High Court dismisses planning applicants' nullity claim against renewable energy decision due to lack of procedural flaws.

[2026] IEHC 339

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2026.0000074]

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND

DEVELOPMENT ACT 2000

BETWEEN

STEPHEN KEOGH, TOM QUIRKE AND RURAL RESIDENTS WIND AWARE AND

ENVIRONMENTAL GROUP

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

EDF RENEWABLES IRELAND LIMITED

NOTICE PARTY

Date of impugned decision: 27 November 2025

Date proceedings commenced: 20 January 2026

Date of main hearing: 27 April 2026 & 5 May 2026

Date draft judgment circulated: 22 May 2026

JUDGMENT of Humphreys J. delivered on Friday 29 May 2026

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

(ii) 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.

(iii) 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. In An Taisce v. An Bord Pleanála & Ors. [2022] IESC

8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281 per Hogan J. at para. 124 (O'Donnell

C.J., Dunne, Charleton and Woulfe JJ. concurring), the Supreme Court took the

approach that in the context of a challenge to an environmental assessment,

the onus of proof to show a defect generally lies on the applicant.

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

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

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

if the decision-taker says so (see also An Taisce v. An Bord Pleanála & Ors. [2022]

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

Dunne, Charleton and Woulfe JJ. concurring) at para. 137; Rana v. Minister for

Justice [2024] IESC 46 (Unreported, Supreme Court, O’Malley J., 18 October 2024),

para. 91 (Dunne, Hogan, Collins and Donnelly JJ. concurring)).

(v) In Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe

J., 11 April 2024) (Charleton, O’Malley, Baker and Murray JJ. concurring) (see also

per Keane C.J. (Denham, Murphy and McGuinness JJ. concurring) in Baby O v.

Minister for Justice [2002] IESC 44, [2002] 2 I.R. 169, [2003] 1 I.L.R.M. 24), the

Supreme Court decided that evaluative judgements involving a significant degree

of planning judgement and not tainted by other procedural, legal or factual errors

are reviewable on an irrationality standard.

(vi) 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.

(vii) In Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25, [2008]

3 I.R. 795, per Denham J. (Murray C.J., Fennelly, Kearns and Finnegan JJ.

concurring); per Clarke J. (Fennelly and MacMenamin JJ. concurring) in Rawson v.

Minister for Defence [2012] IESC 26 (Unreported, Supreme Court, 1 May 2012) at

para. 6.9, the Supreme Court approached the question of reasons on the basis that

there is no obligation to provide a discursive, narrative consideration of

submissions or to “engage with” submissions in such a sense, or to provide an issue-

by-issue or submission-by-submission response.

(viii) In Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 45 (Clarke C.J.)

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

(Griffin, Hederman and Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993]

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

Commerce 1997 WJSC-SC 962, [1996] 12 JIC 1007 (Unreported, Supreme Court,

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

the Supreme Court approached the standard as to reasons in a way that can be

reasonably summarised as an obligation to provide the main reasons on the main

issues.

(ix) In Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M.

453, para. 9.2 per Clarke C.J. (O’Donnell, Dunne, O’Malley and Finlay Geoghegan

JJ. concurring); Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme

Court, 11 April 2024) per Woulfe J. (Charleton, O’Malley, Baker and Murray JJ.

concurring) at para. 129, the Supreme Court approached the question of reasons on

the basis that reasons may be found anywhere, not necessarily in the decision

itself, for example in an inspectors report.

(x) 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.

(xi) 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).

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

of the applicants as concerned local residents, and the exceptional skill and energy deployed 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/320354) consists of seven wind turbines

and all associated works in the townlands of Ridge, Agharue, Coolnakisha and Seskinrea, Co. Carlow,

approximately at: https://maps.app.goo.gl/NNHpgn7eyNorCyfM8.

Parties

5. The first named applicant is Stephen Keogh, information technology professional, the second

named applicant is Tom Quirke, a farmer, the third named applicant is Residents Wind Aware and

Environmental Group, an unincorporated voluntary environmental non-governmental organisation,

the respondent is An Coimisiún Pleanála, decision-taker, and the notice party is EDF Renewables

Ireland Limited, developer.

Facts

6. On 13 May 2024, the notice party submitted the planning application the subject-matter of

these proceedings to Carlow County Council (reg. ref. no. 24/60122). The application documentation

included an environmental impact assessment report (EIAR) and a Natura impact statement (NIS).

7. A total of 93 submissions and observations by members of the public are recorded in respect

of the planning application, and in June 2024, each of the applicants made an individual submission

on the planning application.

8. Thereafter, four internal reports were prepared by council officials on the planning

application, namely:

(i) “Environmental Department – Planning Referral Report” dated 31 May 2024, which

recommended planning conditions and also provided an EIAR assessment checklist

report (dated 31 May 2024), which found that the content of the submitted EIAR

was largely adequate and an appropriate assessment (AA) conclusion statement

(also dated 31 May 2024) in which it was stated that the project, alone or in

combination with other projects, will not adversely affect the integrity of European

sites;

(ii) “Senior Engineer – Environment, Planning Report” dated 19 June 2024, which

recommended a grant of permission, subject to conditions;

(iii) assistant chief fire officer report dated 2 July 2024, sent under cover of email dated

17 July 2024, which had no objection to the proposed development subject to

condition relating to the submission of a risk assessment of the proposed battery

energy storage system (BESS) facility and suppression system; and

(iv) “Planning Report – Transportation” (undated but attached to an email dated 3 July

2024) which concluded that the application documents and the EIAR failed “to

satisfactorily demonstrate that the local road network is of adequate capacity and

design to accommodate the volume and frequency of HGV traffic proposed along the

haul routes during the construction period” and, accordingly, on the basis of the

information submitted to the Council, would be likely to have “a significant adverse

impact on the local road network, would endanger public safety by reason of a traffic

hazard and be contrary to the proper planning and sustainable development of the

area”.

9. Submissions or observations were made on the planning application by a number of

prescribed bodies, including Irish Aviation Authority, Health Services Executive Environmental Health

Services, Development Applications Unit of the Department of Housing, Local Government and

Heritage, and Kilkenny County Council.

10. A planning report was prepared by an executive planner and senior executive planner (dated

5 July 2024), which recommended that the council should decide to refuse permission for three

reasons. On 5 July 2024, the council issued a notification of a decision to refuse permission.

11. On 1 August 2024, EDF submitted a first-party appeal with the commission which addressed

each of the three reasons for the planning authority’s decision to refuse permission and, in addition

to the documentation submitted to the planning authority, included a stage 2 road safety audit.

12. Three observations were received within the statutory timeframe from: Rural Residents Wind

Aware and Environmental Group (including appended reports from Hydro G, Grosvenor Consulting

and Huson & Associates), Justin and Susan Hayden, and Mary Farrell.

13. On 27 August 2024, the council submitted a response to the appeal.

14. Observations submitted to the commission by the first named applicant (on 29 August 2024)

and on behalf of the second named applicant (on 1 August 2025 and 14 August 2025) were

considered invalid by the commission.

15. The commission assigned a senior planning inspector to report on the appeal. The inspector

prepared a report dated 22 October 2025 in respect of the appeal, which recommended that planning

permission should be granted for the proposed development, subject to 22 recommended conditions.

16. The commission’s direction dated 24 November 2025 (CD-021264-25) recorded that the

submissions on file and the inspector’s report were considered at a commission meeting held on 13

November 2025 (CME-005492-25), and the commission decided to grant permission generally in

accordance with the inspector’s recommendation, subject to 24 conditions.

17. On 27 November 2025, by way of commission order (ABP-320354-24), the commission

granted planning permission for the proposed development, subject to 24 conditions.

Procedural history

18. The proceedings were issued on 20 January 2026.

19. Leave was granted by order dated 26 January 2026 (perfected on 4 February 2026).

20. The applicants filed an amended statement of grounds (dated 26 January 2026) on 8 April

2026.

21. The commission served its opposition papers on 19 March 2026 (which were filed on 20

March 2026).

22. EDF served its opposition papers on 20 March 2026 (which were filed on 23 March 2026).

23. The applicants served three replying affidavits on 10 April 2026.

24. The applicants served their submissions on 14 April 2026.

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

26. EDF served its submissions on 21 April 2026.

27. The commission served its submissions on 21 April 2026.

28. The statement of case was uploaded to ShareFile on 21 April 2026.

29. The matter was listed for hearing on 28 April 2026.

30. 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.

31. On 22 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.

32. 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).

33. 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.

34. 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.

35. 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.

36. 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.

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

2026. Comments were as follows:

(i) applicants – restated their position on wind-take on the record (see below);

(ii) commission – helpfully pointed out some typos; and

(iii) developer – no additional comments.

Relief sought

38. The reliefs sought are as follows:

“1. An Order of certiorari by way of application for judicial review quashing the decision

of the Respondent dated the 27th November 2025, granting permission to the Notice Party

(on appeal from the planning authority first instance decision (Planning Ref. No. 24/60122))

for the construction of 7 wind turbines and associated works within Killeshin Hills, in the

townland of Ridge, Agharue, Coolnakisha and Seskinrea, County Carlow (ABP-320354-24).

2. Such further and / or other Orders or Declaration(s) as to the legal rights and / or

legal position of the Applicants and / or the legal duties and / or legal position of the

Respondent as the Court considers appropriate.

3. A Declaration that special costs rules apply to the proceedings under Section 50B of

the Planning and Development Act 2000 (as amended) and / or by way of Section 3 and 4

of the Environmental (Miscellaneous) Provisions Act, 2011;

4. An Order pursuant to Order 84 rule 20(8)(b) of the Superior Court Rules staying the

development by the Notice Party, its affiliates, assigns, servants and / or agents of the lands

within Killeshin Hills, Ridge, Agharue, Coolnakisha and Seskinrea, County Carlow pending

conclusion of the present proceedings.

5. Such further or other order as this Honourable Court deems necessary.

6. Costs.”

Grounds of challenge

39. The core grounds of challenge are as follows:

“1. The Respondent erred in law in failing to conduct or cause to be conducted a full

Environmental Impact Assessment of the likely significant effects of the development on the

environment, particularly human amenity cumulative noise environment, landscape and

visual impact and public safety by reason of traffic hazard and obstructions of road users as

required by Section 171A, 172 of the PDA 2000 and the EIA Directive, inter alia articles 1

and 3 thereof.

i. The EIAR of the Notice Party was found by the planning authority not to adequately

assess the likely significant environmental effects of the proposed development due to an

absence of sufficient information to comply with the requirements of Article 5(1) of the EIA

Directive 2014/52EU;

i. The Respondent failed to comply with the provisions of Article 3 to 9 of the EIA

Directive and Section 171A, 172 of the PDA 2000 in failing to identify, describe and assess

direct and indirect effect on human being relating to cumulative noise environment and

landscape / visual impacts in accordance with the said the EIA Directive.

ii. The Respondent failed to give sufficient reasons or any reasons to enable the

Applicants to understand how the Respondent overcame the evidential gap in the

assessment of night time noise as outlined by the planning authority first instance decision

(Planning Ref. No. 24/60122) and the HSE EIS Report Submission on the lack of sufficient

assessment of cumulative night time noise levels.

iii. Having regard to the considerations that are incumbent upon the Respondent to take

into account when considering the assessment of human amenity and human health,

particularly as regards the direct submissions on noise, the decision reached by the

Respondent is irrational.

2. In deciding to consider the planning history of the subject site and its environs as a

factor in granting the permission under review, the Respondent was obliged to consider all

planning history for the subject site and its environs. The Respondent failed to consider,

review or even engage with, at all, the reasons and basis for the previous refusal

(PL.01.243364) of permission for a 21 turbine wind farm at the subject location. The failure

to do so was a failure to take relevant considerations into account rendering the

Respondent’s decision invalid.

i. If the Respondent did consider the planning history and previous refusal

(PL.01.243364) it failed to set out any reasons or any sufficient reasons so as to understand

why it was permissible to grant permission on this occasion when the Bord had previously

made express finding as to the unsuitability of wind turbines at the elevated ‘ridge’ location.

3. The Respondent failed to engage with, consider or address the submissions from the

Applicants and the planning authority as to the applicability of the 2006 Wind Energy

Guidelines in the context of noise, shadow flicker and the sitting for the proposed wind

turbines. The Respondent was directly requested to consider the 2019 draft Wind Energy

Guidelines, the World Health Organisation 2018 Guidelines on Noise and the independent

expert reports submitted as regards the issue of noise and human amenity from the

operation of wind turbines in the rural setting including the cumulative effect on noise,

shadow flicker and visual amenity arising from all wind farms in the location. The

Respondent did not address these submissions adequately, or at all, and effectively treated

the 2006 Wind Energy Guidelines as prescriptive, conclusive and exclusive. This amounted

to a fettering of the Respondent’s discretion inter alia whether or not to ‘have regard’ to the

2006 Guidelines.

4. The impugned decision is invalid as the Respondent erred in failing to consider

adequately or at all the submission from the First Applicants on the environmental

consequences of microplastic emission from the operation of the subject wind turbines, being

an area where the local drinking water supply emanates from. Such submissions, and the

evidence upon which they were based, comprised a relevant planning consideration and a

relevant EIA consideration which the Respondent ignored entirely in its Inspector’s Report

and in its ultimate decision to grant permission.

i. If this issue was considered, the Respondent failed to give sufficient reasons or any

reasons to enable the Applicants to understand how such an environmental issue was

dismissed or overcome by the Respondent.

ii. Having regard to the considerations that are incumbent upon the Respondent to take

into account when considering the potential effects on the environment the decision reached

by the Respondent is irrational.

5. The Respondent and / or the Notice Party erroneously described the property of the

Second Named Applicant as a ‘participating property’ with the result inter alia that no

mitigation measures to eliminate shadow flicker to his property were proposed, assessed or

mandated by the ultimate planning conditions attached to control shadow flicker to

residential properties effected. The description of the Second Named Applicant’s property

as a ‘participating property’ was a material error of fact and the failure to take into account

the submissions of the Applicant that his property was not a ‘participating property’ was a

failure to take into account a material consideration when reaching the impugned decision.

6. The impugned decision is invalid as the Respondent erred in law in a) failing to

identify the material contravention of the Carlow Development Plan as it related to landscape

WE.P4, 16.12.3, LA.P1, LA.P2, LA.P3 and LA.P11 and noise assessment WE.P1 and 16.12.2

and b) in materially contravening the Carlow Development Plan 2022 - 2028, Policy WE.P4,

LA.P1, LA.P2, LA.P3, LA.P11 and WE.P1 and 16.12.2 which seek to protect and maintain the

overall integrity of Carlow County’s landscape; which area, has a landscape sensitivity rate

of 5 out of scale of 1 to 5;

i. The Respondent was not entitled to grant development consent in the absence of a

clear and cogent assessment as to how it was justifiable to contravene the development plan

that wind farms were ‘not normally permissible’ in the subject area and acted ultra vires in

so granting development consent without providing a reasoned conclusion or any conclusion

for departing from the protections afforded to the landscape area by the Carlow Development

Plan.

EU Law Ground

7. The impugned decision is invalid and the Respondent erred in law in granting

planning permission for the development of the site given the selective overreliance by the

Respondent on the Wind Energy Guidelines 2006, which guidelines, it was submitted where

in breach of the SEA Directive 2001/42EU and S.I 2004/435 Regulations as being a plan or

programme which was compiled without having first undergone an environmental

assessment in accordance with the SEA Directive 2001/42EU.”

The impugned decision

40. The impugned decision provides as follows:

“Decision

GRANT permission for the above proposed development based on the reasons and

considerations under and subject to the conditions set out below.

Reasons and Considerations

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,

(consistent with the Climate Action Plan 2024 and Climate Action Plan 2025 and the national

longterm climate action strategy, national adaptation framework and approved sectoral

adaptation plans set out in those Plans and in furtherance of the objective of mitigating

greenhouse gas emissions and adapting to the effects of climate change in the State). In

coming to its decision, the Commission had regard to the following:

(a) European legislation, including of particular relevance:

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

2009/147/EC (Birds Directive) which set the requirements for Conservation of

Natural Habitats and of Wild Fauna and Flora throughout the European Union.

• EU Renewable Energy Directive 2009/28/EC which aims to promote the use of

renewable energy and amending Directive EU/2023/2413 which aims to speed up

the EU’s clean energy transition as implemented by European Union (Planning and

Development) (Renewable Energy) Regulations 2025 (S.I. 274 of 2025).

• Directive 2011/92/EU (The EIA Directive) as amended by Directive 2014/52/EU as

implemented by Article 94 and Schedule 6 (paragraphs 1 and 2) of the Planning

Regulations as amended.

• Directive 2000/60/EC (the Water Framework Directive) and the requirement to

exercise its functions in a manner which is consistent with the provisions of the

Directive and which achieves or promotes compliance with the requirements of the

Directive

(b) National and regional planning and related policy, including:

• National policy with regard to the development of alternative and indigenous energy

sources and minimisation of emissions from greenhouse gases, particularly the NPF

First Revision 2025 and National Policy Objective 70.

• The Wind Energy Guidelines: Guidelines for Planning Authorities 2006 and the draft

guidelines published in 2019.

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

(c) Regional and local planning policy, including:

• Regional Spatial Economic Strategy for the Southern Region 2020- 2032

• The Carlow County Development Plan 2022-2028.

(d) Other relevant national policy and guidance documents.

(e) The nature, scale and design of the proposed development as set out in the planning

application and the pattern of development in the vicinity.

(f) The likely consequences for the environment and the proper planning and sustainable

development of the area in which it is proposed to carry out the proposed development and

the likely significant effects of the proposed development on European Sites.

(g) The reports of the planning authority and submissions received in response to same.

(h) The submissions made in relation to the planning application to the planning authority

and to the Commission in connection with the appeal

(i) The report and the recommendation of the Inspector, including the examination, analysis

and evaluation undertaken in relation to Appropriate Assessment and Environmental Impact

Assessment.

Appropriate Assessment: Stage 1:

The proposed development was considered in light of the requirements of Section 177U of

the Planning and Development Act 2000, as amended. Having carried out Screening for

Appropriate Assessment, and on the basis of the information considered in the Appropriate

Assessment screening, it is not possible to exclude the possibility that the proposed

development alone would result significant effects on the River Barrow and River Nore

Special Area of Conservation (Site Code: 002162) and the River Nore Special Protection Area

(Site Code: 004233) in view of the sites’ Conservation Objectives. It is, therefore,

determined that Appropriate Assessment of the proposed development is required.

Appropriate Assessment: Stage 2:

In screening the need for Appropriate Assessment, it was determined that the proposed

development could result in significant effects on the River Barrow and River Nore Special

Area of Conservation (Site Code: 002162) and the River Nore Special Protection Area (Site

Code: 004233) in view of the Conservation Objectives of these sites and that Appropriate

Assessment under the provisions of S177U was required.

Following an examination, analysis and evaluation of the Natura Impact Statement and all

associated material submitted with the planning application, and taking into account

submissions on nature conservation, it has been ascertained that adverse effects on the site

integrity of the River Barrow and River Nore Special Area of Conservation (Site Code:

002162) and the River Nore Special Protection Area (Site Code: 004233) can be excluded in

view of the Conservation Objectives of these sites and that no reasonable scientific doubt

remains as to the absence of such effects. The conclusion is based on the following:

(a) A full and detailed assessment, including information presented in the Environmental

Impact Assessment Report and supplementary information submitted by the applicant, of

the proposed development, including proposed mitigation measures and water quality

monitoring in relation to the Conservation Objectives of the River Barrow and River Nore

Special Area of Conservation (Site Code: 002162) and the River Nore Special Protection Area

(Site Code: 004233).

(b) The effectiveness of mitigation measures proposed, including supervision and monitoring

and integration in the CEMP ensuring the smooth transition of obligations to the eventual

contractor.

(c) The application of planning conditions to ensure the application of these measures. (d)

The proposed development will not affect the attainment of Conservation Objectives for the

River Barrow and River Nore Special Area of Conservation (Site Code: 002162) or the River

Nore Special Protection Area (Site Code: 004233).

Environmental Impact Assessment:

The Commission completed an environmental impact assessment of the proposed

development taking account of:

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

(b) the Environmental Impact Assessment Reports (EIAR’s) and associated documentation

submitted in support of the application,

(c) the planning authority reports, and the submissions received from the observers and

prescribed bodies, and

(d) the Inspector’s report.

The Commission considered that the Environmental Impact Assessment Report, supported

by the documentation submitted by the applicant, adequately considers alternatives to the

proposed development and provided information which is reasonable and sufficient to allow

the Commission to reach a reasoned conclusion on the significant effects of the proposed

development on the environment, taking into account current knowledge and methods of

assessment. The Commission i's satisfied that the information contained in the

Environmental Impact Assessment Report is up to date and complies with the provisions of

EU Directive 2014/52/EU amending Directive 201 1 /92/EU

The Commission considered, and agreed with the Inspector’s reasoned conclusions, that the

main significant direct and indirect effects, both positive and negative, of the proposed

development on the environment are those arising from the impacts listed below and would

be mitigated as follows:

• Landscape and Visual: Negative landscape and visual impacts arise during the

operational phase of the proposed development given the placement of significant

structures within the local landscape thereby changing the existing visual context.

This will result in significant residual indirect and cumulative visual effects on a small

number of residential receptors located in elevated positions to the west and north,

within circa 800 metres, and which have primary views towards the proposed wind

farm. Residual landscape effects on the site will be direct and not significant, and

on the wider study area indirect, cumulative and not significant. Residual visual

effects on other visual receptors will be indirect, cumulative and not significant.

• Land, Soil, Geology, Air and Climate: Taking account of mitigation measures to

manage risk, a low risk of peat slide has been demonstrated. Positive long-term

significant cumulative effects on climate as a result of the proposed development in

combination with other wind farms due to reduced greenhouse gas emission from

increased electricity generation from renewable sources.

