High Court dismisses applicants' nullity claim against planning decision for wastewater plant due to procedural failures.

[2026] IEHC 434

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001205]

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

ACT 2000

BETWEEN

MARTIN BUSHER, JOSEPH MC CLOSKEY, BRIAN MELICAN, IVAN GRAYDON, TOM BOLAND

AND TERRY REYNOLDS

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

UISCE ÉIREANN

NOTICE PARTY

(No. 2)

Date of impugned decision: 11 June 2025

Date proceedings commenced: 5 August 2025

Date of main hearing: 17 June 2026

Date draft judgment circulated: 26 June 2026

JUDGMENT of Humphreys J. delivered on Friday 3 July 2026

1. As noted by the commission, “[t]here is no dispute about the need, including urgent

environmental need, for the Proposed Development – noting that Kilkee is not currently served

by any wastewater treatment infrastructure” (submissions para. 2, emphasis added), a situation

which has resulted in “untreated wastewater being discharged to coastal waters”

(commission order, emphasis added). “Untreated wastewater” covers raw sewage including human

waste being directly discharged into the sea, something that has been ongoing for decades. The

treatment plant was found acceptable by the commission following a consideration of the relevant

legal and policy context and submissions by stakeholders. The applicants as area residents naturally

have a merits-based disagreement with the project in their locality, but the question for

consideration is whether their objections give rise to grounds rendering the decision a nullity.

Judgment history

2. In Busher v. An Coimisiún Pleanála (No. 1) [2026] IEHC 362 (Unreported, High Court, 10

June 2026), Farrell J. rejected a motion seeking an order requiring the commission to explain its

decision.

Geographical context

3. The project (https://www.pleanala.ie/en-ie/case/321258) is a 10 year permission for the

construction of a new foul pumping station and a new wastewater treatment plant and all associated

works at lands located at Kilkee, Co. Clare. It is located at or near the following:

https://maps.app.goo.gl/ztiKzR9CzcgVKdW68 .

Parties

4. The applicants are local residents, the respondent is An Coimisiún Pleanála, the decision-

maker, and the notice party is Uisce Éireann (UÉ), the developer.

Facts

5. The initial application for an Environmental Protection Agency (EPA) waste water discharge

licence (WWDL) was made on 19 September 2008 (https://leap.epa.ie/licence-

profile/D0078/versions/781f76ab-203e-e111-ab87-0050568a69e2).

6. The EPA granted a WWDL in respect of the Kilkee Agglomeration (D0078-01) on 30 July

2013, and condition 5.4 required that specified improvement works, which related to the

construction and operation of a wastewater treatment plant (WWTP) providing secondary treatment,

be completed by 31 December 2015.

7. UÉ states that “Since 2014, Uisce Éireann has undertaken a significant programme to

address untreated sewage discharges throughout the country. Every case/ project is individual and

needs an individual solution and is subject to design, construction and financial constraints. Time

and resources are required to develop every individual project. Uisce Éireann has spent significant

time and resources in delivering these critical infrastructure projects throughout Ireland over the

last 12 years”.

8. Uisce Éireann made a planning application (Planning Reg. Ref. 24/60002) to Clare County

Council for the proposed development on 2 January 2024. The application was accompanied by a

suite of documentation.

9. The development comprises inter alia, a wastewater treatment plant and a new foul pumping

station at lands located at Kilkee, Co. Clare.

10. The proposed development is divided into two sites – Site A and Site B. In this respect, the

proposed pumping station is located at Site A and the proposed WWTP is located at Site B.

11. Submissions/observations were received on the proposed development, including from the

applicants, in or around January 2024.

12. The council’s environment section planning report by an executive scientist, dated 23

February 2024, raised no issue with the proposed development in terms of odour or noise impacts.

13. The council’s planner prepared a report, dated 26 February 2024, on the application and

recommended that further information be sought from UÉ on a number of issues.

14. On 14 August 2024, through its consultants, UÉ responded to the request for further

information – which included revisions to the proposed development and a suite of further

documents.

15. Submissions/observations were received on UÉ’s further information response, including

from the applicants, in or around October 2024. In this regard, the submission/observation from Mr

Busher, received by the council on 1 October 2024, included the views of a consultant he engaged

– namely, Shirley Lyons who opined that the proposed planting may not be successful.

16. The council’s environment section prepared a report, dated 11 October 2024, on the further

information received, finding same to be acceptable in terms of the approach to addressing potential

odour impacts which may arise from the proposed development.

17. The council’s planner prepared a further report and ultimately recommended that permission

be refused. This was reflected in the chief executive’s order, dated 16 October 2024.

18. Uisce Éireann, through its planning consultant, lodged an appeal with the commission, dated

12 November 2024. The appeal submission comprised a number of appendices aimed at addressing

the council’s reasons for refusal.

19. The council and the applicants made submissions on the appeal. In this respect, the

submission from Mr Busher relied upon the views of the consultant he engaged as part of his

submission to the council.

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

inspection on 27 February 2025, the inspector prepared a report, dated 16 April 2025. Same

recommended that permission be refused for the proposed development on the basis that the

inspector was not satisfied that UÉ had demonstrated that the development site was “optimal in

terms of its impact on the landscape and amenities of the area” and would have “an adverse effect

on the visual amenities of the area, the character of the receiving landscape, and the views from

the designated scenic route” (see e.g. §11.6, §§12-13 of the inspector’s report).

21. As per the commission’s direction (BD-019745-25) (ABP-321258-24) dated 22 May 2025,

the commission considered the submissions on file and the inspector’s report and, for specified

reasons and considerations and subject to conditions, decided that it would grant permission for the

proposed development.

22. By way of order (ABP-321258-24) dated 11 June 2025, the commission decided to grant

permission for the proposed development, subject to six conditions. The order outlined the

commission’s reasons for disagreeing with the inspector’s recommendation, which included, inter

alia, reasons for not agreeing with the inspector’s conclusions/approach as to the “optimal” nature

of the site. The commission’s order includes a series of conditions relating to, inter alia, landscaping

at the foul pumping station (Site A) and the site of the WWTP (Site B), with the latter to be carried

out in accordance with “Alternate Proposal: Drawing 22196_Kilkee_Alternative Proposal ABP Appeal”

(received by the commission on 12 November 2024) (see condition 6 attached to the order).

23. Whilst not relevant to the grounds of challenge in these proceedings, by way of additional

commission order dated 5 August 2025, the previous order was amended – pursuant to s. 146A of

the 2000 Act – to include a new condition 7 concerning development contributions.

24. Uisce Éireann lodged an application for a revised WWDL with the EPA on 18 July 2025 (ref.

D0078-02), which is still “under assessment” – https://leap.epa.ie/licence-

profile/D0078/versions/0e74d8cd-d053-4f88-ae6f-26c7e5d49ae9.

25. The proposed development is included in UÉ’s Capital Investment Plan for 2024-2029.

Procedural history

26. The applicants sought leave to apply for judicial review on 5 August 2025.

27. The matter came before the court on 15 September 2025, when the court treated the

application as an ex parte application and granted leave to apply for judicial review. It granted the

applicants liberty to file a further affidavit containing expert evidence.

28. The matter came before the court on 29 September 2025, and was adjourned for mention.

The developer sought a hearing date and the case was listed for hearing on 24 March 2026 with

callover on 9 March 2026.

29. The commission filed its statement of opposition on 27 January 2026.

30. UÉ had not filed any statement of opposition by 9 March, and it sought to do so and to vacate

the hearing date. It ultimately filed its opposition on 9 April 2026.

31. The original hearing date of 24 March 2026 was vacated and the court assigned a new

hearing date of 17 June 2026, with a callover on 8 June 2026.

32. The applicants then sought directions requiring the commission to give a full and candid

account of certain matters relating to core grounds 1 to 3. They issued a motion to this effect on 8

May 2026. That motion came on for hearing before Farrell J. on 4 June 2026. On 9 June 2026, the

court indicated that the motion was refused. Farrell J. delivered the court’s written judgment in

respect of that motion on 10 June 2026.

33. On 26 May 2026, the applicants served and filed their written submissions.

34. On 10 May 2026, the commission served their written submissions.

35. On 10 May 2026, Uisce Éireann served their written submissions.

36. On 10 June 2026, Farrell J. rejected a motion to have the commission further explain their

decision, as noted above.

37. The matter was heard on 17 June 2026.

38. 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.

39. On 26 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.

40. 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).

41. 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.

42. 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.

43. 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.

44. 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.

45. The deadline for such comments from the parties was to be 16:00 on Tuesday 30 June 2026.

Responses were as follows:

(i) applicants – no comments;

(ii) commission – helpfully suggested some corrections; and

(iii) UÉ - helpfully suggested some corrections.

Relief sought

46. The reliefs sought are as follows:

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

of the Respondent (formerly An Bord Pleanala, now An Coimisiún Pleanala - ACP) dated 11

June 2025, file reference ABP-321258-24, granting the Notice Party (Uisce Éireann)

permission to construct a wastewater treatment plant, pumping station and associated

works at Dunlicky Road, Victoria Park and other locations in the town of Kilkee and County

of Clare.

2. Such Declaration(s) of the legal rights and/or legal position of the Applicants and (if

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

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

3. A Declaratory Order pursuant to Section 7 of the Environment (Miscellaneous

Provisions) Act 2011 as amended, Order 99 of the Rules of the Superior Courts as amended,

the inherent jurisdiction of the Court, Article 47 of the Charter on Fundamental Rights of the

European Union, Articles 4(3) and 19(1) of the Treaty on European Union, and/ or Article 9

of the Convention on Access to Information, Public Participation In Decision-Making and

Access to Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (the

Aarhus Convention), confirming that Section 50B of the Planning and Development Act 2000

as amended and/ or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act

2011 apply to the Grounds set out at Part E hereof.

4. A stay, if necessary, on the carrying out of the impugned development pending the

determination of the proceedings.

5. Further or other orders

6. Costs.”

Grounds of challenge

47. The core grounds of challenge are as follows:

“Part E1, Core Grounds

1. The Decision is invalid because ACP misdirected itself in law, finding that noise and

odour were matters to be addressed by the EPA in licensing under Wastewater Discharge

(Authorisation) Regulations 2007 (SI 684/2007) as amended. In fact those Regulations are

concerned only with the wastewater discharges from a wastewater treatment plant (WWTP),

not with issues of odour, lighting or noise and they contain no provision precluding ACP from

addressing any matter that is ordinarily a matter relating to the proper planning and

sustainable development of the area.

2. The Decision is invalid because ACP failed to consider or determine a relevant issue,

namely the potential impact of site lighting on neighbouring properties, or to give any

reasons in relation to same contrary to S34(10) PDA.

3. The Decision is invalid because ACP disagreed with its Inspector as to whether the

landscaping proposed was adequate but, in giving reasons for disagreeing with him, it failed

to address his finding that the planting element of the proposed landscaping would probably

fail, and it relied on that planting in finding it was satisfied that the landscaping proposals

would protect the amenity of the area. In so doing it failed to give adequate reasons, failed

to determine a main issue, failed to have regard to a relevant consideration, and / or acted

unreasonably.

4. The Decision is invalid because ACP misdirected itself in law as to the requirement

for secondary treatment, in that it identified that European Union law and policy were

relevant to the appeal, but failed to identify that A6 of the revised UWWT Directive

(2024/319) will require secondary treatment of Kilkee’s wastewater by 31 December 2037,

and that, by authorising a primary treatment plant shortly before a secondary treatment

plant becomes obligatory, at a time when huge resources are required to comply with the

judgment in Case C-427/17, it was seriously compromising the achievement of the results

that are required. It further misdirected itself in law in failing to consider Uisce Eireann’s

compliance and sustainability obligations under S31 WSA, and the objective of efficient and

sustainable development of water infrastructure in accordance with the Water Services Policy

Statement 2018-2025. Further or in the alternative, ACP misdirected itself in law by failing

to recognise that it was precluded by the above factors from granting permission for the

Proposed Development.”

