Judicial review dismissed as applicant failed to prove illegality, merely disputing planning merits.

[2026] IEHC 286

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000595]

BETWEEN

JOHN WALSH

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

ENDA QUINN AND OONAGH MCELHINNEY (BY ORDER)

NOTICE PARTIES

Date of impugned decision: 20 March 2025

Date proceedings commenced: 6 May 2025

Date of main hearing: 3 March & 27 April 2026

Date draft judgment circulated: 29 April 2026

“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 …”: per Lady Hale in R (Cart) v. Upper Tribunal [2011]

UKSC 28, [2012] 1 AC 663 at para. 47.

JUDGMENT of Humphreys J. delivered on Friday 8 May 2026

1. As the Supreme Court has recently emphasised (Amariei v. Chief Appeals Officer [2026]

IESC 22 (Unreported, Supreme Court, 25 March 2026) at para. 1 per Donnelly J.), judicial review

“is not concerned with the merits of the decision; it is concerned with its legality” (see also 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). In Amariei at para. 96 per Donnelly J., the Supreme Court

took the opportunity to re-emphasise that “the onus of proof must lie on an applicant for judicial

review”. And in a number of decisions, the Supreme Court has emphasised that in effect the law

does not favour unworkable interpretations (see Waltham Abbey/Pembroke Road Association v. An

Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (§43 per Hogan J.; MacMenamin, Charleton,

O’Malley and Baker JJ. concurring) and further caselaw referred to below). Applying those principles

here, while one can make a case in favour of the merits of the applicant’s proposed glamping

development here, the question is whether illegality in the refusal has been demonstrated given that

the major flaw, as seen from the commission’s point of view, in the unsuitability of the development

site from a vehicular access perspective. That isn’t something that readily lends itself to being

addressed by conditions or reconfiguration of the development, so far as I could immediately see,

and the parties didn’t volunteer too many promising avenues in that regard either. That situation is

unfortunate for the applicant, and I appreciate his position as someone wanting to provide a business

on his property for which he anticipates some demand, but the question for the court is whether the

commission’s rejection of the application has been demonstrated to be unlawful.

Geographical context

2. The proposed development (https://www.pleanala.ie/en-ie/case/319124), as per the

submitted public notices, comprises the change of use from residential to recreational camping site

and the construction of six cabins for the purpose of short stay accommodation, a gravel access

path, waste-water treatment system and ancillary site works. The gross floor area of the proposed

works is stated as being 180 m2. Water supply is served by an existing well. Proposed wastewater

management includes the provision of a Kingspan Biodisc system. Site access for potential guests

is via water taxi across the lake. A Natura impact statement (NIS) was submitted to the planning

authority with the application.

3. The site, which has a stated area of 0.410 ha, is situated circa 6.2 km to the north of Killaloe

on the western shore of Lough Derg, within the townland of Rahena More, Ogonnelloe, Co. Clare.

The overall holding contains a detached single storey dwelling with detached garage. The property

is served by a gated vehicular access on the R463. The front boundary of the site is formed by a

block wall and timber fence. A jetty with two berths is located to the north-east of the site. The

entrance to the site is approximately at: https://maps.app.goo.gl/RsDrUMForgZydwzr8.

Facts

4. On 16 June 2023, the applicant submitted an application to Clare County Council seeking

planning permission for the development. In addressing the reason for the decision by the

commission to refuse a previous application for similar glamping accommodation with proposed

vehicular access and car park, due to a contravention of objective CDP 8.5 of the Clare County

Development Plan 2017–2023 (the old CDP) aimed at protecting the carrying capacity of strategic

regional roads such as the R463 and a finding of traffic hazard, the application cover letter from HRA

Planning stated the following:

“There is an existing access point onto the R463 Strategic Regional Road to serve the existing

residential dwelling on site. It is not proposed to use this access point to serve the proposed

development. The proposed development is car-free with access only permitted via water

taxi or bicycle or to those walking/ trekking in the area. It is thus submitted, that Objective

CDP 11.14 is no longer relevant in the context of the development proposal. The proposed

development, at operational stage, would not result in increased use of the existing access

point onto the R463 and would not result in additional traffic movements at this location.”

5. The council sent a request for further information on the NIS submitted with the application,

and in relation to the proposed travel arrangements for the site. A response to that request was

prepared by the applicant and received by the council. The response included an updated NIS. In

the cover letter from Roy O’Shea, architect, the applicant’s response to the query arising from the

proposed transport arrangements is set out as follows:

“With regards to the efficiency of the proposed travel arrangements of same we see no

issues arising for the long-term sustainability as there is good public transport available

passing the campsite and the water access will be the main attraction for the campsite, each

booking will automatically include arrival by boat and departure by boat. Bicycles will be

available at the campsite along with canoes and paddle boards.

With regards operating the campsite, I intend to fully operate and run the campsite myself

full time.

