High Court dismisses judicial review against solar farm planning permission due to insufficient pleading of EIA breach grounds.

[2026] IEHC 62

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001080]

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

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

DEVELOPMENT ACT 2024 AND IN THE MATTER OF AN APPLICATION

BETWEEN

SUSAN MOSS, ANNE HOEK, ANNE LACEY, FRANCIS PRENDERGAST, NED BARRON AND

PAUL DAVIS

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

LIGHTSOURCE RENEWABLE ENERGY IRELAND LIMITED

NOTICE PARTY

Date of impugned decision: 20 May 2025

Date proceedings commenced: 14 July 2025

Date of main hearing: 13 January 2026

Date draft judgment circulated: 16 January 2026

JUDGMENT of Humphreys J. delivered on Tuesday the 10th day of February 2026

1. The project here was found acceptable by the county council, the inspector and the

commission. Multiple decisions over recent years have emphasised that solar farms are not

envrionmental impact assessment (EIA) projects (Concerned Residents of Treascon and Clondoolusk

v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024) citing

Sweetman v. An Bord Pleanála [2020] IEHC 39 (Unreported, High Court, McDonald J., 31 January

2020), Kavanagh v. An Bord Pleanála [2020] IEHC 259 (Unreported, High Court, O’Moore J., 29 May

2020)). The applicants try to upset that conclusion by a side-wind – because projects like solar

farms inevitably require internal access tracks, the applicants characterise those as “roads” in a way

that would engage EIA. The applicants are undeterred by the previous rejection of that argument

in caselaw, and the question here is whether this or any other argument advanced furnished grounds

to quash the permission here.

Geographical context

2. The project (https://www.pleanala.ie/en-ie/case/318433) concerns a 10-year planning

permission for a solar photovoltaic (PV) energy development. The proposed development consists

of a solar PV energy development with associated battery storage compound with a total site area

of c. 103.64 ha. to include solar panels mounted on steel support structures, associated cabling and

ducting, inverters, transformers, switchgear substations, auxiliary transformer, permanent storage

container, monitoring houses, composting toilet, BESS customer substation, battery blocks, BESS

inverters, BESS interface cabinets, BESS MV skids, temporary construction compounds, tracks,

boundary security fencing and security gates, CCTV, landscaping and ancillary works, with a 40 year

operational period. It is proposed that the proposed development will be accessed from three

separate access points: site access 1 will be a newly created access point of the L4205 and site

access 2 and 3 will utilise two existing access points of an unnamed local road which runs along the

northern boundary of the application site, both site access 2 and 3 will require upgrading, all on

lands within the townlands of Castlegarden and Cloghscregg, Thomastown, County Kilkenny.

Facts

3. Kilkenny County Council (the council) made the Kilkenny City and County Development Plan

on 3 September 2021. The plan came into effect on 15 October 2021.

4. On 15 October 2021, the Minister of State at the Department of the Housing, Local

Government and Heritage, consequent to a recommendation made to him by the Office of the

Planning Regulator under s. 31AM(8) of the Planning and Development Act 2000 (the 2000 Act),

notified the council of his intention to issue a direction to the Kilkenny City and County Development

Plan 2021-2027 (see https://www.kilkennycoco.ie/eng/services/planning/development-plans/city-

and-county-development-plan/adopted-city-and-county-development-plan.html). The final

direction has yet to issue.

5. The notice party developer lodged an application for permission with the council on 27

February 2023.

6. The application was accompanied by an environmental impact assessment screening report

(EIAR) as well as a Natura impact assessment (NIS). Other documents accompanying the

application included inter alia a planning statement, noise impact assessment, an ecological

appraisal, a biodiversity management plan as well as maps and drawings.

7. In or around April 2023, some of the applicants made submissions in respect of the proposed

development, identifying concerns in respect of what was being proposed, and received

acknowledgements in respect of those submissions as they related to the proposed development.

8. The council made a request for further information (RFI) on 20 April 2023, and a response

to that RFI was submitted on behalf of the developer on 19 September 2023. Two planners’ reports

were prepared by officials of the council, dated 20 April and 13 October 2023, respectively, on the

planning application.

9. On 11 October 2023, the council’s environment section issued a memorandum stating that

it had no objection to the proposed development subject to conditions.

10. On 13 October 2023, the council issued a notification of a decision to grant permission for

the proposed development, subject to 25 conditions.

11. A third-party appeal was made to the commission on 9 November 2023 by BPS Planning &

Development Consultants on behalf of a number of persons including the applicants.

12. Lightsource submitted a response to the appeal dated 8 December 2023.

13. The council also made a response to the appeal by submission dated 11 December 2023.

14. The commission appointed inspector Liam Bowe to prepare a report and recommendation in

respect of the proposed development.

15. On 8 July 2024, a memorandum was prepared by the inspector stating that he considered

that the proposed development would require the submission of an EIAR.

16. On 31 July 2024, the commission wrote to the applicants pursuant to s. 132 of the 2000 Act,

requiring Lightsource to submit an EIAR within a period of six months. A copy of the s. 132 notice

was circulated to all of the parties to the appeal on 1 August 2024.

17. On 27 August 2024, Lightsource responded to the s. 132 notice and set out its view that the

proposed development did not require the submission of an EIAR and further submitted that the

commission should withdraw the request made in the s. 132 notice.

18. On 4 September 2024, a memorandum was prepared by an executive officer of the

commission, which noted that a response had been received from Lightsource and recommended

that the provisions of s. 131 of the 2000 Act should not be invoked in respect of the council’s

response. Following a recommendation from the inspector (made in two memoranda dated 17

September 2024) to circulate Lightsource’s responses to the s. 132 notice pursuant to s. 131 of the

2000 Act, the submission was circulated to the other parties to the appeal (including the applicants)

on 17 September 2024.

19. Thereafter, a submission was made by BPS Planning & Development Consultants on behalf

of the applicants in respect of Lightsource’s response to the s. 132 notice dated 10 October 2024.

A separate submission was made on behalf of Willem Hoek, who is not a party to these proceedings,

dated 10 October 2024.

20. The inspector prepared a report dated 4 December 2024 in respect of the appeal, which

recommended that planning permission be granted subject to conditions.

21. The commission’s direction (BD-019181-25) is dated 12 March 2025.

22. By commission order dated 20 May 2025 (ABP-318433-23), the commission granted

planning permission for the proposed development, subject to 21 conditions.

Procedural history

23. The statement of grounds and verifying affidavit were filed in the Central Office of the High

Court on 14 July 2025.

24. On 21 July 2025, Farrell J. granted leave to apply for judicial review, except for core ground

5. 25. On 15 September 2025, a hearing date was fixed for 13 January 2026.

26. On 29 September 2025, the matter was listed at request of parties to discuss an issue with

directions.

27. The respondent filed its statement of opposition and verifying affidavit on 23 October 2025.

28. The notice party filed its statement of opposition and verifying affidavit on 30 October 2025.

29. On 1 December 2025, the matter was listed for callover.

30. On Monday 8 December 2025, the matter was listed for mention with new directions to be

agreed by Friday 12 December 2025.

31. The applicants’ submissions were filed on 9 December 2025.

32. The respondent’s submissions were filed on 16 December 2025.

33. On 15 December 2025, the matter was listed for callover and papers were in order on that

date.

34. The notice party’s submissions were filed on 18 December 2025.

35. On 9 January 2026, the applicants indicated that they would not be pursuing core ground 6.

36. On 12 January 2026, a corrective affidavit of Brigitta Lannen, dated 9 January 2026, was

filed.

37. The matter was heard on 13 January 2026. Judgment was reserved at the end of that

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

professional and helpful assistance. As I have previously sought to make clear, insofar as any points

advanced are not being accepted in this or any other given judgment, that is solely to do with the

inherent merits of such points and is no reflection on those instructed to convey such points, a

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

concerned.

38. On 16 January 2026, a draft of the present judgment was sent to the parties to give an

opportunity to identify any errors. 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.

39. Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile

in writing within the specified time, and should not be to reargue the substance (submissions to that

effect will be disregarded) but are confined to matters such as:

(a) informing the court as to whether a formal judgment is required, and if so on what

issues;

(b) informing the court as to whether a judgment might be oral or written or partly in

both modes;

(c) any typographical, factual or legal errors in the decision;

(d) any redaction of personal information that the party wishes to request;

(e) in the event that the court proposes to place pivotal reliance on any authority or

material not previously adverted to, as opposed to where such material merely

reinforces a point that the court was making in any event, any comment as to why

such material should not lead to the proposed conclusion; identifying points that the

court proposes to address but that the parties consider it unnecessary to address;

(f) requesting the court to decide a point that, while unnecessary to decide, is one the

party considers could beneficially be decided;

(g) identifying significant procedural, factual or legal points that the party considers that

the court was required to address but has not addressed or not provided reasons

for; and

(h) any other suggestions as to the wording (as opposed to substance) of the decision

if the proposed wording causes any significant issue for a party for any identified

reason.

40. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. 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. All parties involved are requested to

positively confirm to the court the position including if they have no observations on the draft

legitimately falling within the foregoing parameters. Overall 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. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

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

41. For the avoidance of doubt, draft judgments are not public domain materials and, while they

can be shared between the lawyers concerned and their clients, they are not intended for publication

(indeed given their lack of status it is impracticable to refer to them, even in the context of

considering such drafts in other litigation, until the judgment is formally issued) or for any other

transmission save for the legitimate purposes of the litigation. Therefore anyone with information as

to the text, content or proposed outcome of any draft is required not to transmit such information

to others save solely by way of private transmission for the legitimate purposes of the litigation and

subject to a similar restriction on any recipient (see Attorney General v. Crosland (No. 2) [2021]

UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication

of draft judgments is in the interests of the administration of justice). The contents of this paragraph

constitute 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 mention date to review matters following the foregoing was to be 26 January 2026. The

parties did not have any comments on the draft.

Relief sought

43. The reliefs sought are as follows:

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

a 10 year planning permission for a development consisting of a Solar PV energy

development with associated battery storage compound on a total site area of 103.64

hectares to include solar panels mounted on steel support structures, associated cabling and

ducting, inverters, transformers, switch gear, substations, auxiliary transformer, permanent

storage container, monitoring houses, composting toilet, BESS customer substation, battery

blocks, BESS inverters, BESS interface cabinets, BESS MV skids, temporary construction

compounds, tracks, boundary security fencing and associated gates, CCTV landscaping and

ancillary works with a 40 year operational period with access from 3 separate access points

off the L4205, with two additional access points from an unnamed local road which

development is located within the townlands of Castlegarden and Cloghsgregg, Thomastown,

Co. Kilkenny and in respect of which a Natura Impact Statement (NIS) was submitted, and

which decision bearing An Coimisiún Pleanála reference no. 318433-23 was determined by

Order dated the 23rd day of May 2025.

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

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

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

3. A Stay on the implementation of any of the said development or taking any further

steps in respect of the implementation of the said permission to include the implementation

of any conditions pending the determination of these proceedings.

4. An Order providing for the costs of the application and, where appropriate, a

protective costs Order pursuant to Sections 3, 4 and 7 of the Environmental (Miscellaneous

Provisions) Act 2011 and/or Section 50B of the Planning and Development Act 2000 (as

amended) and/or Order 99 of the Rules of the Superior Court in respect of the costs of the

said application.

5. Interim and/or interlocutory relief.

6. Further and/or other relief.

7. The costs of these proceedings.”

Grounds of challenge

44. The core grounds of challenge are as follows:

“Domestic Law Grounds

1. The Respondent erred in law that whilst initially having determined that an

Environmental Impact Assessment was required on the basis of the design and extent of the

roadway servicing the development and on the basis of the plans for the said roads that

were submitted with the application and the nature of the proposed roads which comprised

ground formation, a terram layer, a geogrid layer, 200mm of hard core compacted stone

and 75mm of stone or crushed stone cambered to allow runoff and/or tarmac and where a

Notice under Section 132 of the Planning and Development Act 2000 was issued directing

than an Environmental Impact Assessment Report be submitted which Notice was based on

two separate technical reports and where, without any or any appropriate basis or without

any or any appropriate evidence to deal with the original finding, the Respondent decided to

proceed to determine the application without the submission of an Environmental Impact

Assessment Report. The Respondent, without carrying out an Environmental Impact

Assessment, had no or no basis on which basis on which to make the said decision, had no

jurisdiction to disapply the Notice issued under Section 132 of the Planning and Development

Act, erred in law in its determination that such an Environmental Impact Assessment Report

was not required on the basis that it should not proceed with the issue of a Notice under

Section 132. The Respondent made the determination without any or any notice to the

Applicants or members of the public in respect of the said determination and only after the

determination notified the said public and failed to have any regard to the submissions made,

and accordingly the decision is contrary to fair procedures, was made without jurisdiction,

without any or any Order of the Board withdrawing the Section 132 Notice, without any or

any consideration of third party submissions including those of the Applicants, in breach of

the principles of audi alteram partum, in breach of fair procedures, and in breach of the right

of public participation under the Planning and Development Act and under European

Community Law, and in particular Council Directive 2011/92EU, and amounts to an error of

law on the face of the record and renders the decision invalid and void.

