Connolly and Anor v An Coimisiún Pleanála and Ors

[2026] IEHC 224 THE HIGH COURT PLANNING & ENVIRONMENT [H.JR.2025.0001350] IN THE MATTER OF SECTION 50 AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000 BETWEEN GRETTA CONNOLLY AND MICHAEL CONNOLLY APPLICANTS AND AN COIMISIÚN PLEANÁLA RESPONDENT AND BALLYSALLAGH SOLAR FARM LIMITED AND AUSTIN FARRAR NOTICE PARTIES Date of impugned decision: 17 July 2025 Date proceedings commenced: 9 September 2025 Date of main hearing: 27 March 2026 Date draft judgment circulated: 9 April 2026 JUDGMENT of Humphreys J. delivered on Friday the 17th day of April 2026 1. The Supreme Court has recently upheld the principle that an overall development can be consented in parts: Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024). The present case involves a challenge to approval (under s. 182B(5) of the Planning and Development Act 2000) for a substation and grid connection serving a solar farm (which was separately approved under s. 37 of the 2000 Act). While I appreciate the sincerity of the applicants as environmental litigants, and the very considerable expenditure of imagination and effort made to present the case on their behalf, the legal question here is whether any plausible basis to impugn the decision, which was acceptable to both the inspector and the commission, has been made out, especially when the solar farm permission, although pending at the time of the present approval, has since been granted. Geographical context 2. The proposed development (https://www.pleanala.ie/en-ie/case/321518) is a 220 kV AIS tail-fed electricity substation (with 33 kV customer compound) (including two control buildings, associated electrical structures and apparatus, lightning protection, telecom pole, perimeter security fencing, security lighting, water and drainage infrastructure, temporary construction compound) to connect to and serve a solar farm; associated grid connection between the proposed substation and the existing Knockraha 220 kV substation comprising 220 kV underground electricity cables of c. 10.2 km in length to be provided in an excavated trench including associated fibre cable and ducting, and all associated site development and reinstatement works; temporary construction and operational access from the L7691, vehicular entrance and access track from this public road; all ancillary site development, landscaping and earthworks. The project will serve a solar farm with a total area of c. 179 ha. The solar farm will consist of solar panels on ground mounted frames, 25 single-storey electrical inverter/transformer stations, three single-storey spare parts containers, three Ring Main Units, seven weather stations, underground electrical ducting and cabling within the development site, private lands and within the L7691 and L7692 public roads to connect solar farm field parcels, security fencing, CCTV, access tracks, seven stream/drain deck crossings, temporary construction compounds, landscaping and all associated ancillary development and drainage works. Construction and operational access will be via four entrances from the R626, L7691 and L7692, at Ballysallagh, Dundullerick East, Dundullerick West, Rathcobane, County Cork. All located within the townland of Aghaduff, Ballinbrittig, Ballynabrannagh West, Ballynagaul, Ballynaglogh, Ballynanelagh, Ballynaskeha, Ballysallagh, Ballyvatta, Glengarriff More, Killeena and Pigeonhill, Co. Cork. Facts 3. The development in issue is located within the administrative area of Cork County Council. The relevant development plan is the Cork County Development Plan 2022-2028. 4. On 11 July 2024, the first named notice party, Ballysallagh Solar Farm Limited (Ballysallagh), engaged in pre-application discussions with the commission with a view to establishing whether the proposed development was strategic infrastructure development (SID). 5. A pre-application consultation meeting was held on 20 August 2024. 2 6. On 28 August 2024, Ballysallagh applied to the council for planning permission for the Ballysallagh Solar Farm (reg. ref. no. 24/5630). 7. On 21 October 2024, the council issued a request for further information (RFI) related to the Ballysallagh Solar Farm application. 8. On 13 September 2024, the commission inspector prepared a report relevant to the pre- application consultation relating to the proposed electricity transmission development. 9. On 23 September 2024, the commission confirmed that the proposed electricity transmission development fell within the scope of s. 182A of the Planning and Development Act 2000 (the 2000 Act) and that an application for approval could be made directly to the commission. 10. On 18 December 2024, Ballysallagh submitted the application for development the subject of these proceedings to the commission (ref. 321518). The second named notice party had submitted a letter of consent for the application. The application was described as follows: “[A] 220kV AIS tail-fed electricity substation (with 33kV customer compound) (including two control buildings, associated electrical structures and apparatus, lightning protection, telecom pole, perimeter security fencing, security lighting, water and drainage infrastructure, temporary construction compound) to connect to and serve a solar farm; associated grid connection between the proposed substation and the existing Knockraha 220kV substation comprising 220kV underground electricity cables of c.10.2 km in length to be provided in an excavated trench including associated fibre cable and ducting, and all associated site development and reinstatement works; temporary construction and operational access from the L7691, vehicular entrance and access track from this public road; all ancillary site development, landscaping and earthworks. The development subject to this application forms part of grid connection and access arrangements which will facilitate the connection of the proposed Ballysallagh Solar Farm (Cork County Council Reference 24/05630) to the national grid.” 11. On 18 February 2025, Ballysallagh responded to the council’s RFI request related to the Ballysallagh Solar Farm application. 12. On 20 February 2025, the council made a submission to the commission in respect of proposed electricity transmission development. 13. The applicants made submissions on the application by letters dated 23 February 2025. Submissions were also made by several other parties including by the Leamlara Preservation Group on 11 February 2025 (the first named applicant is a member of that group). 14. On 2 April 2025, Ballysallagh was invited to make a submission on the observations received in relation to the application. The planning authority also made a submission. 15. On 29 April 2025, Ballysallagh provided a response (prepared by HW Planning) to the submissions lodged. 