High Court dismisses leave to appeal on wind farm planning case citing acte clair and lack of public importance.

[2026] IEHC 301

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0001380]

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

(II)

(No. 3)

Date of impugned decision: 10 September 2024

Date proceedings commenced: 4 November 2024

Date of principal judgments: 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 minor amendment to a previous permission that is under challenge here has been

subjected to extensive scrutiny already – the inspector and the commission found the amendment

acceptable, and the applicants have had the benefit of two modules to challenge the decision at High

Court level. They will also have a further day in court on declaratory relief once further submissions

are delivered. The way the system is supposed to work is that when significant questions of legal

principle arise, they are decided by appellate courts, and then applied to individual cases by trial

courts. In the principal judgments, I referenced a range of well-established principles that can be

drawn from Supreme Court jurisprudence. No significant new question of law is properly raised by

the applicants now in support of their quest for leave to appeal. To allow a further appeal here

would be to engage in a form of “litigious perpetual motion” (to use a phrase of O’Donnell J. (Clarke

and Dunne JJ. concurring) in Rooney v. Minister for Agriculture and Food [2016] IESC 1 (Unreported,

Supreme Court, 28 January 2016) at para. 3).

Judgment history

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

IEHC 600 (Unreported, High Court, 6 November 2025), proceedings challenging the parent

permission were dismissed in respect of grounds other than the balance of core grounds 1 and 8A.

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).

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

[2025] IEHC 601 (Unreported, High Court, 6 November 2025), these proceedings which challenge

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

4. 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 objectives for the SPA requiring further

submissions.

5. The applicants now seek leave to appeal.

Procedural history

6. 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.

7. 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.

8. 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.

9. 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.

10. 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).

11. 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.

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

2026.

General principles on leave to appeal

13. 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).

14. 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

15. The applicants’ proposed questions are as follows:

(i) “What is meant by the use of the phrase ‘alter the terms of the development’ in

s.146B(1) of the Planning and Development Act, 2000, and did An Coimisiún Pleanála in

this case, by permitting the development of two turbines in two new locations, ancillary

infrastructure and the felling of 8.4 acres of forestry to facilitate same, without any public

participation, stay within its jurisdiction to ‘alter the terms’ of the previously proposed

development?”

(ii) “What is the test to be used under s.146B to determine if the alteration of the terms of

a development is or is not a ‘material alteration’ and was that test properly applied in

the within proceedings?”

Do the points properly arise?

16. The first question tendentiously suggests that there is uncertainty about not just “terms”

but the whole phrase – but nobody ever suggested any alternative interpretations of “alter” or

“development” (or of “the” or “of” if it comes to that) or hinted that these were ambiguous in any

way whatsoever, let alone to a level amounting to a point of law, still less one of any, not to mention

exceptional, public importance.

17. Insofar as there was asserted uncertainty about the meaning of the word “terms”, that was

wholly contrived. The applicants postulated a logic-free and authority-free bespoke restricted

meaning of “terms” (confined to conditions and excluding the terms of the development) which was

designed to brand the decision as erroneous and to guarantee they would get certiorari and costs.

This is such a transparently inappropriate manoeuvre that it comes nowhere near even the foothills

of a point that could be said to create doubt.

18. Insofar as the first question is premised, in a tendentiously essayistic manner, on a

contention that I did not provide an answer to the meaning of the word “terms”, this is wholly

incorrect and misconceived. As the commission points out:

“18. The Applicants’ central contention (§29, Applicants’ certificate submissions), namely

that the Court failed to resolve the meaning of ‘alter the terms of the development’ is

completely unsustainable. The Court expressly addressed and resolved that issue at §§27-

29 of the No.1 judgment, holding that: (i) the statutory language of s.146B is broad and not

confined to conditions attached to a permission; (ii) the power of alteration/amendment

extends to the text of the permission; and (iii) the limiting principle is ‘materiality’ - namely

whether an amendment/alteration would have a material effect on third-party rights or a

material effect on habitats or species and if so then such an amendment is substantive and

goes beyond the powers of s. 146B or indeed s. 146A. The foregoing constitutes a clear

and definitive interpretation consistent with the express text and purpose of the provision;

not an omission as baselessly and erroneously asserted by the Applicants in their certificate

submissions. Clearly, the point made by the Applicants in this respect does not accurately

reflect the Court’s No.1 judgment. In this connection it is apposite to note that it is a

necessary implication of the principle that ‘The point of law must arise out of the decision of

the High Court’ that ‘the point of law must reflect a correct understanding of the decision of

the High Court…’ (inter alia: Monkstown Road Residents Association [2023] IEHC 9 at §9(d)).

That is particularly important in this case in circumstances where the Applicants’ certificate

submissions proffer and/or are premised on mischaracterisation and/or misinterpretation of

the Court’s No.1 judgment and without properly engaging in same or the actual basis upon

which the Court determined to refuse relief.

