High Court dismisses judicial review as applicant failed to prove infirmity in enforcement notice.

[2026] IEHC 223

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001383]

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

ACT 2000

BETWEEN

SIMON RUTLEDGE

APPLICANT

AND

FINGAL COUNTY COUNCIL

RESPONDENT

Date of impugned decision: 23 July 2025

Date proceedings commenced: 16 September 2025

Date of main hearing: 25 March 2026

Date draft judgment circulated: 9 April 2026

JUDGMENT of Humphreys J. delivered on Friday the 17th day of April 2026

1. “[T]he onus of proof must lie on an applicant for judicial review”: Donnelly J. (O'Donnell C.J.,

Charleton and Murray JJ. concurring) in Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported,

Supreme Court, 25 March 2026) at para. 96. While I appreciate the perspective of the applicant as

a landowner apparently attempting to provide a service for which there is presumably some public

demand, and the very considerable expenditure of imagination and effort made to present the case

on his behalf, the legal question here is whether the applicant has overcome the onus to show an

infirmity in the enforcement notice challenged here.

Geographical context

2. The development consists of car parking at The White House Public House near Dublin airport

(entrance at: https://maps.app.goo.gl/5TZdti8U2ovJNbfH7). The pub is currently closed, and the

evidence is of an airport park-and-ride facility being operated from the lands. That is not something

covered by any planning permission, and existing permissions at the development site are

conditioned to prevent such a development. The applicant’s essential case is that car parking is

protected by the seven-year rule and that other works are exempted development.

Facts

3. The applicant is a businessman and owner of lands at The White House, Newpark, The Ward,

Co. Dublin.

4. The applicant has previously operated a public house known as The White House Public

House from these lands.

5. On 21 February 1985, retention planning permission was granted by An Bord Pleanála under

ref. Z.A. 757 in respect of the site the subject of these proceedings for development consisting of

the retention of a racetrack, the development of lands for use as a raceway with ancillary car parking

and the erection of a spectator stand and toilet facilities. The lands outlined on the submitted site

layout include the trotting track and the car park to the rear of The White House Hotel.

6. Permission ref. Z.A. 757 was subject to conditions which included Condition 2:

“The use of the track shall be confined to use as a racetrack for harness racing organised by

or on behalf of the Irish Standard Bred Horse Owner’s Association and no use for any other

purpose for which planning permission is required shall be established on the site without a

prior grant of permission by the planning authority, or by An Bord Pleanála on appeal.

Reason: To limit the use of the site to that stated in the relevant application in the interests

of proper planning control.”

7. On 29 July 1988, an application was made for retention of the spectator stand as a haybarn

and it was granted permission on 29 September 1988. That permission related to the structure only

and not the trotting ring/track.

8. The applicant claims he has, for a number of years, operated a car park from the lands to

the rear of The White House Public House. The land used for the operation of this car park includes

a former “trotting ring”. The surface of the trotting ring was originally lime sand and the applicant

added aggregate sand in 2023/24.

9. The applicant claims that in or about 2009, an airport parking service began operating from

the lands under the name “Park and Fly Dublin”. That service enabled customers travelling through

Dublin Airport to park their vehicles at the lands and transport to and from Dublin Airport was

arranged from the premises.

10. In 2012/2013, the applicant procured the development of a website to allow customers to

book online to avail of carparking on the site.

11. In September 2016, the applicant applied for planning permission to the council (reg. ref.

F16A/0388) for an extension to the north and east of the existing White House Hotel.

12. By letter dated 17 November 2016, the applicant confirmed to the respondent that the park-

and-fly facility was no longer in operation at The White House.

13. On 10 April 2017, the respondent granted permission for the proposed development, subject

to conditions including that the area “within the applicant’s ownership/control shall only be used for

hotel-related uses and shall not be used as ‘park and fly’ parking (that is, parking which is not

directly ancillary to the use of accommodation in the hotel by the drivers/occupants of such car)”.

14. Development was not commenced or implemented under this permission.

15. On 9 January 2020, the respondent issued a warning letter in respect of a camping and

caravan park being operated at the applicant’s lands. A response was issued by the applicant by

letter dated 5 February 2020. No further enforcement action was taken by the respondent in respect

of the letter of 9 January 2020.

16. In March 2020, the applicant applied for planning permission to infill the trotting ring and

reinstate it to market gardening (reg. ref. FW20A/0038) but this was refused on 30 June 2020.

17. In May 2021, the applicant applied again (reg. ref. FW21A/0089) to infill the trotting ring

and reinstate it to market gardening but this was also refused on 22 March 2022.

18. On 25 November 2021, the applicant sought to extend the duration of permission granted

under reg. ref. F16A/0388. A letter enclosed with the application stated that the applicant “wishes

to request that the planning permission be extended for a further 5 years in order for him to proceed

with the development”. The application for an extension of duration was refused on 13 January

2022.

19. In May 2022, the applicant applied (reg. ref. FW22A/0090), once again, to infill the trotting

ring and reinstate it to market gardening and this was granted permission on 28 February 2023.

Development has not yet commenced under this permission.

20. In September 2022, the applicant applied for permission (reg. ref. FW22A/0195) to extend

the existing hotel, bar and restaurant adjacent to the trotting ring to include 50 additional rooms

and 88 car parking spaces and was granted permission for that on 13 June 2023. Condition 3 of the

said permission requires that “[a]ll car parking spaces within the application site boundary shall only

be used for use associated with the existing hotel and shall not be used as ‘park and fly’ parking”.

Development has not yet commenced under this permission.

21. The respondent, through its planning inspectors, inspected the lands in 2020 and 2021/2022

and two inspectors reports dated 2020 and 2022 were produced. Both reports refer to the trotting

track as a “former [o]bsol[e]te horse trotting track” and “an obsolete trotting track”. Both the 2020

and 2022 inspector’s reports make reference to “an airport parking business and a campervan park”.

The applicant’s position is that these reports acknowledged and recorded the presence of the airport

parking business operating from the lands. The respondent’s position is that both these reports

show a mosaic of aerial images of the trotting track recorded at different times from 2011 to 2013

and it is not clear if the description to “airport parking business” in the reports refers to the historic

aerial image only and, further, Google Earth Aerial Imagery indicates that any parking of vehicles

taking place on the trotting ring or the hotel car park was not significant at the time the reports

were prepared.

22. On 20 August 2024, the applicant received a letter from the respondent entitled Warning

Letter, which alleged that an unauthorised development was ongoing at the lands. This unauthorised

development was alleged to consist of “The development of an area to the rear of The White House

Public House as a carpark without the benefit of Planning Permission”.

23. The applicant responded to the respondent’s letter of 20 August 2024 by letter of 1

September 2024, and attached Google Aerial Images from 2012 to 2024. In the said letter, the

applicant stated “I assume your office is referring to the folio on the Northern Side of The White

House”. The Folio on the northern side of The White House is Folio DN49, and it includes the car

park to the rear of The White House and the trotting ring. The applicant’s response also referred to

the “complaint that we have been developing an area to the rear of The White House Hotel without

the benefit of planning permission”. While the applicant’s response focuses on the “pitch and putt

area to the North”, it addresses the entire Folio and includes submissions on the “the old trotting

track” which it describes as “attached” to “the car parking area to the rear of the Whitehouse Hotel”

– in particular, the applicant outlined that a car park had been operating from the site for a period

of decades. Further, the applicant addressed the then recent use of the pitch and putt course and

committed not to doing so again.

24. The applicant received no response to his letter of 1 September 2024.

25. The lands were inspected on 31 October 2024 by a planning inspector from the council who

prepared a report dated 27 November 2024, recommending a further warning letter be issued to

Dublin Valet Airport Parking Limited. A further warning letter was issued on 28 November 2024 to

Dublin Valet Airport Parking Limited in the same terms as that issued to the applicant.

26. There was no response to the further warning letter and the planning inspector prepared an

update to his report on 17 January 2025, recommending an enforcement notice be issued. In

preparing his report the planning inspector considered all aerial imagery of the trotting ring/track

and the hotel car park available on Google Earth from 4 July 2008 to 6 May 2025 and Google Street

View imagery from October 2022 and April 2023.

27. On 13 March 2025, the senior executive planner finalised his report recommending that an

enforcement notice be issued.

28. On 18 July 2025, the respondent made and signed the council’s decision (CE order reference

PEN/0165/2025) dated 18 July 2025, to issue the enforcement notice.

29. On 18 July 2025, the respondent also made and signed the council’s decision (CE order

reference PENF/0166/2025) dated 18 July 2025, to prepare and serve the enforcement notice.

30. The respondent issued an enforcement notice dated 23 July 2025 on the applicant. This

enforcement notice alleges that the unauthorised development consists of the following:

“Lands to the rear of the White House Public House, including the trotting track, are being

used as a carpark.

A hardcore surface has been laid on the trotting ring to the rear of the White House Public

House.

Structures consisting of a reception hut, a covered games room, a snack shop with outdoor

seating, and signage associated with the unauthorised use of the lands, have been erected

to the rear of the White House Public House.”

Procedural history

31. The applicant filed his statement of grounds, grounding affidavit and ex parte docket on 16

September 2025, and the application for leave was listed for 29 September 2025, and leave to apply

for judicial review was granted on that date.

32. The originating notice of motion was filed on 6 October 2025. The respondent’s statement

of opposition and verifying affidavit were filed on 19 December 2025.

33. The applicant has not been granted relief at §D(4) of his statement of grounds/ §4 of his

notice of motion: an interlocutory order staying the enforcement of the enforcement notice of 23

July 2025 and preventing the respondent from taking any steps on foot of enforcement notice of 23

July 2025.

34. On 9 February 2026, the matter was listed for a date, and a hearing date was fixed for 25

March 2026.

35. The applicant filed a replying affidavit on 5 February 2026.

36. The respondent filed a replying affidavit on 18 February 2026.

37. On 9 March 2026, the matter was listed for callover.

38. The applicant filed a further replying affidavit on 13 March 2026.

39. The matter was heard on 25 March 2026. Judgment was reserved at the end of that hearing.

I would like to record my thanks to all of the lawyers involved for their unfailingly courteous,

professional and helpful assistance. As I have previously sought to make clear, insofar as any points

advanced are not being accepted in this or any other given judgment, that is solely to do with the

inherent merits of such points and is no reflection on those instructed to convey such points, a

distinction that most certainly should be, and I believe generally is in fact, self-evident to all

concerned.

40. At the end of the hearing, the parties helpfully agreed to provide an updated factual narrative

by 27 March 2026 and duly did so.

41. On 9 April 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.

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

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

disregarded) but are confined to matters such as:

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

issues;

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

both modes;

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

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

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

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

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

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

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

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

party considers could beneficially be decided;

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

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

for; and

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

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

reason.

43. 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).

44. 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.

45. The deadline for such comments from the parties was to be 16:00 on 14 April 2026. The

parties provided some suggested corrections. The council’s proofreading was particularly thorough

and welcome, and the applicant’s comments were also helpful. In the draft judgment I had

suggested a wording for a recital in the order, subject to any contrary submissions in the responses

to the draft judgment. The parties did not make any contrary submission so I have included it.

Relief sought

46. The reliefs sought are as follows:

“1. An Order of certiorari quashing the Enforcement Notice issued by the Respondent,

on 23 July 2025 (Ref. PENF/0166/2025) in respect of lands at The White House, Newpark,

The Ward, County Dublin D11 X8DH (‘the Lands’).

2. A Declaration that the Lands have been used and operated as a carpark for a period

in excess of 7 years.

3. Such Declaration(s) as to the legal rights and/or legal position of the Applicant and

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

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

4. An interlocutory order staying the enforcement of the Enforcement Notice of 23 July

2025 and preventing the Respondent from taking any steps on foot of Enforcement Notice

of 23 July 2025.

5. A declaration that the protective costs provisions contained in section 50B of the

Planning and Development 2000 Act, as amended and/or section 3 of the Environment

(Miscellaneous Provisions) Act 2011, and/or Order 99 and/or section 169 of Legal Services

Regulation Act 2015, as interpreted in light of Article 9 of the Aarhus Convention, apply to

these proceedings.

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

defined by the Practice Direction applicable to the List.

7. Such further or other order.

8. Liberty to Apply.

9. An Order in respect of the costs of these proceedings.”

Grounds of challenge

47. The core grounds of challenge are as follows:

“(A) Domestic Law Grounds

Core Ground 1:

The Respondent erred in law and acted ultra vires in failing to have regard to, and comply

with, s.157(4)(a) of the Planning and Development Act 2000 (as amended) in failing to have

regard to the fact that the Respondent has been operating a carpark at the Lands for a

period in excess of 30 years. The development impugned in the Enforcement Notice had

been commenced more than 7 years prior to the date of issue of the Enforcement Notice.

Further particulars are set out in Part 2 below.

Core Ground 2:

The Respondent erred in law and acted ultra vires and in breach of fair procedures in failing

to have regard to, and comply with s.152 of the Planning and Development Act 2000 (as

amended) in failing to issue a warning letter to the Applicant, in respect of the development

which is impugned in the Enforcement Notice issued on 23 July 2025. The Respondent failed

to comply with s.152(4)(b) of the Planning and Development Act 2000 in failing to provide

the Applicant with an opportunity to make submissions or observations in writing in respect

of the purported offence before issuing the Enforcement Notice. Further and or in the

alternative, the Respondent failed to identify the development which was being impugned in

the Warning Letter of 20 August 2024 and failed to engage with the Applicant’s submissions

by letter dated 01 September 2024 or to seek further information from the Applicant in

respect of the matters addressed therein. Further particulars are set out in Part 2 below.