2. The Respondent erred in law in having regard to the provisions of the Kilkenny

County Development Plan 2021-2027, reference to which appears on the face of the Record

in the Board Direction, the Board Order and in the Inspector’s Report in circumstances where

the said plan as had regard to has been published in breach of a Ministerial Directive which

directed that certain paragraphs of Chapter 11 be excluded, and in particular Chapter 11.4

and 11.5 of the said plan. In having regard to an invalid document the said decision is ultra

vires the Respondent, invalid and void and in particular where the said provisions excluded

from the development plan specifically refer to solar farms in respect of both paragraphs to

be excluded and accordingly the Respondent acted in excess of jurisdiction, had regard to

irrelevant and inappropriate considerations, and had regard to an invalid plan amounting to

an error of law on the face of the record and renders the decision in excess of jurisdiction,

amounts to an error of law on the face of the record, and renders the decision ultra vires

the Respondent and is invalid and void.

3. The Respondent erred in law in accepting an invalid application for the purposes of

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

2001 in respect of the public notice published that failed to describe the nature and extent

of the proposed development contrary to Articles 17, 18 and 19 of the Planning and

Development Regulations 2001 in failing to specify the number of structures including solar

panels, inverters, BESS inverter cabinets, BESS MV skids and extent of roads, contrary to

the obligations to state the nature and extent of the proposed development and failed to

comply with Article 22(1)(b) in respect of the detail of the maps accompanying the

application and Article 22(4) in respect of elevations of the said solar panel structures or any

or any appropriate details of the other structures to be constructed, and Article 23(1)(a) in

respect of features and/or structures in the vicinity of the site, 23(1)(b) in respect of the

scale and detail of the said drawings, 23(1)(f) in respect of the dimensions of the drawings.

Accordingly the said development amounts to an invalid application for the purposes of the

Planning and Development Act and cannot ground any decision in respect of such an

application and the Respondent erred in law in failing to consider the said validity issues and

erred in law in determining that these are matters for the Planning Authority in the first

instance, and accordingly there is an error of law on the face of the record, the decision is

made without jurisdiction and is contrary to law and renders the decision invalid and void.

European Law Grounds

4. The Respondent erred in law in failing to require a mandatory Environmental Impact

Assessment having regard to Class 10(dd) of Schedule 5, Part 2 of the Planning and

Development Regulations 2001 (as amended) which provides that private roads which would

exceed 2000m in length require a mandatory Environmental Impact Assessment and where

application reference no. 318433/23 is a specified development having circa 5.3km of roads

comprised of drainage channels, geogrid layers, a subbase, 200mm compacted stone and

75mm stone/tarmac of a width of 3.5m to 4.5m in width, has been classified by the

Respondent as a road in the first instance. The Respondent served a Notice requiring the

submission of an Environmental Impact Assessment Report with the Notice issued pursuant

to Section 132 of the Planning and Development Act 2000, and in failing to require the

submission of an Environmental Impact Assessment Report and failing to carry out an

Environmental Impact Assessment the Respondent acted contrary to Council Directive

2011/92EU, in breach of its obligations under European Community law, acted ultra vires

and without jurisdiction and renders the decision under 318433-24 invalid and void.

5. The Respondent erred in law in having regard to the provisions of the Kilkenny

County Development Plan 2021-2027, reference to which appears on the face of the Record

in the Board Direction, the Board Order and in the Inspector’s Report in circumstances where

the said plan as had regard to has been published in breach of a Ministerial Directive which

directed that certain paragraphs of Chapter 11 be excluded, and in particular Chapter 11.4

and 11.5 of the said plan. In having regard to an invalid document the said decision is ultra

vires the Respondent, invalid and void and in particular where the said provisions excluded

from the development plan specifically refer to solar farms in respect of both paragraphs to

be excluded and accordingly the Respondent acted in excess of jurisdiction, had regard to

irrelevant and inappropriate considerations, and had regard to an invalid plan amounting to

an error of law on the face of the record and renders the decision in excess of jurisdiction,

amounts to an error of law on the face of the record, and renders the decision ultra vires

the Respondent and is invalid and void.

6. The Respondent erred in law failing to have regard to S.I. No. 648/2024 - European

Union Habitats (River Barrow and River Nore Special Area of Conservation 002162)

Regulations 2024. The Respondent Board relied on the Natura Impact Statement dated

30/01/2023 and did not have any regard to the said regulations of 2024 which are directly

relevant and referable to the lands the subject-matter of this development. Accordingly, the

Appropriate Assessment is invalid, void and of no effect, and is contrary to the provisions of

Article 6(3) of the Council Directive 92/43EEC.”

45. Leave was refused for core ground 5, and core ground 6 was withdrawn in correspondence.

Core ground 2 was formally moved only and no oral submissions were advanced. Core grounds 1

and 4 were taken together in submissions by the applicants.

The impugned decision

46. The impugned decision provides as follows:

“Decision

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

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

set out below.

Reasons and Considerations

In coming to its decision, the Board had regard to the totality of information on the file

including the following:

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

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

(c) the national targets for renewable energy contribution to the overall national grid,

(d) the national, regional and local policy support for developing renewable energy, in

particular:

(i) the Board to perform its functions in a manner consistent with the Climate Action

Plan 2024 and the Climate Action Plan 2025,

(ii) the Board to perform its functions in a manner consistent with the Climate Action

and Low Carbon Development (Amendment) Act 2021,

(iii) Project Ireland 2040 National Planning Framework (2018),

(iv) National Biodiversity Action Plan 2023-2030,

(v) National Development Plan 2021-2030,

(vi) National Energy Security Framework (April 2022),

(vii) National Energy and Climate Action Plan 2021-2030,

(viii) Southern Regional Spatial & Economic Strategy, and

(ix) Kilkenny City and County Development Plan 2021-2027,

(e) the likely significant effects on European sites arising from the proposed development,

including the location of the proposed development and the separation distance from the

Natura 2000 sites,

(f) the likely consequences for the proper planning and sustainable development in the area

arising from the proposed development and the relevant provisions of the Kilkenny City and

County Development Plan 2021-2027 and objectives and the results of the Strategic

Environmental Assessment and Appropriate Assessment of this plan undertaken in

accordance with the SEA Directive (2001/42/EC),

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

development,

(h) the submissions on the file,

(i) the documentation submitted with the application and the appeal, including the response

to submissions on the appeal, and

(j) the report and recommendation of the Inspector.

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

proposed development would be in accordance with the provisions of the Kilkenny City and

County Development Plan 2021-2027, including Objective 1 1 A, would not have an

unacceptable impact on the character of the landscape or on cultural or archaeological

heritage, would not seriously injure the visual and residential amenities of the area, would

be acceptable in terms of public health, traffic safety and convenience, would not have undue

impacts on surrounding land uses, would not have an unacceptable impact on ecology or on

any European Site, would not lead to an increased risk of flooding within the site or adjoining

lands, and would make a positive contribution to Ireland’s requirements for renewable

energy in accordance with national regional and local policy. The proposed development

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

of the area.

Appropriate Assessment Screening:

The Board noted that the proposed development is not directly connected with, or necessary

for the management of a European Site. 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 River Barrow and River Nore Special Area of

Conservation (Site Code 002162) and River Nore Special Protection Area (Site Code 004233)

are the only European Sites in respect of which the proposed development has the potential

to have a significant effect in view of the Conservation Objectives for those sites and that a

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

Nore Special Protection Area (Site Code 004233) in view of the sites’ 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 sites’

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 Sites,

(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, and

(iv) the report and recommendation of the Planning Inspector.

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 Sites. In overall conclusion, the

Board was satisfied that the proposed development would not adversely affect the integrity

of these European Sites in view of the sites’ Conservation Objectives and that there is no

reasonable scientific doubt as to the absence of such effects.

Conditions

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

particulars lodged with the application submitted to the planning authority and the further

plans and particulars submitted on the 19th day of September 2023, except as may

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

conditions require details to be agreed with the planning authority, the developer shall agree

such details in writing with the planning authority prior to commencement of development

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

particulars.

Reason: In the interest of clarity.

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

be implemented.

Reason: To protect the integrity of European Sites.

3. All of the environmental, construction, ecological and heritage-related mitigation

measures, as set out in the Planning Report and its associated appendices, Biodiversity

Enhancement Action/ Management Plan and the Construction and Environmental

Management Plan, and other particulars submitted with the application, shall be

implemented in full by the developer, except as may otherwise be required in order to

comply with the conditions of this Order.

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

construction and operational phases of the development.

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

10 years from the date of this order.

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

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

5. (a) The permission shall be for a period of 40 years from the date of the commissioning

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

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

been granted for their retention for a further period.

(b) Prior to commencement of development, a detailed restoration plan, including a

timescale for its implementation, providing for the removal of the solar arrays, including all

foundations, anchors, CCTV cameras, fencing and site access to a specific timescale, shall

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

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

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

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

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

be removed within three months of decommissioning.

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

regard to the circumstances then prevailing, and in the interest of orderly development.

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

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

Reason: in the interest of clarity.

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

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

and services. The developer shall agree such details in writing with the planning authority

prior to commencement of development.

Reason: In the interest of environmental protection.

8. (a) Prior to the commencement of development pre-commencement surveys for protected

plant, animal species and invasive species shall be undertaken at the site and where required

the appropriate licence to disturb or interfere with same shall be obtained from the National

Parks and Wildlife Service.

(b) Any tree or vegetation removal works that are required as part of this development shall

be done outside of the bird nesting season from March 1st until August 31st inclusive.

Reason: in the interest of wildlife protection.

9. Before construction commences on site, details of the structures of the security fence

showing provision for the movement of mammals at regular intervals along the perimeter of

the site shall be submitted for prior approval to the planning authority. This shall be

facilitated through the provision of mammal access gates designed generally in accordance

with standard guidelines for provision of mammal access (NRA 2008).

Reason: To allow wildlife to continue to have access across the site, in the interest of

biodiversity protection.

10. (a) No additional artificial lighting, beyond that permitted as part of this application, shall

be installed or operated on site unless authorised by a prior grant of planning permission.

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

towards adjoining property or the road.

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

(d) The power stations, transformers/ inverters, BESS containers and security fencing shall

be dark green in colour.

Reason: In the interest of clarity and of visual and residential amenity.

11. The developer shall appoint a suitably qualified ecologist to monitor and ensure that all

avoidance/mitigation measures relating to the protection of flora and fauna are carried out

in accordance with best ecological practice and to liaise with consultants, the site contractor,

and the planning authority. A report on the implementation of these measures shall be

submitted to the planning authority and retained on file as a matter of public record.

Reason: To protect the environmental and natural heritage of the area.

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

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

all on Sundays or public holidays. Deviation from these times will 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.

13. The developer shall facilitate the archaeological appraisal of the site and shall provide

for the preservation, recording and protection of archaeological materials or features which

may exist within the site. In this regard:

(a) The developer shall employ a suitably qualified archaeologist (licensed under the

National Monuments Acts) to carry and Archaeological Impact Assessment to include

pre-development archaeological testing in areas of proposed ground disturbance and

to assess the results and veracity of the results of the geophysical survey that was

carried out under Licence number 22R0307.

(b) The archaeologist shall submit an Archaeological Impact Assessment report for

the written agreement of the planning authority, following consultation with the

Department of Housing, Local Government and Heritage, in advance of any site

preparation works or groundworks, including site investigation works/ topsoil

stripping/ site clearance and/or construction works. The report shall include an

archaeological impact statement and mitigation strategy. Where archaeological

material is shown to be present, avoidance, preservation in-situ, preservation by

record (archaeological excavation) and/or monitoring may be required.

(c) Any further archaeological mitigation requirements specified by the planning

authority, following consultation with the Department of Housing, Local Government

and Heritage shall be complied with by the developer. No site preparation and/or

construction works shall be carried out on site until the archaeologist's report has

been submitted to and approval to proceed is agreed in writing with the planning

authority.

(d) The planning authority and the Department of Housing, Local Government and

Heritage shall be furnished with a final archaeological investigative works and/or

monitoring following the completion of all archaeological work on site and the

completion of any necessary post-excavation work. All resulting and associated

archaeological costs shall be borne by the developer.

(e) The Construction Environment Management Plan (CEMP) shall incorporate all

significant findings from any archaeological or cultural heritage constraints relevant

to the proposed development and decommissioning.

Reason: in order to conserve the archaeological heritage of the area and to secure

the preservation in-situ or by record and protection of any archaeological remains

that may exist within the site.

14. A finalised Landscape Mitigation Plan and Biodiversity Management Plan for the proposed

development, in accordance with that submitted, shall be submitted to, and agreed in writing

with, the planning authority prior to commencement of development. The site shall be

managed in accordance with the agreed plans. These plans shall cover a period of at least

five years and shall include details of the arrangements for its implementation.

