High Court allows declaratory relief for delayed document publication but dismisses challenge to planning decision validity.

[2026] IEHC 65

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001283]

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

ACT 2000 AND IN THE MATTER OF PART 9 OF THE PLANNING AND DEVELOPMENT ACT

2024

BETWEEN

SHEILA HOCTOR, PATRICK CARNEY, JOHN DOOLEY, MICHAEL MAHON AND REGINA

HOCTOR

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

CARRIG RENEWABLE ENERGY LIMITED

NOTICE PARTY

Date of impugned decision: 30 June 2025

Date proceedings commenced: 25 August 2025

Date of main hearing: 20 January 2026

Date draft judgment circulated: 27 January 2026

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

1. The applicants launch a locally record-breaking 133 grounds of challenge to this renewable

energy project in a case where the spirit of concision proved elusive all round – the statement of

grounds extends to 17,619 words, the applicants’ submissions weigh in at 19,577 words (almost

double the default provision in PD HC126), and the opposing parties followed suit at 19,227 and

17,246 words respectively in submissions and 20,100 and 20,470 words respectively in statements

of opposition (although no doubt the latter parties would point out the inherently reactive nature of

their contributions). The statement of case provides a helpful summary boiling all of this down to a

pocket-sized 20,227 words. The applicants emerge from this scholarly mudslide clutching one

nugget of gold, namely the fact that the commission wrongly delayed in publishing a single document

on its website, which should have been uploaded within three days after the decision was made. It

is agreed that this omission warrants declaratory relief. That leaves the question of whether

anything else in the case warrants any other relief.

Geographical context

2. The proposed development (https://www.pleanala.ie/en-ie/case/318689) consists of seven

wind turbines and associated hardstand areas, one permanent 38 kV electrical substation which will

be constructed in the townland of Faddan Beg, the proposed electrical substation consists of a single-

storey control building with welfare facilities, all associated electrical plant and equipment, battery

energy storage system, security fencing, all associated underground cabling, wastewater holding

tank and all ancillary works and equipment, all works (within Co. Tipperary) associated with the

connection of the proposed wind farm to the national electricity grid, via the provision of

underground electrical cabling (38 kV) to the existing Dallow 110 kV substation in the townland of

Clondallow, Co. Offaly, provision of ten joint bays, communication chambers and earth sheath links

along the underground electrical cabling route, reinstatement of the road or track surface above the

proposed cabling trench along existing roads and tracks, all associated underground electrical and

communications cabling connecting the turbines to the proposed wind farm substation, one

meteorological mast with a height of 107 m above ground and associated foundation and hard-

standing area, upgrade of existing tracks and roads and the provision of new site access roads, all

works associated with the provision of a new permanent site entrance off the L5040 local road,

provision of five new access and egress points along the L5041 local road in the townlands of

Cloncorig, Faddan More and Coolderry, provision of four peat repository areas and three spoil

repository areas, two temporary construction compounds with temporary site offices and staff

facilities, accommodation works along the public road network along the N52 national secondary

road in the townland of Ballyloughnane to facilitate the delivery of turbine components and other

abnormal sized loads, site drainage, tree felling, operational stage site signage, and all associated

site development works, ancillary works and apparatus.

3. The proposed wind farm is located in the townlands of Lissernane, Sharragh, Faddan More,

Coolderry, Cloncorig, Arragh More and Clohaskin in Co. Tipperary, and the grid connection is located

in the townlands of Faddan More, Ballaghgar, Doughkill, Faddan Beg, Caherhoereigh, Ballykinash,

Tinlough, Cornhill, Tinnakilly, Killeen, Ballyloughnane and Croghan in Co. Tipperary and the

townlands of Townparks, Dovegrove, Woodfield or Tullynisk and Clondallow in Co. Offaly. The

majority of the proposed development including the seven turbines and associated infrastructure,

on-site substation and 10.4 km of the underground grid connection cabling route is located in Co.

Tipperary with the remaining 3.3 km of the grid connection cabling route located in Co. Offaly. The

grid connection includes for underground 38 kV cabling from the proposed onsite 38 kV substation

in the townland of Faddan More, to the existing Dallow 110 kV substation in the townland of

Clondallow, Co. Offaly. The c. 13.7 km underground cabling route to Dallow is located primarily

within the public road corridor, of which 10.4 km is located in Co. Tipperary and 3.3 km is located

within Co. Offaly.

4. Planning permission has been secured by the notice party for the section of the grid

connection in Co. Offaly (OCC Reg. Ref. 23/60140), same was granted by Offaly County Council on

or about 2 May 2024. That grant of permission was not appealed to the commission and is not

challenged in these proceedings.

Facts

5. The notice party submitted an application dated 22 September 2023 to Tipperary County

Council (the council) in the first instance.

6. The planning application was accompanied by a range of supporting documentation,

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

7. The five named applicants made third-party submissions on the planning application made

to the council, with the issues raised in those submissions summarised in the council’s planner’s

report dated 16 November 2023 (at section 6, internal pp. 14, 17, 18, 20; the issues raised in the

third-party submissions to the council are also summarised in the report of the commission’s

inspector, dated 22 April 2025 on the subject appeal, at section 5.2).

8. A number of prescribed bodies (namely Irish Aviation Authority (IAA), Transport

Infrastructure Ireland (TII), Uisce Éireann, and the Department of Housing, Local Government and

Heritage (DAU)) made submissions on the planning application (these are summarised at section 5

of the council’s planner’s report dated 16 November 2023, and also in the report of the commission’s

inspector, dated 22 April 2025 on the subject appeal, at section 5.1).

9. The council’s planner’s report dated 16 November 2023 (at section 12) recommended refusal

of permission for three reasons that were then replicated/adopted in the council’s decision to refuse

permission.

10. The application was the subject-matter of a decision by the council to refuse planning

permission dated the 16 of November 2023. The planning authority concluded that the proposed

development was located on lands identified as an area unsuitable for new wind energy development

within the Tipperary renewable energy strategy and accordingly, would contravene materially the

policies and objectives of the Tipperary County Development Plan 2022–2028. At reason 2, the

planning authority held that the proposed development would result in a loss of habitat, disturbance

and displacement for annex 1 bird species, would adversely affect bird species or their habitat as

specified in art. 4 of Directive 2009/147/EC of the European Parliament and of the Council of 30

November 2009 on the conservation of wild birds (the birds directive), and accordingly there was no

jurisdiction to grant, and the planning authority were required to refuse the application for planning

permission. At reason 3, the planning authority held that the proposed development would have a

significant detrimental impact on the capacity and operation of the public road system and

accordingly would materially contravene the provisions of s. 12-4 of the Tipperary County

Development Plan 2022-2028.

11. The notice party appealed this refusal decision to the commission, by way of first-party

appeal on 13 December 2023 (Commission reference: ABP-318689-23). The notice party’s first-

party appeal was accompanied by a number of supporting documents including a first-party appeal

report by MKO, which set out the notice party’s grounds of appeal in relation to each of the council’s

reasons for refusing permission. The grounds of appeal raised by the notice party are summarised

at section 8.1 of the inspector’s report dated 22 April 2025.

12. The commission appointed a senior planning inspector to prepare a report on the subject

appeal, and this was done. The 309-page inspector’s report, dated 22 April 2025, records on p. 2

that the inspector carried out a site inspection on 25 September 2024. The inspector recommended

(at section 27.0 of the inspector’s report) that permission should be granted for the proposed wind

farm development for stated reasons and consideration (as section 28.0 of the inspector’s report)

and subject to recommended conditions (at section 28.5).

13. As recorded on p. 1 the commission’s direction dated 18 June 2025 (CD-019972-25), the

submissions on file and the inspector’s report were considered at meeting held on 17 June 2025,

and the commission decided to grant permission generally in accordance with the inspector’s

recommendation, and for stated reasons and considerations.

14. The commission’s decision to grant permission for the proposed development, subject to 25

conditions and for stated reasons and considerations, is embodied in the commission’s order dated

30 June 2025 (ABP-318689-23).

Procedural history

15. The applicants filed their statement of grounds and verifying affidavit on 25 August 2025.

16. The application for leave to apply for judicial review was formally heard on the 15 September

2025, and the order granting leave was perfected on 17 September 2025.

17. The matter was listed for mention on 29 September 2025, and an expedite date was fixed

for 20 January 2026.

18. The respondent filed their statement of opposition and verifying affidavit on 18 November

2025.

19. The notice party filed their statement of opposition and verifying affidavit on 24 November

2025.

20. Revised directions were agreed and emailed to the court on 11 December 2025 to allow for

the late delivery of affidavits while preserving the hearing date.

21. The matter was listed for mention on 15 December 2025, to deal with further delays with

the revised directions. I granted the notice party liberty to reply on a without prejudice basis.

22. The applicants served an affidavit of Martin Lavelle on 15 December 2025.

23. The applicants served their written legal submissions on 17 December 2025.

24. The matter was listed for callover on 12 January 2026. I granted leave for the commission

to file an amended statement of opposition.

25. The commission served its written legal submissions on 12 January 2026.

26. The notice party served, on a without prejudice basis, the replying affidavit of Michael

Watson on 13 January 2026.

27. The commission filed an amended statement of opposition and verifying affidavit on 16

January 2026, correcting three typographical errors in its original statement of opposition.

28. The notice party served its written legal submissions on 16 January 2026.

29. The statement of case was uploaded to ShareFile on 16 January 2026.

30. The matter was heard on 20 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.

31. On 27 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.

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

in writing within 7 days or by the next mention date whichever is sooner, 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.

33. 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).

34. 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.

35. The mention date to review matters following the foregoing was to be 9 February 2026.

Relief sought

36. The reliefs sought are as follows:

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

permission for a development consisting of 7 No. Wind Turbines and associated hard stand

areas, a 38 kv Electrical Substation grid connection works connecting the proposed Windfarm

to existing 110 kV Substation at Clondallow, Co. Offaly, a meterlogical [sic] mast, 4 peat

repository areas and 3 No. spoil repository areas, construction compounds as well as

accommodation works along the public road network in the townlands of Croghan, Clohaskin,

Caherhoereigh, Ballykinash, Tinnakilly, Arragh More, Bally Lough Naan, Fadden Beg,

Coolderry, Tinlough, Sharragh, Doughkill, Ballaghgar, Fadden More, Cloncorig, Killeen and

Cornhill, Co. Tipperary which decision Reference No. 318689/23 was made by Order dated

the 30th day of June 2025.

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

Respondents and/or persons similarly situated as the Court considers appropriate.

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

and/or Section 3 and 4 of the Environment (Miscellaneous Provisions) Act, 2001 and/or

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

4. A Stay on the implementation of the permission register reference ABP 318689/23

pending the determination of the above entitled proceedings;

5. Interim and/or interlocutory relief.

6. Further and other relief.

7. The costs of these proceedings.”

Grounds of challenge

37. The core grounds of challenge are as follows:

“Domestic Law Grounds

1. The Respondent erred in law and acted contrary to the mandatory requirements of

the Planning and Development Regulations and in particular contrary to Articles 17, 18, 19,

22(2)(b)(c)(d)(g), 23(1)(a)(b)(c)(d)(f) of the Planning and Development Regulations 2001

(as amended), which are mandatory and where a failure to comply with the said

requirements renders the Application invalid and such a determination is ultra vires the

Respondent, contrary to law, is invalid and void.

2. The Respondent erred in law in the manner and to the extent that it addressed the

issues raised in respect of interference with property rights and interest in circumstances

where it failed to address submissions as a matter of jurisdiction in respect of validity of the

application and in respect of Material Assets under Council Directive 2011/92 where property

rights would be likely to be significantly affected with the right of turbary, rights of way and

public rights over the property being significantly affected/extinguished for an

indeterminable period and where the Respondent failed to properly address its mind to this

consideration, a relevant consideration both for the Planning and Development Act 2000 and

for Council Directive 2011/92 and determined the Application by permitting the Notice Party,

as set out in condition no. 1 to rely on a proposal where such affected rights would be

compensated and/or provide for relocation of the property interest to an alternative location

and where the Respondent wrongly relied on Section 34(13) and accordingly the Respondent

erred in law, had regard to irrelevant and inappropriate considerations, failed to have regard

to relevant considerations, acted ultra vires and without jurisdiction and accordingly the

decision of the Respondent ultra vires, made without jurisdiction, invalid and void.

3. The Respondent erred in law in granting permission for a Development which permits

a structure to be constructed on and/or over the public road, to interfere with a public right

of way/public rights and which interference with the public road, amounts to a public

nuisance and where the right enshrined in the public road to pass or repass is not limited in

terms of its vertical extent and where accordingly the decision is unreasonable, is contrary

to law, was made without any or any appropriate consideration of the nature and extent of

public road L5041 which is entitled to be maintained without limitation or interference, public

safety, did not have regard to submissions made and the decision is accordingly ultra vires

the Respondent, invalid and void.

4. The Respondent erred in law and failed to consider the nature and extent of waste

arising from the proposed development, and in particular the nature, extent and quantity of

waste materials that is required to be excavated and disposed of, and which waste is to be

disposed of on the site and referred to ‘peat and/or spoil deposition areas’, failed in respect

of the right of public participation under Article 17, 18 and 19 of the Planning and

Development Regulations 2001 and Article 3 and 6 of Council Directive 2011/92EU, gave no

appropriate consideration to the issue of waste generation and disposal which, having regard

to the quantity and nature of the material, is such as to require in and of itself an

Environmental Impact Assessment, requires a Waste Licence, and which is a specified

development for the purposes of the Environmental Protection Agency Act 1992 and

Schedule 5 of the Planning and Development Regulations 2001.

5. Conditions no. 4 and 5 are ultra vires the Respondent in respect of mitigation

measures relating to the grid connection route and where in condition 4 the mitigation

measures required in the Environmental Impact Assessment Report and in condition 5 the

mitigation measures contained in the Natura Impact Statement are required to be

implemented but where the jurisdiction to impose such conditions under Section 34(4) is

limited only to lands which are under the control of and are owned by the Applicant, and the

lands are not so owned, and where the imposition of conditions/mitigation measures over

the full extent of the route provided for the grid connection works cannot be the subject

matter of condition where mitigation measures relate to these lands as the said lands do not

within the jurisdiction conferred by Section 34(4).

6. The Respondent failed to comply with the requirements of Section 146 of the

Planning and Development Act 2000 where there is an obligation to publish documents on

the online file where the Respondent decides to do so and where all the Reports and

Documents related to the decision must be published, and where the Report of the Ecologist

upon which the Inspector relied was not published and could not have been considered by

the Applicants, and the basis of the decision of the Respondent could not be understood,

and where no reason was given, contrary to the said provision.

7. The Respondent erred in law in imposing Condition 11 relating to the noise levels

which condition is unreasonable and inconsistent with Article 40.3 and 40.5 of the

Constitution in respect of the nearest noise sensitive receptor dwelling which condition is

ultra vires the Respondent and is contrary to the requirements of Council Directive

2011/92EU in terms of its impact on human beings/human health, material assets and

cannot amount to a mitigation measure for the purposes of the Directive and accordingly

the decision is invalid and void.

8. The Respondent erred in law in granting permission for a development which

materially contravenes the Tipperary County Development Plan 2022-2028 without

addressing properly or at all the basis of the said decision in respect of which the decision is

entirely silent and the Respondent had established no basis for the decision made in that

regard.

European Law Grounds

9. The Respondent erred in law in the manner and to the extent that it relied on the

2006 Wind Energy Guidelines in circumstances where the said Wind Energy Guidelines fall

within the definition of Plans and Programmes for the purposes of Council Directive

2001/42EU and where the said Guidelines are required to be but were not subject to a

Strategic Environmental Assessment and where it was inappropriate and improper and ultra

vires the Respondent to have regard to the said guidelines in the absence of a Strategic

Environmental Impact Assessment having first being carried out.

10. The Respondent erred in law and failed to have any or any appropriate regard to

Article 5(1) of Council Directive 2011/92EU as inserted by Article 1(5) of Council Directive

2014 which requires in respect of a project for which an Environmental Impact Assessment

is required that the Developer prepare and submit an Environmental Impact Assessment

Report and contain the information which shall include at least:

‘(a) A description of the project comprising information on the site, design, size

and other relevant features of the project’.

And the documents submitted and in particular the putative/conceptual design proposed,

failed to comply with this requirement and accordingly the consequent Environmental Impact

Assessment Report based on such a design and the Environmental Impact Assessment could

not be carried out in accordance with Council Directive 2011/92EU and accordingly is

contrary to European Community Law and relied on the Wind Energy Development

Guidelines 2006 which were required to but which did not comply with the requirements of

Council Directive 2001/42EC, and rendered the decision ultra vires the Respondent invalid

and void.

11. The Respondent failed to carry out an Appropriate Assessment in accordance with

the requirements of Article 6(3) of the Habitats Directive and could not on the basis of the

information before it have made complete, precise and definitive assessments such as to

exclude adverse effects beyond reasonable scientific doubt, as is required under Directive

92/43, and accordingly the decision is ultra vires the Respondent, contrary to European

Community Law, invalid and void.

12. The decision of the Respondent is invalid and void where the application is made on

the basis of a fundamental illegality, namely in breach of Council Directive 2011/92EU where

part of a specified development was the subject matter of a separate application determined,

and where both parts of the development were determined without an integrated

assessment and cannot now be lawfully permitted in the absence of a proper and appropriate

Environmental Impact Assessment having been carried out in respect of the totality of the

development, and accordingly the decision is contrary to Council Directive 2011/92EU,

invalid and void.”

38. In the course of submissions, the applicants accepted a declaration as an answer to core

ground 6, and withdrew core ground 8.

The impugned decision

39. 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

The Commission performed its functions in relation to the making of its decision, in a manner

consistent with Section 15(1) of the Climate Action and Low Carbon Development Act 2015,

as amended by Section 17 of the Climate Action and Low Carbon Development (Amendment)

Act 2021, (consistent with Climate Action Plan 2024 and Climate Action Plan 2025 and the

relevant provisions of Ireland’s Long-term Strategy on Greenhouse Gas Emissions

Reductions 2024, the National Adaptation Framework; Planning for a Climate Resilient

Ireland 2024 and the relevant approved sectoral adaptation plans as they relate to

Biodiversity and Energy and in furtherance of the objective of mitigating greenhouse gas

emissions and adapting to the effects of climate change in the State.

In coming to its decision, the Commission had regard to;

European, National, Regional, County and other support for renewable energy development

as follows:

(a) RED III (European Renewable Energy Directive (EU/2023/2413));

(b) European Wind Power Action Plan;

(c) REPowerEU Plan 2022 and Directive EU 2018/2001, as amended May 2022

(d) European Green Deal 2020;

(e) National Planning Framework 2018-2040 (NPF);

(f) the National Development Plan 2021-2030 (NDP);

(g) Energy Security in Ireland to 2030, Energy Security Package, November 2023;

(h) National Energy Security Framework, April 2022;

(i) Policy Statement on Security of Electricity Supply, November 2021 ;

(j) Long-Term Strategy on Greenhouse Gas Emissions Reductions (April 2023);

(k) National Climate and Energy Plan 2021-2030 (NCEP);

(l) National Biodiversity Action Plan 2023-2030 (NBAP);

(m) National Landscape Strategy for Ireland 2015-2025 (NLS);

(n) Regional Spatial Economic Strategy for the Southern Region 2020-32 (RSES);

(o) National Landscape Strategy for Ireland, 2015-2025;

(p) the National Peatlands Strategy 2015-2025 (DAHG, 2015),

(q) the Wind Energy Development Guidelines, Guidelines for Planning Authorities issued by

the Department of the Environment, Heritage and Local Government (June 2006) (WEDG,

2006);

(r) Draft Wind Energy Development Guidelines 2019

(s) Tipperary County Development Plan 2022 – 2028 (the Plan);

(t) the documentation submitted with the planning application including the Environmental

Impact Assessment Report (EIAFt), Appropriate Assessment Screening and Natura Impact

Statement (NIS);

(u) the submissions made in connection with the application;

(v) the pattern of the existing and permitted development, the character of the landscape

in the area and in the wider area of the site;

(w) mitigation measures proposed for the construction and operation of the site

(x) the separation distances between the proposed development and dwellings or other

sensitive receptors;

(y) the likely consequences for the environment and the proper planning and sustainable

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

the absence of likely significant effects of the proposed development on European Sites, and

(z) the report of the Planning Inspector informed by the technical report of the Inspectorate

Ecologist.

Appropriate Assessment: Stage 1

The Commission considered the screening report for Appropriate Assessment and all other

relevant submissions and reports and carried out an Appropriate Assessment screening

exercise in relation to the potential effects of the proposed development on designated

European sites. The Commission noted that the proposed development is not directly

connected with or necessary for the management of any European Site and considered the

nature, scale, and location of the proposed development, as well as the report of the

Inspector and informed by the technical report of the Inspectorate Ecologist. The

Commission agreed with the screening exercise carried out by the Inspector, and concluded

that, having regard to the qualifying interests for which the sites were designated, and in

the absence of connections to and distance between the application site and the European

sites, including Ridge Road, SW of Rapemills Special Area of Conservation (Site Code

000919); Sharavogue Bog Special Area of Conservation (Site Code 000585); Liskeenan Fen

Special Area of Conservation (Site Code 001683); All Saints Bog and Esker Special Area of

Conservation (Site Code 000566); Lisduff Fen Special Area of Conservation (Site Code

002147); Island Fen Special Area of Conservation (Site Code 002236); Scohaboy (Sopwell)

Bog Special Area of Conservation (Site Code 002206); Redwood Bog Special Area of

Conservation (Site Code 002353); Slieve Bloom Mountains Special Area of Conservation

(Site Code 000412); Lower River Shannon Special Area of Conservation (Site Code 002165),

All Saints Bog Special Protection Area (Site Code 004103); Slieve Bloom Mountains Special

Protection Area (Site Code 004160) these sites could be screened out from further

consideration and that the proposed development, individually or in combination with other

plans or projects would not be likely to have significant effects on these European Sites.

Furthermore, the Commission considered that an Appropriate Assessment of the implications

of the proposed development for the Ballyduff/Clonfinane Bog Special Area of Conservation

(Site Code 000641), Arragh More (Derrybreen) Bog Special Area of Conservation (Site Code

002207), Kilcarren-Firville Bog Special Area of Conservation (Site Code 000647), Lough

Derg, North-east Shore Special Area of Conservation (Site Code 002241), River Shannon

Callows Special Area of Conservation (Site Code 000216), Dovegrove Callows Special

Protection Area (Site Code 004137), River Little Brosna Callows Special Protection Area (Site

Code 004086), Middle Shannon Callows Special Protection Area (Site Code 004096), Lough

Derg (Shannon) Special Protection Area (Site Code 004058) required further investigation,

as the proposed development has the potential to have a significant effect in view of the

Conservation Objectives for these sites and that a Stage 2 Appropriate Assessment is,

therefore, required.

