High Court dismisses climate litigation appeal, upholding planning decision despite environmental concerns.

[2026] IEHC 340

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000708]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AND

SECTION 15 OF THE CLIMATE ACTION AND LOW CARBON DEVELOPMENT ACT 2015

BETWEEN

COLIN DOYLE, FRIENDS OF THE IRISH ENVIRONMENT CLG, FUTUREPROOF CLARE,

MARTIN KNOX AND CHRISTINE SHARP

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA, THE GOVERNMENT OF IRELAND, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

AND

ART DATA CENTRES LIMITED

NOTICE PARTY

(No. 4)

Date of impugned decision: 5 April 2024

Date proceedings commenced: 30 May 2024

Date of judgment in Module I: 21 March 2025

Date of judgment in Module II: 13 March 2026

Date of leave to appeal hearing: 18 May 2026

Date draft judgment circulated: 25 May 2026

JUDGMENT of Humphreys J. delivered on Friday 29 May 2026

1. The applicants are to be commended for their commitment to highlighting the climate

emergency – concerns which are reflected in national, European and international law and are the

subject of strong scientific consensus. Consistent with what I said at the substantive stage, the fact

(and it is an undoubted fact) that institutions internationally have fallen short in the level of ambition

required to address the supreme challenge of this issue means that individuals and NGOs will feel

called upon to take responsibility for speaking up. The right to access the court for that and other

purposes is a key part of the rule of law and enjoys particular protection in the environmental sphere,

something the court is there to protect. That does not imply that any and all climate litigation must

be regarded as warranting relief or as meriting appeal, or that forensic good practice is of lesser

importance as far as the conduct of climate litigation by applicants is concerned. A court’s role in

translating such concerns into certiorari is not unlimited, as the Supreme Court in effect held in

Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 (Unreported, Supreme Court,

O’Donnell C.J., 4 February 2026), not least because applicants do not have a monopoly stake-holding

in climate issues. Statutory decision-takers also have climate duties, as well as a margin of

appreciation in how to give effect to relevant policy and other instruments. The essential problem

with this application for leave to appeal is that the applicants have difficulty in coming to terms with

the practical consequences of what the Supreme Court decided in Coolglass. That decision is

dispositive of the proposed appeal in favour of the commission. Unless appellate courts want to get

involved generally in future cases of the application of Coolglass – and there are going to be a fair

number of them – the way the system is meant to work is that questions of the application of settled

planning law to particular facts are for the trial level. The fact that the applicants have an

understandable merits-based objection to the grant of permission does not give rise to a basis for

appeal.

2. Viewed from a higher level, there is something inherently implausible from the outset about

an argument that seeks to condemn a planning permission as non-climate-consistent, when the

developer has gone out of their way to structure the project so as to purchase energy from renewable

sources to offset the energy directly used for the development. It is no doubt frustrating for the

applicants to have their climate arguments cut off at the knees by that response, but ultimately they

need to save their forensic protests for a case where a less responsible development has been

consented.

Judgment history

3. In Doyle v. An Bord Pleanála (No. 1) [2025] IEHC 158 (Unreported, High Court, 21 March

2025), I held that the inspector’s failure to acknowledge the single Leisler’s bat (Nyctalus leisleri)

roost in Building 6C constituted a harmless error which did not warrant quashing the permission and

dismissed the applicants’ case in relation to Module I of the proceedings.

4. In Doyle v. An Bord Pleanála (No. 2) [2025] IEHC 205 (Unreported, High Court, 11 April

2025), the applicants argued that their Module I costs of making failed points should be reserved

rather than be the subject of no order, a submission which I rejected.

5. In Doyle v. An Coimisiún Pleanála (No. 3) [2026] IEHC 156 (Unreported, High Court, 13

March 2026), I dismissed the applicants’ case in relation to Module II.

6. The applicants now seek leave to appeal.

Procedural history

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

leave to appeal, dated 27 April 2026. The opposing parties delivered replying submissions and the

matter was heard on 18 May 2026.

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

participants insofar as they attempted to assist the court.

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

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

as errors/ambiguities on the basis set out below.

10. 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).

11. 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.

12. 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.

13. 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.

14. 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.

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

2026. Responses were as follows:

(i) applicants – no comments per applicants’ solicitors although the fifth named

applicant also responded directly (see below);

(ii) commission – no comments additional to those of notice party;

(iii) State – not applicable as case against State struck out; and

(iv) developer – helpfully corrected a typo.

16. The fifth named respondent also wrote in directly as follows:

“I am aware that the deadline for representation has passed by a few hours,: I would request

for my submission to be entered in the knowledge that the case having been refused by the

Court of Appeals, the request is that it will be forwarded to the Supreme Court, regarding

Art Data Centre case.”

17. That is, however, a matter for application to that court rather than something to be

addressed in the present application.

General principles on leave to appeal

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

for the grant of leave to appeal are as follows:

(i) The point must properly arise

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

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

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

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

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

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

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

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

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

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

misinterpreted the decision of the Board granting the permission in

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

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

alleged misinterpretation of a specific administrative decision will usually

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

While the presumption of validity attaching to administrative decisions

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

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

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

of public importance”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

who represent themselves, prefer the comfort of focusing exclusively on

the debatable ruling or judicial comment reinforcing a sense of grievance

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

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

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

an addition, exaggeration or distortion launched for the purposes of

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

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

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

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

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

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

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

amount to a matter of general public importance”.

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

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

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

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

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

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

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

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

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

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

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

(ii) The point must be one of law

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

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

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

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

particular facts but rather one of the substance, content and

interpretation of law. Questions about the application of established

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025).

