High Court dismisses challenge to gas plant approval citing failure to raise EU law points and valid statutory reading.

[2026] IEHC 205

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000610]

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

ACT 2000

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT CLG

APPLICANT

AND

AN COIMISIÚN PLEANÁLA (BY ORDER), IRELAND AND THE ATTORNEY GENERAL, AND

THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE

RESPONDENTS

AND

SHANNON LNG LIMITED

NOTICE PARTY

Date of impugned decision: 13 March 2025

Date proceedings commenced: 7 May 2025

Date of main hearing: 19 March 2026

Date draft judgment circulated: 26 March 2026

JUDGMENT of Humphreys J. delivered on Wednesday the 1st day of April 2026

1. The environmentalist’s rallying-cry “keep it in the ground” has considerable logic and

scientific support behind it. Apart from small amounts turned into not-exactly-eco-friendly plastic

and other synthetic products, virtually all fossil fuels extracted are combusted, directly increasing

greenhouse gas (GHG) emissions. In keeping with this, the Climate Change Advisory Council

recommended a near immediate end to coal and oil-fired energy generation, with gas-fired

production to be phased out in the medium term. Why then, the applicant effectively asks, does the

commission find itself approving a gas-fired power plant? In the relevant context of the extent of

renewable generation on stream at present, a phenomenon known as Dunkelflaute (dark lull) affects

wind and sunlight-powered generation – the all-too-familiar time when there is little of either. A

gas plant can act as a resilience backbone to provide relatively rapid and relatively controllable power

to bridge the gap between intermittent renewable generation and demand. Gas plants are highly

dispatchable, i.e., can be quickly ramped up or down to maintain grid stability. Potentially some of

them can be repurposed over time for use with renewable fuels. While it is beyond question that

the combustion of all fossil fuels is poisonous for the planet, gas is nowhere near as bad as peat,

coal or oil in terms of GHG emission intensity. And within that, efficient gas-based energy production

such as this project is better than inefficient production. The commission took the view that this

project will provide “back-up to a renewables-based electricity grid and will contribute to the

resilience of the overall energy supply network. The need for such flexible generation capacity is

recognised as a national priority in the Government Policy Statement on Security of Electricity

Supply, and in the Climate Action Plan 2024”. CAP24 refers expressly (p. 155, emphasis added) to

“Delivery of at least 2 GWs of new flexible gas-fired generation”. Without taking in any way from

the supreme importance of the issues regarding the climate emergency so thoroughly raised by the

applicant as a seasoned and respected environmental NGO, the primary legal question here is

whether the applicant has come up with any sufficiently convincing legal basis to displace the

commission’s reasoned conclusion in that regard.

Judgment history

2. This development must be one of the most thoroughly litigated projects in recent times –

this is the seventh written decision relating in one way or another to this project.

3. In Friends of the Irish Environment v. An Bord Pleanála & Anor. [2019] IEHC 80, 2 JIC 1501

(Unreported, High Court, 15 February 2019), Simons J. decided to refer questions to the CJEU

concerning whether renewal of a permission to the notice party engaged Directive 92/43/EEC of 21

May 1992 on the conservation of natural habitats and of wild fauna and flora (the habitats directive).

4. In the judgment of 9 September 2020, Friends of the Irish Environment Ltd v An Bord

Pleanála, C-254/19, EU:C:2020:680, the CJEU in summary concluded that a renewal was potentially

capable of requiring appropriate assessment. On foot of that, the extension of the permission was

quashed by consent in the High Court.

5. In separate proceedings, Friends of the Irish Environment CLG v. Minister for

Communications, Climate Action and the Environment, Ireland and the Attorney General & Shannon

LNG Limited [2020] IEHC 383, [2020] 9 JIC 1405 (Unreported, High Court, 14 September 2020),

Simons J. refused to refer to the CJEU an issue regarding validity of the 4th Union list of Projects of

Common Interest insofar as it includes the proposed Shannon LNG terminal and connecting pipeline.

The list of projects of common interest had been adopted by the EU Commission by way of delegated

regulation: Commission Delegated Regulation (EU) 2020/389.

6. In Friends of the Irish Environment CLG v. Minister for Communications, Climate Action and

the Environment, Ireland and the Attorney General & Shannon LNG Limited [2021] IEHC 177, [2021]

3 JIC 3003 (Unreported, High Court, 30 March 2020), Simons J. dismissed the balance of the

challenge in respect of the List of Projects of Common Interest.

7. In Friends of the Irish Environment CLG v. Minister for Communications, Climate Action and

the Environment, Ireland and the Attorney General & Shannon LNG Limited [2022] IECA 298

(Unreported, Court of Appeal, Noonan J., 21 December 2022), the Court of Appeal dismissed an

appeal against Simons J.’s order declining to refer the issue of the List of Projects of Common

Interests to the CJEU.

8. In Shannon LNG Limited v. An Bord Pleanála [2024] IEHC 555 (Unreported, High Court, 30

September 2024), I quashed the commission’s refusal of permission for the Shannon LNG project.

Geographical context

9. The proposed development (https://www.pleanala.ie/en-ie/case/319566) is a power plant

which will comprise three turbine halls (approximately 6,175 m2 each, and approximately 30.145 m

in height), each containing one combined cycle gas turbine (CCGT). Each turbine hall will have a

capacity of approximately 200 megawatts for a total installed capacity of 600 MW, a 120-megawatt

hour (MWh) (1-hr) battery energy storage system (BESS) (approximately 5,552.7 m2 and

approximately 6.296 m in height), which will comprise 27 battery containers, approximately 4.5

MWh each, containing lithium-ion batteries, and ancillary power conversion system (PCS) skids,

above ground installation (AGI) and all ancillary structures/works, all located within the townlands

of Kilcolgan Lower and Ralappane, between Tarbert and Ballylongford, County Kerry and on the

Shannon Estuary.

Facts

10. The developer submitted a pre-application consultation request on 24 March 2023, in respect

of a 600 MW power plant, 120 MW battery energy storage system, above ground installation and

associated development. On 9 November 2023, the commission determined that the proposed

development would constitute strategic infrastructure development (ABP-316518-23).

11. On 8 March 2024, the developer submitted a pre-application consultation request to the

commission in respect of a proposed STEP strategic gas reserve facility that includes onshore

facilities, jetty and a FSRU extending into the Shannon Estuary at the north-east corner of the site.

The pre-application request was withdrawn on 23 March 2024, and has not been resubmitted.

12. On 19 April 2024, the developer submitted an application for planning permission for the

proposed development.

13. On 13 March 2025, the commission granted permission subject to a number of conditions.

Procedural history

14. On 7 May 2025, the applicant’s statement of grounds was filed in the High Court Central

Office.

15. On 12 May 2025, the applicant was granted leave.

16. The proceedings were adjourned from time to time thereafter primarily to await the Supreme

Court decision in Coolglass.

17. On 2 December 2025, the commission filed its statement of opposition and supporting

affidavits.

18. On 18 December 2025, the developer filed its statement of opposition and supporting

affidavits.

19. On 20 January 2026, the applicant filed a replying affidavit.

20. On 20 February 2026, the applicant filed written legal submissions.

21. On 12 March 2026, the commission served and uploaded its written legal submission.

22. On 16 March 2026, the notice party served and uploaded its written legal submission along

with the completed statement of case.

23. The matter was heard on 19 March 2026. 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.

24. On 26 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.

25. 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.

26. 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).

27. 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.

28. The deadline for such comments from the parties was to be 16:00 on 31 March 2026. The

developer replied on that date confirming no comments.

Relief sought

29. The reliefs sought are as follows:

“1. An Order of Certiorari quashing the Board Order dated 13th March 2025 granting

permission for a 600MW Powerplant, 120MW Battery Storage System, Above Ground

Installation and associated ancillary works located within the townlands of Kilcolgan Lower

and Ralappane between Tarbert and Ballylongford, Co. Kerry (ABP Ref PA08.319566).

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

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

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

3. A Declaration that the Second and or Third and Fourth Respondents failed to fulfil

their obligations under Articles 3, 4(1) and 4(2) of the Birds Directive and Article 6 of Council

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

fauna and flora (‘the Habitats Directive’), as implemented by SI 477 of 2011 and in particular

Article 26 thereof, by (a) failing to have in place site specific objectives and site specific

conservation measures in respect of the Moanveanlagh Bog SAC, Tullaher Lough and Bog

SAC and Stack's to Mullaghareirk Mountains, West Limerick Hills and Mount Eagle SPA, the

Lower River Shannon SAC and the River Shannon and River Fergus Estuaries SPA, and (b)

not putting in place the necessary conservation measures in those SPAs and SACs.

4. A Declaration that Section 50B of the Planning and Development Act 2000 and/or

Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 and/or that the

interpretative obligation set out in Case C-470/16 North East Pylon Pressure Campaign

Limited v. An Bord Pleanála, whereby in proceedings where the application of national

environmental law is at issue, it is for the national court to give an interpretation of national

procedural law which, to the fullest extent possible, is consistent with the objectives laid

down in Article 9(3) and (4) of the Aarhus Convention, apply to these proceedings.

5. An Order providing for the costs of the application.

6. Such interlocutory relief as the court may order, including interlocutory relief.

7. Further or other order.”

Grounds of challenge

30. The core grounds of challenge are as follows:

“Domestic Law Grounds

Core Ground 1: The Board erred in finding that the proposed development constituted

sustainable development and its decision to grant permission for a proposed development

of a 600MW Powerplant, 120MW Battery Storage System, Above Ground Installation and

associated ancillary works located within the townlands of Kilcolgan Lower and Ralappane

between Tarbert and Ballylongford, Co. Kerry dated 13th March 2025 (ABP Ref

PA08.319566) (‘the impugned decision’) is invalid as it constitutes a material contravention

of the Kerry County Development Plan 2022-2028 and Listowel Municipal District Local Area

Plan 2020-2026 and the Board erred in law in reaching a contrary conclusion and/or the

impugned decision is irrational and unreasonable for not treating like decisions alike and/or

the Board failed to take into account relevant considerations, further particulars of which are

at Part 2 below.

Core Ground 2: The impugned decision is invalid as the Board decision is not consistent

insofar as practicable with the measures identified in section 15(1)(a)-(e) of the Climate

Action and Low Carbon Development Act 2015 and/or failed to have regard to relevant

considerations and/or had regard to irrelevant considerations and/or failed to adequately

consider the Climate Action Plan 2024 and/or Carbon Budgets and/or Sectoral Emissions

Ceilings and/or failed to make a decision on the evidence before it, further particulars of

which are at Part 2 below.

European Law Grounds

Core Ground 3: The impugned decision is invalid because the Board’s decision is contrary to

Articles 1, 5 and 6 of the EIA Directive, further particulars of which are set out in Part 2

below.

Core Ground 4: The impugned decision is invalid because the Board incorrectly failed to

consider significant effects on the environment from the entirety of the proposed

project/masterplan under either the EIA Directive or the Planning and Development

Regulations 2001, further particulars of which are at Part 2 below.

Core Ground 5: The impugned decision is invalid because the Board erred in law in

concluding that the proposed development would be in accordance with the proper planning

and sustainable development of the area and/or the Board erred in deciding that it had

performed its functions in relation to the making of its decision, in a manner consistent with

section 15(1) of the Climate Action and Low Carbon Development Act 2015 (as amended)

and/or with the relevant provisions of the Climate Action Plan 2024, further particulars of

which are at Part 2 below.

Core Ground 6: The impugned decision is invalid because the Board could not and did not

make a valid Screening decision for the purposes of Article 6(3) of the Habitats Directive in

the absence of site specific conservation objectives and site specific conservation measures

and/or could not lawfully have excluded significant effects for the purposes of Stage 2

Appropriate Assessment, further particulars of which are at Part 2 below.”

31. The applicant is no longer seeking any relief against the State.

32. The applicant is not pursuing core grounds 1 or 4. Core grounds 6A, C and D were dropped

(6A dropped at the hearing, 6C and D dropped in advance).

The impugned decision

33. The impugned decision provides as follows:

“Decision

Grant permission under section 37G of the Planning and Development Act 2000, as

amended, 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.

Determine under section 37H(2)(c) the sum to be paid by the applicant in respect of costs

associated with the application as set out in the Schedule of Costs below.

Reasons and Considerations

The Board performed its functions in relation to the making of its decision, in a manner

consistent with Section 15(1) of the Climate Action and Low Carbon Act 2015, as amended

by Section 17 of the Climate Action and Low Carbon Development (Amendment) Act 2021,

(consistent with the most recent approved, climate action plan, national long term climate

action strategy, national adaptation framework and approved sectoral adaptation plans, the

furtherance of the national climate objective, and the objective of mitigating greenhouse gas

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

And in coming to its decision, the Board had regard to the following:

(a) European, national, regional and local planning, energy, climate and other policy of

relevance, including in particular the following:

European Policy/Legislation:

• Directive 2014/52/EU amending Directive 2011/92/EU (Environmental Impact Assessment

Directive);

• Directive 92/43/EEC (Habitats Directive) and Directive 79/409/EEC as amended by

2009/147/EC (Birds Directive);

• Directive 2000/60/EC (Water Framework Directive).

National Policy and Guidance including:

• Project Ireland 2040 - National Planning Framework (2018);

• National Development Plan (2021-2030);

• National Marine Planning Framework (2020);

• The objectives and targets of the National Biodiversity Action Plan 2023-2030;

• Long-term Strategy on Greenhouse Gas Emissions Reduction (2024);

• Policy Statement on Security of Electricity Supply (November 2021);

• National Energy Security Framework (April 2022);

• National Energy and Climate Action Plan (2021-2030);

Regional and Local Planning Policy, including in particular:

• Regional Spatial and Economic Strategy for the Southern Region (2019-2031);

• Strategic Integrated Framework Plan for the Shannon Estuary (2013-2020);

• Shannon-Foynes Port Company Masterplan - Vision 2041 (2013);

• Kerry County Development Plan 2022-2028;

• Listowel Municipal District Local Area Plan (2019-2025).

(b) The location, nature, scale and layout of the proposed development.

(c) The range of mitigation measures set out in the Environmental Impact Assessment

Report and Natura Impact Statement.

(d) The submissions received in relation to the application by all parties.

(e) The Inspector's report and recommendation.

Appropriate Assessment: Stage 1:

The Board noted that the proposed development is not directly connected with, or necessary

for, the management of a European Site.

The Board completed an Appropriate Assessment Screening exercise in relation to potential

effects on designated European Sites, taking into account the Screening Report submitted

with the application, the report and screening assessment completed by the Board's

Inspector which concluded that the following sites are the European Sites for which there is

a likelihood of significant effects on:

• Lower River Shannon Special Area of Conservation (Site Code: 002165) and

• River Shannon and River Fergus Estuaries Special Protection Area (Site Code: 004077).

The Board determined that Appropriate Assessment was required for these European Sites.

Appropriate Assessment: Stage 2:

The Board considered that the Natura Impact Statement and associated documentation

submitted with the application, the mitigation measures contained therein, the submissions,

and the observations on file, and carried out an Appropriate Assessment of the implications

of the proposed development on European Sites in view of the conservation objectives for

the sites. The Board considered that the information before it was adequate to allow the

carrying out of an Appropriate Assessment and to allow it to reach complete, precise and

definitive conclusions for Appropriate Assessment.

In completing the assessment, the Board considered in particular, the likely direct and

indirect impacts arising from the proposed development, both individually and in

combination with other plans and projects, the mitigation measures which are included as

part of the current proposal and additional mitigation measures recommended by the

Inspector in view of the sites' conservation objectives. In completing the Appropriate

Assessment, the Board accepted and adopted the Appropriate Assessment carried out by

the Board's Inspector, of the potential effects of the development on the aforementioned

European Sites, having regard to the sites' conservation objectives. In overall conclusion,

the Board was satisfied that the proposed development would not adversely affect the

integrity of:

• Lower River Shannon Special Area of Conservation (Site Code: 002165) and

• River Shannon and River Fergus Estuaries Special Protection Area (Site Code: 004077),

in view of the conservation objectives of those sites and that 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 and location of the proposed development;

(b) The Environmental Impact Assessment Report and associated documentation in support

of the application for which approval is sought;

(c) The submissions received during the course of the application;

(d) The Inspector's report and recommendation.

