High Court dismisses planning application nullity claim but clarifies airstrip permission conditions regarding aircraft substitution.

[2026] IEHC 355

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000066]

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

ACT 2000

AND IN THE MATTER OF AN APPLICATION

BETWEEN

FERGUS HESSION

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

GALWAY COUNTY COUNCIL AND JOHN REDDINGTON

NOTICE PARTIES

Date of impugned decision: 18 November 2024

Date proceedings commenced: 17 January 2025

Date of main hearing: 19 May 2026

Date draft judgment circulated: 2 June 2026

JUDGMENT of Humphreys J. delivered on Friday 5 June 2026

1. This case concerns an established use for an airstrip which has had permission for a largely

continuous period since 2011. The development in this case was found acceptable, subject to a

time-limit, by the council and the inspector and, without a need for such time-limit, by the

commission following a consideration of the relevant legal and policy context and submissions by

stakeholders. The applicant naturally has a merits-based disagreement with the outcome, but the

question for consideration is whether his objections give rise to grounds rendering the decision a

nullity. The negative answer to that does not mean that the proceedings were without result,

because the applicant has established important limitations on the interpretation of the permission

which will be recited in the order being made. He has also highlighted an important point regarding

the need for renewed appropriate assessment (AA) screening by the commission if it varies the basis

of screening by the inspector. That does not lead to any relief however because no breach of that

arises on the particular facts – such basis was not varied here. The fact that the point is therefore

technically obiter does not detract from the step towards clarification of law achieved by the

applicant.

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.

(ii) 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.

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

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

Woulfe, Collins and Donnelly JJ. concurring), the Supreme Court emphasised that

Directive 2011/92/EU of the European Parliament and of the Council of 13 December

2011 on the assessment of the effects of certain public and private projects on the

environment (the EIA directive) does not apply to projects that are not listed.

(iv) In the judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others v

Vlaamse Gewest, C-275/09, ECLI:EU:C:2011:154, para. 24; judgment of 19 April

2012, Pro-Braine ASBL and Others v Commune de Braine-le-Château, intervener:

Veolia es treatment SA, C-121/11, ECLI:EU:C:2012:225, para. 31, the CJEU decided

that environmental impact assessment (EIA) only applies to physical

interventions not changes of use.

(v) In European law on environmental assessments, inter alia Directive 2003/35/EC

arts. 2(2)(b) and 3(4) amending Directive 85/337 and Article 8 of the Aarhus

Convention as part of EU law, that the details of the project can change during

the process as a result, inter alia, of public participation and assessment.

(vi) In the judgment of 12 April 2018, People Over Wind and Peter Sweetman v Coillte

Teoranta, C-323/17, ECLI:EU:C:2018:244, the CJEU decided that mitigation

should not be considered for the purposes of AA screening.

(vii) 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.

(viii) 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.

(ix) 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.

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

I.L.R.M. 401 per Hardiman J. (Geoghan and Denham JJ. concurring), the Supreme

Court decided that there is a presumption (the onus to rebut which falls on a judicial

review applicant) that material has been considered if the decision-taker says so

(see also Rana v. Minister for Justice [2024] IESC 46 (Unreported, Supreme Court,

O’Malley J., 18 October 2024), para. 91 (Dunne, Hogan, Collins and Donnelly JJ.

concurring); An Taisce v. An Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173,

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

JJ. concurring) at para. 137).

(xi) 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.

(xii) 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.

(xiii) 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 applicant as a local resident, and the very considerable expenditure of imagination and effort

made to present the case on his 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/319221) is to use part of an existing

agricultural field as an airstrip for private use (previous PA reg. ref. nos. 17/1784, 10/1003 An Bord

Pleanála appeal ref. no. 07.238257) at Carrowntryla, Dunmore, Co. Galway. It is located at or near

the following: https://maps.app.goo.gl/dNidhDXHNtQDevEZ8 (Google Street View from July 2009),

https://www.google.com/maps/@53.5967322,-8.7293877,583 (aerial view from Google Maps from

2026).

Parties

5. The applicant resides in Dunmore, Co. Galway and he made a submission to the planning

authority (Galway County Council) in respect of the second named notice party’s application for

permission (reg. ref. 2360592) for the proposed development. The applicant appealed the planning

authority’s decision to grant permission for the proposed development to An Coimisiún Pleanála on

7 March 2024.

6. The respondent is An Coimisiún Pleanála.

7. The first named notice party is the planning authority (Galway County Council). The first

named notice party did not attend the hearing.

8. The second named notice party is the developer of the proposed development. The second

named notice party did not attend the hearing.

Facts

9. The site of the proposed development was the subject of a first permission by the

commission following refusal by the council (10/1003 on 13 December 2010). The decision of the

commission is dated 18 May 2011 (ABP ref. PL 07.238257) for five years which expired on 18 May

2016.

10. There was no permission from 18 May 2016 to 13 February 2018.

11. Apparently some time before the second permission was granted, the airstrip was extended

which the applicant calls an unauthorised use of land not covered by the first or any subsequent

permission. The seven-year rule would apparently apply.

12. There was a second permission from the planning authority dated 13 February 2018 (reg.

ref. 17/1784) for the use of part of an existing field as an airstrip for private use by the notice party,

which was also for five years, expiring on 13 February 2023.

13. There was then no permission from February 2023 – February 2024.

14. The notice party made an application for planning permission (reg. ref. 2360592) in respect

of the proposed development to the planning authority on 1 June 2023.

15. The nature of the application was:

“Sought to use part of the existing agriculture field as an airstrip for the applicant’s private

use (previous planning reference numbers 17/1784, 10/1003 and An Bord Pleanala

reference number 07.238257)”

16. Importantly, the application was not for a time-limited permission.

17. On 23 June 2023, an initial submission was made by the applicant to the planning authority

in respect of the application for permission for the proposed development.

18. On 28 June 2023, a further submission was made by the applicant to the planning authority

in respect of the application for permission for the proposed development.

19. On 29 June 2023, An Taisce made a submission to the planning authority in respect of the

application for permission.

20. On 4 July 2023, the Development Applications Unit of the Department of Housing, Local

Government and Heritage made a submission to the planning authority in respect of the application

for permission.

21. The planning authority’s assistant planner and senior executive planner completed an initial

report dated 26 July 2023 in respect of the proposed development, which recommended that further

information be sought from the notice party in respect of the said application.

22. On 26 July 2023, the planning authority sought specified further information from the notice

party in respect of the application for permission.

23. The notice party responded to the planning authority’s request for further information on 23

January 2024.

24. On 16 February 2024, the planning authority’s assistant planner and executive planner

completed a report in respect of the application for permission which recommended that permission

be granted for the proposed development.

25. On 16 February 2024, the planning authority granted the third permission for the proposed

development by way of chief executive’s order (CE order no. P11912).

26. On 7 March 2024, the applicant appealed the planning authority’s decision to the

commission.

27. On 5 April 2024, the notice party responded to the applicant’s appeal.

28. The applicant’s appeal was referred to an inspector who completed a site visit on 7 August

2024.

29. On 22 September 2024, the inspector completed his report in respect of the applicant’s

appeal which recommended that permission for the proposed development be granted.

30. On 14 November 2024, the applicant’s appeal was considered at a commission meeting, at

which, the commission decided to grant permission for the proposed development generally in

accordance with the inspector's recommendation. That decision is recorded in the commission

direction (BD-018223-24) (ABP-319221-24) dated 18 November 2024.

31. On 18 November 2024, and by way of commission order (ABP-319221-24), the commission

granted permission for the proposed development without limit of duration.

Procedural history

32. The applicant issued the within judicial review proceedings on 17 January 2025.

33. Leave to seek judicial review was granted on 17 February 2025.

34. On 10 March 2025, directions were agreed as between the parties and the matter was

adjourned to the list to fix dates on 14 July 2025.

35. On 20 June 2025, the matter was administratively adjourned into the virtual list to fix dates.

36. The respondent filed its statement of opposition on 24 July 2025 which was accompanied

with a verifying affidavit of Mr Kevin Baneham sworn on 23 July 2025.

37. On 3 November 2025, the notice party applied to the court for a hearing date.

38. On the 23 March 2026, solicitors for the second named notice party indicated that the second

named notice party did not wish to participate any further in the proceedings.

39. On 23 March 2026, the matter was listed at the request of the commission in order to obtain

a direction from the court regarding the delivery of the applicant’s legal submissions.

40. On 20 April 2026, the matter was again listed at the request of the commission in order to

obtain a direction from the court regarding the delivery of the applicant’s legal submissions.

41. On 23 April 2026, the applicant delivered his legal submissions.

42. On 11 May 2026, the matter was called on for hearing scheduled for the 19 May 2026.

43. On 14 May 2026, the commission delivered its legal submissions.

44. The matter was listed for hearing on 19 May 2026. Judgment was reserved at the end of

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

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

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

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

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

all concerned.

45. On 2 June 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.

46. 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).

47. 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.

48. 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.

49. 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.

50. 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.

51. The deadline for such comments from the parties was to be 15:00 on Thursday 4 June 2026.

Responses were as follows:

(i) applicant – no response;

(ii) commission – helpfully pointed out some typos (4 June 2026 15:03);

(iii) council – no input, did not participate in hearing; and

(iv) developer – no observations (3 June 2026 17:08).

Relief sought

52. The reliefs sought are as follows:

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

permission for a development consisting of the use of part of an existing agricultural field as

an airstrip which decision, An Bord Pleanála reference no. ABP-319221-24 and planning

register reference no. 23/60592, was made on the 18th day of November 2024;

2. A stay on the implementation of the planning permission reference no. ABP-319221-

24 pending the final determination of the above entitled proceedings;

3. Such Declarations of the legal rights and/or legal position of the Applicants and (if

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

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

4. An Order that Section 50B of the Planning and Development Act, 2000 (as amended)

and/or Section 3 and 4 of the Environment (Miscellaneous Provisions) Act, 2011 and/or

Article 9 of the Aarhus Convention apply to the above-entitled proceedings.

5. Further and/or other relief;

6. Interim and/or interlocutory relief;

7. An Order providing for the costs of and ancillary to these proceedings;

8. A Declaration that the Applicant is entitled to cost protection.”

Grounds of challenge

53. The core grounds of challenge are as follows:

“Domestic Law Grounds

1. The Respondent planning appeals board erred in law in deciding to grant planning

permission in respect of an airstrip in circumstances where the proposed development

represented and sought a continuation of the development permitted under register

reference no. 17/1784 which permission was granted in respect of the airstrip/airport for a

temporary period of five years, and the application was lodged and proceeded with on that

basis.

2. The Board of the Respondent in deciding to grant planning permission for the airstrip

contrary to the recommendation of its own Inspector, who acknowledged the application

was made on that basis and accordingly limited its use, acted in excess of its jurisdiction,

granted a permission for a development which had not been sought in the first instance, and

granted planning permission in excess of their powers and jurisdiction, and accordingly the

determination of the Respondent is ultra vires, invalid and void.

3. The Respondent erred in law in failing to apply Section 34(10)(b) of the Planning

and Development Act in failing to engage with or give any appropriate reasons for

disagreeing with their Inspector to impose, in their recommendation, a limitation of five

years in respect of the proposed development and concluded that they did not consider that

there was ‘any justification to limit the grant of the permission for five years’,

notwithstanding the submission of the Applicant, the planning history of the site and the

nature of the application made, all of which provided an appropriate and proper basis for the

imposition of the said condition. The said determination amounts to an error of law on the

face of the record.

4. The Respondent failed to properly consider or have regard to the submission of the

Applicant in circumstances where the Board could not have concluded that there was ‘no

justification’ for limiting the airport on a temporary basis notwithstanding that the airport

was permitted initially on the basis that it would only operate for a period of 5 years and

that decision was continued in the subsequent permission, and the application made

specifically sought to incorporate these decisions as the basis of this application. The

Applicant had identified a range of impacts both on the Applicant’s dwelling house, the farm

buildings, on his farm lands, in terms of noise, visibility, invasion of privacy, health impacts,

pollution, stress and human health and had set out a detailed planning history by reference

to the previous planning considerations and decisions. He set out the history of unauthorised

development in respect of archaeological protection and the concerns in respect of the

planning authority who have been afforded unrestricted rights in respect of the use of the

airport by virtue of condition 3. Accordingly, the Respondent failed to properly consider the

Applicant’s submission, failed to have any or any appropriate regard to the said submission

and the said decision is contrary to fair procedures, to natural and/or constitutional justice,

and to the principles of audi alteram partum and is accordingly invalid and void.

5. The Respondent erred in law in determining an application that failed to comply with

the Planning and Development Act 2000 and the Planning and Development Regulations

2001, and in particular the public notice fails to comply with Articles 16, 17, 18, 19 and 20

of the Planning and Development Regulations 2001 (Amended), fails to comply with Article

22 of the Planning and Development Regulations in respect of the maps and drawings that

were submitted identifying the land of the structure to which the application relates and the

boundaries thereof, and in particular all of the structures that adjoin and/or is adjacent to

the land to be developed in accordance with the obligations of Article 22(2)(b) of the Planning

and Development Regulations 2001.

6. A plan submitted in response to further information which identified the incoming

and outgoing flight path misrepresents the location of a number of dwellinghouses

immediately adjacent to the runway. There are two dwellinghouses which immediately

adjoin the runway which are shown on the documentation received on the 23/01/2024 as

being located approximately 250m further north from their actual location, and at a

significantly further remove in planning terms. This misrepresentation, whether deliberate

or negligent, is significant. Accordingly, the plans and particulars which formed the basis of

assessment does not comply with mandatory obligations under the Planning and

Development Regulations 2001, materially misdescribes the context of the development

both in respect of noise, impacts, visual impacts and the effect on residential amenity and

as such is to render the application invalid and the decision ultra vires the Respondent being

contrary to the requirements of the regulations, invalid and void.

European Law Grounds

7. The Respondent erred in law in determining a preliminary examination under Council

Directive 2011/92EU without the requisite information required in Schedule 7A of Planning

and Development Regulations 2001, and failing to consider the required information in

accordance with their obligations as competent authority under Schedule 7 of the Planning

and Development Regulations 2001. Accordingly, the said application reference ABP-

319221-24 was not carried out in accordance with the Respondent’s obligations under the

requirements of European Community law.

8. The Respondent erred in law in the determination that for the purposes of Council

Directive 2011/92EU that there was no real likelihood of significant effects on the

environment arising from the proposed development. As set out in Section 7.3.11 of the

Inspector’s Report, in circumstances where the considerations applied namely that there

was no runway on site and that there was no construction or excavation associated with the

development is wrong as a matter of law and as a matter of fact, and where no consideration

whatsoever was given to the second limb of the definition of development, namely use and

where significant effects by virtue of the said use would arise both in relation to noise, impact

on wildlife, impact on residential amenity, pollution and in particular emissions to air. The

Respondent thus erred in this determination. The range of factors required to be identified

in any consideration of likely effects on the environment was not addressed anywhere by

the Respondent required by the requirements of Council Directive 2011/92 EU and are the

obligations contained in the Planning and Development Regulations 2001.

9. The Respondent erred in law in the manner in which it carried out the Stage 1

screening for the purposes of Council Directive 92/43EEC which screening is set out at

paragraph 7.4 of the Inspectors Report and where, notwithstanding that the site is located

approximately 1400m south of Lough Corrib SAC, no consideration is included of the said

conservation objectives of the said European Site, no consideration is identified in respect

of the use of the airstrip/airport by virtue of noise, disturbance or general impact, and

accordingly the said assessment for the purposes of Council Directive 92/43EEC failed to

comply with the obligations in respect of a Stage 1 assessment and where the Board of the

Respondent failed to address the limitation period of the Inspector and who determined the

application without any reference to its obligations under the Habitats Directive/ Council

Directive 92/43EEC.

