High Court dismisses appeal on telecom mast planning, ruling EIA Directive applies only to listed projects.

[2026] IEHC 207

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.00000932]

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

2000

BETWEEN

SHAMSA DOYLE

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

ON TOWER LIMITED

NOTICE PARTY

(No. 2)

Date of impugned decision: 28 May 2024

Date proceedings commenced: 19 July 2024

Date of principal judgment: 17 December 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. This was a point also made by O’Moore J. in Kavanagh v. An

Bord Pleanála [2020] IEHC 259 (Unreported, High Court, 29 May 2020). The order of 10 July 2008,

Salvatore Aiello and Others v Regione Lombardia and Others, C-156/07, ECLI:EU:C:2008:398, which

is belatedly relied on by the applicant in fact totally supports that position in that it finds that only

projects specifically listed in the directive are covered (emphasis added): “Article 2(1) of Council

Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private

projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, must be

interpreted as meaning that it does not require any project that may have a significant effect on the

environment to be made subject to the impact assessment provided for in that directive, but only

projects of a kind listed in Annexes I and II of the directive, as provided in Article 4 of the

directive and subject to Article 1(4) and (5) and Article 2(3) of the directive.” I applied that principle

here: single telecoms masts are not listed in the EIA directive, and it is not appropriate for the court

to shoehorn such numerous and modest developments into the nebulous concept of “urban

development” in such a way as to nullify the commission’s judgement to the contrary on the facts

of this case. This telecoms mast development was deemed acceptable by the council planner, the

council, the commission’s inspector and the commission itself, and the permission was upheld in the

substantive judgment. To allow a further appeal here would be to engage in a form of “litigious

perpetual motion” (to use a phrase of 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 Doyle v. An Coimisiún Pleanála [2025] IEHC 725 (Unreported, High Court, 17 December

2025), I dismissed an application for certiorari of a planning permission for a mobile phone mast.

The applicant now seeks leave to appeal.

Procedural history

3. Following the substantive judgment, the applicant delivered legal submissions seeking leave

to appeal, dated 18 January 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 had no comments. The notice party suggested an essentially stylistic change. The

applicant 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 applicant’s proposed questions are as follows:

(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?

(iii) Is the “land or structure” referred to in R19 PDR the “land or structure” outlined in red

referred to in R22, and if so, does the requirement of R19(2) replace the requirement of

R19(1)(c) or is it cumulative with that requirement, so that, where the land or structure

is not adjacent to a public road, the requirement to place notice on or near the entrance,

and all entrances, from the public road continues to apply? Should the commission or

developer have been permitted to advance the argument (that the “land or structure”

referred to in R19 PDR was the “land or structure” outlined in red referred to in R22) at

the hearing when it was not pleaded?

Do the points properly arise?

13. The first two points are phrased as a general write-an-essay type of roving query for the

appellate courts. They don’t engage in a meaningful way with the specifics of the judgment and

indeed misstate it as holding that the meaning of the directive is a “question of discretion” and as

“set[ting] aside” the requirement for uniform interpretation. I didn’t say that or anything like it.

14. The reason that write-an-essay roving questions are not an appropriate basis for appeal is

not a matter of aesthetics. It is because questions framed in that way necessarily sever the link

between the allegedly novel legal issue and the actual case. Once the necessity for an evidential

and pleading foundation is airbrushed out, then the point becomes theoretical and abstract.

15. Let me put it this way. “What is the meaning of X” sounds like a lovely question for an

academic symposium or for refined, unhurried debate and discussion at appellate level. But the

claimed necessity for that is exposed as an essentially specious demand if we recast the question in

terms of what is actually before the court. Then the real question becomes “Does X mean A (the

would-be appellant’s artificial and/or illogical and/or unworkable interpretation) or B (the trial court’s

interpretation)?”

16. Suddenly the case for an appeal looks that little bit less compelling. An appealing party has

to engage with the granular issues and show why the trial court’s interpretation is plausibly wrong,

rather than try to kick the whole thing upwards unsolved. Here, if the applicant had properly phrased

her questions bringing out her own interpretation, we would see the unworkable nature of what is

proposed – she is implausibly submitting that all development in an urban area is “urban

development” for the purposes of the directive. If that large claim were correct we would expect to

find vast supporting material in EU caselaw given the extensive ramifications that would follow.

There is no such material.

17. The applicant claims that her position is supported by the European Commission but that is

not the case. All the commission has said is that there are some circumstances in which masts could

be covered by EU assessments – strategic environmental assessment (SEA), appropriate assessment

(AA) or EIA. That doesn’t get us very far – the EIA cases are only going to be ones where the masts

constitute or form part of an urban development project or another EIA project. The commission

guidance tells us nothing about the type of cases in which that could occur. A single mast not part

of a broader project is extremely unlikely to come within that save in perhaps exceptional

circumstances that don’t apply here.

