Rutledge v Fingal County Council

[2026] IEHC 223 THE HIGH COURT PLANNING & ENVIRONMENT [H.JR.2025.0001383] IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000 BETWEEN SIMON RUTLEDGE APPLICANT AND FINGAL COUNTY COUNCIL RESPONDENT Date of impugned decision: 23 July 2025 Date proceedings commenced: 16 September 2025 Date of main hearing: 25 March 2026 Date draft judgment circulated: 9 April 2026 JUDGMENT of Humphreys J. delivered on Friday the 17th day of April 2026 1. “[T]he onus of proof must lie on an applicant for judicial review”: Donnelly J. (O'Donnell C.J., Charleton and Murray JJ. concurring) in Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, 25 March 2026) at para. 96. While I appreciate the perspective of the applicant as a landowner apparently attempting to provide a service for which there is presumably some public demand, and the very considerable expenditure of imagination and effort made to present the case on his behalf, the legal question here is whether the applicant has overcome the onus to show an infirmity in the enforcement notice challenged here. Geographical context 2. The development consists of car parking at The White House Public House near Dublin airport (entrance at: https://maps.app.goo.gl/5TZdti8U2ovJNbfH7). The pub is currently closed, and the evidence is of an airport park-and-ride facility being operated from the lands. That is not something covered by any planning permission, and existing permissions at the development site are conditioned to prevent such a development. The applicant’s essential case is that car parking is protected by the seven-year rule and that other works are exempted development. Facts 3. The applicant is a businessman and owner of lands at The White House, Newpark, The Ward, Co. Dublin. 4. The applicant has previously operated a public house known as The White House Public House from these lands. 5. On 21 February 1985, retention planning permission was granted by An Bord Pleanála under ref. Z.A. 757 in respect of the site the subject of these proceedings for development consisting of the retention of a racetrack, the development of lands for use as a raceway with ancillary car parking and the erection of a spectator stand and toilet facilities. The lands outlined on the submitted site layout include the trotting track and the car park to the rear of The White House Hotel. 6. Permission ref. Z.A. 757 was subject to conditions which included Condition 2: “The use of the track shall be confined to use as a racetrack for harness racing organised by or on behalf of the Irish Standard Bred Horse Owner’s Association and no use for any other purpose for which planning permission is required shall be established on the site without a prior grant of permission by the planning authority, or by An Bord Pleanála on appeal. Reason: To limit the use of the site to that stated in the relevant application in the interests of proper planning control.” 7. On 29 July 1988, an application was made for retention of the spectator stand as a haybarn and it was granted permission on 29 September 1988. That permission related to the structure only and not the trotting ring/track. 8. The applicant claims he has, for a number of years, operated a car park from the lands to the rear of The White House Public House. The land used for the operation of this car park includes a former “trotting ring”. The surface of the trotting ring was originally lime sand and the applicant added aggregate sand in 2023/24. 9. The applicant claims that in or about 2009, an airport parking service began operating from the lands under the name “Park and Fly Dublin”. That service enabled customers travelling through Dublin Airport to park their vehicles at the lands and transport to and from Dublin Airport was arranged from the premises. 2 10. In 2012/2013, the applicant procured the development of a website to allow customers to book online to avail of carparking on the site. 11. In September 2016, the applicant applied for planning permission to the council (reg. ref. F16A/0388) for an extension to the north and east of the existing White House Hotel. 12. By letter dated 17 November 2016, the applicant confirmed to the respondent that the park- and-fly facility was no longer in operation at The White House. 13. On 10 April 2017, the respondent granted permission for the proposed development, subject to conditions including that the area “within the applicant’s ownership/control shall only be used for hotel-related uses and shall not be used as ‘park and fly’ parking (that is, parking which is not directly ancillary to the use of accommodation in the hotel by the drivers/occupants of such car)”. 14. Development was not commenced or implemented under this permission. 15. On 9 January 2020, the respondent issued a warning letter in respect of a camping and caravan park being operated at the applicant’s lands. A response was issued by the applicant by letter dated 5 February 2020. No further enforcement action was taken by the respondent in respect of the letter of 9 January 2020. 