Appropriate Assessment: Stage 2

The Commission considered the Natura Impact Statement and all other relevant submissions

and reports and carried out an Appropriate Assessment of the implications of the proposed

development for the relevant sites in view of these sites Conservation Objectives.

The Commission considered that the information and reports before it was adequate to allow

the carrying out of an Appropriate Assessment. In completing the assessment, the

Commission considered the likely direct and indirect impacts arising from the proposed

development both individually or in combination with other plans or projects, the mitigation

measures which are included as part of the current proposal and the Conservation Objectives

for these European Sites. In completing the Appropriate Assessment, the Commission

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, having regard to the sites’ Conservation Objectives. In overall conclusion,

the Commission was satisfied that the proposed development would not adversely affect the

integrity of the aforementioned sites or any other European Site in view of the sites

Conservation Objectives.

Environmental Impact Assessment

The Commission completed an Environmental Impact Assessment of the proposed

development taking account of:

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

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

submitted in support of the application,

(c) the Screening for Appropriate Assessment and Natura Impact Statement (NIS) and

associated documentation submitted in support of the application,

(d) the planning authority reports, and the submissions received from the Observers and

Prescribed Bodies, and

(e) the Inspector’s report and the technical report of the Inspectorate Ecologist.

The Commission considered that the Environmental Impact Assessment Report, supported

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

proposed development, and identifies and describes adequately the direct, indirect, residual

and cumulative effects of the proposed development on the environment.

The Commission agreed with the examination, set out in the Inspector’s report and informed

by the technical report of the Inspectorate Ecologist, of the information contained in the

Environmental Impact Assessment Report and associated documentation submitted by the

applicant and submissions made in the course of the application.

Reasoned Conclusion of the Significant Effects:

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

main significant direct and indirect effects of the proposed development on the environment

are and would be mitigated as follows:

• Landscape and Visual Effects: The introduction of the turbines will change the existing

landscape. This will result in significant residual direct, indirect and cumulative landscape

character and visual effects in the immediate area of the proposed wind farm site up to 800

metres. There are no residual significant effects upon landscape and visual impact

anticipated as part of the project.

• Climate: The proposed development would have a significant positive impact on climate

due to the displacing of fossil fuel energy generation and the associated displacement of C02

and other greenhouse gas emissions. Over the proposed 35-year lifetime of the

development, significant levels of carbon dioxide will be displaced from traditional carbon-

based electricity generation, which is a significant positive, longterm impact on climate due

to its contribution to renewable energy targets and the reduction of GHG emissions.

• Traffic: Negative impacts arise during the construction phase of the development. These

impacts include additional traffic movements on the local road network, movement of

abnormal loads resulting in potential delays and the provision of alternative diversion routes.

Traffic impacts will be local, short-term and temporary and will be adequately mitigated

during construction by the implementation of measures set out in the EIAFq, including the

final CEMP, Road Safety Audit and Construction Traffic Management Plan.

• Population and Human Health: Potential significant positive impacts on the socio-economic

profile of the area due to community funding and investment and long-term impact on

population due to its contribution to renewable energy targets. With the application of

mitigation, largely comprising implementation of a Construction Environmental Management

Plan, no significant residual effect upon human health / safety is expected. In addition, with

the implementation of mitigation, a turbine control system, the project will not result in

significant impacts upon population in relation to shadow flicker.

Biodiversity: Moderate significant negative residual effect identified relating to the loss of

cutover bog habitat at a local level. Mitigation measures include implementation of

measures set out in the EIAR and NIS, the use of the Community Benefit Fund for local

biodiversity projects and commitment to offering compensation to turbary rights holders.

• Ornithology: The introduction of the windfarm at this location will result in local level

impacts for the local population of whooper swans and the ornithological ecological value of

the site but will not result in any significant effects on any of the identified key ornithological

receptors. Mitigation measures proposed include the use of the Community Benefit Fund for

local biodiversity projects which would have a positive impact for the promotion and natural

regeneration of the area.

• Archaeology and Cultural Heritage: The removal of peat and spoil during the construction

phase has the potential to have a permanent, significant, negative effect on previously

unrecorded sub-surface archaeological site and artefacts. With the implementation of

mitigation measures outlined in the EIAR there will be no significant negative effects on

unrecorded sites and artefacts during excavations.

Having regard to the above, the Commission is satisfied that the proposed development

would not have any unacceptable direct or indirect effects on the environment. The

Commission completed an Environmental Impact Assessment in relation to the proposed

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

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

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

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

report and conclusions of the Inspector.

Conclusions on Proper Planning and Sustainable Development

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

the proposed development would be in accordance with the Climate Action and Low Carbon

Development Act 2015 (as amended), the National Biodiversity Action Plan 2023-2030, the

National Planning Framework, the Regional Spatial Economic Strategy for the Southern

Region 2020-32 (RSES) and the provisions of the Tipperary County Development Plan 2022-

2028.

The proposed development would comply with European, National, and Regional renewable

energy policies and with the provisions of local policy, would be consistent with the

obligations of the Climate Action Plan 2024 and 2025, would make a positive contribution to

Ireland's renewable energy and security of energy supply requirements, would not have an

unacceptable impact on the character of the landscape, would not have a significant adverse

impact on biodiversity, ecology or ornithology and would be acceptable in terms of traffic

safety. The proposed development would, therefore, be in accordance with the proper

planning and sustainable development of the area.

The Commission noted the proposed wind farm is located on lands deemed 'Unsuitable’ for

wind farm development. Objective TWIND 4.13 of the Tipperary County Development Plan

2022-2028 which refers to 'Areas Unsuitable for New Development’, where new wind energy

projects will not normally be considered. The proposed development is not located in an

‘Area Open for Consideration’ nor does it comply with policy TWIND 4.14, where wind farm

development relating to existing windfarms may be considered on a case-by-case basis, as

set out in the statutory plan.

However, the Commission also noted that Tipperary County Council strongly supports the

development of renewable energy in the County, including under Wind energy policy 'TWIND

1: it is the policy of the Council to support, in principle and in appropriate locations, the

development of wind energy resources in County Tipperary. The Council recognises that

there is a need to promote the development of 'green electricity’ resources and to reduce

fossil fuel dependency and greenhouse gas emissions in order to address the global issue of

climate change, and to comply with European and International policies with regards to

renewable and sustainable energy resources.’

Although the proposed development can be considered as being a material contravention of

the Tipperary County Development Plan 2022-2028, the Commission noted the provisions

of Section 37(2)(a) of the Planning and Development Act 2000, as amended, where the

Commission may ‘decide to grant a permission even if the proposed development

contravenes materially the Development Plan.’ Subject to the provisions of Section

37(2)(b)(1), the proposed wind farm development complies with these provisions based on

the proposed wind farm development being of strategic and national importance, based on

the Climate Plans and Policy Objectives, National and Regional Objectives and on achieving

Europe and Irelands legally binding renewable energy targets including the 9 GW onshore

wind target and achieving 80% of electricity demand from renewable sources by 2030.

On the basis of the above, and noting the obligations placed on the Commission under

Section 15 of the Climate Action and Low Carbon Development Act 2015, as amended, the

conclusions reached in the Inspectors report that the proposed development accords with

proper planning and sustainable development and that the environmental effects would be

acceptable, the Commission was satisfied that, notwithstanding the provisions of TWIND

4.13, it is appropriate for the Commission to grant permission, taking into account the wider

support for wind energy set out in the Tipperary County Development Plan 2022-2028, in

TWIND 1, as well as national and regional policy support for onshore wind energy. In

conclusion on this matter, the Commission was satisfied that the proposed wind farm will

make a valuable strategic contribution to the legally binding renewable energy targets

including for onshore windfarms, albeit located in an ‘Area Unsuitable for New Development’

in County Tipperary and is acceptable and in accordance with the proper planning and

sustainable development for the area.

The Commission considered traffic issues relating to the proposed development, specifically

in relation to the impact on capacity and operation of the road network, and is satisfied that

the concerns of the planning authority have been appropriately addressed in terms of the

application and the appeal documents and that no significant adverse effect is likely to arise,

on a permanent or temporary basis, subject to compliance with relevant legislation and

guidance, implementation of the mitigation measures outlined in the Environmental Impact

Assessment Report, the Road Safety Audit recommendations and final Construction Traffic

Management Plan mitigation measures and monitoring and compliance with recommended

conditions.

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

sustainable development for the area.

Conditions

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

particulars lodged with the application, except as may otherwise be required in order to

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

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

planning authority prior to commencement of development and the development shall be

carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.

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

ten years from the date of this Order.

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

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

excess of five years.

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

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

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

been granted for their retention for a further period.

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

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

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

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

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

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

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

from the site within 12 months of decommissioning.

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

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

of landscape restoration upon cessation of the project.

4. The mitigation measures contained in the submitted Environmental Impact Assessment

Report (EIAFq) shall be implemented.

Reason: To protect the environment.

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

be implemented.

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

6 The developer shall appoint a Community Liaison Officer for all stages of the development

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

reporting of complaints, maintaining a complaints register, addressing complaints and for

discharging information in relation to the development to residents.

Reason: in the interest of amenity and orderly development.

7. Prior to the commencement of development, details of the following shall be submitted to

the planning authority for written agreement and the following design requirements shall be

adhered to:

(a) The wind turbines shall be designed as follows, in accordance with the turbine options

assessed in the Environmental Impact Assessment Report and Natura Impact Statement,

together with application documentation;

(i) Turbine Tip Height – Maximum Height 185 metres, Minimum Height 179.5

metres.

(ii) Hub Height – Maximum height 1 10.5 metres, Minimum height 105 metres

(iii) Rotor Diameter – Maximum length 163 metres, Minimum length 149 metres.

(b) The wind turbines, including masts and blades, shall be finished externally in a light grey

colour to be agreed in writing with the planning authority prior to commencement of

development.

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

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

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

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

(f) Details of external finishes to substation buildings and structures, and for provision of

CCTV to the sub-station compound.

Reason: In the interest of clarity and visual amenity.

8. The Biodiversity Management and Enhancement Plan (BMEP) shall be implemented in

accordance with the commitments outlined therein.

Reason: In the interest of biodiversity.

9. The developer shall retain the services of a suitably qualified and experienced bat and

bird specialists to undertake appropriate bat and bird surveys of the site, in accordance with

the mitigation and monitoring arrangements .

Reason: To ensure appropriate monitoring of the impact of the development on the avifauna

and bat species of the area.

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

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

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

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

of all environmental mitigation and monitoring measures during construction and operation

of the wind farm.

Reason: To protect biodiversity.

11. Noise levels generated by the windfarm, following commissioning, by itself or in

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

measured externally at noise sensitive location the windfarm following commissioning by

itself or in combination with other existing or permitted wind energy development in the

vicinity, when measured externally at noise sensitive locations, shall not exceed:

(a) For the daytime period 0700 to 2300, in quiet environments, where background noise is

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

(b) For daytime periods, 0700 to 2300, where the background noise level exceeds

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

(c) For the nighttime period 2300 to 0700, for all noise environments, 43dB(A)L90 T1 O.

Prior to the commissioning of the windfarm, the developer shall submit and agree in writing

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

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

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

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

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

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

of the windfarm.

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

development.

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

will be no shadow flicker at any existing nearby dwelling. Turbine shutdown shall be

undertaken by the wind energy developer or operator in order to eliminate the potential for

shadow flicker

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

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

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

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

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

controlling turbine rotation if necessary. A similar report may be requested by the planning

authority at reasonable intervals thereafter.

Reason: in the interest of residential amenity.

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

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

event of the proposed development causing interference with telecommunication signals.

Such actions shall be completed to minimise interference with telecommunication signals

and shall be carried out to the written satisfaction of the planning authority at the developer’s

expense.

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

14. The construction of the development shall be managed in accordance with a final

Construction and Environment 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) the location of the site and materials compound(s) including area(s) identified for the

storage of construction refuse;

(b) the location of areas for construction site offices and staff facilities;

(c) the details of site security fencing and hoardings;

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

construction ;

(e) the 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) alternative arrangements to be put in place for pedestrians and vehicles in the case of

the closure of any public road or footpath during the course of site development works;

(i) the details of a local community feedback mechanism, where feedback including

complaints are received and acted upon by a designated Community Liaison Officer;

(j) the details of appropriate mitigation measures for noise, dust and vibration, and

monitoring of such levels;

(k) the 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;

(l) the off-site disposal of construction/demolition waste and details of how it is proposed to

manage excavated soil;

(m) the means to ensure that surface water run-off is controlled such that no silt or other

pollutants enter local surface water sewers or drains;

(n) works to be carried out in accordance with Inland Fisheries Ireland 'Guidelines on

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

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

Construction Management Plan shall be available for inspection by the planning authority,

with monitoring on a daily basis of all watercourses in or adjacent to works areas; and

(p) measures to be implemented to minimise the potential for increased soil/peat stability

and erosion of soils, with monitoring of the same.

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

15. Site development and building works shall be carried out between the hours of 0700 to

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

Sundays and public holidays. Deviation from these times shall only be allowed in exceptional

circumstances where prior written agreement has been received from the planning authority

and in accordance with measures outlined in the Environmental Impact Assessment Report.

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

16. Drainage arrangements, including the attenuation and disposal of surface water, shall

comply with the requirements of the relevant Section of the Council for such works and

services.

Reason: In the interest of public health and surface water management.

17. The developer shall comply with the requirements of Uisce Eireann with regard to

diversion of infrastructure within the site and connections to the public network.

Reason: In the interest of public health and surface water management.

18. (a) The developer shall engage a suitably qualified (licensed eligible) archaeologist to

monitor (licensed under the National Monuments Acts) all site clearance works, peat removal

/ topsoil stripping, groundworks, dredging, tree removal, and/or the implementation of

agreed preservation in-situ measures associated with the development. Prior to the

commencement of such works the archaeologist shall consult with and forward to the Local

Authority archaeologist or the NMS as appropriate a method statement for written

agreement. The use of appropriate tools and/or machinery to ensure the preservation and

recording of any surviving archaeological remains shall be necessary. Should archaeological

remains be identified during the course of archaeological monitoring, all works shall cease

in the area of archaeological interest pending a decision of the planning authority, in

consultation with the National Monuments Service, regarding appropriate mitigation (that is,

preservation in-situ or by record/excavation.

(b) The developer shall facilitate the archaeologist in recording any remains identified. Any

further archaeological mitigation requirements specified by the planning authority, following

consultation with the National Monuments Service, shall be complied with by the developer.

(c) Following the completion of all archaeological work on site and any necessary post-

excavation specialist analysis, the planning authority and the National Monuments Service

shall be furnished with a final archaeological report describing the results of the monitoring,

and any subsequent required archaeological investigative work/excavation required. All

resulting and associated archaeological costs shall be borne by the developer.

Reason: To ensure the continued preservation, either in situ or by record, of places, caves,

sites, features or other objects of archaeological interest.

19 (a) Prior to commencement of development and following consultation with the

Department of Defence and Irish Aviation Authority (IAA), the developer shall submit for

written agreement of the planning authority, details of an obstacle warning light scheme

which can be visible to night vision equipment.

(b) The developer shall inform IAA of its intention to commence crane operations with a

minimum of 30 days prior notification of their erection.

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

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

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

Reason: In the interest of air traffic safety.

20. Prior to the commencement of development, the following shall be submitted to the

planning authority for written agreement:

(a) Detailed design and location of the underground electricity cable within the road corridor,

including joint bays, and details of cabling crossing culverts and streams, which shall be in

accordance with the requirements of Transport Infrastructure Ireland (TII).

(b) A Level 1 Falling weight deflectometer survey and Level 2 analysis design in accordance

with TII document Design Manual for Roads and Bridges of the public roads along the grid

connection route.

(c) Details of pre-construction condition survey of proposed haul routes, bridges/structures

along the route, weight of abnormal loads, and arrangements for maintenance of

routes/structures during construction and repair of any damage.

(d) Details and programme for strengthening works, as necessary, required on the L-5040

Local Road.

(e) A survey of the entire L-5041 and resumed on a six month cycle during the construction

phase.

(f) A Traffic and Transport Assessment carried out in accordance with TII document PE-PDV-

02045 with regard to the traffic regime at the junction of the N52 / L-5040.

Reason: In the interest of visual amenity and traffic safety.

21. The delivery of large-scale turbine components for the construction of the wind farm

shall be managed in accordance with a Construction Traffic Management Plan (CTMP), which

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

commencement of development. This plan shall provide details of the road network to be

used by construction traffic, including over-sized loads, detailed proposals for sightlines and

detailed arrangements for the protection of bridges, culverts or other structures to be

traversed, as may be required. The plan shall also contain details of how the developer

intends to engage with relevant parties (including County Councils, PPP companies) and

notify the local community in advance of the delivery of oversized loads. Any proposed

works to the national road network to facilitate turbine delivery shall comply with the

requirements of Transport Infrastructure Ireland.

Reason: In the interest of public safety and residential amenity.

22. The Community Benefit scheme shall be adhered to for the life of the wind farm. The

scheme shall be administered in accordance with the Renewable Energy Support Scheme

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

Environment, Climate and Communications In the event that the developer does not utilise

the government’s RESS, prior to the commencement of development, a community gain

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

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

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

it.

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

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

acceptable to the planning authority, to secure the 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 Coimisiún Pleanála for determination

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

of the area.

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

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

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

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

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

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

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

Reason: To ensure satisfactory reinstatement of the site.

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

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

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

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

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

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

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

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

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

agreement, the matter shall be referred to An Coimisiún Pleanála to determine the proper

application of the terms of the Scheme.

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

condition requiring a contribution in accordance with the Development Contribution Scheme

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

Some general considerations

40. 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 relief by way of judicial review

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

November 2025) and other cases (see also most recently Foran v. An Coimisiún Pleanála &

Glenveagh [2026] IEHC 23 (Unreported, High Court, Holland J., 23 January 2026)), there is an

eight-fold path to obtaining relief by way of judicial review. These tests are cumulative, and relief

should only be granted if the proceedings meet all of the following:

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

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

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

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

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

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

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

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

dimension);

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

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

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

obligations);

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

relief;

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

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

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

(viii) the exercise of discretion does not militate against 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.

42. 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 W.L.U.K. 212, Lord

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

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

speaking evaluative judgements involving a significant degree of planning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Farrell J., 30 December 2025) at 32.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025) at 32.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

43. 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).

Pleadings

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

in previous caselaw include the following:

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

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

2501; Khashaba v. Medical Council [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.

Ius tertii

45. As to ius tertii, it is settled law that an applicant can’t advance the rights of a third party.

Likewise an applicant can’t argue for a legal outcome of a hypothetical situation that doesn’t arise

on the facts – for example claiming a breach of fair procedures when they did in fact have an

opportunity to participate.

46. Even if an applicant has standing in some capacity to bring the proceedings, that doesn’t

translate into an entitlement to make any and every possible argument particularly where such an

argument is premised on the rights of some other person (such as an unidentified person who might

have been involved in public participation): Cahill v. Sutton [1980] I.R. 269 (O’Higgins C.J.) (Henchy

J., Griffin, Kenny and Parke JJ. concurring); Hellfire Massy Residents Association v. An Bord Pleanála

[2021] IEHC 424, [2021] 10 JIC 1302 (Unreported, High Court, 13 October 2021) at §54(i); Conway

v. Minister for Housing, Local Government & Heritage & Ors. [2024] IESC 34 (Unreported, Supreme

Court, 23 July 2024) per O’Donnell C.J. paras. 6-10, per Hogan J. paras. 11-14 (O'Donnell C.J.,

Dunne, Collins and Donnelly JJ. concurring).

47. A permission shouldn’t generally be quashed for failure to respect the property rights of a

third party. It’s different if the rights concerned are those of an applicant herself. Without that

feature, the point is a ius tertii – Mohan v. Ireland [2019] IESC 18, [2021] 1 I.R. 293, [2019] 2

I.L.R.M. 1, O’Donnell J. (MacMenamin, Dunne, Charleton and O’Malley JJ. concurring). Such an

outcome is consistent with the settled caselaw, specifically Frascati Estates Ltd v. Walker [1975] I.R.

177; Simons J. in Heather Hill Management Company CLG v. An Bord Pleanála [2019] IEHC 450

(Unreported, High Court, 21 June 2019); Balscadden Road SAA Residents Association Ltd v. An Bord

Pleanála [2020] IEHC 586 (Unreported, High Court, 25 November 2025); Holland J. in Heather Hill

Management Company CLG v. An Bord Pleanála & Ors. [2022] IEHC 146 (Unreported, High Court,

16 March 2022) at §65; Minoa Ltd v. An Bord Pleanála [2024] IEHC 704 (Unreported, High Court,

Heslin J., 10 December 2024); Watchhouse Cross Shopping Centre v. An Coimisiún Pleanála [2025]

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

Onus of proof

48. 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 appropriate assessment (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/ environmental impact assessment (EIA) was

defective, or that there were factual circumstances requiring a decision-taker to

consider any other autonomous obligation, lies on the applicant: R v. Crischuk, 2010

BCSC 716 (Barrow J.) at paras. 36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141;

Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported,

High Court, 12 April 2021), para. 19; An Taisce v. an Bord Pleanála & Ors. [2022]

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

(O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring); Carrownagowan

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

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

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

2025)); Salmon Watch Ireland, Inland Fisheries Ireland, Sweetman & Ors. v.

Aquaculture Licences Appeals Board & Ors. [2024] IEHC 421 (Unreported, High

Court, Holland J., 12 July 2024), §1097; Nagle View Turbine Aware Group v. An Bord

Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November 2024) at para. 115;

Minoa Ltd v. An Bord Pleanála [2024] IEHC 704 (Unreported, High Court, Heslin J.,

10 December 2024), para. 333; Ó Murthuile v. An Bord Pleanála [2025] IEHC 498

(Unreported, High Court, Farrell J., 19 September 2025) at 55; Oxigen v. An

Coimisiún Pleanála [2025] IEHC 632 (Unreported, High Court, 19 November 2025)

(for example, in relation to proving that a decision-taker lacks expertise). Thus,

apart from (i) failure to consider something that the decision-taker was

autonomously required to consider, (ii) patent flaw on the face of the materials, or

(iii) other legal error, inadequate consideration or failure to dispel scientific doubt

has to be established by admissible evidence (normally expert evidence) in the

judicial review showing either that reasonable doubt was created by the material

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

applicant specifically), or that such material even if uncontradicted would on its face

have created doubt in the mind of a reasonable expert: An Taisce v. An Bord Pleanála

(No. 2) [2021] IEHC 422, [2021] 7 JIC 0205 (Unreported, High Court, 2 July 2021)

at §7 and §8; Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300

(Unreported, High Court, 20 May 2024) at §191(v), leave to appeal refused:

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

Collins and Donnelly JJ., 27 January 2025); Kennedy v. An Bord Pleanála [2024]

IEHC 570 (Unreported, High Court, 7 October 2024) at §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).

