Rogers v An Coimisiún Pleanála and Anor

APPROVED [2026] IEHC 257 Record Number: H.JR.2025.1277 THE HIGH COURT JUDICIAL REVIEW PLANNING AND ENVIRONMENT IN THE MATTER OF SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT, 2000 AND IN THE MATTER OF A DETERMINATION PURSUANT TO SECTION 51 OF THE ROADS ACT 1993 AND IN THE MATTER OF PART 9 OF THE PLANNING AND DEVELOPMENT ACT 2024 Between: JOHN ROGERS Applicant -and- AN COIMISIÚN PLEANÁLA Respondent -and- MEATH COUNTY COUNCIL Notice Party JUDGMENT of Mr Justice Nolan delivered on the 28th day of April 2026 Introduction 1. The bridge across the River Boyne at Slane Village has for years been a cause of danger, damage and death. There have been many attempts to remediate the traffic problems caused by the narrow 19th century bridge over an important national river, entering the beautiful, picturesque village, but all have failed. 2. After a number of attempts, the developer, Meath County Council, the Notice party, (“the Council”), applied for approval for a by-pass of the village to the appropriate authority, in this case the Respondent (“the Commission”), for the road development. This was granted by way of Order dated 27 June 2025, pursuant to Section 51 of the Roads Act 1993 (“the Roads Act”), subject to conditions. 3. It is the decision of the Commission which the Applicant seeks to challenge (Core Ground 1) on the basis that the Commission failed to have, or to have access to, sufficient expertise to allow it to examine the Environmental Impact Assessment Report (“EIAR”) provided by the Council. The Applicant submits that the obligation to possess such expertise is a definitional component of the conduct of an Environmental Impact Assessment (“EIA”), pursuant to the EU Council Directive 2011/92/EU, as amended by Council Directive 2014/52/EU (“the Directive”), which has been transposed into Irish law by virtue of Section 51(2A) of the Roads Act (as amended). 4. Put simply, the Applicant says that, given the unique nature of the area, the Commission, as the competent authority, was subject to a mandatory obligation, pursuant to the Directive, now part of domestic law, to ensure that it had, or had access as necessary to, sufficient expertise to examine the Council’s EIAR. The Applicant alleges the Commission failed to do so, and on that basis, the decision is flawed. 5. The scheme envisaged is extensive and will include roundabouts, the redevelopment of the junction in the village of Slane, a number of additional bridges together with incidental and ancillary development, further details of which I set out below at para.19. 6. The Applicant is concerned that the proposed development may adversely affect groundwater-dependent habitats, in particular petrifying springs with tufa formation. Petrifying springs with tufa formation are specialised, moss-dominated wetlands where lime-rich water deposits calcium carbonate, forming porous, soft rock known as tufa. The proposed development is within the zone of contribution to the groundwater regime at Crewbane Marsh, which is close to his lands. I shall deal with the importance of tufa formation below at para. 22. 7. Not surprisingly the Commission and the Council disagree. 8. The Applicant furnished a further affidavit exhibiting two reports introducing evidence which was not before the Commission during the planning process. Whether the affidavit and the reports should be considered is also an issue which I shall deal with below. The Directive 9. Article 3 of Council Directive 2011/92/EU, as amended, provides that: “The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors: (a) population and human health; (b) biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC and Directive 2009/147/EC; (c) land, soil, water, air and climate; (d) material assets, cultural heritage and the landscape; (e) the interaction between the factors referred to in points (a) to (d).” 10. The Directive was amended by Council Directive 2014/52/EU. The issues arising in these proceedings concern the changes introduced by that amending Directive, including the introduction of new requirements for both developers and the competent authorities, in this case the Council and the Commission. 11. The text of Article 5(3) provides as follows: - “3. In order to ensure the completeness and quality of the environmental impact assessment report: (a) the developer shall ensure that the environmental impact assessment report is prepared by competent experts; (b) the competent authority shall ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report; and (c) where necessary, the competent authority shall seek from the developer supplementary information, in accordance with Annex IV, which is directly relevant to reaching the reasoned conclusion on the significant effects of the project on the environment.” 12. This obligation was transposed into Irish Law by of Section 51(2A) of the Roads Act (as amended) which reads: - (2A) An Bord Pleanála [now the Commission] shall ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report. 