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

as follows:

“Core Ground 4 is not being pursued.”

The impugned decision

49. The impugned decision provides as follows:

“Decision

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

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

set out below.

Reasons and Considerations Having regard to the applicable policy context, including the

provisions of the Clare County Development Plan 2023-2029 wherein Objective CDP 1 1.32

– Wastewater Treatment and Disposal supports the implementation of Uisce Eireann

Investment Plans and advocates the provision, by Uisce Eireann, of adequate wastewater

treatment facilities, and having regard to the site location, scale and the identified need and

purpose of the proposed development comprising a wastewater treatment plant and

pumping station and associated works in Kilkee where currently there is no wastewater

treatment infrastructure, and taking into account the landscape proposals put forward, the

Board was firstly satisfied that, subject to compliance with the conditions set out below, the

proposed development would deliver much needed infrastructure to address the situation

where untreated wastewater is currently being discharged to coastal waters, consequently

serving to protect environmental water quality and manage all availability, resilience and

efficiency of wastewater services in Kilkee and provide adequate wastewater treatment for

the future development requirements for the area. The Board was also satisfied that the

proposed development on the subject sites (Site A and B), including the wastewater

treatment plant, is an acceptable development type, scale and form and this type of

infrastructure is not uncommon in the landscape. The Board considered that it would not

be visually prominent, would not seriously injure the visual or residential amenities of the

area or negatively impact on the landscape character or on the tourism resource of Kilkee

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

development of the area.

In deciding not to accept the Inspector's recommendation to refuse permission, the Board

firstly agreed with the Inspector that the foul pumping station at Site A is appropriate. The

Board also agreed with the Inspector with respect to the wastewater treatment plant at Site

B, that there are many precedents for such treatment plants to be located close to dwellings

without impact. The Board shared the view of the Inspector that the structures within the

site are generally low and, as such, a combination of ditches/bunds to match those existing

and appropriate planting can be expected to minimise its impact. However, the Board did

not share the view of the Inspector that given the extensive nature of the site and scale of

the works it would be obtrusive to some degree and would give rise to an adverse effect on

the visual amenities of the area, the character of the receiving landscape, or the views from

the designated scenic route at Dunlicky Road. The Board noted that the Inspector considered

that, in balancing the proposal with the need for the infrastructure, the site may be

acceptable, but only on the basis that there are no obvious significantly superior sites and

that the applicant hasn’t demonstrated that the site is optimal in terms of its impact on the

landscape and amenities of the area. In considering this matter, the Board noted, in

agreement with the appellant’s case, that a specific site selection process for the proposed

development type is not identified in planning policy (or in planning law). Notwithstanding,

the Board also noted that the appellant undertook a multi-criteria analysis to comparatively

assess potential sites against a wide range of planning technical and economic criteria, all

which led to the chosen site (Site A and Site B) that have been brought forward in the

planning application. In considering the planning merits of the proposal before it, the Board

was satisfied that the site chosen was an acceptable location and, in particular, the

wastewater treatment plant would not give rise to any unacceptable impacts on the

landscape, visual or residential amenities of the area or on the tourism resource. While views

of the plant would be available from various vantage points, given the development is

appropriate, and noting the physical interventions in the receiving landscape and the

landscape proposals including native screening and taking the photomontages into

consideration, the Board was satisfied that the development would not seriously injure the

visual or residential amenities of the area or negatively impact on the landscape character

or the tourism resource of the Kilkee. Accordingly, the Board did not agree with the

Inspector’s finding that the applicant has not demonstrated that the chosen location for the

wastewater treatment plant at site 'B’ is optimal in terms of its impact on the landscape and

amenities of the area.

Appropriate Assessment: Stage 1:

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

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

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

agreed with the screening assessment and conclusion carried out in the Inspector’s Report

that the Kilkee Reefs Special Area of Conservation (Site Code 000428) is the only European

Site in respect of which the proposed development has the potential to have a significant

effect in view of the Conservation Objectives for the site and that Stage 2 Appropriate

Assessment is, therefore, required.

Appropriate Assessment: Stage 2:

The Board considered the Natura Impact Statement, and all the other relevant submissions

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

development on the Kilkee Reefs Special Area of Conservation (Site Code 000428) in view

of the site’s Conservation Objectives. The Board considered that the information before it

was sufficient to undertake a complete assessment of all aspects of the proposed

development in relation to the site’s Conservation Objectives using the best scientific

knowledge in the field. In completing the assessment, the Board considered, in particular,

the following:

(i) the site specific Conservation Objectives for the European Site,

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

individually or in combination with other plans or projects, and

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

the Appropriate Assessment, the Board accepted and adopted the Appropriate Assessment

carried out in the Inspector’s Report in respect of the potential effects of the proposed

development on the aforementioned European Site. In overall conclusion, the Board was

satisfied that the proposed development would not adversely affect the integrity of the

European Site in view of the site’s Conservation Objectives and that there is no reasonable

scientific doubt as to the absence of such effects.

Conditions

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

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

particulars received by the planning authority on the 16th day of August 2024 and as

received by An Bord Pleanála on the 12th day of November 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 proposed

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

Reason: In the interest of clarity.

2. The period during which development hereby permitted may be carried out shall be 10

years from the date of this Order.

Reason: In the interest of clarity.

3. The proposed development shall be carried out in full compliance with all mitigation

measures as outlined in the Natura Impact Statement received by the planning authority on

the 16th day of August, 2024.

Reason: To avoid any likelihood if significant effects on any European site, having regard to

the qualifying interest and conservation objectives for any such site.

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

and 1900 from Mondays to Fridays, inclusive, between 0800 and 1400 hours on Saturdays

and not at all on Sundays or public holidays. Deviation from these times shall only be

allowed in exceptional circumstances where prior written approval has been received from

the planning authority.

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

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

finalised Construction Management Plan, which shall be submitted to, and agreed in writing

with, the planning authority prior to commencement of development. This plan shall provide

details of intended construction practice for the proposed development, including noise

management measures and off-site disposal of construction waste.

Reason: In the interest of public safety.

6. The site of the foul pumping station (Site A) shall be landscaped in accordance with

proposals received by the planning authority on the 16th day of August 2024 and the

landscaping and maintenance shall include the recommendations put forward and contained

therein. The site of the Waste Water Treatment Plant (Site B) shall be landscaped in

accordance with the ‘Alternate Proposal’ s identified on Drawing: 22196_Kilkee_Alternative

Proposal ABP Appeal received by the Board with the appeal on the 12th day of November

2024. Finalised landscaping drawings and maintenance schedules reflecting these

requirements shall be submitted to and agreed with the planning authority, prior to the

commencement of the development.

Reason: In the interest of visual amenity, biodiversity and for reasons of clarity.”

Some general considerations

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

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

In that regard the following are notable:

(i) In Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 (Unreported,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

confined to their pleadings.

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

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

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

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

pleadings with particular clarity.

(iv) In 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.

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

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

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

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

Supreme Court decided that evaluative judgements involving a significant degree

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

are reviewable on an irrationality standard.

(vi) In 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.

(vii) 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.

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

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

JJ. concurring) at para. 137); Rana v. Minister for Justice [2024] IESC 46

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

Hogan, Collins and Donnelly JJ. concurring)). There are limited situations where

express treatment is required, particularly of main reasons: see Sherwin v. An Bord

Pleanála [2024] IESC 13 which dealt with a particular legal situation regarding

material contravention.

(ix) 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.

(x) 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).

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

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

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

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

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

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

itself, for example in an inspectors report, or in documentation before the decision-

taker: Killegland Estates Ltd v Meath County Council [2023] IESC 39 (§71), Lanigan

v Barry [2016] IESC 46; [2016] 1 I.R. 656.

(xii) In 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), the Supreme Court adopted an approach that is consistent with the

view that a decision should not be read as invalid if a valid reading is reasonably

available.

(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 including

disproportionality of certiorari (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).

(xiv) In Heather Hill v. An Bord Pleanála [2022] IESC 43, [2024] 2 IR 222 the Supreme

Court set out the appropriate approach to statutory interpretation having regard

to a holistic view of text, context and purpose, to the effect that the words of the

section are the first port of call in its interpretation, to be construed having regard

to the context of the section, of the Act in which the section appears, the pre-existing

relevant legal framework and the object of the legislation insofar as discernible. The

onus is on those contending that a statutory provision does not have the effect

suggested by the plain meaning of the words chosen by the legislature to establish

this.

51. It is the function of a trial court to apply such principles here.

Preliminary issues

52. The parties’ positions on preliminary issues as recorded in the statement of case are

summarised as follows:

“Commission’s Position

1. The Replying Affidavit of Mr Busher largely comprises legal submissions and proffers

opinions/evidence on issues which he is not an expert on and is not independent (as a litigant

in the proceedings) – this is not appropriate (Kennedy v. An Bord Pleanála [2024] IEHC 570;

Pierse v An Bord Pleanála [2018] IEHC 669 §15–§16). Legal submissions are to be made in

the normal course. Further, seeking to attribute the Commission’s legal interpretation to Ms

Lannen is incorrect. Whilst the Applicants do not refer to same (without explanation), as Ms

Lannen’s Verifying Affidavit states:

‘The position of the Commission in relation to the grounds of challenge raised by the

Applicants is set out in the Commission’s Statement of Opposition, filed on its behalf. The

majority of what is contained in the Statement of Opposition relates to matters of law and

will be dealt with by way of legal submission and on the basis of the facts, evidence and

matters that were before the Commission – as exhibited by the parties herein. (§7)

…

I would…simply refer here to the Commission Order and the Commission Direction and what

is recorded in each in terms of what the Commission says it did in reaching its decision on

the subject application for planning permission. I would also refer here to the actual text of

the evidence, documents and matters – including the planning application documentation,

further information and appeal submission submitted by UE – before the Commission when

it made its decision on the subject application. (§9)’

2. As appears, Ms Lannen does not purport to offer any view on the law or the

interpretation of the Commission’s Decision. It is acceptable for Ms Lannen to swear an

affidavit noting that all documents relating to the decision are exhibited – see West Wood

Club Ltd v An Bord Pleanála [2010] IEHC 16 (§20-§23).

3. The Commission objects to the admissibility of the Affidavits of Michael Bull and the

complaints made regarding substantive aspects of the 2005 Regulations – such as design

mitigation. In this regard, the Commission relies on Doyle v An Coimisiún Pleanála [2025]

IEHC 725 (§50 et seq); Oxigen Environmental Unlimited Company v An Coimisiún Pleanála

[2025] IEHC 632 (§49 et seq); Fahybeg Windfarm Opposition Group v. An Bord Pleanála

[2025] IEHC 310 (§18 et seq); Sliabh Luachra v An Bord Pleanála [2019] IEHC 888 (§30 et

seq); and Wild Irish Defence CLG v An Coimisiún Pleanála [2025] IEHC 726 (§76 et seq).

The Commission notes that the said Affidavits seek to advance submissions that were never

made, without explanation, during the planning process - Friends of the Irish Environment

CLG [2026] IEHC 205 (§44 et seq). The Affidavits offer no explanation as to why this

information, which purports to raise substantive evidential issues, was not put before the

Commission during the planning process – being the appropriate forum for such evidence.

Therefore, the Court should not permit same to be utilised to impugn the Commission’s

Decision – Monkstown Road Residents Association v An Bord Pleanála [2022] IEHC 318.