10. The Decision of the Respondent the impose condition 3 is void for uncertainty in

circumstances where the condition limits the use of the airport to a single aircraft unless

otherwise agreed in writing with the planning authority, but in no way limits the matters

that may be agreed with the planning authority relative to the numbers, type, frequency of

planes. As a consequence it could not have assessed the impact of condition 3 for the

purposes of Council Directive 92/43EEC, 2011/92EU and/or the requirements of the Planning

and Development Act 2000, and accordingly the condition is ultra vires the powers of the

Respondent, contrary to the requirements of the said Environmental Impact Assessment

Directive and Habitats Directive, is invalid and is void.

11. Condition 3 which permits the airport to be used not only permanently, but for

whatever use is agreed between the planning authority and the Board, and without any

facility to refer the matter to the planning appeals board or for the Applicant to be aware of

the nature of any submission made or agreement entered into and for no such agreement

to be published is contrary to fair procedures, contrary to the scheme of the Planning and

Development Act, the scheme of the Environmental Impact Assessment Directive and/or the

Habitats Directive which does not permit any public participation in the said process, any

procedure that would subject the said agreement to the mandatory obligations under the

Environmental Impact Assessment Directive given the nature and class of the proposed

development which is subject to an Environmental Impact Assessment, and assessment for

the purposes of the Habitats Directive, and accordingly the said decision is ultra vires the

Respondent, invalid and void.”

The impugned decision

54. The impugned decision provides as follows:

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

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

set out below.

Reasons and Considerations

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

development would be in accordance with the provisions of the Galway County Development

Plan 2022 to 2028 namely Policy Objective ARC 4 and ARC 5 with respect to Archaeological

Heritage and Section 7.9.2 with respect to control of noise pollution. The proposal would

not be detrimental to amenities of neighbouring residential development in terms of noise

or visual impact owing to the low intensity use proposed. The proposed development would

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

Conditions

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

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

received by the planning authority on the 23rd day of January 2024, except as may otherwise

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

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

writing with the planning authority prior to commencement of development and the

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

Reason: In the interest of clarity.

2. The airstrip hereby permitted shall not be used for commercial purposes or any other

purpose other than private and incidental to the enjoyment of the dwelling house.

Reason: In the interest of orderly development.

3. The airstrip shall only be utilised by the Applicant's aircraft (serial number 2843673),

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

Reason: In the interest of controlling the extent and intensity of use of the proposed air strip

and limiting the impacts on residential amenities and agricultural activities in the vicinity of

the development site.

4. There shall be no depositing of grass clippings or other vegetation within and around a

25-metre radius of the nearby ringfort (Sites and Monuments Record (SMR) code GA017-

048).

Reason: To ensure the continued preservation of features of archaeological interest.”

Some general considerations

55. 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

56. 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.

57. 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.,

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.

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

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

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

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

Court, 19 October 2023) at §117.

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

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

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

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

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

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

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

Odum v. Minister for Justice [2023] IESC 3, [2023] 2 I.L.R.M. 164 per O’Donnell C.J.

(Charleton, Woulfe, Hogan and Murray JJ. concurring); Sweetman v. Environmental

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

2025).

Pleadings

58. 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.

EIA generally

59. Some relevant legal principles regarding EIA include the following:

(i) EIA only applies to projects specifically listed in the directive. In Concerned

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

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

attempts to read into the EIA directive projects that are not listed. Important as the

specific type of project in that case was (solar farms), the decision illustrates a

broader principle – EIA only applies to specifically listed categories of project. This

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

259 (Unreported, High Court, 29 May 2020). The order of 10 July 2008, Salvatore

Aiello and Others v Regione Lombardia and Others, C-156/07, ECLI:EU:C:2008:398,

which is belatedly relied on by the applicant in fact totally supports that position in

that it finds that only projects specifically listed in the directive are covered

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

the assessment of the effects of certain public and private projects on the

environment, as amended by Council Directive 97/11/EC of 3 March 1997, must be

interpreted as meaning that it does not require any project that may have a

significant effect on the environment to be made subject to the impact assessment

provided for in that directive, but only projects of a kind listed in Annexes I and

II of the directive, as provided in Article 4 of the directive and subject to Article

1(4) and (5) and Article 2(3) of the directive.”

(ii) EIA only applies to physical interventions not changes of use – “renewal of an

existing permit (to operate an airport) cannot, in the absence of any works or

interventions involving alterations to the site’s physical aspects, be classified as a

‘Project’ (Case C-275/09, Brussels Hoofdstedelijk Gewest and others, paragraph 24;

Case C-121/11, Pro-Braine and Others, paragraph 31)” (Environmental Impact

Assessment of Projects - Guidance on Screening (Directive 2011/92/EU as amended

by 2014/52/EU) (European Union, 2017)

(https://circabc.europa.eu/ui/group/3b48eff1-b955-423f-9086-

0d85ad1c5879/library/a9f8a19a-fba5-440f-abf2-

29d3f9ed7a63/details?download=true), p. 26).

Reasons

60. 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.

Onus of proof

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

previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J. at 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

does not.

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

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

on face of material, that AA/EIA was defective, or that there were factual

circumstances requiring a decision-taker to consider any other autonomous

obligation, lies on the applicant: R v. Crischuk, 2010 BCSC 716 (Barrow J.) at paras.

36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141; Reid v. An Bord Pleanála (No.

1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021),

para. 19; An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173,

[2022] 1 I.L.R.M. 281 per Hogan J. at para. 124 (O'Donnell C.J., Dunne, Charleton

and Woulfe JJ. concurring); Carrownagowan Concern Group v. An Bord Pleanála

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

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

(Charleton, Collins and Donnelly JJ., 27 January 2025)); Salmon Watch Ireland,

Inland Fisheries Ireland, Sweetman & Ors. v. Aquaculture Licences Appeals Board &

Ors. [2024] IEHC 421 (Unreported, High Court, Holland J., 12 July 2024), §1097;

Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported,

High Court, 1 November 2024) at para. 115; Minoa Ltd v. An Bord Pleanála [2024]

IEHC 704 (Unreported, High Court, Heslin J., 10 December 2024), para. 333; Ó

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

19 September 2025) at 55; Oxigen v. An Coimisiún Pleanála [2025] IEHC 632

(Unreported, High Court, 19 November 2025) (for example, in relation to proving

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

something that the decision-taker was autonomously required to consider, (ii) patent

flaw on the face of the materials, or (iii) other legal error, inadequate consideration

or failure to dispel scientific doubt has to be established by admissible evidence

(normally expert evidence) in the judicial review showing either that reasonable

doubt was created by the material before the decision-taker at the time (albeit not

limited to what was adduced by the applicant specifically), or that such material

even if uncontradicted would on its face have created doubt in the mind of a

reasonable expert: An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021]

7 JIC 0205 (Unreported, High Court, 2 July 2021) at §7 and §8; Carrownagowan

Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20

May 2024) at §191(v), leave to appeal refused: Carrownagowan Concern Group v.

An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January

2025); Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7

October 2024) at §§ 73 and 105; Roache v. An Bord Pleanála [2024] IEHC 311

(Unreported, High Court, Phelan J., 21 May 2024) at §117; Ryanair DAC v. An Bord

Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February 2025) at §64 et seq.;

Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11

April 2025). As noted in Nagle View Turbine Aware Group v. An Bord Pleanála [2024]

IEHC 603 (Unreported, High Court, 1 November 2024), summarised in the non-

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

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

scientific and factual shortcomings in EIA or indeed in an Appropriate Assessment,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

at §40-§41.

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

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

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

inadmissible on standard evidential principles insofar as matters of opinion are

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

Court, 11 April 2025).

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

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

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

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

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

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

conflict will be resolved against the opposing party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Inadequacy of assessments

62. 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

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats

and of wild fauna and flora (the 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).

Discretion

63. 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 2009) at 79 per Fennelly J. (Macken and Peart JJ. concurring).

2. Likewise the importance of the countervailing legal value being

protected by the impugned decision is a factor in the balance,

whether that be a value enshrined in law generally, the ECHR as

transposed, the Constitution or EU law – as cited above, the court

can consider whether there is “an important constitutional or legal

value of sufficient weight to warrant not making an order otherwise

justified” (Clarke J. in Christian v Dublin City Council [2012] IEHC

163, [2012] 2 I.R. 506, at 567) as cited with approval by Donnelly

J. in Amariei at 27.

3. Prejudice or the lack of it to the applicant or anyone else (see

O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal,

1 July 2021) at 43: “grounds relating to the impact a remedy will

have on others (such as where the grant of relief would represent

an unwarranted interference with the settled rights or expectations

of third parties)”).

4. In assessing proportionality it follows that matters regarding the

seriousness of the error such as the extent of the non-

compliance, whether the error was once-off, whether the issue is

purely historic and cannot reoccur, the level of deliberation involved

in the error and the extent to which reasonable steps were taken to

prevent or identify such an error, whether the error was rectified

promptly when it came to light (if capable of rectification), whether

there is a pattern of non-compliance, and any other relevant

circumstances may be relevant (see also Reid v. An Bord Pleanála

(No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High Court,

24 January 2024) para. 134).

Whether the points were made at the appropriate time

64. 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:

“1. 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:-

Respondent’s Position:

The Commission contends that the following assertions do not form part of the Applicant’s

pleaded case as per his Statement of Grounds and it is the Commission’s position that the

Applicant is precluded from now advancing same in seeking to impugn the Commission’s

Decision:-

(a) in the context of the Applicant’s complaints under Core Ground 1, the Commission

failed in their obligation to properly and/or meaningfully engage with the Inspector’s Report,

the submissions made in respect of the application and the application documentation (at

§18 of the Applicant’s submissions), and

(b) in the context of the Applicant’s complaints under Core Ground 1, the Commission

failed to meaningfully engage with the application made to it and its decision to grant

permission without the condition in respect of the temporary duration of the permission is

fundamentally an error of law and of fact (at §18 of the Applicant’s submissions).

Applicant’s Position:

(a & b) The contention of the Commission in this regard is not understood, as the matter

complained of is referred to as being ‘Core Ground 1’, and therefore, has been pleaded.

These are matters for the hearing of the action and are not matters to be argued in a

‘Statement of Case.’ Furthermore, the point raised at 1(b) could not possibly have been

raised in the process, i.e. the duration of the permission, as it was unforeseeable that the

Commission would grant permission for an unlimited period where a period of 5 years had

been consistently granted in the earlier permissions. For the record, this matter was

pleaded.

2. Points contended to have been made in the process, but not pleaded:-

(a) N/A

3. Points contended to be referred to narratively/contextually in the pleadings but

without any properly formulated legal plea:-

(a) Respondent’s Position:

Core Ground 1:- The plea at E15 of the Statement of Grounds that Condition No. 3 of the

Commission’s Order ‘significantly expands potentially the impact of the airport’ does not

comply with Order 84 Rule 20(3) and/or Order 103, Rule 14(3) RSC and the requirements

of specificity and particularity of pleadings. Further and in this regard, there is no route-

map as between the complaint made and the relief sought (see at §23 of the Statement of

Opposition).

Applicant’s Position:

(a) The Respondent’s position in this regard is rejected. It is absolutely clear on its face and

as pleaded in Core Ground 1 and E15 that the effect of condition no. 3 of the Commission’s

Order significantly expands potentially the impact of the airport. There is absolute clarity in

the stark and identifiable difference of impact and effect, and this matter is clearly

particularised and beyond any ambiguity. It is difficult to understand how the direct nexus

between the vast difference of effect between the permission granted and the ability to vary

same by condition 3 is viewed by the Commission as not being a complaint which is linked

to the relief sought.

Respondent’s Position:

(b) Core Ground 3:- The plea at E22-E23 of the Statement of Grounds purports to

impugn the Commission’s Decision to grant permission for the proposed development by

reference to the EIA Directive and/or seeks to impugn the Commission’s preliminary

examination in respect of the proposed development for the purposes of the EIA Directive

and these pleas are unrelated and bear no nexus to Core Ground 3 of the Statement of

Grounds. In turn, these pleas do not comply with Order 84 Rule 20(3) and/or Order 103

Rule 14(3) RSC and cannot form the basis of any grant of relief sought under Core Ground

3 (see at §36 of the Statement of Opposition).

(c) Core Ground 3:- The plea at E23 of the Statement of Grounds is vague and does not

comply with the requirements of Order 84 Rule 20(3) and/or Order 103 Rule 14(3) RSC. In

particular, the plea that the Commission ‘failed to formulate a test’ is unclear and did not

permit a proper reply (see at §44 of the Statement of Opposition).

(d) Core Ground 3:- Insofar as the Applicant pleads at E23 of the Statement of Grounds

that the Commission failed to conduct a preliminary examination in respect of the Habitats

Directive, the said plea is both misconceived and does not comply with Order 84 Rule 20(3)

and/or Order 103 Rule 14(3) RSC . There is no such concept as ‘the preliminary examination

in respect of Council Directive 92/43/ECC’. A screening for Appropriate Assessment was

completed by the Commission in respect of the proposed development (see at §45 of the

Statement of Opposition).

Applicant’s Position:

(b, c & d) The pleas at E22/E23 are to be read in conjunction with Core Ground 3, and when

read together the temporal nature of the granting of a perpetual permission, not limited to

5 years as set out in Core Ground 3 has the inevitable impact and effect that the Respondent

failed to comply with its obligations under Schedule 7 of the Planning and Development

Regulations, 2001. The relief sought in terms of Core Ground 3 is entirely coherent. In

relation to points (c) and (d) it appears that the Respondents misunderstand the basis of

the Core Ground and the reasons given, namely the failure of the Commission to give

appropriate reasons for disagreeing with the Inspector for the imposition of a limit of 5 years

on the permission. It should be noted at paragraphs E18, E19 and E20 are also to be read

with Core Ground 3 in relation to the failure to give reasons by the Respondent.

Respondent’s Position:

(e) Core Ground 4:- The Statement of Grounds contains no particulars relating to Core

Ground 4, contrary to the requirements of Order 84, Rule 20(3) and/or Order 103 Rule 14(3)

RSC and/or High Court Practice Direction 126 (see at §49 of the Statement of Opposition).

Rather, the Applicant simply restates Core Ground 4 in his particulars for Core Ground 2 and

4 as per his Statement of Grounds. (see at §49 of the Statement of Opposition).

Applicant’s Position:

(e) Paragraphs E18, E19 and E20 both refer to Core Ground 2 and Core Ground 4, as both

of these grounds are linked.

Respondent’s Position:

(f) Core Ground 4:- The Statement of Grounds does not disclose how the Planning

Authority allegedly has ‘been afforded unrestricted rights in respect of the airport by virtue

of condition 3’ as per Core Ground 4 as pleaded. This plea does not comply with Order 84,

Rule 20(3) and/or Order 103 Rule 14(3) RSC (see at §51 of the Statement of Opposition).

Applicant’s Position:

(f) The Planning Authority has been afforded unrestricted rights in respect of the airport by

virtue of Condition 3 in terms of granting a permission into perpetuity rather than a 5 year

permission, and it is plain common sense that the terms of the permission into perpetuity

is, within the envelope of the permission itself, unrestricted on account of the perpetual

nature of the permission granted. Condition 3 of the permission directs that the

development is to be used only for the developer’s personal aircraft unless otherwise agreed

in writing with the Planning Authority. This condition affords unfettered control without any

participation of the applicant in these proceedings to have any input whatsoever to potential

unrestricted further development of this airfield.

