High Court dismisses judicial review of amended planning permission as applicant failed to prove nullity on merits.

[2026] IEHC 322

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001365]

BETWEEN

MICHAEL DUFFY

APPLICANT

AND

AN COIMISIÚN PLEANÁLA AND CLARE COUNTY COUNCIL

RESPONDENTS

AND

UISCE ÉIREANN

NOTICE PARTY

Date of impugned decisions: 18 July 2025

Date proceedings commenced: 11 September 2025

Date of main hearing: 7 May 2026

Date draft judgment circulated: 15 May 2026

JUDGMENT of Humphreys J. delivered on Friday 22 May 2026 (as amended on 5 June

2026)

1. The modest amendments allowed here to an already-consented and unchallenged

wastewater treatment plant permission were found acceptable by the council’s planner, the council,

the inspector and the commission following a consideration of the relevant legal and policy context

and submissions by stakeholders. The applicant naturally has a merits-based disagreement with

the outcome, primarily centred on the original, unchallenged permission, but the question for

consideration is whether his objections give rise to grounds rendering the amending decisions a

nullity.

2. The way the system is supposed to work is that when questions of principle are decided by

appellate courts, the answers are applied in practice to the facts of individual cases by trial courts.

In that regard the following are notable:

(i) In Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, 25

March 2026) at para. 96 per Donnelly J. (O’Donnell C.J., Charleton and Murray JJ.

concurring) (see also per Denham J. (Murray C.J. and Fennelly J. concurring) in

Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2

I.R. 701 at p. 743; 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), the Supreme Court

emphasised that an applicant must have discharged the onus of proof to establish

all facts necessary for relief.

(ii) In 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), the Supreme Court took the approach that in the context of a

challenge to an environmental assessment, the onus of proof to show a defect

generally lies on the applicant.

(iii) In G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, [2002] 1

I.L.R.M. 401, the Supreme Court decided that there is a presumption (the onus to

rebut which falls on a judicial review applicant) that material has been considered

if the decision-taker says so (see also Rana v. Minister for Justice [2024] IESC 46

(Unreported, Supreme Court, O’Malley J., 18 October 2024), para. 91 (Dunne,

Hogan, Collins and Donnelly JJ. concurring); 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. (O'Donnell

C.J., Dunne, Charleton and Woulfe JJ. concurring) at para. 137).

(iv) In Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, 25

March 2026) at para. 1 per Donnelly J. (O’Donnell C.J., Charleton and Murray JJ.

concurring) (see also Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court,

31 July 2014) per Clarke J. (Dunne J. concurring) at paras. 3.8-3.15, 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), the Supreme Court

emphasised that judicial review is concerned with the legality rather than the

merits of the decision.

(v) In Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 I.R. 360

(Keane C.J.) (Murphy, Murray, McGuinness and Geoghegan JJ. concurring); Rachki

v. Governor of Cloverhill (Unreported, Supreme Court, 5 December 2011) ex

tempore (Fennelly J.), the Supreme Court proceeded on the basis of the principle

that the doctrine against collateral challenges to previous unchallenged

decisions applies even in an EU law context.

(vi) In Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024]

IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024), the Supreme Court

emphasised that Directive 2011/92/EU of the European Parliament and of the

Council of 13 December 2011 on the assessment of the effects of certain public and

private projects on the environment (the EIA directive) does not apply to projects

that are not listed.

3. It is the function of a trial court to apply such principles here. While I appreciate the sincerity

of the applicant, who appeared in person, as a Kilfenora resident who has a direct personal interest

in water quality, the legal question here is whether any sufficiently convincing legal reason has been

demonstrated to warrant relief in the limited legal context we are dealing with here – a challenge to

modest amendments of the parent permission.

4. The applicant’s primary concerns were that flooding would impact on both landowners and

environmentally. Secondly he had a “fundamental problem” with the fact that untreated effluent

was leaving the plant and polluting groundwater via a swallow hole. On the worsening of the flooding

issue, the applicant placed some reliance on the view of one expert on the Uisce Éireann (UÉ) side

in an email of 17 January 2024 (emphasis added):

“From: <...>

Sent: Wednesday, January 17, 2024 7:17 AM

To: <...>

Subject: RE: 240116 Kilfenora - RFI Response - Submissions Received

Hello …, I've now gone through Micheal Duffy’s lengthy submission and attach more

comprehensive comments. I also attach a response I made to his last submission back in

2019 as many of the points raised are the same (and my responses remain the same). The

vast majority of his accusations can be easily countered. However, the one point

that might have some validity is whether the construction activities inadvertently

caused a partial blockage of the swallow hole / conduit system and have therefore

made the flooding worse now. This could have happened by some rock or timber accidentally

getting knocked into the swallow hole for example. The reason why I am raising this point

as a possibility is that during the original design back in 2018 there was never any mention

of periodic flooding down at the swallow hole location, which does seem strange, particularly

given some of the very heavy flood events that have occurred in the area over the past 15

years (2009, 2014/15 etc). Whether this are used to flood or not prior to construction can

all potentially be checked using satellite data, but that would require a bit of work. Anyway,

I attach my comments for now.

Kind regards,

…”

5. However the construction being referred to here is on foot of the parent permission – this is

not something that arises from the specific decisions under challenge here. This is not an issue that

comes within the s. 160 proceedings either.

6. The discharge of wastewater to the swallow hole is also not being caused by the amendments

to the parent permission. It arises from the parent permission. This also is not covered by the s.

160 proceedings.

7. I am certainly not saying that the applicant is unreasonable to have concerns about these

matters. The only legal question is whether the present proceedings is a vehicle in which these

points properly result in the grant of relief. In answering that it might be too simplistic to say that

some specific alternative such as the s. 160 action or representations to the Environmental

Protection Agency (EPA) would be a better avenue. Litigation can be a very blunt instrument for

attempting to resolve disagreements of this type and can just end up absorbing great amounts of

time and energy for all concerned, not always with any great effect.

8. At the risk of being accused by UÉ of Pollyannaish optimism I would encourage consideration

of some form of further engagement with the applicant such as a meeting involving his engineering

peers in UÉ, so that at least he would have a greater feeling of being heard as to his concerns about

the Kilfenora project (which is naturally of particular concern as he lives about six minutes’ walk

away) or more generally, and any possible steps that would improve matters would at least be

considered. I appreciate UÉ’s rather illusionless response to that which effectively is that any

engagement would result in access to information on the environment (AIE) requests and possibly

more litigation rather than less. But that is something that falls into the Rumsfeldian category of

the known unknown, so can presumably be anticipated and mitigated. No doubt UÉ will do what

they think best and I will leave that suggestion with them. All we can deal with for present purposes

is the question of whether the issues raised in the proceedings constitute grounds for invalidating

the amending permissions at issue here.

Judgment history

9. There are no previous judgments in litigation between the parties with respect to the

developments the subject of these proceedings or the Kilfenora Wastewater Treatment Plan.

10. There are extant s. 160 proceedings in the Circuit Court taken by the applicant as against

the notice party, UÉ, relating to the alleged unauthorised development the subject of these

proceedings: Duffy v Irish Water [Circuit Court record no. 2022/00005, South Western Circuit],

addressed in more detail below. Those proceedings are still ongoing.

11. The applicant also issued proceedings in early 2022 challenging the council’s failure to issue

an enforcement letter [apparently 2022 0493 JR, which was adjourned generally in the judicial

review ex parte list on 13 March 2023 for reasons that are not currently to hand].

Geographical context

12. Both projects consist of alterations to the Kilfenora Wastewater Treatment Plant and

Percolation Area (the Kilfenora WWTP) development, approved under reference ABP-305756-19.

13. The first project (https://www.pleanala.ie/en-ie/case/322234), consists of (i) disconnection

and capping of existing gravity effluent pipe (pipework to retained in situ), (ii) installation of new

gravity pipe and connection to pumping station and (iii) all ancillary site development and excavation

works above and below ground necessary to facilitate the development

14. The second project (https://www.pleanala.ie/en-ie/case/322250) consists of (i)

modifications to site access and internal roads at the wastewater treatment plant to include raising

of access road level from the public road (L1034) to the site entrance gates, to include provision of

permeable paving finish, and widening/reconfiguration of internal road in focused areas, permeable

paving finish, hard surface area and gully, and provision of petrol interceptor, (ii) modifications to

site access and internal road at the percolation area to include new roadside channel drain and

provision of permeable paving finish and (iii) all ancillary site development and excavation works

above and below ground necessary to facilitate the development.

15. Both developments are located at Killcarragh and Ballybreen Townlands, Kilfenora, Co. Clare,

near the following: https://maps.app.goo.gl/NtQuDDDDgJ5XSoQ28 and

https://maps.app.goo.gl/yiHHCDqybF9Rgj5N6. A view of the area is at

https://maps.app.goo.gl/WW3sGcLj7Ge1ejAX7.

Parties

16. The applicant is a resident of Kilfenora and an engineer with a keen personal interest in

water quality and water/ wastewater projects.

17. The first named respondent (which I will refer to as the respondent given that the council

was struck out) is the relevant statutory decision-taker here.

18. The second named respondent, the council, made the first instance decision. As noted

above, they have been struck out of the proceedings.

19. The notice party is the project developer.

General factual background

20. Prior to the construction of the Kilfenora WWTP, the village of Kilfenora had an existing

combined sewage collection system and a wastewater treatment plant to the west of the village that

was constructed in the late 1970s/ early 1980s by the council.

21. A stormwater overflow was constructed in 1978. The final effluent from the original WWTP

discharged to a pumping station on site and was pumped forward to Ballybreen where it discharged

directly into groundwater via a swallow hole.

22. On 27 September 2019, planning permission was granted by the council for the upgrade of

the original WWTP consisting of the construction of the Kilfenora WWTP, the installation of tertiary

treatment technology, the demolition of the existing treatment works and associated site

development, including construction of the percolation area. The applicant appealed the council’s

decision to the commission.

23. On 6 March 2020, the commission granted permission for the Kilfenora WWTP (ref. ABP-

305756-19). No challenge was brought to the Kilfenora WWTP decision.

24. Works commenced in October 2021.

25. On 7 January 2022, the applicant issued s. 160 proceedings in the Circuit Court related to

the construction works at the Kilfenora WWTP, alleging unauthorised development in respect of the

Kilfenora WWTP, as to:

(i) the provision of a temporary wastewater treatment plant and associated discharge

facilitating ongoing treatment of wastewater on site;

(ii) the alleged omission of a silt fence conditioned in the Kilfenora WWTP permission as

mitigation to protect surface waters and groundwater;

(iii) a proposed gravity effluent pipe stated by the applicant to be outside the red-line

development boundary under the Kilfenora WWTP permission; and

(iv) the proposed inclusion of an infiltration system and interceptor, for the purpose of

stormwater drainage in compliance with condition 7 of the Kilfenora WWTP

permission.

26. In May 2022, the applicant sought to extend and supplement his allegations of unauthorised

development forming part of the s. 160 proceedings to include inter alia complaints regarding the

volume and type of soil, stone and sand used in the percolation area.

27. Subsequently, by declaration under s. 5 of the 2000 Act dated 9 August 2022, on an

application by Mr Michael King, the council confirmed that the removal of the soils and subsoils for

the purposes of the percolation area was development for the purposes of the 2000 Act, but that

such development fell within the terms and conditions of the Kilfenora WWTP permission (see Clare

County Council s. 5 declaration dated 9 August 2022 (ref. R22-43) (Exhibit EW1 Tab 16)).

28. On 9 December 2022, UÉ made two planning applications to the council, for minor

amendments to the Kilfenora WWTP. Those 2022 applications were subsequently withdrawn and

replaced with the planning applications the subject of these proceedings: the gravity effluent pipe

application and the access roads application.

29. The Kilfenora WWTP was substantially completed in November 2023. However,

implementation of the minor works granted permission in the commission decisions under challenge

in these proceedings are required before the Kilfenora WWTP can be fully commissioned and to end

the existing direct discharge of the treated effluent to the swallow hole at Ballybreen.

30. On 28 January 2026, the EPA granted a Waste Water Discharge Certificate of Authorisation

for Kilfenora WWTP for primary and stormwater discharge. This was not challenged.

Facts regarding first application – Gravity effluent pipe – ABP-322234-25

31. On 16 January 2025, the notice party submitted a planning application to the council with

respect to the gravity effluent pipe permission (ABP-322234-25), seeking permission for alterations

to the Kilfenora WWTP, specifically the disconnection and capping of an existing gravity effluent pipe,

retention of certain pipework in situ, and the installation of a new gravity pipe connecting to a

pumping station, along with associated excavation and site development works at Ballybreen,

Kilfenora, Co. Clare (PA reg. ref.: 25/60011).