The Board considered that the Environmental Impact Assessment Report, supported by the

documentation submitted by the applicant, adequately considers alternatives for the

proposed development, and identifies and describes adequately the direct, indirect and

secondary and cumulative impacts of the proposed development on the environment. The

Board agreed with the examination, as set out in the Inspector's report, of the information

contained in the Environmental Impact Assessment Report and associated documentation

submitted by the applicant, and submissions made in the course of the application for

approval. The Board concluded that, subject to the implementation of the mitigation

measures proposed, as set out in the Environmental Impact Assessment Report and, subject

to compliance with the conditions set out herein, the effects on the environment of the

proposed development by itself and cumulatively with other development in the vicinity

would be acceptable. In doing so, the Board adopted the report and conclusions of the

reporting Inspector.

Reasoned Conclusions on the Significant Effects

Having regard to the examination of the environmental information set out above, and in

particular the Environmental Impact Assessment Report and supplementary information

submitted by the applicant, and to the submissions received from the planning authority,

prescribed bodies and observers in the course of the application, it is considered that the

main significant direct, indirect or cumulative impacts on the environment, of the

development permitted herein are, and will be, mitigated as follows:

1. The development could give rise to impacts on surface and groundwaters as a result of

run-off of sediments, accidental spillages of chemicals, hydrocarbons or other contaminants

entering waterbodies during construction. These impacts would be adequately mitigated by:

• The implementation of the Construction Environmental Management Plan and

standard best practise guidance and measures, including measures for the control

of soils, materials and pollutants, drainage design and the management of surface

waters;

• Soil and stockpile management, including separation from waterbodies and from

areas subject to flooding;

• Minimise use of cast in-situ concrete and measures to prevent discharge of

contaminants to the underlying subsoil or to the marine environment.

2. Construction activity will give rise to noise and vibration emissions, particularly during

terrestrial blasting and rock breaking activities. The impacts from such activities would be

adequately mitigated by:

• Adherence to identified emission limit values and guidelines for such activities

(8S6472-2:2008);

• The short-term nature of the activities and limits on daily blasting activities;

• Separation from the shoreline and sensitive receptors;

• Process management and a dedicated Public Liaison Officer and protocols for

community relations;

• On-going monitoring.

3. Construction activities, particularly from blasting, will give rise to air overpressure. The

impacts from such activities would be adequately mitigated by:

• Adherence to the principles set out in BS 5607:2017 code of practice for the safe

use of explosives in the construction industry;

• No more than one blast per day;

• Designing each blast to maximize its efficiency and reduce the transmission of

vibration;

• A protocol for community relations with regards to blasting is adopted such that

prior warning of blasting operations is given to members of the public.

4. Operational discharges to the marine environment, including wastewater, accidental

spillages and process discharge, have the potential to impact on water quality and dependent

species and habitats. The impacts from such activities would be adequately mitigated by:

• Design, operation and monitoring of drainage systems in compliance with

Industrial Emissions licence requirements;

• Attenuation of stormwater run-off from paved/impermeable areas;

• Drainage systems capable of handling anticipated volumes, incorporating

treatment facilities and monitoring equipment appropriate to each effluent stream

(including silt trap, Class 1 hydrocarbon interceptor, a firewater retention facility,

package wastewater treatment plant and potential of hydrogen (pH) adjustment);

• Measures for the control and management of hazardous materials and removal of

identified effluent streams off-site for treatment;

• Adherence to Environmental Protection Agency guidance for firewater retention

and the storage and transfer of materials for scheduled activities;

• Availability of secondary containment and spill kits for other hazardous materials;

• Dispersion effects within a short distance of the discharge point, given the extent

and dynamic nature of waters in the estuary.

5. Construction of the development will result in the direct loss of marine environment

habitats. The impacts from such activities would be adequately mitigated by:

• The limited spatial extent of loss, where the affected habitats and community types

are not uncommon or rare and where natural recolonisation can occur.

6. Development of the site will result in terrestrial habitat removal and disturbance and

displacement of species occurring on or around the site. The impacts from such activities

would be adequately mitigated by:

• Implementation of Construction Environmental Management Plan and appointment of an

Ecological Clerk of Works;

• Adherence to published guidance including Construction Industry Research and

Information Agency (CIRIA) guidance on water pollution and Inland Fisheries Ireland

guidelines of protection of fisheries, Bat Conservation Ireland guidance on lighting design,

and National Roads Authority (NRA) Guidelines for the treatment of Badgers, Bats and

Otters;

• Monitoring of Badger setts during post-construction;

• No in-stream works in Ralappane Stream;

• A detailed method statement in respect of disturbance to cliff habitat from vehicular

access;

• Planting and landscaping works using native species;

• Clear delineation and fencing off of habitat conservation areas and retained

trees/vegetation;

• Timing and management of tree/vegetation and structure removal works, with pre-

development surveys of features to be removed;

• Erection of bat boxes and bird nesting boxes;

• Blasting vibration limits will be achieved by limiting the Maximum Instantaneous Charge

(MIC).

7. Operation of the proposed power plant would give rise to an increase in operational

greenhouse gas emissions with resulting impacts on the achievement of EU and National

climate change and carbon emission reduction targets. The impacts from such activities

would be adequately mitigated by:

• The role of the Combined Cycle Gas Turbine in the overall energy generation sector

and in facilitating renewable generation capacity and the transition to a low carbon

system;

• Displacement of potentially more carbon intensive power generation;

• Operation in the European Union Emissions Trading System scheme;

• Embedded design mitigation, including high efficiency and ability to operate at a

low minimum generation capacity means that it will be dispatched before less

efficient plants;

• Availability of battery storage;

• Stated ability to transition to alternative low carbon fuels/hydrogen.

8. Traffic generated during construction will give rise to potential disturbance and congestion

on the local road network. These impacts would be adequately mitigated by:

• Existing low traffic volumes on road network;

• Upgrade of the L 1010 prior to the main construction phase;

• Short-term nature of activities;

• Implementation of a Construction Traffic Management Plan including the routing

and scheduling of construction traffic to avoid coinciding with peak school times;

• Appointment of a logistics manager.

9. Excavation and redevelopment of the site will give rise to direct impact on features of

archaeological interest and previously unrecorded features. There will also be impacts on

the setting of recorded monuments. The impacts would be adequately mitigated by:

• Full resolution of all archaeological sites and areas identified during archaeological

testing and underwater surveys;

• Compliance with the National Monuments Acts and the Construction Environmental

Management Plan;

• A Method Statement for Archaeological Works shall be agreed with the National

Monuments Service, with fieldwork and monitoring by a suitably qualified and

licensed archaeological contractor;

• Completion of archaeological works prior to commencing enabling works;

• Designated buffer zone around recorded monument.

10. Having regard to the nature and volume of materials to be stored and processed at the

facility, the development gives rise to the potential for major accident or disaster or major

accident to the environment. The impacts from such activities would be adequately

mitigated by:

• Design and operation in accordance with industry standards and operator

requirements under the COMAH Regulations 2015;

• Integral isolation valves in pipelines to isolate the inventory and reduce the

consequences of an accident;

• Design and installation in accordance with the Environmental Protection Agency

guidance for firewater retention and for the storage and transfer of materials for

Scheduled activities;

• Separation of uses within the site.

Cumulative Impacts and Impacts from Interactions:

It is considered that effects, as a result of interactions, indirect and cumulative effects can

be avoided, managed or mitigated by the measures which form part of the proposed

development, the proposed mitigations measures detailed in the Environmental Impact

Assessment Report and with suitable conditions. There is, therefore, nothing to prevent the

approval of the development on the grounds of significant environmental effects, or as a

result of cumulative effects or effects arising from interactions between environmental

factors.

Proper Planning and Sustainable Development

It is considered that the proposed development, subject to compliance with the conditions

set out below, would accord with the relevant policy at a European, national, regional and

local level. The Board was satisfied that an approval for the proposed development would

be consistent with national climate ambitions and with the relevant provisions of the Climate

Action Plan 2024. Furthermore, the Board has performed its functions in relation to the

making of its decision, in a manner consistent with Section 15( 1) of the Climate Action and

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

2021.

The proposed development along with the proposed battery energy storage facility, will

provide back-up to a renewables-based electricity grid and will contribute to the resilience

of the overall energy supply network. The need for such flexible generation capacity is

recognised as a national priority in the Government Policy Statement on Security of

Electricity Supply, and in the Climate Action Plan 2024. The proposed development will also

otherwise be in accordance with the relevant provisions of the Kerry County Development

Plan 2022-2028 and by reason of scale, form and extent would not seriously injure the visual

amenities of the area, or of property in the vicinity, would be acceptable in terms of traffic

safety and would constitute an appropriate form of development at this location. 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 and additional plans and particulars

submitted on the 25th day of September, 2024, except as may otherwise be required in

order to comply with the following conditions.

Reason: In the interests of clarity and the proper planning and sustainable development of

the area and to ensure the protection of the environment.

2. The operational use of the proposed development shall expire on the 31st day of

December, 2050, unless a subsequent planning permission to continue operating has been

secured.

Reason: In the interests of clarity and consistency with statutory climate action targets.

3. The proposed 600 megawatts of electricity output generated by the power plant shall be

made available for export to the national grid and shall be used as back up to intermittent

renewable energy only, unless a subsequent planning permission has been secured to use

part of the electricity generated for other purposes. The 120 megawatts of electricity stored

in the Battery Energy Storage System shall be made available for export to the national grid

and shall be used as back up to intermittent renewable energy only, unless a subsequent

planning permission has been secured to enable the storage to be used for other purposes.

Reason: In the interests of clarity and consistency with statutory climate action targets.

4. The mitigation measures and monitoring commitments identified in the Natura Impact

Statement, shall be carried out in full.

Reason: In the interests of clarity and protection of the environment and the protection of

European Sites during the construction and operational phases of the proposed

development.

5. The mitigation measures and monitoring commitments identified in the Environmental

Impact Assessment Report and other plans and particulars submitted with the application

shall be carried out in full.

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

and operational phases of the proposed development.

6. The period during which the development hereby permitted may be carried out shall be

10 years from the date of this Order.

Reason: Having regard to the nature and scale of the proposed development, the Board

considers it appropriate to specify a period of validity of this permission in excess of five

years.

7. (a) The upgrade of the L1010 local road between the R551 at Tarbert and the proposed

development lands at Kilcolgan Lower and Ralappane shall be completed prior to the

commencement of the main construction elements of the proposed development. This shall

not preclude the undertaking of site preparation and earthworks contemporaneously with

the upgrading of the L 1010 local road. The precise extent of works which may be carried

out prior to the completion of the public infrastructure works, shall be agreed in writing with

the planning authority prior to commencement of development and in default of agreement,

shall be determined by An Bord Pleanala.

(b) Final detail in relation to the design of the proposed entrance to the site from the L 1010,

including drainage design, shall be agreed in writing with the planning authority prior to the

commencement of development on the site.

Reason: In the interest of road safety.

8. (a) Prior to commencement of development, the developer shall submit to, and agree in

writing with, the planning authority, a detailed construction traffic management plan. This

management plan shall include restrictions on traffic movements at Tarbert Comprehensive

School, which shall prohibit the movement of heavy goods vehicle traffic associated with the

construction of the terminal for an agreed period before and after the opening and closing

times of the school. It shall also include the staggering of various shift start and finish times.

(b) Pre- and post-construction phase surveys of the public road network to be used as haul

routes, shall be carried out by the applicant, to include inspections of bridges, structures and

culverts at locations to be agreed with the relevant roads authorities to confirm their capacity

to accommodate any abnormal weight load proposed.

(c) Abnormal load licences shall be secured by the developer in advance, if required, for the

transportation of components, units and materials. Consultation with the relevant roads

authority, An Garda Síochána and all necessary stakeholders shall be carried out in advance

of transportation of abnormal loads.

(d) Any required alterations to the road network for the transportation of components, units

and/or materials shall be agreed in advance with the roads authority and reinstated

thereafter, to the satisfaction of the roads authority. Where such works affect the national

road network, they shall be undertaken in accordance with Transport Infrastructure Ireland

publications. Any temporary alterations to utilities shall be agreed with the appropriate

utility provider in advance by the developer. Any land acquisition or temporary access to

lands required for the conveyance of abnormal loads or materials shall be incumbent on the

applicant to agree with the relevant landowner. A schedule of alterations to the road network

including, but not limited to, signage, street furniture and vegetation, shall be agreed in

advance with the relevant roads authority.

(e) Any damage to the local and national road network arising from the transportation of

components, units and/or materials to the site shall be rectified in accordance with the

requirements of the roads authority, at the developer's expense.

Reason: In the interests of road safety, orderly development and the proper planning and

sustainable development of the area.

9. The developer shall facilitate the archaeological appraisal of the site and shall provide for

the preservation, recording and protection of archaeological materials or features which may

exist within the site. All mitigation measures set out in the Chapter 12 of the Environmental

Impact Assessment Report (AECOM, April 2024) shall be fully implemented prior to the

commencement of developing works. In this regard, the developer shall:

(a) Appoint a Project Archaeologist to oversee and advise on all aspects of the scheme from

design through to completion. The Project Archaeologist shall liaise with the National

Monuments Service (NMS) to agree in advance the appropriate scope for the full

archaeological excavation of all archaeological sites and areas identified during

archaeological testing which cannot be preserved in situ (as identified in Chapter 12 of the

Environmental Impact Assessment Report or by any subsequent investigations associated

with the project).

(b) In advance of the commencement of any construction works, the developer shall engage

a suitably qualified archaeologist to carry out a full archaeological excavation (licensed under

the National Monuments Act) of all archaeological sites and areas identified during

archaeological testing which cannot be preserved in situ (as identified in Chapter 12 of the

Environmental Impact Assessment Report or by any subsequent investigations associated

with the project).

(i) The full archaeological excavation shall be carried out according to Best

Archaeological Practice and in accordance with an approved Method Statement that

shall incorporate a strategy for environmental sampling, finds retrieval and

conservation and subsequent publication or other suitable dissemination of results.

(ii) If significant archaeological features are discovered during the course of the full

archaeological excavation, work on the site shall stop, pending a decision of the

planning authority in consultation with the Department of Housing, Local

Government and Heritage, regarding appropriate additional mitigation measures

which may include preservation in situ or full archaeological excavation. Any

additional archaeological mitigation requirements specified by the planning

authority, following consultation with the Department of Housing, Local Government

and Heritage, shall be complied with by the developer.

(iii) No construction works shall be carried out on site until a Preliminary Excavation

Report on the full archaeological excavation has been submitted to the Department

of Housing, Local Government and Heritage and to the planning authority and

approval to proceed is agreed in writing.

(iv) The developer shall ensure that any necessary post-excavation analysis - as set

out in the Preliminary Excavation Report - including (but not limited to) specialist

analysis of finds and samples, scientific dating and conservation of artefacts is

completed.

(v) The developer shall ensure that the results of the full archaeological excavation

are adequately disseminated to the public by way of publication or other appropriate

means.

(c) A suitably qualified archaeologist shall be retained to advise on and establish appropriate

exclusion zones around the external-most elements of the vulnerable heritage assets that

are to be preserved in situ (as identified in Chapter 12 of the Environmental Impact

Assessment Report or by any subsequent investigations associated with the project).

(i) Exclusion zones shall be fenced off or appropriately demarcated for the duration

of construction works in the vicinity of the monuments. The location and extent of

each exclusion zone and the appropriate methodology for fencing off or demarcating

at each location shall be agreed in advance with the Department of Housing, Local

Government and Heritage and the planning authority.

(ii) No groundworks of any kind (including but not limited to) geotechnical site

investigations and no machinery, storage of materials or any other activity related

to construction will be permitted within exclusion zones.

(d) The Construction Environmental Management Plan shall include the location of any, and

all archaeological or cultural heritage constraints relevant to the proposed development, as

set out in Chapter 12 of the Environmental Impact Assessment Report (AECOM, April 2024)

and by any subsequent archaeological investigations associated with the project. The

Construction Environmental Management Plan shall clearly describe all identified likely

archaeological impacts, both direct and indirect, and all mitigation measures to be employed

to protect the archaeological or cultural heritage environment during all phases of site

preparation and construction activity.

(e) The planning authority and the Department of Housing, Local Government and Heritage

shall be furnished with a final archaeological report describing the results of all archaeological

monitoring and any archaeological investigative work on site and any necessary

postexcavation specialist analysis. All resulting and associated archaeological costs shall be

borne by the developer.