Reason: To ensure the preservation and protection of flora and fauna within the site, and

provide for the satisfactory future maintenance of this development in the interest of visual

amenity.

15. The construction of the development shall be managed in accordance with a Construction

and Environmental Management Plan, to include a Construction Traffic 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 development, including:

(a) Details of the site and materials compound(s) including area(s) identified for the

storage of construction refuse,

(b) Details of areas for construction site offices and staff facilities,

(c) Details of site security fencing and hoardings,

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

construction,

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

construction site and associated directional signage, to include proposals to facilitate

the delivery of abnormal loads to the site,

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

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

public road network,

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

monitoring of such levels,

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

bunds to ensure that fuel spillages are fully contained. Such bunds shall be roofed

to exclude rainwater,

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

proposed to manage excavated soil, and

(k) Means to ensure that surface water run-off is controlled such that no silt or other

pollutants enter local surface water sewers or drains A record of daily checks that

the works are being undertaken in accordance with the Construction Environmental

Management Plan shall be kept for inspection by the planning authority.

Reason: in the interest of amenities, public health, and safety.

16. The final details of the operational access arrangements shall be submitted to and agreed

in writing with the planning authority, prior to commencement of development. Any gates

shall open inwards only.

Reason: in the interest of traffic safety.

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

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

satisfaction of the planning authority. Prior to commencement of development, a road

condition survey shall be taken to provide a basis for reinstatement works. Details in this

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

commencement of development.

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

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

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

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

to Saturday inclusive. The T value shall be one hour.

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

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

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

above background levels at the boundary of the site.

(b) All sound measurement shall be carried out in accordance with ISO Recommendation R

1996 ‘Assessment of Noise with respect of Community’ as amended by ISO

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

as applicable.

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

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

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

acceptable to the planning authority, to secure the reinstatement of public roads which may

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

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

reinstatement of the public road. The form and amount of the security shall be as agreed

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

referred to An Bord Pleanala for determination.

Reason: In the interest of traffic safety and the proper planning and sustainable development

of the area.

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

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

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

cessation of the project coupled with an agreement empowering the planning authority to

apply such security or part thereof to such reinstatement. The form and amount of the

security shall be as agreed between the planning authority and the developer or, in default

of agreement, shall be referred to An Bord Pleanala for determination

Reason: To ensure satisfactory reinstatement of the site.

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

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

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

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

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

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

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

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

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

agreement, the matter shall be referred to An Bord Pleanala to determine the proper

application of the terms of the Scheme.

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

condition requiring a contribution in accordance with the Development Contribution Scheme

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

Some general considerations

47. It may be of assistance to set out some general considerations arising from previous caselaw,

under a number of headings as follows.

The eight-fold test for judicial review

48. As set out in Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28

November 2025) and other cases (see also Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC

23), there is an eight-fold path to obtaining relief by way of judicial review. These tests are

cumulative, and relief should only be granted if the proceedings meet all of the following:

(i) the applicant complies with jurisdictional requirements (e.g. time or standing to

bring the proceedings at all (as opposed to standing for particular issues within a

case that the applicant can bring at a general level));

(ii) the applicant’s point is legally correct and workable;

(iii) the applicant’s point is properly pleaded including with the requisite specificity;

(iv) the specific point is one that the applicant has standing to make (bearing in mind

that while standing can relate to issues such as ius tertii it does not generally require

prior participation in the process insofar as there is an EU/Aarhus Convention

dimension);

(v) material capable of sustaining the point was properly before the decision-taker

at the relevant time such as to give rise to a duty to consider it (subject to exceptions

primarily related to failure by the decision-taker to fulfil her autonomous

obligations);

(vi) the applicant has discharged the onus of proof to establish all facts necessary for

relief;

(vii) any error must transcend the harmless, the non-material and the purely technical

lacking real-world consequences, bearing in mind that if error is demonstrated, then

the onus shifts to the opposing parties to show harmlessness; and

(viii) the exercise of discretion properly favours the making of the order (such as

considering the proportionality of the order sought), bearing in mind that discretion

is limited in an EU law context.

49. The most pertinent issues here are workability, pleadings, onus of proof and discretion.

50. Before dealing with the tests in detail, some general comments are worth noting at this

juncture:

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

decision: per Clarke J. (Dunne J. concurring) in Sweeney v. Fahy [2014] IESC 50

(Unreported, Supreme Court, 31 July 2014) at paras. 3.8-3.15. It is not an appeal

on the merits and it is not for the court to substitute its view for that of the decision-

taker: per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal

[1986] I.R. 642 at p. 654 (Hamilton P. concurring); per Denham J. in Meadows v.

Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at p.

743; per Lady Hale in R (Cart) v. Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663

at para. 47: “it is not difficult to dress up an argument as a point of law when in

truth it is no more than an attack upon ... factual conclusions”. See also Stapleton

v. An Bord Pleanála & Savona [2025] IEHC 178 (Unreported, High Court, Holland J.,

1 April 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court,

26 September 2025) per Farrell J. at 11.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

expansive application of the equality guarantee contained in Article 14 ECHR

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

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

broad and expansive application of the guarantee risked undue interference

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

classification is not arbitrary or capricious or based on prejudice or

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

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

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

States v Butler (1936) 297 US 1).”

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

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

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

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

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

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

(Unreported, Birmingham J., 27 June 2008) at para. 27; Heathrow Airport Ltd [2020]

UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 WLUK 212, Lord

Hodge and Lord Sales SCJJ. at 121; Moran v. An Bord Pleanála [2025] IEHC 510

(Unreported, High Court, 26 September 2025) per Farrell J. at 12. Generally

speaking evaluative judgements involving a significant degree of planning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2024) at §57).

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

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

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

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

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

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

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

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

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

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

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

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

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

per Farrell J. at 13.

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

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

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

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

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

P.T.S.R. 190, [2020] 12 WLUK 212, Lord Hodge and Lord Sales SCJJ.; per O’Donnell

C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE [2023] IESC

11 (Unreported, Supreme Court, 10 May 2023) at para. 37. As stated by Peart J. in

G.T. v. Minister for Justice, Equality and Law Reform [2007] IEHC 287, [2007] 7 JIC

2708 (Unreported, High Court, 27 July 2007), para. 3: “It is not desirable that a

decision be parsed and analysed word for word in order to discern some possible

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

credibility adverse to the applicant is invalid, unless the matters relied upon have

been clearly misunderstood or mis-stated by the decision maker. The whole of the

decision must be read and considered in order to reach a view as to whether, when

the decision is read in its entirety and considered as a whole, there was no

reasonable basis for the decision maker reaching that conclusion”. See also A.I.M.Z.

v. Refugee Applications Commission & Ors. [2008] IEHC 420, [2008] 11 JIC 0705

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

J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009] IEHC 383, [2010] 7 JIC 2803

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

for Justice, Equality and Law Reform & Ors. [2010] IEHC 93, [2010] 1 JIC 1404

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

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

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

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

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

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

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

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

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

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

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

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

Moore v. Dun Laoghaire Rathdown County Council [2016] IESC 70, [2017] 3 I.R. 42,

[2017] 2 I.L.R.M. 21 (Clarke, Laffoy and O’Malley JJ.) para. 4.8 (distinguishing a

substance point from “a technicality”). In Save Cork City Community Association

CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60, Woulfe J. (Dunne,

Charleton, O’Malley and Hogan JJ. concurring) said (without needing to decide the

point) that there was “a great deal of force” in the submission that it would be

disproportionate to quash a decision on the basis of a “technical procedural error”.

See also Watchhouse Cross Shopping Centre v. An Coimisiún Pleanála [2025] IEHC

520 (Unreported, High Court, 3 October 2025).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025) per Farrell J. at 13.

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

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

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

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

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

make a balanced and reasonable assessment of the overall sustainability of

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

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

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

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

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

v. Minister for Justice and Equality [2016] IECA 48, [2016] 2 JIC 2602, 2016 WJSC-

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

Workability

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

where this is at all possible:

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

[2022] IESC 30, [2022] 2 I.L.R.M. 417 per Hogan J. (MacMenamin, Charleton,

O'Malley and Baker JJ. concurring) at 43: “There is clear judicial authority for the

proposition that statutory provisions should be read, where possible, so as to

produce a workable and coherent interpretation, thereby avoiding interpretations

which were either incongruous or which imposed unfair or anomalous obligations on

private citizens in particular. Thus, for example, as far back as Frescati Estates Ltd.

v. Walker [1975] IR 177 at 187 this Court held that the Planning Acts should, where

possible, not be interpreted in a way which would lead to ‘strange incongruities.’ In

a subsequent Housing Act case, this Court rejected an interpretation of what

constituted the relevant dates for the service of notices to treat for the purposes of

the making of compulsory purchase orders under the Housing Act 1966 where it

concluded that such an interpretation such render the legislation effectively

unworkable: see In re Murphy [1977] IR 243 at 251 per Henchy J.”.

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

Collins JJ., 1 July 2025), para. 13, citing the statement that where the statutory

words used “are reasonably capable of a meaning which is in accord with the essence

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

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

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

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

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

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

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

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

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

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

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

Proper pleadings

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

in previous caselaw include the following:

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

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

2501 (Denham J. and Fennelly J., Murray C.J., Hardiman J. and Finnegan J.

concurring); 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); Eglington

Residents Association v. An Bord Pleanála [2025] IEHC 209 (Unreported, High Court,

Farrell J., 15 April 2025) at 11. The rules of pleading are well-established, clear and

mandatory, and are of particular importance in a context of special complexity such

as technical EU-heavy areas of planning law; while exact specification of every jot

and tittle of a case is an impossible standard, an applicant can only be permitted to

advance at a hearing a point that is acceptably clear from the express terms of the

statement of grounds, subject to the grant of any order allowing an amendment:

Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported,

High Court, 24 January 2024).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

repetition”.

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

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

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

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

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

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

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

on are expressly enumerated if they are implicitly identifiable with acceptable

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

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

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

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

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

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

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

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

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

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

accept the point made by the applicant without first addressing the

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

objection if it fails either way.

Onus of proof

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

previous caselaw include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J. at 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

concurring) that a developer can defend a permission even if the decision-taker does

not.

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

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

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

circumstances requiring a decision-taker to consider any other autonomous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

19 September 2025) at 55. Thus, apart from (i) failure to consider something that

the decision-taker was autonomously required to consider, (ii) patent flaw on the

face of the materials, or (iii) other legal error, inadequate consideration or failure to

dispel scientific doubt has to be established by admissible evidence (normally expert

evidence) in the judicial review showing either that reasonable doubt was created

by the material before the decision-taker at the time (albeit not limited to what was

adduced by the applicant specifically), or that such material even if uncontradicted

would on its face have created doubt in the mind of a reasonable expert: An Taisce

v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021] 7 JIC 0205 (Unreported, High

Court, 2 July 2021) at §7 and §8; Carrownagowan Concern Group v. An Bord

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

to appeal refused: Carrownagowan Concern Group v. An Bord Pleanála [2025]

IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025); Kennedy v. An

Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024) at §105;

Roache v. An Bord Pleanála [2024] IEHC 311 (Unreported, High Court, Phelan J., 21

May 2024) at §117; Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported,

High Court, 7 October 2024) at 73; Ryanair DAC v. An Bord Pleanála [2025] IEHC

74 (Unreported, High Court, 14 February 2025) at §64 et seq.; analogously, Donegal

County Council v. Planree [2024] IECA 300 (Unreported, Court of Appeal, Butler J.,

18 December 2024), para. 141; Massey v. An Bord Pleanála (No. 2) [2025] IEHC

206 (Unreported, High Court, 11 April 2025). As noted in Nagle View Turbine Aware

Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November

2024), summarised in the non-precedential determination refusing leave to appeal

[2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10 March 2025) at para. 8,

“the critical point was that scientific and factual shortcomings in EIA or indeed in an

Appropriate Assessment, must be established by the applicant who bore the burden

of proof”. Similarly, leave to appeal was refused in Eco Advocacy v. An Bord Pleanála

[2025] IESCDET 74 (Dunne, Hogan and Donnelly JJ., 4 June 2025) where “The

applicant’s claim failed for the reason that the High Court accepted that the

respondent had come to a lawful conclusion of no doubt that an appropriate

assessment was not needed and that the respondent had given reasons for that

conclusion. On the judicial review the applicant had not displaced that conclusion

by way of evidence” (para. 25). That is consistent with the general law: O’Doherty

and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1

I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin, O’Malley, Baker and Murray

JJ. concurring). The Supreme Court determination in 100 Meter Tall Group v. An

Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1 July 2025) is

to the same effect: “17. As [the trial judge] pointed out (at para. 196) the Court of

Justice ruled in Case C-721/22 Eco Advocacy CLG (EU:C: 2023: 477) the Board

simply provides ‘reasons sufficient to explain that the decision does not create

reasonable scientific doubt as to impact on European sites.’ This was simply the test

which [the trial judge] applied in the present case. He concluded (at para. 230) that

the Board had addressed the issue of potential bird movements of water birds and

hen harriers and ‘gives reasons for that conclusion which the applicants have not

displaced evidentially.’ 18. The Court considers that this second issue involves the

application of standard principles and does not meet the constitutional criteria”. See

also Eco Advocacy CLG v. An Bord Pleanála & Statkraft [2025] IEHC 15 (Unreported,

High Court, 15 January 2025) at §95; Concerned Residents of Coolkill v. An Bord

Pleanála & Midsal Homes [2025] IEHC 265 (Unreported, High Court, Holland J., 19

May 2025) at 309.