• Biodiversity and Birds: The removal of linear habitats on site, including treelines and

hedgerows will have local effects which can be mitigated through the delivery of

mitigation measures, including the Biodiversity Management and Enhancement Plan

within the site. Negative local level effects on species and birds which are likely to

arise in the construction or operational phases can be adequately mitigated by

measures and monitoring outlined in the application documentation and are not

considered to be significant.

• Water (including aquatic habitat and species): There will be no impacts on water

connectivity or movement of fish or result in the loss of instream habitat. Negative

effects on surface water and groundwater, and on aquatic species, habitat and

downstream receptors which are likely to arise from potential release of sediments

and other pollutants into watercourses can be adequately mitigated by measures

outlined in the application documentation. The proposed development will not cause

a deterioration in water quality or impede the ability of ground water and surface

water bodies to achieve good or high status under the Water Framework Directive.

• Noise: Negative noise impacts arising during the construction phase of the proposed

development will be short-term, temporary, transient and mitigated through the

implementation of measures outlined in the planning application documentation.

Operational noise levels, individual and cumulatively, will not be significant and can

be controlled by noise limit condition and mode management mitigation measures.

• Cultural Heritage: Permanent changes to Black Bridge (a protected structure) will

have a direct, moderate and not significant effect, and will be further mitigated

through the implementation of measures outlined in the planning application

documentation.

• Material Assets: Negative traffic effects arise during the construction phase of the

proposed development; the road network has the capacity to facilitate this traffic,

and effects will be mitigated through the implementation of a traffic management

plan. Potential negative effects on telecommunication links and aviation during

operation can be adequately mitigated.

• Population and Human Health: Negative impacts on human health and population

arising from construction and operation, including noise, traffic and dust disturbance,

can be adequately mitigated by measures outlined in the application documentation.

Long-term positive moderate cumulative effects on the local area from employment

and investment.

The Commission completed an environmental impact assessment in relation to the proposed

development and concluded that, subject to the implementation of the mitigation measures

proposed, and subject to compliance with the conditions set out below, the effects of the

proposed development on the environment, by -itself and in combination with other plans

and projects in the vicinity would be acceptable. In doing so, the Commission adopted the

report and conclusions of the Inspector.

Proper Planning and Sustainable Development:

It is considered that, subject to compliance with the conditions set out below, the proposed

development would make a positive contribution to Ireland's renewable energy and security

of energy supply requirements, would be in accordance with European, national, and

regional renewable energy policies and with the provisions of the Carlow County

Development Plan 2022-2028, would not have an unacceptable impact on the landscape and

visual amenities of the area, the biodiversity of the area, geology and soil of the area, the

water environment of the area, the residential amenities of the area would not adversely

affect the archaeological and cultural heritage of the area, and would be acceptable in terms

of traffic and road capacity and traffic safety. The proposed development would, therefore,

be in accordance with the proper planning and sustainable development of the area.

The Commission noted and agreed with the Inspector’s assessment that the proposed wind

farm is acceptable in principle having regard to national, regional and local policy in support

of, and requiring the delivery of increased on shore wind energy to meet climate and energy

security objectives. The Commission noted that the subject site is located within the uplands

landscape type and that Objective WE P4 of the Carlow County Development Plan 2022-

2028 states that wind farm development will not normally be permissible in this landscape

type. The Commission noted that this conflicts with Policy RE P1 of the development plan

which aims to encourage and facilitate the production of energy from renewable sources,

and Objective LA P7 which aims to facilitate developments, including windfarms, that have

a functional and locational requirement to be situated on steep or elevated sites. The

Commission further noted, and as set out in the Inspector’s assessment, that the Killeshin

Hills landscape character area is determined as having moderate capacity to absorb wind

farming. Furthermore, the development plan states that ‘in the Killeshin landscape character

area, close to the border with County Kilkenny, the wind speeds are favourable and there

are no environmental designations that preclude wind farm construction. However, the

constraints mapping suggests that it may be difficult to meet separation distances between

wind turbines and dwellings.’ The plans and particulars submitted with the planning

application confirm that separation distances between the proposed wind farm elements and

dwellings can achieve a setback distance of four times the maximum tip height which

exceeds the minimum of 500 metres and is in accordance with the draft Wind Energy

Development Guidelines 2019, and this, therefore, is not a constraint. Having regard to the

entirety of the objectives and provisions of the Carlow County Development Plan in support

of the provision of renewable energy, including Chapter 7 (Climate Action and Energy) and

Appendix VI (Carlow County Renewable Energy Strategy), the Commission is satisfied that

the proposed development can be considered acceptable in the context of Objective WE P4,

would be in accordance with the overall policies and objectives of the Carlow County

Development Plan 2022-2028, and would be acceptable in the context of national objectives

to address climate change, increase renewable energy, and achieve security of energy

supply.

Conditions

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

plans and particulars lodged with the application except as may otherwise be required in

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

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

planning authority prior to commencement of development and the proposed development

shall be carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.

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

ten years from the date of this Order.

Reason: Having regard to the nature and extent of the proposed development, the

Commission considered it appropriate to specify a period of validity of this permission in

excess of five years.

3. This permission shall not be construed as any form of consent for the associated

development components where these are located within County Kilkenny, including the grid

connection route (circa 18.1 kilometres) and the turbine delivery accommodation works, or

agreement to a connection to the national grid.

Reason: In the interest of clarity.

4. (a) This permission shall be for a period of 35 years from the date of the first

commissioning of the windfarm. All structures, including foundations, shall then be removed

and the site reinstated unless, prior to the end of that period, planning permission shall have

been granted for their retention for a further period.

(b) Prior to commencement of development, a detailed Site Restoration Plan providing for

the removal of the turbines and all ancillary structures, and a timescale for its

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

(c) On full or partial decommissioning, or if the wind farm ceases operation for a period of

more than one year, the windfarm, the turbines and all ancillary structures shall be

dismantled and permanently removed from the site. The site shall be restored in accordance

with the agreed Site Restoration Plan, and all decommissioned structures shall be removed

from the site within 12 months of decommissioning.

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

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

of landscape restoration upon cessation of the project.

5. The mitigation, monitoring and enhancement measures contained in the submitted

Environmental Impact Assessment Report (EIAR) shall be implemented in full.

Reason: To protect the environment.

6. The mitigation and monitoring measures contained in the submitted Natura Impact

Statement (NIS) shall be implemented in full.

Reason: To protect the environment and the integrity of European Sites.

7 The developer shall retain the services of a suitably qualified and experienced Ecologist

(to perform the role of Ecological Clerk of Works) to undertake pre-construction surveys at

the various project elements, immediately prior to commencing work to check for the

presence of protected species in the vicinity, and to oversee and ensure the implementation

of all environmental mitigation and monitoring measures during construction and operation

of the wind farm.

Reason: To protect biodiversity.

8. Prior to commencement of development, the developer shall submit to the planning

authority a complete schedule of all mitigation, monitoring and enhancement measures.

This shall identify who is responsible for the implementation of these measures and

timescales for implementation.

Reason: To protect the environment and the integrity of European Sites.

9. (a) Appropriate software shall be employed on each of the turbines to ensure that there

will be no shadow flicker at existing nearby habitable dwellings (excluding participating

properties). Turbine shutdown shall be undertaken by the wind energy developer or operator

in order to eliminate the potential for shadow flicker.

(b) A report shall be prepared by a suitably qualified person in accordance with the

requirements of the planning authority indicating compliance with the above shadow flicker

requirements at dwellings. Within 12 months of the commissioning of the wind farm, this

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

The developer shall outline proposed measures to address any recorded non-compliances,

including controlling turbine rotation, if necessary. A similar report may be requested by

the planning authority at reasonable intervals thereafter.

Reason: In the interest of residential amenity.

10. (a) Noise levels generated by the windfarm following commissioning, by itself or in

combination with other existing or permitted wind energy development in the vicinity, when

measured externally at existing noise sensitive locations, shall not exceed:

• For the daytime period, 7am to 11pm, in quiet environments, where background

noise is less than 30dB(A)L90 T10, a maximum noise level of 40dB(A)L90 T10.

• For the daytime period, 7am to 11pm, where the background noise level exceeds

30dB(A)L90 T10, the greater of 45dB(A)L90 T1 0, or 5dB(A) above background

levels.

• For the nighttime period, 11 pm to 7am, for all noise environments, 43dB(A)L90

T10.

(b) Prior to the commissioning of the windfarm, the developer shall submit to, and agree in

writing with, the planning authority a Noise Compliance Monitoring Programme (NCMP) for

the operational windfarm. The NCMP shall include a detailed methodology for all sound

measurements, including frequency of monitoring and recording of results, which shall be

made publicly available. The results of the initial noise compliance monitoring shall be

submitted to, and agreed in writing with, the planning authority within 12 months of

commissioning of the wind farm. The NCMP shall be fully implemented during the operation

of the windfarm.

Reason: in order to protect the amenities of existing noise sensitive properties in the vicinity

of the proposed development.

11. All works to Black Bridge (a protected structure) shall be carried out under the

supervision of a qualified professional with specialised conservation expertise and in

accordance with best conservation practice as detailed in the ‘Architectural Heritage

Protection: Guidelines for Planning Authorities’ issued by the Department of the

Environment, Heritage and Local Government in 2011. A Structural Assessment of the

bridge in accordance with relevant Transport Infrastructure Ireland Guidelines and an

Architectural Impact Assessment shall be submitted for the written agreement of the

planning authority prior to the commencement of any works on Black Bridge.

Reason: To ensure that the character and integrity of the protected structure and NIAH listed

structures is maintained and protected from unnecessary damage and loss of fabric.

12. The developer shall appoint a Community Liaison Officer for all stages of the proposed

development who shall be the first point of contact for residents and be responsible for

monitoring and reporting of complaints, maintaining complaints register, addressing

complaints and for discharging information in relation to the development to residents.

Contact details for the Community Liaison Officer shall be provided to the planning authority.

Reason: In the interest of amenity and orderly development.

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

Construction Environmental Management Plan (CEMP) which shall be submitted to, and

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

CEMP shall provide an implementation tool for the schedule of mitigations (as conditioned)

and as applicable to the construction phase and the contractor(s). The CEMP shall provide

details of intended construction practice for the proposed development, including, but not

limited to, and in line with the methodology and mitigation and monitoring measures detailed

in the Environmental Impact Assessment Report and the Natura Impact Statement:

(a) Details of the construction methodology for all the components of the proposed

development.

(b) Details of all services and utilities along the grid connection route and methodology for

crossing/diversions.

(c) Details of on-site car parking and access arrangements for site workers and deliveries.

(d) A construction traffic management plan. Details of abnormal load road routes and

management of the abnormal load delivery process, construction haul routes, road closures

and diversion, local property access arrangements, and alternative arrangements to be put

in place for pedestrians in the case of the closure of any public road or footpath during the

course of site development works

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

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

road network.

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

of such levels.

(h) 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

(i) Details of marking of hydrological buffer zones and silt fencing. Means to ensure that

surface water run-off is controlled such that no silt or other pollutants enter local surface

water sewers or drains.

(j) A surface water management plan, including details of water quality monitoring.

(k) Works to be carried out in accordance with Inland Fisheries Ireland 'Guidelines on

protection of fisheries during construction works in and adjacent to waters’.

(l) The location and specifications of any temporary storage requirements.

(m) A waste management plan for construction waste.

(n) The location of all archaeological constraints and cultural heritage constraints relevant

to the proposed development.

(o) A record of daily checks that the works are being undertaken in accordance with the

CEMP shall be made available for inspection by the planning authority, with monitoring on a

daily basis of all watercourses in or adjacent to works areas.

(p) Details of a local community feedback mechanism, where feedback, including complaints,

are received and acted upon by a designated Community Liaison Officer.

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

14. The actual detail(s) of the proposed development not confirmed at the time of the

planning application, the subject of an opinion by the planning authority under section

321(2), shall fall within:

(a) Turbine Tip Height – maximum height 180 metres, minimum height 179.5 metres

(b) Hub Height – maximum height 105 metres, minimum height 102.5 metres.

(c) Rotor Diameter – maximum length 155 metres, minimum length 149 metres.

The developer shall notify the planning authority of the actual details of the turbine tip

height, hub height and rotor diameter in writing prior to commencement of development.

Reason: To clarify the details of what is being developed in accordance with the planning

authority’s opinion.

15. (a) Cables within the site shall be laid underground.

(b) The wind turbines shall be geared to ensure that the blades rotate in the same direction.

(c) Transformers associated with each individual turbine and mast shall be located either

within the turbine mast structure or at ground level beside the mast.

Reason: In the interest of visual amenity.

16. Prior to the commissioning of the windfarm, the developer shall submit for the written

agreement of the planning authority details of actions to be taken by the developer in the

event of the development causing interference with telecommunication signals. Such actions

shall be completed to minimise interference with telecommunication signals and shall be

carried out to the written satisfaction of the planning authority at the developer’s expense.

Reason: In the interest of protecting telecommunication signals and residential amenity.

17. Prior to commencement of development, details of the external finishes to the substation

buildings and structures, battery energy storage system, fencing, and for provision of CCTV

to the sub-station compound, shall be submitted to the planning authority for written

agreement.

Reason: In the interest of clarity and visual amenity.

18. Site development and building works shall be carried out only between the hours of 0700

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, including when delivering abnormal loads, where prior written

agreement has been received from the planning authority and in accordance with measures

outlined in the Environmental Impact Assessment Report.

Reason: To safeguard the amenity of property in the vicinity.

19. (a) Prior to commencement of development, the developer shall carry out a preliminary

screening of enroute communications, navigation and surveillance equipment in consultation

with the Irish Aviation Authority. On completion of the screening, confirmation of its

agreement with the Irish Aviation Authority shall be submitted by the developer to the

planning authority for written agreement.

(b) Prior to commencement of development and following consultation with the Department

of Defence and the Irish Aviation Authority, the developer shall submit for the written

agreement of the planning authority details of an obstacle warning light scheme which can

be visible to night vision equipment.

(c) The developer shall inform the Irish Aviation Authority of its intention to commence crane

operations with a minimum of 30 days prior notification of their erection

(d) Prior to commissioning of the turbines, the developer shall inform the planning authority

and the Irish Aviation Authority of the coordinates of the as-constructed positions of the

turbines and the highest point of the turbines (to the top of the blade spin).

Reason: In the interest of air traffic safety.

20. (a) Prior to commencement of development, the developer shall submit a Fire Risk

Assessment of the BESS, which shall be carried out by a suitably qualified individual, for the

review of the planning authority. No works shall commence on site until the developer has

received the written agreement of the planning authority with regard to this assessment

(b) Only first generation (new) batteries shall be used in the proposed development. Prior

to commencement of development, a method statement shall be submitted for the written

agreement of the planning authority detailing how end-of-life batteries shall be managed

and disposed of. End-of-life battery management shall thereafter be undertaken in

accordance with the details agreed.

Reason: In the interest of public safety and environmental management.

21. (a) The developer shall establish a Community Benefit scheme which shall be adhered

to for the life of the wind farm. The scheme shall be administered in accordance with the

RESS Community Benefit Fund Good Practice Principles, 2021, prepared by the Department

of the Environment, Climate and Communications

(b) In the event that the developer does not utilise the government’s Renewable Energy

Support Scheme (RESS), prior to the commencement of development, a community gain

proposal shall be submitted to the planning authority for written agreement. In default of

agreement, the matter shall be referred to An Coimisiún Pleanála for determination.

Reason: To ensure that the community living in proximity to the wind farm benefits from it.

22. 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 reinstatement of public roads which may

be damaged by the transport of materials to the site, coupled with an agreement

empowering the planning authority to apply such security or part thereof to the satisfactory

reinstatement of the public roads. 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: In the interest of traffic safety and the proper planning and sustainable development

of the area.

23. 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

upon cessation of the project, 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 reinstatement of the site.

24. 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

41. 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

42. 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.

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

this juncture:

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

decision: Amariei v. Chief Appeals Officer [2026] IESC 22 at para. 1 per Donnelly J.

(O’Donnell C.J., Charleton and Murray JJ. concurring); per Clarke J. (Dunne J.

concurring) in Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31

July 2014) at paras. 3.8-3.15. It is not an appeal on the merits and it is not for the

court to substitute its view for that of the decision-taker: per Finlay C.J. in the State

(Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 at p. 654 (Hamilton P.

concurring); per Denham J. in Meadows v. Minister for Justice, Equality and Law

Reform [2010] IESC 3, [2010] 2 I.R. 701 at p. 743; per Lady Hale in R (Cart) v.

Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 at para. 47: “it is not difficult to

dress up an argument as a point of law when in truth it is no more than an attack

upon ... factual conclusions”. See also Stapleton v. An Bord Pleanála & Savona

[2025] IEHC 178 (Unreported, High Court, Holland J., 1 April 2025); Moran v. An

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

Farrell J. at 11.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

expansive application of the equality guarantee contained in Article 14 ECHR

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

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

broad and expansive application of the guarantee risked undue interference

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

classification is not arbitrary or capricious or based on prejudice or

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

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

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

States v Butler (1936) 297 US 1).”

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

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

Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 (HL),

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

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

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

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

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

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

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

Generally speaking evaluative judgements involving a significant degree of planning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J., 30 December 2025) at 32.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025) at 32.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3 October 2025).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025) per Farrell J. at 13.

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

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

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

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

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

make a balanced and reasonable assessment of the overall sustainability of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

impact statement – such matters are considered for AA purposes – An Taisce v. An

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

Hogan J. (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring) at para. 137.

Pleadings

44. 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.

Onus of proof

45. 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.;

analogously, Donegal County Council v. Planree [2024] IECA 300 (Unreported, Court

of Appeal, Butler J., 18 December 2024), para. 141; 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. The

evidence of experts is one area where the court is not automatically obliged to accept

evidence absent cross-examination: Tesco Ireland Limited v. Stateline Transport

Limited [2024] IECA 46 (Unreported, Court of Appeal, Butler J., 23 February 2024).

Inadequacy of assessments

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

rehearsed in previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

which different decision-makers may legitimately reach different conclusions without

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College

van gedeputeerde staten van Limburg and College van gedeputeerde staten van

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

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

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

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

SCJJ.) at 143.

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

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

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

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

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

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

Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 2025).

The requirement to have regard to relevant matters

47. As regards the obligation to have regard to relevant matters:

(i) The distinction between matters subject to a comply-with obligation and

those subject to a have-regard-to obligation is foundational to administrative

law, and the latter must not be elevated into the former (nor the former diluted into

the latter): Cork County Council v. Minister for Housing [2021] IEHC 683, [2021] 11

JIC 1810 (Unreported, High Court, 18 November 2021), paras. 85-86; Mount Salus

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

& Ors. [2025] IEHC 14 (Unreported, High Court, 15 January 2025), paras. 55 to 56

per Holland J.; Voyage Property v. Limerick City and County Council [2025] IEHC

696 (Unreported, High Court, Holland J., 16 December 2025) at 41, 215.

(ii) Matters which may be assessed in terms of consideration by a decision-taker fall

essentially into three categories, those a decision-taker must consider

(including where she must consider such matters if raised as opposed to in

every case), those that she cannot consider, and all other matters in respect

of which she has an evaluative entitlement to consider or not as she thinks

appropriate: R. (Friends of the Earth Ltd) v. Heathrow Airport Ltd [2020] UKSC 52,

[2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212 (Lord Hodge

and Lord Sales SCJJ.) at 116-121.

(iii) A decision as to the weight to give a matter in the evaluative category, or whether

to consider it at all, is subject to reasonableness review. “There is no obligation on

a decision-maker to work through every consideration which might conceivably be

regarded as potentially relevant to the decision they have to take and positively

decide to discount it in the exercise of their discretion” Heathrow Airport at 120.

(iv) As Holland J. put it in Colbeam v. Dun Laoghaire Rathdown County Council [2025]

IEHC 437 (Unreported, High Court, 5 August 2025) at 146: “a view that the

decisionmaker could not but have decided in my favour if only it had had regard to

my submission underlies many allegations of failure of regard to submissions”.

(v) A claim of failure to have “proper” regard to the plan is a merits complaint: Cummins

v. An Coimisiún Pleanála [2025] IEHC 521 (Unreported, High Court, 3 October

2025).

(vi) The duty to have regard to certain matters only applies if they are relevant. Thus,

“While section 28(2) of the 2000 Act requires the Board to have regard to Guidelines

made under that section where applicable, that obligation applies only in respect of

Guidelines which are material, having regard to the facts of the specific application”:

Ó Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell

J., 19 September 2025) at 45.

Reasons

48. Key elements of the law relating to reasons include:

(i) The standard is the obligation to provide the main reasons on the main issues:

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

(O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Balz and

Heubach v. An Bord Pleanála [2019] IESC 90, [2023] 3 I.R. 751, [2020] 1 I.L.R.M.

367 per O’Donnell J. (Clarke C.J., McKechnie, Charleton and Irvine JJ. concurring);

Balscadden Road SAA Residents Association Ltd v. An Bord Pleanála (No. 1) [2020]

IEHC 586, [2020] 11 JIC 2501 (Unreported, High Court, 25 November 2020);

Atlantic Diamond v. An Bord Pleanála [2021] IEHC 322 (Unreported, High Court, 14

May 2021); Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669

(Unreported, High Court, Holland J., 25 November 2024), para. 59; Pat O’Donnell v.

Dublin City Council [2024] IEHC 671 (Unreported, High Court, Holland J., 26

November 2024), para. 149; per Barr J. in Graymount House Action Group v. An

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

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

IESCDET 22 (Dunne, Woulfe and Hogan JJ., 17 February 2025); see also non-

precedentially Morris v. An Bord Pleanála [2025] IESCDET 25 (Dunne, Woulfe and

Hogan JJ., 17 February 2025); Ó Murthuile v. An Bord Pleanála [2025] IEHC 498

(Unreported, High Court, Farrell J., 19 September 2025) at 49; Moran v. An Bord

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

J. at 33; reasons are to be understood in context of the “Broad issues” – Finlay C.J.

(Griffin, Hederman and Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993]

1 I.R. 39, [1992] I.L.R.M. 237 at p. 76 or “Broad gist” – Faulkner v. Minister for

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

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

J. concurring).

(ii) A decision-taker is not required to give “reasons for the reasons”: Munby L.J.