Respondent’s Position:

(g) Core Ground 5:- Insofar as the Applicant claims that the Notice Party’s application

for permission failed to comply with Articles 16,18 and 20 of the 2001 Regulations, same

has not been adequately pleaded or particularised under Core Ground 5 of the Statement of

Grounds contrary to the requirements of Order 84 Rule 20(3) and/or Order 103 Rule 14(3)

RSC and cannot form the basis of the grant of any of the reliefs sought (see at §58 of the

Statement of Opposition).

Applicant’s Position:

(g) This complaint is not understood. Please see paragraphs E25, E26 and E27 of the

Statement of Grounds referring to Article 17, Article 19, Article 22 and Article 23 of the

Planning and Development Regulations, 2001.

Respondent’s Position:

(h) Core Ground 6:- Insofar as the Applicant pleads at Core Ground 6 and/or E28 of the

Statement of Grounds that the plans and particulars of the proposed development which

formed the basis of the Commission’s assessment materially mis-describe the context of the

proposed development both in respect of noise, impacts, visual impacts and the effect on

residential amenity such as to render the Notice Party’s application for permission invalid,

such pleas do not comply with Order 84 Rule 20(3) and/or Order 103 Rule 14(3) RSC and

cannot form the basis of any grant of relief (see at §70 of the Statement of Opposition).

(i) Core Ground 6:- The plea at E29 of the Statement of Grounds is premised on the

contention that it was necessary for the Notice Party’s application for planning permission to

address alleged unauthorised development and this plea does not comply with Order 84 Rule

20(3) and/or Order 103 Rule 14(3) RSC (see at §71 of the Statement of Opposition).

Applicant’s Position:

(h & i) Core Ground 6 refers to the misrepresentation of the location and number of

dwellinghouses adjacent to the runway. This material misdescription, together with the

failure to record unauthorized development, in particular the extension of the runway as

described at para E29, are both adequately pleaded grounds and particulars, sufficient to

establish the fundamental misdescriptions in the application, and indeed these matters are

further referred to at para. F38 of the Statement of Grounds under ‘Factual Background’,

and are also treated of in detail by the Applicant in his Affidavit dated.

Respondent’s Position:

(j) Core Ground 7:- The plea at E31 of the Statement of Grounds that Condition 3

purportedly imposes no limitation in terms of what might be agreed in respect of the use of

the proposed airstrip which the Applicant claims is contrary to the public participation

requirements of the EIA Directive and/or contrary to the ‘obligation to participate in any

such decision making process’ and/or contrary to the ‘requirements to be notified of the

decision in that regard so as to bring any proceedings in respect of any such review as is

entitled to be made under the EIA Directive’ bear no nexus to Core Ground No.7 and cannot

form the basis of any grant of relief thereunder (at §86 of the Statement of Opposition).

Applicant’s Position:

(j) Once again, the Respondent appears to fail to appreciate the enormous significance which

exists between a permission granted into perpetuity and one which is granted only for a

period of 5 years, and the permanent effects that a permanent permission have as opposed

to the temporary effects that a limited permission has. With respect, such a distinction

ought to be patently self-evident.

Respondent’s Position

(k) Core Ground 8:-Core Ground 8 and/or E32 of the Statement of Grounds has not

been adequately pleaded or particularised contrary to the requirements of Order 84 Rule

20(3) and/or Order 103 Rule 14(3) RSC (see at §91 of the Statement of Opposition). E32

of the Statement of Grounds repeats Core Ground 8 which makes bare and/or broad

assertions and no particulars are provided in respect of same.

Applicant’s Position:

(k) Core Ground 8 is adequately pleaded, and indeed the Core Ground internally references

the particularization of same by specifically referring to the considerations applied in the

Inspector’s Report at Section 7.3.11 and by specifically referring to no consideration having

been given to the second limb of the definition of development. The Ground is both

adequately pleaded and particularized.

Respondent’s Position:

(l) Core Ground 11:- Core Ground 11 and/or E35 of the Statement of Grounds seeks to

impugn Condition No. 3 to the Commission’s Order which is a limited condition on a point of

detail under s.34(5) of the 2000 Act. The inclusion of such a condition is not inconsistent

with the EIA Directive and/or the Habitats Directive and no such inconsistency has been

properly pleaded by the Applicant (see at §114 of the Statement of Opposition).

(m) Core Ground 11:- Core Ground 11 and/or E35 of the Statement of Grounds has not

particularised how the lack of an expressed facility in Condition No.3 to refer the matter to

the Commission in default of agreement as between the Notice Party and the Planning

Authority has resulted in the Commission breaching its obligations under the 2000 Act or

otherwise. In turn, the Applicant’s pleas in this regard are contrary to the requirements of

Order 84 Rule 20(3) and/or Order 103 Rule 14(3) RSC and cannot form the basis of the

grant of any of the reliefs sought (see at §115 of the Statement of Opposition).

Applicant’s Position:

(l & m) Condition 3 of the Commission’s Order is not a limited condition on a point of detail

under Section 34 of the 2000 Act. It provides potentially unlimited scope to vary the nature

of the aircraft, the usage of same, and indeed the ancillary uses of the airfield solely on the

basis of written agreement between the developer and the Planning Authority. This goes

way beyond the scope of a limited condition, and the inconsistencies of such a condition

under the EIA Directive and the Habitats Directive is adequately particularised at para 36

and indeed is self-evident. This matter is more appropriately to be addressed at the hearing

of the case.

4. Points contended to have been pleaded but not made by the applicant in the

process:-

Respondent’s Position:

(a) Core Ground 1 (at E13 of the Statement of Grounds):- The Applicant’s appeal to the

Commission did not contend that, if the Commission granted permission for the proposed

development, such a grant of permission ought to be the subject of a condition that the use

of the subject lands as an airstrip shall cease on or before the expiration of five years from

the date of the grant of such permission on the basis that the principles of res judicata apply

given the Commission’s decision dated 18th May 2011 (ABP Ref. PL 07.238257) and the

Planning Authority’s decision dated 13th February 2018 (Reg. Ref 17/1784). Having not

asserted that position before the Commission, the Applicant cannot purport to impugn the

decision of the Commission by reference to that issue (see at §15 of the Statement of

Opposition)

Applicant’s Position:

(a) This contention is rejected. The Commission is attempting to extend a level of foresight

on behalf of an ordinary member of the public which is both unreasonable and unjustified.

The Commission and Planning Authority in 2 previous permissions of 2011 and 2018 imposed

a 5 year limitation, and an ordinary member of the public cannot be expected to anticipate

an unexplained inconsistency in the actions of a Public Authority. The Commission is

suggesting a level of prescience on behalf of the Applicant which is simply impossible to

comply with as no person, let alone an ordinary member of the public with no experience of

the planning process, could be expected to engage in a process of guesswork as to how the

Commission would formulate its decision.

The Applicant could never be expected to anticipate that the Commission would overrule the

recommendation of its Inspector which recommended that the permission would have a

duration of 5 years, and much less so could the Applicant be expected to anticipate that the

Commission would overrule its Inspector without providing any reasoning for doing so.

Respondent’s Position:

(b) Core Ground 2/4 (at E17 of the Statement of Grounds):- The Applicant did not assert

before the Commission that the Planning Authority had been afforded ‘unrestricted rights in

respect of the use of the airport’ by virtue of Condition No. 5 of the Chief Executive’s Order

dated 16th February 2024 (now Condition No. 3 of the Commission’s Order). The Applicant

now purports to impugn the Commission’s Decision, the subject matter of the within

proceedings, on the basis of same, by reference to Core Ground No. 4, and the Applicant is

not entitled to do so (see at §51 of the Statement of Opposition).

Applicant’s Position:

(b) The Applicant, in his comprehensive submission to the Commission following the decision

of the Planning Authority, and specifically raised issues of the effects of noise of the aircraft

on his household, the type of aircraft, the flight path of the aircraft and the frequency of

flights, all of which are directly relevant to the potential unrestricted rights in respect of the

use of the airport and indeed the intensification of the use of this development by aircraft

which can arise, directly out of condition 3 solely by way of written agreement between the

developer and the Planning Authority.

Respondent’s Position:

(c) Core Ground 5 (E5 of the Statement of Grounds):- The Applicant’s appeal to the

Commission did not raise the issue and/or address the Notice Party’s purported non-

compliance with Article 16,17, 18 and 20 of the 2001 Regulations with respect to the Notice

Party’s application for permission. The Applicant now purports to impugn the Commission’s

Decision, the subject matter of the within proceedings, on the basis of same, by reference

to Core Ground No. 5, and the Applicant is not entitled to do so (see at §57 of the Statement

of Opposition).

Applicant’s Position:

(c) This contention is rejected by the Applicant. The Applicant specifically refers on pages

5, 6 and 7 of his appeal to the Commission to the developer’s disregard of the planning laws,

and indeed non-compliance with the planning laws to include unauthorised development.

5. Points contended to have been both made in the process and also pleaded:-

Respondent’s Position:

(a) Without prejudice to the foregoing objections, the Commission’s position in respect

of the Applicant’s pleaded case has been set out in the Commission’s Statement of

Opposition and its legal submissions.

Applicant’s Position:

(a) The Applicant’s position in respect of the pleaded case is set out in sufficient detail

in the Statement Required to Ground Application for Judicial Review setting out the Core

Grounds, the particularization of same and the Factual Background, together with the

grounding Affidavit of the Applicant supported by exhibits attached thereto, and also in the

Legal Submissions as filed.”

65. As regard pleadings the overall context is as follows. 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.”

66. These issues can be disposed of as follows:

(i) The submission under core ground 1 that the commission failed in their obligation

to properly and/or meaningfully engage with the inspector’s report, the submissions

made in respect of the application and the application documentation (at §18 of the

applicant’s submissions) is not adequately pleaded under core ground 1.

(ii) The submission under core ground 1 that the commission failed to meaningfully

engage with the application made to it and its decision to grant permission without

the condition in respect of the temporary duration of the permission is fundamentally

an error of law and of fact (at §18 of the applicant’s submissions) is not adequately

pleaded under core ground 1. This is in substance pleaded under core ground 3.

(iii) The plea at sub-ground 15 of the statement of grounds that condition 3 of the

commission’s order “significantly expands potentially the impact of the airport” is

acceptably clear in its context in that it implies an unlawfully wide discretion being

conferred on the council via condition 3.

(iv) As regards sub-grounds 22 and 23, I agree that the placing of these under the

heading of core ground 3 is misconceived and that, as the commission contends,

have “no nexus” to that ground. If they are placed in the context of core grounds 7

to 11 they make somewhat more sense and can be considered in that context subject

to the following.

(v) I agree with the commission that the complaint that the commission “failed to

formulate a test which complied with its obligations under Schedule 7 of the Planning

an [sic] Development Regulations” is too vague to comply with pleading

requirements especially in an EU law context. What test and what process of

formulation are we talking about? The tests for EIA are set out in EU law and are

not up for formulation or reformulation by the commission in any given case.

(vi) The claim in sub-ground 23 that “In failing to consider how the preliminary

examination was required to be conducted and in failing to consider what information

was required in respect of the receiving environment the Respondent failed to

conduct the preliminary examination in respect of Council Directive 92/43EEC and

in accordance with its mandatory obligations” is misconceived and can be rejected

in limine by reason of a failure to plead how such a non-existent procedure arises.

There is no preliminary examination procedure under the directive referred to.

(vii) Insofar as certain core grounds particularly core ground 4 do not have significant or

any particulars, that just has the effect that the applicant is limited to what is

acceptably clear from the core ground itself. There is no absolute rule that all core

grounds must have sub-grounds if they are acceptably clear in themselves.

(viii) As regards the complaint that it has not been particularised how the planning

authority allegedly has “been afforded unrestricted rights in respect of the airport

by virtue of condition 3” as per core ground 4, this can be read in the context of the

other pleas as being a reformulated complaint about the alleged unlawfully wide

discretion afforded to the council pursuant to condition 3.

(ix) The unparticularised complaint under core ground 5 that the commission approved

“an application that failed to comply with the Planning and Development Act 2000

and the Planning and Development Regulations 2001, and in particular the public

notice fails to comply with Articles 16, 17, 18, 19 and 20 of the Planning and

Development Regulations 2001 (Amended),” fails to comply with pleading

requirements. Only the specific provisions cited and explained on the pleadings

could be the basis for relief.

(x) Insofar as core ground 6 and/or sub-ground 28 contain generalised complaints of

mis-description, those are inadequately particularised (such complaints need to be

a lot more specific) except in relation to the particular matters mentioned regarding

the two allegedly incorrect locations for houses, what the applicant refers to as “the

misrepresentation of the location and number of dwellinghouses adjacent to the

runway”.

(xi) I agree with the commission that the alleged obligation on the commission to

address unauthorised development at sub-ground 29 is not sufficiently pleaded.

What is missing is the basis of this obligation – is it meant to be statute (if so what

statute) or administrative law, or public policy, and what is the extent of the

obligation – is it an obligation to ensure that all unauthorised development in the

redlined area is addressed, or something more or less than that? This is insufficiently

clear on the pleadings. I will nonetheless consider the merits of the argument below

but formally it fails as inadequately pleaded.

(xii) It is not clear to me that sub-ground 31 bears any real nexus to core ground 7. But

core ground 7 is fundamentally misconceived in any event for reasons outlined

below. There is no stateable EIA argument in this case.

(xiii) In themselves core ground 8 and sub-ground 32 do contain a discernible point, but

it is wholly misconceived in any event as EIA does not apply here.

(xiv) I agree that core ground 11, repeated at sub-ground 35, is very light on particulars.

The AA issue can however be given some meaning if pieced together in tandem with

statements elsewhere in the pleadings and I will deal further below with that

complaint. Core ground 11 in its generalised form adds little however.

(xv) It is correct that the applicant when appealing did not argue for a five-year limitation.

However given that there was no first-party appeal, one would be inclined to the

view that it would be too onerous to rule out the applicant’s point merely on the

basis that he did not anticipate the outcome that the five-year limit would be

dropped. However no final decision on that is necessary as will become apparent

below given how the issue is disposed of on the merits.

(xvi) As regards the applicant’s failure to contend that what is now condition 3 conferred

“unrestricted rights”, the condition still has to be interpreted. That interpretation

does not change depending on the extent of the applicant’s submissions. It is not

necessary in the light of the interpretation adopted in the judgment below to

consider whether relief should be refused since no relief arises on foot of that

interpretation.

(xvii) Insofar as there are generalised references to non-compliance with planning law in

the process, these relate to the alleged unauthorised development, not breaches of

the planning regulations. In the absence of any point as to the planning regulations

having been raised and/or of this making any demonstrable difference to the

applicant or compromising the process overall it would be inappropriate to grant

relief on such a basis in any event.

67. We can turn now to the specific grounds.

Domestic law issues

Core ground 1 – limited time of the previous permission

68. Core ground 1 is:

“1. The Respondent planning appeals board erred in law in deciding to grant planning

permission in respect of an airstrip in circumstances where the proposed development

represented and sought a continuation of the development permitted under register

reference no. 17/1784 which permission was granted in respect of the airstrip/airport for a

temporary period of five years, and the application was lodged and proceeded with on that

basis.”

69. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

The application before the Respondent, who appointed an Inspector to advise, describes the

proposed development the sub-matter of application ABP-319221-24 as for the ‘continued

use of the field as an air strip. The proposed development relates to formerly approved

planning application no. 17/1784 which received a temporary permission for 5 years for the

use of the field as an airstrip.’ The proposed development as submitted was specifically

referenced to the previous permission granted. The proposed development was first granted

permission under register reference 10/1103 where the permission granted by the

Respondent Planning Appeals Board under reference no. 07/238257 granted the permission

for a temporary period of 5 years. There was no change in circumstances that would warrant

the departure from this decision and the principles of res judicata apply relative to that

decision in the absence of any change of circumstances.

Subsequent to that decision, planning permission 17/1784 was applied for and the planning

authority granted planning permission on the same basis. The said application the sub-

matter of these proceedings expressly references in the documentation lodged both of these

decisions and represented on that basis that the application was made on a similar basis to

these previous decisions in respect of which the Second Notice Party made no objection.

The Applicant in the appeal made to the Board made on his behalf by Dolan & Associates

proceeded on the basis that the application is for a temporary period and both the submission

of the Applicant in these proceedings and the assessment by the Inspector is conducted on

the basis and determined both in respect of the Planning and Development Act, the Habitats

Directive and the Environmental Impact Assessment Directive that the permission is granted

on a temporary basis. Accordingly, the proposed decision to grant full permission in

accordance with the plans and permissions lodged and particularly condition 3 which

significantly expands potentially the impact of the airport is ultra vires the Respondent,

invalid and void.

The Respondent Planning Appeals Commission has failed in their obligation to properly

and/or meaningfully engage with the Inspectors Report, the submissions made in respect of

the application and the planning application documentation. The decision of the Respondent

Planning Appeals Commission to grant permission for a development, which is in effect a

totally different development than what was applied for in the application for permission,

and in effect by virtue of the decision made, as opposed to what was applied for, established

a use as a permanent airstrip/airport on the lands as opposed to the personal use of the

lands to the applicant for planning permission for a temporary period, and was a

fundamentally different development to that in respect of which the submissions and/or

observations lodged by the Applicant and affected parties, and is a totally different

development than was considered by the Inspector. The Respondent Commission failed to

meaningfully engage with the application made to it and its decision to grant permission

without the recommendation condition in respect of the temporary duration of the

permission is fundamentally an error of law and of fact.

Respondent:-

The Commission repeats its objections as outlined in Section H above in respect of (i) §18

of the Applicant’s submissions, (ii) the plea at E15 of the Statement of Grounds and (iii) the

Applicant’s failure to assert before the Commission that it was limited to granting permission

for a period of five years on the basis that the principle of res judicata applied. As regards,

the substance of Core Ground 1, the Commission makes three points.

First, the Applicant’s complaints are premised on the contention that the application for

permission was made on the basis that any grant of permission authorising the proposed

development would be subject to a five year limitation. The application documentation nor

the Inspector’s analysis of the proposed development do not support this contention. The

application for permission was not made on qualified temporal terms. Rather, the Applicant’s

contentions here offend against the well-settled principle that the Commission’s Decision

should be read holistically and in a way that makes sense and renders it valid rather than

invalid as opposed to reading it in the most erroneous way possible so that the Applicant

can obtain certiorari.

Second, the Applicant contends that because the Planning Authority had previously granted

permission for the use of part of the agricultural field as an airstrip for a period of five years

under permission (Reg Ref: 17/1784—13th February 2018), the Commission was bound to

only granting permission for a period of five years for the proposed development as there

was ‘no change in circumstances that would warrant the departure from this decision and

the principles of res judicata apply relative to that decision in the absence of any change of

circumstances’. This proposition is untenable and does not accord with the Commission’s

obligations under s.37 and s.34(2)(a) of the 2000 Act to consider applications/appeals de

novo and on the basis of an informed and objective assessment of the planning and

environmental merits of any given proposal. The Commission was required to consider the

application which was before it. It is not bound by previous decisions in the manner

suggested by the Applicant.

Third and without prejudice to the Commission’s objections in respect of §18 of the

Applicant’s submissions, the Applicant’s reliance on the Court’s decisions in Konisberry -v-

An Bord Pleanála [2024] IEHC 194 and Walsh -v- An Bord Pleanála [2025] IEHC 533 in aid

of impugning the Commission’s Decision is misconceived. Those cases concerned situations

where the relevant Inspector recommended that a grant of permission be made but the

Commission ultimately decided to refuse permission. With respect, it is in that context that

the respective Courts in Konisberry and Walsh outline that there was a requirement on the

Commission to engage with the Inspector’s Report in a meaningful way so as to ensure

compliance with the Commission’s duty under s.34(10)(b) of the 2000 Act. In

contradistinction, in this case, the Commission decided to grant permission for the proposed

development generally in accordance with the Inspector's recommendation. The

Commission Direction explained that the Commission was satisfied to grant the application

for the full permission applied for by the Notice Party and that it did not note any justification

to limit the grant of permission to five years.”

70. If this suggests that the application could only be treated as a five-year application that is

not correct.

71. If this suggests that the commission could not grant a five-year permission in view of the

limited duration of the previous permission(s), this point is misconceived and, as the commission

says, “untenable”. Many permissions are granted for a specified time period. That does not operate

as a bar on a future application for permission for an additional time period or indefinitely.

Administrative bodies do not operate on some kind of res judicata, Henderson v. Henderson (1843)

3 Hare 100-basis that one bite of the cherry is all you get. That is logic-free and authority-free

argument that would quickly lead to gridlock and that would undermine the entitlement of planning

decision-takers to make whatever decision is best in accordance with proper planning and

sustainable development.

72. Allowing further development for a specified period or an open period when similar

development has previously been allowed for an earlier specified period is not a situation that calls

for a heightened reasons duty that would arise when an institutional actor is disagreeing with another

institutional actor. That is because the second permission is not in itself a disagreement with

anything. It is just a further permission. The law on reasons for disagreement relied on by the

applicant is simply irrelevant to this ground.

73. Overall the applicant has not discharged the onus of proof to show any illegality under this

heading.

Core ground 2 – alleged excess of jurisdiction

74. Core ground 2 is:

“2. The Board of the Respondent in deciding to grant planning permission for the airstrip

contrary to the recommendation of its own Inspector, who acknowledged the application

was made on that basis and accordingly limited its use, acted in excess of its jurisdiction,

granted a permission for a development which had not been sought in the first instance, and

granted planning permission in excess of their powers and jurisdiction, and accordingly the

determination of the Respondent is ultra vires, invalid and void.”

75. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

The Board of the Respondent in deciding to grant planning permission for the airstrip

contrary to the recommendation of its own Inspector, who acknowledged the application

was made on that basis and accordingly limited its use, acted in excess of its jurisdiction,

granted a permission for a development which had not been sought in the first instance, and

granted planning permission in excess of their powers and jurisdiction, and accordingly the

determination of the Respondent is ultra vires, invalid and void.

The Respondent failed to properly consider or have regard to the submission of the Applicant

in circumstances where the Board could not have concluded that there was ‘no justification’

for limiting the airport on a temporary basis notwithstanding that the airport was permitted

initially on the basis that it would only operate for a period of 5 years and that decision was

continued in the subsequent permission, and the application made specifically sought to

incorporate these decisions as the basis of this application. The Applicant had identified a

range of impacts both on the Applicant’s dwelling house, the farm buildings, on his

farmlands, in terms of noise, visibility, invasion of privacy, health impacts, pollution, stress

and human health and had set out a detailed planning history by reference to the previous

planning considerations and decisions. He set out the history of unauthorised development

in respect of archaeological protection and the concerns in respect of the planning authority

who have been afforded unrestricted rights in respect of the use of the airport by virtue of

condition 3. Accordingly, the Respondent failed to properly consider the Applicant’s

submission, failed to have any or any appropriate regard to the said submission and the said

decision is contrary to fair procedures, to natural and/or constitutional justice, and to the

principles of audi alteram partum [sic] and is accordingly invalid and void.

The Inspector at condition 4 limited the use of the lands to 5 years from the date of the

Order for the reason that such a limitation was in the interest of proper planning and

sustainable development. The said limitation period formed part of the consideration in

respect of Council Directive 92/43EEC and 2011/92EU. The Board failed to address the

Inspector’s recommendation under the reasons and considerations which is the appropriate

location for any consideration in respect of Section 34(10)(b) and accordingly failed to direct

their minds to their obligations on the aforesaid permission.

There was and is no legally permissible procedure available to the Respondent Planning

Appeals Commission to modify the application for permission in the way that it has. The

Respondent pursuant to Section 142 of the Planning and Development Act 2000, as amended

may grant permission for a modified development however this procedure was never

activated. The application made by the applicant for permission sought a temporary duration

of five years and it was in respect of that application submissions and observations were

made and subsequently the application considered by the Respondent Inspector.

The decision of the Respondent to omit the condition recommended by the Respondent

Inspector is unreasonable and irrational and contrary to O’Keeffe v. An Bord Pleanala [1993]

1 IR 39 especially in circumstances where there was nothing before the Respondent

Commission to justify and/or ground the decision to omit the condition regarding the

temporary duration of the permission. Similarly, the decision to omit said temporary

duration of the permission is contrary to the decision in Meadows v. Minister for Justice

Equality and Law Reform [2010] IESC 3.

Respondent:-

The essence of the Applicant’s claim under Core Ground 2 and 4 is that (i) the Commission,

in granting permission for the proposed development, failed to address why it had not

adopted Condition No. 4 as recommended by the Inspector and thereby failed to comply

with its obligations under s.34(10)(b) of the 2000 Act and (ii) the Commission failed to

properly consider or have proper regard to the Applicant’s submission in circumstances

where the Commission could not have concluded that there was no justification for attaching

Condition No.4. Each of these contentions are premised on a

misreading/mischaracterisation of the application documentation, the Applicant’s appeal and

the Inspector’s report to the effect that these documents were compiled on the

presupposition that the application for permission was one which was sought on qualified

temporal terms.

In respect of the Applicant’s first contention, the obligation to give reasons under s.34(10)(b)

of the 2000 Act does not extend to situations where the Inspector recommends, and the

Commission decides, to grant permission for the proposed development but the Commission

decides not to attach a recommended condition. Condition No. 4 was not an environmental

condition which arises from the consideration of an EIAR within the meaning of s.34(10)(c)

of the 2000 Act. In any event, there was a note to the Commission’s Direction which

explained that the Commission was satisfied to grant the application for the full permission

applied for by the Notice Party and that it did not note any justification to limit the grant of

permission to five years.

In respect of the Applicant’s second contention, two points arise.

First, the Commission’s Decision clearly reflects that the Applicant’s submissions were

considered. This is evident from the Commission Direction and the Inspector’s Report. The

Applicant’s complaint in this regard offends against the well settled principle that lack of

narrative discussion does not equate to a lack of consideration and there is no obligation on

the Commission to engage with submissions in a discursive ‘hand-to-hand combat sense’.

Rather, the Applicant’s complaint is that the Commission did not agree with their submission

which is an impermissible merits based complaint.

Second, the Applicant’s complaint that the Commission’s Decision to omit Condition No.4

was unreasonable and irrational is a de-facto merits based disagreement with the conclusion

reached by the Commission in the exercise of its expert evaluative judgement that it did not

note any justification to limit the grant of permission to five years. The Commission’s

Decision not to attach Condition No. 4 to the grant of permission must be understood in the

context of the material which was before it and on that material, the Commission was

entitled, in the exercise of its evaluative judgement, to refrain from imposing Condition No.

4 on the basis that there was no justification to limit the grant of permission for five years.

In this regard, it is well settled that reasons may be implicit from the context and relatedly,

reasons need be explicitly stated for the obvious or self-evident. Accordingly, certiorari

ought not be granted as the Applicant could not be in any real doubt as to why the

Commission did not attach Condition No. 4 to the grant of permission”

76. Condition 4 as proposed by the inspector states:

“The use of the subject lands as an airstrip shall cease on or before the expiration of five

years from the date of this order.

Reason: In the interest of proper planning and sustainable development.”

77. The commission’s direction includes the following:

“Note: The Board was satisfied to grant the application for the full permission applied for by

the applicant subject to the conditions set out above and did not note any justification to

limit the grant of permission to five years.”

78. The applicant makes the following essential points under this heading:

(i) irrationality leading to excess of jurisdiction;

(ii) lack of reasons for disagreeing with the inspector;

(iii) grant of something not applied for by the developer;

(iv) consequential breach of EU law;

(v) lack of regard to submissions; and

(vi) treatment of unauthorised development.

79. The first point is just a merits complaint. It was not unreasonable in the legal sense to grant

an indefinite permission.

80. As regards lack of reasons, there are reasons in the direction – essentially a negative

rationale – a lack of justification as seen by the commission for a time-limit. The fact that others

might argue that there was a justification doesn’t render this unlawful.

81. The law on reasons requires, in effect, main reasons on the main issues. This was complied

with.

82. That said I don’t accept what I understood as the commission’s blanket defence that they

never have to give reasons for disagreeing with the inspector about conditions. In some cases, a

condition can be objectively a main issue rather than just detail. But there is no breach of a reasons

duty here. I don’t in any event see the duration in this context (five years on top of a previous five

years versus a non-time limited permission) as an inherently main issue requiring reasons but if I

am wrong about that there are reasons.

83. The argument that the permission granted was not that sought is understandable but not

accurate. An ongoing permission was sought but was time-limited by the council. The fact that the

applicant launched a third-party appeal did not deprive the commission of the jurisdiction to revert

to the non-time-limited permission originally sought. Admittedly the outcome is therefore a bit of

an own goal in the sense that it was brought about by the applicant’s own third-party appeal, but

that doesn’t make it unlawful. The loose analogy is the person who appeals the severity of a

sentence and ends up with a heavier one. That isn’t a breach of rights.

84. The reference to EU law is makeweight. The whole point of EU law is that assessments can

inform decision-taking on a project and the project can change as a result. An ongoing permission

was on the table from the outset before the council and thus open to public participation if and to

the extent that rights to participate applied. Public participation does not involve an ongoing

entitlement to re-start the discussion and generate new effective remedies as soon as there is any

change in the proposed decision, or to comment on other participants’ comments: C-461/24,

Asociación Petón do Lobo, Judgment of the Court (Tenth Chamber) of 1 August 2025. Even the

ECHR allows an apex criminal court to impose a first instance and unappealable conviction, including

following an appeal against an acquittal in jurisdictions where that procedure is allowed (Article 2(2)

of Protocol No. 7).

85. The claim of lack of regard to submissions needs to be established evidentially which hasn’t

been done. If the decision states that submissions have been considered, the applicant has to show

otherwise. The applicant carries the onus of proof in that regard.

86. As regards the monuments, the position is as follows. At para. 3.3 the inspector notes:

“Department of Housing Local Government and Heritage

It is noted that the proposed development site (PDS) is located at Recorded Monument

GA017-048---- (Ringfort – rath). This monument is subject to statutory protection in the

Record of Monuments and Places (RMP), established under Section 12 of the National

Monuments (Amendment) Act 1994. Given the scale, extent and location of the PDS, it is

possible that the Recorded Monument and previously unrecorded archaeological remains

may be disturbed by the proposed development. The National Monuments Service of the

Department advises that an updated Archaeological Impact Assessment, to include a

programme of Archaeological Geophysical Survey in the first instance and Archaeological

Test Excavation where deemed appropriate, be requested as Further Information.”