19. The bald assertion (§29, Applicants’ certificate submissions) that there was a

pleaded point of law that was unresolved by the No.1 judgment is not correct nor indeed is

it a statable proposition. Tellingly the unresolved pleaded point is not identified. In truth

this contention is undoubtedly an example of ‘the fallacy of appeal by increased metaphysics’

(Doyle (No.2) [2026] IEHC 207 at §24) deployed in an attempt to circumvent the failure by

the Applicants to evidentially establish their case and to discharge the onus of proof as

regards the issue of materiality.”

19. The reference to lack of public participation is purely rhetorical. Fluffing the point by invoking

the irrelevant concept of public participation adds nothing because it has no bearing on this case.

This is not a case where appropriate assessment (AA) is required. Thus we don’t get to the public

participatory rights that were pleaded to follow from that. Not only is that a conclusive answer to

the point but the applicants have not in any meaningful way even attempted either to explain why

there is even an arguable basis to say why this does not defeat their actual pleaded complaint or to

engage generally with the substantive judgments.

20. Rather the unfortunate impression given by this and the related set of questions of purported

exceptional public importance in the No. I proceedings is that they read as if the applicants leafed

through the judgments, made a list of interesting intellectual points that were stimulated in some

way by such reading, and fired that list into the system as a proposed appeal in the hope of tickling

the cerebral taste-buds of appellate courts. While one has to in one sense admire the grand

insouciance of this approach, an appeal is a formal part of a formal system, and here no particularly

strenuous attempt has been made to demonstrate basic matters such as that these points were

actually substantively argued and decided or properly arose from the actual facts, pleadings,

arguments and decision. This is litigation on the basis that every day is a new day and that losing

any particular stage is just a chance to reconfigure and reprogramme the case in some new, different

and hopefully more promising direction – litigation by perpetual motion. That isn’t criticism as such

and I don’t particularly blame any litigant for trying to see if they can improve their case in such a

manner, but no rational system could operate on the basis of a fallacy of appeal by free association.

21. In any event, the question of whether the commission went beyond its jurisdiction here is a

question of the application of law to facts. It is not itself a pure question of law.

22. Insofar as the point is to be reconfigured as one asking whether I was correct in my

interpretation of “terms”, there is simply no basis in the text, context or purpose for artificially

confining the word “terms” to mean “conditions”, merely because that suits the applicants’ attempt

to defeat the commission’s decision. This is a wholly contrived interpretation that has no substance.

23. The commission puts the question of my decision on materiality bluntly:

“per §28 of the No.1 judgment, the limiting principle is ‘materiality’ - namely whether an

amendment/alteration would have a material effect on third-party rights or a material effect

on habitats or species and if so then such an amendment is substantive and goes beyond

the powers of s. 146B. This reflects the statutory language and requires no further

elaboration.”

24. The notice party also outlines why the belated objection as to the meaning of “terms” should

be dismissed at the outset (emphasis added):

“10. In relation to the first part of the question, there is absolutely no authority for

the proposition that ‘alter the terms’ of the development means anything other

than the alteration of the terms of the development and nor was any authority or

approach to statutory interpretation advanced by the Applicants at the hearing that puts this

issue in doubt.

11. The Applicants themselves accepted in their main submissions (§6) that ‘terms’ is

defined as including a ‘condition’. This necessarily suggests that ‘terms’ includes a

jurisdiction to amend both the ‘terms’ of the grant of planning permission (i.e. the temporal

parameters of the grant) and any attached conditions.

12. Section 146B confers a power to alter the terms of any development which is the

subject of permission under the 2000 Act. This includes non-material alterations and

material alterations but, in the case of the latter, the Commission must consider whether

the proposed alteration would have significant effects on the environment. It would make

absolutely no sense if the statutory section allowed material amendments in terms but was

simultaneously confined to very minor or immaterial amendments by virtue of the Applicants’

suggested reading of ‘terms’ for the purposes of s.146B.

13. There simply is no dispute about the ambit of the word ‘terms’ and the Court

correctly disposed of this issue in very short order ‘What’s clear is that the word term includes

condition but is therefore not exhausted by condition. The text, and indeed the purpose of

the provision, does not support a conclusion that text other than conditions cannot be

amended.’

14. While the Applicants quote this at §26 of their submissions, they do not actually

engage with the finding of the Court, the basis upon which the Applicants contend that this

conclusion is incorrect or, more to the point, how this allegedly gives rise to a point of law

of exceptional public importance.