The visitors to the campsite will be people who want to get away from the hustle and bustle

of life including driving, also people who have a keen interest in the outdoors and exploring

what Lough Derg has to offer.

CCTV will cover the campsite, the entrance to the campsite and entrance to existing dwelling.

CCTV will be in operation 24/7 with up to sixty days recording available which can be viewed

by Clare County Council on request.”

6. The council granted permission for the proposed development in a decision dated 2 February

2024. Condition 6 of the grant of permission stipulated access to the glamping units had to be in

accordance with the proposals received by the council outlined above.

7. Two third parties, who had made submissions opposing the development to the council,

lodged appeals to the grant of permission with the commission on 22 and 23 February 2024

respectively. The council made observations on the appeals by letters dated 19 and 27 March 2024

respectively. The applicant made an observation on the appeals to the commission by letter dated

13 March 2024. The commission appointed an inspector in the ordinary course to consider the

application, to conduct a site investigation and to prepare a report with recommendations for the

consideration of the commission.

8. A site inspection took place on 12 February 2025, although, perhaps not ideally, the

inspector did not request access to the site itself but rather viewed it from the outside.

9. The inspector prepared a report, dated 25 February 2025. The inspector assesses “Transport

Matters” at inter alia §7.7 of the report and acknowledges that a contravention of objective CDP 8.5

of the old CDP – in place at the time of the applicant’s prior application was the sole reason for the

refusal of same by the commission. The report further acknowledges that “The proposal, as stated

above, provides for a car-free development with arrivals to the campsite by boat, bus, cycling or

walking.” The inspector then assessed transport matters at §§7.7–7.14 of the report and makes a

finding that “it has not been adequately demonstrated to me that such a proposal would not lead to

an intensification of the existing entrance on site and subsequent increase in traffic on this strategic

route…”.

10. The inspector goes on to find that the proposal would result in increased traffic on the R463

in breach of policy objective CDP 11.14 of the CDP, which broadly mirrors objective CDP 8.5 of the

old CDP, and recommends that permission be refused.

11. The commission direction dated 14 March 2025, outlined that the commission decided to

refuse permission generally in accordance with the recommendation of the inspector. The impugned

order was then made on 20 March 2025.

Procedural history

12. The applicant issued proceedings on 6 May 2025, by way of an originating statement of

grounds and an affidavit sworn by the applicant.

13. The applicant was granted ex parte leave to apply for judicial review on 26 May 2025.

14. The matter was listed for mention on 30 June 2025 for directions.

15. On 3 November 2025, the matter was listed to fix a date, and a hearing date of 3 March

2026 was assigned.

16. The respondent filed a statement of opposition and verifying affidavit of Mr Robert Brophy

on 4 November 2025.

17. The applicant delivered its written legal submissions on 23 December 2025.

18. The matter was listed for callover on 9 February 2026, although the respondent’s

submissions were outstanding at that point.

19. The respondent delivered its written legal submissions on 17 February 2026.

20. The matter was listed on 23 February 2026 for callover, and papers were in order on that

date.

21. The matter was heard on 3 March 2026. At the hearing it emerged that the successful

appellants to the commission had not been given notice of the proceedings. That omission is

inappropriate – someone whose appeal results in the decision remaining unchanged doesn’t

necessarily suffer irreparably by reason of lack of notice of such a challenge, but someone who has

emerged victorious as a result of their application or appeal being allowed shouldn’t read about the

victory being taken away from them when they open the newspapers. Such a person is an affected

party who requires to be served with proceedings in any event, but in fact Practice Direction HC137

now requires all persons whose appeals resulted in a contested decision to be put on notice, although

that was subsequent to these proceedings being issued. The matter was then adjourned for mention

to 9 March 2026 to enable proper service to be put in hand.

22. Following service on the appellants to the commission, there was no response from Ms

McElhenny. Ms Quinn put forward some views in writing but did not formally participate in the

proceedings. The applicant then wanted to put forward evidence that the new owners of the

adjoining property (to whom Ms Quinn sold her lands) did not share her objections.

23. When the matter returned to court for resumed hearing on 27 April 2026, this affidavit was

accepted on a de bene esse basis for what it is worth, simply as a statement of fact. The two

appellants to the commission were formally joined as notice parties for procedural correctness and

in case there would be any future change in position as to getting involved in the proceedings.

24. 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.

25. On 29 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.

26. 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.

27. 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 required 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).

28. 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.

29. The deadline for such comments from the parties was to be 16:00 on Tuesday 5 May 2026.

The applicant made some helpful clarifying points. The commission pointed out a typographical

error.

Relief sought

30. The reliefs sought are as follows:

“(1) An Order of certiorari, by way of judicial review, to remove for the purposes of it

being quashed the Order of the An Bord Pleanála (‘the Board’) dated 20th day of March 2025

bearing reference number ABP-319124-24 refusing permission for the development sought

by the Applicant.

