High Court dismisses planning application challenge as solar farm does not trigger EIA Directive requirements.

[2026] IEHC 338

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001632]

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

PLANNING AND DEVELOPMENT ACT 2000

AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2024

AND IN THE MATTER OF AN APPLICATION

BETWEEN

CONOR BREEN, KEITH BARRY AND DUALLA TOGETHER CLG

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

POWER CAPITAL RENEWABLE ENERGY LIMITED

NOTICE PARTY

Date of impugned decision: 5 September 2025

Date proceedings commenced: 30 October 2025

Date of main hearing: 11 May 2026

Date draft judgment circulated: 25 May 2026

JUDGMENT of Humphreys J. delivered on Friday 29 May 2026

“This case contends a solar farm attracts the EIA Directive. It does not. This is settled -

Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28;

Cummins v An Coimisiún Pleanála [2025] IEHC 521; Sweetman v An Bord Pleanála [2020]

IEHC 39; Kavanagh v An Bord Pleanála [2020] IEHC 259; and Moss & Ors v An Coimisiún

Pleanála (No.1) [2026] IEHC 62.” (commission submissions para. 1).

1. The renewable energy development in this case was found acceptable by the council, the

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

submissions by stakeholders. The applicants naturally have a merits-based disagreement with the

outcome, but the question for consideration is whether their objections give rise to grounds

rendering the decision 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 Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 (Unreported,

Supreme Court, O’Donnell C.J., 4 February 2026) para. 118(xiv), the Supreme Court

emphasised the relevance of the extent to which submissions on a given point were

made to the decision-taker, which decision is consistent with the general principle

that, apart from autonomous-type obligations, material capable of sustaining the

point must have been properly before the decision-taker at the relevant time

such as to give rise to a duty to consider it.

(ii) In A.P. v. Director of Public Prosecutions [2011] IESC 2, [2011] 1 I.R. 729, [2011]

2 I.L.R.M. 100, [2011] 1 JIC 2501; Khashaba v. Medical Council [2016] IESC 10,

[2016] 3 JIC 0701, 2016 WJSC-SC 12280 per O’Malley J. (Denham C.J. and Clarke

J. concurring) at para. 56; Casey v. Minister for Housing, Planning and Local

Government & Ors. [2021] IESC 42, [2021] 7 JIC 1606 (Unreported, Supreme Court,

Baker J., 16 July 2021) (Clarke C.J., O'Donnell, MacMenamin and Dunne JJ.

concurring) at §§29 and 31; Concerned Residents of Treascon and Clondoolusk v.

An Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme

Court, 4 July 2024) per Murray J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins

and Donnelly JJ. concurring), the Supreme Court emphasised that applicants are

confined to their pleadings.

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

IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024), per Murray

J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring), the Supreme Court

emphasised that complex EU law arguments need to be articulated on the

pleadings with particular clarity.

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

IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024) (O'Donnell C.J.,

Woulfe, Collins and Donnelly JJ. concurring), 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.

(v) 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 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; Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court,

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

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

the merits of the decision.

(vi) 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.

(vii) In Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38, [2024]

1 I.R. 386, [2022] 10 JIC 2402 per O’Donnell C.J. at para. 22 (Dunne, Woulfe, Hogan

and Murray JJ. concurring), and per MacMenamin J. (Fennelly and Clarke JJ.

concurring) in Babington v. Minister for Justice Equality and Law Reform & Ors.

[2012] IESC 65 (Unreported, Supreme Court, 18 December 2012) at para. 7, the

Supreme Court emphasised that scattergun pleadings are inappropriate.

(viii) In Waltham Abbey/Pembroke Road Association v. An Bord Pleanála [2022] IESC 30,

[2022] 2 I.L.R.M. 417 (§43 per Hogan J.; MacMenamin, Charleton, O’Malley and

Baker JJ. concurring); Heather Hill Management Company CLG v. An Bord Pleanála

[2022] IESC 43, [2024] 2 I.R. 222, [2022] 2 I.L.R.M. 313 (§106 et seq. per Murray

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

Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205

(inter alia, §47 per Woulfe J.; Dunne, Charleton, O’Malley and Hogan JJ. concurring),

Ashbourne Holdings Ltd v. An Bord Pleanála [2003] IESC 18, [2003] 2 I.R. 114,

[2003] 2 I.L.R.M. 446 per Hardiman J. at para. 30, the Supreme Court proceeded

on the basis that the law does not favour unworkable interpretations.

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

at p. 378 and subsequent cases, the Supreme Court decided that judicial review is

a discretionary remedy within established doctrinal boundaries (see also De Róiste

v. Minister for Defence [2001] IESC 4, [2001] 1 I.R. 190, [2001] 2 I.L.R.M. 241 at

204 per Denham J.; Kenny v. Dublin City Council [2009] IESC 19 (Unreported,

Supreme Court, 5 March 2005) at 79 per Fennelly J. (Macken and Peart JJ.

concurring); Kelly v. Minister for Agriculture [2021] IESC 62, [2023] 1 I.R. 38 per

O’Donnell J. (Clarke C.J. and Dunne J. concurring); Save Cork City Community

Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60 per

Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ. concurring); Ballyboden Tidy

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

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

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

Supreme Court, 25 November 2025) per Dunne J. (Charleton, Woulfe, Collins and

Donnelly JJ. concurring) at 98; Amariei v. Chief Appeals Officer [2026] IESC 22

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

and Murray JJ. concurring).

(x) In Eco Advocacy v. An Bord Pleanála [2025] IESCDET 74 (Dunne, Hogan and

Donnelly JJ., 4 June 2025), para. 27, the Supreme Court, non-precedentially but

reflecting CJEU decisions in judgments of 14 December 1995, Jeroen van Schijndel

and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor

Fysiotherapeuten, C‑430/93 and C‑431/93, EU:C:1995:441, para. 17, and of 15

March 2017, Lucio Cesare Aquino v Belgische Staat, C‑3/16, EU:C:2017:209, para.

56, noted that a reference to the CJEU does not arise if the point does not

properly arise in the case.

(xi) In the judgment of 6 October 2021, Consorzio Italian Management and Catania

Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19, ECLI:EU:C:2021:799

(Grand Chamber) at para. 33, the CJEU made clear that the obligation to refer (even

for an apex court) does not apply if a point is acte clair/ acte éclairé.

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

of the applicants as local residents and participants in the process as relevant, and the very

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

legal question here is whether any sufficiently convincing legal reason has been demonstrated to

displace the foregoing.

Geographical context

4. The project (https://www.pleanala.ie/en-ie/case/322270) consists of the construction of a

solar PV development on a circa 108 ha site (reduced from the 129 ha site in the application for

consent) consisting of the erection of solar panels on ground-mounted galvanised steel frames,

string inverters attached to selected ground-mounted galvanised steel frames, 16 transformer units,

underground cabling, security fencing, CCTV system with pole-mounted cameras and landscaping,

six site entrances with access gates utilising existing farm field entrances which will be upgraded

and internal accesses, the installation of underground cables, including cables under public roads,

two temporary construction compounds, and all associated ancillary development works, all at

Boscabell, Garranmore, Newark, Fussough, and Dually, Co. Tipperary. It is located at or near the

following: https://maps.app.goo.gl/Y5La4yymEjj9XDnh9.

Parties

5. Conor Breen, the first named applicant, is a farmer and resides with his family on lands near

the proposed development. He made a submission in respect of the property development to the

planning authority, Tipperary County Council and made an appeal to An Coimisiún Pleanála in respect

of the proposed development.

6. Keith Barry, the second named applicant, is a farmer and business man who resides at

Dualla, Co. Tipperary which is approximately 1 km from the lands the subject matter of the

application, who made a submission to Tipperary County Council in respect of the application made

to it in the first instance and made an appeal to An Coimisiún Pleanála in respect of and arising out

of the decision of the planning authority.

7. Dualla Together CLG, the third named applicant, is a CLG which has its registered offices at

c/o O’Gorman, Brannigan Purtill Accountants & Co, Anglesea House, Anglesea Street, Clonmel, Co.

Tipperary. It made a submission in the first instance to Tipperary County Council and made an

appeal to the commission arising out of the decision of Tipperary County Council.

8. The respondent is An Coimisiún Pleanála, the decision-maker.

9. The notice party is Power Capital Renewable Energy Limited, the developer.

Facts

10. The applicants challenge the decision of the commission made by way of order (ABP-322270-

25) dated 5 September 2025 pursuant to ss. 34-37 of the Planning and Development Act 2000 (the

2000 Act) and the Planning and Development Regulations 2001 (the 2001 regulations) to grant

permission subject to 25 conditions to the notice party for a solar farm development on lands located

at Boscabell, Garranmore, Newark, Fussough and Dually, Co. Tipperary.

11. On 4 March 2024, the developer applied to the council for planning permission for the

proposed development (planning reg. ref. no. 24/60156). The application documentation included,

inter alia, a copy of the site notice, a copy of the newspaper notice, a cover letter, a planning

statement report, an environmental report, volume 1 and volume 2 (with volume 2 comprising part

1 - part 5), an appropriate assessment (AA) screening report and a Natura impact statement (NIS),

a preliminary construction environmental management plan (pCEMP) and a construction traffic

management plan. The application also included a suite of drawings, maps, sections and elevations,

including the site layout plans.

12. Submissions and observations were received on the proposed development, including from

the applicants, in or around April 2024.

13. The council’s planner’s report, dated 24 April 2024, recommended that further information

be sought from the developer.

14. On 26 April 2024, the council issued a request for further information to the developer.

15. On 16 January 2025, through its planning consultant, the developer submitted a response

to the council’s request for further information. The further information response comprised a

technical report with seven appendices.

16. Following a direction from the council, on foot of a further planner’s report dated 21 January

2025, the developer advertised the response to further information on 24 January 2025.

17. Further submissions were received by the council in response to the developer’s response to

the council’s request for further information – including from the third named applicant – in or around

February 2025.

18. The council’s second planner’s report, dated 13 March 2025, was then prepared – same

recorded that some 174 additional submissions had been received in response to the further

information. The report recommended that permission be granted, subject to conditions.

19. On 19 March 2025, the council decided to grant permission for the proposed development.

20. Thereafter, on or about 11 April 2025, seven third-party appeals were lodged with the

commission, including from the applicants.

21. The developer’s appeal response submission, dated 12 May 2025, addressed the issues

raised in the various appeals against the council’s decision.

22. The commission appointed an inspector to consider the appeal and, following a site

inspection on 6 August 2025 (see associated maps and photographs), the inspector, in a report

(ABP-322270-25) dated 20 August 2025 recommended that permission be granted for the proposed

development, subject to conditions.

23. The commission’s direction (CD-020581-25) (ABP-322270-25), dated 2 September 2025,

outlined that the commission had considered the submissions on file and the inspector’s report, and

had decided to grant permission for the proposed development “generally in accordance with the

Inspector’s recommendation” for specified reasons and considerations (see also commission meeting

record, dated 2 September 2025).

24. The commission’s order (ABP-322270-25), dated 5 September 2025, was then made

granting permission for the proposed development, subject to conditions.

Procedural history

25. The proceedings were issued on 30 October 2025.

26. Leave was granted on 1 December 2025. Leave was not granted in respect of core ground

5. 27. An amended statement of grounds was uploaded to ShareFile on 1 December 2025 (which

was filed on 24 April 2026)

28. The commission served its opposition papers on 2 March 2026 (which were filed on 2 March

2026).

29. Power Capital served its opposition papers on 9 March 2026 (which were filed on 2 April

2026).

30. The applicants served unsworn replying affidavits on 17 April 2026.

31. The applicants served their submissions on 19 April 2026.

32. The matter was listed for callover on 20 April 2026.

33. The commission and Power Capital served their submissions on 29 April 2026 and 27 April

2026, respectively.

34. The applicants served sworn copies of their replying affidavits on 29 April 2026.

35. Power Capital served a replying affidavit on 30 April 2026.

36. The matter was listed for hearing on 11 May 2026. Judgment was reserved at the end of

that hearing. I would like to record my thanks to all of the lawyers involved for their unfailingly

courteous, professional and helpful assistance. As I have previously sought to make clear, insofar

as any points advanced are not being accepted in this or any other given judgment, that is solely to

do with the inherent merits of such points and is no reflection on those instructed to convey such

points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to

all concerned.

37. On 25 May 2026, a draft of the present judgment was sent to the parties, pursuant to paras.

15, 195 to 198 and 204 of Practice Direction HC 137, to give an opportunity to address matters such

as errors/ ambiguities on the basis set out below.

38. Parties are required to:

(i) Read the draft or have their legal representatives if applicable do so on their behalf.

(ii) Identify any matters falling within the below.

(iii) Positively communicate with the court in writing in response to the draft by the

deadline specified, such responses to be emailed to the court and uploaded to

ShareFile, either stating that they have no comments or setting out the comments.

(iv) Carry out the foregoing without delay – 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. (Clarke C.J., McKechnie, MacMenamin, Dunne JJ.

concurring) in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

[2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780).

(v) Keep the draft confidential. 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 (Briggs, Kitchin, Burrows, Rose, Arden SCJJ) 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).

39. The foregoing constitutes 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.

40. The responses should not be to reargue the substance (submissions to that effect will be

disregarded) but are confined to matters such as:

(i) informing the court as to whether the party prefers an alternative to a formal written

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

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

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

judgment;

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

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

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

(b) any apparent ambiguity or other matter in the draft that could unnecessarily

multiply issues or complicate the further processing of the matter;

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

(d) 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 submission as to why such

reference is not relevant or otherwise should not be included or as to why such

matter if included should not lead to the proposed conclusion;

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

omitted;

(f) 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

(g) any other proposals as to the wording (as opposed to substance) of the decision

if the proposed wording causes any issue for a party for any identified reason;

and

(iii) assisting the court by providing views on such matters if any on which views are

specifically invited in the draft judgment.

41. In particular, parties should draw the court’s attention to any apparent error or ambiguity

whether they have been successful on the point or not.

42. 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. 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.

43. The deadline for such comments from the parties was to be 16:00 on Wednesday 27 May

2026. Responses were as follows:

(i) applicants – helpfully pointed out a typo, and referred to an authority (I have

amended the draft below to explain why the authority does not advance matters);

(ii) commission – no comments; and

(iii) developer – provided some helpful typo-type corrections.

Relief sought

44. The reliefs sought are as follows:

“1. An Order of Certiorari quashing the decision of the Commission to grant planning

permission for a ten year solar capital PV development on lands comprising 129 hectares

consisting of the erection of solar panels and ground mounted galvanised steel frames, string

inverters attached to selected ground mounted galvanised steel frames, 16 transformer

units, underground cabling, security fencing, 6 entrances with access gates, construction

compounds and associated ancillary development at Boscabell, Garranmore, New Park,

Fussough, and Dually, County Tipperary which lifespan of the development is proposed to

be 40 years and which decision, planning register reference no. 24/60156 Commission Order

no. 322270-25 and which decision is dated 5th September 2025.

