High Court dismisses appeal on telecom mast planning, ruling no EU EIA requirement exists for single rural masts.

[2026] IEHC 206

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.00000477]

IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT

2000

BETWEEN

NOEL MCGOWAN AND KAROL WARNOCK

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

VANTAGE TOWERS LIMITED AND LEITRIM COUNTY COUNCIL

NOTICE PARTIES

(No. 2)

Date of impugned decision: 14 February 2025

Date proceedings commenced: 9 April 2025

Date of principal judgment: 18 November 2025

Date of leave to appeal hearing: 23 March 2026

Date draft judgment circulated: 26 March 2026

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

1. The way the system is supposed to work is that when significant new questions of law arise,

they are decided by appellate courts, and then applied to individual cases by trial courts. In

Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported,

Supreme Court, Murray J., 4 July 2024), the Supreme Court rebuffed attempts to read into 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) projects

that are not listed. Important as the specific type of project in that case was (solar farms), the

decision illustrates a broader principle – environmental impact assessment (EIA) only applies to

specifically listed categories of project. I applied that principle here. For reasons set out in the

substantive judgment and in Doyle v. An Coimisiún Pleanála (No. 1) [2025] IEHC 725 (Unreported,

High Court, 17 December 2025) and Doyle v. An Coimisiún Pleanála (No. 2) [2026] IEHC 207

(Unreported, High Court, 1 April 2026) there is no substantial basis for further agitation of the claim

that single telecoms masts, which are not mentioned in Directive 2011/92/EU of the European

Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain

public and private projects on the environment (the EIA directive), are in fact subject to

environmental impact assessment (EIA) via the nebulous concept of “urban development”. But even

if there counterfactually was such a basis, there is no remotely plausible interpretation of “urban

development” that could apply to the present case which involves a single mast located outside the

development boundary of a small rural town. As held in the substantive judgment, opening the door

to classing this rural project as “urban development” would transmogrify a vast number of rural

projects into urban projects and radically extend the EIA directive far beyond anything envisaged by

the European legislature. The anarchy can’t be confined to one single mast. This telecoms mast

project was acceptable to the commission and upheld against challenge in the primary judgment.

To allow a further appeal here would be to engage in a form of “litigious perpetual motion” (O’Donnell

J. (Clarke and Dunne JJ. concurring) in Rooney v. Minister for Agriculture and Food [2016] IESC 1

(Unreported, Supreme Court, 28 January 2016) at para. 3).

Judgment history

2. In McGowan v. An Coimisiún Pleanála [2025] IEHC 727 (Unreported, High Court, 17

December 2025), I dismissed an application for certiorari of a planning permission for a mobile

phone mast. The applicants now seek leave to appeal.

Procedural history

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

leave to appeal, dated 2 March 2026. The opposing parties delivered replying submissions and the

matter was heard on 23 March 2026.

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

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

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

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

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

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

5. On 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.

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

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

disregarded) but are confined to matters such as:

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

issues;

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

both modes;

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

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

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

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

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

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

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

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

party considers could beneficially be decided;

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

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

for; and

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

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

reason.

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

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

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

further notice following the expiry of the specified period, whether comments are made or not. That

period will not be extended save in exceptional circumstances. All parties involved are requested to

positively confirm to the court the position including if they have no observations on the draft

legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a

concession which parties can engage with but must do so with immediate dispatch, discipline and

focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to

elaborate procedures at every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker

JJ. concurring) in O’Sullivan v. Health Service Executive [2023] IESC 11 (Unreported, Supreme

Court, 10 May 2023) at para. 39); and still less should the procedure invite the perhaps “serious

error, to which lawyers are prone, to approach any such case on the tacit assumption that only

procedures which approximate to a criminal trial are fair, and anything which departs from that is

somehow dubious” (O’Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

[2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780).

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

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

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

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

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

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

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

keep drafts confidential. On this topic, see Attorney General v. Crosland (No. 2) [2021] UKSC 58,

[2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication of draft

judgments is in the interests of the administration of justice; see also Baigent v. Random House

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

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

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

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

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

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

The contents of this paragraph constitute an immediately effective direction of the court to the

parties and anyone having notice of the draft judgment with effect from the date of circulation of

the draft.

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

commission and notice party helpfully pointed out certain production errors in the draft. The

applicants did not reply by the deadline.

General principles on leave to appeal

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

for the grant of leave to appeal are as follows:

(i) The point must properly arise

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

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

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

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

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

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

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

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

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

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

misinterpreted the decision of the Board granting the permission in

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

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

alleged misinterpretation of a specific administrative decision will usually

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

While the presumption of validity attaching to administrative decisions

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

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

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

of public importance”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

who represent themselves, prefer the comfort of focusing exclusively on

the debatable ruling or judicial comment reinforcing a sense of grievance

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

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

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

an addition, exaggeration or distortion launched for the purposes of

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

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

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

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

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

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

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

amount to a matter of general public importance”.