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

persons similarly situated and/or of the legal duties and/or legal position of the Board as this

Honourable Court considers appropriate.

(3) If necessary, an order for the discovery of documentation which is or has been in

the power, possession or procurement of other parties hereto and which is relevant to any

issue in these proceedings;

(4) Further and/or other Orders or relief;

(5) Liberty to apply;

(6) Liberty to file further affidavits; and

(7) An Order that section 50B of the Planning and Development Act 2000 as amended,

and/or ss.3 and 4 of the Environment (Miscellaneous Provisions) Act 2011, and/or article 9

of the Aarhus Convention apply to the within proceedings.

(8) The costs of these proceedings.”

Grounds of challenge

31. The core grounds of challenge are as follows:

“1. The Order of the Board dated 20th March 2025 (‘the Board Order’) is invalid and

unlawful in circumstances where the Board failed to determine the Applicant’s application

for planning permission on its own merits, and instead decided the application based on a

presumption that the Applicant would not operate the development in accordance with the

plans and particulars set out in the application documentation, contrary to law and otherwise

than in accordance with the constitutional principles of fair procedures.

2. The Board Order was arrived at in error of law in circumstances where the Board

failed to decide the Applicant’s application on its own merits, and instead presumed that the

development would be carried out otherwise than in accordance with the plans and

particulars submitted, thereby failing in its statutory obligations under ss.34 and 37 of the

Planning and Development Act, 2000 (‘the 2000 Act’).

3. In determining the Applicant’s application based upon the presumption that the

development would not be carried out in conformity with the plans and particulars submitted

with the application, including any imposed condition restricting access to the development

by road, the Board acted irrationally, unreasonably and took account of irrelevant

considerations in reaching its determination.

4. The Board’s decision was reached contrary to the principles of fair procedures in

circumstances where the Inspector’s analysis was incomplete where all aspects of the

development proposal were not fairly taken into account, and/or the consideration of the

Inspector was influenced by an unfair and/or irrational presumption that the proposed

development would only be feasible by having car access, and that any car access could not

be managed and would lead to intensification of transport movements.

5. Further or in the alternative, the Board failed to give adequate and/or appropriate

reasons for the conclusion that the proposed development required car access, other than

speculative suppositions as to what might motivate guests of the proposed development.”

The impugned decision

32. The impugned decision provides as follows:

“Decision

REFUSE permission for the above proposed development in accordance with the reasons and

considerations set out below.

Reasons and Considerations

Having regard to the locational context of the site, removed from existing services and

facilities, it has not been adequately demonstrated to the Board that the proposed glamping

development comprising of short-stay, tourist accommodation with access primarily by boat

transfer would be a reasonable means of access to the site which could be practically

enforced by the developer, and that the existing entrance off the FR463, a designated

Strategic Route, would not be used for such purposes. The use of the existing entrance for

such purposes as well as the intensification of the activity for pick-up/drop off journeys and

service vehicles would result in additional traffic movements at this location. CDP11.14 of

the Clare County Development Plan 2023-2029, restricts development on Strategic Routes

to certain criteria; namely development of strategic importance, dwellings for established

landowners and developments within settlement boundaries where the 50 kilometres per

hour speed limit zones apply, in order to maintain and protect the carrying capacity and

efficiency of roads. It is considered that the proposed development would endanger public

safety by reason of traffic hazard due to the additional traffic turning movements that would

be generated at a point where the general speed limit of 80 kilometres per hour applies and

would, if permitted, set an undesirable precedent for other similar developments in the

vicinity. The proposed development would, therefore, be contrary to the proper planning

and sustainable development of the area.”

Workability of any proposed project

33. As noted above, the law does not favour unworkable interpretations: Ashbourne Holdings

Ltd v. An Bord Pleanála [2003] IESC 18, [2003] 2 I.R. 114, [2003] 2 I.L.R.M. 446 (Hardiman J.;

Keane C.J., Murray, McGuinness and Fennelly JJ. concurring); Waltham Abbey/Pembroke Road

Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (§43 per Hogan J.;

MacMenamin, Charleton, O’Malley and Baker JJ. concurring); Heather Hill Management Company

CLG v. An Bord Pleanála [2022] IESC 43, [2024] 2 I.R. 222, [2022] 2 I.L.R.M. 313 (§106 et seq.

per Murray J.; O'Donnell C.J., O'Malley, Woulfe and Hogan JJ. concurring); Save Cork City

Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 (inter alia, §47

per Woulfe J.; Dunne, Charleton, O’Malley and Hogan JJ. concurring).

34. 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).