2. Such declarations of the legal rights and/or legal position of the Applicants and (if

and insofar as legally permissible and appropriate) persons similarly situate and/or of the

legal duties and/or legal position of the Respondent as the Court considers appropriate.

3. A stay on the implementation of any of the said development and/or taking any

further steps in respect of the implementation of the said decision to include the

implementation of any conditions pending the determination of the above entitled

proceedings.

4. An Order providing for the costs of the application.

5. A Declaration that the Protective Costs Order pursuant to Section 3, 4 and 7 of the

Environment (Miscellaneous Provisions) Act, 2011 and/or Section 50B of the Planning and

Development Act, 2000 (as amended), and/or Order 99 of the Rules of the Superior Courts

(as amended) in respect of the costs of the said application apply to the above entitled

proceedings.

6. Interim and/or interlocutory relief.

7. Further and other relief.

8. The costs of these proceedings.”

Grounds of challenge

45. The core grounds of challenge are as follows:

“Domestic Law Grounds

Core Ground 1

1. The Respondent erred in law and had no jurisdiction to determine the application

where the plans and particulars lodged failed to comply with the mandatory requirements of

Articles 16, 17, 18, 19, 22 and 23 of the Planning and Development Regulations, 2001, which

requirements are mandatory, and failure to comply with which go to jurisdiction and where

the said determination based on plans and particulars that do not comply with these

Regulations are such as to render the decision ultra vires the Respondent, invalid and void.

Core Ground 2

2. The Respondent erred in law and acted contrary to fair procedures and natural and

constitutional justice and contrary to the principle of audi alteram partem in the manner in

which it addressed and considered the Applicants’ submissions and specifically in respect of

flooding, failed to identify and assess the impact of the extent of the hard surfaces and in

particular the angle and discharge rates from the solar panels, the vague and uncertain

nature as to how levels of grass can be maintained within the site and the efficacy of any

such maintenance programme, and did not address properly or at all the submissions of the

Applicants and in particular the submission of Dr Pamela Bartlett, Hydrogeologist, nor

address the concerns in respect of the discharge of surface water onto the public road nor

address the extent to which the existing flooding would be exacerbated and where there was

no or no adequate information that could allow the Respondent to make the decision that it

did and is reflected in the decision of 5th September 2025, and accordingly the decision of

the Respondent is contrary to fair procedures, to natural and constitutional justice, failed to

have regard to relevant considerations and had regard to irrelevant considerations and

accordingly the decision is as a consequence invalid and void.

Core Ground 3

3. The Respondent erred in law in imposing condition No. 5 having regard to the limits

of the Respondent’s jurisdiction which limits conditions to either land the subject matter of

the application or lands outlined in blue which is under the control of the Applicants.

Condition 5 requires silt fences to be constructed on either side of the 2 EPA mapped water

courses part of which lands lie outside the site outlined in red and outside lands under the

control of the Applicants and where the Respondent had no jurisdiction to impose such a

condition having regard to the limits of its jurisdiction imposed pursuant to Section 34(4) of

the Planning and Development Act. The same complaint is made in respect of condition no.

4 which relates to mitigation measures contained in the Natura Impact Statement, condition

10 all of which are imposed without regard to the limits on the jurisdiction of the Respondent

in respect of mitigation measures which can only be imposed in accordance with the

statutory obligations as set out in Section 34(4) of the Planning and Development Act, 2000.

EU Law

Core Ground 4

4. The Respondent erred in law and acted contrary to its obligations under Council

Directive 2011/92/EU (as amended) in its determination of an application which required a

mandatory Environmental Impact Assessment Report (EIAR) where the extent of private

roads proposed forming part of the development exceeded the thresholds provided for in

paragraph 10(dd) of Part II of Schedule 5 of the Planning and Development Regulations and

where the said roads extended to an area in excess of 3,000 metres in length, significantly

in excess of the 2,000 metres specified in the said paragraph 10(dd) and was therefore

required to carry out an EIA of the said development prior to the granting of permission. In

failing to carry out an EIA as required by the said EIA Directive the Respondent acted

contrary to its obligations under the said EIA Directive and accordingly the said

determination under An Bord Pleanála reference 322270-25 of 5th September 2025 is ultra

vires the Respondent, made contrary to its obligations under European Community law and

accordingly is invalid and void.

Core Ground 5

5. The Respondent erred in law in its conclusion (without prejudice to the issue of

whether the Respondent addressed the issue at all) that because the substantive

development did not fall within a class of development specified under Schedule 5 of the

Planning and Development Regulations, 2001 there could be no required for an EIA and

failed to have any regard or to address the requirements to examine particulars part of the

project that might individually require an EIA in accordance with the judgment of the

Commission of the European Communities v. Ireland (Case 427/07) of 16th July 2009.

Core Ground 6

6. The Respondent erred in law in the manner in which it carried out a screening

determination for the purposes of Article 103(1B)(b) of the Planning and Development

Regulations, 2001 particularly having regard to the obligations contained in paragraph

10(dd) of Part II of Schedule 5 of the Planning and Development Regulations and in particular

failed to address or consider whether the private roads/tracks proposed could fall into the

category of Article 10(dd) of Part II of Schedule 5, whether the extensive network of roads

even if they were less than the threshold specified (which is denied) were capable of being

such of causing a significant effect on the environment and wrongly and inappropriately

failed to consider and address these requirements where the recommendation (not

addressed by the Respondent) was that this class ‘had been screened out at pre-screening

stage from further consideration’. The said determination is inconsistent with and contrary

to the Respondent’s obligations under Council Directive 2011/92/EU, amounts to an

improper and inappropriate application of the Respondent’s obligations under Article 103(1B)

of the Planning and Development Regulations, 2001 and which requires an examination of

the nature of the development proposed, and accordingly the said determination is contrary

and other than in accordance with the Respondent’s obligations under the EIA Directive, and

renders the decision invalid and void.

Core Ground 7

7. If this Honourable Court forms the view that the definition of private road as specified

in paragraph 10(dd) of Part II of Schedule 5 particularly in the absence of a definition of the

term in relevant statutory provisions, and having regard to the definition of forestry road in

the European Communities (Forest Consent and Assessment) Regulations, 2010 in respect

of a category of private road, that is it not acte clair whether a road to be constructed to a

standard described in the plans and documentation lodged, and of the extent proposed which

exceeds the thresholds specified require an EIA following the judgment in The Commission

of the European Communities v. Ireland (Case 427/07), it is appropriate to make a

preliminary reference under Article 267 of the TFEU to clarify this issue.”

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

as follows:

“Applicants Position

37. Core Ground No. 3 is not being pursued and This Honourable Court did not grant

leave for the Applicant to pursue Core Ground No. 5”

47. At the hearing the applicants indicated that they were not pursuing core ground 2.

48. This leaves core grounds 1 (invalid application) and 4, 6 and 7 (EIA arising from alleged

roads).

The impugned decision

49. The impugned decision provides as follows:

“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

In coming to its decision, the Commission performed its functions in relation to the making

of its decision, in a manner consistent with Section 15(1) of the Climate Action and Low

Carbon Act 2015, as amended by Section 17 of the Climate Action and Low Carbon

Development (Amendment) Act 2021, in accordance with the provisions of the Climate

Action Plan 2024 and Climate Action Plan 2025, and also had regard to the following:

European Policy/Legislation including:

• Directive 2014/52/EU amending Directive 2011/92/EU (Environmental Impact

Assessment Directive),

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

2009/147/EC (Birds Directive), and

• Directive 2000/60/EC (Water Framework Directive).

National Policy and Guidance including:

• Project Ireland 2040: National Planning Framework (“NPF”), First Revision of the

NPF,

• the National Development Plan 2021-2030,

• the objectives and targets of the National Biodiversity Action Plan 2023-2030,

• the Policy Statement on Security of Electricity Supply (November 2021),

• the National Energy Security Framework (April 2022), and

• the National Energy and Climate Action Plan (2021-2030).

Regional and Local Planning Policy, including in particular:

• the Regional Spatial and Economic Strategy for the Southern Region 2020-2034,

and

• the Tipperary County, Development Plan 2022-2028.

and also had regard to:

(a) the nature, scale and extent of the proposed development,

(b) the pattern of development in the area and the context of the receiving environment,

(c) the measures proposed for the construction, operation and decommissioning of the

proposed development,

(d) the range of mitigation measures set out in the Environmental Report and the

Preliminary Construction Environmental Management Plan,

(e) the range of mitigation measures set out in the Natura Impact Statement,

(f) the measures set out in the Biodiversity Management Plan,

(g) the submissions received in relation to the planning application and the appeal,

(h) the documentation submitted with the planning application and the appeal, and

(i) the Inspector’s report and recommendation.

The Commission considered that, subject to compliance with the conditions set out below,

the proposed development would be in accordance with European, national, and regional

renewable energy policies and with the provisions of the Tipperary County Development Plan

2022-2028, would not seriously injure the visual or residential amenities of the area or

otherwise of property in the vicinity, or have an unacceptable impact on the character of the

landscape or cultural or archaeological heritage, would not have a significant adverse impact

on ecology, would not have a significant adverse impact on water quality, would be

acceptable in terms of traffic impacts and safety, and would make a positive contribution to

Ireland's renewable energy and security of energy supply requirements. The proposed

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

development of the area.

In deciding to omit condition number 17 of the Inspector’s conditions, the Commission were

generally satisfied that the sightlines at the proposed access point to Parcel number 2, as

proposed in the additional information submission, were satisfactory and the revised access

arrangements to Parcel number 2 would not give rise to a traffic hazard.

Appropriate Assessment: Stage 1:

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

Inspector’s Report that the Lower River Suir Special Area of Conservation (Site Code:

002137) is the only European Site in respect of which the proposed development has the

potential to have a significant effect in view of the Conservation Objectives for the site 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 Lower River Suir Special Area of Conservation (Site Code:

002137) in view of the site’s 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 site’s 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 Site,

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

individually or in combination with other plans or projects, and

(iii) the 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 Site.

In overall conclusion, the Commission was satisfied that the proposed development would

not adversely affect the integrity of the European Site in view of the site’s conservation

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

Conditions

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

plans and particulars lodged with the application, as amended by the further plans and

particulars received by the planning authority on the 16th day of January 2025, 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 proposed development shall be carried out and completed in accordance with the

agreed particulars.

Reason: In the interest of clarity.

2. Parcel 3 as indicated on the drawings and documentation submitted with the application

to the planning authority on the 4th day of March, 2024 shall be omitted in its entirety from

the development.

Reason: In the interest of clarity.

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

10 years from the date of this order.

Reason: Having regard to the nature of the development, the Commission considers it

appropriate to specify a period of validity of this permission in excess of five years.

4. The mitigation measures contained in the submitted Natura Impact Statement (NIS), shall

be implemented.

Reason: To protect the integrity of European Sites.

5. All of the environmental, construction and ecological mitigation measures, as set out in

the Environmental Report (Noise Impact Assessment Report, Archaeology Assessment

Report, Glint and Glare Assessment), Biodiversity Management Plan, preliminary

Construction Environmental Management Plan and other particulars submitted with the

application, and by way of further information, shall be implemented by the developer in

conjunction with the timelines set out therein, except as may otherwise be required in order

to comply with the conditions of this Order. In addition, the developer shall install silt fences

on either side of the two number EPA mapped watercourses on the site for the duration of

the construction period. Details of the proposed silt fences shall be submitted to the planning

authority for written agreement prior to commencement of development.

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

construction and operational phases of the development.

6. This permission shall not be construed as any form of consent or agreement to a

connection to the national grid or to the routing or nature of any such connection.

Reason: In the interest of clarity.

7. The electricity control unit, inverters, and fencing shall be dark green in colour or other

dark colour, details of which shall be agreed in writing with the planning authority prior to

commencement of development.

Reason: In the interest of the visual amenity of the area.

8 (a) This permission shall be for a period of 40 years from the date of the commissioning

of the solar array. The solar array and related ancillary structures shall then be removed

unless, prior to the end of the period, planning permission shall have been granted for their

retention for a further period.

(b) Prior to commencement of development, a detailed maintenance regime for the solar

farm and a separate restoration plan, including a timescale for its implementation, providing

for the removal of the solar arrays, including all foundations, anchors, inverter/transformer

stations, control building, CCTV cameras, fencing and site access to a specific timescale,

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

(c) On full or partial decommissioning of the solar farm, or if the solar farm ceases operation

for a period of more than one year, the solar arrays, including foundations/anchors, and all

associated equipment, shall be dismantled and removed permanently from the site. The

site shall be restored in accordance with this plan and all decommissioned structures shall

be removed within three months of decommissioning.

Reason: To enable the planning authority to review the operation of the solar farm over the

stated time period, having regard to the circumstances then prevailing, and in the interest

of orderly development.

9. Prior to commencement of development, the developer shall submit a revised Biodiversity

Management Plan which has regard to the revisions of the layout of the development, as

amended by the further plans and particulars received by the planning authority on the 16th

day of January, 2025.

Reason: In the interest of environmental protection.

10. All mitigation measures in relation to archaeology and cultural heritage shall be

implemented, except as may otherwise be required in order to comply with the following

requirements:

(a) The developer shall retain the services of a suitably qualified archaeologist to advise on

and establish exclusion buffer zones around the external-most elements of the

archaeological sites as listed in Table 1 of the submitted report. I[n] [sic] this regard:

(i) No groundworks of any kind (including but not limited to advance geotechnical site

investigations) shall be permitted in the exclusion buffer zones.

(ii) The exclusion buffer zones shall be fenced off for the duration of construction works

in the vicinity of the monuments. No machinery, storage of materials or any other

activity related to construction shall be permitted within the exclusion buffer zones.

(b) The developer shall engage a suitably qualified, archaeologist to monitor all ground

disturbance required for the proposed development. No groundworks of any type (including

any preparatory/enabling works or advance site investigations) shall take place in the

absence of the archaeologist without his/her express consent. In this regard:

(i) The archaeological monitoring programme shall be carried out under licence from

the National Monuments Service and in accordance with an agreed method

statement.

(ii) The method statement shall include methodology for the preservation by record of

the three areas of brick kilns waste identified in Trenches 7, 15 and 41 during

archaeological testing under Licence 24E0854.

(iii) Should archaeological material be found during the course of the archaeological

monitoring, the archaeologist shall suspend work in the area of archaeological

interest pending a decision as to how best to deal with the archaeology. The

developer shall be prepared to be advised by the planning authority, in consultation

with the Department of Housing, Local Government and Heritage with regard to any

necessary mitigation action e.g. preservation in situ, and/or excavation. The

developer shall facilitate the archaeologist in recording any material found.

(iv) The Department and the planning authority shall be furnished with a report

describing the results of the monitoring. All resulting and associated archaeological

costs shall be borne by the developer.