(Tomlinson and Patten LJJ. concurring) in In re A. and L. (Children) [2011] EWCA

Civ. 1611, [2011] 12 W.L.U.K. 725, [2012] 1 F.L.R. 1243, [2012] Fam. Law 285, at

para. 35 (in the context of judicial reasoning – the administrative obligation can’t be

greater); N.P.B.K. (D.R.C.) v. International Protections Appeals Tribunal [2020]

IEHC 450 (Unreported, High Court, 25 September 2020) at 29; Ó Murthuile v. An

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

2025) at 49.

(iii) Certain issues are to be viewed objectively as main reasons given the

nature of the process or decision at issue – for example if it is in dispute as to

whether key statutory criteria for the decision have been satisfied. Where the

commission is disagreeing with a council (Sherwin v. An Bord Pleanála [2023] IEHC

26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023)) or with its own

inspector on a point on which the grant or refusal of permission turns, such an issue

is virtually by definition a main issue, speaking objectively, such that a decision not

to give reasons on it would be held to be erroneous (Crekav Trading GP Ltd v. An

Bord Pleanála and Ors. [2020] IEHC 400 (Unreported, High Court, Barniville J., 31

July 2020); Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303 (Unreported,

High Court, 7 May 2021); O'Donnell v. An Bord Pleanála [2023] IEHC 381

(Unreported, High Court, 1 November 2023); Killegland Estates Ltd v. Meath County

Council [2023] IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023)

(O'Donnell C.J., Charleton, O'Malley, Baker, Woulfe and Donnelly JJ. concurring);

Ventaway v. An Coimisiún Pleanála [2025] IEHC 406 (Unreported, High Court, 16

July 2025); Phelan Walsh v. An Bord Pleanála [2025] IEHC 533 (Unreported, High

Court, Nolan J., 8 October 2025) at 53 citing Connelly v. An Bord Pleanála [2018]

IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453 (Clarke C.J.)). In the case of the

inspector, there is the additional factor that by contrast with a normal case where

the commission adopts the inspector’s reasons, in a case where the commission

disagrees it must come up with reasons of its own. Where the commission disagrees

with the inspector’s conclusion but on a basis that was not dealt with at all by the

inspector, then any enhanced reasons obligation does not apply: AAI Baneshane v.

An Coimisiún Pleanála [2025] IEHC 641 (Unreported, High Court, 21 November

2025).

(iv) As to what are the main issues arising from submissions of interested parties,

the decision in Friends of the Irish Environment CLG & Anor. v. Minister for Housing,

Local Government and Heritage & Ors. [2025] IECA 128 (Unreported, Court of

Appeal, 5 June 2024) is clear that, per Hyland J. (Costello P. and Collins J.

concurring) at para. 148, it is for the decision-taker in the first instance to decide

whether submissions raise relevant issues. Failure to address an issue in a

submission can be challenged in the normal way.

(v) There is no obligation to provide a discursive, narrative consideration or to

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

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

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

Fennelly, Kearns and Finnegan JJ. concurring) referring to the lack of a need for a

“micro specific format” (at p. 819); per Clarke J. (Fennelly and MacMenamin JJ.

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

Court, 1 May 2012) at para. 6.9, referring to the need for a “reasoned but not

discursive ruling”. Confusing a lack of narrative discussion with a lack of reasons is

a classic applicant’s fallacy: see e.g. Ó Murthuile v. An Bord Pleanála [2025] IEHC

498 (Unreported, High Court, Farrell J., 19 September 2025) at 23.

(vi) Reasons may be found anywhere, not necessarily in the decision itself, for

example in an inspectors report: Connelly v. An Bord Pleanála [2018] IESC 31,

[2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, para. 9.2 per Clarke C.J. (O’Donnell,

Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Sherwin v. An Bord Pleanála

[2024] IESC 13 (Unreported, Supreme Court, 11 April 2024) per Woulfe J.

(Charleton, O’Malley, Baker and Murray JJ. concurring) at para. 129; thus no

additional requirement for reasons is required when adopting a reasoned report (for

example of a chief executive or indeed an inspector): Killegland Estates v. Meath

County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July

2022) at para. 65; Shadowmill v. An Bord Pleanála [2023] IEHC 157 (Unreported,

High Court, Holland J., 31 March 2023), para 84; Pat O’Donnell v. Dublin City Council

[2024] IEHC 671 (Unreported, High Court, Holland J., 26 November 2024) at para.

144.

(vii) Reasons may be implicit from the context, for example it can be implicit that

matters submitted were held not to be outweighing when placed against factors

supporting the conclusion arrived at: Rana v. Minister for Justice [2024] IESC 46

(Unreported, Supreme Court, O’Malley J., 18 October 2024), paras. 96-99 (Dunne,

Hogan, Collins and Donnelly JJ. concurring).

(viii) Consistently with the principle that there do not need to be reasons for the reasons,

a decision-maker doesn’t need to give reasons for not changing her mind from

an already-articulated position absent a significant change in circumstances or a

significant new point (Killegland Estates v. Meath County Council [2022] IEHC 393,

[2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022), para. 67; Pat O’Donnell

v. Dublin City Council [2024] IEHC 671 (Unreported, High Court, 26 November

2024), para. 145 per Holland J.) or for not making an exception to a clear policy

for which reasons have been previously articulated, unless there is a significant

change in circumstances or the unusual case of a new point being made of such

significance that it needs to be expressly addressed: AAI Baneshane v. An Coimisiún

Pleanála [2025] IEHC 641 (Unreported, High Court, 21 November 2025). That

principle in turn reflects an even broader principle that a re-iteration of a previous

position or decision is not a new decision for the purposes of judicial review, and

does not for example re-start the clock for challenge: Killegland v. Meath County

Council [2022] IEHC 393 (Unreported, High Court, 1 July 2022). That said, a new

plan is indeed a new decision and can be challenged afresh even if it contains the

proverbial old wine in a new bottle. But an individual decision does not become a

fresh decision merely because the decision-maker is asked to change her mind and

doesn’t.

(ix) There is no obligation to give reasons for not changing the status quo, for example

maintaining a previous plan provision, in respect of which reasons would have been

given at an earlier stage: Jones v. South Dublin County Council [2024] IEHC 301

(Unreported, High Court, 11 July 2024) at §209, Voyage Property v. Limerick City

and County Council [2025] IEHC 696 (Unreported, High Court, Holland J., 16

December 2025) at 106.

(x) There is no obligation to state reasons for what is obvious: Killegland Estates

v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High

Court, 1 July 2022) (from which the Supreme Court dismissed an appeal, [2023]

IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023) (O’Donnell C.J.,

Charleton, O’Malley, Baker, Woulfe and Donnelly JJ. concurring)), para. 83;

Industrial Development Agency v. Information Commissioner [2024] IEHC 649

(Unreported, High Court, Phelan J., 15 November 2024), para. 132.

(xi) There is no obligation to give reasons for rejecting a legally incorrect point:

see Ironborn v. Dun Laoghaire Rathdown County Council [2023] IEHC 477

(Unreported, High Court, Mulcahy J., 31 July 2023). Reasons are tied into the

exercise of evaluation and judgement, so if the latter do not arise then neither does

the former – thus there is no need for reasons if there is in fact no evaluation

by the decision-taker – if the issue is correctly applying a mandatory, non-

discretionary, non-evaluative, legal rule, a valid decision does not become invalid

due to failure to explain the law or indeed to give reasons for the rejection of a

legally incorrect submission.

(xii) A decision should not be quashed for lack of reasons if nobody could be in any

real doubt as to what the reasons were: Killegland Estates v. Meath County Council

[2023] IESC 39, [2023] 12 JIC 2109 (Unreported, Supreme Court, 21 December

2023) per Hogan J. (O’Donnell C.J., Charleton, O’Malley, Baker, Woulfe and Donnelly

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

Court, 26 September 2025) per Farrell J. at 34.

(xiii) If some reasons are good and others are bad, the decision may be severable if the

good reasons are stand-alone (McCarthy Meats v. Minister for Housing, Planning

and Local Government [2020] IEHC 371, [2020] 7 JIC 2707 (Unreported, High Court,

Heslin J., 27 July 2020); Murtagh v. An Bord Pleanála [2023] IEHC 345 (Unreported,

High Court, Owens J., 29 March 2023); Ironborn v. Dun Laoghaire Rathdown County

Council [2023] IEHC 477 (Unreported, High Court, Mulcahy J., 31 July 2023);

Voyage Property v. Limerick City and County Council [2025] IEHC 696 (Unreported,

High Court, Holland J., 16 December 2025)).

(xiv) Reasons are not severable if there is a certain link between the reasons (Element

Power Ireland Ltd v. An Bord Pleanála [2017] IEHC 550 (Unreported, High Court,

Haughton J., 28 September 2017)).

(xv) Reasons should not be created ex post facto: K v. Minister for Justice [2022]

IEHC 582 (Unreported, High Court, Bolger J., 21 October 2022); Ballindooley

Developments Limited v. Minister for Housing Local Government and Heritage & Ors.

[2025] IEHC 109 (Unreported, High Court, Holland J., 20 February 2025), although

reasons that existed at the relevant time can be evidenced after the event if

appropriate: RPS Consulting Engineers Ltd v. Kildare County Council [2016] IEHC

113, [2017] 3 I.R. 61 at para. 109.

Discretion

49. 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. IA

[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 2005) 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

50. 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).

51. 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. …”

No ongoing entitlement for an applicant to drip-feed evidence

52. The facility for replying affidavits which is made available by O. 103 RSC, Practice Direction

HC126 and schedules of directions of the court in individual cases is limited to affidavits that are

properly replying. It does not entitle an applicant to rewind the clock and put in evidence that

should have been part of its case from day one (see Oxigen v. An Coimisiún Pleanála [2025] IEHC

632 (Unreported, High Court, 19 November 2025)).

53. Similar issues arose in Fahybeg Windfarm Opposition Group v. An Bord Pleanála [2025] IEHC

310 (Unreported, High Court, 30 May 2025), para. 18:

“The major and underlying problem was that the onus of proof was at all times on the

applicants. The claim that protected trees were being felled was a core part of their case

from day one – and was an issue that they should have had adequate evidence of in the

context of the leave application. The onus was on the applicants to prove that the felling

was going to take place in the protected area. The fact that they didn’t realise the need to

do that until very late in the day is on the applicants, not on anyone else. It would be

fundamentally unfair to the opposing parties to allow the applicants to reopen that now,

derail the case procedurally, and create a need for a further substantive hearing on a point

that was central to the applicants’ case from the word go. Such an approach would unleash

procedural chaos and goes well beyond any legitimate right to reply to new evidence from

the notice party.”

54. Affidavit evidence can be excluded where there has been excessive and unexplained delay

in filing same causing prejudice to the other parties: Sliabh Luachra Against Ballydesmond Windfarm

Committee v. An Bord Pleanála [2019] IEHC 888 (Unreported, High Court, McDonald J., 20

December 2019) (§30 et seq.):

“In my view, the delay in this case is such and the timing of delivery of the affidavits is such

that it was incumbent on the applicant, if it wished to be in a position to rely on such

affidavits, to fully explain and justify their delivery at such a late (and crucial) stage of the

proceedings. No satisfactory explanation or reason has been put forward to justify the late

delivery of these affidavits. The timing of the delivery of the affidavits is not addressed

anywhere on oath by the applicant. In light of the failure to properly explain and justify the

delivery of these affidavits, I am left with no alternative but to exclude them from

consideration.”

55. Crucially there is not an ongoing entitlement to put in further evidence that was

reasonably available originally. The applicant has to have all such evidence marshalled and

before the court at an earlier point, ideally at leave stage but in any event prior to opposition papers.

Any further affidavits are limited to reply.

56. Hayes v. Environmental Protection Agency [2024] IECA 162 (Unreported, Court of Appeal,

Butler J., 24 June 2024) (Ní Raifeartaigh and Meenan JJ. concurring) establishes that there is not a

rigid requirement to put in affidavits in the first eight weeks. But that is not susceptible to a radical

interpretation that would create an ongoing entitlement to drip-feed the applicant’s evidence right

up to the last minute.

57. At para. 127, Butler J. says that an applicant’s evidence may be furnished outside the eight-

week period as long as the proceedings are initiated within that. Where Butler J. refers to no

“special” leave being required, that is referable to a situation where there are no inconsistent

directions of the court. Obviously if the court has got involved in the management of the

proceedings, its directions have to be complied with like any other order.

58. The issue in that case was, as set out in para. 128, the question of whether the affidavits

were introducing facts that were not before the decision-taker and that were not properly ones for

the court (inferentially (see final sentence of para. 130) as not coming within any recognised

exception). As was stated at para. 130, “the EPA is the independent body responsible for resolving

any conflict in the scientific evidence. It cannot do this if participants in the process choose not to

engage with the scientific evidence which is adduced by the developer before the EPA but then seek

to present new and potentially contrary evidence to the court”.

59. The court went on at para. 132 to point out that an applicant who wants to demonstrate

gaps in an AA is entitled to put forward scientific evidence as to the existence of such gaps – or as

it has been put in other decisions, that a reasonable expert would have seen such gaps from the

material before the decision-taker. That is distinct from simply disagreeing with the factual

conclusions of the decision-taker – a point Butler J. makes at para. 133. Previous High Court caselaw

is all totally consistent with this point (e.g., Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230

(Unreported, High Court, 12 April 2021)). The affidavits in that case were partially disallowed to the

extent to which they (“frequently”) went beyond those parameters.

60. Hayes is not authority for a general proposition that an applicant has an ongoing entitlement

to add new evidence to support its case (as opposed to properly by way of reply). It does not go

further than saying that the eight-week limit is not a bar to a further affidavit. But once issue is

joined by opposing pleadings and evidence then matters are different. A moment’s thought

illustrates why this is so. If an applicant can develop her case in a drip-feed manner, this nullifies

directions in case-managed proceedings, and undermines the scheme of statement of grounds and

statement of opposition dictated by rules of court. It allows intolerable uncertainty up to the last

minute as to whether an applicant is going to produce further rabbits out of a hat that could knock

the hearing off schedule, deprive opposing parties of meaningful reply, or generally cause procedural

mayhem or at a minimum waste of costs and effort, requiring amendment of statements of

opposition or further replying affidavits from opposing parties dealing with the “new” points from an

applicant. Of course, an applicant can reply, provided that what is offered is in fact a reply.

61. The essential points are:

(i) While an applicant is not rigidly confined to furnishing all evidence within the initial

eight weeks (Hayes v. Environmental Protection Agency [2024] IECA 162

(Unreported, Court of Appeal, Butler J., 24 June 2024)), an applicant’s evidence

must be put before the court at the appropriate procedural time, generally

prior to opposition papers, subject to limited exceptions and generally involving

an explanation for not doing so earlier (see e.g. Reid v An Bord Pleanála (No. 1)

[2021] IEHC 230 (Unreported, High Court, 12 April 2021)).

(ii) Affidavit evidence can be excluded where there has been unexplained delay

causing prejudice: Sliabh Luachra Against Ballydesmond Windfarm Committee v. An

Bord Pleanála [2019] IEHC 888 (Unreported, High Court, McDonald J., 20 December

2019) (§§30 et seq.).

(iii) Replying affidavits must be genuinely replying, not raising new evidence

(subject to limited exceptions).

(iv) The mere fact that an opposing affidavit points to a lacuna in an applicant’s case

does not constitute a new point that allows the applicant to fill the lacuna for the

first time.

(v) Allowing a rolling drip-feed of an applicant’s case creates procedural chaos:

It is simply not compatible with modern and ordered litigation that drip-feeding

evidence could be permitted. Such a process undermines the orderly conduct of

proceedings and requires further reply and potentially revision of opposing papers.

(vi) In any event the court’s directions for papers must be complied with –

affidavits are impermissible if not so provided for.

Preliminary issues

62. The parties’ positions on preliminary issues as recorded in the statement of case are

summarised as follows:

“Commission’s Position:

1. The Applicants’ submissions (§72-§75) advance an unpleaded, abstract and

undeveloped argument by reference to s.15(1) of the Climate Action and Low Carbon

Development Act, 2015, as amended (‘the 2015 Act’). There is no argument or plea in

relation to s.15 of the 2015 Act in this case. The Applicants did not plead a breach of s.15

of the 2015 Act and have not pleaded s.15 in any sense in which this argument –

impermissibly introduced for the first time in written submissions – could arise in this case.

It is settled law that it is not open to the Applicants to expand the pleaded case via legal

submission in the manner attempted. Further, the unpleaded argument advanced in this

regard implicitly entails impermissible non-expert merits-based disagreement with the

Commission’s Decision to grant permission and is without merit. Granting permission for a

renewable energy project, such as the one at issue, 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 of the 2015 Act, and the Applicants have not argued nor pleaded otherwise. There

is also no pleaded challenge to the Commission’s findings that the wind farm aligns with

national climate, renewable energy, and energy security objectives, nor to its conclusion

that granting permission complied with s.15(1) of the 2015 Act.

2. For the reasons set out in the Commission’s written submissions, supported by

relevant settled law, the replying affidavit of William Leslie Huson filed on behalf of the

Applicant is inadmissible and/or no weight should be given to the averments in same. It is

not a proper replying affidavit, as it largely restates earlier planning submissions and

introduces new matters not raised in the opposing parties’ evidence or included in the

pleaded case. It also raises issues not before the Commission and relies on material that

was available at the judicial review leave stage without explanation for its late introduction.

This approach is procedurally inappropriate and contrary to established case law (cited in

the Commission’s submissions). Further, there is no recognition or acknowledgement in the

affidavit of Mr. Huson of the duty owed by the deponent to the Court to provide their own

independent assessment as required. Moreover, in the absence of cross-examination, any

evidential conflicts must be resolved against the Applicants, who bear the burden of proof.

EDF’s Position

3. As also addressed in §H(i) below, it appears to EDF that the Applicants are seeking

to rely on section 15 of the Climate Action and Low Carbon Development Act 2015. This

issue is not pleaded and was impermissibly raised for the first time in the Applicants’ written

submissions. The Applicants are not entitled to advance, by way of written submissions,

grounds in respect of which leave has not been granted to pursue any point regarding the

2015 Act and they are not entitled to amplify their case by way of written submissions (100

Metre at §38(ii)), and any legal ground pursued on the basis of these submissions should be

dismissed in limine.

4. It is EDF’s position that the Affidavit of William Leslie Huson should not be admitted

for the following reasons:

(i) Mr. Huson’s Affidavit is not, in reality, a replying Affidavit. Rather, the majority of

the content of that Affidavit does not respond to issues raised in opposition papers filed by

either the Commission or EDF and, in effect, see §9 in particular, is a summarisation of the

submissions made during the planning application process. 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 Mr. Huson’s Affidavit was available to the Applicants at

the time that the application for leave to apply for judicial review was made, and no

explanation has been provided for the failure of the Applicants to file such an Affidavit on

the application for leave (see Reid v. An Bord Pleanála [2021] IEHC 230); and

(iii) Mr. Huson raises matters which, in part at least, were not put before the Commission

(see, for example, §9(x)) and which are not part of the Applicants’ pleaded case (see Hoctor

v. An Coimisiún Pleanála [2026] IEHC 65 at §55).

5. In addition, it is noted that the deponent has failed to outline his duty to the court

and independence, and the Court is referred to the provisions of Order 39, rule 57 of the

Rules of the Superior Courts 1986, as amended (see also Kennedy v. An Bord Pleanála

[2024] IEHC 570, §56).

Applicant’s Position:

6. The Commission’s preliminary objection by reference to §.72 to 75 of the Applicant’s

Legal Submissions is not understood. The Applicants, in the mentioned paragraphs, have

not advance an unpleaded, abstract and undeveloped argument by reference to s.15(1) of

the Climate Action and Low Carbon Development Act, 2015, as amended (‘the 2015 Act’) or

any argument by reference to the 2015 Act. The similar objection raised by the Notice Party

on the Applicant’s reference to the 2015 Act is not accepted. The Applicant has referred to

the 2015 Act at §71 of their Legal Submissions by reference to a review of the recent decision

in Coolglass. This is entirely permissible as a submission on law and was made in the context

of the ‘comply with’ interpretation as outlined at §.68 of the Applicants’ submissions which

is referrable to the Applicants’ arguments in respect of the use by the Commission of the

WEDG 2006 guidelines. The reference to the 2015 and more particularly Coolglass is made

as legal submission having regard to the additional fact that this decision, of the Supreme

Court, came out after the Applicants were granted leave to judicially review the Commission

decision and cognisant of the fact that there was similarity in the subject matter of Coolglass

and the Seskin wind farm it was appropriate to refer to the recent decision in legal

submissions for the court. It is not accepted that the Applicant has acted inappropriately in

referring to either Coolglass or the 2015 Act in their submissions nor does the Applicant seek

to expand their claim in this regard as alleged by the Respondent and Notice Party.

7. In respect of the objections of the Affidavit of William Leslie Huson, the Applicants

note that the language used by both the Commission and EDF on this issue is qualified. The

Applicants do not accept that the affidavit of Mr Huson introduces new matters not raised in

the opposing parties’ evidence or included in the pleaded case. [nor does it] raise issues

not before the Commission and relies on material that was available at the judicial review

leave stage without explanation for its late introduction. The Affidavit of Mr Huson exhibits

the Expert Report of Mr Huson which was properly before the Commission and was also

before the High Court at the leave stage. The Affidavit does nothing more that restate the

content of that report for the Court, exhibiting same, and further addresses the incorrect

pleads that no expert evidence was put before the Commission by the Applicants. It is the

Applicants’ position that this procedural objection is not appropriate give the content of Mr

Huson’s affidavit and does not amount to an attempt by the Applicant to supplement or

expand the issues raised by the Applicant either before the Commission or before the High

Court at the leave stage. The Report of Mr Huson was before both the Commission and the

High Court Judge at the leave stage and as such the Affidavit does not in any sense introduce

new matters.