16. The commission appointed an inspector to prepare a report and make a recommendation on the application for approval of the proposed development. Following a site inspection on 24 March 2025, the inspector prepared a report dated 30 May 2025, in which he recommended that approval be granted for the proposed development subject to twelve conditions. 17. The application was considered by the commission at a meeting held on 15 July 2025, at which the commission decided to grant approval generally in accordance with the inspector’s recommendation subject to eleven conditions. 18. The commission made its order granting approval for the proposed development on 17 July 2025 pursuant to s. 182A of the 2000 Act and subject to eleven conditions. 19. The application for the proposed Ballysallagh Solar Farm ref. 24/05630 (referred to in the description of the development) was subsequently refused permission by Cork County Council on 1 September 2025 for three reasons: “1. Policy objective HE 16-9: Archaeology and Infrastructure Schemes of the Cork County Development Plan (2022) stipulates that all large scale planning applications (i.e. development on lands 0.5ha or more in area or 1km or more in length) are subjected to an archaeological assessment (which would include appropriate archaeological investigations such as licensed geophysical survey and archaeological testing) as part of the planning application process to guide the design and layout of the proposed scheme/development and safeguard the archaeological heritage of the County in line with Development Management Guidelines. Policy objective HE16-13: Undiscovered Archaeological Sites seeks to protect and preserve previously unrecorded archaeological sites within County Cork as part of any development proposals. The Council will require preservation in situ to protect archaeological monuments discovered. Preservation by record will only be considered in exceptional circumstances. Having regard to identified areas of archaeological potential on site and to the scale/extent of the development there is potential for impacts on the Archaeological/Cultural heritage of the area. In the absence of a comprehensive Archaeological Impact Assessment (incorporating archaeological geophysics and testing) 3 and comprehensive assessment of potential impacts, it is considered that the applicant has failed to demonstrate that the proposed development would not be seriously injurious to the Archaeological/Cultural heritage of the area. Therefore, it is considered that the proposed development would materially contravene policy objectives HE 16-9 and HE 16-13 of the Cork County Development Plan (2022) and would be contrary to the proper planning and sustainable development of the area. 2. Having regard to the scale, extent and extensive site coverage of the proposed solar farm, and the operational duration, relative to the existing rural landscape and residential properties, and in the absence of sufficient mitigation measures to break up the overall panoramic /monolithic nature of the proposed development by way of siting, buffers, appropriate screening and landscaping to aid with its visual assimilation into its surroundings, it is considered that the proposed solar farm would represent a visually incongruous and overbearing feature on the rural landscape at this location which would be detrimental to the visual amenities of the area, would materially contravene policy objective GI 14-9: Landscape of the Cork County Development Plan (2022) and would depreciate the value of property in the vicinity. Accordingly, the proposed development would be contrary to the proper planning and sustainable development of the area. 3. On the basis of the information provided, in particular in the absence of baseline and proposed greenfield runoff rates, it has not been demonstrated that there will be no net increase in discharge rates or runoff volume from the site arising from the proposed development. Accordingly, it has not been demonstrated that the proposed development would not have an adverse impact on the wider hydrological regime of the area and/or contribute to flood risk elsewhere and would therefore be contrary to the proper planning and sustainable development of the area.” 20. That refusal was appealed to the commission on 26 September 2025 (ref. 323747) by Ballysallagh. 21. On 28 January 2026 the inspector recommended a grant of permission for the solar farm. 22. On 19 February 2026, the commission granted permission (ACP-323747-25) for the Ballysallagh Solar Farm. Procedural history 23. Papers were filed in the Central Office on 9 September 2025, and I granted leave on 29 September 2025. 24. On or about 10 October 2025, the first named notice party uploaded a form to apply for a hearing date seeking to have the expedited procedure apply to the proceedings. 25. On 13 October 2025, a hearing date was fixed for 27 March 2026, with the expedited procedure to apply. 26. A statement of opposition and verifying affidavit were filed on behalf of the commission on 16 December 2025. 27. A statement of opposition and verifying affidavit as well as an additional affidavit were filed by the first named notice party on 23 December 2025. 28. A replying affidavit was filed by the applicants on 18 February 2026. 29. The applicants’ written legal submissions were delivered on 18 February 2026. 30. The commission’s written legal submissions were delivered on 26 February 2026. 31. Ballysallagh’s written legal submissions were delivered on 5 March 2026. 32. The matter was listed for mention on 9 March 2026 for callover and for hearing on 27 March 2026. 33. 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. 34. On 9 April 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. 35. 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; 4 (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. 36. 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). 37. 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. 38. The deadline for such comments from the parties was to be 16:00 on 14 April 2026. The commission and notice party helpfully pointed out some minor errors (right down to a single superfluous space character in the draft of para. 86 which is truly world-class proofreading by the commission on any metric and exactly the sort of commitment to assist the court that I genuinely appreciate from parties). The applicants confirmed that they had no comments. Relief sought 39. The reliefs sought are as follows: “1. An Order of certiorari by way of application for judicial review quashing the decision of An Coimisiún Pleanála (the Commission), dated 17th July 2025 (ABP- 321518-24) to grant planning permission for development of a 220kV Substation and Grid Connection at Aghaduff, Ballinbrittig, Ballynabrannagh West, Ballynagaul, Ballynaglogh, Ballynanelagh, Ballynaskeha, Ballysallagh, Ballyvatta, Glengarriff More, Kileena and Pigeonhill, County Cork. 5 2. Such declaration(s) of the legal rights and/or legal position of the Applicant and/or persons similarly situated as the Court considers appropriate. 