Core Ground 3:

The Respondent erred in law and acted ultra vires and in breach of fair procedures in failing

to have regard to, and comply with, s.153(3) of the Planning and Development Act 2000 (as

amended) in failing to consider any submissions or observations made to it under Section

152(4)(b). The Respondent issued a warning letter in respect of the Lands on 20 August

2024. This letter did not outline the development impugned in the Enforcement Notice. The

Applicant responded to the Warning Letter of 20 August 2024 with letter dated 01 September

2024 setting out submissions and observations in respect of the matters identified in the

Warning Letter. Given that the development impugned in the Enforcement Notice was not

that which was identified in the Warning Letter, the Applicant was deprived of an opportunity

to provide submissions or observations on to the Respondent in advance of the Enforcement

Notice being issued. Further, and without prejudice to the foregoing, the Respondent failed

to have regard to the submissions made by the Applicant by letter dated 01 September

2024. The Applicant is entitled not to be vexed by enforcement proceedings without having

an opportunity to address any alleged unlawful development in advance. Further particulars

are set out in Part 2 below

Core Ground 4:

The Respondent erred in law and acted ultra vires and in breach of fair procedures in failing

to have regard to, and comply with, s.153 of the Planning and Development Act 2000 (as

amended) in failing to provide any adequate reasons for the decision to issue the

Enforcement Notice. Further, the Respondent erred and acted ultra vires in failing to comply

with the provisions of s.153(1) and s.153(2) of the Planning and Development Act 2000 in

failing to carry out any adequate and timely investigation and failing to take a decision in

respect of enforcement in an expeditious manner. Further particulars are set out in Part 2

below.

Core Ground 5:

The Respondent erred in law and acted ultra vires in finding/deciding that the development

impugned in the Enforcement Notice is not exempt development within the meaning of

Section 4 of the Planning and Development Act 2000 (as amended). Further particulars are

set out in Part 2 below.”

The impugned decision

48. The impugned decision provides as follows:

“ENFORCEMENT NOTICE

SECTION 154 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

DEVELOPMENT CARRIED OUT WITHOUT A GRANT OF PLANNING PERMISSION

RE: Lands at The White House, Newpark, The Ward, Co. Dublin D11 XSDH

WHEREAS Fingal County Council (hereinafter called ‘the Council’) being the Planning

Authority for the area in which the above mentioned land is located having considered only

the proper planning and sustainable development of its area including the preservation and

improvement of the amenities thereof, regard being had to the provisions of the County

Development Plan 2023 - 2029, any representations made to the Planning Authority under

Section 152 (1)(a) of the Planning and Development Act 2000, as amended, any submissions

or observations made under Section 152 (4)(b) of the Planning and Development Act 2000,

as amended, and any other material considerations, and having investigated the matter has,

in accordance with Section 153 of the Planning and Development Act 2000, as amended,

decided to issue this Enforcement Notice.

AND WHEREAS subsequent to the 1st day of October 1964 and within seven years

immediately preceding the date of this Notice, the following development has been carried

out on the said lands without a grant of permission under Part III of the Planning and

Development Act 2000 as amended:

• Lands to the rear of the White House Public House, including the trotting track, are

being used as a carpark.

• A hardcore surface has been laid on the trotting ring to the rear of the White House

Public House.

• Structures consisting of a reception hut, a covered games room, a snack shop with

outdoor seating, and signage associated with the unauthorised use of the lands,

have been erected to the rear of the White House Public House.

AND WHEREAS the said development is not exempted development.

AND WHEREAS the said development carried out on the said lands constitutes Unauthorised

Development.

YOU ARE HEREBY REQUIRED, pursuant to Section 154 of the Planning and Development Act

2000 as amended:

Shall require within a period of 4 (Four) months of the date of the service of this Notice to:

A)

• Cease use of the lands to the rear of the White House Public House & Hotel, including

the trotting ring, as a carpark.

• Remove hardcore surface from the trotting ring and remove from site.

• Demolish the reception hut, covered games room, snack shop with outdoor seating,

and all signage associated with the airport carpark and remove from site.

And the following steps as to how the land should be restored

• Restore use of tarmac area immediately to the rear of the White House to carpark

serving the hotel and public house only.

B) To refund the Council the sum of €350.00 being the sum of the costs and expenses

reasonably incurred by it in relation to the investigation, detection and issue of this

Enforcement Notice and any Warning Letter issued under Section 152 of the Planning and

Development Act 2000 as amended, including costs incurred in respect of the remuneration

and other expenses of its employees, consultants and/or advisors pursuant to Section

154(5)(d) of the Planning and Development Act 2000 as amended.

AND TAKE NOTICE that if, within the said period above, or within such extended period (not

being more than six months) the steps specified in this Notice to be taken by you have not

been so taken, the Council may enter on the said lands and take such steps, including the

removal, demolition or alteration of any structure and may recover any costs reasonably

incurred by it on that behalf.

AND TAKE FURTHER NOTICE that if, within the said period above, or within such extended

period (not being more than six months as may be allowed by the Council) the steps specified

in this Notice to be taken by you have not been so taken, you may be guilty of an offence.

If the Council decides to prosecute you for non-compliance with this Notice and you are

found guilty of an offence by the Courts, you may be liable on summary conviction to a fine

not exceeding €5,000 and/or imprisonment for a term not exceeding 6 months or both or

on conviction following a trial on indictment to a fine not exceeding €12,697,381 and/or a

term of imprisonment not exceeding 2 years or both. You will be liable on conviction for the

costs and expenses of such prosecution.”

Onus of proof

49. Some relevant legal principles concerning the onus of proof which have been rehearsed in

previous caselaw include the following:

(i) With only defined and extremely limited exceptions, in judicial review the onus of

proof is on the applicant at all times: per Denham J. (Murray C.J. and Fennelly

J. concurring) in Meadows v. Minister for Justice, Equality and Law Reform [2010]

IESC 3, [2010] 2 I.R. 701 at p. 743; Cork County Council v. Minister for Housing,

Local Government and Heritage (No. 1) [2021] IEHC 683 (Unreported, High Court,

5 November 2021) at §57; Monkstown Road Residents Association v. An Bord

Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) at para. 96 per

Holland J.; that remains the case even when in a constitutional challenge it is proved

that constitutional rights have been interfered with: O’Doherty and Waters v.

Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per

O’Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring)

at para. 116; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court,

26 September 2025) per Farrell J. at 14. To put the same point another way, there

is a presumption of validity for administrative decisions: per Finlay P. in In re

Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5 December 1977) and per

Keane J. in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 at

102; Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669

(Unreported, High Court, Holland J., 25 November 2024), para. 22; Moran v. An

Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per

Farrell J. at 15.

(ii) The onus shifts only in defined special circumstances. For example, where an error

is demonstrated by an applicant, the onus shifts to opposing parties to show

that the error is harmless: H.A. v. Minister for Justice [2022] IECA 166, [2022] 7

JIC 2201 (Unreported, Court of Appeal, Donnelly J., 22 July 2022) at para. 48 (Ní

Raifeartaigh and Collins JJ. concurring). An onus on a decision-taker in the

administrative process (e.g. to conduct a valid AA) does not convert into an

evidential or any burden in the judicial process to show that the decision is valid (for

reasons explained in Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC

2701 (Unreported, High Court, 27 January 2023) at para. 85).

(iii) The onus of proof does not shift to a notice party merely because the decision-

taker does not defend the decision on a given point or generally. Such a rule

would be inconsistent with the Supreme Court’s finding in Ballyboden Tidy Towns

Group v. An Bord Pleanála & Ors. [2024] IESC 4 (Unreported, Supreme Court,

Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ.

concurring) that a notice party can defend a permission even if the decision-taker

does not.

(iv) In the context of a challenge to an environmental assessment, the onus of proof to

show, by evidence (normally expert evidence), or by demonstrating a flaw

on face of material, that AA/EIA was defective, or that there were factual

circumstances requiring a decision-taker to consider any other autonomous

obligation, lies on the applicant: R v. Crischuk, 2010 BCSC 716 (Barrow J.) at paras.

36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141; Reid v. An Bord Pleanála (No.

1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021),

para. 19; An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173,

[2022] 1 I.L.R.M. 281 per Hogan J. at para. 124 (O'Donnell C.J., Dunne, Charleton

and Woulfe JJ. concurring); Carrownagowan Concern Group v. An Bord Pleanála

[2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v) (leave to appeal

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

(Charleton, Collins and Donnelly JJ., 27 January 2025)); Salmon Watch Ireland,

Inland Fisheries Ireland, Sweetman & Ors. v. Aquaculture Licences Appeals Board &

Ors. [2024] IEHC 421 (Unreported, High Court, Holland J., 12 July 2024), §1097;

Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported,

High Court, 1 November 2024) at para. 115; Minoa Ltd v. An Bord Pleanála [2024]

IEHC 704 (Unreported, High Court, Heslin J., 10 December 2024), para. 333; Ó

Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J.,

19 September 2025) at 55; Oxigen v. An Coimisiún Pleanála [2025] IEHC 632

(Unreported, High Court, 19 November 2025) (for example, in relation to proving

that a decision-taker lacks expertise). Thus, apart from (i) failure to consider

something that the decision-taker was autonomously required to consider, (ii) patent

flaw on the face of the materials, or (iii) other legal error, inadequate consideration

or failure to dispel scientific doubt has to be established by admissible evidence

(normally expert evidence) in the judicial review showing either that reasonable

doubt was created by the material before the decision-taker at the time (albeit not

limited to what was adduced by the applicant specifically), or that such material

even if uncontradicted would on its face have created doubt in the mind of a

reasonable expert: An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021]

7 JIC 0205 (Unreported, High Court, 2 July 2021) at §7 and §8; Carrownagowan

Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20

May 2024) at §191(v), leave to appeal refused: Carrownagowan Concern Group v.

An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January

2025); Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7

October 2024) at §§ 73 and 105; Roache v. An Bord Pleanála [2024] IEHC 311

(Unreported, High Court, Phelan J., 21 May 2024) at §117; Ryanair DAC v. An Bord

Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February 2025) at §64 et seq.;

analogously, Donegal County Council v. Planree [2024] IECA 300 (Unreported, Court

of Appeal, Butler J., 18 December 2024), para. 141; Massey v. An Bord Pleanála

(No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025). As noted in Nagle

View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High

Court, 1 November 2024), summarised in the non-precedential determination

refusing leave to appeal [2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10

March 2025) at para. 8, “the critical point was that scientific and factual

shortcomings in EIA or indeed in an Appropriate Assessment, must be established

by the applicant who bore the burden of proof”. Similarly, leave to appeal was

refused in Eco Advocacy v. An Bord Pleanála [2025] IESCDET 74 (Dunne, Hogan and

Donnelly JJ., 4 June 2025) where “The applicant’s claim failed for the reason that

the High Court accepted that the respondent had come to a lawful conclusion of no

doubt that an appropriate assessment was not needed and that the respondent had

given reasons for that conclusion. On the judicial review the applicant had not

displaced that conclusion by way of evidence” (para. 25). That is consistent with

the general law: O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023]

2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin,

O’Malley, Baker and Murray JJ. concurring). The Supreme Court determination in

100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and

Collins JJ., 1 July 2025) is to the same effect: “17. As [the trial judge] pointed out

(at para. 196) the Court of Justice ruled in Case C-721/22 Eco Advocacy CLG (EU:C:

2023: 477) the Board simply provides ‘reasons sufficient to explain that the decision

does not create reasonable scientific doubt as to impact on European sites.’ This

was simply the test which [the trial judge] applied in the present case. He concluded

(at para. 230) that the Board had addressed the issue of potential bird movements

of water birds and hen harriers and ‘gives reasons for that conclusion which the

applicants have not displaced evidentially.’ 18. The Court considers that this second

issue involves the application of standard principles and does not meet the

constitutional criteria”. See also Eco Advocacy CLG v. An Bord Pleanála & Statkraft

[2025] IEHC 15 (Unreported, High Court, 15 January 2025) at §95; Concerned

Residents of Coolkill v. An Bord Pleanála & Midsal Homes [2025] IEHC 265

(Unreported, High Court, Holland J., 19 May 2025) at 309.

(v) The onus of proof as to an inadequacy in the decision cannot be discharged by

mere assertion: Joyce Kemper v. An Bord Pleanála [2020] IEHC 601, [2020] 11

JIC 2402 (Unreported, High Court, Allen J., 24 November 2020) at §9; Murphy v.

An Bord Pleanála [2024] IEHC 59 (Unreported, High Court, Bolger J., 6 February

2024) at §14; nor does mere assertion create scientific doubt for AA purposes:

Harrington v. An Bord Pleanála [2014] IEHC 232, [2014] 5 JIC 0909 (Unreported,

High Court, O’Neill J., 9 May 2014); Murphy v. An Bord Pleanála [2024] IEHC 59

(Unreported, High Court, Bolger J., 6 February 2024) at §14; Duffy v. An Bord

Pleanála [2024] IEHC 558 (Unreported, High Court, Holland J., 27 September 2024)

at §40-§41.

(vi) If demonstration of error depends on expert opinion, the onus of demonstration in

that regard cannot be discharged by non-expert views articulated by or on

behalf of an applicant. Such an exercise in ultracrepidarianism is generally

inadmissible on standard evidential principles insofar as matters of opinion are

concerned: Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High

Court, 11 April 2025).

(vii) Where there is a conflict of admissible evidence, in the absence of cross-examination

such a conflict must generally be resolved against the party carrying the onus

of proof: RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC 4,

[2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273 (Clarke C.J.) (O’Donnell, MacMenamin,

Dunne and Finlay Geoghegan JJ. concurring). That is normally the applicant but in

the case of an opposing party asserting that a demonstrated error is harmless, the

conflict will be resolved against the opposing party.

50. That said, while conflict between equally inherently credible averments, with no cross-

examination, is generally resolved against the party carrying the onus of proof, a court is not

always obliged to regard all averments as being equally credible, or to disregard internal

or evident problems with them (see by analogy the manner in which the Supreme Court

considered it was entitled to prefer an affidavit over even oral evidence in Koulibaly v. Minister for

Justice, Equality and Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court,

Denham J. (Geoghegan and McCracken JJ. concurring), 29 July 2004)). Among the matters to which

regard might be had would be included the failure to explain patently relevant questions that are

clearly within that party’s responsibility (Doorly v. Corrigan [2022] IECA 6 (Unreported, Court of

Appeal, 21 January 2022) at para. 137 (Ní Raifeartaigh and Pilkington JJ. concurring)). This specific

and common sense power of the court to evaluate inherent defects in evidence remains

notwithstanding caselaw on cross-examination such as RAS Medical or Re Bayview Hotel (Waterville)

Limited [2022] IEHC 516 (Unreported, High Court, Butler J., 8 September 2022). This is consistent

by analogy with the judgment of Hardiman J. (Hanna and Feeney JJ. concurring) in DPP v. Barnes

[2006] IECCA 165, [2007] 3 I.R. 130, [2007] 1 I.L.R.M. 350 at para. 95 – the court as finder of fact

is “not ... constrained” to accept “the only account available” even if that account is provided by oral

evidence. The evidence of experts is one area where the court is not automatically obliged to accept

evidence absent cross-examination: Tesco Ireland Limited v. Stateline Transport Limited [2024]

IECA 46 (Unreported, Court of Appeal, Butler J., 23 February 2024).

