High Court dismisses challenge to substation approval pending solar farm consent under Planning and Development Act 2000.

[2026] IEHC 224

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001350]

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

2000

BETWEEN

GRETTA CONNOLLY AND MICHAEL CONNOLLY

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

BALLYSALLAGH SOLAR FARM LIMITED AND AUSTIN FARRAR

NOTICE PARTIES

Date of impugned decision: 17 July 2025

Date proceedings commenced: 9 September 2025

Date of main hearing: 27 March 2026

Date draft judgment circulated: 9 April 2026

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

1. The Supreme Court has recently upheld the principle that an overall development can be

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

IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024). The present case involves a challenge

to approval (under s. 182B(5) of the Planning and Development Act 2000) for a substation and grid

connection serving a solar farm (which was separately approved under s. 37 of the 2000 Act). While

I appreciate the sincerity of the applicants as environmental litigants, and the very considerable

expenditure of imagination and effort made to present the case on their behalf, the legal question

here is whether any plausible basis to impugn the decision, which was acceptable to both the

inspector and the commission, has been made out, especially when the solar farm permission,

although pending at the time of the present approval, has since been granted.

Geographical context

2. The proposed development (https://www.pleanala.ie/en-ie/case/321518) is a 220 kV AIS

tail-fed electricity substation (with 33 kV customer compound) (including two control buildings,

associated electrical structures and apparatus, lightning protection, telecom pole, perimeter security

fencing, security lighting, water and drainage infrastructure, temporary construction compound) to

connect to and serve a solar farm; associated grid connection between the proposed substation and

the existing Knockraha 220 kV substation comprising 220 kV underground electricity cables of c.

10.2 km in length to be provided in an excavated trench including associated fibre cable and ducting,

and all associated site development and reinstatement works; temporary construction and

operational access from the L7691, vehicular entrance and access track from this public road; all

ancillary site development, landscaping and earthworks. The project will serve a solar farm with a

total area of c. 179 ha. The solar farm will consist of solar panels on ground mounted frames, 25

single-storey electrical inverter/transformer stations, three single-storey spare parts containers,

three Ring Main Units, seven weather stations, underground electrical ducting and cabling within the

development site, private lands and within the L7691 and L7692 public roads to connect solar farm

field parcels, security fencing, CCTV, access tracks, seven stream/drain deck crossings, temporary

construction compounds, landscaping and all associated ancillary development and drainage works.

Construction and operational access will be via four entrances from the R626, L7691 and L7692, at

Ballysallagh, Dundullerick East, Dundullerick West, Rathcobane, County Cork. All located within the

townland of Aghaduff, Ballinbrittig, Ballynabrannagh West, Ballynagaul, Ballynaglogh,

Ballynanelagh, Ballynaskeha, Ballysallagh, Ballyvatta, Glengarriff More, Killeena and Pigeonhill, Co.

Cork.

Facts

3. The development in issue is located within the administrative area of Cork County Council.

The relevant development plan is the Cork County Development Plan 2022-2028.

4. On 11 July 2024, the first named notice party, Ballysallagh Solar Farm Limited (Ballysallagh),

engaged in pre-application discussions with the commission with a view to establishing whether the

proposed development was strategic infrastructure development (SID).

5. A pre-application consultation meeting was held on 20 August 2024.

6. On 28 August 2024, Ballysallagh applied to the council for planning permission for the

Ballysallagh Solar Farm (reg. ref. no. 24/5630).

7. On 21 October 2024, the council issued a request for further information (RFI) related to the

Ballysallagh Solar Farm application.

8. On 13 September 2024, the commission inspector prepared a report relevant to the pre-

application consultation relating to the proposed electricity transmission development.

9. On 23 September 2024, the commission confirmed that the proposed electricity transmission

development fell within the scope of s. 182A of the Planning and Development Act 2000 (the 2000

Act) and that an application for approval could be made directly to the commission.

10. On 18 December 2024, Ballysallagh submitted the application for development the subject

of these proceedings to the commission (ref. 321518). The second named notice party had

submitted a letter of consent for the application. The application was described as follows:

“[A] 220kV AIS tail-fed electricity substation (with 33kV customer compound) (including two

control buildings, associated electrical structures and apparatus, lightning protection,

telecom pole, perimeter security fencing, security lighting, water and drainage

infrastructure, temporary construction compound) to connect to and serve a solar farm;

associated grid connection between the proposed substation and the existing Knockraha

220kV substation comprising 220kV underground electricity cables of c.10.2 km in length to

be provided in an excavated trench including associated fibre cable and ducting, and all

associated site development and reinstatement works; temporary construction and

operational access from the L7691, vehicular entrance and access track from this public

road; all ancillary site development, landscaping and earthworks. The development subject

to this application forms part of grid connection and access arrangements which will facilitate

the connection of the proposed Ballysallagh Solar Farm (Cork County Council Reference

24/05630) to the national grid.”

11. On 18 February 2025, Ballysallagh responded to the council’s RFI request related to the

Ballysallagh Solar Farm application.

12. On 20 February 2025, the council made a submission to the commission in respect of

proposed electricity transmission development.

13. The applicants made submissions on the application by letters dated 23 February 2025.

Submissions were also made by several other parties including by the Leamlara Preservation Group

on 11 February 2025 (the first named applicant is a member of that group).

14. On 2 April 2025, Ballysallagh was invited to make a submission on the observations received

in relation to the application. The planning authority also made a submission.

15. On 29 April 2025, Ballysallagh provided a response (prepared by HW Planning) to the

submissions lodged.

16. The commission appointed an inspector to prepare a report and make a recommendation on

the application for approval of the proposed development. Following a site inspection on 24 March

2025, the inspector prepared a report dated 30 May 2025, in which he recommended that approval

be granted for the proposed development subject to twelve conditions.

17. The application was considered by the commission at a meeting held on 15 July 2025, at

which the commission decided to grant approval generally in accordance with the inspector’s

recommendation subject to eleven conditions.

18. The commission made its order granting approval for the proposed development on 17 July

2025 pursuant to s. 182A of the 2000 Act and subject to eleven conditions.

19. The application for the proposed Ballysallagh Solar Farm ref. 24/05630 (referred to in the

description of the development) was subsequently refused permission by Cork County Council on 1

September 2025 for three reasons:

“1. Policy objective HE 16-9: Archaeology and Infrastructure Schemes of the Cork County

Development Plan (2022) stipulates that all large scale planning applications (i.e.

development on lands 0.5ha or more in area or 1km or more in length) are subjected to an

archaeological assessment (which would include appropriate archaeological investigations

such as licensed geophysical survey and archaeological testing) as part of the planning

application process to guide the design and layout of the proposed scheme/development and

safeguard the archaeological heritage of the County in line with Development Management

Guidelines. Policy objective HE16-13: Undiscovered Archaeological Sites seeks to protect

and preserve previously unrecorded archaeological sites within County Cork as part of any

development proposals. The Council will require preservation in situ to protect

archaeological monuments discovered. Preservation by record will only be considered in

exceptional circumstances. Having regard to identified areas of archaeological potential on

site and to the scale/extent of the development there is potential for impacts on the

Archaeological/Cultural heritage of the area. In the absence of a comprehensive

Archaeological Impact Assessment (incorporating archaeological geophysics and testing)

and comprehensive assessment of potential impacts, it is considered that the applicant has

failed to demonstrate that the proposed development would not be seriously injurious to the

Archaeological/Cultural heritage of the area. Therefore, it is considered that the proposed

development would materially contravene policy objectives HE 16-9 and HE 16-13 of the

Cork County Development Plan (2022) and would be contrary to the proper planning and

sustainable development of the area.

2. Having regard to the scale, extent and extensive site coverage of the proposed solar

farm, and the operational duration, relative to the existing rural landscape and residential

properties, and in the absence of sufficient mitigation measures to break up the overall

panoramic /monolithic nature of the proposed development by way of siting, buffers,

appropriate screening and landscaping to aid with its visual assimilation into its

surroundings, it is considered that the proposed solar farm would represent a visually

incongruous and overbearing feature on the rural landscape at this location which would be

detrimental to the visual amenities of the area, would materially contravene policy objective

GI 14-9: Landscape of the Cork County Development Plan (2022) and would depreciate the

value of property in the vicinity. Accordingly, the proposed development would be contrary

to the proper planning and sustainable development of the area.

3. On the basis of the information provided, in particular in the absence of baseline and

proposed greenfield runoff rates, it has not been demonstrated that there will be no net

increase in discharge rates or runoff volume from the site arising from the proposed

development. Accordingly, it has not been demonstrated that the proposed development

would not have an adverse impact on the wider hydrological regime of the area and/or

contribute to flood risk elsewhere and would therefore be contrary to the proper planning

and sustainable development of the area.”

20. That refusal was appealed to the commission on 26 September 2025 (ref. 323747) by

Ballysallagh.

21. On 28 January 2026 the inspector recommended a grant of permission for the solar farm.

22. On 19 February 2026, the commission granted permission (ACP-323747-25) for the

Ballysallagh Solar Farm.

Procedural history

23. Papers were filed in the Central Office on 9 September 2025, and I granted leave on 29

September 2025.

24. On or about 10 October 2025, the first named notice party uploaded a form to apply for a

hearing date seeking to have the expedited procedure apply to the proceedings.

25. On 13 October 2025, a hearing date was fixed for 27 March 2026, with the expedited

procedure to apply.

26. A statement of opposition and verifying affidavit were filed on behalf of the commission on

16 December 2025.

27. A statement of opposition and verifying affidavit as well as an additional affidavit were filed

by the first named notice party on 23 December 2025.

28. A replying affidavit was filed by the applicants on 18 February 2026.

29. The applicants’ written legal submissions were delivered on 18 February 2026.

30. The commission’s written legal submissions were delivered on 26 February 2026.

31. Ballysallagh’s written legal submissions were delivered on 5 March 2026.

32. The matter was listed for mention on 9 March 2026 for callover and for hearing on 27 March

2026.

33. 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.

34. 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.

35. 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.

36. 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).

37. 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.

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

commission and notice party helpfully pointed out some minor errors (right down to a single

superfluous space character in the draft of para. 86 which is truly world-class proofreading by the

commission on any metric and exactly the sort of commitment to assist the court that I genuinely

appreciate from parties). The applicants confirmed that they had no comments.

Relief sought

39. The reliefs sought are as follows:

“1. An Order of certiorari by way of application for judicial review quashing the decision

of An Coimisiún Pleanála (the Commission), dated 17th July 2025 (ABP- 321518-24) to grant

planning permission for development of a 220kV Substation and Grid Connection at

Aghaduff, Ballinbrittig, Ballynabrannagh West, Ballynagaul, Ballynaglogh, Ballynanelagh,

Ballynaskeha, Ballysallagh, Ballyvatta, Glengarriff More, Kileena and Pigeonhill, County Cork.

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

persons similarly situated as the Court considers appropriate.

3. A Declaration that Section 50B of the 2000 Act, and / or Sections 3 and 4 of the

Environment (Miscellaneous Provisions) Act 2011 and/or that the interpretative obligation

set out in Case C-470/16 Northeast Pylon Pressure Campaign Limited v. An Bord Pleanála

whereby in proceedings where the application of national environmental law is at issue, it is

for the national court to give an interpretation of national procedural law which, to the fullest

extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the

Aarhus Convention apply to these proceedings.

4. Such further or other order as this Honourable Court shall deem fit.

5. The costs of these proceedings.

6. Liberty to file further affidavits.”

Grounds of challenge

40. The core grounds of challenge are as follows:

“DOMESTIC LAW GROUNDS

Core Ground 1: The impugned decision of the Commission is invalid, void, ultra vires, and

of no legal effect, insofar as the Commission erred in fact and/or law in finding that the

application site was not subject to a specific zoning and/or not subject to Agriculture (AG)

zoning and the objectives relating to Agriculture AG zoning in the Cork County Development

Plan 2022–2028, including Objective ZU 18-19, and/or that it would align with local policy

and/or erred in failing and/or to give adequate reason relating to the zoning. The

development is not consistent with, (‘Development Plan’) and/or materially contravenes, the

AG zoning and the requirements of Objective ZU 18-19, which provides, inter alia, that it is

a requirement to conserve and protect agricultural land from undesirable development and

non-agricultural uses. The Commission failed to take account of relevant considerations

namely relating to the site’s deemed zoning under Objective ZU 18-4, the requirement for

retention of agricultural use under Section 18.3.45, and the limitations on appropriate uses

in agricultural areas, in purporting to grant permission for the development. It took

irrelevant considerations into account. Further particulars are set out in Part 2 below.

Core Ground 2: The impugned decision of the Commission is invalid, void, ultra vires, and

of no legal effect, insofar as the Commission in granting planning permission for the 220kV

AIS electricity substation and associated grid connection acted without proper regard to the

Inspector’s express recommendation to consider the status of the Ballysallagh Solar Farm

(Cork County Council Planning Ref. 24/5630) and/or the submission of the planning authority

that the application could be considered premature, which, at the time of the Commission’s

decision, was undetermined and at Further Information stage (and was subsequently refused

by the planning authority), and so failed to have regard to relevant considerations. The

Commission failed to provide reasons for its apparent disregard of the Inspector’s

recommendation and/or rejection of the submission of the planning authority that the

application was premature, in purporting to grant permission. Further particulars are set

out at Part 2 below.