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

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

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

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

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

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

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

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

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

at §40-§41.

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

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

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

inadmissible on standard evidential principles insofar as matters of opinion are

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

Court, 11 April 2025).

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

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

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

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

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

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

conflict will be resolved against the opposing party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discretion

54. Some issues regarding discretion established by the caselaw are as follows:

(i) Judicial review is a discretionary remedy: per Charleton J. in Dun Laoghaire

Rathdown County Council v. Westwood Club Ltd [2019] IESC 43, [2020] 3 I.R. 417

at 10; 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. This historically

arose from the development of judicial review out of the power to grant equitable

relief.

(ii) In exercising that discretion however the court is not at large. Factors to be

considered as part of a holistic review of all relevant circumstances in deciding

whether to grant relief, and if so, what type of relief include the following (see Reid

v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High

Court, 24 January 2024) para. 134):

(a) “the 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)” (O’Connell v. Behan [2021] IECA 186

at 43) or the failure by the applicant to make the point in the process:

Costello J in Friends of the Irish Environment CLG v. The Government of

Ireland [2021] IECA 317 (Unreported, Court of Appeal, 26 November

2021) at 277.

(b) The importance of the provision not complied with – “consideration of

whether the matter concerned is one of importance or of triviality”: per

Finlay C.J. in G. v. DPP [1994] 1 I.R. 374 at p. 378 (emphasis added).

Thus an “inconsequential” breach was not a basis for the grant of relief

as a matter of discretion in Kenny v. Dublin City Council [2009] IESC 19

(Unreported, Supreme Court, 5 March 2005) at 79 per Fennelly J. (Macken

and Peart JJ. concurring).

(c) The extent of the non-compliance.

(d) Prejudice or the lack of it to the applicant or anyone else (see O’Connell v.

Behan [2021] IECA 186 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)”).

(e) Whether the error was once-off.

(f) Whether the issue is purely historic and cannot reoccur.

(g) The level of deliberation involved in the error and the extent to which

reasonable steps were taken to prevent or identify such an error.

(h) Whether the error was rectified promptly when it came to light (if capable

of rectification).

(i) Whether there is a pattern of non-compliance.

(j) 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”.

(k) 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)”: O’Connell v. Behan [2021] IECA 186

(Unreported, Court of Appeal, Murray J., 1 July 2021) (Whelan and

Pilkington JJ. concurring) at 43.

(l) “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., S v. Minister for

Justice and Equality [2025] IESC 48 (Unreported, Supreme Court, 25

November 2025) at 98.

(m) Any other relevant circumstances.

(iii) Discretion also applies at the leave stage of judicial review: 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.; per Finlay C.J. in G. v. DPP [1994] 1 I.R. 374 at p. 378.

(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 that.

The climate context

55. Insofar as relevant, some relevant legal principles concerning the climate context which have

been rehearsed in previous caselaw include the following:

(i) Domestic law imposes significant climate-related obligations on national decision-

takers, including in the field of planning. The Climate Action and Low Carbon

Development (Amendment) Act 2021 (amending the Climate Action and Low Carbon

Development Act 2015) mandates the achievement of a net-zero carbon economy

by 2050 (s. 3(1) of 2015 Act as substituted by the 2021 Act), with a legally binding

51% reduction in emissions by 2030 compared to 2018 levels (s. 6A(5) of 2015 Act

as substituted by the 2021 Act): See Coolglass v. ACP [2026] IESC 5.

(ii) EU law also involves significant climate-related objectives and obligations. Directive

2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the

promotion of the use of energy from renewable sources and amending and

subsequently repealing Directives 2001/77/EC and 2003/30/EC established

mandatory targets for the consumption of energy from renewable sources by

member states. Regulation (EU) 2018/1999 of the European Parliament and of the

Council of 11 December 2018 on the Governance of the Energy Union and Climate

Action, amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the

European Parliament and of the Council, Directives 94/22/EC, 98/70/EC,

2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the

European Parliament and of the Council, Council Directives 2009/119/EC and (EU)

2015/652 and repealing Regulation (EU) No 525/2013 of the European Parliament

and of the Council (the Governance Regulation) was adopted to implement the Paris

Agreement commitments (agreement at conference of parties of the UNFCCC (the

United Nations Framework Convention on Climate Change opened for signature at

UN Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14 June

1992) (COP21) in Paris, on 12 December 2015). By way of implementation of the

Paris Agreement, the European Climate Law (2021) (Regulation (EU) 2021/1119 of

the European Parliament and of the Council of 30 June 2021 establishing the

framework for achieving climate neutrality and amending Regulations (EC) No

401/2009 and (EU) 2018/1999) involves a reduction of GHG emissions for the EU

by at least 55% by 2030 compared to 1990 levels. Ireland’s Nationally Determined

Contributions (NDCs) under Paris are as part of the EU contribution to GHG

reductions. Council Regulation (EU) 2022/2577 of 22 December 2022 lays down a

framework to accelerate the deployment of renewable energy. Article 3(1)

introduced a presumption of overriding public interest for renewable energy projects

for the purpose of the birds, habitats and strategic environmental assessment (SEA)

directives, and provision was made for the acceleration of such projects. The current

version of the Renewable Energy Directive (REDIII), Directive (EU) 2023/2413 of

the European Parliament and of the Council of 18 October 2023 amending Directive

(EU) 2018/2001, Regulation (EU) 2018/1999 and Directive 98/70/EC as regards the

promotion of energy from renewable sources, and repealing Council Directive (EU)

2015/652, provides for a presumption of overriding public interest and for

accelerated timelines including requiring judicial remedies to be the most expeditious

available in national law.

(iii) The ECHR, relevant to domestic law via the European Convention on Human Rights

Act 2003, involves a binding legal obligation to address climate change: Verein

KlimaSeniorinnen Schweiz and Others v Switzerland (9 April 2024, App. no.

53600/20) (this is consistent with the decisions of all other international courts/

tribunals: International Court of Justice Advisory Opinion of 23 July 2025,

Obligations of States in respect of Climate Change; International Tribunal for the

Law of the Sea, Advisory opinion, Request by Commission of Small Island States,

21 May 2024; Inter-American Court of Human Rights, Request by Chile and

Colombia, Opinión Consultiva Oc-32/25 De 29 de Mayo de 2025).

Domestic law issues

Core ground 2 – development plan

56. Core ground 2 is (emphasis added):

“2. The Respondent erred in law in having regard to the provisions of the Kilkenny

County Development Plan 2021-2027, reference to which appears on the face of the Record

in the Board Direction, the Board Order and in the Inspector’s Report in circumstances where

the said plan as had regard to has been published in breach of a Ministerial Directive

which directed that certain paragraphs of Chapter 11 be excluded, and in particular Chapter

11.4 and 11.5 of the said plan. In having regard to an invalid document the said decision is

ultra vires the Respondent, invalid and void and in particular where the said provisions

excluded from the development plan specifically refer to solar farms in respect of both

paragraphs to be excluded and accordingly the Respondent acted in excess of jurisdiction,

had regard to irrelevant and inappropriate considerations, and had regard to an invalid plan

amounting to an error of law on the face of the record and renders the decision in excess of

jurisdiction, amounts to an error of law on the face of the record, and renders the decision

ultra vires the Respondent and is invalid and void.”

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

“Applicants’ Position

Core Ground No. 2

50. The Respondent erred in law in having regard to the provisions of the Kilkenny

County Development Plan 2021-2027, reference to which appears on the face of the Record

in the Board Direction, the Board Order and in the Inspector’s Report in circumstances where

the said plan as had regard to has been published in breach of a Ministerial Directive which

directed that certain paragraphs of Chapter 11 be excluded, and in particular Chapter 11.4

and 11.5 of the said plan. In having regard to an invalid document the said decision is ultra

vires the Respondent, invalid and void and in particular where the said provisions excluded

from the development plan specifically refer to solar farms in respect of both paragraphs to

be excluded and accordingly the Respondent acted in excess of jurisdiction, had regard to

irrelevant and inappropriate considerations, and had regard to an invalid plan amounting to

an error of law on the face of the record and renders the decision in excess of jurisdiction,

amounts to an error of law on the face of the record, and renders the decision ultra vires

the Respondent and is invalid and void.

Commission’s Position:

51. The Applicants fail to properly understand the relevant background to this Core

Ground. For example, in Submissions, the Applicants repeatedly refer to the ‘Ministerial

Directive’ or ‘Ministerial Direction’ pursuant to s.31 of the PDA. This is incorrect, no

Ministerial Direction ever issued in respect of the Development Plan – only a Draft Direction

did. In this regard, whilst not referred to by the Applicants, the Court set out the procedural

history relevant to the Development Plan and Draft Direction in Save South Leinster Way v

An Coimisiún Pleanála [2025] IEHC 541 (§16 et seq).

52. The Applicants contend, based on an erroneous understanding of the statutory

process, that the Commission had regard to an invalid document, the online Development

Plan, as it contained two sections in the published version which should not have been

included (as a result of the Draft Direction). The Applicants assert that two aspects of the

published plan ‘relating to solar farms’ were, but should not have been, considered. There

are a number of problems with this complaint:

- The burden of proof rests on the Applicants to demonstrate an error in the approach

of the Commission. This is a burden which is not discharged by mere assertion – McGowan

v An Coimisiún Pleanála [2025] IEHC 405 (§50). Speculatively asserting that the

Commission must have considered and relied on Section 11.4 and Section 11.5.1 is not

evidence of such reliance.

- Decisions carry the presumption of validity and cannot be read as unlawful or in

error where a lawful or correct reading is available – see Friends of Killymooney Lough v An

Coimisiún Pleanála [2025] IEHC 407 (§41); St Margaret’s Recycling v An Bord Pleanála

[2024] IEHC 94 (§57); McGowan v An Coimisiún Pleanála [2025] IEHC 405 (§49); and Eco

Advocacy v An Bord Pleanála [2025] IEHC 15, (§63(vii)). There is no evidence that the

Commission relied on either Section 11.4 and Section 11.5.1 – referring to the Development

Plan generally or other specific aspects of same is not evidence that either section was

considered.

The Commission can be taken to be aware of the status of the Draft Direction and the

consequence of same on the Development Plan – noting that the Draft Direction was also

publicly available.

There is absolutely no evidence to demonstrate that the Commission did not understand or

interpret the Development Plan by reference to the Draft Direction.

- The Applicants’ complaint of error of law on the face of the record, at its height, is a

complaint that because the Commission considered the Development Plan, it must have

considered the sections which were the subject matter of the Draft Direction – it is no more

specific than that. There is nothing to suggest that the Commission had regard to either

Section 11.4 and Section 11.5.1. As outlined above, the onus of proof is on the Applicants

and same is not discharged through their speculative assertions.

- Further, the two contentious sections, Section 11.4 and Section 11.5.1, do not relate

to solar farms – contrary to what the Applicants contend. Although, it is telling that neither

in their pleaded case or in Submissions do the Applicants actually refer to the text of either

section or any aspect of the Inspector’s Report or Commission’s Decision which allegedly

relied on same.

53. Sections 11.4 and 11.5.1 of the Development Plan are not materially relevant to the

decision impugned in these proceedings and do not affect Section 11.6 of the Development

Plan, which expressly relates to solar energy. As is evident from the Inspector’s Report

(p.14, 15), the Inspector considered the Proposed Development with regard to Section 11.6

of the Development Plan (which was not the subject of the draft Direction) and did not refer

to Sections 11.4 and 11.5.1 of the adopted Development Plan. The Applicants’ complaints

are wholly devoid of any substance.

54. Without prejudice to the foregoing, if any error arises in this respect (which is

denied) – similar to the approach of the Court in Save South Leinster Way (§88 et seq), yet

noting the distinguishing factual differences – this Honourable Court should exercise its

discretion to refuse relief.