8. Mr Huson outlines, in detail, his qualifications and experience as an expert in the

area of acoustics and noise assessment both in his report and in the body of his Affidavit.

Mr Huson confirms that he was commissioned by the Third Named Applicant to prepare his

report and to review the EIAR accompanying the planning application. The Applicants submit

that the language used throughout both Mr Huson’s report and his affidavit is measured and

impartial, he does not engage in assumptions or speculation but merely recites his expert

opinion on the issues raised in the EIAR and relevant to the issues under review by the

Commissions’ Inspector. The admissibility or otherwise of specific averments in Mr Huson’s

affidavit is a matter for the court to determine if the Commission and EDF wish to challenge

the admissibility of specific averments. The Applicants’ acknowledge the statement made

by EDF that the Mr Huson’s report does not expressly address the requirements of Order 39

rule 57(2) RSC, however, this court rule is referrable to expert reports delivered pursuant

to the Rules of Court. Mr Huson’s report was first delivered in the context of the planning

process and not under the Rules of Court. In order to avoid any doubt as to the bona fides

of Mr Huson’s report in the context of these court proceedings the Applicants will apply to

the Court pursuant to Order 40 rule 4 RSC for leave to file a supplemental affidavit exhibiting,

and averring to an acknowledgment of the duty of Mr Huson to assist the court as to the

matters within his field of expertise which overrides any obligation to the Applicants.”

63. The applicants did subsequently endeavour to rectify the affidavit of Mr Huson as regards

his expert duties.

64. As regards the preliminary issues raised, these can be disposed of as follows:

(i) Any argument based on s. 15 of the 2015 Act is wholly unpleaded and cannot be

relied on.

(ii) In any event such an argument lacks merit even if counterfactually it was properly

before the court, because the applicants have not overcome the onus to show that

the commission’s decision fell outside the range of options open to it under s. 15. It

is just a fact that while of course one starts from a presumption that everybody

complies fully with s. 15 all of the time, a constant stream of public domain material

from the EPA and the Climate Change Advisory Committee (CCAC) indicate that this

is not sufficiently happening in practice. In the context of climate-goal consistency

in development plans, it falls to national actors like the commission, the Planning

Regulator (OPR) and the Minister to make judgements as to what is in fact

appropriate, even if that involves ultimately displacing any starting assumption in

favour of a council’s view otherwise. A not inconsiderable amount of such

displacement may turn out to be necessary given the very significant deficit between

formally stated and legally-benchmarked climate ambition and actual renewable

provision. The inspector in this case adopted a very insightful approach as to how

the commission should go about considering such a delicate question and I will

return to that.

(iii) As regards the replying affidavit of William Leslie Huson, it is sufficient to say that

even assuming for the sake of argument that this is admissible (and thus avoiding

the need to formally rest matters on the obvious problems of its original and non-

replying content, its appearance far outside the time allowed in directions, and the

failure to explain why any information was not put forward earlier in the

proceedings), no weight should be attached to it because the decision cannot

generally be condemned by reference to matters not put before the commission,

and insofar as any of the averments are relevant to the scientific robustness of the

commission’s assessments, the court has affidavit evidence supporting the

assessments and so any conflict must be resolved in favour of the opposing parties

in the absence of cross-examination, on an RAS Medical basis.

65. There was a further preliminary issue regarding a proposed amendment but a pragmatic

solution was devised. For the avoidance of doubt, that was to allow the amendment on a de bene

esse basis. For reasons set out below the point fails in any event, so it is not necessary to formally

determine whether the amendment should properly be allowed or even to offer a view on that for

the purposes of the present judgment.

Whether the points were made at the appropriate time

66. 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:

9. The Applicants’ submissions (§72-§75) for the first time in these proceedings

advance an unpleaded, abstract and undeveloped argument by reference to s.15 of the 2015

Act. Same is not pleaded and was not made in the planning process.

EDF’s Position:

10. It appears to EDF that the Applicants are seeking to rely on section 15 of the Climate

Action and Low Carbon Development Act 2015. This issue is not pleaded and was raised for

the first time in the Applicants written submissions.

Applicant’s Position:

11. The Applicant is not seeking to rely upon the provisions the 2015 Act for the purposes

alleged by the Respondent and Notice Party. As outlined at §.17 above. Reference to the

2015 is made in the context of legal submissions on the recent Coolglass decision and is not

an attempt to expand or include a point not pleaded.

(ii) points contended to have been made in the process, but not pleaded;

Commission’s Position:

12. The Commission does not understand that any point made in the process but not

pleaded is at issue in the proceedings.

EDF’s Position:

13. EDF does not understand that any point made in the process but not pleaded is at

issue in the proceedings.

Applicant’s Position:

14. No reply appears necessary.

(iii) points contended to be referred to narratively/contextually in the pleadings but without

any properly formulated legal plea;

Commission’s Position:

15. The Commission does not understand that any point referred to

narratively/contextually but without being a properly formulated legal plea is at issue in the

proceedings. For completeness, the Commission’s position is that the pleas at section E,

§§9-16,23-27, 29-33, 35-47 and 59 of the Amended Statement of Grounds comprise

narrative/context and not legal pleas.

EDF’s Position:

16. EDF does not understand that any point referred to narratively/contextually but

without being a properly formulated legal plea is at issue in the proceedings.

17. However for the avoidance of doubt, it is EDFs position that the following pleas are

narrative/context and are not legal pleas: §§E(9) to (16), §§E(23) to (27), §§E(29) to (33),

§§E(35) to (49), §E(59) of the Amended Statement of Grounds.

Applicant’s Position:

18. In reply to the Commission and EDF Position on §§9 to 16 of the ASOG; the Applicant

states that §§ 9 to 13 comprise context to Core Ground 1 whilst §§ 14 to 16 comprise legal

pleas by reference to the PDA and the EIA Directive. §§ 23 to 27 of the ASOG comprise

context to Core Ground 2. In reply to the Commission and EDF Position on §§29 to 33 of

the ASOG; the Applicant states that §§29 to 31 comprise context to Core Ground 2 whilst

§§32 and 33 legal pleas by reference to the context as pleaded. §§ 35 to 45 of the ASOG

comprise context to Core Ground 3, whilst pleas at §§ 46 to 49 comprise legal pleas

referrable to the pleaded context of that legal ground. §59 of the AGSOG is context referrable

to Core Ground 5.

(iv) points contended to have been pleaded but not made by the applicant in the process;

and

Commission’s Position:

19. As regards Core Ground 4, no valid submission concerning microplastics was made

to the Commission in the course of the appeal. The First Named Applicant raised the issue

before the planning authority but not before the Commission. No submission/observation

was made directly to the Commission on the issue of microplastics.

20. As regards Core Ground 5, the Applicants did not raise the labelling error/

misdescription by the Notice Party in certain of its planning application documents (namely

in the EIAR) of the Second Named Applicant’s Property as a ‘participating property’, either

before the Council at first instance or the Commission on appeal.

21. As regards Core Ground 6, and the eight allegations of material contravention of the

Development Plan advanced, none of the Applicants raised such an issue or asserted any

such material contravention of the Plan during the process, either before the Council at first

instance, or the Commission on appeal. The Applicants did not make a submission before

the Council or Commission that any such material contravention arose.

EDF’s Position:

22. In respect of Core Ground 4, no submission was made by the Applicants to the

Commission concerning microplastics.

23. In respect of Core Ground 5, the subject matter of that core ground is that the

Second Named Applicant’s Property was misdescribed as a ‘participating property’ by EDF in

the application documents. This issue was not raised by any of the Applicants before the

Council and / or the Commission.

24. In respect of Core Ground 6, the subject matter of that core ground is an allegation

that the Commission granted permission in material contravention to the Development Plan.

The Applicants did not make a submission before the Council and / or Commission that any

such material contravention arose.

Applicant’s Position:

25. In reply to the position of the Commission and EDF on Core Ground 4, the

Commission’s Order dated the 27th November 2025 confirmed that in coming to its decision

the Commission had regard to all reports and submissions received in respect of the planning

authority process. The Applicant thus contents that the issues in Core Ground 4 where

validly before the Commission.

26. In reply to the position of the Commission and EDF on Core Ground 5, this ground

relates to the factual mischaracterisation of the Second Named Applicant’s property as a

‘participating property’. It is submitted that the position of the other parties on this issue is

somewhat disingenuous, the Second Named Applicant, when he became aware of the

misdescription, did notify the Commission prior to the Inspector’s report; however, the

Commission refused to consider the Second Named Applicant’s communication citing that it

had been made outside of the time period for submissions. As per the Applicants’ Legal

Submissions the Applicants’ do not accept that is was an appropriate action for the

Commission to take in the context of the communication made by the Second Named

Applicant to it on this factual error.

27. In reply to the position of the Commission and EDF on Core Ground 6, the Applicants

did raise a submission that contravention of the development plan arose in the proposed

development before the Commission. See Third Named Applicant’s written submission to

the Commission, (inter alia internal pages 9, 12, 37, 47, 53, 56, 57). Furthermore the

presence or absence of a material contravention of the development plan is a question of

law which is to be addressed by the court as outlined by the Applicants’ in their Legal

Submissions at §64.

(v) points contended to have been both made in the process and also pleaded;

Commission’s Position:

28. The Commission accepts that the Applicants raised issues concerning Core Grounds

1-4 and 7 in the process. As regards Core Ground 4, this is subject to the foregoing point

that no valid submission concerning microplastics was made to the Commission in the course

of the appeal. The First Named Applicant raised the issue before the planning authority but

not before the Commission. No submission/observation was made directly to the

Commission on the issue of microplastics.

EDF’s Position:

29. EDF accepts that the Applicants raised issues in the process concerning Core

Grounds 1-4 and 7. In respect of Core Ground 4, while a submission was made to the

Council regarding microplastics, no such submission was made to the Commission.

Applicant’s Position:

30. The Applicants’ position is that Core Grounds 1 to 7 were made in both the process

and are also pleaded. The objections raised as to Core Grounds 5 and 6 are addressed by

the Applicants at §35 and 36 above.”

67. In terms of resolving the foregoing I can dispose of the issues as follows:

(i) As noted above, any issue about s. 15 of the 2015 Act is not suggested to be a

pleaded basis for any possible relief.

(ii) Only pleaded claims that properly postulate a legal basis for relief as opposed to

setting out context are a proper foundation for any potential relief.

(iii) No issue was validly raised with the commission about the labelling

error/misdescription of the second named applicant’s property as a ‘participating

property’. The onus is on the applicants to raise such an issue validly as opposed to

outside the time-limits for so doing. Consequently it would be inappropriate in the

exercise of discretion to grant relief on that ground even if the basis for such relief

was made out.

(iv) In the absence of a valid submission to the commission as opposed to the council

concerning microplastics no relief should be granted for failure to consider that.

(v) In fairness to the applicants they did ventilate various objections regarding

contravention of the development plan. The word “material” was not used but to

rule out the point on that basis alone would be unduly legalistic.

Domestic law issues

68. The pleadings do not properly distinguish between domestic and EU law points and

accordingly I will deal with the core grounds in a somewhat different order from that pleaded.

Core ground 2 – planning history

69. Core ground 2 is:

“2. In deciding to consider the planning history of the subject site and its environs as a

factor in granting the permission under review, the Respondent was obliged to consider all

planning history for the subject site and its environs. The Respondent failed to consider,

review or even engage with, at all, the reasons and basis for the previous refusal

(PL.01.243364) of permission for a 21 turbine wind farm at the subject location. The failure

to do so was a failure to take relevant considerations into account rendering the

Respondent’s decision invalid.

i. If the Respondent did consider the planning history and previous refusal

(PL.01.243364) it failed to set out any reasons or any sufficient reasons so as to understand

why it was permissible to grant permission on this occasion when the Bord had previously

made express finding as to the unsuitability of wind turbines at the elevated ‘ridge’ location.”

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

“Applicant’s Position:

20. The Respondent failed to take into account that there was previous highly relevant

planning history pertaining to the area, particularly as regard the number and extent of

turbines which the receiving landscape could accommodate. Nowhere in the Inspector’s

report or Respondent’s order is there any meaningful assessment of this prior history despite

the Applicants expressly referring to same in their submissions. There is no reasoning as to

why this the current planning application differs from the previous application refused or

why the receiving landscape can now accommodate further wind turbine development,

particularly given that the current development increases tip height from 140m to 180m and

comes after approval of two further wind turbine developments for the same area.

Commission’s Position:

21. Core Ground 2 is not made out. The Applicants’ claim that the Commission failed to

consider the site’s planning history—particularly a prior refusal under ABP ref:

PL.01.243364—is incorrect and misconceived. That refusal related to a different 21-turbine

development on different lands over a decade ago, under a distinct policy and

factual/evidential context, whereas the present proposal concerns a 7-turbine project. In

addition to lacking any factual basis, a further difficulty is that the Applicants’ submissions

do not refer to, still less engage with, directly relevant authority that is entirely contra their

position. At the level of principle, there is no obligation on the Commission to give reasons

by contrast with any previous planning decision: McGowan [2025] IEHC 727 at §63; Ó

Murthuile [2025] IEHC 498 at §24; Moran [2025] IEHC 510 at §30. In any event, the

planning history, including the 2014 refusal, is expressly recorded and analysed in the

Inspector’s Report (§§5.1.1, 5.2.1, 5.3.1), which the Commission adopted. Similarly, the

allegation that the Commission ignored permitted wind farms such as White Hills Wind Farm

(ABP-315365-22) and Bilboa Wind Farm (ABP-318295-23) is unfounded: both were included

in the EIAR (Appendix 2-3), referenced throughout the Inspector’s Report (e.g. §§4.2.1,

5.2.1, 7.3.2, 9.6.3), and addressed in the cumulative assessment carried out (e.g. §8.4.1,

Inspector’s Report). Correctly interpreted, the Commission’s Decision and Inspector’s

Report demonstrate clear and repeated engagement with relevant planning history.

22. The Applicants’ reliance on Solan [2023] IEHC 58 and Cleary Compost [2017] IEHC

458 is misplaced. Solan concerned a situation where the decision-maker treated a specific

issue as determinative but failed to consider evidence relevant to that specific issue; no such

circumstance arises here, where the planning history was expressly considered. Cleary

Compost confirms that planning history may be considered but does not impose a duty of

detailed comparative analysis or adherence to prior decisions There is no comparison

between the facts or legal context in Solan or Cleary Compost and those here. The

Applicants’ assertion of a lack of ‘meaningful assessment’ amounts to an impermissible, non-

expert, merits-based critique: landscape and visual impacts were comprehensively analysed

(Inspector’s Report §8.2.2), including capacity, policy context, and cumulative effects (EIAR

Chapter 4, §4.1; and Inspector’s Report, §8.2.2, §8.4.1). The Commission was entitled to

assess the proposal on its own merits under current policy, including updated renewable

energy objectives (see e.g. section 6.0 Inspector’s Report). No error has been established,

and Core Ground 2 should be dismissed.

EDF’s Position:

23. There are a number of fundamental legal infirmities undermining Core Ground 2.

First, as set out in the Ó Murthuile v. An Bord Pleanála [2025] IEHC 498, Moran v. An Bord

Pleanála at [2025] IEHC 510 and McGowan and Anor v An Coimisiún Pleanála [2025] IEHC

727, there was no legal obligation on the Commission to assess the 2014 planning

application, including in relation to purported ‘cumulative effects of such permission’, when

development consent was refused for that proposed development. Secondly, the fact that

the 2014 planning application was refused by the Commission (and the Council) does not

invalidate the Commission’s decision to grant permission in this case in circumstances where

the planning applications are demonstrably different, and the relevant development plans

and national policy (particularly in respect of the increase in national and EU policy to

promote renewable energy developments as outlined at §6.0 of the Inspector’s Report) are

different (per Moran and McGowan above). However, and in any event, thirdly, the

Commission actually had regard to the refused 2014 planning application, which is expressly

referenced at section 5.2.1 of the Inspector’s report. In addition, the Commission and the

Inspector considered the Third Named Applicant's submission on this issue.

24. The Applicants’ secondary complaint (i.e., the permitted development of 19 no.

turbines in the area which was sought to be developed in the 2014 planning application was

not considered by the Commission), is demonstrably incorrect. As a matter of fact, and as

set out in the application documentation, the existing and permitted Gortahile, White Hill,

and Bilboa wind farm developments (which are located 3.1 kilometres, 2.5 kilometres, and

1.2 kilometres, respectively, from the Proposed Development), were all assessed in the

application documentation and were considered by the Commission and its Inspector in

making the Impugned Decision.

25. Whereas the Applicants advance a complaint that there was no ‘reasoned

engagement’ with the developments approved pursuant to permissions granted under ref.

nos. ABP-315365-22 (White Hill) – amendments to this permission were recently considered

in separate proceedings brought by the Third Named Applicant (Rural Residents Wind Aware

and Environmental Group and Ors v An Coimisiún Pleanála and Ors [II] (No.2) [2026] IEHC

136) – and ABP-318295-23 (Bilboa), this contention is manifestly incorrect. Firstly, both

the White Hill and Bilboa permitted renewable energy developments were considered in the

cumulative assessment in the EIAR, including in Appendix 2-3. Secondly, both permitted

developments are expressly referenced by the Inspector (see, for example, section 5.2.1 of

the Inspector’s report) and are repeatedly recorded as having been raised in observations

made on the appeal. Thirdly, the Commission and its Inspector expressly addressed those

permitted developments in its cumulative assessment (see section 8.4.1 of the Inspector’s

report). Consequently, there is simply no factual basis for the Applicants’ contention that

the Commission failed to have regard to ‘the planning history of the site and its immediate

environs and the cumulative evolution of wind farm development’. Finally in this context,

the merits-based nature of Core Ground 2 is encapsulated by the contentions of the

Applicants themselves, including at §29 of their written submissions, in which they raise

issues such as whether the ‘the receiving landscape can now accommodate further wind

turbine development, particularly given that the current development increases tip height

from 140m to 180m and comes after approval of two further wind turbine developments for

the same area.’ Such submissions subtend an impermissible attempt to impugn the merits

of the decision to grant permission for the Proposed Development. In the circumstances,

Core Ground 2 should be dismissed.”

71. No particular oral submissions were made on this point, the applicants relying on written

submissions.

72. The basic reason why this point fails is essentially as follows:

(i) The premise is incorrect. The commission did not fail to consider the planning history

(see inspector’s report (§§5.1 to 5.3)).

(ii) In particular insofar as PL.01.243364 was referenced in submissions by the third

named applicant, the submissions were considered, or at least the commission says

so and the applicants have not proved otherwise.

(iii) It is also factually incorrect that other permitted wind farms such as Gortahile, White

Hill, and Bilboa were not considered. These are addressed in the developer’s EIAR

and the inspector’s report.

(iv) The relied-on refusal is not in any event relevant. As the commission states, it was

a different 21-turbine development on different lands over a decade ago, in a

different policy context.

(v) Furthermore the alleged “cumulative effects” do not arise insofar as the previous

decision was a refusal, which therefore did not give rise to effects on the receiving

environment in and of itself.

(vi) Each application needs to be considered on its own merits. There is no general

obligation on the commission to engage with the reasoning of each decision in any

given planning history or distinguish one application from another. That is

unworkable in any event: Ó Murthuile v. An Bord Pleanála [2025] IEHC 498

(Unreported, High Court, Farrell J., 19 September 2025) at §24; Moran v. An Bord

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

at §30; McGowan v. An Coimisiún Pleanála [2025] IEHC 727 (Unreported, High

Court, 17 December 2025) at §63. There may of course be exceptional

circumstances (Cleary Compost and Shredding Ltd v. An Bord Pleanála [2017] IEHC

458 (Unreported, High Court, Baker J., 10 July 2017) and Solan v. An Bord Pleanála

[2023] IEHC 58 (Unreported, High Court, Hyland J., 3 February 2023)) where some

discrimination or the like could arise, but this is not such an exceptional case.

(vii) The need not to contaminate the policy analysis of current applications by improper

focus on previous decisions that were embedded in an outdated policy framework is

particularly acute in a context where that policy framework is shifting radically. The

imperative public interest in the urgent delivery of renewable energy infrastructure

to address the climate emergency in line with international law, ECHR, EU and

national legal requirements is such a context. Unlike most areas of law, this is a

field where there is an important new legally-relevant instrument enacted at some

level of the system, whether international, European, primary or secondary

legislation, or legally-relevant policy, at least once every month or two at the most

conservative estimate, even leaving aside the non-stop stream of individual

decisions from national and European courts and other bodies.