13. The obligation on the Council is to ensure that the EIAR is prepared by competent experts with the necessary expertise, skill, and experience to carry out that work. The obligation on the Commission is to ensure that it has, or has access as necessary to, sufficient expertise to examine and understand the EIAR. In Reid v An Bord Pleanála [2021] IEHC 362, Humphreys J. observed at para.48: - “The notion of relying on other people's judgements more generally is flawed and, if it were to be applied, would be an abdication of the board's independent statutory role. Indeed it is a circular argument – how can the board know that the developer's advisers are in fact competent experts that can be relied on if the board doesn't itself have, or have access to, equal competence and expert knowledge. The logic that “other people have looked at this, therefore it must be OK” is the sort of thing that leads to systems failures” 14. This obligation applies not only to Article 3(1) but also Article 5(1)(d), which requires the EIAR to include a consideration of the reasonable alternative sites studied by the developer that are relevant to the project and its specific characteristics. That provision further requires an indication of the main reasons for the option chosen, considering the effects of the project on the environment. It reads as follows: - “1. Where an environmental impact assessment is required, the developer shall prepare and submit an environmental impact assessment report. The information to be provided by the developer shall include at least: (a) a description of the project comprising information on the site, design, size and other relevant features of the project; (b) a description of the likely significant effects of the project on the environment; (c) a description of the features of the project and/or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment; (d) a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment; (e) a non-technical summary of the information referred to in points (a) to (d); and (f) any additional information specified in Annex IV relevant to the specific characteristics of a particular project or type of project and to the environmental features likely to be affected.” 15. The Applicant says that Article 5(1)(d) is critical because of the option selected, which is located to the east of the bridge adjacent to the Brú na Bóinne landscape, a UNESCO World Heritage Site, notwithstanding that pursuant to the Article, a number of matters including cultural heritage and landscape require to be considered in the assessment. The Applicant says that alternatives were available for consideration, including options both to the east and to the west of the old Slane bridge. The Proposed Scheme 16. As noted above, the project has a long planning history. In 2010 the Council was refused permission by the predecessor of the Commission, An Bord Pleanála (“ABP”), for a similar bypass. In the course of that application, ABP advised the Council to engage a heritage expert, which it did, but it failed to do so on this occasion. While this is a matter of note, it is not determinative. 17. The scheme will affect lands within two separate areas of significant importance, namely the River Boyne and the River Boyne SAC, both of which, due to their ecological significance, are afforded the highest protection under European law and are designated as “European Sites”. 18. The scheme is highly complex, being a major infrastructural development, involving significant construction and excavation works, including the construction of a number of bridges, one of which comprises a dual carriageway, 258m long and 23.5m wide. The development also entails major excavation over an extended area to a depth of 10m. 19. The Applicant submits that the Commission was under an obligation to carry out an Appropriate Assessment (“AA”), informed in part by the Natura Impact Statement submitted by the Council. That assessment is primarily concerned with identifying whether the proposed development, either alone or in combination with other plans or projects, is capable of having an adverse effect on the conservation objectives of European Sites. 20. The Applicant submits that, while not unprecedented, it is highly unusual for a major development to be constructed within a designated European Site. 21. As noted above, the Applicant’s lands run parallel to the proposed works, and he has serious concerns regarding the direction and behaviour of water flows adjacent to and within the zone of contribution to tufa habitats. Again, as I set out above, such habitats are highly sensitive and dependent on specific hydrogeological conditions. Tufa formation occurs where groundwater rich in dissolved calcium carbonate emerges at the surface. Critically, this process requires slow, stable water flows in order to allow the calcium carbonate to precipitate and be deposited. Any alteration to the flow regime—whether in direction, volume, or velocity—could disrupt this process and result in adverse effects on the integrity and viability of the tufa habitat. Its importance rests with its creation of a biodiversity habitat for mosses, algae, and bacteria. 