Inadequacy of assessments

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

rehearsed in previous caselaw include the following:

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

one point can be addressed at a later point in the process: R (Edwards) v.

Environment Agency [2008] UKHL 22, [2008] 1 WLR 1587, para 38; R. (Friends of

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

P.T.S.R. 190, [2020] 12 W.L.U.K. 212 (Lord Hodge and Lord Sales SCJJ.) at 66 and

143; Cogent Land LLP v. Rochford District Council [2012] EWHC 2542 (Admin),

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

Coastal District Council [2015] EWCA Civ. 88, [2015] Env. L.R. 28 per Richards LJ.

(Underhill and Briggs LJJ. concurring) (paras. 48-54); hence amendments to a plan

under assessment can be introduced in the process, R. (Friends of the Earth Ltd) v.

Heathrow Airport Ltd at 67.

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

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

which different decision-makers may legitimately reach different conclusions without

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

197, [2023] Env. L.R. 14.

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

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

Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College

van gedeputeerde staten van Limburg and College van gedeputeerde staten van

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

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

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

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

SCJJ.) at 143.

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

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

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

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

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

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

Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 2025).

Assessment where multiple consents involved/ project-splitting

50. Key elements of the law relevant to an assessment involving multiple consents include:

(i) Article 1(2)(c) of the EIA directive expressly envisages that multiple authorities may

be involved in a consent (and hence that the overall project can occur in multiple

stages. It defines ‘development consent’ as (emphasis added) “the decision of the

competent authority or authorities which entitles the developer to proceed with

the project”. Thus there is no EU obligation to centralise all EIA functions in

one decision-maker. Multiple authorities are clearly permissible, as indeed is

evident in the text of the 2011 directive itself. There is no obligation to transpose

EIA into the planning legislative regime but only into the overall legislative regime:

Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála (No. 1)

[2022] IEHC 700 (Unreported, High Court, 16 December 2022) para. 55; Concerned

Residents of Treascon and Clondoolusk v. An Bord Pleanála (No. 2) [2023] IEHC 112

(Unreported, High Court, 10 March 2023); Concerned Residents of Treascon and

Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court,

Murray J., 4 July 2024) (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring),

para. 82.

(ii) The project as a whole must be considered for EIA purposes – even if this

goes beyond the project for which consent is sought. Thus for example if consent is

sought for a sub-threshold project which is part of a supra-threshold project

(whether already part-consented in successive phases, or involving separate consent

applications in process or yet to be made) then the project for which consent is

sought must be treated as supra-threshold if either:

(a) an EIA was not carried out initially and thus an EIA that would otherwise

be required would be avoided by the splitting: judgment of 21 September

1999, Commission of the European Communities v Ireland, C-392/96,

ECLI:EU:C:1999:431; judgment of 16 September 2004, Commission v

Spain, C-227/01, ECLI:EU:C:2004:528; judgment of 17 March 2011,

Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest, C-275/09,

ECLI:EU:C:2011:154; judgment of 21 March 2013, Salzburger Flughafen

GmbH v Umweltsenat, C-244/12, ECLI:EU:C:2013:203; judgment of 11

February 2015, Marktgemeinde Straßwalchen and Others v

Bundesminister für Wirtschaft, Familie und Jugend, C-531/13,

ECLI:EU:C:2015:79; judgment of 25 May 2023, WertInvest Hotelbetriebs

GmbH, C-575/21, ECLI:EU:C:2023:425; or

(b) an EIA was carried out initially but the part of the project being consented

has significant unassessed effects on the environment in conjunction with

another part that has already been subjected to EIA such that the

combined effects were not all assessed initially: judgment of 4 May 2006,

Commission v United Kingdom, C-508/03, ECLI:EU:C:2006:287.

(iii) Whether sub-projects are part of a larger project primarily relates to “their

geographical proximity, their similarities and their interactions” judgment of

25 July 2008, Ecologistas en Acción-CODA v Ayuntamiento de Madrid, C-142/07,

ECLI:EU:C:2008:445, para. 45 (emphasis added).

(iv) Nonetheless, there are situations in which otherwise functionally unrelated projects

need to be considered collectively for threshold purposes (piecemeal peat harvesting

in Ireland; accumulated urban development in Austria, for example) if significant

effects on the environment by sub-threshold projects would otherwise go

unassessed. See the judgment of 21 September 1999, Commission of the

European Communities v Ireland, C-392/96, ECLI:EU:C:1999:431, paras. 76 and

82; judgment of 25 May 2023, WertInvest Hotelbetriebs GmbH v Magistrat der Stadt

Wien, C-575/21, ECLI:EU:C:2023:425; Byrne v. Fingal County Council [2025] IEHC

204 (Unreported, High Court, 11 April 2025).

(v) As regards the relationship with other projects falling outside the “project as a

whole”, the cumulative and in-combination effects must still be considered

as part of any EIA screening or EIA itself, even in relation to different types of

projects: judgment of 11 February 2015, Marktgemeinde Straßwalchen and Others

v Bundesminister für Wirtschaft, Familie und Jugend, C-531/13,

ECLI:EU:C:2015:79.

(vi) In-combination effects are likely to require consideration of applications not yet

consented: Toole v. Minister for Housing, Local Government & Heritage (No. 7)

[2023] IEHC 716 (Unreported, High Court, 21 December 2023); European

Commission, Environmental Impact Assessment of Projects: Guidance on the

preparation of the Environmental Impact Assessment Report (2017), in particular,

part B, section 1.4.3.

(vii) In principle there is nothing premature about submitting an application for

part of a project: 100 Meter Tall Group v. An Bord Pleanála [2025] IEHC 42

(Unreported, High Court, 31 January 2025), paras. 168-169. However the whole

project may require assessment in the context of submitting a partial application,

insofar as effects can be identified at that time.

Discretion

51. 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

(Unreported, Court of Appeal, 1 July 2021) 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. 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 can also apply by reference to the conduct of the applicant such as:

(a) unwarranted failure to prosecute the proceedings: Delaney v. An

Coimisiún Pleanála [2025] IEHC 621 (Unreported High Court, 13

November 2025); or

(b) failure to avail of procedures or remedies or in certain circumstances to

take other actions to protect their position: Baile Bhruachlain Teoranta v.

Galway County Council [2024] IEHC 604 (Unreported, High Court, 1

November 2024); Voyage Property v. Limerick City and County Council

[2025] IEHC 696 (Unreported, High Court, Holland J., 16 December 2025)

at 263-264.

(iv) 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.

(v) 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.).

(vi) 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

52. 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).

Preliminary issues

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

summarised as follows:

“Pleading Objection

1. The Notice Party’s position is that the Statement of Claim is not adequately pleaded.

Throughout all twelve Core Grounds, the Applicants have employed an impermissible

‘scatter-gun’ approach to pleading the claim and have failed to specify a ‘route-map’

connecting the particular factual problem alleged with the particular relief sought (McGowan

v ACP [2025] IEHC 405, §51). The Applicants fail to identify the passages of the

Commission’s Order or the Inspector’s Report with which they take issue, and the majority

of the pleas, insofar as they can be understood at all, are not grounded in the decision made

by the Commission and are entirely unsupported by any evidence. The proceedings should

be rejected as being inadequately particularised.

Admissibility of the Affidavit of Mr Lavelle

2. The Commission’s position is that, for the reasons set out at §13 and §14 of the

Commission’s written legal submissions, the replying affidavit of Martin Lavelle sworn on

15th December 2025, that the Applicants purport to rely on (see §68 and §74 of the

Applicants’ written submissions) is inadmissible and/or no weight should be given to the

averments in same.

3. The Notice Party’s position is that the Affidavit of Mr Lavelle is not admissible and/or

no weight should be given to it where: (i) it contains no averment as to the expertise of Mr

Lavelle; (ii) it contains no averment as to the duties of expert witnesses; (iii) it comprises

new evidence that could have been, but was not, put before the Commission; (iv) it was not

adduced at the commencement of the proceedings and no explanation has been given for

that failure; (v) it is not in substance a replying affidavit but rather seeks to supplement the

case in the guise of a reply; and (vi) it does not address the issues through the lens of the

evidence that was before the Commission when it made the Decision. Strictly without

prejudice to that position, even if that affidavit were admissible, the onus of proof is on the

Applicants and, absent cross-examination of the Notice Party’s expert witnesses, which has

not been sought, any conflict of evidence must be resolved against the Applicants.”

54. As regards the preliminary issues raised, I agree that some of the claims are loosely pleaded

but I will attempt to deal with the points made more specifically below insofar as I can interpret such

points.

55. As regards the affidavit of Mr Lavelle, this is clearly inadmissible or if admissible should not

be afforded weight, mainly because, as submitted, it comprises new evidence that could have been,

but was not, put before the commission; was not adduced at the commencement of the proceedings

and no explanation has been given for that failure; is not in substance a replying affidavit but rather

seeks to supplement the case in the guise of a reply; and does not address the issues through the

lens of the evidence that was before the commission when it made the decision. Even if it is

admissible, a conflict of evidence arises, such conflict must be resolved against the applicant on an

RAS Medical-basis (see RAS Medical 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.)).

Domestic law issues

Core ground 1 – alleged invalid application

56. Core ground 1 is:

“1. The Respondent erred in law and acted contrary to the mandatory requirements of

the Planning and Development Regulations and in particular contrary to Articles 17, 18, 19,

22(2)(b)(c)(d)(g), 23(1)(a)(b)(c)(d)(f) of the Planning and Development Regulations 2001

(as amended), which are mandatory and where a failure to comply with the said

requirements renders the Application invalid and such a determination is ultra vires the

Respondent, contrary to law, is invalid and void.”

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

“Applicants Position

2. Article 17, 18, 19 and 20 relate to the giving of public notice in respect of a

development the subject-matter of an application for permission under the Planning and

Development Act, 2000 (as amended). The nature and extent of the development can only

be interpreted to require that there be a precise and concluded design which is a condition

precedent for the making of an application and where that extent must be described both in

the newspaper notice provided for in Article 18 and the Site Notice required in Article 19.

3. Articles 17, 18 & 19 require in respect of an application for planning permission

whether that be a Newspaper Notice under Article 18 or a Site Notice under Article 19 of the

Planning and Development Regulations 2001, that the nature and extent of the proposed

development is specified and it is inconsistent with and contrary to the requirements of the

said notice provisions that the extent of the structure be described so as to permit a variation

in terms of height of 5.5 metres seeking a range of heights between 179 metres and 185

metres and a diameter length of between 149 metres and 163 metres and accordingly, the

imprecise nature of the extent of the development is contrary to the requirements in respect

of Public Notice enshrined in Article 17, 18 & 19 of the Planning and Development

Regulations. The failure to refer to the nature and extent of this development in the Public

Notice constitutes a breach of the obligations under Articles 16, 17, 18 & 19 of the Planning

and Development Regulations 2001.

4. Article 22(1)(b) provides that a map of a scale of 1:2500 shall be provided with the

land or structure to which the Application relates and the boundaries thereof outlined in red

but where part of the structures proposed and in particular the swept path reflecting the

blade diameter extends beyond the site in red such as to extend over the pubic road and

where the swept path as reflected in the drawings purporting to comply with Article 22(1)(b)

does not reflect the swept path of the turbines for all wind conditions and direction, and the

plans and documentation are in breach of Article 22(2)(b). The said provision is furthermore

in breach of Article 22(2)(b)(ii) as part of the lands over which the wind turbine is to be

constructed is not under control of the Applicant as it amounts to a public road and therefore

the location and design of Turbines No. 3 & 4 in particular are contrary to and inconsistent

with the requirements set out in Articles 22(2)(b).

5. Articles 22(2)(c) requires that where waste water is to be disposed of other than to

a sewer information on the onsite treatment system proposed and evidence of the suitability

of the system is required to be submitted and where in this case the waste water is not to

be disposed of to a sewer but is to be contained in a Waste Water Treatment Plant and where

no details of the said treatment or suitability of the site for these purposes or any evidence

in that regard has been submitted sufficient to comply with this obligation renders the plans

contrary to Articles 22(2)(c).

6. There is no evidence or no basis to disapply the default provision in respect of the

grid connection works where the said grid connection is being located in lands where the

written consent of the said owner of the lands is required, and where there is no evidence

of a type that complies with the obligations under Article 22(2)(g)(ii) on the face of the

documentation and specifically, there is no statutory undertaker that has been identified nor

could be identified which complies with the requirements such as to disapply the obligation

to furnish the said written consent which is required as a mandatory obligation under the

said regulations.

The Commission’s Position

7. Core Ground 1 is without substance and denied. It comprises non-expert mere

assertions that have not been evidentially established and which are based on the Applicants’

incorrect understanding of the planning application documentation submitted by the Notice

Party and the proposed development for which permission was sought. No breach of Articles

17, 18, 19, 22(2)(b)(c)(d)(g), or 23(1)(a)(b)(c)(d)(f) of the 2001 Regulations has occurred.

No specific breach of any of those provisions has been identified by the Applicants.

8. As regards the Applicants’ non-expert mere assertions regarding the details provided

in relation to the turbine dimensions, no breach of Articles 17, 18, and 19 of the 2001

Regulations has occurred, as alleged, or at all. The planning application here did not, in fact,

involve a widely variable design application where the designs, dimensions and locations of

the proposed turbines were not specified in the application itself, either by reference to

precise terms or to a reasonably limited range that could not, in itself, raise any reasonable

planning objection. The parameters for the turbine design lawfully had a limited degree of

flexibility, defined parameters, and were not open-ended in scale. The Applicants’ mere

assertion as to the ‘the imprecise nature of the extent of the development’ is simply

incorrect. It is noted that 19 no. site notices with white backgrounds were erected on 21st

September 2023 in accordance with Article 19 of the 2001 Regulations. A newspaper notice

was advertised in the Nenagh Guardian dated 16th September 2023 in accordance with

Article 18 of the 2001 Regulations. A full set of planning application drawings and a drawing

schedule were prepared by MKO in accordance with the 2001 Regulations and are included

with the application. Further, the Commission, in granting permission for the proposed

development, was satisfied that the application for permission was accompanied by the

necessary plans and particulars (including relating to the turbine dimensions) sufficient to

describe the works to which the application relates and for the purposes of EIA and AA.

(Noting in this context, the settled law that an assessment of the adequacy of the information

submitted for EIA and AA purposes is primarily a matter for the discretion of the

Commission). There was sufficient information before the Commission, adequate public

notice in relation to same, and the public had adequate opportunity to make submissions or

observations on the subject application for permission. It was open to the Applicants to

make any submissions they wished to in relation to the details provided in relation to the

turbine dimensions proposed and they were not and/or there is no evidence that the

Applicants or anyone else was prejudiced or impeded in their participation in the process

before the Commission by reason of the public notice complaints now advanced herein by

way of inadequately particularised mere assertion

9. The Applicants are incorrect in contending (by way of non-expert mere assertion)

that the swept path of the turbine blades is not accurately represented in the plans and

extends beyond the red line planning boundary. The maximum swept path area of each of

the turbines, reflecting the blade diameter, is identified on the drawings for the seven

turbines (see e.g., Drawing no. 211016–11 and Drawing nos. 211016-22 to 211016-04–

28). The maximum swept path of Turbines 3 and 4 (and the other Turbines), including the

relevant part of local road L5041 and the lands on either side of local road L5041 that the

swept path of Turbines 3 and 4 extends over, is all within the redline boundary. (See also

the uncontested expert affidavit evidence of Michael Watson, Environmental Director at

MKO, filed by the Notice Party, at §18 to §20, in relation to this point). The reference by

the Applicants in their pleaded case (at §15) and in their written submissions (at §45) to

Article 22(1)(b) of the 2001 Regulations is incorrect as there is no such provision. There

has also been no breach of Article 22(2)(b) of the 2001 Regulations (which relates to location

maps to be submitted with an application). The Applicants’ non-expert mere assertion and

impermissible merits-based disagreement to the contrary is incorrect. Further, in relation

to landowner consent (insofar as the Applicants purport to refer to same in the context of

the complaint made by reference to Article 22(2)(b)), it is to be noted that as part of the

planning application the Notice Party submitted a map titled ‘Landowners involved in the

Project’ prepared by MKO dated 1st September 2023, which sets out in coloured coded

overlay, the number of affected landowners involved in the windfarm development as well

as the red line boundary of the application site, and which complied with the requirements

of Article 22(2)(b). The Notice Party also submitted several letters of written consent from

landowners to the making of the planning application. There is no factual foundation to the

Applicants complaints when the relevant planning application documentation is considered

and is read in an ordinary way that makes sense. The Applicants appear to incorrectly

interpret Article 22(2)(b)(ii) as meaning that no part of a development can be located on,

or in the case of a turbine blade, extend over, the public road. There is no basis for such

an interpretation of Article 22(2)(b)(ii). On a correct interpretation of the Commission’s

Decision and the information that was before it, a full set of plans and particulars, drawings

and maps were included with the application for permission. Those plans and particulars,

drawings and maps complied with the requirements of Article 22(2) and Article 23(1) of the

2001 Regulations. The Applicants have advanced only abstract, mere assertions and have

not identified or evidenced any contravention of the requirements of those Articles.

10. There has been no breach of Article 22(2)(c) of the 2001 Regulations. The

Applicants’ mere assertion and impermissible merits-based disagreement to the contrary is

incorrect. In this connection, sufficient information relating to on-site treatment of

wastewater and evidence as to its suitability for the site for the purposes of Article 22(2)(c)

was provided (see e.g., §4.3.1.5, §4.3.1.8, §4.3.2.3 of the Water Framework Directive

Assessment; Chapter 9 of the EIAR at e.g. §9.4 and §9.5.2.6). Further, and relevant to the

Court’s discretion to refuse relief, the first time this issue is being raised is in these

proceedings, which is not an appropriate procedure. Contrary to what the Applicants

incorrectly contend (again by way of non-expert mere assertion), the proposed development

is not one in respect of which a waste licence is required. In addition, the planning

application herein does not in fact relate to a development which comprises or is for the

purposes of an activity requiring an integrated pollution control licence, or an industrial

emissions licence, or a waste licence (and the Applicants have failed to establish that it is),

and so indication of that fact was not required to be contained in the public notices, and the

Commission’s Decision is not contrary to Article 16, 17, 18 and 19 of 2001 Regulations as

alleged. There is no substance to the Applicants pleaded complaint. Furthermore, the

storage of material generated on site in the peat and spoil repository areas does not,

contrary to the Applicants’ assertion, require a waste licence. (See also the uncontested

expert affidavit evidence of Michael Watson, Environmental Director at MKO, filed by the

Notice Party, at §10 to §17, in relation to this point).

11. Applicants incorrectly contend that Article 22(2)(g)(ii) of the 2001 Regulations

applies to the subject application and the planning authority in the first instance and the

Commission on appeal (see e.g. page 7 of the Inspector’s Report) was evidently satisfied as

to its application and the Notice Party’s compliance with same. Article 22(2)(g)(ii) provides

‘where the applicant is not the legal owner of the land or structure concerned – (ii) in the

case of a proposed development, or part of a proposed development, that is in, on, over or

under a public road, written confirmation that the proposed development concerned is to be

undertaken by a statutory undertaker having a right or interest to provide services in

connection with the proposed development’. That sub-regulation applies here, and it can in

fact lawfully apply to only part of a proposed development as apparent from the plain text

of same. Where the Notice Party will carry out the works related to the Grid Connection as

a statutory undertaker, it does not require landowner consent. Thus, despite the Applicants

incorrect mere assertions, the evidence that was before the Commission and which is before

the Court, is that the Notice Party will be carrying out those works as a statutory undertaker

within the meaning of Article 22(2)(g)(ii) of the 2001 Regulations (see also, for example,

the uncontested expert affidavit evidence of Michael Watson, Environmental Director at

MKO, filed by the Notice Party, at §31 and §32, in relation to this point). Furthermore, even

if, counterfactually (which is denied), Article 22(2)(g)(ii) of the 2001 Regulations did not

apply here, it would not avail the Applicants nor provide any basis for certiorari of the

Commission’s Decision, as it would entail the pursuit of an impermissible ius tertii by the

Applicants. It is settled law that an applicant cannot advance the rights of a third party.

The Notice Party’s Position

12. The application for permission was not contrary to Articles 17, 18, 19, 22(2) or 23(1)

of the Planning and Development Regulations 2001 (the ‘2001 Regulations’), as pleaded in

Core Ground 1 or at all. Core Ground 1 is not properly particularised, and the Applicants

have failed to adduce any evidence or identify any legal basis that could support that Core

Ground. Each of the six key contentions made by the Applicants in Core Ground 1 are

incorrect as follows:

i. First, the Applicants’ contention that a planning application wherein design flexibility

is sought is necessarily contrary to Articles 17, 18, 19, 22 or 23 is incorrect and has no legal

basis. A limited flexibility is permitted and to impugn such a flexibility, specific evidence as

to how that flexibility would create a genuine planning issue would be required. The

flexibility at issue is clearly permissible, where it is limited and is not open ended, and the

Applicants have adduced no evidence that it would create a genuine planning issue.

ii. Second, the Applicants contention that a waste licence was required for the Proposed

Development is incorrect and no evidential or legal basis for that claim has been adduced

by the Applicants. The storage of material generated on site in the peat and spoil repository

areas falls under section 3(1)(c) of the Waste Management Act 1996 such that the licencing

requirements of that Act do not apply. Even if a waste licence were required for the storage

of material generated on site in the peat and spoil repository areas, the failure to obtain that

waste licence prior to the grant of permission would not result in the invalidity of that

Permission having regard to section 34(13) of the 2000 Act.

iii. Third, the Applicants’ contention that the swept path of the turbine blades is not

accurately represented in the plans is factually incorrect. No evidence has been adduced by

the Applicants to contrary effect and this claim must be rejected.

iv. Fourth, the Applicants’ contention that there is a breach of Article 22(2)(b)(ii) of the

2001 Regulations because the swept path of the turbine blades goes over lands the Notice

Party does not control, i.e. the public road, is again incorrect. The Applicants’ have not

identified any basis for an interpretation of Article 22(2)(b)(ii) to the effect that it precludes

development that overhangs the public road.

v. Fifth, there is no evidential or legal basis for the Applicant’s (unparticularised)

contention that there is insufficient detail in the plans or particulars accompanying the

application with respect to the proposed wastewater treatment system.

vi. Sixth, the Applicants’ argument that the application is invalid because the Notice

Party did not have a letter of consent with respect to the grid connection route on the public

road comprises an impermissible jus tertii and in any event is incorrect in law. Article

22(2)(g) expressly permits an application for permission to be accompanied by written

confirmation that the proposed development is to be undertaken by a statutory undertaker,

and the application for permission was accompanied by such written confirmation.”