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.

10. All mitigation measures set out in Chapter 12 of the Environmental Impact Assessment

Report (AECOM, April 2024) shall be fully implemented prior to the commencement of

developing works. In advance of the commencement of any construction works, the

developer shall engage a suitably qualified archaeologist to carry out an Underwater

Archaeological Impact Assessment that includes the following:

(a) A desktop assessment that addresses the underwater cultural heritage (including

archaeological, built, vernacular, riverine and industrial heritage) of the proposed

development area. The assessment shall include a full inventory, mapping and survey

(photographic, descriptive, photogrammetric, as appropriate) of underwater cultural

heritage features and structures identified by fieldwork, cartographic analysis, historical

research and prior archaeological investigations.

(b) A licensed dive/wade assessment, accompanied by a hand-held metal detection survey,

centred on (but not confined to) the area(s) where instream works are proposed. The dive

and metal detection surveys shall be undertaken by a suitably qualified and experienced

underwater archaeologist. All identified underwater cultural heritage shall be surveyed

(photographic, descriptive, photogrammetric) in detail as part of the assessment.

(c) A dive/survey licence (Section 3, 1987 National Monuments Act) and detection device

consent (Section 2, 1987 National Monuments Act) will be required for the dive survey and

metal detection, respectively. Licences should be applied for to the National Monuments

Service and should be accompanied by a detailed Method Statement. Note a period of three

to four weeks should be allowed to facilitate processing and approval of the licence

applications and Method Statement. All archaeological wading/diving should comply with

the Health and Safety Authority's ‘Safety, Health and Welfare at Work (Diving) Regulations

2018/2019’.

(d) Having completed the above-described works, the archaeologist shall submit a written

report to the Department of Housing, Local Government and Heritage describing the results

of the Underwater Archaeological Impact Assessment. The report shall include a

comprehensive Archaeological Impact Statement that comments on the degree to which the

extent, location and levels of all proposed construction activities (including in-

stream/intertidal site investigation works) required for the development will impact upon

any underwater cultural heritage and archaeological potential that have been identified. The

Archaeological Impact Statement shall describe the potential impact(s) of all proposed

instream development, access and ingress routes to the river, and shall also assess any

proposed additional site investigation/geotechnical impacts and potential secondary/indirect

impacts such as souring resulting from changes in hydrology. The Archaeological Impact

Statement should be illustrated with appropriate plans, sections and photographs that clearly

describe any adverse effect(s) of the development on the underwater cultural heritage and

proposals for their mitigation. Mitigation should include recommendations for redesign to

allow for full or partial preservation in situ, the intuition of archaeological exclusion zones,

further wade/dive surveys, test-excavations, excavations (‘preservation by record’) and/or

monitoring, as deemed appropriate. The Department of Housing, Local Government and

Heritage will advise with regard to these matters. No construction works shall commence

until after the Underwater Archaeological Impact Assessment has been submitted and

reviewed. All recommendations will require the agreement of the Department of Housing,

Local Government and Heritage. The Construction Environmental Management Plan shall

include the location of all underwater cultural heritage constraints relevant to the proposed

development, as set out in Chapter 12 of the Environmental Impact Assessment Report

(AECOM, April 2024) and by any subsequent archaeological investigations associated with

the project. The Construction Environmental Management Plan shall clearly describe all

identified likely archaeological impacts, both direct and indirect, and all mitigation measures

to be employed to protect the archaeological or cultural heritage environment during all

phases of site preparation and construction activity.

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.

11. (a) Prior to commencement of development, all trees, groups of trees, hedging and

shrubs which are to be retained shall be enclosed within stout fences not less than 1.5 metres

in height. This protective fencing shall enclose an area covered by the crown spread of the

branches, or at minimum a radius of two metres from the trunk of the tree or the centre of

the shrub, and to a distance of two metres on each side of the hedge for its full length and

shall be maintained until the development has been completed.

(b) No construction equipment, machinery or materials shall be brought onto the site for the

purpose of the development until all the trees which are to be retained have been protected

by this fencing. No work shall be carried out within the area enclosed by the fencing and,

in particular, there shall be no parking of vehicles, placing of site huts, storage compounds

or topsoil heaps, storage of oil, chemicals or other substances, and no lighting of fires, over

the root spread of any tree to be retained.

(c) Prior to commencement of development, an Operational Stage Biodiversity Management

Plan for the site shall be prepared and agreed in writing with the planning authority.

Reason: To protect trees and planting during the construction period in the interest of visual

amenity.

12. Trees to be removed on site shall be felled in late summer or autumn. Any disturbance

to bats and badger setts on site shall be in a manner to be agreed in writing with the planning

authority on the advice of a qualified ecologist.

Reason: In the interest of nature conservation.

13. During the construction phase, the developer shall adhere to the measures, as set out

in the following documents:

(a) ‘Guidelines for the Treatment of Badgers prior to the Construction of National Road

Schemes,’ published by the National Roads Authority in 2006. The mitigation measures, as

set out in section 78.6.1.7 of the Environmental Impact Assessment Report shall be

implemented in full.

(b) ‘Bat Mitigation Guidelines for Ireland v2’. Irish Wildlife Manuals, Number 134, published

by the National Parks and Wildlife Service (2022). The specific mitigation measures, as set

out in section 78.6.1.8 of the EIAR shall be implemented in full.

(c) ‘Guidelines for the Treatment of Otters Prior to the Construction of National Road

Schemes,’ published by the National Roads Authority in 2008. The mitigation measures, as

set out in section 78.6.1.9 of the Environmental Impact Assessment Report shall be

implemented in full. The requirements of any licence required from the National Parks and

Wildlife Service shall be strictly adhered to and details of any such licence shall be submitted

to the planning authority.

Reason: In the interest of wildlife protection.

14. Water supply arrangements shall comply with the requirements of Uisce Eireann for such

works and services.

Reason: In the interest of public health.

15. The construction of the development shall be managed in accordance with a final

Construction 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 development, including, inter alia:

(a) Location of the site and materials compounds including areas identified for the storage

of construction refuse;

(b) Location of areas for construction site offices and staff facilities;

(c) Details of site security fencing and hoarding;

(d) Details of the timing and routing of construction traffic to and from the construction site

and associated directional signage, to include proposals to facilitate the delivery of abnormal

loads to the site;

(e) Measures to prevent the spillage or deposit of clay, rubble or other debris on the public

road network;

(f) Details of appropriate mitigation measures for noise, dust and vibration, and monitoring

of such levels;

(g) Containment of all construction-related fuel and oil within specially constructed bunds to

ensure that fuel spillages are fully contained. Such bunds shall be roofed to exclude

rainwater;

(h) Off-site disposal of construction/demolition waste and details of how it is proposed to

manage excavated soil, and

(i) A site-specific water management plan, to include detailed drawings for each

development phase of the project identifying measures to ensure that surface water run-off

is controlled such that no silt or other pollutants enter estuarine waters, local surface waters

or drains.

A record of daily checks that the works are being undertaken in accordance with the

Construction Management Plan shall be kept for inspection by the planning authority.

Reason: In the interests of amenities, public health and safety.

16. Construction and demolition waste shall be managed in accordance with a Construction

Waste and Demolition Management Plan, which shall be submitted to, and agreed in writing

with, the planning authority prior to commencement of development . This plan shall be

prepared in accordance with the ‘Best Practice Guidelines on the Preparation of Waste

Management Plans for Construction and Demolition Projects,’ published by the Department

of the Environment, Heritage and Local Government in July 2006.

Reason: In the interest of sustainable waste management.

17. During the site clearance, preparation and construction phase of the development, dust

levels shall not exceed 350 milligrams per square metre (TA LUFT Air Quality Standard) per

day averaged over 30 days, when measured at the site boundary.

Reason: In the interests of public health and residential amenity.

18. (a) The vibration levels from blasting shall not exceed a peak particle velocity of

12mm/sec.

(b) Blasting shall not give rise to air overpressure values exceeding 125 dB (Lin) max peak.

(c) Blasting shall only take place between 1000 hours and 1700 hours from Monday to

Friday. Prior to the firing of any blast, the developer shall give notice of their intention to

the occupiers of all dwellings within 600 metres of the site. An audible alarm for a minimum

period of one minute shall be sounded. This alarm shall be of sufficient power to be heard

at all dwellings adjacent to the site.

(d) Blasting activities shall be carried out in accordance with the details submitted to An

Bord Pleanala on the 19th day of April 2024.

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

19. Details of the materials, colours and textures of all external finishes to the proposed

buildings and structures shall be as submitted with the application, unless otherwise agreed

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

Reason: In the interests of landscape and visual amenity.

20. (a) The development shall be carried out in accordance with the Guidance to Manage

the Risk to Marine Mammals from Man-Made Sound Sources in Irish Waters (Department of

Arts, Heritage and the Gaeltacht, 2014).

(b) The developer shall employ suitably qualified marine mammal observers for the duration

of onshore blasting. Commencement of blasting shall be delayed if the marine mammal

observers note dolphins within 500 metres of the site within 20 minutes of the planned

commencement of works. No action shall be necessary if a dolphin approaches once

operations have commenced. A log of the marine mammal observer operations shall be

submitted to the planning authority, following completion of these works.

Reason: In the interest of wildlife protection.

21. The firewater retention pond shall be sized and designed in accordance with the

Environmental Protection Agency (EPA) ‘Guidance on Retention Requirements for Firewater

Run-off’ (EPA 2019). In the event of a fire or a spillage to storm water, the system shall

provide for the automatic diversion of storm water for collection.

Reason: In the interest of environmental protection.

22. Prior to commencement of development, the developer shall agree the location and

nature of any obstacle lights, which may be necessary, with the Irish Aviation Authority.

Details of such lights, if any, shall be submitted for the records of the planning authority.

Reason: In the interest of public safety.

23. Prior to commencement of development, a comprehensive lighting scheme for the

development prepared by a suitably qualified lighting specialist in accordance with Guidance

Note 01/21 The Reduction of Obtrusive Light at Night (Institute of Lighting Professionals

(2021)) shall be submitted to, and agreed in writing with, the planning authority. Lighting

for the facility shall be designed to incorporate relevant best-practice mitigation measures

to minimise light pollution, and shall avoid the use of unfiltered, white LED, metal halide,

white fluorescent, halogen and mercury vapour lighting. Full cut-off lighting shall be

employed for all lighting. LED lighting used on the site should have CCT values at or below

3000K, where possible, and light spill onto the estuary should be restricted. Consideration

may be given to the use of variable lighting levels or other controls to minimise unnecessary

lighting. The scheme shall also set out practices to minimise light pollution during

construction.

Reason: In the interest of visual amenity and to reduce impacts on wildlife and habitats.

24. The developer shall pay to the planning authority a financial contribution 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 commencement of development or in such phased payments as the planning

authority 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 An Bord Pleanala 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.

25. The developer shall pay to the planning authority a financial contribution as a special

contribution under section 48(2)(c) of the Planning and Development Act 2000, as amended,

in respect of works which will facilitate the proposed development, comprising:

(a) The upgrade of the public road (L 1010) between the proposed development site and the

R551, and

(b) Improvements at the junction of the R551 and L 1010 to accommodate the projected

nature and volume of traffic travelling along the L 1010 Coast Road.

The amount of the contribution shall be agreed between the planning authority and the

developer, or, in default of such agreement, the matter shall be referred to An Bord Pleanala

for determination. The contribution shall be paid prior to commencement of development

or in such phased payments as the planning authority may facilitate and shall be updated at

the time of payment in accordance with changes in the Wholesale Price Index - Building and

Construction (Capital Goods), published by the Central Statistics Office.

Reason: It is considered reasonable that the developer should contribute towards the specific

exceptional costs which are incurred by the planning authority which are not covered in the

Development Contribution Scheme, and which will benefit the proposed development.

26. (i) Prior to commencement of development, the developer shall lodge with the planning

authority a cash deposit, a bond of an insurance company, or other security to secure the

provision and satisfactory reinstatement of public roads damaged by the transfer of materials

or use as haul routes associated with the proposed development, coupled with an agreement

empowering the local authority to apply such security or part thereof to the satisfactory

completion of such works. The form and amount of the security shall be as agreed between

the planning authority and the developer or, in default of agreement, shall be referred to An

Bord Pleanala for determination.

(ii) Prior to commencement of development, the developer shall lodge with the planning

authority a cash deposit, a bond of an insurance company, or such other security as may be

acceptable to the planning authority, to secure the satisfactory reinstatement of the site on

cessation of the project coupled with an agreement empowering the planning authority to

apply such security or part thereof to such reinstatement. The form and amount of the

security shall be as agreed between the planning authority and the developer or, in default

of agreement, shall be referred to An Bord Pleanala for determination.

Reason: To ensure the satisfactory completion of the development.”

Overall requirements for relief by way of judicial review

34. 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.

35. 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

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

in previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

High Court, 24 January 2024).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

repetition”.

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

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

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

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

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

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

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

on are expressly enumerated if they are implicitly identifiable with acceptable

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

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

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

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

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

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

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

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

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

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

accept the point made by the applicant without first addressing the

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

objection if it fails either way.

Onus of proof

37. 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 appropriate assessment (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/ environmental impact assessment (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).

Discretion

38. Some issues regarding discretion established by the caselaw are as follows:

(i) Judicial review is a discretionary remedy: per Charleton J. in Dun Laoghaire

Rathdown County Council v. Westwood Club Ltd [2019] IESC 43, [2020] 3 I.R. 417

at 10; per Murray J. (Whelan and Pilkington JJ. concurring) in O’Connell v. Behan

[2021] IECA 186 (Unreported, Court of Appeal, 1 July 2021) at 43. This historically

arose from the development of judicial review out of the power to grant equitable

relief.

(ii) Discretion applies both at the leave stage and at the substantive stage:

Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, 25

March 2026), De Róiste v. Minister for Defence [2001] IESC 4, [2001] 1 I.R. 190,

[2001] 2 I.L.R.M. 241 at 204 per Denham J.; per Finlay C.J. in G. v. DPP [1994] 1

I.R. 374 at p. 378.

(iii) The effect of the doctrine of discretion is that even if there was a “jurisdictional”

infirmity such as in planning application documents, AA, or other such requirement

the process is not automatically void ab initio and certiorari is not automatic:

Byrnes v. Dublin City Council [2017] IEHC 19 (Unreported, High Court, Baker J., 18

January 2017); Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403

(Unreported, High Court, Owens J., 16 June 2021); Ballyboden Tidy Towns Group v.

An Bord Pleanála [2023] IEHC 722 (Unreported, High Court, Holland J., 21 December

2023) (§102 et seq.); and Reilly v. An Coimisiún Pleanála [2025] IEHC 659

(Unreported, High Court, 28 November 2025) (§81 et seq.).

(iv) The court can exercise discretion of its own motion because the court itself has to

be satisfied as to the correctness of granting relief: Ballyboden Tidy Towns Group v.

An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22

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

implies that the court has an entitlement to exercise such discretion itself even if a

party doesn’t plead discretion as such or pleads it on limited grounds.

(v) In exercising that discretion however the court is bound by established principles

as to the exercise of such discretion: Amariei v. Chief Appeals Officer [2026]

IESC 22 (Unreported, Supreme Court, 25 March 2026) at 60. As Donnelly J. pointed

out in that case at 27, the use of the term discretion is strictly delineated. O’Donnell

J. said in Kelly v. Minister for Agriculture [2021] IESC 62, [2023] 1 I.R. 38 that the

court is not “at large”, or is free to take into account “its views on the underlying

merits” (the contrast with Christian below indicates that what is envisaged is merit

in some general sense separate from the “constitutional or legal value[s]”

concerned). Rather, “the circumstances which allow the court not to make an order

which would otherwise be justified must be such as to derive from an important

constitutional or legal value of sufficient weight to warrant not making an order

otherwise justified” (Clarke J. in Christian v. Dublin City Council [2012] IEHC 163,

[2012] 2 I.R. 506, at 567) as cited with approval by Donnelly J. in Amariei at 27.

Thus the court must be conscious of the need for statutory requirements to be

observed, see e.g. Protect East Meath v. Meath County Council [2026] IESC 1

(Unreported, Supreme Court, 22 January 2026).

