Friends of the Irish Environment CLG v An Coimisiún Pleanála and Ors

[2026] IEHC 205 THE HIGH COURT PLANNING & ENVIRONMENT [H.JR.2025.0000610] IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000 BETWEEN FRIENDS OF THE IRISH ENVIRONMENT CLG APPLICANT AND AN COIMISIÚN PLEANÁLA (BY ORDER), IRELAND AND THE ATTORNEY GENERAL, AND THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE RESPONDENTS AND SHANNON LNG LIMITED NOTICE PARTY Date of impugned decision: 13 March 2025 Date proceedings commenced: 7 May 2025 Date of main hearing: 19 March 2026 Date draft judgment circulated: 26 March 2026 JUDGMENT of Humphreys J. delivered on Wednesday the 1st day of April 2026 1. The environmentalist’s rallying-cry “keep it in the ground” has considerable logic and scientific support behind it. Apart from small amounts turned into not-exactly-eco-friendly plastic and other synthetic products, virtually all fossil fuels extracted are combusted, directly increasing greenhouse gas (GHG) emissions. In keeping with this, the Climate Change Advisory Council recommended a near immediate end to coal and oil-fired energy generation, with gas-fired production to be phased out in the medium term. Why then, the applicant effectively asks, does the commission find itself approving a gas-fired power plant? In the relevant context of the extent of renewable generation on stream at present, a phenomenon known as Dunkelflaute (dark lull) affects wind and sunlight-powered generation – the all-too-familiar time when there is little of either. A gas plant can act as a resilience backbone to provide relatively rapid and relatively controllable power to bridge the gap between intermittent renewable generation and demand. Gas plants are highly dispatchable, i.e., can be quickly ramped up or down to maintain grid stability. Potentially some of them can be repurposed over time for use with renewable fuels. While it is beyond question that the combustion of all fossil fuels is poisonous for the planet, gas is nowhere near as bad as peat, coal or oil in terms of GHG emission intensity. And within that, efficient gas-based energy production such as this project is better than inefficient production. The commission took the view that this project will provide “back-up to a renewables-based electricity grid and will contribute to the resilience of the overall energy supply network. The need for such flexible generation capacity is recognised as a national priority in the Government Policy Statement on Security of Electricity Supply, and in the Climate Action Plan 2024”. CAP24 refers expressly (p. 155, emphasis added) to “Delivery of at least 2 GWs of new flexible gas-fired generation”. Without taking in any way from the supreme importance of the issues regarding the climate emergency so thoroughly raised by the applicant as a seasoned and respected environmental NGO, the primary legal question here is whether the applicant has come up with any sufficiently convincing legal basis to displace the commission’s reasoned conclusion in that regard. Judgment history 2. This development must be one of the most thoroughly litigated projects in recent times – this is the seventh written decision relating in one way or another to this project. 3. In Friends of the Irish Environment v. An Bord Pleanála & Anor. [2019] IEHC 80, 2 JIC 1501 (Unreported, High Court, 15 February 2019), Simons J. decided to refer questions to the CJEU concerning whether renewal of a permission to the notice party engaged Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the habitats directive). 4. In the judgment of 9 September 2020, Friends of the Irish Environment Ltd v An Bord Pleanála, C-254/19, EU:C:2020:680, the CJEU in summary concluded that a renewal was potentially capable of requiring appropriate assessment. On foot of that, the extension of the permission was quashed by consent in the High Court. 5. In separate proceedings, Friends of the Irish Environment CLG v. Minister for Communications, Climate Action and the Environment, Ireland and the Attorney General & Shannon LNG Limited [2020] IEHC 383, [2020] 9 JIC 1405 (Unreported, High Court, 14 September 2020), 2 Simons J. refused to refer to the CJEU an issue regarding validity of the 4th Union list of Projects of Common Interest insofar as it includes the proposed Shannon LNG terminal and connecting pipeline. The list of projects of common interest had been adopted by the EU Commission by way of delegated regulation: Commission Delegated Regulation (EU) 2020/389. 6. In Friends of the Irish Environment CLG v. Minister for Communications, Climate Action and the Environment, Ireland and the Attorney General & Shannon LNG Limited [2021] IEHC 177, [2021] 3 JIC 3003 (Unreported, High Court, 30 March 2020), Simons J. dismissed the balance of the challenge in respect of the List of Projects of Common Interest. 7. In Friends of the Irish Environment CLG v. Minister for Communications, Climate Action and the Environment, Ireland and the Attorney General & Shannon LNG Limited [2022] IECA 298 (Unreported, Court of Appeal, Noonan J., 21 December 2022), the Court of Appeal dismissed an appeal against Simons J.’s order declining to refer the issue of the List of Projects of Common Interests to the CJEU. 8. In Shannon LNG Limited v. An Bord Pleanála [2024] IEHC 555 (Unreported, High Court, 30 September 2024), I quashed the commission’s refusal of permission for the Shannon LNG project. Geographical context 9. The proposed development (https://www.pleanala.ie/en-ie/case/319566) is a power plant which will comprise three turbine halls (approximately 6,175 m2 each, and approximately 30.145 m in height), each containing one combined cycle gas turbine (CCGT). Each turbine hall will have a capacity of approximately 200 megawatts for a total installed capacity of 600 MW, a 120-megawatt hour (MWh) (1-hr) battery energy storage system (BESS) (approximately 5,552.7 m2 and approximately 6.296 m in height), which will comprise 27 battery containers, approximately 4.5 MWh each, containing lithium-ion batteries, and ancillary power conversion system (PCS) skids, above ground installation (AGI) and all ancillary structures/works, all located within the townlands of Kilcolgan Lower and Ralappane, between Tarbert and Ballylongford, County Kerry and on the Shannon Estuary. Facts 10. The developer submitted a pre-application consultation request on 24 March 2023, in respect of a 600 MW power plant, 120 MW battery energy storage system, above ground installation and associated development. On 9 November 2023, the commission determined that the proposed development would constitute strategic infrastructure development (ABP-316518-23). 11. On 8 March 2024, the developer submitted a pre-application consultation request to the commission in respect of a proposed STEP strategic gas reserve facility that includes onshore facilities, jetty and a FSRU extending into the Shannon Estuary at the north-east corner of the site. The pre-application request was withdrawn on 23 March 2024, and has not been resubmitted. 12. On 19 April 2024, the developer submitted an application for planning permission for the proposed development. 13. On 13 March 2025, the commission granted permission subject to a number of conditions. Procedural history 14. On 7 May 2025, the applicant’s statement of grounds was filed in the High Court Central Office. 15. On 12 May 2025, the applicant was granted leave. 16. The proceedings were adjourned from time to time thereafter primarily to await the Supreme Court decision in Coolglass. 17. On 2 December 2025, the commission filed its statement of opposition and supporting affidavits. 18. On 18 December 2025, the developer filed its statement of opposition and supporting affidavits. 19. On 20 January 2026, the applicant filed a replying affidavit. 20. On 20 February 2026, the applicant filed written legal submissions. 21. On 12 March 2026, the commission served and uploaded its written legal submission. 