58. The basic reason why this point fails is that the applicants are reading into the planning

regulations requirements that are not there. We go back to the point made by Hogan J. in Waltham

Abbey v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 that the planning regulations, like

law generally, must be given a workable interpretation.

59. The planning regulations do not:

(i) preclude design flexibility as long as it is within reasonable bounds that do not create

a genuinely substantive planning issue – breach of that limitation has not been

evidentially established here;

(ii) prohibit projects that overhang public roads – subject to consideration by planning

decision-makers of safety and public rights, and with the consent (or at least

acquiescence) of the owner of the road concerned; or

(iii) require a waste licence, if such is necessary, prior to the making of the application.

60. As regards claims of inaccuracy or insufficiency in the particulars provided, this has to be

established evidentially, which has not been done. It does not follow from the fact that turbines

move once operational and that there is a certain limited flexibility in the design that the distance

to the boundary of the development site has not been specified, in the sense required by the

regulations. The regulations have to be interpreted in a workable manner that has regard to the

sort of development that is involved. There are practical reasons why there has to be some flexibility

in turbine design due to technological and market changes between the date of the initial application

for permission and the date of purchase of the turbine equipment concerned, which may be some

years later. Perhaps it is not impermissible to note in passing that the Planning & Environment Court

is trying to reduce its portion of that gap where possible in cases where permissions are upheld

against challenge, but the courts can shoulder only a certain amount of the responsibility, as anyone

properly familiar with the system will be aware.

Core ground 2 – property rights

61. Core ground 2 is:

“2. The Respondent erred in law in the manner and to the extent that it addressed the

issues raised in respect of interference with property rights and interest in circumstances

where it failed to address submissions as a matter of jurisdiction in respect of validity of the

application and in respect of Material Assets under Council Directive 2011/92 where property

rights would be likely to be significantly affected with the right of turbary, rights of way and

public rights over the property being significantly affected/extinguished for an

indeterminable period and where the Respondent failed to properly address its mind to this

consideration, a relevant consideration both for the Planning and Development Act 2000 and

for Council Directive 2011/92 and determined the Application by permitting the Notice Party,

as set out in condition no. 1 to rely on a proposal where such affected rights would be

compensated and/or provide for relocation of the property interest to an alternative location

and where the Respondent wrongly relied on Section 34(13) and accordingly the Respondent

erred in law, had regard to irrelevant and inappropriate considerations, failed to have regard

to relevant considerations, acted ultra vires and without jurisdiction and accordingly the

decision of the Respondent ultra vires, made without jurisdiction, invalid and void.”

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

“Applicants Position

14. The reliance by the Respondent on Section 34(13) which raised a legitimate planning

consideration in respect of the effect on certain property rights and raised legitimate issues

in respect of the impact of the development on material assets requires to be addressed as

a consideration by the Competent Authority/the Commission both under domestic and

European community law and cannot avoid any consideration of the said issue by a reliance

on Section 34(13) of the Planning and Development Act as the said issue amounts to a

relevant consideration for the purposes of the Planning and Development Act 2000 and for

the purposes of Council Directive 2011/92EU, and the failure to properly or appropriately

address this issue offends against the principles of natural and/or constitutional justice, the

principle of audi alteram partem, amounts to a failure to properly consider and address the

application for the purposes of the Planning and Development Act 2000 and for the purposes

of the Environmental Impact Assessment Directive, and amounts to an inappropriate and

invalid consideration in the manner that is set out at paragraph 9.4 of the Inspector’s Report

as adopted by the Commission in its decision and as enshrined in condition 1 of the

permission.

The Commission’s Position

15. Core Ground 2 is without substance and denied. By way of preliminary objection

and/or relevant to the Court’s discretion to refuse relief, whereas not readily apparent from

the manner in which Core Ground 2 has been pleaded, the Applicants cannot raise the

complaint now advanced at Core Ground 2 regarding turbary rights in circumstances where

the complaint involves an impermissible ius tertii. As noted by the Inspector (as section 9.4

of the Inspector’s Report) ‘Mr Derek and Patrick Deane have raised the issue of Turbary

Rights. The issue raised is that Turbine 3 and its underground cables will be taking over

their turbary rights where they prepare and store their turf. A map was not submitted with

the observation as to the exact location or extent of the lands referred to.’ However, Derek

and Patrick Deane are not named Applicants in these proceedings. The Commission submits

that the Applicants cannot obtain certiorari on this ground in the circumstances. The

Applicants cannot invoke third-party rights or rules to protect those rights in order to

invalidate the Commission’s Decision. The law is clear in this regard.

16. Without prejudice to the foregoing objection, which of itself serves to dispose of Core

Ground 2 contra the Applicants, the assertions advanced at Core Ground 2 involve the

Applicants incorrectly reading the Commission’s Decision, and in particular section 9.4 of the

Inspector’s Report (and the Notice Party’s Community Engagement Report referenced in

same), in the most erroneous way possible so that the Applicants can obtain an order of

certiorari. The Applicants’ complaints alleging defective EIA and breach of certain third-

party property rights are thus based on an erroneous premise. Correctly interpreted, and

when read in a way that makes sense and renders the Decision valid rather than invalid,

there is nothing unlawful arising in respect of any aspects of section 9.4 of the Inspector’s

Report. It is not the case that the third parties have been ‘unilaterally deprived of the

property rights’ as tendentiously and incorrectly asserted by the Applicants (§23, Statement

of Grounds, §54 of the Applicants submissions), nor have the Commission, by reason of

Condition 1 attached to its Decision, ‘authorised the Notice Party to permit a scheme of

compensation in respect of the interference with property rights as a mitigation measure

which determination is ultra vires the Respondent, contrary to the Constitutional protection

in respect of property rights, contrary to Council Directive 2011/92EU (as amended)’ as

tendentiously and incorrectly asserted by the Applicants (§28, Statement of Grounds, §59

of the Applicants’ submissions). All that the Community Engagement Report does is indicate

the manner in which the Notice Party would seek to resolve an issue regarding third-party

turbary rights that may potentially arise in certain specific locations where sites will need to

be temporarily closed off on health and safety grounds. The third-party rights holders are

not obliged to do anything in this regard in terms of the suggested steps the Notice Party

would take in those circumstances (i.e. whereby the Notice Party would offer compensation

or alternatively possibly offer an unused turf bank from which to cut while the rights holders’

own turf bank is inaccessible). That lack of obligation in this regard is, in fact, clear from

the Inspector’s reference to s.34(13) and §5.13 of the Development Management Guidelines

(2007). It is incorrect, and a misreading of the Inspector’s Report and the Commission’s

Decision, for the Applicant to contend that Condition 1 in some respect unilaterally and

against non-consenting third parties, authorises a compensation scheme or the relocation of

property interest to an alternative location, as the Applicants assert at Core Ground 2.

Therefore, the Applicants' assertions regarding asserted deprivation of constitutional

property rights are misconceived. The Community Engagement Report does not purport to

unilaterally deprive anyone of property rights. Furthermore, the planning permission does

not authorise the compulsory acquisition or extinguishment of third-party property rights.

17. In addition, and relatedly, the Applicants’ assertions (at e.g., §60 Applicants

submissions) regarding s.34(13) of the 2000 Act are incorrect and do not reflect a correct

understanding of that subsection or the Commission’s Decision or the Report of its Inspector

and accordingly reveal no valid complaint. Section 34(13) of the 2000 Act provides that a

person shall not be entitled solely by reason of a permission under s.34 to carry out any

development. The consequence of this subsection is that even if there was an issue as to

landowner consent or consent in relation to third party turbary rights, it only arises after

permission has been granted. There is no obligation on the Commission to be certain that

the development can be carried out before approval can be granted. Section 34(13) implies

precisely that. If third-party consent is required to implement the development but is not

forthcoming, that does not invalidate the planning permission. Any contention to the

contrary by the Applicants is incorrect and contrary to settled law.

Notice Party’s Position

18. There was no failure by the Commission to address submissions with respect to

turbary rights, and in any event those submissions were made by third parties and the

Applicants do not have standing to bring this claim, which comprises a jus tertii. The

Commission did not act ultra vires in imposing Condition 1 of the Permission, and the

Applicants are fundamentally incorrect in contending that Condition 1 together with the

mitigation measure pertaining to compensation for loss of turbary rights resulted in the

extinguishment of any property rights, or the unilateral approval of any compensation

scheme. Condition 1 had no such effect and the Applicants’ contention to the contrary has

no evidential or legal basis. Moreover, the consent of turbary rights holders was not required

for the Notice Party to make the application for development consent, where only the consent

of the legal owner of the land is required. Core Ground 2 should be refused.”

63. The basic reason why this point fails is that it is a ius tertii. Insofar as it is argued as an EIA

assessment point, the applicants read the decision as invalidly failing to carry out an assessment of

impact on material assets, but that is a reading designed to produce certiorari rather than a reading

as valid. The valid reading is to say that the assessment is carried out on the assumption that the

development is going to be carried out. If it can’t be carried out due to third-party rights then it

can’t. That doesn’t make the EIA invalid.

Core ground 3 – overhang

64. Core ground 3 is:

“3. The Respondent erred in law in granting permission for a Development which permits

a structure to be constructed on and/or over the public road, to interfere with a public right

of way/public rights and which interference with the public road, amounts to a public

nuisance and where the right enshrined in the public road to pass or repass is not limited in

terms of its vertical extent and where accordingly the decision is unreasonable, is contrary

to law, was made without any or any appropriate consideration of the nature and extent of

public road L5041 which is entitled to be maintained without limitation or interference, public

safety, did not have regard to submissions made and the decision is accordingly ultra vires

the Respondent, invalid and void.”

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

“Applicants Position

20. The Respondent failed to have regard to the significance of part of a structure being

constructed over and extending across the public road, to the traffic hazard both for

equestrian use, vehicles and cyclists that will arise, failed to properly consider the Applicant’s

submissions in this regard, failed to have regard to relevant considerations, failed to apply

to principles of audi alteram partem and natural and/or constitutional justice acted ultra

vires in permitting a Development specifically which encroaches on and over the public road

and accordingly the Decision is ultra vires the Respondent made without jurisdiction is bad

in law and amounts to an error of law on the face of the record and renders the Decision

invalid and void.

The Commission’s Position

21. Core Ground 3 is without substance and denied. As pleaded, it does not amount to

a legal ground. It discloses no route map from the complaint made to the relief claimed.

Whereas it is the case that Turbine T3 is located approximately 70m from the paved surface

of the L5041 and will, in certain wind directions (SE or NW) extend 11.5m beyond the nearest

edge of the public road, and Turbine T4 is located approximately 13m from the paved surface

of the L5041 and therefore in certain wind directions (SE or NW) the blade will extend

approximately 68.5m beyond the nearest edge of the public road, there is nothing unlawful

about that and/or the Applicants have not demonstrated any unlawfulness or legal infirmity

arising by reason of those matters. The Applicants’ pleaded complaint does not identify any

specific legal provision or obligation that is breached or purportedly breached by reason of

the foregoing matters. The Applicants written submissions likewise do not identify any such

provision or obligation. This point is again one advanced only on the basis of mere assertion.

22. The Applicants are, in substance, incorrectly conflating their non-expert mere

assertion with the separate and distinct right of an individual who is specially affected by the

unlawful obstruction of a public right of way, litigating a claim through a plenary action in

public nuisance (the latter is not established legally or factually). Public nuisance via

unreasonable obstruction of a public right of way has not been demonstrated or established

at all. In this connection, it merits recalling the general point that normally only the Attorney

General may bring an action to enforce the public law or enforce public rights, and that

insofar as there are exceptions to that, none appear to apply here and/or it is not contended

by the Applicants that they do. However, the position that pertains here does not involve

public nuisance at all but rather the regulation under the planning code of a renewable

energy windfarm development, a development which the Commission considers to be of

strategic or national importance, where the grant of permission has been determined in

accordance with proper planning and sustainable development, and with the Commission

having carried out an EIA and AA of the project, all through the presumptively lawful use of

statutory powers. The erroneous supposition of Core Ground 3 is that an unlawful

interference with a public road and a tort of public nuisance has occurred when, in fact, it

hasn’t.

23. Furthermore, the assertion at Core Ground 3 regarding ‘public safety’ is merely that,

an assertion, for which there is no basis or factual foundation, having regard to the

information and evidence that was before the Commission. The impermissible non-expert

merits-based submissions and mere assertions advanced by the Applicants on this point do

not amount to a legal ground of challenge to the validity of the Commission’s Decision. Such

assertions aside, as regards the evidence and information that was before the Commission,

it is to be noted, for example, that health and safety during the construction phase of the

proposed development is considered in Chapter 5, Section 5.9.2.1 of the EIAR. Furthermore,

turbine safety during the operational phase is outlined in Chapter 5, Section 5.5.4 of the

EIAR (wherein, inter alia, it states that ‘Turbines pose no threat to the health and safety of

the general public. The Department of the Environment, Heritage and Local Government

(DoEHLG)’s ‘Wind Energy Development Guidelines for Planning Authorities 2006’ state that

there are no specific safety considerations in relation to the operation of wind turbines.

Fencing or other restrictions are not necessary for safety considerations. People or animals

can safely walk up to the base of the turbines’). In addition, the risk of collapse or damage

to structures (i.e. turbines) is considered in Chapter 16 of the EIAR (see e.g. §16.4.1.3,

Table16-5 and §16.4.1.5, Table 16-7). No specific issue is taken by the Applicants in relation

to any of these matters.

24. Moreover, the assertion at Core Ground 3 that the Commission ‘did not have regard

to submissions made’ and the related assertions at §32 are incorrect and contradicted by

the text of the Inspector’s Report correctly interpreted. It is clear from the Inspector’s

Report that the submissions referred to by the Applicants in this regard were considered by

the Inspector (see e.g. pages 21, 45, 191 (§22.1.4) and §22.0 of the Inspector’s Report).

Where, as here, the Commission states that they had regard to something, then an applicant

has an onus to displace that. In this present case, the position is that any issues raised in

submissions are stated to have been considered, and the Applicants have not displaced that

evidentially. Lack of narrative discussion does not give rise to a presumption of lack of

consideration. The Inspector (and the Commission who agreed with the Inspector), being

aware of the location of each of the 7 turbines and their extent and the swept path area of

the blades, preferred the information and analysis submitted by the Notice Party regarding

operational impacts of the proposed development in relation to traffic and transport

(including in relation to the relevant section of the L5041). It is noted that the Inspector,

having considered the information in the EIAR (see e.g. page 197 of the Inspector’s Report),

concluded at page 202 that ‘I am satisfied that there will be no significant adverse impacts

in relation to traffic during the operational phase due to the small daily traffic flow generation

(3 Car/LGV trips).’

25. In addition, as regards the information that was before the Commission on the

subject application, which it considered in reaching its Decision, as noted by the Inspector

(at page 203 of the Inspector's Report), Tipperary County Council Roads Section's Report

dated 26 November 2023 had no objection to the proposed wind farm development subject

to a number of roads conditions (which are detailed at section 4.2 of the Inspector's Report).

Further, as noted by the Inspector (at page 74 of the Inspector's Report), one of the findings

of the Traffic and Transport Assessment (TTA) undertaken by the Notice Party is that ‘there

will be a long-term imperceptible impact on traffic created during the operation phase of the

proposed wind farm.’ It is also to be noted that the planning authority, Tipperary County

Council, had no objection to the overhang of Turbines T3 and T4 and did not see it as a

traffic/road safety issue. In addition, it is clear from the Commission’s Decision and the

Report of its Inspector, on a correct and valid interpretation of same, that in the knowledge

of the location and possible dimensions of Turbines T3 and T4 (as contained in the planning

application documentation which the Commission and Inspector considered), that the

Commission and the Inspector were evidently satisfied that there is adequate safety distance

in the air space between the bottom of the turbine blade and any traffic that may be passing

underneath on the public road. The Applicants' assertions at §31 and elsewhere in the

Statement of Grounds (and repeated in their written submissions) regarding traffic safety

hazards are speculative and unsupported by meaningful evidence.

Notice Party’s Position

26. Core Ground 3 fails entirely to identify any legal complaint that could result in

certiorari of the Decision. No evidential basis has been adduced to support the contention

that the Proposed Development would interfere with a public right of way or amount to a

public nuisance or create a traffic hazard. No stateable legal basis for the Applicants’ pleas

have been identified, even if such evidence had been adduced. Insofar as the Applicants

seek to rely on the Affidavit of Mr Lavelle in support of this Core Ground that Affidavit is

inadmissible. Even if it were admissible, which it is not, in the absence of cross-examination

the Notice Party’s evidence – which in any event clearly establishes that the evidence of Mr

Lavelle is incorrect – must be preferred. Core Ground 3 should be refused.”

66. The basic reason why this point fails is that even assuming that the applicants can assert

breach of public rights of way, it has not been evidentially established that this will cause any actual

inconvenience still less obstruction, nuisance or danger to any of the applicants, of the type discussed

by Mr Bland SC in Highways (Round Hall 2020) at pp. 158-163. The applicants argue that an

“extraordinary large” rotating blade looming out of the mist over a road would be “simply terrifying”

for motorists, let alone for horses or cyclists for example, and like “something out of a Stephen King

novel”. While I would not dismiss that as wholly fanciful, it is a bit speculative for present purposes.

The assessment of public safety is a matter for the statutory decision-takers. The council, which

wasn’t exactly sympathetic to the project, did not see a safety issue here.

67. The complaint of lack of consideration of submissions is the classic applicant’s fallacy that

equates lack of narrative discussion with lack of legal consideration. The applicants haven’t

discharged the onus of proof to show a failure in legal consideration here. A decision-taker is

presumed to have considered what she says she has considered, unless an applicant proves

otherwise, which these applicants haven’t done.

Core ground 4 – waste

68. Core ground 4 is:

“4. The Respondent erred in law and failed to consider the nature and extent of waste

arising from the proposed development, and in particular the nature, extent and quantity of

waste materials that is required to be excavated and disposed of, and which waste is to be

disposed of on the site and referred to ‘peat and/or spoil deposition areas’, failed in respect

of the right of public participation under Article 17, 18 and 19 of the Planning and

Development Regulations 2001 and Article 3 and 6 of Council Directive 2011/92EU, gave no

appropriate consideration to the issue of waste generation and disposal which, having regard

to the quantity and nature of the material, is such as to require in and of itself an

Environmental Impact Assessment, requires a Waste Licence, and which is a specified

development for the purposes of the Environmental Protection Agency Act 1992 and

Schedule 5 of the Planning and Development Regulations 2001.”

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

“Applicants Position

28. The definition of waste is any material that is discarded or required to be discarded

and the excavation of the material required given the nature and depth of the subsoil and

the inherent instability of this material for the purposes of constructing the said wind turbines

together with the catastrophic consequences of similar structures constructed in south

Galway, the subject matter of judgements of the European Court of Justice in the

Commission v Ireland, is such as to require a detailed assessment which would include

specific design of the structure, as defined in Section 2 of the Planning and Development Act

2000, the manner in which the said material is to be excavated, transported and deposited

on the lands, the measures in order to prevent the discharge of material, design constraints

in respect of its structural stability, the considerations of alternative methods of disposal,

and consideration of additional regulatory consents that will be required.

The Commission’s Position

29. Core Ground 4 is without substance and denied. By way of preliminary objection,

the Applicants lack standing to raise the complaint now advanced at Core Ground 4 in

circumstances where they could have, but without explanation, did not raise such points in

the planning process before the Council at first instance or before the Commission on appeal.

Further, or in the alternative, and without prejudice to the foregoing, given the failure to

raise said complaint in the decision-making process, in the exercise of its discretion, the

Court should refuse to grant relief to the Applicants on this ground.

30. The matters raised at Core Ground 4 regarding Article 22(2) compliance should be

read in conjunction with the Commission's response to Core Ground 1 above, which

addresses the Applicants' complaints regarding compliance with the 2001 Regulations.

31. Without prejudice to the aforesaid objection, Core Ground 4 is based on the

erroneous premise that the proposed development is one in respect of which a waste licence

is required. It is not. The planning application herein does not relate to a development

which comprises or is for the purposes of an activity requiring an integrated pollution control

licence, or an industrial emissions licence, or a waste licence (and/or the Applicants have

failed to establish that it is), and so indication of that fact was not required to be contained

in the public notices, and the Commission’s Decision is therefore not contrary to Article 17,

18 and 19 of 2001 Regulations as alleged or at all, and the Applicants’ non-expert mere

assertions to the contrary are incorrect. There is no basis to the assertion that there has

been any breach of requirements concerning public participation. The Applicants could have

made the point now advanced during the process, were not impeded from doing so or

prejudiced in any way, they simply did not do so. Insofar as the Applicants contend the

complaint refers to public participation of third parties generally, that is an impermissible ius

tertii and cannot be maintained and is not a plausible basis on which to seek certiorari of the

Commission’s Decision or any other relief. Further, the complaint at Core Ground 4 and the

related pleas at §33 to §34 is framed in unduly high-level abstract and generic terms and

comprises mere assertion that is inadequately particularised contrary to Order 103 rule

14(3) and/or Order 84 rule 20(3) RSC, with no specific aspect of the planning application

documentation referenced and no sufficiently particularised route map from the complaint

made to the relief claimed. This is a further reason to refuse relief in relation this ground.

32. Furthermore, regarding Core Ground 4, correctly interpreted and read in a manner

that renders the decision valid rather than invalid, the evidence before the Commission in

relation to ‘peat and/or spoil deposition areas’ makes it clear that there is no substance to

this ground. It is noted that Appendix 4-2 of the EIAR contains a detailed Peat and Spoil

Management Plan. There is also a detailed Peat Stability Risk Assessment at Appendix 8-1

of the EIAR. The Peat and Soil Management Plan is addressed at Chapter 4, §4.3.7 of the

EIAR. The Peat and Spoil Management Areas are addressed at Chapter 4, §4.3.7.2 of the

EIAR. There is no basis to the underlying assertion at Core Ground 4 (that a waste licence

is required) and same is premised on the Applicants’ misconception as to what the proposed

development entails as regards the excavation, storage and re-use of peat and spoil on site.

The problem for the Applicants is that a waste licence is not required for the proposed

development and/or the Applicants have failed to establish that one is required as now

alleged in these proceedings. Accordingly, the contention that the planning application and

the Commission’s Decision are invalid is without substance – these assertions are not

substantiated or in any way supported by the evidence that was before the Commission.

33. Without prejudice to the foregoing, if (which is denied) the proposed development

did require a waste licence as alleged by the Applicants, this does not provide a basis for

quashing the Commission’s Decision – having regard to the totality of the evidence that was

before the Commission and the Commission’s EIA conclusions relevant to same, and the

point that the Commission’s Decision does not authorise any activity which required a waste

licence, noting s.34(13) of the 2000 Act (which provides that a person shall not be entitled

solely by reason of a permission under s.34 to carry out any development).

