High Court dismisses leave to appeal on EIA exemption for solar farms, citing Supreme Court precedent.

[2026] IEHC 175

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001080]

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

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

DEVELOPMENT ACT 2024 AND IN THE MATTER OF AN APPLICATION

BETWEEN

SUSAN MOSS, ANNE HOEK, ANNE LACEY, FRANCIS PRENDERGAST, NED BARRON AND

PAUL DAVIES

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

LIGHTSOURCE RENEWABLE ENERGY IRELAND LIMITED

NOTICE PARTY

(No. 2)

Date of impugned decision: 20 May 2025

Date proceedings commenced: 14 July 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 Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28

(Unreported, Supreme Court, Murray J., 4 July 2024), the Supreme Court emphasised the consistent

jurisprudence that solar farms are not projects subject to environmental impact assessment (EIA)

and are not listed in Directive 2011/92/EU of the European Parliament and of the Council of 13

December 2011 on the assessment of the effects of certain public and private projects on the

environment (the EIA directive). The applicants have nothing to the contrary by way of

jurisprudence from Ireland, Europe or any specific European jurisdiction. Rather by a side-wind they

advance the implausible argument that solar farms must be EIA projects because they necessarily

involve internal access tracks. Again they come with nothing to support that by way of EU law-

related authority. The question therefore is whether there is any plausible basis for this point to go

further.

Judgment history

2. In Moss v. An Coimisiún Pleanála (No. 1) [2026] IEHC 62 (Unreported, High Court, 10

February 2026), I dismissed the proceedings. The applicants now seek leave to appeal.

Procedural history

3. Following the substantive judgment, the applicants delivered legal submissions seeking

leave to appeal, dated 9 March 2026. The opposing parties delivered replying submissions dated 11

March 2026, and 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 helpfully spotted a typo. The 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 question of alleged exceptional public importance

12. The applicants’ proposed question is as follows:

“Whether a road/track of 5.3kms comprising drainage channels, geogrid layers, sub-base

up to 200mm of compacted stone, 75mm of stone/tarmac of a width of 5.3 metres to 4.5

metres and extending to a length of 5.3kms is a road for the purposes of Class 10(dd) of

Part II of Schedule 5 of the Planning and Development Regulations, 2001?”

Does the point properly arise?

13. Unfortunately the point does not in fact arise. It tendentiously asserts that the project

involves a “road”/track – the reference to a “road” begs the question and contradicts the factual

conclusions of the substantive judgment. The question also incorrectly asserts that the track will be

finished in “stone/tarmac” which is contrary to the factual finding in the substantive judgment based

on the information provided by the developer during the administrative process that tarmac will not

be used.

14. The applicants’ sleight of hand in submissions is to argue that the matter must be assessed

by reference to the application “as made”. That is a conveniently illogical and unprincipled position.

The question for the court is whether the permission granted, prima facie lawfully, is unlawful

because of a breach of the EIA directive. Such a breach could only arise if the project as consented

required EIA. What was consented was the project as elaborated by the documentation produced

during the process – the same applies to any and all projects consented by any planning decision-

maker at any level. The logic of the applicants’ argument is premised on a necessary assumption

that a decision becomes invalid by reason of an alleged obligation on a decision-taker to disregard

information lawfully furnished during the process.

15. There is a vague but obviously unsubstantiated suggestion at para. 37 of the applicants’

submissions that the developer’s clarification was for the purposes of avoiding the need for EIA (the

applicants confirmed in submissions that they weren’t suggesting anything “untoward”). Obviously

an applicant has to prove any claim about any alleged irregular purpose for which something is done

by a developer, which these applicants haven’t done, and haven’t even attempted, and which they

don’t raise as an issue in the proposed question for certification. But even assuming counterfactually

that the developer’s clarifications were for the purpose of avoiding EIA, one has to ask what

difference that makes. A developer is perfectly entitled to configure a project to lawfully avoid the

applicability of particular legal requirements (as opposed to unlawfully evading requirements that

are in fact applicable). For example there would have been nothing wrong in selecting a certain

number of units or turbines to pitch a project below the SHD/SID threshold. The old tax avoidance/

tax evasion distinction may have become blurred in its original context but it remains a general

principle in law more generally. You can lawfully order your affairs to avoid the assumption of legal

obligations in the first place, but not to evade the application of obligations the assumption of which

your situation objectively involves.