(vi) The established principles as to the exercise of discretion fall into three broad

categories: conduct of the applicant, the practical value of the remedy, and

disproportionality. Under these headings the following points emerge:

(a) “[T]he action or inaction of the claimant (such as a failure to exhaust

an alternative remedy, delay, laches, waiver, acquiescence or misconduct

in connection with the proceedings)” is relevant (O’Connell v. Behan

[2021] IECA 186 (Unreported, Court of Appeal, Murray J. (Whelan and

Pilkington JJ. concurring), 1 July 2021) at 43). In particular:

1. Failure to exhaust remedies as the general rule: Amariei v. Chief

Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, 25

March 2026), save where for example there is a fundamental failure

of justice: A.B. v Chief International Protection Officer & Ors [2026]

IESC 23 (Unreported, Supreme Court, Donnelly J., 25 March 2026).

“It is a long-standing principle of the law relating to judicial review

that the court asked to quash an administrative decision has a

discretion to refuse to do so if there is an alternative remedy

available to put right the wrong complained of in the proceedings.”

per Dunne J., S. v. Minister for Justice and Equality [2025] IESC 48

(Unreported, Supreme Court, 25 November 2025) at 98.

2. This can include failure by an applicant to take action to protect

their position: Baile Bhruachlain Teoranta v. Galway County Council

[2024] IEHC 604 (Unreported, High Court, 1 November 2024);

Voyage Property v. Limerick City and County Council [2025] IEHC

696 (Unreported, High Court, Holland J., 16 December 2025) at 263-

264.

3. The failure by the applicant to make the point in the process

is relevant: Costello J. in Friends of the Irish Environment CLG v.

Government of Ireland [2021] IECA 317 (Unreported, Court of

Appeal, 26 November 2021) at 277.

4. Unwarranted failure to prosecute the proceedings: Delaney v.

An Coimisiún Pleanála [2025] IEHC 621 (Unreported High Court, 13

November 2025).

(b) Grounds relating to “the practical value of the remedy (such as

mootness or futility) (see Independent Newspapers (Ireland) Ltd v. IA

[2020] IECA 19, [[2021] 1 I.R. 384] at para. 78)” are relevant: O’Connell

v. Behan [2021] IECA 186 (Unreported, Court of Appeal, Murray J.

(Whelan and Pilkington JJ. concurring), 1 July 2021) at 43. Thus for

example a remedy is not required where the order sought would be futile

and inappropriate: Protect East Meath v. Meath County Council [2026]

IESC 12 (Unreported, Supreme Court, 19 February 2026) at 8.

(c) The proportionality of certiorari (as opposed for example to either no

order or declaratory relief only) may also be a factor: 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”. In

particular:

1. The importance of the provision not complied with is a factor – the

process requires “consideration of whether the matter concerned is

one of importance or of triviality”: per Finlay C.J. in G. v. DPP

[1994] 1 I.R. 374 at p. 378 (emphasis added). Thus an

“inconsequential” breach was not a basis for the grant of relief as a

matter of discretion in Kenny v. Dublin City Council [2009] IESC 19

(Unreported, Supreme Court, 5 March 2005) at 79 per Fennelly J.

(Macken and Peart JJ. concurring).

2. Prejudice or the lack of it to the applicant or anyone else (see

O’Connell v. Behan [2021] IECA 186 at 43: “grounds relating to the

impact a remedy will have on others (such as where the grant

of relief would represent an unwarranted interference with the

settled rights or expectations of third parties)”).

3. In assessing proportionality it follows that matters such as the

extent of the non-compliance, whether the error was once-off,

whether the issue is purely historic and cannot reoccur, the level of

deliberation involved in the error and the extent to which reasonable

steps were taken to prevent or identify such an error, whether the

error was rectified promptly when it came to light (if capable of

rectification), whether there is a pattern of non-compliance, and any

other relevant circumstances may be relevant (see also Reid v. An

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

(Unreported, High Court, 24 January 2024) para. 134).

The climate law context

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

following:

(i) The climate emergency represents a critical risk to human and natural life on earth

(as noted in e.g. Wild Ireland Defence v. An Coimisiún Pleanála [2025] IEHC 726

(Unreported, High Court, 17 December 2025) at 53). According to the statutory

Climate Action Plan 2025 published by the Government 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). 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. As well

as general treaty-level commitments to environmental rights (the EU Charter, art.

191(2) TFEU, the polluter pays principle), the following instruments are particularly

notable in that regard:

i. The Emissions Trading System Directive (Directive 2003/87/EC of the

European Parliament and of the Council of 13 October 2003 establishing a

system for greenhouse gas emission allowance trading within the Union

and amending Council Directive 96/61/EC) as amended involves a cap (on

emissions) and trade (in allowances) covering emissions from the

electricity and heat generation, industrial manufacturing and aviation

sectors and, more recently, maritime transport.

ii. Directive 2009/28/EC (the Renewable Energy Directive) 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.

iii. The LULUCF Regulation (Regulation (EU) 2018/841 of the European

Parliament and of the Council of 30 May 2018 on the inclusion of

greenhouse gas emissions and removals from land use, land use change

and forestry in the 2030 climate and energy framework, and amending

Regulation (EU) No 525/2013 and Decision No 529/2013/EU) sets binding

limits on emissions from the land use sector.

iv. Regulation (EU) 2018/1999 (the Governance Regulation) 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).

v. By way of implementation of the Paris Agreement, the European Climate

Law (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.

vi. 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. Case C-325/25 Eneco Wind is ongoing

as to the ramifications of this legislation.

vii. The Effort Sharing Regulation (Regulation (EU) 2023/857 of the

European Parliament and of the Council of 19 April 2023 amending

Regulation (EU) 2018/842 on binding annual greenhouse gas emission

reductions by Member States from 2021 to 2030 contributing to climate

action to meet commitments under the Paris Agreement, and Regulation

(EU) 2018/1999) involves binding obligations on member states to reduce

GHGs in sectors not covered by the ETS system by 2030.

viii. The recast Energy Efficiency Directive (Directive (EU) 2023/1791 of the

European Parliament and of the Council of 13 September 2023 on energy

efficiency and amending Regulation (EU) 2023/955 (recast)) mandates a

significant reduction in energy consumption. The transposition date was

11 October 2025.

ix. 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 to date: 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).

40. 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. …”

41. As in Doyle v. An Coimisiún Pleanála [2026] IEHC 156 (Unreported, High Court, 13 March

2026), 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 sectoral emissions

ceilings (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 lens of the material before the decision-maker

42. 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.

43. 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).

Judicial review is not generally a second chance to dream up new issues

44. One of the bedrock principles of judicial review is that it relates to the legality rather than

the merits of a decision: Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme

Court, 25 March 2026), para. 1 per Donnelly J. (O'Donnell C.J., Charleton and Murray JJ. concurring).

45. It is a logical corollary of that that in general the court should not revisit the merits or quash

a decision by reference to new evidence and/or argument that could have been put before the

decision-taker but was not. Obviously there have to be limited exceptions, for example where the

applicant shows that the information could not have been obtained with reasonable diligence. The

basic point is that the administrative process is not a dress rehearsal for the real debate at judicial

review stage. Judicial review, as Holland J. put it, is not generally “a second chance” to raise issues

that could have been put to the decision-taker (Monkstown Road Residents Association v. An Bord

Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) (§208)).

46. Even if an applicant can make a challenge by way of judicial review, not having previously

put forward material about the point may render the challenge empty and devoid of any prospect of

success if there was otherwise no basis for the decision-taker to have considered the point: North

Great Georges Street Preservation Society v. An Bord Pleanála [2023] IEHC 241 (Unreported, High

Court, 15 May 2023).

47. As to discretion, the following view of Costello J. (Haughton and Murray JJ. concurring) in

Friends of the Irish Environment CLG v. Government of Ireland & Ors. [2021] IECA 317 (Unreported,

Court of Appeal, 26 November 2021) is relevant:

“275. The applicant made a submission on 10 November 2017, but it made no reference

to crucial issues which were central to the appeal. It did not object to the SEA Environmental

Report on the basis that it failed to assess the reasonable alternatives in a comparable

manner to the preferred option, though that was a major plank of its case on appeal, and it

did not assert that the NDP was required to be subject to AA and SEA on the grounds that it

was an integral part of the NPF, which was the key argument advanced to this court to quash

the NDP.

276. This approach was unfair to the respondents, at the very least, and inimical to good

decision making. One of the objectives of public consultation is to permit the public to

highlight defects in the process they believe have occurred before a final decision is taken

so that any such defects may be corrected and the risk of inadvertently reaching an invalid

decision thereby avoided. It is incumbent upon a party who chooses to participate in a

consultative process (as on one who files objections or observations in a planning process)

to raise any points at the earliest possible time in the process. This is conducive to good

administration and ought to reduce the number of legal challenges to administrative

decisions. This court cannot endorse a practice where a point is raised for the first time in

proceedings challenging a final decision which was not, but which could have been, raised

before a decision was reached.

277. This is precisely what occurred in this case and it was not appropriate, even where

the application for judicial review is brought within the time limits established in the Rules

of the Superior Courts. If the applicant wished to raise either of these points it had ample

opportunity to do so. The factual basis for the argument it advanced in these proceedings

was clear from the SEA Environmental Report. It has never suggested that it was not in a

position to argue these issues in its submission of November 2017, nor given any explanation

why this was not done. A party may not reserve or withhold submissions which could and

ought to be made during a public consultation prior to the adoption of a decision to the

hearing of a challenge to the validity of the decision. Such conduct may be relevant to the

exercise of the discretion of the court where an applicant succeeds in its argument but does

not arise for consideration in these proceedings.”

48. There may be issues of the exact scope of the doctrine at the margins which may arise in

an appropriate case. I highlighted some of these questions in An Taisce - The National trust for

Ireland v. An Bord Pleanála [2021] IEHC 254 (Unreported, High Court, 20 April 2021) by reference

to arts. 6 and 9(2) and (3) of the Aarhus Convention, the judgment of 15 October 2009, Djurgården-

Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd, C-263/08,

ECLI:EU:C:2009:631; the judgment of 15 October 2015, European Commission v Federal Republic

of Germany, C-137/14, ECLI:EU:C:2015:683; the judgment of 20 December 2017, Protect Natur-,

Arten- und Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd, C-664/15,

ECLI:EU:C:2017:987; the judgment of 15 March 2018, North East Pylon Pressure Campaign Ltd v

An Bord Pleanála, C-470/16, ECLI:EU:C:2018:185; the judgment of 14 January 2021, LB, Stichting

Varkens in Nood v College van burgemeester en wethouders van de gemeente Echt-Susteren, C-

826/18, ECLI:EU:C:2021:7; directive 2003/25/EC; and some Irish domestic caselaw, particularly

M28 Steering Group v. An Bord Pleanála [2019] IEHC 929 (Unreported, High Court, MacGrath J., 20

December 2019) and Highlands Residents Association v. An Bord Pleanála [2020] IEHC 622

(Unreported, High Court, McDonald J., 2 December 2020).

49. The basic position is that:

(i) If the obligation on the decision-maker is autonomous (for example compliance with

EU law), then the extent to which the obligation is satisfied must be viewed through

the prism of what was before the decision-taker – which may make the challenge

empty in the absence of material having been raised at the time. Discretion may

also come into play significantly, especially but not necessarily exclusively for a

domestic law point that was dreamed up after the event.

(ii) If the obligation is not autonomous, and the point was not raised, then the argument

is generally precluded and/or in any event it would generally be an improvident and

inappropriate exercise of the power of judicial review to quash a decision on such an

esprit d’escalier point.

50. So it can be seen that whether something has to be considered autonomously or not is

frequently not actually decisive.

51. As here, applicants can tend to respond to the foregoing by trying to classify everything as

autonomous anyway in order to improve their chances. But this misunderstands the concept. A

decision-taker has to engage autonomously with the statutory scheme that gives her jurisdiction.

But the extent to which she has to anticipate non-obvious issues and hidden depths in that scheme

is dependent on what is put up in the process. For example, a decision that is clearly in contravention

of, say, a development plan or the habitats directive doesn’t become compliant merely because

nobody pointed that out during the process. But if the contravention is dependent on something

that wouldn’t have been autonomously apparent to a reasonable decision-taker acting reasonably,

then the doctrine of autonomous obligations doesn’t extend to allowing the court to demand legal

clairvoyance or to quash a decision on such an unanticipated basis. Any other approach would be

unworkable, would trespass on the merits in violation of the separation of powers, would impose

burdens on decision-takers that the courts would not accept for themselves, and would require

decision-takers to have superhuman foresight to a degree that would bring the law into disrepute.

52. It follows that opposing parties are not under any legal obligation to engage evidentially with

post hoc affidavits that impermissibly introduce evidence after the event. That said, where an

opposing party wants to ask for permission to reserve the right to reply if the affidavit is held

admissible at the trial, as opposed to replying de bene esse, it would need to make that

unambiguously clear in advance so that the court can manage the matter appropriately. Waiting

until after the trial when an unanswered applicant’s affidavit is upheld in a judgment is,

unfortunately, not the correct way for an opposing party to deal with such a situation.

53. A final question is whether it is a complete defence to this objection that somebody else

raised the point even if the applicant did not. The answer to that is that there are some primarily

EU law related situations such as AA where doubt has to be removed having regard to what was

before the decision-taker even if it was somebody else that put the doubt-creating material forward.

In other situations and particularly domestic law situations, a given application should not be

automatically indulged by granting certiorari on the basis of points she never raised, even if someone

else raised such issues. This is a logical consequence of the doctrine of judicial restraint in the

context of the fact that judicial review is ultimately a branch of equity and is thus subject to the

doctrine of discretion – albeit discretion as understood within doctrinal bounds rather than the court

being at large (Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, 25

March 2026)). Of course one can’t rule out exceptional cases on an ex ante basis but that has no

relevance here. The fact that there are scenarios where a party has standing despite not

participating in the process (e.g. Grace v. An Bord Pleanála [2017] IESC 10, [2020] 3 I.R. 286) is a

separate matter and doesn’t affect that. The fact that SID involves a one-tier process rather than a

two-tier process (involving the council and the commission) is also irrelevant because there is no

right to administrative appeal as such. Judicial review provides the effective remedy against the

commission, and that remedy does not become ineffective by taking into account an applicant’s

failure to raise an issue, because applicants are free to raise issues in the process. So a rule requiring

them to do so is no major obstacle to the remedy. The fact that caselaw envisages that EU-law

related points can be made even though they were not raised in the process (see the judgment of

15 October 2015, European Commission v Federal Republic of Germany, C-137/14,

ECLI:EU:C:2015:683) doesn’t take from the problem that the validity of the ensuing decision must

be assessed through the lens of the material before the decision-taker.

The overall problem for the applicant here

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

summarised as follows:

“1. Applicant – N/A

2. Commission – none of the issues maintained by the Applicant in these proceedings

were raised before the Commission. All of these issues could have been raised but for

unexplained reasons weren’t. For example, insofar as the Applicant now takes issue with

the adequacy of the information contained in the EIAR in respect of GHG emissions or the

approach to assessing same by reference to evidence from Mr Price (which evidence was

never put before the Commission), there was nothing stopping it raising same during the

process. Furthermore, the Applicant has not explained its failure to do so. The Applicant

should not be allowed to maintain such complaints in the within proceedings and/or same

should weigh in favour of refusing relief noting the discretionary nature of the relief sought.

3. Developer – The Developer is supportive of the Commission’s position, as outlined

above.”

55. Judicial review is not generally a second chance to dream up new issues. In the present

case, the application of this principle is terminal as far as the applicant’s complaints are concerned.

The commission correctly summarises the position:

“15. In Friends of the Irish Environment CLG v The Government of Ireland [2021] IECA

317, this Applicant was warned about adopting the ‘unfair’ approach of failing to raise issues

during the decision-making process (§275 et seq):

‘The applicant made a submission on 10 November 2017, but it made no reference to crucial

issues which were central to the appeal…

This approach was unfair to the respondents, at the very least, and inimical to good decision

making. One of the objectives of public consultation is to permit the public to highlight

defects in the process they believe have occurred before a final decision is taken so that any

such defects may be corrected and the risk of inadvertently reaching an invalid decision

thereby avoided. It is incumbent upon a party who chooses to participate in a consultative

process (as on one who files objections or observations in a planning process) to raise any

points at the earliest possible time in the process. This is conducive to good administration

and ought to reduce the number of legal challenges to administrative decisions. This court

cannot endorse a practice where a point is raised for the first time in proceedings challenging

a final decision which was not, but which could have been, raised before a decision was

reached.’