3. A Declaration that Section 50B of the 2000 Act, 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 Northeast 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. 4. Such further or other order as this Honourable Court shall deem fit. 5. The costs of these proceedings. 6. Liberty to file further affidavits.” Grounds of challenge 40. The core grounds of challenge are as follows: “DOMESTIC LAW GROUNDS Core Ground 1: The impugned decision of the Commission is invalid, void, ultra vires, and of no legal effect, insofar as the Commission erred in fact and/or law in finding that the application site was not subject to a specific zoning and/or not subject to Agriculture (AG) zoning and the objectives relating to Agriculture AG zoning in the Cork County Development Plan 2022–2028, including Objective ZU 18-19, and/or that it would align with local policy and/or erred in failing and/or to give adequate reason relating to the zoning. The development is not consistent with, (‘Development Plan’) and/or materially contravenes, the AG zoning and the requirements of Objective ZU 18-19, which provides, inter alia, that it is a requirement to conserve and protect agricultural land from undesirable development and non-agricultural uses. The Commission failed to take account of relevant considerations namely relating to the site’s deemed zoning under Objective ZU 18-4, the requirement for retention of agricultural use under Section 18.3.45, and the limitations on appropriate uses in agricultural areas, in purporting to grant permission for the development. It took irrelevant considerations into account. Further particulars are set out in Part 2 below. Core Ground 2: The impugned decision of the Commission is invalid, void, ultra vires, and of no legal effect, insofar as the Commission in granting planning permission for the 220kV AIS electricity substation and associated grid connection acted without proper regard to the Inspector’s express recommendation to consider the status of the Ballysallagh Solar Farm (Cork County Council Planning Ref. 24/5630) and/or the submission of the planning authority that the application could be considered premature, which, at the time of the Commission’s decision, was undetermined and at Further Information stage (and was subsequently refused by the planning authority), and so failed to have regard to relevant considerations. The Commission failed to provide reasons for its apparent disregard of the Inspector’s recommendation and/or rejection of the submission of the planning authority that the application was premature, in purporting to grant permission. Further particulars are set out at Part 2 below. Core Ground 3: The impugned decision of the Commission is invalid, void, ultra vires, and of no legal effect insofar as the Commission erred in law in its application of the Cork County Development Plan objectives in granting planning permission for the proposed 220kV AIS electricity substation and associated grid connection. In particular, the Commission misapplied and/or failed to have proper regard to Objectives ET 13-14 and ET 13-21 of the CCDP and/or failed to give adequate reasons and/or to engage with the conditional nature of those objectives and/or acted irrationally insofar as it found that such objectives supported the proposed development, where those objectives require that such development (including associated infrastructure) be located at ‘appropriate locations’ and be ‘subject to environmental safeguards’ and ‘proper planning considerations’ in granting permission for a substation that is intrinsically dependent on the Ballysallagh Solar Farm notwithstanding that the solar farm remained at Further Information stage and undetermined/unassessed at the time of the Commission’s decision, and in circumstances where the Inspector expressly advised the Commission to consider the status of that application before making any determination and the planning authority considered the application premature. Further particulars are set out at Part 2 below.” The impugned decision 41. The impugned decision provides as follows: “Decision APPROVE the proposed development under section 182A of the Planning and Development Act, 2000, as amended, for the following reasons and considerations and subject to the conditions set out below, and 6 DETERMINE under section 182B of the Planning and Development Act, 2000, as amended, the sum to be paid by the undertaker in respect of costs associated with the application, as set out in the Schedule of Costs below. Reasons and Considerations The Commission performed its functions in relation to the making of its decision, in a manner consistent with: (a) 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, and the requirement to, in so far as practicable, perform its functions in a manner consistent with Climate Action Plan 2024 and Climate Action Plan 2025 and the national long term climate action strategy, national adaptation framework and approved sectoral adaptation plans set out in those Plans and in furtherance of the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State. (b) Directive 2000/60/EC, the Water Framework Directive and the requirement to exercise its functions in a manner which is consistent with the provisions of the Directive and which achieves or promotes compliance with the requirements of the Directive. The Commission also had regard to the following in coming to its decisions: (a) European legislation, including of particular relevance: The relevant provisions of EU Directive 201 1/92/EU, as amended by Directive 2014/52/EU (EIA Directive) on the assessment of the effects of certain public and private projects on the environment, European Policy/Legislation including: (i) Directive 2014/52/EU amending Directive 2011/92/EU (Environmental Impact Assessment Directive); (ii) Directive 92/43/EEC (Habitats Directive) and Directive 79/409/EEC, as amended by 2009/147/EC (Birds Directive); (iii) Directive 2000/60/EC (Water Framework Directive) National Policy and Guidance including: (i) Project Ireland 2040 - National Planning Framework (2018); (ii) National Planning Framework – First Revision, April 2025; (iii) National Development Plan (2021-2030); (iv) The objectives and targets of the National Biodiversity Action Plan 2023-2030; (v) Long-term Strategy on Greenhouse Gas Emissions Reductions (2024); (vi) Policy Statement on Security of Electricity Supply (November 2021); (vii) National Energy Security Framework (April 2022); (viii) National Energy and Climate Action Plan (2021-2030); Regional and Local Planning Policy, including in particular: (i) The Regional Spatial and Economic Strategy