(c) The developer shall retain the services of a suitably qualified archaeologist to advise on

an archaeological mitigation plan for decommissioning of the development, to include

mitigation measures for the removal of the solar panels and the protection of the

archaeological sites and monuments that are in situ at the site. The Decommissioning

Statement for the Proposed Solar PV Array shall be updated to include the location of any

archaeological or cultural heritage constraints. It shall clearly describe all identified likely

impacts from decommissioning, both direct and indirect, and all mitigation measures to be

employed to protect the archaeological or cultural heritage environment during

decommissioning works.

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

sites, features or other objects of archaeological interest.

11. Prior to commencement of development, the developer shall submit details to the

planning authority confirming the anticipated megawatt capacity and annual electricity

generation of the solar farm.

Reason: In the interest of clarity.

12 (a) Existing field boundaries, including trees and hedgerow, shall be maintained and

supplemented in accordance with the details submitted, except where removal is proposed

to facilitate access to roadways and sight lines.

(b) All proposed landscaping and planting shall take place in the first planting season

following commencement of development and in accordance with the details proposed. The

landscaping and screening shall be maintained at regular intervals. Any trees or hedgerow

that are removed, die or become seriously damaged or diseased within five years from

planting shall be replaced within the next planting season by trees or hedging of similar size

and species, unless otherwise agreed in writing with the planning authority.

(c) Additional screening and/or planting shall be provided so as to ensure that there is no

glint impact on adjoining dwellings as a result of the development. Upon commissioning of

the development, and for a period of two years following first operation, the

developer/operator shall provide detailed glint surveys on an annual basis to the planning

authority in order to confirm that no such glint impact has taken place, and shall provide

such further mitigation measures, as the planning authority may specify in writing, to ensure

that this is achieved.

Reason: In the interest of the visual amenities of the area.

13. Water supply and drainage arrangements, including the attenuation and disposal of

surface water, shall comply with the requirements of the planning authority for such works

and services. In addition:

(a) The access points from the public road shall be provided with a drainage kerb/cattle grid

or approved equivalent surface water cutoff drain which shall discharge to a stone filled

sump located within the site, the details of which shall be submitted to the planning authority

for written agreement prior to commencement of development. Surface water from the site

shall not be allowed to discharge onto the public road or adjoining properties.

(b) Prior to commencement of development, details of the proposed service roads/tracks

and drains shall be agreed in writing with the planning authority. The new tracks shall be

surfaced in gravel or hardcore and shall not be hard topped with tarmacadam or concrete

(c) The developer shall monitor the existing drainage network for blockages and other issues

that could affect its functionality throughout the lifetime of the solar farm.

Reason: In the interest of environmental protection.

14 The solar panels shall be fixed in place by way of driven pile or screw pile foundations

only, unless otherwise authorised by a separate grant of planning permission.

Reason: In the interest of the long-term viability of this agricultural land, and in order to

minimise impacts on drainage patterns.

15. (a) No artificial lighting shall be installed or operated on site unless authorised by a prior

grant of planning permission.

(b) CCTV cameras shall be fixed and angled to face into the site and shall not be directed

towards adjoining property or the road.

(c) Cables within the site shall be located underground.

(d) The perimeter fence shall be erected such that for a minimum of 300 millimetres of its

length its bottom edge is no less than 150 millimetres from ground level.

Reason: In the interests of clarity, of visual and residential amenity and biodiversity.

16. The construction of the proposed development shall be managed in accordance with a

finalised Construction and Environmental Management Plan, which shall be submitted to,

and agreed in writing with, the planning authority prior to commencement of development.

The finalised CEMP shall also include an updated Traffic Management Plan (TMP) which

provides details for the management of construction traffic for the duration of the

construction phase. The TMP shall follow the recommendations of the Traffic Signs Manual

2010 as published by the Department of Transport. The finalised CEMP shall provide details

of intended construction practice for the proposed development, including:

(a) The location of the site and materials compound(s).

(b) The location of areas for construction site offices and staff facilities.

(c) Details of site security fencing and hoardings.

(d) Details of on-site car parking facilities for site workers during the course of construction.

(e) Details of the timing and routing of construction traffic to and from the construction site

and associated directional signage, to include proposals to facilitate the delivery of abnormal

loads to the site.

(f) Measures to obviate the queuing of construction traffic on the adjoining road network.

(g) Measures to prevent the spillage or deposit of clay, rubble or other debris on the public

road network.

(h) Details of appropriate mitigation measures for noise, dust and vibration, and monitoring

of such levels.

(i) Containment of all construction-related fuel and oil within specially constructed bunds to

ensure that fuel spillages are fully contained, such bunds shall be roofed to exclude

rainwater.

(j) Off-site disposal of construction/demolition waste and details of how it is proposed to

manage excavated soil.

(k) Details of on-site re-fuelling arrangements, including use of drip trays.

(l) Details of how it is proposed to manage excavated soil.

(m) The Plan (CEMP) shall incorporate all significant findings from the report submitted as

part of the further information response, including (but not limited to) the location of any

archaeological or cultural heritage constraints relevant to the proposed development. The

final CEMP shall clearly describe all identified likely impacts, both direct and indirect, and all

mitigation measures to be employed to protect the archaeological or cultural heritage

environment during all phases of construction activity. The CEMP shall have particular

regard to the requirements as set out above in relation to the establishment and

characteristics of the protective buffer zones that shall be implemented to ensure

preservation in situ of archaeological sites and monuments.

(n) Means to ensure that surface water run-off is controlled such that no deleterious levels

of silt or other pollutants enter local surface water drains or watercourses.

(o) Hours of construction.

The finalised CEMP shall also take account of the mitigation measures outlined in the Natura

Impact Statement. In addition, the finalised CEMP shall prescribe the species-specific

mitigation (i.e. ceasing of construction activity and consultation with the ECoW) for

Amphibians. A record of daily checks that the works are being undertaken in accordance

with the Construction and Environmental Management Plan shall be kept for inspection by

the planning authority.

Reason: In the interests of environmental protection, amenities, public health and safety.

17. The roadside boundary at the proposed access points shall be set back behind the

required sight triangles at the proposed site entrances onto the public road. The sight

triangles shall be achieved prior to further construction on site. The replacement roadside

boundary hedgerow shall be cut back and maintained such that clear, unobstructed sight

lines are provided at all times. In addition:

(a) During the first planting season following construction of the access points native

hedgerows shall be planted behind the necessary sightlines at the entrance.

(b) The hedgerows shall be managed and maintained such that a minimum height above

ground level of 2.5 metres is achieved. Where sections of hedgerow and or existing trees

within the hedgerows become damaged or die, these shall be replaced with shrubs/trees of

a similar species.

(c) ESB, telecom poles or services connections on the roadside shall be removed and setback

to the new fence line in agreement with the service provider.

(d) The area between the new road fence and road carriageway shall be trimmed and rolled

level with the carriageway, top soiled, seeded with grass and thereafter maintained without

obstruction, trim and tidy.

Reason: In the interest of traffic safety and in the interest of visual amenity.

18. The developer shall submit details (plan and section diagram) to illustrate the

relationship between the historic boundary wall dividing Parcel 4 and 5 and the proposed

access tracks. Any intervention to this wall shall be limited to the requirement for the width

of the access tracks only.

Reason: In the interest of built heritage.

19. The fencing, CCTV and proposed hedgerow planting along the eastern boundary of Parcel

4 shall be set back within the site where it abuts the boundary of the neighbouring residential

property. Prior to commencement of development, the details of the realigned boundary

treatment at this location shall be submitted to the planning authority for written agreement.

The revisions to the boundary at this location shall ensure that the ongoing viability of

mature tree in the south-eastern corner of Parcel 4 is maintained.

Reason: In the interest of residential amenity.

20. (a) During the operational phase of the proposed development, the noise level arising

from the development, as measured at the nearest noise sensitive location shall not exceed:

(i) An LAeqT value of 55 dB(A) during the period 0800 to 2200 hours from Monday to

Saturday inclusive. The T value shall be one hour.

(ii) An LAeqT value of 45 dB(A) at any other time. The T value shall be 15 minutes.

The noise at such time shall not contain a tonal component. At no time shall the

noise generated on site result in an increase in noise level of more than 10 dB(A)

above background levels at the boundary of the site.

All sound measurement shall be carried out in accordance with ISO Recommendation R 1996

‘Assessment of Noise with respect of Community Response’ as amended by ISO

Recommendations R 1996 1, 2 or 3 ‘Description and Measurement of Environmental Noise’

as applicable.

Reason: To protect the amenities of property in the vicinity.

21. Site development and building works shall be carried out only between the hours of 0800

to 1900 Mondays to Fridays, inclusive, between 0800 to 1400 hours on Saturdays and not

at all on Sundays or public holidays. Deviation from these times shall only be allowed in

exceptional circumstances where prior written approval has been received from the planning

authority.

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

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

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

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

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

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

with, the planning authority prior to commencement of development.

Reason: In order to ensure a satisfactory standard of development.

23. Prior to commencement of development, the developer shall satisfy the requirements of

Uisce Éireann in relation to their requirements for working in the vicinity of Uisce Éireann

assets.

Reason: In the interest of protecting the public water infrastructure at this location.

24. Prior to commencement of development, the developer shall lodge with the planning

authority a cash deposit, a bond of an insurance company, or such other security as may be

acceptable to the planning authority, to secure the satisfactory reinstatement of the site,

coupled with an agreement empowering the planning authority to apply such security or part

thereof to such reinstatement. The form and amount of the security shall be as agreed

between the planning authority and the developer or, in default of agreement, shall be

referred to An Coimisiún Pleanála for determination.

Reason: To ensure the satisfactory restoration of the site in the interest of visual and

residential amenity.

25 The developer shall pay to the planning authority a financial contribution in respect of

public infrastructure and facilities benefiting development in the area of the planning

authority that is provided or intended to be provided by or on behalf of the authority in

accordance with the terms of the Development Contribution Scheme made under section 48

of the Planning and Development Act 2000, as amended. The contribution shall be paid

prior to commencement of development or in such phased payments as the planning

authority may facilitate and shall be subject to any applicable indexation provisions of the

Scheme at the time of payment. Details of the application of the terms of the Scheme shall

be agreed between the planning authority and the developer or, in default of such

agreement, the matter shall be referred to An Coimisiún Pleanála to determine the proper

application of the terms of the Scheme.

Reason: It is a requirement of the Planning and Development Act 2000, as amended, that a

condition requiring a contribution in accordance with the Development Contribution Scheme

made under section 48 of the Act be applied to the permission.”

Some general considerations

50. 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

51. 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.

Workability

52. Legal provisions and obligations should be given a workable, sensible interpretation

where this is possible:

(i) The law does not favour unworkable interpretations: Heather Hill Management

Company CLG v. An Bord Pleanála [2022] IESC 43, [2024] 2 I.R. 222, [2022] 2

I.L.R.M. 313 (§106 et seq. per Murray J.; O'Donnell C.J., O'Malley, Woulfe and Hogan

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

[2022] IESC 52, [2024] 1 I.R. 205 (inter alia, §47 per Woulfe J.; Dunne, Charleton,

O’Malley and Hogan JJ. concurring).

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

[2003] 2 I.R. 114, [2003] 2 I.L.R.M. 446 (Hardiman J.; Keane C.J., Murray,

McGuinness and Fennelly JJ. concurring) endorsed the development management

guidelines insofar as they included a proposal that conditions should be “enforceable”

as being “a reasonable commonsense view of s. 26” of the 2000 Act – per

Hardiman J. at para. 30.

(iii) In Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord

Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417, the Supreme Court stated per

Hogan J. (MacMenamin, Charleton, O'Malley and Baker JJ. concurring) at 43: “There

is clear judicial authority for the proposition that statutory provisions should be

read, where possible, so as to produce a workable and coherent

interpretation, thereby avoiding interpretations which were either incongruous or

which imposed unfair or anomalous obligations on private citizens in particular.

Thus, for example, as far back as Frescati Estates Ltd v Walker [1975] IR 177 at

187 this Court held that the Planning Acts should, where possible, not be interpreted

in a way which would lead to ‘strange incongruities.’ In a subsequent Housing Act

case, this Court rejected an interpretation of what constituted the relevant dates for

the service of notices to treat for the purposes of the making of compulsory purchase

orders under the Housing Act 1966 where it concluded that such an interpretation

such render the legislation effectively unworkable: see In re Murphy [1977] IR 243

at 251 per Henchy J.”

(iv) In 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan

and Collins JJ., 1 July 2025), para. 13, the Supreme Court recently albeit non-

precedentially cited the statement that where the statutory words used “are

reasonably capable of a meaning which is in accord with the essence of the

provision, it is that interpretation which should prevail”: see Kellystown Co. v.

Hogan [1985] I.L.R.M. 200 at 203, per Henchy J. (Griffin J. concurring).

(v) A discretionary power should not be construed as extending to impose unworkable

and unenforceable requirements – McGowan v. An Coimisiún Pleanála [2025]

IEHC 405 (Unreported, High Court, 8 July 2025).

(vi) Likewise, European law should not be read as imposing impossibly onerous

obligations: An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8, [2022]

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

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

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

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

Pleadings

53. Some relevant legal principles concerning pleading requirements which have been rehearsed

in previous caselaw include the following:

(i) Applicants are confined to their pleadings: A.P. v. Director of Public

Prosecutions [2011] IESC 2, [2011] 1 I.R. 729, [2011] 2 I.L.R.M. 100, [2011] 1 JIC

2501; Khashaba v. Medical Council of Ireland [2016] IESC 10, [2016] 3 JIC 0701,

2016 WJSC-SC 12280 per O’Malley J. (Denham C.J. and Clarke J. concurring) at

para. 56; Casey v. Minister for Housing, Planning and Local Government & Ors.

[2021] IESC 42, [2021] 7 JIC 1606 (Unreported, Supreme Court, Baker J., 16 July

2021) (Clarke C.J., O'Donnell, MacMenamin and Dunne JJ. concurring) at §§29 and

31; Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors.

[2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024) per

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

concurring); Eglington Residents Association v. An Bord Pleanála [2025] IEHC 209

(Unreported, High Court, Farrell J., 15 April 2025) at 11. The rules of pleading are

well-established, clear and mandatory, and are of particular importance in a context

of special complexity such as technical EU-heavy areas of planning law; while exact

specification of every jot and tittle of a case is an impossible standard, an applicant

can only be permitted to advance at a hearing a point that is acceptably clear from

the express terms of the statement of grounds, subject to the grant of any order

allowing an amendment: Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024]

1 JIC 2401 (Unreported, High Court, 24 January 2024).

(ii) Pleading requirements in judicial review are “stringent”, allowing “little room

for manoeuvre”: People Over Wind & Anor. v. An Bord Pleanála & Ors. (No. 1) [2015]

IEHC 271, [2015] 5 JIC 0106 (Unreported, High Court, Haughton J., 1 May 2015).