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

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

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

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

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

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

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

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

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

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

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

(ii) The point must be one of law

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

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

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

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

particular facts but rather one of the substance, content and

interpretation of law. Questions about the application of established

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025).

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

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

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

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

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

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

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

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

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

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

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

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

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

administrative decision will usually be case specific and will not present

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

attaching to administrative decisions represents an important legal

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

any uncertainty and the application of the presumption to a particular

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

ii. Advancing the proposed question should resolve doubt rather than

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

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

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

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

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

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

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

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

interest suggests an appeal is not warranted”.

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

the judgment being appealed against and provide a plausible basis

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

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

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

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

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

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

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

2025).

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

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

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

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

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

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

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

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

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

caselaw.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(iv) The public importance must be exceptional

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

it must also be established that the importance is exceptional.

(v) An appeal must be in the public interest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in these proceedings”.

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

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

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

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

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

argument that alleged uncertainty in the law was creating alleged

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

evidence before the High Court that the quarry industry was being

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

do not meet the necessary criteria.

The proposed questions of alleged exceptional public importance

12. The applicants’ proposed questions are as follows:

First point of law

(i) What is the meaning of “urban development” in Annex II Class 10(b) of the EIA directive,

does it include telecom masts, and to what extent is the meaning of “urban

development” a question of law or a question of discretion?

(ii) In interpreting that term, can a national court set aside the requirement for uniform

interpretation of project class definitions in Annex II of the EIA directive on the basis

that the class in question – urban development – is “nebulous” or potentially very broad;

and can the national court permit a national competent authority to exercise a discretion

to determine whether a project falls within that category; or is there a legal definition of

urban development which the national competent authority must apply?

Second point of law

(iii) When determining the lawfulness of a planning authority’s consideration of S.28

guidelines/National Planning Statements, is a Court obliged to give a flexible reading of

and/or relax pleading requirements in circumstances where a Court has available to it

the legal and factual elements necessary of a prima facie breach of guideline

requirements concerning public health implications for children.

Do the points properly arise?

13. The first two points don’t arise because they misunderstand the judgment. I did not hold

that the meaning of urban development was a matter of discretion and nor did I set aside the

requirement for uniform interpretation of the directive. The discussion in the related case of Doyle

(No. 2) can simply apply here without being set out at length.

14. The second point doesn’t unfortunately arise because it was not supported by the pleadings.

The applicants did not challenge the inspector’s finding that the development site was not directly

beside the school, nor did they challenge the commission’s related finding that the location of the

site was not immediately adjacent to a school. Therefore arguments predicated on policies that

would apply in the event that it was near a school just can’t arise on the pleaded case. Even

assuming for the sake of argument that this is an important point, it can’t go further because it is

not a pleaded point: Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024]

IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024). That said, I did say that even if the

point had been argued, the applicants hadn’t shown that the last resort test had not in fact been

satisfied. The proposed question doesn’t engage with or take issue with this.

15. Furthermore, the notice party correctly points out (submissions para. 37) that the question

seems to be premised on there having been a prima facie breach, something I didn’t find.

Are the points ones of law?

16. The questions while appearing to be ones of law are in reality related to the evidential matrix

here. Even if there was, counterfactually, some basis for saying that there is a lack of clarity on the

meaning of “urban development” (not an uncertainty that manifests in any decision of the EU courts

or the courts of member states), it cannot benefit the applicants on these facts. This is not an urban

development project on any analysis. It is a single mast outside the development boundary of a

modest rural settlement.

Are the points of public importance?

17. The points are not of public importance having regard to the foregoing. The discussion in

Doyle also applies here.

Are the points of exceptional public importance?

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

Is an appeal in the public interest?

19. An appeal is not in the public interest having regard to the importance of telecoms

infrastructure, the chilling effect on planning decision-making until the appeal is resolved which

would be disproportionate given the lack of authority or other basis for the point, the

uncompensatable financial prejudice to the notice party, the importance of finality in planning

matters and the extensive multi-level process already afforded.

20. Creating doubt about the planning process for telecoms mast developments without any

substantial basis is not in the public interest. If a solid basis were to emerge at a future point in EU

law for the point then no doubt it can and will be revisited at all levels of the system, but in the

absence of that there is no compelling reason to say other than that the trial level decision should

be final. The discussion in Doyle applies here also.

Does the fact that there is an EU law point make any difference?

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

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

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

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

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

22. In order to demonstrate that a point is not acte clair, there are essentially two options:

(i) first of all, a party has to show that there is a sufficiently weighty inherent logic to

the contrary position; or

(ii) alternatively, they can show that there is some relevant material to the contrary

either at European or at national level that is capable of affecting the result.