22. On 16 March 2026, the notice party served and uploaded its written legal submission along with the completed statement of case. 23. The matter was heard on 19 March 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. 24. On 26 March 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 3 without prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever content it considers appropriate. 25. Any comments must be emailed to the court and uploaded to ShareFile in writing by the notified deadline, and should not be to reargue the substance (submissions to that effect will be disregarded) but are confined to matters such as: (i) informing the court as to whether a formal judgment is required, and if so on what issues; (ii) informing the court as to whether a judgment might be oral or written or partly in both modes; (iii) any typographical, factual or legal errors in the decision; (iv) any redaction of personal information that the party wishes to request; (v) 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; (vi) requesting the court to decide a point that, while unnecessary to decide, is one the party considers could beneficially be decided; (vii) 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 (viii) 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. 26. 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). 27. Draft judgments are not public domain materials and, while they can be shared between the lawyers concerned and their clients, subject to the following, it is inappropriate for any person to refer to them for any purpose other than to assist the court in relation to the finalisation of the formal judgment. Therefore anyone with information as to the text, content or proposed outcome of any draft is required not to publish or transmit such information to others save solely by way of private transmission for the legitimate purposes of assisting in the finalisation of the judgment and subject to a similar restriction on any recipient. Trial participants should take reasonable steps to keep drafts confidential. On this topic, see Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication of draft judgments is in the interests of the administration of justice; see also Baigent v. Random House Group Ltd [2006] EWHC 1131 (Ch), [2006] 5 WLUK 45, (2006) 150 S.J.L.B. 603 (Smith J.); R. (Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, [2022] 1 W.L.R. 1915, [2022] 4 All E.R. 599 (Sir Geoffrey Vos MR; Davies and Dingemans LJJ. concurring); Public Institution for Social Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368, [2022] 3 WLUK 291, [2022] B.L.R. 349 (Carr LJ; Jackson and Simler LJJ. concurring); Itkin v. Wood [2023] JRC 101 (Unreported, Royal Court of Jersey, 22 June 2023). 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. 28. The deadline for such comments from the parties was to be 16:00 on 31 March 2026. The developer replied on that date confirming no comments. Relief sought 29. The reliefs sought are as follows: 4 “1. An Order of Certiorari quashing the Board Order dated 13th March 2025 granting permission for a 600MW Powerplant, 120MW Battery Storage System, Above Ground Installation and associated ancillary works located within the townlands of Kilcolgan Lower and Ralappane between Tarbert and Ballylongford, Co. Kerry (ABP Ref PA08.319566). 2. Such declaration(s) of the legal rights and/or legal position of the Applicant and (if and insofar as legally permissible and appropriate) persons similarly situated and/or of the legal duties and/or legal position of the Respondent as the court considers appropriate. 3. A Declaration that the Second and or Third and Fourth Respondents failed to fulfil their obligations under Articles 3, 4(1) and 4(2) of the Birds Directive and Article 6 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (‘the Habitats Directive’), as implemented by SI 477 of 2011 and in particular Article 26 thereof, by (a) failing to have in place site specific objectives and site specific conservation measures in respect of the Moanveanlagh Bog SAC, Tullaher Lough and Bog SAC and Stack's to Mullaghareirk Mountains, West Limerick Hills and Mount Eagle SPA, the Lower River Shannon SAC and the River Shannon and River Fergus Estuaries SPA, and (b) not putting in place the necessary conservation measures in those SPAs and SACs. 4. A Declaration that Section 50B of the Planning and Development Act 2000 and/or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 and/or that the interpretative obligation set out in Case C-470/16 North East Pylon Pressure Campaign Limited v. An Bord Pleanála, whereby in proceedings where the application of national environmental law is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, apply to these proceedings. 5. An Order providing for the costs of the application. 6. Such interlocutory relief as the court may order, including interlocutory relief. 7. Further or other order.” Grounds of challenge 30. The core grounds of challenge are as follows: “Domestic Law Grounds Core Ground 1: The Board erred in finding that the proposed development constituted sustainable development and its decision to grant permission for a proposed development of a 600MW Powerplant, 120MW Battery Storage System, Above Ground Installation and associated ancillary works located within the townlands of Kilcolgan Lower and Ralappane between Tarbert and Ballylongford, Co. Kerry dated 13th March 2025 (ABP Ref PA08.319566) (‘the impugned decision’) is invalid as it constitutes a material contravention of the Kerry County Development Plan 2022-2028 and Listowel Municipal District Local Area Plan 2020-2026 and the Board erred in law in reaching a contrary conclusion and/or the impugned decision is irrational and unreasonable for not treating like decisions alike and/or the Board failed to take into account relevant considerations, further particulars of which are at Part 2 below. Core Ground 2: The impugned decision is invalid as the Board decision is not consistent insofar as practicable with the measures identified in section 15(1)(a)-(e) of the Climate Action and Low Carbon Development Act 2015 and/or failed to have regard to relevant considerations and/or had regard to irrelevant considerations and/or failed to adequately consider the Climate Action Plan 2024 and/or Carbon Budgets and/or Sectoral Emissions Ceilings and/or failed to make a decision on the evidence before it, further particulars of which are at Part 2 below. European Law Grounds Core Ground 3: The impugned decision is invalid because the Board’s decision is contrary to Articles 1, 5 and 6 of the EIA Directive, further particulars of which are set out in Part 2 below. Core Ground 4: The impugned decision is invalid because the Board incorrectly failed to consider significant effects on the environment from the entirety of the proposed project/masterplan under either the EIA Directive or the Planning and Development Regulations 2001, further particulars of which are at Part 2 below. Core Ground 5: The impugned decision is invalid because the Board erred in law in concluding that the proposed development would be in accordance with the proper planning and sustainable development of the area and/or the Board erred in deciding that it had 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) and/or with the relevant provisions of the Climate Action Plan 2024, further particulars of which are at Part 2 below. 5 Core Ground 6: The impugned decision is invalid because the Board could not and did not make a valid Screening decision for the purposes of Article 6(3) of the Habitats Directive in the absence of site specific conservation objectives and site specific conservation measures and/or could not lawfully have excluded significant effects for the purposes of Stage 2 Appropriate Assessment, further particulars of which are at Part 2 below.” 31. The applicant is no longer seeking any relief against the State. 