73. This core ground therefore cannot succeed.

Core ground 3 – failure to consider submissions on wind energy guidelines

74. Core ground 3 is:

“3. The Respondent failed to engage with, consider or address the submissions from the

Applicants and the planning authority as to the applicability of the 2006 Wind Energy

Guidelines in the context of noise, shadow flicker and the sitting for the proposed wind

turbines. The Respondent was directly requested to consider the 2019 draft Wind Energy

Guidelines, the World Health Organisation 2018 Guidelines on Noise and the independent

expert reports submitted as regards the issue of noise and human amenity from the

operation of wind turbines in the rural setting including the cumulative effect on noise,

shadow flicker and visual amenity arising from all wind farms in the location. The

Respondent did not address these submissions adequately, or at all, and effectively treated

the 2006 Wind Energy Guidelines as prescriptive, conclusive and exclusive. This amounted

to a fettering of the Respondent’s discretion inter alia whether or not to ‘have regard’ to the

2006 Guidelines.”

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

“Applicant’s Position:

26. The impugned permission failed to adequately or at all consider the express expert

reporting of the Huson & Associates. Indeed there appears to be no actual engagement with

that report or its content by the Respondent or the Inspector. Mr Huson made express

comment as to the inadequacy of the ETSU-R-97 as a means of accurately assessing wind

turbine noise; Mr Huson made express comments as to the significant effect that amplitude

modulation noise has on local residents and human health; Mr Huson recommended that

night time noise parameters be reduced and low frequency noise should be considered and

at the very least parameters provided for such noise. Of further relevance was the express

dicta of the High Court in Webster which was provided to the Respondent on the issue of

amplitude modulation and wind turbine noise. None of these issues were considered or

reasoned away by the Respondent. The Respondent’s decision, it is submitted, ignores these

significant submissions; in their place the Respondent relies solely on compliance with the

2006 Wind Energy Guidelines as being sufficient to overcome all of these issues. It is

submitted that the Respondent elevated these ‘have regard’ to guidelines to prescriptive and

mandatory requirements and thus fettered its discretion to properly consider the material

planning issues in the case. This fettering of discretion is compounded by the fact that the

matters in issue were related to the Applicants’ and neighbouring property rights and effects

of the development on their homes.

Commission’s Position:

27. Core Ground 3 is not made out. The Applicants contend that the Commission failed

to consider their submissions and those of the planning authority and unlawfully treated the

Wind Energy Development Guidelines 2006 (WEDG 2006) as definitive, ignoring more recent

materials such as the 2019 Draft Guidelines, WHO 2018 Noise Guidelines, and expert reports

on human amenity and cumulative effects. However, this claim is unsupported when the

Decision and Inspector’s Report are correctly interpreted. The Commission did have regard

to submissions. They simply preferred the developer’s submissions and stated reasons

(Nagle View [2024] IEHC 603 at §98). The Commission expressly recorded that it

considered submissions, and the absence of detailed narrative does not equate to a lack of

consideration (see Duffy [2026] IEHC 46; Wild Ireland Defence CLG [2025] IEHC 726;

O’Donnell [2023] IEHC 381). The Applicants have not discharged the burden of proving

otherwise and rely on mere assertion. Their argument amounts to merits-based

disagreement with the outcome rather than evidence of a failure of consideration, which is

insufficient (Nagle View [2024] IEHC 603; Ó Murthuile [2025] IEHC 498). Similar arguments

to those advanced at Core Ground 3 have been rejected in Rural Residents [I] (No.1) [2025]

IEHC 600 and Nagle View [2024] IEHC 603 and should likewise be rejected in the present

case.

28. The Inspector’s Report and the Commission’s Decision demonstrate that the

Commission correctly identified the statutory status of WEDG as guidelines issued under

s.28 of the 2000 Act to which regard must be had. The Commission was required to have

regard to the WEDG 2006 (and did so) and was entitled to treat them as representing

operative national policy unless and until replaced. The Inspector and the Commission did

not in fact treat the WEDG 2006 ‘as prescriptive, conclusive and exclusive’, as asserted

without basis by the Applicants. The Applicants in this regard misinterpret the Decision and

Inspector’s Report and strive to read same as invalid where a valid reading of same is

available. No fettering of the Commission’s Discretion has occurred in relation to the WEDG

2006 as alleged or at all. That assertion is based on the Applicants’ incorrect assertions and

supposition regarding the Inspector and Commission’s consideration of the WEDG 2006.

29. The Applicants’ specific complaints regarding noise, amplitude modulation (AM),

infrasound, and related impacts are contradicted by the text of the Decision and Inspector’s

Report, correctly interpreted. The Inspector’s Report (§9.13.1, §9.13.7) and the Notice

Party’s EIAR (Chapter 12 and Appendix 12-2) demonstrate that these issues were identified

and substantively assessed, including by reference to ETSU-R-97, IOA guidance, WEDG

2006, WHO 2018 Guidelines, Draft WEDG 2019 and more recent UK reports. The Inspector

carried out a comparative assessment and gave adequate reasons for preferring the

established methodology (and, therefore, for not agreeing with submissions urging the

Commission to depart from the established methodology/to apply a different methodology).

The Inspector provided reasoned justification for preferring established methodologies and

concluded that AM is not reliably predictable and is best addressed through monitoring and

mitigation.

30. For example, as regards AM, the Inspector, in the context of her assessment (see

e.g. Table 9.7 and pages 133 to 134 of the Inspector’s Report), considered, inter alia, that:

(i) the ‘consideration of AM within the EIAR is sufficiently comprehensive, and this have been

recognised by observations who agree that AM has been considered at length in the EIAR’

(page 134); (ii) it is not possible to predict if Other Amplitude Modulation (OAM) will occur

or, if it does, how frequent and sustained it might be; (iii) in the event that complaints are

received regarding OAM, mitigation measures are available; the design of such mitigation

measures can only be determined once the wind farm is operational if OAM is found to occur

frequently and at sustained levels; (iv) the approach recommended in the IOA GPG is still

considered valid i.e. not to assign a planning condition to deal with AM; (v) a planning

condition to control cumulative noise limits covers all noise generated from the proposed

Wind Farm whether tonal and/or AM (such a condition was attached – Condition 10 of the

Commission’s Order); (vi) there is currently no requirement in applicable guidelines for a

penalty scheme to account for OAM as requested by observations, and no relevant guidelines

have been referenced by observations to support that request; (vii) that these potential

operational noise characteristics can only be confirmed, if applicable, and addressed during

operation of the proposed Wind Farm; and (viii) the Notice Party’s commitment to investigate

noise complaints and where applicable, design and implement appropriate mitigation

measures as outlined in the mitigation measures of the EIAR adequately covers this (MM101,

Chapter 18; see also Chapter 12, §12.7.2 of the EIAR). The Applicants do not properly

engage with these conclusions by the Inspector (which the Commission agreed with) nor

advance any expert evidence to contradict same. Further, insofar as the Applicants’

objection is that points regarding AM were disregarded, that is not factually based and is

clearly incorrect.

31. The Applicants’ reliance on private nuisance cases such as Webster [2024] IEHC 136

and Byrne [2025] IEHC 330 is misplaced, as they arise in materially different legal contexts

(they are both private law nuisance actions concerning post-construction operational

impacts) and do not alter the applicable planning framework or displace the established

guidance. Allegations of failure to give reasons or to conduct a proper EIA are similarly

unfounded: the Inspector undertook a structured, reasoned assessment of noise, including

cumulative and human health impacts, and noted no objection from the HSE or CCC to the

noise assessment methodology (§9.13.7).

32. The complaint that submissions were not engaged with is contradicted by the

express references in e.g., §9.13.1 and §9.13.7 of the Inspector’s Report, which

demonstrate that AM, low frequency noise, and related issues were identified, assessed, and

resolved through reasoned reliance on established methodology and mitigation conditions.

Properly understood, the Applicants’ case does not identify any absence of reasoning or

failure to consider material considerations, but rather impermissibly seeks to re-open the

merits of technical evaluative judgments which were within the competence of the Inspector

and the Commission. Core Ground 3 should be dismissed.

EDF’s Position:

33. The legal issues raised in Core Ground 3 have already been advanced by the Third

Named Applicant, and rejected by the High Court in Rural Residents Wind Aware and

Environmental Group & Ors v An Coimisiún Pleanála [I] [2025] IEHC 600, which judgment

is consistent with the earlier decision of the High Court in Nagle View Turbine Aware Group

v. An Bord Pleanála [2024] IEHC 603. It is noteworthy that neither of these judgments are

considered in the Applicants submissions. It is clear from the Inspector’s consideration of

‘Noise Assessment Guidance’ (including at pages 125 & 126 of the Inspector’s Report) that,

in addition to having regard to the WEDG 2006, as it was statutorily obliged to do, the

Commission did indeed consider more up-to-date publications. As such, the Commission

acted consistently with its obligations as delineated by the Superior Courts in Balz (at §4)

and Nagle View (at §76), in that the Commission had regard to the WEDG 2006 and took

account of other policy documents (including the Draft WEDG 2019) as part of the noise

assessment. A complaint that the Commission fettered its discretion in favour of the WEDG

2006 simply cannot be maintained on any reading of the Inspector’s Report and Commission

Order.

34. The Applicants’ position is that the Commission should have ‘rejected’ the WEDG

2006 on the basis that those guidelines were out of date. However, the Commission did not

have the discretion to ‘reject’ the WEDG 2006, as it had a statutory obligation to consider

those guidelines. While the Commission is not bound by the WEDG 2006, the Applicants’

characterisation ignores the legal obligation placed upon the Commission, by virtue of

subsection 28(2) of the 2000 Act, to ‘have regard to’ the WEDG 2006, as was expressly

acknowledged by the Supreme Court in Balz v. An Bord Pleanála [2019] IESC 90. Had the

Commission actually complied with the Applicants request (and pleaded claim), it would have

acted in breach of section 28 of the 2000 Act. It is also significant that the Applicants have

not challenged the WEDG 2006 by way of seeking relief in these proceedings as against the

Minister for Housing, Local Government and Heritage and/or Ireland and the Attorney

General.

35. It is also evident that the Commission and its Inspector considered the Applicants’

submissions on noise assessment guidance, including the reports submitted to the

Commission on behalf of the Third Named Applicant (see, for example, section 9.13.7 of the

Inspector’s Report). It is evident that the Commission did not agree with the Applicants'

submissions, however, that fact does not render the Impugned Decision unlawful. It is noted

that, even in the Affidavit of William Leslie Huson, the majority of the substantive content

is, in effect, a summarisation of the submissions made during the planning application

process and no additional expert evidence has been advanced to contradict the conclusions

of the noise assessment carried out by the Commission.

36. Contrary to what is advanced the issue of amplitude modulation (‘AM’) was expressly

considered by the Inspector in her report, including at sections 9.13.1, 9.13.4 and 9.13.7

(pages 133 & 134). Issues relating to infrasound and low frequency noise (‘LFN’) were

identified by the Inspector in sections 7.3.2, 9.13.1, with an assessment of ‘Low Frequency

and Infrasound’ set out in section 9.13.7 (pages 132 & 133). The Applicants advance the

argument that their submissions on these points were not considered by the Commission.

However, it is evident (including from sections 7.3.1, 7.3.2, 9.13.1 & 9.13.7 of the

Inspector’s Report) that the Commission considered and engaged with the submissions

made on behalf of the Applicants but did not agree with those submissions, which does not

amount to a basis to impugn the Commission Decision. Therefore, while the Applicants

advance a complaint of lack of adequate assessment in respect of noise same, such

complaint has not been substantiated evidentially (see Nagle View at §123(v)).

37. Insofar as the Applicants rely on Webster and Rollo v. Meenacloghspar (Wind

Limited) [2024] IEHC 136, such reliance is misplaced. Webster concerned a private nuisance

claim and did not comprise a challenge by way of judicial review to a decision to grant

development consent authorising renewable energy development. For similar reasons, the

Applicants reliance in their submissions on Byrne and Moorehead v. ABO Energy Ireland Ltd.

& Ors [2025] IEHC 330 is equally misplaced. In light of the foregoing, Core Ground 3 cannot

avail the Applicants.”

76. The basic reason why this point fails is as follows:

(i) As held by the Supreme Court, there is a presumption (the onus to rebut which falls

on a judicial review applicant) that material has been considered if the decision-

taker says so: per Hardiman J. (Denham and Geoghegan JJ. concurring) in G.K. v.

Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, [2002] 1 I.L.R.M.

401; Rana v. Minister for Justice [2024] IESC 46 (Unreported, Supreme Court,

O’Malley J., 18 October 2024), para. 91 (Dunne, Hogan, Collins and Donnelly JJ.

concurring). Thus the lack of narrative discussion does not equate to a lack of

consideration.

(ii) The applicants have not overcome the onus of proof to demonstrate that their

submissions (or the council’s views) were not considered.

(iii) The applicants have adopted three totally inconsistent positions on the 2006

guidelines, not framed as alternatives, giving the impression of scattergun pleadings

that spread maximum confusion by throwing all options at the wall to see what

sticks.

(iv) Their first argument was that the guidelines should have been treated as definitive

and should have been, but were not followed. Insofar as the applicants characterise

the commission’s decision in submissions as “a failure to comply with the guidelines”,

this frame of analysis is based on an incorrect premise that there was a requirement

to comply with the guidelines. The 2006 guidelines are only in the have-regard-to

category, and regard was had to them. Insofar as it is speculatively suggested that

the inspector made an error in the application of the guidelines regarding matters

such as separation distances, the centre of gravity of that argument arises under

core ground 1 which is rejected below.

(v) The second, inconsistent, argument was that the guidelines were improperly treated

as definitive. Unfortunately there is no evidence that the commission treated the

2006 guidelines as definitive, or that their discretion was fettered, and the wording

of the inspector’s report and the commission order clearly indicates that this was not

the case.

(vi) The final inconsistent argument was that the guidelines were adopted in breach of

EU law and should have been rejected. This is unstateable – the commission had

no jurisdiction to decide that government guidelines were invalid. It was required

to have regard to policy guidance and did so, in a manner that did not exclude other

considerations such as more recent developments and non-statutory material (s.

28(2) of the 2000 Act, Balz v. An Bord Pleanála [2019] IESC 90, [2023] 3 I.R. 751,

[2020] 1 I.L.R.M. 367 per O’Donnell J. (Clarke C.J., McKechnie, Charleton and Irvine

JJ. concurring)). The applicants cannot in any event impugn the validity of the

guidelines in these proceedings, not having joined the State or sought relief in that

regard.

(vii) The commission has a wide discretion as to what non-statutory material it can

consider, and insofar as such material is referenced in submissions, those

submissions are presumed to have been considered and the applicants have not

proved otherwise.

(viii) More specifically, the inspector’s report and the EIAR in fact refer to ETSU-R-97, IOA

guidance, the 2006 guidelines, the WHO 2018 guidelines, the draft 2019 guidelines

and other expert reports.

(ix) Furthermore, clear reasons are provided for the approach adopted bearing in mind

the variety of possible approaches to turbine noise. There is no evidential basis to

conclude that for example issues concerning AM noise were simply ignored.

(x) The commission exercises an evaluative function and is entitled and indeed required

to decide whether it prefers a developer’s analysis to that of other process

participants. No unlawfulness in that exercise has been demonstrated.

(xi) There is no analogy with nuisance cases such as Webster v. Meenacloghspar (Wind)

Ltd [2024] IEHC 136 (Unreported, High Court, Egan J., 8 March 2024) and Byrne v.

Abo Energy Ireland Ltd [2025] IEHC 330, [2025] 1 I.L.R.M. 401 (Quinn J.), which

deal with a different legal situation – the actual as opposed to the predicted effects

of a development. A consent process can only deal with the predicted effects.

(xii) No failure to give reasons has been established. The standard is the main reasons

on the main issues and the applicants have not shown that this was not complied

with.

(xiii) Insofar as this is characterised as an EIA point, the applicants have not discharged

the onus of proof to show an inadequate assessment.

77. This core ground therefore cannot succeed.

78. That said, I hope that officialdom won’t mind if I take the liberty of encouraging the hopefully

early conclusion of work on national planning statements under the 2024 Act, including what is

anticipated to be public consultation on a draft national planning statement to replace the 2006

guidelines. The modernisation of existing s. 28 guidance can only be a welcome contribution to the

practical operation of the system. I appreciate that the adoption of new law and policy does not in

and of itself reduce litigation, but at least it increases the likelihood that such litigation will be

conducted by reference to the latest thought on the planning issues concerned. In the meantime,

planning decision-makers will have to soldier on with the existing instruments.

Core ground 5 – misdescription of second named applicant’s property

79. Core ground 5 is:

“5. The Respondent and / or the Notice Party erroneously described the property of the

Second Named Applicant as a ‘participating property’ with the result inter alia that no

mitigation measures to eliminate shadow flicker to his property were proposed, assessed or

mandated by the ultimate planning conditions attached to control shadow flicker to

residential properties effected. The description of the Second Named Applicant’s property

as a ‘participating property’ was a material error of fact and the failure to take into account

the submissions of the Applicant that his property was not a ‘participating property’ was a

failure to take into account a material consideration when reaching the impugned decision.”

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

“Applicant’s Position:

45. As pleaded at §.57 to 62 of the Statement of Grounds the Notice Party erroneously

designated the Second Named Applicant’s property as a ‘participating property’ with the

result that no mitigation measures to eliminate shadow flicker to his property were proposed,

assessed or mandated by the ultimate planning conditions attached to control shadow flicker

to residential properties effected.

46. The decision, permission granted and conditions which attach to same, as they

stand, contain a material error as to the designation of the Second Named Applicant’s

property, which will, at law, prevent that Applicant from relying on condition 9 of the

proposed planning permission unless rectified by the court.

Commission’s Position:

47. The Commission’s position is that Core Ground 5 is not made out and has, in any

event, been effectively narrowed by the Applicants to a single complaint concerning the

operation of Condition 9 of the Commission’s Decision in relation to the Second Named

Applicant’s property. The Applicants had originally raised broader issues, including alleged

deficiencies in shadow flicker and noise assessment, but these are no longer pursued.

48. While it is acknowledged that the EIAR contained an incorrect label describing the

Second Named Applicant’s property as a ‘participating property’, there is no dispute but that

the Second Named Applicant’s property is not a participating property. Thus, there is no

basis for the Applicants, the Commission, the Notice Party developer, or anyone else, to take

the position that Condition 9(a) does not apply to that property.

49. As the Second Named Applicant’s property is a habitable dwelling and not a

participating property, it is not excluded from the scope and application of Condition 9(a).

50. Further, the Second Named Applicant’s property was considered and assessed in

relation to shadow flicker. On a correct and valid interpretation of the Commission’s

Decision, by operation of Conditions 5 and 9 attached to same, mitigation measures do apply

to that property so as to preclude any shadow flicker effects.

51. Without prejudice to the foregoing, and notwithstanding the unambiguous terms of

the Commission Order including Condition 9(a) thereof, the Commission submits that, if

necessary, a written judgment from the Court on this judicial review application can itself

clarify/confirm that Conditions 5 and 9 of the Commission’s Order apply to the Second

Named Applicant’s property and that same is not a ‘participating property’ for the purposes

of those Conditions, and/or such clarification/confirmation can be appropriately addressed

in a recital in an Order of the Court of the type contemplated in Fahybeg [2025] IEHC 310

at §43-§45 (which was expressly flagged in the Commission’s Statement of Opposition but

is not addressed in the Applicants’ submissions).

52. Further and without prejudice to all of the foregoing, as regards the mislabelling of

the Second Named Applicant’s property in the EIAR, the Commission relies on principles in

Ryanair (No.2) [2025] IEHC 194 and Rural Residents (II) (No.2) [2026] IEHC 136,

emphasising that not every error invalidates a Decision, particularly where, as here, it has

no effect on the outcome, does not undermine public participation, and was not raised during

the administrative process. The Applicants’ failure to raise the issue before the Council or

Commission is a factor relevant to the Court’s discretion to refuse relief, particularly given

the statutory restriction under s.130(1)(b) of the 2000 Act on considering late submissions.

EDF’s Position:

53. Core Ground 5 is based on an error (which EDF accepts) in how the Second Named

Applicant’s property was recorded in certain of the EDF application documentation.

However, and for the reasons set out below, it is EDF’s submission that such an error is de

minimis and/or not substantial and/or harmless and does not warrant certiorari. EDF

submits that this factual error was not raised by any of the Applicants before the Council

and / or Commission and the Applicants (particularly the Second Name Applicant) have failed

to provide any, or any adequate, explanation as to the circumstances in which they failed to

raise this issue in submissions or observations made to the Council or in a valid submission

on the appeal to the Commission.

54. The Second Named Applicant’s property (referred to as H13 in the application

documentation) is not a ‘participating property’ but was misdescribed as such in certain

application documentation related to shadow flicker. As a matter of fact, in circumstances

where H13 is an existing nearby habitable dwelling and is not a participating property,

Condition 9 requires EDF to ensure that no shadow flicker will occur at that dwelling.

55. In EDF’s submission, there is no reasonable basis for contending that the error in

misdescribing H13 as a participating property warrants certiorari of the grant of planning

permission. In circumstances where Condition 9, properly interpreted, requires EDF to

preclude shadow flicker at existing nearby habitable dwellings and H13 is not a participating

property, then EDF shall ensure that the development is operated so as to preclude shadow

flicker at H13. In the alternative, to the extent that the Court concludes that Condition 9,

properly interpreted, does not require EDF to preclude shadow flicker occurring at H13, then

EDF submits that the error which culminated in the inadvertent description of H13 as a

participating property and the decision to attach Condition 9 (restrictively interpreted in such

circumstances) is a ‘harmless’ error.

56. Insofar as the applicability of Condition 9 to H13 is unclear or uncertain (which is

not accepted) it is open to the Court to clarify the applicability of Condition 9 to H13 in the

Court’s judgment and/or by way of recital in a court order, such as was outlined in Fahybeg

Windfarm Opposition Group & Anor v. An Bord Pleanála [2025] IEHC 310. For these reasons,

Core Ground 5 ought to be dismissed.”

81. No particular oral submissions were made on this point, the applicants relying on written

submissions.

82. The basic reason why this point fails is:

(i) As stated above, this point should be dismissed in limine. The error was not validly

raised by the applicants in the process. Had it been so raised it could have been

more expressly corrected. It would be inappropriate to grant relief on the basis of

a point not properly raised in the process at the correct time. Invalidly attempting

to raise it after the statutory time for submissions does not constitute a correct

invocation of the applicable procedures. If I am wrong about that I will go on to

consider the point.

(ii) Relevant however to discretion is the fact that there is no sufficient evidential

explanation of the failure to raise this issue by way of valid submission.

(iii) More fundamentally, the meaning and application of condition 9(a) is not affected

by an error in the EIAR. The second named applicant’s property H13 is not a

participating property and is not covered by the exception referring to participating

properties in condition 9(a), and that condition is not invalid merely because of an

error in some other document.