for the Southern Region; (ii) The Cork County Development Plan 2022 - 2028; (iii) The location, nature, scale and layout of the proposed development; (iv) The range of mitigation measures set out in the Natura Impact Statement; (v) The submissions received in relation to the application by all parties; (vi) The Inspector’s report and recommendation. Appropriate Assessment Stage 1: The Commission agreed with and adopted the screening assessment and conclusion carried out in the Inspector’s report that the Cork Harbour Special Protection Area (Site Code: 004030) and Great Island Channel Special Area of Conservation (Site Code: 001058) are the only European Sites in respect of which the proposed development has the potential to have a significant effect. Appropriate Assessment Stage 2: The Commission considered the Natura Impact Statement and associated documentation submitted with the application for approval, the mitigation measures contained therein, the submissions and observations on file, and the Inspector’s assessment. The Commission completed an appropriate assessment of the implications of the proposed development for the affected European Sites, namely the Cork Harbour Special Protection Area (Site Code: 004030) and Great Island Channel Special Area of Conservation (Site Code: 001058), in view of the sites’ conservation objectives. The Commission considered that the information before it was adequate to allow the carrying out of an appropriate assessment. In completing the appropriate assessment, the Commission considered, in particular, the following: (i) the likely direct and indirect impacts arising from the proposed development both individually or in combination with other plans or projects; (ii) the mitigation measures which are included as part of the current proposal; and (iii) the conservation objectives for the European Sites. 7 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 integrity of the aforementioned European Sites, having regard to the sites’ conservation objectives. In overall conclusion, the Commission was satisfied that the proposed development, by itself or in combination with other plans or projects, would not adversely affect the integrity of the European Sites, in view of the sites’ conservation objectives. Proper Planning and Sustainable Development It is considered that, subject to compliance with the conditions set out below, the proposed development would be consistent with and align with relevant European, national, regional and local planning and related policy which recognises the importance of renewable energy and associated electricity infrastructure to support transmission and distribution of this energy to the national grid (noting also the dual consent obligation which requires this application for substation and grid connection and associated works to be made directly to the Commission in its constituent form), would not have an unacceptable impact on the landscape, biodiversity or on the cultural or archaeological heritage, would not seriously injure the visual or residential amenities of the area or of property in the vicinity, and would be acceptable in terms of traffic safety and convenience. 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, 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 undertaker 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 10 years from the date of this Order. Reason: Having regard to the nature of the proposed development, the Commission considered it reasonable and appropriate to specify a period of the permission in excess of five years. 3. The mitigation measures contained in the submitted Natura Impact Statement shall be implemented in full. Reason: To protect the integrity of European Sites. 4. All of the environmental, construction, and ecological related mitigation measures, as set out in the Ecological Impact Assessment, Construction and Environmental Management Plan, Electrical Infrastructure - Construction Methodology, Noise Impact Assessment Report, and other particulars submitted with the application, shall be implemented by the undertaker in conjunction with the timelines set out therein except as may otherwise be required to comply with the conditions of this Order. Reason: In the interests of clarity and of the protection of the environment during the construction and operational phases of the development. 5. Prior to commencement of development, a detailed Construction Environmental Management Plan (CEMP) and Electrical Infrastructure - Construction Methodology for the construction phase shall be submitted to, and agreed in writing with, the planning authority, generally in accordance with the Outline CEMP and Electrical Infrastructure - Construction Methodology submitted with the application. The CEMP and Electrical Infrastructure - Construction Methodology shall incorporate the following: (a) a detailed plan for the construction phase incorporating, inter alia, construction programme, supervisory measures, noise, dust and surface water management measures including appointment of a site noise liaison officer, transport and disposal of construction waste. (b) a comprehensive programme for the implementation of all monitoring commitments made in the application and supporting documentation during the construction period; (c) an Invasive Species Eradication and Management Strategy for the site, to include monitoring post completion of works; (d) an emergency response plan; (e) proposals in relation to public information and communication. A record of daily checks that the works are being undertaken in accordance with the Construction Environmental Management Plan and Construction Methodology shall be kept for inspection by the planning authority. 8 Reason: In the interests of environmental protection and orderly development 6. Prior to the commencement of development, the undertaker shall comply with the transportation requirements of the planning authority for such works and services, as appropriate. Such requirements shall require provision of a detailed Traffic Management Plan and shall include the following details: (a) Consultation with Transport Infrastructure Ireland (TII) and all private and public companies and road authorities; (b) Details of haulage routes, control measures for abnormally sized vehicles and an Abnormal Load Assessment; (c) A road condition survey of roads and bridges along the haul route to be carried out at the undertaker’s expense and to the satisfaction of the planning authority; (d) Detailed arrangements for construction damage to be made good by the undertaker to the satisfaction of the planning authority; (e) Detailed arrangements for temporary traffic management/controls and protocols to keep residents informed; (f) Construction route signage; (g) Road Opening Licences that will be required; (h) Arrangements for the phasing of the development. Reason: in the interests of traffic and pedestrian safety. 