87. The inspector goes on:

“6.1.4. Archaeological Impact/ Unauthorised Development

• An unauthorised concrete base has been erected within the recorded Monument. The

exemptions under Article 9 (1) (a) (vi) and (vii) of the Planning and Development

Regulation 2001 disapplies. The planning authority cannot consider any Planning Application

on these lands until this is regularised.

• The applicant has removed the east west ditch running through the site approximately

500m from the applicants house- this is contrary to condition 2 of Grant of Permission by

the Board.

• The applicant has extended airstrip without grant of permission

• The applicant has raised grounds levels in excess of that stipulated under condition no 5

of the decision to grant permission”

88. And:

“7.2. Archaeological Impact - The applicant has submitted an Archaeological Impact

Assessment, prepared by Sherlock Archaeology, in response to further information request.

The purpose of this assessment was to evaluate the potential impact of the proposed

development on Recorded Monument GA 017-048, in accordance with Policy Objective ARC

4 and Policy Objective ARC 5 of the Galway County Development Plan. These policies seeks

to protect archaeological sites, monuments, their settings, and visual amenities. It requires

that planning applications within areas of archaeological potential or near Recorded

Monuments incorporate appropriate archaeological mitigation measures.

7.2.1. The assessment identified several archaeological sites within 500 meters of the

proposed development:

• A ringfort (SMR No. GA017-048), located approximately 21 meters from the existing grass

airstrip.

• An enclosure (SMR No. GA017-049), located around 180 meters from the airstrip in the

townland of Carrowntryla.

• A ringfort and associated children’s burial ground (SMR Nos. GA017-050---- and GA017-

050001), approximately 317 meters from the airstrip.

• The nearest archaeological site, the ringfort GA017-048, is described in the Archaeological

Inventory of Ireland as a poorly preserved circular rath situated on a rise in open grassland,

with a diameter of approximately 33 meters. The monument is partially obscured by modern

features such as a silage pit and a mound of rubble, with a field wall intersecting it at certain

points. On the day of the site inspection there was no silage pit or any other feature

obscuring the ringfort, it was represented as a small grass mound outside of the airstrip.

7.2.2. The Archaeological Impact Assessment concludes that the proposed development will

not directly affect the ringfort or any other archaeological site, as no construction or

excavation is involved. The use of the airstrip, limited to around 10 times per year, does

not threaten the integrity of the archaeological sites. While the maintenance of the airstrip

involves cutting grass, there will be no disposal of clippings within the ringfort. This is

recommended to be controlled by way of condition. I agree with the findings of the

Archaeological Impact Assessment in this regard, as there is no construction or excavation

involved with the proposed use, there is no real likelihood of a direct [effect] on the ringfort.

7.2.3. I consider that the visual impact of the development on the nearby ringfort as

negligible. Since the proposal is for the continued use of an existing grass runway for private

aviation, the visual character of the site remains unchanged. The existing landscape and

visual context will not be altered by the development. A geophysical survey conducted in

October 2023, covered both the runway and apron areas, identifying a single feature of

interest—a ‘mass dipolar anomaly’ near the northeastern end of the runway. This anomaly

may represent archaeological or modern activity, such as burning, or it could be due to

buried ferrous materials. Regardless, it poses no immediate concern since no excavation or

ground reduction is proposed.

7.2.4. The Archaeological Impact Assessment meets the requirements of Policy Objectives

ARC 4 and ARC 5 of the Galway County Development Plan. Given that no construction or

excavation is planned, and the use of the site will remain limited and non-intrusive, the

proposal will not have any physical or visual impact on known archaeological sites. The

identified potential archaeological feature does not warrant further excavation, as

unnecessary ground disturbance would be inappropriate for this type of development.

Consequently, I do not consider that there is a substantive archaeological reason to refuse

the planning permission in this instance.”

89. So it hasn’t been shown that the impacts on monuments have not been considered. Again

this comes down to the applicant’s failure to discharge the onus of proof.

90. The only pleaded references to monuments are in relation to the concrete apron which is

addressed below.

91. Insofar as relatedly the applicant complains that visits to the house by plane from London

don’t capture the full impacts due to recreational flying when the developer is on site, insofar as the

applicant made submissions on this, the decision says they were considered. The onus to show that

submissions were not considered lies on the applicant and has not been discharged here.

92. As regards unauthorised development the inspector stated:

“7.3.5. Unauthorised Development

The appellant asserts that the removal of a hedgerow located to the south of the site

constituted a breach of Condition 2 attached to the original planning permission granted

under file 10/1003 (An Bord Pleanála reference 07.238257). Condition 2 specified that the

use of the lands as an airstrip, including any associated works or maintenance, was to be

confined to the area northeast of the existing east-west ditch located approximately 500m

southwest of the applicant's house, with no works permitted southwest of the ditch.

7.3.6. The applicant has clarified that the ditch was removed in 2017 by the applicant's

brother for land drainage and improvement purposes. A letter from the Department of

Agriculture confirms that a hedgerow of equivalent length has since been planted in another

part of the applicant’s landholding, thereby compensating for the original hedgerow removal.

7.3.7. In assessing the matter of unauthorised works, I note that the planning permission

granted by An Bord Pleanála was valid for a period of 5 years, and the ditch removal occurred

after this period had lapsed. Consequently, the removal did not constitute a breach of

planning permission. Additionally, the planning authority has since granted permission

(17/184) for a similar development on the site, with the ditch having already been removed

at the time of the application.

7.3.8. The applicant has also provided clarification regarding the accidental cutting of an

extended area resembling the airstrip in the past. This was an error, as the airstrip's

required length does not exceed 500m for take-off and landing. Furthermore, the existing

concrete base on the site, which dates to the 1970s, has not been used for approximately

45 years.

7.3.9. Based on the information provided, I do not consider there to be an issue of

unauthorised works on the site. The applicant has addressed the concerns regarding the

hedgerow removal, and there is no proposed intensification of use associated with the

current application. The scale and nature of the development can be appropriately managed

through suitable planning conditions. Therefore, I am satisfied that the issue of unauthorised

development has been adequately addressed and does not warrant a reason for refusal in

this instance.”

93. Insofar as concerns ditches and hedgerows, the applicant hasn’t shown that the grant of

permission is meaningfully related to these issues.

94. Insofar as concerns the vague term “concrete base” this is referred to in the archaeology

report as part of the further information response as a “concrete apron”. Given the size of the apron

it looks like a parking stand for aircraft. The inspector states this is not being used – that hasn’t

been shown to be an invalid conclusion although one has to wonder why would it not be used.

However in view of the failure to dislodge the inspector’s view, it may be an unauthorised structure

but it does not impact on the permission granted and does not render the permission invalid as an

indirect facilitation of unauthorised development. If the developer wants to park his plane on this

stand he needs to apply for permission in that regard. Maybe there is a case for relocating the apron

away from the monument or maybe not but that is not a problem that renders this permission invalid

because the permission did not depend on any assumed or likely use of that structure.

95. Overall the applicant has not discharged the onus of proof to show any illegality under this

heading.

Core ground 3 – lack of reasons

96. Core ground 3 is:

“3. The Respondent erred in law in failing to apply Section 34(10)(b) of the Planning

and Development Act in failing to engage with or give any appropriate reasons for

disagreeing with their Inspector to impose, in their recommendation, a limitation of five

years in respect of the proposed development and concluded that they did not consider that

there was ‘any justification to limit the grant of the permission for five years’,

notwithstanding the submission of the Applicant, the planning history of the site and the

nature of the application made, all of which provided an appropriate and proper basis for the

imposition of the said condition. The said determination amounts to an error of law on the

face of the record.”

97. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

A person effect by a decision is generally entitled to a statement of reasons. One of the

seminal decisions in respect of the duty to give reasons is Connelly v. An Bord Pleanala

[2018] IESC 31. In that case Clarke C.J. identified the justification behind the duty to state

reasons as follows. First, it enables a person affected by the decision to understand why a

particular decision was reached. Secondly, it enables a person to ascertain whether or not

they have grounds upon which to appeal the decisions (where an appeal lies ) or seek judicial

review.

Having identified the purpose behind the duty to gives reasons, the Court then identified the

legal requirements against which the adequacy of reasons may be tested. First, any person

affected by a decision is entitled to know in general terms why the decision was made. This

requirement derives from the obligation to be fair to individuals affected by binding

decisions, and also contributes to transparency. Secondly, a person is entitled to have

enough information to consider whether they can or should seek to avail of any appeal or to

apply for judicial review of a decision. The reasons provided must also be such as to allow

a court hearing and appeal or reviewing a decision to engage properly in such an appeal or

review and should not be merely a perfunctory or a box ticking exercise.

The Supreme Court indicated that, in principle, the reasons for a decision may be derived

either from a range of documents or from the context of the decision, or in some other

fashion. Clarke C.J. Indicated that the reasons can be found in the decision or in other

documents expressly referred to in the decision or indeed anywhere provided that it is

sufficiently clear to a reasonable observer carrying out a reasonable inquiry that the matters

conducted actually formed part of the reasoning. In other words, any materials can be relied

on as being a source for relevant reasons subject to the important caveat that it must be

reasonably clear to any interested party that the materials sought to be relied on actually

provide the reasons which led to the decision concerned.

The Respondent Commission failed to give any and/or any appropriate and/or adequate

reasons to justify and/or ground their decision in the first instance to decline to follow the

recommendation of the Inspector and in the second instance to fundamentally alter the

nature of the permission by virtue of its decision to not impose a condition limiting the

duration of the permission. The Applicant is entitled to know the basis for the decision of

the Respondent and the information grounding such a decision but the Respondent Planning

Appeals Commission, in omitting the said condition without any basis, without any

information and/or documentation grounding it, without any adequate and/or any adequate

reasoning for its decision acted contrary to its obligations and contrary to law.

Respondent:-

The nub of the Applicant’s complaint under Core Ground 3 is that the Commission erred in

law in failing to apply s.34(10)(b) of the 2000 Act by failing to give appropriate reasons for

disagreeing with its Inspector to impose Condition No. 4 and in concluding that they did not

consider that there was any justification to limit the grant of permission for five years. Much

of this Ground repeats the issues already addressed in Core Grounds 2 and 4. The

Commission makes three points in reply.

First, the Applicant’s complaints are premised on a misreading and/or mischaracterisation

of the documentation underlying the Commission’s Decision. Contrary to the Applicant’s

contention, the application for permission was not sought on qualified temporal terms.

Second, s.34(10)(b) of the 2000 Act does not apply where the Inspector recommends, and

the Commission decides to grant permission for the proposed development but the only

disagreement between them relates to the imposition of a condition to the grant of

permission (subject to the exception under s.34(10)(c) of the 2000 Act which does not apply

in this case).

Third, and without prejudice to the foregoing, the Commission did give a reason why

Condition No. 4 was not included in the grant of permission and the complaints made by the

Applicant are ones that go to the merits of the decision. In this respect, the Applicant’s use

of the term ‘appropriate reasons’ is revealing.

The Commission clearly provided adequate reasons as to why it decided not to attach

Condition No. 4 to the grant of permission and had material before it in support of that

conclusion.”

98. This point has already been dealt with above.

Core ground 4 – lack of regard to submissions

99. Core ground 4 is:

“4. The Respondent failed to properly consider or have regard to the submission of the

Applicant in circumstances where the Board could not have concluded that there was ‘no

justification’ for limiting the airport on a temporary basis notwithstanding that the airport

was permitted initially on the basis that it would only operate for a period of 5 years and

that decision was continued in the subsequent permission, and the application made

specifically sought to incorporate these decisions as the basis of this application. The

Applicant had identified a range of impacts both on the Applicant’s dwelling house, the farm

buildings, on his farm lands, in terms of noise, visibility, invasion of privacy, health impacts,

pollution, stress and human health and had set out a detailed planning history by reference

to the previous planning considerations and decisions. He set out the history of unauthorised

development in respect of archaeological protection and the concerns in respect of the

planning authority who have been afforded unrestricted rights in respect of the use of the

airport by virtue of condition 3. Accordingly, the Respondent failed to properly consider the

Applicant’s submission, failed to have any or any appropriate regard to the said submission

and the said decision is contrary to fair procedures, to natural and/or constitutional justice,

and to the principles of audi alteram partum and is accordingly invalid and void.”

100. The parties’ positions as recorded in the statement of case are summarised at core ground

2 above.

101. This point has already been dealt with above.

Core ground 5 – invalid application

102. Core ground 5 is:

“5. The Respondent erred in law in determining an application that failed to comply with

the Planning and Development Act 2000 and the Planning and Development Regulations

2001, and in particular the public notice fails to comply with Articles 16, 17, 18, 19 and 20

of the Planning and Development Regulations 2001 (Amended), fails to comply with Article

22 of the Planning and Development Regulations in respect of the maps and drawings that

were submitted identifying the land of the structure to which the application relates and the

boundaries thereof, and in particular all of the structures that adjoin and/or is adjacent to

the land to be developed in accordance with the obligations of Article 22(2)(b) of the Planning

and Development Regulations 2001.”

103. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

Particularly in respect of Core Ground No. 5, the obligations under Chapter 1 Part 4 of the

Planning and Development Regulations 2001 are mandatory in nature. Article 19 requires

a site notice to be fixed on the land or structure in accordance with Article 17 (1)(b) and

requires that the notice be fixed in a conspicuous location on or near the entrance to the

main entrance to the land or structure so as to ‘be easily visible and legible by persons using

the public road.’ The said notice was not easily visible and certainly not legible from the

public road as submitted by the Applicant in the submission to Galway County Council and

therefore failed to comply with the mandatory obligations of the Planning and Development

Regulations 2001.

The application fails to comply with the obligations under Article 23(1)(a) of the Planning

and Development Regulations and/or Article 22 in respect of the location of structures in the

immediate vicinity of the site. Specifically, a number of houses which are located

immediately adjoining the airstrip and which objectively must be affected by it are shown at

a distance of over 250m further away from the airstrip and accordingly the plans and

particulars lodged failed to comply with the obligations under the said provisions. The said

omission failed to comply with the mandatory obligation which is critical for any consideration

of likely effects and where was likely to lead to a misleading understanding of the proximity

of the airstrip relative to these houses. Accordingly, the decision based on the inaccurate

plans and particulars lodged is ultra vires the Respondent, contrary to the mandatory

requirements of the Planning and Development Regulations 2001, invalid and void.

The Respondent failed to consider the Applicant’s submission in respect of the unauthorised

development including the concrete stand and structure recorded within recorded monument

GA017-048, failed to address the implication of that unauthorised development as well as

the submission that the runway had been extended without any or any appropriate planning

permission. In circumstances where the extension of this runway without any planning

permission and is a class of development specified for the purposes of the Environmental

Impact Assessment Directive under Schedule 5 of the Planning and Development

Regulations 2001, the said procedure adopted by the Board is inconsistent with and contrary

to its obligations under the Planning and Development Act 2000, contrary to its obligations

under the Planning and Development Regulations 2001, and contrary to its obligations under

the Environmental Impact Assessment Directive.

The said provisions of the Regulations are mandatory in nature and strict compliance is

required in order to comply with the said Regulations, and as has been established by the

Supreme Court in Monaghan U.D.C. v Alf-a-Bet Promotions Ltd [1980 WJSC-SC 1341] and

related cases, and it has been identified in the Statement of Grounds, the verifying affidavits

and the exhibits thereto that the said mandatory provisions have not been complied with

Respondent:-

The Commission repeats its pleading and ‘gaslighting’ objections outlined in Section H above.