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

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

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

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

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

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

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

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

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

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

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

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

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

administrative decision will usually be case specific and will not present

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

attaching to administrative decisions represents an important legal

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

any uncertainty and the application of the presumption to a particular

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

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

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

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

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

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

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

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

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

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

interest suggests an appeal is not warranted”.

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

the judgment being appealed against and provide a plausible basis

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

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

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

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

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

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

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

2025).

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

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

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

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

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

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

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

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

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

caselaw.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(iv) The public importance must be exceptional

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

it must also be established that the importance is exceptional.

(v) An appeal must be in the public interest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in these proceedings”.

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

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

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

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

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

argument that alleged uncertainty in the law was creating alleged

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

evidence before the High Court that the quarry industry was being

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

issues that do not meet the necessary criteria.

The proposed questions of alleged exceptional public importance

20. The applicant’s proposed questions are as follows:

(i) “Where a data centre developer is required to enter into a Corporate Power Purchase

Agreement [(CPPA)] which envisages that ‘the energy consumed by the development on

site is offset with new renewable energy generation’, is the data centre ‘a project that is

going to be powered from renewable energy’ and therefore a project that prima facie

the commission in fulfilling its obligation under s.15 Climate Action and Low Carbon

Development Act 2015 (as amended in 2021) was able to regard as not being one that

in itself causes major net emissions (as per para 1 of the judgment).”

(ii) “Can the Commission's duty under Section 15 of the Climate Action and Low Carbon

Development Act 2015 (as amended) to act consistently with the requirements of

Section 15 be satisfied where its decision recites it ‘had regard to …the Climate Action

Plan 2023’ (CAP 2023) and if so, what duty is there on the Commission to demonstrate

that it fulfilled that obligation.”

(iii) “Whether and how carbon budgets and sectoral emissions ceilings, as referenced in CAP

2023 and integral to national climate governance, must be addressed within a Section

15(1) consistency analysis at project level.”

Do the points properly arise?

21. The first question does not arise in any sense relevant to the law on leave to appeal.

22. It is, I think, unfortunate that having attempted litigation-by-snippet against the commission

at the substantive stage, by seizing on the phrase “regard to” the Climate Action and Low Carbon

Development Act 2015 (the 2015 Act), wrenching it out of context, and failing to see that this meant

regard as a first step followed by consistency, the applicants now try exactly the same flawed and

inappropriate tactic against the court.

23. They seize on the phrase “powered from renewables” in the judgment, wrench that out of

context as well, and demand that this be read as erroneously meaning powered directly from

renewables, which is not a reasonable reading as would be obvious to a neutral reader of the entire

text. The obvious meaning is to convey that the approval was equivalent to being powered from

renewables, and could be treated as a project powered from renewables, that is, was based on

impacts being offset by the purchase of energy generated from renewables equivalent to the energy

consumed, or the bulk of it. The applicants then demand an appeal based on this inaccurate reading.

24. To expand this slightly, there are essentially two questions involved. Firstly, what does the

fragment of a sentence in the preambular paragraph of the judgment mean, but secondly and more

importantly, what difference does it make?

25. Starting with what does “powered from renewables” here mean, there are only two options.

It can be read out of context, as meaning powered directly from renewables, or it can be read in

context, as meaning equivalent to being powered from renewables.

26. The out-of-context sense is of course incorrect – this project is not being powered directly

from renewables. There is little point saying anything further about that because entrenched

literalism is something of a conversation-stopper. Perhaps this just illustrates yet again the point

made by Upton Sinclair: “It is difficult to get a man to understand something when his salary depends

on his not understanding it” (I, Candidate for Governor: And How I Got Licked (Berkeley, University

of California Press, 1934) p. 109).

27. It is obvious beyond peradventure that a reasonable reader would read any such references

in context, and in doing so would have regard to the following in particular:

(i) a reading in context is the rule for legal interpretation generally – that is, to consider

the words used as well as their overall context and their purpose;

(ii) a reading rendering the text correct rather than incorrect if such a reading is

available is also an established form of interpretation generally – the

decontextualised, literal meaning would render the text incorrect;

(iii) the reference originates in the introductory, preambular, para. 1, not the operative

body of the judgment;

(iv) the phrasing is worded in terms of equivalence insofar as it refers to this project

being something the commission was “able to regard as” not causing major net

emissions;

(v) the whole issue is explained in depth later and it is expressly pointed out that the

project is not powered directly from renewables but an offset is being provided by

way of CPPAs for the purchase of equivalent energy generated by renewables;

(vi) it is significant that no issue was raised on the pleadings that would make it legally

relevant as to whether the project was directly powered by renewables or indirectly

so powered, or in a way that was equivalent to being powered by renewables, so

there was no reason for me to make such distinctions explicit; and

(vii) nobody, least of all the applicants, raised any error or ambiguity in the draft

judgment process.

28. Firstly, the general interpretative significance of context is well established and needs no

further comment. The overall principle is familiar and not confined to legal matters – the principle

being that the letter killeth but the spirit giveth life.

29. Relatedly therefore, the applicants’ literal meaning renders the text incorrect, and indeed

contradictory to the operative part of the judgment. Reading it as meaning “equivalent to” being

powered by renewables makes sense rather than reading it as nonsense.