7 (a) All mitigation measures in relation to archaeology and cultural heritage, as set out in the Archaeological Impact Assessment (Rubicon Heritage Services Limited date October 2024) shall be implemented in full, except as may otherwise be required in order to comply with the conditions of this Order (b) The undertaker shall engage a suitably qualified archaeologist (licensed under the National Monuments Acts) to carry out a pre-development Archaeological Geophysical Survey and a pre-development Archaeological Test Excavation at the location for the sub- station and to submit an archaeological impact assessment report for the written agreement of the planning authority, following consultation with the Department of Housing, Local Government and Heritage, in advance of any site preparation works or groundworks, including site investigation works/topsoil stripping/site clearance and/or construction works. (i) The Archaeological Geophysical Survey must be carried out under licence from the National Monuments Service and in accordance with an approved method statement. Having completed the work, the archaeologist shall submit a written report to the Department and the planning authority describing the results of the Archaeological Geophysical Survey. (ii) The archaeologist shall liaise with the Department to establish - based on the results of the Archaeological Geophysical Survey - the appropriate scope of the Archaeological Test Excavation to adequately characterise the character and extent of any potential sub-surface archaeological material within the development site. (iii) The report on the Archaeological Test Excavation shall include an archaeological impact statement and mitigation strategy. Where archaeological material is shown to be present, avoidance, preservation in-situ, preservation by record (archaeological excavation) and/or monitoring may be required. (iv) Any further archaeological mitigation requirements specified by the planning authority, following consultation with the Department, shall be complied with by the undertaker. (v) No site preparation and/or construction works shall be carried out on site until the archaeologist's report has been submitted to, and approval to proceed is agreed in writing with, the planning authority. (c) The Construction Environment Management Plan (CEMP) shall include the location of any and all archaeological or cultural heritage constraints relevant to the proposed development, as set out in Archaeological Impact Assessment by Rubicon Heritage Services Limited (dated October 2024) and by any subsequent archaeological investigations associated with the project. The CEMP 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. (d) The planning authority and the Department shall be furnished with a final archaeological report describing the results of all archaeological monitoring and any archaeological investigative work/excavation required, following the completion of all archaeological work on site and any necessary post-excavation specialist analysis. All resulting and associated archaeological costs shall be borne by the undertaker. 9 Reason: To ensure the continued preservation (either in situ or by record) of places, caves, sites, features and other objects of archaeological interest. 8. Prior to the commencement of development, the undertaker shall engage a suitably qualified archaeologist (licensed under the National Monuments Acts) to carry out an Underwater Archaeological Impact Assessment (UAIA) report which shall include the following: (a) A desktop assessment that addresses the underwater cultural 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 licenced dive/wade assessment, accompanied by a hand-held metal detection survey, centred on (but not confined to) the area(s) where in- stream works are proposed within or immediately proximal to the proposed development area, including the proposed locations of enabling works, coffer dams and machinery movements that may affect the watercourses. The dive/wade assessment and metal detection survey shall be undertaken by a suitably licenced and experienced underwater archaeologist. All identified underwater cultural heritage shall be surveyed (photographic, descriptive, photogrammetric) in detail as part of the assessment. A Dive/Survey licence (Section 31987 National Monuments Act) and Detection Device consent (Section 2 1987 National Monuments Act) will be required for the dive/wade survey and metal detection, respectively. Licenses should be applied for to the Department of Housing, Local Government and Heritage and should be accompanied by a detailed 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. (c) Having completed the above-described works, the archaeologist shall submit a final written report to the Department of Housing, Local Government and Heritage describing the results of the UAIA. The report shall include a comprehensive Archaeological Impact Statement (AIS) that comments on the degree to which the extent, location and levels of all proposed works (including ground disturbances, foundations, service trenches and other sub-surface works including Site Investigation works) required for the development will impact upon any underwater cultural heritage, archaeological materials, objects and/or areas of archaeological potential that have been identified. The AIS shall describe the potential impact(s) of all proposed in-stream development, access and ingress routes to the river channels, and shall also assess any proposed additional potential secondary/indirect impacts such as scouring resulting from changes in hydrology. The AIS 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 may include recommendations for redesign to allow for full or partial preservation in situ, the institution of archaeological exclusion zones, further wade/dive surveys, test excavations, excavations (‘preservation by record’) and/or monitoring, as deemed appropriate. The Department will advise with regard to these matters. No construction works shall commence until after the UAIA has been submitted and reviewed. All recommendations will require the agreement of the Department. Reason: To ensure the continued preservation (either in situ or by record) of underwater cultural heritage features and other objects of archaeological interest. 9. The undertaker shall appoint a suitably qualified ecologist to monitor and ensure that all avoidance/mitigation measures relating to the protection of flora and fauna are carried out in accordance with best ecological practise. Reason: To protect the environmental and natural heritage of the area 10 Site development and building works shall be carried out only between the hours of 0700 and 1900 from Mondays to Fridays inclusive, between 0800 and 1400 hours on Saturdays and not at all on Sundays or public holidays. Deviation from these times will only be allowed in exceptional circumstances where prior written approval has been received from the planning authority. Reason: In order to safeguard the amenities of property in the vicinity. 