Core Ground 3: The impugned decision of the Commission is invalid, void, ultra vires, and

of no legal effect insofar as the Commission erred in law in its application of the Cork County

Development Plan objectives in granting planning permission for the proposed 220kV AIS

electricity substation and associated grid connection. In particular, the Commission

misapplied and/or failed to have proper regard to Objectives ET 13-14 and ET 13-21 of the

CCDP and/or failed to give adequate reasons and/or to engage with the conditional nature

of those objectives and/or acted irrationally insofar as it found that such objectives

supported the proposed development, where those objectives require that such development

(including associated infrastructure) be located at ‘appropriate locations’ and be ‘subject to

environmental safeguards’ and ‘proper planning considerations’ in granting permission for a

substation that is intrinsically dependent on the Ballysallagh Solar Farm notwithstanding that

the solar farm remained at Further Information stage and undetermined/unassessed at the

time of the Commission’s decision, and in circumstances where the Inspector expressly

advised the Commission to consider the status of that application before making any

determination and the planning authority considered the application premature. Further

particulars are set out at Part 2 below.”

The impugned decision

41. The impugned decision provides as follows:

“Decision

APPROVE the proposed development under section 182A of the Planning and Development

Act, 2000, as amended, for the following reasons and considerations and subject to the

conditions set out below, and

DETERMINE under section 182B of the Planning and Development Act, 2000, as amended,

the sum to be paid by the undertaker in respect of costs associated with the application, as

set out in the Schedule of Costs below.

Reasons and Considerations

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

consistent with:

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

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

and the requirement to, in so far as practicable, perform its functions in a manner consistent

with Climate Action Plan 2024 and Climate Action Plan 2025 and the national long term

climate action strategy, national adaptation framework and approved sectoral adaptation

plans set out in those Plans and in furtherance of the objective of mitigating greenhouse gas

emissions and adapting to the effects of climate change in the State.

(b) Directive 2000/60/EC, the Water Framework Directive and the requirement to exercise

its functions in a manner which is consistent with the provisions of the Directive and which

achieves or promotes compliance with the requirements of the Directive.

The Commission also had regard to the following in coming to its decisions:

(a) European legislation, including of particular relevance: The relevant provisions of EU

Directive 201 1/92/EU, as amended by Directive 2014/52/EU (EIA Directive) on the

assessment of the effects of certain public and private projects on the environment,

European Policy/Legislation including:

(i) Directive 2014/52/EU amending Directive 2011/92/EU (Environmental Impact

Assessment Directive);

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

2009/147/EC (Birds Directive);

(iii) Directive 2000/60/EC (Water Framework Directive)

National Policy and Guidance including:

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

(ii) National Planning Framework – First Revision, April 2025;

(iii) National Development Plan (2021-2030);

(iv) The objectives and targets of the National Biodiversity Action Plan 2023-2030;

(v) Long-term Strategy on Greenhouse Gas Emissions Reductions (2024);

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

(vii) National Energy Security Framework (April 2022);

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

Regional and Local Planning Policy, including in particular:

(i) The Regional Spatial and Economic Strategy for the Southern Region;

(ii) The Cork County Development Plan 2022 - 2028;

(iii) The location, nature, scale and layout of the proposed development;

(iv) The range of mitigation measures set out in the Natura Impact Statement;

(v) The submissions received in relation to the application by all parties;

(vi) The Inspector’s report and recommendation.

Appropriate Assessment Stage 1:

The Commission agreed with and adopted the screening assessment and conclusion carried

out in the Inspector’s report that the Cork Harbour Special Protection Area (Site Code:

004030) and Great Island Channel Special Area of Conservation (Site Code: 001058) are

the only European Sites in respect of which the proposed development has the potential to

have a significant effect.

Appropriate Assessment Stage 2:

The Commission considered the Natura Impact Statement and associated documentation

submitted with the application for approval, the mitigation measures contained therein, the

submissions and observations on file, and the Inspector’s assessment. The Commission

completed an appropriate assessment of the implications of the proposed development for

the affected European Sites, namely the Cork Harbour Special Protection Area (Site Code:

004030) and Great Island Channel Special Area of Conservation (Site Code: 001058), in

view of the sites’ conservation objectives. The Commission considered that the information

before it was adequate to allow the carrying out of an appropriate assessment. In

completing the appropriate assessment, the Commission considered, in particular, the

following:

(i) the likely direct and indirect impacts arising from the proposed development both

individually or in combination with other plans or projects;

(ii) the mitigation measures which are included as part of the current proposal; and

(iii) the conservation objectives for the European Sites.

In completing the appropriate assessment, the Commission accepted and adopted the

appropriate assessment carried out in the Inspector’s report in respect of the potential

effects of the proposed development on the integrity of the aforementioned European Sites,

having regard to the sites’ conservation objectives.

In overall conclusion, the Commission was satisfied that the proposed development, by itself

or in combination with other plans or projects, would not adversely affect the integrity of

the European Sites, in view of the sites’ conservation objectives.

Proper Planning and Sustainable Development

It is considered that, subject to compliance with the conditions set out below, the proposed

development would be consistent with and align with relevant European, national, regional

and local planning and related policy which recognises the importance of renewable energy

and associated electricity infrastructure to support transmission and distribution of this

energy to the national grid (noting also the dual consent obligation which requires this

application for substation and grid connection and associated works to be made directly to

the Commission in its constituent form), would not have an unacceptable impact on the

landscape, biodiversity or on the cultural or archaeological heritage, would not seriously

injure the visual or residential amenities of the area or of property in the vicinity, and would

be acceptable in terms of traffic safety and convenience. The proposed development would,

therefore, be in accordance with the proper planning and sustainable development of the

area.

CONDITIONS

1. The proposed development shall be carried out and completed in accordance with the

plans and particulars lodged with the application, except as may otherwise be required in

order to comply with the following conditions. Where such conditions require details to be

agreed with the planning authority, the undertaker shall agree such details in writing with

the planning authority prior to commencement of development and the development shall

be carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.

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

10 years from the date of this Order.

Reason: Having regard to the nature of the proposed development, the Commission

considered it reasonable and appropriate to specify a period of the permission in excess of

five years.

3. The mitigation measures contained in the submitted Natura Impact Statement shall be

implemented in full.

Reason: To protect the integrity of European Sites.

4. All of the environmental, construction, and ecological related mitigation measures, as set

out in the Ecological Impact Assessment, Construction and Environmental Management Plan,

Electrical Infrastructure - Construction Methodology, Noise Impact Assessment Report, and

other particulars submitted with the application, shall be implemented by the undertaker in

conjunction with the timelines set out therein except as may otherwise be required to comply

with the conditions of this Order.

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

construction and operational phases of the development.

5. Prior to commencement of development, a detailed Construction Environmental

Management Plan (CEMP) and Electrical Infrastructure - Construction Methodology for the

construction phase shall be submitted to, and agreed in writing with, the planning authority,

generally in accordance with the Outline CEMP and Electrical Infrastructure - Construction

Methodology submitted with the application. The CEMP and Electrical Infrastructure -

Construction Methodology shall incorporate the following:

(a) a detailed plan for the construction phase incorporating, inter alia, construction

programme, supervisory measures, noise, dust and surface water management measures

including appointment of a site noise liaison officer, transport and disposal of construction

waste.

(b) a comprehensive programme for the implementation of all monitoring commitments

made in the application and supporting documentation during the construction period;

(c) an Invasive Species Eradication and Management Strategy for the site, to include

monitoring post completion of works;

(d) an emergency response plan;

(e) proposals in relation to public information and communication. A record of daily checks

that the works are being undertaken in accordance with the Construction Environmental

Management Plan and Construction Methodology shall be kept for inspection by the planning

authority.

Reason: In the interests of environmental protection and orderly development

6. Prior to the commencement of development, the undertaker shall comply with the

transportation requirements of the planning authority for such works and services, as

appropriate. Such requirements shall require provision of a detailed Traffic Management

Plan and shall include the following details:

(a) Consultation with Transport Infrastructure Ireland (TII) and all private and public

companies and road authorities;

(b) Details of haulage routes, control measures for abnormally sized vehicles and an

Abnormal Load Assessment;

(c) A road condition survey of roads and bridges along the haul route to be carried out at

the undertaker’s expense and to the satisfaction of the planning authority;

(d) Detailed arrangements for construction damage to be made good by the undertaker to

the satisfaction of the planning authority;

(e) Detailed arrangements for temporary traffic management/controls and protocols to keep

residents informed;

(f) Construction route signage;

(g) Road Opening Licences that will be required;

(h) Arrangements for the phasing of the development.

Reason: in the interests of traffic and pedestrian safety.

7 (a) All mitigation measures in relation to archaeology and cultural heritage, as set out in

the Archaeological Impact Assessment (Rubicon Heritage Services Limited date October

2024) shall be implemented in full, except as may otherwise be required in order to comply

with the conditions of this Order

(b) The undertaker shall engage a suitably qualified archaeologist (licensed under the

National Monuments Acts) to carry out a pre-development Archaeological Geophysical

Survey and a pre-development Archaeological Test Excavation at the location for the sub-

station and to submit an archaeological impact assessment report for the written agreement

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

Government and Heritage, in advance of any site preparation works or groundworks,

including site investigation works/topsoil stripping/site clearance and/or construction works.

(i) The Archaeological Geophysical Survey must be carried out under licence from

the National Monuments Service and in accordance with an approved method

statement. Having completed the work, the archaeologist shall submit a written

report to the Department and the planning authority describing the results of the

Archaeological Geophysical Survey.

(ii) The archaeologist shall liaise with the Department to establish - based on the

results of the Archaeological Geophysical Survey - the appropriate scope of the

Archaeological Test Excavation to adequately characterise the character and extent

of any potential sub-surface archaeological material within the development site.

(iii) The report on the Archaeological Test Excavation shall include an archaeological

impact statement and mitigation strategy. Where archaeological material is shown

to be present, avoidance, preservation in-situ, preservation by record

(archaeological excavation) and/or monitoring may be required.

(iv) Any further archaeological mitigation requirements specified by the planning

authority, following consultation with the Department, shall be complied with by the

undertaker.

(v) No site preparation and/or construction works shall be carried out on site until

the archaeologist's report has been submitted to, and approval to proceed is agreed

in writing with, the planning authority.

(c) The Construction Environment Management Plan (CEMP) shall include the location of any

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

as set out in Archaeological Impact Assessment by Rubicon Heritage Services Limited (dated

October 2024) and by any subsequent archaeological investigations associated with the

project. The CEMP shall clearly describe all identified likely archaeological impacts, both

direct and indirect, and all mitigation measures to be employed to protect the archaeological

or cultural heritage environment during all phases of site preparation and construction

activity.

(d) The planning authority and the Department shall be furnished with a final archaeological

report describing the results of all archaeological monitoring and any archaeological

investigative work/excavation required, following the completion of all archaeological work

on site and any necessary post-excavation specialist analysis. All resulting and associated

archaeological costs shall be borne by the undertaker.

Reason: To ensure the continued preservation (either in situ or by record) of places, caves,

sites, features and other objects of archaeological interest.

8. Prior to the commencement of development, the undertaker shall engage a suitably

qualified archaeologist (licensed under the National Monuments Acts) to carry out an

Underwater Archaeological Impact Assessment (UAIA) report which shall include the

following:

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

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

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

heritage features and structures identified by fieldwork cartographic analysis, historical

research and prior archaeological investigations.

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

centred on (but not confined to) the area(s) where in- stream works are proposed within or

immediately proximal to the proposed development area, including the proposed locations

of enabling works, coffer dams and machinery movements that may affect the watercourses.

The dive/wade assessment and metal detection survey shall be undertaken by a suitably

licenced and experienced underwater archaeologist. All identified underwater cultural

heritage shall be surveyed (photographic, descriptive, photogrammetric) in detail as part of

the assessment. A Dive/Survey licence (Section 31987 National Monuments Act) and

Detection Device consent (Section 2 1987 National Monuments Act) will be required for the

dive/wade survey and metal detection, respectively. Licenses should be applied for to the

Department of Housing, Local Government and Heritage and should be accompanied by a

detailed method statement. All archaeological wading/diving should comply with the Health

and Safety Authority’s Safety, Health and Welfare at Work (Diving) Regulations 2018/2019.