34. In addition, the EIA that the Commission completed was a full assessment carried

out in accordance with the requirements applicable to that assessment. The Commission

was fully entitled to rely on the evidence and materials that were before it in the manner it

did. The Applicants are plainly incorrect in asserting that a further EIA was required and/or

that the EIA that was carried out is incomplete in some unspecified way in relation to peat

and spoil, as appears to be contended without basis by the Applicants. Indeed, it is clear

from, for example, Chapter 4 of the EIAR, Appendix 4-1, and Appendix 8-1 of the EIAR and

from, for example §13.5, §15.4, §15.5.1, §15.6.1, §15.7.1.5 and §19.7.1.3 of the

Inspector’s Report, that peat and spoil were the subject of the EIA that the Commission

lawfully carried out. The Applicants have not advanced or adverted to any scientific and/or

expert evidence to impugn the rationality of the Commission’s conclusions for EIA purposes

by reference to the material before the Commission. The non-expert assertions and merits-

based submissions by and on behalf of the Applicants (who are the litigants in this action

and are not independent) are not a basis for and do not establish any inadequacy or

deficiency in the EIA carried out by the Commission nor any inadequacy in any of the

information or supporting documentation which was before was the Commission that was

submitted by the Notice Party in the course of the planning application process.

Notice Party’s Position

35. The contention in Core Ground 4 that a waste licence was required for the Proposed

Development and/or that the Decision was invalid by reason of the failure to obtain a waste

licence must be rejected, for the same reason as the equivalent plea in Core Ground 1. The

claim that there was an inadequate assessment of peat stability, whether for the purposes

of the EIA Directive or otherwise is also incorrect. There is no evidential or legal basis for

that claim, which fails entirely to engage with the detailed assessment of peat stability that

was in fact carried out by the Commission. Core Ground 4 should be refused.”

70. Even leaving totally aside whether digging a hole in soil or peat and depositing the matter

so dug somewhere else on the development site constitutes management of “waste”, and leaving

aside the applicants’ standing to raise the issue now not having raised it in the process, the problem

for the applicant is that the commission is not required to analyse an application through the lens of

waste management legislation. If licensing is required for waste-related activities then that is a

matter for a separate statutory process. There is no general requirement for the commission to

consider whether or how such separate statutory consents are going to be granted or to ensure that

such are obtained prior to the grant of permissions. This is not workable anyway as it would make

the commission a de facto supervisor of other statutory codes. Derogation licences appear to be a

potential exception but the exception does not constitute the rule.

71. Dressing this up as a “failure to consider a relevant matter” is not a valid legal procedure

because nearly anything can be represented as relevant to anything else. Failure to consider

something is only a legal ground if there is a legal obligation to consider that something (see the

point emphasised in (Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23 (Unreported, High

Court, Holland J., 23 January 2026) at 29). To put it negatively, the mere fact that X could

reasonably be considered relevant to Y does not in itself create an obligation to autonomously

consider it, or make a decision on Y invalid unless there was such a positive legal obligation to

consider X. No such obligation has been made out here. Any shortcoming in EIA has not been

established evidentially.

Core ground 5 – mitigation

72. Core ground 5 is:

“5. Conditions no. 4 and 5 are ultra vires the Respondent in respect of mitigation

measures relating to the grid connection route and where in condition 4 the mitigation

measures required in the Environmental Impact Assessment Report and in condition 5 the

mitigation measures contained in the Natura Impact Statement are required to be

implemented but where the jurisdiction to impose such conditions under Section 34(4) is

limited only to lands which are under the control of and are owned by the Applicant, and the

lands are not so owned, and where the imposition of conditions/mitigation measures over

the full extent of the route provided for the grid connection works cannot be the subject

matter of condition where mitigation measures relate to these lands as the said lands do not

within the jurisdiction conferred by Section 34(4).”

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

“Applicants Position

37. Conditions therefore to be imposed as part of a grant of planning permission and/or

mitigation measures in respect of either Council Directive 2011/92EU or 92/43EEC may only

be imposed in respect of land which is either comprised within the site outlined in red where

the written consent of the landowner must be provided if the Applicant is not the owner of

the land or under the control of the Applicant. Conditions 4 & 5 relate to mitigation

measures/conditions relating to the Grid Connection route and where the said lands do not

fall within the ambit of Section 34(4) as the said land is neither owner nor under the control

of the Developer and accordingly conditions relating to such land are ultra vires the

Respondent invalid and void.

The Commission’s Position

38. Core Ground 5 is without substance and denied. The Commission was entitled to attach

Condition 4 (which requires that the mitigation measures contained in the EIAR must be

implemented, for the stated reason ‘To protect the environment’) and Condition 5 (which

requires that the mitigation measures contained in the NIS must be implemented, for the

stated reason ‘To protect the environment and the integrity of European sites’) to its

Decision. It is misconceived in law for the Applicants to contend (as they effectively do) that

the Commission was acting in excess of jurisdiction in attaching conditions to its Decision

that require the implementation of mitigation measures arising from and in consequence of

the EIA and AA that it carried out in relation to the proposed development. In the context

of EIA, it is an assertion that is contrary to and/or inconsistent with Article 8a(1)(b) of the

EIA Directive which, inter alia, provides that the decision to grant development consent must

incorporate ‘any environmental conditions attached to the decision, a description of any

features of the project and/or measures envisaged to avoid, prevent or reduce and, if

possible, offset significant adverse effects on the environment as well as, where appropriate,

monitoring measures.’ In the context of AA, it is an assertion that is contrary to and/or

inconsistent with the fact that mitigation measures (i.e. measures that aim to minimise, or

even eliminate, the negative impacts likely to arise from the implementation of a plan or

project so that the European site’s integrity is not adversely affected) are lawfully considered

in the context of stage 2 AA, and so it does not make sense to contend (as, in effect, the

Applicants do) that a condition would not or could not be included in a development consent

that required the implementation/ carrying out of those measures.

39. Furthermore, the Applicants’ purported invocation and/or reliance on s.34(4) of the

2000 Act is mistaken and based on an incorrect premise, namely the Applicants’

misunderstanding and/or failure to engage with the factual position and evidence as regards

the issue of landowner consent and in particular the point that, as regards the grid

connection works, the evidence that was before the Commission as submitted by the Notice

Party (and which was accepted by the planning authority at first instance and which has not

been displaced or controverted by mere assertion by the Applicants in these proceedings) is

that the route of grid connection is entirely within the existing public road corridor and these

works will be carried out by a statutory undertaker and, as such, a letter of consent was not

required to be included with these works in the planning application, as Article 22(2)(g)(ii)

of the 2001 Regulations applies to the application in this respect. It is recalled that, as noted

above, Article 22(2)(g)(ii) provides ‘where the applicant is not the legal owner of the land

or structure concerned – (ii) in the case of a proposed development, or part of a proposed

development, that is in, on, over or under a public road, written confirmation that the

proposed development concerned is to be undertaken by a statutory undertaker having a

right or interest to provide services in connection with the proposed development’. That

sub-regulation applies and was complied with here by the Notice Party, to the evident

satisfaction of the planning authority in the first instance and the Commission on appeal (see

e.g. page 7 of the Inspector’s Report). It is also to be noted that in addition to the provisions

of s.34(4) of the 2000 Act, the Commission has a general power to impose conditions, other

than one of a kind listed in s.34(4), if the condition rationally accords with stated objectives

of proper planning and sustainable development and fairly and reasonably relates to the

permitted development (see e.g., Weston v. An Bord Pleanála [2008] 2 ILRM 542, [2008]

IEHC 71 at §33). It could not be contended that Conditions 4 and 5 are outside the scope

of this general power.

40. Moreover, the Applicants argument at Core Ground 5 fails to properly engage with or

reflect the fact that in the case of renewable energy infrastructure, a private developer may

be conferred with certain statutory powers (as conferred on the ESB originally by the

Electricity (Supply) Act 1927) to implement the development if it obtains an authorisation

from the Commission for the Regulation of Utilities (‘CRU’) pursuant to s.16 of the Electricity

Regulation Act 1999. (In this regard see also the uncontested affidavits of Michael Watson

and of Fergus Murphy respectively, filed by the Notice Party).

41. In addition, the Applicants, in advancing Core Ground 5 in unduly high-level abstract

terms (being a repeated feature of their case across the Core Grounds), also omit to properly

consider or engage with the fact the grid connection route in its entirety (i.e. through Co.

Tipperary and Co. Offaly) was identified, described and assessed in the EIAR submitted as

part of the subject planning application (see e.g. sections 1.1, 1.1.1, 1.1.2, 1.4, 3.2.8, 4.1,

4.3.6.4, 4.9.7.4, 4.11, 5.9.2.4, 5.9.2.6, 5.9.2.7, 5.9.3.11, 5.9.5.2, 6.5.1.1, 6.6.1.12,

6.6.1.12, 6.6.1.15, 6.6.2.4.4, 6.7.2.1.1, 6.7.2.1.2, 6.7.2.2.1, 6.7.2.2.3, 6.7.4, 6.7.5, 6.8.2,

7.2.4.2.9, 7.3.1, 7.5.5, 8.3.2, 8.3.3, 8.3.4, 8.3.5, 8.3.6, 8.3.8.5, 8.5.2.2, 8.5.7, 9.3.1, 9.3.3,

9.3.4, 9.3.7.2, 9.3.8, 9.3.9.2, 9.3.9.2, 9.3.10, 9.3.12, 9.3.13.2, 9.3.14.1.2, 9.3.14.2,

9.5.2.1, 9.5.2.4, 9.5.2.5, 9.5.2.10, 9.5.3.2, 10.1, 10.2.4.2, 11.1.1, 11.6.2.1, 12.4.1.1,

12.6.1, 12.6.2, 12.6.3.1, 12.7.1, 13.3.2, 13.3.3, 13.4.2.5, 13.4.2.10, 13.4.2.14, 13.3.2.2.3,

14.1.4, 14.2.1, 14.4.2, 14.7.2.3, 15.1.2.1, 15.1.4.1.1, 15.1.7, 15.1.11.2, 15.1.12.5,

15.3.3.2.1, 16.2.4.1, 16.3.1, 16.3.2, 16.4.1.2, and 16.4.1.5 of the EIAR). The Applicants

pleaded case and written submissions simply don’t address this inconvenient reality.

Conditions 4 and 5 are not ultra vires the power of the Commission to impose conditions.

The counterfactual supposition and mere assertion of the Applicants advanced at Core

Ground 5 does not disclose any legal invalidity or infirmity in Conditions 4 and 5. The

Applicants' complaints regarding the Commission's jurisdiction to impose conditions are

misconceived.

Notice Party’s Position

42. There is no basis for the Applicants’ contention that Conditions 4 and 5 are ultra vires

the Commission. Those Conditions require the implementation of the conditions identified

in the EIAR and the NIS. That certain of those conditions relate to the Grid Connection

route, which is located on the public road, does not mean that they are ultra vires. The

Notice Party will carry out those works as a statutory undertaker and the Applicants have

not identified any condition that the Notice Party would not be in a position to implement in

that context and in its role as a statutory undertaker. It is well established that the

Commission has a general power to impose conditions, where those conditions rationally

accord with stated objectives of proper planning and sustainable development and fairly and

reasonably relate to the permitted development, and Conditions 4 and 5 clearly meet that

standard.”

74. Conditions 4 and 5 are:

“4. The mitigation measures contained in the submitted Environmental Impact Assessment

Report (EIAFq) shall be implemented.

Reason: To protect the environment.

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

be implemented.

Reason: To protect the environment and the integrity of European sites.”

75. Insofar as it is argued that the conditions are “void for uncertainty”, this is reading the

decision as invalid where it can be read as valid. The matters envisaged by the EIA/AA

documentation have not been shown to be uncertain. Insofar as the applicants allege “ambiguity”

or “uncertainty”, there isn’t any obligation on the commission to extract particular measures from

the documentation and list them separately. The conditions speak for themselves and all measures

envisaged must be complied with. There hasn’t been shown to be anything in that that a court

couldn’t deal with if any enforcement dispute arose.

76. Insofar as this is a point about the permissibility of imposing conditions outside the control

of the applicant for permission, the position is as follows.

77. Section 34(1) of the 2000 Act provides:

“(1) Where—

(a) an application is made to a planning authority in accordance with permission regulations

for permission for the development of land, and

(b) all requirements of the regulations are complied with,”

78. Section 34(4) provides:

“(4) Conditions under subsection (1) may, without prejudice to the generality of that

subsection, include all or any of the following—

(a) conditions for regulating the development or use of any land which adjoins, abuts or is

adjacent to the land to be developed and which is under the control of the applicant if the

imposition of such conditions appears to the planning authority—

(i) to be expedient for the purposes of or in connection with the development

authorised by the permission, or

(ii) to be appropriate, where any aspect or feature of that adjoining, abutting or

adjacent land constitutes an amenity for the public or a section of the public, for the

purposes of conserving that amenity for the public or that section of the public (and

the effect of the imposition of conditions for that purpose would not be to burden

unduly the person in whose favour the permission operates);

(b) conditions for requiring the carrying out of works (including the provision of facilities)

which the planning authority considers are required for the purposes of the development

authorised by the permission;

(c) conditions for requiring the taking of measures to reduce or prevent—

(i) the emission of any noise or vibration from any structure or site comprised in the

development authorised by the permission which might give reasonable cause for

annoyance either to persons in any premises in the neighbourhood of the

development or to persons lawfully using any public place in that neighbourhood, or

(ii) the intrusion of any noise or vibration which might give reasonable cause for

annoyance to any person lawfully occupying any such structure or site;

(d) conditions for requiring provision of open spaces;

(e) conditions for requiring the planting, maintenance and replacement of trees, shrubs or

other plants or the landscaping of structures or other land;

(f) conditions for requiring the satisfactory completion within a specified period, not being

less than 2 years from the commencement of any works, of the proposed development

(including any roads, open spaces, car parks, sewers, watermains or drains or other public

facilities), where the development includes the construction of 2 or more houses;

(g) conditions for requiring the giving and maintaining of adequate security for satisfactory

completion of the proposed development;

(h) conditions for determining the sequence and timing in which and the time at which works

shall be carried out;

(i) conditions for the maintenance or management of the proposed development (including

the establishment of a company or the appointment of a person or body of persons to carry

out such maintenance or management);

(j) conditions for the maintenance, until taken in charge by the local authority concerned, of

roads, open spaces, car parks, sewers, watermains or drains and other public facilities or,

where there is an agreement with the local authority in relation to such maintenance,

conditions for maintenance in accordance with the agreement;

(k) conditions for requiring the provision of such facilities for the collection or storage of

recyclable materials for the purposes of the proposed development;

(l) conditions for requiring construction and demolition waste to be recovered or disposed of

in such a manner and to such extent as may be specified by the planning authority;

(m) conditions for requiring the provision of roads, including traffic calming measures, open

spaces, car parks, sewers, watermains or drains, facilities for the collection or storage of

recyclable materials and other public facilities in excess of the immediate needs of the

proposed development, subject to the local authority paying for the cost of the additional

works and taking them in charge or otherwise entering into an agreement with the applicant

with respect to the provision of those public facilities;

(n) conditions for requiring the removal of any structures authorised by the permission, or

the discontinuance of any use of the land so authorised, at the expiration of a specified

period, and the carrying out of any works required for the re-instatement of land at the

expiration of that period;

(o) conditions in relation to appropriate naming and numbering of, and the provision of

appropriate signage for, the proposed development;

(p) conditions for requiring, in any case in which the development authorised by the

permission would remove or alter any protected structure or any element of a protected

structure which contributes to its special architectural, historical, archaeological, artistic,

cultural, scientific, social or technical interest—

(i) the preservation by a written and visual record (either measured architectural

drawings or colour photographs and/or audio-visual aids as considered appropriate)

of that structure or element before the development authorised by the permission

takes place, and

(ii) where appropriate, the architectural salvaging of any element, or the re-

instatement of any element in a manner specified by the authority;

(q) conditions for regulating the hours and days during which a business premises may

operate.”

79. In McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 16 July

2025) there was a challenge to the commission’s failure to impose conditions requiring third parties

to take certain steps. I held that the tenor of sub-s. (4) overall was that it related to steps that an

applicant for permission could actually take, and that it would be unworkable and illogical to read a

general power to impose conditions as extending to imposing conditions which the applicant for

permission can’t satisfy, in particular by reason of not controlling land the control of which would be

required to satisfy the condition concerned. However the applicants somewhat overinterpret this

principle. The point is that if the commission thinks that an applicant for permission cannot

meaningfully bring about compliance with a proposed condition, then it cannot impose such a

condition. If on the other hand the commission envisages that an applicant for permission will be in

a position to bring about compliance, even in relation to matters not the subject of her own property

rights, then the commission can impose such a condition. Absolute certainty isn’t required any more

than that the commission is supposed to be absolutely certain that a development can lawfully be

carried out. The commission must act reasonably, but that discretion hasn’t been exceeded here.

80. The basis of the condition here was that the grid connection works would be carried out by

the developer either with the consent of landowners or under the special statutory extension of the

concept of a statutory undertaker – that hasn’t been shown to be unlawful. There isn’t anything

unreasonable about such options and it would be unworkable to expect more of a developer.

Core ground 6 – publication

81. Core ground 6 is:

“6. The Respondent failed to comply with the requirements of Section 146 of the

Planning and Development Act 2000 where there is an obligation to publish documents on

the online file where the Respondent decides to do so and where all the Reports and

Documents related to the decision must be published, and where the Report of the Ecologist

upon which the Inspector relied was not published and could not have been considered by

the Applicants, and the basis of the decision of the Respondent could not be understood,

and where no reason was given, contrary to the said provision.”

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

“Applicants Position

44. The Respondent erred in law and failed to comply with its obligations under Section

146 of the Planning and Development Act and in particular Section 146(5) which provides

that within 3 days following the making of a Decision on any matter the document shall be

made available for inspection at the Board’s offices and shall be made available by the Board

where it is decided to allow inspection of the said documents by electronic means. The

obligations contained in Section 146(5) were not complied with in that a number of

significant reports and most particularly the report of the Ecologist commissioned by the

Board to prepare a report and where the report recites that report was relied on both by the

Inspector and by the Board was not made available in accordance with the obligations and

the failure to make these documents available as required by law amounts to a breach of a

mandatory statutory obligation, is contrary to the Respondents obligations both under Irish

Domestic Law and European Community Law where the rights of public participation are

enshrined including the right to review a decision and accordingly the said failure being in

breach of Irish Domestic Law and European Community Law renders the Decision of the

Respondent invalid and void.

45. The failure to disclose the Report constitutes a failure to give reasons as in the

absence of the report it is impossible to make any judgement as to the basis upon which the

said decision was made where the Report which was primarily relied upon to carry out the

assessment for the purpose of Council Directive 92/43EEC was not made available.

The Commission’s Position

46. Core Ground 6 its height goes to declaratory relief only and does not go to the

validity of the Commission’s Decision and does not constitute grounds for certiorari of the

Commission’s Decision.

47. As set out at §65 of its Statement of Opposition, the Commission has admitted that,

due to an inadvertent administrative error, there was a delay by the Commission in the

publication on its website of the Inspectorate Ecologist’s Technical Note dated 12th March

2025. The said Technical Note on the Commission’s website was not made available on the

Commission’s website on the third day following the making by the Commission of its

Decision. In that respect it is admitted that there was a non-compliance with s.146(5) and

(7) of the 2000 Act. However, the error of non-publication on the website was rectified by

the Commission on 19th September 2025 when the said Technical Note was published on

the Commission’s website under the title ‘Additional Inspector’s Report’. Thus, compliance

did occur albeit after a modest delay – the delay is not such as to give rise to any basis for

certiorari. Furthermore, and a factor relevant to the Court’s discretion to refuse certiorari,

it is not in dispute but that the said Technical Note was at all material times available (and

remains available) for inspection by the Applicants and the public at the Commission’s offices

had they wished to do. It is noted that Mr. Danny Smyth, of the Applicants’ solicitor’s office,

requested to access the Commission’s file through public access, in person, on 2nd

September 2025. In addition, it is noted that Mr. Smyth sent an email to the Commission’s

Public Access Team on 3rd September 2025 requesting a copy of the ‘Ecological Report by

Kate Harrington dated January 2025’. The Commission’s Public Access Team responded to

Mr. Smyth to outline that the Commission could not find any reference to such a report and

enquired as to whether ‘it was submitted by the Applicant or by an observer’, and noted that

if his request was time sensitive, that it might be prudent for him to attend the Commission’s

offices to inspect the public file. There was no further response from Mr. Smyth in this

regard.

48. Consistent with the relevant settled law (see e.g. Clonres CLG (No.2) [2021] IEHC

303 at §22; Carrownagowan Concern Group (No.2) [2024] IEHC 300 at §105; Eco Advocacy

[2025] IEHC 15 at §64(i) and §87(ii)) the Commission’s position is that since the placing of

materials on the website under s.146(5) and (7) of the 2000 Act occurs after the decision,

non-compliance cannot be a basis for quashing the Commission’s Decision. The Applicants

participated fully in the appeal before the Commission and no prejudice to the Applicants

has been demonstrated nor is a claim of prejudice to the Applicants pleaded at Core Ground

6. Evidence of prejudice is required and is absent here (see e.g. Eco Advocacy [2025] IEHC

15 at §64(ii)). No actual unfairness to the Applicants contrary to their rights has been

demonstrated. The Commission submits that insofar as there was limited non-compliance

s.146(5) and (7) of the 2000 Act, same did not give rise to any duly pleaded and evidenced

harm to the Applicants’ participation in the process and is therefore not a basis for certiorari

of the Commission’s Decision. The problem for the Applicants is that it is settled law that

(i) a decision does not become invalid if it is not published, and (ii) absence of publication /

failure to publish something after the decision has been made does not result in the invalidity

of the Decision. In this case, online publication of the Inspectorate Ecologist’s Technical

Note did occur, albeit belatedly. The non-compliance identified goes to declaratory relief

only. The non-compliance with s.146(5) and (7) of the 2000 Act is not such as to render

the Commission’s Decision invalid or to warrant the grant of certiorari, such relief would be

disproportionate in the circumstances (which is a legitimate basis to refuse same in the

exercise of the Court’s discretion: see e.g., Save the South Leinster Way (No.2) [2025] IEHC

541 at §53(ii)(j); Eco Advocacy [2025] IEHC 15 at §147-§156; Massey (No.2) [2025] IEHC

206 at §170)). In particular, the grant of certiorari would be a disproportionate remedy in

circumstances where: (a) the delay in publication was modest; (b) publication did

subsequently occur; (c) the Technical Note was at all material times available for inspection

at the Commission's offices; (d) the Technical Note was expressly considered and addressed

in the Inspector’s Report (see e.g., sections 14.8.18 and 14.8.19) (e) no prejudice to the

Applicants has been demonstrated or pleaded; and (f) the Applicants participated fully in the

appeal process before the Commission.