22. A report by a Mr. Johnson, exhibited by the Applicant, concludes that the direction of groundwater flow is likely to be from the northwest to the southeast, and that the integrity of the Crewbane Marsh is at risk if there is interference within the zone of contribution. He considers that such interference will arise as a result of the proposed development. The Applicant relies on this report as demonstrating the importance of the Commission having its own hydrology and hydrogeology expertise available to it. The Applicant’s Core Ground 23. Mr. Cush SC, for the Applicant, submits that the obligations arising under the Directive and Section 51 of the Roads Act, constitute autonomous obligations, resting on the Commission itself to fulfil. He submits that, while the Council engaged a number of specialists in the fields of hydrology, hydrogeology, geology, flood risk, archaeology and cultural heritage, world heritage, and historic buildings, the Commission did not do so. In particular, the Commission failed to employ expertise in the areas of hydrology and hydrogeology, as well as in the fields of landscaping and archaeology, and thereby failed to “ensure that it had, or had access to, sufficient expertise to examine the environmental impact assessment report”, as mandated by law. 24. In support of this submission, he refers the Court to the key pleadings, including the Statement of Grounds, the affidavit of the Applicant and the exhibits. These include a request for further information made by Ms. Harrington, the ecology expert engaged by the Commission to the Council. That request was prompted by correspondence from the Applicant’s son, who raised a concern in relation to what was described in the pleadings and report of the ecology expert as “groundwater habitats, the presence of petrifying springs and tufa formation and raised concerns in respect of the effect of escalation on these features the excavation which constituted priority 1 habitat”. 25. In the detailed response from the Council’s expert reference was made to a comprehensive hydrogeological conceptual one-off site model. That model was informed by a detailed review of site-specific ground investigation data, which was systematically assessed. In addition, further hydrogeological analysis of potential groundwater flow paths that could be altered by the proposed scheme was undertaken. This assessment was prepared by highly qualified hydrogeology and geotechnical specialists and was subject to independent third-party review by other external hydrogeology and geotechnical experts. 26. The findings of this body of work are also reflected in the EIAR, and, crucially, in the EIA carried out by Ms. Harrington. These matters were further considered by the Inspector during the assessment process. Taken together, these multiple layers of specialist assessment, review and independent scrutiny, clearly demonstrate that the issues raised are highly technical in nature and have been examined in depth by appropriately qualified professionals. 27. He submits, however, that Ms. Harrington’s role was confined to setting out the work undertaken by the Council’s experts and that she accepted their conclusions, without carrying out any independent assessment of her own. He points to the language used in her EIA, in particular the repeated use of phrases such as “on that basis” (page 55), “on a similar basis” (page 55), which indicates an acceptance of the Council’s experts’ views rather than an independent evaluation. 28. In relation to archaeology, he submits that, given the site’s importance, which the Council’s pleadings note was a key factor in the consideration and development of the design and given that the Council employed three world experts, the Commission did not employ any further expertise. 29. He submits that there is no evidence to suggest that the Commission was adequately aware of the particular significance of the proposed bridge crossing location. This location is encountered at a critical point when travelling west to east along the River Boyne, where the monuments of Knowth, Newgrange, and Dowth first come into view. At this point, the character of the landscape and the preservation of its integrity, as described in the Report of the Specialist Archaeologist, are of fundamental importance. He contends that, had this information been fully available to and understood by the Commission, it would have necessitated a materially different and significantly more sophisticated level of analysis, as is required for a site of such exceptional sensitivity and global importance. 30. In the absence of this information, the Commission could not properly assess whether the consultants engaged by the Council had sufficiently considered or addressed the matters required to be examined in the EIAR, including the consideration of alternatives as required in Article 5(1)(d). He points to another report prepared by a Mr Fenwick, a specialist archaeologist with expertise in the Boyne Valley archaeological complex, who says that the cultural heritage and landscape were not assessed in an integrated and holistic manner required under the Directive. 31. While he accepts that the court must afford curial deference to the acknowledged expertise of the Commission, but as Humphreys J. noted in Reid, the Commission cannot be expected to possess the requisite level of expertise across all the disciplines engaged by a complex application of this nature. 32. He says that the response of the Commission and the Council to the application was to object to its admissibility on the basis that the issue was not put before the Commission, that the matter has not been properly pleaded and was raised only in the written submissions. He characterises this approach as inappropriate, in circumstances where, he submits, both bodies owe a duty of candour. He argues that neither party has engaged with the substances of the Applicant’s arguments. The issue of the duty of candour features large in this case and therefore requires careful consideration. 