Notice Party’s Position

4. Uisce Éireann’s position is that the first affidavit and report of Michael Bull, and his

replying affidavit, are inadmissible or entitled to no weight and cannot be relied on to impugn

the validity of the Commission’s Decision, because they amount to an impermissible merits-

based challenge raising matters that could and should have been advanced during the

planning process rather than for the first time in judicial review proceedings (Kennedy v. An

Bord Pleanála [2024] IEHC 570 at §58; Sliabh Luachra v. An Bord Pleanála [2019] IEHC 888

at §35). In particular, any criticism of the adequacy of the information before the

Commission regarding odour mitigation is too late (as it should have been made during the

planning process – but without explanation, was not) and unsustainable, given the curial

deference owed to the Commission on such matters and the absence of any pleaded

irrationality challenge (St. Margaret’s Recycling v An Bord Pleanála [2024] IEHC 94 at §72).

Further, correctly analysed, Mr Bull’s evidence does not fall within the categories identified

in Reid v. An Bord Pleanála [2021] IEHC 230. In any event, on a de bene esse basis, Mr

Bull’s evidence has been answered by the two affidavits of Denis O’Connor of EPS (filed by

Uisce Éireann) an experienced engineer involved in the relevant design reports, and absent

cross-examination any conflict in evidence must be resolved against the Applicants, who

bear the onus of proof (McGowan v. An Coimisiún Pleanála [2025] IEHC 405 at §50(viii);

Hoctor v. An Coimisiún Pleanála (No. 1) [2026] IEHC 65 at §55; Fahybeg Windfarm

Opposition Group v. An Bord Pleanála [2025] IEHC 310 at §18). Further, there is an

unexplained statement in section 1 of Mr Bull’s report that it was prepared for ‘Wates

developments’, a non-party whose connection to the Applicants has not been explained

despite the issue having been raised in Uisce Éireann’s Statement of Opposition.

5. The second affidavit of Martin Busher, is in substance inadmissible, as it very largely

consists of argument, submissions, and commentary, including to a certain degree in respect

of technical issues where Mr. Busher is a litigant in the action, is not independent and his

evidence is not expert evidence (per Kennedy v. An Bord Pleanála [2024] IEHC 570 at

§57,§58; Pierse v. An Bord Pleanála [2018] IEHC 669 at §15-§16).

Applicants Position

6. Insofar as the further Affidavit of Martin Busher refers to matters that are matters

for legal submission, he states that he is so advised and believes those matters to be correct,

and he does so for the purposes of setting out the context in which he is making the factual

averments which he also makes. Insofar as his Affidavit interprets ACP’s file, it does so in

response to the interpretation placed on that file in the Statement of Opposition which is

verified as to fact by Brigitte Lannen. It was appropriate to address these matters in order

to confirm that the interpretations inferred by Ms Lannen are not accepted by the Applicants.

7. The Affidavit of Mr Bull is intended to confirm that there is no substantive

consideration of odour by ACP, and that the documents before it do not contain the evidence

needed to address risk of odours. This is relevant insofar as expert evidence may be required

to prove that there was no material before ACP relating to odour on foot of which it could

have reached any conclusion other than the conclusion which the Applicants contends it did

reach – namely that odour was not a matter for it to consider or determine. This is an

argument in the alternative: the Applicants’ primary case is that such evidence is not

necessary, first because it is clear what ACP did, and second because, reading the application

documents as an ordinary member of the public, it is obvious that they do not give any

substantive information to show if or how the proposed development is designed to address

odours. However, if such expert evidence is required, the Affidavit of Mr Bull provides it for

the information of the Court. The Affidavit is admissible because it relates to interpretation

of the evidence that was before ACP, and is not seeking to introduce new evidence.

8. There is no rule of law that says expert evidence must first be put to ACP. ACP is

supposed to be an expert body, exercising its expertise, and the purpose of expert evidence

is to enable the Court to understand any issues which it considers require expert evidence

to confirm whether the evidence before ACP addressed the issue it was required to address,

or was capable of supporting the conclusion which it reached.”

53. As regards the preliminary issues raised, these can be addressed as follows:

(i) the second affidavit of Mr Busher is impermissible and/or of no weight (a) insofar as

it consists of what are effectively opinions, commentaries and legal submissions, (b)

insofar as it consists of evidence on matters of expert opinion on which he is not an

expert and not independent, and (c) insofar as it tendentiously attributes the

interpretation advanced by submission in the legal defence of the proceedings to the

commission’s deponent specifically; and

(ii) the affidavits/report of Mr Bull are inadmissible and/or of no weight (a) by reason of

advancing points never made to the commission that cannot, either generally or a

fortiori in the absence of valid explanation, properly be a basis for judicial review

and (b) by reason of having been replied to by Mr O’Connor and accordingly by

reason of the onus of proof not having been discharged absent cross-examination:

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).

54. No averments of any substance in those affidavits have been identified that do not come

within the foregoing.

55. I am told that the reference to Wates developments was a cut and paste error.

Whether the points were made at the appropriate time

56. The parties’ positions on whether the applicant’s points were made at the appropriate time

as recorded in the statement of case are summarised as follows:

“(i) points contended to be referenced in submissions/affidavits/ statement of case/

otherwise in the proceedings (excluding pleadings) but not made in the process and not

pleaded;

Notice Party’s Position:

16. In relation to Core Ground 3, the Applicants belated attempt, via assertions below

in this Statement of Case (having not previously made the point in either its pleadings or

Written Submissions), regarding its suggestion that the failure by the Applicants to take

account of the revised landscape proposals is ‘irrelevant’, are misconceived and not pleaded

nor included in the Applicants written submissions. Insofar as the Applicants contend it is

purely a legal argument, it is an incorrect one.

17. The Commission agrees with the position of UE.

Applicant’s Position

18. It is quite clear from the pleadings that the point as to what is wrong with the finding

on landscaping arises out of what the inspector said and what the commissioners then did.

How that came to be an issue is clearly irrelevant, whether stated to be so or not, when the

complaint is about what happened subsequently.

(ii) points contended to have been made in the process, but not pleaded;

Notice Party’s Position:

19. Uisce Éireann does not understand that any point made in the process but not

pleaded is at issue in the proceedings.

20. The Commission agrees with the position of UE.

Applicant’s Position

n/a

(iii) points contended to be referred to narratively/contextually in the pleadings but without

any properly formulated legal plea;

Notice Party’s Position:

21. Uisce Éireann does not understand that any point referred to narratively/contextually

but without being a properly formulated legal plea is at issue in the proceedings.

22. The Commission agrees with the position of UE.

Applicant’s Position

n/a

(iv) points contended to have been pleaded but not made by the applicant in the process;

Notice Party’s Position:

23. In relation to Core Ground 1, the Applicants did not raise complaints during the

planning process about the Proposed WWTP by reference to the European Communities

(Wastewater Treatment) (Prevention of Odours and Noise) Regulations 2005 S.I. No.

787/2005 (the ‘2005 Regulations’) or the evidence before the Commission which addressed

same.

24. The Commission agrees with the position of UE – no complaint was made by

reference to the 2005 Regulations (or the substantive requirements of same) during the

planning process.

Applicant’s Position

25. This point is already dealt with in submissions in reply to the Opposition received.

The Applicants raised the issue of odours and relied on the Commission to use its expertise

to address that issue in accordance with law. UE raised the issue of the 2005 Regulations

so it was before the Commission and they should have known they had to apply it correctly.

There is no obligation on a member of the public to make specific legal arguments to the

Commission – it is entitled to assume it will direct itself correctly in law. There was no error

in the Commission’s approach at the time the appeal came before it, and the error only crept

in when the Inspector was writing his report. At that stage, the Applicants had no

opportunity right to intervene to correct his error. They had to wait for the decision. It has

never been the law that an applicant must advise the Commission to direct itself correctly

in law and to warn it of errors that it might make, if it wants to be able to rely on those

errors subsequently. See, Environmental Trust Ireland, §238, ‘objectors are not expected

to have to expensively retain their own experts and may expect the Board to itself deploy

all necessary expertise in the “detailed scrutiny” of planning applications – and do so to a

“high standard of investigation”’. If the Commission misdirects itself in law when taking its

decision, that is a matter which the Applicants are entitled to raise for the first time in judicial

review.

(v) points contended to have been both made in the process and also pleaded;

Notice Party’s Position:

26. Uisce Éireann accepts that the Applicants raised certain issues concerning Core

Grounds 1,2 and 3 in the process concerning the issues of odour, lighting and landscaping.

As noted above, relevant to Core Ground 1, the Applicants did not raise complaints during

the planning process about the Proposed WWTP by reference to the 2005 Regulations or the

evidence before the Commission which addressed same. Relevant to Core Ground 2, no

expert evidence was adduced or relied on by the Applicants during the planning process in

relation to lighting. Relevant to Core Ground 3, although Mr Busher relied on a Ms. Shirley

Lyons’ view that the planting might fail, that criticism addressed the earlier Council-stage

landscaping proposal - not the revised appeal landscape proposal that the Commission

granted permission for per Condition 6 of its Decision.

27. The Commission agrees with the position of UE.

Applicant’s Position

28. The Applicant has already addressed the 2005 Regulations under the previous

heading.

29. As regards CG2, lighting, whether the lighting deals with impact on human beings,

not just impact on protected fauna, is not a matter that requires expert evidence. It is a

matter to be determined by the Court, reading the decision and applying the XJS rule of

interpretation of planning documents.”

57. These issues can be addressed as follows:

(i) The applicants did not join issue with the alternate landscaping proposal at

commission level. Their submissions related to the second landscaping proposal in

the further information (FI) which was later superseded. They cannot now succeed

in getting the decision quashed having failed to interrogate the updated proposal

before the commission.

(ii) As the applicants did not raise complaints during the planning process about the

proposed WWTP by reference to the European Communities (Wastewater

Treatment) (Prevention of Odours and Noise) Regulations 2005 (S.I. No. 787 of

2005) or the evidence before the commission which addressed the regulations, and

as they could have done so and have not properly explained why they did not do so,

it would be inappropriate to grant certiorari on the basis of such a technical ground

that they only raised after the event.

58. If I am wrong about the foregoing I will address the merits in any event.

Domestic law issues

Core ground 1 – misdirection concerning role of EPA

59. Core ground 1 is:

“1. The Decision is invalid because ACP misdirected itself in law, finding that noise and

odour were matters to be addressed by the EPA in licensing under Wastewater Discharge

(Authorisation) Regulations 2007 (SI 684/2007) as amended. In fact those Regulations are

concerned only with the wastewater discharges from a wastewater treatment plant (WWTP),

not with issues of odour, lighting or noise and they contain no provision precluding ACP from

addressing any matter that is ordinarily a matter relating to the proper planning and

sustainable development of the area.”

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

“CORE GROUND 1 (ODOUR)

Applicants Position

1. The decision is invalid because ACP did not impose conditions relating to

maintenance and operation in respect of odour. The inspector, with whom the board did not

disagree on this point, said: ‘The WwTP is of course a potential source of odour and other

possible emissions, but the operation is covered by EPA license requirements and Uisce

Eireann guidance and as such I consider that these issues can be addressed by way of

standard conditions if the Board is minded to grant permission’ (§11.8, p36). This was a

misdirection in law because odour is not covered by EPA licence requirements. The EPA

licensing requirement for WwTPs under the Wastewater Discharge Regulations 2007, SI

684/2007, amended by SI 231/2010, SI 652/2016 and SI 214/2020, to which UE is subject,

authorise the waste water discharges from a WwTP, and waste water discharges are defined

in the 2020 amendment as ‘the discharge of a pollutant to water from a waste water works’.

Odour, obviously, is not a discharge to water, it is a discharge to air, so it is not covered by

the licensing system; and notably the existing licence issued by the EPA (MB1 Tab 54) does

not address it. The 2005 Regulations require the EPA to use its enforcement and supervisory

powers under S63 of the EPA Act to deal with odour nuisances, but they do not give any

licensing power in relation to odours. ACP erred in law in adopting the inspector’s

recommendation in this respect.

