully submitted that, where the Applicants’ certificate application is

premised on a clear misreading of the Judgment, it is not necessary for the Court to consider

the matter further and this application should be refused.”

16. One small final illustration of this misreading problem is the fact that the applicants seize on

alleged problems with para. 57 of the judgment – but that merely sets out the parties’ submissions

(in inverted commas), not my findings.

Are the points ones of law?

17. The first and third questions are not points of law in any meaningful sense but rather relate

to the application of law to particular facts.

18. Squint hard at the second question and perhaps it is a question of law – but of course a

question of law that has little or nothing to do with the principal judgment:

(i) there was no showing of non-compliance with the regulations, as incorrectly

premised; and

(ii) in the absence of such a showing, there can’t be anything incorrect about referring

to the onus being on an applicant to adduce evidence of there having been a planning

issue.

Are the points of public importance?

19. The points are not of public importance because the question of whether design flexibility

creates a planning issue for a specific project will vary from case to case and by reference to

particular evidence. Such points are not susceptible to a general answer in the way incorrectly

postulated by the questions.

20. Insofar as there is an artificially manufactured claim of inconsistency with other

jurisprudence, there is no such inconsistency. The applicants’ original submissions made the bald

claim that a “precise and concluded design” is a “condition precedent for the making of an

application” (§39). The notice party – not the applicants – relied on Sweetman v. An Bord Pleanála

XVII (No. 1) [2021] IEHC 390 (Unreported, High Court, 16 June 2021) and Sweetman v. An Bord

Pleanála XVII (No. 2) [2021] IEHC 662 (Unreported, High Court, 26 October 2021) as supporting

the concept of reasonable design flexibility – cases that I didn’t expressly discuss in the principal

judgment as they did not seem to be in doubt, but that the applicants now seize on for the purpose

of a contrived claim of legal conflict. But there is no such conflict. Those cases and the principal

judgment are all totally consistent with the concept of the permissibility of reasonable design if it

does not create a planning issue.

21. Insofar as conflict is alleged by reference to Krikke v. Barranafaddock Sustainability

Electricity Limited [2019] IEHC 825 (Unreported, High Court, Simons J., 6 December 2019), this

related to a different context but in any event no conflict is apparent in the light of the different

conclusions reached by the Court of Appeal [2021] IECA 217 (Donnelly J.), and the Supreme Court

[2022] IESC 41 (Hogan J. and Woulfe J.)).

22. Insofar as it is possible to find wind farm cases where deviation from a permission is held to

be material (e.g. Bailey v. Kilvinane Wind Farm [2016] IECA 92 (Unreported, Court of Appeal, Hogan

J., 16 March 2016)), such authority does not have the effect that a permission that expressly allows

flexibility is unlawful.

23. As noted above, and as the notice party emphasises, the approach to flexibility that does

not raise a planning issue is totally consistent with Supreme Court jurisprudence by reference to

“the analogous approach of Hamilton C.J. in Boland v. An Bord Pleanála [1996] 3 IR 435 at pp. 466

to 467 to conditions that leave a matter to be agreed between a developer and the planning

authority”.

24. If that wasn’t enough, the notice party also points out that “design flexibility is now expressly

addressed by the 2000 Act [n2: Section 32H to 32L of the Planning and Development Act 2000, as

amended, as commenced on 19 December 2023 by SI No. 645/2023], and any appellate decision

as to whether design flexibility was permitted under the PDR prior to those legislative amendments

would be of no relevance to future planning applications”.

25. Finally, the artificiality of the applicants’ points is demonstrated by the fact that the precise

argument now made is almost all new – if these were good points they, and the authorities now

relied on as central, would have been front and centre at the hearing. As the commission points

out:

“28. The claimed conflict of jurisprudence is a contrived issue. ... In addition, it is not

procedurally appropriate or acceptable for the Applicants to confect such a contrivance in

the context of this certificate application, in the context of impermissibly rearguing the merits

of aspects of Core Ground 1, when no such claims or arguments were made during the

course of the trial of the action itself.”

Are the points of exceptional public importance?

26. This does not arise given the foregoing.

Is an appeal in the public interest?

27. An appeal based on such an agglomeration of problems and false premises is not in the

public interest.

28. An appeal is clearly not in the public interest particularly having regard to the public interest

in infrastructure and renewable energy and to the non-compensatable financial prejudice to the

developer.

29. The project here was found acceptable by the inspector and the commission. The applicants

have also had a full hearing at trial level and in all of the circumstances there is no public interest in

further agitation of the applicants’ complaints given the statutory policy of finality.

30. As regards the imperative public interest in major infrastructure including particularly the

generation of renewable energy in the context of the climate emergency, I endorse the submission

of the notice party on this issue:

“46. Fourth, there are countervailing public interest considerations at issue. The

development is an onshore wind farm which, upon completion, will provide significant

renewable energy in line with local, regional, national and EU policy. In that connection, it

is directly relevant that EU law has recognised renewable energy projects as being in the

overriding public interest (see, e.g., the discussion in Carrownagowan Concern Group v An

Bord Pleanála [2024] IEHC 549, §86 et seq).

47. These proceedings have given rise to a significant delay in the development which

provides for important renewable energy infrastructure. Any appeal of the decision of the

High Court will inevitably result in further delay. As noted by McGovern J in Dunnes Stores

at §16, subsection 50A(7) is:

‘...designed to meet the public interest in having any issues dealt with expeditiously and

with certainty to ensure that major public infrastructural projects are not unnecessarily

delayed.’