32. On 12 March 2025, the council granted permission subject to two conditions on the

recommendation of the council’s executive planner:

(i) council decision (PA reg. ref.: 25/60011) dated 12 March 2025:

https://www.eplanning.ie/ClareCC/AppFileRefDetails/2560011/0; and

(ii) council decision (PA reg. ref.: 25/60013) dated 12 March 2025:

https://www.eplanning.ie/ClareCC/AppFileRefDetails/2560013/0.

33. On 8 April 2025, a third-party appeal was lodged by the applicant.

34. On 6 May 2025, the council submitted a response to the third-party appeal, addressing eight

matters relevant to same and requested that the commission uphold the council’s decision to grant.

35. On 7 May 2025, the notice party submitted a response to the third-party appeal.

36. On 6 June 2025, the council submitted a response to the notice party’s response to the

appeal.

37. On 11 June 2025, the applicant also submitted a response to the notice party’s response to

the appeal.

38. On 19 June 2025, the inspector appointed by the commission carried out a site inspection

and by inspector’s report dated 25 June 2025, the inspector recommended that permission be

granted subject to five conditions.

39. On 15 July 2025, the commission considered the appeal at a meeting and made a direction

recording that the submissions on file and the inspector’s report were considered at the said meeting

and that the commission decided to grant permission generally in accordance with the inspector’s

recommendation.

40. By order dated 18 July 2025, bearing ref. ABP-322234-25, the commission granted

permission for the proposed development, subject to five conditions.

Facts regarding second application – access roads – ABP-322250-25

41. On 16 January 2025, the notice party submitted a planning application to the council with

respect to the access roads permission (ABP-322250-25), seeking permission for alterations to the

Kilfenora WWTP, including modifications to site access, internal roads, and all ancillary development

at Killcarragh and Ballybreen, Kilfenora (PA reg. ref: 25/60013).

42. On 12 March 2025, the council granted permission subject to two conditions on the

recommendation of the council’s executive planner.

43. On 8 April 2025, a third-party appeal was lodged by the applicant.

44. On 7 May 2025, the notice party submitted a response to the third-party appeal.

45. On 30 May 2025, the council submitted a response to the third-party appeal.

46. On 19 June 2025, the inspector appointed by the commission carried out a site inspection

and by inspector’s report dated 25 June 2025, the inspector recommended that permission be

granted subject to five conditions.

47. On 15 July 2025, the commission considered the appeal at a meeting and made a direction

recording that the submissions on file and the inspector’s report were considered at the said meeting

and that the commission decided to grant permission generally in accordance with the inspector’s

recommendation.

48. By order dated 18 July 2025, bearing ref. ABP-322250-25, the commission granted

permission for the proposed development, subject to five conditions.

Procedural history

49. The originating motion and verifying affidavit of the applicant were filed on 11 September

2025.

50. Leave was granted on 29 September 2025.

51. The notice of motion was filed on 16 October 2025.

52. An amended statement of grounds was filed on 16 October 2025.

53. The commission’s statement of opposition and verifying affidavit of Robert Brophy were

delivered unfiled on 27 March and filed on 31 March 2026.

54. The council’s statement of opposition and verifying affidavits of Marina Keane and Kieran

O’Donnell were delivered unfiled on 31 March 2026 and filed on 1 April 2026.

55. The notice party’s statement of opposition and verifying affidavit of Esther White were

delivered unfiled on 2 April and filed on 9 April 2026.

56. On 20 April 2026, I struck out the applicant’s case against the council.

57. The applicant’s replying affidavit was filed on 27 April 2026.

58. The applicant’s written submissions were delivered on 29 April 2026.

59. The commission’s written submissions were delivered on 5 May 2026.

60. The notice party’s written submissions were delivered on 5 May 2026.

61. The statement of case was uploaded onto ShareFile on 5 May 2026.

62. Judgment was reserved at the end of that hearing. I would like to record my thanks to the

applicant and 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 making or instructed to convey such points, a distinction that

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

63. On 15 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.

64. 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; and

(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 or ambiguities 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.

65. 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).

66. 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.

67. The deadline for such comments from the parties was to be 16:00 on Tuesday 19 May 2026.

The applicant did not comment and the opposing parties suggested modest drafting changes. It can

be noted that following the delivery of the judgment on 22 May 2026, the parties corresponded on

2 and 3 June 2026 setting out a correction to para. 11 regarding the record number and fate of

previous proceedings, so the judgment was amended on 5 June 2026.

Relief sought

68. The reliefs sought are as follows:

“I pray this Honourable Court for the following reliefs;

1. An order of certiorari overturning the Order made by the First Named Respondent,

hereinafter referred to as the Coimisiún, on the 18th day of July 2025 to grant planning

permission in appeal ABP-322234-25 (planning application 2560011 Clare County Council)

based on the facts listed in this grounding statement, my verifying affidavit and exhibits

herein.

2. An order of certiorari overturning the Order made by the Coimisiún on the 18th day

of July 2025 to grant planning permission in appeal ABP-322250-25 (planning application

2560013 Clare County Council) based on the facts listed in this grounding statement, my

verifying affidavit and exhibits herein.

3. An order of certiorari overturning the Managers Order made by the Second Named

Respondent, hereinafter referred to as the Planning Authority (PA), on the 12th day of March

2025 to grant permission 2560011 based on the facts listed in this grounding statement, my

verifying affidavit and exhibits herein.

4. An order of certiorari overturning the Managers Order made by the Planning

Authority on the 12th day of March 2025 to grant permission 2560013 based on the facts

listed in this grounding statement, my verifying affidavit and exhibits herein.

5. Such declaration(s) of the legal rights and/or legal position of the applicant and

persons similarly situated and/or of the legal duties and/or legal position of the Respondent

as the Court considers appropriate.

6. A declaration that the Planning Authority failed to recognise that by virtue of s.34

(12) that it was precluded from considering the planning applications 2560011 and 2560013,

in circumstances where development and use other than that permitted in 305756-19

(19/31) was carried out.

7. A declaration that the Planning Authority did not have regard, or proper regard, to

the Applicant’s unauthorised development complaint and submissions which identified

unauthorised development on the subject sites.

8. A Declaration that the costs of the proceedings are covered by s.50B of the 2000

Act or should be measured on a not prohibitively expensive (‘NPE’) basis or, in the

alternative, a declaration that section 3 of the Environment (Miscellaneous Provisions) Act

2011 apply to these proceedings.

9. Such further Orders as the Court deems appropriate.

10. Liberty to apply.

11. The costs of the within proceedings.”

Grounds of challenge

69. The core grounds of challenge are as follows:

“Part 1 – Core Grounds - Domestic Law Grounds:

1. The impugned decisions of the Coimisiún are invalid because the determinations

required to be made in accordance with s.177V (1) (b) contain lacunae and did not consider

important environmental matters associated with the existing development.

2. The impugned decisions of the Coimisiún are invalid because it failed to carry out its

statutory duty to correctly assess the applications for unauthorised development and to

declare the application invalid in accordance with s.34 (12) of the Planning and Development

Act 2000 as amended.

3. The impugned decisions of the PA are invalid because the determinations required

to be made in accordance with s.177V (1) (b) contain lacunae and did not consider important

environmental matters associated with the existing development.

4. The impugned decisions of the PA are invalid because it failed to carry out its

statutory duty to correctly assess the application for unauthorised development and to

declare the applications invalid in accordance with s.34 (12) of the Planning and

Development Act 2000 as amended.

5. The decisions of the PA are invalid because it failed to carry out its statutory duty as

prescribed in s.152 and s.153 of the Planning and Development Act 2000 as amended to

issue a warning letter and carry out an investigation of foot of representation in writing of

unauthorised development.

6. If I am correct in relation to any of core grounds 3, 4 or 5 the impugned decision of

the Coimisiún is invalid because it did not have jurisdiction to carry out an appeal as no

legitimate decision existed to fulfil the requirement of s.37 (1) (b) of the Planning and

Development Act 2000 as amended.

7. The impugned decisions are irrational in that the Respondents considered matters

which are irrelevant and did not consider relevant and important planning and environmental

matters raised by the applicant. The Respondent failed to have mandatory regard, or proper

regard, to the submissions of the applicant as required in s.34 (3) of the Planning and

Development Act 2000 as amended.

Part 2 Core Grounds European Law Grounds:

8. The impugned decisions are invalid because they contravene A1,A4,A14 of the Water

Framework Directive 2000/60/EC and A1,A3,A4,A6,A11, of the EIA Directive 2011/92/EU as

amended by DIRECTIVE 2014/52/EU and A6(3) Habitats Directive 92/43/EEC.”

70. As regards the extent to which these are pursued, section (i) of the statement of case records

as follows:

“47. The following are not being pursued[:] Reliefs 3,4,6 &7 and Core Grounds 3,4,5

The Commission’s Position

48. Core Grounds 3, 4, and 5 have been expressly withdrawn by the Applicant and are

no longer pursued. The reliefs at D3, 4, 6 and 7 are also no longer pursued. Core Ground

6, as expressly pleaded, is entirely contingent on a positive finding in favour of the Applicant

on Core Grounds 3, 4 or 5 and so it also falls away as those core grounds have been

withdrawn. There is no basis to the Applicant’s continued pursuit of Core Ground 6, and it

is noted that same is not addressed in this Statement of Case. The remaining four grounds

appear therefore to be Core Grounds 1, 2, 7 and 8. The Commission relies in full on the

pleas contained in its Statement of Opposition in opposition to each of those Core Grounds.

The Applicant’s submissions do not offer any cogent answer to or analysis of the

Commission’s response to those core grounds as pleaded in its Statement of Opposition.

Indeed, sub-optimally, the Applicant’s submissions do not actually address any of the core

grounds in specific terms at all. None of the remaining four core grounds are referred to in

the Applicant’s submissions and indeed the words ‘core ground’ do not even feature in same.

Further, it is not open to the Applicant to reconfigure his pleaded case via his input in this

Statement of Case.”

71. As regards core ground 6, this is clearly dependent on core grounds 3 to 5 so is rendered

baseless and irrelevant by the withdrawal of those core grounds.

72. As regards the division between domestic and EU law points, core ground 1 is substantially

EU-related so is dealt with under that heading.

The impugned decision

73. The impugned decision provides as follows (decisions ABP-322234-25 and ABP-322250-25

are identical except for the reference numbers):

“Proposed Development: The proposed development which will service and consist of

alterations to the Kilfenora wastewater treatment plant and percolation area development

approved by An Coimisiún Pleanála under reference number ABP-305756-19, and consists

of: (1) disconnection and capping of existing gravity effluent pipe (pipework to be retained

in situ); (2) the installation of a new gravity effluent pipe and connection to pumping station;

and, (3) all ancillary site development and excavation works above and below ground

necessary to facilitate the development at Ballybreen (Townlands), Kilfenora, County Clare.

Decision

GRANT permission for the above proposed development in accordance with the said plans

and particulars based on the reasons and considerations under and subject to the conditions

set out below.

Reasons and Considerations

Having regard to the applicable policy context, including the provisions of the Clare County

Development Plan 2023-2029 wherein Objective CDP 11.32 - Wastewater Treatment and

Disposal supports the implementation of Uisce Eireann Investment Plans and advocates the

provision, by Uisce Eireann, of adequate wastewater treatment facilities, and having regard

to nature and scale and extent of the proposed development comprising minor alterations

to previously permitted wastewater infrastructure, the Commission was satisfied that,

subject to compliance with the conditions set out below, the proposed development would

support the delivery of the development plan policy. The Commission was also satisfied that

subject to compliance with the conditions set out below, the proposed development would

not exacerbate flooding, would not have a significant impact on ecology or on European Sites

in the vicinity, and would, therefore, be in accordance with the proper planning and

sustainable development of the area.

Appropriate Assessment: Stage 1 :

The Commission considered the documents submitted with the application, and all the other

relevant submissions on file, and carried out an Appropriate Assessment in relation to the

potential effects of the proposed development on designated European sites. The

Commission agreed with the screening assessment and conclusion carried out in the

Inspector’s Report that East Burren Complex Special Area of Conservation (Site Code

001926); Corofin Wetlands Special Protection Area (Site Code 004220); Inagh River Estuary

Special Area of Conservation (Site Code 000036); and Moneen Mountain Special Area of

Conservation (Site Code 000054) are the only European Sites in respect of which the

proposed development has the potential to have a significant effect in view of the

Conservation Objectives for the sites and that Stage 2 Appropriate Assessment is, therefore,

required .