2. There is nothing in the decision to support the strained and unnatural interpretation

of the decision advanced by the Commission, which argues that it considered the

requirement to impose conditions under the 2005 Regulations, and that it must be concluded

that it decided not to impose them. This inference, which is said to arise from the file, does

not arise on a proper interpretation of all the documents, and is not reasonably available

having regard to the law relating to reasons (Connelly, [2021] 2 IR 75, §30; O’Donoghue v

Bord Pleanála, [1991] ILRM 750 at 757; Elsharkawy v The Minister for Transport, [2024]

IECA 258, §38-46, Sherwin, [2024] IESC 13 §108-115). Any requirement to read decisions

in a way that makes sense only arises where two different and equally possible

interpretations are open, and does not require the Court to favour a strained and unnatural

interpretation over a reasonable one. (Moss, [2026] IEHC 62 §50(iv); Friends of the Irish

Environment [2026] IEHC 205, §35(iv); Hoctor 2026 IEHC 65 §42(iv), Foran, [2026] IEHC

23; Rural Residents Wind Aware, [2026] IEHC 136, Friends of the Irish Environment (Dublin

Airport Noise), [2025] IECA 128 §43, McDonald, 2025 IESCDET 106, XJS, [1986] IR 750)

Commission’s Position

3. The Inspector/Commission did not find that there was no jurisdiction to consider

odour – this contention is premised on a selective parsing of the Commission’s Decision and

a flawed approach of seeking to interpret one sentence in the Inspector’s Report out of

context. Moreover, there was no failure on the part of the Commission as regards the

Regulations 2005 (S.I. No. 787/2005) (‘the 2005 Regulations’) – the same are properly

understood and considered in light of the evidence before the Commission.

4. As to the complaints regarding the 2005 Regulations:

- As explained in the application documentation (including the UE Planning Report and

Kilkee WwTP Design Report), the Proposed Development has been designed to be

constructed and operated in accordance with the requirements of the 2005 Regulations –

reflecting the obligation on UE under the 2005 Regulations (Art.3). UE is the body

responsible for such infrastructure and a body which is presumed to act/have acted lawfully.

The grant of planning permission does not absolve an entity from complying with other legal

obligations, and compliance with one statutory scheme does not absolve an affected party

from complying with another.

- The Applicants raised no issue during the planning process with the design approach

(informed by the 2005 Regulations) to the Proposed Development, supported by appropriate

expert evidence. For example, no engineering evidence was put up by the Applicants to

suggest any flaw in the engineering reports prepared for the purposes of the application.

Rather, the complaints generally regarded unsubstantiated assertions.

- Under Art.4 of the 2005 Regulations, the Environmental Protection Agency

(‘Agency’) is responsible for ensuring compliance and enforcement of the obligations on UE

under Art.3(b) of the 2005 Regulations – this includes civil and criminal enforcement under

s.63 of the Environmental Protection Agency Act 1992, as amended. Thus, it can be

presumed that the Agency will act lawfully and comply with its obligations regarding

regulatory/compliance oversight.

- Under Art.6 of the 2005 Regulations, the Commission is:

(i) Required to ‘have regard’ to: the requirements on UE under Art.3 (construct, operate

and maintain the WwTP so as not to cause odour/noise nuisance; and the functions of the

EPA.

(ii) Entitled, in its ‘opinion’, as it considers necessary, to impose Conditions in relation

to the operation and maintenance of the WwTP to avoid causing nuisance through

odour/noise.

The evidence before the Commission stated that the WwTP was designed to be constructed

and operated in accordance with the requirements of the 2005 Regulations. The Inspector

expressly references the 2005 Regulations and this design approach articulated in the

evidence (which evidence was accepted). The Commission was entitled to accept this

evidence (noting the absence of any evidence from appropriately qualified person to the

contrary). Thus, as to the 2005 Regulations, and the complaints of a lack of Condition, in

the circumstances, the obvious inference to draw is that the Commission was not of the

opinion that any specific Conditions were required – noting that the Conditions imposed

(such as Condition 1) required the Proposed WwTP to be constructed in accordance with the

plans and particulars and, as such, in a manner which was in accordance with the

requirements of the 2005 Regulations.

The WwTP, as the evidence shows, was designed to be constructed and operated in

accordance with the 2005 Regulations – there was no evidence to suggest anything to the

contrary. There was no need for further Conditions in the circumstances.

5. As to the Applicants complaint that the Inspector and the Commission held that they

had ‘no jurisdiction’ to consider odour – this is incorrect, no such finding was made and the

argument is premised on an erroneous interpretation of the Inspector’s Report. A valid

interpretation of same is available and should be preferred – namely that:

(i) The preceding paragraph in the Inspector’s Report (above the one with which the

Applicants take issue) acknowledged (and accepted noting the absence of any evidence to

the contrary) that the Proposed Development was designed to be constructed and operated

in accordance with the 2005 Regulations – which the Inspector expressly references.

(ii) What the Inspector actually did – having noted and accepted the design approach

to the Proposed Development, and having noted that no issues arose from the existing

pumping station – was acknowledge that operational aspects of the Proposed Development

would also be regulated by other regimes and standards.

(iii) As the EIA Screening records, the Proposed WwTP would ‘not be likely to have

significant effects on the environment’ noting, inter alia, the nature and scale of the

development, ‘the absence of any significant environmental sensitivity in the vicinity of

either sites’ and the ‘features and measures proposed by…[UE] envisaged to avoid or prevent

what might otherwise have been significant effects on the environment, and in particular the

mitigation measures set out in the construction management plan…’. The EIA Screening did

not identify any significant effects relating to odour in its consideration of human health

(§1.8, Appendix). This aligns with UE’s EIA Screening Report which, in respect of odour and

pollution/nuisances, set out that same ‘would not be likely to have a significant effect on the

environment’.

(iv) The Commission’s Decision, requires at Condition 1, the Proposed Development to

be built in accordance with the plans and particulars – which plans require the

implementation of the Proposed Development – a development designed to be in accordance

with the requirements of the 2005 Regulations so as to avoid odour/noise nuisances.

Notice Party’s Position

6. It appears from the Applicants’ position in respect of Core Ground 1 set out above

that the noise aspect of Core Ground 1 is no longer pursued.

7. Uisce Éireann’s position is that the Commission’s Decision is not invalid as alleged

at Core Ground 1. As regards Core Ground 1, the Applicants mischaracterise and

misinterpret both the Commission’s Decision and the Inspector’s Report. The Commission

did not regard noise and odour as solely for the Agency or outside its planning jurisdiction.

Rather, noise and odour were assessed in the planning application/appeal documentation

(noting, inter alia, that the WWTP is designed to avoid causing nuisance through odours or

noise), the Inspector’s evaluation, and the applicable legislative framework, including the

2005 Regulations, which requires WWTPs to avoid odour and noise nuisance. The planning

application detailed passive and forced odour control systems, carbon filtration measures,

and expressly confirmed compliance with the 2005 Regulations and Uisce Éireann design

standards (Uisce Éireann document ‘Schedule 2: ECI General Requirements – Part A General

design/Build Requirements (2018)). On the information before it, the Commission was

entitled to conclude that, subject to compliance with the approved plans and conditions

(including condition 1), the Proposed Development would not cause nuisance via noise or

odour, such that no additional specific conditions were required to be attached to the

Decision. The Applicants have not made out any basis for certiorari, and their impermissible

merits-based complaints not raised during the planning process and belatedly raised for the

first time in these proceedings cannot or should not now be entertained (and in any event

cannot avail the Applicants as such assertions are disputed via expert affidavit evidence filed

by Uisce Éireann on a de bene esse basis).

8. The Applicants face a number of insuperable difficulties in their pursuit of Core

Ground 1:

(i) The 2005 Regulations were expressly relied on in the planning application materials,

which stated that the Proposed Development was designed, constructed and to be operated

so as to avoid odour and noise nuisance, with mitigation measures built into the design (see,

for example, the Planning Report, p.15; the Outline Construction Environmental

Management Plan, p.14; and the EIA Screening Report, pp.10, 11 and 18). They were also

expressly addressed at section 11.8 of the Inspector’s Report, where the Inspector recorded

Uisce Éireann’s confirmation that the proposed WWTP would operate in accordance with the

2005 Regulations.

(ii) Neither the Inspector nor the Commission held that odour or noise fell outside

planning jurisdiction or exclusively within the Agency’s remit. Rather, at section 11.8 of the

Inspector’s Report the Inspector stated that ‘the operation is covered by EPA license

requirements and [Uisce] Eireann guidance and as such I consider that these issues can be

addressed by way of standard conditions if the Board is minded to grant permission.’

(iii) Under Article 4 of the 2005 Regulations, the Agency - not the Commission - has

responsibility for ensuring that WWTPs are operated and maintained so as to avoid odour

and noise nuisance.

(iv) Under Article 6 of the 2005 Regulations the Commission are only obliged to impose

conditions, where, in the opinion of the Commission, it is necessary to do so in order to avoid

nuisance through odour and noise. Condition 1 of the Decision requires the Proposed

Development to be carried out in accordance with the plans and particulars lodged with the

Council and on appeal. On a correct reading of the Decision, the Commission was satisfied

that the material before it adequately addressed potential odour and noise impacts and the

measures proposed to mitigate them, so that compliance with those particulars would avoid

nuisance without any further bespoke condition.

(v) The Proposed Development must therefore comply with the permission and its

conditions, including Condition 1, which incorporates the application commitments on odour

and noise, including compliance with the 2005 Regulations and Uisce Éireann requirements

for emission limits. A grant of permission does not displace compliance with other statutory

codes: Redmond v. An Bord Pleanála [2020] IEHC 151 at §153. The Decision accordingly

does not relieve Uisce Éireann of its Article 3(b) duty to avoid odour and noise nuisance or

the Agency of its oversight role under Article 4 of the 2005 Regulations.

(vi) The Inspector, and in turn the Commission, were entitled to proceed on the basis of

Article 3 of the 2005 Regulations, which requires Uisce Éireann, as sanitary authority, to

ensure that a WWTP is designed, constructed, operated and maintained so as to avoid odour

and noise nuisance. The application materials expressly stated that the WWTP would meet

those requirements. The Applicants do not plead that the evidence before the Commission

could not support that position, nor do they plead that the Proposed Development was not

designed in accordance with Article 3. That omission is a significant gap in Core Ground 1.

9. The Applicants’ submissions overstate the extent to which odour was said to be

absent from the planning process. Odour was identified and addressed in the application

materials through proposed passive and forced odour control systems, carbon filtration, and

commitments to compliance with the 2005 Regulations and Uisce Éireann standards. As

explained in the affidavit evidence of Mr Denis O’Connor, Operational Director of EPS, (filed

by Uisce Éireann), the more detailed engineering and odour modelling now sought by the

Applicants is not ordinarily provided at planning stage for WWTP applications in Ireland, and

the Commission was entitled to assess the application on the basis of the material before it.

The Inspector expressly recognised odour as a relevant issue, and his reference to EPA

licensing and Uisce Éireann guidance is more naturally read as acknowledging the wider

regulatory framework than as excluding odour from the planning assessment. Articles 5 and

6 of the 2005 Regulations do not require detailed odour conditions in every case but leave

that question to the Commission’s opinion as to necessity. It was therefore open to the

Commission to conclude that the mitigation measures proposed, together with the applicable

regulatory framework, were sufficient and that no further bespoke odour conditions were

required. The Applicants’ argument on reasons similarly places greater weight on the level

of detail than the law requires, since the obligation is to give reasons sufficient to disclose

the basis of the decision, with the main reasons on the main issues in this regard, not to

provide a discursive response to every submission. Nor does Sherwin [2024] IESC 13 assist

the Applicants on the facts of this case (the Applicants effectively repeat the

misinterpretation of Sherwin [2024] IESC 13 that the High Court rejected in Carrownagowan

(No.2) [2024] IEHC 300 at §168). In the present case, odour was expressly identified,

mitigation measures were described, and the Commission reached a conclusion on

residential amenity. Viewed in that way, the Applicants’ challenge is in substance directed

more to the Commission’s evaluative judgment and the technical sufficiency of the material

before it than to any legal error capable of vitiating the Decision.