Lightsource’s Position

55. Notwithstanding the positive pleas made in the respective Statements of Opposition

filed on behalf of the Commission and Lightsource, to the effect that no Ministerial Direction

has been issued which bears on any issue in these proceedings, the Applicants persist in

advancing a manifestly unfounded contention that a Ministerial Direction was issued on 15

October 2021. Furthermore, the Applicants continue to mischaracterise the nature and

effect of the Draft Ministerial Direction which did, in fact, issue on 15 October 2021. The

Draft Ministerial Direction actually requires that parts of Chapter 11 of the Draft Kilkenny

CDP, which were omitted from the Kilkenny CDP as made by the elected members, should

be re-inserted into the Kilkenny CDP. However, the Applicants continues to assert that the

purported Ministerial Direction requires text to be omitted from the Kilkenny CDP as made

by the elected members. In this connection, this Core Ground and its related particulars are

incapable of being sustained and, on this basis alone, the application for judicial review on

Core Ground 2 should be dismissed.

56. Strictly without prejudice, the Commission did not have regard to a plan that was

not in compliance with a Ministerial Direction, in circumstances where no such Ministerial

Direction has actually issued. The Applicants continue to maintain, erroneously, that

sections 11.4 and 11.5.1 of the Kilkenny CDP were relevant to the Commission’s

consideration of the planning application. However, it is clear that the provisions of sections

11.4 and 11.5.1 were not considered by the Inspector, so this ground of challenge simply

cannot be maintained to vitiate the Impugned Decision. There is simply no evidence that

the Commission had regard to some incorrect version of the Development Plan, and this

ground of challenge is unsustainable.”

58. The applicants, wisely, chose to make no oral submissions on this point. The point is not

sustainable for multiple reasons. The applicants incorrectly premised some of the points on the

assumption that there was a direction, whereas there is only a draft direction. More fundamentally,

it does not follow from the existence of a draft direction that the commission erred in relying on a

development plan to which the direction relates. At the level of theory, a draft direction may render

temporarily inoperable certain provisions of a plan (if the Minister requires removal of such provisions

and if they do not correspond to the provisions the previous plan) but there is no basis for any

contention that in this specific case and in relation to the commission’s reliance on the plan here,

the commission relied on any specific provision of the plan that was rendered inoperative by the

draft direction.

59. Reinforcing that, the draft direction is phrased in terms of wind energy (section 11.5 of the

plan), not solar energy (section 11.6). The only operative provision even capable of a wider reading

(i.e., by referring to the general targets in section 11.4) is:

“The Planning Authority is hereby directed to take the following steps with regard to the

‘wind energy strategy’ within the Development Plan:

a. Reinstate sections 11.4 and 11.5.1 of the draft Development Plan, including the

identification of 201 MW renewable energy to meet the objective for the generation of 100%

of electricity needs from renewable sources for the county by 2030 consistent with the

Climate Action Plan. …”

60. The problem for the applicants is that the objective of reinstatement of more ambitious

targets in the plan is that that is a pro-renewables intervention. Any argument that the commission

was not entitled to approve a renewable energy project because the council’s less ambitious targets

were countermanded as insufficient by a pro-renewable draft ministerial direction would be perverse

and illogical.

61. To put it another way, there is simply no logical route-map between the matters pleaded

and the relief claimed, let alone any demonstration of error.

Core ground 3 – alleged invalid application

62. Core ground 3 is:

“3. The Respondent erred in law in accepting an invalid application for the purposes of

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

2001 in respect of the public notice published that failed to describe the nature and extent

of the proposed development contrary to Articles 17, 18 and 19 of the Planning and

Development Regulations 2001 in failing to specify the number of structures including solar

panels, inverters, BESS inverter cabinets, BESS MV skids and extent of roads, contrary to

the obligations to state the nature and extent of the proposed development and failed to

comply with Article 22(1)(b) in respect of the detail of the maps accompanying the

application and Article 22(4) in respect of elevations of the said solar panel structures or any

or any appropriate details of the other structures to be constructed, and Article 23(1)(a) in

respect of features and/or structures in the vicinity of the site, 23(1)(b) in respect of the

scale and detail of the said drawings, 23(1)(f) in respect of the dimensions of the drawings.

Accordingly the said development amounts to an invalid application for the purposes of the

Planning and Development Act and cannot ground any decision in respect of such an

application and the Respondent erred in law in failing to consider the said validity issues and

erred in law in determining that these are matters for the Planning Authority in the first

instance, and accordingly there is an error of law on the face of the record, the decision is

made without jurisdiction and is contrary to law and renders the decision invalid and void.”

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

“Applicant’s Position

Core Ground 3

57. The Respondent erred in law in accepting an invalid application for the purposes of

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

2001 in respect of the public notice published that failed to describe the nature and extent

of the proposed development contrary to Articles 17, 18 and 19 of the Planning and

Development Regulations 2001 in failing to specify the number of structures including solar

panels, inverters, BESS inverter cabinets, BESS MV skids and extent of roads, contrary to

the obligations to state the nature and extent of the proposed development and failed to

comply with Article 22(1)(b) in respect of the detail of the maps accompanying the

application and Article 22(4) in respect of elevations of the said solar panel structures or any

or any appropriate details of the other structures to be constructed, and Article 23(1)(a) in

respect of features and/or structures in the vicinity of the site, 23(1)(b) in respect of the

scale and detail of the said drawings, 23(1)(f) in respect of the dimensions of the drawings.

Accordingly the said development amounts to an invalid application for the purposes of the

Planning and Development Act and cannot ground any decision in respect of such an

application and the Respondent erred in law in failing to consider the said validity issues and

erred in law in determining that these are matters for the Planning Authority in the first

instance, and accordingly there is an error of law on the face of the record, the decision is

made without jurisdiction and is contrary to law and renders the decision invalid and void.

Commission’s Position:

58. Respectfully, this Core Ground and the particulars to same are illustrative of the type

of ‘scattergun’ (Save South Leinster Way, §51) pleadings which the Courts have consistently

found to be inadequate and inappropriate. The approach of the Applicants appears to be:

allege as many contraventions of the PDRs as possible, cite the language from the PDRs, do

not engage in any meaningful way whatsoever with the evidence relevant to same, including

plans and particulars lodged, and hope that something sticks. Unfortunately for the

Applicants, when one delves into the detail of the complaints and the application

documentation, all of them are lacking in factual substance.

59. Their approach also has to be viewed in the context of the Applicants’ participation

in the planning process. In this regard, in their appeal to the Commission via their planning

consultant, the Applicants did not claim to be unable to understand the scale and extent of

the Proposed Development – rather, and contrary to the claims they now make, they actually

took issue with what they perceived to be the ‘excessive scale’ (Appeal Submission, BPS

Planning, pg.6) of the Proposed Development and specifically referred to the various aspects

of same, including ‘solar arrays, related structures, buildings, boundary fences…’ (Appeal

Submission, BPS Planning, pg.7). The Applicants’ claim that it is impossible to identify the

scale and extent of the Proposed Development therefore lacks credibility – tellingly, nobody,

including the Applicants, found this to be an issue before the Council or the Commission.

This, together with the detail in the application documentation and the complete lack of any

prejudice to the Applicants, weighs in favour of refusing relief (should the Court need to

consider same).

60. Moreover, simply asserting a contravention of the PDRs should not be accepted

without more – for example, by looking at the purpose of the specific Article in question and

asserting some form of prejudice or unfairness arising from/related to any alleged non-

compliance with same (the Applicants have not done this). The mostly generic pleas of the

Applicants should not be accepted as being adequate.

61. The PDRs have been complied with and the Applicants have not established to the

contrary. Moreover, when the application documentation is considered as a whole, same

complies with requirements of the PDRs and the purpose underpinning same, including

identifying the nature and extent of the Proposed Development – and the Commission was

lawfully entitled to reach this conclusion.

62. Noting the various complaints made under this Core Ground, not all instances of

non-compliance with the PDRs (if so established – which the Applicants have failed to do)

require an application to be deemed invalid or a permission quashed – see, inter alia, Reilly

v An Coimisiún Pleanála [2025] IEHC 659 (§81 et seq); Ballyboden Tidy Towns Group v An

Bord Pleanála [2023] IEHC 722 (§102 et seq); Pembroke Road Association v An Bord

Pleanála [2021] IEHC 403; and Byrnes v Dublin City Council [2017] IEHC 19. Having regard

to the totality of the evidence presented, if any non-compliance with the PDRs is established,

same does not warrant the quashing of the Commission’s Decision.

Lightsource’s Position

63. The Applicants assert that the Impugned Decision is invalid because the planning

application failed to comply with articles 17, 18, 19, 22(1)(b), 22(4), 23(1)(a), 23(1)(b) and

23(1)(f) of the 2001 Regulations. However, there is a complete absence of pleaded

particulars to support these grounds of challenge. Lightsource denies that any deficiency

arises in respect of the planning application documentation. Lightsource submits that the

Applicants have not established that there was any breach of the 2001 Regulations, and the

Applicants have not actually identified any specific prejudice sustained as a result of any

alleged deficiencies in the planning application documentation. The level of detail which the

Applicants submit is required goes beyond the scope of the relevant provisions of the

Regulations. Even if the Applicants have made out any inadequacy in the drawings (which

is denied), the law is clear that even a breach of a mandatory requirement under the 2001

Regulations does not automatically lead to certiorari.”

64. Unfortunately this point is not a basis for relief, for a number of reinforcing reasons.

65. Firstly as regards the pleadings, this point is by and large not adequately articulated in the

statement of grounds. The pleadings list out a mixum gatherum of alleged inadequacies without full

particulars of how exactly a breach arises or any route map from that to relief. There is a fair bit of

substance to the notice party’s complaint that “there is a complete absence of pleaded particulars

to support these grounds of challenge”. Generic pleas are insufficient: the commission correctly

invokes Casey v. Minister for Housing, Planning and Local Government [2021] IESC 42 (Unreported,

Supreme Court, Baker J., 16 July 2021) (§22 et seq.) and Concerned Residents of Treascon and

Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July

2024) (§41 et seq.). The basic problem is that while various missing pieces of information are set

out, it is unclear in most cases which specific provision of the regulations is infringed and why.

66. The full particulars of this claim are as follows. The provisions of the regulations are

highlighted – no provisions are cited in the “particulars” of grounds (emphasis added):

“Particulars in respect of Core Ground No. 3

The Respondent erred in law in accepting an invalid application for the purposes of the

Planning and Development Act 2000 and the Planning and Development Regulations 2001

in respect of the public notice published that failed to describe the nature and extent of the

proposed development contrary to Articles 17, 18 and 19 of the Planning and

Development Regulations 2001 in failing to specify the number of structures including

solar panels, inverters, BESS inverter cabinets, BESS MV skids and extent of roads, contrary

to the obligations to state the nature and extent of the proposed development and failed to

comply with Article 22(1)(b) in respect of the detail of the maps accompanying the

application and Article 22(4) in respect of elevations of the said solar panel

structures or any or any appropriate details of the other structures to be

constructed, and Article 23(1)(a) in respect of features and/or structures in the

vicinity of the site, 23(1)(b) in respect of the scale and detail of the said drawings,

23(1)(f) in respect of the dimensions of the drawings. Accordingly the said

development amounts to an invalid application for the purposes of the Planning and

Development Act and cannot ground any decision in respect of such an application and the

Respondent erred in law in failing to consider the said validity issues and erred in law in

determining that these are matters for the Planning Authority in the first instance, and

accordingly there is an error of law on the face of the record, the decision is made without

jurisdiction and is contrary to law and renders the decision invalid and void.

20. The maps and drawings divide the site into 8 parts, and the drawing has numerical

numbers and letters with the letters relating to subsequent maps showing the location of

the development for each sector and the map numbers identifying the maps to which these

sections relate.

21. It is impossible to identify precisely the scale and extent of the development with

the legend on the right-hand side, for example, identified in pink is temporary access roads

but the designation on the map is not consistent with that. There are various features shown

whose colour on the legend does not equate to what is shown on the plans, and it is

impossible to try and ascertain the nature of the development from the maps that have been

submitted. The developments in the vicinity of the site, which does not identify lands

outlined in blue other than it would appear within the site outlined in red are seriously

deficient and in respect of the houses on the perimeter do not show septic tanks and

percolation areas, do not show the bored wells which attach to many if not all of the houses

in the vicinity, and do not identify the significant tree stands or other features adjoining or

in the vicinity of the lands to which the application relates. It is impossible to identify from

these drawings the nature and extent of the development. There are no contours or if the

contours are on the drawing the intervals are not identified and are completely obscured by

a series of developments and in only a very limited number of cases is there any identification

of the distance from each of the structures to the boundary. This renders any identification

and analysis of the development virtually impossible given the manner in which the drawings

are presented. The said maps furthermore do not identify the location of the of the public

notice for each of the proposed entrances to the proposed site or wayleaves shown in yellow

across the site notwithstanding that there is a 110kv line extending across the site. There

a stream which is an important watercourse, and which flows through the site identified.

The drawings are uninformed, obscure, impenetrable and incapable of any or any

appropriate basis upon which to formulate a submission as required.