Appropriate Assessment: Stage 2:

The Commission considered the Natura Impact Statement, and all the other relevant

submissions on file, and carried out an Appropriate Assessment of the implications of the

proposed development on the aforementioned sites in view of these sites’ Conservation

Objectives. The Commission considered that the information before it was sufficient to

undertake a complete assessment of all aspects of the proposed development in relation to

the sites’ Conservation Objectives using the best scientific knowledge in the field. In

completing the assessment, the Commission considered, in particular, the following:

(i) the site-specific Conservation Objectives for the European Sites,

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

individually or in combination with other plans or projects, and

(iii) mitigation measures which are included as part of the current proposal.

In completing the Appropriate Assessment, the Commission accepted and adopted the

Appropriate Assessment carried out in the Inspector’s Report in respect of the potential

effects of the proposed development on the aforementioned European Sites. In overall

conclusion, the Commission were satisfied that the proposed development would not

adversely affect the integrity of the European Sites in view of the sites’ Conservation

Objectives and that there is no reasonable scientific doubt as to the absence of such effects.

Conditions

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

particulars lodged with the application, except as may otherwise be required in order to

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

with the planning authority, the developer shall agree such details in writing with the

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

carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.

2. The mitigation measures contained in the Natura Impact Statement submitted to the

planning authority on the 16th day of January 2025 shall be implemented in full.

Reason: To protect the integrity of European Sites.

3. The mitigation measures contained in the Ecological Impact Assessment (EcIA) submitted

to the planning authority on the 16th day of January 2025 shall be implemented in full.

Reason: In the interest of environmental protection and nature conservation.

4. The controls and measures contained in the Construction, Environmental Management

Plan (CEMP) submitted to the planning authority on the 16th day of January 2025 shall be

implemented in full.

Reason: In the interest of environmental protection and nature conservation.

5. Drainage arrangements, including the attenuation and disposal of surface water, shall

comply with the detailed requirements of the planning authority for such works and services.

Reason: In the interest of public health.”

Some general considerations

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

under a number of headings as follows.

Overall requirements for relief by way of judicial review

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

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

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

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

granted if the proceedings meet all of the following:

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

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

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

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

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

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

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

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

dimension);

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

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

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

obligations);

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

relief;

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

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

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

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

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

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

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

this juncture:

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

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

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

Appeals Officer [2026] IESC 22 at para. 1 per Donnelly J. It is not an appeal on the

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

per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R.

642 at p. 654 (Hamilton P. concurring); per Denham J. in Meadows v. Minister for

Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at p. 743; per

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

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

no more than an attack upon ... factual conclusions”. See also Stapleton v. An Bord

Pleanála & Savona [2025] IEHC 178 (Unreported, High Court, Holland J., 1 April

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

September 2025) per Farrell J. at 11.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

expansive application of the equality guarantee contained in Article 14 ECHR

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

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

broad and expansive application of the guarantee risked undue interference

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

classification is not arbitrary or capricious or based on prejudice or

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

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

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

States v Butler (1936) 297 US 1).”

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

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

Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 W.L.R. 759

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

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

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

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

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

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

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

Generally speaking evaluative judgements involving a significant degree of planning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J., 30 December 2025) at 32.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025) at 32.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The State (Toft) v. Galway Corporation 1981 WJSC-SC 2110, [1981] ILRM 439

(O’Higgins C.J.; Walsh and Kenny JJ. concurring); Moore v. Dun Laoghaire Rathdown

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

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

technicality”); Pembroke Road Association v. An Bord Pleanála [2022] IESC 30,

[2022] 2 I.L.R.M. 417 (Hogan J.; MacMenamin, Charleton, O’Malley and Baker JJ.

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

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

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

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

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

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

3 October 2025).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025) per Farrell J. at 13.

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

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

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

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

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

make a balanced and reasonable assessment of the overall sustainability of

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

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

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

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

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

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

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

(x) A final important general point is that there is a presumption that material has

been considered if the decision says so, the onus being on an applicant to

evidentially displace that: see per Hardiman J. (Denham and Geoghegan JJ.

concurring) in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R.

418, [2002] 1 I.L.R.M. 401; Rana v. Minister for Justice [2024] IESC 46

(Unreported, Supreme Court, O’Malley J., 18 October 2024), para. 91 (Dunne,

Hogan, Collins and Donnelly JJ. concurring); Grassridge v. Dun Laoghaire Rathdown

County Council [2024] IEHC 669 (Unreported, High Court, Holland J., 25 November

2024), para. 55; this includes documents before the decision-taker such as a Natura

impact statement (NIS) – such matters are considered for AA purposes – 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. (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring) at para.

137.

(xi) A court only decides points that are not academic, and that are properly

pleaded and actually in dispute between the parties, and even then only

when it is necessary and appropriate to do so: Friends of the Irish Environment

v. Government of Ireland [2023] IEHC 562, [2023] 10 JIC 1904 (Unreported, High

Court, 19 October 2023) at §117.

(xii) Relief whether by judicial review or otherwise should only be granted where the

point is not academic or hypothetical, in proceedings brought by an applicant

with appropriate standing who has normally been affected in some definite way by

the impugned measure: Cahill v. Sutton [1980] I.R. 269 (O’Higgins C.J.; Henchy,

Griffin, Kenny and Parke JJ. concurring); Mohan v. Ireland and the Attorney General

[2019] IESC 18, [2021] 1 I.R. 293, [2019] 2 I.L.R.M. 1, per O’Donnell J.

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

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); Sweetman v. Environmental

Protection Agency [2025] IEHC 539 (Unreported, High Court, Holland J., 16 October

2025).

Onus of proof

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

previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J. at 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

does not.

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

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

on face of material, that appropriate assessment (AA)/ environmental impact

assessment (EIA) was defective, or that there were factual circumstances requiring

a decision-taker to consider any other autonomous obligation, lies on the applicant:

R v. Crischuk, 2010 BCSC 716 (Barrow J.) at paras. 36-38, affirmed 2010 BCCA 391,

2010 D.T.C 5141; Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, [2021] 4 JIC

1204 (Unreported, High Court, 12 April 2021), para. 19; An Taisce v. an Bord

Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281 per Hogan

J. at para. 124 (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring);

Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported,

High Court, 20 May 2024) at §191(v) (leave to appeal refused in Carrownagowan

Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and

Donnelly JJ., 27 January 2025)); Salmon Watch Ireland, Inland Fisheries Ireland,

Sweetman & Ors. v. Aquaculture Licences Appeals Board & Ors. [2024] IEHC 421

(Unreported, High Court, Holland J., 12 July 2024), §1097; Nagle View Turbine

Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1

November 2024) at para. 115; Minoa Ltd v. An Bord Pleanála [2024] IEHC 704

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

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

2025) at 55; Oxigen v. An Coimisiún Pleanála [2025] IEHC 632 (Unreported, High

Court, 19 November 2025) (for example, in relation to proving that a decision-taker

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

taker was autonomously required to consider, (ii) patent flaw on the face of the

materials, or (iii) other legal error, inadequate consideration or failure to dispel

scientific doubt has to be established by admissible evidence (normally expert

evidence) in the judicial review showing either that reasonable doubt was created

by the material before the decision-taker at the time (albeit not limited to what was

adduced by the applicant specifically), or that such material even if uncontradicted

would on its face have created doubt in the mind of a reasonable expert: An Taisce

v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021] 7 JIC 0205 (Unreported, High

Court, 2 July 2021) at §7 and §8; Carrownagowan Concern Group v. An Bord

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

to appeal refused: Carrownagowan Concern Group v. An Bord Pleanála [2025]

IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025); Kennedy v. An

Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024) at §§ 73

and 105; Roache v. An Bord Pleanála [2024] IEHC 311 (Unreported, High Court,

Phelan J., 21 May 2024) at §117; Ryanair DAC v. An Bord Pleanála [2025] IEHC 74

(Unreported, High Court, 14 February 2025) at §64 et seq.; Massey v. An Bord

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

in Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603

(Unreported, High Court, 1 November 2024), summarised in the non-precedential

determination refusing leave to appeal [2025] IESCDET 41 (O’Malley, Murray and

Donnelly JJ., 10 March 2025) at para. 8, “the critical point was that scientific and

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

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

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

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

reason that the High Court accepted that the respondent had come to a lawful

conclusion of no doubt that an appropriate assessment was not needed and that the

respondent had given reasons for that conclusion. On the judicial review the

applicant had not displaced that conclusion by way of evidence” (para. 25). That is

consistent with the general law: O’Doherty and Waters v. Minister for Health [2022]

IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. (Irvine P.,

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

determination in 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85

(Charleton, Hogan and Collins JJ., 1 July 2025) is to the same effect: “17. As [the

trial judge] pointed out (at para. 196) the Court of Justice ruled in Case C-721/22

Eco Advocacy CLG (EU:C: 2023: 477) the Board simply provides ‘reasons sufficient

to explain that the decision does not create reasonable scientific doubt as to impact

on European sites.’ This was simply the test which [the trial judge] applied in the

present case. He concluded (at para. 230) that the Board had addressed the issue

of potential bird movements of water birds and hen harriers and ‘gives reasons for

that conclusion which the applicants have not displaced evidentially.’ 18. The Court

considers that this second issue involves the application of standard principles and

does not meet the constitutional criteria”. See also Eco Advocacy CLG v. An Bord

Pleanála & Statkraft [2025] IEHC 15 (Unreported, High Court, 15 January 2025) at

§95; Concerned Residents of Coolkill v. An Bord Pleanála & Midsal Homes [2025]

IEHC 265 (Unreported, High Court, Holland J., 19 May 2025) at 309.

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

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

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

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

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

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

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

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

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

at §40-§41.

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

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

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

inadmissible on standard evidential principles insofar as matters of opinion are

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

Court, 11 April 2025).

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

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

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

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

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

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

conflict will be resolved against the opposing party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Scope of EIA

78. EIA only applies to projects specifically listed in the directive. In Concerned Residents of

Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray

J., 4 July 2024), the Supreme Court rebuffed attempts to read into the EIA directive projects that

are not listed. Important as the specific type of project in that case was (solar farms), the decision

illustrates a broader principle – EIA only applies to specifically listed categories of projects. This was

a point also made by O’Moore J. in Kavanagh v. An Bord Pleanála [2020] IEHC 259 (Unreported,

High Court, 29 May 2020). The order of 10 July 2008, Salvatore Aiello and Others v Regione

Lombardia and Others, C-156/07, ECLI:EU:C:2008:398, which is belatedly relied on by the applicant

in fact totally supports that position in that it finds that only projects specifically listed in the directive

are covered (emphasis added): “Article 2(1) of Council Directive 85/337/EEC of 27 June 1985 on

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

by Council Directive 97/11/EC of 3 March 1997, must be interpreted as meaning that it does not

require any project that may have a significant effect on the environment to be made subject to the

impact assessment provided for in that directive, but only projects of a kind listed in Annexes

I and II of the directive, as provided in Article 4 of the directive and subject to Article 1(4) and

(5) and Article 2(3) of the directive.”

Inadequacy of assessments

79. Some relevant legal principles regarding inadequacy of assessments which have been

rehearsed in previous caselaw include the following:

(i) European assessments are an iterative process not a single document, so flaws at

one point can be addressed at a later point in the process: per Lord Hoffman in R

(Edwards) v. Environment Agency [2008] UKHL 22, [2008] 1 W.L.R. 1587, para 38;

R. (Friends of the Earth Ltd) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All

E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212 (Lord Hodge and Lord Sales

SCJJ.) at 66 and 143; Cogent Land LLP v. Rochford District Council [2012] EWHC

2542 (Admin), [2013] 1 P & CR 2, Singh J. (paras. 111-126); No Adastral New Town

Ltd v. Suffolk Coastal District Council [2015] EWCA Civ. 88, [2015] Env. L.R. 28 per

Richards LJ. (Underhill and Briggs LJJ. concurring) (paras. 48-54); hence

amendments to a plan under assessment can be introduced in the process, R.

(Friends of the Earth Ltd) v. Heathrow Airport Ltd at 67.

(ii) “Deciding whether an effect of a project on the environment is ‘significant’

clearly requires a value judgment and carries the potential for cases to arise in

which different decision-makers may legitimately reach different conclusions without

it being possible to say that any of them has made an error in interpreting or applying

the term”: R (on the application of Finch on behalf of the Weald Action Group) v.