32. The applicant is not pursuing core grounds 1 or 4. Core grounds 6A, C and D were dropped (6A dropped at the hearing, 6C and D dropped in advance). The impugned decision 33. The impugned decision provides as follows: “Decision Grant permission under section 37G of the Planning and Development Act 2000, as amended, 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. Determine under section 37H(2)(c) the sum to be paid by the applicant in respect of costs associated with the application as set out in the Schedule of Costs below. Reasons and Considerations The Board 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 Act 2015, as amended by Section 17 of the Climate Action and Low Carbon Development (Amendment) Act 2021, (consistent with the most recent approved, climate action plan, national long term climate action strategy, national adaptation framework and approved sectoral adaptation plans, the furtherance of the national climate objective, and the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State); And in coming to its decision, the Board had regard to the following: (a) European, national, regional and local planning, energy, climate and other policy of relevance, including in particular the following: European Policy/Legislation: • Directive 2014/52/EU amending Directive 2011/92/EU (Environmental Impact Assessment Directive); • Directive 92/43/EEC (Habitats Directive) and Directive 79/409/EEC as amended by 2009/147/EC (Birds Directive); • Directive 2000/60/EC (Water Framework Directive). National Policy and Guidance including: • Project Ireland 2040 - National Planning Framework (2018); • National Development Plan (2021-2030); • National Marine Planning Framework (2020); • The objectives and targets of the National Biodiversity Action Plan 2023-2030; • Long-term Strategy on Greenhouse Gas Emissions Reduction (2024); • Policy Statement on Security of Electricity Supply (November 2021); • National Energy Security Framework (April 2022); • National Energy and Climate Action Plan (2021-2030); Regional and Local Planning Policy, including in particular: • Regional Spatial and Economic Strategy for the Southern Region (2019-2031); • Strategic Integrated Framework Plan for the Shannon Estuary (2013-2020); • Shannon-Foynes Port Company Masterplan - Vision 2041 (2013); • Kerry County Development Plan 2022-2028; • Listowel Municipal District Local Area Plan (2019-2025). (b) The location, nature, scale and layout of the proposed development. (c) The range of mitigation measures set out in the Environmental Impact Assessment Report and Natura Impact Statement. (d) The submissions received in relation to the application by all parties. (e) The Inspector's report and recommendation. Appropriate Assessment: Stage 1: The Board noted that the proposed development is not directly connected with, or necessary for, the management of a European Site. The Board completed an Appropriate Assessment Screening exercise in relation to potential effects on designated European Sites, taking into account the Screening Report submitted with the application, the report and screening assessment completed by the Board's Inspector which concluded that the following sites are the European Sites for which there is a likelihood of significant effects on: • Lower River Shannon Special Area of Conservation (Site Code: 002165) and 6 • River Shannon and River Fergus Estuaries Special Protection Area (Site Code: 004077). The Board determined that Appropriate Assessment was required for these European Sites. Appropriate Assessment: Stage 2: The Board considered that the Natura Impact Statement and associated documentation submitted with the application, the mitigation measures contained therein, the submissions, and the observations on file, and carried out an Appropriate Assessment of the implications of the proposed development on European Sites in view of the conservation objectives for the sites. The Board considered that the information before it was adequate to allow the carrying out of an Appropriate Assessment and to allow it to reach complete, precise and definitive conclusions for Appropriate Assessment. In completing the assessment, the Board considered in particular, the likely direct and indirect impacts arising from the proposed development, both individually and in combination with other plans and projects, the mitigation measures which are included as part of the current proposal and additional mitigation measures recommended by the Inspector in view of the sites' conservation objectives. In completing the Appropriate Assessment, the Board accepted and adopted the Appropriate Assessment carried out by the Board's Inspector, of the potential effects of the development on the aforementioned European Sites, having regard to the sites' conservation objectives. In overall conclusion, the Board was satisfied that the proposed development would not adversely affect the integrity of: • Lower River Shannon Special Area of Conservation (Site Code: 002165) and • River Shannon and River Fergus Estuaries Special Protection Area (Site Code: 004077), in view of the conservation objectives of those sites and that there is no reasonable scientific doubt as to the absence of such effects. Environmental Impact Assessment The Board completed an Environmental Impact Assessment of the proposed development taking account of: (a) The nature, scale and location of the proposed development; (b) The Environmental Impact Assessment Report and associated documentation in support of the application for which approval is sought; (c) The submissions received during the course of the application; (d) The Inspector's report and recommendation. The Board considered that the Environmental Impact Assessment Report, supported by the documentation submitted by the applicant, adequately considers alternatives for the proposed development, and identifies and describes adequately the direct, indirect and secondary and cumulative impacts of the proposed development on the environment. The Board agreed with the examination, as set out in the Inspector's report, 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 for approval. The Board concluded that, subject to the implementation of the mitigation measures proposed, as set out in the Environmental Impact Assessment Report and, subject to compliance with the conditions set out herein, the effects on the environment of the proposed development by itself and cumulatively with other development in the vicinity would be acceptable. In doing so, the Board adopted the report and conclusions of the reporting Inspector. Reasoned Conclusions on the Significant Effects Having regard to the examination of the environmental information set out above, and in particular the Environmental Impact Assessment Report and supplementary information submitted by the applicant, and to the submissions received from the planning authority, prescribed bodies and observers in the course of the application, it is considered that the main significant direct, indirect or cumulative impacts on the environment, of the development permitted herein are, and will be, mitigated as follows: 1. The development could give rise to impacts on surface and groundwaters as a result of run-off of sediments, accidental spillages of chemicals, hydrocarbons or other contaminants entering waterbodies during construction. These impacts would be adequately mitigated by: • The implementation of the Construction Environmental Management Plan and standard best practise guidance and measures, including measures for the control of soils, materials and pollutants, drainage design and the management of surface waters; • Soil and stockpile management, including separation from waterbodies and from areas subject to flooding; • Minimise use of cast in-situ concrete and measures to prevent discharge of contaminants to the underlying subsoil or to the marine environment. 7 2. Construction activity will give rise to noise and vibration emissions, particularly during terrestrial blasting and rock breaking activities. The impacts from such activities would be adequately mitigated by: • Adherence to identified emission limit values and guidelines for such activities (8S6472-2:2008); • The short-term nature of the activities and limits on daily blasting activities; • Separation from the shoreline and sensitive receptors; • Process management and a dedicated Public Liaison Officer and protocols for community relations; • On-going monitoring. 