22. The drawings submitted with the application are equally inadequate with drawing

no. FT-2P-25-6854(TR640-685) purporting to show the solar panels but where the structure

comprising the solar panel does not even provide a drawing of the full extent of the elevation

nor does it give any dimension as to its length. There are a number of different structures

of different lengths and it is impossible to know from the drawings that have been submitted

the appearance of the structures as neither a complete front elevation or rear elevation of

any of these structures have been provided.

23. These structures are substantial structures extending to a height of 3.55m, but the

drawings do not clearly show the foundation details and while there is a typical section

shown, it is unclear as to whether there is a concrete plinth onto which the structure is

constructed. The entire foundation details are either contradictory or entirely absent, and it

is impossible to understand the process by which these structures are to be erected.

24. One cannot therefore discern with any degree of clarity the nature of these

structures, the manner in which they are to be constructed or even how they will operate,

and certainly one cannot make any type of judgement as to the visual impact of these having

regard to the plans and drawings lodged.

25. Similar comments are made in respect of the other structures, including the

transformer building in respect of which there is no details as to what the materials referred

to comprise, although there is a reference on the drawing that the building is to be painted,

but this appears to be inconsistent with the design that has been submitted. The switchgear

production substation does not describe what it is to be constructed of. The drawings of the

BEFF MV skid row do not appear to illustrate what the materials are and it is difficult to

envisage what these buildings will look like from the drawings submitted and it is difficult to

discover where they are to be located on the site. The entire drawings are totally inadequate,

confusing, contradictory and could never form the basis upon which one could make either

an assessment of the impact of the building or even formulate a submission as to their

impact.

26. There is a drawing described as ‘IRL_EPD_ROAD CROSS SECTION 3500_01’ and

headed ‘access track detail’ which shows quite a sophisticated design in respect of the

proposed road which illustrates in different colours ground formation, a terrain layer, a

geogrid layer, 200mm of hard core stone compacted, a geogrid layer above that and a 75mm

stone or crushed stone cambered to allow water runoff. The top 75mm stone or crushed

stone has elsewhere been described in the application as constituting a tarmac or recycled

tarmac surface. It is proposed that approximately 5.3km of this road is to be laid across the

site including to the substation with junction radii designed it would appear for heavy vehicles

and which roads are designed to a high standard. There appears to be both permanent

roads which are coloured orange and pink for temporary access roads, but the nature of

these temporary access roads is difficult to understand from the drawings. There is no figure

in respect of the panels which is estimated to be in the order of 250,000, and in the site

notice in respect of the other aspects of the development there is no enumeration of the

quantities of inverters, battery blocks etc. when in reality there are 34 no. inverters, 34 no.

transformers, 17 no. switchgear substations, 42 no. EPD battery blocks, 21 no. BESS

inverters, 42 no. BESS interface cabinets and 21 no. BESS MV skids as well as electrical and

communications cabling, site entrances and access roads, a battery storage facility,

construction compounds, 2m high deer fencing to extend around the entire perimeter of the

site, pole mounted security cameras, as well as a landscaping scheme.”

67. Articles “17, 18 and 19” of the 2001 regulations are a somewhat large block of text. They

provide as follows:

“Notice of planning application.

17.(1) An applicant shall within the period of 2 weeks before the making of a planning

application—

(a) give notice of the intention to make the application in a newspaper in accordance with

article 18, and

(b) give notice of the intention to make the application by the erection or fixing of a site

notice in accordance with article 19.

(2) Where the last day of the 2 week period referred to in sub-article (1) is a Saturday,

Sunday, a public holiday (within the meaning of the Organisation of Working Time Act 1997

(No. 20 of 1997)), or any other day on which the offices of the planning authority are closed,

the application shall be valid if received on the next following day on which the offices of the

planning authority are open.

(3) The requirement of sub-article (1)(b) shall not apply in relation to a planning

application for development consisting of the construction or erection by an electricity

undertaking of overhead transmission or distribution lines for conducting electricity, or

development consisting of the construction or erection by any statutory undertaker

authorised to provide a telecommunications service of overhead telecommunications lines.

Notice in newspaper.

18.(1) A notice published in accordance with article 17(1)(a) shall be published in a

newspaper approved for this purpose in accordance with sub-article (2), shall contain as a

heading the name of the planning authority to which the planning application will be made

and shall state—

(a) the name of the applicant,

(b) the location, townland or postal address of the land or structure to which the application

relates (as may be appropriate),

(c) whether the application is for permission for development, permission for retention of

development, outline permission for development or permission consequent on the grant of

outline permission (stating the reference number on the register of the relevant outline

permission),

(d) a brief description of the nature and extent of the development, including –

(i) where the application relates to development consisting of or comprising the

provision of houses, the number of houses to be provided,

(ii) where the application relates to the retention of a structure, the nature of the

proposed use of the structure and, where appropriate, the period for which it is

proposed to retain the structure,

(iii) where the application relates to development which would consist of or comprise

the carrying out of works to a protected structure or proposed protected structure,

an indication of that fact,

(iv) where the application relates to development which comprises or is for the

purposes of an activity requiring an integrated pollution control licence, an industrial

emissions licence or a waste licence, an indication of that fact,

(v) where a planning application relates to development in a strategic development

zone, an indication of that fact,

(vi) where the application relates to an LRD, an indication of that fact and include

the web address referred to in article 20A,

(vii) where applicable, that the application is subject to section 34D of the Act, and

that where a notice is given under section 34D(b) of the Act, article 26A shall apply,

and

(e) that the planning application may be inspected, or purchased at a fee not exceeding the

reasonable cost of making a copy, at the offices of the planning authority during its public

opening hours and that a submission or observation in relation to the application may be

made to the authority in writing on payment of the prescribed fee within the period of—

(i) 5 weeks, or

(ii) 2 weeks, in the case of a planning application for smallscale solar energy

equipment development or development that is the installation of a small-scale non-

ground source heat pump,

beginning on the date of receipt by the authority of the application.

(2)(a) For the purposes of these Regulations, each planning authority shall approve a list of

the newspapers, including national newspapers, it considers have a sufficiently large

circulation in its functional area, and different newspapers may be approved in respect of

different parts of such functional area.

(b) The list referred to in paragraph (a) shall be reviewed by the planning authority as may

be appropriate and at least once a year.

(c) The list referred to in paragraph (a) shall be displayed in or at the offices of the planning

authority or at any other place or by any other means, including in electronic form, that the

authority considers appropriate, and copies shall be made available at the offices of the

planning authority during office hours, free of charge.

Site Notice.

19.(1) A site notice erected or fixed on any land or structure in accordance with article

17(1)(b) shall be—

(a) in—

(i) the form set out at Form No. 1 of Schedule 3,

(ii) where the development is one that is covered by the provisions of the Renewable

Energy Directive, the form set out at Form No. 23 of Schedule 3, or

(iii) in either case mentioned in subparagraph (a) or (b), a form substantially to the

like effect,

(b) subject to sub-article (4), inscribed or printed in indelible ink on a white background,

affixed on rigid, durable material and secured against damage from bad weather and other

causes, and

(c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near

the main entrance to the land or structure concerned from a public road, or where there is

more than one entrance from public roads, on or near all such entrances, or on any other

part of the land or structure adjoining a public road, so as to be easily visible and legible by

persons using the public road, and shall not be obscured or concealed at any time.

(2) Where the land or structure to which a planning application relates does not adjoin

a public road, a site notice shall be erected or fixed in a conspicuous position on the land or

structure so as to be easily visible and legible by persons outside the land or structure, and

shall not be obscured or concealed at any time.

(3) Where a planning authority considers that the erection or fixing of a single site notice

is not sufficient to comply with the requirements of sub-articles (1) and (2), or does not

adequately inform the public, the authority may require the applicant to erect or fix such

further site notice or notices in such a manner and in such terms as it may specify and to

submit to the authority such evidence as it may specify in relation to compliance with any

such requirements.

(4) Where a valid planning application is made in respect of any land or structure, and

a subsequent application is made within 6 months from the date of making the first-

mentioned application in respect of land substantially consisting of the site or part of the site

to which the first-mentioned application related, in lieu of the requirements of sub-article

(1)(b), the site notice for the subsequent application shall be inscribed or printed in indelible

ink on a yellow background and affixed on rigid, durable material and be secured against

damage from bad weather and other causes.”

68. Which provision out of the foregoing 1,196 words is allegedly infringed and why? There is

no answer – this is impossibly vague and falls well short of minimum pleading requirements.

69. That leaves us with the additional provisions cited which are as follows.

70. Article 22(1)(b) is referred to, but there is no such provision. Possibly art. 22(2)(b) is

intended:

“A planning application referred to in sub-articles (1) and (1A) shall be accompanied by –

(a) ...,

(b) 6 copies of a location map of sufficient size and containing details of features in the

vicinity such as to permit the identification of the site to which the application relates, to a

scale (which shall be identified thereon) of not less than 1:1000 in built up areas and 1:2500

in all other areas, or such other scale as may be agreed with the planning authority prior to

the submission of the application, in any particular case and marked so as to identify clearly:

(i) the land or structure to which the application relates and the boundaries thereof

in red,

(ii) any land which adjoins, abuts or is adjacent to the land to be developed and

which is under the control of the applicant or the person who owns the land which

is the subject of the application in blue.

(iii) any wayleaves in yellow, and

(iv) the position of the site notice or notices erected or fixed to the land or structure

pursuant to article 17(1)(b), ...”

71. Article 22(4) provides:

“(4) Subject to articles 24 and 25 –

(a) a planning application in respect of any development consisting of or mainly consisting

of the carrying out of works on, in, over or under land or for the retention of such works

shall be accompanied by 6 copies of such plans (including a site or layout plan and drawings

of floor plans, elevations and sections which comply with the requirements of article 23),

and such other particulars, as are necessary to describe the works to which the application

relates,

(b) a planning application for any development consisting of or mainly consisting of the

making of any material change in the use of any structure or other land, or for the retention

of any such material change of use, shall be accompanied by-

(i) a statement of the existing use and of the use proposed together with particulars

of the nature and extent of any such proposed use,

(ii) where the development to which the application relates comprises the carrying

out of works on, in, over or under the structure or other land, 6 copies of such plans

(including a site or layout plan and drawings of floor plans, elevations and sections

which comply with the requirements of article 23), and such other particulars, as are

necessary to describe the works proposed, and

(iii) such plans and such other particulars as are necessary to identify the area to

which the application relates.”

72. Article 23(1)(a), (b) and (f) provide:

“23.(1) Plans, drawings and maps accompanying a planning application in accordance with

article 22 shall all be in metric scale and comply with the following requirements:

(a) site or layout plans shall be drawn to a scale (which shall be indicated thereon) of not

less than 1:500 or such other scale as may be agreed with the planning authority prior to

the submission of the application, the site boundary shall be clearly delineated in red, and

buildings, roads, boundaries, septic tanks and percolation areas, bored wells, significant tree

stands and other features on, adjoining or in the vicinity of the land or structure to which

the application relates shall be shown,

(b) other plans, elevations and sections shall be drawn to a scale of not less than 1:200

(which shall be indicated thereon), or such other scale as may be agreed with the planning

authority prior to the submission of the application in any particular case,

...

(f) plans and drawings of floor plans, elevations and sections shall indicate in figures the

principal dimensions (including overall height) of any proposed structure and the site, and

site or layout plans shall indicate the distances of any such structure from the boundaries of

the site. ...”

73. Why exactly are the application documents in breach of the foregoing? Generally this is not

clear at first sight and certainly the applicants have left the reader a great deal of homework if not

guesswork. Pleadings are meant to set out a chain of logic whereby particular facts and particular

contentions of law lead to particular legal conclusions resulting in relief. The applicants have largely

abandoned this task by making general complaints about the documents and citing the regulations

without pleading or demonstrating that the wordings of the various provisions of the regulations can

bear the weight sought to be placed on them.

74. Secondly, even if the point had been properly pleaded, the applicants bear the onus to show

that there has in fact been non-compliance, which unfortunately they have not discharged. As the

notice party submits, “The level of detail which the Applicants submit is required goes beyond the

scope of the relevant provisions of the Regulations”.

75. The applicants’ main point was a lack of specification of the number of structures – but in

fact there is much detail on this in the application documentation. For example the number of

structures including inverters/panels is specified in the planning report at p. 10 (of 52). Figure FT-

2P-25-6854 (Tr 604-685) sets out further detail on the module array and racking system. The site

layout plans show the extent of the structures. Dimensions are shown in the application

documentation. There is no obligation to include this level of detail in the newspaper or site notice

and indeed it would be obviously unworkable to do so.

76. Finally, I deal with discretion later in this judgment and would refuse relief under this heading

on a discretionary basis if counterfactually there was a properly pleaded and demonstrated breach.

EU law issues

77. While core ground 1 is pleaded under the domestic heading it is really a mix of domestic and

EU issues and can be taken together with core ground 4.