(c) Having completed the above-described works, the archaeologist shall submit a final

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

results of the UAIA. The report shall include a comprehensive Archaeological Impact

Statement (AIS) that comments on the degree to which the extent, location and levels of all

proposed works (including ground disturbances, foundations, service trenches and other

sub-surface works including Site Investigation works) required for the development will

impact upon any underwater cultural heritage, archaeological materials, objects and/or

areas of archaeological potential that have been identified. The AIS shall describe the

potential impact(s) of all proposed in-stream development, access and ingress routes to the

river channels, and shall also assess any proposed additional potential secondary/indirect

impacts such as scouring resulting from changes in hydrology. The AIS should be illustrated

with appropriate plans, sections and photographs that clearly describe any adverse effect(s)

of the development on the underwater cultural heritage and proposals for their mitigation.

Mitigation may include recommendations for redesign to allow for full or partial preservation

in situ, the institution of archaeological exclusion zones, further wade/dive surveys, test

excavations, excavations (‘preservation by record’) and/or monitoring, as deemed

appropriate. The Department will advise with regard to these matters. No construction

works shall commence until after the UAIA has been submitted and reviewed. All

recommendations will require the agreement of the Department.

Reason: To ensure the continued preservation (either in situ or by record) of underwater

cultural heritage features and other objects of archaeological interest.

9. The undertaker shall appoint a suitably qualified ecologist to monitor and ensure that all

avoidance/mitigation measures relating to the protection of flora and fauna are carried out

in accordance with best ecological practise.

Reason: To protect the environmental and natural heritage of the area 10 Site development

and building works shall be carried out only between the hours of 0700 and 1900 from

Mondays to Fridays inclusive, between 0800 and 1400 hours on Saturdays and not at all on

Sundays or public holidays. Deviation from these times will only be allowed in exceptional

circumstances where prior written approval has been received from the planning authority.

Reason: In order to safeguard the amenities of property in the vicinity.

11. All road surfaces, culverts, watercourses, verges, and public lands shall be protected

during construction and, in the case of any damage occurring, shall be reinstated to the

satisfaction of the planning authority at the undertaker’s expense. Prior to commencement

of development, a road condition survey shall be carried out to provide a basis for

reinstatement works. Details in this regard shall be submitted to, and agreed in writing

with, the planning authority prior to commencement of development.

Reason: In order to protect the road network.”

Some general considerations

42. It may be of assistance to set out some general considerations arising from previous caselaw,

under a number of headings as follows.

Overall requirements for relief by way of judicial review

43. As discussed in Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court,

28 November 2025) and other cases (see also Foran v. An Coimisiún Pleanála & Glenveagh [2026]

IEHC 23 (Unreported, High Court, Holland J., 23 January 2026)), there is an eight-fold path to

obtaining relief by way of judicial review. These tests are cumulative, and relief should only be

granted if the proceedings meet all of the following:

(i) the applicant complies with jurisdictional requirements (e.g. time or standing to

bring the proceedings at all (as opposed to standing for particular issues within a

case that the applicant can bring at a general level));

(ii) the applicant’s point is legally correct and workable;

(iii) the applicant’s point is properly pleaded with the requisite specificity;

(iv) the specific point is one that the applicant has standing to make (bearing in mind

that while standing can relate to issues such as ius tertii it does not generally require

prior participation in the process insofar as there is an EU/ Aarhus Convention

dimension);

(v) material capable of sustaining the point was properly before the decision-taker

at the relevant time such as to give rise to a duty to consider it (subject to exceptions

primarily related to failure by the decision-taker to fulfil her autonomous

obligations);

(vi) the applicant has discharged the onus of proof to establish all facts necessary for

relief;

(vii) any error must transcend the harmless, the non-material and the purely technical

lacking real-world consequences, bearing in mind that if error is demonstrated, then

the onus shifts to the opposing parties to show harmlessness; and

(viii) the exercise of discretion within established parameters does not militate against

the making of the order (such as considering the proportionality of the order sought),

bearing in mind that discretion is potentially more limited in an EU law context.

44. Before dealing with specific elements in detail, some general comments are worth noting at

this juncture:

(i) Judicial review is concerned with the legality rather than the correctness of the

decision: per Clarke J. (Dunne J. concurring) in Sweeney v. Fahy [2014] IESC 50

(Unreported, Supreme Court, 31 July 2014) at paras. 3.8-3.15. It is not an appeal

on the merits and it is not for the court to substitute its view for that of the decision-

taker: per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal

[1986] I.R. 642 at p. 654 (Hamilton P. concurring); per Denham J. in Meadows v.

Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at p.

743; per Lady Hale in R (Cart) v. Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663

at para. 47: “it is not difficult to dress up an argument as a point of law when in

truth it is no more than an attack upon ... factual conclusions”. See also Stapleton

v. An Bord Pleanála & Savona [2025] IEHC 178 (Unreported, High Court, Holland J.,

1 April 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court,

26 September 2025) per Farrell J. at 11.

(ii) As Singh L.J. and Carr J. put it in R (Hoareau and Bancoult) v. Secretary of State for

Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), [2019] 1 W.L.R.

4105 at [326] (emphasis added): “Judicial review is not, and should not be

regarded as, politics by another means”. The court must keep the separation

of powers firmly in mind: Sinnott v. Minister for Education [2001] IESC 63, [2001]

2 I.R. 545 (Keane C.J., Denham, Murphy, Murray, Hardiman, Geoghegan and

Fennelly JJ.); T.D. v. Minister for Education [2001] IESC 101, [2001] 4 I.R. 259

(Keane C.J., Denham, Murphy, Murray and Hardiman JJ.); B. v. Child & Family

Agency & Ors. [2025] IESC 2 (Unreported, Supreme Court, Hogan J., 27 January

2025) (O’Donnell C.J., Murray, Collins and Donnelly JJ. concurring), para. 62;

consequently the courts must respect the principle that policy choices are for other

branches of government. To stray into policy fundamentally distorts the process

because “[t]he administrator is often concerned with broad considerations of the

public interest whereas the judge tends to focus on the claims of the parties to the

case before him” De Blacam, Judicial Review, 2nd ed, p. 97. What O’Donnell C.J.

(Charleton and Woulfe JJ. concurring) has recently said of Article 42A is true of the

Constitution and law generally – it is not “an open-ended provision that requires

courts to substitute their judgment on social issues ... for that of the

Oireachtas” (G. v. Ireland [2025] IESC 49 (Unreported, Supreme Court, 26

November 2025) at 68). Nor is the equality guarantee to “become instead a more

general power to second guess legislative choices in difficult areas where the courts

have very limited insight. ” (at para. 86). He noted:

“In Re SC [2021] UKSC 26, [2022] AC 223, Lord Reed cautioned against an

expansive application of the equality guarantee contained in Article 14 ECHR

observing that, in effect, since legislation was the art of differentiation, any

legislation could be contested from the point of view of equality, and that a

broad and expansive application of the guarantee risked undue interference

with the sphere of political choice. I agree. Once it is established that a

classification is not arbitrary or capricious or based on prejudice or

stereotype, then this is an area where there is particular merit in the

observations of Chief Justice Stone that ‘[c]ourts are not the only agency of

government that must be assumed to have capacity to govern’ (United

States v Butler (1936) 297 US 1).”

(iii) Insofar as concerns evaluative judgement, the weight to be given to any

consideration or piece of evidence is quintessentially a matter for the decision-taker:

Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 (HL),

780 (Lord Hoffmann); per Keane C.J. (Denham, Murphy and McGuinness JJ.

concurring) in Baby O v. Minister for Justice [2002] IESC 44, [2002] 2 I.R. 169,

[2003] 1 I.L.R.M. 24; M.E. v. Refugee Appeals Tribunal [2008] IEHC 192

(Unreported, High Court, Birmingham J., 27 June 2008) at para. 27; Heathrow

Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12

W.L.U.K. 212, Lord Hodge and Lord Sales SCJJ. at 121; Moran v. An Bord Pleanála

[2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 12.

Generally speaking evaluative judgements involving a significant degree of planning

judgement and not tainted by other procedural, legal or factual errors are reviewable

on an irrationality standard: Sherwin v. An Bord Pleanála [2024] IESC 13

(Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton, O’Malley, Baker

and Murray JJ. concurring); Barr J. in Graymount House Action Group v. An Bord

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

refused in Graymount House Action Group v. An Bord Pleanála [2025] IESCDET 22

(Dunne, Woulfe and Hogan JJ., 17 February 2025).

(iv) A decision must be read in a way that makes sense rather than nonsense if

such a reading is available. It is not the case that decisions must be read in the

most erroneous way possible so that applicants can get their order of certiorari (M.R.

(Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1

JIC 2903 (Unreported, High Court, 29 January 2020); Rostas v. DPP [2021] IEHC

60 (Unreported, High Court, 9 February 2021) at §50; St. Margaret’s Recycling v.

An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February

2024) at §57); Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court,

Farrell J., 30 December 2025) at 32.

(v) Thus a decision should not be read as invalid if a valid reading is reasonably

available: see M.R. (Bangladesh) v. International Protection Appeals Tribunal

[2020] IEHC 41 (Unreported, High Court, 29 January 2020) at §7; Mulloy v. An Bord

Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12 March 2024) at

§178 (citing O’Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High

Court, 1 November 2023)); Save Roscam Peninsula CLG v. An Bord Pleanála (No.

6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024) at §64); thus for example

“unhelpful” statements should not be read as inconsistent with statutory factors if

the decision can be read as valid – E.M. v. Minister for Justice and Equality [2024]

IESC 3 (Unreported, Supreme Court, 21 February 2024) per Dunne J. (Charleton,

Woulfe, Murray and Donnelly JJ. concurring); Friends of Killymooney Lough v. An

Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025); Moran

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

per Farrell J. at 13, and this applies even if the wording is sub-optimal: Duffy v. An

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

2025) at 32.

(vi) It is not appropriate to engage in legalistic over-parsing or micro-analysis of

decisions, or of legal instruments generally, frequently based on semantic

querulousness: per Sullivan J. in R (Blewett) v. Derbyshire County Council [2003]

EWHC 2775 (Admin), [2004] Env. L.R. 29 at para. 41; R. (Friends of the Earth Ltd

and others) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021]

P.T.S.R. 190, [2020] 12 W.L.U.K. 212, Lord Hodge and Lord Sales SCJJ.; per

O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE

[2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 37. As stated

by Peart J. in G.T. v. Minister for Justice, Equality and Law Reform [2007] IEHC 287,

[2007] 7 JIC 2708 (Unreported, High Court, 27 July 2007), para. 3: “It is not

desirable that a decision be parsed and analysed word for word in order to discern

some possible infelicity in the choice of words or phrases used and to hold that a

finding of credibility adverse to the applicant is invalid, unless the matters relied

upon have been clearly misunderstood or mis-stated by the decision maker. The

whole of the decision must be read and considered in order to reach a view as to

whether, when the decision is read in its entirety and considered as a whole, there

was no reasonable basis for the decision maker reaching that conclusion”. See also

A.I.M.Z. v. Refugee Applications Commission & Ors. [2008] IEHC 420, [2008] 11

JIC 0705 (Unreported, High Court, 7 November 2008) at para. 24 per Clarke J.; per

McCarthy J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009] IEHC 383, [2010] 7

JIC 2803 (Unreported, High Court, 28 July 2009), para. 13; per Clark J. in Obuseh

v. Minister for Justice, Equality and Law Reform & Ors. [2010] IEHC 93, [2010] 1

JIC 1404 (Unreported, High Court, 14 January 2010), para. 21; per MacEochaidh J.

in Bondo v. Minister for Justice & Ors. [2012] IEHC 454, [2012] 11 JIC 0903

(Unreported, High Court, 9 November 2012), para. 24; per Barr J. in P.M. v. Refugee

Appeals Tribunal [2014] IEHC 497, [2014] 10 JIC 0204 (Unreported, High Court, 2

October 2014), para. 59; per Faherty J. in O.S. v. Refugee Appeals Tribunal [2015]

IEHC 839, 2015 WJSC-HC 25494, [2015] 12 JIC 1505 (Unreported, High Court, 15

December 2015), para. 59; X.E. v. International Protection Appeals Tribunal [2018]

IEHC 402, [2018] 7 JIC 0405 (Unreported, High Court, Keane J., 4 July 2018); B.D.C.

(Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460, [2018] 7 JIC

2006 (Unreported, High Court, 20 July 2018), para. 7; Moran v. An Bord Pleanála

[2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13.

Mere technicalities are not normally a proper basis for the grant of relief: see e.g.

The State (Toft) v. Galway Corporation 1981 WJSC-SC 2110, [1981] I.L.R.M. 439

(O’Higgins C.J.; Walsh and Kenny JJ. concurring); Pembroke Road Association v. An

Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (Hogan J.; MacMenamin,

Charleton, O’Malley and Baker JJ. concurring); Moore v. Dun Laoghaire Rathdown

County Council [2016] IESC 70, [2017] 3 I.R. 42, [2017] 2 I.L.R.M. 21 (Clarke,

Laffoy and O’Malley JJ.) para. 4.8 (distinguishing a substance point from “a

technicality”). In Save Cork City Community Association CLG v. An Bord Pleanála

[2022] IESC 52, [2024] 1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O’Malley and

Hogan JJ. concurring) said (without needing to decide the point) that there was “a

great deal of force” in the submission that it would be disproportionate to quash a

decision on the basis of a “technical procedural error”. See also Watchhouse Cross

Shopping Centre v. An Coimisiún Pleanála [2025] IEHC 520 (Unreported, High Court,

3 October 2025).

(vii) Relatedly, a decision must be read in the round and in its context. One has to view

an administrative decision in the round, and not place undue weight on semantic

quibbles in respect of micro-sub-elements of it: O.A.A. v. Minister for Justice,

Equality and Law Reform & Anor. [2007] IEHC 169, [2007] 2 JIC 0904 (Unreported,

High Court, Feeney J., 9 February 2007); J.B.R. v. Refugee Appeals Tribunal & Ors.