In respect of the Applicant’s complaint that the site notice did not comply with the

requirements of Article 17 and/or 19 of the 2001 Regulations, the Planning Authority

conducted a site visit on 25th June 2023 and concluded that the site notice was erected and

legible. Similarly, the Inspector reviewed the location of the site notice and found it to be

clearly visible and legible form the public road. The Applicant has failed to discharge the

onus of proof that the application for permission for the proposed development failed to

comply with Article 17 and/or 19 of the 2001 Regulations.

If the Court determines that there was non-compliance with Article 17 and/or 19 of the 2001

Regulations then the Court should exercise its discretion to refuse certiorari as the Applicant

has not sustained any prejudice given that he was not deprived from making a submission

to the Planning Authority in respect of the application for permission or from making an

appeal to the Commission.

As regards the Applicant’s contention that the application for permission for the proposed

development failed to comply with Article 22 and/or 23(1)(a) of the 2001 Regulations in

respect of the location of structures, namely a number of houses (unidentified by the

Applicant) in the immediate vicinity of the site, the Commission makes three points.

First, the Applicant’s Statement of Grounds (or his submissions) does not identify the

structures or the houses which are purportedly 250m further away from the airstrip and in

this regard, the Applicant has failed to discharge the onus of proof in respect of his

complaints.

Second and without prejudice to the foregoing, the Applicant’s complaints are an

impermissible merits based disagreement with the Commission’s expert evaluative

judgement that, in respect of the drawings submitted with the application, same provided

sufficient detail for a comprehensive assessment of the proposed development and that

there were no procedural deficiencies that warrant invalidation of the application. The

Commission had material before it in support of its conclusion in this regard including the

site layout map dated 19th May 2023 (revised), the updated flight path map and the analysis

of the Inspector (with which the Commission agreed) who, having conducted a site visit,

concluded that the drawings submitted by the Notice Party were in compliance with the 2001

Regulations.

Third, if the Court concludes that the application did not comply with Article 22 and/or Article

23(1)(a) of the 2001 Regulations, the Court should exercise its discretion and refuse

certiorari as the Applicant has not established that he sustained any prejudice given that

none of the unidentified structures allegedly mislocated on the aforementioned drawings

were in the ownership of the Applicant. Rather, the application for permission was

accompanied by a number of letters from adjoining landowners which outlined that they did

not object to the proposed development. Moreover, the Notice Party’s appeal response

document provided a map showing the residential houses and farms in support of the

proposed development with accompanying letters therefrom.

The Applicant complains that the Commission failed to consider his submission in relation to

alleged unauthorised development. That is incorrect. The Commission did consider those

submissions and this is evident from the Inspector’s Report and the Commission Direction.

Again the Applicant’s complaints here offend against the principle that lack of narrative

discussion does not equate to a lack of consideration and there is no obligation on the

Commission to engage with submissions in a discursive ‘hand-to-hand combat sense’.

Further, the Applicant’s allegations of unauthorised development were not established as a

matter of fact and/or law before the Commission. The Inspector (with whom the Commission

agreed) decided that the allegations of unauthorised development did not warrant a refusal

for the grant of permission sought by the Notice Party and the Commission was entitled to

proceed in this matter.”

104. The basic reason why this point fails is that the applicant has not discharged the onus of

proof to show that the application was in breach of the regulations, in the context where the planning

decision-takers considered that the notices and application documents were adequate.

105. Even if there was some inadequacy, this was not so severe as to compromise the process,

especially bearing in mind that the applicant himself was in no way inhibited from participation. His

failure to make any such complaints in the process is relevant to discretion so I would refuse relief

in the circumstances even if counterfactually a problem had been established. Monaghan U.D.C. v

Alf-a-Bet Promotions Ltd 1980 WJSC-SC 1341, [1980] I.L.R.M. 64 does not require mandatory

quashing in all circumstances and allows for substantial compliance.

106. Insofar as the complaint is that houses across the road from the development are not shown

on plans, they are shown on at least one of the plans lodged as part of the application for the

purposes of complying with art. 22 of the 2001 regulations.

Core ground 6 – alleged inaccurate information provided

107. Core ground 6 is:

“6. A plan submitted in response to further information which identified the incoming

and outgoing flight path misrepresents the location of a number of dwellinghouses

immediately adjacent to the runway. There are two dwellinghouses which immediately

adjoin the runway which are shown on the documentation received on the 23/01/2024 as

being located approximately 250m further north from their actual location, and at a

significantly further remove in planning terms. This misrepresentation, whether deliberate

or negligent, is significant. Accordingly, the plans and particulars which formed the basis of

assessment does not comply with mandatory obligations under the Planning and

Development Regulations 2001, materially misdescribes the context of the development

both in respect of noise, impacts, visual impacts and the effect on residential amenity and

as such is to render the application invalid and the decision ultra vires the Respondent being

contrary to the requirements of the regulations, invalid and void.”

108. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

The application lodged fails to record unauthorised development and in particular the

extension of the runway by the construction of a concrete base for the plane itself which was

erected within recorded monument GA017-048. The application fails to include any proposal

in respect of this unauthorised development which is required to be included as a structure

and where the said structure requires planning permission. The application made must be

formulated in a manner to be consistent with the requirements of the Planning and

Development Regulations and Chapter 1 thereof. In failing to provide for this unauthorised

development, pay the appropriate fee, show by way of drawings the structure to which it

relates and formulate the application in a manner to be consistent with the requirements of

the Planning and Development Regulations 2001 the Respondent determined an application

which is inconsistent with the mandatory requirements of the Planning and Development

Regulations as well as failing to consider the Applicant’s submission in respect of this issue.

Respondent:-

In respect of the Applicant’s contention that the flight plan submitted by the Notice Party,

as part of their response to the Planning Authority request for further information, allegedly

misrepresented the location of a number of dwelling houses and/or constituted a breach of

the 2001 Regulations, the Commission makes two points.

First, the Applicant’s Statement of Grounds (or his submissions) do not identify the

structures or the houses which are purportedly 250m further away from the airstrip and in

this regard, the Applicant has failed to discharge the onus of proof in respect of his

complaints.

Second and without prejudice to the foregoing, the Applicant’s complaints are an

impermissible merits based disagreement with the Commission’s expert evaluative

judgement that, in respect of the drawings submitted with the application, same provided

sufficient detail for a comprehensive assessment of the proposed development and that

there were no procedural deficiencies that warrant invalidation of the application. The

Commission had material before it in support of its conclusion in this regard including the

site layout map dated 19th May 2023 (revised), the updated flight path map and the analysis

of the Inspector (with which the Commission agreed) who, having conducted a site visit,

concluded that the drawings submitted by the Notice Party were in compliance with the 2001

Regulations

Without prejudice to the Commission’s pleading objection above, insofar as the Applicant

contends that the ‘plans and particulars’ materially mis-describe the context of the proposed

development, the Inspector and the Commission were satisfied that the drawings provided

as part of the application for permission provided sufficient detail for a comprehensive

assessment of the development and same met the requirements of the 2001 Regulations.

This is a matter within jurisdiction of the Commission.

As regards the Applicant’s allegation of unauthorised development, the Commission repeats

that no such allegation was proven as a matter of fact and/or law and there was no preclusion

on the Commission from granting permission. Insofar as the Applicant claims that the

application for permission ought to have included a proposal in respect of the alleged

extension of the runway, the existence of such a legal obligation has not been demonstrated

by the Applicant. Further, and contrary to the Applicant’s contention, the Commission did

have regard to his submission on the issue of alleged unauthorised development. This is

evident from the Inspector’s Report and the Commission Direction.”

109. The basic reason why this point fails is that the houses complained of do appear on at least

one site map before the commission. The applicant has not demonstrated any type of flaw going to

certiorari rendering the decision invalid.

110. The unauthorised developments are dealt with elsewhere and do not legally preclude a grant

of permission in circumstances where the permission granted is not dependent on or facilitative of

such unauthorised development.

EU law issues

Core ground 7 – inadequate preliminary examination

111. Core ground 7 is:

“7. The Respondent erred in law in determining a preliminary examination under Council

Directive 2011/92EU without the requisite information required in Schedule 7A of Planning

and Development Regulations 2001, and failing to consider the required information in

accordance with their obligations as competent authority under Schedule 7 of the Planning

and Development Regulations 2001. Accordingly, the said application reference ABP-

319221-24 was not carried out in accordance with the Respondent’s obligations under the

requirements of European Community law.”

112. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

The Respondent acknowledges that the proposed development is a sub-threshold

development and considers at paragraph 7.11.3 whether the development is likely to have

significant effects on the environment. The grounds submitted in respect of Core Ground 2

are repeated in respect of the assessment conducted of the issue of likely significant effects

on the environment. The assessment fails to consider any likely significant effects on the

receiving environment and in particular the residential development in the immediate

vicinity, has before it inaccurate and misleading documentation as to the location of a

number of dwellinghouses in the immediate vicinity, fails to consider the Applicant’s

submission in terms of the effects of any such development on the receiving environment,

fails to comply with the obligation in respect of the information required as set out in

Schedule 7 of the Planning and Development Regulations 2001, fails to conduct any

assessment of a type required under Schedule 7, fails to consider anywhere the use of the

airport/airstrip as is required for a class of development specified in Schedule 5 of the

Planning and Development Regulations 2001 and fails to consider the significant of

permitting in condition 3 the planning authority to regulate the use of the airport.

The permission imposes no limitations in terms of what may be agreed in respect of any

such use which is contrary to the public participation requirements of the said Directive,

contrary to the obligation to participate in any such decision making process, and contrary

to the requirement to be notified of the decision in that regard so as to bring any proceedings

in respect of any such review as is entitled to be made under the requirements under Council

Directive 2011/92EU.

Respondent:-

The Commission makes seven points in respect of the complaints under Core Ground 7.

First, given that part of the agricultural field has an established “use” as an airstrip and the

proposed development is for the continued ‘use’ of the application site as an airstrip—which

will continue to be for limited private use by the Notice Party— and the proposed

development does not involve any works or interventions involving alteration to the physical

aspects of the application site, the proposed development is not a project for the purpose of

the EIA Directive. Therefore any need for EIA and/or screening for EIA did not arise and the

Commission’s Decision cannot be impugned by reference to same.

Second and without prejudice to the foregoing, the Applicant’s complaints regarding the

Commission’s preliminary examination for the purpose of the EIA Directive are premised on

a fragmented misreading of the Commission’s Decision. On a holistic reading of the

Commission’s Decision (including the Inspector’s Report) and in a manner which renders it

valid, as opposed to invalid, it is evident that the Commission carried out a lawful preliminary

examination of the proposed development for the purpose of Article 109(2) of the 2001

Regulations and the EIA Directive

Third, the Applicant’s complaint that the Commission erred in law in determining a

preliminary examination for the purpose of the EIA Directive without the requisite

information required in Schedule 7A of the 2001 Regulation, is misconceived. Given

preliminary examination of the proposed development for the purpose of the EIA Directive

concluded that there was no real likelihood of significant effects on the environment arising

from the proposed development, there was no requirement for the Notice Party to provide

the information under Schedule 7A of the 2001 Regulations to the Commission in accordance

with Article 109(2)(b)(ii) of the said Regulations. Relatedly, as regards the Applicant’s

complaint that the Commission failed to comply with the obligations in respect of the

information as required under Schedule 7 of the 2001 Regulations, the adequacy of the

information for the purpose of conducting a preliminary examination is a matter within the

competency and jurisdiction of the Commission and it had material before it in support of its

conclusion that there is no real likelihood of significant effects on the environment arising

from the proposed development. Further, the Applicant [is] not advancing or adverting to

anything to impugn the rationality of the Commission’s conclusion in respect of its

preliminary examination by reference to the material before the Commission nor has the

Applicant adduced any expert evidence to show that the said preliminary examination was

erroneous or inadequate nor has the Applicant established any error on the face of the

material considered by the Commission in its preliminary examination. The onus of proof

on the Applicant as to an alleged inadequacy in the decision cannot be discharged by mere

assertion.

Fourth, the Inspector did not examine and/or assess the proposed development for the

purpose of the Habitats Directive and/or the EIA Directive on the basis that the proposed

development was for a limited period of five years. There is nothing in the Inspector’s report

which supports that contention.

Fifth, the Applicant (i) has failed to discharge the onus of proof in respect of his contention

that the Commission had inaccurate and misleading documents before it in relation to ‘the

location of a number of dwelling houses in the immediate vicinity’ and (ii) ignores the expert

evaluative judgement of the Inspector (with which the Commission agreed with), who having

conducted a site visit, concluded that the drawings submitted by the Notice Party provided

sufficient detail for a comprehensive assessment of the development and that same were

compliant with the 2001 Regulations.

Sixth, the Commission did consider the Applicant’s submission in terms of the effect of the

proposed development on the receiving environment. This is evident from the Inspector’s

report and the Commission Direction. Again, the Applicant’s complaints here offend against

the principle that lack of narrative discussion does not equate to a lack of consideration and

there is no obligation on the Commission to engage with submissions in a discursive ‘hand-

to-hand combat sense’. On a holistic reading of the Commission’s Decision, which is in

context, and in a manner which renders same valid rather than invalid, it is clear that the

Commission considered the Applicant’s submission regarding the alleged effect of the

proposed development on the receiving environment.

Seventh, the Applicant’s complaints in respect of Condition No. 3 are premised on a

mischaracterisation of Condition No.3 and a failure to read the Commission’s Decision in a

holistic manner and in a way that renders it valid. The use of the airstrip by the Notice

Party’s particular aircraft formed part of the Notice Party’s application for permission for the

proposed development and formed part of the Commission’s assessment of the proposed

development for the purposes of the 2000 Act, the EIA Directive and the Habitats Directive.

It is clear that Condition No.3, read in light of the reason for its imposition and Condition

No. 1 and 2 to the Commission’s Order, provides (i) the airstrip will only be used by the

Notice Party’s specific identified aircraft, (ii) the use of an alternative aircraft by the Notice

Party on the proposed airstrip requires the written agreement of the Planning Authority prior

to the commencement of the development and (iii) any prospective agreement reached as

between the Planning Authority and the Notice Party under Condition No.3, prior to the

commencement of the development, would be confined to the Notice Party using an

alternative plane of identical model in accordance with its intended use which was the subject

of the Notice Party’s application and the Commission’s assessment. This accords entirely

with the principle that (i) Condition No.3 has to be read in context with the entirety of the

Commission’s Decision and the other conditions imposed and (ii) any prospective agreement

reached pursuant to Condition No.3 must be in accordance with the scope of the planning

permission as a whole. Accordingly, the Applicant’s complaints that Condition No.3 is

contrary to the EIA Directive are misconceived in light of the true meaning and effect of

Condition No. 3.”

113. The inspector’s EIA screening analysis is as follows:

“5.3 EIA Screening

See completed Form 2 on file. Having regard to the nature, size and location of the proposed

development and to the criteria set out in Schedule 7 of the Regulations, I have concluded

at preliminary examination that there is no real likelihood of significant effects on the

environment arising from the proposed development. EIA, or an EIA determination therefore

is not required.”