“It shall not be sufficient for an applicant to give as any of his grounds for the

purposes of paragraphs (ii) or (iii) of sub-rule (2)(a) an assertion in general terms

of the ground concerned, but the applicant should state precisely each such ground,

giving particulars where appropriate, and identify in respect of each ground the facts

or matters relied upon as supporting that ground”: Order 84 r. 20(3) RSC. “If on

the Grounds pleaded there is genuine ‘doubt, ambiguity or confusion’ an Applicant

in Judicial Review cannot have the benefit of it”, per Holland J. in Ballyboden Tidy

Towns Group v. An Bord Pleanála & Ors. [2022] IEHC 7, [2022] 1 JIC 1001

(Unreported, High Court, 10 January 2022) at para. 308.

(iii) Complex EU law arguments need to be articulated with particular clarity. It

is particularly important, in the case of an allegation of a failure properly to transpose

an obligation under EU law, that the requirements of O. 84, r. 20(3) be observed:

Sweetman v. An Bord Pleanála (Sweetman XV) [2020] IEHC 39, [2020] 1 JIC 3104

(Unreported, High Court, 31 January 2020) per McDonald J. at para. 103 (cited with

approval by Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring)

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

IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024); Rushe v. An

Bord Pleanála [2020] IEHC 122, [2020] 3 JIC 0502 (Unreported, High Court, 5 March

2020) per Barniville J.; attempts to launch for example non-transposition claims not

set out on the pleadings are impermissible: Alen-Buckley v. An Bord Pleanála [2017]

IEHC 311, [2017] 5 JIC 1211 (Unreported, High Court, Costello J., 12 May 2017).

(iv) Recital of high-level principles does not create certiorari by osmosis – an applicant

must specify a route-map connecting the particular factual problem alleged with

the particular relief sought via a chain of reasoning: Ballyboden Tidy Towns v. An

Bord Pleanála [2021] IEHC 648 (Unreported, High Court, 7 January 2022), para. 20;

Foley v. Environmental Protection Agency [2022] IEHC 470 (Unreported, High Court,

Twomey J., 24 January 2023), paras. 71-72; Stapleton v. An Bord Pleanála & Savona

[2024] IEHC 3 (Unreported, High Court, Holland J., 13 February 2024), para. 124.

(v) Scattergun pleadings are liable to be viewed as “a witch’s brew designed to spread

maximum confusion and to permit any argument to be made at the hearing that

ingenuity can suggest”: Hellfire Massy Residents Association v. An Bord Pleanála

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

22 (Dunne, Woulfe, Hogan and Murray JJ. concurring). MacMenamin J. (Fennelly

and Clarke JJ. concurring) in Babington v. Minister for Justice Equality and Law

Reform & Ors. [2012] IESC 65 (Unreported, Supreme Court, 18 December 2012)

referred to the pleading requirements in judicial review and said at para. 7:

“Regrettably, these explicit stipulations are frequently not complied with, and the

same grounds are set out in as many different, varying, (and wearying)

reformulations of the same point as can be conceived. Practitioners should realise

that, in this entirely counterproductive and unnecessary process, there is a real risk

of not being able to see the wood for the trees. A good point does not gain force by

repetition”.

(vi) While the court has jurisdiction to grant unpleaded reliefs it can allow such relief

only within the contours of the case as defined by the pleaded grounds:

Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC

28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024), para. 42 per

Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). Therefore a

court can’t grant relief if there is no supporting ground for it.

(vii) It is not necessary that the specific provisions of national or EU law relied

on are expressly enumerated if they are implicitly identifiable with acceptable

clarity: Eco Advocacy CLG v. An Bord Pleanála (No. 4) [2023] IEHC 713 (Unreported,

High Court, 18 December 2023); Kennedy & Anor. v. An Bord Pleanála [2024] IEHC

570 (Unreported, High Court, 7 October 2024), para. 132; Leech v. An Bord Pleanála

[2024] IEHC 599 (Unreported, High Court, Farrell J., 12 November 2024); Mount

Salus Residents' Owners Management Company Limited by Guarantee v. An Bord

Pleanála & Ors. [2025] IEHC 14 (Unreported, High Court, Holland J., 15 January

2025), para. 39. The standard is acceptable clarity, not express enumeration.

(viii) As noted by the Court of Appeal in Carvill v. An Bord Pleanála [2025] IECA 84

(Unreported, Court of Appeal, Barniville P., Collins and Faherty JJ., 11 April 2025)

at para. 148, where a developed pleading objection is made, the court should not

accept the point made by the applicant without first addressing the

objection. That said, the court can reject a point without deciding the pleading

objection if it fails either way.

The lens of the material before the decision-maker

54. The foundational concept is that consideration by a decision-taker involves essentially three

elements, which are probably best categorised as follows (see Rural Residents Wind Aware v. An

Coimisiún Pleanála (I) [2025] IEHC 600 (Unreported, High Court, 6 November 2025) at 76):

(i) matters that must be considered either autonomously – normally finite and well

identified – or only if they are raised, such as submissions;

(ii) matters that must not be considered; and

(iii) an infinite range of other matters which a decision-taker may consider if she wants

to but does not have to.

55. Therefore if an autonomous duty does not arise, and if there is no breach of a prohibition on

considering something, then everything else falls under the rubric of what was before the decision-

taker at the time of the decision. Thus:

(i) A basic principle is that in general, the legality of a decision is viewed through the

lens of the material before the decision-taker at the time of the decision,

and not with the benefit of further evidence in hindsight, although there are defined

exceptions: I.S.O.F. v. Minister for Justice, Equality and Law Reform [2010] IEHC

457 (Unreported, High Court, Cooke J., 17 December 2010); Jahangir v. Minister for

Justice and Equality [2018] IEHC 37, [2018] 2 JIC 0102 (Unreported, High Court, 1

February 2018); M.H. (Bangladesh) v. Refugee Appeals Tribunal [2018] IEHC 496,

[2018] 6 JIC 2607 (Unreported, High Court, 26 June 2018); B.D. (Bhutan and Nepal)

v. Minister for Justice and Equality [2018] IEHC 461, [2018] 7 JIC 1709 (Unreported,

High Court, 17 July 2018); A.J.A. (Nigeria) v. International Protection Appeals

Tribunal [2018] IEHC 671, [2018] 11 JIC 1403 (Unreported, High Court, 14

November 2018); O.A. (Nigeria) v. International Protection Appeals Tribunal [2018]

IEHC 661, [2018] 11 JIC 2003 (Unreported, High Court, 20 November 2018); De

Souza v. Minister for Justice and Equality [2019] IEHC 440, [2019] 6 JIC 0407

(Unreported, High Court, 4 June 2019); Ratushnyak v. Minister for Justice and

Equality [2019] IEHC 619 (Unreported, High Court, 16 August 2019) per Keane J.

at paras. 35 to 36; J.W. v. Minister for Justice and Equality [2020] IEHC 500, [2020]

10 JIC 1501 (Unreported, High Court, 15 October 2020); Reid v. An Bord Pleanála

[2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021);

Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303, [2021] 5 JIC 0706

(Unreported, High Court, 7 May 2021) at para. 87; Google v. Data Protection

Commission [2024] IEHC 577 (Unreported, High Court, Barr J., 11 October 2024);

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

2025) per Farrell J. at 16; Eglington Residents Association v. An Bord Pleanála

[2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025) at 9; Duffy v.

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

2025) at 54.

(ii) It follows that if the consideration of something isn’t an autonomous obligation, and

if nobody in the process raises that something, then belatedly introducing the

point in judicial review is not generally a plausible or permissible basis for quashing

a decision: North Great Georges Street Preservation Society v. An Bord Pleanála

[2023] IEHC 241 (Unreported, High Court, 15 May 2023). In particular in the climate

context, although not confined to that, the extent to which issues were raised in the

process is of major importance (Coolglass Wind Farm Ltd v. An Coimisiún Pleanála

[2026] IESC 5 (Unreported, Supreme Court, 4 February 2026) para. 118(xiv)).

Exceptions are discussed in Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230

(Unreported, High Court, 12 April 2021) – if such exceptions apply then the court

can potentially receive new evidence.

(iii) The concept of autonomous duties should not be extended to nullify the requirement

to make the point to the decision-taker. Where the decision-taker fails to engage

with the relevant statutory test at all (as in Sherwin for example), one can

characterise that as a breach of an autonomous duty, whether or not submissions

on the point were also made, but where the decision-taker does address the

appropriate test, the outcome of that should not normally be condemned on the

basis of some new argument or evidence which was never put forward in the

process, consistently with the foregoing caselaw.

(iv) It follows a fortiori that if an applicant not only fails to make the point to the decision-

taker but makes a contrary point, that is disqualifying in terms of permitting an

applicant to obtain an order quashing a decision on such an inconsistent basis (see

Clifford v. An Bord Pleanála [2021] IEHC 459 (Unreported, High Court, 12 July

2021), para. 52(ii) where landowners tried to object to a condition that had been

inserted on foot of their own substantive submissions; McGowan v. An Coimisiún

Pleanála [2025] IEHC 405 (Unreported, High Court, 16 July 2025) §§140 & 160;

Fernleigh RA v. An Coimisiún Pleanála [2025] IEHC 655 (Unreported, High Court,

Holland J., 28 November 2025) at 63).

Judicial review is not a second chance to introduce new issues

56. As noted in Friends of the Irish Environment CLG v. An Coimisiún Pleanála [2026] IEHC 205

(Unreported, High Court, 1 April 2026), one of the bedrock principles of judicial review is that it

relates to the legality rather than the merits of a decision.

57. It is a logical corollary of that that in general the court should not revisit the merits or quash

a decision by reference to new evidence and/or argument that could have been put before the

decision-taker but was not. Obviously there have to be limited exceptions, for example where the

applicant shows that the information could not have been obtained with reasonable diligence. The

basic point is that the administrative process is not a dress rehearsal for the real debate at judicial

review stage. Judicial review, as Holland J. put it, is not generally “a second chance” to raise issues

that could have been put to the decision-taker (Monkstown Road Residents Association v. An Bord

Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) (§208)).

58. Even if an applicant can make a challenge, not putting forward material about the point

may render the challenge empty and devoid of any prospect of success if there was otherwise no

basis for the decision-taker to have considered the pleaded point: North Great Georges Street

Preservation Society v. An Bord Pleanála [2023] IEHC 241 (Unreported, High Court, 15 May 2023).

59. As to discretion, the following view of Costello J. (Haughton and Murray JJ. concurring) in

Friends of the Irish Environment CLG v. Government of Ireland & Ors. [2021] IECA 317 (Unreported,

Court of Appeal, 26 November 2021) (albeit under appeal) is relevant:

“275. The applicant made a submission on 10 November 2017, but it made no reference

to crucial issues which were central to the appeal. It did not object to the SEA Environmental

Report on the basis that it failed to assess the reasonable alternatives in a comparable

manner to the preferred option, though that was a major plank of its case on appeal, and it

did not assert that the NDP was required to be subject to AA and SEA on the grounds that it

was an integral part of the NPF, which was the key argument advanced to this court to quash

the NDP.

276. This approach was unfair to the respondents, at the very least, and inimical to good

decision making. One of the objectives of public consultation is to permit the public to

highlight defects in the process they believe have occurred before a final decision is taken

so that any such defects may be corrected and the risk of inadvertently reaching an invalid

decision thereby avoided. It is incumbent upon a party who chooses to participate in a

consultative process (as on one who files objections or observations in a planning process)

to raise any points at the earliest possible time in the process. This is conducive to good

administration and ought to reduce the number of legal challenges to administrative

decisions. This court cannot endorse a practice where a point is raised for the first time in

proceedings challenging a final decision which was not, but which could have been, raised

before a decision was reached.

277. This is precisely what occurred in this case and it was not appropriate, even where

the application for judicial review is brought within the time limits established in the Rules

of the Superior Courts. If the applicant wished to raise either of these points it had ample

opportunity to do so. The factual basis for the argument it advanced in these proceedings

was clear from the SEA Environmental Report. It has never suggested that it was not in a

position to argue these issues in its submission of November 2017, nor given any explanation

why this was not done. A party may not reserve or withhold submissions which could and

ought to be made during a public consultation prior to the adoption of a decision to the

hearing of a challenge to the validity of the decision. Such conduct may be relevant to the

exercise of the discretion of the court where an applicant succeeds in its argument but does

not arise for consideration in these proceedings.”

60. There may be issues of the exact scope of the doctrine at the margins which may arise in

an appropriate case. I highlighted some of these questions in An Taisce - The National trust for

Ireland v. An Bord Pleanála [2021] IEHC 254 (Unreported, High Court, 20 April 2021) by reference

to arts. 6 and 9(2) and (3) of the Aarhus Convention, the judgment of 15 October 2009, Djurgården-

Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd, C-263/08,

ECLI:EU:C:2009:631; the judgment of 15 October 2015, European Commission v Federal Republic

of Germany, C-137/14, ECLI:EU:C:2015:683; the judgment of 20 December 2017, Protect Natur-,

Arten- und Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd, C-664/15,

ECLI:EU:C:2017:987; the judgment of 15 March 2018, North East Pylon Pressure Campaign Ltd v

An Bord Pleanála, C-470/16, ECLI:EU:C:2018:185; the judgment of 14 January 2021, LB, Stichting

Varkens in Nood v College van burgemeester en wethouders van de gemeente Echt-Susteren, C-

826/18, ECLI:EU:C:2021:7; directive 2003/25/EC; and some Irish domestic caselaw, particularly

M28 Steering Group v. An Bord Pleanála [2019] IEHC 929 (Unreported, High Court, MacGrath J., 20

December 2019) and Highlands Residents Association v. An Bord Pleanála [2020] IEHC 622

(Unreported, High Court, McDonald J., 2 December 2020).

61. The position is therefore that:

(i) If the obligation on the decision-maker is autonomous (for example compliance with

EU law), then the extent to which the obligation is satisfied must be viewed through

the prism of what was before the decision-taker – which may make the challenge

empty in the absence of material having been raised at the time. Discretion may

also come into play significantly, especially but not necessarily exclusively for a

domestic law point that was dreamed up after the event.

(ii) If the obligation is not autonomous, and the point was not raised, then the argument

is generally precluded and/or in any event it would generally be an improvident and

inappropriate exercise of the power of judicial review to quash a decision on such an

esprit d’escalier point.

62. So it can be seen that whether something has to be considered autonomously or not is

frequently not actually decisive.

63. Applicants can tend to respond to the foregoing by trying to classify everything as

autonomous anyway in order to improve their chances. But this misunderstands the concept. A

decision-taker has to engage autonomously with the statutory scheme that gives her jurisdiction.

But the extent to which she has to anticipate non-obvious issues and hidden depths in that scheme

is dependent on what is put up in the process. For example, a decision that is clearly in contravention

of, say, a development plan or the habitats directive doesn’t become compliant merely because

nobody pointed that out during the process. But if the contravention is dependent on something

that wouldn’t have been autonomously apparent to a reasonable decision-taker acting reasonably,

then the doctrine of autonomous obligations doesn’t extend to allowing the court to demand legal

clairvoyance or to quash a decision on such an unanticipated basis. Any other approach would be

unworkable, would trespass on the merits in violation of the separation of powers, and would impose

burdens on decision-takers that the courts would not accept for themselves, would require decision-

takers to have superhuman foresight to a degree that would bring the law into disrepute.