3. Construction activities, particularly from blasting, will give rise to air overpressure. The impacts from such activities would be adequately mitigated by: • Adherence to the principles set out in BS 5607:2017 code of practice for the safe use of explosives in the construction industry; • No more than one blast per day; • Designing each blast to maximize its efficiency and reduce the transmission of vibration; • A protocol for community relations with regards to blasting is adopted such that prior warning of blasting operations is given to members of the public. 4. Operational discharges to the marine environment, including wastewater, accidental spillages and process discharge, have the potential to impact on water quality and dependent species and habitats. The impacts from such activities would be adequately mitigated by: • Design, operation and monitoring of drainage systems in compliance with Industrial Emissions licence requirements; • Attenuation of stormwater run-off from paved/impermeable areas; • Drainage systems capable of handling anticipated volumes, incorporating treatment facilities and monitoring equipment appropriate to each effluent stream (including silt trap, Class 1 hydrocarbon interceptor, a firewater retention facility, package wastewater treatment plant and potential of hydrogen (pH) adjustment); • Measures for the control and management of hazardous materials and removal of identified effluent streams off-site for treatment; • Adherence to Environmental Protection Agency guidance for firewater retention and the storage and transfer of materials for scheduled activities; • Availability of secondary containment and spill kits for other hazardous materials; • Dispersion effects within a short distance of the discharge point, given the extent and dynamic nature of waters in the estuary. 5. Construction of the development will result in the direct loss of marine environment habitats. The impacts from such activities would be adequately mitigated by: • The limited spatial extent of loss, where the affected habitats and community types are not uncommon or rare and where natural recolonisation can occur. 6. Development of the site will result in terrestrial habitat removal and disturbance and displacement of species occurring on or around the site. The impacts from such activities would be adequately mitigated by: • Implementation of Construction Environmental Management Plan and appointment of an Ecological Clerk of Works; • Adherence to published guidance including Construction Industry Research and Information Agency (CIRIA) guidance on water pollution and Inland Fisheries Ireland guidelines of protection of fisheries, Bat Conservation Ireland guidance on lighting design, and National Roads Authority (NRA) Guidelines for the treatment of Badgers, Bats and Otters; • Monitoring of Badger setts during post-construction; • No in-stream works in Ralappane Stream; • A detailed method statement in respect of disturbance to cliff habitat from vehicular access; • Planting and landscaping works using native species; • Clear delineation and fencing off of habitat conservation areas and retained trees/vegetation; • Timing and management of tree/vegetation and structure removal works, with pre- development surveys of features to be removed; • Erection of bat boxes and bird nesting boxes; • Blasting vibration limits will be achieved by limiting the Maximum Instantaneous Charge (MIC). 8 7. Operation of the proposed power plant would give rise to an increase in operational greenhouse gas emissions with resulting impacts on the achievement of EU and National climate change and carbon emission reduction targets. The impacts from such activities would be adequately mitigated by: • The role of the Combined Cycle Gas Turbine in the overall energy generation sector and in facilitating renewable generation capacity and the transition to a low carbon system; • Displacement of potentially more carbon intensive power generation; • Operation in the European Union Emissions Trading System scheme; • Embedded design mitigation, including high efficiency and ability to operate at a low minimum generation capacity means that it will be dispatched before less efficient plants; • Availability of battery storage; • Stated ability to transition to alternative low carbon fuels/hydrogen. 8. Traffic generated during construction will give rise to potential disturbance and congestion on the local road network. These impacts would be adequately mitigated by: • Existing low traffic volumes on road network; • Upgrade of the L 1010 prior to the main construction phase; • Short-term nature of activities; • Implementation of a Construction Traffic Management Plan including the routing and scheduling of construction traffic to avoid coinciding with peak school times; • Appointment of a logistics manager. 9. Excavation and redevelopment of the site will give rise to direct impact on features of archaeological interest and previously unrecorded features. There will also be impacts on the setting of recorded monuments. The impacts would be adequately mitigated by: • Full resolution of all archaeological sites and areas identified during archaeological testing and underwater surveys; • Compliance with the National Monuments Acts and the Construction Environmental Management Plan; • A Method Statement for Archaeological Works shall be agreed with the National Monuments Service, with fieldwork and monitoring by a suitably qualified and licensed archaeological contractor; • Completion of archaeological works prior to commencing enabling works; • Designated buffer zone around recorded monument. 10. Having regard to the nature and volume of materials to be stored and processed at the facility, the development gives rise to the potential for major accident or disaster or major accident to the environment. The impacts from such activities would be adequately mitigated by: • Design and operation in accordance with industry standards and operator requirements under the COMAH Regulations 2015; • Integral isolation valves in pipelines to isolate the inventory and reduce the consequences of an accident; • Design and installation in accordance with the Environmental Protection Agency guidance for firewater retention and for the storage and transfer of materials for Scheduled activities; • Separation of uses within the site. Cumulative Impacts and Impacts from Interactions: It is considered that effects, as a result of interactions, indirect and cumulative effects can be avoided, managed or mitigated by the measures which form part of the proposed development, the proposed mitigations measures detailed in the Environmental Impact Assessment Report and with suitable conditions. There is, therefore, nothing to prevent the approval of the development on the grounds of significant environmental effects, or as a result of cumulative effects or effects arising from interactions between environmental factors. Proper Planning and Sustainable Development It is considered that the proposed development, subject to compliance with the conditions set out below, would accord with the relevant policy at a European, national, regional and local level. The Board was satisfied that an approval for the proposed development would be consistent with national climate ambitions and with the relevant provisions of the Climate Action Plan 2024. Furthermore, the Board has 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 Act 2015, as amended by Section 17 of the Climate Action and Low Carbon Act 2021. 