11. All road surfaces, culverts, watercourses, verges, and public lands shall be protected during construction and, in the case of any damage occurring, shall be reinstated to the satisfaction of the planning authority at the undertaker’s expense. Prior to commencement of development, a road condition survey shall be carried out to provide a basis for reinstatement works. Details in this regard shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. Reason: In order to protect the road network.” Some general considerations 10 42. It may be of assistance to set out some general considerations arising from previous caselaw, under a number of headings as follows. Overall requirements for relief by way of judicial review 43. As discussed in Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November 2025) and other cases (see also Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23 (Unreported, High Court, Holland J., 23 January 2026)), there is an eight-fold path to obtaining relief by way of judicial review. These tests are cumulative, and relief should only be granted if the proceedings meet all of the following: (i) the applicant complies with jurisdictional requirements (e.g. time or standing to bring the proceedings at all (as opposed to standing for particular issues within a case that the applicant can bring at a general level)); (ii) the applicant’s point is legally correct and workable; (iii) the applicant’s point is properly pleaded with the requisite specificity; (iv) the specific point is one that the applicant has standing to make (bearing in mind that while standing can relate to issues such as ius tertii it does not generally require prior participation in the process insofar as there is an EU/ Aarhus Convention dimension); (v) material capable of sustaining the point was properly before the decision-taker at the relevant time such as to give rise to a duty to consider it (subject to exceptions primarily related to failure by the decision-taker to fulfil her autonomous obligations); (vi) the applicant has discharged the onus of proof to establish all facts necessary for relief; (vii) any error must transcend the harmless, the non-material and the purely technical lacking real-world consequences, bearing in mind that if error is demonstrated, then the onus shifts to the opposing parties to show harmlessness; and (viii) the exercise of discretion within established parameters does not militate against the making of the order (such as considering the proportionality of the order sought), bearing in mind that discretion is potentially more limited in an EU law context. 44. 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 courts to substitute their judgment on social issues ... for that of the Oireachtas” (G. v. Ireland [2025] IESC 49 (Unreported, Supreme Court, 26 11 November 2025) at 68). Nor is the equality guarantee to “become instead a more general power to second guess legislative choices in difficult areas where the courts have very limited insight. ” (at para. 86). He noted: “In Re SC [2021] UKSC 26, [2022] AC 223, Lord Reed cautioned against an expansive application of the equality guarantee contained in Article 14 ECHR observing that, in effect, since legislation was the art of differentiation, any legislation could be contested from the point of view of equality, and that a broad and expansive application of the guarantee risked undue interference with the sphere of political choice. I agree. Once it is established that a classification is not arbitrary or capricious or based on prejudice or stereotype, then this is an area where there is particular merit in the observations of Chief Justice Stone that ‘[c]ourts are not the only agency of government that must be assumed to have capacity to govern’ (United States v Butler (1936) 297 US 1).” (iii) Insofar as concerns evaluative judgement, the weight to be given to any consideration or piece of evidence is quintessentially a matter for the decision-taker: Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 (HL), 780 (Lord Hoffmann); per Keane C.J. (Denham, Murphy and McGuinness JJ. concurring) in Baby O v. Minister for Justice [2002] IESC 44, [2002] 2 I.R. 169, [2003] 1 I.L.R.M. 24; M.E. v. Refugee Appeals Tribunal [2008] IEHC 192 (Unreported, High Court, Birmingham J., 27 June 2008) at para. 27; Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212, Lord Hodge and Lord Sales SCJJ. at 121; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 12. Generally speaking evaluative judgements involving a significant degree of planning judgement and not tainted by other procedural, legal or factual errors are reviewable on an irrationality standard: Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton, O’Malley, Baker and Murray JJ. concurring); Barr J. in Graymount House Action Group v. An Bord Pleanála [2024] IEHC 327 (Unreported, High Court, 31 May 2024), leave to appeal refused in Graymount House Action Group v. An Bord Pleanála [2025] IESCDET 22 (Dunne, Woulfe and Hogan JJ., 17 February 2025). (iv) A decision must be read in a way that makes sense rather than nonsense if such a reading is available. It is not the case that decisions must be read in the most erroneous way possible so that applicants can get their order of certiorari (M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020); Rostas v. DPP [2021] IEHC 60 (Unreported, High Court, 9 February 2021) at §50; St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024) at §57); Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December 2025) at 32. (v) Thus a decision should not be read as invalid if a valid reading is reasonably available: see M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41 (Unreported, High Court, 29 January 2020) at §7; Mulloy v. An Bord Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12 March 2024) at §178 (citing O’Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1 November 2023)); Save Roscam Peninsula CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024) at §64); thus for example “unhelpful” statements should not be read as inconsistent with statutory factors if the decision can be read as valid – E.M. v. Minister for Justice and Equality [2024] IESC 3 (Unreported, Supreme Court, 21 February 2024) per Dunne J. (Charleton, Woulfe, Murray and Donnelly JJ. concurring); Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13, and this applies even if the wording is sub-optimal: Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December 2025) at 32. (vi) It is not appropriate to engage in legalistic