49. The Commission has pleaded (§68, Statement of Opposition) that it will consent to

the grant of a Declaration in similar terms as the declaration made in Carrownagowan

Concern Group (No.2) [2024] IEHC 300 at §192(i). The Commission wrote to the Applicants’

solicitors on 14th November 2025 explaining the Commission’s position on Core Ground 6,

including as regards declaratory relief. No response from was received. However, the

Applicants - without any acknowledgement of the Commission’s concession of declaratory

relief as aforesaid or reply to the aforesaid correspondence - are seemingly persisting with

pursuit of certiorari of the Commission’s Decision on Core Ground 6, notwithstanding the

appropriate concession of declaratory relief as aforesaid, and without the Applicants referring

to, still less engaging with, any of the aforementioned case law regarding publication. The

Commission’s position is therefore that, noting the provisions of Order 103 rule 39(2)(b)

RSC, such conduct by the Applicants give rise to the possibility of setting off the costs

incurred by the Commission in defending any continued pursuit of certiorari of the

Commission’s Decision on Core Ground 6, as against any costs to which the Applicants may

be entitled in consequence of the Commission’s concession of declaratory relief.

50. In addition, insofar as the Applicants in effect contend that no reasons were given

or inadequate reasons were provided by the Commission for its Decision or that the

Appropriate Assessment (AA) carried out by the Commission was in some way defective or

that the Applicants could not understand same by reason of the non-publication of the

Inspectorate Ecologist’s Note on the Commission’s website, any such contentions are

misconceived, fundamentally misunderstand the nature of s.146(5) and (7) of the 2000 Act

and the Commission’s Decision, and reveal no valid complaint. As to AA, the Commission’s

Decision and its conclusions in relation to AA are entirely clear and understandable from the

Commission’s Order (at pages 6 and 7) and the Report of its Inspector (which Report the

Commission expressly adopted and accepted in relation AA, as set out in terms at page 7 of

the Order). The Inspector’s Report also expressly considers and addresses the Technical

Note from the Inspectorate Ecologist (see e.g., sections 14.8.18 and 14.8.19 of the

Inspector’s Report). As regards stage 1 AA screening and stage 2 AA, the 309-page

Inspector’s Report is extremely detailed (see e.g. pages 215 to 221 and 241 to 309) and

there is no basis to the Applicants incorrect mere assertions that it is unclear as to how

concerns raised by the Department of Housing, Local Government and Heritage (DAU)

(referred to by the Applicants at §49 as the ‘National Parks and Wildlife Service’) were

addressed. The concerns raised by the Department of Housing, Local Government and

Heritage (DAU), including in an AA context, were expressly considered in detail and lawfully

by the Inspector (see e.g. §5.1.2, §14.1, §14.8.1- §14.8,17, §16.10.1, §26.1, §26.3.1, of

the Inspector’s Report) and by the Commission who agreed with and adopted the Inspector’s

Report, including expressly in relation to AA as aforesaid).

Notice Party’s Position

51. Core Ground 6 is primarily a matter for the Commission to address. For the

avoidance of doubt, however, the Notice Party does not accept that the delay in publishing

the Technical Note at issue in Core Ground 6 could justify certiorari. Rather, Core Ground 6

its height goes to declaratory relief only and does not go to the validity of the Commission’s

Decision or constitute grounds for certiorari of the Commission’s Decision. Nor does it justify

– as the Applicants appear to contend – the Applicants adducing new evidence or relying on

unpleaded grounds.”

83. There is no dispute about the fact that there was a breach of the statute due to delayed

publication. Importantly, this did not affect the decision-making process – it related to delay in

publication of documents after the decision had been made. Nor is there anything more than the

speculative or academic to suggest that this delay negatively affected the right of access to the

court. In such circumstances, all that the commission were prepared to concede was a declaration.

The applicants in oral submissions accepted the declaratory relief offered and did not advance further

submissions as to why any other relief arises. In such circumstances I will grant the conceded

declaration. The question of costs is discussed further below.

Core ground 7 – noise

84. Core ground 7 is:

“7. The Respondent erred in law in imposing Condition 11 relating to the noise levels

which condition is unreasonable and inconsistent with Article 40.3 and 40.5 of the

Constitution in respect of the nearest noise sensitive receptor dwelling which condition is

ultra vires the Respondent and is contrary to the requirements of Council Directive

2011/92EU in terms of its impact on human beings/human health, material assets and

cannot amount to a mitigation measure for the purposes of the Directive and accordingly

the decision is invalid and void.”

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

“Applicants Position

53. The Respondent erred in law and acted unreasonable in the manner in which it

addressed the submissions and the effects arising from noise and in the imposition of

condition 11, and where the units set out therein are unreasonable, cannot be construed as

mitigation measures or were formulated with the expertise required by Article 5(3) of the

Directive, contrary to the legitimate expectation that the conditions would reflect

undertakings that the Notice Party gives under Appendix 2-2 of the Environmental Impact

Assessment Report regarding standards in the Wind Energy Development Guidelines 2019,

and were not considered in respect of interaction with regard to property values and human

health, and are inconsistent with and contrary to Council Directive 2011/92EU and Council

Directive 92/43EEC, contrary to Article 40.3 and 40.5 of the Constitution, ultra vires the

Respondent and void.

The Commission’s Position

54. Core Ground 7 is without substance and denied. The Commission was entitled to

impose Condition 11 and there is nothing unlawful about same. Condition 11 is not

unreasonable nor inconsistent with Article 40.3 and 40.5 of the Constitution, nor is same

contrary to the requirements of the EIA Directive. Core Ground 7 is based only on the

Applicants’ incorrect interpretation of Condition 11 and on the Applicants’ misreading of that

Condition and the Commission Decision in a way that renders same invalid rather than valid,

which is the incorrect approach. None of the Applicants’ complaints and assertions in the

sub-grounds for Core Ground 7 are made out. The Applicants are incorrect to contend,

without basis, that the Notice Party cannot comply with Condition 11. The impermissible

non-expert merits-based mere assertions of the Applicants do not disclose any legal infirmity

or any deficiency in Condition 11. Furthermore, following or applying matters contained in

the WEDG 2006 (to which only a ‘have regard to’ obligation applies) over matters contained

in the Draft WEDG 2019 does not involve any legal error or invalidity (see generally Nagle

View [2024] IEHC 603, Rural Residents (I) [2025] IEHC 600). Insofar as the Applicants

contend otherwise, such contention is incorrect.

55. The Applicants’ erroneous interpretation of Condition 11 is apparent from a correct

reading of the condition itself in its proper context and having regard to the relevant

materials that were before the Commission. In relation to the attachment of Condition 11,

same reflects the condition recommended by the Inspector (recommended condition 14 at

pages 232-233 of the Inspector’s Report). It is also relevant to consider the basis for the

recommended attachment of said condition, which followed a detailed consideration and

analysis by the Inspector at section 19.0 of the Inspector’s Report (see e.g. pages 154 to

166). The Commission’s Inspector fully assessed the impacts from noise. The Inspector

(with whom the Commission agreed) was satisfied (at §19.8) that ‘the potential for

significant adverse noise and vibration impacts can be avoided, managed and/or mitigated

by measures that form part of the proposed scheme, the proposed mitigation measures and

through suitable conditions. I am therefore satisfied that the proposed development would

not have any unacceptable direct, indirect or cumulative noise and vibration impacts.’ This

is a conclusion that was open to be reached by the Inspector and the Commission and one

that has not been demonstrated to be irrational or unreasonable by the Applicants herein,

who advance Core Ground 7 on the basis of impermissible non-expert mere assertion. As

regards the recommended attached of Condition 11 §19.7.2.1 of the Inspector’s Report is

also to be noted. it was within the discretion and power of the Commission to attach a

condition in relation to noise (in this case Condition 11) based on the WEDG 2006. The

WEDG 2006 are the relevant s.28 guidelines to which regard was had by the Commission.

On a correct interpretation of the Commission’s Decision and the Report of its Inspector, the

noise limit imposed per Condition 11 was not slavishly adopted from the 2006 WEDG but

adopted against the case-specific assessment of noise that was carried out by the Inspector

(with which the Commission agreed and adopted).

56. Albeit noted in the context of potential landscape and visual impacts for EIA

purposes, it is nevertheless apposite to note the point made by the Inspector (at pages 186-

187 of the Inspector’s Report) that a setback distance of at least 700m from the turbines

has been achieved for all residential properties in the vicinity of the proposed windfarm

development, that the 500m set back distance in the WEDG 2006 has been achieved (and

exceeded) and the general point made in the WEDG 2006 that ‘noise impacts are generally

not significant if the nearest turbine is more than 500 meters away from any noise-sensitive

property (Section 5.6).’

57. At §19.5 of the Inspector’s Report, the Inspector noted details from the EIAR

regarding proposed mitigation in relation to noise in respect of the operational phase of the

windfarm. At §19.6, the Inspector noted the point that ‘Overall, it was predicted that without

mitigation there would be no significant cumulative residual construction or operational noise

effects.’ The Inspector also confirmed at §19.7 that ‘I have examined, analysed, and

evaluated Chapter 12 and associated Appendices 12 – 1 and 12 - 2 of the EIAR, and the

submissions on file in respect of Noise and Vibration’. In relation to the use of the WEDG

2006 see also in relation to the use of WEDG 2006, see also §19.7.1.1 of the Inspector’s

Report

58. Insofar as Core Ground 7 alleges that the Commission set an incorrect standard in

relation to noise, that is just an impermissible non-expert merits-based disagreement with

the Decision.

59. Insofar as the complaint is that the Commission allowed a higher volume of noise

that the Draft WEDG 2019, a draft does not provide a justiciable standard resulting in validity

if that standard is exceeded (Rural Residents (I) [2025] IEHC 600 at §83). Accordingly,

there is no substance to any such assertion by the Applicants.

60. Furthermore, any claim of lack of adequate assessment of potential noise impacts

for EIA purposes or any purposes has not been made out evidentially by the Applicants.

61. In addition, Condition 11 should and can be read consistently with Condition 1 (which

requires that the development shall be carried out and completed in accordance with the

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

order to comply with the other attached 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) and Condition

4 (which requires that all mitigation measures contained in the EIAR shall be implemented,

which includes mitigation during operation).

62. See also the uncontested expert affidavit evidence of Jim Singleton, Acoustic

Consultant, in TNEI Services Ltd, filed by the Notice Party, in relation to Core Ground 7.

Notice Party’s Position

63. Condition 11 is not unreasonable, or inconsistent with Article 40.3 and 40.5 of the

Constitution, or ultra vires, or contrary to the requirements of the EIA Directive. The

Applicants’ criticism of Condition 11 is wholly reliant on non-expert assertion, and no expert

evidence supportive of this claim has been adduced. In contrast, the Notice Party has

provided a detailed response and adduced detailed expert evidence demonstrating that the

Applicants’ position is incorrect and that Condition 11 was clearly intra vires the Board.

Insofar as the Applicants plead that the Commission was incorrect to follow or apply matters

contained in the WEDG 2006 (over matters contained in the Draft WEDG 2019), no evidence

capable of supporting the plea has been adduced, and no legal error or invalidity arises (see

generally Nagle View [2024] IEHC 603, Rural Residents (I) [2025] IEHC 600).”

86. This ground seems to involve a number of distinct complaints.

87. As stated above, condition 11 is:

“11. Noise levels generated by the windfarm, following commissioning, by itself or in

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

measured externally at noise sensitive location the windfarm following commissioning by

itself or in combination with other existing or permitted wind energy development in the

vicinity, when measured externally at noise sensitive locations, shall not exceed:

(a) For the daytime period 0700 to 2300, in quiet environments, where background noise is

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

(b) For daytime periods, 0700 to 2300, where the background noise level exceeds

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

(c) For the nighttime period 2300 to 0700, for all noise environments, 43dB(A)L90 T1 O.

Prior to the commissioning of the windfarm, the developer shall submit and agree in writing

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

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

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

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

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

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

of the windfarm.

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

development.”

88. The applicants say that it is irrational for there to be a higher noise level at night than during

the day, even in limited circumstances. The notice party’s affidavit evidence is that this condition

is, perhaps counter-intuitively, consistent with the national guidelines and is a reasonable response

to the application. The 43 dB night-time limit is expressly explained – it is designed to protect

internal rather than external amenities so can be slightly higher to account for attenuation due to

the dwelling structure (as opposed to noise outside with no attenuation during the day). In the

absence of any issue being joined on this evidentially it is not possible to condemn the decision as

invalid on this basis.

89. Articles 40.3 and 40.5 of the Constitution do not have the effect that occupation of land in

general or a dwelling in particular means that one can sterilise the use of land up to 800 m away (in

the case of the nearest applicant) against any activity that is capable of creating noise. The law, in

particular the law of nuisance, has never taken such an unworkable approach – rather what is

prohibited is unreasonable use. The applicants have not demonstrated error by the commission. If

actionable nuisance is in fact caused then the applicants will have a right of action.

90. Reliance on Directive 2011/92/EU of the European Parliament and of the Council of 13

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

environment is misplaced because that involves assessment with a reasoned conclusion rather than

in itself dictating a substantive outcome (like AA) in the manner implied by the applicants.

91. The claim that condition 11 cannot amount to a mitigation measure for the purposes of the

directive is opaque, provides no route-map to relief, and in particular does not disclose any basis for

certiorari.

EU law issues

Core ground 9 – lack of SEA of guidelines

92. Core ground 9 is:

“9. The Respondent erred in law in the manner and to the extent that it relied on the

2006 Wind Energy Guidelines in circumstances where the said Wind Energy Guidelines fall

within the definition of Plans and Programmes for the purposes of Council Directive

2001/42EU and where the said Guidelines are required to be but were not subject to a

Strategic Environmental Assessment and where it was inappropriate and improper and ultra

vires the Respondent to have regard to the said guidelines in the absence of a Strategic

Environmental Impact Assessment having first being carried out.”

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

“Applicants Position

71. The Respondent in its consideration and determination of the application had regard

to the Wind Energy Guidelines which fall within the definition of plans and programmes for

the purposes of Council Directive 2001/42EC. The said guidelines are required to be the

subject-matter of a Strategic Environmental Impact Assessment and it is improper and

unlawful for the Respondent to determine an application and have regard to a plan or

programme which requires a Strategic Environmental Impact Assessment for the purposes

of Council Directive 2001/42EC without such an assessment having been carried out. In

Kerins v An Bord Pleanála [2023] IEHC 186 the Court indicated that it is improper and

inappropriate to determine an application and have regard to such guidance without the

requirements of the said Directive being complied with. The Court in that case emphasised

that a Strategic Environmental Assessment is the first step in a comprehensive suite of

controls which incorporates the Environmental Impact Assessment Directive in respect of

the specific project and here, where regard was had to the Environmental Impact

Assessment Directive and where the Strategic Environmental Impact Assessment was a

necessary part of the architecture, it was inappropriate to rely on these guidelines in the

absence of a Strategic Environmental Impact Assessment having first been carried out.

72. Without prejudice to matters set out above the Respondent failed to properly apply

the provisions of the said guidelines as is required by law in respect of the minimum

separation distances between Turbines which are designed to minimise the impact in respect

of turbulence and wake affects and were required in respect of these considerations to be

applied in accordance with the guidelines and the related issues of noise and vibration

proximity to noise sensitive receptors as well as visual impact and cumulative impact applied

to ensure that the measures set out in the guidance were complied with.

The Commission’s Position

73. Core Ground 9 is denied. The Commission’s Decision is not invalid as alleged.

Fundamentally, the Applicants cannot maintain this challenge to the validity of the WEDG

2006 in circumstances where they have failed to join the correct legitimus contradictor. In

this connection, the Applicants have failed to name Ireland and Attorney General and/or the

Minister as Respondents in these proceedings as they were required to do. (See e.g. 100

Meter Tall Group [2025] IEHC 42 at §188; Rural Residents (I) [2025] IEHC 600 at §117-

§118; Concerned Residents of Treascon and Clondoolusk [2022] IEHC 700 at §50-§52).

Furthermore, the WEDG 2006 enjoy the benefit of a presumption of validity, and the onus

is on the Applicants to displace said presumption and prove their claims. The Applicants in

this regard rely only on mere assertion, which is not a basis for relief in judicial review (see

e.g. Wild Ireland Defence CLG [2025] IEHC 726 at §61(v)).

74. Without prejudice to the foregoing, whereas this ground of challenge should be

dismissed in limine in circumstances where the Applicants have failed to name the correct

Respondent(s) to their claim, in any event, in terms of the complaint at Core Ground 9 as

pleaded, the Applicants have failed to show a route-map from the unspecified provisions of

the SEA Directive relied on to the reliefs claimed (see e.g. Hickwell [2022] IEHC 418 at §94-

§95). The Commission is not obliged to comply with the WEDG 2006 but is entitled to have

regard to same and did so lawfully. The Applicants’ complaints fail to reflect a correct

understanding of the WEDG 2006 and the provisions of the SEA Directive, and same do not

correctly engage with or factor in the consideration that no aspect of the WEDG is binding

on the Commission when it makes a decision on an individual planning application.

75. Whereas the complaint at Core Ground 9 cannot be maintained for the reasons

outlined above, the argument at Core Ground 9 in any event is made in the abstract and the

Applicants have not pleaded anything specific that would make any difference to the outcome

of the Commission’s Decision. Further, or in the alternative, in circumstances where the

Commission was obliged to have regard to the WEDG 2006 (and did so, inter alia, other

relevant considerations), it would be disproportionate to invalidate the Commission’s

Decision even if, counterfactually, the Applicants did establish a breach of the SEA Directive

(which is not accepted) in the absence of any demonstrated invalidity in the Commission’s

Decision itself.

76. As regards the Draft Revised Wind Energy Development Guidelines (December

2019) (the ‘Draft WEDG 2019’), the Applicants complaints (at §73 to §75 at Section E, Part

II of the Statement of Grounds) are misconceived. The Draft WEDG 2019 were correctly

treated by the Commission and its Inspector as a draft, and Commission was entitled to

consider the draft WEDG 2019 and did not act unlawfully in doing so. The Applicants’

complaint in this regard does not reflect a correct understanding of the applicable case law

(e.g., Roache v. An Bord Pleanála [2024] IEHC 311 at §172; Nagle View [2024] IEHC 603,

Rural Residents (I) [2025] IEHC 600), which tellingly is not referred to at all, still less

engaged with, in the Applicants’ written submissions. Further, whereas the Commission was

entitled to consider the draft WEDG 2019 it was not obliged to comply with same: as it is a

draft, non-adherence to same does not provide a justiciable standard resulting in invalidity

if same is not followed/adhered to (Rural Residents (I) [2025] IEHC 600 at §83). In addition,

the Commission following or applying matters contained in the WEDG 2006 (to which only a

‘have regard to’ obligation applies) over matters contained in the Draft WEDG 2019 does not

involve any legal error or invalidity (see generally Nagle View [2024] IEHC 603, Rural

Residents (I) [2025] IEHC 600).

77. Insofar as the Applicants appear to contend (at e.g. §70, §81 and §82 at Section E,

Part II of the Statement of Grounds) that the Commission had a remedial obligation to take

action in respect of the WEDG 2006 and the assertions made regarding the carrying out of

a SEA in relation to same, such contentions are misconceived. First, it has not been

established that the WEDG 2006 required but were not subject to SEA. Second, SEA of

guidelines issued by the Minister under section 28 of the 2000 Act is not within the legal

competence of the Commission. Any requirement for SEA (if it actually arises) of any such

guidelines issued by the Minister is not within the competence of the Commission to carry

out in the first instance, or to rectify if such environmental assessment was required but not

carried out (see by analogy the Court of Appeal’s judgment in Carrownagowan [2024] IECA

234 at §62, §64-§65, §70). The Applicants’ assertions to the contrary are incorrect in law.

No errors of fact or law occurred as alleged by the Applicants, the premise of their complaint

in this regard is incorrect.

78. The Applicant’s assertion that the Commission failed to ‘properly apply’ the

provisions of the WEDG 2006 in respect of the minimum separation distances between

Turbines which are designed to minimise the impact in respect of turbulence and wake

affects is legally and factually incorrect. It comprises impermissible merits-based

submission, misstatement of the legal standard that applies in relation to the WEDG 2006

(which is a ‘have regard to’ standard), a misreading of what the WEDG 2006 says (see e.g.

section 5.13 of same) and is without factual foundation on a correct interpretation of the

Commission’s Decision (see also, for example, the uncontested expert affidavit evidence in

the replying affidavit of Michael Watson, Environmental Director at MKO, at §25 et seq).

Notice Party’s Position

79. The Applicants’ contention that the Board should have disapplied WEDG 2006, which

is presumptively valid and is not challenged in these proceedings, has no legal basis. For

so long as WEDG 2006 remain in place, the Commission is required to have regard to it.

The Applicants cannot maintain a challenge to the validity of WEDG 2006 in circumstances

where they have failed to join the correct legitimus contradictor.

80. Moreover, WEDG 2006 enjoy the benefit of a presumption of validity, and the onus

is on the Applicants to displace that presumption and prove their claims. In that respect,

the Applicants have failed to set out any evidential or legal basis for the contention that: (i)

They are within time to challenge WEDG 2006; (ii) WEDG 2006 falls under the temporal

scope of the SEA Directive; or (iii) WEDG 2006 ‘set the framework’ for future development

consent of projects under Article 3(2)(a) or 3(4) of the SEA Directive. It has clearly failed

to do so.

81. With respect to the claim based on minimum separation distances, the Applicants

have failed to adduce any admissible evidence to support that claim. Insofar as the

Applicants seek to rely on the Affidavit of Mr Lavelle in support of this Core Ground, that

Affidavit is inadmissible. Even if it were admissible, which it is not, in the absence of cross-

examination the Notice Party’s evidence – which in any event clearly establishes that the

evidence of Mr Lavelle is incorrect – must be preferred. Core Ground 9 should be refused.”