9 The proposed development along with the proposed battery energy storage facility, will provide back-up to a renewables-based electricity grid and will contribute to the resilience of the overall energy supply network. The need for such flexible generation capacity is recognised as a national priority in the Government Policy Statement on Security of Electricity Supply, and in the Climate Action Plan 2024. The proposed development will also otherwise be in accordance with the relevant provisions of the Kerry County Development Plan 2022-2028 and by reason of scale, form and extent would not seriously injure the visual amenities of the area, or of property in the vicinity, would be acceptable in terms of traffic safety and would constitute an appropriate form of development at this location. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area. CONDITIONS 1. The proposed development shall be carried out and completed in accordance with the plans and particulars lodged with the application and additional plans and particulars submitted on the 25th day of September, 2024, except as may otherwise be required in order to comply with the following conditions. Reason: In the interests of clarity and the proper planning and sustainable development of the area and to ensure the protection of the environment. 2. The operational use of the proposed development shall expire on the 31st day of December, 2050, unless a subsequent planning permission to continue operating has been secured. Reason: In the interests of clarity and consistency with statutory climate action targets. 3. The proposed 600 megawatts of electricity output generated by the power plant shall be made available for export to the national grid and shall be used as back up to intermittent renewable energy only, unless a subsequent planning permission has been secured to use part of the electricity generated for other purposes. The 120 megawatts of electricity stored in the Battery Energy Storage System shall be made available for export to the national grid and shall be used as back up to intermittent renewable energy only, unless a subsequent planning permission has been secured to enable the storage to be used for other purposes. Reason: In the interests of clarity and consistency with statutory climate action targets. 4. The mitigation measures and monitoring commitments identified in the Natura Impact Statement, shall be carried out in full. Reason: In the interests of clarity and protection of the environment and the protection of European Sites during the construction and operational phases of the proposed development. 5. The mitigation measures and monitoring commitments identified in the Environmental Impact Assessment Report and other plans and particulars submitted with the application shall be carried out in full. Reason: In the interest of clarity and protection of the environment during the construction and operational phases of the proposed development. 6. The period during which the development hereby permitted may be carried out shall be 10 years from the date of this Order. Reason: Having regard to the nature and scale of the proposed development, the Board considers it appropriate to specify a period of validity of this permission in excess of five years. 7. (a) The upgrade of the L1010 local road between the R551 at Tarbert and the proposed development lands at Kilcolgan Lower and Ralappane shall be completed prior to the commencement of the main construction elements of the proposed development. This shall not preclude the undertaking of site preparation and earthworks contemporaneously with the upgrading of the L 1010 local road. The precise extent of works which may be carried out prior to the completion of the public infrastructure works, shall be agreed in writing with the planning authority prior to commencement of development and in default of agreement, shall be determined by An Bord Pleanala. (b) Final detail in relation to the design of the proposed entrance to the site from the L 1010, including drainage design, shall be agreed in writing with the planning authority prior to the commencement of development on the site. Reason: In the interest of road safety. 8. (a) Prior to commencement of development, the developer shall submit to, and agree in writing with, the planning authority, a detailed construction traffic management plan. This management plan shall include restrictions on traffic movements at Tarbert Comprehensive School, which shall prohibit the movement of heavy goods vehicle traffic associated with the construction of the terminal for an agreed period before and after the opening and closing times of the school. It shall also include the staggering of various shift start and finish times. 10 (b) Pre- and post-construction phase surveys of the public road network to be used as haul routes, shall be carried out by the applicant, to include inspections of bridges, structures and culverts at locations to be agreed with the relevant roads authorities to confirm their capacity to accommodate any abnormal weight load proposed. (c) Abnormal load licences shall be secured by the developer in advance, if required, for the transportation of components, units and materials. Consultation with the relevant roads authority, An Garda Síochána and all necessary stakeholders shall be carried out in advance of transportation of abnormal loads. (d) Any required alterations to the road network for the transportation of components, units and/or materials shall be agreed in advance with the roads authority and reinstated thereafter, to the satisfaction of the roads authority. Where such works affect the national road network, they shall be undertaken in accordance with Transport Infrastructure Ireland publications. Any temporary alterations to utilities shall be agreed with the appropriate utility provider in advance by the developer. Any land acquisition or temporary access to lands required for the conveyance of abnormal loads or materials shall be incumbent on the applicant to agree with the relevant landowner. A schedule of alterations to the road network including, but not limited to, signage, street furniture and vegetation, shall be agreed in advance with the relevant roads authority. (e) Any damage to the local and national road network arising from the transportation of components, units and/or materials to the site shall be rectified in accordance with the requirements of the roads authority, at the developer's expense. Reason: In the interests of road safety, orderly development and the proper planning and sustainable development of the area. 9. The developer shall facilitate the archaeological appraisal of the site and shall provide for the preservation, recording and protection of archaeological materials or features which may exist within the site. All mitigation measures set out in the Chapter 12 of the Environmental Impact Assessment Report (AECOM, April 2024) shall be fully implemented prior to the commencement of developing works. In this regard, the developer shall: (a) Appoint a Project Archaeologist to oversee and advise on all aspects of the scheme from design through to completion. The Project Archaeologist shall liaise with the National Monuments Service (NMS) to agree in advance the appropriate scope for the full archaeological excavation of all archaeological sites and areas identified during archaeological testing which cannot be preserved in situ (as identified in Chapter 12 of the Environmental Impact Assessment Report or by any subsequent investigations associated with the project). (b) In advance of the commencement of any construction works, the developer shall engage a suitably qualified archaeologist to carry out a full archaeological excavation (licensed under the National Monuments Act) of all archaeological sites and areas identified during archaeological testing which cannot be preserved in situ (as identified in Chapter 12 of the Environmental Impact Assessment Report or by any subsequent investigations associated with the project). (i) The full archaeological excavation shall be carried out according to Best Archaeological Practice and in accordance with an approved Method Statement that shall incorporate a strategy for environmental sampling, finds retrieval and conservation and subsequent publication or other suitable dissemination of results. (ii) If significant archaeological features are discovered during the course of the full archaeological excavation, work on the site shall stop, pending a decision of the planning authority in consultation with the Department of Housing, Local Government and Heritage, regarding appropriate additional mitigation measures which may include preservation in situ or full archaeological excavation. Any additional archaeological mitigation requirements specified by the planning authority, following consultation with the Department of Housing, Local Government and Heritage, shall be complied with by the developer. (iii) No construction works shall be carried out on site until a Preliminary Excavation Report on the full archaeological excavation has been submitted to the Department of Housing, Local Government and Heritage and to the planning authority and approval to proceed is agreed in writing. (iv) The developer shall ensure that any necessary post-excavation analysis - as set out in the Preliminary Excavation Report - including (but not limited to) specialist analysis of finds and samples, scientific dating and conservation of artefacts is completed. 