The lens of the material before the decision-maker

51. The foundational concept is that consideration by a decision-taker involves essentially three

elements, which are probably best categorised as follows (see Rural Residents Wind Aware v. An

Coimisiún Pleanála (I) [2025] IEHC 600 (Unreported, High Court, 6 November 2025) at 76):

(i) matters that must be considered either autonomously – normally finite and well

identified – or only if they are raised, such as submissions;

(ii) matters that must not be considered; and

(iii) an infinite range of other matters which a decision-taker may consider if she wants

to but does not have to.

52. Therefore if an autonomous duty does not arise, and if there is no breach of a prohibition on

considering something, then everything else falls under the rubric of what was before the decision-

taker at the time of the decision. Thus:

(i) a basic principle is that in general, the legality of a decision is viewed through the

lens of the material before the decision-taker at the time of the decision,

and not with the benefit of further evidence in hindsight, although there are defined

exceptions: I.S.O.F. v. Minister for Justice, Equality and Law Reform [2010] IEHC

457 (Unreported, High Court, Cooke J., 17 December 2010); Jahangir v. Minister for

Justice and Equality [2018] IEHC 37, [2018] 2 JIC 0102 (Unreported, High Court, 1

February 2018); M.H. (Bangladesh) v. Refugee Appeals Tribunal [2018] IEHC 496,

[2018] 6 JIC 2607 (Unreported, High Court, 26 June 2018); B.D. (Bhutan and Nepal)

v. Minister for Justice and Equality [2018] IEHC 461, [2018] 7 JIC 1709 (Unreported,

High Court, 17 July 2018); A.J.A. (Nigeria) v. International Protection Appeals

Tribunal [2018] IEHC 671, [2018] 11 JIC 1403 (Unreported, High Court, 14

November 2018); O.A. (Nigeria) v. International Protection Appeals Tribunal [2018]

IEHC 661, [2018] 11 JIC 2003 (Unreported, High Court, 20 November 2018); De

Souza v. Minister for Justice and Equality [2019] IEHC 440, [2019] 6 JIC 0407

(Unreported, High Court, 4 June 2019); Ratushnyak v. Minister for Justice and

Equality [2019] IEHC 619 (Unreported, High Court, 16 August 2019) per Keane J.

at paras. 35 to 36; J.W. v. Minister for Justice and Equality [2020] IEHC 500, [2020]

10 JIC 1501 (Unreported, High Court, 15 October 2020); Reid v. An Bord Pleanála

[2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021);

Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303, [2021] 5 JIC 0706

(Unreported, High Court, 7 May 2021) at para. 87; Google v. Data Protection

Commission [2024] IEHC 577 (Unreported, High Court, Barr J., 11 October 2024);

Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September

2025) per Farrell J. at 16; Eglington Residents Association v. An Bord Pleanála

[2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025) at 9; Duffy v.

An Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December

2025) at 54;

(ii) it follows that if the consideration of something isn’t an autonomous obligation, and

if nobody in the process raises that something, then belatedly introducing the

point in judicial review is not generally a plausible or permissible basis for quashing

a decision: North Great Georges Street Preservation Society v. An Bord Pleanála

[2023] IEHC 241 (Unreported, High Court, 15 May 2023). In particular in the climate

context, although not confined to that, the extent to which issues were raised in the

process is of major importance (Coolglass v. An Coimisiún Pleanála [2026] IESC 5

(Unreported, Supreme Court, 4 February 2026) para. 118(xiv)). Exceptions are

discussed in Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230 (Unreported, High

Court, 12 April 2021) – if such exceptions apply then the court can potentially receive

new evidence;

(iii) the concept of autonomous duties should not be extended to nullify the requirement

to make the point to the decision-taker. Where the decision-taker fails to engage

with the relevant statutory test at all (as in Sherwin for example), one can

characterise that as a breach of an autonomous duty, whether or not submissions

on the point were also made, but where the decision-taker does address the

appropriate test, the outcome of that should not normally be condemned on the

basis of some new argument or evidence which was never put forward in the

process, consistently with the foregoing caselaw.

(iv) it follows a fortiori that if an applicant not only fails to make the point to the decision-

taker but makes a contrary point, that is disqualifying in terms of permitting an

applicant to obtain an order quashing a decision on such an inconsistent basis (see

Clifford v. An Bord Pleanála [2021] IEHC 459 (Unreported, High Court, 12 July

2021), para. 52(ii) where landowners tried to object to a condition that had been

inserted on foot of their own substantive submissions; McGowan v. An Coimisiún

Pleanála [2025] IEHC 405 (Unreported, High Court, 16 July 2025) §§140 & 160;

Fernleigh RA v. An Coimisiún Pleanála [2025] IEHC 655 (Unreported, High Court,

Holland J., 28 November 2025) at 63).

Workability

53. Legal provisions and obligations should be given a workable, sensible interpretation

where this is at all possible:

(i) Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord Pleanála

[2022] IESC 30, [2022] 2 I.L.R.M. 417 per Hogan J. (MacMenamin, Charleton,

O'Malley and Baker JJ. concurring) at 43: “There is clear judicial authority for the

proposition that statutory provisions should be read, where possible, so as to

produce a workable and coherent interpretation, thereby avoiding interpretations

which were either incongruous or which imposed unfair or anomalous obligations on

private citizens in particular. Thus, for example, as far back as Frescati Estates Ltd

v Walker [1975] IR 177 at 187 this Court held that the Planning Acts should, where

possible, not be interpreted in a way which would lead to ‘strange incongruities.’ In

a subsequent Housing Act case, this Court rejected an interpretation of what

constituted the relevant dates for the service of notices to treat for the purposes of

the making of compulsory purchase orders under the Housing Act 1966 where it

concluded that such an interpretation such render the legislation effectively

unworkable: see In re Murphy [1977] IR 243 at 251 per Henchy J.”

(ii) 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and

Collins JJ., 1 July 2025), para. 13, citing the statement that where the statutory

words used “are reasonably capable of a meaning which is in accord with the essence

of the provision, it is that interpretation which should prevail”: see Kellystown Co.

v. Hogan [1985] I.L.R.M. 200 at 203, per Henchy J. (Griffin J. concurring).

(iii) A discretionary power should not be construed as extending to impose unworkable

and unenforceable requirements – McGowan v. An Coimisiún Pleanála [2025] IEHC

405 (Unreported, High Court, 8 July 2025).

(iv) Likewise, European law should not be read as imposing impossibly onerous

obligations: An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8, [2022]

2 I.R. 173, [2022] 1 I.L.R.M. 281, per Hogan J. (O'Donnell C.J., Dunne, Charleton

and Woulfe JJ. concurring) at para. 105, rejecting “impossibly onerous and

unworkable obligations”; Friends of Killymooney Lough v. An Coimisiún Pleanála

[2025] IEHC 407 (Unreported, High Court, 16 July 2025).

Reasons

54. Key elements of the law relating to reasons include:

(i) The standard is the obligation to provide the main reasons on the main issues:

Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 45 (Clarke C.J.)

(O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Balz and

Heubach v. An Bord Pleanála [2019] IESC 90, [2023] 3 I.R. 751, [2020] 1 I.L.R.M.

367 per O’Donnell J. (Clarke C.J., McKechnie, Charleton and Irvine JJ. concurring);

Balscadden Road SAA Residents Association Ltd v. An Bord Pleanála (No. 1) [2020]

IEHC 586, [2020] 11 JIC 2501 (Unreported, High Court, 25 November 2020);

Atlantic Diamond v. An Bord Pleanála [2021] IEHC 322 (Unreported, High Court, 14

May 2021); Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669

(Unreported, High Court, Holland J., 25 November 2024), para. 59; Pat O’Donnell v.

Dublin City Council [2024] IEHC 671 (Unreported, High Court, Holland J., 26

November 2024), para. 149; per Barr J. in Graymount House Action Group v. An

Bord Pleanála [2024] IEHC 327 (Unreported, High Court, 31 May 2024), leave to

appeal refused in Graymount House Action Group v. An Bord Pleanála [2025]

IESCDET 22 (Dunne, Woulfe and Hogan JJ., 17 February 2025); see also non-

precedentially Morris v. An Bord Pleanála [2025] IESCDET 25 (Dunne, Woulfe and

Hogan JJ., 17 February 2025); Ó Murthuile v. An Bord Pleanála [2025] IEHC 498

(Unreported, High Court, Farrell J., 19 September 2025) at 49; Moran v. An Bord

Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell

J. at 33; reasons are to be understood in context of the “Broad issues” – Finlay C.J.

(Griffin, Hederman and Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993]

1 I.R. 39, [1992] I.L.R.M. 237 at p. 76 or “Broad gist” – Faulkner v. Minister for

Industry and Commerce 1997 WJSC-SC 962, [1996] 12 JIC 1007 (Unreported,

Supreme Court, 10 December 1996) per O’Flaherty J. (Hamilton C.J. and Barrington

J. concurring).

(ii) A decision-taker is not required to give “reasons for the reasons”: Munby L.J.

(Tomlinson and Patten LJJ. concurring) in In re A. and L. (Children) [2011] EWCA

Civ. 1611, [2011] 12 W.L.U.K. 725, [2012] 1 F.L.R. 1243, [2012] Fam. Law 285, at

para. 35 (in the context of judicial reasoning – the administrative obligation can’t be

greater); N.P.B.K. (D.R.C.) v. International Protections Appeals Tribunal [2020]

IEHC 450 (Unreported, High Court, 25 September 2020) at 29; Ó Murthuile v. An

Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September

2025) at 49.

(iii) Certain issues are to be viewed objectively as main reasons given the

nature of the process or decision at issue – for example if it is in dispute as to

whether key statutory criteria for the decision have been satisfied. Where the

commission is disagreeing with a council (Sherwin v. An Bord Pleanála [2023] IEHC

26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023)) or with its own

inspector on a point on which the grant or refusal of permission turns, such an issue

is virtually by definition a main issue, speaking objectively, such that a decision not

to give reasons on it would be held to be erroneous (Crekav Trading GP Ltd v. An

Bord Pleanála and Ors. [2020] IEHC 400 (Unreported, High Court, Barniville J., 31

July 2020); Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303 (Unreported,

High Court, 7 May 2021); O'Donnell v. An Bord Pleanála [2023] IEHC 381

(Unreported, High Court, 1 November 2023); Killegland Estates Ltd v. Meath County

Council [2023] IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023)

(O'Donnell C.J., Charleton, O'Malley, Baker, Woulfe and Donnelly JJ. concurring);

Ventaway v. An Coimisiún Pleanála [2025] IEHC 406 (Unreported, High Court, 16

July 2025); Phelan Walsh v. An Bord Pleanála [2025] IEHC 533 (Unreported, High

Court, Nolan J., 8 October 2025) at 53 citing Connelly v. An Bord Pleanála [2018]

IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453 (Clarke C.J.)). In the case of the

inspector, there is the additional factor that by contrast with a normal case where

the commission adopts the inspector’s reasons, in a case where the commission

disagrees it must come up with reasons of its own. Where the commission disagrees

with the inspector’s conclusion but on a basis that was not dealt with at all by the

inspector, then any enhanced reasons obligation does not apply: AAI Baneshane v.

An Coimisiún Pleanála [2025] IEHC 641 (Unreported, High Court, 21 November

2025).

(iv) As to what are the main issues arising from submissions of interested parties,

the decision in Friends of the Irish Environment CLG & Anor. v. Minister for Housing,

Local Government and Heritage & Ors. [2025] IECA 128 (Unreported, Court of

Appeal, 5 June 2024) is clear that, per Hyland J. (Costello P. and Collins J.

concurring) at para. 148, it is for the decision-taker in the first instance to decide

whether submissions raise relevant issues. Failure to address an issue in a

submission can be challenged in the normal way.

(v) There is no obligation to provide a discursive, narrative consideration or to

“engage with” submissions in such a sense, or to provide an issue-by-issue or

submission-by-submission response: see Oguekwe v. Minister for Justice, Equality

and Law Reform [2008] IESC 25, [2008] 3 I.R. 795, per Denham J. (Murray C.J.,

Fennelly, Kearns and Finnegan JJ. concurring) referring to the lack of a need for a

“micro specific format” (at p. 819); per Clarke J. (Fennelly and MacMenamin JJ.

concurring) in Rawson v. Minister for Defence [2012] IESC 26 (Unreported, Supreme

Court, 1 May 2012) at para. 6.9, referring to the need for a “reasoned but not

discursive ruling”. Confusing a lack of narrative discussion with a lack of reasons is

a classic applicant’s fallacy: see e.g. Ó Murthuile v. An Bord Pleanála [2025] IEHC

498 (Unreported, High Court, Farrell J., 19 September 2025) at 23.

(vi) Reasons may be found anywhere, not necessarily in the decision itself, for

example in an inspectors report: Connelly v. An Bord Pleanála [2018] IESC 31,

[2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, para. 9.2 per Clarke C.J. (O’Donnell,

Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Sherwin v. An Bord Pleanála

[2024] IESC 13 (Unreported, Supreme Court, 11 April 2024) per Woulfe J.

(Charleton, O’Malley, Baker and Murray JJ. concurring) at para. 129; thus no

additional requirement for reasons is required when adopting a reasoned report (for

example of a chief executive or indeed an inspector): Killegland Estates v. Meath

County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July

2022) at para. 65; Shadowmill v. An Bord Pleanála [2023] IEHC 157 (Unreported,

High Court, Holland J., 31 March 2023), para 84; Pat O’Donnell v. Dublin City Council

[2024] IEHC 671 (Unreported, High Court, Holland J., 26 November 2024) at para.

