High Court dismisses leave to appeal on wind farm planning application, citing acte clair and lack of EU law dispute.

[2026] IEHC 300

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000120]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE

PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

RURAL RESIDENTS WIND AWARE AND ENVIRONMENTAL GROUP, JOHN NOLAN AND

CATRIONA NOLAN

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

WHITE HILL WIND LIMITED

NOTICE PARTY

(I)

(No. 3)

Date of impugned decision: 21 November 2023

Date proceedings commenced: 24 January 2024

Date of principal judgment: 6 November 2025 and 6 March 2026

Date of leave to appeal hearing: 29 April 2026

Date draft judgment circulated: 11 May 2026

JUDGMENT of Humphreys J. delivered on Friday 15 May 2026

1. The renewable energy project here was deemed acceptable by the inspector and the

commission and the applicants have had a full hearing on the merits over two modules. Furthermore

the applicants will have a further day in court in terms of declaratory relief in the No. II case (a point

that was not pleaded in support of certiorari so does not affect the outcome here).

2. The way the system is supposed to work is that when significant questions of principle arise,

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

principal judgments attempted to apply the already established principles emerging from Supreme

Court jurisprudence relevant to the pleaded issues, particularly the following:

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

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

(Unreported, Supreme Court, 31 July 2014) at paras. 3.8-3.15;

(ii) 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, 9

Hogan J., 27 January 2025) (O’Donnell C.J., Murray, Collins and Donnelly JJ.

concurring), para. 62;

(iii) 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);

(iv) a decision should not be read as invalid if a valid reading is reasonably available:

see consistently with that 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);

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

decisions, see analogously Walsh v. Jones Lang Lasalle Ltd [2017] IESC 38

(Unreported, Supreme Court, O’Donnell J., 1 June 2017) at para. 47 (O’Malley J.

concurring); per 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. 37;

(vi) 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;

(vii) relief whether by judicial review or otherwise should only be granted where the point

is not academic or hypothetical: Cahill v. Sutton [1980] I.R. 269; Mohan v. Ireland

and the Attorney General [2019] IESC 18, [2021] 1 I.R. 293, per O’Donnell J. at pp.

301-302 (MacMenamin, Dunne, Charleton and O’Malley JJ. concurring); Odum v.

Minister for Justice [2023] IESC 3, [2023] 2 I.L.R.M. 164 per O’Donnell C.J.

(Charleton, Woulfe, Hogan and Murray JJ. concurring);

(viii) the onus of proof is on the applicant: 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 (Denham J.) at p. 743; 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;

(ix) in the context of a challenge to an environmental assessment, the onus of proof to

show a defect generally lies on the applicant: see 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);

(x) the standard is the obligation to provide the main reasons on the main issues: per

Finlay C.J. (Griffin, Hederman and Lynch JJ. concurring) in O’Keefe v. An Bord

Pleanála [1993] 1 I.R. 39, [1992] I.L.R.M. 237 at p. 76; Faulkner v. Minister for

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

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

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

(Clarke C.J.) (O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring);

(xi) there is no obligation to provide a discursive, narrative consideration or to “engage

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

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

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

Kearns and Finnegan JJ. concurring); per Clarke J. (Fennelly and MacMenamin JJ.

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

Court, 1 May 2012) at para. 6.9;

(xii) reasons may be found anywhere, not necessarily in the decision itself, for example

in an inspectors report: Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 I.R.

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

and Finlay Geoghegan JJ. concurring); Sherwin v. An Bord Pleanála [2024] IESC 13

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

Baker and Murray JJ. concurring) at para. 129;

(xiii) judicial review is discretionary within established doctrinal boundaries for such

discretion: Kenny v. Dublin City Council [2009] IESC 19 (Unreported, Supreme

Court, 5 March 2009) at 79 per Fennelly J. (Macken and Peart JJ. concurring); 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);

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;

(xiv) an applicant does not have an entitlement to make any and every possible argument

particularly where such an argument is premised on the rights of some other person:

Cahill v. Sutton [1980] I.R. 269 (O’Higgins C.J.) (Henchy J., Griffin, Kenny and Parke

JJ. concurring); Conway v. Minister for Housing, Local Government & Heritage & Ors.

[2024] IESC 34 (Unreported, Supreme Court, 23 July 2024) per O’Donnell C.J.

paras. 6-10, per Hogan J. paras. 11-14 (O'Donnell C.J., Dunne, Collins and Donnelly

JJ. concurring).

3. These are not new points of law, let alone significant new points. I referenced such principles

in the substantive judgments. The applicants implausibly postulate no less than seven points of

exceptional public importance arising from the decision.

Judgment history

4. In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (I) [2025]

IEHC 600 (Unreported, High Court, 6 November 2025), the proceedings dismissed in respect of

grounds other than the balance of core grounds 1 and 8A.

5. The remainder of the grounds were dismissed in Rural Residents Wind Aware and

Environmental Group v. An Coimisiún Pleanála (I) (No. 2) [2026] IECH 135 (Unreported, High Court,

6 March 2026).

6. In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (II)

[2025] IEHC 601 (Unreported, High Court, 6 November 2025), proceedings challenging the

amending permission were dismissed in respect of grounds other than core grounds 6 and 7.

7. In Rural Residents Wind Aware and Environmental Group v. An Coimisiún Pleanála (II) (No.

2) [2026] IEHC 136 (Unreported, High Court, 6 March 2026), core ground 7 was dismissed and core

ground 6 was dismissed in part, with the balance regarding declaratory relief concerning objectives

for the SPA requiring further submissions.