(iv) Thus more generally, the mitigation measures of conditions 5 and 9 apply to the

second named applicant’s property, so the premise of the argument is incorrect.

(v) An error in the developer’s material does not translate into grounds for certiorari

unless relied on by the decision-taker in some way that causes legal infirmity. That

is not the case here.

(vi) The present judgment, and/or a recital to the order is a more than adequate means

of avoiding any potential misunderstanding of this issue.

83. This core ground therefore cannot succeed.

Core ground 6 – material contravention

84. Core ground 6 is:

“6. The impugned decision is invalid as the Respondent erred in law in a) failing to

identify the material contravention of the Carlow Development Plan as it related to landscape

WE.P4, 16.12.3, LA.P1, LA.P2, LA.P3 and LA.P11 and noise assessment WE.P1 and 16.12.2

and b) in materially contravening the Carlow Development Plan 2022 - 2028, Policy WE.P4,

LA.P1, LA.P2, LA.P3, LA.P11 and WE.P1 and 16.12.2 which seek to protect and maintain the

overall integrity of Carlow County’s landscape; which area, has a landscape sensitivity rate

of 5 out of scale of 1 to 5;

… The Respondent was not entitled to grant development consent in the absence of a clear

and cogent assessment as to how it was justifiable to contravene the development plan that

wind farms were ‘not normally permissible’ in the subject area and acted ultra vires in so

granting development consent without providing a reasoned conclusion or any conclusion

for departing from the protections afforded to the landscape area by the Carlow Development

Plan.”

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

“Applicant’s Position:

57. Despite identifying a clear policy presumption against wind farm development in the

subject area, and the highest landscape sensitivity rating available under the development

plan, and acknowledging adverse landscape and visual impacts the Inspector fails firstly to

identify that the development material contravenes the Carlow Development Plan and

secondly to provide any clear, cogent or reasoned justification explaining why it is

permissible to depart from the Policies WE.P4, LA.P1, LA.P2, LA.P3 and LA.P11, or how the

acknowledged impacts were outweighed by countervailing considerations, or why the

development plan protections for the landscape could lawfully be set aside. There is no

reasoned engagement with this issue demonstrating that the development nonetheless

accords with the proper planning and sustainable development of an area where wind farms

are expressly stated to be ‘not normally permissible’.

58. The interpretation of a development plan, and, in particular, the determination of

whether or not a proposed development would involve a material contravention of the

development plan, is a question of law for the court, as such the views of neither the planning

authority nor the Commission are be [sic] decisive. The fact that the planning authority

does not appear to have appreciated that the development would involve a material

contravention of the Carlow Development Plan does not preclude the court from reaching a

contrary view in these judicial review proceedings.

Commission’s Position:

59. Core Ground 6 is not made out. The Applicants allege that the Commission’s

Decision is invalid because it failed to identify and address an alleged material contravention

of eight Development Plan policies (WE P4, LA P1, LA P2, LA P3, LA P11, WE P1, §16.12.2

and §16.12.3). This is incorrect: no material contravention arises. This ground is, in

substance, an impermissible, merits-based disagreement with the Inspector’s and

Commission’s evaluative planning judgment and entails a legalistic, incorrect interpretation

of the relevant provisions of the Development Plan.

60. The Applicants do not engage with the relevant policies in a meaningful way, instead

advancing their case at a high level of generality. As noted in Doyle (No.2) [2026] IEHC

207 at §24, such an approach improperly detaches the argument from the evidence,

pleadings, and reasoning of the case. It is established law that where a development plan,

on a proper interpretation, allows appreciable flexibility, discretion and/or planning

judgement to the decision-maker, review is for irrationality rather than full-blooded

(Jennings [2023] IEHC 14 at §112; Sherwin [2024] IESC 13 at §105). No such irrationality

is pleaded.

61. The Applicants’ reliance on WE P4 as a ‘clear presumption against wind farms’ is

unsupported by its wording, which contains no absolute prohibition and permits planning

discretion.

62. The Applicants’ unparticularised allegations of material contravention at Core Ground

7 are advanced in circumstances where (i) the Notice Party submitted the planning

application and first party appeal on the basis that no such material contravention arose, (ii)

the Council did not refuse permission on that ground of material contravention (meaning

that s.37(2)(b) of the 2000 Act is not engaged), and (iii) neither the Inspector nor the

Commission found any material contravention (meaning that s.37(2)(a) of the 2000 Act is

not engaged), and (iv) no party (including the Applicants) raised such an issue or asserted

such material contraventions during the planning process. The Applicants’ failure to raise

this point before the Council or Commission, or to explain that omission, is a factor in favour

of the Court exercising its discretion to refuse relief (Reilly [2025] IEHC 659 at §123).

63. In any event, correctly interpreted the eight Development Plan provisions relied

upon by the Applicants at Core Ground 7 (namely WE P4, LA P1, LA P2, LA P3, LA P11 and

WE P1,§ 16.12.2,§16.12.3) are general planning policies—the application of which requires

the exercise of evaluative judgement and discretion—concerning uplands landscape,

landscape integrity, visual impact, scenic views, and wind energy guidance, together with

§16.12.2–§16.12.3 addressing energy development, human health (including noise, shadow

flicker, geology, air and water quality), alternatives, and compliance with wind energy and

landscape guidance. The wording of WE P4 for example – ‘not normally be permissible’ - is

not a rigid or inflexible prohibition and confers a degree of flexibility. The determination by

the Commission that the proposed development was consistent with the relevant provisions

is within the planning judgement of the Commission, being reviewable only for irrationality,

and such determination was not irrational (nor is irrationality pleaded, as noted above).

Further, it is notable that the Applicants have not pleaded the Commission erred in its

interpretation of the Development Plan or that the Commission’s assessment was irrational

insofar as concerns material contravention.

64. Further, the Commission Order (pp. 12–13) found that, subject to conditions, the

development complies with European, national, and regional renewable energy policy and

the Development Plan, including Chapter 7 (Climate Action and Energy) and Appendix VI

(Renewable Energy Strategy). Although the site lies in an uplands landscape where

Objective WE P4 generally restricts wind farms, this was read alongside Policy RE P1 and

Objective LA P7 supporting renewable energy and locationally necessary development. The

Killeshin Hills Landscape Character Area was considered to have moderate capacity for wind

energy, with favourable wind conditions, no prohibitive environmental designations, and

acceptable separation distances under Draft WEDG 2019. Accordingly, the Commission

concluded the proposal was consistent with WE P4 and the overall Development Plan. This

aligns with the Inspector’s assessment (sections 8.2 (WE P4)) and section 9.15 (pp. 141–

156) of the Inspector’s Report), which, based on the EIAR Chapter 14 LVIA and Appendix

VII Landscape Character Assessment, also found no conflict with landscape policies LA P1,

LA P2, LA P3, or LA P11, concluding (p.156) that the proposed wind farm was not contrary

to those policies. 80. The Applicants fail to address the Inspector’s detailed analysis,

including reliance on the Landscape and Visual Impact Assessment (LVIA) in Chapter 14 of

the EIAR and site inspection findings (the Inspector stated, at p.147, she concurred with the

LVIA having visited the site), nor do they challenge the LVIA or adduce contrary expert

evidence, such that a ‘reasons’ challenge cannot be sustained given the adequacy of

reasoning in the Inspector’s Report and Commission Order (see e.g., Doyle (No.3) [2026]

IEHC 156 at §66).

65. Without prejudice to the foregoing, the Commission submits as follows, in the

alternative: (i) If the Court considers that some contravention of the relevant provisions of

the Development Plan arises, the Applicants have not discharged the onus of demonstrating

or establishing that it is a material contravention in this regard; the Applicants merely assert

via legal plea that it is. (ii) If the Court considers that some material contravention of the

relevant provisions of the Development Plan arises, the Commission submits that same is

not legally significant (Ryanair DAC (No.1) [2025] IEHC 74 at §54-63; Save the South

Leinster Way (No2) [2025] IEHC 541 at §88(vii)) and/or does not go to or warrant certiorari

of the Decision as the Commission was not required to go through any special procedure to

contravene or materially contravene the Development Plan (giving the non-applicability of

s.37(2)(b) of the 2000 Act and noting the provisions of s.37(2)(a)) and/or the Court should,

in the exercise of its discretion refuse certiorari of the Decision having regard to the

aforementioned consideration and also in light of the following matters: (a) The Applicants

have not shown any tangible environmental harm from the alleged contraventions. (b) This

is not a case where the Decision would likely have differed; the Commission considered the

relevant Development Plan, including WE P4, and granted permission on planning merits.

(c) There is an urgent, legally recognised need for renewable energy infrastructure due to

the climate emergency. (d) Any finding of material contravention would not have changed

the Decision, as the Inspector and Commission found that policy supported granting

permission and that the development accords with proper planning and sustainable

development.

EDF’s Position:

66. The unparticularised allegation of material contravention is advance in

circumstances where (i) EDF submitted the planning application to the Council and First

Party Appeal to the Commission on the basis that no material contravention arose, (ii) the

Council did not refuse permission on the basis that there was a material contravention of

the development plan and (iii) neither the Inspector nor the Commission found that any such

material contravention arose and most significantly, (iv) no submissions/observations of

material contravention were made by members of the public (including from the Applicants)

asserting that the proposed development would materially contravene any of the provisions

of the Development Plan identified by the Applicants. The Applicants, having failed to raise

this issue before the Council or the Commission (and having failed to explain the

circumstances in which they omitted to raise this issue), do not have standing to pursue

such complaints in these proceedings and/or in the alternative, the Court should, in the

exercise of its discretion, refuse to grant any relief sought by the Applicants on the basis of

this ground of challenge.

67. All eight of the Development Plan’s provisions identified by the Applicants, when

properly interpreted, involve matters of flexibility, discretion and/or planning judgment, and

are only reviewable on the basis of irrationality (which is not pleaded by the Applicants in

this respect). It is noteworthy that the Applicants in their submissions (or this statement of

case) do not engage with any alleged misinterpretation, on the part of the Commission, of

any of these provisions of the Development Plan. The height of the Applicants submissions

are that the WE P4 is a ‘clear policy presumption against wind farm development in the

subject area’. However, there is no statement to that effect in WE P4, nor does that policy,

when properly interpreted, have the effect of precluding the Proposed Development at its

intended location.

68. Furthermore, the Applicants fail entirely to engage with the Inspector’s analysis (in

particular, at sections 8.2 and 9.15 of her report) or the information put before the

Commission (including Chapter 14 of the EIAR relating to the Landscape and Visual Impact

Assessment (‘LVIA’)). Indeed, it is clear from the Inspector’s Report that the conclusions

reached in respect of landscape policies set out in the Development Plan were made having

regard to the LVIA (which the Inspector stated, at page 147, she concurred with having

actually visited the site). The Applicants have not alleged any deficiency in the LVIA, nor

have they advanced any expert evidence to contradict it. The Applicants cannot sustain a

‘reasons’ challenge in this respect in circumstances where adequate reasons for the

Commission’s decision on this issue were provided to the standard required in the Inspector’s

Report and Commission Order (see Doyle v. An Coimisiún Pleanála & Ors (No.3) [2026] IEHC

156 §66).

69. The Commission’s determination that the Proposed Development is consistent with

the eight provisions of the Development Plan identified by the Applicants is a conclusion that

it was entitled to make in the exercise of its evaluative planning judgment, including on the

basis of the materials before it, and a conclusion that the Applicants have not challenged as

irrational. In the circumstances, this ground of challenge should be dismissed.”

86. No particular oral submissions were made on this point, the applicants relying on written

submissions.

87. Section 37(2) of the 2000 Act provides:

“(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section

decide to grant a permission even if the proposed development contravenes materially the

development plan relating to the area of the planning authority to whose decision the appeal

relates.

(b) Where a planning authority has decided to refuse permission on the grounds that a

proposed development materially contravenes the development plan, the Board may only

grant permission in accordance with paragraph (a) where it considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not

clearly stated, insofar as the proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to

regional spatial and economic strategy for the area, guidelines under section 28,

policy directives under section 29, the statutory obligations of any local authority in

the area, and any relevant policy of the Government, the Minister or any Minister of

the Government, or

(iv) permission for the proposed development should be granted having regard to

the pattern of development, and permissions granted, in the area since the making

of the development plan.

(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall,

in addition to the requirements of section 34(10), indicate in its decision the main reasons

and considerations for contravening materially the development plan.”

88. The inspector specifically made the point that the developer noted that policies in the

development plan were somewhat contradictory. That situation gives rise to a jurisdiction for the

decision-taker to reconcile such text as part of its evaluative judgment (emphasis added):

“8.2.2. Local Wind Energy Policy Context

There is clearly support for renewable energy including wind at a local policy level, and

section 7.10.3.1 states that ‘the Council is required to achieve a reasonable balance between

responding to overall positive Government policy on renewable energy and enabling the

wind energy resources of the County area to be harnessed in a manner that is consistent

with proper planning and sustainable development.’ In this regard, Policy WE. P4 sets out

that wind farm development will ‘not normally be permissible’ in the Uplands Landscape

Type (LT) as shown in Figure 6 of the Landscape Character Assessment (Appendix VII). The

planning authority’s Reason for Refusal No. 1 states that to permit the proposed

development would be contrary to policy WE. P4. The applicant in the Appeal Submission

outlines that the proposed development neither material contravenes nor is contrary to the

proper planning and sustainable development of the area, and given the contradictory

policies within the CDP and policy WE. P4, along with wind energy zoning and target, is

not consistent with national and regional renewable energy policy.”

89. The inspector noted national policy in favour of renewable energy:

“6.1.13. National Planning Framework (NPF) First Revision (April 2025):

• National Strategic Outcome 8 Transition to a Carbon Neutral and Climate Resilient Society:

sets out that for Ireland to meet its climate targets, reduce its greenhouse gas emissions,

and improve its energy security by reducing reliance on imported fossil fuels and diversifying

its electricity supply, an accelerated delivery of additional renewable electricity generation

is essential to deliver 80% of Ireland’s electricity needs from renewable sources by 2030.

The need to develop enabling infrastructure including reinforce the distribution and

transmission network to facilitate planned growth is recognised. Along with geographical

focused renewables investments to minimise the amount of additional grid investment

required, for example through co-location of renewables and grid connections.

• National Policy Objective 70: Promote renewable energy use and generation at appropriate

locations within the built and natural environment to meet national objectives towards

achieving a climate neutral economy by 2050.

• National Policy Objective 71: Support the development and upgrading of the national

electricity grid infrastructure, including supporting the delivery of renewable electricity

generating development.

• National Policy Objective 72: Support an all-island approach to the delivery of renewable

electricity through interconnection of the transmission grid.

• National Policy Objective 73: Support the co-location of renewable technologies with other

supporting technologies and complementary land uses, including agriculture, amenity,

forestry and opportunities to enhance biodiversity and promote heritage assets, at

appropriate locations which are determined based upon the best available scientific evidence

in line with EU and national legislative frameworks.

• National Policy Objective 74: Each Regional Assembly must plan, through their Regional

Spatial and Economic Strategy, for the delivery of the regional renewable electricity capacity

allocations indicated for onshore wind and solar reflected in Table 9.1, and identify

allocations for each of the local authorities, based on the best available scientific evidence

and in accordance with legislative requirements, in order to meet the overall national target.

- Table 9.1: Additional Renewable Power Capacity Allocations for the Southern Region is

978MW for onshore wind by 2030 and 3,302MW for solar. The total national share for the

region in 2030 is 40% of onshore wind and 43% of solar.

• National Policy Objective 75: Local Authorities shall plan for the delivery of Target Power

Capacity (MW) allocations consistent with the relevant Regional Spatial and Economic

Strategy, through their City and County Development Plans.”

90. The inspector’s analysis of the compatibility between the CDP and national policy included

the following (emphasis added):

“8.2.1. Renewable Energy Generation

The proposed development includes for 7 no. wind turbines with a total rated output of 46.2

MW for 35 years, and with supporting BESS, which will be exported to the national grid.

As set out in Section 6.1 above, national policy (including the NPF First Revision and Climate

Action Plan 2024 and 2025) include objectives to support proposals which aim to achieve a

climate neutral economy and sets national renewable energy targets. Such objectives and

targets are also repeated at a regional policy level, Southern RSES, which seeks to facilitate

the sustainable development of additional electricity generation capacity throughout the

region and to support the sustainable expansion of the transmission network.

Support for climate action and increase in renewable energy are also outlined at a local

policy level, in particular I note the renewable energy policy RE P1 in the CDP which seeks

to encourage and facilitate production of energy from renewable sources including wind, and

wind energy objective WE O1 which seeks to increase the penetration of wind energy

generation subject to compliance with proper planning and environmental considerations.

Objective RE O1 sets a county target of up to 130MW of installed renewable energy capacity

by 2030, which includes up to 30MW of installed wind energy capacity as identified within

the Renewable Energy Strategy (RES, CDP Appendix VI). Of this, only 6MW is identified

to come from new wind farms and the Two Year Progress Report (July 2024), without

any site specific development references, outlines that permissible MW renewable

energy since the adoption of the CDP have already exceeded the WE O1 target.

It is important to note that the CDP predates the First Revision of the NPF (2025) and

specifically NPO74, which allocates a 978MW of additional onshore wind capacity delivery

target to the Southern Region by 2030. There are no amendments to the Southern

RSES currently in response to NPO74, which would see an allocation of this target to

Carlow County Council and for which the county will require to plan for the delivery of as per

NPO75. In this regard, I note that the current county target of up to 30MW installed capacity

equates to 3% of the delivery target set for the Southern Region by 2030 and includes

existing operational wind energy. I find myself in agreement with the applicant that the up

to 30MW of installed wind energy target (including only 6MW from new wind farms) does

not appear to reflect the overall national policy commitment of delivering 9GW

from onshore wind farm by 2030. In my view, the use of the wording ‘up to’ in both

WE O1 and the RES indicates a cap on the county’s contribution towards the delivery

of national renewable energy targets which is not consistent with national policy and targets.

Having regard to the above, the provision of electricity by onshore wind farms is supported

by national, regional and local policy. The proposed Wind Farm, when operational, will

contribute to Irelands 2030 renewable energy target and climate action commitments. I

note the planning authority considers the proposed Wind Farm to be largely acceptable in

principle on this matter.”

91. This is, if I may respectfully say so, a sophisticated, intelligent and insightful analysis of the

thorny issue of compatibility of development plans with national climate goals. The inspector,

correctly in my view, in effect focuses on the following as legally valid and relevant factors in coming

to a view as to whether renewable energy infrastructure should be constrained in a manner that

might at first sight be suggested by any particular development plan:

(i) the extent of quantified climate ambition in any given development plan;

(ii) whether county policy is sufficiently detailed and site-specific;

(iii) whether the development plan has been updated to reflect evolving regional/national

(one might add EU) policy since its adoption;

(iv) whether relevant regional policy statements have also been updated to reflect

evolving higher policy developments;

(v) the extent to which the development plan embraces the quantum of ambition

involved in national climate policy goals; and

(vi) whether the development plan purports to cap the contribution of the county

concerned to national goals.

92. One might postulate other criteria such as whether a comparison between the extent of

areas permitted for renewable energy in any given plan and the extent permitted in previous plans

demonstrates an expansion commensurate with the increase in national climate ambitions in the

meantime and the extent of any shortfalls in practice. However the inspector’s views here are a

very valid approach to the situation that arises in this case.

93. The commission itself, somewhat unusually, went beyond simply accepting the inspector’s

report, to highlight the contradiction between different elements of the development plan (emphasis

added):

“The Commission noted and agreed with the Inspector’s assessment that the proposed wind

farm is acceptable in principle having regard to national, regional and local policy in support

of, and requiring the delivery of increased on shore wind energy to meet climate and energy

security objectives. The Commission noted that the subject site is located within the uplands

landscape type and that Objective WE P4 of the Carlow County Development Plan 2022-

2028 states that wind farm development will not normally be permissible in this landscape

type. The Commission noted that this conflicts with Policy RE P1 of the

development plan which aims to encourage and facilitate the production of energy

from renewable sources, and Objective LA P7 which aims to facilitate developments,

including windfarms, that have a functional and locational requirement to be situated on

steep or elevated sites. The Commission further noted, and as set out in the Inspector’s

assessment, that the Killeshin Hills landscape character area is determined as having

moderate capacity to absorb wind farming.”

94. The tension between different provisions of the plan here is a classic instance of the

phenomenon referred to in Tesco Stores Limited v. Dundee City Council [2012] UKSC 13, [2012]

P.T.S.R. 983 per Lord Reed at para. 19:

“As has often been observed, development plans are full of broad statements of policy, many

of which may be mutually irreconcilable, so that in a particular case one must give way to

another. In addition, many of the provisions of development plans are framed in language

whose application to a given set of facts requires the exercise of judgment. Such matters

fall within the jurisdiction of planning authorities, and their exercise of their judgment can

only be challenged on the ground that it is irrational or perverse: Tesco Stores Ltd v

Secretary of State for the Environment [1995] 1 WLR 759, 780, per Lord Hoffmann.

Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot

make the development plan mean whatever they would like it to mean.”

95. As discussed elsewhere, this is akin to the general problem that balancing multiple factors

in the process of managing public or private affairs is not something the courts are well equipped to

micro-manage. As put in ClientEarth v. Shell plc [2023] EWHC 1897 (Ch), [2024] Env. L.R. 1 per

Trower J. at 66:

“However, the evidence does not engage with the issue of how the Directors are said to have

gone so wrong in their balancing and weighing of the many factors which should go into

their consideration of how to deal with climate risk, amongst the many other risks to which

Shell’s business will inevitably be exposed, that no reasonable director could properly have

adopted the approach that they have. This is a fundamental defect in ClientEarth’s case

because it ignores the fact that the management of a business of the size and complexity of

that of Shell will require the Directors to take into account a range of competing

considerations, the proper balancing of which is a classic management decision with which

the court is ill-equipped to interfere.”

96. Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11

April 2024) (Charleton, O’Malley, Baker and Murray JJ. concurring) identifies that:

“Certain aspects of the plan may have a high level of specificity. In those cases, it may not

be at all difficult to determine whether what is proposed is in contravention of the plan, and

it would only remain to exercise a judgment as to the materiality of any such contravention.

However, at the other end of the spectrum, it is not uncommon to find objectives in a

development plan which may, to a greater or lesser extent, be properly described as

aspirational. Such objectives may be expressed in general terms. In such cases, a much

greater degree of judgment may need to be exercised as to whether the development

proposed amounts to a material contravention of the development plan.” (Sherwin para. 95

citing Maye v. Sligo Borough Council [2007] IEHC 146, [2007] 4 I.R. 678 (Clarke J.)).

97. The Supreme Court went on to say in Sherwin that the decision-taker should focus on the

“specific provision” of the plan concerned when considering any alleged material contravention (para.

105) and consider “the text of [the] policy” (para. 105).

98. Applying that here, the plan provisions at issue here do involve a degree of planning

judgement. But more fundamentally they raise factors pointing in different directions, which require

to be reconciled by the decision-taker as part of its evaluative role. Such a process of reconciliation

and balancing is classically evaluative, so language of contravention, or a fortiori material

contravention, is inappropriate in such a context.

99. Both the inspector and expressly the commission addressed the specific text of the plan,

including the main policy text on which these applicants now rely. Both the inspector and the

commission refer to the policies as being “contradictory”, thereby triggering necessarily a space for

evaluative judgement – a space within which the commission has remained.

100. The basic reason why this core ground fails is:

(i) The premise of the argument is incorrect. The development plan provisions relied

on do not preclude wind development in the manner alleged, but rather involve a

degree of planning judgement as outlined in Sherwin v. An Bord Pleanála [2024]

IESC 13 (Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton,

O’Malley, Baker and Murray JJ. concurring) at §105. Even WE P4 only provides that

wind farms are not “normally” permissible in specified areas, thus falling short of

prohibition and allowing a degree of planning judgement.

(ii) To a large extent the applicants read language such as WE P4 in isolation. Rather

that needs to be read in context of other policies pointing in different directions such

as Policy RE P1 and Objective LA P7 supporting renewable energy and locationally

appropriate development. This is an instance of the necessary role of decision-

takers in balancing different policy statements that are potentially suggestive of

different approaches. That inherently involves a margin of evaluation, and no

exceedance of that margin has been established by the applicants here.

(iii) Nor have the applicants endeavoured to provide any route-map on the pleadings

from the specific wording of those plan provisions to the asserted conclusion. The

plan is referenced only in a generalistic and high-level manner.

(iv) Consistent with that lack of detail, the applicants have not engaged with the

inspector’s reasoning or that of the EIAR in this regard.

(v) The reliance on s. 37(2)(b) of the 2000 Act is also misplaced because nobody in the

process and certainly not the council identified a material contravention. Therefore

that provision does not apply.

(vi) Section 37(2)(a) does not apply either because the commission did not decide that

there was a material contravention. That does not preclude an argument that the

omission to so decide was unlawful, but no such unlawfulness has been made out.

(vii) Even if counterfactually there was a material contravention here, I would refuse

relief as a matter of discretion having regard to all of the circumstances, particularly

(a) the lack of real demonstrated environmental harm, (b) the strong likelihood that

the decision would have been the same given that the CDP was in fact considered

including WE P4, as well as a reasoned conclusion that the project was in accordance

with proper planning and development, so all that is missing was a statement about

contravention (on the applicants’ case) and (c) the imperative EU and national law

requiring delivery of renewable energy infrastructure.

101. This core ground therefore cannot succeed.

EU law grounds

Core ground 1 – lack of full EIA

102. Core ground 1 is:

“1. The Respondent erred in law in failing to conduct or cause to be conducted a full

Environmental Impact Assessment of the likely significant effects of the development on the

environment, particularly human amenity cumulative noise environment, landscape and

visual impact and public safety by reason of traffic hazard and obstructions of road users as

required by Section 171A, 172 of the PDA 2000 and the EIA Directive, inter alia articles 1

and 3 thereof.

i. The EIAR of the Notice Party was found by the planning authority not to adequately

assess the likely significant environmental effects of the proposed development due to an

absence of sufficient information to comply with the requirements of Article 5(1) of the EIA

Directive 2014/52EU;

i. The Respondent failed to comply with the provisions of Article 3 to 9 of the EIA

Directive and Section 171A, 172 of the PDA 2000 in failing to identify, describe and assess

direct and indirect effect on human being relating to cumulative noise environment and

landscape / visual impacts in accordance with the said the EIA Directive.

ii. The Respondent failed to give sufficient reasons or any reasons to enable the

Applicants to understand how the Respondent overcame the evidential gap in the

assessment of night time noise as outlined by the planning authority first instance decision

(Planning Ref. No. 24/60122) and the HSE EIS Report Submission on the lack of sufficient

assessment of cumulative night time noise levels.

iii. Having regard to the considerations that are incumbent upon the Respondent to take

into account when considering the assessment of human amenity and human health,

particularly as regards the direct submissions on noise, the decision reached by the

Respondent is irrational.”

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

“Applicant’s Position:

12. The Respondent failed to properly identify, describe and assess the direct and

indirect effects on human health, noise and visual impacts on the landscape. The

Respondent reduced the requirements of the EIA Directive and Section 171A PDA to

compliance with the 2006 WEDG which failed to fulfil the obligations imposed upon the

Respondent to truly engage with identify, describe and assess in an appropriate manner, in

accordance with Articles 4 to 11 of the Environmental Impact Assessment Directive.

13. This failure was compounded by the fact that the Applicant provided expert evidence

on the effects of noise on human health which was not addressed. The HSE raised concerns

about night time noise parameters on human health which was dismiss [sic], citing that the

parameters complied with WEDG 2006. The planning authority had expressly held that the

EIAR did not adequately access the likely significant effects of the proposed development on

and was inadequate due to an absence of sufficient information to comply with the

requirements of Article 5(1) of EIA Directive 2014/52/EU. This finding was not addressed

by the Respondent. The Respondent failed to set out the reasons and considerations as to

why the decisions to grant permission should be made in the face of such concerns.

Commission’s Position:

14. The Commission relies on authorities including Eco Advocacy [2025] IEHC 15, 100

Meter Tall Group [2025] IEHC 42, Carrownagowan Concern Group (No. 2) [2024] IEHC 300,

Rural Residents (I) (No.1) [2025] IEHC 600 and O’Brien v An Bord Pleanála [2017] IEHC

773, submitting that Core Ground 1 is not made out. Although the Applicants allege that

the Decision is invalid for failure to conduct a ‘full’ EIA—particularly regarding cumulative

noise, landscape/visual impact, and traffic safety—their submissions in substance address

only noise. They fail to identify any specific legal deficiency in the Commission’s assessment,

do not engage with the detailed analysis in the Inspector’s Report or the Commission’s Order,

and do not establish any breach of s.171A of the 2000 Act or the EIA Directive. The adequacy

of the EIA is primarily a matter for the Commission, and no irrationality or legal error has

been demonstrated. The EIAR expressly addresses human health in Chapter 5 (in particular

§5.6.4), where potential effects are assessed by reference to environmental factors including

noise, and concludes that residual effects are ‘imperceptible’. Noise and vibration are

comprehensively assessed in Chapter 12 and Appendices 12-1 to 12-3 (including the

Construction Noise Report and Wind Turbine Operational Noise Report), with cumulative

noise modelling undertaken. The Inspector expressly considered these materials (§9.13.1–

§9.13.8), together with the First Party Appeal Report (see §§4.4.1–4.4.2 thereof), and the

submissions of process participants, the HSE, and the views of the planning authority.

15. The Commission does not accept the Applicants’ characterisation of the HSE

submission made to the Council on 14th June 2024. The Commission would emphasise that

the HSE did not object to the proposed development, nor did it recommend that permission

should be refused. Rather, the HSE indicated, inter alia, that further assessment should be

undertaken in respect of noise, together with the implementation of appropriate mitigation

measures secured by way of planning condition. Further, the Inspector did not ‘ignore’ or

‘reformulate’ the HSE submission; rather, she expressly recorded that submission, noted

that the HSE did not object, and assessed the predicted cumulative night-time noise levels

by reference to the EIAR and supporting materials (prepared by competent experts),

concluding at §9.13.8 that, subject to mitigation and conditions, noise effects would not be

significant. The Applicants’ case is moreover undermined by their failure to consider and

engage with the fact that the Notice Party, in its First Party Appeal Report submitted to the

Commission, at internal pages 67-71 of same (in a section of the Report prepared by TNEI

Services Limited), directly and expressly addressed the HSE submission, noting the absence

of formal objection by the HSE, providing additional comparative cumulative noise analysis,

explaining the inappropriateness of isolated background comparisons in low-noise

environments, applying fixed minimum limits consistent with ETSU-R-97 and the WEDG

2006 and proposing robust, enforceable, site-specific noise planning conditions to ensure

compliance.

16. The Applicants’ non-expert criticisms, focused on noise and human health, are

unsupported by the text of the Decision and the Inspector’s Report, which demonstrates

comprehensive assessment in the EIAR and detailed consideration by the Inspector,

including of expert reports, submissions, and mitigation measures. Mere assertions that

submissions (including from the HSE) were ignored, that the assessment relied solely on the

WEDG 2006, or that reasons were not given are contradicted by the documentation. The

case ultimately rests on non-expert assertions and amounts to an impermissible, merits-

based disagreement with the Commission’s evaluative conclusions, framed in the legal

language of administrative law grounds. It is settled law that such assertions cannot

discharge the burden of proof, and no evidential basis has been provided to demonstrate

any inadequacy in the EIA or error of law. In the premises of the foregoing, Core Ground 1

should be dismissed.

EDF’s Position:

17. The Applicants’ pleaded case is that the EIA carried out by the Commission was

deficient by failing to properly assess: (i) cumulative noise impacts; (ii) landscape and visual

impacts; and (iii) traffic safety. However, the Applicants submissions (and statement of

case) are entirely silent on issues relating to landscape and visual impacts and traffic safety.

While the Applicants advance the case that the EIAR submitted by EDF did not comply with

the requirements of Article 5(1) of the EIA Directive, this contention is not correct. Rather,

as expressly referenced at page 4 of the Council’s Planning Report dated 5 July 2024, the

Council’s Environment Department prepared a report dated 31 May 2024, including an ‘EIAR

assessment” which found that “the content of the submitted EIAR was largely adequate’.

Furthermore, the Commission did not raise any issues as to the adequacy of the EIAR. In

order to advance the proposition that the EIAR is inadequate in these proceedings, they

must establish that the Commission acted irrationally in concluding that the EIAR was

adequate. The Applicants are incapable of discharging the onus of proof in this respect.

18. The Applicants advance a complaint that the Inspector and Commission did not

engage with a submission made on behalf of the HSE, which raised issues regarding noise

and which, at least in part, the Council’s decision to refuse permission was based. However,

those assertions are made in the absence of engaging with either the content of the HSE

submission or the consideration of that submission in the Inspector’s report. On an objective

review of the HSE submission, the HSE did not object to the Proposed Development, or

recommend that permission should be refused. Rather, the HSE submitted, inter alia, that

further assessment should be carried out in respect of noise, along with ensuring the

implementation of mitigation measures by way of planning condition.

19. In circumstances where the Council’s Reason for Refusal 3 referenced the submission

of insufficient information, as part of its First Party Appeal, EDF addressed the issue of noise

on pages 64 to 71. As set out in the First Party Appeal, a summary of EDFs’ response to

Reason for Refusal 3 directly engaged with the HSE submission (as set out at §4.4.2 of the

First Party Response). The Inspector addressed, in considerable detail, the HSE submission

at section 4.4.2 of her report, as well as the response to the HSE submission contained in

the First Party Appeal (see section 7.1.1). Moreover, as appears from sections 9.13.1 to

9.13.8 of the report, the Inspector expressly engaged with the content of the HSE

submission, upon which Reason for Refusal 3 was based. In reality, Core Ground 1 amounts

to a series of unsubstantiated merits-based complaints. The Applicants are incapable of

discharging the burden of proof in relation to the matters pleaded in respect of Core Ground

1, and the application for relief predicated upon that ground of challenge should be

dismissed.”

104. The basic reason why this point fails is:

(i) Any deficiency in European assessments has to be established evidentially. The

applicants have failed to overcome the onus or proof in that regard. Complaints

regarding, for example, a failure to correctly calculate the background noise must

be established by discharging the evidential burden of proof, which has not been

done.

(ii) Consistent with that, the applicants have failed to engage with the detailed analysis

in the EIA actually carried out and have failed to establish evidentially a route-map

between any alleged defect to a conclusion of illegality or any entitlement to the

relief sought.

(iii) In particular, the noise-related issues of central concern to the applicants are dealt

with in the EIAR at chapter 12 and related appendices, which were expressly

considered by the inspector.

(iv) Insofar as reliance is placed on the HSE submission of 14 June 2024, that submission

did not seek refusal of the application. It suggested further assessment and

mitigation. The commission was not obliged to accept that submission but rather to

determine in the light of the material the effects of the project and whether they

were acceptable. That involves a degree of evaluation and judgement and does not

commit the decision-taker to accepting any particular material in favour of other

material. The commission was permitted to prefer the developer’s EIAR and lawfully

did so. The conclusion of lack of significant noise effects is set out at para. 9.13.8.

Furthermore, the commission also had the developer’s first-party appeal report

which addresses the HSE submission at pp. 67-71. Not accepting a submission

cannot be equated with ignoring or reformulating a submission and any assertion to

that effect would be unstateable.

(v) Merits-based disagreement with an otherwise lawful decision by the commission to

prefer one position to another does not give rise to grounds for certiorari.

105. The applicants make much of the claim that the inspector misinterpreted the 2006 guidelines

in respect of wind-take, particularly section 5.13. Unfortunately it is the applicants, not the

inspector, that misconstrue the guidelines. The applicants focus only on the second paragraph of

that section, but the first paragraph sets the context (emphasis added):

“The question of windtake should be dealt with at scoping stage and/or during pre-

application discussions, to ensure that any proposed layout of wind turbines takes into

account the development potential of an adjoining site for a similar development.”

106. In the absence of anything suggesting that there was any similar development consented or

proposed, or even envisaged, for an adjoining site, the inspector was correct in holding that this was

not relevant to this particular project.

107. In any event, if I am wrong about that, the second paragraph is not mandatory – it begins

“In general”. The room for evaluative judgement is emphasised in para. 17.7 which in turn expressly

links back into para. 5.13:

“Conditions with regard to windtake could be included to ensure that wind turbines are

located in a manner that respects the development potential of the adjoining site for a similar

development. Where such conditions apply they should generally allow a distance from

adjoining site boundaries of not less than two rotor blades having regard to the wind resource

at the site, save with the written agreement of the adjoining landowner(s). This issue is

more appropriately addressed before an application is made (see paragraph 5.13).”

108. If I am wrong about that also, it would be inappropriate and counterproductive to use the

guidelines, which are a basis for encouraging more wind developments, as a basis to stymie a

consented development such as this one. That would be sacrificing the bird in the hand in favour of

the abstract notion that if someday there was to be a second one in the bush, the latter would be

slightly more calorific without the former. It makes no sense to use a provision designed to

encourage maximum wind energy as a justification for an outcome that replaces one consented wind

project with no consented wind projects.

109. Insofar as a complaint is made about defects in this regard in the EIAR, that is largely

unpleaded and in any event has not been made out evidentially. As regards reasons there is no

obligation to give reasons for rejecting a legally incorrect point – a valid decision does not become

invalid because an incorrect submission as to invalidity is not addressed. That would be a boot-

strapping procedure destined to create procedural chaos. In any event it is not up to a process

participant making submissions to determine what are the major issues. This is a matter for the

decision-taker in the first instance subject to certain objective features of the process such as where

institutional actors are being disagreed with and thus where reasons for that need to be specified.

Since the point was misconceived to begin with it could not properly qualify as a main issue requiring

particular reasons. And in any event, there are reasons. The applicants don’t like them of course

but they are perfectly adequate if reasons are needed.

110. In the draft judgment process the applicants re-stated their incorrect interpretation of the

guidelines as follows:

“The Applicants disagree with the Court’s conclusion regarding their contention that the

Inspector and the Commission were in error in their interpretation of the 2006 Wind Energy

Guidelines section 5.13 and paragraph 17.7.

The Applicants have been advised and believe that section 5.13 and paragraph 17.7 are

rooted in engineering and scientific understanding of the effect of wake in the operation of

windfarms where turbines are sighted at what is considered to be too closely together.

The Applicants believe that the Inspector’s misinterpretation creates a precedent which is

contrary to scientific understanding and that will have consequences which cannot be

predicted yet.”

111. The applicants are of course absolutely free to disagree with me (and, by extension, with

the inspector and the commission who I held did not misunderstand the guidelines). But even

completely respecting the applicants’ right to freedom of thought, and totally appreciating their

perspective as area residents concerned about developments in their own locality, disagreement on

this basis does not create doubt about the point. The net effect of the argument is that the

applicants, who oppose the wind farm in toto, now find themselves in the unconvincing position of

posing as wind energy champions by asserting that the turbines are “too close together” in the sense

of being contrary to the interests of some future hypothetical neighbouring wind farm by taking an

excessive quantity of kinetic energy leaving not enough for such a postulated counterfactual

neighbouring turbine development. Leaving aside the impressive mental gymnastics involved, this

is an inherently implausible procedure for all of the reasons set out above – the applicants’

complaints are essentially a merits disagreement, the legal position that insofar as the matter

involves scientific judgement by the commission, the applicants have an onus (undischarged) to

displace that, the fact that the applicants mis-read the guidelines as prescriptive when they are not,

the academic nature of the whole debate because there is no neighbouring proposed wind farm in

any event, the merely have-regard-to, not comply-with, status of the guidelines in the first place,

the finding by the inspector that this issue was not relevant to the facts and the position that the

applicants have not displaced (or attempted to displace) that, the fact that quashing the permission

on such a basis would be counterproductive and perverse given that these provisions of the

guidelines are designed to promote wind energy developments, not result in them being blocked

and nullified, the existence of the discretionary factors listed below including the applicants not

having made the case during the administrative process, and so on. For good measure this was a

point the applicants only appreciated at the last minute and was introduced by amendment on a de

bene esse basis only days before the hearing. As the centrepiece of the challenge now put forward,

it is unfortunately just not very persuasive.

112. This core ground therefore cannot succeed.

Core ground 4 – EIA and microplastics

113. Core ground 4 is:

“4. The impugned decision is invalid as the Respondent erred in failing to consider

adequately or at all the submission from the First Applicants on the environmental

consequences of microplastic emission from the operation of the subject wind turbines, being

an area where the local drinking water supply emanates from. Such submissions, and the

evidence upon which they were based, comprised a relevant planning consideration and a

relevant EIA consideration which the Respondent ignored entirely in its Inspector’s Report

and in its ultimate decision to grant permission.

i. If this issue was considered, the Respondent failed to give sufficient reasons or any

reasons to enable the Applicants to understand how such an environmental issue was

dismissed or overcome by the Respondent.

ii. Having regard to the considerations that are incumbent upon the Respondent to take

into account when considering the potential effects on the environment the decision reached

by the Respondent is irrational.”

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

“Applicant’s Position:

38. The Inspector’s Report does not address the submissions of the Applicants (made

by the First Applicant to the planning authority) concerning the issue of microplastic

emissions caused by degrading of the wind turbine blades over the lifetime of the wind farm.

The Applicant in raising this issue provided an expert report from Jan Erik Weinbach, July

2021, the Commission does not deal with this submission in any respect.

39. The Respondent’s Order dated the 27th November 2025 confirms that in coming to

its decision to grant permission to the Notice Party it had regard inter alia to the reports of

the planning authority and submissions received in response to same; and the submission

made in relation to the planning application to the planning authority and to the Commission

in connection with the appeal.

Commission’s Position:

40. Core Ground 4 is not made out. The Applicants contend that the Commission’s

Decision is invalid for failing to consider or give reasons regarding submissions on

microplastic emissions. However, when the Inspector’s Report, Decision, and evidence are

properly read, this complaint is unsustainable.

41. A key contextual point and/or a consideration relevant to the Court’s discretion to

refuse relief, is that no valid submission on microplastics was made to the Commission during

the appeal. The only observation regarding same was an invalid one that was submitted

outside the statutory period and rejected and therefore imposed no obligation of

engagement. While the issue had been raised before the planning authority, the Commission

in a de novo appeal is not required to respond to every point in materials transmitted under

s.128 of the 2000 Act (under s.128(2), the Commission has a discretion in relation to taking

account of submissions made or comprised in any document submitted to the Commission

by the planning authority under s.128(1)).

42. In any event, the Decision expressly records that all submissions to both the

planning authority and the Commission were considered. The absence of detailed narrative

does not establish a failure to consider an issue (e.g. Wild Ireland Defence CLG [2025] IEHC

726 at §134, §160(v)). Consideration of the submissions made to the planning authority

(CCC) at first instance is explicitly recorded in the impugned Commission Decision and has

not been disproved by the Applicants.

43. Moreover, the Applicants’ non-expert, mere assertion that microplastics constituted

a ‘significant submission’ supported by ‘expert evidence’ is incorrect: no credible scientific

evidence identified turbine-related microplastics as a likely significant environmental effect.

Furthermore, the Notice Party’s EIAR comprehensively assessed environmental impacts, and

neither it nor any statutory consultee identified microplastics as a relevant risk.