144.

(vii) Reasons may be implicit from the context, for example it can be implicit that

matters submitted were held not to be outweighing when placed against factors

supporting the conclusion arrived at: Rana v. Minister for Justice [2024] IESC 46

(Unreported, Supreme Court, O’Malley J., 18 October 2024), paras. 96-99 (Dunne,

Hogan, Collins and Donnelly JJ. concurring).

(viii) Consistently with the principle that there do not need to be reasons for the reasons,

a decision-maker doesn’t need to give reasons for not changing her mind from

an already-articulated position absent a significant change in circumstances or a

significant new point (Killegland Estates v. Meath County Council [2022] IEHC 393,

[2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022), para. 67; Pat O’Donnell

v. Dublin City Council [2024] IEHC 671 (Unreported, High Court, 26 November

2024), para. 145 per Holland J.) or for not making an exception to a clear policy

for which reasons have been previously articulated, unless there is a significant

change in circumstances or the unusual case of a new point being made of such

significance that it needs to be expressly addressed: AAI Baneshane v. An Coimisiún

Pleanála [2025] IEHC 641 (Unreported, High Court, 21 November 2025). That

principle in turn reflects an even broader principle that a re-iteration of a previous

position or decision is not a new decision for the purposes of judicial review, and

does not for example re-start the clock for challenge: Killegland v. Meath County

Council [2022] IEHC 393 (Unreported, High Court, 1 July 2022). That said, a new

plan is indeed a new decision and can be challenged afresh even if it contains the

proverbial old wine in a new bottle. But an individual decision does not become a

fresh decision merely because the decision-maker is asked to change her mind and

doesn’t.

(ix) There is no obligation to give reasons for not changing the status quo, for example

maintaining a previous plan provision, in respect of which reasons would have been

given at an earlier stage: Jones v. South Dublin County Council [2024] IEHC 301

(Unreported, High Court, 11 July 2024) at §209, Voyage Property v. Limerick City

and County Council [2025] IEHC 696 (Unreported, High Court, Holland J., 16

December 2025) at 106.

(x) There is no obligation to state reasons for what is obvious: Killegland Estates

v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High

Court, 1 July 2022) (from which the Supreme Court dismissed an appeal, [2023]

IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023) (O’Donnell C.J.,

Charleton, O’Malley, Baker, Woulfe and Donnelly JJ. concurring)), para. 83;

Industrial Development Agency v. Information Commissioner [2024] IEHC 649

(Unreported, High Court, Phelan J., 15 November 2024), para. 132.

(xi) There is no obligation to give reasons for rejecting a legally incorrect point:

see Ironborn v. Dun Laoghaire Rathdown County Council [2023] IEHC 477

(Unreported, High Court, Mulcahy J., 31 July 2023). Reasons are tied into the

exercise of evaluation and judgement, so if the latter do not arise then neither does

the former – thus there is no need for reasons if there is in fact no evaluation

by the decision-taker – if the issue is correctly applying a mandatory, non-

discretionary, non-evaluative, legal rule, a valid decision does not become invalid

due to failure to explain the law or indeed to give reasons for the rejection of a

legally incorrect submission.

(xii) A decision should not be quashed for lack of reasons if nobody could be in any

real doubt as to what the reasons were: Killegland Estates v. Meath County Council

[2023] IESC 39, [2023] 12 JIC 2109 (Unreported, Supreme Court, 21 December

2023) per Hogan J. (O’Donnell C.J., Charleton, O’Malley, Baker, Woulfe and Donnelly

JJ. concurring); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High

Court, 26 September 2025) per Farrell J. at 34.

(xiii) If some reasons are good and others are bad, the decision may be severable if the

good reasons are stand-alone (McCarthy Meats v. Minister for Housing, Planning

and Local Government [2020] IEHC 371, [2020] 7 JIC 2707 (Unreported, High Court,

Heslin J., 27 July 2020); Murtagh v. An Bord Pleanála [2023] IEHC 345 (Unreported,

High Court, Owens J., 29 March 2023); Ironborn v. Dun Laoghaire Rathdown County

Council [2023] IEHC 477 (Unreported, High Court, Mulcahy J., 31 July 2023);

Voyage Property v. Limerick City and County Council [2025] IEHC 696 (Unreported,

High Court, Holland J., 16 December 2025)).

(xiv) Reasons are not severable if there is a certain link between the reasons (Element

Power Ireland Ltd v. An Bord Pleanála [2017] IEHC 550 (Unreported, High Court,

Haughton J., 28 September 2017)).

(xv) Reasons should not be created ex post facto: K v. Minister for Justice [2022]

IEHC 582 (Unreported, High Court, Bolger J., 21 October 2022); Ballindooley

Developments Limited v. Minister for Housing Local Government and Heritage & Ors.

[2025] IEHC 109 (Unreported, High Court, Holland J., 20 February 2025), although

reasons that existed at the relevant time can be evidenced after the event if

appropriate: RPS Consulting Engineers Ltd v. Kildare County Council [2016] IEHC

113, [2017] 3 I.R. 61 at para. 109.

Enforcement notices

55. Turning to the specific statutory scheme here, it might be helpful to consider enforcement

notices under a number of headings: (i) the statutory procedure, (ii) the extent of the alleged

requirement for elaborate procedures in the issue of a notice, (iii) the scope of judicial review of

enforcement notices and (iv) the scope to challenge the factual contentions of notices in other

proceedings.

56. Enforcement notices are somewhat sui generis in law, and perhaps for understandable

reasons courts, while generally resistant to judicial reviews of such notices, have been reluctant to

lay down a complete overall theory as to why that should be so. I share that reluctance to a degree,

so some of the following has to be viewed as obiter as I hope will be made clear below.

I – Statutory procedure for enforcement notices

57. Section 151 of the Planning and Development Act 2000 (the 2000 Act) provides:

“Offence.

151.—Any person who has carried out or is carrying out unauthorised development shall be

guilty of an offence.”

58. Section 152 provides:

“Warning letter.

152.—(1) Where—

(a) a representation in writing is made to a planning authority by any person that

unauthorised development may have been, is being or may be carried out, and it appears

to the planning authority that the representation is not vexatious, frivolous or without

substance or foundation, or

(b) it otherwise appears to the authority that unauthorised development may have been, is

being or may be carried out,

the authority shall issue a warning letter to the owner, the occupier or any other person

carrying out the development and may give a copy, at that time or thereafter, to any other

person who in its opinion may be concerned with the matters to which the letter relates.

(2) Notwithstanding subsection (1), where the development in question is of a trivial or

minor nature the planning authority may decide not to issue a warning letter.

(3) A planning authority shall issue the warning letter under subsection (1) as soon as may

be but not later than 6 weeks after receipt of the representation under subsection (1).

(4) A warning letter shall refer to the land concerned and shall—

(a) state that it has come to the attention of the authority that unauthorised development

may have been, is being or may be carried out,

(b) state that any person served with the letter may make submissions or observations in

writing to the planning authority regarding the purported offence not later than four weeks

from the date of the service of the warning letter,

(c) state that when a planning authority considers that unauthorised development has been,

is being or may be carried out, an enforcement notice may be issued,

(d) state that officials of the planning authority may at all reasonable times enter on the

land for the purposes of inspection,

(e) explain the possible penalties involved where there is an offence, and

(f) explain that any costs reasonably incurred by the planning authority in relation to

enforcement proceedings may be recovered from a person on whom an enforcement notice

is served or where court action is taken.”

59. Section 153 provides:

“Decision on enforcement.

153.—(1) As soon as may be after the issue of a warning letter under section 152, the

planning authority shall make such investigation as it considers necessary to enable it to

make a decision on whether to issue an enforcement notice or make an application under

section 160.

(2) (a) It shall be the duty of the planning authority to ensure that decisions on whether to

issue an enforcement notice are taken as expeditiously as possible.

(b) Without prejudice to the generality of paragraph (a), it shall be the objective of the

planning authority to ensure that the decision on whether to issue an enforcement notice

shall be taken within 12 weeks of the issue of a warning letter.

(3) A planning authority, in deciding whether to issue an enforcement notice shall consider

any representations made to it under section 152(1)(a) or submissions or observations made

under section 152(4)(b) and any other material considerations.

(4) The decision made by the planning authority under subsection (1) including the reasons

for it shall be entered by the authority in the register.

(5) Failure to issue a warning letter under section 152 shall not prejudice the issue of an

enforcement notice or any other proceedings that may be initiated by the planning authority.

(7) Where a planning authority establishes, following an investigation under this section that

unauthorised development (other than development that is of a trivial or minor nature) has

been or is being carried out and the person who has carried out or is carrying out the

development has not proceeded to remedy the position, then the authority shall issue an

enforcement notice under section 154 or make an application pursuant to section 160, or

shall both issue such a notice and make such an application, unless there are compelling

reasons for not doing so.

(8) Nothing in this section shall operate to prevent or shall be construed as preventing a

planning authority, in relation to an unauthorised development which has been or is being

carried out, from both issuing an enforcement notice under section 154 and making an

application pursuant to section 160.”

60. Section 154 provides:

“Enforcement notice.

154.—(1) (a) Where a decision to enforce is made under section 153 or where urgent action

is required under section 155, the planning authority shall, as soon as may be, serve an

enforcement notice under this section.

(b) Where an enforcement notice is served under this section, the planning authority shall

notify any person who made representations under section 152(1)(a) and any other person,

who in the opinion of the planning authority may be concerned with the matter to which the

notice concerned relates, not being a person on whom the enforcement notice was served,

of the service of the enforcement notice.

(2) Where the planning authority decides not to issue an enforcement notice, it shall notify

any person to whom the warning letter was copied under section 152 and any other person

who made a representation under that section of the decision in writing within 2 weeks of

the making of that decision.

(3) (a) An enforcement notice under subsection (1) shall be served on the person carrying

out the development and, where the planning authority considers it necessary, the owner or

the occupier of the land or any other person who, in the opinion of the planning authority,

may be concerned with the matters to which the notice relates.

(b) If, subsequent to the service of the enforcement notice, the planning authority becomes

aware that any other person may be carrying out development or is an owner or occupier of

the land or may be affected by the notice, the notice may be served on that person and the

period specified for compliance with the notice shall be extended as necessary to a maximum

of 6 months, and the other person or persons on whom the notice had previously been

served under paragraph (a) shall be informed in writing.

(4) An enforcement notice shall take effect on the date of the service thereof.

(5) An enforcement notice shall refer to the land concerned and shall—

(a) (i) in respect of a development where no permission has been granted, require that

development to cease or not to commence, as appropriate,

(ii) in respect of a development for which permission has been granted under Part

III or section 293, require that the development will proceed in conformity with the

permission, or with any condition to which the permission is subject, or

(iii) in respect of a development in respect of which a certificate has been issued by

the Dublin Docklands Development Authority under section 25(7)(a)(ii) of the Dublin

Docklands Development Authority Act 1997 or by the Custom House Docks

Development Authority under section 12(6)(b) of the Urban Renewal Act 1986,

require that the development will proceed in conformity with the planning scheme

made under those Acts in respect of which the development was certified to be

consistent and any conditions to which the certificate is subject,

(b) require such steps as may be specified in the notice to be taken within a specified period,

including, where appropriate, the removal, demolition or alteration of any structure and the

discontinuance of any use and, in so far as is practicable, the restoration of the land to its

condition prior to the commencement of the development,

(c) warn the person or persons served with the enforcement notice that, if within the period

specified under paragraph (b) or within such extended period (not being more than 6

months) as the planning authority may allow, the steps specified in the notice to be taken

are not taken, the planning authority may enter on the land and take such steps, including

the removal, demolition or alteration of any structure, and may recover any expenses

reasonably incurred by them in that behalf,

(d) require the person or persons served with the notice to refund to the planning authority

the costs and expenses reasonably incurred by the authority in relation to the investigation,

detection and issue of the enforcement notice concerned and any warning letter under

section 152, including costs incurred in respect of the remuneration and other expenses of

employees, consultants and advisers, and the planning authority may recover these costs

and expenses incurred by it in that behalf, and

(e) warn the person or persons served with the enforcement notice that if within the period

specified by the notice or such extended period, not being more than 6 months, as the

planning authority may allow, the steps specified in the notice to be taken are not taken,

the person or persons may be guilty of an offence.

(6) If, within the period specified under subsection (5)(b) or within such extended period,

not being more than 6 months, as the planning authority may allow, the steps specified in

the notice to be taken are not taken, the planning authority may enter on the land and take

such steps, including the demolition of any structure and the restoration of land, and may

recover any expenses reasonably incurred by it in that behalf.

(7) Any expenses reasonably incurred by a planning authority under paragraphs (c) and (d)

of subsection (5) and subsection (6) may be recovered—

(a) as a simple contract debt in any court of competent jurisdiction from the person or

persons on whom the notice was served, or

(b) secured by—

(i) charging the land under the Registration of Title Act, 1964, or

(ii) where the person on whom the enforcement notice was served is the owner of

the land, an instrument vesting the ownership of the land in the authority subject to

a right of redemption by the owner within five years.

(8) Any person on whom an enforcement notice is served under subsection (1) who fails to

comply with the requirements of the notice (other than a notice which has been withdrawn

under subsection (11)(a) or which has ceased to have effect) within the specified period or

within such extended period as the planning authority may allow, not exceeding 6 months,

shall be guilty of an offence.

(9) Any person who knowingly assists or permits the failure by another to comply with an

enforcement notice shall be guilty of an offence.

(10) Particulars of an enforcement notice shall be entered in the register.

(11) (a) A planning authority may for stated reasons by notice in writing to any person

served with the notice, and, where appropriate, any person who made a representation

under section 152(1)(a), withdraw an enforcement notice served under this section.

(b) Where an enforcement notice is withdrawn pursuant to this subsection by a planning

authority or where a planning authority finds that an enforcement notice has been complied

with, the fact that the enforcement notice was withdrawn and the reason for the withdrawal

or that it was complied with, as appropriate, shall be recorded by the authority in the

register.