8. The applicants now seek leave to appeal.

Procedural history

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

leave to appeal, dated 26 March 2026. The opposing parties delivered replying submissions and the

matter was heard on 29 April 2026.

10. 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.

11. On 11 May 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.

12. 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 the party prefers an alternative to a formal written

judgment as proposed, and if the party so considers, whether that party considers

that the entire matter or some specified part of it can be disposed of (a) by order

without a reasoned judgment, or (b) by ex tempore reasons without a written

judgment;

(ii) informing the court, assuming that the court proceeds with a formal judgment, as

to whether the party wishes to propose any corrections to the draft such as:

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

(b) any redaction of personal or other information that a party wishes to request;

(c) in the event that the court proposes to refer to any matter (whether factual,

legal (including reference to authorities or other legal material), obiter comment

or otherwise) not referred to at the hearing, any comment as to why such

reference is not relevant or otherwise should not be included or why such matter

if included should not lead to the proposed conclusion;

(d) any other matter in the draft judgment that the party considers should be

omitted;

(e) any matter not included in the draft judgment that the party considers should

be added to it (including where the party considers that procedural, factual or

legal points not set out in the judgment should be addressed or where the party

considers that reasons for any aspect of the decision are not set out or where

an overall ground is disposed of but detail of the ground or sub-ground is not

expressly addressed, or where an issue arose the disposition of which would be

obiter but on which the party concerned considers that there would be a benefit

in the court expressing a view); and

(f) 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.

13. It is then entirely a matter for the court as to whether to give judgment with or without

amendment including any amendment that appears appropriate to the court whether arising from

submissions or not. 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).

14. 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.

15. The deadline for such comments from the parties was to be 16:00 on Wednesday 13 May

2026.

General principles on leave to appeal

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

for the grant of leave to appeal are as follows:

(i) The point must properly arise

(a) The question must fall within the pleadings: Concerned Residents of

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

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

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

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

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

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

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

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

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

misinterpreted the decision of the Board granting the permission in

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

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

alleged misinterpretation of a specific administrative decision will usually

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

While the presumption of validity attaching to administrative decisions

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

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

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

of public importance”.

(b) The question must actually arise on the facts and should not be

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

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

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

(c) The question raised must actually have been argued by the would-be

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

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

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

(d) While not an absolute rule, the question should be determinative in some

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

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

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

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

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

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

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

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

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

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

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

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

who represent themselves, prefer the comfort of focusing exclusively on

the debatable ruling or judicial comment reinforcing a sense of grievance

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

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

(e) The question must accurately reflect the judgment and must not be

an addition, exaggeration or distortion launched for the purposes of

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

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

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

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

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

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

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

amount to a matter of general public importance”.

(f) The application for leave to appeal should be made within time,

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

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

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

(g) The question should be specific and should identify something specific that

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

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

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

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

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

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

(ii) The point must be one of law

(a) The point cannot be an essentially factual question such as construing

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

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

(b) Relatedly, the question should not be one of application of law to

particular facts but rather one of the substance, content and

interpretation of law. Questions about the application of established

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025).

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

(a) The question must not be fact-specific arising in the particular context

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

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

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

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

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

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

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

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

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

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

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

administrative decision will usually be case specific and will not present

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

attaching to administrative decisions represents an important legal

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

any uncertainty and the application of the presumption to a particular

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

(b) Advancing the proposed question should resolve doubt rather than

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

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

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

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

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

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

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

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

interest suggests an appeal is not warranted”.

(c) The application for leave to appeal should engage with the rationale of

the judgment being appealed against and provide a plausible basis

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

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

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

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

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

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

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

2025).

(d) The fact that an official body is seeking leave to appeal is a relevant factor

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

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

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

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

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

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

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

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

caselaw.

(e) The fact that a point is “novel” is not determinative as to whether a point

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

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

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

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

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

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

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

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

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

(f) The mere inclusion of a request for a reference to the CJEU does

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

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

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

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

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

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

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

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

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

(iv) The public importance must be exceptional

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

it must also be established that the importance is exceptional.

(v) An appeal must be in the public interest

(a) The context is the objective of the Oireachtas in seeking finality, certainty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in these proceedings”.

(b) Any assertion of problems in practice caused by a judgment must be

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

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

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

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

argument that alleged uncertainty in the law was creating alleged

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

evidence before the High Court that the quarry industry was being

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

issues that do not meet the necessary criteria.

The proposed questions of alleged exceptional public importance

18. The applicants’ proposed questions are as follows:

(i) “In the absence of hearing any evidence in relation to noise, in the context of a review

under the EIA Directive and under national law, to what extent is a Court entitled to

conclude that having regard to a separation distance of 886m from turbine to dwelling

house, the noise at such property ‘in terms of volume and quality should not be

significantly more intrusive than a washing machine at a less vigorous stage of its

cycle?’”

(ii) “How is such finding to be reconciled with the findings of the High Court in other nuisance

proceedings involving windfarms and in particular, the decisions of the Court in Webster

-v- Meenacloghspar Wind Limited 2024 IEHC 136, and Byrne -v- ABO Energy 2025 IEHC

330. Neither of these decisions proceeded on the basis of assessment of noise impacts

based on distance from turbines alone or at all. The question therefore arises as to

which is the correct approach to the assessment of wind turbine noise.”

(iii) “Where a developer applies for planning permission for a Strategic Infrastructure

Development (‘SID’) under s.37E of the Planning and Development Act 2000 on third

party lands without the consent of the owner of the lands or without any statutory right

that is capable of lawfully operating in the absence of the owner’s consent, is the

planning permission void ab initio? Is the Court obliged to ask itself ‘whether the breach

has any real impact on the rights of a given applicant’, as occurred in these proceedings?