64. It obviously follows that opposing parties are not under any obligation to engage evidentially

with post hoc affidavits that impermissibly introduce evidence after the event. That said, where an

opposing party wants to ask for permission to reserve the right to reply if the affidavit is held

admissible at the trial, as opposed to replying de bene esse, it would need to make that

unambiguously clear in advance so that the court can manage the matter appropriately. Waiting

until after the trial when an unanswered applicant’s affidavit is upheld in a judgment is,

unfortunately, not the correct way for an opposing party to deal with such a situation.

65. A final question is whether it is a complete defence to this objection that somebody else

raised the point even if the applicant did not. The answer to that is that there are some primarily

EU law related situations such as AA where doubt has to be removed having regard to what was

before the decision-taker even if it was somebody else that put the doubt-creating material forward.

In other situations and particularly domestic law situations, a given applicant should not be generally

indulged by granting certiorari on the basis of points she never raised, even if someone else raised

such issues. This is a logical consequence of the doctrine of judicial restraint in the context of the

fact that judicial review is ultimately a branch of equity and is thus subject to the doctrine of

discretion. Of course one can’t rule out exceptional cases on an ex ante basis but that has no

relevance here. The fact that there are scenarios where a party has standing despite not

participating in the process (e.g. Grace v. An Bord Pleanála [2017] IESC 10, [2020] 3 I.R. 286 (joint

judgment of Clarke and O’Malley JJ.; MacMenamin, Laffoy, Dunne and Charleton JJ. concurring) is a

separate matter and doesn’t affect that. The fact that procedures like SID involve a one-tier process

rather than a two-stage process involving the council and the commission is also irrelevant because

there is no right to administrative appeal as such. Judicial review provides the effective remedy

against the commission, and that remedy does not become ineffective by taking into account an

applicant’s failure to raise an issue, because applicants are free to raise issues in the process so

requiring that is no major obstacle to the remedy. The fact that the CJEU envisages (see judgment

of 15 October 2015, European Commission v Federal Republic of Germany, C-137/14,

ECLI:EU:C:2015:683) that EU-law related points can be made even though they were not raised in

the process, that doesn’t take from the problem that the validity of the ensuing decision must be

assessed through the lens of the material before the decision-taker.

Onus of proof

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

previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J. at 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

does not.

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

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

on face of material, that AA/EIA was defective, or that there were factual

circumstances requiring a decision-taker to consider any other autonomous

obligation, lies on the applicant: R v. Crischuk, 2010 BCSC 716 (Barrow J.) at paras.

36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141; Reid v. An Bord Pleanála (No.

1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021),

para. 19; An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173,

[2022] 1 I.L.R.M. 281 per Hogan J. at para. 124 (O'Donnell C.J., Dunne, Charleton

and Woulfe JJ. concurring); Carrownagowan Concern Group v. An Bord Pleanála

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

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

(Charleton, Collins and Donnelly JJ., 27 January 2025)); Salmon Watch Ireland,

Inland Fisheries Ireland, Sweetman & Ors. v. Aquaculture Licences Appeals Board &

Ors. [2024] IEHC 421 (Unreported, High Court, Holland J., 12 July 2024), §1097;

Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported,

High Court, 1 November 2024) at para. 115; Minoa Ltd v. An Bord Pleanála [2024]

IEHC 704 (Unreported, High Court, Heslin J., 10 December 2024), para. 333; Ó

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

19 September 2025) at 55; Oxigen v. An Coimisiún Pleanála [2025] IEHC 632

(Unreported, High Court, 19 November 2025) (for example, in relation to proving

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

something that the decision-taker was autonomously required to consider, (ii) patent

flaw on the face of the materials, or (iii) other legal error, inadequate consideration

or failure to dispel scientific doubt has to be established by admissible evidence

(normally expert evidence) in the judicial review showing either that reasonable

doubt was created by the material before the decision-taker at the time (albeit not

limited to what was adduced by the applicant specifically), or that such material

even if uncontradicted would on its face have created doubt in the mind of a

reasonable expert: An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021]

7 JIC 0205 (Unreported, High Court, 2 July 2021) at §7 and §8; Carrownagowan

Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20

May 2024) at §191(v), leave to appeal refused: Carrownagowan Concern Group v.

An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January

2025); Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7

October 2024) at §§ 73 and 105; Roache v. An Bord Pleanála [2024] IEHC 311

(Unreported, High Court, Phelan J., 21 May 2024) at §117; Ryanair DAC v. An Bord

Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February 2025) at §64 et seq.;

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.

Discretion

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

(i) Judicial review is a discretionary remedy: per Murray J. (Whelan and Pilkington

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

1 July 2021) at 43 (see also per Charleton J. (diss.) in Dun Laoghaire Rathdown

County Council v. Westwood Club Ltd [2019] IESC 43, [2020] 3 I.R. 417 at 10).

This historically arose from the development of judicial review out of the power to

grant equitable relief.

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

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

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

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

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

Charleton and Murray JJ. concurring).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Unreported, Supreme Court, 22 January 2026).

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

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

disproportionality. Under these headings the following points emerge:

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

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

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

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

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

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

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

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

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

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

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

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

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

that the court asked to quash an administrative decision has a

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

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

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

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

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

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

their position: Baile Bhruachlain Teoranta v. Galway County Council

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

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

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

264.

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

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

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

Appeal, 26 November 2021) at 277.

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

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

November 2025).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

particular:

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

process requires “consideration of whether the matter concerned is

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

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

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

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

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

March 2009) at 79 per Fennelly J. (Macken and Peart JJ. concurring).

2. Likewise the importance of the countervailing legal value being

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

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

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

can consider whether there is “an important constitutional or legal

value of sufficient weight to warrant not making an order otherwise

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

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

J. in Amariei at 27.

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

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

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

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

an unwarranted interference with the settled rights or expectations

of third parties)”).

4. In assessing proportionality it follows that matters regarding the

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

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

purely historic and cannot reoccur, the level of deliberation involved

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

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

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

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

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

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

24 January 2024) para. 134).

The climate law context

68. Insofar as relevant, some issues concerning the climate context include the following:

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

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

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

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

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

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

tipping points, with unknown and potentially catastrophic consequences for

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

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

and cascading interactions shows that several Earth system components may be

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

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

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

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

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

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

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

11 February 2026).

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

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

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

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

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

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

as substituted by the 2021 Act): see Coolglass Wind Farm Ltd v. An Coimisiún

Pleanála [2026] IESC 5 (Unreported, Supreme Court, 4 February 2026).

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

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

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

notable in that regard:

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

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

system for greenhouse gas emission allowance trading within the Union

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

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

electricity and heat generation, industrial manufacturing and aviation

sectors and, more recently, maritime transport.

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

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

of the use of energy from renewable sources and amending and

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

established mandatory targets for the consumption of energy from

renewable sources by member states.

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

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

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

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

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

limits on emissions from the land use sector.

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

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

Governance of the Energy Union and Climate Action, amending

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

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

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

the European Parliament and of the Council, Council Directives

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

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

Regulation) was adopted to implement the Paris Agreement commitments

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

Framework Convention on Climate Change opened for signature at UN

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

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

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

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

Council of 30 June 2021 establishing the framework for achieving climate

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

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

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

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

reductions.

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

a framework to accelerate the deployment of renewable energy. Article

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

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

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

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

as to the ramifications of this legislation.

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

European Parliament and of the Council of 19 April 2023 amending

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

reductions by Member States from 2021 to 2030 contributing to climate

action to meet commitments under the Paris Agreement, and Regulation

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

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

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

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

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

significant reduction in energy consumption. The transposition date was

11 October 2025.

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

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

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

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

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

provides for a presumption of overriding public interest and for accelerated

timelines including requiring judicial remedies to be the most expeditious

available in national law.

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

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

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

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

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

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

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

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

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

69. The Supreme Court summarises its conclusions on the 2015 Act at para. 118 of Coolglass

Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 (Unreported, Supreme Court, 4 February

2026). Arising from that, one can highlight the following, taking the liberty of eliding some text

specific to the arguments in that particular case (particularly the applicant’s phrasing of the test at

first instance which I had agreed with – the Supreme Court obviously didn’t uphold that particular

wording but one needs to bear in mind the general point that everything arises in context, and the

arguments at trial and appeal level seem to have been significantly different on all sides as the

judgment seems to recognise) (emphasis added):

(i) “The evident purpose and effect of s. 15 of the 2015 Act following the amendments

made in 2021, is to strengthen the obligations imposed upon bodies (including the

Commission) and to make the performance of all their functions consistent with the

climate objectives insofar as is practicable. That obligation is, in principle,

enforceable by a court.”

(ii) “The requirement imposed by s. 15, cannot simply be reduced to a purely procedural

obligation, or confined to operation at a programmatic level. Therefore, the

provision requires more than that bodies (including the Commission) that are

subject to its terms ‘have regard to’ the climate objectives referred to in

the section.”

(iii) “While the language ‘in a manner consistent with’ looks to the outcome of the

performance of the relevant function, it also implies that there is a range of

possible outcomes open to the relevant body which may satisfy the

application, and a degree of tolerance in the manner in which it is achieved.”

(iv) “That tolerance is further reinforced by the inclusion in s. 15 of the

qualification entailed by the words ‘in so far as practicable’. These make it

clear that the section contemplates that there may be circumstances in which a

relevant body may not be required to perform its functions in a manner consistent

with the s. 15(1) objectives. The decided cases propose that ‘in so far as practicable’

means something that is capable of being carried into action having regard to such

practical difficulties that exist, but does not permit the taking of mere matters of

convenience into consideration. That qualification is, however, to be contrasted with

phrases such as ‘insofar as possible’, which are more demanding. It comprehends

what is practical in the circumstances and appropriate to the requirements

of the situation.”

(v) “Because s. 15(1) applies to all relevant bodies, and the exercise of their functions,

the impact in fact of the section will vary depending on the functions of the

relevant body, and the matters to which they are obliged to have regard, or

to implement.”

(vi) “The question for a court where it is asserted that the actions of any relevant body

failed to comply with s. 15(1), is whether the performance of the functions of

the relevant body in that regard falls within the spectrum of possible

outcomes that could be said to be consistent, in so far as is practicable, with

the objective of s. 15.”

(vii) “That is a legal test. Section 15 creates a legal standard which must be

complied with by a relevant body, and if necessary enforced by courts, which

in any given case will be required to determine if any decision or action was in so

far as practicable consistent with the matters specified in s. 15.”

(viii) “Because of the range of options presented by the consistency obligation as so

explained – together with the qualification of practicability – and the difference

between an individual decision and objective stated at a high level of generality, it

should not be a difficult matter to establish such consistency, particularly

when the individual action can be shown to be consistent with some plan

or strategy which itself was prepared subject to the obligation contained in

s. 15(1) or can otherwise be taken to satisfy the obligation of consistency.”

(ix) “In the field of individual planning decisions, it is perhaps less likely that s. 15(1)

will have decisive effect than in respect of the actions of other relevant

bodies. That is because the pursuit and achievement of the climate

objective is already woven into the planning process to a significant

degree.”

(x) “... The question of consistency of an individual planning decision with the s. 15(1)

objectives, is much more complex than a traffic light system of climate friendly

‘go’ (unless impracticable), and climate unfriendly ‘stop’.”

(xi) “By the time a planning decision comes to be made, the manner in which it is

proposed the State will meet its climate objectives has been set at a national level,

percolating down to a local level through the specific context of the development

plan. A planning authority is entitled to commence into consideration with a

presumption that compliance with the development plan will itself be

compliant with its s. 15(1) duty.”

(xii) “[In the case of material contravention], it is not a case of asking whether material

contravention of the plan will assist in achieving the climate goals and therefore

granting permission for any renewable energy project that does so. The function

being exercised is the grant of permission for a development which

materially contravenes the development plan. It is this function which must

be performed so far as is practicable, consistent with the climate change

objectives in s. 15(1).”

(xiii) “If in such a case, the development plan is itself consistent with the climate

objectives set out in s. 15(1), then it will normally be the case that a decision

which complies with that plan will itself be consistent with those objectives.

However, it may be possible to contend that permission should be granted, because

it is established that the development plan does not meet the climate

objectives, or no longer does so because of a change in those objectives, or

because of particular features of the specific development. In any such

case, the Commission must consider whether it should grant the

permission, and if the matter is raised, should be able to explain why the

decision it has come to is indeed consistent with those objectives.”

(xiv) “Section 15(1) may also affect the planning process outside the question of any

material contravention. In most cases it will be the case that the project will be

entitled to permission or will be likely to be refused because of the application of

planning considerations which themselves have been shaped by the State’s plans

and strategies for the achievement of the climate objectives. But s. 15 may reinforce

that process. Where but only where it is raised in support of an application,

an authority should be able to explain why the decision it has come to is in

compliance with s. 15 (1).”

(xv) “... The duty on the Commission to perform its function in a manner consistent with

the climate objectives set out in s. 15(1), while real, effective and enforceable,

cannot be converted into the simple formula [of a traffic light system as

referred to above].”

(xvi) “… the decision and report are phrased in terms that seem to imply that the very

fact that the development would contravene the development plan was considered

itself a reason to refuse the permission. That was an error of law because the

Commission was required to consider whether the climate benefits of the

project required or justified the grant of permission notwithstanding the

material contravention of the development plan. This was reinforced, when

considered in light of the s. 15(1) obligation. …”

Preliminary issues

70. The parties’ positions on preliminary issues as recorded in the statement of case are

summarised as follows:

“Applicants Position

14. If this Honourable Court forms the view that the definition of private road as specified

in paragraph 10(dd) of Part II of Schedule 5 particularly in the absence of a definition of the

term in relevant statutory provisions, and having regard to the definition of forestry road in

the European Communities (Forest Consent and Assessment) Regulations, 2010 in respect

of a category of private road, that is it not acte clair whether a road to be constructed to a

standard described in the plans and documentation lodged, and of the extent proposed which

exceeds the thresholds specified require an EIA following the judgment in The Commission

of the European Communities v. Ireland (Case 427/07), it is appropriate to make a

preliminary reference under Article 267 of the TFEU to clarify this issue.

Commission’s Position

15. This is not a preliminary issue – it is Core Ground 7. In any event, the law is clear

on [the] access tracks point and there is no basis for seeking a preliminary reference. In

Moss & Ors v An Coimisiún Pleanála (No.2) [2026] IEHC 175 (§30 et seq), the Court rejected

an attempt to seek a reference to the CJEU on the access track/road point – this logic applies

equally here. The Applicants have made no attempt to address this.

16. The Commission objects to the admissibility of the Affidavits of John C O’Reilly

(delivered in April 2026 – unsworn) which seeks to dispute the nature of the access tracks;

and the Affidavit of Conor Breen (delivered in April 2026 – unsworn). Same are: an

impermissible attempt to introduce evidence which should have been part of the case from

day one; no explanation has been provided for the delay is adducing same; and same are

not replying Affidavits.