11 (v) The developer shall ensure that the results of the full archaeological excavation are adequately disseminated to the public by way of publication or other appropriate means. (c) A suitably qualified archaeologist shall be retained to advise on and establish appropriate exclusion zones around the external-most elements of the vulnerable heritage assets that are to be preserved in situ (as identified in Chapter 12 of the Environmental Impact Assessment Report or by any subsequent investigations associated with the project). (i) Exclusion zones shall be fenced off or appropriately demarcated for the duration of construction works in the vicinity of the monuments. The location and extent of each exclusion zone and the appropriate methodology for fencing off or demarcating at each location shall be agreed in advance with the Department of Housing, Local Government and Heritage and the planning authority. (ii) No groundworks of any kind (including but not limited to) geotechnical site investigations and no machinery, storage of materials or any other activity related to construction will be permitted within exclusion zones. (d) The Construction Environmental Management Plan shall include the location of any, and all archaeological or cultural heritage constraints relevant to the proposed development, as set out in Chapter 12 of the Environmental Impact Assessment Report (AECOM, April 2024) and by any subsequent archaeological investigations associated with the project. The Construction Environmental Management Plan shall clearly describe all identified likely archaeological impacts, both direct and indirect, and all mitigation measures to be employed to protect the archaeological or cultural heritage environment during all phases of site preparation and construction activity. (e) The planning authority and the Department of Housing, Local Government and Heritage shall be furnished with a final archaeological report describing the results of all archaeological monitoring and any archaeological investigative work on site and any necessary postexcavation specialist analysis. All resulting and associated archaeological costs shall be borne by the developer. Reason: In order to conserve the archaeological heritage of the area and to secure the preservation in-situ or by record, and protection of any archaeological remains that may exist within the site. 10. All mitigation measures set out in Chapter 12 of the Environmental Impact Assessment Report (AECOM, April 2024) shall be fully implemented prior to the commencement of developing works. In advance of the commencement of any construction works, the developer shall engage a suitably qualified archaeologist to carry out an Underwater Archaeological Impact Assessment that includes the following: (a) A desktop assessment that addresses the underwater cultural heritage (including archaeological, built, vernacular, riverine and industrial heritage) of the proposed development area. The assessment shall include a full inventory, mapping and survey (photographic, descriptive, photogrammetric, as appropriate) of underwater cultural heritage features and structures identified by fieldwork, cartographic analysis, historical research and prior archaeological investigations. (b) A licensed dive/wade assessment, accompanied by a hand-held metal detection survey, centred on (but not confined to) the area(s) where instream works are proposed. The dive and metal detection surveys shall be undertaken by a suitably qualified and experienced underwater archaeologist. All identified underwater cultural heritage shall be surveyed (photographic, descriptive, photogrammetric) in detail as part of the assessment. (c) A dive/survey licence (Section 3, 1987 National Monuments Act) and detection device consent (Section 2, 1987 National Monuments Act) will be required for the dive survey and metal detection, respectively. Licences should be applied for to the National Monuments Service and should be accompanied by a detailed Method Statement. Note a period of three to four weeks should be allowed to facilitate processing and approval of the licence applications and Method Statement. All archaeological wading/diving should comply with the Health and Safety Authority's ‘Safety, Health and Welfare at Work (Diving) Regulations 2018/2019’. (d) Having completed the above-described works, the archaeologist shall submit a written report to the Department of Housing, Local Government and Heritage describing the results of the Underwater Archaeological Impact Assessment. The report shall include a comprehensive Archaeological Impact Statement that comments on the degree to which the extent, location and levels of all proposed construction activities (including in- stream/intertidal site investigation works) required for the development will impact upon any underwater cultural heritage and archaeological potential that have been identified. The Archaeological Impact Statement shall describe the potential impact(s) of all proposed 12 instream development, access and ingress routes to the river, and shall also assess any proposed additional site investigation/geotechnical impacts and potential secondary/indirect impacts such as souring resulting from changes in hydrology. The Archaeological Impact Statement should be illustrated with appropriate plans, sections and photographs that clearly describe any adverse effect(s) of the development on the underwater cultural heritage and proposals for their mitigation. Mitigation should include recommendations for redesign to allow for full or partial preservation in situ, the intuition of archaeological exclusion zones, further wade/dive surveys, test-excavations, excavations (‘preservation by record’) and/or monitoring, as deemed appropriate. The Department of Housing, Local Government and Heritage will advise with regard to these matters. No construction works shall commence until after the Underwater Archaeological Impact Assessment has been submitted and reviewed. All recommendations will require the agreement of the Department of Housing, Local Government and Heritage. The Construction Environmental Management Plan shall include the location of all underwater cultural heritage constraints relevant to the proposed development, as set out in Chapter 12 of the Environmental Impact Assessment Report (AECOM, April 2024) and by any subsequent archaeological investigations associated with the project. The Construction Environmental Management Plan shall clearly describe all identified likely archaeological impacts, both direct and indirect, and all mitigation measures to be employed to protect the archaeological or cultural heritage environment during all phases of site preparation and construction activity. Reason: In order to conserve the archaeological heritage of the area and to secure the preservation (in-situ or by record) and protection of any archaeological remains that may exist within the site. 11. (a) Prior to