(12) An enforcement notice shall cease to have effect 10 years from the date of service of

the notice under subsection (1) or, if a notice is served under subsection (3)(b), 10 years

from the date of service of the notice under that subsection.

(13) A person shall not question the validity of an enforcement notice by reason only that

the person or any other person, not being the person on whom the enforcement notice was

served, was not notified of the service of the enforcement notice.

(14) A report of a local authority under section 50 of the Local Government Act, 1991, shall

contain details of the number of enforcement notices issued under this section, warning

notices issued under section 153, prosecutions brought under section 157 and injunctions

sought under section 160 by that authority.”

61. Section 155 provides:

“Issue of enforcement notice in cases of urgency.

155.—(1) Where, in the opinion of the planning authority, due to the nature of an

unauthorised development and to any other material considerations, it is necessary to take

urgent action with regard to the unauthorised development, notwithstanding sections 152

and 153, it may serve an enforcement notice under section 154.

(2) Where an enforcement notice is issued in accordance with subsection (1), any person

who made a representation under section 152(1)(a) shall be notified in writing within two

weeks of the service of the notice.”

62. Section 157 provides (emphasis added):

“Prosecution of offences.

157.—(1) Subject to section 149, summary proceedings for an offence under this Act may

be brought and prosecuted by a planning authority whether or not the offence is committed

in the authority’s functional area.

(1A) Summary proceedings for an offence under this Part may be brought and prosecuted

by the Maritime Area Regulatory Authority whether or not the offence is committed in the

maritime area.

(2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, and subject to

subsection (3) of this section, summary proceedings may be commenced—

(a) at any time within 6 months from the date on which the offence was committed, or

(b) at any time within 6 months from the date on which evidence sufficient, in the opinion

of the person by whom the proceedings are initiated, to justify proceedings comes to that

person’s knowledge,

whichever is the later.

(3) For the purposes of this section, a certificate signed by or on behalf of the person

initiating the proceedings as to the date or dates on which evidence described in subsection

(2)(b) came to his or her knowledge shall be evidence of the date or dates and in any legal

proceedings a document purporting to be a certificate under this section and to be so signed

shall be deemed to be so signed and shall be admitted as evidence without proof of the

signature of the person purporting to sign the certificate, unless the contrary is shown.

(4) (a) No warning letter or enforcement notice shall issue and no proceedings for

an offence under this Part shall commence—

(i) in respect of a development where no permission has been granted, after

seven years from the date of the commencement of the development,

(ii) in respect of a development for which permission has been granted under Part

III or section 293, after seven years beginning on the expiration, as respects the

permission authorising the development, of the appropriate period within the

meaning of section 40 or, as the case may be, of the period as extended under

section 42,

(iii) in respect of a development in respect of which a certificate has been issued by

the Dublin Docklands Development Authority under section 25(7)(a)(ii) of the Dublin

Docklands Development Authority Act 1997 or by the Custom House Docks

Development Authority under section 12(6)(b) of the Urban Renewal Act 1986, after

seven years beginning on the date the certificate ceases to have effect in accordance

with Part 4 of the Dublin Docklands Development Authority (Dissolution) Act 2015.

(aa) Notwithstanding paragraph (a) a warning letter or enforcement notice may issue at any

time or proceedings for an offence under this Part may commence at any time in respect of

unauthorised quarry development or unauthorised peat extraction development in the

following circumstances:

(i) where no permission for the development has been granted under Part III and

the development commenced not more than 7 years prior to the date on which this

paragraph comes into operation;

(ii) where permission for the development has been granted under Part III and, as

respects the permission—

(I) the appropriate period (within the meaning of section 40), or

(II) the appropriate period as extended under section 42 or 42A,

expired not more than 7 years prior to the date on which this paragraph comes into

operation.

(ab) Notwithstanding paragraph (a) or (aa) a warning letter or enforcement notice may issue

at any time to require any unauthorised quarry development or unauthorised peat extraction

development to cease and proceedings for an offence under section 154 may issue at any

time in relation to an enforcement notice so issued.

(b) Notwithstanding paragraph (a), proceedings may be commenced at any time in respect

of any condition concerning the use of land to which the permission is subject.

(c) It shall be presumed until the contrary is proved that proceedings were commenced

within the appropriate period.

(5) Proceedings for other offences under this Act shall not be initiated later than 7 years

from the date on which the offence concerned was alleged to have been committed.”

63. There is nothing incorrect about the law providing that unauthorised development can give

rise to both civil and criminal liability. Many wrongs are in that category. Civil enforcement of

something that is also a crime is not itself punishment – it is providing for the consequences of the

wrong in civil law. That raises no problematic issues of principle. Sometimes there can be a third

strand of administrative/disciplinary consequences as well. That isn’t inherently problematic either.

People who face civil remedies for crimes always complain they are being “punished”, and any order

a court makes is inevitably damned as “punitive” even if it is merely compensatory and rectifying

and even if a fairly extensive order is properly required in order to achieve full compensation and/or

full rectification. A civil judgment for debt isn’t “punitive” merely because the defendant can’t pay

it, or merely because it is large, for example. It is a misconception to suppose that an order

addressing the civil consequences of a wrong is punitive or “disproportionate” (another favourite

term of abuse in this context) merely because, for example, making the polluter pay means making

the polluter pay the full costs of remediation, or because an order addressing the criminal

consequences would be different and perhaps even less swingeing.

II – Whether there is a need for elaborate procedures in the issue of an enforcement

notice

64. One quickly runs into unworkability if the fair procedures processes applicable to a full trial

are imported into litigation strategy or decision-making in terms of issuing notices or commencing

proceedings. There is no requirement that public bodies have to engage in elaborate processes

before they can take measures which can lead in due course to a full hearing before a court in which

any findings can be contested. This is the kind of excessive demand for “an entitlement to elaborate

procedures at every point” referred to by 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; or 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. (Clarke C.J., McKechnie,

MacMenamin and Dunne JJ. concurring) in O'Sullivan v. Sea Fisheries Protection Authority [2017]

IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780). O’Donnell J. (Clarke C.J., McKechnie,

MacMenamin and Dunne JJ. concurring) made the same point in Crayden Fishing Company v. Sea

Fisheries Protection Authority [2017] IESC 74, [2017] 3 I.R. 785, [2018] 1 I.L.R.M. 225:

“31 I do not consider it appropriate, necessary or indeed possible at this stage to offer a

single bright line rule resolving all these issues. That may have to be addressed in

circumstances where the issue arises and where it may be necessary to consider a wider

range of authority than arose in this case. Even then there is no reason to be optimistic that

a single rule may be discerned. I would however hesitate to accept, without careful and

detailed analysis the contention that O’Ceallaigh represents a trend towards greater fair

hearing rights at a preliminary stage, which should in turn be expanded upon. Rather I

would approach the case on the basis that the default position is that a person conducting a

preliminary investigation which itself does not lead directly in law to a binding and adverse

decision, is not normally under an obligation to comply with a requirement of a fair hearing.

On this view O’Ceallaigh is an example of the qualifying observation in the passage from De

Smith that is, that it may have been seen as an integral and necessary part of a process

which could terminate in an action adverse to the interests of the person claiming to be

heard.

32 It is also worth considering why the courts have remained slow to require the full panoply

of a fair hearing at a preliminary stage. First, it might be observed that even if this is so,

any preliminary procedure is not without legal constraint. It must be conducted intra vires,

and if for example conducted with actual bias or the appearance of bias, could be restrained

and/or quashed. It may be that there are other examples of cases where the procedure will

be subject to judicial review. Accordingly the question is really whether fair procedures

require notification and an opportunity for submissions at a preliminary stage, initiating a

procedure which itself is obliged to be conducted in accordance with fair procedures. If

however fair procedures apply without qualification at the preliminary stage, then as the

decision in Re Haughey [1971] IR 217, and its progeny show, it is a very short step to

requiring that process to be conducted by analogy with the demands of fairness observed in

a full criminal trial. If for example there is a right to be consulted, then it may be argued

that there is a right to be provided with the evidence, a further entitlement to demand

disclosure or discovery of additional documentation, and if a factual dispute is asserted, to

confront and cross-examine the accuser. Not only does this create a risk of endlessly self-

replicating procedure, but any uncertainty as to what is required may lead to elaborate,

costly and time consuming procedures being conducted at an early stage in an inquiry. This

may extract a very high price in terms of efficiency, effectiveness and most of all, justice to

all the parties concerned and the public. For this reason and others, it is critical to consider

if the procedure as a whole has been fair to the individual concerned.”

65. The earlier in the process the demand for elaborate procedures, the more unworkable such

a demand is. That demand is particularly problematical in the case of a warning letter, for example,

which merely institutes “such investigation as [the council] considers necessary” (s. 153(1)). It is

definitional that there is going to be a potential for evolution, sometimes substantial evolution, in

the course of the investigation. The idea that if the council sometimes comes up with something

more evolved, they are acting unfairly by not going back to square one, is clearly unworkable. This

is analogous to the familiar misconceived cry of unfairness or lack of consultation if a development

consent granted is different from that applied for, because of submissions or inputs made in the

process. The fact of such evolution does not generally give rise to grounds for judicial review.

66. That does not take from the fact that the enforcement notice has some potential self-

executing effects, although far fewer practical effects than the applicant contends. It is true that a

council can act directly on it, but that does not seem to be widespread in practice except perhaps in

an emergency – it doesn’t happen in this council area I am told. It is also true that, subject to

defences, breach of an enforcement notice is an offence, but that needs to be put in the context that

having engaged in any unauthorised development in the first place, if that be the case, was an

offence to begin with. If (as discussed below) the offence of breaching a notice does not preclude

challenging its factual presuppositions, then a putative criminal defendant is not in reality in a

radically worse position post-notice than she was pre the notice. It is a matter of degree rather than

some kind of extreme criminalisation of otherwise innocent behaviour.

67. The statute provides that councils should allow representations from the respondent prior to

issuing the notice subject to the provisos that (a) this does not apply in cases of urgency (s. 155)

and (b) failure to do so doesn’t provide grounds to challenge the enforcement notice (s. 153(5)).

So even if the applicant had challenged the statutory scheme, which he didn’t, it’s hard to see where

such a challenge is going given that the council didn’t in fact purport to exercise either of the

exceptions here.

III – The scope of judicial review of an enforcement notice

68. The applicant’s argument is effectively premised on the contention that he is entitled to an

“effective remedy” and therefore must be permitted to agitate a wide-ranging set of complaints

about the process by way of judicial review. I will confess that the flaw in this superficially plausible

argument was not totally self-evident to me on first reading. But such a situation perhaps evokes a

general law – if in doubt as to which step in an argument is the erroneous one, a good candidate is

the first step (perhaps a more abstract version of Irvin D. Yalom’s general claim that “a life never

goes wrong because of a false trail; it goes wrong because the main trail is false” (Love’s Executioner

(London, Bloomsbury, 1989) p. 227)).

69. The applicant’s intellectual sleight of hand is to claim, under the guise of the words “effective

remedy”, some form of super-special right to what amounts in effect to a full ex nunc legal and

factual re-examination by the court of a decision, preferably with the onus to defend that decision

being in practical effect on the decision-taker. But the problem is that there is no such right.

70. As Donnelly J. noted in Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported,

Supreme Court, 25 March 2026), at para. 3, “[g]ood administrative practice” allows for an

administrative appeal procedure for decisions. Good practice is not the same as a constitutional

right. There is no right to an administrative appeal of a decision such as an enforcement notice.

That is equivalent to saying that one tier of administrative decision-making is enough.

71. Even assuming (for the time being – see below) in favour of the applicant that European law

is relevant here, judicial review in Ireland satisfies both EU and constitutional requirements for an

effective remedy (see e.g. Efe v. Minister for Justice and Equality [2011] IEHC 214, [2011] 2 I.R.

798 (Hogan J.); judgment of 6 October 2015, East Sussex County Council v Information

Commissioner, C-71/14, EU:C:2015:656; N.M. (D.R.C.) v. Minister for Justice and Equality [2016]

IECA 217, [2018] 2 I.R. 591, [2016] 2 I.L.R.M. 369 per Hogan J. (Peart and Irvine JJ. concurring)

at paras. 53 and 54). The position was summarised by Barniville J. in Cork Harbour Alliance for a

Safe Environment v. An Bord Pleanála [2021] IEHC 203 (Unreported, High Court, 19 March 2021):

“480. While acknowledging the difficulty for the applicant of this ground, the applicant’s

counsel did helpfully draw my attention to the opinion of Advocate General Kokott in Case

C-723/17 Lies Craeynest & ors v. Brussels Hoofdstedelijk Gewest & ors (opinion delivered

on 28th February, 2019) (ECLI:EU:C:2019:168) which contained a discussion of the

standard of judicial review in Member States of administrative decisions implementing

Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe (opinion delivered

on 28th February, 2019). The judgment of the CJEU in the case was subsequently given on

26th June, 2019 (ECLI:EU:C:2019:533). At para. 54 of its judgment, the CJEU confirmed

the position in relation to the standard of review in respect of decisions taken by national

authorities under national legislation implementing EU law which was set out in Case C-

71/14 East Sussex County Council (EU:C:2015:656, para. 52). As was noted during the

course of counsel’s submissions on this issue at the hearing of these proceedings, it is well

established that having regard to the wide scope of judicial review in Ireland in accordance

with the O’Keeffe principles with the added proportionality requirement under Meadows,

judicial review in Ireland satisfies the principles of equivalence and effectiveness referred to

by the CJEU in East Sussex. That that is so is clear from the judgment of Humphreys J. in

Holohan v. An Bord Pleanála [2017] IEHC 268 (paras. 87 to 103). At para. 103, Humphreys

J. observed that ‘the jaws of judicial review have already been opened wide enough’ and

that ‘it is not necessary or appropriate to seek to widen them further, either under the guise

of national or European law’.”

72. Holland J. in Jennings & O’Connor v. An Bord Pleanála & Colbeam [2023] IEHC 14

(Unreported, High Court, 17 February 2023) opined in a similar vein.