15. All the Applicants do is quote §§27-30 of the judgment verbatim and then state

(§27):

‘The Court in determining that “the text, and indeed the purpose of the provision, does not

support a conclusion that text other than conditions cannot be amended” did not resolve the

point of law of public importance raised by the pleadings. When read in the context of the

reasoning of Simons J. in Elaine Kelly Dunne v Guessford Limited [2021] IEHC 583 it is

difficult to understand how a legislative provision which allows the alteration of the

development itself, rather than simply the terms or text of a planning permission, can result

in a planning permission which is valid and enforceable. It is of significance here that the

effect of the s.146B Order was not an amendment of the text of the original planning

permission but an expansion of the planning permission to allow two new turbines in different

locations with different impacts to be substituted for other turbines that the developer

proposes to no longer construct because the landowner never granted consent for their

development. The relevant paragraphs relied upon in particular in Kelly Dunne are

reproduced here for the convenience of the Court…’

...

17. Firstly, and fatally, the Applicants just have not engaged with the judgement at all

as required by Humphreys J. in Condon v An [Coimisiún] Pleanala (No. 2) at §10(iii)(c) ‘…and

have not provided a plausible basis as to why the 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’

18. The Applicants have completely failed to explain how the Court has not resolved the

alleged point of law – the Court did so, by reference to an interpretation of the word ‘terms’

that the Applicants themselves accept.

19. Secondly, the reliance on the approach in Guessford featured nowhere in the

Applicants’ written submissions. As identified by Humphreys J. in Condon (No. 2)(§13)

‘What is somewhat surprising about the first question is that the now apparently central case

of South West Regional Shopping Centre v. An Bord Pleanála [2016] IEHC 84, [2016] 2 I.R.

481 (Costello J.) is mentioned nowhere in the notice party’s written legal submissions on the

substance of the matter. Not having been the subject of proper written argument then it

cannot plausibly be contended to be central now’. The Applicants could have opened the

approach of Simons J in Guessford to the Court and identified how it supported their

suggested approach. It did not do so and it cannot legitimately use a certificate application

to make, in effect, a brand new argument as to why its suggested approach is correct.”

25. The real question is whether the alteration was material. Unfortunately for the applicants

that is a question on which they failed to discharge the onus of proof. That is a factual and not a

legal conclusion.

26. Furthermore, the applicants’ factual description of the effect of the amendment is totally

incorrect and improperly reconfigures the factual findings in the context of a purported proposed

appeal on a point of law with no basis whatsoever for so doing. There is no question of “two new

turbines” or an “expansion” of the permission. The judgment records findings of fact that the

amendment in essence merely allowed alterations as to the location of permitted development.

27. The applicants’ attempt to reconfigure their failure to overcome the onus of proof to show

that as a matter of fact the change was material, so as to transmogrify it into an issue of law, is,

unfortunately, tendentious, as the commission submits:

“20. Further as regards the first point and §27 of the Applicants’ certificate submissions,

the Applicants evidently seek to impermissibly reargue the merits of the issue, in asserting

that the alteration/amendment at issue involves two new turbines and ‘different’ locations

with ‘different impacts’. This is part of the flawed premise of the first point in that it

tendentiously contradicts and ignores the relevant factual conclusions of the No.1 judgment

(in particular at §§30-31) and disregards the information furnished by the Notice Party

developer during the s.146B process on the basis of which the alteration/amendment was

made by the Commission, and hence the proposed question does not properly arise. The

Applicants’ repetition of its unsuccessful subjective merits-based disagreement with the

Commission’s conclusion that the proposed alteration/amendment is not material is legally

irrelevant and not a basis for certification.”

28. There is no conflict or analogy with Kelly Dunne v. Guessford Ltd [2021] IEHC 583

(Unreported, High Court, Simons J., 21 September 2021) which related to a completely different

type of proceeding (s. 160 of the 2000 Act) and nor was this point made in this way at the hearing,

so it cannot properly arise now as an appeal point.

29. The test for materiality does not properly arise because the applicants did not argue that the

test was in doubt. Rather their pleading and submission was focused on whether as a matter of fact

the alteration was material. The notice party highlights the insuperable problem for the applicants:

“29. This point of law does not arise from the judgement. The Applicants never pleaded

any issue in relation to the test for ‘materiality’ but rather that the Commission had no

jurisdiction to grant the specific amendments sought pursuant to section 146B because they

were material. This could not be clearer at E§2 of the Amended Statement of Grounds that

reads:

‘The Board erred in law and acted ultra vires and contrary to fair procedures in deciding that

the proposed alteration was not material when it involved the siting of two large turbines

each with an output of 7.2 megawatts in forestry lands at a distance of 170 metres and 220

metres respectively from the location of the originally permitted turbines, involving the

felling of more than 8 acres of trees and the removal off site of harvested timber and the

construction of concrete foundations for the turbines and concrete hard standing for cranes

and the erection of two turbines in these new locations and the making of roads to the

turbine sites and the construction of two bridges over two rivers and the laying of

underground cables.’