10. In the premises of the foregoing, there is no basis for relief being granted on Core

Ground 1. However, if this Honourable Court takes a different view, Uisce Éireann maintain

that, if necessary, relief based on Core Ground 1 should be refused in the exercise of the

Court’s discretion. First, the Applicants did not raise complaints during the planning process

about the Proposed WWTP by reference to the 2005 Regulations or the evidence before the

Commission which addressed same. Their failure to raise such points during the process is

a factor that militates in favour of relief being refused in the exercise of the Court’s

discretion. Second, the Court should exercise its discretion to refuse relief having regard

to: (i) the nature of the 2005 Regulations; (ii) the accepted duty on Uisce Éireann in relation

to the operation of the WWTP; (iii) the role of the Agency in ensuring/enforcing compliance

with the obligation to ensure a WWTP does not cause odour or noise nuisance; (iv) the

absence of any challenge by the Applicants to the efficacy of the Conditions imposed in the

Commission’s Decision; (v) the failure on the part of the Applicants to identify any

appropriate Condition which should have been imposed but was not; and (v) the undisputed,

identified need for the Proposed Development.”

61. Section 11.8 of the inspector’s report reads (emphasis added):

“Submissions made both during the application, observations to this appeal, and internal

reports to the planning authority refer to concerns about odours, noise, and other emissions

from both the pumping station and WwTP. The applicant has stated that the facilities

will be constructed and operated in accordance with SI No. 787/2005 ‘European

Communities (Wastewater treatment) (Prevention of Odours and Noise)

Regulations’ 2005. Noise levels are to be limited on the site such that they will not exceed

50dB(A)(15 minutes LAeq) at any time along the site boundary and will be subject to EPA

licence requirements. The operations of both elements are to be fully automated and road

movements associated with both elements are anticipated to be less than 10 movements

per week. The proposed pumping station is very close to a number of dwellings, but the

existing station is similarly located, and there is no evidence of unacceptable impacts. The

WwTP is of course a potential source of odour and other possible emissions, but the operation

is covered by EPA license requirements and Uisce Eireann guidance and as such I consider

that these issues can be addressed by way of standard conditions if the Board is minded to

grant permission.”

62. This is not a finding of no jurisdiction – on the contrary it is a finding that “standard

conditions” (i.e., conditions that are within the jurisdiction of the commission and that are frequently

granted, such as compliance with particulars submitted) can address the issue. Where something

falls within the remit of two bodies there is nothing unlawful on an a priori basis for one body to

provide for a condition that commitments to comply with the legislation should be given effect to or

that the requirements of the other body be satisfied.

63. The applicants significantly over-interpret the 2005 regulations. There is only one

substantive obligation placed on the commission in the S.I. No. 787 of 2005 - European Communities

(Waste Water Treatment) (Prevention of Odours and Noise) Regulations 2005, which is art. 6

(emphasis added):

“6. In considering an appeal, or an application under section 175(3) of the Act of 2000

for approval for a proposed development consisting of the provision of a waste water

treatment plant by or on behalf of a sanitary authority, the Board shall have regard to the

requirements of Article 3 of these Regulations and, in granting any permission for

development or approving any application for approval and having regard to the function

of the Agency under Article 4 of these Regulations, shall include such conditions as may

be necessary in its opinion to ensure that the plant is so operated and maintained as

to avoid causing nuisance through odours or noise.”

64. The provisions of art. 3 and 4 referred to are:

“3. A sanitary authority shall ensure that-

(a) in formulating and approving plans for a waste water treatment plant to be provided

by the authority or on its behalf the plant is so designed and constructed as to ensure that

it avoids causing nuisance through odours or noise,

(b) any waste water treatment plant under the sanitary authority's control is so operated

and maintained as to ensure that it avoids causing nuisance through odours or noise.

4. For the purpose of Article 3(b) of these Regulations, the Agency shall be required to

ensure compliance of waste water treatment plants with the requirements of the said Article

3(b), and the provisions of section 63 of the Environmental Protection Agency Act 1992 (No.

7 of 1992) shall apply accordingly.”

65. The critical point is that, applying settled law on statutory interpretation, art. 6 is largely a

have-regard-to obligation and the only binding requirement of a substantive nature is to include

such conditions as may be necessary in its opinion to ensure that the plant is “operated and

maintained” to avoid nuisance by odour/noise. While the applicant tries to import additional duties

that are not there, the obligation is expressly limited to operation and maintenance. The conditions

are not provided for in a prescriptive manner and could legitimately include standard conditions for

compliance with application documents, as here in condition 1. There is nothing in the text, context

or purpose to require another reading, and to adopt the applicants’ reading, which would involve an

obligation to address such matters more narratively, would create duplication. Insofar as the issue

is whether condition 1 is on the facts a valid exercise of the requirement to impose such conditions

as the commission thinks are necessary, the applicants have not discharged the onus of proof to

show otherwise.

66. The application documentation asserts, and the inspector records as included in the extract

quoted above, that UÉ will comply with its obligations under art. 3 – consideration of this constitutes

the “regard” that the commission was obliged to have in respect of that article, especially in the

absence of any contrary expert evidence.

67. Reinforcing that, as noted above, the failure to raise any issue in the process as to how what

was proposed did not comply with art. 3 precludes relief on this basis. Such technical issues cannot

properly be launched on the court in judicial review without having been raised in the process. The

type of procedure required to facilitate the applicants making the point now without having raised it

before the decision-taker is self-evidently unworkable and inappropriate.

68. There is nothing unlawful about this matter having been dealt with by condition as envisaged

by art. 6 of the 2005 regulations, in this case the general condition 1 which incorporates the

commitment to comply with the 2005 regulations as recorded by the inspector.

69. As a final word on this issue, for what it’s worth I completely agree with Farrell J.’s decision

to dismiss the motion for:

“a full and candid account of the consideration given to the following issues, and whether

any such consideration was given:

1.1. Whether the development proposal before it, as amended, contained the information

necessary to identify the likely odours from the proposed development and the detailed steps

needed to address them, whether that information was adequate, the extent of the

Commission's obligations for odour, having regard in particular to the application of the

European Communities (Wastewater Treatment) (Prevention of Odours and Noise)

Regulations 2005 (‘the 2005 Regulations’) and the role of the Environmental Protection

Agency, and whether conditions were required under Regulation 6 of the 2005 Regulations,

and why that was not the case;”

70. This is in essence a legal point. Whether there is sufficient information is an evaluative

question in respect of which the decision sets out the evaluation. The applicants have not

demonstrated any failure in consideration or lack of adequate information or breach of obligations

under the 2005 regulations. Whether there are conditions under art. 6 is essentially a legal question

as to whether the conditions imposed (specifically condition 1) constitute the conditions referred to

in art. 6. The applicants have not proved that they do not.

71. The fact that for example make and model of equipment is not specified does not in itself

render the information inadequate – the onus is on an applicant to demonstrate that no decision-

taker acting lawfully could have regarded such information as adequate. This has not been shown

here.

72. As Farrell J. said at para. 36, and I respectfully entirely agree, “the decision of the

Commission speaks for itself”.

Core ground 2 – failure to consider a relevant issue

73. Core ground 2 is:

“2. The Decision is invalid because ACP failed to consider or determine a relevant issue,

namely the potential impact of site lighting on neighbouring properties, or to give any

reasons in relation to same contrary to S34(10) PDA.”

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

“CORE GROUND 2 (LIGHTING)

Applicants Position

11. ACP failed to consider or determine a relevant issue, namely the potential impact of

site lighting on neighbouring properties, or to give any reasons in relation to same contrary

to S34(10) PDA. It did purport to decide the issue of impact of site lighting on fauna, but

this does not address the impact on people in neighbouring properties. This was a main

issue because it was raised in many of the submissions made to the Council. It is not

addressed by Conditions 1 and 3 of the permission, as ACP contends, because those

conditions require application of mitigation measures in the NIS that are intended to protect

fauna. Also, there are inconsistencies between the further information cover letter

submitted by the Developer and the revised NIS and Ecological Impact Assessment, and

these inconsistencies were not identified by ACP, demonstrating its failure to address the

lighting issue correctly. It either could not have considered the matter adequately, or its

reasons were inadequate, because it did not identify or attempt to resolve these

discrepancies. ACP’s attempt to infer from the file that it in fact did so is a strained and

unnatural interpretation of the decision and is not reasonably open. Submissions must be

engaged with, and failure to address an issue raised may represent a failure to give adequate

reasons, or a failure to consider the matter at all (Sherwin, [2024] IESC 13; Connelly, [2021]

2 IR 752 §84; Balz, [2019] ILRM 367, §51). Even if there is no obligation to give ‘micro

reasons’, the reasons on an issue must still be capable of being identified from the decision,

particularly on a matter that is raised by a sizable number of those making submissions.

Commission’s Position

12. The Commission did not fail to consider lighting – the context within which the

Applicants raised the lighting issue during the planning process related to impacts on

residential amenity. The Applicants’ submissions made during the process, insofar as they

addressed lighting, concerned assertions – unsupported by any technical evidence - of light

pollution impacting their properties. The evidence provided to the Commission from UE

indicated that there would be no significant impacts arising from light pollution. The

Inspector and the Commission considered the lighting proposal and found same to be

acceptable – accepting UE’s approach – with the application documentation addressing

lighting and including appropriate mitigation for same. The fact that the Commission

Decision is not framed or structured to the Applicants’ satisfaction is not a basis for alleging

an absence of reasons – the reasons are clear from the context:

- UE’s response to further information submitted to the Council (which sought details

on the minimal use of the tallest lighting columns within the site). In respect of the Proposed

Development, UE confirmed:

‘External site lighting will be programmed to be off during normal operation and night time

hours as there is no requirement for lights to be switched on when the plant is unmanned.

Site lighting will only be switched on in the event of an emergency operational issue which

requires a maintenance operative to attend the site during hours with insufficient levels of

natural lighting. In such cases, the lights will be switched on briefly, and will be promptly

switched off once the work is completed.

Lighting within the site will be turned on manually as opposed to sensor activated lights.’

- The planning application outlines, in some considerable detail, the position regarding

lighting. It is clear that the Proposed Development incorporates a combination of taller

lighting columns and ground-level lighting bollards. No adverse impacts were identified in

respect of lighting (see, for example, EIA Screening Report and EIA Screening).

- Regarding the Applicants’ submissions made during the process, the fact that regard

was had to same was expressly recorded in the Inspector’s Report and the Commission

Decision – the Applicants have not demonstrated anything to the contrary. The submissions

made during the process advanced allegations of light pollution and impact on residential

amenity – but were not based on or supported by any expert evidence (in contrast to the

evidence presented by UE). Moreover, the Applicants’ submissions in response to further

information submitted to the Council clearly understood the proposal (the submission of Mr

Boland, dated 2 October 2024, for example, acknowledges that lights will be turned off at

night).

- The Inspector’s assessment of the impact on residential amenity was by reference

to the Proposed Development, including the lighting proposed – as described in the

documentation before the Inspector. The conclusion was that there would be no

unacceptable impact (see also EIA Screening). This aligned with UE’s documentation.

- The Commission’s Order further records that the Proposed Development, which

would include the lighting, ‘would not seriously injure the…residential amenities or the area…’

and would be ‘in accordance with the proper planning and sustainable development of the

area’.

13. There was no failure to consider impacts on residential amenity – which is the issue

in respect of which the lighting complaint was made. Nor was there any failure to explain

the reasoning of the Commission here – its findings were premised on UE’s evidence. There

is no substance to this Core Ground.