30. Thirdly, the fact that the reference originates in a preambular paragraph is not without

significance. Different judges write judgments in different ways, but the notion of a scene-setting

paragraph has both evangelists and those who have been evangelised (the category into which I fall

in this regard). The risk in introductions and summaries is of saying something slightly different to

the body of the judgment – as this case possibly illustrates – but in general it is a risk that can

generally be worth taking for the sake of the digestibility of the product, in a very crowded market

these days. Admittedly there is a loose “powered by” reference much later on, but it all derives

context from the full discussion.

31. The obiter fragment of a sentence concerned was just an attempt at preambular introductory

summary/exposition in the first paragraph of the judgment, and it is incorrect to inappropriately and

distortingly elevate this into the fulcrum of the ratio of the decision as if that was all that the outcome

hinged upon.

32. Fourthly, the intended notion of equivalence is encompassed in the reference to being “able

to regard as” (emphasis added):

“Firstly, by virtue of the game-changing response document from John Spain Associates,

this is a project that is going to be powered from renewable energy. It is therefore a project

that prima facie the commission was able to regard as not being one that in itself causes

major net emissions.”

33. Fifthly, a reasonable person would construe any instrument as a whole and that applies to

judgments as well. The judgment as a whole records that the direct source of energy will be the

grid and on-site gas-powered energy generation, and does so at some length. The full text clearly

demonstrates that the effective equivalence with renewable energy arises from the purchase of

renewable energy by way of offset. The commission in submissions utterly demolishes the

applicants’ elaborate argument on this basis in a single paragraph of text (emphasis added):

“[Counsel for the commission]: ... [counsel for the applicant] has completely and utterly

misrepresented this Court's judgment to the Court. He has asked the question in his

own words ‘what would the reasonable person think when he picks up this Court's judgment

and asks about the game changing that John Spain engaged in?’, and maybe that person

might actually read the section of the judgment from paragraph 123 onwards that

deals with the CPPA point, and that person might actually see that this Court has adopted a

practice of setting out verbatim the positions of all the parties in the Statement of Case,

where the Applicant made their point about the CPPA, and the Commission and the developer

pointed out that it's an offset requirement, which the Court then considered in light of Fahy

Beg and said there was nothing to see here in terms of the Applicant's case. But yet that

reasonable reader would then take that, go back up to paragraph 1 and say ‘well, sure the

Judge actually did something different up here, it's “powered by renewables”,’ not actually

in the offset way that the Court has just determined on those seven paragraphs at

the operative part of the judgment. It's ludicrous.”

34. Sixthly, the applicants didn’t plead that there was any legal significance about whether the

relationship with generation of renewable energy was direct or indirect, or whether it related to the

total energy consumption or the bulk of it, or how the offsetting was to be calculated. In the

absence of a plea rendering any given distinction relevant to the outcome, the applicants

can’t complain about a phrasing that didn’t make such unpleaded distinctions explicit.

35. Seventhly, but by no means unimportantly, we come to the fact that all parties had the

opportunity to review a draft judgment and identify errors, and nobody saw this as an error. The

commission’s submission was express about that, harking back to the previous point that all of the

details are set out in the operative part of the judgment (emphasis added):

“So with the greatest of respect that just simply doesn't meet the criteria at all. And, you

know, it's regrettable, on both sides, there's an element of mea culpa here. Should I also

have come back to the Court and said ‘well, actually, Judge, paragraph 1 says “from

renewable”’? I don't think so, because I thought the Court's ratio at 120 to 130 is

as clear as it gets. In fact, actually, when you're dealing with the offset, when you out the

Statement of Case that's the point that you actually draw specific attention of the reader to

paragraph 4.48 of Mr. Spain's document. In fact you actually look at all the conditions and

you say:

‘These clearly have the effect that the development is conditioned in accordance with the

documentation submitted with the application. This includes the agreement to a condition

requiring CPPAs as set out in para. 4.48 of the John Spain Associates response document.’

That's what you would look at. You'd see it's set out in the Statement of Case extracts

above that and you'd know exactly what the Court has determined, that where there's an

offset CPPA requirement, and the Commission relies on that, consent doesn't fall foul of the

Coolglass approach to Section 15.”

36. The commission went on (emphasis added):

“And this is a reinvention here, in a ‘gotcha’ attempt to basically say ‘ah, we got a chance’,

notwithstanding that we read the language in the Court's draft judgment that requires

focused discipline in looking at it. I didn't call it out as a mistake, didn't see it as a mistake.

I saw the operative part in the operative part of the judgement.

... But this is an absolutely opportunistic application.

... And, again, remember, this isn't the point [Counsel for the applicants] doesn't seem to

be saying what the Court has done here is, you know, synthesised a line of jurisprudence in

an incorrect way, there's a novel new approach to something. He's basically saying ‘your

paragraph 1 says something that doesn't fit with paragraph 123 to 130 and I have

you now.’ You said this is powered by renewables when nobody argued that.

When the Court doesn't conclude that.”

37. In Bank of Ireland Mortgage Bank U.C. v. Murray & Anor [2026] IESC 30 (Unreported,

Supreme Court, 13 May 2026), O’Donnell C.J. (Woulfe, Hogan, Murray and Collins JJ. concurring)

emphasised that failing to pipe up with relevant information at the appropriate time is, in effect,

unhelpful to the court and counterproductive, although he put it marginally more strongly than that.

38. Here, if the applicants had genuinely believed that the reference to being powered from/by

renewables was either factually wrong or ambiguous, they owed it to the court to tell me that when

they got the draft judgment and before anything was decided. Not making the point (and they didn’t

have much in the way of excuse for that, variously saying that they had limited time (but the

obligation to read the draft is on them and they didn’t ask for more time) and that the problem

“didn’t jump out” at them (oddly enough it didn’t jump out at me either) – in which case it is

manifestly implausible to now say that it represents some sort of glaringly fatal chasm of error at

the centre of the whole decision) and then crying error to get an appeal is an unhelpful and

inappropriate procedure.