35. Whether a project is workable or not is almost obviously something that needs to be

considered. This has been an issue in caselaw arising in relation to conditions, but it applies more

generally. I accept the commission’s submission on the issue of the relevance of the enforceability

of any permission (emphasis added):

“4. … In particular, this argument conflates enforcement—which is primarily a matter for the

planning authority to which certain planning enforcement functions are given by statute—

with the concept of enforceability. It is well-established as a matter of law that the

enforceability of a planning condition—such as Condition no. 6 of the planning authority’s

decision at first instance here —is a legitimate, relevant and, indeed, necessary planning

consideration: see (i) the ‘Development Management, Guidelines for Planning Authorities,

June 2007’, at, inter alia, section 7.3; (ii) OPR Practice Note PN03 Planning Conditions,

October 2022, at, inter alia, Figure 1.1; and (iii) Ashbourne Holdings Limited v An Bord

Pleanála [2003] 2 IR 114, at p. 123. Logically, if the enforceability of a planning

condition is a relevant consideration, so too must be the enforceability of any in-

built restriction on use proposed as part of the plans and particulars of a proposed

development.

5. Enforceability in this respect arises at a number of levels: first and foremost, whether

the applicant for permission himself can practicably or reasonably enforce any stipulation or

restriction advanced as an integral part of the proposed development; and, secondly and

more broadly, whether the planning authority or members of the public can enforce it. Here,

as is clear in particular from the wording of the Commission’s Order, the Commission

considered that significant issues arose even at the first of these hurdles in that it had

legitimate and rational concerns about whether the proposed access by boat transfer ‘could

be practically enforced by the developer’. Contrary to what the Applicant suggests, this is

not peremptorily to reject the Applicant’s bona fides, but, instead, is to make a planning

judgement on the workability of the proposal.”

36. In McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 8 July

2025), I made the point at para. 169 that in the light of the presumption against unworkable,

unenforceable and contradictory readings of legislation, it would be illogical to read a general power

to impose conditions as extending to imposing conditions which the applicant for permission can’t

satisfy, in particular by reason of not controlling land the control of which would be required to

satisfy the condition concerned.

37. The Supreme Court in Ashbourne Holdings Ltd v. An Bord Pleanála [2003] IESC 18, [2003]

2 I.R. 114, [2003] 2 I.L.R.M. 446 endorsed the development management guidelines insofar as they

included a proposal that conditions should be “enforceable” as being “a reasonable commonsense

view of s. 26” of the 2000 Act – per Hardiman J. at para. 30.

38. If the commission’s power to impose conditions does not extend to unworkable conditions,

its power to grant permissions should not extend to unworkable permissions either.

39. The overall concept of workability includes two essential concepts:

(i) practicality/practicability – can it be set up to work in the manner proposed; and

(ii) enforceability/sustainability – once set up, can it continue to work as envisaged.

40. In the present case, both were concerns for the commission but particularly enforceability.

41. The applicant incorrectly and implausibly characterises the commission’s concerns as an

impermissible trespass into the enforcement functions of planning authorities. That however is the

fallacy of reading a decision as incorrect when a correct reading is available. The focus of her

analysis was simply as to whether the project would work in practice as proposed.

42. That was if I may respectfully say so not just a lawful consideration but an absolutely

necessary one. The jurisdiction of planning decision-takers does not extend to allowing impracticable

and unworkable proposals dependent on conditions that the decision-taker thinks are unenforceable.

Domestic law issues

Core ground 1 – alleged presumption of non-compliance

43. Core ground 1 is:

“1. The Order of the Board dated 20th March 2025 (‘the Board Order’) is invalid and

unlawful in circumstances where the Board failed to determine the Applicant’s application

for planning permission on its own merits, and instead decided the application based on a

presumption that the Applicant would not operate the development in accordance with the

plans and particulars set out in the application documentation, contrary to law and otherwise

than in accordance with the constitutional principles of fair procedures.”

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

“Applicant’s position

22. The Commission failed to have any, or any adequate regard to the four sets of

submissions made by the Applicant. The Applicant’s application documentation made it

expressly clear that access to the six proposed waterside ‘glamping’ pods would be the sole

access available to guests accessing the site via watertaxi departing from Kincora Harbour

to the two-berth jetty on site, or arriving by existing bus services, on foot, or on bicycle.

This was stipulated as being the ‘unique selling point’ of a holistic, natural and sustainable

experience in a car free environment. Several letters of support were included in the

application from various providers of water transport on Lough Derg.

23. The Commission failed to determine the Applicant’s application based on the content

of the application documentation and submissions. Instead – contrary to the content of the

Applicant’s submissions - the Inspector and Commission determined that the Applicant would

essentially act in bad faith and not only permit access by road vehicle to the site but actually

facilitate that access by using his own private vehicle to transport guests.

24. The Commission did not in fact reject the Applicant’s application, but instead rejected

an application for road access that was not before it. The question of whether the Applicant

would abide by the access stipulations of planning permission was one of enforcement, and

did not legitimately arise when the Commission was determining the merits of the application

for permission.