Surrey County Council and others [2024] UKSC 20, [2024] 4 All E.R. 717, [2024]

P.T.S.R. 988, [2024] 6 W.L.U.K. 315 per Lord Leggatt SCJ. (Lord Kitchin and Lady

Rose SCJJ. concurring) at 58 (emphasis added).

(iii) Determining whether an effect is capable of being assessed, or whether it is a

likely effect, is also evaluative: Finch at 77-78.

(iv) Standard of assessment: AA must, by reference to best scientific knowledge,

dispel all reasonable scientific doubt as to adverse effects on European sites (art. 6

habitats directive); EIA must be as complete as possible: judgment of 3 March 2011,

Commission v Ireland, C-50/09, ECLI:EU:C:2011:109.

(v) As with any evaluative conclusion by a decision-taker, the AA evaluation is one

in the first instance for the decision-taker: Lord Carnwath in R. (on the

application of Champion) v. North Norfolk District Council [2015] UKSC 52, [2015]

1 W.L.R. 3170 at para. 41; per Sales L.J. in Smyth v. Secretary of State for

Communities and Local Government [2015] EWCA Civ 174, [2015] P.T.S.R. 1417 at

para. 83; judgment of 7 November 2018, Holohan v An Bord Pleanála, C-461/17,

ECLI:EU:C:2018:883 at para. 44; R. (on the application of Wyatt) v. Fareham

Borough Council [2022] EWCA Civ 983, [2023] P.T.S.R. 1952, [2022], 7 W.L.U.K.

197, [2023] Env. L.R. 14 (Sir Keith Lindblom P., Singh and Males LJJ.)

(vi) Ultimately it is for the national courts to carry out a thorough and in-depth

examination of the scientific soundness of the AA: judgment of 7 November 2018,

Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College

van gedeputeerde staten van Limburg and College van gedeputeerde staten van

Gelderland, joined cases C-293/17 and C-294/17, ECLI:EU:C:2018:882 at para.

101. This may go beyond the mere review for reasonableness accepted in the UK:

R. (Friends of the Earth Ltd) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All

E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212 (Lord Hodge and Lord Sales

SCJJ.) at 143.

(vii) While the standard for the decision-taker’s carrying out of AA is removal of

reasonable scientific doubt as to effects on the integrity of European sites by

reference to their conservation objectives, and by the application of best scientific

knowledge, that does not require the decision-taker to disprove “any effect

whatsoever”, matters having “no appreciable effect”, or “hypothetical

risk”: opinion of Advocate General Kokott of 29 January 2004 in Landelijke

Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot

Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij,

paras. 102-106; judgment of 7 November 2018, Holohan v An Bord Pleanála, C-

461/17, ECLI:EU:C:2018:883 at paras. 33–37; Holland J. in Heather Hill

Management Company CLG v. An Bord Pleanála [2022] IEHC 146, [2022] 3 JIC 1603

(Unreported, High Court, 16 March 2022), citing R Mynydd Y Gwynt Ltd v. The

Secretary of State for Business, Energy and Industrial Strategy [2016] EWHC 2581

(Admin), [2016] 10 W.L.U.K. 396, [2017] Env. L.R. 14 (at para. 259). Absence of

reasonable doubt therefore does not mean “absolute certainty” (paras. 44, 58, 59,

and 61 of the CJEU's judgment and paras. 102 to 108 of the Advocate General's

opinion in Waddenzee, the judgment in Holohan at paras. 33-37, and Lord Carnwath

in R. (on the application of Champion) v. North Norfolk District Council [2015] UKSC

52, [2015] 1 W.L.R. 3170 at para. 41).

(viii) It is settled law that the EIA directive should not be read as imposing impossibly

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

8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281, per Hogan J. (O'Donnell C.J., Dunne,

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

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

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

(ix) Given the very wide scope of matters coming within EIA, an argument that any

impact should not have been considered is presumptively implausible. In particular,

potential and unmitigated impacts are required to be considered in the EIA process:

Oxigen v. An Coimisiún Pleanála [2025] IEHC 632 (Unreported, High Court, 19

November 2025).

Unchallenged previous decisions/ collateral challenges

80. Some relevant legal principles concerning unchallenged previous decisions include the

following:

(i) There is almost unending authority to the effect that unchallenged decisions

stand. A party is not entitled to engage in a collateral challenge to a decision

merely due to the making of a subsequent decision in the same matter. The

fallacious contrary misconception was best described in U.T. (Sri Lanka) v. Secretary

of State for the Home Department [2019] EWCA Civ 1095, [2019] 6 W.L.U.K. 379

by Coulson L.J. who referred at para. 38 to “the erroneous belief that every decision,

no matter its provenance, nature or form, is always capable of being appealed or at

least reviewed”. See also per Kelly J. in Goonery v. Meath County Council [1999]

IEHC 15, [1999] 7 JIC 1501 (Unreported, High Court, 15 July 1999); Shell E & P

Ireland Ltd v. McGrath [2013] IESC 1, [2013] 1 I.R. 147 (Clarke J.) (Denham C.J.

and Fennelly J. concurring); Smith v. Minister for Justice and Equality [2013] IESC

4, [2013] 1 I.R. 294 (Clarke J.) (Denham C.J. and McKechnie J. concurring); A.S. v.

Bangladesh [2015] IEHC 417 (Unreported, High Court, Stewart J., 7 July 2015);

judgment of 17 November 2016, Stadt Wiener Neustadt v Niederösterreichische

Landesregierung, C-348/15, ECLI:EU:C:2016:882; K.P. v. Minister for Justice and

Equality [2017] IEHC 95, [2017] 2 JIC 2006 (Unreported, High Court, 20 February

2017); Gayle v. Governor of the Dóchas Centre [2017] IEHC 718, [2017] 10 JIC

2710 (Unreported, High Court, 27 October 2017); K.R.A. v. Minister for Justice and

Equality [2017] IECA 284 (Unreported, Court of Appeal, 27 October 2017) per Ryan

P. (Irvine and Hedigan JJ. concurring) at paras. 39 and 42; Sweetman v. An Bord

Pleanála [2018] IESC 1, [2018] 2 I.R. 250 per Clarke C.J. (O'Donnell, MacMenamin,

Dunne and O'Malley JJ. concurring); M.A. (Pakistan) v. Minister for Justice and

Equality [2018] IEHC 95, [2018] 1 JIC 3011 (Unreported, High Court, 30 January

2018); per Hogan J. (Peart and Irvine JJ. concurring) in X.X. v. Minister for Justice

and Equality [2018] IECA 124 (Unreported, Court of Appeal, 4 May 2018); A.A.D.

(Somalia) v. Chief International Protection Officer [2018] IEHC 337, [2018] 5 JIC

1406 (Unreported, High Court, 14 May 2018); S.S. (Pakistan) v. Governor of the

Midlands Prison [2018] IEHC 442, [2018] 7 JIC 1704 (Unreported, High Court, 17

July 2018); Express Bus Ltd v. National Transport Authority [2018] IECA 236, [2019]

2 I.R. 680, [2018] 7 JIC 1804 per Hogan J. (Birmingham P. and Irvine J. concurring);

P.N.S. v. Minister for Justice & Equality [2020] IESC 11, [2024] 1 I.R. 566

(McKechnie J.) (O'Donnell, MacMenamin, Dunne and Charleton JJ. concurring); An

Taisce v. An Bord Pleanála & Ors [2020] IESC 39, [2021] 1 I.R. 119 per McKechnie

J. at §153 (Clarke C.J., O’Donnell, Dunne and Baker JJ. concurring); Narconon Trust

v. An Bord Pleanála [2021] IECA 307, [2021] 11 JIC 1701 (Unreported, Court of

Appeal, Costello J. (Woulfe and Collins JJ. concurring), 17 November 2021) at §45;

Minister for Justice v. Naoufal Fassih [2022] IESC 10 (Unreported, Supreme Court,

O’Malley J., 18 February 2022) (MacMenamin, Charleton, Baker and Hogan JJ.

concurring); Killegland Estates v. Meath County Council [2022] IEHC 393

(Unreported, High Court, 1 July 2022) at §42; Krikke v. Barranafaddock Sustainable

Electricity Ltd [2022] IESC 41, [2023] 1 I.L.R.M. 81, [2022] 11 JIC 0303 per Hogan

J. at §§87-95 (O’Donnell C.J., Charleton and Murray JJ. concurring); Marshall v.

Kildare County Council [2023] IEHC 73 (Unreported, High Court, 17 February 2023)

at §39(v); Jones v. South Dublin County Council [2024] IEHC 301 (Unreported, High

Court, 11 July 2024), para. 183; Ballyboden Tidy Towns v. An Bord Pleanála IV (No.

2) [2025] IEHC 277 (Unreported, High Court, 16 May 2025).

(ii) The principle against collateral challenge applies even in an EU law context:

Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 I.R. 360 (Keane

C.J.) (Murphy, Murray, McGuinness and Geoghegan JJ. concurring); Rachki v.

Governor of Cloverhill (Unreported, Supreme Court, 5 December 2011) ex tempore

(Fennelly J.).

Preliminary issues

81. The parties’ positions on preliminary issues as recorded in the statement of case are

summarised as follows:

“Applicant’s Position

43. None raised in the Statement of Grounds.

Commission’s Position

44. N/A

Notice Party’s Position

Pleading Objection

45. The Amended Statement of Grounds does not state precisely the grounds of

challenge, or provide proper or adequate particulars of those grounds, or identify the facts

or matters relied upon as supporting those grounds, as required by Order 103 rule 14(3) of

the Rules of the Superior Courts (‘RSC’) and/or Order 84 rule 20(3) RSC. In particular, the

Amended Statement of Grounds does not adequate specify the ‘route-map connecting the

particular factual problem alleged with the particular relief sought via a chain of reasoning’:

McGowan v ACP [2025] IEHC 405, §51. The case should be refused on that basis.

Collateral Challenge

46. A number of grounds pleaded in the Statement of Grounds (including inter alia at

§§15, 37-43; 51-54; 60-66) comprise collateral challenges to the Kilfenora WWTP

Permission and should be refused on that basis.”

82. As regards pleadings I will assume for the sake of argument that the points are acceptably

clear so I don’t propose to rest the decision on a contrary conclusion. Had it been necessary to do

so I would have been inclined to think that at least some of the complaints are not sufficiently

particularised, but I don’t need to make any concluded decision on that given the result overall.

83. However, the applicant is not entitled to raise any point which is based on calling into

question the original permission from 2020. That in fact covers the issues of most central concern

to the applicant. In that regard in particular:

(i) As to sub-ground §15, this challenges an aspect of the WWTP (the stormwater

overflow at the boundary of the WWTP site) that is not the subject of these

permissions. Assessment obligations are extensive but not so extensive as to

include the effects of already-consented projects that are now being amended in

some other respect, save insofar as cumulative or in-combination effects arise. The

applicant hasn’t overcome the onus of proof to demonstrate that.

(ii) As to sub-grounds 37-43, the complaint here is about lack of assessment of the site

generally in terms of flooding, in respect of which the same point arises save where

an applicant demonstrates relevance to the amendment applications, which this

applicant hasn’t done.

(iii) As to sub-grounds 51-54, these also complain about impacts of the WWTP generally

as opposed to these amendments.

(iv) As to sub-grounds 60-66, these are similar in nature.

Domestic law issues

Core ground 2 – invalid application

84. Core ground 2 is:

“2. The impugned decisions of the Coimisiún are invalid because it failed to carry out its

statutory duty to correctly assess the applications for unauthorised development and to

declare the application invalid in accordance with s.34 (12) of the Planning and Development

Act 2000 as amended.”

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

“(ii) CORE GROUND 2: Jurisdiction to carry out the appeal

Pleaded Complaints at Core Ground §2 and §16 to §22 inclusive

Applicant’s Position

60. The Respondent did not address itself to the constructed development or to the

Applicants submissions clearly pointing out how that development strayed materially from

that granted planning permission. In that regard it did not consider its jurisdiction to carry

out an appeal in light of the submissions before it.

61. It is well established that a planning assessment, either by a PA or the Coimisiún,

lists previous planning permissions in relation to the subject site and of those in close

proximity. There is an inherent duty to establish that the existing situation is materially as

in any granted permission. Again it is well-established if non-compliant or unauthorised

development exists the decision making body will return the application on the basis that

non-compliant or unauthorised development cannot form the basis for regularisation through

a new application in the absence of a retention application. This is of all the more

significance when submissions identify the non-compliance and unauthorised elements.