73. Applying that here, the applicant’s present judicial review is an effective remedy for the

purposes of all relevant legal, European and constitutional rights enjoyed by him. The fact that it is

not more extensive and does not constitute a full ex nunc re-evaluation of the notice on all

conceivable legal and factual grounds, either generally or a fortiori with the onus being imposed on

the council in that regard, does not render it non-compliant with domestic, EU or constitutional law.

74. The applicant hasn’t challenged the statutory scheme; but even if he had, that would not

have changed matters because there is no EU or constitutional right to more than normal judicial

review by way of remedy.

75. While the emphasis in the caselaw is frequently on alternative remedies, one can

conceptualise the problem more broadly as being simply the lack of a constitutional, EU law or other

right to either a full administrative appeal or to a full reconsideration of the decision under the

heading of judicial review.

76. Viewed in this way, the emphasis on alternative practical procedures is simply a consequence

of the inherent limitations of the judicial review process, which, as Donnelly J. emphasised in Amariei

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

legality rather than merits. We can contextualise the law on enforcement notice challenges as

making complete and coherent sense in that light:

(i) In O’Connor v. Kerry County Council 1988 I.L.R.M. 660, Costello J. said that if the

defence is exempted development, s. 5 is the appropriate remedy. The court should

not be required to determine technical matters of this kind unless the decision was

so unreasonable that relief by way of judicial review should be granted.

(ii) Hedigan J. was of a similar view in Devil’s Glen Equestrian Centre Ltd v. Wicklow

County Council [2010] IEHC 356 (Unreported, High Court, 12 October 2010).

(iii) In Flynn Machine & Crane Hire v. Wicklow County Council [2009] IEHC 285

(Unreported, High Court, 28 May 2009), O’Keeffe J. stated at §§36-37:

“36. Each of the parties has, in considerable detail, set out their version of

the facts, their contentions, their conclusions and their opinions. The Court

has to remind itself that this application is not one whereby this Court is to

decide the issues between both parties as if this Court were an appellate

Court in relation to the matter. The matter has to be considered within the

confines of an application for judicial review.

37. The decisions, the subject matter of this application are in general not

amenable to judicial review unless the person attacking the decisions can

demonstrate a clear departure by the decision maker from his statutory

remit. Furthermore the onus lies on an applicant to establish that the

Council had no relevant material before it to support its decision, and in

default of the applicant so establishing, this court cannot reach a conclusion

that the decision is irrational. See O’Keeffe v. An Bord Pleanála [1993] 1

I.R. 38. I propose to look at the various grounds of challenge.”

(iv) Hogan J. in Wicklow County Council v. Fortune [2012] IEHC 406 (Unreported, High

Court, 4 October 2012) said that the date of the commencement of development is

“a matter which of necessity is peculiarly within [the respondent’s] knowledge” (§19)

and that “it would be unreal and unduly burdensome on an applicant for relief under

s. 160 if he or she were to be expected to carry this burden” – this logic applies

equally to a time defence to an enforcement notice.

(v) In O’Neill v. Kerry County Council [2015] IEHC 827 (Unreported, High Court, 21

December 2015), I said at §4 that the merits of the notice as to the seven-year rule

or any other factual determination that is a condition precedent can be revisited in

any criminal proceedings for non-compliance but are not within the ambit of judicial

review.

(vi) Based on the authorities, Browne in Simons on Planning Law at p. 701 says “the

grounds on which judicial review is available are severely limited”. I emphasise

however that that is not because of some super-special harsh rule for enforcement

notice judicial review or some apocryphal bright-line rule about what can and cannot

be challenged, but rather because the normal judicial review rules of engagement

apply here as they do elsewhere. Those normal judicial review rules mean that an

applicant does not have a right to a complete ex nunc rehearing.

77. The clear and consistent emphasis on alternative remedies in the caselaw is logical because

there will almost always be a more effective remedy actually available to a respondent in practice –

albeit perhaps not in theory because a council could hypothetically take direct action by entering on

the land without the benefit of a court order. I am told that this council never in fact does that –

prudently, they like the comfort of a court order. The ultimate reason why the theoretical existence

of such an option to proceed without affording the applicant a further procedure doesn’t in fact

matter is that the applicant doesn’t have a right to such a further procedure. But as a matter of

practicality, the normal existence of alternative remedies cannot be dismissed as irrelevant to how

any given applicant’s actual grievances can be considered.

78. The main procedural options in which a recipient of an enforcement notice can raise her

issues are:

(i) judicial review;

(ii) a s. 5 application (which does have the option of administrative appeal) insofar as

the defence is exempted development;

(iii) defence of any hypothetical criminal proceedings; and

(iv) defence of any hypothetical s. 160 injunction.

79. Of those four options, three of them provide process participants with a reasonably good

opportunity to ventilate and debate the facts of the matter. The odd man out is judicial review,

which is generally concerned with the decision-making process and not de novo findings of fact by

the court and which is therefore generally the least appropriate mechanism for a full factual contest.

A criminal defence is perhaps the second least appropriate mechanism because succeeding there

does not automatically displace an enforcement notice.

80. Nonetheless, the logic of that situation is that judicial review is the appropriate legal

mechanism only for limited types of complaint that do not depend on major factual dispute. I

appreciate the point that the applicant is on a certain level of risk if matters are left to a criminal

trial, but in principle that could apply to many situations. A criminal defendant is not entitled to a

pre-emptive ruling of the High Court as to the extent of any potential liability or the availability of

any potential defences.

81. I also appreciate the point that defence of proceedings or success in a s. 5 application does

not expressly have the automatic procedural consequence that a given council would immediately

withdraw or review a notice, but that said a council must act reasonably and lawfully and the court

would have to be available to enforce that if it doesn’t happen (this point was anticipated in Devil’s

Glen Equestrian Centre Ltd v. Wicklow County Council [2010] IEHC 356 (Unreported, High Court,

Hedigan J., 12 October 2010)). To put it more bluntly, if a council or the commission decided that

given development was exempted, or a court upheld a relevant defence in a s. 160 context, an

enforcement notice premised on it not being exempted or on the defence not being available would

need to give way having regard to principles of good public administration. I can add that the reason

that the factual premise of the notice doesn’t become unchallengeable unless a judicial review is

launched within eight weeks is that the notice is not the type of discrete step in a statutory system

which, if unchallenged, requires matters to move on to a further step. An unchallenged planning

permission allows the project to be built. An unchallenged refusal of international protection allows

the process to move on to deportation. But an unchallenged enforcement notice, in a context where

there are more appropriate remedies to determine the underlying facts, does not have the legal

consequence of precluding the invocation of such remedies. It is just not that sort of decision. To

claim that it is would nullify the extensive law on alternative remedies in this context.

82. Defence of a criminal matter is different in the sense that creating reasonable doubt about

something does not equate to disproving that something on the balance of probabilities – as O.J.

Simpson and many others have found out.

83. This also highlights a further general point – the enthusiasm for some applicants about

judicially reviewing enforcement notices is misplaced because in general, hypothetically quashing an

enforcement notice on some legal ground or other does not render unauthorised development

authorised, and nor does such an outcome inhibit a council from bringing s. 160 proceedings. A

more practical approach to receipt of an enforcement notice is normally engagement with the

council, with a view to eking out agreement or at least to identifying a structured procedure within

which disagreement can be resolved. (More on that later.)

84. The punchline under this heading is that normal judicial review is an effective remedy for all

relevant purposes. The invocation of the notion of an “effective remedy” does not expand the

jurisdiction of the court in judicial review proceedings or the scope of an applicant’s entitlements in

that regard.

IV – The scope of other procedures following an enforcement notice

85. The adequacy of judicial review as a remedy for any decision including an enforcement notice

does not in itself determine whether the factual contentions in an enforcement notice can be revisited

in other procedures – specifically criminal prosecution or a s. 160 application.

86. This is a type of coin-toss question – is a defendant precluded from revisiting the factual

basis for an enforcement notice because that is not provided for, or is she permitted to revisit such

facts because that is not prohibited? Maybe that could be viewed as the sort of pop psychology test

that divides people into two personality groups, and it seems to be a thus-far open question (Murphy

v. Roscommon County Council [2025] IEHC 447 (Unreported, High Court, Simons J., 31 July 2025)).

But in any event my proposed answer on that would be that in the absence of prohibition and in the

absence of any statement that non-compliance is a strict liability offence, a defendant (or respondent

in s. 160 proceedings) can indeed revisit the merits of the notice in such proceedings – the onus

being generally on them to displace its factual contentions however (on that topic see Doorly v.

Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022), which was a private s. 160

action, not a case where there was an enforcement notice).

87. The lack of prohibition of defences is relevant. Insofar as the applicant conveniently submits

that the offence of non-compliance with an enforcement notice is a “strict liability” offence

(convenient because the more ineffective he can represent the alternatives as being, the more

expansive he can make the judicial review), the statute does not say that (and where that is

intended it is stated expressly e.g. S.I. No. 62 of 2008 - European Communities (Road Transport)

(Working Conditions and Road Safety) Regulations 2008 reg. 42(4)). Here the enactment is merely

silent on defences.

88. It follows from the foregoing that in a criminal prosecution or indeed s. 160 action, the court

can indeed look behind an enforcement notice to deal with factual questions as to whether there

was development as alleged, whether it was exempted, whether it was pre-1964, whether it is

covered by a permission, or whether the matter is barred by time.

89. It is a corollary of that that an applicant is not to be held to be disadvantaged for not judicially

reviewing a warning letter (an inappropriate exercise anyway as it is a mere preliminary step), a

chief executive’s decision to issue an enforcement notice (also inappropriate as the decision merges

in the notice) or the notice itself. Whatever rules are imposed on applicants they can’t amount to a

Catch-22, contrary to a persistent opposing fallacy that is hard to completely eradicate. But

hopefully this attempt to repeat that point will assist in some way. And in fairness to the council

here, they were to the fore in repudiating that fallacy.

90. We can now turn to the specific pleaded grounds.

Core ground 1 – alleged non-compliance with time-limit

91. Core ground 1 is:

“The Respondent erred in law and acted ultra vires in failing to have regard to, and comply

with, s.157(4)(a) of the Planning and Development Act 2000 (as amended) in failing to have

regard to the fact that the Respondent has been operating a carpark at the Lands for a

period in excess of 30 years. The development impugned in the Enforcement Notice had

been commenced more than 7 years prior to the date of issue of the Enforcement Notice.

Further particulars are set out in Part 2 below.”

92. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicants’ Position

1. The Respondent failed to have regard to, and comply with, s.157(4)(a) in failing to

have regard to the fact that the Respondent has been operating a carpark at the lands for a

period upwards of 7 years. The development impugned in the Enforcement Notice had been

commenced more than 7 years prior to the date of issue of the Enforcement Notice.

2. The Respondent was not entitled to issue an Enforcement Notice as the relevant

development had been commenced on or before 26th March 2018, or 7 years and 119 days

before the issuing of the Enforcement Notice on 23rd July 2025. The evidence before the

Respondent before issuing the Enforcement Notice clearly indicated that the relevant

development was commenced before 26th March 2018.

Respondent’s Position

1. The period of time prescribed by section 157(4)(a)(i) of 2000 Act is a matter that

can be raised by way of defence and is not a matter that goes to the jurisdiction of a planning

authority to issue an enforcement notice, and nor does it prohibit a planning authority issuing

the enforcement notice seven years and 119 days after a development (without planning

permission) commenced.

2. Further and without prejudice, the evidence supported the conclusion that

development had commenced within the seven years and 119 days of the Enforcement

Notice. Both the act of ‘resumption’ of development and intensification amounted to

development within the seven years and 119 days of the Enforcement Notice. The onus is

on the Applicant to demonstrate that this was irrational, and the Applicant has not discharged

the onus of proof.”

93. The basic reason why this point fails is that time-limits are a defence, not a jurisdictional

prerequisite for the enforcement notice, as held by Hogan J. in Wicklow County Council v. Fortune

[2012] IEHC 406 (Unreported, High Court, 4 October 2012).

94. Insofar as the claim is that the council failed to have regard to the time-limit, that is

manifestly unsustainable because the council did refer to the time period. The fact that the issue is

presented as a have-regard-to problem illustrates to an extent that the case comes down to a merits

disagreement dressed up as a legal complaint.

95. Insofar as the case is that the council’s view of the time-limit was unreasonable, the onus

of proof to show that lies on the applicant: Amariei v. Chief Appeals Officer [2026] IESC 22

(Unreported, Supreme Court, Donnelly J., 25 March 2026). He has not overcome this onus here.

The council are correct to rely on the extensive caselaw in that regard, for example Ó Murthuile v.

An Bord Pleanála & Anor [2025] IEHC 498 (Unreported, High Court, 19 September 2025) per Farrell

J., at §28: the decision-taker “had before it evidence to support the conclusion” and so its approach

“has not been shown to be unreasonable or unlawful” and, in particular, where it “has a variety of

positions represented to it, it has an evaluative judgement to find the facts within the bounds of

reasonableness and legality”.

96. This conclusion is reinforced by s. 157(4)(c) of the 2000 Act which states that it shall be

presumed until the contrary is proved that proceedings were commenced within the appropriate

period.