Respondent’s Position

25. The Commission did not fail to have regard to the Applicant’s submissions. Same

are expressly referenced and addressed. The Inspector’s Report and Commission decision

comprise de facto evidence that the Commission had regard to same. The nature of the

proposed development, including the proposed ‘car-free’ operation, is accurately recorded

and repeatedly cited therein, in addition to a detailed assessment of the proposals for

alternative forms of transport, including water taxi, public transport, walking and biking.

26. The Inspector and Commission did not fail to determine the application based on the

application and submissions before it or reject an application ‘that was not before it’. Rather,

in assessing the planning merits of the proposal, the Commission properly considered the

likely use and likely effects of the use of the proposed development in practice—an

appropriate and, indeed, necessary element of deciding whether planning permission should

or should not be granted—and disagreed with the Applicant as regards workability of the

proposed mode of access. In this regard, the Applicant’s case amounts in substance to a

suggestion that the Commission was obliged to accept or assume that no cars would access

the site of the proposed development because this was the basis on which the proposal was

put forward and there is no basis in law for this proposition.

27. As regards the conclusions of the Commission on the workability of the proposal

advanced, the IR and decision cite a number of factors considered in reaching this

conclusion, including, that guests would likely attempt to gain access via the existing

vehicular entrance off the R463 and even where refused entry would then have to merge

back on to the roadway, resulting in an intensification of use of the entrance. The

Commission further concluded that the Applicant had not provided sufficient evidence that

the proposed development could feasibly be run as a car free site or that it complied with

Objective CDP11.14 of the CDP. These conclusions were open to the Commission on the

evidence before it and were without error. The Applicant’s claim comprises an impermissible

merits-based challenge to the Commission decision. The Applicant has further failed to

demonstrate any irrationality in the said decision.

28. Insofar as the Applicant suggests that the Commission determined that the Applicant

would act in bad faith, this is denied. The Applicant erroneously conflates the Commission’s

determination that it was not practically possible to limit access in the manner submitted by

the Applicant with a conclusion viz. the Applicant’s bona fides. However the wording of the

decision makes clear that the Commission had legitimate and rational concerns regarding

the Applicant’s ability to prevent guest cars, taxis and /or service vehicles attempting to

access the site using the vehicular entrance on the R463, and the effect of same on road

safety and the carrying capacity of the road even where such vehicles are refused access by

the Applicant.

29. As regards the proposition that the ‘question of whether the Applicant would abide

by the access stipulations of planning permission was one of enforcement, and did not

legitimately arise when the Commission was determining the merits of the application for

permission’, it is respectfully submitted that this is erroneous. In particular, this argument

conflates enforcement with the concept of enforceability. It is well-established as a matter

of law that the enforceability of a planning condition—such as Condition no. 6 of the planning

authority’s decision at first instance here—is a legitimate, relevant and, indeed, necessary

planning consideration. Logically, if the enforceability of a planning condition is a relevant

consideration, so too must be the enforceability of any in-built restriction on use proposed

as part of the plans and particulars of a proposed development. Enforceability includes

enforceability by the Applicant himself as well as, more broadly, whether the planning

authority or members of the public can enforce a requirement of the planning permission.

The Commission considered that significant issues arose even at the first of these levels in

that it had legitimate and rational concerns about whether the proposed access by boat

transfer ‘could be practically enforced by the developer’.

30. The Commission decision enjoys a presumption of validity and the Court is obliged

to read the decision in a way that renders it valid, once such a reading is open to it.

31. This ground of challenge does not provide a valid basis on which to quash the

decision.”

45. The basic reason why this point fails is that a planning decision-taker is allowed and indeed

required to consider the workability of any given proposed development. The fact that an applicant

for permission contends that permission should be granted on the basis that the project will be

operated in a particular way does not preclude the decision-taker from evaluating the likelihood in

practice that the project will be operated in that way. A decision-taker is not required to treat all

questions of workability as ones for the enforcement process and indeed it would be reckless to do

so. The effect of such a doctrine would be to incentivise the permitting of unworkable projects.

46. The fact that the applicant has divided the site by red-lining only about half of it by way of

an anvil-shaped development site, separate from his dwelling, does not have the effect of making

the commission bound to regard the site as entirely insulated from car-based transport. Any

planning decision needs to consider at some level how the development integrates into the receiving

environment, and a red line is not a magic wand to prevent that exercise from taking place.

47. The applicant here has not demonstrated that the commission’s decision fell outside what

was reasonably open to it in regard to the foregoing. Their concerns were objective and were not

based on any improper presumption of bad faith as alleged – to conceptualise this as impugning the

applicant’s bona fides is the wrong way to look at it. Even assuming best intentions, a decision-

taker still has to ask herself how likely it is that such best intentions are going to work out.

48. For example, submissions that were made by other parties to the commission raise objective

issues that call into question the workability of the applicant’s proposals. The absence of a food and

drink offering at the site is an objective factor militating in favour of the likelihood of generation of

travel and thus potentially of car-based travel. The location near a bend in the road is also an

objective factor.