Is the Court entitled to find in such circumstances that a subsequent amendment of the

invalid decision by s.146B has the effect of ‘curing’ the invalidity that would otherwise

have resulted in certiorari?”

(iv) “When submissions have been made to a planning process on behalf of persons with

enhanced sensitivities to impacts from the development, what is the extent of the

obligation on An Coimisiún Pleanála under s. 37G(2) of the Planning and Development

Act, as amended, to consider information furnished under section 37F(1) ?”

(v) “What is the relationship between the standard Condition 1 in a planning permission,

and other conditions subject to which planning permission has been granted, and is there

always a primary obligation to complete the development in accordance with the plans

submitted regardless of the permission conditions?”

(vi) “Where the ‘public concerned’ includes a dependent person with a special sensitivity to

visual and aural stimulus such as shadow flicker and turbine noise, what is the

‘appropriate manner’ of assessing the direct and indirect significant effects of a wind

farm on population and human health within the meaning of Art. 3(1) of the EIA

Directive?”

(vii) “How is the ‘sort of impact’ that public policy should accept as precluding the grant of

permission to be determined in circumstances where the decision maker was on notice

of the hypersensitivity of a member of the public to noise and does this have a

relationship to the ‘sort of impact’ that is actionable in tort?”

Do the points properly arise?

19. The first question obviously does not arise. The premise is of course misleading insofar as

it asserts lack of evidence – there was evidence about anticipated noise impacts in this case and

distances between dwellings and turbines in this case. But more generally the complained-of text

in para. 1 was merely an obiter, scene-setting comment to give some slight context by way of

comparison as to distance and noise. This was not some sort of de novo analysis of the planning

application on my part – it was an attempt to put some context to which readers might relate on the

findings of the commission. As the developer correctly submits:

“29. The Applicants then criticise the observations by the Court that the distance of 886m

means that the likely impacts on the Third Named Applicant are not likely to be significant

(§1 and 71 of the judgement). However, the Applicants completely fail to realise that these

are not value judgements made by the Court but rather by the Commission itself – it was

the Commission that considered all of the scientific evidence and concluded that there would

be no significant effect on any of the Applicants.”

20. The distance of the nearest house from the turbines was evidence in the case. The reference

to a commensurate distance in Dublin city was simply a comparable example from totally accessible

public domain material. The applicants don’t suggest that that measure of distance is anything other

than totally accurate.

21. The complaint in oral submissions that “there was no evidence whatsoever” about the

distance from Chancery Place to the GPO is, I’m afraid, frivolous. This was just an attempt to

translate an abstract distance in metres into something many readers can understand. Such

comparisons are the stuff of everyday exposition – similar to what might be referred to if an American

judge said that Ireland was about the size of South Carolina, Israel was the size of New Jersey, or

the UK was the size of Alabama. Obviously that doesn’t require formal evidence on oath about the

size of Alabama and is not an assertion that the UK and Alabama or Israel and New Jersey are

comparable for all purposes (there is little to be gained by particularising why that might not be the

case) – likewise I was not comparing the locus in quo to Dublin City for all purposes or comparing

turbines to washing machines for all purposes, and no reasonable reader coming without an agenda

would make such a patently untenable assumption.

22. Similarly as regards noise, the applicants positively stated at leave to appeal stage that

washing machines (I could have picked any number of other noise sources for context) operate at

at least 50dB which is louder than the noise the turbines should (my term) generate per the 2006

guidelines (which is generally 45 dB as set out in those guidelines, which were in the case). In other

words the applicants agree – and expressly said – that washing machines were louder than the

ministerial guideline standard for turbines. So the comparison I made was totally valid. Again the

applicants don’t have anything to demonstrate that my comparison is anything other than totally

accurate in that regard. The guidelines were in evidence in the case, and you don’t need to know

much about either decibels or household appliances to know that many appliances are much louder

than 45 dB. That’s about the height of it. This was just an attempt at contextualisation.

23. As an attempt at contextualisation, this was small potatoes compared to what the Supreme

Court considered acceptable in O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023]

2 I.R. 488, [2022] 1 I.L.R.M. 421.

24. In that case, O’Donnell C.J. (Irvine P., MacMenamin, O’Malley, Baker and Murray JJ.

concurring) recognised the legitimacy of the court referring to materials – including factual

materials – not cited by parties, in referencing Hogan J.’s dissenting conclusions (emphasis added):

“94. In support of these conclusions, Hogan J. marshals an impressive combination of

historical information from the early years of the State, quotations from a large range of

Irish authorities, and has regard to the decisions in other jurisdictions such as Roman

Catholic Diocese of Brooklyn v. Cuomo 592 US – (2020), Leigh v. Commissioner of

Metropolitan Police [2020] EWHC 527 Admin (‘Leigh’), a decision of the French Conseil d’État

of 6 July, 2020 Confédération Générale du Travail et autres, and the decision of the German

Constitutional Court of 16 April, 2020, De: BV ferG: 2020 VK 2020415.1BVV082820. The

judgment also contains some illuminating quotations from Irish and international authorities

such as the judgment of Mr. Justice Jackson in Railway Express v. New York (1949) 336 US

106. The judgment also shows an impressive understanding of the public health

position in respect of Covid-19 over the course of the pandemic in various

countries, and of significant events in this jurisdiction.