16. In March 2020, the applicant applied for planning permission to infill the trotting ring and reinstate it to market gardening (reg. ref. FW20A/0038) but this was refused on 30 June 2020. 17. In May 2021, the applicant applied again (reg. ref. FW21A/0089) to infill the trotting ring and reinstate it to market gardening but this was also refused on 22 March 2022. 18. On 25 November 2021, the applicant sought to extend the duration of permission granted under reg. ref. F16A/0388. A letter enclosed with the application stated that the applicant “wishes to request that the planning permission be extended for a further 5 years in order for him to proceed with the development”. The application for an extension of duration was refused on 13 January 2022. 19. In May 2022, the applicant applied (reg. ref. FW22A/0090), once again, to infill the trotting ring and reinstate it to market gardening and this was granted permission on 28 February 2023. Development has not yet commenced under this permission. 20. In September 2022, the applicant applied for permission (reg. ref. FW22A/0195) to extend the existing hotel, bar and restaurant adjacent to the trotting ring to include 50 additional rooms and 88 car parking spaces and was granted permission for that on 13 June 2023. Condition 3 of the said permission requires that “[a]ll car parking spaces within the application site boundary shall only be used for use associated with the existing hotel and shall not be used as ‘park and fly’ parking”. Development has not yet commenced under this permission. 21. The respondent, through its planning inspectors, inspected the lands in 2020 and 2021/2022 and two inspectors reports dated 2020 and 2022 were produced. Both reports refer to the trotting track as a “former [o]bsol[e]te horse trotting track” and “an obsolete trotting track”. Both the 2020 and 2022 inspector’s reports make reference to “an airport parking business and a campervan park”. The applicant’s position is that these reports acknowledged and recorded the presence of the airport parking business operating from the lands. The respondent’s position is that both these reports show a mosaic of aerial images of the trotting track recorded at different times from 2011 to 2013 and it is not clear if the description to “airport parking business” in the reports refers to the historic aerial image only and, further, Google Earth Aerial Imagery indicates that any parking of vehicles taking place on the trotting ring or the hotel car park was not significant at the time the reports were prepared. 22. On 20 August 2024, the applicant received a letter from the respondent entitled Warning Letter, which alleged that an unauthorised development was ongoing at the lands. This unauthorised development was alleged to consist of “The development of an area to the rear of The White House Public House as a carpark without the benefit of Planning Permission”. 23. The applicant responded to the respondent’s letter of 20 August 2024 by letter of 1 September 2024, and attached Google Aerial Images from 2012 to 2024. In the said letter, the applicant stated “I assume your office is referring to the folio on the Northern Side of The White House”. The Folio on the northern side of The White House is Folio DN49, and it includes the car park to the rear of The White House and the trotting ring. The applicant’s response also referred to the “complaint that we have been developing an area to the rear of The White House Hotel without the benefit of planning permission”. While the applicant’s response focuses on the “pitch and putt area to the North”, it addresses the entire Folio and includes submissions on the “the old trotting track” which it describes as “attached” to “the car parking area to the rear of the Whitehouse Hotel” – in particular, the applicant outlined that a car park had been operating from the site for a period of decades. Further, the applicant addressed the then recent use of the pitch and putt course and committed not to doing so again. 24. The applicant received no response to his letter of 1 September 2024. 25. The lands were inspected on 31 October 2024 by a planning inspector from the council who prepared a report dated 27 November 2024, recommending a further warning letter be issued to 3 Dublin Valet Airport Parking Limited. A further warning letter was issued on 28 November 2024 to Dublin Valet Airport Parking Limited in the same terms as that issued to the applicant. 26. There was no response to the further warning letter and the planning inspector prepared an update to his report on 17 January 2025, recommending an enforcement notice be issued. In preparing his report the planning inspector considered all aerial imagery of the trotting ring/track and the hotel car park available on Google Earth from 4 July 2008 to 6 May 2025 and Google Street View imagery from October 2022 and April 2023. 