Core grounds 1 and 4 – lack of EIA

78. Core ground 1 is:

“1. The Respondent erred in law that whilst initially having determined that an

Environmental Impact Assessment was required on the basis of the design and extent of the

roadway servicing the development and on the basis of the plans for the said roads that

were submitted with the application and the nature of the proposed roads which comprised

ground formation, a terram layer, a geogrid layer, 200mm of hard core compacted stone

and 75mm of stone or crushed stone cambered to allow runoff and/or tarmac and where a

Notice under Section 132 of the Planning and Development Act 2000 was issued directing

than an Environmental Impact Assessment Report be submitted which Notice was based on

two separate technical reports and where, without any or any appropriate basis or without

any or any appropriate evidence to deal with the original finding, the Respondent decided to

proceed to determine the application without the submission of an Environmental Impact

Assessment Report. The Respondent, without carrying out an Environmental Impact

Assessment, had no or no basis on which basis on which to make the said decision, had no

jurisdiction to disapply the Notice issued under Section 132 of the Planning and Development

Act, erred in law in its determination that such an Environmental Impact Assessment Report

was not required on the basis that it should not proceed with the issue of a Notice under

Section 132. The Respondent made the determination without any or any notice to the

Applicants or members of the public in respect of the said determination and only after the

determination notified the said public and failed to have any regard to the submissions made,

and accordingly the decision is contrary to fair procedures, was made without jurisdiction,

without any or any Order of the Board withdrawing the Section 132 Notice, without any or

any consideration of third party submissions including those of the Applicants, in breach of

the principles of audi alteram partum, in breach of fair procedures, and in breach of the right

of public participation under the Planning and Development Act and under European

Community Law, and in particular Council Directive 2011/92EU, and amounts to an error of

law on the face of the record and renders the decision invalid and void.”

79. Core ground 4 is:

“4. The Respondent erred in law in failing to require a mandatory Environmental Impact

Assessment having regard to Class 10(dd) of Schedule 5, Part 2 of the Planning and

Development Regulations 2001 (as amended) which provides that private roads which would

exceed 2000m in length require a mandatory Environmental Impact Assessment and where

application reference no. 318433/23 is a specified development having circa 5.3km of roads

comprised of drainage channels, geogrid layers, a subbase, 200mm compacted stone and

75mm stone/tarmac of a width of 3.5m to 4.5m in width, has been classified by the

Respondent as a road in the first instance. The Respondent served a Notice requiring the

submission of an Environmental Impact Assessment Report with the Notice issued pursuant

to Section 132 of the Planning and Development Act 2000, and in failing to require the

submission of an Environmental Impact Assessment Report and failing to carry out an

Environmental Impact Assessment the Respondent acted contrary to Council Directive

2011/92EU, in breach of its obligations under European Community law, acted ultra vires

and without jurisdiction and renders the decision under 318433-24 invalid and void.”

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

“Applicants’ Position:

Core Ground No. 1

38. Core Ground No. 1 is concerned with the failure of the Respondent Commission to

carry out an Environmental Impact Assessment in respect of a development that exceeds

the thresholds provided for in Council Directive 2011/92EU as transposed into Irish law by

virtue of Class 10(dd) of Schedule 5 of Part 2 of the Planning and Development Regulations,

2001. The said ground is also relied upon in Core Ground No. 4 and the substance of these

grounds identify, in broad terms, 2 specific issues as follows:

(i) That the Respondent erred in law in determining an application where part of the

development exceeded the threshold provided for in respect of which a mandatory

Environmental Impact Assessment is required and acted without any or any appropriate

jurisdiction in determining the application without requiring the submission of an

Environmental Impact Assessment Report and without carrying out an Environmental Impact

Assessment.

(ii) That the Respondent erred in law in making a determination that an Environmental

Impact Assessment was required, served a Notice under Section 132 of the Planning and

Development Act, 2000, directing that an Environmental Impact Assessment Report be

submitted and having made that determination which is based on the plans and particulars

lodged with the application, which is the only basis upon which any such determination can

be made, the Respondent was obliged to require the terms of that Notice be complied with.

Commission’s Position:

39. In essence, these grounds allege:

- That part of the Proposed Development – namely the access tracks – comprise a

‘road’ project for the purposes of Class 10(dd) of Schedule 5, Part 2 of the PDRs – namely a

‘private road…which would exceed 2000 metres in length’. The Applicants assert that same

required mandatory EIA (Core Ground 4).

- That the Commission erred in circumstances where it issued a s.132 Notice, dated

31 July 2024, requiring the submission of an EIAR on the basis that it initially considered the

said access tracks comprised such a road project for the purposes of EIA, but subsequently

decided, upon clarifications from the Developer as to the nature of the access tracks, dated

27 August 2024, that an EIAR was not necessary as same were not in fact such a road

project (Core Ground 1).

40. As to Core Ground 4, the access tracks in this case do not comprise a category of

EIA road project – they are not a ‘private road which would exceed 2000 metres in length’

(Class 10(dd) of Schedule 5, Part 2 of the PDRs). Having regard to the nature/make-up of

the access tracks (see, inter alia, the Developer’s submission to the Commission in response

to the s.132 Notice and Drawing IRL-EPD-ATS) and the decision in Cummins v An Coimisiún

Pleanála [2025] IEHC 521 (which concerned consideration of similar access tracks), the

Applicants’ complaints are without merit. While the Applicants have referred to the Cummins

decision, the submissions have not identified any cogent basis to distinguish it and its

reliance on the Forestry Regulations is misconceived.

41. If the Commission is correct and the access tracks are not a category of ‘road’ project

for the purposes of Class 10(dd) of Schedule 5, Part 2 of the PDRs, then the complaints

regarding s.132 (Core Ground 1) should also fail as they are premised on what would be an

incorrect claim that an EIAR and EIA were required. In this respect, if no EIAR or EIA was

required in respect of the Proposed Development, then the alleged failures arising from the

s.132 Notice process cannot credibly be maintained as a basis for quashing the Commission’s

Decision.

42. As to the substance of Core Ground 1, same is predicated:

(i) On the false premise that the access tracks comprise an EIA road project – they do

not.

(ii) On an incorrect and unworkable interpretation of s.132 of the PDA – the Applicants’

interpretation of the statutory framework is such that the issuing of a s.132 Notice operates

as a procedural straightjacket, confining the Commission to a specific course of action

regardless of whether same is subsequently considered not to be legally correct or necessary

in light of the response provided

43. The Commission’s approach should not be that contentious, with s.132 expressly

allowing the Commission to determine an appeal even if the notice is not responded to (here,

it was and the Commission accepted the response) – same does not preclude such a course,

but expressly envisages same. The approach of the Commission in this case was perfectly

reasonable – having obtained clarity on the matter, it decided not to seek an EIAR as one

was not required. Contrary to what the Applicants contend in Submissions (although they

plead no ground relevant to same), there was nothing “disturbing” about the procedures

adopted, nor were the Applicants prejudiced in any way by same – in fact, they were

provided with an opportunity to make further submissions on this issue following the

Developer’s response. The fact that their legally incorrect submission on this issue was not

accepted is not a basis for relief or for grounding a complaint of unfairness.

44. Even if there was an error in the procedures adopted by the Commission in this case,

noting the case law referred to herein, same was trivial/minor and of no substance, and does

not warrant the quashing of the Commission’s Decision – such an approach would be entirely

disproportionate in the circumstances.

Lightsource’s Position

Core Ground 1

45. In respect of Core Ground 1, the Commission’s jurisdiction under section 132 of the

2000 Act is clear. Pursuant to section 133, where a section 132 notice has been issued, the

Commission may ‘at any time after the expiration of the period specified in the notice’,

having considered ‘any submissions or observations or document, particulars or other

information submitted by the person on whom the notice has been served’, determine or

dismiss the appeal. There is no dispute that the Section 132 Notice was issued on 31 July

2024, and the response to the Section 132 Notice received by the Commission was circulated

to the other parties to the Appeal (including the Applicants) on 17 September 2024, pursuant

to the provisions of section 131. In all the circumstances, the Commission was entitled to

determine or dismiss the Appeal. In this case, the Commission acted within jurisdiction and

lawfully determined the Appeal.

46. There is no prohibition on the Commission proceeding to determine the Appeal on

the basis that no EIAR was required, having earlier sought the submission of an EIAR by

notice issued under section 132, nor has the Applicant advanced any provision of the 2000

Act or the Planning and Development Regulations 2001, as amended, to support such a

case. Rather, it is clear from the correct interpretation of sections 131, 132 and 133 of the

2000, that such a limitation is not placed on the Commission: see Heather Hill Management

Company CLG v. An Bord Pleanála [2022] IESC 43 (at §106), and Cummins v An Coimisiún

Pleanála [2025] IEHC 521 (at §48).

Core Ground 4

47. In respect of Core Ground 4, as is apparent from the public notices, the planning

application did not seek, and was not granted, permission for a private road. Rather, the

Applicants seek to rely upon an error made in the preparation of the site layout plan

submitted with the planning application, which contained an incorrect reference to ‘access

roads’. However, the error was acknowledged both before the Council (in the RFI Response

submitted on 19 September 2023 and in the submission to the Commission on the Section

132 Notice. This issue was considered by the Inspector in his Report at sections 5.5.3 to

5.5.7.

48. Lightsource’s response to both the Councils’ RFI and the Commission’s Section 132

Notice clarified that the surface finish of the tracks would be ‘75 mm stone or crushed stone’,

as also identified in the relevant cross-sections and photographs. Accordingly, to the extent

that any issue arises, there is no inconsistency between the decision of the Commission and

the judgment of the High Court in Cummins, and this ground of challenge ought to be

dismissed on that basis.

49. Separately, the Applicants’ attempt in their Written Submissions to distinguish this

case from Cummins on the basis of the Forestry Regulations 2017 [S.I. No. 191 of 2017]

(the ‘Forestry Regulations’) is wholly misconceived. However, the issue does not arise for

consideration by the Court in circumstances where there is no pleaded reference to the

Forestry Regulations. Strictly without prejudice, in advancing this unpleaded ground, the

Applicants are attempting to argue that Cummins was decided per incuriam by failing to

consider the Forestry Regulations. However, that submission is demonstrably incorrect. The

Applicants rely on Regulation 13(2) of the Forestry Regulations and, in particular, place

reliance on the requirement that ‘forest road which would involve a length of 2000 meters

or more’ is subject to EIA. However, it is clear that Part 7 of the Forestry Regulations relates

to ‘development’ which is defined to mean ‘afforestation or forest road works’ and the

obligation for the Minister to carry out an EIA arises only in respect of an application for a

licence, including a licence in respect of ‘forest road works’.

81. Section 132 of the 2000 Act provides (emphasis added):

“Power of Board to require submission of documents, etc.

132.—(1) Where the Board is of opinion that any document, particulars or other information

may be necessary for the purpose of enabling it to determine an appeal or referral, the

Board may, in its absolute discretion, serve on any party, or on any person who has made

submissions or observations to the Board in relation to the appeal or referral, as appropriate,

other than the applicant for permission in the case of an LRD appeal, a notice under this

section—

(a) requiring that person, within a period specified in the notice (being a period of not less

than 2 weeks beginning on the date of service of the notice) to submit to the Board such

document, particulars or other information as is specified in the notice, and

(b) stating that, in default of compliance with the requirements of the notice, the Board will,

after the expiration of the period so specified and without further notice to the person,

pursuant to section 133, dismiss or otherwise determine the appeal or referral.

(2) Nothing in this section shall be construed as affecting any other power conferred on the

Board under this Act to require the submission of further or additional information or

documents.”

82. Section 133 provides (emphasis added):

“Powers of Board where notice served under section 131 or 132.

133.—Where a notice has been served under section 131 or 132, the Board, at any time

after the expiration of the period specified in the notice, may, having considered any

submissions or observations or document, particulars or other information

submitted by the person on whom the notice has been served, without further notice

to that person determine or, in the case of a notice served under section 132, dismiss

the appeal or referral.”

83. The applicants’ point here requires a little unpacking. The applicants’ issues as ultimately

advanced at the hearing and as summarised in the statement of case can be broken down as follows:

(i) A challenge to the change of mind – “whilst initially having determined that an

Environmental Impact Assessment was required … and where a Notice under Section

132 of the Planning and Development Act 2000 was issued … and where, without

any or any appropriate basis or without any or any appropriate evidence to deal with

the original finding, the Respondent decided to proceed to determine the application

without the submission of an Environmental Impact Assessment Report … The

Respondent, without carrying out an Environmental Impact Assessment, … erred in

law …”

(ii) Lack of notice of the change of mind – “The Respondent made the determination

without any or any notice to the Applicants or members of the public in respect of

the said determination and only after the determination notified the said public and

failed to have any regard to the submissions made, and accordingly the decision is

contrary to fair procedures … and in breach of the right of public participation under

the Planning and Development Act and under European Community Law, and in

particular Council Directive 2011/92EU”.

(iii) Lack of commission order – The change of mind “was made … without any or any

Order of the Board withdrawing the Section 132 Notice”. No oral submission was

made on this.