114. This is then expanded as follows:

“7.3.11. Environmental Impact Assessment

The appellant sets out that the applicant should have been required to submit an EIAR under

Schedule 7, Article 103 of the Planning and Development Regulations 2001. I have assessed

the requirement for EIAR under Section 5.3 of this report. A runway is considered a class

of development under Part 1 Schedule 5 – ‘A line for a long-distance railway traffic, or an

airport with a basic runway length of 2,100 meters or more’. I do not consider the proposal

falls under this class of development as there is no physical runway on site, but a maintained

grassed area for take off and landing of the aircraft. In any case the airstrip as proposed is

500m in length. There is no construction or excavation associated with the development

and other environmental impacts have been addressed above, I therefore have concluded

at preliminary examination that there is no real likelihood of significant effects on the

environment arising from the proposed development. EIA, or an EIA determination therefore

is not required.”

115. Annex I of the EIA directive includes class 7(a):

“Construction of lines for long-distance railway traffic and of airports (9) with a basic runway

length of 2 100 m or more;”

116. Footnote 9 reads:

“(9) For the purposes of this Directive, ‘airport’ means an airport which complies with the

definition in the 1944 Chicago Convention setting up the International Civil Aviation

Organisation (Annex 14).”

117. A single grass runway may be an airstrip, possibly even an aerodrome (no definitive decision

on that is necessary) but it is not an airport, a concept that requires additional and extended

facilities. Even if counterfactually this is to be classed as an airport, the permission currently under

challenge does not involve works.

118. Article 1(2)(a) of the EIA directive defines “project” as involving works, not uses:

“‘project’ means:

— the execution of construction works or of other installations or schemes,

— other interventions in the natural surroundings and landscape including those involving

the extraction of mineral resources;”

119. The false premise of the EIA argument is the assertion that EIA applies. But EIA relates only

to works. The caselaw establishing this is, for good measure, in the aviation context – the European

Commission’s summary is that “renewal of an existing permit (to operate an airport) cannot, in the

absence of any works or interventions involving alterations to the site’s physical aspects, be classified

as a ‘Project’ (Case C-275/09, Brussels Hoofdstedelijk Gewest and others, paragraph 24; Case C-

121/11, Pro-Braine and Others, paragraph 31)” (Environmental Impact Assessment of Projects

Guidance on Screening (Directive 2011/92/EU as amended by 2014/52/EU) (European Union, 2017),

p. 26).

120. So the EIA arguments don’t arise.

Core ground 8 – defective EIA / screening

121. Core ground 8 is:

“8. The Respondent erred in law in the determination that for the purposes of Council

Directive 2011/92EU that there was no real likelihood of significant effects on the

environment arising from the proposed development. As set out in Section 7.3.11 of the

Inspector’s Report, in circumstances where the considerations applied namely that there

was no runway on site and that there was no construction or excavation associated with the

development is wrong as a matter of law and as a matter of fact, and where no consideration

whatsoever was given to the second limb of the definition of development, namely use and

where significant effects by virtue of the said use would arise both in relation to noise, impact

on wildlife, impact on residential amenity, pollution and in particular emissions to air. The

Respondent thus erred in this determination. The range of factors required to be identified

in any consideration of likely effects on the environment was not addressed anywhere by

the Respondent required by the requirements of Council Directive 2011/92 EU and are the

obligations contained in the Planning and Development Regulations 2001.”

122. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

The Respondent Planning Appeals Commission has failed to undertake a valid screening for

appropriate assessment in accordance with the Habitats Directive and in accordance with

the test set out in Kelly v. An Bord Pleanala. The purported screening for appropriate

assessment that was undertaken contained gaps, lacuna and lacked complete, precise and

definitive findings and conclusions where, notwithstanding that the site is located

approximately 1400m south of Lough Corrib SAC, no consideration is included of the said

conservation objectives of the said European Site, no consideration is identified in respect

of the use of the airstrip/airport by virtue of noise, disturbance or general impact, and

accordingly the said assessment for the purposes of Council Directive 92/43EEC failed to

comply with the obligations in respect of a Stage 1 assessment and where the Board of the

Respondent failed to address the limitation period of the Inspector and therefore the said

Screening for Appropriate Assessment carried out by the Respondent was fundamentally

flawed and does not comply with the test provided for in Kelly.

The Decision of the Respondent to impose condition 3 is void for uncertainty in circumstances

where the condition limits the use of the airport to a single aircraft unless otherwise agreed

in writing with the planning authority, but in no way limits the matters that may be agreed

with the planning authority relative to the numbers, type, frequency of planes. As a

consequence it could not have assessed the impact of condition 3 for the purposes of Council

Directive 92/43EEC, 2011/92EU and/or the requirements of the Planning and Development

Act 2000, and accordingly the condition is ultra vires the powers of the Respondent, contrary

to the requirements of the said Environmental Impact Assessment Directive and Habitats

Directive, is invalid and is void

Respondent:-

The Commission makes three points in respect of the substance of the Applicant’s complaint

under Core Ground 8.

First, the proposed development did not constitute a ‘project’ for the purpose of the EIA

Directive and in turn, the need for EIA and/or screening for EIA does not arise (see Core

Ground 7 above). Therefore, the Commission’s Decision cannot be impugned by reference

to the EIA Directive.

Second, insofar as the Applicant’s asserts that the Commission erred in law and in fact in

concluding that there was no runway on the site and that there was no construction or

excavation associated with the development, this is incorrect. Rather, in considering

whether EIA was required, the Commission considered, inter-alia, whether the proposed

development was a project within the class described in Paragraph 7(a) of Annex 1 of EIA

Directive/Paragraph 7 of Part 1 of Schedule 5 of the 2001 Regulations. In concluding that

the proposed development did not fall within that class, the Commission determined (i) there

was no physical runway on site but a maintained grassed area for take-off and landing of

the aircraft, (ii) the airstrip as proposed is 500m in length and (iii)there is no construction

or excavation associated with the development. The Commission was entitled to come to

that conclusion on the material which was before it, including, the Notice Party’s application

form dated 1st June 2023, the AIA Report dated November 2023, a letter from Sean Maloney

& Associates dated 16th December 2023, the Notice Party’s appeal response document (see

letter from Sean Maloney & Associates which formed part thereof) and the Inspector’s report.

Third, the Applicant’s contention that the Commission erred in its determination that there

was no real likelihood of significant effects on the environment arising from the proposed

development as significant effects would arise by virtue of the use of the airstrip in relation

to noise, impact on wildlife, impact on residential amenity, pollution and in particular

emissions to air, amounts to an impermissible merits based appeal in respect of the

Commission’s conclusion on the likelihood of significant effects. The Commission had

sufficient information before it to reach the conclusion that it did. Without prejudice to the

position that the proposed development was not a project for the purpose of the EIA

Directive. the Commission carried out a lawful preliminary examination of the proposed

development for the purposes of Article 109(2)(a) of the 2001 Regulation and the Applicant

has not adduced any expert evidence to show that the Commission’s conclusion was

erroneous or inadequate nor has the Applicant established any error on the face of the

material which was considered by the Commission in its preliminary examination.”

123. The premise of this argument is incorrect as above – EIA does not apply to a mere use

permission with no physical intervention.

Core ground 9 – defective AA screening

124. Core ground 9 is:

“9. The Respondent erred in law in the manner in which it carried out the Stage 1

screening for the purposes of Council Directive 92/43EEC which screening is set out at

paragraph 7.4 of the Inspectors Report and where, notwithstanding that the site is located

approximately 1400m south of Lough Corrib SAC, no consideration is included of the said

conservation objectives of the said European Site, no consideration is identified in respect

of the use of the airstrip/airport by virtue of noise, disturbance or general impact, and

accordingly the said assessment for the purposes of Council Directive 92/43EEC failed to

comply with the obligations in respect of a Stage 1 assessment and where the Board of the

Respondent failed to address the limitation period of the Inspector and who determined the

application without any reference to its obligations under the Habitats Directive/ Council

Directive 92/43EEC.”

125. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

The Respondent Planning Appeals Commission has failed to undertake a valid screening for

appropriate assessment in accordance with the Habitats Directive and in accordance with

the test set out in Kelly v. An Bord Pleanala. The purported screening for appropriate

assessment that was undertaken contained gaps, lacuna and lacked complete, precise and

definitive findings and conclusions where, notwithstanding that the site is located

approximately 1400m south of Lough Corrib SAC, no consideration is included of the said

conservation objectives of the said European Site, no consideration is identified in respect

of the use of the airstrip/airport by virtue of noise, disturbance or general impact, and

accordingly the said assessment for the purposes of Council Directive 92/43EEC failed to

comply with the obligations in respect of a Stage 1 assessment and where the Board of the

Respondent failed to address the limitation period of the Inspector and therefore the said

Screening for Appropriate Assessment carried out by the Respondent was fundamentally

flawed and does not comply with the test provided for in Kelly.

The Decision of the Respondent to impose condition 3 is void for uncertainty in circumstances

where the condition limits the use of the airport to a single aircraft unless otherwise agreed

in writing with the planning authority, but in no way limits the matters that may be agreed

with the planning authority relative to the numbers, type, frequency of planes. As a

consequence it could not have assessed the impact of condition 3 for the purposes of Council

Directive 92/43EEC, 2011/92EU and/or the requirements of the Planning and Development

Act 2000, and accordingly the condition is ultra vires the powers of the Respondent, contrary

to the requirements of the said Environmental Impact Assessment Directive and Habitats

Directive, is invalid and is void.

Respondent:-

The Commission makes three points as regards the Applicant’s complaints pertaining to the

Commission’s screening for AA in respect of the proposed development.

First, the contention that the Inspector conducted its screening for AA on the premise that

the proposed development was for a temporary period of five years is incorrect. The

Inspector’s AA screening determination does not reflect that their analysis leading to that

determination was on the basis that the proposed development was for a limited period of

five years. The Applicant has not pointed to any specific part of the Inspector’s report which

supports this contention and has failed to discharge the burden of proof.

Second, it is incorrect to suggest that the Commission’s AA screening (i) failed to consider

the conservation objectives of the Lough Corrib SAC and/or the use of the proposed

development by virtue of noise, disturbance or general impact and (ii) failed to formulate

the appropriate test and consider the proposed development in its appropriate form. The

Inspector and the Commission carried out a screening for AA in respect of the proposed

development and concluded that, on the basis of objective information, the proposed

development would not have a likely significant effect on any European Site either alone or

in combination with other plans or projects and therefore an Appropriate Assessment (Stage

2) of the proposed development was not required. The Inspector concluded that the

proposed development did not require a Stage 2 AA as there was no conceivable risk to any

European Site. In this regard, the Inspector further explained that the reason for that

conclusion was (a) the scale and nature of the development, (b) the absence of development

works to facilitate the development and (c) the distance from the Lough Corrib SAC and lack

of connections thereto. The Inspector was entitled to conclude that the proposed

development would not have a likely significant effect on any European Site on the basis of

the information which was before him, which included inter-alia, the Environmental Noise

Survey dated 11th December 202 and the AA Screening Report dated October 2023 (which

considered inter-alia, the conservation objectives of the Lough Corrib SAC and the potential

direct and secondary impacts of the proposed development on the European site and its

conservation objectives/qualifying interests).

Third, the Applicant’s complaints amount to an attempt to impugn the Commission’s

determination that the proposed development, either alone or in combination with other

plans or projects, is not likely to have a significant effect on any European site. The

Applicant produced no objective or scientific expert evidence to the Commission that the

proposed development would have any impact on the conservation objectives of the Lough

Corrib SAC and/or that the intended use of the airstrip in terms of noise, disturbance or

general impact would be likely to have significant effects on the Lough Corrib SAC which

runs contrary to the Commission’s determination. The Applicant, by way of mere assertions

cannot discharge the onus of proof as to an alleged inadequacy in the decision”

126. The inspector stated:

“7.4 AA Screening

7.5 I have considered the proposal to use part of existing agricultural field as an airstrip in

light of the requirements S177U of the Planning and Development Act 2000 as amended.

7.6 The subject site is located within a rural location 1.4km South of Lough Corrib SAC The

development proposal consists of using part of existing agricultural field as part of an airstrip.

There are no development works associated with the development.

7.7 Having considered the nature, scale, and location of the project, I am satisfied that it

can be eliminated from further assessment because there is no conceivable risk to any

European Site. The reason for this conclusion is as follows:

• scale and nature of the development

• No development works to facilitate the development – the development is agricultural land,

cutting of grass does not constitute development works

• Location-distance from nearest European site and lack of connections

7.8 I conclude that on the basis of objective information, that the proposed development

would not have a likely significant effect on any European Site either alone or in combination

with other plans or projects. Likely significant effects are excluded and therefore Appropriate

Assessment (stage 2) (under Section 177V of the Planning and Development Act 2000) is

not required.”

127. Lough Corrib SAC (https://www.npws.ie/protected-sites/sac/000297) was designated on 27

July 2022 by S.I. No. 384 of 2022, the European Union Habitats (Lough Corrib Special Area of

Conservation 000297) Regulations 2022.

128. Conservation objectives had been adopted on 28 April 2017 (see link above).

129. The fact that the site is located approximately 1400 m south of Lough Corrib SAC does not

give rise to effects or presumption of effects.

130. As to the complaint that no consideration is included of the said conservation objectives of

the said European Site, this is factually inaccurate having regard to the AA screening report.

131. The assertion that no consideration is identified in respect of the use of the airstrip by virtue

of noise, disturbance or general impact is insufficient to evidentially establish reasonable scientific

doubt about the conclusion.

132. Given the commission had before it the AA screening report and the inspector’s report, it is

incorrect to contend as a general proposition that it determined the application without any reference

to its obligations under the habitats directive.

133. That then leaves one final issue – the change in the proposed consent subsequent to the

inspector’s AA.

134. I agree with the applicant that where the commission is varying the inspector’s proposed

decision, they should conduct their own EIA/ EIA screening/ EIA preliminary examination if they are

differing from the inspector’s reasoned conclusion, and should conduct their own AA/ AA screening

if what is being assessed/screened is different from what the inspector assessed/screened. This

follows by analogy from Ventaway v. An Coimisiún Pleanála [2025] IEHC 406 (Unreported, High

Court, 16 July 2025).

135. That said, the commission had two main bulwarks of objection to this point – firstly that it

was not pleaded and secondly that the inspector’s analysis should be read as referable to the project

for which permission was sought.

136. Starting with the pleadings, the relevant pleas are as follows.

137. In core ground 9 (and sub-ground 33) (emphasis added):

“9. The Respondent erred in law in the manner in which it carried out the Stage 1

screening for the purposes of Council Directive 92/43EEC ... where the Board of the

Respondent failed to address the limitation period of the Inspector and who

determined the application without any reference to its obligations under the Habitats

Directive/ Council Directive 92/43EEC.”

138. In sub-ground 18 (incorrectly pleaded under core ground 4 but relevant to core ground 9)

(emphasis added):

“18. The Inspector at condition 4 limited the use of the lands to 5 years from the date of

the Order for the reason that such a limitation was in the interest of proper planning and

sustainable development. The said limitation period formed part of the consideration

in respect of Council Directive 92/43EEC ...”

139. Admittedly these two sentences would make more sense in the one paragraph but there is

no point demanding absolute perfection in pleadings. The question rather is – is this acceptably

clear? And on balance it is, even acknowledging that it could be significantly improved. The clear

meaning and necessary implication of the foregoing two statements taken together is that the

inspector’s AA screening was on the basis of a five-year limitation, the commission adopted that

screening exercise but failed to address the change in the terms on which consent was proposed,

namely the dropping of the five-year limit, and this gave rise to a breach of the habitats directive.

140. The real problem for the applicant is the second objection. What defeats this point is the

judgment of 12 April 2018, People Over Wind and Peter Sweetman v Coillte Teoranta, C-323/17,

ECLI:EU:C:2018:244.