95. It bears observation that, almost without exception, these materials, instances and

references were not mentioned in the judgments appealed against, the submissions, written

or oral, for this Court, and so far as I can see, in the extensive submissions made to the

High Court and the Court of Appeal, or indeed, anywhere else in this case. I do not suggest

that this, and in particular such reference to legal material, is in itself by any means a fatal

objection. Judges are appointed after extensive practice and build up considerable

experience in their role. It is, I think, to be expected that they will bring to any case the

legal knowledge which they have amassed. Our jurisprudence would be poorer, and our

decisions less firmly based, if judges were expected to approach each case as if they knew

nothing of the law. This case is undoubtedly enhanced by the wealth of knowledge brought

to bear on these matters in Hogan J.’s judgment. In particular, his wide-ranging and

nuanced consideration of the development of knowledge of the transmission of Covid-

19 as the pandemic developed and his consideration of the constitutional interests

involved perhaps highlights the fact that it appears that measures were adopted on the

advice of NPHET, which itself, while containing considerable technical expertise, does not

appear to contain any person with expertise in constitutional rights or indeed human rights

more broadly, and it is not apparent that the process of converting that advice into guidelines

and sometimes binding regulations involved any separate assessment of these matters.”

25. Again without overplaying the point, this is a case I am dealing with after processing dozens

of previous wind farm cases and looking at considerable quantities of material on such matters.

26. If that wasn’t enough, and over and beyond what happened in Waters, this was a case where

(as recorded in the substantive judgment) I gave the parties a draft of the judgment and an

opportunity to correct matters. One of the headings on which comments were envisaged was

“identifying points that the court proposes to address but that the parties consider it unnecessary to

address”. The applicants made no comments whatsoever about the obiter contextualisation in para.

1 of the judgment - their focus was on their costs instead. So their complaint now is of dubious

merit.

27. However, leaving aside the irrelevance of their point as a basis of appeal, there is something

incredibly tell-tale about the applicants’ complaint about this.

28. People who make good points welcome contextualisation, because good points look even

better when placed in context.

29. By contrast, people who make unfounded points live by generalisation, abstraction, drama,

metaphysics. They recoil from any attempt to put things in context, make abstract complaints

tangible, or add granular factual detail.

30. The fact that the applicants place such emphasis on my modest attempt to reality-check

their many dramatic claims in this case, and make this objection the centrepiece of their attempt to

pursue appellate avenues, is immensely revealing about the lack of substance of the case and the

forensic dynamic involved which recoils from the daylight of scrutiny.

31. The decontextualised nature of this and other points is highlighted by the commission in

response (emphasis added):

“Whereas geographical distance is a matter of judicial notice and the level of noise at the

relevant dwellings was before the Commission (and assessed by the Inspector and the

Commission), the Applicants did not submit any scientific information on the alleged

noise nuisance that would allegedly be experienced at any relevant dwelling and

cannot use a certificate application to impugn the validity the Notice Party Developer’s EIAR

and associated materials or the Commission’s conclusion that there would be no significant

effect on the environment.”

32. Overall, the applicants completely misconstrue the obiter comments at para. 1 – as the

commission correctly points out (emphasis added):

“The impugned analogy was illustrative, not evidential. The Court did not substitute its own

assessment, as the Applicants appear to implicitly (and incorrectly) suggest; the Court

simply found no basis to impugn the Commission’s conclusions.”

33. The second point does not arise. There is no contradiction between caselaw on predicted

effects in a consenting context, or caselaw on actual effects in a nuisance context. Those cases deal

with different things.

34. The third point does not arise because this complaint is totally moot. The minor error

concerned has been resolved and no longer arises. As the commission correctly states (emphasis

added):

“15. The Applicants’ formulation of this issue is incorrect in law and in fact. The Court

did not hold that an invalid decision was ‘cured’ as tendentiously asserted in point (c) as

framed. The High Court did not identify an error and then decide to refuse relief because

the error was ‘harmless’. The Applicants certificate submissions (e.g. §28 et seq) are simply

incorrect in this regard and proceed on a false premise. The Court’s No.1 judgment

proceeded on a pragmatic assumption that left over the question as to the

implications for the grant of planning permission until the section 146B issue had

been resolved (§60). Further, the issue is fact-specific: it turned on the particular

circumstances of the case.”

35. The fourth, sixth and seventh point do not arise. The principal judgment was premised on

an assumption rather than a finding that the rights of a non-party could be advanced. As the

applicants are now trying to take advantage of that favourable assumption for the purposes of

proposed appeal, I need to clarify that that was not a well-founded assumption. If one wants to

advance the rights of a minor in a case, the minor must be a moving party through a next friend.

In the absence of that, the rights of a non-party can’t be a basis for certiorari. That is civil procedure

101.

36. Even assuming I am wrong about that, the applicants did not in fact plead some obligation

to argue for an elevated duty of consideration of submissions or an elevated EIA duty on the basis

that they relate to a minor and/or person suffering from a medical condition. So this is simply an

impermissible reprogramming of the applicants’ case after it has been dismissed. As the commission

correctly submits:

“… the Applicants did not plead or argue that persons with heightened sensitivities require

an enhanced consideration/treatment of their submissions or enhanced obligation as to

reasons.”

37. The fifth point is totally academic and bears no meaningful relationship to any issue on which

the proceedings turn. There is no proper basis to raise the issue now proposed. As the notice party

submits:

“33. However, the relationship between Condition 1 and Condition 9 formed no part of

the Applicants’ case and the alleged point of law is therefore necessarily an entirely

generalised musing on the relationship between general and specific planning conditions

which are completely unrelated to the judgement itself.”

Are the points ones of law?