62. The Applicant’ submissions and objections were not on the merits of the proposal.

The Applicant has long campaigned for an appropriate wastewater treatment system for this

village. His objections were founded in verifiable environmental concerns some of which

had been previously recognised with conditioned mitigation in the parent permission.

63. Four core environmental issues exist and were not addressed despite reasonable

detailed identification in submissions. Firstly, the percolation area was not constructed as

designed and conditioned. The Applicant provided evidence of where the construction

departed from that conditioned in permission and even provided evidence of the Notice Party

discussing those departures which were not inadvertent but premeditated. He also provided

evidence that the original environmental assessment & testing of the soil in the location of

the percolation area was declared by the Design/Build Contractor to be an incorrect

assessment yet that assessment formed the basis for the parent planning permission.

Instead of seeking permission on the basis of the newly discovered facts the Notice Party

chose to carry out development of its own decision without environmental or planning

oversight.

64. Secondly, there was no assessment of the Stormwater overflow at the wastewater

treatment plant. There was no application in either the parent permission or in these subject

applications to vary anything with the stormwater overflow. I provided evidence that the

mechanism and pipework was altered. Furthermore there was no assessment of the impacts

of this SWO, which is recognised to discharge directly to groundwater, on downstream

dependencies, whether private potable wells or the connected European Sites.

65. For the benefit of the Court, there were two direct discharges to groundwater

associated with the Kilfenora wwtp. The primary discharge to a swallow hole has always

been remote from the wwtp by about approximately 750m at what is identified in these

proceeding as the Percolation Site. The other SWO is at the wwtp and it too is a direct

discharge to groundwater via a separate swallow hole.

66. Thirdly, there was no assessment, of the likely impacts on downstream private wells

or connected European sites from the unauthorised temporary wwtp installed on the subject

site for over 12 months and which discharges directly to the Ballybreen swallow hole without

planning permission or a discharge authorisation.

67. Fourthly, The Applicant in submissions identified that significant flooding persists at

the percolation site which did not exist before these works commenced. The status quo

remains that the discharge of the treated effluent discharges directly to the Ballybreen

swallow. SWO and/or Emergency Overflows discharge at the wwtp swallow hole. I submitted

that the works impacted on the hydrology and particularly the efficacy of the long established

Ballybreen swallow hole. I provided evidence of the substantial flooding which did not

previously occur at this location. The Notice Party’s consultant recognised that the works

may have impacted on the swallow hole. That was not assessed in the NIS or by the

Respondent in its assessment, determination and decision.

68. These four issues go to the core of what was lacking, and identified by the PA’s

Environmental Assessment Officer to be lacking, in the submitted NIS. There was not follow-

up by the PA or the Respondent to address that identified lacuna.

69. A reasonable observer would see that the Notice Party did not include any detail in

its NIS of the works carried out on foot of permission 19/31 (305756) because to do so

would have identified the non-compliant unauthorised development.

70. The inevitable outcome of disclosing the true baseline situation in the NIS was that

the PA would be compelled it initiate s.34 (12) and return both planning applications.

71. That appalling vista may explain why the two previous applications were withdrawn

and why so much resource was applied getting these decisions over the line despite the

lacunae.

72. Probably the only consistent fact in this project is that I submitted in the parent

planning application 19/31 the soil in the proposed location for the percolation beds was not

capable of percolating the effluent arising. In the absence of an expert witness two of the

Notice Party’s experts actually verify my point on this. The soil was removed in its entirety

without planning permission or AA screening.

73. Furthermore in an attempt to justify the removal of the soil and its replacement with

imported crushed stone, the Notice Party’s expert states ‘Once the effluent meets the

karstified limestone bedrock it is expected to move through the weathered highly permeable

epikarst fractures’. That expectation has been demonstrated not to exist at the location of

the ironically named percolation beds’.

Commission’s Position

74. The Commission’s Decisions are not invalid as alleged at Core Ground 2. The

allegations advanced at Core Ground 2 are misconceived. The Applicant’s case is founded

on an unproven assertion that unauthorised development has taken place. No such fact has

been established by evidence or by any court determination. In the absence of any judicial

finding of unauthorised development, the Applicant’s position amounts to speculation/mere

assertion rather than having a proven legal or factual basis. Furthermore, the Commission,

in determining planning appeals such as those at issue herein, is not required to investigate

or adjudicate on alleged unauthorised development. See Murphy v. An Bord Pleanála [2009]

IEHC 38 at §3.4, per Feeney J. Responsibility for planning enforcement rests with the

planning authority in the first instance, and any definitive determination as to whether

development is unauthorised lies with the courts, typically in enforcement proceedings such

as under s.160 of the 2000 Act. No such determination existed in respect of the alleged

unauthorised development relied upon by the Applicant.

75. Moreover, the Applicant’s assertions by reference to and/or in purported reliance on

section 34(12) of the 2000 Act are misconceived in law and reveal no valid complaint in

relation to either of the Commission’s Decisions. Section 34(12) of the 2000 Act provides

that a planning authority shall refuse to consider an application to retain unauthorised

development of land where it decides that either or both of the following was required or is

required in respect of the development: (i) an EIA; (ii) an AA. Neither application before

the Commission sought retention permission for unauthorised development of land. Rather,

permission was sought for prospective development (see e.g. sections 1.0 and 2.0 of the

respective Inspector’s Report in both Commission Decisions in terms of what each proposed

development entails; the planning application forms for both applications; the site notices

for both planning applications; and the newspaper notices for both planning applications).

The planning applications at issue do not come within the embrace of s.34(12) as they are

not applications for permission to retain unauthorised development of land. Thus the

‘prohibition on applying for retention planning permission’ - which is what s.34(12)

comprises (Mount Juliet Estates Residents Group [2020] IEHC 128 at §39 et seq) - simply

does not arise here. For completeness, s.37(7) and (8) of the 2000 Act does not expand the

scope of s.34(12) so as to render it applicable to the subject planning applications. The

Applicant’s reliance on that provision in its pleaded case on Core Ground 2 is therefore also

misconceived.

76. Accordingly, as regards the Gravity Effluent Pipe Permission, in relation to the

Applicant’s allegations of unauthorised development (which allegations the Notice Party

disputes), the Inspector (at §7.2.3 of the Inspector’s Report dated 25 June 2025, ABP-

322234-25) was correct to conclude that the Commission has no planning enforcement role

in relation to same and that the contested allegations raised by the Applicant in this regard

were outside the scope of the appeal. As regards the Site Access/Internal Roads Permission,

the Inspector was likewise correct in reaching the same conclusion (at §7.2.3 of the

Inspector’s Report, also dated 25 June 2025, ABP-322250-25). No error has been identified

by the Applicant in relation to these paragraphs of the respective Inspector Reports at all.

In addition, in relation to the Gravity Effluent Pipe Permission, the Inspector correctly

advised (at §7.2.4 of the Inspector’s Report dated 25 June 2025 (ABP-322234-25)) that the

appeal should be assessed by reference to the development proposed in the current

application, and that it was not appropriate to reopen or challenge the merits of development

already permitted under PA Ref. 19/31 and Ref. 305756-19. The same reasoning is

reiterated at §7.2.4 of the Inspector’s Report in respect of the Site Access/Internal Roads

Permission (ABP-322250-25). No error of law or irrationality has been identified in these

conclusions, which are grounded in the Applicant’s own submissions as recorded by the

Inspector at §§7.2.3–7.2.4 of each Report.

77. Furthermore, the Inspector also accurately summarised the concerns raised by the

Applicant regarding the earlier permitted development, including soil suitability, WWTP

design capacity, the NIS, enforceability of conditions, and polishing filter design (see §7.2.3

and §7.2.4 of each Inspector’s Report). The claim that there was any misrepresentation of

the Applicant’s position is therefore unfounded.

Notice Party’s Position

78. The Applicant’s stated position with respect to Core Ground 2 in the Statement of

Case goes significantly beyond the pleaded case in Core Ground 2. The Notice Party will

object to any attempt by the Applicant to rely on the matters identified above but not pleaded

with respect to Core Ground 2 in support of Core Ground 2 at the hearing of the proceedings.

79. Without prejudice to that position, Core Ground 2 should be refused. Section 34(12)

of the 2000 Act, as applied by section 37(7) and 37(8) of the 2000 Act, provides that the

Commission shall refuse to consider an application to retain unauthorised development of

land where it decides that EIA or AA is required in respect of the development. Section

34(12) of the 2000 Act therefore had no application to the Commission when determining

the Planning Applications, where the Planning Applications did not seek, and the Commission

did not grant, in either the Gravity Effluent Pipe Decision or the Access Roads Decision,

retention permission for any development. In that respect, for the avoidance of doubt, the

works granted permission under the Gravity Effluent Pipe Decision and the Access Roads

Decision have not commenced or been carried out, either prior to the making of those

decisions or at all. The Inspector correctly concluded with respect to each of the Proposed

Developments that the allegations of unauthorised development relied on by the Applicant

before the Commission fall outside of the scope of the appeal to be determined by the

Commission. Those allegations also fall outside the scope of the issues to be determined by

the Court. For the avoidance of doubt, and without prejudice to that position, the premise

of Core Ground 2, which is to the effect that UÉ has carried out unauthorised development,

is denied. No expert or other evidence capable of establishing any such unauthorised

development was adduced either before the Commission or in these proceedings.

80. The Applicant’s contentions with respect to the Stormwater Overflow which he now

invokes in support of Core Ground 2 were pleaded with respect to Core Grounds 1 and 7.

Strictly without prejudice to that position, those contentions are misconceived and cannot

ground any challenge to the Commission Decisions under challenge. The Stormwater

Overflow was constructed in 1978 and altered by the Kilfenora WWTP Permission. This was

fully assessed in the Kilfenora WWTP Decision which has not been challenged, with respect

to any alleged failure to proper assess the Stormwater Overflow or at all. The Commission

Decisions under challenge did not grant permission for the Stormwater Overflow or alter the

Stormwater Overflow in any way and these pleas therefore comprise a collateral challenge

to the Kilfenora WWTP Permission. Similarly the Applicant’s contentions with respect to

flooding which he now invokes in support of Core Ground 2 were pleaded with respect to

Core Grounds 1 and 7 and also comprise a collateral challenge to the Kilfenora WWTP

Permission. Strictly without prejudice to that position, no expert or other evidence capable

of establishing the contentions relied on by the Applicant with respect to the Stormwater

Overflow or flooding was adduced either before the Commission or in these proceedings.

Those arguments should be rejected.”

86. Section 34(12) of the 2000 Act provides:

“(12) A planning authority shall refuse to consider an application to retain unauthorised

development of land where it decides that either or both of the following was required or is

required in respect of the development:

(a) an environmental impact assessment;

(b) an appropriate assessment.”

87. The basic reason why this point fails is:

(i) Section 34(12) of the 2000 Act does not apply as this was not a retention application.

(ii) Insofar as the applicant’s arguments go beyond the pleaded case these do not

require to be considered as they do not arise.

(iii) The applicant has not overcome the onus of proof to show any error in the

commission’s assessment.

(iv) Insofar as there is a complaint of unauthorised development, that has not been

established, at least for the purposes of the present proceedings. An allegation of

unauthorised development (without more) clearly isn’t sufficient to trigger anything

– that would be unworkable. If a planning decision-taker comes to the view that an

underlying or previous development was actually unauthorised, public policy would

favour the view that a new development could be consented if it did not facilitate or

rely on the previous illegality. A new development that perpetuates an illegality

would generally only be permissible if the illegality is being addressed – either by a

condition as to full rectification, by the grant of retention permission or by a

conditioned compensating measure if full rectification is not possible or appropriate.

But if the position as to legality of the underlying development is not sufficiently

clear on the materials before the decision-taker, then the latter does not have an

obligation to undertake an investigation on this subject, which is normally within the

remit of the planning enforcement process. If in that event the decision-taker does

not come to a conclusion that the development is unauthorised, the onus is on a

judicial review applicant to demonstrate evidentially both that the original

development is in breach of planning law and that there was consequent legal

infirmity in allowing an amendment or further development that perpetuated the

illegality. The law on this subject has been somewhat piece-meal (see the full suite

of cases set out helpfully by David Browne in Simons on Planning Law at pp. 318-

321) but I think the foregoing represents the best synthesis of those rather than

taking any one case (e.g., Murphy v. An Bord Pleanála [2009] IEHC 38 (Unreported,

High Court, Feeney J., 30 January 2009) of high-watermark permissiveness towards

the commission out of a wider legal context and presenting it as being the only

relevant standard.