16. The Court’s views therein echo those of the High Court in Wild Irish Defence CLG v

An Coimisiún Pleanála [2025] IEHC 726 (§59-§60):

‘…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…’

17. Noting the Applicant’s reliance on Mr Price’s Affidavit, Monkstown Road Residents

Association v An Bord Pleanála [2022] IEHC 318 (§208) outlined:

‘Judicial review is not, at least generally, a second chance to raise issues which could have

been raised before the Board. The Applicants now ask me to quash the Impugned Decision

on the basis that the Board failed to decide a controversy on the basis of evidence not before

it before it. That I respectfully decline to do…’ (see also Reid v An Bord Pleanála (No.1)

[2021] IEHC 230 ).

18. None of the issues maintained by the Applicant in these proceedings were raised

before the Commission. Attempting to get around this failure, whilst not addressing or

explaining it in any meaningful way, the Applicant seeks to miscategorise the substance of

its own grounds to contend that the Commission was under an autonomous obligation to

consider same and/or that the Applicant was not required to check the Developer’s

‘homework’. In seeking to invoke the autonomous obligation, the Applicant does not identify

any legal shortcoming – such as failing to engage with the statutory requirement. Equally,

in respect of GHG emissions, the reliance on the ‘homework’ exception is misplaced – that

is about not having to identify gaps or omissions in the Developer’s evidence; not, as here,

to engage in merits-based disagreements with the methodology adopted by reference to

evidence never put before the Commission.”

56. The applicant imaginatively offered a somewhat involved argument that seemed to have the

consequence that if EU law was triggered (here, by EIA), then the whole challenge including purely

domestic points would be subject to the Aarhus Convention in a way that was enforceable via EU

law, reinforced by the principle of legal certainty that militated against any discretionary rules even

for such domestic law points. This seems to be a mistaken extension of EU law principles into wholly

domestic law rules.

57. In case I am wrong about that I will consider the merits, but what was or was not submitted

still needs to be a consideration as part of the lens through which the decision must be viewed.

Domestic law issues

Core ground 2 – 2015 Act

58. Core ground 2 is:

“Core Ground 2: The impugned decision is invalid as the Board decision is not consistent

insofar as practicable with the measures identified in section 15(1)(a)-(e) of the Climate

Action and Low Carbon Development Act 2015 and/or failed to have regard to relevant

considerations and/or had regard to irrelevant considerations and/or failed to adequately

consider the Climate Action Plan 2024 and/or Carbon Budgets and/or Sectoral Emissions

Ceilings and/or failed to make a decision on the evidence before it, further particulars of

which are at Part 2 below.”

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

“Applicant’s position

1. The Developer calculated the basis of the CO2 emissions from the proposed

development on the basis of an 80% contribution being made by renewable energy to the

national renewable energy mix by 2030. This was characterized as a ‘major adverse’ effect

for the purposes of EIA, contributing (on the Developer’s calculation) 2.8% of national

emissions inventory.

2. The Commission’s Inspector identified policy support for the proposed development

in the form of support for 2GW of flexible gas-fired power plants and that emissions would

decline as a greater proportion of renewable energy came on stream. This approach

contains 5 discreet errors:

(a) The GHG emissions calculation

3. The EIAR submitted by the Developer (and which formed the basis of the

Commission’s decision) calculated GHG emissions from the proposed development as having

a net calorific value of 204g CO2e/kWh, although it did not provide the parameters or basis

for its calculation.

4. 204 gCO2e/kWh is an emission factor per unit of heat energy which does not reflect

the actual GHG emissions per unit of electrical energy produced. To generate 1 kWh of

electrical energy from natural gas requires far more than 1 kWh of primary energy in natural

gas, because of losses in the generating process of converting heat energy to electrical

energy.

5. As identified in the Affidavit of Paul Price ‘The actual direct emissions from a Closed

Cycle Gas Turbine (“CCGT”) per unit of electrical energy are significantly higher since the

conversion from heat to electricity is far less than 100% efficient. Typical CCGT plant

efficiency is less than 65% and may be much less in average performance terms, when

frequent starts, stops and ramping of operation is considered…“…the theoretical minimum

direct emissions are 316 gCO2e/kWh and in reality they are likely to be significantly higher’.

6. This evidence has never been substantively disputed by the Commission or the

Developer by evidence on Affidavit or, in reality, in its Statement of Opposition where all it

says, without denying the error is that the Commission ‘understood the nature of the GHG

emissions’. It clearly didn’t as they were miscalculated. In any event, such an assertion is

not backed up by the Commissions’ reasoning.

7. In simple terms the 204 gCO2e/kWh is the theoretical carbon intensity from a

particular fuel source and does not account for the losses and attendant GHG emission during

the conversion of natural gas into electricity. It is the latter, and not the former, which

constitute the actual GHG emissions from the proposed development, which GHG emissions

were not correctly calculated by the Developer or assessed by the Commission.

Commission’s Response

General Response to Core Ground 2

8. Core Ground 2 (and the various complaints advanced thereunder) are premised on

the Applicant’s misinterpretation of s.15 of the Climate Action and Low Carbon Act 2015, as

amended (‘the 2015 Act’) – which does not align with the Supreme Court’s interpretation as

recently articulated in Coolglass Wind Farm Limited v An Coimisiún Pleanála [2026] IESC 5

(‘Coolglass’).

9. Core Ground 2 is predicated on various complaints alleged to relate to s.15 of the

2015 Act – it is relevant, noting Coolglass (§118(xiv)), that the Applicant raised none of

same in its submission to the Commission and so cannot seek to impugn the Commission’s

decision now on the basis of same.

10. The Applicant must show that the Commission’s Decision falls outside the spectrum

of permissible options open to it; a fundamental flaw of the Applicant’s s.15 argument is

that it fails to articulate same by reference to the Commission’s functions under the PDA.

For example, taking two of the Commission’s functions:

- Noting s.37G(2), there is no complaint that the Development Plan, which includes

objectives expressly supporting the Proposed Development, is inconsistent with s.15

(with the Commission finding alignment between same).

- Noting the requirements of s.143(1), there is no complaint that any of the multiple

State policies or objectives which also support the Proposed Development are

inconsistent with s.15.

11. As per Coolglass, the Commission can presume that other plans and policies are

consistent with s.15 and climate obligations – the Applicant herein advances no case to the

contrary.

12. As the Applicant’s s.15 arguments – same largely ignore the nature and rationale

informing the grant of permission (and the policy context to same); are premised on an

overly strict interpretation of CAP24 in seeking to read in mandatory requirements which

must result in permission being refused; are based on a misinterpretation of s.15

requirements, which do not impose a project-level carbon ceiling or convert national carbon

budgets/sectoral ceilings into mandatory thresholds applicable to individual planning

permissions (such an approach would potentially stifle all development); and comprise

impermissible, merits-based arguments regarding the approach/methodology to assessing

GHG emissions, ignoring evidence in relation to conditioning and mitigating impacts.

Notably, s.15 does not refer to carbon budgets or sectoral emissions ceilings (provided under

ss.6A-6D of the 2015 Act, with the Advisory Council having a role on reporting on same

(s.12)) – therefore, the Applicant’s attempt to invoke a consistency standard per s.15 is

misplaced and no other route map to such an obligation is advanced in its pleadings. In this

respect, Coolglass (§84) notes that s.15 does not create a ‘traffic light system of climate

friendly (go) (unless impracticable) and climate unfriendly (stop)’.

13. In this case, noting the policy support for the development, the Commission carried

out an EIA which recognised that the operation of same would cause an increase in GHG

emissions and noted that this would be adequately mitigated by reference to various factors

– including the role of the powerplant in the overall energy generation sector, the facilitation

of renewable generation capacity and the transition to a low carbon system; displacement

of potentially more carbon intensive power generation; operation in the EU Emissions

Trading System (‘ETS’) scheme; embedded design mitigation, including high efficiency and

ability to operate at a low minimum generation capacity, which means that it will be

dispatched before less efficient plants; availability of battery storage; the powerplant will

not operate at 100% capacity all year round; and stated ability to transition to alternative

low carbon fuels/hydrogen. The Applicant does not address any of this in advancing its s.15

arguments and fails to properly engage with the Commission’s Decision in explaining how it

does not fall within the spectrum of possible outcomes envisaged by Coolglass.

14. The Commission, in considering energy and climate policy, imposed specific

Conditions to ensure consistency with statutory climate action targets – Condition 2 and

Condition 3. These Conditions are not impugned in these proceedings and the Applicant has

not sought to explain (and does not plead) how the Commission’s Decision falls outside the

spectrum of potential outcomes open to the Commission in determining the application.

(a) GHG Emissions

15. The Applicant’s complaints here are a merits-based disagreement with the approach

adopted in the EIAR for the assessment of GHG emissions – with the Applicant seeking to

rely on Mr Price’s ‘methods of calculating emissions over the EIAR approach. It is based on

the Applicant’s subjective view as to the adequacy/quality of the information provided –

reflected in complaints of ‘incomplete’ and ‘poor quality’ information. However, the Applicant

disagreeing with the EIAR methodology does not mean that the outcome of same constitutes

a ‘material error of fact’ or a legal error.

16. The only basis for this complaint is evidence that was not before the Commission.

Furthermore, this complaint was not actually made to the Commission. The Applicant seeks

to defend its decision not to raise any complaint before the Commission by saying it was a

matter for the Developer and Commission to be satisfied of. This is not correct and attempts

to disguise the true substance of the complaint – which, in reality, is to dispute the

approach/method for assessing GHG emissions. A difference in opinion in respect of the

approach/methodology for calculating/assessing GHG emissions does not give rise to an

error of fact – a point which the Applicant fails to appreciate. When one delves into this

complaint, it is really a merits-based disagreement (on the basis of Mr Price’s Affidavit, and

in circumstances where Mr Price’s views could have been but were not placed before the

Commission).

17. The approach to identifying a methodology for assessing emissions and the

benchmark against which to assess same comprise a matter of judgment. Whilst the

Applicant and/or Mr Price may not agree with same, this does not constitute a legal error.

When one looks at the extensive evidence submitted by the Developer for assessing GHG

emissions – including the EIAR and the Developer’s appeal response – the approach to

identifying/assessing GHG emissions is clearly set out by reference to an identified

methodology. This was an approach with which the Commission ultimately agreed (as it

was entitled to do in the exercise of its expert decision-making function). The

methodology/acceptability of same is a matter within the competency of the expertise of the

Commission and is reviewable only on grounds of irrationality. Simply disagreeing with the

approach does not render same irrational or unlawful.

Developer’s Response

18. The Developer supports the Commission’s submissions as articulated above.

19. Insofar as the Applicant has identified five purported errors in the Decision, the

Developer submits that no such errors occurred. On the contrary, the Decision was

consistent with the 2015 Act and the measures adopted thereunder.

(a) GHG Emissions

20. While the Applicant alleges that the EIAR incorrectly calculated the greenhouse gas

emissions of the proposed development, this fundamentally mischaracterises the contents

of the EIAR and the requirements of the EIA Directive. The relevant provisions of Article 5

and Annex IV require the EIAR to outline forecasting methods, significant environmental

effects, and the expertise used in its preparation—obligations which were fully satisfied by

the Developer.

21. The EIAR discloses the basis of its emissions calculations. Chapter 15 and the

accompanying Baringa Shannon Report detail a comprehensive operational model covering

2025 to 2050, incorporating renewable penetration, commodity price forecasts, system

constraints, plant efficiency and lifecycle emissions. Direct emissions were calculated by

applying the SEAI standard emission factor, and upstream emissions were accounted for

using SEAI/EMEP EEA upstream factors for natural gas. As such, the Applicant’s claim that

lifecycle emissions or essential parameters were omitted is directly contradicted by the

content of the EIAR.

22. Further, the Developer rejects the assertion that the EIAR underestimates emissions

by not accounting for efficiency losses. The modelling provided for thermal efficiency and

conversion losses, and these outputs were provided to competent experts preparing the

EIAR. Both the Inspector and the Commission concluded that the EIAR adequately identified

and assessed significant environmental effects.

23. Finally, it was entirely appropriate that commercially sensitive elements of the model

were not disclosed. Articles 6(4), 6(6) and 10 of the EIA Directive safeguard industrial

confidentiality while requiring public participation. The EIAR disclosed methodology,

assumptions, and headline results—more than sufficient information for meaningful public

engagement. While the Applicant disagrees with aspects of the methodology used to assess

the significant environmental effects of the Proposed Development and the level of detail

disclosed, such disagreement cannot be sufficient to call into question the adequacy and

accuracy of the information contained in the EIAR (or indeed the competency of the experts

engaged by the Developer).

24. Consequently, the Developer maintains that the EIAR contains no error or

inadequacy and that the Applicant’s challenge to the Decision cannot be sustained.

(b) The incorrect threshold

Applicant’s Position

25. There are two sub-errors under this heading:

26. First, the Commission’s Inspector (with whom the Commission agreed) identified the

obligation to reduce CO2 emissions in the first carbon budget period as a reduction from 8

Mt Co2 to 4 Mt Co2 and that the proposed development would be consistent with achieving

this figure ‘I am satisfied that, if these renewable targets are met, emissions from the

electricity sector will be 4MtCO2e in 2030 and this will assist in achieving the overall target

of 151MtCO2eq.’

27. The correct figure is 3 Mt Co2.

28. The Inspector repeated this error on two occasions and nowhere did they identify

the correct figure.

29. The Commission appears to accept that this was a mistake but argues that the

Inspector was not addressing ‘sectoral emissions ceilings for electricity outlined in the CAP’.

This is entirely incorrect and the Inspector identified the wrong threshold at §10.4.7

expressly in relation to sectoral emissions. The Commission therefore assessed the proposed

development against the incorrect sectoral emissions ceiling and failed to assess it against

the correct emissions ceiling.

30. Second, there was no evidence before the Commission that the target of 80%

electricity demand to be met by renewable energy by 2030 will be achieved and no evidence

that the State is on track to meet the target of emissions from the electricity sector of 3

MtCO2e in 2030. In fact, the evidence of the EPA, which was available to the Commission

and of which it should be aware as an expert body in the field, which purportedly understands

the nature of GHG emissions, shows the contrary. Even the most optimistic scenario from

the EPA does not identify any pathway to achievement of that figure from the current

threshold of approx. 40%.

31. The Commission cannot lawfully grant permission for the proposed development

based on an assumption of the attainment of an 80% renewable energy mix by 2030 in

circumstances where all the evidence demonstrated that this figure would, not even

remotely, be achieved.

Commission’s Response

32. The Applicant takes issue with the Inspector’s reference to “4MtCO2e in 2030”,

claiming that same is in error as the “sectoral emissions ceiling for electricity aims to reduce

emissions in the final year of 2030 to no more than 3 MtCO2e”.

33. This complaint is without substance and is premised on a misreading of the

Inspector’s Report, which was referring to carbon budgets (not sectoral emission ceiling)

and is reflective of the average emissions for the period up to 2030 – as outlined in CAP24

and Appendix 1. (In Submissions, the Applicant appears to misconstrue the Commission’s

reference to Appendix 1 as being that in the Inspector’s Report rather than Appendix 1 in

the CAP24.)

34. Insofar as the Applicant asserts that, based on s.15, “Sectoral Emissions

Ceilings…provide for an absolute limit on permitted emissions from different sectors during

a particular period” and that the “[t]he legal point is that the Commission has to enforce the

Sectoral Emissions ceilings”, these complaints are incorrect. Equally, the Applicant’s attempt

to read-in a prohibition on consents by reference to Carbon Budgets is also misplaced.

Section 15 does not refer to carbon budgets or sectoral emissions ceilings (provided for

under ss.6A-6D of the 2015 Act, with the Advisory Council having a role on reporting on

same (s.12)). The Applicant’s attempt to invoke a consistency standard is misplaced and

no other route-map to such an obligation is advanced in the Applicant’s pleadings.

Developer’s Response

35. The Developer supports the position as outlined by the Commission above.

The Applicant’s position is premised on a misreading of the Inspector’s Report. The

Developer submits that the offending passage can only be construed as referring to the

average annual figures for each five-year period. It is undoubtedly the case that the Sectoral

Emission Ceiling for the electricity sector for the five-year period 2021-2025 is 40MtCO2e.