33. In summary, he submits that if he has established a lack of assessment and a lack of expertise in the areas concerned, he is not required to go further and demonstrate that the assessment was wrong on its face. In this regard, I note that the Applicant’s pleadings do not challenge the substantive conclusions reached by the Commission in respect of the EIA. There is no allegation that the conclusions on archaeology or hydrology were unsustainable, unreasonable or irrational. 34. He accepts that the onus rests on the Applicant and that the existence of an error is not, of itself, evidence of a lack of expertise. He submits, however, that the obligation, is an autonomous one, resting on the Commission. Where the issue is properly pleaded, it is behoven upon the Commission to aver in its defence, that it did possess the requisite expertise, rather than leaving that matter to inference or implication. 35. He says that the case law is of only partial assistance. In Kennedy v An Bord Pleanála [2024] IEHC 570, the issue of lack of expertise was not seriously advanced and the decision therefore turns on its own facts. He notes that Carrownagowan Concern Group & others v ABP [2024] IEHC 300, was concerned with the adequacy of reasons, whereas this is not a reasons case. 36. He concludes his submission by maintaining that the case is properly pleaded and made out evidentially, with or without experts. He submits that the Applicant has identified the particular fields of expertise required. He has not merely asserted it, rather, he has pointed to evidence demonstrating that the requests for further information identified the necessity for such expertise. He notes that Ms Harrington holds no qualifications in hydrology or hydrogeology. 37. Lastly, he submits that the entire approach of the Commission has been to avoid engagement with the substance of the Applicant’s arguments, which he contends is inconsistent with the duty of candour. Very late in the day, well after the pleadings were closed; after receiving the written submissions and two days before the hearing, the Applicant wrote to the Commission seeking to find out what expertise the inspector and the Commission members held. This was met with a refusal to engage and a response that the onus of proof rests with the Applicant. Mr Cush says this is inappropriate reply in circumstances where the duty of candour is a self-standing obligation on a public body in a judicial review, to put one’s cards on the table. In those circumstances, he argues the Court should consider that the Commission ought to have replied, and that its failure to do so is material, to the extent that it should be considered in determining whether the relief sought, namely certiorari, should be granted. This is an important issue which I shall deal with below. The Commission’s Submissions 38. Mr Valentine SC, on behalf of the Commission, submits that the Applicant did not raise the issues now relied upon before the Commission and is therefore precluded from advancing them at this stage. Secondly, the Applicant has failed to plead his case adequately. In particular, he has not demonstrated how any alleged lack of expertise on the part of the Commission undermined the EIA carried out, nor has he identified any defect in the EIAR which the Commission should have identified but failed to do so. No specific flaw in the Commission’s own EIA has been pleaded. 39. Thirdly, it contends that the Applicant relies on assertion rather than evidence in alleging a lack of expertise and in seeking certiorari. The strict pleading requirements applicable to judicial review proceedings are well settled, and applicants are confined to their pleaded grounds. 40. Fourthly, it is impermissible to expand a pleaded case through legal submissions, or to use judicial review proceedings as a means of introducing new evidential matters that could, but were not, raised before the Commission. 41. He further submits that the Applicant makes no attempt to connect his non-expert assertions to the Commission’s actual EIA, or to its examination and consideration of the EIAR. 42. The Applicant did not raise any issue concerning the Commission’s expertise until a late stage, notwithstanding the presumption that the Commission’s decisions are valid. 43. The Commission further submits that the Applicant’s replying affidavit, introducing the reports from Mr Fenwick and Mr Johnson, are advancing merits-based disagreement with the Council’s EIAR and the Commission’s EIA, and should be excluded. 44. In response to the contention that the Commission lacked access to expertise, he submits that the courts have long recognised the Commission’s expertise in environmental matters. He argues that expertise is not derived solely from formal qualifications but may also arise from experience gained through the repeated examination of EIARs and the conduct of EIAs. 45. As the decision-maker, the Commission determines the adequacy of the information before it for the purposes of EIA, and its decisions in that regard are reviewable only on an irrationality basis. The Applicant has neither established, by reference to either the EIAR or the Commission’s EIA, nor has he pleaded, that the Commission’s conclusions on the adequacy or acceptability of the information before it were irrational. 