(v) Nor is an amendment of a permission a vehicle to reopen or challenge the merits of

development already permitted, and the inspector was correct to proceed on that

basis. That does not mean that the interaction between the parent permission and

the amendment is not an essential consideration, or that problems with the parent

permission are irrelevant in that context. But no failure to consider such interactions

to the legally required extent has been proven – the decision and inspector’s report

demonstrate that issues raised by the applicant were considered by the decision-

taker.

Core ground 7 – regard to submissions

88. Core ground 7 is:

“7. The impugned decisions are irrational in that the Respondents considered matters

which are irrelevant and did not consider relevant and important planning and environmental

matters raised by the applicant. The Respondent failed to have mandatory regard, or proper

regard, to the submissions of the applicant as required in s.34 (3) of the Planning and

Development Act 2000 as amended.”

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

“(iii) CORE GROUND 7: Irrationality

Pleaded Complaints at Core Ground §7 and §37 to §59

Applicant’s Position

81. The Respondent considered matters which were irrelevant in the circumstances and

ignored matters of material relevance submitted to it. The Respondent accepted without

questioning the notice Party’s contention that there was always flooding at the percolation

site. It did not consider referencing submitted by this Applicant where in the parent

permission in which the Notice Party submission on several occasions that the wwtp

caretaker declared that he had never seen flooding at the proposed location for the

percolation beds.

82. If the Respondent paid the slightest consideration to this it should have enquired

further as to what changed in the interim, unless of course it did not want to consider that

appalling vista.

83. The Notice Party’s FRA in these subject applications identifies that its FRA in the

19/31 application was flawed. It now identifies well recorded flood events near the wwtp.

Therefore its o[w]n experts have identified shortcomings or errors in its 19/31 NIS, FRA and

AASR. Furthermore its own experts have determined after the 19/31 (305756) planning

decision but before these subject applications were made, that the soil/subsoil under the

proposed percolation beds was not as the design was submitted in the planning application.

Finally, its experts now concur with what I submitted in my 19/31 submissions that the

gravity sewer connecting the wwtp to the percolation beds was not within the 19/31 redline

boundary and therefore could not benefit from that permission. I submitted that that

application was invalid on that basis but that was ignored. Hence the necessity for this

gravity sewer application.

84. The Respondent did not disclose in these planning applications the concerns of its

expert in respect of the percolation site flooding and the possibility that its works may have

impacted on the efficacy of the swallow hole with knock on implications for the entire basis

of this design.

85. The Respondent in its WFD assessment considered irrelevant matters but chose not

to consider the potential impacts that the discharge of untreated wastewater from the SWO

at the wwtp directly to groundwater through a swallow hole would have on private potable

wells downstream. This concern was submitted to the Respondent but ignored.

86. The Respondent considered information provided by the Notice Party regarding

surface water quality at Poplar Bridge in excess of 9km downstream but neglected to

consider submitted details of the Clooneen (Clare)_010 IE_SH_27C030300 which is only

600m from the proposed development to have a poor WFD status.

87. It accepted without question the Notice Party’s submission that the groundwater

status was good notwithstanding the submission that the groundwater is not tested and

notwithstanding the Applicant’s submitted evidence of proven contamination of downstream

private wells from discharges from this wwtp.

Commission’s Position

88. The Commission’s Decisions are not invalid as alleged at Core Ground 7. There is

no substance to any of the assertions made by the Applicant at Core Ground 7. The claim

of irrationality has plainly not been made out. Whereas the Applicant does not properly

engage with it, there was ample information (prepared by competent experts) before the

Commission on both planning applications on which the Commission was entitled to rely on

in reaching both of its impugned Decisions. Core Ground 7 incorrectly conflates irrationality

with alleged regard to irrelevant considerations and failure to consider relevant

considerations, and the alleged irrelevant/relevant considerations are not properly identified,

with the consequence that the claim is inadequately particularised contrary to Order 84 rule

20(3) and/or Order 103 rule 14(3) RSC. There is no basis to the Applicant’s mere assertion

that the Commission failed to have regard or ‘proper’ regard to his submissions (the latter

being in substance an impermissible, merits-based complaint as regards the weight to be

given to submissions, something that is quintessentially a matter for the decision-maker).

In both Commission Decisions, the Commission had regard to and considered the Applicant’s

submissions. This mere assertion by the Applicant to the contrary is without basis, is not

established evidentially and is contradicted and undermined by the express text of the

Inspector’s Reports (see e.g. sections 3.4, 6.1, 6.6, 7.1, 7.2., 7.3, 7.4, 7.5, Appendix 2 and

Appendix 3 of the Inspector’s Report in ABP-322234-25 and 3.4, 6.1, 7.1, 7.2, 7.3, 7.4, 7.5,

Appendix 2 and Appendix 3 of the Inspector’s Report in ABP-322250-25) and of the

respective Commission Directions (see pages 1 and 2) and Orders (see page 3 of both). Put

otherwise, consideration of the Applicant’s submissions is explicitly recorded in the impugned

Decisions (in the said documents) and has not been disproved by the Applicant (in this

respect, see G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, [2002]

1 I.L.R.M. 401).

89. The Commission also relies in this context on the established principle that lack of

narrative discussion does not equate to lack of consideration (e.g. Duffy [2026] IEHC 46 at

§8, §53; Wild Ireland Defence CLG [2025] IEHC 726 at §134, §160(v); O’Donnell [2023]

IEHC 381 at §39 et seq) and the Applicant has patently failed to discharge the onus to show

a lack of consideration of his submissions by the Commission. As noted above, consideration

of the Applicant’s submissions is explicitly recorded in the impugned Decisions and has not

been disproved by the Applicant. The Applicant in effect contends, based only on mere

assertion, that contrary to its express statement in the impugned Decisions, the Commission

ignored submissions which it has received from the Applicant. That contention is incorrect.

The Applicant has produced no evidence, direct or inferential, of that proposition and so the

point fails (see e.g., Nagle View [2024] IEHC 603 at §90). Further, the Applicant’s complaint

of no engagement (which the Commission rejects as unfounded) demonstrates that the

substance of its complaint is a merits-based disagreement; the Applicant is not happy that

his submissions were not accepted by the Commission. However, the fact that a person’s

submissions were not accepted does not evidentially establish that no regard was had to

them (Nagle View [2024] IEHC 603 at §89). Also, as Farrell J. stated in Ó Murthuile [2025]

IEHC 498 at §49, ‘The Applicant is not entitled to point-by-point discussion of his submissions

and nor is he entitled to reasons for the reasons’.

90. Insofar as the Applicant at Core Ground 7 and/or in the associated pleas at §37-§59

purports to challenge the impugned Commission Decisions by way of merits-based

disagreement with, and/or substantive questioning of, the validity of the grant of permission

bearing ref. ABP-305756-19 (PA reg. ref. 19/31) (whereby the Commission granted planning

permission to the Notice Party for upgrade works to the Kilfenora WWTP and for the

construction of a percolation area at Kilcarragh and Ballybreen, Kilfenora, Co. Clare, subject

to 8 no. conditions), it is not open to the Applicant to do so. Any such attempt by the

Applicant to question the validity of the Commission’s Decision under ABP-305756-19 is an

impermissible, out of time, collateral challenge which cannot be maintained.

91. Furthermore, in both Commission Decisions, the issue of flooding was adequately

considered and comprehensively assessed, and the conclusions reached by the Inspector

and the Commission regarding same were objectively supportable by reference to the

detailed information that was before the Commission relevant to the issue. In both

Commission Decisions, the conclusions reached by the Inspector (and by the Commission in

granting permission generally in accordance with the Inspector’s recommendations) on the

issue of flooding are valid and objectively supportable by reference to the information that

was before the Commission on both planning applications - in particular the reports and

information submitted by the Notice Party and the information and views submitted by the

planning authority – being information the Commission and Inspector were entitled to prefer.

In this regard see e.g. the extracts of the relevant documents quoted at §54(i) – (vii) of the

Commission’s Statement of Opposition. On a correct reading of the information that was

before the Commission across both appeals, it can be seen that the Notice Party, planning

authority, and Inspector all rely on the Specific Flood Risk Assessments (SSFRA) submitted

by the Notice Party to conclude that the proposed works will not increase flood risk. It is

apparent from the information that was before the Commission that, in essence, the

proposed infrastructure (gravity effluent pipe, percolation beds, and road works) will not

worsen flooding; instead, it will reduce peak loading on the swallow hole by diverting and

dispersing flows over a wider area, with attenuation and infiltration benefits. The small scale

of any loss of flood storage from road raising is considered negligible (around 0.12% in one

case), and permeable surfaces and SuDS measures are said to further limit impact. Overall,

the planning authority and the Inspector (and the Commission) concluded that the proposed

developments are acceptable from a flood risk perspective and will not significantly affect

flooding on-site or on neighbouring lands. That conclusion is objectively supported by the

information that was before the Commission. The Applicant’s assertions and impermissible,

merits-based disagreement at Core Ground 7 in relation to flooding are not established

evidentially. Simply put, the Applicant has failed to demonstrate any irrationality, legal

infirmity or invalidity in either of the Commission’s Decisions.

92. As to AA, as regards both Commission Decisions, the AAs conducted were lawful and

carried out in accordance with the requirements applicable to same. The non-expert, mere

assertions of the Applicant (who is the litigant in this action and is not independent) are not

a basis for and do not establish any flaw or legal infirmity in the AAs that were carried out

by the Commission. The correct factual position is that the planning authority at first

instance and the Commission on appeal both carried out an AA and were each satisfied as

to the adequacy of the information that was before them for the purposes of undertaking

such assessment. Both Commission Decisions expressly record (see page 3 of both Orders)

that the Commission considered that the information before it was sufficient to undertake a

complete assessment of all aspects of the proposed developments in relation to the identified

European sites’ Conservation Objectives using the best scientific knowledge in the field.

93. Insofar as concerns what was stated in the Council’s Environmental Assessment

Officer’s internal, technical report, the Applicant’s case is misconceived and does not reflect

a correct understanding of that report or the Commission’s consideration of same. For

example, the Inspector noted in both Reports that the Council’s Environmental Assessment

Officer (EAO) had identified that the NIS ‘looks at both P.25-60011 & P.25-60013 in isolation

and does not take into consideration any impacts associated with P.19-31 even within the

cumulative and in-combination assessment of other Plans and Projects which is not in

keeping with the requirements of the legislation in terms of Appropriate Assessment’). See

§3.2.2, page 6 of the Inspector’s Report in ABP-322234-25 and §3.2.2 pages 6-7 of the

Inspector’s Report in ABP-322250-25 which both summarise the aforementioned quote from

the EOA report. What the Applicant’s pleaded case at Core Ground 7 fails to refer to, still

less properly engage with, however, is the fact that, having identified this as an issue, the

Council’s EAO went on to assess both of the subject planning applications on their own basis

and in combination with the as built Kilfenora WWTP (ABP-305756-19) and concluded that

subject to mitigation measures, there would be no adverse effects on the integrity of the

relevant European Sites (either directly or indirectly), alone or in-combination with other

plans or projects. It was in that context that the Council’s Planner in her Report prepared

in respect of both planning applications adopted the conclusions of the EAO, and on that

basis, the Council, as the Competent Authority, made the section 177V (AA) Determinations

it did. Further, as was recorded in both Inspector’s Reports (see section 6.5 of both Reports),

the Council confirmed to the Commission that it concurred with the ‘the observation that the

WWTP and Percolation Site was considered as part of the baseline scenario, and that the

potential for adverse effects on European Sites can be excluded on the basis of the highly

treated nature of discharge, the dilution afforded by intervening ground and surface water

and water quality monitoring data from the River Fergus, and local group water schemes.’