48. This is a factor which should be taken into account in assessing whether the public

interest lies in the certificate to appeal being granted (see, e.g.: Rushe, §75) and which

weighs against granting leave to appeal on the points raised by the Applicants in these

proceedings.

49. Accordingly, for those reasons, the Notice Party submits that an appeal on the ‘points

of law’ raised by the Applicants in these proceedings is not ‘desirable in the public interest’.”

31. I also agree with the commission’s views on this issue:

“Public Interest

33. There is no public interest in appealing any of the points. The Applicants have failed

to establish how certification of any of the three points is in the public interest. No actual

affirmative public benefit or public interest has been identified or relied upon by the

Applicants in this regard. In this connection, the Applicants’ submissions consist of

reagitating already rejected arguments and a clear misinterpretation and failure to engage

with relevant findings in the High Court’s judgment. Where, as here, the law that was

actually applied by the Court in determining this particular case is not uncertain, the public

interest suggests an appeal is not warranted.

34. It is respectfully submitted that the public interest militates against allowing an

appeal, for the same reasons as set out in Carrownagowan (No.3) [2024] IEHC 549 at §83

to §92, and §93(vii). As the Court concluded in that case at §93(vii) and apposite here:

‘…the public interest militates against allowing further appeal - there is a significant public

interest, now legally enshrined in various ways, in the expeditious determination of the

lawfulness of renewable energy infrastructure, and an enshrined EU law provision affording

a presumed overriding public interest in the provision of such infrastructure in some

circumstances where that conflicts with the habitats directive, and in any event, the facts of

the present case are an extremely poor basis for a proposed appeal, given the lack of

evidence on crucial points.’

35. See also Massey (No.4) [2025] IEHC 309 at §29-§34, which is consistent with the

above and supportive of the Commission’s position herein that an appeal in the present case

is not in the public interest.

36. It is also not in the public interest to certify any of the three points, noting the point

made at Nagle View (No.2) [2025] IEHC 3 at §9(vii) (‘The nature of the project and the risks

of further delay are factors going to the public interest’).

37. Further, certain points made by the Court in refusing leave to appeal in Condon

(No.2) [2026] IEHC 136 at §63 and §64 apply equally to the present case (the latter

paragraph as regards workable interpretation of the law):

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

seems to “spread maximum confusion” (Hellfire Massy Residents Association v. An Bord

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

22 (Dunne, Woulfe, Hogan and Murray JJ. concurring)) is not in the public interest.

64. There is no public interest in “clarification” of law […] that has already been clarified by

the Supreme Court.’

CONCLUSION

38. There is no basis for leave to appeal in this case. The Applicants’ submissions in

support of this application fall short of asserting any point of law of exceptional public

importance.

39. This is a case where it merits recalling that the clear legislative intention is that

planning cases should generally be confined to the High Court. As noted by Barniville J. (as

he then was) in Rushe [2020] IEHC 429 at §24:

‘…as has been pointed out in many of the judgments … the clear intention of the Oireachtas

in enacting s. 50A was that, in most cases, the decision of the High Court on an application

for leave to seek judicial review of a planning decision or on an application for judicial review

of such a decision will be final and, in most cases, there will be no appeal. That is why s.

50A(7) was enacted.’

40. See also the observation of Holland J. in Monkstown Road [2023] IEHC 9 at §73

insofar as it emphasises the rare and exceptional nature of certification.

41. Further, the Applicants’ certificate application and the proposed points in substance

and reality relate to the application of clear and well-established principles to the particular

facts of the case and, as such, are not certifiable for appeal - as Holland J. made clear in

Monkstown Road [2023] IEHC 9 at §69.

42. This is a case where the High Court’s judgment on the application for judicial review

should be final.

43. For the reasons set out in these submissions, it is respectfully submitted that the

threshold under s.50A(7) has not been met and, accordingly, the Applicants’ application for

a certificate should be refused by this Honourable Court.”

Summary

32. Since the application fails to meet any of the cumulative preconditions for leave to appeal it

somewhat defies summary, but I think the commission encapsulates the overall position best in the

following:

“1. Is it appropriate for an appellate court to be asked to consider points that: (i) do not

arise from the High Court’s judgment; (ii) do not arise on the facts; (iii) amount to an

attempt to reargue fact-specific findings on which the Applicants failed; (iv) do not accurately

reflect the High Court’s judgment; (v) do not engage with the rationale of that judgment or

advance any plausible basis for contending that it is wrong; (vi) misapprehend the judgment

and the factual context; (vii) rely on unfounded assertions of conflict of jurisprudence and

uncertainty in the law; and (viii) are not in the public interest (noting the urgent need for

permitted renewable energy infrastructure in the context of the climate emergency, and the

Applicants' failure to identify any affirmative public benefit or public interest in certifying any

point). Having regard to the statutory criteria for leave to appeal, and the well-established

legal principles applicable thereto, the answer is ‘No’. Accordingly, the present application

for a certificate for leave to appeal should be refused by this Honourable Court.”

Order

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

(i) the application for leave to appeal be dismissed;

(ii) in the event that an application for leapfrog leave to appeal is made and acceded to

by the Supreme Court, the costs of the leave to appeal application be costs in that

appeal;

(iii) otherwise, there be no order as to the costs of the leave to appeal application;

(iv) in the event of an application for leapfrog leave to appeal within 28 days of the

perfection of the order, there be a stay on the execution of costs already ordered

until the final determination of the proceedings; and

(v) the foregoing order and the order already pronounced in the substantive judgment

be perfected forthwith with no further listing as the final order of the High Court in

the proceedings.