Notice Party’s Position

14. Uisce Éireann’s position is that the Commission’s Decision is not invalid as alleged

at Core Ground 2. As to Core Ground 2 (lighting), Uisce Éireann submits the Applicants

misread the Commission’s Decision. Lighting was expressly addressed in the planning

application materials, including the Revised NIS, the RFI response, the Kilkee WWTP Design

Reports (20 December 2023 and 1 August 2024), and the site lighting drawings 10015237-

DRC-ZZ-XX-DR-Y-1030-P03, 10015237-DRC-KF-XX-DR-Y-1031-P03, 10015237-DRC-KF-

XX-DR-Y-1013-P05 and 10015237-DRC-ZZ-XX-DR-Y-1007-P05. Those materials

distinguished between Lighting Columns and Lighting Bollards: the bollards are low-level,

light access routes only, and under §2.2.7 of the Revised NIS dim to low-power mode when

the site is vacant, while the taller columns operate only as emergency task lighting and, as

confirmed in the RFI response sought under section 2(c)(iii), remain off during normal

unmanned night-time operation and are switched on manually only where an emergency

operational issue requires attendance. The Inspector also noted at pages 12–13 of his

Report that lighting was a refusal issue and recorded Uisce Éireann’s position on the relative

height and impact of the columns.

15. Uisce Éireann further submits that Conditions 1 and 3 of the Commission’s Decision

validly incorporated that lighting regime by requiring compliance with the lodged plans and

particulars, the RFI response, the appeal materials, and the mitigation measures in the

Revised NIS, including the restriction that emergency lighting be used only when emergency

tasks are critical. On that basis, the Commission did consider residential amenity and was

not required to provide a separate point-by-point discussion of every submission or a

discursive statement of reasons to the standard demanded by the Applicants: see Duffy v

The Minister for Housing, Local Government and Heritage [2026] IEHC 46 at §8 and §53;

Wild Ireland Defence CLG v An Coimisiún Pleanála [2025] IEHC 726 at §134 and §160(v);

O’Donnell v An Bord Pleanála [2023] IEHC 381 at §39; Nagle View v An Bord Pleanála [2024]

IEHC 603 at §89–§90; Ó Murthuile v An Bord Pleanála [2025] IEHC 498 at §49; Friends of

Killymooney Lough v An Coimisiún Pleanála [2025] IEHC 407 at §42(vi) and §117; Hession

at §57(vi), (vii) and (ix); Rural Residents Wind Aware v An Coimisiún Pleanála I (No 1)

[2025] IEHC 600 at §§48(iv), (v), 91–92; and Carrownagowan at §168. The Applicants’

complaint is really about the form of the analysis, not any absence of consideration: the

same lighting controls addressed both fauna and nearby residents, the Commission

expressly found no unacceptable residential amenity impact. There is no basis to the

Applicants’ assertion at Core Ground 2 that the permission is unclear as to whether the

lighting on site should be extinguished whenever no work is occurring on the site, and that

thereby the Commission has failed to consider or determine a main issue in the appeal. The

Applicants complaint does not reflect a correct understanding of the Decision or the relevant

information that was before the Commission on the subject planning application regarding

lighting.

16. Further, Uisce Éireann are surprised that the Applicants are still pursuing this ground

of challenge in light of the correspondence between it and the Applicants solicitors in respect

of lighting on the site. The Applicants’ solicitors, in a letter to the Commissions solicitors

dated 20 September 2025 sought confirmation on the Commission’s understanding as to

‘whether the permission requires that site lighting will be extinguished when there is no

activity on the site’. Solicitors on behalf of Uisce Éireann submitted a detailed response by

letter dated 20 October 2025 which outlined the position as regards lighting of the Proposed

Development as addressed in the planning application and the Commission Decision.”

75. First of all there is no lack of clarity as to what the commission approved.

76. Condition 1 properly interpreted conditions the project by reference to all material

submitted. This includes the further information that (apart from emergency situations):

“External site lighting will be programmed to be off during normal operation and night time

hours as there is no requirement for lights to be switched on when the plant is unmanned.”

77. That relates to the lighting columns. The lighting bollards, which are low level, will remain

switched on permanently but in low power mode when there is no activity on site.

78. Any complaint about failure to consider something has to be established evidentially. This

has not been done here. It was open to the commission to prefer the developer’s views on lighting

to the concerns of the applicants. No unlawfulness in that regard has been demonstrated.

79. As the commission submits, “The fact that the Commission Decision is not framed or

structured to the Applicants’ satisfaction is not a basis for alleging an absence of reasons – the

reasons are clear from the context” – the context being UÉ’s materials and the FI in particular as

well as the EIA screening material that identified no material impacts.

80. It is also instructive to note that there were 87 submissions made to the council of which 31

raised issues regarding lighting. There were 53 submissions made at the FI stage before the council,

of which only 5 raised issues about lighting. The inspectors’ summary of submissions before the

commission does not indicate any significant level of submission on the lighting issue. While not of

course conclusive of anything, it does indicate that the further information significantly reduced the

level of concern regarding the lighting issue as well as a degree of understanding by process

participants of what was proposed, which is something of a reality-check against the applicants’

claim of uncertainty.

81. No discrepancy has been demonstrated between the Natura impact statement (NIS) and the

FI to the extent that the further information stated that the lights would be programmed to be off

outside of required hours, out of which they would be turned on manually, whereas the NIS refers

to motion sensors to switch off after 10 minutes. If the suggestion is that the NIS suggests that the

task lights work on motion sensors whereas the FI suggests that they are operated manually, these

are readily reconcilable. The lights are turned on manually out of hours but turned off by motion

sensor. Insofar as the suggestion is that there was inadequate identification of impacts because the

NIS was aimed at impacts on protected species rather than humans, there is nothing to suggest that

the bollards on low power have any significant impact on humans in any event. Any assessment

can be criticised after the event for not doing more, but the onus lies on an applicant for judicial

review to establish not just that there was anything more that could have been said (answer: always

yes), but that failure to say that something more rendered the assessment significantly defective to

such a degree as to warrant nullification of the permission granted. That latter onus has not been

discharged here.

82. More generally in relation to that, insofar as there was a complaint that residential light

impacts were not addressed under some specific heading, the commission came to an express

conclusion as to the lack of residential impacts. It is not up to an applicant to dictate the form of a

decision.

83. Again, for what it’s worth I completely agree with Farrell J.’s decision to dismiss the motion

for:

“a full and candid account of the consideration given to the following issues, and whether

any such consideration was given: …

1.2. Whether the development proposal before it, as amended, provided for lighting that is

to be lit the whole time or only when work is taking place at the proposed wastewater

treatment plant, having regard in particular to the letter of 16 August 2024 from Uisce

Éireann’s agents, Turley, responding to request for further information, and the revised

Ecological Impact Assessment, Natura Impact Statement and Construction and

Environmental Management plan submitted with that letter;”

84. There is no ambiguity about this and nothing to clarify. Where development consent is

conditioned by reference to particulars submitted, that is to be construed as reference to all material

submitted, not just that submitted initially, bearing in mind that later material can enhance, qualify

or clarify earlier material which needs to be read as subject to it. Applying that here, the operation

of the lights like any other aspect of the project is conditioned per all of the material submitted, not

just that submitted initially, by the developer.

Core ground 3 – lack of reasons regarding landscaping

85. Core ground 3 is:

“3. The Decision is invalid because ACP disagreed with its Inspector as to whether the

landscaping proposed was adequate but, in giving reasons for disagreeing with him, it failed

to address his finding that the planting element of the proposed landscaping would probably

fail, and it relied on that planting in finding it was satisfied that the landscaping proposals

would protect the amenity of the area. In so doing it failed to give adequate reasons, failed

to determine a main issue, failed to have regard to a relevant consideration, and / or acted

unreasonably.”

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

“CORE GROUND 3 (LANDSCAPING)

Applicants Position

17. The Commissioners failed to take account of the Inspector’s finding that the

proposed planting would probably fail (i.e., would probably not grow above ditch height

because the environment was too harsh) or to give reasons as to how they determined that

the visual impact of the development would be acceptable having regard to the screening

proposed, without considering or determining how successful those proposals would be. We

know they determined the development would be acceptable having regard to the screening

proposals; but we do not know if it accepted that the proposals would succeed, or if it meant

that it would be happy even if, as the inspector said, they would only reach ditch height. As

is evident from the file, they did not consider this issue, or if they did, they did not set out

their reasons in relation to it. Accordingly, either it is established that ACP failed to take

account of a relevant finding of the inspector, or else it failed to give adequate reasons to

enable the Applicants to understand its reasoning.

18. Insofar as ACP argues that the Applicants’ case does not take account of the revised

landscape proposals, this is irrelevant: the case relates to the discrepancy between what the

inspector did and what the commissioners did, and the failure of the commissioners, in

referring to the landscape proposals, to consider or determine whether those proposals

would work or would, as the inspector concluded, only get up to ditch height. The Revised

Landscape Plan (Gannons, November 2024) continued to rely on planting and identified sizes

(EW tab 7) which the Inspector did not accept would be reached.

Commission’s Position

19. The Applicants adopt a flawed approach to interpreting the evidence before the

Commission, the Inspector’s Report and the Commission’s Decision – fatally undermining

this Core Ground of challenge. In this regard:

- In response to the Council’s request for further information, UE submitted revised

landscaping plans and documentation – this included confirmation that the landscape

proposals had been revised and independently reviewed by CMK Hort & Arb Ltd, an

arboricultural and horticultural consultancy (Appendix 4 to Further Information Response).

As a result of the review, further species were included in respect of planting. See, inter

alia, Landscape Design Rationale for Proposed WwTP, dated June 2024; Landscape Design

Rationale for Proposed Pumping Station, dated June 2024; Landscape Plans; Landscape and

Visual Impact Assessment; and photomontages.

The said further information response also included a site selection assessment – ‘Response

to RFI Items 2a and 2b’.

(i) Submissions/observations were received on UE’s further information response,

including from the Applicants, in or around October 2024. In this regard, the

submission/observation from Mr Busher, received by the Council on 1 October 2024,

included the views of a consultant he engaged – namely, Shirley Lyons who opined that the

proposed planting may not be successful.

(ii) Importantly, UE lodged an appeal with the Commission through its planning

consultant. The appeal submission, dated 12 November 2024, comprised a number of

appendices – including: a Revised Landscape Plan (Gannons, November 2024) – Appendix

5. Same also detailed responses to Refusals 1, 2 and 3 – Appendix 6-8. In this respect,

Appendix 6 addressed the Council’s first reason for refusal – alternative sites.

- The Applicants’ submission on appeal reiterated the comments of Shirley Lyons,

which were based on the proposal before the Council – with same based on the ‘Landscape

Design Plans…submitted to Clare County Council…’ as opposed to the revised plans, including

the alternative proposal submitted with the appeal submission. The Applicants’ Submissions

do not address this – noting they are premised on a failure to acknowledge the aforesaid

appeal documents.

- The Inspector’s Report:

• Regarding the principle of the Proposed Development, noted (§11.2):

‘…There is no specific policy objective to demonstrate that the proposed site for a WwTP or

related infrastructure is the optimal site, but I consider that it is implicit within the overall

policy context that it should be demonstrated that the site achieves wider policy objectives

than simply the provision of wastewater and minimal design and locational objectives.’

• Addressed the Council’s first reason for refusal (Site Selection) at §11.3 –agreeing

with same and stating that permission be refused as UE had not ‘provided a full justification

for locating the site’. This was the central reason for refusal detailed in the Inspector’s

recommendation (§13.0, pg.41 et seq). As appears, the recommended reason for refusal,

in respect of which the reasons requirement under s.34(10) was engaged, was based on a

concern that the site was not ‘optimal’ or the site selection was not justified.