30. That argument makes sense as far as it goes but it does not raise any issue in

relation to the test to be applied on a general or systemic basis. Nor was any issue raised

in the Applicants’ written submissions other than the contention, in effect, that on the facts

the Commission had got it wrong. It is, respectfully, difficult to think of an issue that is

more fact specific than the point raised by the Applicants. The Applicants, not having raised

the issue of the test in the proceedings, the written submissions cannot be surprised that

this issue did not feature in the written judgement because all parties proceeded on the

correct basis that the test was materiality and the issue before the Court was which side of

the line the proposed amendments fell on. That factual issue was resolved against the

Applicants as per the Court’s summary at §30. The proposed point of law of exceptional

public importance therefore simply does not arise from the judgement.”

30. Arguments that make their first appearance after the case has been rejected are not

arguments that properly arise for the purposes of proposed appeal.

Are the points ones of law?

31. The points are not ones of law for the reasons stated.

Are the points of public importance?

32. There is no public importance in the issues raised. The substantive judgements are fact-

specific (beyond the sense in which they set out obvious conclusions as to the statutory scheme, for

which there is no plausible counter-argument that is relevant for present purposes).

Are the points of exceptional public importance?

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

Is an appeal in the public interest?

34. An appeal is not in the public interest for multiple reasons – particularly:

(i) the minor nature of the amendment which is the subject matter of the impugned

decision in these proceedings;

(ii) the confused and tendentious nature of the questions;

(iii) the problem that they are essentially factual even if they properly arose;

(iv) the non-compensatable financial prejudice to the notice party;

(v) the principle of finality in planning litigation; and

(vi) the urgent public interest in delivery of renewable energy infrastructure.

35. I endorse the submission of the commission:

“PUBLIC INTEREST

30. There is no public interest in appealing either point. 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 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.

31. 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.’

32. 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.

33. 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’).

34. 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.’

35. 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

36. 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.

37. 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.’

38. 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.

39. Further, the Applicants’ certificate application and the proposed points in substance

and reality relate to the application of clear and well-established principles to the particular

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

Monkstown Road [2023] IEHC 9 at §69.

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

should be final.

41. 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.”

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

“Public Interest

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

submissions. The Developer does not think there is any necessity to engage in a substantive

discussion of the public interest. Insofar as necessary only, the Developer does rely on the

following principle identified by Humphreys J. in Nagle View:

‘The nature of the project and the risks of further delay are factors going to 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 Earth AISBL

[2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024): “The Court must

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

proceedings”.’

39. 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 21 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

40. 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.”

37. Even if I am wrong about everything else, the air of unreality about the proposed appeal

remains. Insofar as concerns the validity of the permission, this is not some sort of path-breaking

case. It concerns a relatively minor amendment to a permission, essentially confined to a change

in the location of already-permitted structures. That amendment as a matter of fact was deemed

non-material by the statutory actors concerned, a finding which these applicants evidentially failed

to displace in the present proceedings. The applicants naturally try to make a federal case out of all

of this but in reality it should more properly be filed under teacup-sized storms. This is not an issue

that rises to the level that cries out for yet a further tier of extensive debate, analysis and scrutiny,

the non-compensatable financial burden for which will not fall on the applicants but on the notice

party developer.

Does the possibility of an EU law point make any difference?

38. No defined EU law point is raised in the questions. Nor was any such point relevantly argued.

39. However lest any stone be left unturned, I have considered whether one could assume that

the throwaway reference to public participation in the first question could be said to constitute some

sort of attempt to drag EU law centre-stage at the eleventh hour.

40. For that purpose I have (and as always when an EU law point is raised) 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.

41. 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.

42. 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.

43. In the present case, the point does not have an inherently weighty internal logic to propel it

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

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

contended for.

44. 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 any EU law issue that even conceivably

arises from the proposed points. 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.

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

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

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

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

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

arises at the present moment in time.

46. That doesn’t in any way take from the fact that the EU law birds-related issues concerning

declaratory relief are still live in this case, and the applicants will have a further day in court on that

issue in due course. Article 267 remains up for debate in that context, lest anybody be under a

misapprehension about that, but obviously there are a number of issues to be addressed before that

could harden into any definite decision one way or the other.

Summary

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

(i) the appeal questions proposed do not properly arise;

(ii) the questions are essentially ones of fact or application of law to the facts, and the

supporting rationale significantly misstates without basis the factual findings of the

court;

(iii) there is no public importance in advancing these questions and there are significant

public interest considerations against doing so; and

(iv) no EU law point of substance or doubt is raised.

Order

48. 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;

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

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

the proceedings insofar as concerns the dismissed complaints; and

(v) the remaining live declaratory relief be listed for further directions on 18 May 2026.