38. The points are generally essayistic and confused, mixing fact with purported law and creating

new abstract conundra for the anticipated interest of appellate courts. Such an exercise is not a

point of law arising from the judgment in the sense of caselaw on leave to appeal. In substance the

points are largely fact-specific, albeit dressed up as points of law.

Are the points of public importance?

39. The points are not of public importance in any sense relevant to the law on leave to appeal.

40. The applicants majored on the alleged conflict between decisions upholding development

consents for wind projects and decisions holding wind farm operators liable for nuisance. But that

is comparing apples and oranges for the reason stated – there is a massive difference between

assessing anticipated impacts of something at consent stage and actual impacts in the operational

phase.

41. I specifically said that consent for a project does not preclude a nuisance action – that is

totally consistent with the recent jurisprudence on civil liability.

42. The developer here accepts that. So any alleged problems in that regard don’t arise in the

present case. As put in submissions by the developer:

“13. Insofar as the Applicants relied on the nuisance jurisprudence in question (b) in its

pleaded case it related to a contention (raised at §42 of their submissions and not in the

Statement of Grounds) that a noise limiting condition ‘will be relied upon by the developer

in any future prosecution as a method of operation deemed suitable for the limitation of

noise’. The argument was therefore whether a grant of permission could be used as a

defence to a nuisance action and had nothing to do with the question now raised as to how

wind turbine noise should be measured.

14. Without prejudice to that contention, as made very clear by this Court in Nagle View

Turbine Aware Group v An Bord Pleanála a grant of planning permission does not insulate

a development from a subsequent nuisance action (§99) and the Developer expressly

accepted in its submissions (§70) that ‘In any event, the Applicants retain all their rights to

institute whatever private law proceedings they wish to in the event of any established

nuisance and the grant of permission does not preclude them from doing so or curtail their

common law or statutory remedies (including under s.108 of the Environmental Protection

Agency Act 1992).’

15. There is no point of law here, still less one of public importance. The Developer’s

evidence in relation noise impacts was not controverted by the Applicants and was ultimately

accepted by the Commission (see §6.11.16 of the Inspector’s Report). The Applicants raised

no issue as to methodology of noise assessment in their pleaded case and, in any event,

retain their rights in relation to any nuisance or private law action they may wish to institute.”

43. As regards the claims of impact on private property rights, these are totally overblown and

do not in fact arise in practice. The commission correctly summarises the position:

“16. There is no basis for suggesting systemic uncertainty or ‘public policy chaos’ (§30,

Applicants’ certificate submissions). There is also no basis for suggesting that potential risk

of land ‘sterilisation’ arises (§31, Applicants’ certificate submissions). Such assertions are

hyperbolic speculation and without factual foundation. The claim as to sterilisation misstates

the effect of a grant of planning permission insofar as it claims that a permission ‘sterilises’

a private property interest. It does not. The grant of permission does not of itself entitle

the beneficiary of same to proceed with the development, as is clear from s.34(13) and

s.37H(6) of the 2000 Act. The difficulty for the Applicants is that any assertion of problems

in practice caused by a judgment must be backed up with evidence: there is no such

evidence in this case – which a further reason as to why certification is not appropriate (per

Massey (No.4) [2025] IEHC 30 at §6(v)(b)). As per Friends of Killymooney Lough (No.2)

[2025] IEHC 576 at §28(iv) ‘The alleged practical ramifications are typically hypothetical or

speculative and/or the proceedings are not a suitable vehicle to explore them.’”

44. As regards reasons, there is no uncertainty in the law given that this has been addressed on

multiple occasions by the Supreme Court. Despite nearly every other applicant in judicial review

trying their hand at a reasons challenge in a sort of endless Groundhog Day of alleged lack of clarity

on this issue, the law is clear and settled and was simply applied here to particular facts. The reason

I didn’t essay a detailed treatise on the Supreme Court jurisprudence in the principal judgment was

that I did not understand the law to have been in issue. The applicants have only tried to make an

issue of it after their case has been dismissed (not having pleaded or previously argued that some

super-special duty of reasons arises here).

45. As regards whether conditions of a permission should be read harmoniously or conflictually,

it is not in the public interest to cast doubt on well-established principles of interpretation. The

commission’s perceptive submissions are worth quoting at length on this:

“20. As to point (e), which purports to relate to planning conditions, same is not

appropriate for s.50A(7) certification. The insuperable problem for the Applicants is that the

alleged issue was neither pleaded nor addressed. The Court simply applied established

principles: planning decisions should be read in a way that makes sense and renders same

valid rather than invalid where possible, and conditions interpreted harmoniously rather than

in conflict (see §§48(iv),(v) and 91-92 of the No.1 judgment). No novel legal question

arises, still less any point of law of exceptional public importance.

21. The Applicants’ reliance on Kelly Dunne v. Guessford Ltd [2021] IEHC 583 is

misplaced. There is no conflict with the said judgment of Simons J. (delivered in the context

of s.160 planning injunction proceedings).

22. The Applicants’ mere assertion in that regard is, tellingly, and in a manner that is

procedurally inappropriate, only advanced for the first time in the context of this certificate

application, not having been previously argued (see Condon (No.2) [2026] IEHC 136 at §13;

Hoctor (No.2) [2026] IEHC 174 at §25).

23. As stated in Hoctor (No.2) [2026] IEHC 174 at §20 and apposite here, ‘Insofar as

there is an artificially manufactured claim of inconsistency with other jurisprudence, there is

no such inconsistency.’ In this regard, insofar as conflict is alleged by reference to Kelly

Dunne [2021] IEHC 583 that case related to a different context and in any event no conflict

is apparent at all. The claimed conflict of jurisprudence is a contrived issue and unfounded

on even a cursory analysis of both judgments.