39. As the commission submitted, this is just a “gotcha” point to complain that my introductory

summary was sub-optimal (if read in isolation). (If the commission’s phrases about “gotcha” or “I

have you now” might sound a bit strong, that is not the case because such comments are a

reasonable reflection of the energy with which the applicants made the point concerned (obviously

not meant by the commission as a verbatim quote – lest anyone strain to misconstrue that also).)

Even assuming in favour of the applicants that my preambular summary was totally sub-optimal,

totally ambiguous and/or totally wrong, the fact remains that the more extended treatment later in

the substantive judgment explains why the applicants’ pleaded case under this heading is doomed

to fail – their case was an alleged failure by the commission to assess emissions in a context where

CPPAs were not conditioned – but they were conditioned and the applicants don’t now challenge that

conclusion. So we peel the shiny gift-wrapping off this point and open the box to find nothing inside.

Maybe winning parties are going to have to be more vigilant to correct any potentially ambiguous

wordings in draft judgments that can be “opportunistic[ally]” (the commission’s term) exploited by

losing parties in future. Perhaps unfortunate, but that may be the legacy of this unedifying exercise

by the applicants.

40. As I say, let’s assume that I am wrong about what is a reasonable reading, and that the

applicants persuade an appellate court that the judgment must be read in the first, literal and

incorrect sense. Presumably the entertainment value of the point will then be prolonged by much

castigation of the trial court for severe errors (errors that I would say lie as much if not more with

the reader than the writer). But once the Hooraying dies down, somebody is bound to ask: now

what – where does this get the applicants?

41. The answer, if I can adapt the words of counsel for the commission’s predecessor body in

Ryanair v. An Bord Pleanála (No. 2) [2025] IEHC 194 (Unreported, High Court, 4 April 2025) at 12,

is: “a bit like Lord Voldemort's spell on the baby Harry, [the applicant]’s magic word spell rebounds

upon them ..., but what does it change? It changes absolutely nothing because the Board's

jurisdiction and discretion is in absolutely and utterly no way restricted by [the alleged error in the

judgment]” (transcript pp. 80-81, referencing J.K. Rowling, Harry Potter and the Philosopher's Stone

(1997)).

42. The point is that no amount of alleged mis-phrasing in the judgment changes the factual

and legal position that the Supreme Court has definitively outlined how climate issues are to be

addressed. The central feature of that is the evaluative spectrum of options for the decision-taker.

The commission were therefore entitled to have regard to the CPPAs as part of such an evaluation

of consistency with climate goals and instruments.

43. A project can be powered by renewables either directly (in a closed loop from turbines to

the data centre) or indirectly or its equivalent, for example via offsetting the impact through CPPAs

for renewables. It comes to the same thing, which is a change from gross emissions to a lower

figure (or a zero or negative figure) for net emissions. Consistency with climate goals and

instruments as understood in Coolglass inevitably allows planning decision-takers to focus on the

net figure. As the notice party submits, “There is no remaining uncertainty on this point”. So,

phrased as powered by or from or directly or indirectly or equivalent to all mean the same thing in

the end – it is a matter for the evaluative spectrum of options before the decision-taker. Coolglass

has the clear consequence that such matters are for the evaluative judgement of the decision-taker

having regard to the spectrum of options, in the first instance.

44. That’s the ultimate problem for the applicants on these pleadings.

45. Their core pleaded case was simply that there was no condition for CPPAs. Core ground 3

was admirably clear about this, claiming:

“The Data Centre Decision is invalid in that the Board acted irrationally by failing to require

any mitigation of the GHG emissions from the PDC, further particulars of which are contained

below.”

46. I rejected that. As the commission said, the applicants put “every single egg” in that basket

insofar as concerned whether the project generated net greenhouse gases (GHGs) (emphasis

added):

“Not only that, but then in the course of the argument he says ‘actually, do you know what,

it's not even about just the emissions from the power, it's about the emissions from the

project.’ Not how the case was argued. In fact actually then he asked the question ‘well,

what was the point about the SEC's, because we focused on the electricity energy

intersection there, Judge.’ The entire case was run on the basis of saying the emissions

they were concerned with were the emissions caused by the electricity generation. That's

the way it was run. And when the Court said ‘you're running the case in a different

way now’, you're absolutely correct.

So as I understood, Judge, the question that Coolglass asks the Court to look at is whether

or not the Commission's decision falls within the range of reasonable the reasonable range

of alternatives for which one can say there's consistency with Section 15, and in this case

the Court determined, with the greatest of respect, that the Applicant was wrong to discount

the CPPA. The Commission and the Notice Party were correct to say that it required the

offset that John Spain set out at paragraph 4.48 in his submission, with the net effect being

well, net effect being the actual operative words, the net effect being that there was a net

emissions matter that the Commission was entitled to consider. Therefore it fell within the

range of reasonable alternatives where one can say it was consistently with Section 15, and

the Applicant hadn't engaged with that. The Applicant had put every single egg they

owned in the basket that the CPPA didn't matter. They chose not to engage with Fahy

Beg. They chose to make that point and they lost it. And that's all this case was about.”

47. The following is the only wording that goes vaguely beyond that:

“66) The absence of such a condition fundamentally undermines the analysis of the Notice

Party, the Inspector and the Board, though it must be noted that such a condition could not,

in any event, make the granting of permission for the PDC consistent with the Climate Action

Plan 2023.”