This recommendation was expressly addressed in the Commission’s Order, wherein it is

stated:

‘…the [Commission] did not share the view of the Inspector that given the extensive nature

of the site and scale of the works it would be obtrusive to some degree and would give rise

to an adverse effect on the visual amenities of the area, the character of the receiving

landscape, or the views from the designated scenic route at Dunlicky Road. The

[Commission] noted that the Inspector considered that, in balancing the proposal with the

need for the infrastructure, the site may be acceptable, but only on the basis that there are

no obvious significantly superior sites and that the applicant hasn’t demonstrated that the

site is optimal in terms of its impact on the landscape and amenities of the area. In

considering this matter, the [Commission] noted, in agreement with the appellant’s case,

that a specific site selection process for the proposed development type is not identified in

planning policy (or in planning law). Notwithstanding, the [Commission] also noted that the

appellant undertook a multi-criteria analysis to comparatively assess potential sites against

a wide range of planning technical and economic criteria, all which led to the chosen site

(Site A and Site B) that have been brought forward in the planning application.

In considering the planning merits of the proposal before it, the [Commission] was satisfied

that the site chosen was an acceptable location and, in particular, the wastewater treatment

plant would not give rise to any unacceptable impacts on the landscape, visual or residential

amenities of the area or on the tourism resource. While views of the plant would be available

from various vantage points, given the development is appropriate, and noting the physical

interventions in the receiving landscape and the landscape proposals including native

screening and taking the photomontages into consideration, the [Commission] was satisfied

that the development would not seriously injure the visual or residential amenities of the

area or negatively impact on the landscape character…of…Kilkee. Accordingly, the

[Commission] did not agree with the Inspector’s finding that the applicant [UE] has not

demonstrated that the chosen location for the wastewater treatment plant at Site B is

optimal in terms of its impact on the landscape and amenities of the area.’

As appears, the Commission expressly addressed the Inspector’s recommended reason for

refusal and expressly preferred the approach of UE – as it was lawfully entitled to do. Thus,

it is not correct to say that the Commission did not address the justification for the site

selection.

• The Inspector – at, inter alia, §11.3 and §11.6 – considered the policy context and,

in turn, the potential impacts of the Proposed Development on visual amenities and

landscape. The Inspector ultimately considered the landscaping proposals to be

‘acceptable…but only on the basis that there are no obvious significantly superior sites’. As

outlined above, the Commission found (and the Applicants have not challenged this finding)

that UE had adequately addressed its approach to site selection:

‘[The Commission]…did not agree with the Inspector’s finding that [UE] has not

demonstrated that the chosen location for the wastewater treatment plant at site ‘B’ is

optimal in terms of its impact on the landscape and amenities of the area…’

- The Commission, in addition to explaining why it did not agree with the Inspector

on the site justification, also required the alternative landscaping proposal to be

implemented (a proposal which the Applicants’ consultant never addressed – noting that it

was introduced at appeal stage). Condition 6 provides:

‘The site of the foul pumping station (Site A) shall be landscaped in accordance with

proposals received by the planning authority on the [16 August 2024] and the landscaping

and maintenance shall include the recommendations put forward and contained therein.

The site of the [WWTP] (Site B) shall be landscaped in accordance with the ‘Alternate

Proposal’ identified in Drawing: 22196_Kilkee_Alternative Proposal ABP Appeal’, received by

the [Commission] with the appeal on [12 November 2024]. Finalised landscaping drawings

and maintenance schedules reflecting these requirements shall be submitted to and agreed

with the planning authority, prior to the commencement of the development.

Reason: In the interest of visual amenity, biodiversity and for reasons of clarity.’

- The Applicants do not address this Condition or approach the interpretation of the

Commission’s Decision by reference to same. The reasoning for the decision is informed by

the Condition – which was that the alternative landscaping proposal was acceptable, which

comprises an evaluative call which the Commission was entitled to accept on the basis of

the evidence before it (no case has ever been made by the Applicants to the contrary – in

fact they make no case regarding the Commission’s Decision by reference to Condition 6).

20. The approach of the Commission is clear here – including in respect of disagreeing

with the Inspector’s recommended reason for refusal –when the decision is properly

understood.

Notice Party’s Position

21. Uisce Éireann’s position is that the Commission’s Decision is not invalid as alleged

at Core Ground 3. The Applicants put forward the false premise that Core Ground 3 involves

either a failure to consider a material issue or an inadequacy of reasons. The contentions

advanced by the Applicants at Core Ground 3 are incorrect. None of them have been made

out. Core Ground 3 rests on a mistaken reading of the Inspector’s Report, which did not

find that the landscaping proposals would fail, but rather concluded that the visual and

landscape effects were acceptable provided there was no obviously superior site. The

Commission disagreed with the Inspector only on site selection, finding that the site

identification process was comprehensive and that no preferable alternative had been

shown. Having considered the Inspector’s Report, submissions, expert landscape evidence,

photomontages and mitigation measures, the Commission lawfully exercised its planning

judgment and reached a different conclusion on acceptability. As the Applicants do not

challenge the Commission’s findings on site selection, they cannot sustain a complaint about

landscape impacts that the Inspector himself regarded as acceptable in the absence of a

better site.

22. Uisce Éireann further submits that the Applicants’ case at Core Ground 3 is based

on an incomplete and fundamentally incorrect evidential footing, because criticisms of

possible planting failure were directed at the earlier Council-stage landscaping proposal

rather than the revised appeal-stage alternative. On appeal, Uisce Éireann provided further

landscape material including the Peer Reviewed Landscape and Visual Impact Assessment

(Appendix 2), Response on Landscape Strategy (Appendix 3), Photomontages (Appendix 4),

Revised Landscape Plan (Appendix 5), and Detailed Responses to Refusal 1, 2 and 3

(Appendices 6–8), and expressly put forward the Revised Landscape Plan as an ‘alternative

proposal’ at §§4.9, 4.11 and 4.12 of the Uisce Éireann Appeal. That alternative proposal,

detailed at Appendix 3, section 3.2, Response on Landscape Strategy (Gannons, November

2024), included an enlarged native-grass covered berm, a central earth mound and

hedgerow, reduction of solar panels, wildflower meadow and pocket woodland planting,

native screening trees, grasscrete access road, flatter building design, subdued finishes and

more discreet fencing (see drawing 22196_Kilkee_AlternateProposal_ABP_Appeal). The

Commission adopted this revised scheme through Condition 6 of its Decision, by requiring

Site B to be landscaped in accordance with drawing 22196_Kilkee_Alternative Proposal ABP

Appeal received with the appeal on 12 November 2024, for the stated reason ‘In the interest

of visual amenity, biodiversity and for reasons of clarity’. Accordingly, the principal

landscape concerns identified by both the Inspector and third-party observers were directed

towards a landscaping proposal that was subsequently revised, altered and superseded by

the alternative proposal ultimately incorporated into the permission through Condition 6.

23. In the premises of the foregoing, insofar as the Applicants complain of an alleged

absence of reasons for departing from the Inspector’s recommendation, alleging a

contravention of section 34(10) of the 2000 Act, those complaints are without merit. The

reasons are clear and include the fact that the Commission found the site

identification/selection process to be comprehensive and there to be no preferable sites –

thus, the landscaping approach, being the alternative proposal, which neither the Applicants

consultant nor the Inspector expressly engaged with, was considered acceptable. In this

regard, the reasons complaint advanced by the Applicants has no merit. Furthermore, the

obligation to provide reasons, including for disagreeing with an Inspector, is not an obligation

to provide discursive reasoning and, again, the reasoning should be considered by reference

to the full context to the decision and materials before the Commission. The Commission’s

reasoning is evident on a correct and valid reading of the Decision, in that it evidently

included, inter alia: (i) the Commission’s acceptance of revised expert landscaping evidence

from Uisce Éireann; (ii) the Commission’s endorsement of the alternative landscape strategy

proposed by Uisce Éireann on appeal and attachment of Condition 6; (iii) the Commission’s

agreement with Uisce Éireann that no superior site existed; and (iv) the Commission’s

satisfaction, in the exercise of its expert evaluative function/planning judgement, that visual

impacts were acceptable subject to mitigation. Noting the foregoing, there is no irrationality,

no failure to consider material evidence, no failure to give reasons and no legal infirmity in

the Commission’s Decision whether as alleged at Core Ground 3 or at all.

24. Further, the Applicants belated and unpleaded attempt, via assertion in this

Statement of Case (having not previously made the point), to suggest that the failure by the

Applicants to take account of the revised landscape proposals is ‘irrelevant’, is plainly

incorrect and no answer to the clear deficiencies in the Applicants’ case at Core Ground 3.

The Applicants response in this regard misses the point – the Commission granted

permission subject to a materially revised landscape scheme, supported by additional expert

evidence provided by Uisce Éireann, and incorporated that revised landscape scheme

through Condition 6, which neither the Inspector nor the Applicants specifically analysed or

criticise.”

87. For context, there were three landscape proposals:

(i) the original application was accompanied by a landscaping proposal;

(ii) a revised proposal was submitted in the FI; and

(iii) an alternate proposal was put forward in the appeal.

88. The applicants did not engage with the updated, alternate proposal:

(i) the first named applicant’s original submission related to the original proposal;

(ii) the submission on the FI included an expert who reported on the second proposal;

and

(iii) the submission to the commission did not engage with the alternate proposal made

as part of the notice party’s appeal, but rather simply included the response to the

FI proposal.

89. Condition 6 which was what the commission actually decided on imposes the requirements

of that third proposal. Therefore there is no ambiguity about how the commission conditioned the

project in relation to landscape. The condition is:

“6. The site of the foul pumping station (Site A) shall be landscaped in accordance with

proposals received by the planning authority on the 16th day of August 2024 and the

landscaping and maintenance shall include the recommendations put forward and contained

therein. The site of the Waste Water Treatment Plant (Site B) shall be landscaped in

accordance with the ‘Alternate Proposal’ s identified on Drawing: 22196_Kilkee_Alternative

Proposal ABP Appeal received by the Board with the appeal on the 12th day of November

2024. Finalised landscaping drawings and maintenance schedules reflecting these

requirements shall be submitted to and agreed with the planning authority, prior to the

commencement of the development.

Reason: In the interest of visual amenity, biodiversity and for reasons of clarity.”

90. The inspector’s report includes the following on p. 33:

“The applicant submitted detailed landscaping plans to soften the impact on the overall

landscape. The structures within the site are generally low and as such a combination of

ditches/bunds to match those existing and appropriate planting can be expected to minimise

its impact, although given the extensive nature of the site and scale of the works it cannot

be other than obtrusive to some degree. It is noted that the proposed solar panels could

reflect light towards observers, but due to their overall location and design the impacts are

likely to be very slight and not significant (a glint and glare assessment was submitted with

the application). The observers submitted a report by a local landscape designer arguing

that the proposed landscaping will not succeed due to the high degree of exposure of the

site and general climatic conditions. There is no question but that the extreme level of

exposure of this coastal area has made landscaping extremely difficult. There are no trees

whatever in the overall area outside of sheltered parts of the town, and hedgerows are non-

existent apart from briar scrub (with some dog rose) and grassy banks, with some very low

intermittent windblown native hedges, usually sheltered behind walls. There are established

hedges and landscaped areas within the town, but this is only in areas with some shelter

from the Atlantic winds. Some non-native species do appear able to survive the most

exposed areas – an example being some low planting on the opposite side of Kilkee, at

Corbally Cliff carpark, but even this would not provide much screening, although it would

significantly soften the overall impact. I consider it reasonable to assess the visual impact

using the assumption that any planted screening would not grow significantly above the

ditch level which now exists in boundaries in the area – at most this rises to around 1.5

metres above the level of surrounding road and buildings. This will soften the overall impact

over time but is unlikely to provide a full screening. It would, however, significantly minimise

the overall impact when viewed from the road”

91. The applicants construe this as a reason for refusal and hence a major issue requiring

express reasons. But that is a misreading – it is not given as a reason for refusal, and if one looks

at the inspector’s conclusions (section 13.0), landscaping does not centrally feature. It has not been

demonstrated that this is a major issue warranting express reasons. The reasons are implicit in any

event – the commission preferred the developer’s material. On the more general rationale for

differing from the inspector, the commission did expressly give reasons about whether a better site

had been identified. The commission noted that:

(i) “a specific site selection process for the proposed development type is not identified

in planning policy (or in planning law)”;

(ii) “the appellant undertook a multi-criteria analysis to comparatively assess potential

sites against a wide range of planning technical and economic criteria, all which led

to the chosen site (Site A and Site B) that have been brought forward in the planning

application”;

(iii) “the site chosen was an acceptable location and, in particular, the wastewater

treatment plant would not give rise to any unacceptable impacts on the landscape,

visual or residential amenities of the area or on the tourism resource”; and

(iv) “the development would not seriously injure the visual or residential amenities of

the area or negatively impact on the landscape character” of the area.