24. Kelly Dunne v. Guessford Ltd [2021] IEHC 583 concerned the interpretation of a

planning permission in the context of s.160 planning injunction proceedings regarding

alleged unauthorised development. The High Court (Simons J.) considered whether

materials in planning application documents could alter the terms of a granted planning

permission. Simons J. held that they could not, noting in particular that the terms of a

permission are public, whereas application documents are not afforded the same status.

The respondent (to the s.160 application) argued that its activities were authorised, relying

on references in its environmental report and on the terms of Condition 1 requiring

compliance with submitted plans. Simons J. rejected this argument, finding that the

permission clearly and consistently related only to the recycling of construction and

demolition waste, and did not extend to other categories such as commercial, industrial, or

household waste. Simons J. emphasised that planning permission cannot be expanded

through vague or incidental references in application documents; the use must be clearly

identified (see §81, §§100-101). This differs materially from the present case. There,

Simons J. refused an attempt to broaden the scope of a permission through Condition 1 and

imprecise references in supporting materials. The Court was not engaged in construing the

interaction between conditions within the permission itself. By contrast, the issue here

concerned the proper interpretation of the SID permission by examining the relationship

between Conditions 1, 6, and 9 in accordance with well-established principles.

25. In reality, the argument advanced by the Applicants on this contrived, non-existent

conflict of jurisprudence and purported uncertainty in the law merely invokes the fallacy of

reading things in the most erroneous way possible in subjective pursuit of relief, when an

alternative harmonious reading of the respective judgments is available and indeed obvious.

Further, whereas it does not add anything to the point, the Applicants omit to refer to the

fact that there was a judgment from the Court of Appeal in that case: Kelly Dunne [2022]

IECA 223 (wherein the appeal by the respondent to the s.160 application was rejected by

the Court of Appeal).

26. In reality, in referencing Kelly Dunne v. Guessford Limited [2021] IEHC 583, the

Applicants adopt a directly comparable approach to that which the Court rejected in Massey

(No.4) [2025] IEHC 30 at §17 et seq:

‘17. One move straight out of the appellant’s handbook is to produce new authority and to

claim a conflict of jurisprudence (hence unlocking the magic door of the matter not being

acte clair and an appeal being necessary to resolve doubt). The problem of course is that

typically the doubt is stimulated artificially for the purpose.

18. Any two judgments picked at random can be made to look contradictory if you approach

them looking for contradiction. By contrast, the common law method is to try to read

caselaw as fitting together if such a reading is reasonably available.

19. The applicant produces the judgment of the EFTA Court of 21 May 2025 in Case E-18/24,

The Norwegian State v Greenpeace Nordic, Nature and Youth Norway, claiming conflict, but

misunderstands this judgment. […]

27. Furthermore, the interpretation of a particular permission is inherently fact-specific,

by reference to well established legal principles, and does not give rise to a general point of

law. In this connection, as the Court stated in Condon (No.2) [2026] IEHC 136 at §10(iii)

‘The question must not be fact-specific arising in the particular context of a particular case

– rather it must transcend the facts in order to create a point of public importance’.”

46. The contended-for and unpleaded argument for some form of super-special EIA duty

regarding impacts on particular persons is not a matter of public importance even if it properly arose

because it is simply contrived for the purposes of the case, not being workable in any event and

having no prior support in anything whether we are talking about domestic, EU or international legal

materials, as well as being a ius tertii in the absence of the appropriate applicant concerned. As the

commission submits:

“The Applicants seek to impose a novel obligation to conduct bespoke assessments for

particular individuals. No such requirement exists in EU or domestic law.”

47. On the alleged duty for special treatment of the submissions relating to the non-party minor

here that is alleged to have been breached in a way that gives rise to certiorari, the notice party

correctly identifies the multiple problems with that belated attempt to introduce a point that does

not properly arise from the pleaded case:

“Arising from the judgement

42. It is one of the remarkable features of the Applicants’ submissions that no effort is

made to relate the alleged points of law to the specifics of the pleaded case and how that

pleaded case was treated of in the judgement in respect of which a certificate is sought.

That criticism is applicable generally but is particularly acute in respect of this purported

question.

43. No effort is made to correlate the question with the judgement – instead all the

Applicants observe is that ‘This point of law arises partly from…’ the approach adopted by

the Court in relation to shadow flicker (§51) and the approach adopted by the Court to the

Wind Energy Guidelines 2006 (§52). Both points are then prayed in aid to make the general

argument that a person with special needs is a part of the ‘public concerned’ for the purposes

of Article 3(1) of the EIA Directive and, without any explanation as to why this is the case,

entitled to a different or elevated consideration for the purposes of EIA. There is precisely

no engagement with the judgement contrary to the requirement identified by Humphreys J.

in Condon:

‘While a leave to appeal application is in one sense premised on the view that the decision

may be incorrect, that does not relieve a would-be appellant from actually engaging with

the logic and reasoning of the judgment as opposed to merely repeating his or her position…’

44. Furthermore, and respectfully, the Applicants never made this argument in their

pleaded case. The Applicants did criticise the Commission for the alleged paucity of the

treatment of the Third Named Applicants’ submission and/or the alleged insufficiency of the

reasons given but not on the basis that the Commission had somehow excluded that

Applicant (or any party) from the ambit of the public concerned or that the EIA Directive

required an elevated or different type of assessment for persons with special needs. This

issue was not pleaded and unsurprisingly features nowhere in the judgment.