over-parsing or micro-analysis of decisions, or of legal instruments generally, frequently based on semantic querulousness: per Sullivan J. in R (Blewett) v. Derbyshire County Council [2003] EWHC 2775 (Admin), [2004] Env. L.R. 29 at para. 41; R. (Friends of the Earth Ltd and others) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 W.L.U.K. 212, Lord Hodge and Lord Sales SCJJ.; per 12 O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 37. As stated by Peart J. in G.T. v. Minister for Justice, Equality and Law Reform [2007] IEHC 287, [2007] 7 JIC 2708 (Unreported, High Court, 27 July 2007), para. 3: “It is not desirable that a decision be parsed and analysed word for word in order to discern some possible infelicity in the choice of words or phrases used and to hold that a finding of credibility adverse to the applicant is invalid, unless the matters relied upon have been clearly misunderstood or mis-stated by the decision maker. The whole of the decision must be read and considered in order to reach a view as to whether, when the decision is read in its entirety and considered as a whole, there was no reasonable basis for the decision maker reaching that conclusion”. See also A.I.M.Z. v. Refugee Applications Commission & Ors. [2008] IEHC 420, [2008] 11 JIC 0705 (Unreported, High Court, 7 November 2008) at para. 24 per Clarke J.; per McCarthy J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009] IEHC 383, [2010] 7 JIC 2803 (Unreported, High Court, 28 July 2009), para. 13; per Clark J. in Obuseh v. Minister for Justice, Equality and Law Reform & Ors. [2010] IEHC 93, [2010] 1 JIC 1404 (Unreported, High Court, 14 January 2010), para. 21; per MacEochaidh J. in Bondo v. Minister for Justice & Ors. [2012] IEHC 454, [2012] 11 JIC 0903 (Unreported, High Court, 9 November 2012), para. 24; per Barr J. in P.M. v. Refugee Appeals Tribunal [2014] IEHC 497, [2014] 10 JIC 0204 (Unreported, High Court, 2 October 2014), para. 59; per Faherty J. in O.S. v. Refugee Appeals Tribunal [2015] IEHC 839, 2015 WJSC-HC 25494, [2015] 12 JIC 1505 (Unreported, High Court, 15 December 2015), para. 59; X.E. v. International Protection Appeals Tribunal [2018] IEHC 402, [2018] 7 JIC 0405 (Unreported, High Court, Keane J., 4 July 2018); B.D.C. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460, [2018] 7 JIC 2006 (Unreported, High Court, 20 July 2018), para. 7; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13. Mere technicalities are not normally a proper basis for the grant of relief: see e.g. The State (Toft) v. Galway Corporation 1981 WJSC-SC 2110, [1981] I.L.R.M. 439 (O’Higgins C.J.; Walsh and Kenny JJ. concurring); Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (Hogan J.; MacMenamin, Charleton, O’Malley and Baker JJ. concurring); 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 13 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 45. 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). Onus of proof 46. 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. 14 (ii) The onus shifts only in defined special circumstances. For example, where an error is demonstrated by an applicant, the onus shifts to opposing parties to show that the error is harmless: H.A. v. Minister for Justice [2022] IECA 166, [2022] 7 JIC 2201 (Unreported, Court of Appeal, Donnelly J., 22 July 2022) at para. 48 (Ní Raifeartaigh and Collins JJ. concurring). An onus on a decision-taker in the administrative process (e.g. to conduct a valid AA) does not convert into an evidential or any burden in the judicial process to show that the decision is valid (for reasons explained in Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023) at para. 85). (iii) The onus of proof does not shift to a notice party merely because the decision- taker does not defend the decision on a given point or generally. Such a rule would be inconsistent with the Supreme Court’s finding in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ. concurring) that a notice party can defend a permission even if the decision-taker does not. (iv) In the context of a challenge to an environmental assessment, the onus of proof to show, by evidence (normally expert evidence), or by demonstrating a flaw on face of material, that AA/EIA was defective, or that there were factual circumstances requiring a decision-taker to consider any other autonomous obligation, lies on the applicant: R v. Crischuk, 2010 BCSC 716 (Barrow J.) at paras. 36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141; Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021), para. 19; An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281 per Hogan J. at para. 124 (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring); Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v) (leave to appeal refused in Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025)); Salmon Watch Ireland, Inland Fisheries Ireland, Sweetman & Ors. v. Aquaculture Licences Appeals Board & Ors. [2024] IEHC 421 (Unreported, High Court, Holland J., 12 July 2024), §1097; Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November 2024) at para. 115; Minoa Ltd v. An Bord Pleanála [2024] IEHC 704 (Unreported, High Court, Heslin J., 10 December 2024), para. 333; Ó Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September 2025) at 55; Oxigen v. An Coimisiún Pleanála [2025] IEHC 632 (Unreported, High Court, 19 November 2025) (for example, in relation to proving that a decision-taker lacks expertise). Thus, apart from (i) failure to consider something that the decision-taker was autonomously required to consider, (ii) patent flaw on the face of the materials, or (iii) other legal error, inadequate consideration or failure to dispel scientific doubt has to be established by admissible evidence (normally expert evidence) in the judicial review showing either that reasonable doubt was created by the material before the decision-taker at the time (albeit not limited to what was adduced by the applicant specifically), or that such material even if uncontradicted would on its face have created doubt in the mind of a reasonable expert: An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021] 7 JIC 0205 (Unreported, High Court, 2 July 2021) at §7 and §8; Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v), leave to appeal refused: Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025); Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024) at §§ 73 and 105; Roache v. An Bord Pleanála [2024] IEHC 311 (Unreported, High Court, Phelan J., 21 May 2024) at §117; Ryanair DAC v. An Bord Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February 2025) at §64 et seq.; 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 15 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 16 I.L.R.M. 350 at para. 95 – the court as finder of fact is “not ... constrained” to accept “the only account available” even if that account is provided by oral evidence. The evidence of experts is one area where the court is not automatically obliged to accept evidence absent cross-examination: Tesco Ireland Limited v. Stateline Transport Limited [2024] IECA 46 (Unreported, Court of Appeal, Butler J., 23 February 2024). Discretion 47. 