[2007] IEHC 288, [2007] 7 JIC 3110 (Unreported, High Court, Peart J., 31 July

2007); per Cooke J. in I.R. v. Minister for Justice [2009] IEHC 510, [2015] 4 I.R.

144 at p. 152; M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020]

IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 6. A

decision should be read not solely from an applicant’s point of view (an impossible

standard), but from the starting point of it being valid rather than invalid where

possible. One has to stand back and ask what the decision is fundamentally

saying (O’Donnell & Ors. v. An Bord Pleanála [2023] IEHC 381 (Unreported, High

Court, 1 November 2023), para. 54; St. Margaret’s Recycling v. An Bord Pleanála

[2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024) at §57;

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

2025) per Farrell J. at 13.

(viii) Judicial review is not an exercise in pointless formalism: see for example Okunade

v. Minister for Justice [2018] IESC 56, [2018] 11 JIC 1401 (Unreported, Supreme

Court, 14 November 2018) per O’Donnell J. (Clarke C.J. and O’Malley J. concurring)

at para. 21. It is not a game where the respondents can score as many goals as

they like, but if the applicant scores one goal, the game is over. The court must

make a balanced and reasonable assessment of the overall sustainability of

a decision, even if there is an argument for saying that limited parts of it are sub-

optimal: M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC

41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 21.

(ix) It is not for the applicant to dictate the procedures to be adopted or the

form of a decision: see for example per Ryan P. (Peart and Hogan JJ. concurring)

in A.B. v. Minister for Justice and Equality [2016] IECA 48, [2016] 2 JIC 2602, 2016

WJSC-CA 1525 (Unreported, Court of Appeal, 26 February 2016) at para. 43.

Workability

45. 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).

Onus of proof

46. 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.

(viii) That said, while conflict between equally inherently credible averments, with no

cross-examination, is generally resolved against the party carrying the onus of proof,

a court is not always obliged to regard all averments as being equally

credible, or to disregard internal or evident problems with them (see by

analogy the manner in which the Supreme Court considered it was entitled to prefer

an affidavit over even oral evidence in Koulibaly v. Minister for Justice, Equality and

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

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

matters to which regard might be had would be included the failure to explain

patently relevant questions that are clearly within that party’s responsibility (Doorly

v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022) at para.

137 (Ní Raifeartaigh and Pilkington JJ. concurring)). This specific and common sense

power of the court to evaluate inherent defects in evidence remains notwithstanding

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

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

This is consistent by analogy with the judgment of Hardiman J. (Hanna and Feeney

JJ. concurring) in DPP v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130, [2007] 1

I.L.R.M. 350 at para. 95 – the court as finder of fact is “not ... constrained” to accept

“the only account available” even if that account is provided by oral evidence. The

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

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

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

Discretion

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

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

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

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

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

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

relief.

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

Finlay C.J. (Blayney and Denham JJ. concurring) in G. v. DPP [1994] 1 I.R. 374 at

p. 378; De Róiste v. Minister for Defence [2001] IESC 4, [2001] 1 I.R. 190, [2001]

2 I.L.R.M. 241 at 204 per Denham J.; Amariei v. Chief Appeals Officer [2026] IESC

22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J.,

Charleton and Murray JJ. concurring).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J.,

Charleton and Murray JJ. concurring) at 60. As Donnelly J. pointed out in that case

at 27, the use of the term discretion is strictly delineated. O’Donnell J. (Clarke C.J.

and Dunne J. concurring) said in Kelly v. Minister for Agriculture [2021] IESC 62,

[2023] 1 I.R. 38 that the court is not “at large”, or is free to take into account “its

views on the underlying merits” (the contrast with Christian below indicates that

what is envisaged is merit in some general sense separate from the “constitutional

or legal value[s]” concerned). Rather, “the circumstances which allow the court not

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

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

an order otherwise justified” (Clarke J. in Christian v. Dublin City Council [2012]

IEHC 163, [2012] 2 I.R. 506, at 567) as cited with approval by Donnelly J. in Amariei

at 27. Thus the court must be conscious of the need for statutory requirements to

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

(Unreported, Supreme Court, 22 January 2026).

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

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

disproportionality. Under these headings the following points emerge:

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

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

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

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

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

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

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

Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray

JJ. concurring), save where for example there is a fundamental

failure of justice: A.B. v Chief International Protection Officer & Ors

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

2026) (O'Donnell C.J., Charleton, Woulfe and Murray JJ. concurring).

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

that the court asked to quash an administrative decision has a

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

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

per Dunne J. (Charleton, Woulfe, Collins and Donnelly JJ.

concurring), S. v. Minister for Justice and Equality [2025] IESC 48

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

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

their position: Baile Bhruachlain Teoranta v. Galway County Council

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

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

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

264.

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

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

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

Appeal, 26 November 2021) at 277.

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

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

November 2025).

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

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

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

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

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

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

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

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

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

order or declaratory relief only) may also be a factor: in Save Cork City

Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024]

1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ.

concurring) said (without needing to decide the point) that there was “a

great deal of force” in the submission that it would be disproportionate to

quash a decision on the basis of a “technical procedural error”. In

particular:

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

process requires “consideration of whether the matter concerned is

one of importance or of triviality”: per Finlay C.J. (Blayney and

Denham JJ. concurring) in G. v. DPP [1994] 1 I.R. 374 at p. 378

(emphasis added). Thus an “inconsequential” breach was not a

basis for the grant of relief as a matter of discretion in Kenny v.

Dublin City Council [2009] IESC 19 (Unreported, Supreme Court, 5

March 2005) at 79 per Fennelly J. (Macken and Peart JJ. concurring).

2. Likewise the importance of the countervailing legal value being

protected by the impugned decision is a factor in the balance,

whether that be a value enshrined in law generally, the ECHR as

transposed, the Constitution or EU law – as cited above, the court

can consider whether there is “an important constitutional or legal

value of sufficient weight to warrant not making an order otherwise

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

163, [2012] 2 I.R. 506, at 567) as cited with approval by Donnelly

J. in Amariei at 27.

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

O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal,

1 July 2021) at 43: “grounds relating to the impact a remedy will

have on others (such as where the grant of relief would represent

an unwarranted interference with the settled rights or expectations

of third parties)”).

4. In assessing proportionality it follows that matters regarding the

seriousness of the error such as the extent of the non-

compliance, whether the error was once-off, whether the issue is

purely historic and cannot reoccur, the level of deliberation involved

in the error and the extent to which reasonable steps were taken to

prevent or identify such an error, whether the error was rectified

promptly when it came to light (if capable of rectification), whether

there is a pattern of non-compliance, and any other relevant

circumstances may be relevant (see also Reid v. An Bord Pleanála

(No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High Court,

24 January 2024) para. 134).

The climate law context

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

following:

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

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

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

Climate Action Plan 2025 published by the Government under the Climate Action

and Low Carbon Development Act 2015 as amended, as well as known critical risks

of climate change, “[w]e also face increasing risks of reaching irreversible climate

tipping points, with unknown and potentially catastrophic consequences for

societies, ecosystems and economies” (p. 22, emphasis added). One recent widely-

reported study noted that “research on climate tipping points, amplifying feedbacks,

and cascading interactions shows that several Earth system components may be

closer to destabilizing than once believed. These processes are thought to be the

precursors of a potential ‘hothouse trajectory’: a pathway in which self-reinforcing

feedbacks push the climate system past a point of no return, committing the planet

to substantially higher long-term temperatures, even if emissions are later

reduced. Policymakers and the public, however, remain largely unaware of the

risks posed by such a practically irreversible transition” (emphasis added)

(William J. Ripple et al, “The risk of a hothouse Earth trajectory”, One Earth, 101565,

11 February 2026).

(ii) Domestic law imposes significant climate-related obligations on national decision-

takers, including in the field of planning. The Climate Action and Low Carbon

Development (Amendment) Act 2021 (amending the Climate Action and Low Carbon

Development Act 2015) mandates the achievement of a net-zero carbon economy

by 2050 (s. 3(1) of 2015 Act as substituted by the 2021 Act), with a legally binding

51% reduction in emissions by 2030 compared to 2018 levels (s. 6A(5) of 2015 Act

as substituted by the 2021 Act): see Coolglass v. An Coimisiún Pleanála [2026] IESC

5 (Unreported, Supreme Court, 4 February 2026).

(iii) EU law also involves significant climate-related objectives and obligations. As well

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

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

notable in that regard:

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

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

system for greenhouse gas emission allowance trading within the Union

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

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

electricity and heat generation, industrial manufacturing and aviation

sectors and, more recently, maritime transport.

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

European Parliament and of the Council of 23 April 2009 on the promotion

of the use of energy from renewable sources and amending and

subsequently repealing Directives 2001/77/EC and 2003/30/EC

established mandatory targets for the consumption of energy from

renewable sources by member states.

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

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

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

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

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

limits on emissions from the land use sector.

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

European Parliament and of the Council of 11 December 2018 on the

Governance of the Energy Union and Climate Action, amending

Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European

Parliament and of the Council, Directives 94/22/EC, 98/70/EC,

2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of

the European Parliament and of the Council, Council Directives

2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No

525/2013 of the European Parliament and of the Council (the Governance

Regulation) was adopted to implement the Paris Agreement commitments

(agreement at conference of parties of the UNFCCC (the United Nations

Framework Convention on Climate Change opened for signature at UN

Conference on Environment and Development, Rio de Janeiro, Brazil, 3-

14 June 1992) (COP21) in Paris, on 12 December 2015).

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

Law (Regulation (EU) 2021/1119 of the European Parliament and of the

Council of 30 June 2021 establishing the framework for achieving climate

neutrality and amending Regulations (EC) No 401/2009 and (EU)

2018/1999) involves a reduction of GHG emissions for the EU by at least

55% by 2030 compared to 1990 levels. Ireland’s Nationally Determined

Contributions (NDCs) under Paris are as part of the EU contribution to GHG

reductions.

vi. Council Regulation (EU) 2022/2577 of 22 December 2022 lays down

a framework to accelerate the deployment of renewable energy. Article

3(1) introduced a presumption of overriding public interest for renewable

energy projects for the purpose of the birds, habitats and strategic

environmental assessment (SEA) directives, and provision was made for

the acceleration of such projects. Case C-325/25 Eneco Wind is ongoing

as to the ramifications of this legislation.

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

European Parliament and of the Council of 19 April 2023 amending

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

reductions by Member States from 2021 to 2030 contributing to climate

action to meet commitments under the Paris Agreement, and Regulation

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

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

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

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

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

significant reduction in energy consumption. The transposition date was

11 October 2025.

ix. The current version of the Renewable Energy Directive (REDIII),

Directive (EU) 2023/2413 of the European Parliament and of the Council

of 18 October 2023 amending Directive (EU) 2018/2001, Regulation (EU)

2018/1999 and Directive 98/70/EC as regards the promotion of energy

from renewable sources, and repealing Council Directive (EU) 2015/652,

provides for a presumption of overriding public interest and for accelerated

timelines including requiring judicial remedies to be the most expeditious

available in national law.

(iv) The ECHR, relevant to domestic law via the European Convention on Human Rights

Act 2003, involves a binding legal obligation to address climate change: Verein

KlimaSeniorinnen Schweiz and Others v Switzerland (9 April 2024, App. no.

53600/20) (this is consistent with the decisions of all other international courts/

tribunals to date: International Court of Justice Advisory Opinion of 23 July 2025,

Obligations of States in respect of Climate Change; International Tribunal for the

Law of the Sea, Advisory opinion, Request by Commission of Small Island States,

21 May 2024; Inter-American Court of Human Rights, Request by Chile and

Colombia, Opinión Consultiva Oc-32/25 de 29 de Mayo de 2025).

Core ground 1 – zoning

49. Core ground 1 is:

“Core Ground 1: The impugned decision of the Commission is invalid, void, ultra vires, and

of no legal effect, insofar as the Commission erred in fact and/or law in finding that the

application site was not subject to a specific zoning and/or not subject to Agriculture (AG)

zoning and the objectives relating to Agriculture AG zoning in the Cork County Development

Plan 2022–2028, including Objective ZU 18-19, and/or that it would align with local policy

and/or erred in failing and/or to give adequate reason relating to the zoning. The

development is not consistent with, (‘Development Plan’) and/or materially contravenes, the

AG zoning and the requirements of Objective ZU 18-19, which provides, inter alia, that it is

a requirement to conserve and protect agricultural land from undesirable development and

non-agricultural uses. The Commission failed to take account of relevant considerations

namely relating to the site’s deemed zoning under Objective ZU 18-4, the requirement for

retention of agricultural use under Section 18.3.45, and the limitations on appropriate uses

in agricultural areas, in purporting to grant permission for the development. It took

irrelevant considerations into account. Further particulars are set out in Part 2 below.”

50. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicants’ Position

35. The Commission erred in fact and law in concluding that the application site was not

subject to a specific zoning, or alternatively not subject to Agriculture (AG) zoning, under

the Cork County Development Plan 2022–2028. This is a misinterpretation of the

Development Plan rather than a matter of planning judgment. Objective ZU 18-4, provides

that where lands are not explicitly zoned on the maps, the specific zoning is deemed to be

that of the existing authorised use. As the site is in active agricultural use, this means that

the lands are specifically zoned or deemed to be zoned Agriculture (AG), and that the

Inspector and Commission erred in treating the lands as effectively unzoned. Neither the

Inspector’s Report nor the Commission’s Order engaged with Objective ZU 18-4, and that

the Statements of Opposition misconstrue the zoning framework and fail to contain a clear

positive plea regarding the deemed zoning. A failure properly to identify and apply the

applicable zoning constituted a material error of law.

36. The Applicants further submit that, having failed properly to identify the agricultural

zoning or deemed zoning of the lands, the Commission did not correctly apply the relevant

agricultural policy objectives, including Objective ZU 18-19 and section 18.3.45, which

provide for the conservation and protection of agricultural land from undesirable

development and non-agricultural uses. A 220kV substation is not an agricultural use and

permanently removes land from agricultural production, and therefore materially

contravenes the stated purpose of zoning. Also reliance on previous solar farm permissions

granted under an earlier Development Plan constituted an irrelevant consideration and could

not lawfully inform interpretation of the operative Development Plan. A statutory obligation

under section 182B to ‘have regard to’ the Development Plan as a precondition requires

correct identification of the applicable zoning in the development plan, and in wrongly

proceeding on the basis that no zoning applied there was a failure to have regard to a

mandatory consideration and/or a misinterpretation of the Development Plan.

The Commission’s Position

37. The Commission Decision is not invalid as alleged at Core Ground 1 or at all. The

Commission did not err in fact or in law in finding that the application site was not subject

to a specific zoning and/or not subject to Agriculture (AG) zoning and the objectives relating

to Agriculture AG zoning in the Core County Development Plan 2022-2028 (the ‘CDP’). There

has been no misinterpretation or misapplication of the CDP. The application site is located

in a rural location on agricultural lands, which is not covered by any specific land use zoning

objective in the CDP. The Applicants’ reliance on the Agriculture AG zoning objective, as

well as policy objective ZU 18-4 in the CDP and the deemed zoning of Agriculture AG zoning

objective, is incorrect and misconceived.

38. Section 18.3.45 of the CDP relating to Agriculture AG expressly states that ‘[t]hese

lands have been identified as having the potential to play a role in the delivery of future

residential development in the period after 2028’. The use of the Agriculture AG zoning

objective in the CDP is used to demarcate the zoning at the edge of certain urban settlements

and the location of lands designated as Agriculture AG and the proximity of those lands to

urban settlements can be seen in the interactive map at Volume 6 of the CDP. Objective ZU

18-19 relied upon by the Applicants expressly states that the purpose is ‘…to prevent

premature development of agriculture land adjacent to development areas’ which clearly

does not apply to the subject site. Although the application lands are in ‘agricultural’ use,

agricultural use of land does not necessarily fall within Agriculture (AG) zoning and the

objectives associated with such zoning, which zoning must be construed in accordance with

the ordinary principles for interpretation of a development plan.

39. The Commission does not accept that the approval for the Proposed Development is

inconsistent with or materially contravenes to the CDP but, without prejudice to that, neither

section 182A nor section 182B of the 2000 Act contain any limitation on the Commission

granting approval where the proposed development would materially contravene the

Development Plan. Section 182(10) also provides for a ‘have regard to’ standard in respect

of the development plan for the area which the Commission complied with. The

Development Plan expressly acknowledges (p.301) that solar farms have the potential to be

built on agricultural land, and the development of solar farms is not necessarily inconsistent

with the agricultural use of lands. Reference to other permitted solar farms was not an

irrelevant consideration and it was not contended that those permissions were binding on

the outcome of the application for approval before the Commission.

40. The Commission acted lawfully in consideration of the Application for approval as

part of the dual consent regime. Noting the applicable statutory provisions, two separate

applications for the proposed electricity transmission development and the proposed

Ballysallagh Solar Farm were required to be submitted which was permissible in law, and

the Applicants have not sought to challenge the validity of the statutory framework in these

proceedings.

Ballysallagh’s Position

41. It is Ballysallagh’s position that the Impugned Decision is not invalid by reference to

any matter pleaded by the Applicants in relation to Core Ground 1 in circumstances where,

inter alia, the application site is not contained within any settlement boundary and, as a

consequence, is not subject to land-use objective ‘Agriculture (AG)’, or any specific land-use

objective established in the Development Plan. Moreover, the purpose and intent of the

‘Agriculture (AG)’ land-use zoning objective is ‘to prevent premature development of

agricultural land adjacent to development areas’, which clearly does not apply to the

application site which is not, as a matter of uncontested fact, adjacent to any development

area. In any event, even if the application site was subject to the land-use objective

‘Agriculture (AG)’ – which it clearly is not – the provisions of section 182B do not contain a

limitation on the jurisdiction of the Commission to grant approval where proposed electricity

transmission development would materially contravene a development plan (see, by way of

analogy, the position in respect of local area plans in Ryanair DAC v An Bord Pleanála [2025]

IEHC 74 at §61-62) .

42. There is nothing unlawful about the fact that the Inspector referred to previous

grants of permission. For example, there is no suggestion that the Commission’s decision

on the application for approval was predetermined on that basis nor did the Inspector state

that previous grants of permission were binding as to the outcome of the section 182A

approval application. The Commission complied with its statutory obligation to ‘have regard’

to the development plan. Finally, as a result of the applicable statutory provisions, two

separate applications for the proposed electricity transmission development and the

proposed Ballysallagh Solar Farm were required to be submitted, and the Applicants have

not sought to challenge the validity of the statutory framework in these proceedings.

Applicants’ Response to the Commission and Notice Party Position

43. The Applicants reject the contention of the Commission and the Notice Party that

the application site is not subject to any zoning or that Objective ZU 18-4 has no application.

The Development Plan expressly provides a mechanism whereby lands not explicitly zoned

on the relevant maps are assigned a deemed zoning based on their existing authorised use.

In circumstances where it is uncontested that the lands are in active agricultural use,

Objective ZU 18-4 operates such that the lands are deemed to be zoned Agriculture (AG) or

alternatively is zoned agriculture. The Commission and the Notice Party seek to characterise

AG zoning as limited to lands at the edge of settlements, but that submission does not

address the clear wording and function of Objective ZU 18-4, which operates independently

of mapped zoning and which the Inspector and Commission failed to identify or apply. The

failure to consider or interpret that objective constitutes a misinterpretation of the

Development Plan rather than a matter of planning judgment.

44. Further, the Applicants do not accept that the agricultural policy objectives relied

upon are inapplicable merely because the lands are not adjacent to a settlement boundary.

Even if the Commission were correct that the mapped AG zoning primarily concerns lands

adjoining settlements, that does not displace the operation of Objective ZU 18-4 or the

broader policy framework within the Development Plan aimed at protecting agricultural land

from non-agricultural development. The proposed 220kV electricity substation is plainly a

non-agricultural use which permanently removes agricultural land from production and

therefore engages the objectives relied upon by the Applicants. The Commission’s approach

effectively bypassed the relevant zoning and policy framework by treating the lands as

unzoned, thereby failing properly to have regard to the Development Plan as required by

section 182B of the 2000 Act.

45. The Applicants further reject the suggestion that the question of material

contravention is irrelevant because section 182A does not prohibit such a contravention.

The Applicants’ case is not dependent upon establishing a formal material contravention of

the Development Plan, but rather upon the prior failure of the Commission to correctly

identify and interpret the applicable zoning and policy provisions. The statutory obligation

to ‘have regard to’ the Development Plan necessarily requires the Commission to correctly

identify the applicable planning framework before assessing the proposal. The reliance on

references to solar farm development elsewhere in the Development Plan or on prior

permissions granted under an earlier development plan does not cure that failure and

constitutes reliance on considerations which cannot lawfully substitute for proper

interpretation of the operative Development Plan.”

51. The relevant text of the CDP is:

“18.1 Introduction

18.1.1 The purpose of zoning is to indicate the land use objectives for all the lands within

the County. Zoning aspires to promote the orderly development of the County by eliminating

potential conflicts between incompatible land uses and to establish an efficient basis for

investment in public infrastructure and facilities.

18.1.2 Zoning policy must also have regard to the core principles underlying the Plan. These

include the principles of Sustainability, Social Inclusion, Placemaking, Resilience and Climate

Action which when coupled with the need for the integration of land use and transportation

planning, will help safeguard and improve the quality of life for all within the County.

County Development Plan Objective

ZU 18-1: Implementation of Zoning Objectives

Secure the implementation of the Zoning Objectives applied to each area of the County.

18.2 Overall Approach to Land Use Zoning

18.2.1 The zoning objectives and maps for all the settlements in the County are set out in

the relevant County Development Plan Volumes Three, Four and Five and in Volume 6 Maps

CDP Map Browser and the objectives and general principles that should be followed in these

plans are set out below.”

52. The applicants assert this wording is ambiguous in that on the one hand it suggests that “all

the lands within the County” will be zoned, whereas on an “overall approach” the zoning objectives

and maps only apply to “all the settlements”. But this is a prototypical applicant’s fallacy of reading

text as being erroneous when a non-erroneous reading is available. In fact, read by the court in

accordance with established principles (Re XJS Investments Ltd [1986] I.R. 750, [1987] I.L.R.M.

659 (McCarthy J.; Finlay C.J., Henchy, Griffin and Hederman JJ. concurring); Clonres v. An Bord

Pleanála [2021] IEHC 303 (Unreported, High Court, 7 May 2021) at §79; Sherwin v. An Bord Pleanála

[2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton, O'Malley, Baker

and Murray JJ. concurring) at §96), both statements are consistent when we consider the residual

zoning referred to in ZU 18-4. The specific objectives and maps relate to specifically labelled

zonings, but all other lands also have zoning on a residual basis (emphasis added):

“Land Use Zoning of Other Lands

County Development Plan Objective

ZU 18-4: Land Use Zoning of Other Lands

Where lands have not been explicitly zoned, in the Plan the specific zoning shall be deemed

to be that of the existing use of the lands (if such a use is not an authorised use under the

Planning Acts) or, if such use is unauthorised, that of the most recent authorised use of the

lands.”

53. The word “not” there is admittedly erroneous – the applicants are right about that – and

needs to be disregarded as a typo. The applicants say that this is “the only way of reading it that

makes sense”.

54. I appreciate that a deemed zoning may strike some readers as strange but as it happens I

am not such a reader – it is really up to a council to decide how it wants to phrase its plan. A

provision specifying the named zonings and stating anything else is deemed zoned in a particular

way is legally equivalent to creating a specific label (for the sake of discussion it could be called EA

– existing authorised use) and a specific colour for the residual areas and completing the maps

accordingly. Both options come to the same thing. The council is entitled to do it whatever way it

wants as long as the outcome is reasonably clear to the court viewing the matter as it would appear

to a reasonably intelligent non-expert reader – which it is.

55. The applicants’ contention is that the deemed zoning has the consequence that the land is

deemed to be specifically zoned Agriculture AG with the effect that para. 18.3.45 and policy 18-19

apply. (Incidentally it would appear that there is also an error in 18-19 where the word “members”

is used when “family members” was intended.)

56. The intellectual sleight of hand in the applicants’ superficially attractive argument is that a

general deemed zoning objective to maintain existing authorised uses is not the same thing as a

specific zoning for a specific albeit related purpose.

57. For what it’s worth, on the facts here, the redlined development site is in any event not just

an agricultural field – it includes a grid connection that runs extensively along roads.

58. The applicants’ misreading is the concoction of a non-existent bright-line rule that means if

the existing use is agricultural then the full panoply of the closest and most relevant specific zoning

(here, AG) applies. That isn’t what the plan says – on the contrary the plan creates a residual zoning

albeit without a specific label which should be construed in keeping with existing authorised uses of

the land concerned.

59. The inspector says:

“9.3.6. The site is located in a rural location on agricultural lands which is not covered by

any specific land use zoning objective in the development plan.”

60. This is not an error as alleged. There is indeed no “specific” land use zoning objective in the

sense meant by the inspector, which obviously means one with a specific label and which is

specifically marked on the maps. What applies instead is the deemed residual objective of use in

keeping with the existing authorised use.