48. That isn’t a legal plea – “it must be noted” is just a passing piece of context, not a legal

ground for certiorari. Nor is there any basis or rationale whatsoever, let alone particulars, and still

less any statement of the facts and matters relied on, as required by OO. 84 and 103 RSC, for the

assertion that such a condition could not make a grant consistent with CAP23. As now put in O. 103

r. 14(3) RSC (but O. 84 r. 20(3) RSC is similar) (emphasis added):

“(3) It shall not be sufficient for an applicant to give as any of his or her grounds for the

purposes of paragraphs (II) or (III) of sub-rule (1)(a)(ii) 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.”

49. The text about what “must be noted” never gets off the ground as a piece of pleading

seriously grounding a basis for a putative order nullifying this decision.

50. Anyway, even if counterfactually it had been made, any plea that a CPPA could not satisfy

the 2015 Act is clearly erroneous in the light of Coolglass.

51. The argument now being made is just new, unpleaded, not argued – and even if it was

pleaded it is without merit – a totally implausible basis for appeal.

52. As the notice party points out at para. 16 of submissions:

“The Applicants never pleaded that such a CPPA would be deficient for want of additionality,

time-matching or proximity to renewable generation. Those arguments make their first

appearance in the Applicants’ certificate submissions, framed as though they were always

part of the case.”

53. This crucial point renders the new case now made by the applicants for the first time in an

appeal context totally inappropriate. As the notice party goes on to point out:

“17. In short, the Applicants' pleaded case treated the absence of a CPPA condition as

the problem. The CPPA as proposed, in their pleaded case, was a mitigation measure which

the Commission had failed to impose as a condition and its absence was what rendered the

decision irrational and inconsistent with s.15(1)(e) of the 2015 Act.

18. In Question 1, the Applicants no longer complain that no CPPA was conditioned.

They now accept, as indeed they must accept following the Judgment, that a CPPA is

conditioned by virtue of the Judgment's interpretation of conditions 1 and 3 (and the recital

in the order). Their new grievance is with the content of that CPPA, which they now contend

lacks additionality, time-matching and proximity requirements, and that as a result, the

project cannot be re-characterised as one ‘powered by renewable energy’.

19. This is a wholesale re-invention of the case as pleaded. The Statement of Grounds

mounted no challenge to the content or specification of any CPPA, because the Applicants

incorrectly asserted that no CPPA had been conditioned at all. The Applicants never pleaded

that a CPPA of the type actually offered by the Notice Party (at para 4.48 of the JSA

document) would not meet any legal requirements.”

54. In particular, any argument that 2015 Act compliance has to be assessed prior to and

independently from conditions, mitigation or offsets is illogical, implausible, authority-free and

transparently designed to condemn any decision and to result in certiorari. That said, this argument

wasn’t in fact pleaded – it’s something the applicants only dreamed up with sight of the judgment.

So it never gets out of the starting gate, which is just as well because it is doomed to fail in any

event.

55. The argument that the purchase of renewable energy did not necessarily offset the emissions

from the operation of the plant was never made so can’t arise in an appeal context.

56. Insofar as the rejection of the applicants’ argument that the CPPAs were not conditioned

meant that, on the facts here, the arguments they constructed on counterfactual foundations of

sand did not arise, the applicants’ attempt to condemn the court for not dealing with issues is

misconceived. They tendentiously say in submissions that “The Judgment also declined to fully

address other issues raised by the Applicants, in the circumstances where the CPPA was found to be

sufficient to override any deficiencies in the Decision”.

57. But as the commission submits, this is illogical and incorrect and totally falls flat as a

criticism. If an argument is founded on a false premise, disposal of the premise also disposes of the

need to dignify the subsequent steps of such an incorrect point with further extensive discussion:

“18. The Applicants also suggest (Certificate Submissions, §42) that, in light of the

findings about the CPPA, the Court ‘declined’ to ‘fully address other issues’. This is just

wrong – and again demonstrates a failure to properly understand s.15 in light of Coolglass.

The Court did not decline to address anything, rather, and contrary to the Applicants' flawed

approach, the Court was considering the entirety of the Commission’s Decision and noting

that in light of same, including as conditioned (including the CPPA), the Applicants had not

demonstrated that same fell outside the spectrum of possible outcomes envisaged by

Coolglass. It is not an appropriate or permissible approach to s.15 to isolate arguments

without considering same by reference to the actual decision made – including conditions

imposed.”

58. There is a big difference between overlooking a central argument altogether and not getting

into a matter more deeply because the premise has been falsified so no further discussion is

necessary. The applicants’ dumbfounded complaint that their points were not addressed simply

ignores this. Where the first step in an argument is false, there is no necessity to discuss in detail

the further steps that would arise if it were correct. No matter how many later dominoes there are,

or how magnificently they are arranged, their fate sealed by the downfall of the first one.

59. The commission succinctly identified the essential problem (emphasis added):

“It's a recharacterisation, and an attempt to recalibrate, and an attempt to re argue

points that have been lost. This was a very straightforward case that actually turned

nearly exclusively, with the greatest of respect to my Friends, on whether they were right

that there was no mitigation by way of a CPPA, and once that point was lost, everything

else the Applicant relied on fell like dominoes in this case. That was a matter of

construing the provision by reference to existing jurisprudence.”

60. So why then are the applicants making so much of the irrelevancy of the alleged mis-

phrasing in the judgment? This brings us to the heart of the whole thing.