36. The Sectoral Emission Ceiling for the same sector for the subsequent five-year period

(2026-2030) is 20MtCO2e. When one compares the Sectoral Emission Ceiling for 2021-

2025 with the equivalent figure for 2026-2030, it is clear that the decrease in emissions

required can be accurately described as 50%. Instead of looking at the total Sectoral

Emissions Ceiling for the two five-year periods, it is possible to compare the average annual

emissions required to meet those total Sectoral Emissions Ceiling. These equate to 8 Mt

CO2e per annum for 2021-2025 and 4 Mt CO2e for 2026-2030.

37. Accordingly, it is submitted that the proper construction of the text quoted from the

Inspector’s Report is that it refers to the average figure across the period of the Sectoral

Emissions Ceiling, rather than referring to an annual cap.

(c) Open ended policy support for fossil fuel development

Applicant’s Position

38. The Commission’s decision was very significantly based on policy support for 2GW

of gas fired power generation in the Climate Action Plan. That policy support is provided in

order to back up the apprehended 80% of renewable energy in the CAP which, as above,

will not be achieved.

39. The problem is that there was already nearly 6GW of gas fired power generation

permitted, in development or in operation by the time of the impugned permission. To put

it another way – there is three times as much gas fired power generation as envisaged by

the CAP, to support significantly less than the 80% target for renewable energy.

40. The Developer never undertook the exercise to identify which power stations had

been constructed or been granted planning permission. If the Developer had conducted that

exercise the Developer would have identified that the limit had already been achieved and

that the proposed development was therefore contrary to that same policy. If a policy

defines a limit or a target, it is fundamental to demonstrating compliance with that policy by

providing information on whether and to what extent that limit or target has already been

met. It is then for the Commission, using its expertise, to ensure the completeness and

quality of the EIAR. None of this happened and there is no policy support for 6GW of gas

fired power stations.

Commission’s response

41. As outlined by the Inspector, for the electricity sector, the CAP24 ‘notes that Ireland

will require at least 2GW of new flexible gas-fired generation by 2030’ and identifies as an

action the ‘delivery of at least 2 GWs of new flexible gas-fired generation’ (also identified as

a 2030 Key Performance Indicator).

42. The Applicant’s complaint is that the Commission erred in its consideration of this

aspect of the CAP24 because it says (for the first time in these proceedings) planning

permissions have already been granted for over 2GW of such plants. The Applicant’s

assertions are premised on a prescriptive, finite or maximal reading of the policy – which is

more properly described as flexible – and fail to acknowledge/engage with the evidence

before the Commission. In respect of this issue:

- The Applicant raised no such issue before the Commission and cannot do so now

as a basis for invoking s.15 – particularly where it seeks to rely on its own, post-

decision, ‘non-exhaustive review of both local authority and An Bord Pleanála grants

of permissions’ and live planning applications.

- The complaint ignores the evidence before the Commission (with which the

Applicant raised no issue during the planning process) – for example, Chapter 3 of

the EIAR outlined that new power plants are not being built:

‘Put simply, the Capacity Market is not delivering new power plants, and in the

context of increasing power demand, the result will be increasing amounts of costly

emergency measures and potentially load shedding events.’

The Applicant’s approach also ignores the evidence before the Commission regarding

the shortfall in power generation capacity (inter alia, EIAR, Chapter 3, §3.3.1).

There was no error by the Commission in its approach, noting the actual evidence

before it.

- The Applicant’s complaint that there is approximately 5.7GW of open cycle gas

turbines plants consented or in the planning process, and there was therefore no

need for the Proposed Development, again ignores the evidence before the

Commission (outlined above) and the requirement of the CAP24 – which is for ‘at

least 2 GW of new flexible gas-fired generation by 2030’.

- As outlined above, regarding s.15, the Applicant fails to engage with the other

policies before the Commission which informed the exercise of its functions – such

as the consideration of the Development Plan and the SIFP, which expressly support

the Proposed Development and in respect of which the Applicant makes no s.15

complaint.

Developer’s response

43. The Applicant argues that the Commission erred in concluding that the Proposed

Development was consistent with the NDP and CAP 2024. The text of these policy

documents contradicts the Applicant’s position. Both plans expressly envisage, and indeed

encourage, the delivery of substantial new gas fired electricity generation capacity to support

the transition to a predominantly renewable energy system. The Commission therefore

acted within its remit in finding policy support for the proposal.

44. The NDP identifies the delivery of approximately 2GW of new conventional, mainly

gas fired, electricity generation capacity as a strategic investment priority, designed to

provide security of supply when wind and solar output is insufficient. CAP 2024 similarly

calls for the delivery of at least 2GW of new flexible gas fired generation. Against this

backdrop, the Developer submits that the Proposed Development directly meets these

objectives by providing additional flexible gas-fired generation capacity. It further contends

that refusing permission would itself have been inconsistent with the CAP, given its binding

targets under the 2015 Act.

45. The Applicant falls into error by treating the relevant objective in the CAP 2024, for

the delivery of at least 2GW of new flexible gas-fired generation, as an upper limit or ceiling

on additional gas-fired generation capacity. The Applicant also errs in seeks to rely on

existing permissions granted for other gas fired projects, suggesting that the national

requirement has already been met. It is neither the role of the Commission nor the

Developer to undertake an inventory of system wide capacity—this function lies with the

Single Electricity Market Committee, which already assessed the Proposed Development and

awarded it a capacity contract.

46. The Commission's function in reaching the Decision was to apply the energy and

climate targets set out in the measures adopted under the 2015 Act. It was not a function

of the Commission to call into question or audit the underlying modelling or projections which

gave rise to the targets.

(d) Section 15(1) obligations

Applicant’s Position

47. Nowhere did the Commission address or identify how their decision was ‘consistent’

with the Commission’s obligations pursuant to section 15(1) of the 2015 Act.

48. At no point is the national climate objective ever identified, let alone the necessity

to consider whether a proposal which will generate this quantity of emissions is consistent

with that objective or the obligation of ‘mitigating greenhouse gas emissions’.

49. To put it simply – the Commission cannot simply point to a long expended limited

policy support for 2GW of gas fired power generation in the CAP as a complete answer (or

indeed any answer) to its obligations under section 15 of the 2015 Act.

50. Concurring with the judgment of Humphreys J ([2025] IEHC 1), the Supreme Court

confirmed in Coolglass that the phrase ‘shall, in so far as practicable, perform its functions

in a manner consistent with’ elevates the duty far above a mere ‘have regard to’ standard.

The Supreme Court held that the 2021 amendments represent a ‘step change’ and that the

obligation cannot be reduced to a purely procedural obligation. Crucially, the Court

determined that the obligation is one of outcome, not merely process.

51. Therefore the Commission must demonstrate that its decision falls within the legally

permissible spectrum of consistency with the climate objectives. If the Commission departs

from these objectives, it can only do so where compliance is objectively impracticable. The

Commission does not even get as far as that in this case – there is no substantive

consideration at all of section 15 by the Inspector or the Commission, still less any

consideration of the required assessment of consistency.

Commission Response:

52. The Commission’s response to this sub-ground is set out above under ‘General

Response to Core Ground 2’.

Developer’s Response:

53. The Applicant’s argument that the Decision does not address or adequately

demonstrate its consistency with the measures listed in section 15(1)of the 2015 Act is

without foundation. The Decision expressly refers to the matters listed in section 15(1)(d)-

(e) and explains its consistency with them. (See, for example, the Inspector’s Report at

§§10.2.2, 10.2.5, 10.2.12, 10.4.7, and the Commission’s Order, p.13).

54. Accordingly, there can be no basis for the Applicant’s argument regarding section

15(1) obligations. The Commission considered those obligations directly, in express terms,

and concluded that the grant of planning permission for the Proposed Development was

consistent with them, in conjunction with its assessment of the consistency of the Proposed

Development with the CAP 2024.

(e) The budget is already used up

Applicant’s Position:

55. The EPA’s figures (as identified to the Commission by An Taisce) found that Ireland

was on course for a 29% emissions reduction by 2030 rather than the required 51% (both

when judged against a 2018 baseline).

56. It was made clear to the Commission that the Carbon Budget for 2021-2030 has

already been exceeded and that overshoot will have to be carried forward into the second

and third carbon budget periods.

57. The Commission wrongly proceeded on the assumption that 151MtCO2eq. would be

available for the third carbon budget period. However, the evidence before it was that there

was no chance of that budget actually being available. Therefore, the Commission

erroneously proceeded on the basis of compliance with a carbon budget allowance that,

manifestly, will not be available owing to overshoots in the first and second carbon budget

periods.

58. The Commission erred in law and did not consider how the proposal generally was

compatible with the carbon budgets generally or specifically the diminished carbon budgets

as they will be post 2030 per the EPA Report.

Commission’s Response:

59. The Commission’s response to this sub-ground is set out above under ‘(b) the

incorrect threshold’ above.

Developer’s Response:

60. The Developer’s response to this sub-ground is set out above under ‘(b) the incorrect

threshold’.”

60. When viewed in the light of (a) the applicant’s failure to raise the complaints under this

heading in the process, and/or (b) the margin of evaluation within s. 15 of the 2015 Act as

determined by the Supreme Court in Coolglass, no error by the commission has been demonstrated.

The applicant is not entitled to knock down the result by reference to new scientific arguments that

were never made in the process either at all or by it, without demonstrating (which it hasn’t done)

that there were errors that would be obvious to any reasonable decision-taker.

61. If I am wrong about that, the points have not been made out in any event. The applicant

takes the project out of its industry context and regards it as a stand-alone source of new GHG

emissions. What was before the commission however was an environmental impact assessment

report (EIAR) that contended that the project would replace less efficient power generation and

hence would have a positive effect. The applicant hasn’t demonstrated that to fall outside the

commission’s zone of evaluation.

62. Section 3.7 of the EIAR provided material to the commission on which it was open to the

commission to conclude that the project was the most efficient, flexible and reliable option with the

lowest CO2 emissions profile of a number of alternatives considered, and that EirGrid considers the

proposed development to be the best new entrant to the industry in this category. The EIAR states

that the project will allow the system operator to supersede power drawn from less efficient energy

plants – pp. 15-27, 15-34, 15-35. By definition, as the most efficient gas plant in the system it will

have preference in dispatch over less efficient plants once renewables are accounted for, thereby

generating GHG savings. This was accepted by the inspector at para. 10.4.2 and at section 7 (2nd

bullet point) of the reasoned conclusion in the commission order that the impacts would be mitigated

by:

“• Displacement of potentially more carbon intensive power generation;”

63. That is a significant and central point. One can take any project in isolation and out of

industry context and condemn it for causing emissions. But placed in the context of a properly

defined baseline scenario – here, one involving less efficient plants – the impacts may be significantly

less. That applies here, as the commission found, and the applicant has not shown that conclusion

to be unlawful. Hopefully it won’t be misunderstood if I risk saying that while I agree with the

applicant that every molecule of carbon is equally toxic for the atmosphere, nonetheless some fossil

fuel projects are more equal than others. The critical point is the baseline – not the gross amount

of GHG emissions but the comparison with the counterfactual of no project in any given case. Or if

the parties can bear me putting it another way, if we are currently on course towards the ninth circle

of climate hell, the way out envisaged by national climate legislation is not straight to paradise but

gradually back through the outer circles. More efficient gas-fired energy production moves in

principle in that direction, given the baseline.

64. That said, the flaw, I think, in the developer’s argument as a universal response to climate-

based objections is that it assumes that demand is constant. But demand is not constant – it has

been on an ever-increasing upward trend, with occasional and purely temporary fluctuations, since

the start of the industrial revolution. If demand increases by more than what can be met by an

increase in energy produced from renewables then more gas power plants would mean more

emissions because they will be required to meet additional demand and thus add to rather than

supersede dispatched energy generated from existing less efficient gas plants. But even bearing

that potential caveat in mind, the applicant has not displaced the commission’s rationale here. The

ultimate false premise of the applicant’s argument is to take the plant in isolation rather than in a

system context. (As a hopefully forgivable aside, even if 100% of energy requirements were met

by renewables, that established trend of ever-increasing demand would eventually reach a breaking

point – unless perhaps society could make nuclear fusion work and would make the policy choice to

live with any downsides of that technology. Obviously and for the avoidance of doubt that is not

advocating nuclear energy – on the contrary it is pointing out that failure to limit endlessly increasing

demand would leave no good options.)

65. Of notable relevance in that regard is the fact that the project was conditioned in terms

relating to supply to the national grid and in time-limited terms, as recommended by the inspector:

“I consider and recommend to the Board, if the Board is minded to grant permission for the

Proposed Development, that an appropriately worded condition should be attached to such

a grant of permission to enable the facilitation of the entire generating capacity of 600MW

to be exported to the national grid, if the applicant was in a position to do so. As well as

this, and in order to meet the legally binding emissions limits and carbon neutral target by

2050, I recommend to the Board that such a condition should also be time limited, for

example allowing up to 600MW to be exported to the national grid for back-up use only until

31st December 2050.”

66. To that extent the complaints of being locked-in to fossil fuels are somewhat overblown.

The lock-in is for a fixed sentence, not an indeterminate one.

67. The complaints regarding budgets and SECs, calculations and alleged open ended policy

support for GHGs (headings (a) and (c)) are clearly a misreading of the decision and in any event

budgetary matters are not directly covered by s. 15(1). No adequate route map between the

complaint and relief is set out on the pleadings.

68. Insofar as the complaint is that account was not taken of the efficiency of the plant, the

applicant has not proved that such account was not taken. The notice party’s submission on this

issue highlights the unproven premise:

“19. This submission proceeds on the erroneous assumption that the calculations in the

EIAR have not accounted for any such efficiencies. On the contrary, the methodology

through which the direct emissions from the operational phase were calculated took full

account of the thermal efficiency of the Proposed Development in conjunction with the

standard emission factor by the SEAI. The Baringa Shannon Report outlines a model that is

used to estimate the likely electricity generation figures for the Proposed Development

during its operational life. The model also calculated efficiency values for the Proposed

Development, which reflect the heat energy that is lost through the conversion of that energy

to electricity. These figures were then provided to the competent expert to prepare the

EIAR.”

69. Insofar as the point is made that there is an error in §10.4.7 of the inspector’s report

(heading (b)) referring to a 2030 target for the electricity sector of 4 MtCO2eq when they say this

should be 3 MtCO2eq, that can and should be read in a non-erroneous manner as an average rather

than in an erroneous manner as pleaded. CAP24 refers to Carbon Budget 2 (2026-2030) in the

sector of 20 MtCO2eq – 20 MtCO2eq over 5 years is 4 MtCO2eq/yr on average. A decision should be

read as valid where a valid reading is reasonably open. If you go looking for error, as the applicant

does here, you will find it. That is not a correct approach to judicial review. Anyway there is no

route map from the alleged error, even if there was an error, to the claimed relief.

70. Insofar as concerns an overall complaint about breach of the 2015 Act (heading (d)), I have

largely dealt with that above. The applicant has not shown that the margin of evaluation has been

exceeded. Net zero by 2050 does not mean zero use of gas right now (or even necessarily at that

point – the grid still needs to be stabilised). Some combination of different energy sources is going

to be necessary to stabilise the grid and to supply actual energy needs pending the delivery of

massively increased renewables. The EIAR puts the matter in a way that comes acceptably within

the 2015 Act:

“... without a supply of gas-powered electricity generation, Ireland would not meet its 80%

by 2030 renewable energy electricity target, in turn allowing Ireland to meet its national

carbon reduction target. Furthermore, direct operational emissions from the Proposed

Development will be covered by the EU ETS.”

71. The complaint that allowance for gas projects has been used up (heading (e)) was not made

by the applicant to the decision-taker and so no relief should be granted on that basis here. Even if

it had been so made, the policy is not as rigid as the applicant makes out and no exceedance of the

margin of evaluation has been demonstrated. In particular, the new gas-based energy provision is

phrased as a minimum (“at least”), not a maximum.

EU law issues

Core ground 3 – EIA regarding emissions

72. Core ground 3 is:

“Core Ground 3: The impugned decision is invalid because the Board’s decision is contrary

to Articles 1, 5 and 6 of the EIA Directive, further particulars of which are set out in Part 2

below.”

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

“Applicant’s Position:

61. The EIAR used a manifestly incorrect factor as the basis for the calculation of gross

GHG emissions, namely 204 gCO2e/kWh Net Calorific Value taken from SEAI (p.15-33).