commencement of development, all trees, groups of trees, hedging and shrubs which are to be retained shall be enclosed within stout fences not less than 1.5 metres in height. This protective fencing shall enclose an area covered by the crown spread of the branches, or at minimum a radius of two metres from the trunk of the tree or the centre of the shrub, and to a distance of two metres on each side of the hedge for its full length and shall be maintained until the development has been completed. (b) No construction equipment, machinery or materials shall be brought onto the site for the purpose of the development until all the trees which are to be retained have been protected by this fencing. No work shall be carried out within the area enclosed by the fencing and, in particular, there shall be no parking of vehicles, placing of site huts, storage compounds or topsoil heaps, storage of oil, chemicals or other substances, and no lighting of fires, over the root spread of any tree to be retained. (c) Prior to commencement of development, an Operational Stage Biodiversity Management Plan for the site shall be prepared and agreed in writing with the planning authority. Reason: To protect trees and planting during the construction period in the interest of visual amenity. 12. Trees to be removed on site shall be felled in late summer or autumn. Any disturbance to bats and badger setts on site shall be in a manner to be agreed in writing with the planning authority on the advice of a qualified ecologist. Reason: In the interest of nature conservation. 13. During the construction phase, the developer shall adhere to the measures, as set out in the following documents: (a) ‘Guidelines for the Treatment of Badgers prior to the Construction of National Road Schemes,’ published by the National Roads Authority in 2006. The mitigation measures, as set out in section 78.6.1.7 of the Environmental Impact Assessment Report shall be implemented in full. (b) ‘Bat Mitigation Guidelines for Ireland v2’. Irish Wildlife Manuals, Number 134, published by the National Parks and Wildlife Service (2022). The specific mitigation measures, as set out in section 78.6.1.8 of the EIAR shall be implemented in full. (c) ‘Guidelines for the Treatment of Otters Prior to the Construction of National Road Schemes,’ published by the National Roads Authority in 2008. The mitigation measures, as set out in section 78.6.1.9 of the Environmental Impact Assessment Report shall be implemented in full. The requirements of any licence required from the National Parks and Wildlife Service shall be strictly adhered to and details of any such licence shall be submitted to the planning authority. Reason: In the interest of wildlife protection. 14. Water supply arrangements shall comply with the requirements of Uisce Eireann for such works and services. Reason: In the interest of public health. 13 15. The construction of the development shall be managed in accordance with a final Construction Management Plan, which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. This plan shall provide details of intended construction practice for the development, including, inter alia: (a) Location of the site and materials compounds including areas identified for the storage of construction refuse; (b) Location of areas for construction site offices and staff facilities; (c) Details of site security fencing and hoarding; (d) 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; (e) Measures to prevent the spillage or deposit of clay, rubble or other debris on the public road network; (f) Details of appropriate mitigation measures for noise, dust and vibration, and monitoring of such levels; (g) 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; (h) Off-site disposal of construction/demolition waste and details of how it is proposed to manage excavated soil, and (i) A site-specific water management plan, to include detailed drawings for each development phase of the project identifying measures to ensure that surface water run-off is controlled such that no silt or other pollutants enter estuarine waters, local surface waters or drains. A record of daily checks that the works are being undertaken in accordance with the Construction Management Plan shall be kept for inspection by the planning authority. Reason: In the interests of amenities, public health and safety. 16. Construction and demolition waste shall be managed in accordance with a Construction Waste and Demolition Management Plan, which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development . This plan shall be prepared in accordance with the ‘Best Practice Guidelines on the Preparation of Waste Management Plans for Construction and Demolition Projects,’ published by the Department of the Environment, Heritage and Local Government in July 2006. Reason: In the interest of sustainable waste management. 17. During the site clearance, preparation and construction phase of the development, dust levels shall not exceed 350 milligrams per square metre (TA LUFT Air Quality Standard) per day averaged over 30 days, when measured at the site boundary. Reason: In the interests of public health and residential amenity. 18. (a) The vibration levels from blasting shall not exceed a peak particle velocity of 12mm/sec. (b) Blasting shall not give rise to air overpressure values exceeding 125 dB (Lin) max peak. (c) Blasting shall only take place between 1000 hours and 1700 hours from Monday to Friday. Prior to the firing of any blast, the developer shall give notice of their intention to the occupiers of all dwellings within 600 metres of the site. An audible alarm for a minimum period of one minute shall be sounded. This alarm shall be of sufficient power to be heard at all dwellings adjacent to the site. (d) Blasting activities shall be carried out in accordance with the details submitted to An Bord Pleanala on the 19th day of April 2024. Reason: In the interests of residential amenity and public safety. 19. Details of the materials, colours and textures of all external finishes to the proposed buildings and structures shall be as submitted with the application, unless otherwise agreed in writing with the planning authority prior to the commencement of development. Reason: In the interests of landscape and visual amenity. 20. (a) The development shall be carried out in accordance with the Guidance to Manage the Risk to Marine Mammals from Man-Made Sound Sources in Irish Waters (Department of Arts, Heritage and the Gaeltacht, 2014). (b) The developer shall employ suitably qualified marine mammal observers for the duration of onshore blasting. Commencement of blasting shall be delayed if the marine mammal observers note dolphins within 500 metres of the site within 20 minutes of the planned commencement of works. No action shall be necessary if a dolphin approaches once operations have commenced. A log of the marine mammal observer operations shall be submitted to the planning authority, following completion of these works. Reason: In the interest of wildlife protection. 14 21. The firewater retention pond shall be sized and designed in accordance with the Environmental Protection Agency (EPA) ‘Guidance on Retention Requirements for Firewater Run-off’ (EPA 2019). In the event of a fire or a spillage to storm water, the system shall provide for the automatic diversion of storm water for collection. Reason: In the interest of environmental protection. 22. Prior to commencement of development, the developer shall agree the location and nature of any obstacle lights, which may be necessary, with the Irish Aviation Authority. Details of such lights, if any, shall be submitted for the records of the planning authority. Reason: In the interest of public safety. 