97. A number of established principles are relevant to the council’s determination here:

(i) abandonment and resumption can defeat any seven year defence: see e.g. South

Dublin County Council v. Balfe (Unreported, High Court, Costello P., 3 November

1995); Kildare County Council v. Goode & Ors. (Unreported, High Court, Morris J.,

13 June 1997); Sligo County Council v. Martin [2007] IEHC 178 (Unreported, High

Court, O’Neill J., 24 May 2007); Pierson v. Keegan Quarries Ltd [2010] IEHC 404

(Unreported, High Court, Irvine J., 7 October 2010); Wicklow County Council v. Lee

[2019] IEHC 19 (Unreported, High Court, Noonan J., 15 January 2019);

(ii) permission for an inconsistent use can be evidence of abandonment thus

necessitating permission for a resumption of the previous use: Clonres v. An Bord

Pleanála [2021] IEHC 303 (Unreported, High Court, 7 May 2021), §37; Leitrim

County Council v. Dromaprop Ltd [2024] IEHC 233 (Unreported, High Court, 29 April

2024), §33-35; Murphy v. An Bord Pleanála [2024] IEHC 186 (Unreported, High

Court, Farrell J., 30 August 2024), §42; Ó Murthuile v. An Bord Pleanála [2026] IEHC

36 (Unreported, High Court, Farrell J., 3 February 2026) at §32; and

(iii) intensification can require permission and thus defeat any seven year defence:

Patterson v. Murphy [1978] I.L.R.M. 85 (Costello J.); Butler v. Dublin Corporation

[1999] IESC 19, [1999] 1 I.R. 565, [1999] 1 I.L.R.M. 481; Kildare County Council

v. Goode [1999] IESC 43, [1999] 2 I.R. 495, [2000] 1 I.L.R.M. 346; In Lanigan and

Benghazi Ltd t/a Tullamaine Castle Stud v. Barry and Motor Speedway Ltd t/a

Tipperary Raceway [2008] IEHC 29 (Unreported, High Court, Charleton J., 15

February 2008); Cork County Council & Ors v. Slattery Pre Cast Concrete Ltd & Ors

[2008] IEHC 291 (Unreported, High Court, Clarke J., 19 September 2008); Lanigan

v. Barry [2016] IESC 46, [2016] 1 I.R. 656 (at §5.5 per Clarke J.; Denham C.J. and

Dunne J. concurring).

98. It was a matter for the decision-taker to find the facts and apply these principles to the facts

as so found and thus come to a conclusion on the necessity for an enforcement notice. The applicant

bears the onus to show that such a conclusion was unreasonable based on what was before the

council, and that certainly hasn’t been done. No other legal error has been demonstrated.

99. Standing back, there is a fairly significant factual difference between car parking of pub

customers during pub hours and the use of car parking for air passengers which means leaving cars

in situ day and night for lengthy periods. Moving from the former to the latter is starting a new type

of development, not continuing an existing development. Not all car parking is equivalent, and nor

is a council obliged to consider that parking of one type is equivalent to parking of any type.

100. The overall problem with the applicant’s case is well summarised by the council:

“4. The first [complaint] is that the development which is the subject of the Enforcement

Notice, namely the operation of a car park, has been occurring for more than 30 years and,

therefore, is statute-barred. As pleaded in Core Ground 1, the complaint is that the Council

failed to have to regard to, and comply with, s.157(4)(a) of the Planning and Development

Act 2000 (the ‘2000 Act’) but in fact the issue here is whether the Council was entitled to

conclude, as it did, that the unauthorised use resumed and intensified in late 2023 and was,

therefore, within the seven year period for enforcement, as is evident from the Council’s

Planner’s Report. Therefore, it is not the case that the Council did not have regard to the

enforcement period (or indeed the Applicant’s submission of 1 September 2024) but rather

the Council concluded that the development was not statute-barred. The Council’s position

is that it was entitled to conclude as it did, having regard to the evidence on file, and its

decision can only be challenged on rationality grounds.”

Core ground 2 – alleged lack of fair procedures

101. Core ground 2 is:

“The Respondent erred in law and acted ultra vires and in breach of fair procedures in failing

to have regard to, and comply with s.152 of the Planning and Development Act 2000 (as

amended) in failing to issue a warning letter to the Applicant, in respect of the development

which is impugned in the Enforcement Notice issued on 23 July 2025. The Respondent failed

to comply with s.152(4)(b) of the Planning and Development Act 2000 in failing to provide

the Applicant with an opportunity to make submissions or observations in writing in respect

of the purported offence before issuing the Enforcement Notice. Further and or in the

alternative, the Respondent failed to identify the development which was being impugned in

the Warning Letter of 20 August 2024 and failed to engage with the Applicant’s submissions

by letter dated 01 September 2024 or to seek further information from the Applicant in

respect of the matters addressed therein. Further particulars are set out in Part 2 below.”

102. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant Position

1. The Respondent erred in law and acted ultra vires and in breach of fair procedures

in failing to have regard to, and comply with s.152 of the Planning and Development Act

2000 (as amended) in failing to issue a warning letter to the Applicant, in respect of the

development which is impugned in the Enforcement Notice issued on 23 July 2025.

2. The Respondent failed to comply with s.152(4)(b) of the Planning and Development

Act 2000 in failing to provide the Applicant with an opportunity to make submissions or

observations in writing in respect of the purported offence before issuing the Enforcement

Notice. Further and or in the alternative, the Respondent failed to identify the development

which was being impugned in the Warning Letter of 20th August 2024 and failed to engage

with the Applicant’s submissions by letter dated 1 September 2024 or to seek further

information from the Applicant in respect of the matters addressed therein.

3. The Respondent issued a letter dated 20th August 2024, entitled ‘warning letter’ to

the Applicant. This letter referred to an alleged unauthorised development which consisted

of:-

‘The development of an area to the rear of the … White House Public House as a carpark

without the benefit of Planning Permission.’

4. The said letter of 20th August 2024 invited submissions or observations in writing

to the Respondent.

5. The Applicant wrote to the Respondent by letter dated 1st September 2024 in

response to letter dated 20th August 2024. In the said letter the Applicant outlined that he

was operating on the basis that the Respondent was referring in its letter of 20th August

2024 to parking at a ‘pitch and put’ course which had recently taken place because of an

unusually busy period in the carpark then operated at the Lands. In the letter of 1st

September 2024, the Applicant outlines that the use of the pitch and putt course was a

temporary measure which would not be repeated. The Applicant made open reference in

letter of 1st September 2024 to the ongoing operation of a carpark at the rear of the White

House pub including at the trotting track. No response to the Applicant’s letter of 1st

September 2024 was received from the Respondent. The Respondent did not correct the

Applicant’s presumption that the letter of 20th August 2024 was in reference to parking at

the ‘pitch and putt’ or seek further submissions from the Applicant. The Respondent issued

an Enforcement Notice dated 23rd July 2025 which identified an entirely different

development.

Respondent’s Position

1. The Applicant accepts the Council did issue a warning letter which alleged an

unauthorised development consisting of ‘The development of an area to the rear of the White

House Public House as a carpark without the benefit of Planning Permission’ and that he

responded to that Warning Letter. The Applicant’s response to the Warning Letter dated 1

September 2024 states ‘I assume your office is referring to the folio on the Northern Side of

The White House’. The folio on the Northern Side of The White House is Folio DN49, and it

includes the carpark to the rear of the White House and the trotting ring. The Applicant’s

response also refers to the ‘complaint that we have been developing an area to the rear of

The White House Hotel without the benefit of planning permission’. While the Applicant’s

response focuses on the ‘pitch and putt area to the North’, it addresses the entire folio and

makes submissions on the ‘the old trotting track’ which is describes as ‘attached’ to ‘the car

parking area to the rear of the Whitehouse Hotel’ – in particular, that car parking ‘has been

in operation for decades’. The Applicant was aware of the development of concern and had

the opportunity and did make submissions relating to the matter he says he wanted to make

a submission on, namely, that car parking had been in existence for many years/decades.

2. The Council’s Decision (CE Order Reference PEN/0165/2025) dated 18 July 2025 to

issue the Enforcement Notice records that it considered the Applicant’s submissions dated 1

September 2024 under section 154(4)(b) and that the decision to issue the Enforcement

Notice was made ‘[h]aving considered … any representations or observations made under

section 152(4)(b)…’ - in accordance with section 153(3) of the 2000 Act.

3. The development identified in the Enforcement Notice is plainly the same

development identified in the Warning Letter, namely, the lands ‘to the rear of the White

House Public House’ being used ‘as a carpark’. The Enforcement Notice gives further

particulars of the lands as ‘including the trotting track’ but it does not identify different lands.

Section 152(4) of the 2000 Act requires that a warning letter refer to the land concerned,

not the particulars of the alleged unauthorised development; nevertheless, the Warning

Letter does identify that the development concern the lands being used ‘as a carpark’ and

the Enforcement Notice gives further particulars of that development as including certain

‘structures’ and the laying of a ‘hardcore surface’ on ‘the trotting ring’.

4. In any event, [section] 153(5) of the 2000 Act provides that the ‘[f]ailure to issue a

warning letter under section 152 shall not prejudice the issue of an enforcement notice’.”

103. Insofar as the pleaded complaint is a failure to “have regard” to s. 152 that is manifestly

unsustainable. The council not only had regard to the section but acted under it.

104. The applicant then complains about the lack of detail in the warning letter. Complaints about

lack of detail in warning letters generally put us on the track of seeking elaborate procedures in the

pre-decision making process. This is the path to unworkability, particularly so when we are merely

talking about the initial letter that started the investigation. Here, no excessive vagueness giving

rise to any breach of rights has been proved.

105. The first fatal problem for the applicant is that the warning letter did not confine itself to the

pitch and putt site. It refers to “The development of an area to the rear of the White House Public

House as a carpark without the benefit of Planning Permission”.

106. Furthermore the pleaded complaint mischaracterises the nature of the applicant’s response.

That response stated “I assume your office is referring to the folio on the Northern Side of The

White House” (emphasis added).

107. The “folio to the Northern Side of The White House” is not merely the pitch and putt course.

That is Folio DN49 which includes the car park to the rear of The White House and the trotting ring.

108. In addition the response makes a more general comment about the wider area including

referring to the “complaint that we have been developing an area to the rear of The White House

Hotel without the benefit of planning permission”, referring to the “the old trotting track” “attached”

to “the car parking area to the rear of the Whitehouse Hotel” and asserting that car parking “has

been in operation for decades”.

109. A note of a call between the council’s planning inspector and Nicola Rutledge on 17 November

2024 records that she said the operation of the car park was a joint operation between herself and

Dublin Valet Parking Limited in which she provides the staff on the ground attending the car park

and the company was responsible for the bus transfers to the airport. That is indicative of an

awareness that the council’s concerns were not limited to the pitch and putt course.

110. The applicant’s attempt to introduce new evidence in a judicial review, not put to the

decision-taker, is procedurally misconceived and inappropriate. The complaint that the warning

letter was “hopelessly vague” is, I’m afraid, as the council correctly submits, mere “overblown

rhetoric”. If the applicant assumed that the complaint was limited in a particular way not stated in

the warning letter that isn’t the responsibility of the council.

111. Finally, the complaint is going nowhere anyway because there is not a legal obligation for a

back-and-forth dialogue with a council (any such obligation could not be confined to enforcement

notices and would have dramatic effects on administrative decision-making generally). There is no

obligation to enter into correspondence with an applicant: per Keane C.J. (Denham, Murphy, Murray

and McGuinness JJ. concurring) in Baby O. v. Minister for Justice, Equality and Law Reform [2002]

IESC 44, [2002] 2 I.R. 169, [2003] 1 I.L.R.M. 241 at 183.

112. Not only that, but we can note in passing that a warning letter is not an absolute legal

prerequisite to the issue of an enforcement notice as noted above: see s. 153(5) which is general

and goes beyond s. 155.

113. Ultimately, the problem for the applicant is accurately identified by the council (emphasis

added):

“5. The second complaint is that there was a breach of fair procedures because the

development described in the Enforcement Notice of 23 July 2025 was not the same as the

development outlined in the Warning Letter that previously issued on 20 August 2024. This

is not correct when one considers the description of the development in the Warning Letter

(which referred to the development of the area to the rear of the White House Public House

as a carpark) and the terms of the Enforcement Notice (which also referred to the lands to

the rear of the White House Public House, including the trotting track). The Applicant

interpreted this to mean parking at a ‘pitch and putt’ course in the submission of 1

September 2024 but that was based on the Applicant’s own interpretation and not

the Warning Letter itself. The pleaded complaint that the Council failed to comply with

s.152(4)(b) of the 2000 Act or failed to provide the Applicant with an opportunity to make

submissions or observations is simply incorrect.”

Core ground 3 – alleged failure to consider submissions

114. Core ground 3 is:

“The Respondent erred in law and acted ultra vires and in breach of fair procedures in failing

to have regard to, and comply with, s.153(3) of the Planning and Development Act 2000 (as

amended) in failing to consider any submissions or observations made to it under Section

152(4)(b). The Respondent issued a warning letter in respect of the Lands on 20 August

2024. This letter did not outline the development impugned in the Enforcement Notice. The

Applicant responded to the Warning Letter of 20 August 2024 with letter dated 01 September

2024 setting out submissions and observations in respect of the matters identified in the

Warning Letter. Given that the development impugned in the Enforcement Notice was not

that which was identified in the Warning Letter, the Applicant was deprived of an opportunity

to provide submissions or observations on to the Respondent in advance of the Enforcement

Notice being issued. Further, and without prejudice to the foregoing, the Respondent failed

to have regard to the submissions made by the Applicant by letter dated 01 September

2024. The Applicant is entitled not to be vexed by enforcement proceedings without having

an opportunity to address any alleged unlawful development in advance. Further particulars

are set out in Part 2 below.”

115. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 3 & 4- Compliance with Section 153 of the 2000 Act and Reasons

Applicant Position

1. The Respondent erred in law and acted ultra vires and in breach of fair procedures

in failing to have regard to, and comply with, s.153 of the Planning and Development Act

2000 (as amended) in failing to provide any adequate reasons for the decision to issue the

Enforcement Notice and failing to enter the said decision with reasons in the register.

2. The Respondent issued a warning letter to the Applicant on 20th August 2024 in

respect of alleged unauthorised development at the White House Public House.

Notwithstanding the Applicant’s position that this warning letter identified a different

development to that set out in the Enforcement Notice of 23rd July 2025, the Respondent

failed to comply with the provisions of ss.153(1) and 153(2) of the 2000 before issuing

Enforcement Notice dated 23rd July 2025.

Respondent’s Position

1. The Council’s reasons for issuing and serving the Enforcement Notice can be found

in the Enforcement Notice itself and the Council’s Decision (CE Order Reference

PEN/0165/2025) dated 18 July 2025 to issue the Enforcement Notice, the Council’s Decision

(CE Order Reference PEN/0166/2025) dated 18 July 2025 to prepare and serve the

Enforcement Notice and the Inspector’s Report.

2. In this case a thorough investigation under section 153 was carried out and enquiries

made, that is clear from inter alia the Inspector’s Report. In O’Neill v Kerry County Council

[2015] IEHC 827 Humphreys J held, at §19, ‘the investigation envisaged by s. 153 may be

an extremely informal investigation and would normally be satisfied simply by visiting the

site and examining its planning history against the facts on the ground” and the

“investigation can be very summary’.