This is not the correct relevant factor for calculating GHG emissions per unit of electricity

produced since it grossly underestimates the quantity of GHG emissions that would be

produced, ignoring conversion losses and lifecycle emissions.

62. This is contrary to Article 5(1) of the EIA Directive which requires a Developer to

provide certain information, including the information contained in Annex IV. Annex IV

includes a requirement to include an estimate of the emissions to be produced by the

proposed development, a description of the likely significant effects on the environment, a

description of the likely significant effects on the environment as a result of the emission of

pollutants, and a description of ‘the forecasting methods used to assess the effects on the

environments’.

63. The Commission not only failed to properly examine the EIAR, but the consequence

of this also resulted in it lacking objective information to accurately establish projected

emissions, establish the GHG emissions intensity, or verify compliance with substantive

environmental law relating to the environment. The public were similarly not adequately

informed under Article 6, in breach of the rules on public participation.

64. The Commission cannot answer this by saying that it identified the most severe

impact possible. The ‘most severe impact possible’ can still encompass a range of emissions.

The EIAR itself must have complete information; and secondly the assessment in this

instance is against the legal obligations in the 2015 Act (as amended) and not some notional

concept of significant effect. It cannot stand over the use of different and lesser GHG

emissions arrived at on foot of a forecasting methodology that was not disclosed and seek

to justify that because, in effect, its conclusion in relation to GHG emissions could not be

any worse (which is in any event incorrect).

Commission’s Response:

65. This Core Ground overlaps significantly with the Applicant’s complaints under Core

Ground 2 regarding alleged errors in the EIAR. In this respect, the Commission adopts its

position in respect of same set out above – noting that, inter alia, the complaint appears to

comprise a merits-based disagreement with the methodology informing the EIAR and the

adequacy of same.

66. Again, the Applicant made no complaint to the Commission about the EIAR during

the application process – for example, it did not claim to not understand how GHG emissions

were calculated or complain about the EIAR methodology/approach.

67. The Inspector and Commission were satisfied that the EIAR complied with the

requirements of Art.5(1) and Annex IV of the EIA Directive – there was nothing irrational

about this or the Commission’s subsequent EIA, and the Applicant’s merits-based complaints

do not provide any basis for alleging any contravention of the requirements of the EIA

Directive when the evidence before the Commission is properly understood.

68. Whilst the Applicant has not referred to same, Chapter 15 of the EIAR, ‘Climate’,

addresses GHG emissions – including the approach for assessing same and the respective

results. The following points should be noted regarding this chapter:

- Same sets out a description of the forecasting methods and evidence (Section

15.5), along with details of the baseline data (Section 15.6).

- Same outlines how the levels of direct emissions and lifecycle emissions were

calculated, including all key parameters.

- It is noted (Section 15.8.1.2) that the operation of the powerplant will depend on

many different factors – including the demand for electricity, the amount of

renewable energy available to the system, the bid price for the electricity on the

market as compared with that of other generators, and the rules of the energy grid

which ensure priority for renewable energy. It is also noted that as levels of energy

generated from renewable sources increase, there will be a requirement to use other

energy sources to ensure security of supply.

- A detailed market model is provided (Appendix A3.1) to estimate the future

operation of the powerplant from the third quarter of 2025 to 2050. The model

considers the level of renewable generation to 2050, future commodity prices,

technology costs, generator bidding behaviour, and governmental and regulatory

policy.

- The running hours and operational efficiency (Appendix A3.1) were given to

AECOM. AECOM then calculated the CO2 emissions which were presented in Figure

15.1 of the EIAR.

- As outlined in the Developer’s Opposition papers, in the interests of commercial

confidentiality and the protection of intellectual property rights of the owner of the

model, some of the future commodity prices, technology costs, generator bidding

behaviours were redacted from Appendix A3.1. This was not within the control of

the Developer. However, the redacted elements are not relevant or necessary for

the assessment of any significant effects of the Proposed Development on climate

change. Notwithstanding these redactions, the EIAR is fully compliant with the

requirement under the EIA Directive to provide an intelligible account of the methods

employed to allow the Commission to come to a reasoned conclusion on the

existence of any significant effects.

- Same explains that ‘carbon emissions associated with annual electricity generation

have been taken from the Sustainable Energy Authority of Ireland's emission factor

applied for natural gas with a 204 g per kWh net calorific value’. This is consistent

with the country-specific factors published by the EPA for EU ETS annual emissions

reporting, derived from Ireland’s national GHG inventory. It is therefore entirely

appropriate that this factor would be used.

69. When properly understood, there was no flaw in the Developer’s EIAR and the

Commission was lawfully entitled to conclude as it did.

Developer’s Response:

70. The Developer supports the position as outlined by the Commission above.

71. The Developer complied with its obligation to submit an EIAR in conformity with the

requirements of the EIA Directive. In particular, the EIAR includes a description of the

forecasting methods or evidence used to identify and assess any significant effects on

climate change arising from the Proposed Development. The description of the forecasting

methods and evidence used is set out in Section 15.5 of the Climate Chapter of the EIAR.

Section 15.6 provides details of the baseline data that were used for this purpose.

72. Therefore, the Developer submits that the EIAR was compliant with the requirements

of the EIA Directive and the Decision was lawful.”

74. When viewed in the light of (a) the absence of material in the process calling into question

the EIAR on the precise grounds relied on under this heading, and/or (b) the margin of evaluation

enjoyed by a decision-taker in the EIA process, no error by the commission has been demonstrated.

75. I agree with the applicant that the commission has an autonomous duty to come to a

reasoned conclusion on EIA even if no process participant comments adversely on the EIAR.

76. However that does not get us very far because the commission did come to a reasoned

conclusion here. The onus is on an applicant to displace that – an onus this applicant has not

discharged.

77. The applicant misunderstands European Commission v Federal Republic of Germany.

Nobody is saying that an applicant cannot challenge the EIA or AA even if it made no relevant points

in the process. The point is that when such a challenge comes to be evaluated, it has to be evaluated

through the prism of what was before the decision-taker, albeit, in an EU law context, including

material put forward by others. If such material or reasoning is not demonstrated by an applicant

to be inadequate then in the absence of any flaw on the face of the decision, the challenge is going

nowhere.

78. The fact that the concept of environmental effects for the purposes of 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) includes the

environmental framework at domestic level doesn’t have the effect of completely assimilating

domestic environmental law into EU law for all purposes. It merely requires the EIAR to cover such

effects.

79. Furthermore there is generally an ineradicable element of evaluation in determining (a) what

are the effects, (b) whether they are significant and (c) whether they are acceptable for the purposes

of the reasoned conclusion.

80. So what is fatal for the applicant here is not just the failure to raise the point but the absence

of material before the decision-taker rendering the EIA conclusion and reasoning such as to fall

outside the margin of evaluation or giving rise to the demonstration of any other error so as to

warrant certiorari or in any other way.

81. Insofar as complaint is made that there was a lack of transparency about certain details such

as the “efficiency” of the plant, the onus is on an applicant to demonstrate a defect in the EIA

process, something this applicant has not achieved here. It would be simplistic and inappropriate

for the court to impose some sort of mandatory post hoc quasi-legislative list of essential detailed

particulars or box-tick checklist to be set out for an EIA to be valid. What is required information

varies from case to case within a margin of evaluation.

82. In any event, commercial confidentiality is acknowledged by art. 10 of the EIA directive:

“Without prejudice to Directive 2003/4/EC, the provisions of this Directive shall not affect

the obligation on the competent authorities to respect the limitations imposed by national

laws, regulations and administrative provisions, and accepted legal practices with regard to

commercial and industrial confidentiality, including intellectual property, and the

safeguarding of the public interest.”

83. The applicant has not demonstrated that the decision is invalid bearing in mind this provision

and/or the margin of evaluation, in the overall context of bearing the burden of proof.

84. Insofar as there is any complaint about reliance on confidentiality in particular, the only

reference to this specifically in the pleadings is at para. 77 which is just a statement of fact and not

a legal complaint. The applicant makes general pleas about lack of information but not in a way

that expressly takes issue with the right to claim confidentiality.

85. The fact that the logic of the judgment of 28 May 2020, IL and Others v Land Nordrhein-

Westfalen, C-535/18, ECLI:EU:C:2020:391 (albeit in the water framework directive (WFD) context)

establishes that the data provided in EIA must be sufficient to enable the public to have “an accurate

impression of the impact that the project at issue will have” (para. 86) does not nullify the burden

of proof being on an applicant in any challenge to a development consent to demonstrate that the

information was insufficient for this purpose – a burden this applicant has not discharged. Anybody

can comb through materials after the event for any decision and quibble with what is or is not there.

But to warrant certiorari, any alleged errors or omissions have to be established at a level that

demonstrates that the public did not have an accurate impression of the impact, and indeed that

this was not rectified by the decision-taker. Such a conclusion has not been established here.

86. The applicant complained that industry estimates had been used in certain respects and

there was no specific information about what the estimates were. The pleadings don’t take issue

with the use of estimates as such. Insofar as the complaint now is that the developer’s full workings

were not set out, an applicant still has the burden to demonstrate that a reasonable decision-taker

would have interrogated the material more rigorously in order to meet minimum standards. That

hasn’t been achieved.

87. The applicant also noted in submissions that there was a reference in the EIAR to the

incorrect statutory instrument regarding EIA, but accepted that this was not a pleaded point.

Therefore I don’t need to give it any further consideration.

Core ground 5 – taxonomy regulation as relevant to the 2015 Act

88. Core ground 5 is:

“Core Ground 5: The impugned decision is invalid because the Board erred in law in

concluding that the proposed development would be in accordance with the proper planning

and sustainable development of the area and/or the Board erred in deciding that it had

performed its functions in relation to the making of its decision, in a manner consistent with

section 15(1) of the Climate Action and Low Carbon Development Act 2015 (as amended)

and/or with the relevant provisions of the Climate Action Plan 2024, further particulars of

which are at Part 2 below.”

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

“Applicant’s Position

73. Regulation (EU) 2020/852 on the Establishment of a Framework to Facilitate

Sustainable Investment (the Taxonomy Regulation) establishes a classification system that

defines criteria for economic activities that are aligned with a net zero trajectory by 2050

and the broader environmental goals other than climate. Article 3 sets criteria which are

required for the purposes of establishing the degree to which an investment is

environmentally sustainable.

74. Delegated Regulation 2021/2139 (amended several times) supplements the

Taxonomy Regulation, by establishing the technical screening criteria for determining the

conditions under which an economic activity qualifies as contributing substantially to climate

change mitigation or climate change adaptation and for determining whether that economic

activity causes no significant harm to any of the other environmental objectives. Paragraph

4.29 of Annex 1 sets technical screening criteria in relation to climate change mitigation for

electricity generation from fossil gaseous fuels; Paragraph 4.29 of Annex II of the Delegated

Regulation sets technical screening criteria in relation to climate change adaption, as well as

‘Do No Significant Harm’. (The concept of ‘Significant Harm’ is addressed in Article 17 of the

Taxonomy Regulation).

75. The proposed development does not satisfy the criteria in paragraph 1(a) of the

Technical Screening Criteria since it does not have life-cycle GHG emissions from the

generation of electricity using fossil gaseous fuels which are lower than 100 g CO2e/kWh.

76. The Taxonomy Regulation provides a Union wide definition of what economic

activities are ‘environmentally sustainable’ and the Applicant’s contention is that there is

now a harmonised EU definition of sustainability and the Commission cannot reach a

conclusion that the proposed development is a ‘sustainable development’ in circumstances

where the proposed development is not ‘environmentally sustainable’ for the purposes of

the Taxonomy Regulation. In other words, an economic activity cannot simultaneously be

‘sustainable’ for the purposes of national law but also, as here, unsustainable for the

purposes of Union law.

Commission’s Response:

77. The Applicant’s contention in respect of this Core Ground is premised on Regulation

(EU) 2020/852 of the European Parliament and the Council of 18 June 2020 on the

establishment of a framework to facilitate sustainable investment and amending Regulation

(EU) 2019/2088 (OJ L 198/13 22.6.2020, p. 13-43) (‘the Taxonomy Regulation’), or the

Commission Delegated Regulation (EU) 2021/2139 of 4 June 2021 supplementing Regulation

(EU) 2020/852 (‘the Delegated Regulation’) and the ‘Do no significant harm’ (‘DNSH’)

principle outlined in same.

78. The Applicant makes no attempt to explain, by reference to the Commission’s

jurisdiction, how the Taxonomy Regulation applies to it. In fact, the Applicant’s Submissions

fail to refer to Art.1– which defines the scope and application of the Taxonomy Regulation.

Art.1(2) provides:

‘This Regulation applies to:

(a) measures adopted by Member States or by the Union that set out requirements for

financial market participants or issuers in respect of financial products or corporate bonds

that are made available as environmentally sustainable;

(b) financial market participants that make available financial products;

(c) undertakings which are subject to the obligation to publish a non-financial statement

or a consolidated non-financial statement pursuant to Article 19a or Article 29a of Directive

2013/34/EU of the European Parliament and of the Council(68), respectively.’

Same does not apply or even purport to apply to development consents/EIA processes.

79. As appears from Art.3, Art.9 and Art.10, the Regulation is concerned with setting

the parameters by which an economic activity and investment in same can be considered as

‘environmentally sustainable’.

80. There is no legal basis for the ‘read across’ which the Applicant attempts under this

Core Ground. Its reliance on the Taxonomy Regulation is legally misconceived and does not

provide any basis for impugning the Commission’s Decision.

Developer’s Response:

81. The Developer supports the Commission’s position above and submits that the

Applicant’s reliance on the Taxonomy Regulation is misplaced.

82. As appears from Article 1, the purpose of the Taxonomy Regulation is to establish

criteria for determining whether an economic activity qualifies as environmentally

sustainable for the very specific purpose of establishing the degree to which an investment

is environmentally sustainable. It seeks to achieve this by providing a common classification

system to guide investors and improve transparency in financial markets. It does not extend

this purpose to the making of planning and land use decisions by national planning

authorities.

83. It is therefore submitted that the Taxonomy Regulation provides no basis for

challenging the Decision.”

90. Core ground 5 is an imaginative attempt to read into domestic law an obligation to give

effect to finance law provisions on sustainability (specifically, Regulation (EU) 2020/852 of the

European Parliament and the Council of 18 June 2020 on the establishment of a framework to

facilitate sustainable investment and amending Regulation (EU) 2019/2088 (OJ L 198/13 22.6.2020,

p. 13-43) (the Taxonomy Regulation), or the Commission Delegated Regulation (EU) 2021/2139 of

4 June 2021 supplementing Regulation (EU) 2020/852 (the Delegated Regulation)) via the 2015 Act.

91. The basic problem is that the taxonomy regulation is a transparency/ reporting tool, not a

substantive obligation requiring planning decision-takers to act in an environmentally friendly

manner.

92. Even if counterfactually it was a substantive requirement, bearing in mind that the applicant

construes this point as a domestic law obligation in the light of EU law, when viewed in the light of

(a) the applicant’s failure to raise the complaints under this heading in the process, and/or (b) the

margin of evaluation within s. 15 of the 2015 Act as determined by the Supreme Court in Coolglass,

even assuming that the notion of sustainability under the taxonomy regulation is relevant to this,

no error by the commission has been demonstrated. The standards being sought to be read in deal

with different matters but in any event are themselves evaluative just as the 2015 Act is. The

commission has the right of it:

“83. In the premises of all of the foregoing, there is no legal basis for the ‘read across’

which the Applicant attempts under this Core Ground. Its reliance on the Taxonomy

Regulation is legally misconceived and does not provide any basis for impugning the

Commission’s Decision.”

Core ground 6 – AA

93. Core ground 6 is:

“Core Ground 6: The impugned decision is invalid because the Board could not and did not

make a valid Screening decision for the purposes of Article 6(3) of the Habitats Directive in

the absence of site specific conservation objectives and site specific conservation measures

and/or could not lawfully have excluded significant effects for the purposes of Stage 2

Appropriate Assessment, further particulars of which are at Part 2 below.”

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

“Core Ground 6: Appropriate Assessment (AA)

(a) Overall project

84. The LNG facility and Data Centre Campus which were in the planning process at the

time the EIAR was prepared were considered by the Developer as giving rise to cumulative

developments with the gas fired power station the subject matter of the development.

85. Furthermore, the Commission was also of the view that the proposed development

would give rise to cumulative impacts with those developments for the purposes of EIAR

and Appropriate Assessment.