49. Nor is this a question of not considering the applicant’s material. The material and

submissions were considered. Doing that doesn’t give rise to an obligation to accept such material.

Very often, and here I’m afraid, an allegation of failure to consider a submission is just a merits-

based disagreement dressed up in legal language.

50. Insofar as the applicant combs through the inspector’s report and the decision to take issue

with aspects of the wording, even assuming that the wording could be improved in some way

(something which admittedly is possible in the case of virtually all human writings – certainly that’s

been my experience), any such matters don’t affect the essence of the reason for the refusal. All of

the foregoing essentially disposes of the alternative complaint that the commission had legally

reprogrammed the inspector’s approach by way of its defence of the proceedings. It is no great

secret that clever post-hoc legal reprogramming of sub-optimal administrative decisions does

happen on occasion, but this isn’t such an occasion. The decision here is robust on its own terms.

51. There is ultimately an overall air of unreality about the applicant’s case. The commission,

consistent with the issues raised in the appeals to it, the development plan and EU law, must consider

the effects of the development – that means the effects in practice. Those effects include whether

guests will in fact be prepared to drive past the property for a further 6 km to park at Kincora harbour

and then get a boat back to it (para. 7.9 of inspector’s report), whether they will be in a position to

time their arrivals to fit with the scheduled boat services, how exactly the proposed boat

access/egress will work, how it will work at night or in inclement weather, how guests will access

food given that the nearest shop is over 7 km away, whether they will order takeaways and if so

whether delivery vehicles will be pulling up outside the property, whether taxis will be coming and

going and stopping on the road at the property for delivery/pickup of guests or for outings, given

that guests will not be accessing with their own cars, and so on. All of these were totally relevant

and valid (indeed one might say absolutely necessary) considerations, and the commission acted

well within its zone of evaluation in considering that matters of this type militated against the grant

of permission. The possibility of a nine-seater vehicle as a courtesy transport facility or in

emergencies would not be an all-purpose answer to the issue of traffic impacts and also could

undermine the suggestion that the car access would only be for residents of the house. The

suggestion that the inspector makes some sort of starting assumption of disbelief and a starting

assumption as a base point that guests will arrive in some manner other than proposed, or that

other methods of arrival are excluded entirely from consideration, is unfortunately the wrong way

to characterise all of this. The inspector and/or commission are not obliged to accept anything put

forward by any process participant, and must apply their own judgement. That’s all that happened

here. Doing so is not to be misconceived as an unlawful form of prejudgement, error, wrongful

assumption or conjecture, impermissible disbelief and so on. When the inspector talks about the

lack of proximate services being the ”downfall” of the proposal, that is not supposition or conjecture

as submitted, or anything remotely like it. It is the exercise of evaluative judgement on the merits,

well within the bounds of lawfulness and reasonableness. “Downfall” (suggestive as it is of Oliver

Hirschbiegel’s 2004 film, Der Untergang) is simply a stylish, literary or poetic term for the fact that

the project as proposed just could not withstand that sort of interrogation.

Core ground 2 – alleged failure to decide on merits

52. Core ground 2 is:

“2. The Board Order was arrived at in error of law in circumstances where the Board

failed to decide the Applicant’s application on its own merits, and instead presumed that the

development would be carried out otherwise than in accordance with the plans and

particulars submitted, thereby failing in its statutory obligations under ss.34 and 37 of the

Planning and Development Act, 2000 (‘the 2000 Act’).”

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

“Applicant’s position

32. The Commission is under an implied statutory obligation pursuant to s.37 of the

Planning and Development Act 2000 to decide applications submitted to it on their own

merits.

33. The Decision is invalid in circumstances where the Commission failed in its statutory

obligation to determine the Applicant’s application on its merits. It is clear from the portions

of the Inspector’s Report quoted above, and the impugned Order which followed her

recommendation and reasoning, that the Commission refused to accept the bona fides of

the Applicant’s application in respect of the proposed transport arrangements.

Notwithstanding the detailed proposals, the commitment to require each reservation to

simultaneously reserve water transport, the letters of support from water transport

providers, and the binding condition attached to the appealed grant of permission from the

County Council, the Commission refused to accept that the development would be operated

in line with the terms of the application.

34. The Commission determined the application on the assumption that the Applicant

would deliberately permit access by guests by private car and actively provide a private taxi

service himself in breach of Condition 6 and of his own written commitments not to do so.

In so doing, the Commission effectively assumed that the Applicant would not only act in

bad faith in the future but that he had made his application based on car-free access in bad

faith also.

35. The acceptability of the principle of the proposed development should have been

determined by the Commission on its own merits. The question of the compliance of the

Applicant with the terms and conditions of any permission, including any condition restricting

access to water transport, would have been a matter for planning enforcement by the County

Council. The Respondent has no enforcement jurisdiction in this context and to have

incorporated such enforcement, by pre-determining that outcome, embodied in a consent

decision was unlawful.