23. Prior to commencement of development, a comprehensive lighting scheme for the development prepared by a suitably qualified lighting specialist in accordance with Guidance Note 01/21 The Reduction of Obtrusive Light at Night (Institute of Lighting Professionals (2021)) shall be submitted to, and agreed in writing with, the planning authority. Lighting for the facility shall be designed to incorporate relevant best-practice mitigation measures to minimise light pollution, and shall avoid the use of unfiltered, white LED, metal halide, white fluorescent, halogen and mercury vapour lighting. Full cut-off lighting shall be employed for all lighting. LED lighting used on the site should have CCT values at or below 3000K, where possible, and light spill onto the estuary should be restricted. Consideration may be given to the use of variable lighting levels or other controls to minimise unnecessary lighting. The scheme shall also set out practices to minimise light pollution during construction. Reason: In the interest of visual amenity and to reduce impacts on wildlife and habitats. 24. The developer shall pay to the planning authority a financial contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority that is provided or intended to be provided by or on behalf of the authority in accordance with the terms of the Development Contribution Scheme made under section 48 of the Planning and Development Act 2000, as amended. The contribution shall be paid prior to commencement of development or in such phased payments as the planning authority may facilitate and shall be subject to any applicable indexation provisions of the Scheme at the time of payment. Details of the application of the terms of the Scheme shall be agreed between the planning authority and the developer or, in default of such agreement, the matter shall be referred to An Bord Pleanala to determine the proper application of the terms of the Scheme. Reason: It is a requirement of the Planning and Development Act 2000, as amended, that a condition requiring a contribution in accordance with the Development Contribution Scheme made under section 48 of the Act be applied to the permission. 25. The developer shall pay to the planning authority a financial contribution as a special contribution under section 48(2)(c) of the Planning and Development Act 2000, as amended, in respect of works which will facilitate the proposed development, comprising: (a) The upgrade of the public road (L 1010) between the proposed development site and the R551, and (b) Improvements at the junction of the R551 and L 1010 to accommodate the projected nature and volume of traffic travelling along the L 1010 Coast Road. The amount of the contribution shall be agreed between the planning authority and the developer, or, in default of such agreement, the matter shall be referred to An Bord Pleanala for determination. The contribution shall be paid prior to commencement of development or in such phased payments as the planning authority may facilitate and shall be updated at the time of payment in accordance with changes in the Wholesale Price Index - Building and Construction (Capital Goods), published by the Central Statistics Office. Reason: It is considered reasonable that the developer should contribute towards the specific exceptional costs which are incurred by the planning authority which are not covered in the Development Contribution Scheme, and which will benefit the proposed development. 26. (i) Prior to commencement of development, the developer shall lodge with the planning authority a cash deposit, a bond of an insurance company, or other security to secure the provision and satisfactory reinstatement of public roads damaged by the transfer of materials or use as haul routes associated with the proposed development, coupled with an agreement empowering the local authority to apply such security or part thereof to the satisfactory completion of such works. The form and amount of the security shall be as agreed between the planning authority and the developer or, in default of agreement, shall be referred to An Bord Pleanala for determination. (ii) Prior to commencement of development, the developer shall lodge with the planning authority a cash deposit, a bond of an insurance company, or such other security as may be acceptable to the planning authority, to secure the satisfactory reinstatement of the site on 15 cessation of the project coupled with an agreement empowering the planning authority to apply such security or part thereof to such reinstatement. The form and amount of the security shall be as agreed between the planning authority and the developer or, in default of agreement, shall be referred to An Bord Pleanala for determination. Reason: To ensure the satisfactory completion of the development.” Overall requirements for relief by way of judicial review 34. As set out in Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November 2025) and other cases (see also Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23), there is an eight-fold path to obtaining relief by way of judicial review. These tests are cumulative, and relief should only be granted if the proceedings meet all of the following: (i) the applicant complies with jurisdictional requirements (e.g. time or standing to bring the proceedings at all (as opposed to standing for particular issues within a case that the applicant can bring at a general level)); (ii) the applicant’s point is legally correct and workable; (iii) the applicant’s point is properly pleaded 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. 35. Before dealing with specific elements in detail, some general comments are worth noting at this juncture: (i) Judicial review is concerned with the legality rather than the correctness of the decision: 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 16 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 17 and others) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212, Lord Hodge and Lord Sales SCJJ.; per O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 37. As stated by Peart J. in G.T. v. Minister for Justice, Equality and Law Reform [2007] IEHC 287, [2007] 7 JIC 2708 (Unreported, High Court, 27 July 2007), para. 3: “It is not desirable that a decision be parsed and analysed word for word in order to discern some possible infelicity in the choice of words or phrases used and to hold that a finding of credibility adverse to the applicant is invalid, unless the matters relied upon have been clearly misunderstood or mis-stated by the decision maker. The whole of the decision must be read and considered in order to reach a view as to whether, when the decision is read in its entirety and considered as a whole, there was no reasonable basis for the decision maker reaching that conclusion”. See also A.I.M.Z. v. Refugee Applications Commission & Ors. [2008] IEHC 420, [2008] 11 JIC 0705 (Unreported, High Court, 7 November 2008) at para. 24 per Clarke J.; per McCarthy J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009] IEHC 383, [2010] 7 JIC 2803 (Unreported, High Court, 28 July 2009), para. 13; per Clark J. in Obuseh v. Minister for Justice, Equality and Law Reform & Ors. [2010] IEHC 93, [2010] 1 JIC 1404 (Unreported, High Court, 14 January 2010), para. 21; per MacEochaidh J. in Bondo v. Minister for Justice & Ors. [2012] IEHC 454, [2012] 11 JIC 0903 (Unreported, High Court, 9 November 2012), para. 24; per Barr J. in P.M. v. Refugee Appeals Tribunal [2014] IEHC 497, [2014] 10 JIC 0204 (Unreported, High Court, 2 October 2014), para. 59; per Faherty J. in O.S. v. Refugee Appeals Tribunal [2015] IEHC 839, 2015 WJSC-HC 25494, [2015] 12 JIC 1505 (Unreported, High Court, 15 December 2015), para. 59; X.E. v. International Protection Appeals Tribunal [2018] IEHC 402, [2018] 7 JIC 0405 (Unreported, High Court, Keane J., 4 July 2018); B.D.C. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460, [2018] 7 JIC 2006 (Unreported, High Court, 20 July 2018), para. 7; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13. Mere technicalities are not normally a proper basis for the grant of relief: see e.g. The State (Toft) v. Galway Corporation [1981] ILRM 439, Pembroke Road Association v. An Bord Pleanála [2022] IESC 20, [2022] 2 ILRM 417, 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 18 make a balanced and reasonable as