86. Despite being ad idem that the other elements of the LNG facility and the Data

Centre campus would give rise to cumulative impacts for the purposes of Appropriate

Assessment nowhere are those impacts identified, described or assessed. There is no

assessment of the acknowledged cumulative impacts for the purposes of AA even though

these are, at least, barely described for the purposes of EIAR.

87. Once the Developer and the Commission correctly accepted that the LNG facility and

the Data Centre Campus would have cumulative impacts there could be no doubt what those

impacts would be as they had been previously identified by the Developer. Despite having

been previously identified, those impacts are nowhere to be seen in the Commission’s

assessment.

88. Nowhere were the known impacts across the 10 impact mechanisms arising from

the overall project/masterplan (including but not limited to the 4 that overlap and were

identified as arising in respect of the proposed development) considered or assessed by the

Developer and therefore, by definition, were not considered by the Commission.

Commission’s Response:

89. The Applicant bears the burden of proof to establishing any flaw in the AA and cannot

discharge same by way of mere assertion, noting the ‘reasonable expert’ standard.

90. The Applicant’s pleaded complaint is inadequate in terms of purporting to be a

challenge to the Commission’s AA. For example, it does not refer to any European Site; any

Conservation Objective; any Qualifying Interest; or any alleged ‘effect’ or in-combination

effect on any European Site. As such, this point should be dismissed.

91. The Commission assessed, for the purposes of AA Screening/AA, all aspects of the

Proposed Development/project in accordance with its legal obligations – including an

assessment of in-combination effects (see NIS and Inspector/Commission’s AA, including

Appendix 2 to the Inspector’s report, pgs.199-200).

92. The Commission agreed with the Inspector’s approach. There was no failure by the

Commission in the context of AA to assess the Proposed Development and the Applicant has

not established any such failure evidentially.

Developer Response:

93. The Developer supports the Commission’s position as outlined above.

94. The Applicant’s suggestion that the potential cumulative impacts relating to the

Proposed Development in conjunction with other projects have not been properly assessed

does not survive even a cursory reading of the Decision, in conjunction with the Inspector’s

Report and the Natura Impact Statement.

95. The Commission was entitled to, and did, endorse the findings of the Inspector’s

Report and the Natura Impact Statement. These materials provided a clear evidential basis

for the Commission to make the appropriate assessment, including in relation to potential

in-combination effects, which were analysed in detail in the Natura Impact Statement.

96. Accordingly, the Decision included an appropriate assessment that was consistent

with the requirements of Article 6(3) of the Habitats Directive.

(b) Loss of Annex 1 habitat

Applicant’s Position

97. The proposed development will result in the loss of Annex 1 Reef (1170) and Estuary

(1130) habitat that are qualifying conservation objectives of the Lower River Shannon SAC.

The habitat will be lost as a result of the installation of the outfall pipe to service the proposed

development. The total amount to be lost is 100m2 (Estuary) and 65m2 (Reef).

98. The Developer contended that this loss was insignificant in the context of the overall

availability of the habitat, being very considerably less than 1% of the total habitat in the

SAC in each case (§3.4.4.2.2 NIS), and that its loss would not give rise to negative impacts

to the structure and functioning of the habitats and that following decommissioning,

measures would however be taken to reinstate the small areas of habitat lost.

99. The DAU, however, identified that – ‘The current application associated with the

proposed development indicates a direct loss of habitat from the Annex I habitats Estuaries

and Reefs associated with the construction, installation, and operation of a trenched water

outfall across the shoreline into the Shannon estuary. It is noted that the areas to be lost

are small relative to the size of the Natura site. However, it must be noted that the

construction proposed would not allow for the target for the qualifying interest area of

Estuaries and Reefs to remain ‘stable’ subject to natural processes and is consequently

contrary to the Conservation Objectives of the Lower River Shannon SAC.’

100. The Commission’s Inspector disagreed and concluded (p.203) ‘Based on the

evidence presented or otherwise available, I do not consider that the proposed development,

occurring within this dynamic environment, will give rise to a significant adverse effect on

the integrity of the Lower River Shannon SAC as the loss of this very small amount of benthic

habitat would not adversely impact on the ecological structure or function of the site or of

the habitats and community complexes therein. Furthermore, I am satisfied from the

evidence presented that these habitats will become re-established at the site once initial

works are completed and, most certainly, upon decommissioning.’

101. There was no evidence before the Commission that destroyed Annex 1 habitat would

be re-established during the lifetime of the project, or how the habitat loss would in fact be

reversed on decommissioning, or any indication of when that might occur.

102. Of note, in the 2021 application for the LNG facility and power station the

Commission’s Inspector, albeit ultimately reaching a conclusion of no significant effect, had

considered that the effects of qualifying habitat loss would be permanent.

103. In light of Qualifying Objective habitat loss, and/or the non-compliance with the

conservation objectives, the proposed development, by definition, has a significant effect on

integrity of a European Site and the Commission’s conclusion to the contrary was incorrect

in law.

104. Sweetman identifies that loss of part of a Qualifying Habitat which was a priority

habitat is by definition an effect on the integrity of a European Site, and the Inspector’s

reliance on the Qualifying Habitat re-establishing itself after works were completed is

unsupported by evidence and ignores the possibility that any such re-established habitat

would itself be liable to be destroyed during decommissioning. In the context of Article 6

and development consent, the significance of being a ‘priority’ habitat is addressed in Article

6(4) in terms of restricting the permissible considerations relating to ‘imperative reasons of

overriding public interest’.

105. In Case C-521/12 Briels (which concerned a non-priority habitat), the project

provided for the future creation of an area of equal or greater size of the habitat type which

was to be lost – potentially permanently – in another part of the site (which would not be

directly affected by the project). The CJEU concluded ‘It is clear that these measures are

not aimed either at avoiding or reducing the significant adverse effects for that habitat type

caused by the … project; rather, they tend to compensate after the fact for those effects.

They do not guarantee that the project will not adversely affect the integrity of the site within

the meaning of Article 6(3) of the Habitats Directive.’

106. Furthermore, as above, both the Developer and the Commission accept that the LNG

facility and the Data Centre will create cumulative impacts. However, neither the Developer

nor the Commission assessed the direct impacts as a result of the implementation of the

rest of the overall project as far as was reasonably possible or at all. That extent of that

Habitat loss was identified in the 2021 application for the LNG facility and the power station

as involving a permanent loss of an additional 163m2 of Annex 1 Habitat. The Commission,

having accepted that the LNG facility would cause cumulative impacts was clearly obliged to

assess the cumulative loss of habitat prior to reaching a lawful conclusion of no significant

effect which, per Sweetman, by definition constitutes a significant effect on integrity.

107. The Commission has accepted that the LNG facility will have cumulative effects for

the purposes of Appropriate Assessment. The Commission knows that those cumulative

effects will result in further permanent habitat loss. The Commission failed to assess the

significance of that cumulative loss. The Applicant says that once the Commission (correctly)

accepted the possibility of cumulative effects from the LNG facility it had to assess the

significance of that habitat loss.

Commission’s Position

108. The Applicant has failed to discharge the burden of proof (Reid No. 1) which rests

on it in respect of its attempt to impugn the Commission’s AA on the basis of the loss of

Annex 1 habitat from the Lower River Shannon SAC. The Applicant has not demonstrated,

via appropriate expert evidence, that any reasonable scientific doubt arises from the

evidence before the Commission and the Commission’s conclusion on AA in this respect.

109. Whilst the Applicant does not refer to same, the Inspector addressed the habitat loss

(pg.202):

‘In relation to benthic habitat loss of areas of Annex I habitats, Estuaries and Reefs, I note

that these community types are not rare and occur widely within the estuary and around the

coasts of the country. They occur in dynamic environments and are not highly vulnerable

to change. The effect of the limited extent of loss of ‘Subtidal sand to mixed sediment with

Nucula nucleus community complex’ and ‘Fucoid-dominated intertidal reef’ community types

is not therefore regarded as significant or likely to affect the ecological structure or function

of the SAC. I also note and draw the Board’s attention to the conservation objective for

both Estuaries 1130 and Reefs 1170, which is to maintain their favourable conservation

conditions, with a target stated as:

The permanent habitat area is stable or increasing, subject to natural processes.

I note the comments of the DAU in this regard whereby they state in their submission that

the construction of the Proposed Development would not allow for the target for the

Qualifying Interest area of Estuaries and Reefs to remain “stable” subject to natural

processes. However, I also note that the habitat areas for Estuaries and Reefs is estimated

as 24,273 ha. and 21,421 ha., respectively.

Based on the evidence presented or otherwise available, I do not consider that the proposed

development, occurring within this dynamic environment, will give rise to a significant

adverse effect on the integrity of the Lower River Shannon SAC as the loss of this very small

amount of benthic habitat would not adversely impact on the ecological structure or function

of the site or of the habitats and community complexes therein. Furthermore, I am satisfied

from the evidence presented that these habitats will become re-established at the site once

initial works are completed and, most certainly, upon decommissioning.

Similarly, having examined the information and data provided or otherwise available, I am

satisfied that the very minor loss of habitat along the periphery of River Shannon and River

Fergus Estuaries SPA will not affect the overall integrity of the site in this instance due to

the very small area affected and the low-quality habitat for SPA birds at this location, which

is reflected in the low numbers of birds recorded utilising this area of the estuary’.

110. The Applicant seeks to draw a false equivalence with the decision in Case C-258/11,

Sweetman v An Bord Pleanála to advance this Core Ground. It is important to remember

the factual context presenting in Sweetman – which involved findings by the Commission of

the ‘permanent loss within the Lough Corrib SCI of approximately 1.47 hectares of [Annex

1] limestone pavement’(§12) – which it described as ‘having a localised severe impact’ but

not one that constituted an adverse effect on the integrity of the site (§14). The CJEU held,

however, that:

‘…competent national authorities cannot therefore authorise interventions where there is a

risk of lasting harm to the ecological characteristics of sites which host priority natural

habitat types. That would particularly be so where there is a risk that an intervention of a

particular kind will bring about the disappearance or the partial and irreparable destruction

of a priority natural habitat type present on the site concerned.’ (§43)

111. On the evidence here, a risk of lasting harm or irreparable destruction does not

arise in circumstances where the Commission was satisfied on the evidence before it that

the habitats concerned ‘will become re-established at the site once initial works are

completed and, most certainly, upon decommissioning’.

Developer’s Position

112. The Developer supports the Commission’s position, as outlined above. There is

ample evidential basis to justify the conclusions in the Inspector’s Report that the loss of

habitat would not be permanent or irreparable. In those circumstances, the judgment in

Sweetman, decided in the context of a loss of habitat that was permanent and irreparable,

does not support the conclusion proposed by the Applicant.

113. Accordingly, the Developer submits that the loss of habitat did not lead the

Commission to err in excluding significant effects on a European site.”

95. Heading (a) above was dropped at the outset of the hearing.

96. Turning to heading (b), even accepting (at least for the sake of argument) that cumulative

and in-combination effects must be assessed for AA purposes in the same way as for EIA purposes,

the applicant hasn’t shown that this was not done (particularly bearing in mind that the Natura

impact statement (NIS) and the inspector’s AA, including Appendix 2 to the inspector’s report, pp.

199-200, deal with such issues).

97. As regards impacts on the Lower River Shannon SAC (Site Code: 002165) and the River

Shannon and River Fergus Estuaries SPA (Site Code: 004077), the NIS stated:

“The loss of Annex I habitats 1130 Estuaries and 1170 Reefs pending decommissioning

relative to the total area of the habitats in the SAC is negligible, and will not result in

significant effects. The loss of this magnitude will have no impact on the structure and

functioning of these Annex I habitats and on the integrity of the Lower Shannon Estuary

SAC.”

98. The developer’s response document stated:

“As detailed in Section 2.8.5 of the Natura Impact Statement (NIS) the installation of the

drainage outfall, will result in temporary habitat loss of approximately 90m2 of Annex I

habitat above the low water mark and 10m2 below the low water. Loss of Annex I habitat

Estuaries habitat is estimated to be approximately 100m2, while the loss of Reef habitat is

approximately 65m2. Installation of the pipe will result in the loss of 0.000041% and

0.000030% of the Annex I habitats 1130 Estuaries and 1170 Reefs respectively.

The approximate spatial extent of the habitat lost pending decommissioning is 0.000041%

and 0.000030% of the Annex I habitats 1130 Estuaries and 1170 Reefs, respectively (NIS

Section 3.4.4).

It is the Applicant’s view as outlined in Section 3.4.4.2.2 of the NIS, that the loss of Annex

I habitats 1130 Estuaries and 1170 Reefs habitat due to the installation of the drainage

outflow pipe, relative to the total area of the habitats in the Special Area of Conservation

(SAC) is negligible and will not give rise to negative impacts to the structure or functioning

of the habitats.

Furthermore, the intertidal and subtidal surveys did not observe any rare, protected or

unusual species, and those observed are known to occur widely, it can be concluded that

the loss of habitat of this magnitude will have no impact on the structure and functioning of

these Annex 1 habitats…”

99. The applicant has not shown that it was not open to the commission to accept this material

given that it gave reasons for doing so. The existence of contrary opinion does not in itself constitute

scientific doubt or failure to use best scientific methods if reasons are given – the onus is on an

applicant to show inadequacy in that process that left an unresolved doubt; something which has

not been successfully done.

100. The applicants misread the judgment of 11 April 2013, Sweetman v An Bord Pleanála, C-

258/11, ECLI:EU:C:2013:220 to claim that “loss of part of a Qualifying Habitat is by definition an

effect on the integrity of a European Site”. In fact on its own terms Sweetman envisages that the

extent of risk of “lasting harm” and “irreparable destruction” are relevant rather than any loss

whatsoever being decisive. Paragraph 43 states (emphasis added):

“43 The competent national authorities cannot therefore authorise interventions where

there is a risk of lasting harm to the ecological characteristics of sites which host priority

natural habitat types. That would particularly be so where there is a risk that an intervention

of a particular kind will bring about the disappearance or the partial and irreparable

destruction of a priority natural habitat type present on the site concerned (see, as regards

the disappearance of priority species, Case C‑308/08 Commission v Spain, paragraph 21,

and Case C‑404/09 Commission v Spain, paragraph 163).”

101. The assessment of whether the characteristics of the project trigger the foregoing is one for

the national decision-taker in the first instance. The minimal and potentially transitory nature of the

intrusion on the European site here is such that it was open to the commission to conclude on the

facts that the project did not run foul of the habitats directive. The applicant has not discharged the

onus of proof to demonstrate otherwise.

Summary

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

(i) 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.

(ii) Applying such law to the facts here, the applicant’s pleaded domestic law points were

not so raised by it and it would be an improvident exercise of the power of judicial

review to quash a decision on such a basis. Assuming I am wrong about that I will

go on to consider the merits of the challenge. In any event any assessment of the

merits including in relation to EU law points must take place through the prism of

what was before the decision-taker, and an applicant’s failure to make any point

remains relevant in that context.

(iii) It is settled law that the 2015 Act involves a spectrum of options that can be

regarded as consistent with climate goals and instruments.

(iv) Applying such law to the facts here, the applicant has not discharged the onus to

show that the commission’s decision under the 2015 Act falls outside the spectrum

of options available to it.

(v) It is settled law that the applicant must have discharged the onus of proof to

demonstrate in adequacy in EU law assessments or any other infirmity in a decision.

(vi) Applying such law to the facts here, the applicant has failed to discharge that onus

here.

(vii) It is settled law that a decision should be read as valid if a valid reading is available.

(viii) Applying such law to the facts here, the decision is susceptible to a valid reading.

(ix) It is settled law that judicial review is a discretionary remedy.

(x) Applying such law to the facts here, obiter, if counterfactually there was any infirmity

in the decision by reference to a point the applicant did not raise in the process, it

would be appropriate to exercise discretion against certiorari in the circumstances

set out.

Order

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

(i) the proceedings be dismissed;

(ii) unless any party applies 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 any reserved or adjourned costs or costs not otherwise

dealt with);

(iii) the foregoing proposed order be subject to contrary written legal submission or any

consequential application supported by a written legal submission, such submission

to be delivered within 7 days, with replies by other parties within a further 7 days;

(iv) 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

(v) the matter be listed at 09:30 on Monday 13 April 2026 to confirm the foregoing.