141. Since mitigation must be disregarded at the AA screening stage, it follows that the

inspector’s report could not properly have been by reference to the project as proposed to be

conditioned. It must be taken to have been by reference to the project for which consent was sought

(i.e., not time-limited). Such a lawful construction is open here. Thus the project as screened is

the same as the project as consented so no new AA exercise was necessary. The point, albeit of

some potential relevance in some other case, just doesn’t arise on the facts. However the applicant

has helped the law to take a modest step forward into further clarification, albeit obiter, by raising

this issue.

Core ground 10 – alleged voidness for uncertainty

142. Core ground 10 is:

“10. The Decision of the Respondent the impose condition 3 is void for uncertainty in

circumstances where the condition limits the use of the airport to a single aircraft unless

otherwise agreed in writing with the planning authority, but in no way limits the matters

that may be agreed with the planning authority relative to the numbers, type, frequency of

planes. As a consequence it could not have assessed the impact of condition 3 for the

purposes of Council Directive 92/43EEC, 2011/92EU and/or the requirements of the Planning

and Development Act 2000, and accordingly the condition is ultra vires the powers of the

Respondent, contrary to the requirements of the said Environmental Impact Assessment

Directive and Habitats Directive, is invalid and is void.”

143. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

The Respondent Planning Appeals Commission has failed to undertake a valid screening for

appropriate assessment in accordance with the Habitats Directive and in accordance with

the test set out in Kelly v. An Bord Pleanala. The purported screening for appropriate

assessment that was undertaken contained gaps, lacuna and lacked complete, precise and

definitive findings and conclusions where, notwithstanding that the site is located

approximately 1400m south of Lough Corrib SAC, no consideration is included of the said

conservation objectives of the said European Site, no consideration is identified in respect

of the use of the airstrip/airport by virtue of noise, disturbance or general impact, and

accordingly the said assessment for the purposes of Council Directive 92/43EEC failed to

comply with the obligations in respect of a Stage 1 assessment and where the Board of the

Respondent failed to address the limitation period of the Inspector and therefore the said

Screening for Appropriate Assessment carried out by the Respondent was fundamentally

flawed and does not comply with the test provided for in Kelly.

The Decision of the Respondent to impose condition 3 is void for uncertainty in circumstances

where the condition limits the use of the airport to a single aircraft unless otherwise agreed

in writing with the planning authority, but in no way limits the matters that may be agreed

with the planning authority relative to the numbers, type, frequency of planes. As a

consequence it could not have assessed the impact of condition 3 for the purposes of Council

Directive 92/43EEC, 2011/92EU and/or the requirements of the Planning and Development

Act 2000, and accordingly the condition is ultra vires the powers of the Respondent, contrary

to the requirements of the said Environmental Impact Assessment Directive and Habitats

Directive, is invalid and is void.

Respondent:-

The Commission makes two points in respect of Core Ground 10.

First, the complaint that Condition No.3 is void for uncertainty and/or contrary to the

requirements of the EIA Directive and/or the Habitats Directive, is premised on a

mischaracterisation of Condition No.3 and a failure to read the entire decision holistically.

The use of the airstrip by the Notice Party’s particular aircraft formed part of the Notice

Party’s application for permission for the proposed development and formed part of the

Commission’s assessment of the proposed development for the purposes of the 2000 Act,

the EIA Directive and the Habitats Directive. It is clear that Condition No.3, read in light of

the reason for its imposition and Condition No. 1 and 2 to the Commission’s Order, provides

(i) the airstrip will only be used by the Notice Party’s specific identified aircraft, (ii) the use

of an alternative aircraft by the Notice Party on the proposed airstrip requires the written

agreement of the Planning Authority prior to the commencement of the development and

(iii) any prospective agreement reached as between the Planning Authority and the Notice

Party under Condition No.3, prior to the commencement of the development, would be

confined to the Notice Party using an alternative plane of identical model in accordance with

its intended use which was the subject of the Notice Party’s application and the Commission’s

assessment. This accords entirely with the principle that (i) Condition No.3 has to be read

in context with the entirety of the Commission’s Decision and the other conditions imposed

and (ii) any prospective agreement reached pursuant to Condition No.3 must be in

accordance with the scope of the planning permission as a whole. Accordingly, the

Applicant’s complaints that Condition No.3 is contrary to the EIA Directive and the Habitats

Directive are misconceived in light of the true meaning and effect of Condition No. 3.

Second and strictly without prejudice to the foregoing, if the Court holds that Condition No.3

is ultra vires and/or void and/or invalid as contended for by the Applicant, Condition No.3 is

severable from the Commission’s Order. The Commission’s Decision is clearly predicated on

the Notice Party’s specific model of aircraft using the proposed airstrip (i.e[.] see §7.1.10 of

the Inspector’s Report and the terms of Condition No.3 of the Commission’s Order itself).

Condition No.1 of the Commission’s Order on its own terms, confines the use of the proposed

airstrip to the Notice Party’s current specific aircraft. It cannot be said that the permission

granted for the proposed development, which would remain shorn of Condition No.3, is a

permission which had never been envisaged by the Commission.”

144. The basic reason why this point fails is that radical expansion of the permission by purported

agreement would be ultra vires. Use of a different aircraft that would have significantly different

impacts (e.g., by reason of being significantly more noisy) is not envisaged on a reasonable reading

of condition 3.

145. A reading that allowed such a radical expansion (or for example by allowing multiple aircraft

used by multiple people) is a case of reading the decision in as invalid a way as possible.

146. For good measure the condition is analogous to that imposed in the 2018 permission. The

condition is not invalid as alleged.

147. The commission suggested that under condition 1 any agreement would need to be pre the

commencement of use, meaning that if the notice party changed his plane he would need a new

permission.

148. That is unduly literal and would defeat the purpose of condition 3 which is to allow a change

of plane from time to time.

149. The applicant’s interpretation was that condition 1 (which in any event is in standard, boiler-

plate language) only applied to conditions that are required to be agreed prior to the commencement

of development as opposed to all conditions. That reasonable interpretation is how it would be read

by the reasonably intelligent well-informed non-expert addressee per Re XJS Investments Ltd. 1986

WJSC-SC 1935, [1986] I.R. 750, [1987] I.L.R.M. 659 (McCarthy J.; Finlay C.J., Henchy, Griffin and

Hederman JJ. concurring) and subsequent caselaw. Condition 3 is phrased in ongoing terms – it

makes no sense as a once off condition that can only be exercised pre-commencement of the use.

The applicant’s interpretation is preferable. But that doesn’t mean that the condition is as wide as

submitted – given the reason for the condition which relates to impacts, it does not allow agreements

that result in significantly more impacts.

150. I will address the issue by clarifying the interpretation of the condition in a recital to the

order, which will set out the interpretation of condition 3 as it would be viewed by a reasonably

intelligent, well-informed non-expert addressee of the permission.

151. I will however request the commission to draw the proposed recital to the attention of the

council and notice party in case either of them wish to make submissions within the 7 day period

proposed. In the interests of progressing matters and by way of exception from the norm, such

notification of the text of the proposed recital can take place on the basis of the text of the recital

as proposed in the draft judgment.

Core ground 11 – alleged breach of EIA/habitats directives

152. Core ground 11 is:

“Condition 3 which permits the airport to be used not only permanently, but for whatever

use is agreed between the planning authority and the Board, and without any facility to refer

the matter to the planning appeals board or for the Applicant to be aware of the nature of

any submission made or agreement entered into and for no such agreement to be published

is contrary to fair procedures, contrary to the scheme of the Planning and Development Act,

the scheme of the Environmental Impact Assessment Directive and/or the Habitats Directive

which does not permit any public participation in the said process, any procedure that would

subject the said agreement to the mandatory obligations under the Environmental Impact

Assessment Directive given the nature and class of the proposed development which is

subject to an Environmental Impact Assessment, and assessment for the purposes of the

Habitats Directive, and accordingly the said decision is ultra vires the Respondent, invalid

and void.”

153. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant:-

The Respondent Planning Appeals Commission has failed to undertake a valid screening for

appropriate assessment in accordance with the Habitats Directive and in accordance with

the test set out in Kelly v. An Bord Pleanala. The purported screening for appropriate

assessment that was undertaken contained gaps, lacuna and lacked complete, precise and

definitive findings and conclusions where, notwithstanding that the site is located

approximately 1400m south of Lough Corrib SAC, no consideration is included of the said

conservation objectives of the said European Site, no consideration is identified in respect

of the use of the airstrip/airport by virtue of noise, disturbance or general impact, and

accordingly the said assessment for the purposes of Council Directive 92/43EEC failed to

comply with the obligations in respect of a Stage 1 assessment and where the Board of the

Respondent failed to address the limitation period of the Inspector and therefore the said

Screening for Appropriate Assessment carried out by the Respondent was fundamentally

flawed and does not comply with the test provided for in Kelly.

The Decision of the Respondent to impose condition 3 is void for uncertainty in circumstances

where the condition limits the use of the airport to a single aircraft unless otherwise agreed

in writing with the planning authority, but in no way limits the matters that may be agreed

with the planning authority relative to the numbers, type, frequency of planes. As a

consequence it could not have assessed the impact of condition 3 for the purposes of Council

Directive 92/43EEC, 2011/92EU and/or the requirements of the Planning and Development

Act 2000, and accordingly the condition is ultra vires the powers of the Respondent, contrary

to the requirements of the said Environmental Impact Assessment Directive and Habitats

Directive, is invalid and is void.

Respondent:-

The Commission repeats its pleading objections in respect of Core Ground 11 and/or E35 of

the Statement of Grounds as outlined in Section H above. The Commission makes three

points in response to the substance of the Applicant’s complaints under Core Ground 11.

First, insofar as the Applicant contends that there is an invalidity as regards either the power

of the Commission to attach conditions which allow for matters to be agreed with the

Planning Authority and/or s.34(5) of the 2000 Act, that contention could only go to the

validity of the 2000 Act which has not been impugned in these proceedings

Second, the Applicant’s complaints are premised on a mischaracterisation of the terms and

purported consequences of the prospective implementation of Condition No.3. The use of

the airstrip by the Notice Party’s particular aircraft formed part of the Notice Party’s

application for permission for the proposed development and formed part of the

Commission’s assessment of the proposed development for the purposes of the 2000 Act,

the EIA Directive and the Habitats Directive. It is clear that Condition No.3, read in light of

the reason for its imposition and Condition No. 1 and 2 to the Commission’s Order, provides

(i) the airstrip will only be used by the Notice Party’s specific identified aircraft, (ii) the use

of an alternative aircraft by the Notice Party on the proposed airstrip requires the written

agreement of the Planning Authority prior to the commencement of the development and

(iii) any prospective agreement reached as between the Planning Authority and the Notice

Party under Condition No.3, prior to the commencement of the development, would be

confined to the Notice Party using an alternative plane of identical model in accordance with

its intended use which was the subject of the Notice Party’s application and the Commission’s

assessment. This accords entirely with the principle that (i) Condition No.3 has to be read

in context with the entirety of the Commission’s Decision and the other conditions imposed

and (ii) any prospective agreement reached pursuant to Condition No.3 must be in

accordance with the scope of the planning permission as a whole. Accordingly, the

Applicant’s complaints that Condition No.3 is contrary to the EIA Directive and the Habitats

Directive are misconceived in light of the true meaning and effect of Condition No. 3. The

inclusion of Condition No.3 in the Commission Order was a lawful exercise of the

Commission’s power under section 34(5) of the 2000 Act which permits a limited matter to

be left over for agreement between the Notice Party and the Planning Authority

Third, if the Court holds that Condition No.3 is ultra vires and/or void and/or invalid as

contended for by the Applicant, Condition No.3 is severable from the Commission’s Order.

The Commission’s Decision is clearly predicated on the Notice Party’s specific model of

aircraft using the proposed airstrip. Condition No.1 of the Commission’s Order on its own

terms, confines the use of the proposed airstrip to the Notice Party’s current specific aircraft.

It cannot be said that the permission granted for the proposed development, which would

remain shorn of Condition No.3, is a permission which had never been envisaged by the

Commission.”

154. Insofar as concerns EIA, this is based on a false premise. The EIA directive does not apply

as set out above.

155. Insofar as concerns AA, the application for permission and the permission granted relate to

the applicant’s use of the airstrip. Radical expansion of that via purported agreement under condition

3 would fall outside the permission, so no inadequacy in the AA screening has been demonstrated

by reason of not considering such contingencies.

Summary

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

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

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

(i) it is settled law that applicants are confined to their pleadings;

(ii) applying such law to the facts here, any arguments going beyond the pleadings do

not fall for consideration;

(iii) it is settled law 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;

(iv) applying such law to the facts here, no breach of the duty to consider submissions

has been demonstrated;

(v) it is settled law that Directive 2011/92/EU of the European Parliament and of the

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

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

that are not listed;

(vi) applying such law to the facts here, this is not such a project;

(vii) it is settled law that the EIA directive does not apply to development consisting

of use without physical intervention;

(viii) applying such law to the facts here, this is a use permission to which EIA does not

apply;

(ix) it is settled law that the details of the project can change during the process as

a result, inter alia, of public participation and European assessments;

(x) applying such law to the facts here, the change in the duration of the permission as

between the council and commission is not in itself unlawful;

(xi) it is settled law that the mitigation should not be considered for the purposes

of AA screening;

(xii) applying such law to the facts here, the inspector’s AA screening must therefore be

taken to be referable to the project prior to being conditioned, in which case the AA

screening covered the project as consented by the commission meaning that there

was no necessity for a fresh screening exercise;

(xiii) it is settled law 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;

(xiv) applying such law to the facts here, it has not been demonstrated that the margin

of evaluation was generally exceeded here;

(xv) it is settled law that judicial review is concerned with the legality rather than the

merits of the decision;

(xvi) applying such law to the facts here, the thrust of the applicant’s complaints involve

a merits-based disagreement;

(xvii) it is settled law that the standard as to reasons can be summarised as an obligation

to provide the main reasons on the main issues;

(xviii) applying such law to the facts here, adequate reasons were given;

(xix) 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

(xx) applying such law to the facts here, the applicant has not overcome that onus;

(xxi) it is settled law that an applicant must have discharged the onus of proof to

establish all facts necessary for relief;

(xxii) applying such law to the facts here, the applicant here has not generally done so;

(xxiii) it is settled law that in the context of a challenge to an environmental assessment,

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

(xxiv) applying such law to the facts here, the applicant has not generally done so;

(xxv) it is settled law that judicial review is a discretionary remedy within established

doctrinal boundaries; and

(xxvi) applying such law to the facts here, discretion should be generally exercised against

relief on points that were not made to the decision-taker.

Order

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

(i) the proceedings be dismissed;

(ii) subject to any contrary submissions by the council or notice party within the time

specified below, it be recited in the order that condition 3 of the permission be

interpreted as follows:

(a) insofar as the condition involves provision for agreement with the planning

authority for the use of a different aircraft, this may be exercised from

time to time as occasion requires, and is not one of the conditions to which

condition 1 applies insofar as that latter condition requires agreement to

be reached prior to the commencement of the development;

(b) condition 3 does not permit agreement for the use of more than one

aircraft at any one time but only for the substitution of a different aircraft

(from time to time in the future) for that used by the developer as of the

date of the permission; and

(c) condition 3 does not permit agreement for the use of an alternative aircraft

that is significantly different in terms of its adverse effects on the receiving

environment so as to create a genuine planning issue;

(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 15 June 2026 to confirm the foregoing.