16. Assuming for the sake of argument that the developer decided that a tarmac finish would

create too much of a risk of the tracks being held to be roads (and emphasising that there is no

evidence that it had such a view and of course assuming that there could still be room for legal

argument even if there was a road-quality tarmac finish), there is nothing unlawful about adopting

such a position. That is a matter for any given developer in any given project. The fact that it

removes an EIA argument that a judicial review applicant might otherwise have had does not give

rise to a legal right in such an applicant to agitate a counterfactual situation or to complain about

the lack of such a counterfactual.

17. The applicants’ final throw of the dice was to argue that once the developer had the

permission in hand it could tarmac the surface without permission because the finish would be

exempted development, thus creating a road without EIA. The flaw with that superficially plausible

but unpleaded argument is that that which would otherwise be exempted development is not

exempted if it requires EIA (s. 4(4) of the 2000 Act: “Notwithstanding paragraphs (a), (i), (ia) and

(l) of subsection (1) and any regulations under subsection (2), development shall not be exempted

development if an environmental impact assessment or an appropriate assessment of the

development is required”). So the hypothetical post hoc tarmac operation could not be effected

without permission if the outcome was the creation of a road requiring consideration under the EIA

directive.

18. Thus the proposed question does not properly arise and requires no further discussion. In

case I am wrong about that I will consider the other criteria.

Is the point one of law?

19. All too frequently, a would-be appellant disguises the wolf of disagreement about the

application of law to particular facts as the comforting sheep of a legal question.

20. “But this wolf comes as a wolf” (per Scalia J. (diss.) in Morrison v. Olson, 487 U.S. 654

(1988)).

21. This purported question of law is so blatantly one of the application of law to particular facts

as to require no further discussion. In case I am wrong about that I will consider the other criteria.

Is the point of public importance?

22. The point is not of public importance. There is no uncertainty about whether primitive tracks

constitute roads for the purposes of the EIA directive which would create a public interest in further

agitation of the point at appellate level.

23. The applicants predictably claim that it is up to the opposing parties to show that there is no

uncertainty as opposed to it being up to them to show that there is such uncertainty. Of course it

isn’t as simple as that.

24. It is one thing for a party to put forward a point without authority if the point has some

inherent force or logic. But here the applicants’ point not only lacks supporting authority (and there

is a rich field of EU member states that could have generated such authority) but also lacks logic –

on the contrary, the implications of the point would severely undermine the distinction created by

the EIA directive between projects listed in the annexes and those not so listed. The chaos unleashed

by this argument can’t be confined to solar farms – it would apply to anything with internal tracks

(even short ones, because they would then count as sub-threshold, requiring at least some

consideration of EIA screening or preliminary examination). The notion that internal access

infrastructure will catapult any project into the category of EIA projects including sub-threshold

projects would expand the directive beyond anything hitherto imagined.

25. As regards the implications of forestry legislation, this was not a pleaded point so does not

warrant further consideration (see Concerned Residents of Treascon and Clondoolusk v. An Bord

Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024)). For the avoidance

of doubt, a sub-threshold argument is not available on the facts and pleadings but even if it had

been open to the applicants, such an argument only gets off the ground if primitive tracks come

within the directive in the first place, which they don’t for the reasons explained.

Is the point of exceptional public importance?

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

Is an appeal in the public interest?

27. 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.

28. The project here was found acceptable by the county council, 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.

29. I endorse the submission of the notice party on this issue:

“Appeal is not in the Public Interest

26. The Applicants characterise the public interest requirement (at §38) as being met in

this case on the grounds that if, the answer to the Proposed Question, ‘is that one can merely

by changing the term to be applied to the particular development without changing the

substance of the design avoid the requirements of an obligation under the Directive then

this is a matter that requires urgent clarification and determination, and is the utmost

importance and in the public interest that it be so clarified.’. However, the Proposed

Question does not relate to that issue. As such, the Applicants cannot establish that an

appeal would be in the public interest.