18. The overarching problem for the application is that the concept of “urban development” is

simply not open to the kind of abstract definition sought by the applicant here. A reference

(even by an apex court) is only admissible on an issue of interpretation or validity of EU law, not its

application: art. 267 TFEU. Thus a reference doesn’t arise if “no acute point of interpretation is

really presented by [the matter]: it really shades into issues of fact and the application of established

principles of EU law”: An Taisce v. an Bord Pleanála & Ors. (No. 3) [2022] IESC 8, [2022] 2 I.R.

173, [2022] 1 I.L.R.M. 281 per Hogan J. at para. 156 (O’Donnell C.J., Dunne, Charleton and Woulfe

JJ. concurring). This is such an issue.

19. To accept the demand for a comprehensive and detailed definition of a nebulous concept like

urban development in the abstract, as sought by the questions, is to be set up to fail. That doesn’t

mean that no definition at all is possible.

20. That brings us to the other fallacy of the questions which is that they suggest I left the

concept of urban development wholly undefined. That is not the case. There is thus no conflict with

the judgment of 24 October 1996, Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten

van Zuid-Holland, C-72/95, ECLI:EU:C:1996:404 or the order of 10 July 2008, Salvatore Aiello and

Others v Regione Lombardia and Others, C-156/07, ECLI:EU:C:2008:398.

21. Urban development means development of an area qua urban area, or qua area being

urbanised. The applicant’s alternative definition meaning any development in any urban area is

uncontrollably wide and extends the EIA directive beyond anything previously known. As the

commission submits, “they can’t remotely expect that that’s a plausible interpretation”. Also such

a wide definition, unsupported by authority, would have ramifications for other EIA headings – for

example industrial estate development would mean development in an industrial estate not qua

industrial estate (see also Reid v. An Bord Pleanála (No. 5) [2022] IEHC 687 (Unreported, High

Court, 9 December 2022), Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27 (Unreported, High Court,

24 January 2024) at 78, Ryan v. An Bord Pleanála [2025] IEHC 111 (Unreported, High Court, Holland

J., 27 February 2025)).

22. Once we understand the meaning of the concept of urban development as relating to (rather

than merely happening in) an urban/urbanised area – in principle this being a uniform meaning in

EU law – we then turn to its application which I held inherently involves a role for member states in

defining the scope of the concept in practice and a wide zone of evaluation and application given

that the concept is inherently nebulous.

23. The notice party gets to the point very effectively (emphasis added):

“30. For present purposes, that is important for two reasons. First, the proposed question

materially overstates and distorts the judgment. It proceeds as though the Court had ruled

that the meaning of ‘urban development’ is simply a matter of discretion, or as though it

had laid down that masts are outside the concept, ‘full stop’. It did neither. The Court

identified a legal standard and held that its application in this context involved a broad

evaluative judgment.

31. As the Commission correctly observed in its submissions, which the Notice Party

adopts, the judgment did not collapse the matter into pure discretion; it held that the

concept is evaluative. Secondly, when the judgment is correctly read, the proposed EIA

questions are revealed not as a true point of law arising from the decision, but as

an attempt to restate the Applicant’s failed merits argument at a higher level of

abstraction.”

24. This is a beautifully phrased point and one that brings out an important concept – the Fallacy

of Appeal by Increased Metaphysics (I understand the parties not to mind if I can be allowed to

credit the notice party’s counsel Mr Keaney for authorship of this particular law of forensic dynamics).

The conceit is that a meritless point can be made to appear less meritless by being restated in more

abstract terms. The flaw in that approach is, as pointed out earlier, that this breaks the necessary

link between the point as so theoretically phrased and its necessary foundations in the evidence,

pleadings and reasoning of the actual case at hand.

25. The third question is a complete misunderstanding of the planning regulations. It does not

arise because of the applicant’s failure to prove facts enabling her to rely on the provisions of the

regulations relating to a site adjacent to a public road.

26. One wonders whether it is necessary to go over the substantive judgment again to explain

why this question makes no sense but I suppose I will try one last time.

27. Article 19(2) of the 2001 regulations states:

“(2) Where the land or structure to which a planning application relates does not adjoin a

public road, a site notice shall be erected or fixed in a conspicuous position on the land or

structure so as to be easily visible and legible by persons outside the land or structure, and

shall not be obscured or concealed at any time.”

28. This was complied with (or at least the applicant didn’t prove otherwise).

29. What the applicant also did not prove was that the more stringent requirements of art.

19(1)(c) applied:

“(1) A site notice erected or fixed on any land or structure in accordance with article 17(1)(b)

shall be—

...

(c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near

the main entrance to the land or structure concerned from a public road, or where there is

more than one entrance from public roads, on or near all such entrances, or on any other

part of the land or structure adjoining a public road, so as to be easily visible and legible by

persons using the public road, and shall not be obscured or concealed at any time.”