92. There is nothing unlawful about this either generally or by reference to a lack of text about

the detail of landscaping.

93. What is also fatal to this point is the applicants’ failure to join issue on the alternative (third)

landscaping proposal. Their submission to the commission worked off the second, superseded,

proposal.

94. Acknowledging the unacceptable subjectivity of saying so, the anticipated appearance of the

berm versus the original idea of trees does not look like much of an improvement – the trees look

as if they would have reduced visual impact much more effectively. However – de gustibus non

disputandum. Which looks better is something people may have to differ on – the logic of the

applicants’ case is that the berm meets their complaint whether it is a good idea or not. The answer

probably is the inspector’s view that trees would not grow there anyway, which was also the

applicants’ expert’s opinion. The idea that the commission did not address the inspector’s view that

the trees would not grow is misconceived from the outset because the final consent does not involve

trees, it involves a berm, so any issue about trees is moot.

95. Finally, I might be allowed to say that I again completely agree with Farrell J.’s decision to

dismiss the motion for:

“a full and candid account of the consideration given to the following issues, and whether

any such consideration was given:

1.3 Whether the development proposal before it, as amended, was assessed on the

assumption that any planted screening would not grow significantly above the ditch level -

at most around 1.5 metres above the level of surrounding road and buildings, as the

inspector held - or whether it was assessed on the basis of the proposed landscaping,

assuming that proposal would provide the level of screening proposed, and why it was so

accepted.”

96. The decision speaks for itself in this regard. The commission accepted the updated

information from the developer. The demand for a “why” is a demand for reasons but that only

arises if this is a main issue requiring main reasons. The applicants have not demonstrated that.

Reasons are in any event generally to be found either in the decision, or in material on which it

expressly or implicitly relies, or otherwise from the context including what would be obvious to

process participants. An applicant does not have a general entitlement to an order compelling

further reasons before a hearing, although that does not take from the possibility that one potential

remedy in an appropriate case would be an order requiring clarification of reasons following a

decision of the court that there was some inadequacy or ambiguity but not such as to warrant

certiorari. That does not arise here. In any event this whole issue of reasons about trees never

gets off the ground because of the changed proposal. Whether trees will grow there or not is nihil

ad rem, moot, irrelevant.

Discretion

97. 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) The appropriate two-stage inquiry is (a) Did the legislature intend total invalidity

to result from failure to comply with the statutory time-limit? (noting that “in many

if not most cases it may not be possible to infer an intendment of invalidity, in the

absence of an express statement to that effect” Pat O’Donnell & Co. v. Dublin City

Council [2026] IESC 36 (Unreported, Supreme Court, 2 July 2026) per Woulfe J. at

114). If so, the inquiry ends there: “As part of ensuring observation of the rule of

law, it is the duty of the Court to give effect to that which the Oireachtas has ordained

should be done” (per Woulfe J. at 115). (b) If not, should discretion be exercised

against relief “having regard to all the relevant circumstances ... These relevant

circumstances include (but are not limited to) whether there has been substantial

compliance with the statutory requirement, whether the breach is trivial or technical

or de minimis, whether any prejudice has been caused to the applicant and/or the

public and if so the extent of same, and also the possible public interest pointing

against invalidity for breach” (Pat O’Donnell & Co. v. Dublin City Council [2026] IESC

36 per Woulfe J. at 114).

(vi) Therefore in exercising that discretion 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).

(vii) 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”. As noted

above, the factors relevant to proportionality include “whether there has

been substantial compliance with the statutory requirement, whether the

breach is trivial or technical or de minimis, whether any prejudice has been

caused to the applicant and/or the public and if so the extent of same, and

also the possible public interest pointing against invalidity for breach” (Pat

O’Donnell & Co. v. Dublin City Council [2026] IESC 36 (Unreported,

Supreme Court, 2 July 2026) per Woulfe J. at 114). In particular:

1. Whether there was substantial compliance is a factor: Monaghan

Urban District Council v. Alf-a-Bet Promotions Ltd 1980 WJSC-SC

1341, [1980] I.L.R.M. 64 (O’Higgins C.J.); Gillen v. Commissioner of

An Garda Síochána [2012] IESC 3, [2012] 1 I.R. 574 per Finnegan

J. and O’Donnell J.; Pat O’Donnell & Co. v. Dublin City Council [2026]

IESC 36 (Unreported, Supreme Court, 2 July 2026).

2. Looking at that issue from another point of view, 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).

3. Likewise the public interest in or 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.

4. Prejudice or the lack of it to the applicant or anyone else is a factor.

This includes both any demonstrated prejudice caused by the breach

itself (discussed in Gillen v. Commissioner of An Garda Síochána

[2012] IESC 3, [2012] 1 I.R. 574 per Finnegan J. and O’Donnell J.;

Pat O’Donnell & Co. v. Dublin City Council [2026] IESC 36

(Unreported, Supreme Court, 2 July 2026)) and any prejudice

caused by invalidating the impugned decision in the particular

circumstances (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)”).

5. Looking at that issue from another point of view, if there is

harmless error, that is equivalent to saying that no prejudice is

thereby caused: Pat O’Donnell & Co. v. Dublin City Council [2026]

IESC 36 (Unreported, Supreme Court, 2 July 2026) at 112.

6. More generally, it follows that the factors relevant to discretion

include the seriousness of any 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).

98. The question of discretion does not arise having regard to the foregoing but the somewhat

micro-level and technical nature of the complaints weighted against the current, actual and ongoing

damage to the environment being caused by the discharge of untreated wastewater into the sea,

together with the availability in any event of a further remedy for the applicants in the event that

the EPA does not properly address emissions, leads to the conclusion that certiorari would be

inappropriate in any event.

99. Also of relevance is the fact that this project has been in the pipeline for 18 years – since

the original licence application in 2008. That is 18 years of discharge of raw sewage and the like

directly into the sea. It is not in the public interest that rectification of such a situation should be

delayed further.

100. In general terms I would accept the submission of the notice party:

“DISCRETION

63. It is settled law that relief by way of judicial review is discretionary (Connolly v An

Coimisiún Pleanála [2026] IEHC 224 at §47; Save the South Leinster Way v An Coimisiún

Pleanála (No.2) [2025] IEHC 541 at §53, §88, §119, §152(i),(ii); Reilly v An Coimisiún

Pleanála [2025] IEHC 659 at §71). At §5, §6, §7, §8, §23, §25, §52, §62, §66, §67 and

§68 of its Statement of Opposition, Uisce Éireann has pleaded that relief should, if necessary,

be refused in the exercise of the Court’s discretion. It is respectfully submitted that factors

which weigh in favour of relief being refused in the exercise of the Court’s discretion including

the following:

(i) The Proposed Development is of critical importance as set out in the planning

application and appeal (see the documents cited at §3-§6 of Uisce Éireann’s Statement of

Opposition). In this regard, there is an identified (and undisputed) need for the Proposed

Development, including the national and European law imperative in relation to preventing

untreated wastewater being discharged to coastal waters, and also a critical public

infrastructural importance as the Proposed Development is essential in relation to enabling

future growth and development in the area. A key driver for the Proposed Development is

the protection of the environment and ensuring compliance with European environmental

law. This is stated clearly in the information that was before the Commission and which the

Commission evidently accepted and agreed with in granting permission subject to conditions.

(ii) There is no direct challenge to the Commission’s overall conclusion that the Proposed

Development is in accordance with the proper planning and sustainable development of the

area;

(iii) Having regard to the pleaded grounds of challenge taken at their height, and the

response and grounds of opposition to same as pleaded in Uisce Éireann’s Statement of

Opposition and affidavit evidence filed on its behalf, and to the evidence and materials that

were before the Commission, there is no evidence or basis for contending that the

Commission’s Decision would have been different without the defects alleged by the

Applicants.

(iv) It would be disproportionate to grant the relief of certiorari in all the circumstances,

which is a legitimate basis to refuse relief.”

101. To summarise under the heading of discretion, the factors relevant to why certiorari should

not be granted even if counterfactually the applicants had established a breach are:

(i) The legislation does not expressly provide for total invalidity in the event of breaches

of the type alleged, and nor does such a conclusion follow by reference to text,

context or purpose.

(ii) The action/ inaction of the applicants is relevant to core grounds 1 and 3. In relation

to core ground 1 they failed to make the points regarding the 2005 regulations in

the process. In relation to core ground 3 they advocated against a tree-based

landscaping solution, so should not obtain relief based on a permission that does not

include that solution. Nor did the applicants engage with the final landscaping

proposals.

(iii) Alternatively viewed, they failed to avail of the obvious and appropriate remedy of

making the relevant points in the process itself.

(iv) Certiorari would be disproportionate in the circumstances.

(v) There was substantial compliance with the 2005 regulations (by reference to the

conditions imposed – core ground 1), with the EIA directive (core ground 2) and with

the requirement as to reasons (core ground 3).

(vi) The criticisms are largely semantic or technical.

(vii) There is strong countervailing public interest in the proposed project.

(viii) This is reinforced by the lack of direct challenge to the conclusion that the project

will be in accordance with proper planning and sustainable development.

(ix) The applicants are not demonstrably prejudiced by the matters complained of and

continue to enjoy a remedy insofar as any future EPA licensing will be open to public

participation.

Summary

102. 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) Applying the settled law that a decision must generally be viewed through the lens

of the material before the decision-taker, the attempts to introduce new evidence

that could have been but were not put before the decision-taker are not permissible,

and similarly the applicants should not be granted an order of certiorari on the basis

of alleged inadequacies with the revised landscaping proposal which they did not

meaningfully engage with before the commission or on the basis of alleged

shortcomings in technical compliance with the 2005 regulations which they did not

raise before the commission.

(ii) Applying settled law on the onus of proof, the applicants have not overcome that

onus to show a flaw warranting certiorari in the decision here, particularly absent

cross-examination, and in particular have not demonstrated that any necessary

issues were not considered.

(iii) Applying settled law in relation to statutory interpretation, art. 6 of the 2005

regulations does not impose an obligation on the commission more extensive than

the duties it discharged here.

(iv) Applying settled law in relation to reasons, the applicants have not demonstrated

any inadequacy of reasons here. The reasons have to be read in conjunction with

the material before the commission.

(v) Applying settled law in relation to discretion, if counterfactually there was a defect

here, and exercising discretion within established doctrinal bounds, this is a case

where certiorari would be disproportionate and/or otherwise inappropriate in the

context of the facts and the type of errors alleged.

Order

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

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by the time and in the manner set out below, the

foregoing order be perfected forthwith thereafter on the basis of no order as to costs

(including no order as to any reserved or adjourned costs or costs not otherwise

dealt with, other than the costs of the motion for directions which is a matter for

Farrell J.);

(iii) the foregoing proposed order be subject to contrary written legal submission or any

consequential application supported by a written legal submission, such submission

to be delivered within 7 days, with replies by other parties within a further 7 days;

(iv) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in this judgment may be addressed pursuant to O. 103

r. 40(4) RSC; and

(v) the matter be listed at 09:30 on Thursday 9 July 2026 to confirm the foregoing.