27. More generally, the delay involved in an appeal would tend to defeat the public

interest in the expeditious determination of judicial reviews brought under section 50 of the

2000 Act. The High Court in Glancré Teoranta acknowledged that it was the intention of the

legislature that most planning cases will be determined in the High Court and that an appeal

will remain the exception:

‘It is clear that the statutory regime which has been devised by the legislature indicates an

interest to ensure that the planning process is not to be hampered by a completely

unrestricted access to the court which may cause harmful delays. I am satisfied that it is a

restriction to be lifted only in exceptional cases.’

28. As set out by Humphreys J in Massey v An Bord Pleanála (No.4) [2025] IEHC 309 at

§6(v)(a) when considering the principles which apply to the ‘public interest’ criterion and

delay:

‘An appeal must be in the public interest (a) The context is the objective of the Oireachtas

in seeking finality, certainty and expedition in challenges brought by way of judicial review

in planning cases… 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 WJSC-HC 6876, [2015] 6 JIC

1805 (Unreported, High Court, 18th 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., 27th 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’.’

[Emphasis Added]

29. The nature of the project, in this case a solar farm development, and the risks of

further delay are factors going to the public interest. This particular issue was considered

by the High Court (Humphreys J.) in an application for a certificate for leave to appeal that

arose in the case of Nagle View Turbine Aware Group No. 2 v An Bord Pleanála [2025] IEHC

3):

‘26. On the contrary, the public interest is strongly the other way. The development will

provide significant renewable energy in line with local, regional, national and EU policy,

backed up by legal instruments referred to in the No. 1 judgment. In the context of the

climate emergency and of the need for energy independence in the light of the Russian

Federation’s full-scale criminal war of aggression against Ukraine, I agree with the notice

party that “it is directly relevant that EU law has recognised renewable energy projects as

being in the overriding public interest” as stated in 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. So public interest in

favour of such projects has a legal and not merely a policy basis.

27. These proceedings have delayed the project by almost a full year so far (with further

delay a virtual certainty as a result of the inevitable application for leapfrog leave to appeal,

an application that will take time to determine either way). There is no convincing

counterbalancing reason why an appeal would be in the public interest at all, let alone in

such a way as to outweigh the damage to the public interest of further delay in the matter.

[Emphasis added]

30. The same consideration applies with equal force to this case and the application for

a certificate for leave to appeal should be refused on the basis that an appeal is not ‘desirable

in the public interest’.”

30. Finally, for the avoidance of doubt, I have obviously (and as always when an EU law point is

argued) considered any potential relevance of Art. 267 TFEU. But the obligation to refer (even for

an apex court) does not apply if a point is acte clair/ acte éclairé: judgment of 6 October 2021,

Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-

561/19, ECLI:EU:C:2021:799 (Grand Chamber) at para. 33.

31. The applicants’ reference to the judgment of 16 July 2009, Commission v Ireland, C-427/07,

ECLI:EU:C2009:457 gets us nowhere because that is only relevant if the access tracks here

counterfactually constituted “roads” within the meaning of the directive.

32. There is simply nothing by way of authority creating doubt to suggest that other EU-law-

enforcing courts would hold that solar farms become EIA projects because they necessarily require

internal access tracks – a lot of other projects would come into the EIA directive on the same logic

so we would expect to have heard something about this already. If contrary to the foregoing the

European courts revisit this and come up with new authority of relevance, this point or any point

can and will be revisited, but the acte clair doctrine is meaningless if it has to accommodate the

hypothetical academic possibility of doubt that does not currently exist and is not currently

foreseeable. What is in doubt at any given time has to be judged on the basis of the legal landscape

at the time in question, which currently places solar farms firmly outside the EIA directive – as

already held, very recently, by the Supreme Court.

Summary

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

(i) the proposed question tendentiously contradicts the factual conclusions of the

substantive judgment and disregards the information furnished by the developer

during the administrative process on the basis of which consent was granted, and

hence the proposed question does not properly arise;

(ii) the proposed point is not one of law but of the application of law to the facts;

(iii) particularly for that reason it is also not of public importance; and

(iv) further appellate agitation of the case is not in the public interest, particularly having

regard to the public interest in infrastructure and renewable energy and to the non-

compensatable prejudice to the developer.

Order

34. 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; and

(iv) 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.