46. The project falls squarely within the category of road development projects, which are known to affect a range of environmental factors and in respect of which the Commission has significant experience as the State’s principal consenting authority. 47. He disputes the submission that the Council’s engagement of consultants to prepare an EIAR, and the absence of equivalent consultants retained by the Commission, demonstrates any lack of expertise. The Commission is itself an expert body tasked with examining EIARs and is under no obligation to engage consultants to the same extent as a developer. 48. It is a matter for the Commission to ensure that it has, or has access to, such expertise as it considers necessary to discharge its functions. This administrative obligation does not impose a requirement on the Commission to prove or demonstrate its expertise. Its decisions benefit from a presumption of validity and should not be construed as unlawful where a lawful interpretation is available. He says the Applicant has proceeded on the mistaken basis that the burden of proof may be discharged by mere assertion. 49. In relation to Article 5(1)(d) of the Directive, he submits that it concerns the alternatives considered by the developer and the reasons for the choice made. The Applicant has neither identified, nor established evidentially, any basis upon which it could be said that the Commission lacked sufficient expertise to assess compliance with that requirement. The Response of the Notice Party 50. Mr. Keane SC, for the Council, concurs with the submissions made by the Commission and further submits that the impugned decision was made in the exercise of the Commission’s statutory duties and functions, including those as the competent authority responsible for the carrying out of both EIA and AA, in accordance with law. 51. The Respondent is the expert body responsible for dealing with applications for proposed road developments, which is the field of the project concerned. There is no suggestion made, nor any argument advanced, on any evidential basis by the Applicant, that the Respondent did not, at the relevant time, possess sufficient expertise in the field of proposed road developments, to ensure that the information provided by the Council in the EIAR was complete and of a high standard. 52. It is long established that legal provisions and obligations should, where possible, be given a workable and coherent interpretation (see 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.). Discussion - The Applicant’s Expert Reports and Objections 53. I think it is prudent to consider the issue of the Applicant’s replying affidavit and the reports from his two experts, Mr Fenwick and Mr Johnson, which he exhibits. The affidavit was introduced at a late stage, after the matter had come before Humphreys J. in September 2025. The affidavit was sworn by the Applicant, not the experts themselves. The Commission says that this represents an attempt to introduce evidence which was not put before the Commission during the planning process and that, furthermore, the reports seek to expand the pleaded case. In those circumstances the affidavit should not be admitted. 54. In Doyle v An Coimisiún Pleanála [2025] IEHC 725 Humphreys J. in emphatic terms, rejected this approach, saying at para. 50: - ““Insofar as the applicant has purported to supplement the case by late affidavits under the guise of a reply this is not a permissible procedure. Replying affidavits are limited to reply and are inadmissible if they go beyond that, as they do here. An applicant has to marshal her evidence at the appropriate stage barring a clear demonstration of that not being possible with reasonable diligence – that has not been established here…” (See also Oxigen Environmental Unlimited Company v An Coimisiún Pleanála [2025] IEHC 632, Fahybeg Windfarm Opposition Group v. An Bord Pleanála [2025] IEHC 310, Wild Irish Defence CLG v An Coimisiún Pleanála [2025] IEHC 726) 55. This seems to me to make sense. I further note that Mr. Cush SC did not press this point in oral argument, nor was any adequate explanation offered for the late introduction of the reports. The case stands or falls on the pleaded case, not on a late affidavit or reports. I am satisfied that the expert reports seek to advance a merits-based disagreement with the Council’s EIAR and the Commission’s EIA, which is impermissible. Therefore, I shall refuse to admit the replying affidavit and the reports into evidence. 56. The next issue is whether the Applicant is precluded from raising the obligations arising under the Directive, because they were not raised before the Commission, during the planning process. It seems to me that the obligations relied upon are autonomous obligations, deriving from the Directive. Accordingly, in my view there was no obligation on the Applicant to have raised them during the planning process. I therefore will not preclude these matters from being advanced at this stage. 57. The third issue raised by the Commission is that the Applicant has not properly pleaded his case. In this regard, the Commission relies upon Friends of Killymooney Lough v An Coimisiún Pleanála [2025] IEHC 407; 100 Meter Tall Group v An Bord Pleanála [2025] IEHC 42; McGowan v An Coimisiún Pleanála [2025] IEHC 405; Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28; Casey v Minister for Housing, Planning and Local Government [2021] IESC 42. 