61. The absolutely critical point is that stated by the commission in submissions as follows:

“Agricultural use is not the same as the express ‘Agriculture (AG)’ zoning objective

and does not result in the land-use zoning objective ‘Agriculture (AG)’ being deemed to apply

to the lands and therefore the site is not subject to the express zoning objectives under that

zoning objective. In other words, Agriculture (AG) zoning and agricultural use are not

necessarily interchangeable and agricultural use of land does not automatically result in

Agriculture (AG) zoning and the objectives associated with such zoning.”

62. As far as the claim that the commission referring to previous applications (under the heading

of policy) is concerned, this reads headings as definitional. It is not up to an applicant to dictate the

form of a challenged decision. Courts should be familiar with the point that which heading to use in

one’s decision is often fairly subjective for any given issue which might arise under a number of

potential headings. Clearly previous decisions are relevant potentially to any application as part of

the planning history. They are also relevant to policy not least because they illustrate the application

of policy. They are not irrelevant considerations. Nor was there any failure to consider anything

actually relevant such as the status of the solar farm application – the commission was obviously

aware of that.

63. So the applicants haven’t made out an error in the reasoning. The AG zoning simply doesn’t

apply. That said, since the inspector recognised, correctly, that no specific zoning label applied, the

deemed zoning per the existing authorised use applied by default. The commission did have regard

to the CDP and did not misinterpret it. Ideally there would have been express reference to that

deemed zoning (what the commission, aptly in my view, calls “small ‘a’ agriculture”) but that

situation doesn’t give rise to grounds for certiorari given that:

(i) the deemed zoning didn’t do a whole lot other than recognise the existing authorised

use, and in all relevant respects the commission did consider the existing authorised

use;

(ii) a solar farm and associated infrastructure is in principle consistent with agricultural

use (see also Navan Co-Ownership v. An Bord Pleanála [2016] IEHC 181

(Unreported, High Court, McGovern J., 12 April 2016)), and the developer’s planning

report positively proposes at 4.13.4 that sheep grazing will continue on the site of

the solar farms, something which is by no means unusual if the solar panels can be

sufficiently elevated, so on the facts the applicants have not discharged the onus of

proof to show that placed in the overall context, the sub-station project should be

regarded as fundamentally inconsistent with the agricultural use given that it

supports a project which itself is designed to be supportive of and consistent with

agricultural uses – akin to the way that for example a recreational structure for

farmhouse occupants supports the farmhouse and thus the underlying agricultural

activity even though it is not inherently agricultural, so a structure to support the

solar farm project will economically support the hybrid solar farm/ sheep grazing

land use as an overall project which is part-agricultural; and

(iii) unlike regular planning there is no constraint on departure from a plan set out in s.

182B(5) – the applicants did not contest that and it is clear from the text: see by

analogy Ryanair DAC v. An Bord Pleanála [2025] IEHC 74 (Unreported, High Court,

14 February 2025) at §61-62. A similar logic applies here by analogy under s. 182B.

In that regard, in refusing leapfrog leave to appeal, the Supreme Court said albeit

non-precedentially in Ryanair DAC v. An Bord Pleanála [2025] IESCDET 84 (1 July

2025, Charleton, Murray and Collins JJ.):

“18. Section 18(3) of the 2000 Act obliged ABP to ‘have regard’ to the

provisions of the LAP when consider the planning application. That appears

to be the only constraint placed on ABP in considering an application under

the Act. In particular, there appears to be no dispute that section 37 of the

2000 Act applies only to a ‘development plan’ under section 9(1) of the Act

and therefore has no application to LAPS. ABP can therefore grant

permission for a development which would contravene an LAP, provided only

that it has appropriate regard to the provisions of the LAP in making its

planning assessment. That is so regardless of whether the contravention

involved is ‘material’ or not.

19. Here, the Inspector and ABP clearly had regard to the relevant provisions

of the LAP relating to the provision of aircraft stands. Even if Ryanair is

correct in contending that the statutory obligation ‘to have’ regard to the

LAP brings with it an obligation to correctly interpret it - and it is not

necessary to express any view on that point here - the fact is that the High

Court Judge expressly held that ABP and its Inspector correctly interpreted

the LAP here. ...”

64. Thus the applicants have not overcome the onus of proof to show that the commission, in

coming to the decision it did, erred in fact or in law in the manner alleged or at all.

Core ground 2 – overall project

65. Core ground 2 is:

“Core Ground 2: The impugned decision of the Commission is invalid, void, ultra vires, and

of no legal effect, insofar as the Commission in granting planning permission for the 220kV

AIS electricity substation and associated grid connection acted without proper regard to the

Inspector’s express recommendation to consider the status of the Ballysallagh Solar Farm

(Cork County Council Planning Ref. 24/5630) and/or the submission of the planning authority

that the application could be considered premature, which, at the time of the Commission’s

decision, was undetermined and at Further Information stage (and was subsequently refused

by the planning authority), and so failed to have regard to relevant considerations. The

Commission failed to provide reasons for its apparent disregard of the Inspector’s

recommendation and/or rejection of the submission of the planning authority that the

application was premature, in purporting to grant permission. Further particulars are set

out at Part 2 below.”

66. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicants’ Position

46. The Commission failed to give consideration and/or reasons in relation to the

Inspector’s express recommendation that it consider the status of the Ballysallagh Solar

Farm application (Cork County Council Ref. 24/5630) before determining the substation

application, and to the Planning Authority’s submission that the substation and grid

connection could be premature. The Applicants contend that this issue was clearly and

repeatedly identified in the material before the Commission: the Planning Authority

expressly stated that the development related to enabling infrastructure for a solar farm that

remained undetermined and that the issue of prematurity ‘shall’ be taken into consideration;

third-party submissions highlighted concerns arising from the Further Information request

in the solar farm application; and the Inspector twice recommended that the Commission

consider the status of that application prior to making its decision. The Inspector further

acknowledged the intrinsic interdependence of the substation and the solar farm, noting that

one would not proceed without the other.

47. Neither the Commission’s Direction nor its Order addressed the issue of prematurity

or the Inspector’s recommendation, and also significantly, the Commission’s Statement of

Opposition contains no positive plea that the matter was considered. A mere reference to

the existence of the solar farm application in the description of development does not amount

to consideration of its status, and that the absence of reasons addressing this issue

constitutes a failure to take into account relevant considerations and a breach of the

statutory obligation to state the main reasons and considerations for the decision. While

accepting that the Commission was not bound to follow the Inspector’s recommendation,

the Applicants argue that it was required to engage with it and, if departing from it, to

explain why, particularly in light of the Planning Authority’s submission and the

acknowledged interdependence of the developments. Proceeding on the basis of an

undetermined and contested solar farm application involved reliance on speculative

assumptions and rendered the decision unlawful.

The Commission’s Position

48. The Commission is the competent authority for approval for an application made

under s.182A of the 2000 Act (as was the case here) and, in the performance of these

functions, was not constrained by the pending planning permission application before the

planning authority or the Commission on appeal. The Commission was entitled to consider

and determine the within application for approval notwithstanding the pending application

for planning permission before the Planning Authority (Planning ref: 24/5630), and in so

doing the Commission has not acted impermissibly or unlawfully. The Commission’s Decision

was made within the legislative framework provided under the dual consent procedure and

the said legislative framework has not been challenged by the Applicants. There is no

legislative provision or policy requiring the suspension or deferral of a decision for approval

under section 182A pending the decision of the substantive solar farm application or vice

versa and there is no provision dictating the timing nor the determination of the applications

nor a requirement to simultaneously determine the s.182A application and the solar farm

application on appeal.

49. The Applicants place undue and outsized reliance on the references in the Inspector’s

Report to the status of the solar farm planning application (planning ref 24/5630)’. This did

not amount to a recommendation not to grant the approval or not to make a decision pending

the decision before the Planning Authority. Furthermore, the Commission was not bound by

the outcome of the application, which remained pending when the Commission determined

the application for approval which is challenged in these proceedings. There was no

obligation to provide reasons in respect of the recommendation of this nature in the manner

as contended for by the Applicants. The Commission was entitled to follow the overall

recommendation of the Inspector granting approval for the Proposed Development and

provided reasons for same. The Commission expressly noted the dual consent obligation

and it is clear that the Commission had regard to the fact that there was a pending

application.

Ballysallagh’s Position

50. As a matter of fact, the Inspector made a recommendation to approve the section

182A application. The statutory obligation on the Commission, pursuant to section

182B(5A)(ab) of the 2000 Act, is to give the main reasons for not accepting an inspector’s

recommendation to ‘approve or refuse’. In this matter, the Commission, following the

Inspector’s recommendation to approve the proposed development, and as such, section

182B(5A)(ab) is not engaged. It is clear that the obligation on the Commission to provide

reasons for not accepting an Inspector’s recommendation under section 182B(5A) does not

extend beyond the parameters of the recommendation made by an Inspector as to whether

the Commission should approve, or refuse to approve, the proposed electricity transmission

development.

51. Strictly without prejudice to the foregoing, and in any event, the Commission clearly

had regard to the Inspector’s report, which report including statements, such as, ‘[p]rior to

making any decision in respect of this file, it is recommended the Board consider the status

of this planning application and whether any appeal has been received’ and, the Council’s

submissions to the Commission. It was clear from the documents submitted by Ballysallagh

with the application made under section 182A that, as at the date of that application for

approval, the planning application in respect of the proposed solar energy development was

pending before the Council (e.g., section §1.2 in the Planning and Environmental

Statement). Furthermore, the Commission Order (at page 2) expressly refers to ‘the

proposed Ballysallagh Solar Farm (Cork County Council Reference 24/05630)’ and, as the

Applicants highlight, the Commission Order also refers (at page 5) to ‘the dual consent

application’.

Applicants’ Response to the Commission and Notice Party Position

52. The Applicants do not contend that the Commission lacked jurisdiction to determine

the section 182A application while the Ballysallagh Solar Farm application remained pending.

Rather, the Applicants’ complaint is that the Commission failed to engage with a clearly

identified and relevant planning issue, namely the prematurity of determining enabling

infrastructure for a development which had not yet been assessed or approved. The Planning

Authority expressly raised the issue of prematurity and the Inspector twice recommended

that the Commission consider the status of the solar farm application prior to determining

the substation application. In circumstances where the Inspector acknowledged the intrinsic

interdependence of the two developments, the Commission was required at minimum to

address that issue and explain its approach. The absence of any reference to the matter in

the Direction or Order indicates that the issue was not meaningfully considered.

53. The Applicants further reject the contention that the Inspector’s recommendation

was of no relevance merely because the overall recommendation was to grant approval. The

Inspector’s report forms a central part of the decision-making record before the Commission

and identified a specific matter which the Inspector considered should be taken into account

before the Commission reached its decision. The Applicants do not contend that the

Commission was obliged to follow the recommendation, but it was required to engage with

it, particularly where the issue had also been raised by the Planning Authority and by third-

party submissions. The statutory obligation to provide the main reasons and considerations

for the decision requires the Commission to address such a clearly identified issue where it

formed part of the material before it.

54. The Commission and the Notice Party rely on references in the Order to the solar

farm application and to the dual consent process as evidence that the matter was considered.

The Applicants submit that such references do not amount to engagement with the specific

issue raised, namely whether it was appropriate to determine the substation application

before the status of the solar farm application had been resolved. A mere descriptive

reference to the solar farm does not address the Planning Authority’s prematurity submission

or the Inspector’s recommendation. In circumstances where the Commission proceeded to

grant approval for infrastructure acknowledged to be dependent upon the solar farm, the

absence of any reasoning addressing this issue amounts to a failure to consider a relevant

matter and a breach of the obligation to state the reasons and considerations for the

decision.”

67. The complaint that the commission did not have regard to the inspector’s report is manifestly

unsustainable on the facts given the terms of the decision.

68. The complaint that the commission did not have “proper” regard to the inspector’s views is

a merits-based disagreement dressed up in ostensibly legal language and not a ground for certiorari.

69. In any event, there was no disagreement with the inspector and no “apparent disregard” of

his views. He recommended a grant of permission, with which the commission agreed. He added

that the commission should “consider the status” of the solar farm application (paras. 1.2 and 9.2.1)

– but the commission were aware of that application so obviously did consider it. The inspector did

not state that permission should not be granted until there was a live appeal pending still less a

grant for the solar farm – he said that the status should be considered. The applicants haven’t

proved any failure to consider anything that needed legally to be considered.

70. Insofar as the applicants’ point is to be construed as some claim that it is a breach of some

legal requirement to proceed with this application in advance of some other application, the fallacy

underlying this argument is that it leads logically to a situation where a developer must have near

perfect oversight over the whole project before applying for permission for any part of it. The

Supreme Court has already rejected analogous arguments in Concerned Residents of Treascon

where the whole complaint was centred on the fact that the project was consented in part.