3. In respect of the timeliness of the Council’s decision on enforcement under section

153, there was no breach of the requirement under section 153 of the 2000 Act to act

expeditiously or the objective to ensure a decision within 12 weeks of issuing a warning.

The time taken by the Council to make its decision under cannot be said to have been

unreasonable and any period of time between events are not so unreasonable as to be

culpable to the point of warranting Court intervention, especially when the Applicant did not

see fit to raise any issue of delay with the Council in the first instance. The 12-week objective

to ensure a [decision] on enforcement is taken is just that, an ‘objective’: it is not mandatory,

it is directory. The Applicant has not identified any prejudice to him as a result of the time

it took for the Council to make its [decision] on enforcement. Any alleged failure to act

expeditiously or satisfy the objective of ensuring a decision within 12 weeks in this case is

not a ‘compelling reason’ as required by section 153(7) for not issuing the Enforcement

Notice in this case.”

116. The complaint of failing to have regard to s. 153(3) or to submissions is totally unsustainable.

No lack of regard has been demonstrated.

117. The alleged yawning gulf between the warning letter and the notice is exaggerated and the

rhetoric of being “vexed” by a notice without fair procedures is overblown. This sort of victim

language is not particularly illuminating or appropriate. The applicant was not deprived of the

opportunity to make a submission. His own apprehension about the import of the letter “does not

translate into the decision being unlawful”, as the council puts it in oral submissions.

118. As far as reasons are concerned, the council gave adequate reasons especially given the

nature of the process. This is particularly so when we look at the decision-taking process overall in

which the reasons were developed. As stated in Connelly v. An Bord Pleanála [2018] IESC 31,

[2021] 2 I.R. 752 per Clarke CJ. (O'Donnell, Dunne, O'Malley and Finlay Geoghegan JJ. concurring)

at p. 778, “[t]he reasons may be found anywhere, provided that it is sufficiently clear to a reasonable

observer carrying out a reasonable enquiry that the matters contended actually formed part of the

reasoning”.

119. There is no basis for a demand for a highly elaborate investigation with a full panoply of

elaborate procedures, consistently with O’Neill and other caselaw referred to earlier. As discussed

above in any event, the lack of a more elaborate procedure doesn’t prevent the applicant from

putting the issues to the test in any hypothetical future s. 160 or criminal proceedings.

120. As regards the alleged breach of s. 153(2), the applicant has not overcome the onus of proof

to show that there was any undue delay by the council.

121. In any event the requirement of acting as expeditiously as possible (or within 12 weeks)

following a warning letter is not phrased as jurisdictional to the enforcement notice, and indeed the

language contradicts that – to speak of “the objective of the planning authority” is not the language

of something that renders everything thereafter a total nullity if it isn’t complied with. Furthermore,

a “jurisdictional” type requirement which rendered the notice invalid would create even more delay

by insisting that the council go back to square one to issue a new warning letter and restart the

process. That makes little sense. The remedy for delay is not more delay.

Core ground 4 – alleged lack of reasons

122. Core ground 4 is:

“The Respondent erred in law and acted ultra vires and in breach of fair procedures in failing

to have regard to, and comply with, s.153 of the Planning and Development Act 2000 (as

amended) in failing to provide any adequate reasons for the decision to issue the

Enforcement Notice. Further, the Respondent erred and acted ultra vires in failing to comply

with the provisions of s.153(1) and s.153(2) of the Planning and Development Act 2000 in

failing to carry out any adequate and timely investigation and failing to take a decision in

respect of enforcement in an expeditious manner. Further particulars are set out in Part 2

below.”

123. The parties’ positions as recorded in the statement of case are summarised at core ground

3 above.

124. The basic reason why this point fails is that the reasons are adequate having regard to the

law on reasons as summarised above, and it is not up to an applicant to dictate the extent of the

investigation. An investigation is not invalid merely because it is summary: O’Neill. This is the

already referred-to fallacy of “elaborate procedures at every point”.

Core ground 5 – alleged exempted development

125. Core ground 5 is:

“The Respondent erred in law and acted ultra vires in finding/deciding that the development

impugned in the Enforcement Notice is not exempt development within the meaning of

Section 4 of the Planning and Development Act 2000 (as amended). Further particulars are

set out in Part 2 below.”

126. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant’s Position

1. The Respondent erred in law and acted ultra vires in finding/deciding that the

development impugned in the Enforcement Notice is not exempt development within the

meaning of s.4 of the Planning and Development Act 2000.

2. The Enforcement Notice of 23rd July 2025 is directed towards, inter alia: ‘A hardcore

surface has been laid on the trotting ring to the rear of the White House Public House.’ The

trotting ring has been in use as a carpark since the 1990s. The surface of the trotting ring

was originally lime dust. Aggregate sand (804 crushed stone) was added in 2023. This is a

minor addition which is clearly directed towards the maintenance and /or improvement of

the existing structure. Further, the addition of the aggregate sand does not ‘materially affect

the external appearance of the structure’, within the meaning of Section 4(1)(h) of the 2000

Act.

Respondent’s Position

1. The Applicant did not submit this was exempt development in his submission dated

1 September 20204 [sic], even though it addressed ‘the old trotting track’ and the onus was

on the Applicant in this regard. As there was no evidence or submission before the Council

that this work was exempt development, under section 4(1)(h), its decision to issue the

Enforcement Notice cannot be challenged on that basis.

2. In any event, it was not for ‘the maintenance and/or improvement of the existing

structure’ and, therefore, was not exempt development by virtue of s.4(1)(h) of the 2000

Act as alleged. The existing structure was a trotting ring and the addition of the hardcore

surface or ‘[a]ggregate sand (804 crushed stone)’ was not for the maintenance or

improvement of that structure but developing it for another purpose being the unauthorised

change of use as a carpark/‘Park&Ride’. The CE expressly records that the hardcore surface

was not ‘within the limitations of exempted development’, which was clearly a conclusion

that the Council was entitled to reach.

3. Even if the surfacing of the trotting ring through the addition of aggregate sand in

2023 was itself exempted development (which is not accepted), this does not mean that the

use of the facility is exempted development and the Council’s Inspector concluded that the

laying of hardcore was associated with the unauthorised use which had resumed and

intensified in late 2023.”

127. The applicant did not make this point in the process. Therefore the council can’t be criticised

for not dealing with it. If I am wrong about that, not regarding it on the council’s own motion as

exempted has to be shown to be something irrational, based on the material before the decision-

taker at the time as opposed to the further material on the basis of which it is attempted to have

the court make the decision. The applicant hasn’t achieved such a showing.

128. A valid decision does not become invalid merely because an applicant puts forward contrary

material that could have been put forward at an earlier stage.

129. In any event the determination of whether there was exempted development or not is

singularly inappropriate for judicial review of this type given that it can be raised much more

satisfactorily in a s. 5 application or by way of defence in any proceedings brought on foot of non-

compliance with the enforcement notice or s. 160 proceedings.

Costs

130. Costs were touched on by way of the parties’ positions on preliminary issues as recorded in

the statement of case and summarised as follows:

“Applicants’ Position

1. There are no preliminary issues raised.

Respondent’s Position

2. Costs Protection

By letter dated 8 October 2025 the Respondent confirmed that it ‘does not accept that the

present proceedings are covered by the costs protection provisions of section 50B of the

Planning and Development Act 2000 as amended and/or otherwise.’

By email sent on 17 November 2025 the Applicant’s [Solicitor] confirmed ‘that it is not the

applicant’s intention at this stage to apply for a costs protection order in the proceedings’.

Since then the Applicant has not indicated any intention to the Respondent to apply for costs

protection and the Council’s position remains that these proceedings are not covered by

s.50B of the Planning and Development Act 2000.”

131. Section 50(2) of the 2000 Act states (emphasis added):

(2) A person shall not question the validity of any decision made or other act done by—

(a) a planning authority, a local authority or the Board in the performance or

purported performance of a function under this Act,

(b) the Board in the performance or purported performance of a function transferred under

Part XIV,

(c) a local authority in the performance or purported performance of a function conferred by

an enactment specified in section 214 relating to the compulsory acquisition of land, or

(d) the competent authority (within the meaning of the Aircraft Noise (Dublin Airport)

Regulation Act 2019) in the performance or purported performance of any of its functions or

the Commission in the performance or purported performance of its functions as the body

to which an appeal from a decision of the said competent authority may be brought,

otherwise than by way of an application for judicial review under Order 84 of the Rules of

the Superior Courts (S.I. No. 15 of 1986) (the ‘Order’).”

132. Section 50A(1) provides (emphasis added):

“50A.—(1) In this section—

‘Court’, where used without qualification, means the High Court (but this definition shall not

be construed as meaning that subsections (2) to (6) and (9) do not extend to and govern

the exercise by the Supreme Court of jurisdiction on any appeal that may be made);

‘Order’ shall be construed in accordance with section 50;

‘section 50 leave’ means leave to apply for judicial review under the Order in

respect of a decision or other act to which section 50(2) applies.”

133. Section 50A(7) provides:

“(7) The determination of the Court of an application for section 50 leave or of an application

for judicial review on foot of such leave shall be final and no appeal shall lie from the decision

of the Court to the Supreme Court in either case save with leave of the Court which leave

shall only be granted where the Court certifies that its decision involves a point of law of

exceptional public importance and that it is desirable in the public interest that an appeal

should be taken to the Supreme Court.”

134. The jurisprudence is clear that this covers costs decisions as well as substance decisions.

135. Section 50B(1) and (2) provides (emphasis added):

“50B.—(1) This section applies to proceedings of the following kinds:

(a) proceedings in the High Court by way of judicial review, or of seeking leave to

apply for judicial review, of—

(i) any decision or purported decision made or purportedly made,

(ii) any action taken or purportedly taken,

(iii) any failure to take any action,

pursuant to a statutory provision that gives effect to—

(I) a provision of the Environmental Impact Assessment Directive

(within the meaning of the Planning and Development Act 2024) to which,

by virtue of paragraph 1 of Article 11 of that Directive, the said Article 11 is

subject,

(II) Directive 2001/42/EC of the European Parliament and of the Council of

27 June 2001 on the assessment of the effects of certain plans and

programmes on the environment,

(III) a provision of Directive 2010/75/EU of the European Parliament and of

the Council of 24 November 201020 on industrial emissions (integrated

pollution prevention and control) to which, by virtue of paragraph 1 of Article

25 of that Directive, Article 24 of that Directive is subject, or

(IV) paragraph 3 or 4 of Article 6 of the Habitats Directive (within the

meaning of the Planning and Development Act 2024);

(b) an appeal (including an appeal by way of case stated) to the Supreme Court from a

decision of the High Court in a proceeding referred to in paragraph (a);

(c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in

relation to a proceeding referred to in paragraph (a) or (b).

(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I.

No. 15 of 1986) and subject to subsections (2A), (3) and (4), in proceedings to which this

section applies, each party to the proceedings (including any notice party) shall bear its own

costs.”

136. The proceedings are covered by s. 50, but are they covered by s. 50B? While the effect of

successful enforcement may be to necessitate the making of an application which itself is subject to

EIA/AA consideration, the council argues that s. 154 in itself is not a provision that gives effect to

EU environmental law. That point also has the subsidiary consequence that if correct, the council

was not implementing EU law in issuing the notice and thus EU law on effective remedies is not in

fact applicable. I have assumed in the discussion above that EU law was applicable, and I considered

that it was fully satisfied, but I need to make clear that that was an assumption for the purposes of

the argument, not a finding.

137. That issue will have to await further discussion. It is probably prudent not to opine even

provisionally on this as yet. Perhaps matters overall are not beyond engagement between the

parties so as to ensure an orderly process towards conformity between the development outcome

and the requirements of planning law. In the unlikely event that the parties are short on ideas as

to how to do that, I will of course be happy to attempt to assist. In a perhaps optimistic attempt to

encourage engagement, I will provisionally adjourn the question of the respondent’s costs with

liberty to apply. There is no basis for anything other than no order as to the losing applicant’s costs.

Summary

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

(i) it is settled law that the applicant must have discharged the onus of proof to

establish all facts necessary for relief;

(ii) applying such law to the facts here, the applicant has not demonstrated any

inadequacy in the reasons given by the council, breach of fair procedures, lack of

reasonable expedition or other infirmity;

(iii) it is settled law that, apart from autonomous-type obligations, material capable of

sustaining the point must have been properly before the decision-taker at the

relevant time such as to give rise to a duty to consider it;

(iv) applying such law to the facts here, the applicant has not demonstrated any infirmity

in the notice, in the context of the limited nature of his submissions to the council;

(v) it is settled law that the applicant’s point must workable; and

(vi) applying such law to the facts here, it would be unworkable to uphold an

interpretation that required elaborate procedures at the warning letter or

enforcement notice stage or that failure to act expeditiously would render the notice

invalid, or that time-limits are jurisdictional or that required the applicant to dictate

that there be an elaborate investigation, or that required complex factual questions

to be determined in the context of judicial review, especially when there are normally

in practice alternative procedures that would allow the facts to be more conveniently

interrogated.

Order

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

(i) the proceedings be dismissed;

(ii) there be no order as to the applicant’s costs;

(iii) the question of the respondent’s costs be adjourned generally with liberty to apply;

(iv) the order will include a recital that the court determines with the consent of the

respondent that the applicant be entitled to contest the factual basis of the

enforcement notice in respect of (a) whether there was development, (b) whether it

was exempted and (c) whether time has run and the related issues of intensification/

cessation/ resumption/ abandonment, in the context of any prosecution for non-

compliance with the enforcement notice and/or in the context of any application for

a planning injunction under s. 160 regarding the development to which the notice

relates;

(v) subject to any consequential application by written legal submission within 7 days

by any party, with replies by the other party within a further 7 days, the order (not

including any substantive decision as to costs) will be perfected forthwith (costs to

be dealt with by a separate order if required); and

(vi) the matter be listed at 09:30 on Monday 27 April 2026 to confirm the foregoing.