58. As in all such matters, this issue turns on the pleadings themselves. As noted above, Mr Cush SC carefully brought the Court through both the Statement of Grounds and the grounding affidavit in opening the case. In my view, the case is clearly and coherently set out. Having regard to my rulings above, I am satisfied that the pleadings are sufficient to enable both the Commission and the Council to understand the case made against them and to respond to it. Accordingly, I do not accept the submission that the Applicant has failed to plead his case properly. I am satisfied that he has done so, without reliance on expert testimony. 59. The issue which then arises is how that autonomous obligation interacts with the duty of candour in circumstances where the question of the Commission’s expertise was raised by correspondence from the Applicant shortly before the hearing, and where that correspondence was not responded. Duty of Candour 60. What is meant by the duty of candour in judicial review proceedings? In O’Neill v Governor of Castlerea Prison [2004] 1 I.R. 298, Keane C.J., in the Supreme Court, described as “well-founded” an argument made on behalf of the applicants that “in judicial review proceedings a respondent should disclose to the court all the materials in its possession which were relevant to the decision sought to be impugned”. 61. But how far should that duty of candour go? In Friends of the Irish Environment CLG v The Government of Ireland & others [2021] IECA 317 at para. 261, Costello J. (as she then was) referring to the judgment of Barrett J. in Murtagh v. Judge Kilrane [2017] IEHC 384, where he set out nine principles relating to the duty, said: - “264. The extent of a duty of candour owed by a respondent in judicial review proceedings was not the subject of any detailed debate or submissions in the hearing before this court. For this reason, I refrain from commenting on whether the principles thus set out represent the position under Irish law, save for those principles which derive from the decision of the Supreme Court in O’Neill (Principle 1 and part of Principle 2). I expressly refrain from endorsing the nine principles as representing the law in this jurisdiction. The matter should await another case in which the issues are fully debated”. 62. Accordingly, the present state of Irish law on this issue goes no further than this: in judicial review proceedings, a respondent is required to disclose to the court all material in its possession which is relevant to the decision sought to be impugned. That duty does not require the disclosure of material in respect of which the respondent would be entitled to claim privilege in a discovery process, nor does it amount to a duty of general disclosure. That is a long way from confirming in a judicial review that the onus of proof at hearing can be reversed. 63. The remaining seven principles identified by Barrett J. are, for sake of completeness, as follows: - 1. Judicial review reflects a partnership between courts and public bodies to uphold high standards of public administration. 2. A public body’s role is not to win at all costs, but to assist the court in reaching the correct outcome. 3. Respondents must cooperate with the court and make frank and open disclosure of relevant facts and reasoning. 4. Judicial review must be conducted with all relevant material disclosed, much of which lies within the public body’s control. 5. The duty includes identifying, investigating, and disclosing relevant material, even if it assists the applicant. 6. Disclosure must explain fully the facts, reasoning, and documents underpinning the challenged decision, subject only to limited exceptions. 7. The duty of candour relies heavily on good faith compliance by public bodies and is fundamental to the integrity of public law proceedings. 64. In Elsharkawy v The Minister for Transport [2024] IEAC 258 Butler J. dealt in some further detail with the duty, which she expressed it as being “up front” with the applicant and the court, because public bodies “occupy a unique position by virtue of the fact that they have duties and responsibilities regarding the implementation and administration of the law which do not apply generally to defendants in ordinary civil litigation.” 65. In regard to the onus of proof she quoted Donaldson MR where he said: - “The analogy is not exact but just as the judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why they have done it, but are not partisan in their own defence, so should be the public authorities. It is not discreditable to get it wrong. What is discreditable is a reluctance to explain fully what has occurred and why … First, [counsel for the authority] says that it is for the applicant to make out his case for judicial review and that it is not for the respondent authority to do it for him. This, in my judgment, is only partially correct. Certainly it is for the applicant to satisfy the court of his entitlement of judicial review and it is for the respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hands.” It seems clear to me that the court in Elsharkawy was re-enforcing the obligation placed upon a public body to come clean in its pleadings. Again, that is a long way from asserting that in a judicial review, the onus of proof, at hearing, can be reversed. 