30. To prove that 19(1)(c) applied as opposed to 19(2) it would have been necessary to prove

that the “land or structure to which a planning application relates” did adjoin a public road.

31. The applicant’s response now is to (at least impliedly) make three points, none of which

were made at the hearing:

(i) the “land or structure to which a planning application relates” does not mean the

redlined area but means something broader;

(ii) art. 19(2) is an additional, not an alternative, requirement to 19(1)(c); and

(iii) anyway the commission should not have been allowed to make this objection.

32. There is no substance whatsoever in any of these belated ruminations on the matter and

none of them are supported by either logic or authority.

33. On the first point, art. 22 defines the land or structure to which the application relates as

being the red-lined area – there is simply no plausible basis for doubt about that. The concept is

spelled out in definitional terms – the red-line marks the boundaries of “the land or structure to

which the application relates” (emphasis added):

“(2) A planning application referred to in sub-articles (1) and (1A) shall be accompanied by

...

(b) 6 copies of a location map of sufficient size and containing details of features in the

vicinity such as to permit the identification of the site to which the application relates, to a

scale (which shall be identified thereon) of not less than 1:1000 in built up areas and 1:2500

in all other areas, or such other scale as may be agreed with the planning authority prior to

the submission of the application, in any particular case and marked so as to identify clearly:

(i) the land or structure to which the application relates and the boundaries

thereof in red, ...”

34. If words mean anything, this means that the land or structure to which the application relates

is the land or structure within the red-lined boundary.

35. On the second point, this not just ignores but reverses the meaning of the words “subject

to sub-article (2)”. Furthermore, art. 19(1)(c) would not make sense if it applied to sites with no

entrance from a public road – the wording implies that there are such entrances in cases to which

the paragraph applies (hence sub-article (2) providing an alternative provision for cases where there

is no such entrance makes complete sense) (emphasis added):

“(c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near

the main entrance to the land or structure concerned from a public road, or where

there is more than one entrance from public roads, on or near all such entrances, or

on any other part of the land or structure adjoining a public road, so as to be easily

visible and legible by persons using the public road, and shall not be obscured or

concealed at any time.”

36. To read this as having been clearly intended to apply to lands not adjoining public roads is

pure Alice in Wonderland interpretation. Words mean whatever the applicant finds it convenient for

them to mean in the quest for certiorari.

37. As regards the third sub-point that the commission should not have been allowed to make

the point about which regulation applies (on the grounds that she says it wasn’t pleaded specifically

enough), the applicant now say she was “caught on the hop”. That is a new claim, made for the

first time to obtain leave to appeal. At the hearing she didn’t ask for time to deal with it. Nor has

she explained why it couldn’t be dealt with “on her feet”, or perhaps more importantly come up in

the meantime with anything decisive to say to defeat it. Ultimately the reason the point was upheld

was that this was a point that the applicant should have proved as part of her case on day one. The

argument is in effect that “it’s unfair that the opposition be allowed at the hearing to point out my

failure to prove my case”. That falls flat – it isn’t unfair, if for no other reason than that the court

itself has to be satisfied as to whether to grant relief, as held by the Supreme Court in the crucial

decision on the architecture of judicial review, 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). In the absence of proof of facts essential to the applicant’s point,

I certainly am not so satisfied.

Are the points ones of law?

38. Questions 1 and 2 are framed as points of law but in reality relate to whether the applicant

has proved that on these facts the commission’s margin of evaluation has been exceeded. I agree

with the notice party on this point:

“21. Even if the questions could be said to arise from the case, they would not constitute

pure questions of law suitable for certification. As explained in Massey (No. 4), questions

concerning the application of established legal principles to particular facts are not

appropriate subjects for appeal in the planning judicial review context. The issues raised by

the Applicant concern precisely that type of exercise. The Court’s reasoning involved an

assessment of the material before the Commission and the legal framework governing EIA

screening and planning procedure. The Applicant’s challenge is therefore, in substance, an

attempt to contest the Court’s application of those principles to the particular circumstances

of the case. That type of challenge does not raise a question of law within the meaning of

s.50A(7).”

39. To put it another way, questions 1 and 2 turn ultimately not on some necessary quest for

an absolute, abstract definition of “urban development” (an obviously Quixotic exercise) but on the

facts – specifically the fact of this being a single mast in a modest urban settlement. The applicant

hasn’t proved any fact rendering this development of the area qua urban settlement, at the level of

carparks and shopping centres or anything remotely comparable (being the developments

mentioned in this context in the directive – noscitur a sociis applies).

40. Question 3 is not in reality a point of law because what it turned on was the applicant’s

failure to prove facts necessary to establish the applicability of the legal provision on which she

relies.

Are the points of public importance?