27. On 13 March 2025, the senior executive planner finalised his report recommending that an enforcement notice be issued. 28. On 18 July 2025, the respondent made and signed the council’s decision (CE order reference PEN/0165/2025) dated 18 July 2025, to issue the enforcement notice. 29. On 18 July 2025, the respondent also made and signed the council’s decision (CE order reference PENF/0166/2025) dated 18 July 2025, to prepare and serve the enforcement notice. 30. The respondent issued an enforcement notice dated 23 July 2025 on the applicant. This enforcement notice alleges that the unauthorised development consists of the following: “Lands to the rear of the White House Public House, including the trotting track, are being used as a carpark. A hardcore surface has been laid on the trotting ring to the rear of the White House Public House. Structures consisting of a reception hut, a covered games room, a snack shop with outdoor seating, and signage associated with the unauthorised use of the lands, have been erected to the rear of the White House Public House.” Procedural history 31. The applicant filed his statement of grounds, grounding affidavit and ex parte docket on 16 September 2025, and the application for leave was listed for 29 September 2025, and leave to apply for judicial review was granted on that date. 32. The originating notice of motion was filed on 6 October 2025. The respondent’s statement of opposition and verifying affidavit were filed on 19 December 2025. 33. The applicant has not been granted relief at §D(4) of his statement of grounds/ §4 of his notice of motion: an interlocutory order staying the enforcement of the enforcement notice of 23 July 2025 and preventing the respondent from taking any steps on foot of enforcement notice of 23 July 2025. 34. On 9 February 2026, the matter was listed for a date, and a hearing date was fixed for 25 March 2026. 35. The applicant filed a replying affidavit on 5 February 2026. 36. The respondent filed a replying affidavit on 18 February 2026. 37. On 9 March 2026, the matter was listed for callover. 38. The applicant filed a further replying affidavit on 13 March 2026. 39. The matter was heard on 25 March 2026. Judgment was reserved at the end of that hearing. I would like to record my thanks to all of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have previously sought to make clear, insofar as any points advanced are not being accepted in this or any other given judgment, that is solely to do with the inherent merits of such points and is no reflection on those instructed to convey such points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to all concerned. 40. At the end of the hearing, the parties helpfully agreed to provide an updated factual narrative by 27 March 2026 and duly did so. 41. 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. 42. Any comments must be emailed to the court and uploaded to ShareFile in writing by the notified deadline, and should not be to reargue the substance (submissions to that effect will be disregarded) but are confined to matters such as: (i) informing the court as to whether a formal judgment is required, and if so on what issues; (ii) informing the court as to whether a judgment might be oral or written or partly in both modes; (iii) any typographical, factual or legal errors in the decision; (iv) any redaction of personal information that the party wishes to request; (v) in the event that the court proposes to place pivotal reliance on any authority or material not previously adverted to, as opposed to where such material merely reinforces a point that the court was making in any event, any comment as to why 4 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. 43. 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). 44. 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. 45. The deadline for such comments from the parties was to be 16:00 on 14 April 2026. The parties provided some suggested corrections. The council’s proofreading was particularly thorough and welcome, and the applicant’s comments were also helpful. In the draft judgment I had suggested a wording for a recital in the order, subject to any contrary submissions in the responses to the draft judgment. The parties did not make any contrary submission so I have included it. Relief sought 46. The reliefs sought are as follows: “1. An Order of certiorari quashing the Enforcement Notice issued by the Respondent, on 23 July 2025 (Ref. PENF/0166/2025) in respect of lands at The White House, Newpark, The Ward, County Dublin D11 X8DH (‘the Lands’). 2. A Declaration that the Lands have been used and operated as a carpark for a period in excess of 7 years. 3. Such Declaration(s) as to the legal rights and/or legal position of the Applicant and (if and insofar as legally permissible and appropriate) persons similarly situated and/or of the legal duties and/or legal position of the Respondent as the court considers appropriate. 