61. Ultimately, what is extraordinarily tell-tale about the inclusion of my alleged mis-phrasing in

the applicants’ appellate endeavours is that the question would be much clearer without this

completely irrelevant distraction.

62. If the applicants actually wanted to raise the substantive point in a clear and distinct way,

the question would be along the lines of – can the commission rely on CPPAs to come to a conclusion

of consistency with climate goals and instruments under the 2015 Act?

63. The effect of introducing the irrelevant issue of whether I mis-phrased this in the judgment

is an absolutely classic textbook example of a tactic designed to “spread maximum confusion”

(Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38, [2024] 1 I.R. 386, [2022]

10 JIC 2402 per O’Donnell C.J. at para. 22 (Dunne, Woulfe, Hogan and Murray JJ. concurring)).

64. Not specific to these applicants of course, but people who make good points welcome clarity

and simplicity because good points become more compelling the more undergrowth is cleared away.

65. People who make unfounded points live by confusion, irrelevancy and multiplication of side-

issues, in the hope that in the fog of war, enough distraction will be created by confounding issues

and side-fires as to enable them to land a shot behind enemy lines. And if you are an applicant, one

shot is all you may need, or think you need, for certiorari and costs. It becomes not so much a

deliberate tactic as a way of life. After enough wrenching things out of context, the capacity or even

willingness to read things in context slides towards terminal atrophy.

66. The self-evident reason why the applicants in this case didn’t phrase their appeal point in

the much simpler and clearer way I have outlined above is because it would then have been

screamingly obvious that this is a point that they didn’t plead or argue. Their whole case was that

there was no condition requiring CPPAs. The no doubt entertaining but nonetheless completely

irrelevant side-show as to the contended-for severe shortcomings of my wording is therefore

absolutely necessary for the applicants in order to distract the intended appellate audience from that

underlying but insuperable problem.

67. The secondary but independent reason for the applicants wanting to spread maximum

confusion here is that if the question had been phrased in the simpler way outlined above, the

answer would be obvious – this is a matter for the evaluative judgement of the commission within

the spectrum of options established by the Supreme Court in Coolglass. There is no new point here,

and no doubt requiring appellate courts to ride to the rescue, so the “maximum confusion” is again

absolutely necessary to keep the applicants’ case on life support.

68. We can now turn to the second question of alleged exceptional public importance.

69. This does not arise because the premise is false. The commission did not contend, and I did

not hold, that reciting regard to the 2015 Act was enough to discharge their duty. There was a lot

more in the material – this point, like the first question, is litigation-by-snippet. They take this

fragment out of context and quote the commission selectively, ignoring the more detailed treatment

of the 2015 Act. That is a fairly desperate procedure at the best of times and here is so transparently

inappropriate as not to warrant any further discussion.

70. Insofar as the applicants are reconfiguring their case to make a point about alleged problems

with the inspector’s wording that they didn’t plead, such a point does not arise in the sense of

appellate procedures. It is nearly always possible to think of better points you should have made

when you get an adverse decision: creative reprogramming having sight of the judgment or esprit

d’escalier after the event, what O’Donnell J. (Moriarty and Hanna JJ. concurring) referred to as “the

principle of delayed eloquence”: The People (D.P.P.) v. Rattigan [2013] IECCA 13, [2013] 2 I.R.

221, [2013] 2 JIC 1901, [2013] 2 JIC 1905, at p. 245. But a rational system can’t work on the basis

that you can they launch such new points on the next available level of the court hierarchy. As the

commission says:

“24. The approach in the Judgment should not be controversial – the Court interpreted

the decision in a way that was valid and made sense, noting that such a reading was clearly

open to it with reference to, inter alia, the Inspector’s Report.

25. The Applicants, having not done so at the substantive hearing or in their pleadings,

now attempt to impugn the Inspector’s approach to the assessment of climate in light of

s.15 (Certificate Submissions, §57 et seq). In reality, what is occurring here is that having

launched their case on a erroneously and narrowly focused interpretation of the

Commission’s Decision – which was rejected through the application of settled law – the

Applicants now seek to recalibrate the point to impugn the approach of the Inspector and

conveniently ignore the law upon which their actual pleaded and argued complaint was

rejected. This is not a permissible approach to a certificate application.

26. No purported point of law arises. The Court correctly determined this issue on the

basis of settled legal principles.”

71. For example, insofar as the inspector is criticised for relying on CAP23 independently of the

particular project, the way any argument remotely related to this is pleaded (see sub-ground 32) is

dependent on the project being “without any mitigation”. As the premise is false this argument

doesn’t arise.

72. Insofar as mild additional critiques of the inspector were launched by submission at the

hearing, these were not pleaded. Such points cannot be the basis of appeal as the notice party

points out:

“The question impermissibly recalibrates the pleaded case

31. The Applicants' pleaded and argued case under Question 2 was a single, narrow,

formalistic complaint: that the operative Board order used the words ‘had regard to’ the

Climate Action Plan 2023, and that those words demonstrated that the Commission had

applied the pre-2021 ‘have regard to’ standard rather than the post-amendment

‘consistency’ obligation. That complaint was rejected by the Court through the application

of the well-settled principle that a decision must be read as valid where a valid reading is

available, and that the decision read as a whole, including the Inspector's report,

demonstrated substantive engagement with the correct statutory obligation. No error of law

was found and no complaint is made that the Judgment misapplied those settled principles.