94. The applicants may or may not have a good theoretical point here, but unfortunately it is

not a point they can make in these proceedings, not having joined the appropriate State parties as

respondents. The effect of that is that the presumption of validity of the guidelines cannot be

displaced in a way that would impugn the validity of the permission. The applicants didn’t suggest

that the matter should be adjourned to add further respondents, but if they had, any such

adjournment would be unfair to the opposing parties at this late stage and would cause irremediable

prejudice of further delay and uncompensatable financial prejudice given that the action is costs-

protected. Rather the applicants pleaded poverty essentially and a wish not to face three opponents

as opposed to two. This somewhat misunderstands the fact that the special costs protections for

applicants come with certain balancing responsibilities. The process of environmental litigation is

generally very imbalanced and one-way – an environmental applicant can inflict unlimited economic

harm and costs on a developer with virtually no come-back. That imbalance is deemed by the EU

legislature to be an acceptable price in the interests of ensuring the full ventilation of European

environmental law. But an applicant that gets the benefit of this massive advantage has to accept

that it comes with a price-tag of sorts – she must conduct her litigation efficiently and in accordance

with all procedural requirements, she cannot inflict unnecessary costs on those parties who have no

choice but to pay their own way, and while she has protection against prohibitively-expensive

adverse costs, she does not have an automatic and inevitable EU law positive right to costs either

at all or at any particular level even if successful. And self-evidently, the right to a day in court is

not the same as a right to relief. For immediate purposes, the need to comply with procedural

requirements is the relevant obligation (something the applicants haven’t done), but the costs

implications are also relevant and I discuss these further below.

95. Any alternative argument that the obligation was somehow on the commission to refrain

from relying on the guidelines pending an SEA amounts unfortunately to an impermissible collateral

attack on the guidelines. Even assuming, for the sake of argument, that the commission should

have considered that question (i.e., considered setting aside a domestic instrument which was

alleged to have been adopted in breach of EU law), their failure to do so can’t be challenged in

judicial review without also joining the State, which is primarily responsible for the alleged breach,

in appropriately constituted proceedings. These are not such proceedings.

96. The applicants complain about the following from the inspector (emphasis added):

“9.3 Legal Matters

The observation of Mr John Dooley relates to a decision from the European Court of Justice

(c24/19) [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]. It is Mr Dooleys contention that The Wind Energy Guidelines are

plans and programmes set out in EU Directive 20001/42/EU and should be subject to

Strategic Environmental Assessment (SEA).

I note that government published guidelines are not subject to SEA. Should the ECJ alter

this position, this is a matter for Government to address and is clearly beyond the scope

of the Board in the context of the current application.”

97. But this was in the context of the following submission from Mr Dooley (emphasis added):

“Carraig Wind Farm

The wind energy guidelines need An SEA before a planning permission is even considered.

Accepting an application for Planning Permission when An Bord Pleanala already accepts that

the The [sic] Irish Wind Energy Guidelines do NOT have a legally required Strategic Energy

[sic] Assessment is deceptive in that it gives the impression that planning permission

granted is legal and cannot be removed. EU law does not allow for illegal gains to be

acquired. If a legal action was to commence to enforce the ECJ judgement C-24/19

requiring the Wind Energy Guidelines to have An SEA , as they are plans and programs as

set out in Directive 2001/42/EU, a constructed wind farm could be forced to close down. As

[sic] the failure to enforce judgement C-24/19 can be referred back to the ECJ for

enforcement. As the ECJ has already stated all consents granted using Wind Energy

Guidelines not having An SEA should cease operating. This constructed wind farm could be

forced to cease operating. Reference to the ECJ decision C-24/19 was made to Tipperary

County Council Planning in my objection to giving planning permission to this wind farm.

Which Tipperary County Council refused. But no mention of non compliance with C-24/19

was made in the planning permission refusal reasons. To continue to operate the wind

industry is to continue to engage in illegal activity. It is clear what The ECJ has decided.

The Wind Energy Guidelines are plans and programs set out in EU Directive 20001/42/EU as

such the [sic] need A Strategic Environmental Assessment.

Consents granted using Wind Energy Guidelines not having a Strategic Environmental

Assessment are not compliant with EU Law and wind farm granted such consents must cease

operating. The Irish and EU RNEAPS program were judged contrary to international law by

the UNECE. When evaluating the compliance of The EU with the Aarhus Convention. The

Aarhus Convention is an international Agreement, created to empower the role of citizens

and civil society organisations in environmental matters and is founded on the principles of

participative democracy. , [sic] Signed by the EU Commission on behalf of the whole EU.

Logically then planning permission must be refused for this Wind Farm . As the Wind Energy

Guidelines used in the planning application do NOT have An SEA a legal requirement under

EU law as set out in decision C-24/19 of The European Court of Justice.”

98. The inspector’s response was totally reasonable and understandable when placed in the

context of the submission made. The submission was predicated on a hypothetical that a legal

action would be commenced in the future. The inspector expressly phrased her conclusion on that

premise (“Should the ECJ alter that position …”). There is no error here still less an error on the

face of the record, as alleged or otherwise.

99. But even assuming, for the sake of argument, that the commission had some autonomous

EU law obligation to satisfy itself that any policy documents being relied on had been properly

subjected to SEA, notwithstanding a lack of challenge to such documents in any prior proceedings,

that still doesn’t get the applicants anywhere without establishing that the guidelines were actually

adopted in breach of EU law. It is well within the scope of national procedural autonomy to require

that appropriate respondents are joined to any proceedings of that nature. In the absence of the

State being a party this point is going nowhere.

100. If the argument is that the late arrival of the ecologist’s report explains the failure to join

the State (which it doesn’t), that cannot explain the failure to seek an amendment once the report

was available.

101. In any event, the guidelines were not decisive (merely have-regard-to, like vast swathes of

policy), so hypothetical invalidity does not necessarily translate into certiorari of the decision, as in

Friends of Killymooney Lough v. An Coimisiún Pleanála (No. 1) [2025] IEHC 407 (Unreported, High

Court, 16 July 2025). Otherwise, any attack on any one of dozens of background policy documents

could result in all decision-making unworkably grinding to a halt. It would be different if there was

something imperative and decisive in an impugned policy that changed the result from what it

otherwise would have been. But this isn’t such a case.

Core ground 10 – lack of particulars of project for EIA purposes

102. Core ground 10 is:

“10. The Respondent erred in law and failed to have any or any appropriate regard to

Article 5(1) of Council Directive 2011/92EU as inserted by Article 1(5) of Council Directive

2014 which requires in respect of a project for which an Environmental Impact Assessment

is required that the Developer prepare and submit an Environmental Impact Assessment

Report and contain the information which shall include at least:

“(a) A description of the project comprising information on the site, design, size

and other relevant features of the project”.

And the documents submitted and in particular the putative/conceptual design proposed,

failed to comply with this requirement and accordingly the consequent Environmental Impact

Assessment Report based on such a design and the Environmental Impact Assessment could

not be carried out in accordance with Council Directive 2011/92EU and accordingly is

contrary to European Community Law and relied on the Wind Energy Development

Guidelines 2006 which were required to but which did not comply with the requirements of

Council Directive 2001/42EC, and rendered the decision ultra vires the Respondent invalid

and void.”

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

“Applicants Position

83. The said provision requires that there be a description of the project comprising

information on its design and requires a specific formulated design to have been prepared

and the said design submitted and considered under Application 318689/23 by virtue of the

variation in the height of the Turbine, in the hub height of the Turbine, in the diameter of

the rotating blades of the Turbine which variation can be as great as 14 metres is inconsistent

with and contrary to the requirement that the project design be submitted and does not

permit a description or a consideration of the likely significant effects of the project, given

the extent of variation in such affects that can arise depending on the ultimate design that

is selected.

The Commission’s Position

84. Core Ground 10 is denied. The Commission did not fail to have regard or appropriate

regard to Article 5(1) of the EIA Directive as alleged or at all. No error of law occurred as

alleged. The Applicants’ assertion that the information submitted in the EIAR was deficient

in terms of information provided in respect of the description of the project is without

substance and incorrect. The Commission (see e.g. page 9 of the Commission’s Order) and

its Inspector (see e.g. §10.4 (Table 10.1), Table 10.1.2, §10.6, §19.7.2.1 of the Inspector’s

Report) were expressly satisfied as to the adequacy of the information submitted for EIA

purposes in this regard. (In addition, whereas it recommended refusal for three unconnected

reasons, it is noted that the planning authority, TCC, was also satisfied that adequate detail

is provided in the EIAR at Chapter 4 to describe the proposed development.) The Applicants

have not advanced or adverted to anything that impugns the rationality of the Commission’s

conclusions for EIA purposes by reference to the materials before the Commission and have

also not discharged the onus of proving that the Commission’s conclusions in relation to EIA

were incorrect in law. The non-expert assertions of the Applicants are not a basis for and

do not establish any inadequacy in the EIA carried out by the Commission nor any adequacy

in the EIAR or any other supporting documentation submitted by the Notice Party (including

to the Commission as part of its first party appeal) in the planning process. None of the

non-expert mere assertions at Core Ground 10 have been made out by the Applicants. The

necessary factual foundation for the complaint at Core Ground 10 is absent entirely. An

insuperable difficulty for the Applicants is that their case against the Commission’s Decision,

on technical issues relating to the EIA that was carried out by the Commission as competent

authority in the exercise of its expert decision-making function, is based only on the

Applicants non-expert mere assertions, in circumstances where the settled law is clear in

that the onus of proof as to an inadequacy in the decision cannot be discharged by mere

assertion.

85. The Applicants’ assertion that the EIA that the Commission carried out was flawed

because the Commission had regard to the WEDG 2006 and the latter were not subject to

SEA as required, is misconceived. It has not been established that the WEDG 2006 required

but were not subject to SEA, that is merely asserted by the Applicants, and such assertion

cannot be maintained as they have failed to join the correct Respondent(s) as required, the

above points relevant to this issue in response to Core Ground 9 are repeated. Furthermore,

the EIA that the Commission completed was a full assessment carried out in accordance with

the requirements applicable to that assessment. The extent to which the Commission and

its Inspector had regard to the WEDG 2006 (which they were required to have regard to)

does not in any way affect or undermine in any way the EIA that was carried out by the

Commission. The Applicants’ complaint in this regard discloses no route map from the

complaint made to the relief claimed.

Notice Party’s Position

86. For the reasons set out in Core Ground 1, the Applicants are incorrect in contending

that the use of design flexibility in windfarm developments is impermissible. The design

flexibility in the application for permission did not result in any breach of the EIA Directive,

as alleged or at all. The EIAR clearly demonstrates that, regardless of the turbine dimensions

(within the stated range), the impacts assessed, and the conclusions reached with respect

to significance of effects, will be the same or substantially the same. The flexibility sought

and granted in relation to turbine dimensions therefore does not undermine any assessment,

included within the EIAR. The significance of effect stated within the EIAR for any

assessment related to turbine dimensions is based on a range of turbine dimensions within

the permitted flexibility. The adequacy of the information provided in a planning application

for EIA purposes is primarily a matter for the Commission and the onus is on the Applicants

to displace it. The Applicants have adduced no evidence capable of doing so. Core Ground

10 should be refused.”

104. The basic reason why this point fails is that to demonstrate an inadequacy in assessment an

applicant must establish that evidentially, which has not been done here. Much of this has been

dealt with earlier under other headings.

105. Insofar as the applicants claim prejudice due to non-publication of the ecologist’s report

during the eight-week period post the decision, they could have applied to amend the proceedings

based on the report once they got it. Not having done that they can’t claim prejudice. The expedited

procedure doesn’t preclude such an application, so if the applicants are attempting to blame such

directions for not constituting their proceedings properly, that is illogical. Liberty to apply is there

to cover potential unexpected events. The fact that a direction is given by the court as to timelines

for papers being filed does not constitute an attempt by anybody to rule out in advance the possibility

of the unexpected. That would be reading the process as problematic when an unproblematic

reading is available.

Core ground 11 – defective AA

106. Core ground 11 is:

“11. The Respondent failed to carry out an Appropriate Assessment in accordance with

the requirements of Article 6(3) of the Habitats Directive and could not on the basis of the

information before it have made complete, precise and definitive assessments such as to

exclude adverse effects beyond reasonable scientific doubt, as is required under Directive

92/43, and accordingly the decision is ultra vires the Respondent, contrary to European

Community Law, invalid and void.”

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

“Applicants Position

88. The Respondent failed to ensure beyond reasonable scientific doubt that the

proposed Development would not adversely affect the integrity of the nearby special areas

of conservation contrary to its obligations under Article 6(3) of the Habitats Directive

92/43EEC. The Respondent had obtained the submission from the National Parks and

Wildlife Service which raised concerns in respect of the nature and quality of the information

which had been provided and which required further studies and safeguards in respect of

the potential impacts. The said report raised concerns of a type that could not entitle the

Respondent to make complete, precise and definitive findings and could not have determined

the Application in the absence of this information and accordingly the said assessment does

not comply with the Respondents obligations under Article 6(3) of Council Directive

92/43EEC.

89. The Respondent failed to give any reason why it departed from the advice from a

Statutory Consultee, a body with a high level of expertise in respect of a matter which is

identified not only in Council Directive 92/43EEC but also in Council Directive 2011/92EU.

90. The Respondent could not have carried out an Appropriate Assessment and in

particular could not have carried out an assessment in respect of the effects of the proposed

Development on avian species given the incomplete and inadequate nature of the design

where the layout of the turbines and the design of the individual Turbines such were not and

could not be determined definitively nor could the relationship of the Turbines one with each

other be determined and the requirements of Council Directive 92/43EEC

The Commission’s Position

91. Core Ground 11 is denied. The allegations at Core Ground 11 alleging defective

Appropriate Assessment (AA) are without substance. Relevant principles are set out in e.g.,

Eco Advocacy [2025] IEHC 15 at §95 and 100 Meter Tall Group [2025] IEHC 42 at §85 and

Massey (No.2) [2025] IEHC 206 at §95-97. In application of same to the facts here, Core

Ground 11 is not made out. The AA screening and AA that the Commission carried out were

lawful and carried out in accordance with the requirements applicable to same. The

Commission’s conclusions for AA screening and AA purposes were open to it based on the

materials that were before it. There was material before the Commission capable of

supporting its view of the adequacy of the information before it for AA purposes (such as

e.g. the NIS submitted by the Notice Party, the information submitted by the Notice Party

as part of its first party appeal to the Commission, the Inspectorate Ecologist’s Technical

Note dated 12th March 2025, and the Inspector’s Report dated 22nd April 2025 at e.g. pages

215 to 221 and 241 to 309). The Applicants have not pointed to any scientific evidence that

in any way impugns the validity or correctness of the Reports of the Inspector or the

Commission’s Decision as regards the AA screening and AA conducted by the Commission.

92. The onus of proof as to an inadequacy in the decision cannot be discharged by mere

assertion, nor does mere assertion create scientific doubt for Appropriate Assessment (AA)

purposes (see e.g. McGowan [2025] IEHC 405 at §50(v) and the case law cited). That is an

insuperable difficulty for the Applicants in relation to Core Ground 11. Critically, as regards

AA screening and AA, the Applicants have not demonstrated that the evidence and materials

that were before the Commission were so flawed on their face that a reasonable expert

would have objected to them. The non-expert assertions and merits-based submissions of

the Applicants (who are the litigants in this action and are not independent), including in

relation to the details provided in the application in respect of turbine design and layout and

collision risk, are not a basis for and do not establish any inadequacy or deficiency in the AA

screening or the AA carried out by the Commission nor any inadequacy in the information

that before was the Commission. The onus of proof lies on the Applicants to demonstrate,

evidentially, a flaw in the assessment process where, as here, there is no clear error on the

face of the material that was before the Commission. The Applicants have not discharged

that onus, and accordingly, Core Ground 11 fails.

93. There is no basis to the Applicants’ incorrect mere assertions that the Commission

failed to have regard or to provide reasons for its Decision in the context of the concerns

raised by the Department of Housing, Local Government and Heritage (DAU) (referred to by

the Applicants at §96 of the Statement of Grounds as the ‘National Parks and Wildlife

Service’) were addressed. The concerns raised by the Department of Housing, Local

Government and Heritage (DAU), including in an AA context, were expressly considered in

detail and lawfully by the Inspector (see e.g. §5.1.2, §14.1, §14.8.1- §14.8,17, §16.10.1,

§26.1, §26.3.1, of the Inspector’s Report) and by the Commission who agreed with and

adopted the Inspector’s Report (see pages 6-7 of the Commission’s Order in this regard in

the context of AA). In addition, the obligation to have regard is not an obligation of outcome;

the Commission’s Decision expressly records that it had regard to the submissions made in

relation to the application, which includes those made by the Department of Housing, Local

Government and Heritage (DAU). Lack of narrative discussion does not equate to failure to

have regard to something and there is no obligation to ‘engage with’ submissions in a sort

of discursive, point-by-point sense. Insofar as the Applicants are suggesting otherwise, such

suggestion is incorrect in law (see e.g. Wild Ireland Defence CLG [2025] IEHC 726 at §134,

§160(v); O’Donnell v. An Bord Pleanála [2023] IEHC 381 at §39 et seq). In any event, in

this case there was extensive narrative discussion and engagement with the issues raised

by the Department/DAU and also the response of the Notice Party to same in its First Party

appeal documentation, as is apparent on a fair and objective reading of the Inspector’s

Report and when same is read in a way that makes sense and renders the Commission’s

Decision valid rather than invalid, as required.

94. As regards bats, the non-expert mere assertions at §99 of the Statement of Grounds

and §168 of the Applicants’ written submissions are entirely without any meaningful

evidential or legal basis, do not reflect a correct understanding of the Commission’s Decision

or the information that was before it regarding potential impacts on bats. The Commission

was entitled to rely on the evidence and materials that were before it in relation to impact

on bats. The Applicants have not established any deficiency in the assessment of the

potential impacts of the proposed developments on bats. The Applicants’ pleaded case on

this point is essentially a merits-based challenge to the Commission’s assessment, relying

on the Applicants’ non-expert factual allegations regarding the alleged inadequacy of the

information before the Commission in relation to bats. That is not a basis for certiorari of

the Commission’s Decision or any other relief. Also, no issue regarding Article 12 of the

Habitats Directive arises on the facts here. This case concerns a scheme in which no current

requirement for a derogation licence had been identified. Based on the materials there were

before the Commission (see e.g. §3.3.1 of the NIS, Appendix 6-2 Bat Survey Report, Chapter

6 of the EIAR (at §6.6.2.4 et seq, §6.6.3, §6.7.2.2.3 (Table 6-24), §6.7.3.2.1 (Table 6-27))

and also §13.5(page 85), §13.6(Table 13.2) of the Inspector’s Report), it cannot be said

that the material before the Commission, on which it relied, was incapable of objectively

supporting the conclusion it reached in relation to bats. The Applicants have not discharged

the onus of demonstrating error, and therefore, this sub-ground in Core Ground 11 should

be rejected. The Applicants' assertions at §95-§99 of the Statement of Grounds (and

repeated at §163 et seq of the Applicants written submissions) regarding AA deficiencies are

without foundation. The Commission's AA was comprehensive and included detailed

consideration of the Inspectorate Ecologist's Technical Note which specifically addressed

collision risk for Whooper Swans and other protected species. The Applicants' claims at §99

of the Statement of Grounds regarding bat surveys are incorrect - the EIAR included

appropriate bat surveys (see Appendix 6-2 Bat Survey Report) and the assessment

concluded that with appropriate mitigation measures, no significant effects on bat

populations would occur. The Commission's conclusion that adverse effects on site integrity

could be excluded was based on best available scientific evidence and was legally sound.

Notice Party’s Position

95. The AA carried by the Commission was valid and in accordance with the

requirements of the Habitats Directive. The Applicants have adduced no evidence capable

of impugning the validity of the AA carried out and the claim pleaded is again based on mere

non-expert assertion. There is in addition no basis for the Applicants’ assertions that the

Commission failed to have regard to the concerns raised by the Department of Housing,

Local Government and Heritage (DAU). The concerns raised by the Department of Housing,

Local Government and Heritage (DAU), including in an AA context, were expressly

considered by the Inspector and by the Commission. Core Ground 11 should be refused.”

108. The basic reason why this point fails is, again, that to demonstrate an inadequacy in

assessment an applicant must establish that evidentially, which has not been done here.

109. Insofar as the applicants say that discrepancies about Whooper Swan (Cygnus cygnus)

movements raise a doubt about what was before the commission, any defect in what was before the

decision-taker has to be established evidentially, which has not been done. The fact that there were

concerns about compliance with Council Directive 92/43/EEC of 21 May 1992 on the conservation of

natural habitats and of wild fauna and flora (the habitats directive) from other process participants

does not prevent a decision-taker from holding that the directive has not been infringed, provided

that due reasons are identified as to why no scientific doubt arises and as appropriate as to why

best scientific methodology has been applied. An error in that reasoning must be established

evidentially.

110. Insofar as the applicants try to read across from design flexibility into exclusion of doubt as

to impact on species, the problem with that is that it remains on an applicant to show that such

design flexibility gives rise to scientific doubt. That is not something that can just be asserted on

an a priori basis. No valid basis to impugn the AA has been made out.

Core ground 12 – project-splitting

111. Core ground 12 is:

“12. The decision of the Respondent is invalid and void where the application is made on

the basis of a fundamental illegality, namely in breach of Council Directive 2011/92EU where

part of a specified development was the subject matter of a separate application determined,

and where both parts of the development were determined without an integrated

assessment and cannot now be lawfully permitted in the absence of a proper and appropriate

Environmental Impact Assessment having been carried out in respect of the totality of the

development, and accordingly the decision is contrary to Council Directive 2011/92EU,

invalid and void.”

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

“Applicants Position

97. The Commission did not address its mind to the fundamental conflict between that

part of the development located and permitted in Offaly without any or any appropriate

consideration of the obligation for a mandatory Environmental Impact Assessment where a

grid connection forms part of a specified development for the purposes of Schedule 5 of the

Planning and Development Regulations, where there was no public notice or entitlement on

the part of the public to engage with that section of the development located in Offaly nor

did the Competent Authority in the first instance have any entitlement to review the decision

of Offaly County Council and where the Board is limited within the four corners of the

application made to the Planning Authority in the first instance.

The Commission’s Position

98. The matters raised at Core Ground 12 regarding the grid connection are related to,

and should be read in conjunction with, the Commission's response to Core Ground 5 above,

which addresses the assessment of the grid connection in the EIAR and the application of

Article 22(2)(g)(ii) of the 2001 Regulations.

99. Core Ground 12 is denied. It is based on the Applicants misinterpretation and/or

misunderstanding of the requirements of the EIA Directive and the Commission’s Decision

in this case. Core Ground 12 is misconceived in law and fact. EU law does not require the

centralisation of EIA functions in relation to a project into a single authority, nor into a single

development consent process. The settled law is clear in this respect (McGowan [2025]

IEHC 405 at §56(i), §179, §182(xi)). The complaint at Core Ground 12 involves unduly

high-level abstract mere assertion that is inadequately particularised contrary to Order 103

rule 14(3) and/or Order 84 rule 20(3) RSC, with no specific provision of the EIA Directive or

national law provision transposing same identified as having been contravened (and no such

contravention has in fact occurred). This is a further reason to refuse relief in relation to

this ground.