94. As regards WFD, in both impugned Commission Decisions, the Inspector considered

groundwater vulnerability, mitigation measures, and compliance with environmental

standards. It was not accepted by the Inspector or the Commission that discharge of

untreated wastewater to groundwater formed part of the proposed developments under

consideration, nor has the claim advanced by the Applicant at the said pleas been established

evidentially. In this connection, the Applicant relies on his own assertions and supposition,

which do not disclose any deficiency or lacuna in the WFD assessment carried out by the

Inspector (with which the Commission agreed in granting permission generally in accordance

with the Inspector’s respective recommendations). As regards the WFD, by reference to the

evidence that was before the Commission when making its Decisions, there was no evidence

that the granting of permission for the proposed developments may cause a deterioration of

the status of a body of surface water or jeopardise the attainment of good surface water

status or good ecological potential and good surface water chemical status such as to oblige

the Commission to refuse permission. The Applicant has not established evidentially

anything to the contrary. Furthermore, contrary to what the Applicant appears to assert in

his pleaded case, the existence of boil notices does not, of itself, establish WFD status

deterioration or a causal link to the proposed developments at issue in this case. The

Inspector’s conclusions for WFD purposes (with which the Commission agreed) were open

to the Commission based on the information that was before it.

Notice Party’s Position

95. The Applicant’s stated position with respect to Core Ground 7 in the Statement of

Case goes significantly beyond the pleaded case in Core Ground 7. The Notice Party will

object to any attempt by the Applicant to rely in the matters identified above but not pleaded

with respect to Core Ground 7 in support of Core Ground 7 at the hearing of the proceedings.

96. Strictly without prejudice to that position, the Applicant’s claim with respect to

flooding comprises an impermissible collateral challenge to the Kilfenora WWTP Permission

and should be refused on that basis. Further and strictly without prejudice to that position,

insofar as the Applicant’s claim with respect to flooding addresses the Commission Decisions

under challenge in these proceedings at all – as opposed to the Kilfenora WWTP Permission

– they comprise an impermissible merits-based challenge to the Commission’s assessment

of flooding in the Commission Decisions. Those pleas do no more than repeat submissions

made to and rejected by the Council and the Commission, and with respect to which the

Applicant has adduced no evidence, still less expert evidence, either before the Commission

or in these proceedings. The conclusions reached by the Commission in the Gravity Effluent

Pipe Application and in the Access Roads Application are set out in detail in UÉ Statement of

Opposition and it is evident that the Commission was entitled to reach those conclusions

having regard to the evidence that was before it.

97. For the avoidance of doubt, the balance of the pleas in Core Ground 7 in the

Amended Statement of Grounds that are not addressed by the Applicant in the Statement

of Case should be refused on the grounds outlined in UÉ’s Statement of Opposition and

written legal submissions.”

90. The basic reason why this point fails is:

(i) Insofar as the applicant’s arguments go beyond the pleaded case these do not

require to be considered as they do not arise.

(ii) There is a presumption that the decision-taker has had regard to matters such as

submissions if she so states. The applicant has not overcome the onus to

demonstrate the contrary. Lack of narrative discussion does not equate to lack of

consideration.

(iii) The complaint of lack of “proper” regard is a merits complaint.

(iv) It is not open to the applicant to collaterally challenge the parent permission via an

amendment.

(v) The issue of flooding was the subject of assessments submitted by the developer

which were considered. The applicant has not discharged the onus of proof to show

that such consideration or the EU law assessment more generally was legally

inadequate.

EU law issues

Core ground 1 – inadequate assessment

91. Core ground 1 is:

“1. The impugned decisions of the Coimisiún are invalid because the determinations

required to be made in accordance with s.177V (1) (b) contain lacunae and did not consider

important environmental matters associated with the existing development.”

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

“(i) CORE GROUND 1: AA Lacuna

Pleaded Complaints at §1 and §7 to §15 inclusive.

Applicant’s Position

49. The Applicant raised concerns before the PA and the Coimisiún on appeal inter alia

that the NIS did not contain all the baseline information for the decision maker to make a

fully informed AA determination as required under S.177V.

50. The PA Executive Environmental Officer in her assessment of the NIS submitted

noted that the NIS had no information regarding the as constructed development under the

parent permission 19/31 (ABP-305756-19).

51. The PA initially and the Respondent made s.177 determinations without making

enquiries of having the necessary information regarding the as constructed development

including aspects of that development with evidence that the as constructed development

was not in accordance with the granted permission.

52. The issues of non-compliance/unauthorised development are material

environmental matters given connectivity with downstream European Sites and in respect

of groundwater which is the source of potable water for private wells which were identified

as being polluted directly from this wwtp.

Commission’s Position

53. The Commission’s Decisions are not invalid as alleged at Core Ground 1. As regards

both Commission’s Decisions, the Appropriate Assessment Screening and the Appropriate

Assessment (AA) that the Commission carried out were lawful and complied with the

requirements applicable to same. The Commission’s conclusions for AA screening and AA

purposes in both of its impugned decisions were open to it based on the materials that were

before it. The Applicant has not pointed to any scientific evidence that in any way impugns

the validity or correctness of either of the respective Inspector Reports or the respective

Commission’s Decisions as regards the AA screening and AA that the Commission carried

out. Neither AA contain lacunae (none have been identified by the Applicant). The Applicant

has failed to identify or evidentially establish ‘important environmental matters associated

with existing development’ that ought to have been but were not considered. The onus of

proof as to an alleged inadequacy in the Decisions cannot be discharged by mere assertion,

nor does mere assertion create scientific doubt for AA purposes. Another difficulty for the

Applicant’s case is that it is established law that any complaint as to lacunae or lack of

appropriate findings in an EU law assessment has to be established evidentially. Applying

such law to the facts here, the Applicant has failed to discharge that onus on Core Ground 1

and otherwise.

54. In both Commission Decisions, the NIS is described and analysed (see e.g. pages

17-20, 32-33 and 53-72 of the Inspector’s Report in ABP-322234-25 and pages 35-36 and

56-77 of the Inspector’s Report in ABP-322250-25). The subject matters of the AAs

conducted were, properly, the proposed developments the subject matters of each of the

two respective planning applications. Further, the Applicant’s contention that there was ‘no

assessment’ of permitted works already carried out is incorrect. Possible in-combination

effects were considered for AA purposes as required (see e.g. pages 17-18, 32-33, 59, 64,

68, 71 of the Inspector’s Report in ABP-322234-25; and pages 20, 35, 64, 69, and 77 of the

Inspector’s Report in ABP-322250-25). For AA purposes, the constructed Kilfenora WWTP

and Percolation Area were part of the baseline scenario considered in the planning

applications at issue. The in-combination effects sections of the respective AA Screening

Reports (submitted by the Notice Party with the subject planning applications) state, ‘The

Proposed Development working areas overlap with those of the previously permitted WWTP

and Percolation Site developments which completed construction in November 2023, and

forms part of the baseline environment which was assessed herein’. The Kilfenora WWTP

(constituting existing development) has been taken into consideration for AA purposes. As

noted, for example, at page 60 of the Inspector’s Report in ABP-322234-25, ‘the Appropriate

Assessment Screening report included consideration of the existing, permitted WWTP in the

context of the baseline environment’ (see also e.g. page 64 of the Inspector’s Report in ABP-

322250-25 where the same point is made by the Inspector in the context of that application).

Further, the Council also carried out its own in-combination assessment (considering the

subject planning applications and the Kilfenora WWTP (PA reg. ref. 19/31)), on the basis of

information available to it on water quality and effluent quality, with focus on the operational

impacts arising from the discharge of treated effluent to the environment from the Kilfenora

WWTP (and said assessment by the Council was before the Commission and considered by

it).

55. The premise of the Applicant’s assertion – that unauthorised development has taken

place – is not established. No such court finding or evidence of such a court finding in

relation to unauthorised development was before the Commission on either planning

application at issue. There is no such finding or evidence of such finding before the Court

regarding non-compliance with grant of permission ABP-305756-19 or otherwise. The

determination of whether development is unauthorised is ultimately a matter for the courts

in proceedings such as planning injunctions proceedings under s.160 of the 2000 Act. The

Applicant incorrectly conflates his mere assertions in this regard, on the one hand, with

established facts and legal findings regarding unauthorised development, on the other (and

no such findings were before the Commission on either planning application at issue, and

are also not before the Court). In ABP-322234-25, the Inspector summarises allegations of

unauthorised development at internal pages 7, 11–13, 26, 28, and 40 and addresses

planning history at pages 8-9. In ABP-322250-25, the Inspector summarises allegations of

unauthorised development at internal pages 9, 13-15, 27, 43, and 58 and addresses

planning history at pages 9-10. As regards ABP-322234-25, the Inspector (at §7.2.3 of the

Inspector’s Report dated 25 June 2025, ABP-322234-25) was correct to conclude that the

Commission has no planning enforcement role in relation to same and that the contested

allegations raised by the Applicant in this regard were outside the scope of the appeal. As

regards ABP-322250-25, the Inspector was likewise correct in concluding the same therein

(at §7.2.3 of the Inspector’s Report, also dated 25 June 2025, ABP-322250-25). No error

has been identified by the Applicant in relation to these paragraphs of the respective

Inspector Reports at all.

56. Furthermore, there is no basis to the Applicant’s mere assertion that there was a

lacuna in the NIS and AA in respect of a stormwater overflow at the boundary of the WWTP

site and the direct discharge of untreated wastewater to groundwater. Impacts on water

quality, including hydrological and groundwater pathways are analysed at e.g. §7.3.1-§7.3.5

and Appendix 4 of the Inspector’s Report on ABP-322234-25, and at e.g. §7.3.1-§7.3.5 and

Appendix 4 of the Inspector’s Report on ABP-322250-25. In both impugned Commission

Decisions, the Inspector considered groundwater vulnerability, mitigation measures, and

compliance with environmental standards. It was not accepted by the Inspector or the

Commission that an unlawful discharge of untreated wastewater to groundwater formed part

of the proposed developments under consideration, nor has such a claim by the Applicant

been established evidentially. In this regard, the AA to be carried out by the Commission is

to be addressed to the potential effects on European sites of the proposed development for

which permission is being sought. That was validly done in both Decisions.

Notice Party’s Position

57. The only plea in Core Ground 1 that the Applicant has addressed in the Statement

of Case is the plea at §10 that the NIS submitted with one and/or both of the Planning

Applications impermissibly failed to assess works carried out on the sites of the Proposed

Developments with respect to the Kilfenora WWTP. This plea should be rejected. There was

no failure in the NIS to assess the Proposed Developments cumulatively with the works that

had been carried out on the sites. As is evident from the NIS submitted with the Planning

Applications, and as was reconfirmed in UÉ’s Response to the Appeal dated 7 May 2025 and

the Ecology Response Letter by Thorne Ecology dated 6 May 2025 with respect to each of

the Planning Applications, the development constructed on the relevant sites, including the

Kilfenora WWTP and the percolation site, was fully encompassed in the baseline scenario

described and considered in each NIS for the purposes of the Proposed Developments. The

Applicant has not adduced any expert or other evidence capable to establishing that there

was any error or lacuna in the carrying out of the AA in that respect.

58. Insofar as the Applicant suggests that his submissions were not considered, that is

not correct. The submissions made by the Applicant were considered in detail in the

Inspector’s Report. The Applicant impermissibly equates the fact that the Commission did

not accept his submissions with a contention that there was no consideration of the

submissions.

59. For the avoidance of doubt, the balance of the pleas in Core Ground 1 in the

Amended Statement of Grounds that are not addressed by the Applicant in the Statement

of Case should be refused on the grounds outlined in UÉ’s Statement of Opposition and

written legal submissions.”

93. The basic reason why this point fails is:

(i) the applicant has not overcome the onus of proof to demonstrate an inadequacy in

the assessments undertaken or a lack of consideration of submissions or other

relevant matters;

(ii) the material before the commission including the NIS expressly addresses issues

complained of by the applicant including cumulative/ in-combination effects with the

previously consented development; and

(iii) the points referred to earlier in the judgment also apply regarding the claim of

unauthorised development.

Core ground 8 – breach of directives

94. Core ground 8 is:

“8. The impugned decisions are invalid because they contravene A1,A4,A14 of the Water

Framework Directive 2000/60/EC and A1,A3,A4,A6,A11, of the EIA Directive 2011/92/EU as

amended by DIRECTIVE 2014/52/EU and A6(3) Habitats Directive 92 / 43 / EEC.”

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

“(iv) European Law

Pleaded Complaints at §2 and §60 to §66 inclusive.

Applicant’s Position

98. The Respondent failed to carry out an Appropriate Assessment without lacunae. It

neglected to require information on potential impacts on European sites from the unassessed

temporary wwtp, the potential impacts on these sites from the removal of soil/topsoil from

the percolation beds, the replacement of the conditioned stratified sand filters with stone

filled percolation beds, the potential impacts on protected sites form SWO discharges and/or

impacts on potable water sources previously identified to having been impacted by

discharges from this wwtp.