32. Faced with that outcome, the Applicants now seek to recalibrate the point entirely.

In their certificate submissions at §§57–58, they impugn aspects of the Inspector’s

reasoning that were never pleaded in the Statement of Grounds; specifically, the Inspector's

use of the phrase ‘low carbon economy’ instead of ‘climate neutral economy’ (raised for the

first time at §60 of the Applicants’ Module II submissions), and the absence of an express

citation of s.15 of the 2015 Act under the Inspector’s ‘Compliance with Climate Change

Policies’ heading (at p.48 of her report). As these points were not pleaded or pursued with

any vigour at the hearing, the Court was not required to address these issues in its

judgment.”

73. The third question of alleged exceptional public importance does not arise from the pleadings

and is an essayistic attempt to ask appellate courts after the event how the applicants should have

pleaded their case in the first place. What I said was that the applicants had not pleaded the alleged

pathway between ceilings/limits and the need to consider those in the decision. That isn’t going to

be changed by clarification of what would have happened if they had pleaded such a pathway.

74. In fairness to the applicants, the point remains open in a case where it is pleaded.

75. A Venn diagram mapping the points made on the pleadings to those made in the leave to

appeal application would be instructive reading, and would leave a relatively unpopulated middle

sector. The temptation to draft something is considerable – maybe in a future matter if this type of

approach of constant reconfiguration persists.

76. Looking at the appeal points overall, for a case that the applicants present as epoch-making,

all of this is remarkably thin gruel for an appellate court.

Are the points ones of law?

77. The first question is transparently mired in the facts. Anyway the first question is somewhat

frivolous because we already know the answer to “is this a project powered by/ from renewable

energy?”. The answer is – “No, if you mean directly powered, but yes if you mean permitted on the

basis of purchase of equivalent renewable energy, which is what the judgment obviously meant on

any sensible and holistic reading”.

78. The second question is a type of legal question – but not one of any significance because we

also know the answer. The answer is “No, not if that’s all the commission did, but they did more

here.” So it’s the facts that defeat the relevance of this question to anything in this case.

79. The third point is a sort of general essayistic legal question but untethered from anything in

the pleadings, arguments, facts or judgment. That isn’t an appropriate basis for appeal.

Are the points of public importance?

80. The points are not of public importance as they were not pleaded either at all or in this form,

do not otherwise arise, tendentiously misrepresent the basis of the judgment sought to be appealed,

seek clarification of things that either do not arise or have already been clarified in substance by the

Supreme Court and/or are fact specific.

81. The third question in particular just invites a general essay on a specified topic, without

reference to how that affects this case – that isn’t an exercise of public importance. As the notice

party submits:

“51. Like Question 1, the broad formulation of Question 3, ‘whether and how’ budgets

and SECs ‘must be addressed’ invites the Court of Appeal to write a general essay on the

relationship between macro-level climate governance instruments and individual planning

decisions. That is precisely the kind of abstract advisory opinion the certification jurisdiction

is not designed to produce: Massey (No. 4); Condon (No. 2). The framing of the question

as an abstract general principle rather than a precise legal issue determinative of this case

confirms that it is unsuitable for certification.”

82. Insofar as the applicants claim that the third question raises important issues about the EU

emissions trading system (ETS), any such questions don’t arise here because I didn’t base the

decision on this sector being covered by the ETS. If I had decided it, that defence may have been

a complete answer, or it may not have been, but I wasn’t immediately persuaded of that and didn’t

base the decision on that. So it can’t plausibly be a platform for appeal that we need to have an

abstract academic debate about something which didn’t affect the outcome. As the notice party

submits:

“50. ... the Judgment at §§108–116 did not rest its conclusion on ETS coverage alone.

It explicitly acknowledged at §110 that ETS coverage alone might not be sufficient, but found

the Commission had ‘other matters going for it’, particularly the emissions quantification in

the developer’s material and the agreement to CPPAs. The Judgment therefore did not

establish any broad proposition that ETS compliance is a sufficient or determinative factor

under s.15. There is accordingly no ‘mechanistic reliance on ETS status’ of the kind the

Applicants suggest in their submissions at §74.”

Are the points of exceptional public importance?

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

Is an appeal in the public interest?

84. An appeal is not in the public interest. I endorse the submission of the commission on this:

“III. Public Interest

32. In terms of public interest, per Condon (§10), the ‘context is the objective of the

Oireachtas in seeking finality, certainty and expedition in challenges brought by way of

judicial review in planning cases’.

33. The Applicants have failed to establish how certification of any of the points would

be in the public interest. The Court applied settled law – including Coolglass. Where settled

law has been applied, including a recent decision of the Supreme Court, it is not in the public

interest to certify questions. No actual affirmative public benefit or public interest has been

identified or relied upon by the Applicants in this regard. The Applicants’ submissions simply

reagitate already rejected arguments, advance un-pleaded assertions, make new arguments

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

failure to engage with relevant findings in the Judgment. Where the law that was actually

applied by the Court in determining this particular case is not uncertain, as was the case

here, the public interest suggests that an appeal is not warranted.

34. Furthermore, certain points made by the Court in refusing leave to appeal in Condon

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

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

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

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

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

85. I would also endorse the submission of the notice party:

“THE PUBLIC INTEREST LIMB

53. Even if any of the three questions were found to involve a point of law of exceptional

public importance (which is denied), the second limb of the test, that it be desirable in the

public interest that an appeal be taken, is not satisfied.