71. The applicants concede in submissions that a project can be consented in parts but only if

there is “reasonable certainty as to the other aspects proceeding”. Such an implausible bright-line

rule is manifestly totally unworkable and sets a developer up to fail from the start. There will always

be something a lot less than reasonable certainty, because each individual consent process has its

own integrity and cannot be taken for granted. The applicants’ proposition is as unfounded as saying

that a party should not be required to participate in Module I of a court proceeding without

reasonable certainty as to the outcome of Module II. Some things just can’t be predicted in the

mechanical way implicitly demanded by the applicants’ invented new rule.

72. Such an edict would have the effect that only minor stand-alone projects would be lawful

and any major project that required multiple consents over a period of time would run into immediate

problems and invalidity. This supposed rule of law comes from nowhere – certainly not the 2000

Act or EU law, and is wholly inconsistent with the recent Supreme Court decision in Concerned

Residents of Treascon. It would cause nationally significant infrastructural development to grind to

a halt.

73. In short, there does not need to be reasonable certainty as to other stages of a multi-stage

project proceeding before any given stage can be consented – indeed there cannot be such certainty

or anything like it. While it is absolutely clear that the whole project needs to be considered for the

purposes of any EIA obligations, it is a matter of evaluation for the decision-taker as to how to

consider the question of uncertain elements. That zone of evaluation includes the right but generally

not the obligation to ask how much information if any about the likelihood of such elements is

required and what sort of consent if any should be given depending on the answer to that.

74. The total unreality of all of this is illustrated by looking at any given large project. The HS2

project in the UK (which may cost over £80 billion (https://www.theguardian.com/uk-

news/2024/dec/17/cost-of-hs2-estimate-euston)) required 8,276 separate development

consents (https://www.bbc.com/news/articles/c9wryxyljglo). Some imagined “prematurity” rule,

concocted out of nothing, that required consents for an overall project to be progressed in tandem

or in some abstract rigidly pre-predetermined sequence, would result in a petty-minded provincial

mentality, good for the occasional cottage perhaps but totally unworkable for anything of complexity,

scale and ambition. For the courts to go down that road would be a major interference in the rights

of other branches of public administration to govern the country.

75. Insofar as the inspector and/or the council could be construed as suggesting consideration

of progress on the solar farm first, that is at most evaluative judgement (which the commission is

free to depart from), not a legal obligation. More generally, it is not up to someone objecting to a

project to dictate to a developer how permission should be applied for.

76. Furthermore, prematurity arguments lead rapidly to a Mexican standoff. If two or more

consent processes are required, and if any one can be rejected as premature pending one or more

of the others, then no multi-stage development could ever get off the ground. The applicants’

ingenuous and reasonable-sounding plea that the solar farm should go first ahead of the grid

connection and sub-station can be turned on its head with ease if a developer were to be incautious

enough to follow that advice. Anything a developer does in such a situation can be represented as

being in the wrong order. This rapidly becomes an applicant’s logic that the correct order is simply

whichever order the developer did not pick in the given case. The correct legal situation is that

projects can be consented in parts, subject to assessment of the overall project if EIA applies. The

term “project-splitting” is potentially misleading or at least problematic because project-splitting is

an inherently lawful activity. It only becomes a problem if it interferes with the application of EU

assessment obligations – the decision-taker always has to look at the whole project and consider

thresholds accordingly. Subject to compliance with the EU law requirement to assess the overall

development, and to apply thresholds in that overall context, it is up to the developer to decide

whether and how to divide the project and if so, to decide the sequence and number of applications

for development consent. That also may, if the decision-maker in her evaluative judgement so

decides, involve assessment of what might happen if other parts do not get consent – there are no

guarantees and it would be pointless to demand “reasonable certainty” (typically applicants try to

set an impossible standard in such matters). But once the matter has been considered in the round

for EIA purposes, each individual application for development consent can be decided on as it is

made.

77. The lack of reality to prematurity objections follows from Treascon and is discussed in

additional detail in McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 8

July 2025) (at §56); Hoctor & Ors v. An Coimisiún Pleanála [2026] IEHC 65 (Unreported, High Court,

10 February 2026), at §114 and 100 Meter Tall Group v. An Bord Pleanála [2025] IEHC 42

(Unreported, High Court, 31 January 2025) in particular as to why an obviously poorly-considered

and misconceived obiter comment in Ó Gríanna v. An Bord Pleanála & Ors [2014] IEHC 632

(Unreported, High Court, Peart J., 12 December 2014) is not a credible basis to conclude otherwise,

noting also that that obiter suggestion failed at the first test and was not even followed by the same

judge in Ó Gríanna v. An Bord Pleanála (No. 2) [2015] IEHC 248, 2015 WJSC-HC 22515, [2015] 4

JIC 1606 (Unreported, High Court, Peart J., 16 April 2015).

78. A final immense irony of all this is that under core ground 3 the applicants place outsize

reliance on R. (Ashchurch) v. Tewksbury Borough Council [2023] EWCA Civ 101, [2023] P.T.S.R.

1377, [2023] 2 WLUK 87, [2023] Env. L.R. 25 (Andrews, Laing and Warby LJJ.), but that case has

the logical consequence that it would be open to a decision-taker to consent part of an overall project

even if there was no guarantee that later stages would happen (see para. 64: “it was open to the

decision maker to treat the prospective benefits of the wider development as material factors”),

thereby completely undercutting the applicants’ case under core ground 2.

79. The ultimate reason why the prematurity argument, and indeed the ancillary argument that

the commission didn’t give reasons for not doing something about the possibility that the solar farm

might not be approved, comes down to workability.

80. It is a matter for evaluative judgement as to whether the downsides of leaving phase 1 of a

project as a stranded asset, if phase 2 never happens, are such as to warrant express treatment or

conditions or something else. That will vary from case to case – Ashchurch was an extreme case.

It would start tying planning decision-takers in knots if one were to impose some new invented rule

that they had to consider (or a fortiori expressly consider) conditions to cover every eventuality.

Applying such a hypothetical rule to the (albeit English but, inconveniently for the applicants, entirely

real) case of dealing with the contingencies of 8,276 development consents, and assuming

simplistically in favour of the applicants that each consent has a yes/no binary answer, that is 2 8276

permutations, vastly more than the number of atoms in the universe. If in future people want

paradigmatic examples of unworkability in a legal context, the applicants’ invented bright-line rule

postulating an obligation to consider contingencies, if later stages of a multi-stage consent process

are not permitted, will be a valuable addition to the literature.

81. The foregoing being the case, whether to insert such conditions or not is not a “main issue”

in the sense of the caselaw requiring main reasons only for main issues, even if counterfactually the

inspector had squarely raised it in that way as opposed to being merely something to consider.

82. In any event, all this was is academic in circumstances where the solar farm was later

approved.

83. It can finally be pointed out that there is no challenge to the legislation which is clear in its

consequences that the two parts of the project are dealt with under separate statutory procedures

and by way of separate applications. That said, it’s hard to see how an attempt at a systemic

challenge would have got the applicants any further, in the light of the foregoing.

Core ground 3 – misapplication of CDP

84. Core ground 3 is:

“Core Ground 3: The impugned decision of the Commission is invalid, void, ultra vires, and

of no legal effect insofar as the Commission erred in law in its application of the Cork County

Development Plan objectives in granting planning permission for the proposed 220kV AIS

electricity substation and associated grid connection. In particular, the Commission

misapplied and/or failed to have proper regard to Objectives ET 13-14 and ET 13-21 of the

CCDP and/or failed to give adequate reasons and/or to engage with the conditional nature

of those objectives and/or acted irrationally insofar as it found that such objectives

supported the proposed development, where those objectives require that such development

(including associated infrastructure) be located at ‘appropriate locations’ and be ‘subject to

environmental safeguards’ and ‘proper planning considerations’ in granting permission for a

substation that is intrinsically dependent on the Ballysallagh Solar Farm notwithstanding that

the solar farm remained at Further Information stage and undetermined/unassessed at the

time of the Commission’s decision, and in circumstances where the Inspector expressly

advised the Commission to consider the status of that application before making any

determination and the planning authority considered the application premature. Further

particulars are set out at Part 2 below.”

85. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicants’ Position

55. The Applicants submit that the Commission erred in relying on Objectives ET 13-14

and ET 13-21 of the Cork County Development Plan 2022–2028 without regard to their

express conditionality, the undetermined status of the Ballysallagh Solar Farm application,

and the full range of environmental safeguards required by the Development Plan. Those

objectives support renewable energy and associated infrastructure only at appropriate

locations, subject to environmental safeguards, proper planning considerations, and the

protection of landscape, heritage, biodiversity, hydrology and ecological interests, including

by way of Appropriate Assessment where necessary. The substation and grid connection by

themselves make no contribution to renewable energy and so there was no basis to cite

these policies in favour of permission when no permission for the solar farm was granted..

The Applicants submit that the Commission treated these objectives as establishing

unqualified policy support, mischaracterised the Inspector’s recommendations, and failed to

engage with the Inspector’s express recognition that the substation and solar farm were

intrinsically linked and that the status of the solar farm should be considered prior to

determination. In circumstances where the solar farm remained at Further Information

stage and had been identified by the Planning Authority as premature, the Applicants argue

that the environmental safeguards required under the objectives could not properly be

assessed.

56. The dual consent process does not dictate the timing of an application nor its

determination, which is entirely within the control of the Notice Party and the Commission.

The Notice Party in this instance made the error of lodging the application without

coordinating or awaiting the outcome of the solar farm application and the Commission

compounded the error by granting consent prior to the determination of the application for

the solar farm. Notwithstanding that it is conceded by the developer (and the Commission)

that the substation and grid connection have no intrinsic or planning standalone status from

the solar farm, the Commission went ahead and granted the approval and did so, without a

condition making commencement of the approval conditional on the grant of permission for

the solar farm, in the form of a Grampian condition. The substation and grid connection

have zero planning benefit in the absence of the solar farm and only has [sic] adverse

planning impacts and so it is incapable in themselves of being in accordance with proper

planning and sustainable development as was determined by the Commission.

57. The Applicants further submit that, by granting permission for a substation which

has no independent function absent the solar farm, the Commission assumed the

acceptability of the solar farm and relied on the benefits of renewable energy promotion

without assessing the potential adverse impacts of the wider development. The Applicants

rely on King (Ashchurch) v Tewkesbury Borough Council [2023] EWCA Civ 101 in support of

the proposition that it is irrational to attribute weight to contingent benefits of a wider

development without considering its potential harms. The Applicants contend that the

Commission’s conclusion that the development would not have unacceptable impacts on

landscape, biodiversity, cultural heritage or hydrology mischaracterised the status of the

project, particularly in light of the Planning Authority’s subsequent refusal of the solar farm

for reasons including archaeology, visual impact and drainage. They argue that reliance on

prior permissions under a superseded Development Plan was irrelevant, that the Commission

failed to engage with the conditionality of Objectives ET 13-14 and ET 13-21 and Section

13.8.5, and that the decision was taken without proper consideration of relevant matters

and without adequate reasoning, rendering it irrational, ultra vires and of no legal effect.

The Commission’s Position

58. The Commission’s assessments and determination in respect of the appropriateness

of the location, environmental safeguards and planning considerations and the likely

consequences for the proper planning and sustainable development in the area were matters

within the competence, expertise and judgement of the Commission. The absence of an

approved solar farm at the time of the decision does not invalidate the Commission’s

assessments or determinations on those issues and the subsequent refusal of the solar farm

by the Planning Authority did not retrospectively invalidate the assessments and

determinations of those issues by the Commission as the competent authority for

determining an application for approval under section 182A. The Decision was made within

the legislative framework of the dual consent regime and the Commission was entitled to

consider and determine the section 182A application as the competent authority

notwithstanding the fact that the application for planning permission for the solar farm

remained pending at that time before the competent authority for that consent.

59. The Commission considered the proper planning and sustainable development and

clearly did not only recognise the importance of renewable energy but also the associated

electricity infrastructure to support transmissions and distribution of this energy to the

national grid. The Commission did not err in considering objectives ET 13-14 and ET 13-21

in support of renewable energy development to justify approval for the substation and grid

connection and the Commission did not require the approval of the solar farm planning

application before the Planning Authority to permit it to rely on objectives in support of

renewable energy development.

Ballysallagh’s Position

60. Contrary to the pleas made by the Applicants at Core Ground 3, the absence of

planning permission in respect of the proposed solar energy development as at the date of

the Impugned Decision did not result in a deficient assessment of environmental

considerations in section 13.8.5 and/or Objectives ET 13-14 of the Development Plan. The

Commission was lawfully entitled to consider and determine the application for approval

made to it in respect of the proposed electricity transmission development, notwithstanding

that permission had not been granted in respect of the proposed solar energy development.

The Applicants advance no particulars as to the manner in which it is contended that

consideration of ‘key environmental safeguards’ was deficient, and have not adduced any

expert evidence to substantiate their pleas in this regard, or to impugn the content of any

of the assessments contained in the approval application documentation submitted and/or

carried out by the Commission and its Inspector.