Commission’s Position

99. The Commission’s Decisions are not invalid as alleged at Core Ground 8. The

Applicant alleges that the Commission’s Decisions are invalid because they contravene

Articles 1, 4 and 14 of the Water Framework Directive, Articles 1, 3, 4, 6, 11 of the EIA

Directive and Article 6(3) of the Habitats Directive. There is no substance to these claims,

which are advanced in the abstract and inadequately particularised contrary to Order 84 rule

20(3) and Order 103 rule 14(3) RSC.

100. As regards the WFD, as part of both Commission Decisions, a WFD screening

assessment was undertaken (see e.g., pages 19, 21, 23, 27-28 and Appendix 4 of the

Inspector’s Report in ABP-322234-25; and pages 21-22, 24, 26, 28-30 and Appendix 4 of

the Inspector’s Report in ABP-322250-25). In both Decisions, the conclusion of the

Inspector (at §7.3.5 in each Inspector’s Report) - and of the Commission in granting

permission generally in accordance with the Inspector’s recommendations for both

applications - was that on the basis of objective information, the proposed developments

will not result in a risk of deterioration of any water body (rivers, lakes, groundwaters,

transitional and coastal) either qualitatively or quantitatively or on a temporary or

permanent basis or otherwise jeopardise any water body in reaching its WFD objectives, and

consequently can be excluded from further assessment. Such conclusions were open to the

Commission based on the information that was before it (such information including, for

example, the Water Framework Directive Assessment submitted by the Notice Party in its

response to the Applicant’s third party appeals; the information submitted on the nature and

extent of the proposed developments; the mitigation measures proposed during the

construction phase of the proposed developments; and the findings of the Site Specific Flood

Risk Assessment submitted by the Notice Party as part of the subject planning applications).

Furthermore, as regards the WFD, considering the evidence that was before the Commission

when making its Decisions, there was no evidence that the granting of permission for the

proposed developments may cause a deterioration of the status of a body of surface water

or jeopardise the attainment of good surface water status or good ecological potential and

good surface water chemical status such as to oblige the Commission to refuse permission.

The Applicant has not established evidentially that the proposed developments would result

in the deterioration of the status of any waterbody requiring or assigned a WFD status. On

a correct interpretation of the information that was before the Commission on both planning

applications at issue, there was nothing before the Commission (and there is nothing before

this Court) to suggest that the proposed developments would present a risk of deterioration

of the WFD status of any waterbody. Rather, the information before the Commission was

that the water quality status of relevant WFD waterbodies will not deteriorate as a result of

the proposed developments being carried out. Accordingly, the complaints made at Core

Ground 8 regarding WFD are not made out and disclose no invalidity or legal infirmity in

either of the Commission’s Decisions. The need for the Applicant to have evidence to support

his claims regarding the WFD is clear from the settled law and its total absence here is fatal

to the Applicant’s WFD complaint in this case (An Taisce v An Bord Pleanála (No.1) [2021]

IEHC 254 at §33; Tarian Hafren Severn Shield CYF [2022] EWHC 683 at §163-§166;

Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2022] IEHC 700 at

§59 et seq; Salmon Watch Ireland CLG [2024] IEHC 421 at §1095-§1097; Ryanair DAC v

An Bord Pleanála [2025] IEHC 74 at §67-§78).

101. As regards the Habitats Directive and AA screening and AA, AA screening and AA

were carried out as part of both Commission Decisions (see e.g., sections 7.6, 7.7, Appendix

2 and Appendix 3 of the Inspector’s Report and pages 2-3 of the Commission’s Order in ABP-

322234-25 ; and sections 7.6, 7.7, Appendix 2 and Appendix 3 of the Inspector’s Report

and pages 2-3 of the Commission’s Order in ABP-322250-25). In relation to both of the

Commission’s Decisions, as regards AA screening and AA, the Applicant has not

demonstrated that the evidence and materials that were before the Commission were so

flawed on their face that a reasonable expert would have objected to them (Reid (No.2)

[2021] IEHC 362 at §45; Hellfire Massy [2021] IEHC 424 at §57). The non-expert assertions

and merits-based submissions of the Applicant (who is the litigant in this action and is not

independent) are not a basis for and do not establish any inadequacy or deficiency in the

either of the AA screenings or the AAs carried out by the Commission nor any inadequacy in

the information that before was the Commission on either planning application. As regards

AA, the Applicant advances inadequately particularised claims in the abstract without any

supporting expert ecological evidence and without any reference to any specific European

Site and/or any specific Qualifying Interest. Also, possible in-combination effects were

considered for AA purposes as required (see e.g. pages 17, 18, 32-33, 59, 64, 68, 71 of the

Inspector’s Report in ABP-322234-25; and pages 20, 35, 64, 69, and 77 of the Inspector’s

Report in ABP-322250-25). For AA purposes, the constructed Kilfenora WWTP and

Percolation Area were part of the baseline scenario considered in the planning applications

at issue. The in-combination effects section of the respective AA Screening Reports

(submitted by the Notice Party with the subject planning applications) states, ‘The Proposed

Development working areas overlap with those of the previously permitted WWTP and

Percolation Site developments which completed construction in November 2023, and forms

part of the baseline environment which was assessed herein’. The Kilfenora WWTP

(constituting existing development) has been taken into consideration for AA purposes. As

noted, for example, at page 60 of the Inspector’s Report in ABP-322234-25, ‘the Appropriate

Assessment Screening report included consideration of the existing, permitted WWTP in the

context of the baseline environment’ (see also e.g. page 64 of the Inspector’s Report in ABP-

322250-25 where the same point is made by the Inspector in the context of that application).

The Council also carried out its own in-combination assessment (considering the subject

planning applications and the Kilfenora WWTP (PA reg. ref. 19/31)), on the basis of

information available to it on water quality and effluent quality, with focus on the operational

impacts arising from the discharge of treated effluent to the environment from the Kilfenora

WWTP (and said assessment by the Council was before the Commission and considered by

it). Further, both of the Commission Orders confirm that the Commission considered the

site-specific Conservation Objectives for the European Sites, the likely direct and indirect

impacts arising from the respective proposed developments, both individually or in

combination with other plans or projects, and mitigation measures which are included as

part of the respective proposed developments. As regards both Commission Decisions, the

Applicant has failed to discharge the onus of proof. Accordingly, as regards AA, Core Ground

8 fails.

102. As regards EIA, as stated at §5.4 of the Inspector’s Report in ABP-322234-25 and

at §5.4 of the Inspector’s Report in ABP-322250-25 (see also Appendix 1/ Form 1 of each

Report), the proposed development in each case is not a class for the purpose of EIA as per

the classes of development set out in Schedule 5 of the Planning and Development

Regulations 2001 (as amended) (or Part V of the Road Regulations 1994) and no mandatory

requirement for EIA arises and there was also no requirement for EIA screening. The

respective conclusions reached by the Inspector in each application – and with which the

Commission agreed in granting permission generally in accordance with the Inspector’s

recommendation for both applications – that EIA screening and EIA were not required in

respect of either of the proposed developments, are not specifically challenged or impugned

by the Applicant at Core Ground 8 or otherwise. The Applicant has not identified or alleged

or pleaded any error of law or any legal infirmity in the aforesaid conclusions of the Inspector

for EIA purposes. None of the pleas at §60-§66, Particulars of Legal Grounds, even refer to

the EIA Directive, still less advance any plea alleging a breach of same. The only reference

to the EIA Directive is the entirely unparticularised and impermissibly vague and abstract

assertion in Core Ground 8 itself that ‘The impugned decisions are invalid because they

contravene … A1, A3, A4, A6, A11, of the EIA Directive 2011/92/EU as amended by

DIRECTIVE 2014/52/EU’. Such an inadequately particularised plea (which is denied by the

Commission) is in breach of the requirements of Order 84 rule 20(3) and/or Order 103 rule

14(3) RSC and cannot properly form the basis for the grant of any relief. Further, this

assertion contained only in the text of Core Ground 8 itself comprises non-independent, non-

expert, mere assertion that the Applicant has not established evidentially. Accordingly, and

in circumstances where the Inspector (and the Commission’s) actual conclusions for EIA

purposes are not challenged or impugned, the EIA complaint at Core Ground 8 must fail.

103. In addition, there is no basis for the Applicant’s incorrect assertion (§61, Particulars

of Legal Grounds) that the impugned Commission Decisions authorise discharge directly to

groundwater via a swallow hole in direct contravention of Article 6(1) of the Groundwater

Directive (2006/118/EEC) as alleged or at all. The development assessed relates to

alterations to and access works associated with a wastewater treatment plant (WWTP)

facility operating under regulatory control. The Inspector did not find, nor was it established

evidentially, that the proposed developments at issue involved a direct discharge of

pollutants to groundwater. The information before the Commission (which it and its

Inspector accepted) was that the proposed developments will not result in any negative

impacts on hydrogeology in the area. In respect of both applications (see §7.3.3-§7.3.5 of

both Inspector Reports), the Inspector was satisfied that, based on the information that was

before the Commission and having assessed the proposed developments, ‘there is no

conceivable risk to any surface and/or groundwater water bodies either qualitatively or

quantitatively.’ The Inspector also noted (see e.g. pages 17 and 19 of the Inspector’s Report

in ABP-322234-25 and pages 20-22 of the Inspector’s Report in ABP-322250-25) and

evidently accepted the point made by the Notice Party (in response to the Applicant’s third-

party appeals) that the rationale of the new WWTP at Kilfenora is to stop the direct discharge

of poorly treated effluent into the swallow hole and thereby improve the downstream water

quality. Further, it is noted that the Water Framework Directive Assessment statement

submitted by the Notice Party as part of its response to the respective third-party appeals

by the Applicant confirms that protection of water bodies has been considered as a proactive

part of project design and that the proposed developments will not cause a deterioration in

status in any water body. In the premises, there is nothing in this point or any of the other

inadequately particularised assertions at Core Ground 8.

Notice Party’s Position

104. The Applicant’s stated position with respect to Core Ground 8 in the Statement of

Case does no more than repeat arguments made under Core Grounds 1, 2 and 7. UÉ relies

on its position as already set out above in response. For the avoidance of doubt, the balance

of the pleas in Core Ground 8 in the Amended Statement of Grounds that are not addressed

by the Applicant in the Statement of Case should be refused on the grounds outlined in UÉ’s

Statement of Opposition and written legal submissions.”

96. The basic reason why this point fails is:

(i) The applicant has not overcome the onus of proof to demonstrate evidentially that

the conclusion of the WFD assessment or AA screening was flawed, bearing in mind

the limited nature of the exercise here which was to consider the amendments rather

than revisit all matters related to the parent provision.

(ii) This is not a type of project coming within EIA and the applicant has not pleaded

any basis to impugn such a conclusion.

(iii) Generally the issues complained of by the applicant arise from the unchallenged

parent permission rather than this permission. The complained-of effects of the

parent permission do not arise by way of in-combination effects with this permission.

Summary

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

(i) it is settled law that judicial review is concerned with legality rather than merits;

(ii) applying such law to the facts here, the applicant’s merits-based objections do not

give rise to a legal grounds to nullify the permissions here;

(iii) it is settled law that an applicant must discharge the onus of proof to establish all

matters necessary for relief;

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

(v) it is settled law that there is a presumption that the decision-taker has had

regard to matters such as submissions if she so states;

(vi) applying such law to the facts here, the applicant has not displaced that

presumption;

(vii) it is settled law that an applicant cannot use a subsequent decision to launch a

collateral challenge to an earlier decision;

(viii) applying such law to the facts here, the applicant’s central concerns arise from the

parent permission rather than these relatively modest amendments, and the present

judicial review is not a valid basis to collaterally impugn an unchallenged 2020

permission;

(ix) it is settled law that EIA only relates to projects specifically covered by the

EIA directive; and

(x) applying such law to the facts here, no basis has been put forward for contending

that this project comes within the scope of EIA obligations.

Order

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

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by the time and in the manner set out below, the

foregoing order be perfected forthwith thereafter on the basis of no order as to costs

(including no order as to any reserved or adjourned costs or costs not otherwise

dealt with);

(iii) the foregoing proposed order be subject to contrary written legal submission or any

consequential application supported by a written legal submission, such submission

to be delivered within 7 days, with replies by other parties within a further 7 days;

(iv) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in this judgment may be addressed pursuant to O. 103

r. 40(4) RSC; and

(v) the matter be listed at 09:30 on Monday 6 June 2026 to confirm the foregoing.