Power Capital’s Position

17. This is not a preliminary matter and is addressed in more detail in the context of

Core Ground 7 below.

18. Notwithstanding this, the Applicants have made out no basis upon which this court

should make a preliminary reference, and Power Capital relies upon the Court’s consideration

of a similar request in Moss v. An Coimisiún Pleanála (No. 2) [2026] IEHC 175 (which the

Applicants have not engaged with).

19. Power Capital object to the admissibility of the Affidavit of John C O’Reilly and the

Second Affidavit of Conor Breen (served in final but unsworn form) for the following reasons:

(i) Neither Affidavit is a replying Affidavit in that they do not respond to issues raised

in the opposition papers filed by either the Commission or Power Capital. Replying Affidavits

are limited to reply and are inadmissible if they go beyond a reply (per Doyle v. An Coimisiún

Pleanála [2025] IEHC 725, at §50);

(ii) The information contained in both Affidavits was available to the Applicants at the

time that the application for leave to apply for judicial review was made. No explanation

has been provided for the failure of the Applicants to file such an affidavit with the application

for leave (see Reid v. An Bord Pleanála [2021] IEHC 230); and

(iii) Both Affidavits raise matters which were not put before the Commission (Hoctor v.

An Coimisiún Pleanála [2026] IEHC 65 at §55)).”

71. The really fundamental problem for the applicants is that even if somehow the late affidavits

are admissible (and one doesn’t need to formally rest the decision on the obvious impermissibility

of an approach that seeks to introduce new non-replying points in the guise of a purported reply,

contrary to directions and without adequate explanation for not raising the points at the appropriate

time), no weight should be placed on such evidence. The lens of the analysis must be through the

material before the decision-taker, so belated information is simply not relevant save in defined

situations which do not apply here.

Whether the points were made at the appropriate time

72. The parties’ positions on whether the applicant’s points were made at the appropriate time

as recorded in the statement of case are summarised as follows:

“(i) points contended to be referenced in submissions/affidavits/statement of case/

otherwise in the proceedings (excluding pleadings) but not made in the process and not

pleaded;

Commission’s Position

20. The Applicants seek to expand their case in relation to Core Ground 1 at §43-§44 –

which is not permissible.

Power Capital’s Position

21. In connection with Core Ground 1, the issues raised by the Applicants at §43 and

§44 of their Written Submissions are not pleaded.

22. In connection with Core Ground 4, the Applicants Written Submissions place reliance

on SI No 19/2017 (the ‘Forestry Regulations 2017’); however the Applicants’ have not

pleaded reliance on the Forestry Regulations 2017 but only plead by reference to the SI

558/2010 – European Communities (Forest Consent and Assessment) Regulations 2010 (the

‘Forestry Consent Regulations’) which were revoked and replaced by the Forestry

Regulations 2017.

Applicants’ Position

23. Those matters contained at paragraphs 43 and 44 of the Applicants Written

submissions are pleaded at Core Ground 1 of the Applicants Statement Required for Judicial

Review and in particular are located at paragraps [sic] 17 -19 of the said statement.

24. The Forestry Regulations 2017 are relied upon and pleaded by the Applicants and

the extracts particularly relied upon by the Applicant are clearly those contained within the

2017 Regulations.

(ii) points contended to have been made in the process, but not pleaded;

Commission’s Position

25. Not applicable.

Power Capital’s Position

26. Power Capital does not understand that any point made in the process but not

pleaded is at issue in the proceedings.

Applicants’ Position

27. Not Applicable

(iii) points contended to be referred to narratively/contextually in the pleadings but

without any properly formulated legal plea;

Commission’s Position

28. Not applicable.

Power Capital’s Position

29. Power Capital does not understand that any point referred to

narratively/contextually but without being a properly formulated legal plea is at issue in the

proceedings.

Applicants’ Position

30. Not Applicable

(iv) points contended to have been pleaded but not made by the applicant in the process;

Commission’s Position

31. In connection with Core Ground 1, the Applicants made no submissions to the

Council or Commission regarding alleged deficiencies in the public notices.

Power Capital’s Position

32. In connection with Core Ground 1, the Applicants made no submissions to the

Council or Commission regarding alleged deficiencies in the public notices. The Applicants

do not have standing to pursue this aspect of Core Ground 1 and it ought be dismissed in

limine.

Applicant’s Position

33. The Applicants herein in respect of the submissions made to the Council and the

Commission alleged deficiencies in respect of non-compliance with the Planning and

Development Regulations 2001, as amended.

(v) points contended to have been both made in the process and also pleaded;

Commission’s Position

34. It is accepted that during the course of the planning process, the Applicants raised

the complaints advanced in Core Ground 1, with the exception of the complaints raised in

respect of the public notices. Core Grounds 4 and 6 concern a complaint that the Proposed

Development ought to have been subject to EIA, and it is accepted that such a point was

raised before the Commission

Power Capital’s Position

35. It is accepted that during the course of the planning process, the Applicants raised

the complaints advanced in Core Ground 1, with the exception of the complaints raised in

respect of the public notices. Core Grounds 4 and 6 concern a complaint that the Proposed

Development ought to have been subject to EIA, and it is accepted that such a point was

raised before the Commission.

Applicants’ Position

36. The Applicant contend that all of the complaints contained with the Core Grounds

were made in the process, specifically in that regard, where the Commission and the

Developer position is that the complaints raised in respect of the public notices were not

made in the process, it is respectfully contented that the Applicants herein specifically made

submissions in respect of the applications non-compliance with the Planning and

Development Regulations 2001, as amended.”

73. These maters can be disposed of as follows:

(i) Matters referred to in the applicants’ submissions that are either absent from or

wholly unparticularised in the pleadings are not admissible. This includes paras. 43

and 44 of submissions.

(ii) The complaint about the public notices were not made before the commission. It

would be inappropriate in the circumstances to grant certiorari on this basis, if

necessary as a matter of discretion, even if counterfactually the applicants had a

point in this regard.

(iii) The complaint regarding the application of the EIA directive to the project by reason

of access tracks being roads was not raised by the applicants to the commission.

While the applicants did say that EIA was required it was not raised on the basis now

pleaded. What was raised was an argument about EIA due to project-splitting, which

is not a pleaded complaint. Accordingly, and even acknowledging that failure to

make the point is not a bar in itself to bringing judicial review on an EU law ground,

it would be inappropriate in the circumstances to grant certiorari on this basis, if

necessary as a matter of discretion, even if counterfactually the applicants had a

point in this regard as I outline further below. Discretion is equivalent as between

domestic and EU law points and a general approach of scrutinising the decision by

reference to points made in the process does not render the exercise of EU law rights

excessively difficult. The exercise of discretion does not mean that an EU law point

cannot be made (which it can), but rather that the court needs to be able to make

a balanced assessment, in line with established doctrinal contours, as to whether

any breach should give rise to any particular order.

Domestic law issues

Core ground 1 – invalid application

74. Core ground 1 is:

“1. The Respondent erred in law and had no jurisdiction to determine the application

where the plans and particulars lodged failed to comply with the mandatory requirements of

Articles 16, 17, 18, 19, 22 and 23 of the Planning and Development Regulations, 2001, which

requirements are mandatory, and failure to comply with which go to jurisdiction and where

the said determination based on plans and particulars that do not comply with these

Regulations are such as to render the decision ultra vires the Respondent, invalid and void.”

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

“Applicants’ Position:

38. This Core Ground relates to non-compliance of the application documentation,

information and drawings with the mandatory requirements of the Planning and

Development Regulation 2001. The said Core Ground can be divided into three separate

grounds;

a. Non-compliance with Article 16 of the Planning and Development Regulations 2001,

as amended;

b. Non-compliance with Articles 17-19 of the Planning and Development Regulations

2001, as amended;

c. Non-compliance with Articles 22 and 23 of the Planning and Development

Regulations 2001, as amended;

39. The application the subject matter of An Bord Pleanála reference 322270-25 is

contrary to Article 16 of the Planning and Development Regulations, 2001 where an

application as here requires a mandatory EIA it requires to be accompanied EIAR and is

required to comply with the obligations under Section 172 of the Planning and Development

Act, 2000 and part II of SI 600/2001.

40. The public notice does not describe the extent of the development contrary to the

mandatory obligations in Article 18(1)(d). The extent of a development requires an

identification not of the development by reference to the area of the site which is

meaningless in terms of extent, but specify the number of structures and the number of

solar panels to be constructed as well as the extent of the surface area to be covered by the

said structures. The extent of the development is identified in respect of housing at Article

18(d)(i) where there is an obligation to state the number of houses and an equivalent or

similar obligation which would indicate the extent of the development by reference to

quantity of solar panels requires to be identified in the public notice. Otherwise the

obligation to state the extent of the development becomes meaningless as without a

quantification of the extent of the development the public will not have the requisite

information in order to investigate the detail of the application and in failing to identify the

extent of the application the public notice does not comply with the mandatory obligations

in Articles 17, 18 and 19 of the Planning and Development Regulations, 2001.

41. The documentation accompanying the application failed to comply with the

requirements of Article 23 of the Planning and Development Regulations 2001, as amended

which requires plan, drawings and maps accompanying the application to be accordance

with Article 22 and required to comply with the requirements of Article 23(1)(a) of the

Planning and Development Regulations, 2001. The said site and layout plan does not show

clearly or at all buildings, roads, boundaries, septic tanks, percolation area, bored wells,

significant tree stands and other features on, adjoining or in the vicinity of the land or

structure to which the application relates as is required by the said Article 23(1)(a). Each

of the structures, require to be separately identified, the dimensions recorded including

overall height and distance to the site boundary. The plans and particulars do not comply

with the mandatory requirements of Article 23(1)(a) of the Planning and Development

Regulations have not been complied with and.

Commission’s Position:

42. The Applicants’ complaints here are not properly [particularised] and have not been

established evidentially. On an objective consideration of the entirety of the application

documentation, the complaints made under this Core Ground are devoid of substance.

- The alleged contravention of Art.16 of the PDRs is linked to Core Grounds 4 and 6

and is predicated on the misconceived assertion that an EIAR was required to accompany

the application – which is not the case

- The alleged contravention of Art.17-19 of the PDRs on the basis that the public

notices did not specify the number of solar panels, inverters, BESS units, skids and roads is

also without merit. The public notices in this case complied with the requirements of Art.17-

19 of the PDRs. A very similar, if not identical point, to that advanced here was rejected in

Moss (§75):

‘There is no obligation to include this level of detail in the newspaper or site notice and

indeed it would be obviously unworkable to do so…’

The Applicants have made no attempt to distinguish Moss from this case – most probably

because they cannot. Instead, they adopt the unfortunate approach of advancing these

complaints without engaging with relevant case law.

- In relation to the alleged contravention of Art.22-23 of the PDRs, again, there is no

substance to these complaints. Same are advanced without any effort to actually look at

the detail in the application documentation/plans – which clearly outline the nature and

extent of the Proposed Development and evidences compliance with the PDRs.

- [N]oting the foregoing and in terms of discretion, which the Applicants fail to

address, even if any non-compliance with the PDRs is established (which it has not been),

same would not warrant the quashing of the Commission’s Decision with regard to the

totality of the circumstances referred to herein – including the evidence before the

Commission which clearly detailed the nature and extent of the Proposed Development; and

the absence of any substantive error identified by the Applicants said to arise from same

(see Moss v An Coimisiún Pleanála (No.1) [2026] IEHC 62 at §86). See also, inter alia,

Reilly v An Coimisiún Pleanála [2025] IEHC 659 (§81 et seq); Ballyboden Tidy Towns Group

v An Bord Pleanála [2023] IEHC 722 (§102 et seq); Pembroke Road Association v An Bord

Pleanála [2021] IEHC 403; and Byrnes v Dublin City Council [2017] IEHC 19.

Power Capital’s Position:

43. Core Ground 1 amounts to a series of unparticularised complaints regarding alleged

non-compliance with articles 16-19, 22 and 23 of the Planning and Development Regulations

2001, as amended (the ‘2001 Regulations’). The pleas do not engage with the actual

documentation submitted as part of the planning application and during the planning

process, and the Applicants have not demonstrated evidentially that a breach of the

Regulations arises.

44. However, if the Court were to find any non-compliance (which is not accepted), such

non-compliance was de minimis and does not warrant the quashing of the Commission’s

Decision in the exercise of this Honourable Court’s discretion in circumstances where the

Applicants (i) do not claim to have been misled by the alleged non-compliance; (ii) do not

claim to have been prejudiced in any way by the alleged non-compliance; and (iii) were able

to fully participate in the planning process and were not hindered in their ability to make

submissions in relation to the Proposed Development. Furthermore, having regard to the

level of detail in the application documents, any non-compliance would have been minor in

context, and if any technical non-compliance arises, the public interest in renewable energy

would outweigh any public interest in respect of strict compliance with the 2001 Regulations

(Moss v. An Coimisiún Pleanála (No. 1) [2026] IEHC 62 at §85 and Croft v Dublin City Council

[2025] IEHC 656 at §1).”

76. Insofar as the point relates to the public notices, this should be dismissed as a matter of

discretion, not having been raised at any time in the process and being a technical point of a type

that is not so self-evidently problematic as to warrant automatic relief if established. If I am wrong

about that I will consider it on its merits in any event.

77. The basic reason why this point fails is:

(i) insofar as this ground is premised on an argument that EIA applies (see e.g. sub-

grounds 9 and 10), this is simply incorrect as explained further below;

(ii) hence complaints about art. 16 of the 2001 regulations do not get off the ground,

because art. 16 only applies where the application is accompanied by an EIAR or

other specified counterfactuals apply;

(iii) insofar as the complaint relates to breaches of arts. 17 to 19 of the 2001 regulations,

these are inadequately particularised, involve no meaningful road-map between the

actual documents submitted and the text of the regulations, and are not a proper

basis of relief (sub-grounds 11 to 13) especially given the particularly important

pleading requirement in terms of technical breaches of EU law;

(iv) even if counterfactually these complaints were adequately pleaded, the level of detail

demanded in submissions goes beyond the requirements of the regulations, as in

substance already held in Moss v. An Coimisiún Pleanála [2026] IEHC 62

(Unreported, High Court, 10 February 2026) at para. 75;

(v) furthermore on the facts, with which the applicants have not engaged, extensive

detail was given to the satisfaction of the decision-taker as to the nature and extent

of the development; and

(vi) insofar as the complaint is one of breach of arts. 22 and 23 of the 2001 regulations

(sub-grounds 14 to 17), I deal with that in more detail below.

78. Sub-ground 14 complains that “The documentation accompanying the application failed to

comply with the requirements of Article 23 of the Planning and Development Regulations which

requires plan, drawings and maps accompanying the application to be accordance with Article 22

and required to comply with the requirements of Article 23(1)(a) of the Planning and Development

Regulations, 2001”. As the commission submits “there are simply no particulars given of the

complaint”. This is impermissible as a basis for certiorari.