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) Discretion applies both at the leave stage and at the substantive stage: per Finlay C.J. (Blayney and Denham JJ. concurring) in G. v. DPP [1994] 1 I.R. 374 at p. 378; De Róiste v. Minister for Defence [2001] IESC 4, [2001] 1 I.R. 190, [2001] 2 I.L.R.M. 241 at 204 per Denham J.; Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring). (iii) The effect of the doctrine of discretion is that even if there was a “jurisdictional” infirmity such as in planning application documents, AA, or other such requirement the process is not automatically void ab initio and certiorari is not automatic: Byrnes v. Dublin City Council [2017] IEHC 19 (Unreported, High Court, Baker J., 18 January 2017); Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403 (Unreported, High Court, Owens J., 16 June 2021); Ballyboden Tidy Towns Group v. An Bord Pleanála [2023] IEHC 722 (Unreported, High Court, Holland J., 21 December 2023) (§102 et seq.); and Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November 2025) (§81 et seq.). (iv) The court can exercise discretion of its own motion because the court itself has to be satisfied as to the correctness of granting relief: Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ. concurring). That implies that the court has an entitlement to exercise such discretion itself even if a party doesn’t plead discretion as such or pleads it on limited grounds. (v) In exercising that discretion however the court is bound by established principles as to the exercise of such discretion: Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring) at 60. As Donnelly J. pointed out in that case at 27, the use of the term discretion is strictly delineated. O’Donnell J. (Clarke C.J. and Dunne J. concurring) said in Kelly v. Minister for Agriculture [2021] IESC 62, [2023] 1 I.R. 38 that the court is not “at large”, or is free to take into account “its views on the underlying merits” (the contrast with Christian below indicates that what is envisaged is merit in some general sense separate from the “constitutional or legal value[s]” concerned). Rather, “the circumstances which allow the court not to make an order which would otherwise be justified must be such as to derive from an important constitutional or legal value of sufficient weight to warrant not making an order otherwise justified” (Clarke J. in Christian v. Dublin City Council [2012] IEHC 163, [2012] 2 I.R. 506, at 567) as cited with approval by Donnelly J. in Amariei at 27. Thus the court must be conscious of the need for statutory requirements to be observed, see e.g. Protect East Meath v. Meath County Council [2026] IESC 1 (Unreported, Supreme Court, 22 January 2026). (vi) The established principles as to the exercise of discretion fall into three broad categories: conduct of the applicant, the practical value of the remedy, and disproportionality. Under these headings the following points emerge: (a) “[T]he action or inaction of the claimant (such as a failure to exhaust an alternative remedy, delay, laches, waiver, acquiescence or misconduct 17 in connection with the proceedings)” is relevant (O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, Murray J. (Whelan and Pilkington JJ. concurring) 1 July 2021) at 43). In particular: 1. Failure to exhaust remedies as the general rule: Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring), save where for example there is a fundamental failure of justice: A.B. v Chief International Protection Officer & Ors [2026] IESC 23 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton, Woulfe and Murray JJ. concurring). “It is a long-standing principle of the law relating to judicial review that the court asked to quash an administrative decision has a discretion to refuse to do so if there is an alternative remedy available to put right the wrong complained of in the proceedings.” per Dunne J. (Charleton, Woulfe, Collins and Donnelly JJ. concurring), S. v. Minister for Justice and Equality [2025] IESC 48 (Unreported, Supreme Court, 25 November 2025) at 98. 2. This can include failure by an applicant to take action to protect their position: Baile Bhruachlain Teoranta v. Galway County Council [2024] IEHC 604 (Unreported, High Court, 1 November 2024); Voyage Property v. Limerick City and County Council [2025] IEHC 696 (Unreported, High Court, Holland J., 16 December 2025) at 263- 264. 3. The failure by the applicant to make the point in the process is relevant: Costello J. in Friends of the Irish Environment CLG v. Government of Ireland [2021] IECA 317 (Unreported, Court of Appeal, 26 November 2021) at 277. 4. Unwarranted failure to prosecute the proceedings: Delaney v. An Coimisiún Pleanála [2025] IEHC 621 (Unreported High Court, 13 November 2025). (b) Grounds relating to “the practical value of the remedy (such as mootness or futility) (see Independent Newspapers (Ireland) Ltd v. IA [2020] IECA 19, [[2021] 1 I.R. 384] at para. 78)” are relevant: O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, Murray J. (Whelan and Pilkington JJ. concurring), 1 July 2021) at 43. Thus for example a remedy is not required where the order sought would be futile and inappropriate: Protect East Meath v. Meath County Council [2026] IESC 12 (Unreported, Supreme Court, 19 February 2026) at 8. (c) The proportionality of certiorari (as opposed for example to either no order or declaratory relief only) may also be a factor: in Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ. concurring) said (without needing to decide the point) that there was “a great deal of force” in the submission that it would be disproportionate to quash a decision on the basis of a “technical procedural error”. In particular: 1. The importance of the provision not complied with is a factor – the process requires “consideration of whether the matter concerned is one of importance or of triviality”: per Finlay C.J. (Blayney and Denham JJ. concurring) in G. v. DPP [1994] 1 I.R. 374 at p. 378 (emphasis added). Thus an “inconsequential” breach was not a basis for the grant of relief as a matter of discretion in Kenny v. Dublin City Council [2009] IESC 19 (Unreported, Supreme Court, 5 March 2005) at 79 per Fennelly J. (Macken and Peart JJ. concurring). 18 2. Likewise the importance of the countervailing legal value being protected by the impugned decision is a factor in the balance, whether that be a value enshrined in law generally, the ECHR as transposed, the Constitution or EU law – as cited above, the court can consider whether the