23. The European legal space is rich with potential supporting material for any good point that

a party may have. If one starts with 27 member states, there are 10 candidate or potentially

candidate accession countries (9 recognised states and Kosovo) that are all in the process of

assimilating EU law in one shape or form. There is obviously one former European member state

(the UK) and (for the sake of absolute technical inclusivity) one former non-European member state,

Algeria (a part of France as an EEC member from, relevantly, 1957-62). That leaves 13 other

European states, virtually all of which have some formal relationship with the EU that involves some

level of incorporation of EU law, most notably the 3 other EEA states and the one EFTA member

(Switzerland) that is not a member of the EEA, plus 6 other European countries, most of which have

some level of EU association. In addition, there are a large number of European and non-European

special territories of these states, two of which (Greenland and Saint Barthélemy) are former EU

territories. EU law also influences non-EU states through cooperation agreements and otherwise.

We are talking about a population of 450 million in the EU strictly speaking, 500 million just sticking

with the EEA, over 750 million taking a wider view of the European space whose legal systems have

engaged with EU law. If a party can’t come up with a single court decision or academic work either

at EU-level or from that gigantic pool that would change the result of this case then a court can

reasonably conclude that there is no demonstrated doubt about the point such that a reference to

the CJEU would arise, even as an obligation for an apex court.

24. In the present case, the point does not have an inherently weighty internal logic to propel it

to the level of creating real doubt without authority. And there is simply nothing by way of authority

creating doubt to suggest that other EU-law-enforcing courts would decide the matter in the way

contended for.

25. The applicants haven’t come forward with any judgment of any court in Ireland, or in any

other member state or former member state, showing support for the interpretation contended for.

Nor is there any judgment of the Court of Justice or an opinion of an Advocate General creating

doubt about the conclusion proposed in the substantive judgment, or even any academic material

doing so. Not a scrap of paper in a continental legal space of somewhere between half a billion and

a billion people. The Commission guidance is not such a scrap for the reasons explained. The

reference procedure isn’t for any and every possible imaginative question – only for questions on

which there can be a real dispute (see Toole v. Minister for Housing (No. 3) [2023] IEHC 378, [2023]

7 JIC 0302 (Unreported, High Court, 3 July 2023) paras. 86-87). No basis for such a dispute has

been shown here.

26. If contrary to the foregoing the European (or EU-law-applying) courts revisit this and come

up with new authority of relevance, this point or any point can and will be revisited, but the acte

clair doctrine is meaningless if it has to accommodate the hypothetical academic possibility of doubt

that does not currently exist and is not currently foreseeable. What is in doubt at any given time

has to be judged on the basis of the legal landscape at the time in question. No such doubt properly

arises at the present moment in time.

27. So any error, if there is error, is self-correcting as soon as such hypothetical contrary

authority materialises. In the absence of that there isn’t anything wrong with regarding the point

as not being subject to any substantial doubt.

28. In any event a question along the lines proposed is never going to be a plausible candidate

for a reference, because the concept of urban development is not capable of the kind of granular

definition in the abstract that the applicant presupposes.

Summary

29. In outline summary, without taking from the more specific terms of this judgment, but

bearing in mind points made in Doyle that are incorporated by reference:

(i) The first two questions mischaracterise the judgment and thus do not properly arise.

The judgment did not reject the need for a uniform interpretation of “urban

development” – it defined urban development but noted that the practical application

of that involves a wide zone of evaluation given the nature of the subject-matter.

The concept of “urban development” is simply not open to the kind of abstract

comprehensive and detailed definition sought by the applicants here.

(ii) In any event there is no plausible reading of the notion of “urban development” that

could apply to the rurally-located single mast here.

(iii) The questions misstate the judgment and the third question ignores the fact that

the school proximity issue was not pleaded in the way now argued. The points do

not arise and in any event are not pure questions of law. As such they are not points

of public importance.

(iv) The applicants have failed to come forward with any material whatsoever at EU level

showing that a single mast must be regarded as urban development. The applicants

significantly overstates the effect of a very general reference in the Commission

guidance which simply means that in some circumstances, not relevant here, a mast

could be part of an EIA project.

(v) It is not a matter of public interest that unnecessary doubts be introduced as to the

applicability of EIA to a project not mentioned in the directive.

(vi) An appeal is not in the public interest. The policy of finality in planning matters

necessarily involves the possibility that some level of error at trial level will go

uncorrected. If contrary to my view there is error, any EU law error will be self-

correcting as soon as contrary authority appears anywhere in the EU legal space.

(vii) The benefit to the locality of this particular infrastructural project is also a factor in

the public interest, as is the more general point that the questions do not reach the

level of weight as to warrant stymieing planning decision-making generally in this

area pending the resolution of doubts artificially stimulated by the applicants here.

An appeal is not in the public interest having regard to the importance of telecoms

infrastructure, the chilling effect on planning decision-making until the appeal is

resolved which would be disproportionate given the lack of authority or other basis

for the point, the uncompensatable financial prejudice to the notice party, the

importance of finality in planning matters and the extensive multi-level process

already afforded.

(viii) No acute question of EU law interpretation arises, and in any event no doubt about

the answer has been demonstrated. A reference under art. 267 TFEU is not required.

Order

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

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

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

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

appeal;

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

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

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

the proceedings.