41. As to the first two points, these points are not of public importance because it is not of public

importance to introduce doubts into the meaning of the EIA directive that do not currently exist. If

“urban development” means, contrary to the substantive judgment, all development in an urban

area, then we would have heard something about that already and there would be some support for

that in EU caselaw and caselaw of the couple of dozen EU law-applying jurisdictions. The applicant

comes with nothing in that regard. (The European Commission guidance does not say this, for

reasons already explained.) It is not a matter of public importance to dream up new doubts that

would introduce massive friction into planning law decision making.

42. On the third point, the application of a very technical provision of the planning regulations

is not a matter of public importance because it comes down to the application of the burden of proof

on the particular evidence in the case. The applicant did not prove that the entrance was on the

public road and thus didn’t lay the evidential foundations for the making of the point.

Are the points of exceptional public importance?

43. This does not arise having regard to the following.

Is an appeal in the public interest?

44. 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.

45. The effect of an appeal is going to be to cast a totally unnecessary doubt as to whether

telecoms masts come within the EIA directive when they are not mentioned therein. That is going

to unnecessarily stymie planning decision-making in this area until such time as it is resolved. If EU

law develops in the future in some unanticipated way to give support to the (so far not relevantly

supported) point made by the applicant, then the courts at all levels will be prepared to reconsider

that.

46. Finality in planning matters is also an element of the public interest. I agree with the

commission on this issue (at para. 40 of submissions):

“The clear legislative intention that planning cases should generally be confined to the High

Court, as noted by Barniville J (as he then was) in Rushe v An Bord Pleanála [2020] IEHC

429 [at 24] merits recalling, as follows:

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

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

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

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

50A(7) was enacted.”

47. Likewise the uncontroverted evidence from the notice party as to the public interest in this

infrastructure is of relevance, as is the fact that the applicant has already had the extensive benefit

of three layers of decision, appeal and review. I upheld the notice party’s submission on this point

(emphasis added):

“An appeal would not be desirable in the public interest

23. Even if the proposed questions could satisfy the first limb of the statutory test, which

is denied, the Applicant has not demonstrated that an appeal would be desirable in the public

interest. The Oireachtas has expressly designed the planning judicial review regime to

promote expedition and finality in litigation concerning development decisions. Allowing

appeals in circumstances where no issue of exceptional legal importance arises would

undermine that legislative objective. The present case concerns telecommunications

infrastructure intended to improve broadband and network coverage in the

Laytown area. The planning process for the development has already involved

determination by the planning authority, a third-party appeal to the Commission,

and judicial review proceedings before the High Court. The statutory system cannot

function effectively if decisions reached following such a process remain subject to further

litigation absent exceptional circumstances.

24. As emphasised in Massey (No. 4), the Court must have regard to the potential

prejudice caused by further delay to authorised development when considering whether an

appeal would be in the public interest. No countervailing public interest has been identified

by the Applicant that would justify such delay.”

48. The point that the applicant can’t get away from is that like the solar farms at issue in

Treascon, telecoms masts are not listed in the EIA directive. The applicant claims that

telecoms masts are EIA projects because they come within the notion of “urban development”. She

has precious little to support that other than the point, with which I agree, that in limited

circumstances a mast could be part of a broader development constituting an EIA project. The point

is simply a re-writing of the directive akin to what was unsuccessfully attempted in Concerned

Residents of Treascon under a different heading. The fact that a number of cases make the same

unfounded point does not make this some kind of important test case (even acknowledging the

gotcha point made by the applicant that the expression “test case” was loosely and inaccurately

used in some correspondence issued by the court about the hearing of the matter). This is

necessarily a lead case to decide the issue, but mere multiplication of the quantity of cases raising

unfounded points does not make such points ones of real substance. Any further proceedings in the

matter will paralyse permissions for telecoms masts until the point is finalised. That would be

acceptable collateral damage if there was real substance to the applicant’s point but that is not the

case here.

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

49. 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.

50. 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.

51. 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 in the EEA,

perhaps 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.

52. 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.

53. The applicant hasn’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 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.

54. 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.

55. 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.

56. 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

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

(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 applicant here.

(ii) The question concerning the planning regulations rests on a manifestly artificial and

unfounded interpretation which is unsupported by authority or logic.

(iii) The questions particularly regarding the regulations obscure the fact that the

applicant failed to prove facts necessary for relief and failed to overcome the onus

that lies on her in that regard. The third question in particular is predicated on an

argument that does not arise given the applicant’s failure to prove that the

regulations regarding sites adjacent to a public road are engaged.

(iv) The applicant has failed to come forward with any material whatsoever at EU level

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

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.

Any error as to the applicability of domestic regulations as to site notices is purely

technical and does not nullify the necessity for there to be due notice of the

development, because art. 19(2) applies and requires a public site notice. This

provision was complied with.

(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 applicant 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

58. 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.