4. An interlocutory order staying the enforcement of the Enforcement Notice of 23 July 2025 and preventing the Respondent from taking any steps on foot of Enforcement Notice of 23 July 2025. 5 5. A declaration that the protective costs provisions contained in section 50B of the Planning and Development 2000 Act, as amended and/or section 3 of the Environment (Miscellaneous Provisions) Act 2011, and/or Order 99 and/or section 169 of Legal Services Regulation Act 2015, as interpreted in light of Article 9 of the Aarhus Convention, apply to these proceedings. 6. Such interlocutory relief as the court may order, including interlocutory relief as defined by the Practice Direction applicable to the List. 7. Such further or other order. 8. Liberty to Apply. 9. An Order in respect of the costs of these proceedings.” Grounds of challenge 47. The core grounds of challenge are as follows: “(A) Domestic Law Grounds Core Ground 1: The Respondent erred in law and acted ultra vires in failing to have regard to, and comply with, s.157(4)(a) of the Planning and Development Act 2000 (as amended) in failing to have regard to the fact that the Respondent has been operating a carpark at the Lands for a period in excess of 30 years. The development impugned in the Enforcement Notice had been commenced more than 7 years prior to the date of issue of the Enforcement Notice. Further particulars are set out in Part 2 below. Core Ground 2: The Respondent erred in law and acted ultra vires and in breach of fair procedures in failing to have regard to, and comply with s.152 of the Planning and Development Act 2000 (as amended) in failing to issue a warning letter to the Applicant, in respect of the development which is impugned in the Enforcement Notice issued on 23 July 2025. The Respondent failed to comply with s.152(4)(b) of the Planning and Development Act 2000 in failing to provide the Applicant with an opportunity to make submissions or observations in writing in respect of the purported offence before issuing the Enforcement Notice. Further and or in the alternative, the Respondent failed to identify the development which was being impugned in the Warning Letter of 20 August 2024 and failed to engage with the Applicant’s submissions by letter dated 01 September 2024 or to seek further information from the Applicant in respect of the matters addressed therein. Further particulars are set out in Part 2 below. Core Ground 3: The Respondent erred in law and acted ultra vires and in breach of fair procedures in failing to have regard to, and comply with, s.153(3) of the Planning and Development Act 2000 (as amended) in failing to consider any submissions or observations made to it under Section 152(4)(b). The Respondent issued a warning letter in respect of the Lands on 20 August 2024. This letter did not outline the development impugned in the Enforcement Notice. The Applicant responded to the Warning Letter of 20 August 2024 with letter dated 01 September 2024 setting out submissions and observations in respect of the matters identified in the Warning Letter. Given that the development impugned in the Enforcement Notice was not that which was identified in the Warning Letter, the Applicant was deprived of an opportunity to provide submissions or observations on to the Respondent in advance of the Enforcement Notice being issued. Further, and without prejudice to the foregoing, the Respondent failed to have regard to the submissions made by the Applicant by letter dated 01 September 2024. The Applicant is entitled not to be vexed by enforcement proceedings without having an opportunity to address any alleged unlawful development in advance. Further particulars are set out in Part 2 below Core Ground 4: The Respondent erred in law and acted ultra vires and in breach of fair procedures in failing to have regard to, and comply with, s.153 of the Planning and Development Act 2000 (as amended) in failing to provide any adequate reasons for the decision to issue the Enforcement Notice. Further, the Respondent erred and acted ultra vires in failing to comply with the provisions of s.153(1) and s.153(2) of the Planning and Development Act 2000 in failing to carry out any adequate and timely investigation and failing to take a decision in respect of enforcement in an expeditious manner. Further particulars are set out in Part 2 below. Core Ground 5: The Respondent erred in law and acted ultra vires in finding/deciding that the development impugned in the Enforcement Notice is not exempt development within the meaning of Section 4 of the Planning and Development Act 2000 (as amended). Further particulars are set out in Part 2 below.” The impugned decision 6 48. The impugned decision provides as follows: “ENFORCEMENT NOTICE SECTION 154 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED DEVELOPMENT CARRIED OUT WITHOUT A GRANT OF PLANNING PERMISSION RE: Lands at The White House, Newpark, The Ward, Co. Dublin D11 XSDH WHEREAS Fingal County Council (hereinafter called ‘the Council’) being the Planning Authority for the area