79. The next complaint is that “The said site and layout plan does not show clearly or at all

buildings, roads, boundaries, septic tanks, percolation area, bored wells, significant tree stands and

other features on, adjoining or in the vicinity of the land or structure to which the application relates

as is required by the said Article 23(1)(a)”.

80. This is just a generic recitation of the terms of the enactment:

“(a) site or layout plans shall be drawn to a scale (which shall be indicated thereon) of not

less than 1:500 or such other scale as may be agreed with the planning authority prior to

the submission of the application, the site boundary shall be clearly delineated in red, and

buildings, roads, boundaries, septic tanks and percolation areas, bored wells, significant tree

stands and other features on, adjoining or in the vicinity of the land or structure to which

the application relates shall be shown,”

81. It is impermissible and inadmissible for an applicant to belatedly introduce evidence as to

what this meant. The wording is so broad that it is unclear whether the complaint is one of not

providing information at all or doing so inadequately. There is no engagement with the

documentation actually provided, still less a route-map between the complaint and relief.

82. Sub-ground 15 complains that “Article 23(1)(b) requires that plans, elevations and sections

are required to be drawn to a scale of not less than 1:200, are required to show the level of contours

of the site, which have not been identified as required by the said provision”.

83. Grammatically, this complaint reads properly as a complaint about lack of contours, the

reference to scale being phrased as context if normal English is to be relied on. Unfortunately there

are contours – see tab 10 of exhibit RB1. In replying oral submissions the applicants rephrased the

complaint as accepting that there were contours but stating that they were not “‘clearly’ identified”

– this is not the pleaded complaint but in any event there is no basis for such a complaint and no

particulars as to how the contours provided are unclear.

84. The next complaint is “Article 23(1)(f) requires plans and drawings of elevations and sections

which is required to indicate the principal dimensions of any proposed structure which provision has

not been complied with, with only one structure being identified and where insofar as it could be

described as an elevation it is limited to a back elevation, and where all such structures and their

design should be identified, and where in Article 23(1)(f) ‘the distances of any such structures from

the boundaries of the site’ are required to be shown. This requires that where the structures here

extend densely across the full extent the site, the distances of all such structures of a type identified

in A26 and for each individual structure must be shown in terms of its distance from the boundary

of the site and this requirement has not been complied with”.

85. Article 23(1)(f) provides:

“(f) plans and drawings of floor plans, elevations and sections shall indicate in figures the

principal dimensions (including overall height) of any proposed structure and the site, and

site or layout plans shall indicate the distances of any such structure from the boundaries of

the site.”

86. Unfortunately for the applicants this is factually unfounded. The maps do extensively set

out distances from structures to boundaries. The only argument left for an applicant is that there is

not a track line from every single point on every single solar panel to the boundary. That

unfortunately is not a workable interpretation.

87. This is reinforced by the fact that neither the applicants nor anybody else in hundreds of

submissions complained about this. Nor have the applicants pleaded or established prejudice.

88. Ultimately this is just an example of the point that there is always more detail that can be

demanded. The requirement to show distances from structures to the site boundaries is complied

with by showing principal distances from principal points of the structures or groups of structures to

the site boundaries. Anything more demanding becomes unworkable almost immediately.

89. Sub-ground 16 pleads that “Article 22(1) requires at (2)(b) requires an identification of the

land to which the application relates and requires the identification of all land to be identified to

which the application relates and the boundaries thereof which must be shown in red and ‘any land

which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the

applicant or the person who owns the land which is the subject of the application in blue’ and any

wayleaves in yellow. These requirements have not been complied with and the full extent of all the

lands contiguous to the land the subject matter of the application have not been identified in blue”.

90. This is little more than a generic recitation of the terms of the regulations. The applicants

have not attempted to establish evidentially that the developer is in control of specified contiguous

lands and that such lands were not appropriately coloured. So this doesn’t get off the ground.

91. Sub-ground 17 pleads that “The requirements of Articles 22 and 23 require that in respect

of all structures, as defined in Section 2 of the Planning and Development Act, which inter alia is

defined as anything made or constructed on land, is required to be identified as is required under

Article 23(1)(d) which provides that ‘drawings of elevations of any proposed structure shall show

the main features…’ and the proposal does not comply in respect of a range of structures any details

of a type required to comply with Articles 22 and 23 of the Planning and Development Regulations,

2001”.

92. This is obviously totally inadequate as a pleading. The concept of “a range of structures”

does not give proper notice of the point. Defects in pleadings cannot be rectified by submissions or

evidence. As the commission submits “this doesn’t go any further”.

93. Sub-grounds 18 and 19 referring to public participation don’t put matters much further. The

requirements of public participation are expressed in law, including by way of statutory notice, so in

the absence of a challenge to the statute, domestic law specifies how the public participation is to

be triggered. Appealing to the wider concept doesn’t extend the meaning of the regulations in the

way contended for by the applicants.

94. Finally, to the extent that the applicants rely on Monaghan U.D.C. v. Alf-a-Bet Promotions

Ltd 1980 WJSC-SC 1341, [1980] I.L.R.M. 64, [1980] 3 JIC 2403, the doctrine that breach of

mandatory provisions regarding planning applications should not be excused unless there was

“substantia[l] ... compli[ance]”, that unfortunately doesn’t advance matters because the applicants

have not demonstrated a breach. Therefore we don’t get to the question of whether the breach

should be excused. If we had got to that question, there would appear to have been substantial

compliance in any event.

95. For these reasons this core ground can’t succeed.

EU law issues

Core grounds 4, 6 and 7 – alleged lack of EIA of alleged roads

96. Core ground 4 is:

“4. The Respondent erred in law and acted contrary to its obligations under Council

Directive 2011/92/EU (as amended) in its determination of an application which required a

mandatory Environmental Impact Assessment Report (EIAR) where the extent of private

roads proposed forming part of the development exceeded the thresholds provided for in

paragraph 10(dd) of Part II of Schedule 5 of the Planning and Development Regulations and

where the said roads extended to an area in excess of 3,000 metres in length, significantly

in excess of the 2,000 metres specified in the said paragraph 10(dd) and was therefore

required to carry out an EIA of the said development prior to the granting of permission. In

failing to carry out an EIA as required by the said EIA Directive the Respondent acted

contrary to its obligations under the said EIA Directive and accordingly the said

determination under An Bord Pleanála reference 322270-25 of 5th September 2025 is ultra

vires the Respondent, made contrary to its obligations under European Community law and

accordingly is invalid and void.”

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

“Applicants’ Position:

53. The site the subject matter of the application comprises an area of 129 hectares in

which an area of 979,885m² of solar panels are provided for across the full extent of the

lands with six access points which provides access through a series of private roads which

are identified on the layout plans which accompany the application. These plans establish

the extent of the roads which exceed 3,000 linear metres in length and which are subject to

a detailed design with a subsurface, layers of stone and a finish that is suitable for

accommodating commercial and domestic type vehicles, for example Jeeps/Discovery/Land

Rover type vehicles. Paragraph 10(dd) of Part II of Schedule 5 provides that any private

roadway which exceeds 2,000 metres in length requires a mandatory EIA.

54. The roads system can be defined as a way over land for the independent movement

of persons or vehicles, primarily mechanically propelled but capable of accommodating a

wide range of vehicles, constructed by and finished with modern and more than rudimentary

methods and includes ancillary infrastructure and therefore falls within the definition of a

road as set out in the judgment of Humphreys J. in Cummins and Ors v. An Coimisiún

Pleanála [2025] IEHC 521 and complies with the description of the roads within the definition

set out in the text of that judgment at paragraph 91 to 124.

55. The drawing depicting the said access road particularly Drawing A-12 and the

description of the construction methodology together with the materials proposed for the

construction of the said access road and/or roadway relate to modern engineered roadway

construction and is inconsistent with a rudimentary methods of design and construction. The

said access road described as being ‘250 millimetres of crushed rock (6F2 or similar

approved), compacted in two layers, approximately 4 metres wide. A geotextile, Terram

1500 or a similar approved product, is installed underneath. The subgrade is to be proof-

rolled before installing the access road; any soft spots will be excavated and filled with 6F5

or suitable selected and dug granular material. The sub-base thickness is based on an ACBR

value of 3.5% at formation level, with the CBR value to be confirmed on site through in situ

bearing tests to BS1377. All topsoil and organic material must be stripped to expose dense

natural subgrade.’

56. The said description of the road makes reference to crushed rock, Clause 6F2, Clause

6F5, California Bearing Ratio-CBR, BS1377, Geotextile, Terram 1500, and to access road is

of such high quality and design that it will service the operation development for the full 40

year duration of the permission. The road proposed had all of the attributes that one could

possible [sic] require to fall into the definition of a road as defined in Paragraph 10(dd) of

Part 2 of Schedule 5 of the Planning and Development Regulations, 2001.

Commission’s Position:

57. The access tracks do not comprise a ‘private road’ for the purposes of Class 10(dd)

of Part 2, Schedule 5 of the PDRs and were not required to be subjected to EIA – contrary

to the Applicants’ assertions.

58. A number of unsuccessful attempts have been made to bring solar farms into the

EIA sphere via ‘a side-wind’ (Moss & Ors v An Coimisiún Pleanála (No.1) [2026] IEHC 62

(§1)) by contending that access tracks which serve such development comprise a ‘road’ or

‘private road’ for the purposes of EIA Directive and the PDA /PDRs. In this respect:

- In Cummins v An Coimisiún Pleanála [2025] IEHC 521 (delivered on 3 October

2025), this Court rejected an argument that a specific form of access track serving a solar

farm development comprised a ‘road’ or ‘private road’ for the purposes of the EIA Directive

and the PDA/PDRs.

- In Moss & Ors v An Coimisiún Pleanála (No.1) [2026] IEHC 62 (delivered on 10

February 2026), in an almost identical factual situation, the Court again rejected the

argument that access tracks serving a solar farm comprised a road for EIA purposes.

59. Undeterred by these judgments, but without making any meaningful attempt to

distinguish same, the Applicants seek (Core Ground 4 and Core Ground 6) to run the same

argument again in almost identical factual circumstances. Noting the nature of the access

tracks here – as per the Access Track Section Details Drawing (Drawing No.A-12 – ‘Typical

Cross Section’) which outlines the make-up of same, including a sub-base of 250mm crushed

rock on geotextile and a gravel surface (Condition 13 of the Commission’s Decision) – and

on the application of Cummins and Moss, the Applicants’ principle EIA argument should be

rejected.

Power Capital’s Position:

60. The site of the Proposed Development comprises an area of 108ha, not 129ha as

stated by the Applicants. As part of the Response to FI, Power Capital proposed reducing

the overall size of the site from 129ha to 108ha. Condition 1 of the Commission Decision

expressly refers to the application as ‘amended by the further plans and particulars received

by the planning authority on the 16th day of January 2025’.

61. The access tracks in the Proposed Development are of the same type as those

described in Moss (No. 1) and Cummins, and therefore do not fall within Class 10(dd). The

Access Track Section Drawing illustrates the access tracks. The planning application included

an Access Track Section Drawing, which stated that the surface finish of the access track

would be crushed rock or similar. Furthermore, as explained in the Environmental Report,

at §2.4.2 ‘[t]he Proposed Development will primarily utilise existing farm access tracks but

will include some supplementary limited internal access tracks comprising of permeable

hardcore which will not fall within a road definition as per the Roads Acts 1993, as amended.’.

As such, Power Capital neither sought planning permission for a private road nor did the

Commission grant planning permission for a private road. This is confirmed by condition

13(b) of the Commission Decision, which states that ‘new tracks shall be surfaced in gravel

or hardcore and shall not be hard topped with tarmacadam or concrete’.”

98. Core ground 6 is:

“6. The Respondent erred in law in the manner in which it carried out a screening

determination for the purposes of Article 103(1B)(b) of the Planning and Development

Regulations, 2001 particularly having regard to the obligations contained in paragraph

10(dd) of Part II of Schedule 5 of the Planning and Development Regulations and in particular

failed to address or consider whether the private roads/tracks proposed could fall into the

category of Article 10(dd) of Part II of Schedule 5, whether the extensive network of roads

even if they were less than the threshold specified (which is denied) were capable of being

such of causing a significant effect on the environment and wrongly and inappropriately

failed to consider and address these requirements where the recommendation (not

addressed by the Respondent) was that this class ‘had been screened out at pre-screening

stage from further consideration’. The said determination is inconsistent with and contrary

to the Respondent’s obligations under Council Directive 2011/92/EU, amounts to an

improper and inappropriate application of the Respondent’s obligations under Article 103(1B)

of the Planning and Development Regulations, 2001 and which requires an examination of

the nature of the development proposed, and accordingly the said determination is contrary

and other than in accordance with the Respondent’s obligations under the EIA Directive, and

renders the decision invalid and void.”

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

“Applicants’ Position:

62. The Respondent notwithstanding that the development exceeded the thresholds

provided for in paragraph 10(dd) of Part II of Schedule 5 and was required to conclude that

the development required a mandatory EIA, proceeded to consider the application as a

subthreshold development and in so doing acted to and in contradiction of the plans and

documentation accompanying the application.

63. Further, and without prejudice to the other grounds pleaded, the Respondent failed

to carry out the said screening in accordance with Article 103(1B)(b) of the Planning and

Development regulations, 2001, failed to address and/or consider its obligations under

Article 103(1B)(b) or to record and/or notify and/or give any reason or even refer to the

matter on the face of its decision and screened at a preliminary stage any consideration of

the requirements of Article 10(dd) which would require, even if the thresholds had not been

exceeded (which is denied) would have required a consideration as to whether the said road

system was likely to have a significant effect on the environment.

64. The Respondent in purporting to carry out a screening for the purpose of Council

Directive 2011/92/EU failed to address the considerations that was required to be applied

by virtue of paragraph 10(dd) of Part II of Schedule 5 and failed even in the screening

exercise to consider this issue by addressing how this particular provision was to be

interpreted and to be applied in the context of the nature of the application and the details

set out in the layout plans and particulars relating to the said roads.

Commission’s Position:

65. The Commission’s position on Core Ground 4 applies here – … The access tracks do

not comprise a ‘private road’ for the purposes of Class 10(dd) of Part 2, Schedule 5 of the

PDRs and were not required to be subjected to EIA.

66. For completeness, insofar as the Applicants allege a [flaw] in the EIA Screening, this

has not been established evidentially – with the Applicants failing to discharge the burden

of proof which rests on them.

Power Capital’s Position:

67. The complaint made is that Commission’s EIA Screening Determination is unlawful

as it failed to properly consider the ‘private roads/tracks’ proposed. However, for the

reasons already addressed in Core Ground 4, this is not correct.

68. The Applicants have failed to demonstrate any flaw in respect of the materials before

the Commission by way of evidence or flaw on the face of the material that there was any

defect in the conclusion of the Inspector as to conclusions in the EIA screening, as adopted

by the Commission. Furthermore, the Applicants advance no expert evidence as to any

deficiency in the EIA Screening Determination or legal error in that assessment, and the

Applicants have not discharged the onus of proof in this regard (Reilly, at §69(v)).”