61. The Commission lawfully concluded that the proposed electricity transmission

development was consistent with local planning policy and would not have unacceptable

environmental impacts. The fact that the Council decided to refuse permission for the

proposed Ballysallagh Solar Farm after the date of the Impugned Decision does not vitiate

the assessments carried out by the Commission, or the Impugned Decision (noting that

permission for the solar farm was granted on appeal). It is clear from the Inspector’s report

that Objectives ET 13-14 and ET 13-21 were adequately considered by the Commission and

its Inspector.

Applicants’ Response to the Commission and Notice Party Position

62. The Applicants reject the contention that the matters raised under this ground fall

exclusively within the planning judgment of the Commission. The Applicants’ case concerns

the legal misapplication of the Development Plan objectives relied upon by the Commission,

rather than disagreement with the planning merits of the decision. Objectives ET 13-14 and

ET 13-21 provide policy support for renewable energy development and associated

infrastructure only subject to specified conditions, including appropriate location,

environmental safeguards and proper planning considerations. The Applicants submit that

the Commission relied upon those objectives as establishing unqualified policy support for

the development without engaging with their conditional nature or with the fact that the

infrastructure in question has no independent planning function in the absence of the solar

farm to which it is intrinsically linked. The Applicants do not challenge the technical

environmental assessments carried out for the substation itself. The complaint is that the

Commission relied upon policy support for renewable energy development derived from the

solar farm without assessing the wider development from which those benefits arise.

63. The Commission and the Notice Party further contend that the pending status of the

solar farm application was irrelevant to the Commission’s assessment. The Applicants do

not accept that position. Where the planning justification for the substation and grid

connection derives entirely from their role in facilitating a specific solar energy development,

the assessment of whether the infrastructure is located at an appropriate location and

consistent with environmental safeguards necessarily requires consideration of the wider

development of which it forms part. The Inspector expressly recognised the

interdependence between the two developments and advised the Commission to consider

the status of the solar farm application prior to determining the matter. The Commission’s

failure to address that issue meant that the conditional planning framework within the

Development Plan was not properly applied.

64. The Applicants also reject the submission that the subsequent refusal of the solar

farm is irrelevant. The refusal is not relied upon to retrospectively invalidate the

Commission’s decision, but rather illustrates the practical consequences of the Commission’s

failure to address the conditionality of the relevant Development Plan objectives and the

interrelationship between the developments. The Applicants’ case is that the Commission

attributed weight to the benefits of renewable energy policy while assessing only the adverse

impacts of the substation in isolation, notwithstanding that the substation has no planning

utility absent the solar farm. In doing so, the Commission misapplied the relevant policy

objectives and failed properly to engage with the planning framework governing renewable

energy infrastructure in the Development Plan.”

86. Inconsistently with core ground 1, here the applicants in effect complain that the commission

did consider the CDP (at 6.2.2 of the inspector’s report referencing inter alia policies 13-14 and 13-

21). The applicants’ complaint as argued is that the commission did not have regard to what they

call the “conditionality” of those policies which they explained as meaning by reference to the

question of the location, the lack of certainty as to the solar farm, environmental considerations and

proper planning considerations (this also illustrates another general applicant’s fallacy – conjuring

up a problem and an accompanying idiosyncratic piece of terminology and then attacking the

decision-taker or indeed the trial court for not conceptualising matters in precisely those terms).

That is somewhat repetitive of points made under a different heading in previous grounds. But all

of these matters were in fact considered by the commission – they were aware of the agricultural

use, the status of the solar farm application, and the environmental and planning issues. The

applicants have not discharged the onus to show any misinterpretation of the CDP or any failure to

consider matters the commission should have considered. The applicants’ argument provides no

tangible basis to quash the decision in view of the fact that the commission referred to the pro-

renewables policies that they were independently required to consider under for example the 2015

Act. In any event it is not up to an applicant to dictate the form and wording of a decision. Whether

something is, for example, in an “appropriate” location does not, on facts such as these, present

any acute issue requiring express treatment separate from the overall planning assessment, which

the commission obviously did carry out.

87. As referred to above, the applicants rely on R. (Ashchurch) v Tewksbury Borough Council

[2023] EWCA Civ 101, [2023] P.T.S.R. 1377, [2023] 2 WLUK 87, [2023] Env. L.R. 25 (Andrews,

Laing and Warby LJJ.) at 64, which was a case about a bridge which would have facilitated a housing

development. The problem was that the bridge had contingent benefits in that regard but it also

had downsides (such as impacts on listed structures) which would remain even if the contingent

benefit did not happen. The problem was that the planning consideration not only emphasised just

the pluses but positively excluded the minuses (emphasis added):

“On a fair reading of the OR, the Planning Officer did place substantial weight on the

contingent benefits that, in his assessment, would accrue from the development in Phase 1,

and he invited the Committee to do the same. His overall approach was to invite the

Committee to attribute substantial or significant weight to the prospective benefits of the

wider development whilst directing them that they must leave out of account entirely

any possible harms. Whilst it was open to the decision maker to treat the prospective

benefits of the wider development as material factors, and it is understandable why they

did, it was irrational to do so without taking account of any adverse impact that the

envisaged development might have, to the extent that it was possible to do so, (which it

was, albeit at a high level). The two go hand in hand; you cannot have one without the

other. Ground 1 is therefore made out.”

88. That therefore was an extreme case about exclusion of consideration of a relevant matter.

89. The applicants seek to expand this beyond recognition into a demand that the commission

give express consideration to all potential contingencies about future consents including by expressly

considering conditioning this project in some appropriate way to take that into account.

90. That demand is not just quasi-legislative and micro-managing, but also quickly unworkable

once the number of contingencies starts to accumulate, as discussed above. It makes no sense for

a court to invent such a rule anyway, but it makes even less sense (if that’s possible) when it is

appreciated that the rule could only work in the simplest cases because the number of contingencies

increases exponentially with any increase in the number of stages or permissions required (this is a

situation where the increase is literally and not just figuratively exponential in mathematical terms

as will have been apparent from the previous discussion). A rule that is only good for simple cases

where it is largely pointless isn’t much of a rule, even if there was any valid legal basis for it, which

there isn’t.

91. The commission makes the point that this argument could apply whichever part of a multi-

stage development was consented first, and that the applicants are essentially failing to acknowledge

that Catch-22 by suggesting, inconsistently, that the solar farm should have gone first:

“this submission would also presumably apply if a permission for a solar farm was granted

but with no substation or grid connection and yet the Applicants commended the approach

in Treascon, where the solar farm was granted.”

92. Therefore, as to the demand that the commission should have given express consideration

to the situation that would occur if this part of the overall project was consented but the rest of it

was not, that is a matter for their evaluative judgement based on matters such as the number and

nature of potential contingencies, and the irremediable downsides if such a scenario would occur.

The court should not micro-manage planning decision-takers to this level of detail. Ashchurch does

not propose a rule for all cases and in any event was an extreme situation because the planning

decision-taking process expressly excluded consideration of immediate harms caused by part 1 of

the overall project.

93. Ultimately no misapplication of the CDP or other error has been demonstrated by the

applicants under this heading as alleged or at all.

Discretion

94. We don’t get to discretion having regard to the foregoing but if counterfactually we had, I

would have upheld the submissions of the commission:

“68. … the Commission was free to grant ‘approval’, even if there was a material

contravention. Therefore, even if the Applicants are correct on their construction of the

Development Plan, relief should be refused on discretionary grounds because of the

permissive power in s. 182B of the 2000 Act or, to put it another way, it would not have

made a difference. In that regard, the Court is also entitled to have regard to the nature

[of] the development, which is intended to support renewable energy, in the exercise of its

discretion: see e.g., Save the South Leinster Way (No.2) [2025] IEHC 541 at §53(ii)(j); Eco

Advocacy [2025] IEHC 15 at §147-§156; Massey (No.2) [2025] IEHC 206 at §170)).

69. In Hoctor v An Coimisiún Pleanála [2026] IEHC 65, which concerned a challenge to

a solar development, [the court] also stated (§116) that, if necessary as a matter of domestic

law, [it] would exercise discretion against certiorari if counterfactually there was a breach of

such law, having regard to the importance of renewable energy in EU law including Directive

(EU) 2023/2413 of the European Parliament and of the Council of 18 October 2023 amending

Directive (EU) 2018/2001, Regulation (EU) 2018/1999 and Directive 98/70/EC as regards

the promotion of energy from renewable sources, and repealing Council Directive (EU)

2015/652 (the ‘REDIII Directive’).”

95. I would also have upheld the submissions of the notice party on this point:

“III. DISCRETIONARY FACTORS

84. It is Ballysallagh’s position that all grounds sought by the Applicants should be

refused, and as such, that there is no basis upon which the Court should be called upon to

consider the exercise of its undoubted discretion to refuse to grant relief, particularly,

certiorari. However, in the event that the High Court concludes that the Applicants have

made out one or more of its grounds of challenge (which is not accepted for the reasons set

out above), then it is Ballysallagh’s position that this court should exercise its discretion to

refuse the reliefs sought.

85. The proposed electricity transmission development is part of a renewable energy

project which, when developed, will make a significant contribution towards achieving

national climate action targets, including those set out in the Programme for Government

2025 (which commits to achieving a 51% reduction in greenhouse gas emissions from 2018

to 2030 and net-zero emissions no later than 2050) and the Climate Action Plan 2025 (which

includes a legally binding reduction in sectoral emissions by 75% by 2030).

86. In addition to the proposed electricity transmission development’s potentially

significant contribution to the achievement of the national climate targets, it offers capacity

to address issues identified in relation to security of electricity supply.”

96. Of course (as explained earlier in this judgment) the court is not at large in terms of

discretion, but one has to factor in at some level the question of proportionality between any breach

and the consequences of that. In the climate emergency context where the need for additional

renewable infrastructure is urgent to meet immediate climate targets in the interests of human and

other life and avoiding catastrophic change to the environment and the long-term functioning of

society, that has to be a factor – in support of values with considerable legal, ECHR, EU,

constitutional and international law support, to be weighed against potential errors particularly if

they veer towards the technical or procedural end of the spectrum. That is not to undermine the

rule of law – on the contrary, public respect for the law is weakened if technicality is fetishised above

real legal values. Law ultimately is an instrument for governing society, not a doll’s house, a parlour

game or an end in itself.

Summary

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

(i) it is settled law that an applicant’s point must be workable in order to warrant the

grant of relief;

(ii) applying such law to the facts here, the applicants’ demand for reasonable certainty

about future stages of a project, or for express consideration of future contingencies

and/or conditions in the event of such hypotheticals, is clearly unworkable;

(iii) it is settled law that an applicant must have discharged the onus of proof to

establish all facts necessary for relief;

(iv) applying such law to the facts here, the applicants have not shown that the project

overall is inconsistent with the existing agricultural use, so the fact that associated

elements of it that are modest in scale may in isolation be inconsistent with

agriculture must be viewed in that context, and nor have they shown any error in

interpretation of the CDP, any failure to consider any necessary matter or any

consideration of any irrelevant matter;

(v) it is settled law that interpretation of the plan is a matter for the court in line

with the reading taken by the reasonably intelligent non-expert, bearing in mind that

a document should be read as making sense rather than nonsense if such a reading

is available;

(vi) applying such law to the facts here, the clear meaning of the plan is that the residual

zoning in line with current authorised use is distinct from and far less prescriptive

than the formal Agricultural AG zoning, and in the absence of anything prescriptive

a project such as this cannot be regarded as a material contravention of a general

objective to permit existing uses;

(vii) it is settled law that regard but non-compliance with something to which only

regard but not compliance has to be had does not give rise to legal infirmity;

(viii) applying such law to the facts here, even if the project is inconsistent with the

agricultural use in the sense of the CDP, that does not give rise to invalidity because

the commission did not misinterpret the plan and did have regard to it;

(ix) it is settled law that a project can be consented in stages – that being so it

axiomatically follows that there will always be some uncertainty about later stages

of a multi-stage project requiring future consents, and consideration of how to

address that is within the decision-taker’s evaluative judgement;

(x) applying such law to the facts here, there is no unlawfulness arising from the sub-

station and grid-connection being consented first or otherwise arises under this

heading;

(xi) it is settled law that judicial review is a discretionary remedy; and

(xii) applying such law to the facts here, if counter-factually there was an error, it would

be disproportionate to quash the permission on the basis of any error of a primarily

procedural or technical nature.

Order

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

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by the time and in the manner set out below, the

foregoing order be perfected forthwith thereafter on the basis of no order as to costs

(including no order as to any reserved or adjourned costs or costs not otherwise

dealt with);

(iii) the foregoing proposed order be subject to contrary written legal submission or any

consequential application supported by a written legal submission, such submission

to be delivered within 7 days, with replies by other parties within a further 7 days;

(iv) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in this judgment may be addressed pursuant to O. 103

r. 40(4) RSC; and

(v) the matter be listed at 09:30 on Monday 27 April 2026 to confirm the foregoing.