100. Consistent with the requirements of the EIA Directive, the likely significant effects

on the environment of the actual project for which permission was sought were assessed by

the Commission in this case. As to EIA, the project to be assessed by the Commission is

that for which consent is sought (per e.g. Fitzpatrick v. An Bord Pleanála [2019] 3 IR 617,

[2019] IESC 23; Coyne [2023] IEHC 412 at §387) and that is what occurred. Any assertion

by the Applicants to the contrary is incorrect and without basis.

101. In particular, as regards the grid connection, contrary to what the Applicants

incorrectly assert in unduly generic and high-level abstract terms, the grid connection route

in its entirety (i.e. through Co. Tipperary and Co. Offaly) was identified, described and

assessed in the EIAR (see e.g. sections 1.1, 1.1.1, 1.1.2, 1.4, 3.2.8, 4.1, 4.3.6.4, 4.9.7.4,

4.11, 5.9.2.4, 5.9.2.6, 5.9.2.7, 5.9.3.11, 5.9.5.2, 6.5.1.1, 6.6.1.12, 6.6.1.12, 6.6.1.15,

6.6.2.4.4, 6.7.2.1.1, 6.7.2.1.2, 6.7.2.2.1, 6.7.2.2.3, 6.7.4, 6.7.5, 6.8.2, 7.2.4.2.9, 7.3.1,

7.5.5, 8.3.2, 8.3.3, 8.3.4, 8.3.5, 8.3.6, 8.3.8.5, 8.5.2.2, 8.5.7, 9.3.1, 9.3.3, 9.3.4, 9.3.7.2,

9.3.8, 9.3.9.2, 9.3.9.2, 9.3.10, 9.3.12, 9.3.13.2, 9.3.14.1.2, 9.3.14.2, 9.5.2.1, 9.5.2.4,

9.5.2.5, 9.5.2.10, 9.5.3.2, 10.1, 10.2.4.2, 11.1.1, 11.6.2.1, 12.4.1.1, 12.6.1, 12.6.2,

12.6.3.1, 12.7.1, 13.3.2, 13.3.3, 13.4.2.5, 13.4.2.10, 13.4.2.14, 13.3.2.2.3, 14.1.4, 14.2.1,

14.4.2, 14.7.2.3, 15.1.2.1, 15.1.4.1.1, 15.1.7, 15.1.11.2, 15.1.12.5, 15.3.3.2.1, 16.2.4.1,

16.3.1, 16.3.2, 16.4.1.2, and 16.4.1.5 of the EIAR).

102. Accordingly, notwithstanding that planning permission has been secured by the

Notice Party for the section of the grid connection in Co. Offaly (OCC Reg. Ref. 23/60140)

(same was granted by Offaly County Council on or about 2nd May 2024, was not appealed

to the Commission and is presumptively valid and is not challenged in these proceedings),

that does not alter the fact that the relevant details in respect of the grid connection in its

entirety were before the Commission on the subject planning application and considered and

assessed by the Commission as part of the EIA that it lawfully carried out (see e.g. pages 8

to 11 of the Commission’s Order and e.g. page 98 section 14.4 (Table 14.4), §22.5.1 and

§23.3, of the Inspector’s Report). No unlawfulness from the perspective of the EIA Directive

or otherwise arises by reason of the making of separate planning applications by the Notice

Party in the manner as has occurred. There is no requirement to seek permission for all

elements of an overall project in a single application (McGowan [2025] IEHC 405 at §56(i),

§179, §182(xi)). The Applicants' assertions to the contrary are without legal basis. As

regards EIA, there was no failure of assessment by the Commission, nor any evasion of

assessment – the windfarm project (including the grid connection) was assessed.

103. The EIA that the Commission completed was a full assessment carried out in

accordance with the requirements applicable to that assessment. The Commission was fully

entitled to rely on the evidence and materials that were before it in the manner it did. The

Applicants have not advanced or adverted to any scientific and/or expert evidence to impugn

the rationality of the Commission’s conclusions for EIA purposes by reference to the material

before the Commission. The non-expert assertions and merits-based submissions by and

on behalf of the Applicants (who are the litigants in this action and are not independent) are

not a basis for and do not establish any inadequacy or deficiency in the EIA carried out by

the Commission nor any inadequacy in any of the information or supporting documentation

which was before was the Commission that was submitted by the Notice Party in the course

of the planning application process. The onus of proof as to an inadequacy in the decision

lies on the Applicants and cannot be discharged by mere assertion (see e.g. McGowan [2025]

IEHC 405 at §50(v)).

Notice Party’s Position

104. There was no ‘fundamental conflict’ or any conflict between the part of the Grid

Connection route located and permitted in Offaly and the Proposed Development. There

was no failure to carry out a cumulative assessment. As outlined in the Statement of

Opposition, the EIA and NIS submitted with respect to this application and with respect to

the Co. Offaly Grid Connection route were identical save for the location of the red line

boundary and, in each case, assessed the entire project. It is evident in those circumstances

that there was an in-combination assessment and the Applicants have identified no basis for

their contention to the contrary. The Applicants have further failed entirely to engage with

the EIAR on which the assessment is based, which clearly assesses the entire development

including the Co. Offaly Grid Connection Route. Insofar as the Applicants seek to contend

that the Proposed Development and the Co. Offaly Grid Connection were required to be

assessed together, there is no legal basis for that contention. EU law does not require a

single development consent process for a project. The project that requires assessment

under the EIA Directive is the project for which permission is sought.”

113. The basic reason why this point fails is that the factual premise is incorrect. As the

commission points out, the grid connection route in its entirety (i.e. through Co. Tipperary and Co.

Offaly) was identified, described and assessed in the EIAR. There was no failure to consider anything

necessary.

114. It is neither unusual nor unlawful for a project to be consented in stages or before different

consenting bodies. Applicants habitually misunderstand the concept of project-splitting – as

discussed elsewhere, projects can be split, but European assessments must be complied with in the

process having regard to the overall project and in certain circumstances having regard to other

projects that form part of an overall process of development. The applicants have failed to overcome

the onus of proof to show any breach of such obligation here.

Discretion

115. As a fall-back argument, the notice party submits:

“2. The Proposed Development is a renewable energy development, which the

Commission’s Order correctly concluded would ‘have a significant positive, longterm impact

on climate due to its contribution to renewable energy targets and the reduction of GHG

emissions’ (p.10) and ‘make a valuable strategic contribution to the legally binding

renewable energy targets including for offshore windfarms’ (p.14). The importance of

addressing the climate crisis, and the relevance of renewable energy projects in that context,

is now beyond doubt: see e.g., McGowan v ACP [2025] IEHC 405 (“McGowan”), §51; … The

Commission correctly assessed the Proposed Development in light of that context, and it is

respectfully submitted that these proceedings should be viewed, and (to the extent required)

the Court’s discretion should be exercised, having regard to that context.”

116. This argument was advanced as an answer to any breach including of EU law. If necessary

as a matter of domestic law I would exercise discretion against certiorari if counterfactually there

was a breach of such law, having regard to the importance of renewable energy in EU law including

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

(the REDIII directive). As to whether that is an answer to a breach of required European

assessments if counterfactually there was such a breach, I would be inclined to reserve any view for

a case in which that point was necessary to decide. That said, I should record that the notice party

was very explicit in wishing to rely on discretion in the European context should that have been

necessary.

Summary

117. In outline summary, without taking from the more specific terms of this judgment:

(i) It is settled law that the applicant’s point must be properly pleaded with the

requisite specificity.

(ii) Applying such law to the facts here, the applicants have failed to join necessary

parties so as to challenge the wind energy guidelines and cannot collaterally impugn

the validity of those guidelines in improperly constituted proceedings such as these.

(iii) It is settled law that the specific point must be one that the applicant has standing

to make.

(iv) Applying such law to the facts here, the applicants’ points in relation to turbary rights

are a ius tertii.

(v) It is settled law that the applicant’s point must workable.

(vi) Applying such law to the facts here, the applicants propose to read in to the planning

regulations and legislation requirements (regarding (a) an alleged obligation

requiring further detail of application documents, (b) the claimed duty of ensuring

compliance with separate waste legislation, (c) the interpretation ruling out grid

connection works in the manner proposed, (d) rights having the effect of sterilising

the use of other land against any activity that causes noise) that are not there and

that would not be workable.

(vii) It is settled law that a decision should be read as valid rather than invalid if a valid

reading is available.

(viii) Applying such law to the facts here, (a) the commission’s treatment of turbary rights

can be construed as a valid assessment made on the assumption that the

development is going to be carried out and (b) the conditions envisaged by EIA/AA

material can be regarded as validly ascertainable.

(ix) It is settled law that the applicant must have discharged the onus of proof to

establish all facts necessary for relief.

(x) Applying such law to the facts here, the applicants have not discharged the onus of

proof to demonstrate (a) any insufficiency in the particulars of the application

documentation, (b) any safety impacts or obstruction of public rights of way, (c) any

inadequacy of assessment of treatment of soil dug up for the purposes of the works

(d) the unreasonableness of the noise condition, or (e) error in EIA or AA.

(xi) It is settled law that judicial review is a discretionary remedy.

(xii) Applying such law to the facts here, if it had been necessary I would have exercised

discretion against relief here had there counterfactually been a breach of any of the

technical domestic law points. It is not necessary to express a view on whether that

would also apply to any EU law points.

Costs

118. The applicants were offered a declaration on 14 November 2025, and in submissions the

commission said that “in normal course” they should get costs up to that point. The commission

had written asking whether certiorari was to be pursued (an implausible claim anyway given that

the non-publication occurred after the decision was made so can’t affect the legality of the decision

itself).

119. The letter was as follows (emphasis added):

“Our Client: An Coimisiún Pleanála (the ‘Commission’)

Matter: Sheila Hoctor, Patrick Carney, John Dooley, Michael Mahon, Regina Hoctor

(Applicants) -v- An Coimisiún Pleanála (Respondent) & Carrig Renewable Energy Limited

(Notice Party)

Your clients: Sheila Hoctor, Patrick Carney, John Dooley, Michael Mahon, Regina Hoctor

Dear Colleagues

We refer to the Proceedings in which we act for the Commission and to the Opposition Papers

delivered by the Commission today.

We refer in particular to Core Ground 6 of the Applicant’s Statement of Grounds, which sets

out the following:

‘The Respondent failed to comply with the requirements of Section 146 of the

Planning and Development Act 2000 where there is an obligation to publish

documents on the online file where the Respondent decides to do so and where all

the Reports and Documents related to the decision must be published, and where

the Report of the Ecologist upon which the Inspector relied was not published and

could not have been considered by the Applicants, and the basis of the decision of

the Respondent could not be understood, and where no reason was given, contrary

to the said provision.’

We have taken instruction and can confirm that the Commission will consent to a grant of

Declaratory relief in respect of Core Ground 6, as explained in the Commission’s Statement

of Opposition.

The Commission’s position has been set out in full in its Statement of Opposition, but for the

avoidance of doubt, the Commission maintains the position that a Declaration only is the

appropriate relief and will resist any attempt by the Applicants to argue for an Order of

certiorari in relation to Core Ground 6 and all other grounds.

We confirm that the Commission will agree to an order for the costs of the Applicants to the

date of this correspondence, limited to the costs incurred in respect of Core Ground 6 only,

with such costs to be adjudicated in default of agreement.

However, if the Applicants persist in pursuit of certiorari in respect of Core Ground 6, the

Commission will oppose any further Order for costs in respect of this ground. In addition,

inter alia, this may give rise to the possibility of setting off the costs incurred by the

Commission in defending same, as against any costs order which the Applicants

might otherwise be entitled to.

The Applicants might please confirm by 21 November 2025 that they are no longer pursuing

an order for certiorari in respect of Core Ground 6 and are agreeable to the making of a

Declaration only in that respect.

We await hearing from you.

Yours faithfully

Byrne Wallace Shields LLP”

120. A set-off order here would be consistent with the default position in O. 103 r. 39(2)(b) RSC

and is appropriate here (emphasis added):

“(b) Where an award of costs has been or is to be made in favour of any party (‘the first-

mentioned party’) against another party (‘the other party’) in respect of an element of the

proceedings, but such other party has been successful in any other element of the

proceedings including any distinct issue raised in the proceedings or any distinct

interlocutory or consequential matter, being an element or matter on which the first-

mentioned party was unsuccessful and that added significantly to the costs incurred

by the other party, the Court shall subject to any order to the contrary for specified

reasons, provide in the final order for the set-off of any costs that ought to be

awarded in favour of the other party against any costs awarded to the first-

mentioned party. The costs to be awarded by way of set off shall unless otherwise ordered

be on a normal costs scale rather than on the basis of NPE costs, but on the basis that, if

the principle prohibiting costs in excess of NPE costs applies to the proceedings in favour of

the first-mentioned party, such costs shall apply only up to the level of set-off and not so as

to create a costs liability for a costs-protected party, unless paragraph (a) applies in which

case the costs liability shall not exceed the level of NPE costs.”

121. On that note, lest there be any misunderstanding, O. 103 RSC is generally enabling and is

extremely non-prescriptive compared to most of the Rules of the Superior Courts. By and large it

prescribes defaults against which parties may apply as appropriate, and the provisions on costs,

including r. 39, fall squarely within that. This is purely procedural. It does not purport to create a

costs jurisdiction that does not otherwise exist, merely to specify a default by reference to which the

court may otherwise provide. The jurisdiction to order costs is anterior and derives from the inherent

jurisdiction of the High Court as modified by s. 50B of the 2000 Act. Crucially s. 50B(2), (2A) and

(3) are permissive – there is no right to costs (emphasis added):

“(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts

(S.I. No. 15 of 1986) and subject to subsections (2A), (3) and (4), in proceedings to which

this section applies, each party to the proceedings (including any notice party) shall bear its

own costs.

(2A) The costs of proceedings, or a portion of such costs, as are appropriate, may be

awarded to the applicant to the extent that the applicant succeeds in obtaining relief and

any of those costs shall be borne by the respondent or notice party, or both of them, to the

extent that the actions or omissions of the respondent or notice party, or both of them,

contributed to the applicant obtaining relief.

(3) The Court may award costs against a party in proceedings to which this section applies

if the Court considers it appropriate to do so—

(a) because the Court considers that a claim or counterclaim by the party is frivolous or

vexatious,

(b) because of the manner in which the party has conducted the proceedings, or

(c) where the party is in contempt of the Court.

(4) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a

party in a matter of exceptional public importance and where in the special circumstances

of the case it is in the interests of justice to do so.”

122. Admittedly, some previous caselaw may have started more from a default of full costs, but

that is not set in stone – it was a judge-made and largely pragmatic approach at the time to avoid

unnecessary arguments. It is well within the scope of legitimate regulation of practice and procedure

to recalibrate the starting default, and that is all that O. 103 r. 39 does in this context. The Aarhus

Convention by its terms is aimed at protection against prohibitive expense being imposed on

applicants. It is far from clear that there is any EU law right at all to positive costs in favour of

winners, or to costs at any particular level, or to exemption from deductions due to running losing

points.

123. Returning to the sequence of events here, there was no reply to the letter. There is no

obvious reason why the applicants did not reply to the request as to whether certiorari was being

pursued. The applicants argue that the letter didn’t call for a reply, which I don’t accept – and as it

happens, it did request a reply by 21 November 2025. Failing to reply falls outside the notion of

reasonable litigation conduct and is capable of coming within s. 50B(3)(b) of the 2000 Act, albeit

that in and of itself no great harm was done by that single omission alone.

124. What caused more significant problems was the fact that not only did the applicants not

accept the declaration as dispositive of the grounds, they went on to make detailed points in written

legal submissions about the ground with the implication that they were looking for certiorari, having

before them a clear warning from the commission as to costs:

“Core Ground No. 6

92. The Respondent failed to comply with the requirements of Section 146 of the

Planning and Development Act 2000 where there is an obligation to publish documents on

the online file where the Respondent decides to do so and where all the Reports and

Documents related to the decision must be published, and where the Report of the Ecologist

upon which the Inspector relied was not published and could not have been considered by

the Applicants, and the basis of the decision of the Respondent could not be understood,

and where no reason was given, contrary to the said provision.

93. The Respondent erred in law and failed to comply with its obligations under Section

146 of the Planning and Development Act and in particular Section 146(5) which provides

that within 3 days following the making of a Decision on any matter the document shall be

made available for inspection at the Board’s offices and shall be made available by the Board

where it is decided to allow inspection of the said documents by electronic means. The

obligations contained in Section 146(5) were not complied with in that a number of

significant reports and most particularly the report of the Ecologist commissioned by the

Board to prepare a report and where the report recites that report was relied on both by the

Inspector and by the Board was not made available in accordance with the obligations and

the failure to make these documents available as required by law amounts to a breach of a

mandatory statutory obligation, is contrary to the Respondents obligations both under Irish

Domestic Law and European Community Law where the rights of public participation are

enshrined including the right to review a decision and accordingly the said failure being in

breach of Irish Domestic Law and European Community Law renders the Decision of the

Respondent invalid and void.

94. The failure to disclose the Report constitutes a failure to give reasons as in the

absence of the report it is impossible to make any judgement as to the basis upon which the

said decision was made where the Report which was primarily relied upon to carry out the

assessment for the purpose of Council Directive 92/43EEC was not made available.

95. In the absence of that Report it was not possible to identify the basis upon which

the concerns raised by the National Parks and Wildlife Service and the information that was

required and which information was necessary in order to make precise and definitive

findings in line with the Judgement of Kelly -v- An Bord Pleanála [2014] IEHC 400 and

Connelly -v- An Bord Pleanála [2018] IESC 31 was not sought and/or how it was possible to

reconcile the decision with the absence of this information given the obligations that arise

under the Directive.

96. The Applicants were not aware as they were entitled to under Section 146 to the full

file and to the disclosure of all documents in accordance with Section 146 of the Planning

and Development Act, 2000. The Report prepared which prompted the decision in respect

of Council Directive 92/43EEC was not available for the whole of the period of 8 weeks within

which the Applicants were required to formulate their grounds and where the period is

extraordinarily short and can only operate where all of the documentation is available for

the entire period provided for in S146, and where the Applicant is entitled to be given

whatever latitude is requires to submit additional Affidavits, documentation and if

appropriate to revise its grounds in the light of the failure of the Respondent to comply with

its statutory obligations, and in particular in respect of the issues raised in Core Ground No.

11.”

125. The applicants explain this by saying that it is simply repeating the grounds, but that isn’t a

valid answer given that the offer of a declaration is simply ignored and there is no clarification as to

not pressing certiorari. Any reasonable respondent in receipt of this submission and having written

without reply would have had no option but to assume that certiorari was being pressed. That

imposed an obligation on such respondent to deal with the matter in submissions and to prepare for

the hearing on that basis. All of that was totally unnecessary and fell outside the notion of the

reasonable conduct of the litigation. This comes squarely within s. 50B(3)(b) of the 2000 Act as it

caused unnecessary costs to be incurred by the commission.

126. There was no further clarification or reply to the commission’s correspondence until the

hearing date on 20 January 2026, when the applicants said they were accepting the declaration as

a remedy for core ground 6. The commission asked for the costs from 15 November 2025 to 20

January 2026 to be awarded to it by way of set-off which is a very reasonable and appropriate

application in the circumstances.

127. Failure to address the matter clearly added to the costs incurred by the commission in

addressing the matter by way of written submission – this was wholly unnecessary. There is no

valid reason why the commission should be automatically required to pay all or any costs of a

declaration on a ground in relation to which they were unnecessarily forced to incur additional costs

having offered that relief. The commission’s claim for the costs of dealing with this are amply

justified in the circumstances.

128. A set-off can be conceptualised in one of two ways, although it doesn’t particularly matter

to the bottom line as to which applies. One approach is to regard it as a simple order as to costs

but with a reduction. The other way is to regard it as two separate orders, one in favour of an

applicant, and one in favour of an opposing party under s. 50B(3)(b) of the 2000 Act, albeit not

creating a net liability but only a set-off. I am going to frame the order on the latter approach which

seems the most appropriate but it comes to the same thing.

129. That said, in the circumstances it would be well within the options legitimately open to the

court to make a net adverse order as to costs under s. 50B(3)(b) of the 2000 Act (on a not-

prohibitively-expensive basis), but I am not going to do that where the commission didn’t ask for

anything more than set-off. The limited nature of their application also saves me from having to

consider whether the costs of other failed points should be set off under O. 103 r. 39(2)(b) RSC.

130. Finally, I note in passing that the commission perhaps over-generously did not put a

timelimit on validity of the offer. One might have been inclined to take a different approach (i.e.,

simply decline to grant any relief and make no order as to costs) had they written to say that (a)

they accepted the error for the purposes of the ultimate disposition of the proceedings and (b) if,

but only if, prior to a specified date a declaration were to be accepted as a full answer to core ground

6, such a declaration would be consented to, but (c) if there was no such acceptance then the

commission would argue that no relief at all was necessary or appropriate due to the lack of any

actual dispute inter partes on the point. On such an approach, set-off would not have arisen because

the appropriate order would have been to dismiss the action tout court with no order as to costs.

Declarations would be inappropriate where there was no dispute about the error and where the

applicant had erroneously declined to accept that the point did not warrant any other relief, and

occasioned further costs to be incurred as a result.

Order

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

Insofar as concerns declaratory relief:

(i) there be a declaration that the commission did not publish the inspectorate

ecologist’s technical note dated 12 March 2025 by the third day following the making

by the commission of its decision contrary to s. 146(5) and (7) of the 2000 Act up

to 19 September 2025 when the technical note was published on the commission’s

website under the title ‘Additional Inspector’s Report’;

(ii) there be an order for the costs of the declaration (on a party-and-party basis) under

core ground 6 in favour of the applicants against the respondent up to and including

14 November 2025 (including reserved costs and the costs of legal costs adjudication

of such costs);

(iii) any issue as to the extent of such costs be determined, in default of agreement, by

way of legal costs adjudication;

(iv) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in this judgment may be addressed pursuant to O. 103

r. 40(4) RSC;

Insofar as concerns the validity of the impugned decision:

(v) the proceedings be otherwise dismissed;

(vi) there be an order for costs of the claim for certiorari (on a party-and-party basis)

under core ground 6 in favour of the respondent against the applicants from 15

November 20205 to 20 January 2026 (including the costs of written legal

submissions and the costs of legal costs adjudication of such costs) to be enforceable

by way of set-off only against the order for costs in favour of the applicants, up to

the amount of such costs but not leaving any positive balance;

(vii) any issue as to the extent of such costs be determined, in default of agreement, by

way of legal costs adjudication;

(viii) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in this judgment may be addressed pursuant to O. 103

r. 40(4) RSC;

Procedural directions:

(ix) the foregoing proposed orders as to costs, directions or the form of the order be

subject to contrary written legal submission within 7 days, with replies by other

parties within a further 7 days; and

(x) the matter be listed on Monday 23 February 2026 to confirm the foregoing.