(iv) Substantive error regarding lack of EIA of tracks/roads – “The Respondent

erred in law in failing to require a mandatory Environmental Impact Assessment

having regard to Class 10(dd) of Schedule 5, Part 2 of the Planning and Development

Regulations 2001 (as amended) ...”

84. Unfortunately these points are without substance:

(i) It is inherent in the public participation process that the shape of a project and/or

the proposed decision can change – that is the whole point of consultation and

participation. Article 8 of the Aarhus Convention says this expressly (emphasis

added): “Each Party shall strive to promote effective public participation at an

appropriate stage, and while options are still open, during the preparation by

public authorities of executive regulations and other generally applicable legally

binding rules that may have a significant effect on the environment”. The public

participation directive (Directive 2003/35/EC) uses similar language (arts. 2(2)(b)

and 3(4) amending the EIA directive 85/337). (See also Clifford v. An Bord Pleanala

(No. 2) [2021] IEHC 642 (Unreported, High Court, 15 October 2021) at para. 12

onwards, Coyne v. An Bord Pleanála [2023] IEHC 412 (Unreported, High Court,

Holland J., 21 July 2023), para. 333 onwards and Eglington Residents Association v.

An Bord Pleanála [2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025)

at para. 63). As a general principle, there is nothing in law to prevent a decision-

taker from changing her mind prior to a final decision. Indeed if a decision-taker

could not do so, it would nullify many provisions on consultation and public

participation in many contexts. This case illustrates that – the change of mind was

as a result of submissions made. The fact that the submissions were from the

developer rather than the applicants does not give the applicants a cause of action.

I don’t think it’s too harsh to suggest that if the applicants had succeeded in changing

the commission’s mind from an initial hypothetical decision not to invoke EIA they

would not be here complaining that change of mind was unlawful – rather they would

be celebrating a success of the consultation process. In the planning context

specifically, there is nothing to impose such a restriction that merely because the

commission issues a notice under s. 132 it is precluded from forming a final view to

the contrary. Section 133 expressly requires consideration of submissions put

forward by the person on whom a notice was served – that occurred and quite

properly the consideration was not pro forma but resulted in a substantive view that

EIA was not necessary. A decision-taker is not obliged to make an incorrect or even

unlawful decision merely because she did not realise the problem earlier. As the

commission submits, “the PDA should be given a workable interpretation”, citing

inter alia Waltham Abbey/Pembroke Road Association v. An Bord Pleanála [2022]

IESC 30, [2022] 2 I.L.R.M. 417 (§43 per Hogan J.); Heather Hill Management

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

I.L.R.M. 313 (§106 et seq. per Murray J.); Save Cork City Community Association

CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 (inter alia, §47 per

Woulfe J.). The argument that the developer should have judicially reviewed the

notice is misconceived – mid-process judicial review is presumptively inappropriate

but more fundamentally it is unnecessary – the decision-taker can generally rectify

or mitigate the effects of any sub-optimal step before the process is complete. Here

the effect of the notice was mitigated by the grant of permission notwithstanding

that the notice was not complied with.

(ii) The fair procedures issue is a non-starter because all parties including the applicants

were given the opportunity to comment on the developer’s submission that urged a

change of mind, and the views expressed including by the applicants were then

considered. It was not a breach of fair procedures or of EU law for the commission

to change its mind on the necessity for EIA, because anyone engaging in public

participation was in any event entitled to make any points they wanted to. Indeed

EU public participation rights are not free-standing – they depend on EU law being

engaged in the first place. But even leaving that aside, anyone engaging in public

participation was entitled to make whatever points they wanted about the necessity

or otherwise for EIA. As already noted, this point doesn’t even get off the ground

on the facts because the applicants got notice of the developer’s request that the s.

132 notice not be insisted on, and had the opportunity to comment on that. Insofar

as there was an allegation in oral submissions that certain submissions were not

considered (specifically from Mr Joe Noonan, solicitor, of 10 October 2024 regarding

the alleged impermissibility of withdrawing a s. 132 notice (written on the applicants’

instructions rather than being some sort of formal legal opinion), and by Mr Buck of

the applicants’ planning consultants, also on 10 October 2024), the statement of

grounds is generic in this regard and such a complaint is not specifically pleaded but

in any event the onus of proof of non-consideration has not been discharged. Insofar

as there was a complaint in submissions that internal memoranda should have been

available on the website, that is not a pleaded complaint. Insofar as there is a

reasons complaint, the reasons are clear. Narrative analysis is not required. The

developer’s submissions were clearly accepted. In any event this is a legal issue

(EIA not being required for solar farms or for internal tracks falling short of roads),

so failure to give reasons for a correct conclusion on a point of law does not render

an otherwise lawful position unlawful. Reasons are tied in to the exercise of

evaluative judgement, not a basis for undermining a decision-taker in following what

is legally required. Following the law is a situation where there is no choice involved.

It is not to be equated with a discretionary or evaluative choice which involves a

reasoned line of argument and thought.

(iii) There is no legal obligation for there to be any particular formality about the form of

a decision by the commission. That is a matter for them. I am not hugely

enthusiastic about the over-formal term “order” in any event which feels a bit of a

throwback to the bygone days when the board was chaired by a judge, but it’s up

to the commission rather than an applicant to decide how to record its decisions. In

any event, it is not technically correct that the commission decided to “withdraw”

the notice. The statutory architecture does not have the effect that a permission

must be refused in the event of non-compliance – it creates a power rather than an

obligation to refuse. The commission can lawfully decide not to refuse – as they did

here – if they decide that the grant of permission would be lawful notwithstanding

that the information envisaged by the s. 132 notice was not furnished. No

“withdrawal” of the notice is necessary and none took place here – albeit that the

decision is in substance a decision to no longer place any reliance on the notice. But

there isn’t anything unlawful about that.

(iv) The applicants have not discharged the onus of proof to show that these are roads

within the meaning of the directive. The applicants in effect say that the finish

proposed was of road quality, but such a conclusion wouldn’t accurately reflect the

application documentation. The developer had already clarified to the planning

authority that tarmac finish was not envisaged – see letter of 27 August 2024 (the

photos attached to that letter may look a bit like tarmac but the applicants haven’t

proved that and the notice party confirms that they are in fact stone). The actual

permission granted was on the basis that as noted at para. 5.5.5 of the inspector’s

report, the finish will be stone or crushed stone, which makes these primitive tracks

that are not meaningfully distinguishable from Cummins v. An Coimisiún Pleanála

[2025] IEHC 521 (Unreported, High Court, 3 October 2025). If the roads were fully

finished in road-like manner to withstand ongoing vehicular movement rather than

being for intermittent access only then the fact that they were internal would not

exclude them from being roads. The applicants ask if the Ferrari circuit at Maranello

is a road – but the notice party helpfully draws attention to the fact that such

constructions are dealt with separately by the directive (annex II, point 11(a) which

suggests, perhaps favourably to the opposing parties here by analogy, that they

would not in fact qualify as roads in themselves despite being permanent

constructions – but there is no need to get into further obiter discussion on that

specific hypothetical for present purposes). By contrast as emphasised in Cummins,

to categorise internal access tracks as roads would transmogrify many developments

that fall outside the directive into EIA projects. Caselaw has repeatedly emphasised

that solar farms are not subject to EIA. Insofar as a forestry-law related point was

made in submissions, the Forestry Regulations are not pleaded. As in Cummins, the

fact that the tracks use modern methods of construction is to be expected and does

not have the implication that they are roads.

85. So this point unfortunately must fail.

Discretion

86. Even assuming counterfactually that there was a breach in relation to the domestic law

issues, discretion should be exercised against relief on a number of independent but mutually

reinforcing grounds:

(i) In the full context of the application and its detailed consideration any breach was

de minimis.

(ii) As regards lack of particulars, the applicants participated in the process and did not

claim any prejudice from lack of particulars of the project. Indeed they responded

expressly to the particulars of the scale of the project.

(iii) Nobody else made such a complaint to the commission either or indicated any

difficulty in understanding the project.

(iv) The application documents contain a great degree of detail in any event so any

hypothetical non-compliance would have been minor in the context.

(v) No prejudice to the applicants has been demonstrated evidentially.

(vi) Even if some technical infirmity existed, the public interest in renewable energy

outweighs the public interest in strict technical compliance that did not give rise to

any identified and established harm.

87. Discretion is a general concept and its application certainly includes infirmities in planning

application documents. Even if there was a breach of the regulations, 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.).

88. Broadly speaking I would endorse the notice party’s submission here:

“91. It is Lightsource’s position that all grounds sought by the Applicants should be

refused, and as such, that there is no basis upon which the Court should be called upon to

consider the exercise of its undoubted discretion to refuse to grant relief, particularly,

certiorari. However, in the event that the High Court concludes that the Applicants have

made out one or more of its grounds of challenge (which is not accepted for the reasons set

out above), then it is Lightsource’s position that this court should exercise its discretion to

refuse the reliefs sought.

92. As outlined at the outset, the Proposed Development comprises a renewable energy

project which, when developed, will make a significant contribution towards achieving

national climate action targets, including those set out in the Programme for Government

2025 (which commits to achieving a 51% reduction in greenhouse gas emissions from 2018

to 2030 and net-zero emissions no later than 2050) and the Climate Action Plan 2025 (which

includes a legally binding reduction in sectoral emissions by 75% by 2030).

93. In addition to the Proposed Development’s significant contribution to the

achievement of the national climate targets, it offers capacity to address issues identified in

relation to security of electricity supply, as outlined in the Planning Statement submitted on

the planning application (including at page 51).

94. In such circumstances, … the public interest in the production of renewable energy

arises, inter alia, as a direct consequence of Article 3(1) of Directive 2018/2001/EU, which

introduces a binding requirement on the EU to ensure that at least 42.5% of all energy

produced from renewable sources by 2030. It is well-established that Ireland is obliged, by

reason of the duty of sincere cooperation enshrined in the TFEU, to interpret its legislation

in a manner that conforms with the requirements of EU law: Heather Hill Management

Company CLG v. An Bord Pleanála [2022] IESC 43, subject to the limitation that a Court is

not obliged to interpret legislation contra legem and to do violence to the words of the text

(§ 204).

95. Whilst it is not submitted that the principle of conforming interpretation removes the

Court’s discretion in deciding whether to grant relief by way of judicial review, it is submitted

that the duty on the State to comply with Directive 2018/2001 is such that the impact of

any order which minimises the State’s production of renewable energy is unquestionably a

weighty factor to be considered in the exercise of the Court’s discretion in deciding whether

to grant relief, particularly certiorari.”

89. As regards EU law issues, the scope for discretion in the event of there counterfactually

having been a breach is admittedly more limited (see e.g. the judgment of 25 June 2020, A and

Others v Gewestelijke stedenbouwkundige ambtenaar van het departement Ruimte Vlaanderen,

afdeling Oost-Vlaanderen, C-24/19, ECLI:EU:C:2020:503 (Grand Chamber)), but I don’t need to

consider that further given that discretion was effectively being advanced as an answer to the

domestic complaints rather than the European complaints.

Summary

90. In outline summary, without taking from the more specific terms of this judgment:

(i) It is settled law that an applicant must plead sufficient particulars to establish

how a breach arises.

(ii) Applying such law to the facts here, there is generally insufficient pleading of how

any breach arises in relation to the development plan or the application

documentation.

(iii) It is settled law that the onus of proof lies on an applicant.

(iv) Applying such law to the facts here, the applicants have failed to show how a breach

arises in relation to consideration of the development plan, and have failed to show

how precisely the application documentation was insufficient by reference to the

specifics of the regulations. They have also failed to demonstrate evidentially that

the access tracks were roads within the EIA directive.

(v) It is settled law that consultation and public participation should occur while

options are still open, and it follows from that that an interim decision that EIA is

required can lawfully be revisited following submissions.

(vi) Applying such law to the facts here, there was nothing unlawful about the

commission having received and acted on contrary submissions on foot of its initial

decision that EIA was engaged.

(vii) It is settled law that relief by way of judicial review is discretionary.

(viii) Applying such law to the facts here, multiple factors favour refusal of relief even if

counterfactually there was a technical breach of domestic law here.

91. By way of a ground-by-ground summary of the disposition of the matter:

(i) core ground 1 – dismissed in this judgment;

(ii) core ground 2 – moved formally without oral submissions, dismissed in this

judgment;

(iii) core ground 3 – dismissed in this judgment;

(iv) core ground 4 – dismissed in this judgment;

(v) core ground 5 – refused at leave stage; and

(vi) core ground 6 – withdrawn by applicants.

Order

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

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by written legal submission before the next

mention date, the foregoing order be perfected forthwith thereafter on the basis of

no order as to costs including reserved costs;

(iii) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in the judgment may be addressed pursuant to O. 103 r.

40(4) RSC; and

(iv) the matter be listed on Monday 23 February 2026 to confirm the foregoing.