Respondent’s Position

36. This core ground of challenge is a further iteration of core ground 1 and also

comprises an impermissible merits-based challenge to the Commission decision. The

Commission repeats, mutatis mutandis, its position in response to Core Ground 1.

37. There was no failure on the part of the Commission to determine the application on

its merits or any breach of statutory duty under s.37 of the PDA or otherwise.

38. The Commission did not refuse to accept the Applicant’s bona fides or to determine

the application on its merits. In reaching its decision, the Commission made a planning

judgment on the workability of the proposed development and it was entitled to conclude

that it was not satisfied that the Applicant could practically enforce the proposed access

arrangements at the site of the proposed development in the manner advanced in the

application. In short, the Commission considered that it was unlikely that the Applicant

would be able to prevent prospective guests, taxis and/or service vehicles attempting to

gain access to the proposed development via the vehicular entrance off the R463, even

where such access was refused. The Commission is entitled to curial deference in respect of

its assessment in this respect and the Applicant has failed to point to any irrationality capable

of undermining the decision.

39. This ground of challenge does not provide a valid basis on which to quash the

decision.”

54. The basic reason why this point fails is that, as the commission submits, this is a further

iteration of core ground 1 and fails for similar reasons. The application was decided on its merits.

Considering the workability of the proposal is not a failure to do that.

Core ground 3 – alleged irrationality and irrelevant considerations

55. Core ground 3 is:

“3. In determining the Applicant’s application based upon the presumption that the

development would not be carried out in conformity with the plans and particulars submitted

with the application, including any imposed condition restricting access to the development

by road, the Board acted irrationally, unreasonably and took account of irrelevant

considerations in reaching its determination.

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

“Applicant’s position

40. For completeness, this ground incorporates Core Ground 2, and is also pleaded on a

standalone basis. The Commission took account of irrelevant considerations in determining

the Applicant’s application based on assumed facts and provisions of the County

Development Plan which simply had no relevance to the content of the actual application

before it.

41. The assumption of guest access via private car led to a series of further irrelevant

considerations, and in particular Policy Objective 11.14 of the Clare County Development

Plan 2023-2028. That provision of the County Development Plan simply had no relevance

to the actual content of the application which was before the Commission.

Respondent’s Position

42. The Commission repeats, mutatis mutandis, its position in response to Core Grounds

1 and 2.

43. Objective 11.14 of the CDP was a relevant consideration. Development plan

objectives are a mandatory consideration for the Commission per s.34(2)(a)(i) of the PDA,

by dint of s.37. The Commission had a statutory obligation to have regard to the relevant

CDP objectives in consideration of the principles of proper planning and sustainable

development.

44. This is a proposed development of a tourist accommodation facility at what is

currently a single dwelling with road access via the R463. The Applicant’s suggestion that

the Commission erred in law by having regard to Objective CDP11.14 is patently

unsustainable – it amounts to an argument that the Commission was not even allowed to

consider potential impacts on the R463, simply because the application was being advanced

on the basis of car-less access. The Inspector and Commission clearly considered—and were

entitled to consider—that it was necessary to have regard to the potential effects of the

proposed development on the R463 and determined that the Applicant had failed to

demonstrate how the proposed development could be operated in a manner consistent with

Objective CDP11.14 of the CDP.

45. This ground of challenge does not provide a valid basis on which to quash the

decision.”

57. The basic reason why this point fails is that, as the commission implies, this is also covered

by the previous grounds. If, as is the case, the workability of the project was a legitimate and

indeed required consideration, it follows that the commission then had to assess the planning policy

ramifications of the state of affairs that the project would, in practice, create. Thus, since the

workability of the project was a relevant consideration, the potential use of car-based access was a

relevant consideration and CDP provisions relevant to car use were consequentially also relevant

considerations.

Core ground 4 – fair procedures

58. Core ground 4 is:

“4. The Board’s decision was reached contrary to the principles of fair procedures in

circumstances where the Inspector’s analysis was incomplete where all aspects of the

development proposal were not fairly taken into account, and/or the consideration of the

Inspector was influenced by an unfair and/or irrational presumption that the proposed

development would only be feasible by having car access, and that any car access could not

be managed and would lead to intensification of transport movements.”

59. The parties’ positions addressing both core ground 4 and core ground 5 as recorded in the

statement of case are summarised as follows:

“Applicant’s position

46. Contrary to fair procedures, and in ignoring the actual development proposal ‘for a

car-free development with arrivals to the campsite by boat, bus, cycling or walking’, the

Inspector engaged in an analysis which entirely disregards the stated nature of the proposed

development and concludes that it must, in effect, be a car-based development proposal.

The Inspector then proceeds to offer subjective reasoning as to why that must be the case.

The Inspector further expresses concerns as to how a car-free proposal would be enforced.