45. Neither the Commission nor the Court reached a conclusion that a person with

additional needs fell outside the ambit of the assessment required by Article 3(1) of the EIA

Directive – rather the conclusion reached by the Commission and upheld by the Court was

that there would be no significant effect on any person. As with the questions above, the

Applicants have chosen to seek certification of points of law that were not pleaded and do

not form any part of the judgement.”

Are the points of exceptional public importance?

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

Is an appeal in the public interest?

49. An appeal is not in the public interest. It is not in the public interest for an appeal to go

forward on such a confused and reprogrammed basis as the appellants attempt here, or for them to

advance points that depend on the rights of a person not a party to the proceedings based on points

that were not in fact argued.

50. There is also a public interest in finality in planning matters. As noted above, the project

was deemed acceptable by the inspector and the commission and the applicants have had a full

hearing on the merits over two modules, and the applicants will have a further day in court in terms

of declaratory relief in the No. II case.

51. More generally, the urgent public interest in renewable energy infrastructure militates in

favour of this matter not going further.

52. I would generally endorse the commission’s submission on public interest:

“PUBLIC INTEREST

41. There is no public interest in an appeal on any of the seven points. The Applicants

have failed to establish how certification of either point is in the public interest. No actual

affirmative public benefit or public interest has been identified or relied upon by the

Applicants in this regard. In this connection, the Applicants’ submissions consist of

reagitating already rejected arguments, advancing unpleaded assertions, making new

arguments for the first time in the certificate context, and a clear misinterpretation and

failure to engage with relevant findings in the Court’s No.1 judgment. Where, as here, the

law that was actually applied by the Court in determining this particular case is not uncertain,

the public interest suggests an appeal is not warranted.

42. It is respectfully submitted that the public interest militates against allowing an

appeal, for the same reasons as set out in Carrownagowan (No.3) [2024] IEHC 549 at §83

to §92, and §93(vii). As the Court concluded in that case at §93(vii) and apposite here:

‘…the public interest militates against allowing further appeal - there is a significant public

interest, now legally enshrined in various ways, in the expeditious determination of the

lawfulness of renewable energy infrastructure, and an enshrined EU law provision affording

a presumed overriding public interest in the provision of such infrastructure in some

circumstances where that conflicts with the habitats directive, and in any event, the facts of

the present case are an extremely poor basis for a proposed appeal, given the lack of

evidence on crucial points.’

43. See also Massey (No.4) [2025] IEHC 309 at §29-§34, which is consistent with the

above and supportive of the Commission’s position herein that an appeal in the present case

is not in the public interest.

44. It is also not in the public interest to certify either of the points, noting the point

made in Nagle View (No.2) [2025] IEHC 3 at §9(vii) (‘The nature of the project and the risks

of further delay are factors going to the public interest’).

45. Further, certain points made by the Court in refusing leave to appeal in Condon

(No.2) [2026] IEHC 136 at §63 apply equally to the present case:

‘63. An appeal that is based on a misunderstanding of the principal judgment in a way that

seems to “spread maximum confusion” (Hellfire Massy Residents Association v. An Bord

Pleanála [2022] IESC 38, [2024] 1 I.R. 386, [2022] 10 JIC 2402 per O’Donnell C.J. at para.

22 (Dunne, Woulfe, Hogan and Murray JJ. concurring)) is not in the public interest.’

46. In addition, as noted in Hoctor (No.2) [2026] IEHC 174 at §§27-30 and likewise

applicable in the circumstances of this case:

‘28. An appeal is clearly not in the public interest particularly having regard to the public

interest in infrastructure and renewable energy and to the non-compensatable financial

prejudice to the developer.

29. The project here was found acceptable by the inspector and the commission. The

applicants have also had a full hearing at trial level and in all of the circumstances there is

no public interest in further agitation of the applicants’ complaints given the statutory policy

of finality.

30. As regards the imperative public interest in major infrastructure including particularly

the generation of renewable energy in the context of the climate emergency, I endorse the

submission of the notice party on this issue:

“46. Fourth, there are countervailing public interest considerations at issue. The

development is an onshore wind farm which, upon completion, will provide significant

renewable energy in line with local, regional, national and EU policy. In that connection, it

is directly relevant that EU law has recognised renewable energy projects as being in the

overriding public interest (see, e.g., the discussion in Carrownagowan Concern Group v An

Bord Pleanála [2024] IEHC 549, §86 et seq). […]”’

CONCLUSION

47. There is no basis for leave to appeal in this case. The Applicants’ submissions in

support of this application fall short of asserting any point of law of exceptional public

importance.

48. This is a case where it merits recalling that the clear legislative intention is that

planning cases should generally be confined to the High Court. As noted by Barniville J. (as

he then was) in Rushe [2020] IEHC 429 at §24:

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

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

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

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

50A(7) was enacted.’

49. See also the observation of Holland J. in Monkstown Road [2023] IEHC 9 at §73

insofar as it emphasises the rare and exceptional nature of certification. Furthermore, points

that in substance concern the application of clear and well-established principles to the

particular facts of the case are not certifiable for appeal - as Holland J. made clear in

Monkstown Road [2023] IEHC 9 at §69. That point is apposite to this certificate application.

50. This is a case where the High Court’s judgment on the application for judicial review

should be final.

51. For the reasons set out in these submissions, it is respectfully submitted that the

threshold under s.50A(7) has not been met and, accordingly, the Applicants’ application for

a certificate should be refused by this Honourable Court.”