in which the above mentioned land is located having considered only the proper planning and sustainable development of its area including the preservation and improvement of the amenities thereof, regard being had to the provisions of the County Development Plan 2023 - 2029, any representations made to the Planning Authority under Section 152 (1)(a) of the Planning and Development Act 2000, as amended, any submissions or observations made under Section 152 (4)(b) of the Planning and Development Act 2000, as amended, and any other material considerations, and having investigated the matter has, in accordance with Section 153 of the Planning and Development Act 2000, as amended, decided to issue this Enforcement Notice. AND WHEREAS subsequent to the 1st day of October 1964 and within seven years immediately preceding the date of this Notice, the following development has been carried out on the said lands without a grant of permission under Part III of the Planning and Development Act 2000 as amended: • Lands to the rear of the White House Public House, including the trotting track, are being used as a carpark. • A hardcore surface has been laid on the trotting ring to the rear of the White House Public House. • Structures consisting of a reception hut, a covered games room, a snack shop with outdoor seating, and signage associated with the unauthorised use of the lands, have been erected to the rear of the White House Public House. AND WHEREAS the said development is not exempted development. AND WHEREAS the said development carried out on the said lands constitutes Unauthorised Development. YOU ARE HEREBY REQUIRED, pursuant to Section 154 of the Planning and Development Act 2000 as amended: Shall require within a period of 4 (Four) months of the date of the service of this Notice to: A) • Cease use of the lands to the rear of the White House Public House & Hotel, including the trotting ring, as a carpark. • Remove hardcore surface from the trotting ring and remove from site. • Demolish the reception hut, covered games room, snack shop with outdoor seating, and all signage associated with the airport carpark and remove from site. And the following steps as to how the land should be restored • Restore use of tarmac area immediately to the rear of the White House to carpark serving the hotel and public house only. B) To refund the Council the sum of €350.00 being the sum of the costs and expenses reasonably incurred by it in relation to the investigation, detection and issue of this Enforcement Notice and any Warning Letter issued under Section 152 of the Planning and Development Act 2000 as amended, including costs incurred in respect of the remuneration and other expenses of its employees, consultants and/or advisors pursuant to Section 154(5)(d) of the Planning and Development Act 2000 as amended. AND TAKE NOTICE that if, within the said period above, or within such extended period (not being more than six months) the steps specified in this Notice to be taken by you have not been so taken, the Council may enter on the said lands and take such steps, including the removal, demolition or alteration of any structure and may recover any costs reasonably incurred by it on that behalf. AND TAKE FURTHER NOTICE that if, within the said period above, or within such extended period (not being more than six months as may be allowed by the Council) the steps specified in this Notice to be taken by you have not been so taken, you may be guilty of an offence. If the Council decides to prosecute you for non-compliance with this Notice and you are found guilty of an offence by the Courts, you may be liable on summary conviction to a fine not exceeding €5,000 and/or imprisonment for a term not exceeding 6 months or both or on conviction following a trial on indictment to a fine not exceeding €12,697,381 and/or a term of imprisonment not exceeding 2 years or both. You will be liable on conviction for the costs and expenses of such prosecution.” Onus of proof 7 49. Some relevant legal principles concerning the onus of proof which have been rehearsed in previous caselaw include the following: (i) With only defined and extremely limited exceptions, in judicial review the onus of proof is on the applicant at all times: per Denham J. (Murray C.J. and Fennelly J. concurring) in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at p. 743; Cork County Council v. Minister for Housing, Local Government and Heritage (No. 1) [2021] IEHC 683 (Unreported, High Court, 5 November 2021) at §57; Monkstown Road Residents Association v. An Bord Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) at para. 96 per Holland J.; that remains the case even when in a constitutional challenge it is proved that constitutional rights have been interfered with: O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring) at para. 116; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 14. To put the same point another way, there is a presumption of validity for administrative