In so finding, the Inspector has unlawfully and/or unfairly disregarded the principal nature

of access to the scheme, which is core to the nature of the scheme, a niche tourism product

which is fully supported in principle by the development plan.

47. The Inspector further failed to give reasons for her exclusion from consideration of

the exact profile of guest upon which the application was predicated. She fails to give

adequate reasons for her implied finding that the content of the application regarding guest

access had been made in bad faith, and that the Applicant knowingly intended to breach the

car-free access condition imposed by the County Council by providing a private-taxi service.

48. The Applicant in this case is unable to discern from the inadequate reasons of the

Commission why his detailed application, supported by multiple submissions from his

advisors, his detailed response to the Request for Further Information from Clare County

Council, further supported by written confirmation of support from local business and

stakeholders, and which was accepted by Clare County Council, was rejected out of hand as

being inoperable and effectively having been submitted in bad faith. The reasoning provided

by the Inspector is utterly subjective, speculative, and does not approach the standard

required by case law.

49. An applicant is entitled to have reasons which go beyond a statutory agency saying

‘we just don’t believe you’ when an application is rejected, not based on its actual content,

but based on an assumption that the applicant will not abide by his commitments and the

conditions imposed on his development by law. The flaws in the Commission’s assessment,

reasoning and explanation for its decision are in conflict with the principles of fair procedures,

the duty to give adequate reasons, and render the impugned Order void.

Respondent’s Position

50. This ground of challenge is effectively a restatement of core ground 1 under the

guise of a reasons challenge. The Commission relies on its position as outlined above in

respect of the balance of the core grounds mutatis mutandis in opposition to core grounds

4 and 5.

51. Specifically, as regards the reasons challenge, the Commission decision is clear on

its face. The decision must be read holistically and in light of the totality of the information

before the Commission, including in conjunction with the IR. The IR provides a detailed

treatise of the assessment of the proposed development and the reasons why the Inspector

reached the determination that it could not be practically operated in the manner contended.

The IR and Commission decision meet the applicable legal standard for reasons and are

capable of being clearly understood.

52. Further and insofar as it is suggested that the decision amounts to a statement that

the Commission does not ‘believe’ the Applicant, this assertion suffers from the same fatal

flaw as the other grounds of challenge in that it erroneously presumes that the Commission

is obliged to accept the particulars of the access arrangements submitted for the proposed

development – namely, that no cars would assess the site – without interrogating and/or

evaluating same by way of its planning judgement. There is simply no basis in law for such

a proposition.

53. These grounds of challenge do not provide a valid basis on which to quash the

decision.”

60. The basic reason why this point fails is that, as the commission submits, this is just a

restatement of core ground 1 under the guise of reasons. Since the commission was entitled and

required to consider workability, it did not breach fair procedures by doing so and, anticipating the

next point, did not fail to give reasons once one properly understands the nature of the exercise it

was engaged in.

61. No infirmity under this heading has been demonstrated.

Core ground 5 – reasons

62. Core ground 5 is:

“5. Further or in the alternative, the Board failed to give adequate and/or appropriate

reasons for the conclusion that the proposed development required car access, other than

speculative suppositions as to what might motivate guests of the proposed development.”

63. The parties’ positions as recorded in the statement of case are summarised above at core

ground 4.

64. The basic reason why this point fails follows again from the disposition of core ground 1. It

is something of an applicant’s fallacy to characterise anything short of absolute certainty on the part

of a decision-taker as being mere speculation. A decision-taker has to decide – a process that

involves evaluation of matters that may fall short of certainty. An educated, informed, evaluation

is not to be equated with speculation although unsympathetic commentators will inevitably

incorrectly represent it as such. This is a point I made in a different context in Minogue v. Clare

County Council [2021] IECA 98 (Unreported, Court of Appeal, 29 March 2021) – it’s all too easy to

mischaracterise an educated estimate as being equivalent to picking something out of the air, but

the two are completely different. The former is a valid and lawful process and often the only

workable option.

Summary

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

(i) it is settled law that the applicant must have discharged the onus of proof to

establish that the decision fell outside the range of options lawfully open to a

decision-taker;

(ii) applying such law to the facts here, the applicant has not overcome that onus;

(iii) it is settled law that judicial review is concerned with the legality rather than

merits of a decision;

(iv) applying such law to the facts here, the applicant’s complaints amount to a merits-

based disagreement with the decision, albeit an understandable disagreement;

(v) it is settled law that legislation must be given a workable interpretation, from which

it follows that a planning decision-taker is entitled and required to consider the

workability of the project; and

(vi) applying such law to the facts here, the commission did not err in considering the

workability of the project in any of the various ways contended for here.

Order

66. 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 any reserved or adjourned costs not otherwise dealt with);

(iii) the foregoing proposed orders as to costs, directions or the form of the order be

subject to contrary written legal submission 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 on Monday 18 May 2026 to confirm the foregoing.