100. Core ground 7 is:

“7. If this Honourable Court forms the view that the definition of private road as specified

in paragraph 10(dd) of Part II of Schedule 5 particularly in the absence of a definition of the

term in relevant statutory provisions, and having regard to the definition of forestry road in

the European Communities (Forest Consent and Assessment) Regulations, 2010 in respect

of a category of private road, that is it not acte clair whether a road to be constructed to a

standard described in the plans and documentation lodged, and of the extent proposed which

exceeds the thresholds specified require an EIA following the judgment in The Commission

of the European Communities v. Ireland (Case 427/07), it is appropriate to make a

preliminary reference under Article 267 of the TFEU to clarify this issue.”

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

“Applicants’ Position:

69. The manner in which paragraph 10(dd) of Part II of Schedule 5 is to be interpreted

is not acte clair and requires a preliminary reference under Article 267 of the Treaty on the

Functioning of the European Union (TFEU) to clarify this issue particularly as it arises in the

circumstances of this case.

Commission’s Position:

70. As outlined above, in Moss & Ors v An Coimisiún Pleanála (No.2) [2026] IEHC 175

(§30 et seq), the Court rejected an attempt to seek a reference to the CJEU on the access

track/road point – this logic applies equally here. The Applicants have made no attempt to

address this

Power Capital’s Position:

71. The Applicant has advanced no basis upon which a preliminary reference is required

and has not demonstrated that the point is not acte clair. The Applicants have neither

advanced weighty inherent logic to their position nor have they pointed to any relevant

material either at EU level or domestic level to warrant the requirement for a reference. As

explained in Moss (No.2) at §32 ‘There is simply nothing by way of authority creating doubt

to suggest that other EU-law-enforcing courts would hold that solar farms become EIA

projects because they necessarily require internal access tracks’. The Applicants neither

engage with Moss (No.2) nor put forth anything to demonstrate doubt as to that conclusion.”

102. 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 project. 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 supports that position in that it finds that

only projects specifically listed in the directive are covered: “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”.

103. Core grounds 4, 6 and 7 are repetitively overlapping and all related to the same issue. They

are essentially already covered by the decisions in Cummins v. An Coimisiún Pleanála [2025] IEHC

521 (Unreported, High Court, 3 October 2025) and Moss v. An Coimisiún Pleanála [2026] IEHC 62

(Unreported, High Court, 10 February 2026) which are adverse to the applicants.

104. First of all this complaint should be dismissed as a matter of discretion, not having been

raised in the process. If I am wrong about that I will consider it on its merits in any event.

105. Insofar as the applicants attempt to distinguish the logic of the previous decisions, they don’t

unfortunately have anything of substance in that regard.

106. The applicants identified the main point of distinguishment as being that an argument was

now being made that the point was not acte clair.

107. Unfortunately that is a misunderstanding. That argument has already been expressly

rejected on a reasoned basis – there is simply no relevant material supporting the argument that

would leave scope for reasonable doubt.

108. The applicants major on the fact that the word “road” can have many meanings – as I

pointed out in Cummins. The problem is that the many meanings derive from many different legal

contexts, such as definitions in domestic law. This has no relevance whatsoever to the only meaning

that counts here which is in the context of the EIA directive. In that context there is no basis for

arguing for multiple meanings that would have the contended-for effect of making projects like solar

farms subject to EIA by a back door.

109. There is a subsidiary attempt to distinguish Cummins and Moss on the grounds that a

reference was not expressly sought there. But that was not a fatal obstacle in those cases. Order

103 r. 14(3) RSC provides expressly that:

“(4) … It shall not be necessary to specify interlocutory reliefs which may be sought by notice

of motion in the proceedings from time to time as such reliefs arise for consideration.”

110. More specifically, if the court thinks a referrable issue of EU law arises from the pleaded case

it can refer that irrespective of whether there is an express plea seeking such a reference. When I

said at para. 81 of Cummins that a reference did not arise on the issue of whether solar farms came

within EIA because that “was not a pleaded contention”, the contention I was referring to was the

substantive claim that solar farms were EIA projects, not the contention that there should be a

reference.

111. The fatal obstacle to a reference in previous cases where this argument has been tried and

failed was not that a CJEU reference was not pleaded as a relief, but that the point the subject-

matter of the proposed CJEU reference had no substance. There is no demonstrated basis for doubt

about the application here of the general principle that EIA applies only to projects listed, which does

not include solar farms, and therefore that “road” should not be given an extremely wide meaning

that would undo the careful distinctions drawn by the directive as to what is covered and everything

else.

112. As regards the forestry regulations, the applicants rely on “the definition of forestry road in

the European Communities (Forest Consent and Assessment) Regulations, 2010 in respect of a

category of private road” to assert that the meaning of road in the EIA directive is not acte clair.

The most fundamental problem with that is that the 2010 regulations don’t define road as suggested.

What they say in reg. 2(1) is “‘forest road’ means a road (other than a public road) that serves a

forest”. That doesn’t get the applicants very far. This self-evidently doesn’t bring tracks that are

not roads within the scope of EIA. The whole argument is circular and ignores the words “means a

road …” in the definition.

113. Reliance on the judgment of 16 July 2009, Commission of the European Communities v

Ireland, C-427/07, ECLI:EU:C:2009:457 is misplaced for reasons already explained – that doesn’t

get the applicants or any applicants over the hurdle of having to demonstrate that the tracks

concerned are roads in the first place.

114. No reasonable doubt has been demonstrated about the interpretation of the EIA directive as

alleged. For the reasons outlined in Cummins and Moss, the applicants’ interpretation would bring

in a large number of projects, not just solar farms, that are not covered by the directive as enacted.

115. The critical point is that the obligation to refer (even for an apex court) does not apply if a

point is acte clair/ acte éclairé: judgment of 6 October 2021, Consorzio Italian Management and

Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19, ECLI:EU:C:2021:799 (Grand

Chamber) at para. 33.

116. More fundamentally, a reference does not arise if the point falls outside the pleaded case,

as such an issue is not capable of affecting the result. Similarly it does not arise if premised on

incorrect factual assertions: “the questions proposed by the applicant does not arise for

determination on the facts here and is premised on a characterisation of the facts that is wholly at

odds with the findings made by the High Court and/or is based upon a submission with regard to

access to justice which is made without evidence and contrary to that which was submitted to the

High Court. No issue of European Union law therefore arises which is necessary to resolve in order

to determine this application for leave”: Eco Advocacy v. An Bord Pleanála [2025] IESCDET 74

(Dunne, Hogan and Donnelly JJ., 4 June 2025), para. 27. Thus, a court (including an apex court) is

not required to refer a point that is subject to a rule of “of inadmissibility specific to the procedure

before that court or tribunal, subject to compliance with the principles of equivalence and

effectiveness (see, to that effect, judgments of 14 December 1995, Jeroen van Schijndel and

Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor Fysiotherapeuten, C‑430/93

and C‑431/93, EU:C:1995:441, para. 17, and of 15 March 2017, Lucio Cesare Aquino v Belgische

Staat, C‑3/16, EU:C:2017:209, para. 56)”.

117. I did consider the possibility of parking EIA issues pending the outcome in Moss but there

are two non-circumnavigable reasons as to why that would not have been appropriate:

(i) the point does not properly arise at all, as set out above; and

(ii) the applicants contend, albeit implausibly, that Moss can be distinguished which

means that pausing this matter would give an unmeritorious second run on that

issue at some future point.

118. So insofar as the applicants submit that “there is an EU law point in this case”, it is

unfortunately not a good EU law point, certainly not a new EU law point, and in any event not an EU

law point on which any meaningful doubt arises.

Discretion

119. Even if counterfactually the applicants were entitled to relief, I would have refused that as

a matter of discretion.

120. The commission submits:

“30. Noting the foregoing and in terms of discretion, which the Applicants fail to address,

even if any non-compliance with the PDRs is established (which it has not been), same would

not warrant the quashing of the Commission’s Decision with regard to the totality of the

circumstances referred to herein – including the evidence before the Commission which

clearly detailed the nature and extent of the Proposed Development; and the absence of any

substantive error identified by the Applicants said to arise from same (see Moss v An

Coimisiún Pleanála (No.1) [2026] IEHC 62 at §86). See also, inter alia, Reilly v An Coimisiún

Pleanála [2025] IEHC 659 (§81 et seq); Ballyboden Tidy Towns Group v An Bord Pleanála

[2023] IEHC 722 (§102 et seq); Pembroke Road Association v An Bord Pleanála [2021] IEHC

403; and Byrnes v Dublin City Council [2017] IEHC 19.”

121. Mr Justin Brown for the notice party avers:

“14. Finally, it should be noted that the Proposed Development, which forms the subject-

matter of these judicial review proceedings, comprises a renewable energy project which,

when developed, will make a significant contribution towards achieving national climate

action targets, including those set out in the Programme for Government 2025, which

commits to achieving a 51% reduction in greenhouse gas emissions from 2018 to 2030 and

net-zero emissions no later than 2050, and the Climate Action Plan 2025, which includes a

legally binding reduction in sectoral emissions by 75% by 2030. In addition to the Proposed

Development’s potentially significant contribution to the achievement of the national climate

targets, it offers capacity to address issues identified in relation to security of electricity

supply. In this regard, I refer to page 50 of the Programme for Government 2025, which is

at Tab 4 and page 88 of the Climate Action Plan 2025, which is at Tab 5.

15. I confirm that, as part of the suite of documents submitted with the Planning

Application, a Planning Statement was submitted on behalf of Power Capital to the Council

setting out the need for the Proposed Development. I would draw to the Court’s attention

the summary of the significant benefits (including energy and renewable energy production)

of this project, as outlined at page 28 of the Planning Statement, as well as the significant

policy support for the Proposed Development, which is required in order to contribute to

Ireland’s renewable energy targets (a copy of that document has been produced at Tab 4 of

exhibit RB1).

16. In all the circumstances as pleaded in the Statement of Opposition filed on behalf of

Power Capital, I beg this Honourable Court to refuse the relief sought by the Applicants in

these proceedings.”

122. The notice party’s submissions state:

“VIII. Discretion

67. The Applicants are not entitled to the relief sought on the basis of the grounds

advanced. As such, there is no basis upon which the Court should be called upon to consider

the exercise of its discretion to refuse to grant relief, particularly, certiorari. However, in

the event that the High Court concludes that the Applicants have made out one or more of

its grounds of challenge (which is not accepted for the reasons set out above), then the

Court should exercise its discretion to refuse the reliefs sought.

68. The Proposed Development is a renewable energy project which, when developed,

will make a significant contribution towards achieving national climate action targets,

including those set out in the Programme for Government 2025 (which commits to achieving

a 51% reduction in greenhouse gas emissions from 2018 to 2030 and net-zero emissions

no later than 2050) and the Climate Action Plan 2025 (which includes a legally binding

reduction in sectoral emissions by 75% by 2030). In addition to the Proposed Development’s

potentially significant contribution to the achievement of the national climate targets, it

offers capacity to address issues identified in relation to security of electricity supply.”

123. The notice party develops this in the statement of case as set out above:

“44. However, if the Court were to find any non-compliance (which is not accepted), such

non-compliance was de minimis and does not warrant the quashing of the Commission’s

Decision in the exercise of this Honourable Court’s discretion in circumstances where the

Applicants (i) do not claim to have been misled by the alleged non-compliance; (ii) do not

claim to have been prejudiced in any way by the alleged non-compliance; and (iii) were able

to fully participate in the planning process and were not hindered in their ability to make

submissions in relation to the Proposed Development. Furthermore, having regard to the

level of detail in the application documents, any non-compliance would have been minor in

context, and if any technical non-compliance arises, the public interest in renewable energy

would outweigh any public interest in respect of strict compliance with the 2001 Regulations

(Moss v. An Coimisiún Pleanála (No. 1) [2026] IEHC 62 at §85 and Croft v Dublin City Council

[2025] IEHC 656 at §1).”

124. Had it been necessary I would have dismissed relief even if that otherwise arose, having

regard to :

(i) the fact that nobody could be in any doubt about what the project involves;

(ii) the applicants do not claim to have been prejudiced or misled;

(iii) the applicants were able to participate in the process;

(iv) there is no genuine environmental issue raised by the technical points argued by the

applicants;

(v) considerable information was before the commission in any event via the

environmental report and screening documentation in particular;

(vi) renewable energy support scheme tendering must be done by Q4 of this year so any

further delay would cause additional very significant non-compensatable financial

prejudice to the notice party;

(vii) such prejudice needs to be viewed as particularly significant where the project has

been delayed already due to these failed proceedings;

(viii) the project has already undergone significant scrutiny;

(ix) domestic and EU law and policy supports the urgent delivery of renewable

infrastructure; and

(x) certiorari would be disproportionate in the light of the technical nature of any issues

raised.

125. Such an approach is in my view compatible with the notion of substantial compliance

discussed in Monaghan U.D.C. v. Alf-a-Bet as referred to above.

Summary

126. For the avoidance of doubt, preambular matters prior to the first heading of this judgment,

and the following summary, do not take from the operative parts of the judgment and must be read

in a sense consistent with those. In outline summary, therefore:

(i) it is settled law that there is relevance of the extent to which submissions on a given

point were made to the decision-taker, which is consistent with the general principle

that, apart from autonomous-type obligations, material capable of sustaining the

point must have been properly before the decision-taker at the relevant time

such as to give rise to a duty to consider it;

(ii) applying such law to the facts here, the points not made to the decision-taker should

be dismissed in limine or as a matter of discretion;

(iii) it is settled law that applicants are confined to their pleadings;

(iv) applying such law to the facts here, significant aspects of the case sought to be

made fall outside the pleadings;

(v) it is settled law that complex EU law arguments need to be articulated on the

pleadings with particular clarity;

(vi) applying such law to the facts here, there is no basis for entertaining EU law-related

arguments not pleaded;

(vii) it is settled law 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;

(viii) applying such law to the facts here, a solar farm is not so listed;

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

establish all facts necessary for relief;

(x) applying such law to the facts here, the applicants have not demonstrated an

infirmity here;

(xi) it is settled law that the law does not favour unworkable interpretations;

(xii) applying such law to the facts here, the extensive obligations sought to be read into

the 2001 regulations would be unworkable;

(xiii) it is settled law that a reference to the CJEU does not arise (even for an apex court)

if the issue does not properly arise in the main proceedings or if there is no

demonstrated doubt about the answer;

(xiv) applying such law to the facts here, there is no basis for a reference;

(xv) it is settled law that judicial review is a discretionary remedy within established

doctrinal boundaries; and

(xvi) applying such law to the facts here, if counterfactually an error had been established

it would be appropriate to exercise discretion against relief within established

doctrinal bounds.

Order

127. 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, having regard inter alia to O. 103 r. 38(1)(b) and/or (c) RSC);

(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 8 June 2026 to confirm the foregoing.