44. Accordingly, there was no evidential basis on which microplastics could constitute a

material consideration for EIA purposes. The Applicants have not discharged the burden of

showing any deficiency in the EIA or that a reasonable expert would consider it or the Notice

Party’s EIAR and associated materials defective. Nor does fair procedures require a point-

by-point rebuttal of unsubstantiated or non-raised issues; the obligation is to provide the

main reasons on the main issues, which the Commission did. No irrationality, failure of

reasons, or breach of fair procedures arises, and Core Ground 4 should be dismissed.

EDF’s Position:

31. The obligation on the Commission when carrying out an EIA is to consider all ‘likely

significant environmental effects’, rather than every conceivable impact. The Commission

did engage with, and consider, the likely significant environmental effects arising from the

Proposed Development in relation to water quality and human health, having regard to the

Inspector’s Report and in particular chapters 5 and 9 of the EIAR. As outlined in §5.6.4 of

the EIAR, ‘a wind farm is not a recognised source of pollution. …… As such, a wind farm is

not considered to have ongoing significant emissions to environmental media and the

subsequent potential for human health effects.’.

32. Hydro-Environmental Services (‘HES’) was engaged by EDF to carry out an

assessment of the potential likely and significant effects of the Proposed Development on

hydrological (surface water) and hydrogeological (groundwater) aspects of the receiving

environment and which is contained in Chapter 9 of the EIAR. Section 9.3.16 of Chapter 9

of the EIAR identifies water resources in the receiving environment providing clarity on group

and public water schemes, and private wells within the vicinity of the site. Section 9.3.17

of the EIAR addressed ‘Receptor Sensitivity and Importance’, describing the sensitivity of

the receiving hydrological and hydrogeological environment. The EIAR considered and

assessed the potential impacts on water resources in relation to both supply and potential

for contamination. Section 9.5.3 addressed the potential for operational phase, including

the potential for runoff resulting in contamination of surface waters, assessment of Water

Framework Directive effects and assessment on water supplies, as well as mitigation

measures (including mitigation measures for control of hydrocarbons). At section 9.5.6 of

the EIAR it is concluded that the potential for ‘hydrogeological effects will not be significant.’

Chapter 8 of the EIAR addressed Land, Soils and Geology and, at section 8.6.6, human

health effects were addressed and concluded that ‘[t]he potential residual effects associated

with soil or ground contamination and subsequent health effects are imperceptible.’

33. The Inspector addressed the likely potential effects on water at section 9.10.4 and

in respect of operating and recorded the following potential direction, indirect and cumulative

effects:

• ‘Flood risk: Potentially increase in runoff by 0.2%. Negative, slight, indirect,

permanent, moderate probability effect.

• Contamination: Maintenance works. Negative, slight, indirect, temporary, likely

effect on downstream surface water quality.

• Water supplies: No potential for effects.’

34. The Applicants have not advanced any expert evidence in relation to any issue

regarding potential effects of microplastics arising from the Proposed Development and such

complaints amount to mere assertions unsubstantiated by any evidence and nor have the

Applicants engaged with any of the information placed before the Commission by EDF. The

onus of proof lies on the Applicants to demonstrate any deficiency in the EIA and same has

not been discharged. Specifically, in this context, the onus is on the Applicants to

demonstrate that a reasonable expert would have viewed the EIAR submitted on behalf of

EDF and/or EIA carried out by the Commission as defective, which the Applicants have

signally failed to do (see Doyle v. An Coimisiún Pleanála & Ors (No.3) [2026] IEHC 156

§65(iv)). In the circumstances, the application for relief premised on Core Ground 4 should

be dismissed.”

115. No particular oral submissions were made on this point, the applicants relying on written

submissions.

116. The basic reason why this point fails is:

(i) As noted above this complaint should be dismissed in limine and/or as a matter of

discretion, never having been validly made to the commission. Attempting to make

an invalid submission does not constate a proper invocation of the administrative

procedures concerned. If I am wrong about that I will consider it on its merits.

(ii) In any event the decision states that submissions made (including those to the

council) were considered and the applicants have not displaced that evidentially.

Lack of narrative discussion does not constitute lack of consideration.

(iii) It is not a matter for the applicants to characterise any point or submission as

“significant”. That is for the decision-taker in the first instance subject to review by

the court in a context where certain objective features of the matter may be

inherently significant (e.g. points where the commission disagrees with an

inspector). The issue of microplastics has not been demonstrated to be such a point.

(iv) The applicants are also incorrect that the alleged significant effects of microplastics

are supported by “expert evidence”. Furthermore, such effects were not identified

by other process participants.

(v) On the contrary, the commission was entitled to accept the developer’s science, in

particular §5.6.4 of the EIAR.

117. This core ground therefore cannot succeed.

Core ground 7 – SEA of 2006 guidelines

118. Core ground 7 is:

“7. The impugned decision is invalid and the Respondent erred in law in granting

planning permission for the development of the site given the selective overreliance by the

Respondent on the Wind Energy Guidelines 2006, which guidelines, it was submitted where

in breach of the SEA Directive 2001/42EU and S.I 2004/435 Regulations as being a plan or

programme which was compiled without having first undergone an environmental

assessment in accordance with the SEA Directive 2001/42EU.”

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

“Applicant’s Position:

70. On review of the Inspectors report and the Order of the Respondent the primary

issue which formed the basis of the decision was that the 2006 Wind Energy Guidelines were

valid and thus the only guidelines necessary to engage with; this is not withstanding the

express submissions from the Applicants that the 2006 guidelines were out of date,

unsuitable for modern windfarm assessment and in non-compliance with the SEA Directive.

Indeed the Carlow Development Plan expressly required that energy development project

applicants should demonstrate consistency with the WHO Environmental Noise Guidelines

2018 – a policy of the development plan the Respondent choose to ignore on the basis that

the 2018 WHO Guidelines were inconsistent with the 2006 Wind Energy Guidelines. In light

of these issues the Respondent did not see fit to engage in an actual assessment and

reasoned approach as to whether or not the development accorded with the requirements

of the EIA Directive or a proper planning and sustainable development for the area

assessment, downgrading this assessment to 2006 guidelines compliance test.

Commission’s Position:

71. At Core Ground 7 the Applicants’ advance an internally inconsistent allegation that

the Commission’s Decision is invalid on the basis of an alleged ‘selective overreliance’ on the

WEDG 2006 which guidelines the Applicants allege ought to have been subject to SEA but

were not, in breach of the SEA Directive and national law SEA Regulations (S.I. No. 435 of

2004). Core Ground 7 fails for several reasons.

72. It is an impermissible collateral challenge to the validity of the WEDG 2006. The

Applicants cannot maintain this ground in circumstances where (i) they have failed to

challenge to the validity of the WEDG 2006 and (ii) they have failed to join the correct

legitimus contradictor in order to challenge same. The Applicants have failed to name

Ireland and the Attorney General and/or the Minister as Respondents in these proceedings,

as they were required to do to maintain an argument that the WEDG 2006 were adopted in

breach of EU law (see e.g. 100 Meter Tall Group [2025] IEHC 42 at §188; Rural Residents

(I) (No.1) [2025] IEHC 600 at §117-§118; Concerned Residents of Treascon and

Clondoolusk [2022] IEHC 700 at §50-§52). Core Ground 7 is not a point the Applicants can

make in these proceedings, not having joined the appropriate State parties as respondents.

The effect of their failure in that respect is that the presumption of validity of the WEDG

2006 cannot be displaced in a way that would impugn the validity of the Commission’s

Decision. Put otherwise, it is not open to the Applicants to challenge the validity of the

Commission’s Decision by way of collateral challenge to the WEDG 2006. In this regard, the

WEDG 2006 enjoy the benefit of a presumption of validity, and the onus is on the Applicants

to displace said presumption and prove their claims. The Applicants rely only on mere

assertion, which is not a basis for relief in judicial review (see e.g. Wild Ireland Defence CLG

[2025] IEHC 726 at §61(v)). A comparable ground of challenge – which was pursued in a

similarly procedurally inappropriate and deficient manner – was recently rejected in Hoctor

(No.1) [2026] IEHC 65 at §92-§101 and should likewise be rejected here.

73. Without prejudice to the foregoing, whereas Core Ground 7 should be dismissed in

limine in circumstances where the Applicants have failed to challenge the WEDG 2006 and

failed to name the correct Respondent(s) to their claim, in any event, in terms of the

complaint at Core Ground 7 as pleaded, the Applicants have failed to show a route-map from

the complaint made to the reliefs claimed (see e.g. Hickwell [2022] IEHC 418 at §94-§95).

The Commission is not obliged to comply with the WEDG 2006 but is entitled to have regard

to same and did so lawfully in its Decision. It has not been demonstrated or established

that the WEDG 2006 required but were not subject to SEA.

74. Furthermore, the Applicants’ complaints fail to reflect a correct understanding of the

WEDG 2006 and the provisions of the SEA Directive and same do not correctly engage with

or factor the consideration that no aspect of the WEDG 2006 is binding on the Commission

when it makes a decision on an individual planning application. The Applicants have pleaded

no basis upon which it is contended that the WEDG 2006 set a framework for development

consent. Contrary to what the Applicants advance, the WEDG 2006 do not set the framework

for development consent. The WEDG 2006 were issued under s.28 of the 2000 Act and have

a ‘have regard to’ status and are not binding on a planning authority or the Commission

when granting development consent. No kind of compliance is required by a have-regard

obligation, merely regard. The premise of Core Ground 7 is contrary to settled law (Case C-

9/22 St Teresa’s Gardens at §50, as reflected in the recent High Court decisions in McDonald

(No. 2) [2026] IEHC 66, at §§18-20 and McDonald (No. 3) [2026] IEHC 67, at §6) and

cannot be maintained.

75. Further and without prejudice to the foregoing, for completeness, there was no

‘overreliance’ by the Inspector on the WEDG 2006. That assertion by the Applicants is

without basis and comprises both impermissible, merits-based disagreement and a

misreading of the Inspector’s Report. The Inspector did not over-rely on the WEDG 2006 as

incorrectly alleged; the Inspector undertook a reasoned analysis with reference to relevant

material that included but was not limited to consideration of the WEDG 2006 (see e.g.

§8.3.2, §8.5.2, §9.4.3 and §9.6.7 of the Inspector’s Report). In addition, following or

applying matters contained in the WEDG 2006 over matters contained in the Draft WEDG

2019 or the WHO Guidelines 2018 does not involve any legal error or invalidity (see generally

Nagle View [2024] IEHC 603, Rural Residents (I) (No.1) [2025] IEHC 600). The Inspector

correctly noted that the WEDG 2006 ‘remain valid’ (§8.5.4, Inspector’s Report). There was

no requirement for reasoned engagement with the mere assertion that the WEDG 2006

required but were not subject to SEA. There is no obligation on the Commission to give

reasons for not accepting an incorrect legal point (Doyle (No.3) [2026] IEHC 156 at §66(xi)),

and therefore the complaint that the Commission erred in failing to consider or give reasons

for not accepting that the WEDG 2006 were invalid in the absence of SEA is without merit.

EDF’s Position:

35. By way of preliminary matter and as pleaded by EDF:

(i) as the Applicants have not actually challenged the validity of the WEDG 2006 by

reference to the SEA Directive or the SEA Regulations, and have not joined any State

respondent to these proceedings as legitimus contradictor, this ground of challenge cannot

avail the Applicants as there is no route to relief (per 100 Meter Tall (at §188); and Rural

Residents Wind Aware and Environmental Group & Ors v An Coimisiún Pleanála (I) [2025]

IEHC 600 (at §§117 & 118);

(ii) the Applicants have failed to particularise the legal basis upon which SEA of the

WEDG 2006 would be required and have not pleaded any basis upon which it is contended

that the WEDG 2006 set a framework for development consent. Again, on this basis, this

ground of challenge cannot avail the Applicants.

36. These matters are very similar to issues which were determined recently, against

the position of the Applicants, in Hoctor. It is submitted that this ground of challenge should

be dismissed on the same basis.

37. Strictly without prejudice, the WEDG 2006 enjoy a presumption of validity.

Moreover, in circumstances where the WEDG 2006 were issued under section 28 of the 2000

Act, the Commission was required to consider those guidelines and did so. The Applicants

do not dispute that the WEDG 2006 were considered, but suggest that provisions of the

WEDG 2006 were ‘selectively overly relied upon’, however, that complaint does not form the

basis of a ground for judicial review. The Commission considered the WEDG 2006 to the

legal standard required, and the Applicants have not provided any evidence that the

Commission held that it was ‘bound’ by those Guidelines. In reality, the Applicants are

attempting to re-run a failed point that the Third Named Applicant unsuccessfully attempted

to advance in Rural Residents (I).

38. As to the unparticularised complaint that the WEDG 2006 was required to have been

subject to SEA, this is also incorrect. Criterion (ii) of Article 3(2) of the SEA Directive is not

engaged as the WEDG 2006 were not subject to appropriate assessment, and criterion (i)

does not apply as the WEDG 2006 do not ‘set the framework for future development

consent’. Insofar as the Applicants are suggesting that the WEDG 2006 do set a framework

for development consent, arising from those guidelines’ status under section 28, that

proposition was recently rejected by the High Court: see McDonald v. Minister for Housing,

Local Government and Heritage (No.2) [2026] IEHC 66 (at §§18 to 20) and McDonald v

Minister for Housing, Local Government and Heritage (No.3) [2026] IEHC 67 (at §6), which

has considered the CJEU decision in Case C-9/22 St Teresa’s Gardens (at §50).

39. Insofar as the Applicants advance a complaint that the Commission did not give

reasons for not accepting that the WEDG 2006 were not subjected to SEA and therefore that

the Commission could not properly ‘have regard’ to the guidelines, the Commission is not

required to give reasons for not accepting an incorrect legal point (Doyle (No.3) at §66(xi)).

The Applicants’ own position that the WEDG 2006 have a ‘have regard’ status wholly

undermines their contention that those guidelines required SEA. In all the circumstances,

Core Ground 7 should be dismissed.”

120. No particular oral submissions were made on this point, the applicants relying on written

submissions.

121. The basic reason why this point fails is:

(i) The assertion that the 2006 guidelines are flawed due to lack of SEA is not something

they can maintain in these proceedings as it constitutes a collateral attack on the

guidelines. The applicants have not sought relief in that regard or joined the

appropriate State parties.

(ii) Such an argument is in any event wholly inconsistent with their claim that the

commission misunderstood the guidelines.

(iii) Furthermore the SEA argument is without merit because the 2006 guidelines are

non-binding and thus do not trigger SEA having regard to the judgment of the CJEU

in the judgment of 9 March 2023, NJ and OZ v An Bord Pleanála and Others, C-9/22,

ECLI:EU:C:2023:176 (St Teresa’s Gardens) at §50.

(iv) No detailed basis for a conclusion of breach of the SEA directive is pleaded in any

event.

(v) Given that the 2006 guidelines had only a have-regard to status, they were not

relied on by the commission in a way that was determinative of the decision, so

certiorari would be inappropriate even if, counterfactually, the applicants had

properly pleaded the SEA argument, and even if, counterfactually, that argument

had merit.

(vi) The argument that the commission failed to give reasons for not accepting that the

2006 guidelines were invalid is unstateable in such circumstances. The commission

does not have jurisdiction to declare Government guidelines invalid. The applicants

have not established such invalidity and cannot do so by way of collateral challenge

without appropriate pleaded reliefs and appropriately joining the State. There is no

obligation to give reasons for rejecting a legally incorrect point. A decision that is

otherwise lawful does not become unlawful because of a lack of reasons for rejecting

an unfounded legal objection.

122. This core ground therefore cannot succeed.

Discretion

123. If counterfactually the applicants had otherwise established an entitlement to relief, I would

have refused such relief as a matter of discretion. I would in particular uphold the submission of

the commission:

“DISCRETION

91. At §26, §107, §138, §151, §163-§166 of the Commission’s Statement of Opposition,

the Commission has expressly pleaded that relief should be refused in the exercise of the

Court’s discretion, including on the basis that it would be disproportionate to grant relief

(§138, §159) – which is a legitimate basis to refuse same (Save the South Leinster Way

(No.2) [2025] IEHC 541 at §53(ii)(j); Eco Advocacy [2025] IEHC 15 at §147-§156).

92. It is settled law that relief by way of judicial review is discretionary (Connolly [2026]

IEHC 224 at §47; Save the South Leinster Way (No.2) [2025] IEHC 541 at §53, §88, §119,

§152(i),(ii); Reilly [2025] IEHC 659 at §71) and applying such law to facts here, it would be

inappropriate to quash the Commission’s Decision.

93. The Commission submits that relief should be refused because its multi-factorial

conclusion that the renewable energy project accords with proper planning and sustainable

development was open to it on the available evidence and has not been shown to be

irrational or unreasonable.

94. It is also relevant that the First and Second Applicants failed to make submissions

or participate in the appeal, instead raising arguments for the first time in these proceedings

without explanation. This provides a valid basis for the Court to refuse relief, particularly in

relation to points specific to those Applicants and/or insofar as the Third Applicant seeks to

rely on same – such as at Core Ground 5. The Commission relies on McGowan [2025] IEHC

405 at §1 and §53(v); Coolglass [2026] IESC 5 at §122-§123, §156(b); North Great

George’s Street [2023] IEHC 241 at §60; Friends of the Irish Environment CLG [2021] IECA

317 at §275 et seq; Wild Ireland Defence CLG [2025] IEHC 726 at §59-§60; Doyle (No.3)

[2026] IEHC 156 at §64(iii).

95. In addition, that there is no evidence or basis for contending that the Commission’s

Decision would have been different without the defects alleged by the Applicants. Generally

speaking, decisions should not be quashed over errors that make no difference (Doyle 2025]

IEHC 158 at §45; Carrownagowan (No.3) [2024] IEHC 549 at §28 et seq, and §52).

96. Accordingly, the Commission submits that certiorari of the Decision should, if

necessary, be refused in the exercise of the Court’s discretion.”

124. I would also uphold the submission of the notice party:

“V. DISCRETIONARY FACTORS

100. It is EDF’s position that all grounds advanced by the Applicants should be dismissed,

and as such, that 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 it is

EDF’s position that this Court should exercise its discretion to refuse the reliefs sought.

101. 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.”

125. As stated above however the applicants’ points fail on their merits in any event. But in

summary I would exercise discretion, had it been necessary, against such points having regard to

the following which come within the bounds of factors to which regard can be had, judged against

the doctrinal constraints applicable to the court’s discretion and in the light of the caselaw cited

earlier in this judgment:

(i) the applicants’ failure to make many of the points to the commission by way of valid

submissions;

(ii) the lack of real demonstrated environmental harm;

(iii) the strong likelihood that the decision would have been the same given that the CDP

was in fact considered including WE P4, as well as a reasoned conclusion that the

project was in accordance with proper planning and development; and

(iv) the imperative EU and national law requiring delivery of renewable energy

infrastructure.

Summary

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

(i) It is settled law that an applicant must discharge the onus of proof to establish all

matters necessary for relief.

(ii) Applying such law to the facts here, the applicants have failed to establish the factual

premises of their complaints generally. The commission did not fail to have regard

to planning history in some way that was required, did not fail to have regard to

submissions, did not erroneously impose conditions that fail to protect the second

named applicant’s property, did not materially contravene the development plan,

did not fail to conduct valid European assessments. The applicants have failed to

discharge the onus of proof to demonstrate otherwise.

(iii) It is settled law that there is a presumption (the onus to rebut which falls on a judicial

review applicant) that material has been considered if the decision-taker says so.

(iv) Applying such law to the facts here, the applicants have not discharged that onus.

(v) It is settled law that judicial review is concerned with the legality rather than the

correctness of the decision.

(vi) Applying such law to the facts here, the proceedings are in substance a merits-based

disagreement with the merits of the commission’s acceptance of the developer’s

position as opposed to their objections.

(vii) It is settled law that an applicant’s point must be properly pleaded.

(viii) Applying such law to the facts here, the applicants cannot maintain a ground that

amounts to a collateral challenge to the validity of ministerial guidelines without

seeking appropriate relief and in particular without joining appropriate State

respondents, even if counterfactually non-AA-requiring non-binding guidelines came

within the scope of SEA requirements, which they do not having regard to the clear

jurisprudence of the CJEU. Furthermore issues concerning s. 15 of the 2015 Act are

wholly unpleaded and impermissible.

(ix) It is settled law that a planning decision-taker is required, where it relevantly arises,

to address the text of development plans and enjoys a zone of evaluative

judgement in relation to development plan provisions that involve flexibility.

(x) Applying such law to the facts here, the commission did in fact consider the relevant

text of the development plan, and such text did confer a space for evaluative

judgement especially where different provisions of the plan pointed in different

directions.

(xi) It is settled law that the standard as to reasons amounts to an obligation to furnish

the main reasons on the main issues, with the decision-taker having an

evaluative role to determine what issues raised in submissions are main issues.

(xii) Applying such law to the facts here, the applicants have not demonstrated any

shortcoming in the reasons articulated.

(xiii) It is settled law that judicial review is a discretionary remedy within established

doctrinal boundaries.

(xiv) Applying such law to the facts here, even if counterfactually the applicants were

otherwise entitled to relief, such relief should be refused particularly having regard

to the applicants’ failure to make many of the points in the administrative process

and/or by reference to the overriding public interest in renewable energy

infrastructure as recognised in national and EU law in order to address the urgent

requirements of the climate emergency. In addition the lack of tangible

environmental harm and the absence of any basis to conclude that the decision

would have been different are relevant, especially in a context where the

development plan overall was in fact considered and a conclusion as to the

requirements of proper planning and development was arrived at by the commission.

Order

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

(i) the proceedings be dismissed;

(ii) there be a recital to the order confirming that the second named applicant’s property

is not a participating property (including for the purposes of the exclusion in

condition 9(a)) and therefore that the mitigation measures at conditions 5 and 9

apply to that property;

(iii) 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);

(iv) 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;

(v) 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

(vi) the matter be listed at 09:30 on Monday 8 June 2026 to confirm the foregoing.