66. If the remaining principles, as outlined by Barrett J. in Murtagh, formed part of Irish law, the case advanced by the Applicant would be quite different and could, in the circumstances of this case, potentially shift the onus of proof, to the extent that the Commission’s failure to respond to the query regarding the expertise of its members and the inspector, could be determinative. 67. There are, however, several factors which militate against that approach. This is not simply a case of a failure to answer a question raised late in the day. The Court must instead consider the overall architecture of the planning process, viewed through the lens of the principles governing judicial review. 68. Firstly, the Court must give curial deference to the Commission in its dealings. Not only that, but the Court must also approach the matter based on a number of assumptions. These include the long recognised institutional expertise of the Commission in environmental and planning matters, including EIA. This recognition is evident in decisions such as Environmental Trust Ireland v An Bord Pleanála [2022] IEHC 540 and Dublin Cycling Campaign CLG v An Bord Pleanála [2020] IEHC 587. That is particularly relevant when one considers that this case is about a road, an area the Commission clearly has acknowledged expertise. I accept the submission that its expertise is not confined to formal qualifications but extends to its accumulated experience in repeatedly examining EIARs and conducting EIAs, as later reinforced in Kennedy. The reality is that the court in a judicial review, cannot make an educated guess on the matter, it is presumed that the Commission holds such expertise. 69. Humphreys J. did allude to the duty of candour in Reid where he said at para.81: - “And finally, even if the point had been fully pleaded, and broad declaratory relief sought to give the court options in that regard, the issue would still have had to be developed evidentially – perhaps by having sought directions requiring the board, in the exercise of its obligation under the jurisprudence requiring it to lay its cards face up on the table as a respondent in judicial review (see R. v. Lancashire County Council, ex parte Huddleston [1986] 2 All E.R. 941 at 945 and subsequent cases), to put in an affidavit giving a detailed account of the extent to which it examined and understood the science and the background documentation. Even the most expansive view of a court’s “own motion” jurisdiction couldn’t fill those gaps. So any full discussion of these questions will have to await some other case.” 70. The Commission’s decisions benefits from a presumption of validity and the courts must avoid reading such decisions as unlawful where a lawful interpretation is available. This principle has been repeatedly emphasised, including in Friends of Killymooney Lough v An Coimisiún Pleanála [2025] IEHC 407, St Margaret’s Recycling v An Bord Pleanála [2024] IEHC 94, and Eco Advocacy v An Bord Pleanála [2025] IEHC 15. 71. The requirement in the Directive, as transposed, is that the Commission must ensure it has, or has access to, sufficient expertise as it considers necessary. As confirmed in Carrownagowan and Kennedy, that obligation does not translate into an obligation on the Commission to prove or demonstrate its expertise in judicial review proceedings. Conclusion on the Duty of Candour 72. The existence of a duty of candour in judicial review proceedings is now well established in Irish law, although its precise parameters remain to be fully explored, as noted by Costello P. in Friends of the Irish Environment CLG. In Elsharkawy Butler J. affirmed its importance in the context of pleadings, but that is in my view a long way from shifting the onus of proof, by simply asking a pertinent question, late in the day. 73. Therefore, there are two questions to be answered: was there a breach of the duty of candour in this case, and if there was, does that shift the burden or onus of proof. 74. I do not accept that the factual matrix in this case supports a finding that there was any breach of that duty, in the first place. Had the question been asked at the outset or by certain legal mechanisms available, as referred in Reid, that may have been a different matter, but it was not. The matter was raised literally before the hearing. 75. Given perceived the absence of supporting evidence, the duty of candour has assumed an enhanced significance in this case. It is submitted that that alleged failure to supply the information sought, shifts the onus of proof. In my view, that constitutes a novel submission, and one that sits uneasily with established principles governing the allocation of the burden of proof in judicial review proceedings and particularly in planning judicial review proceedings. 