54. First, the legislative objective of finality in planning judicial review speaks powerfully

against certification in this case. As Barniville J. (as he then was) observed in Rushe at §32,

‘the clear intention of the Oireachtas in enacting s. 50A was that, in most cases, the decision

of the High Court ... will be final and, in most cases, there will be no appeal’. This is not a

case exhibiting the exceptional circumstances that justify departing from that objective.

55. Secondly, the development authorised by the Commission's decision has been

through an extensive process: a planning application to Clare County Council, a response to

requests for further information, clarification on further information, consideration and a

grant of permission, seven third-party appeals to the Commission, inspector's reports, a

Commission direction, the Commission's grant of permission, and two modules of judicial

review proceedings. The Notice Party has already suffered uncompensatable delay and

consequential financial prejudice, as the Judgment itself noted at §149. Further delay

brought about by an appeal would compound that prejudice without any corresponding

benefit to the public interest. On the question of prejudice, see, by analogy, Friends of

Killymooney Lough (No.2) at §§38-41 and Shamsa Doyle v. An Coimisiún Pleanála (No.2)

[2026] IEHC 207 at §§44-48.

56. Thirdly, the climate law framework governing the proposed questions has been

comprehensively addressed by the Supreme Court in Coolglass, very shortly before the

Module 2 hearing in this case: indeed Module 2 in the case was adjourned pending delivery

of the judgment in that case. The law is not in a state of uncertainty in any relevant sense,

given that the Court in this case merely sought to apply Coolglass principles to the issues

raised in this case. Further, the delay and cost incurred to advance questions which have,

in substance, been resolved by the Supreme Court and correctly applied by the High Court

would not serve the common good: Glancré principle 3.

57. Fourthly, and relatedly, the Applicants have identified no concrete affirmative public

benefit from an appeal that could not equally be achieved by the orderly operation of the

Coolglass framework in future cases. The assertion that data centres ‘may be expected to

use 30% of Ireland's electricity by 2030’ (Applicants’ submissions, §2, citing the National

Hydrogen Strategy 2023) is a matter to be addressed in the context of national policy, not

a demonstration of legal uncertainty requiring resolution by the Court of Appeal. Any

affirmative public benefit of an appeal asserted must be backed by evidence, not mere

assertion: Nagle View at §9(vi); Phoenix Rock Enterprises v. An Bord Pleanála [2023]

IESCDET 97 at §22 and §30.

58. Fifthly, having regard to the nature of the project, a large-scale data centre

development which is capable of contributing to Ireland's digital infrastructure and

development objectives specifically provided for in the Clare County Development Plan, and

the potential consequences of significant further delay in the final determination of these

proceedings, the public interest plainly favours finality rather than further protracted

litigation.

59. Finally, as noted by Humphreys J., in refusing leave to appeal in Condon (No.2), at

§63:

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

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

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

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

60. It is respectfully submitted that those comments apply with equal force to the within

application.”

86. The salient features are:

(i) the fact that the principles of law in this area have been laid down by the Supreme

Court in Coolglass – the system operates on the basis that a trial court will apply

principles so identified to individual facts;

(ii) there is no uncertainty in the law;

(iii) the general principle of finality in planning law;

(iv) in the light of that principle, it is not in the public interest to have appellate

procedures in the planning sphere invoked on the basis of the mere application of

settled law to the facts of particular cases, doubly so because of the irrecoverable

cost this imposes on non-cost-protected parties;

(v) no meaningful public interest in an appeal has been identified;

(vi) it is not in the public interest that an appeal be launched on the basis of a failure to

engage meaningfully with the operative Supreme Court decision, a tendentious

mischaracterisation of the trial judgment and/or a reprogramming of a party’s case

by the introduction of new, unpleaded points;

(vii) the project has already undergone significant scrutiny as the notice party points out

– at council planner level, council management, inspector, commission and High

Court level through two modules;

(viii) all statutory actors in the planning process considered that permission should be

granted – the council’s planner, the council, the inspector and the commission;

(ix) further delay imposes uncompensatable financial prejudice and delay on the notice

party;

(x) such prejudice needs to be viewed as particularly significant where the project has

been delayed by two years already (since 30 May 2024) due to these failed

proceedings; and

(xi) in the context of express State policy supporting digitalisation, the public interest in

data infrastructure, as in effect upheld by the commission, and (given that the

project accords with the county development plan) the public interest in plan-led

industrial development as in effect also upheld by the council, is also relevant.

Summary

87. For the avoidance of doubt, preambular matters prior to the first heading of this judgment,

and the following summary, do not take from the operative parts of the judgment and must be read

in a sense consistent with those. In outline summary, therefore:

(i) the points do not properly arise, are not pleaded, impermissibly reconfigure the case

and/or tendentiously misrepresent the principal judgment;

(ii) the points are either essayistic, untethered from actual facts of the case at hand, or

not ones of law but rather of application of law to particular facts;

(iii) the points are not of any, still less exceptional, public importance, in a context where

a definitive judgment on this area has been given by the Supreme Court, the

application of which to particular facts is a matter for trial courts; and

(iv) an appeal would not be in the public interest.

Order

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

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

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

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

appeal;

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

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

viz., that:

(a) the proceedings be dismissed;

(b) there be a recital in the order noting that by consent of the notice party and the

commission, the court is satisfied that conditions 1 and 3 collectively have the

effect that the development is conditioned in accordance with the documentation

submitted with the application which therefore has the effect of requiring CPPAs

as set out in para. 4.48 of the John Spain Associates response document; and

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

module or application in the proceedings having regard inter alia to O. 103 r.

38(1)(b) and/or (c) RSC, or any reserved or adjourned costs not otherwise dealt

with);

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

the proceedings.