53. I would also endorse the notice party’s submission on this issue:

“Public Interest

58. The Applicants have made scattered references to the public interest in their

submissions.

59. However, the public interest is in favour of refusing the application. In the recent

decision in Moss v An Coimisiún Pleanála [2026] IEHC 175, Humphreys J. said as follows

(endorsing the developer’s submission in that case):

More generally, the delay involved in an appeal would tend to defeat the public interest in

the expeditious determination of judicial reviews brought under section 50 of the 2000 Act.

The High Court in Glancré Teoranta acknowledged that it was the intention of the 8

legislature that most planning cases will be determined in the High Court and that an appeal

will remain the exception: ‘It is clear that the statutory regime which has been devised by

the legislature indicates an interest to ensure that the planning process is not to be

hampered by a completely unrestricted access to the court which may cause harmful delays.

I am satisfied that it is a restriction to be lifted only in exceptional cases.’ 28. As set out

by Humphreys J in Massey v An Bord Pleanála (No.4) [2025] IEHC 309 at §6(v)(a) when

considering the principles which apply to the “public interest” criterion and delay: “An appeal

must be in the public interest (a) The context is the objective of the Oireachtas in seeking

finality, certainty and expedition in challenges brought by way of judicial review in planning

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

requirement that an appeal must be in the public interest: see per McGovern J. in Dunnes

Stores v. An Bord Pleanála [2015] IEHC 387, 2015 WJSC-HC 6876, [2015] 6 JIC 1805

(Unreported, High Court, 18th June 2015) at §15 and §16. See also analogously and non-

precedentially Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An

Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton,

Woulfe and Collins JJ., 27th May 2024) at para. 24: ‘The Court must have regard to the

potential impact upon the notice party of any further delay in these proceedings’.” [Emphasis

Added] 29. The nature of the project, in this case a solar farm development, and the risks

of further delay are factors going to the public interest. This particular issue was considered

by the High Court (Humphreys J.) in an application for a certificate for leave to appeal that

arose in the case of Nagle View Turbine Aware Group No. 2 v An Bord Pleanála [2025] IEHC

3): “26. On the contrary, the public interest is strongly the other way. The development will

provide significant renewable energy in line with local, regional, national and EU policy,

backed up by legal instruments referred to in the No. 1 judgment. In the context of the

climate emergency and of the need for energy independence in the light of the Russian

Federation’s full-scale criminal war of aggression against Ukraine, I agree with the notice

party that ‘it is directly relevant that EU law has recognised renewable energy projects as

being in the overriding public interest’ as stated in 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. So public interest in

favour of such projects has a legal and not merely a policy basis. 27. These proceedings

have delayed the project by almost a full year so far (with further delay a virtual certainty

as a result of the inevitable application for leapfrog leave to appeal, an application that will

take time to determine either way). There is no convincing counterbalancing reason why an

appeal would be in the public interest at all, let alone in such a way as to outweigh the

damage to the public interest of further delay in the matter. [Emphasis added] 30. The same

consideration applies with equal force to this case and the application for a certificate for

leave to appeal should be refused on the basis that an appeal is not “desirable in the public

interest”.’

60. The same concerns arise here. As identified in the Affidavit of Mr Sherry this is a

significant renewable energy project that will make a sizeable contribution to the attainment

of renewable energy targets. Furthermore there have already been very significant delays

in the project as a result of these proceedings. The impugned decision was made on 21st

November 2023 and nearly 30 months have been lost as a result of these proceedings. It

is imperative (and in the public interest) that this application is refused so that the project

can proceed.

Conclusion

61. The Court’s judgement is correct and raises no issue of principle and the Developer

have identified no point of law of exceptional public importance. The Court is respectfully

requested to refuse the Certificate sought.”

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

54. While there is brief reference to for example the EIA directive, there is in fact no developed

or properly formulated EU law point in the proposed questions.

55. Nonetheless, for the avoidance of doubt, I have obviously (and as always when an EU law

point is argued) considered any potential relevance of art. 267 TFEU. But the obligation to refer

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

2021, Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA,

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

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

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

the contrary position; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

58. In the present case, the points do not have an inherently weighty internal logic to propel it

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

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

contended for.

59. The applicant hasn’t come forward with any judgment of any court in Ireland, or in any other

member state or former member state, showing support for the EU-law related interpretations

contended for. Nor is there any judgment of the Court of Justice or an opinion of an Advocate

General creating doubt about the conclusion proposed in the substantive judgment, or even any

academic material doing so. Not a scrap of paper in a continental legal space of the best part of a

billion people. The reference procedure isn’t for any and every possible imaginative question – only

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

IEHC 378, [2023] 7 JIC 0302 (Unreported, High Court, 31 October 2023) paras. 86-87). No basis

for such a dispute has been shown here.

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

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

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

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

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

arises at the present moment in time. If doubt arises in future any error in this regard will have

been temporary and self-correcting.

Summary

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

(i) the points do not properly arise;

(ii) the points are confused and based on premises that do not arise, and, while phrased

in general terms, in reality complain about the application of uncontroversial

principles to particular facts;

(iii) the points are not of public importance;

(iv) it is not in the public interest for the matter to proceed further on such a basis; and

(v) there is no meaningful EU law point identified, let alone one on which doubt arises.

Order

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

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

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

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

appeal;

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

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

that:

(a) the proceedings be dismissed; and

(b) there be no order as to costs (including no order as to the costs of any

previous module or application in the proceedings having regard inter alia

to O. 103 r. 38(1)(b) and/or (c) RSC, or any reserved or adjourned costs

not otherwise dealt with);

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

the proceedings.