76. Therefore, I conclude, with some hesitation, that there has not been a breach of the duty of candour on the part of the Commission. However, even a breach had occurred, it would be groundbreaking to go that step further and find that it shifts the onus of proof. In those circumstances, I will decline to do so. Discussion on the Application 77. Turning to the central issue, namely whether the Commission, as the competent authority under the Directive, had, or had access as necessary to, sufficient expertise to examine the Council’s EIAR, the onus of proof rests squarely on the Applicant. The Commission submits that the Applicant’s case is advanced in the absence of any technical or expert evidence. On its face, that submission is well founded. The Court is also required to afford an appropriate degree of curial deference to the Commission as an expert decision-maker. In those circumstances, and in the absence of evidence beyond the Applicant’s own analysis, the burden he bears is a substantial one. Moreover, the Applicant does not challenge the methodology or substance of the assessments contained in the EIAR, nor does he dispute the expertise informing those assessments. Rather, his complaint is confined to the assertion that, on the face of it, the Commission did not have nor engage external expertise in certain specified areas. 78. While the Applicant does not demonstrate how his allegation of a lack of expertise undermines the EIA carried out by the Commission, or any defect in the EIAR which the Commission ought to have detected but failed to do so, nonetheless it is clear from his pleadings that he is critical of the issue relating to the potential effect of waterflows and the location of bridges crossing the Boyne. 79. As in all judicial review applications presumptions are rebuttable, but only on the basis of evidence. In the present case, it is not apparent, from an evidential perspective, that the Applicant has established that the Commission lacks the requisite expertise to address the issues arising from the Directive. While the Applicant’s assertions carry some weight, assertion alone is insufficient. Recent decisions of the court make clear that where an alleged error turns on expert opinion, it must be substantiated by expert evidence. Non-expert opinion offered by an applicant is generally inadmissible and carries no evidential weight. (Kennedy, McGowan, Oxigen and Doyle). 80. Further, the Court must afford curial deference to the Commissions view as to the adequacy of the information before it. As was stated in Coyne v An Bord Pleanála [2023] IEHC 412 (para.414): “as to such adequacy, is reviewable only for irrationality”. 81. In Ventaway Ltd v An Coimision Pleanala [2025] IEHC 406, Humphreys J. went further at para 149: - “It doesn't matter if individual board members did not have personal experience on something relevant, as long as the board has ‘access as necessary to’ such expertise. The onus of proving a lack of that is on the applicant and isn't discharged by proving that a couple of individual board members don't have any specific expertise on something. An applicant would have to do somewhat more than was done here." 82. While in Kennedy he said at para 92: - “The problem for the applicants is that a complaint of lack of expertise or best scientific knowledge has to be made out evidentially. The applicants have not done this. It's not something the court can just infer from the lack of express qualifications about karst landscape or some other micro aspect of environmental science. There could be tens of thousands of sub-fields which could be said to arise in any given application, and could not have been the intention of the European legislature to create a cottage industry for applicants by requiring expertise at this level of sub detail in the absence of discharging an onus that the board has failed to take some step or understand some points that an expert would have taken it understood…. It is for an applicant to demonstrate a lack of expertise on the part of a decision maker, not for the latter to prove her own competence to an applicant satisfaction (an impossible standard)”. 83. Accordingly, the onus rests on the Applicant to establish his case by reference to evidence, mere assertion is insufficient. The Applicant cannot simply contend, as he does here, that the Commission lacked the requisite expertise, relying on matters such as the phraseology employed by its expert, Ms. Harrington, or the fact that the Commission engaged external expertise in other areas. That falls short of what is required. The Applicant must go further and demonstrate, on an evidential basis, that the Commission acted without or outside its expertise. As I noted above the belated attempt to seek information in the process is not sufficient to discharge that burden. Conclusion 84. I have serious doubts as to whether the Commission had the necessary expertise to deal with the important issues raised by the Applicant, concerning water flow and the potential effects on the tufa and the spring waters, leaving aside the requirements of Article 5(1)(d). As noted by Humphreys J. in Kennedy, the question of the Commission’s expertise is a jurisdictional fact, rather than a substantive judgment on the merits. It is also of note that neither the written nor oral submissions of the Commission or the Council engaged with the substance of the Applicant’s case. 85. Nonetheless, in my view, the Applicant has not, other than by implication arising from the pleadings, established on an evidential basis a lack of expertise on the part of the Commission. He has therefore failed to discharge the burden of proof which rests upon him. 86. In those circumstances, echoing the observations of Humphreys J. in Reid, “without much enthusiasm”, I have concluded that the Applicant has not discharged the onus of proof required to obtain the relief sought. I shall put the matter in for mention, at 2:00 pm on Monday the 11th of May.