decisions: per Finlay P. in In re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5 December 1977) and per Keane J. in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 at 102; Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High Court, Holland J., 25 November 2024), para. 22; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 15. (ii) The onus shifts only in defined special circumstances. For example, where an error is demonstrated by an applicant, the onus shifts to opposing parties to show that the error is harmless: H.A. v. Minister for Justice [2022] IECA 166, [2022] 7 JIC 2201 (Unreported, Court of Appeal, Donnelly J., 22 July 2022) at para. 48 (Ní Raifeartaigh and Collins JJ. concurring). An onus on a decision-taker in the administrative process (e.g. to conduct a valid AA) does not convert into an evidential or any burden in the judicial process to show that the decision is valid (for reasons explained in Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023) at para. 85). (iii) The onus of proof does not shift to a 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 8 (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 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 9 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. 50. That said, while conflict between equally inherently credible averments, with no cross- examination, is generally resolved against the party carrying the onus of proof, a court is not always obliged to regard all averments as being equally credible, or to disregard internal or evident problems with them (see by analogy the manner in which the Supreme Court considered it was entitled to prefer an affidavit over even oral evidence in Koulibaly v. Minister for Justice, Equality and Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court, Denham J. (Geoghegan and McCracken JJ. concurring), 29 July 2004)). Among the matters to which regard might be had would be included the failure to explain patently relevant questions that are clearly within that party’s responsibility (Doorly v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022) at para. 137 (Ní Raifeartaigh and Pilkington JJ. concurring)). This specific and common sense power of the court to evaluate inherent defects in evidence remains notwithstanding caselaw on cross-examination such as RAS Medical or Re Bayview Hotel (Waterville) Limited [2022] IEHC 516 (Unreported, High Court, Butler J., 8 September 2022). This is consistent by analogy with the judgment of Hardiman J. (Hanna and Feeney JJ. concurring) in DPP v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130, [2007] 1 I.L.R.M. 350 at para. 95 – the court as finder of fact is “not ... constrained” to accept “the only account available” even if that account is provided by oral evidence. The evidence of experts is one area where the court is not automatically obliged to accept evidence absent cross-examination: Tesco Ireland Limited v. Stateline Transport Limited [2024] IECA 46 (Unreported, Court of Appeal, Butler J., 23 February 2024). The lens of the material before the decision-maker 51. The foundational concept is that consideration by a decision-taker involves essentially three elements, which are probably best categorised as follows (see Rural Residents Wind Aware v. An Coimisiún Pleanála (I) [2025] IEHC 600 (Unreported, High Court, 6 November 2025) at 76): (i) matters that must be considered either autonomously – normally finite and well identified – or only if they are raised, such as submissions; (ii) matters that must not be considered; and (iii) an infinite range of other matters which a decision-taker may consider if she wants to but does not have to. 52. Therefore if an autonomous duty does not arise, and if there is no breach of a prohibition on considering something, then everything else falls under the rubric of what was before the decision- taker at the time of the decision. Thus: (i) a basic principle is that in general, the legality of a decision is viewed through the lens of the material before the decision-taker at the time of the decision, and not with the benefit of further evidence in hindsight, although there are defined exceptions: I.S.O.F. v. Minister for Justice, Equality and Law Reform [2010] IEHC 457 (Unreported, High Court, Cooke J., 17 December 2010); Jahangir v. Minister for Justice and Equality [2018] IEHC 37, [2018] 2 JIC 0102 (Unreported, High Court, 1 February 2018); M.H. (Bangladesh) v. Refugee Appeals Tribunal [2018] IEHC 496, [2018] 6 JIC 2607 (Unreported, High Court, 26 June 2018); B.D. (Bhutan and Nepal) v. Minister for Justice and Equality [2018] IEHC 461, [2018] 7 JIC 1709 (Unreported, High Court, 17 July 2018); A.J.A. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 671, [2018] 11 JIC 1403 (Unreported, High Court, 14 November 2018); O.A. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 661, [2018] 11 JIC 2003 (Unreported, High Court, 20 November 2018); De Souza v. Minister for Justice and Equality [2019] IEHC 440, [2019] 6 JIC 0407 (Unreported, High Court, 4 June 2019); Ratushnyak v. Minister for Justice and Equality [2019] IEHC 619 (Unreported, High Court, 16 August 2019) per Keane J. at paras. 35 to 36; J.W. v. Minister for Justice and Equality [2020] IEHC 500, [2020] 10 JIC 1501 (Unreported, High Court, 15 October 2020); Reid v. An Bord Pleanála [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021); Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303, [2021] 5 JIC 0706 (Unreported, High Court, 7 May 2021) at para. 87; Google v. Data Protection Commission [2024] IEHC 577 (Unreported, High Court, Barr J., 11 October 2024); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 16; Eglington Residents Association v. An Bord Pleanála [2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025) at 9; Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December 2025) at 54; 10 (ii) it follows that if the consideration of something isn’t an autonomous obligation, and if nobody in the process raises that something, then belatedly introducing the point in judicial review is not generally a plausible or permissible basis for quashing a decision: North Great Georges Street Preservation Society v. An Bord Pleanála [2023] IEHC 241 (Unreported, High Court, 15 May 2023). In particular in the climate context, although not confined to that, the extent to which issues were raised in the process is of major importance (Coolglass v. An Coimisiún Pleanála [2026] IESC 5 (Unreported, Supreme Court, 4 February 2026) para. 118(xiv)). Exceptions are discussed in Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230 (Unreported, High Court, 12 April 2021) – if such exceptions apply then the court can potentially receive new evidence; (iii) the concept of autonomous duties should not be extended to nullify the requirement to make the point to the decision-taker. Where the decision-taker fails to engage with the relevant statutory test at all (as in Sherwin for example), one can characterise that as a breach of an autonomous duty, whether or not submissions on the point were also made, but where the decision-taker does address the appropriate test, the outcome of that should not normally be condemned on the basis of some new argument or evidence which was never put forward in the process, consistently with the foregoing caselaw. (iv) it follows a fortiori that if an applicant not only fails to make the point to the decision- taker but makes a contrary point, that is disqualifying in terms of permitting an applicant to obtain an order quashing a decision on such an inconsistent basis (see Clifford v. An Bord Pleanála [2021] IEHC 459 (Unreported, High Court, 12 July 2021), para. 52(ii) where landowners tried to object to a condition that had been inserted on foot of their own substantive submissions; McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 16 July 2025) §§140 & 160; Fernleigh RA v. An Coimisiún Pleanála [2025] IEHC 655 (Unreported, High Court, Holland J., 28 November 2025) at 63). Workability 53. 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). Reasons 54. Key elements of the law relating to reasons include: (i) The standard is the obligation to provide the main reasons on the main issues: Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 45 (Clarke C.J.) 11 (O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Balz and Heubach v. An Bord Pleanála [2019] IESC 90, [2023] 3 I.R. 751, [2020] 1 I.L.R.M. 367 per O’Donnell J. (Clarke C.J., McKechnie, Charleton and Irvine JJ. concurring); Balscadden Road SAA Residents Association Ltd v. An Bord Pleanála (No. 1) [2020] IEHC 586, [2020] 11 JIC 2501 (Unreported, High Court, 25 November 2020); Atlantic Diamond v. An Bord Pleanála [2021] IEHC 322 (Unreported, High Court, 14 May 2021); Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High Court, Holland J., 25 November 2024), para. 59; Pat O’Donnell v. Dublin City Council [2024] IEHC 671 (Unreported, High Court, Holland J., 26 November 2024), para. 149; per 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); see also non- precedentially Morris v. An Bord Pleanála [2025] IESCDET 25 (Dunne, Woulfe and Hogan JJ., 17 February 2025); Ó Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September 2025) at 49; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 33; reasons are to be understood in context of the “Broad issues” – Finlay C.J. (Griffin, Hederman and Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993] 1 I.R. 39, [1992] I.L.R.M. 237 at p. 76 or “Broad gist” – Faulkner v. Minister for Industry and Commerce 1997 WJSC-SC 962, [1996] 12 JIC 1007 (Unreported, Supreme Court, 10 December 1996) per O’Flaherty J. (Hamilton C.J. and Barrington J. concurring). (ii) A decision-taker is not required to give “reasons for the reasons”: Munby L.J. (Tomlinson and Patten LJJ. concurring) in In re A. and L. (Children) [2011] EWCA Civ. 1611, [2011] 12 W.L.U.K. 725, [2012] 1 F.L.R. 1243, [2012] Fam. Law 285, at para. 35 (in the context of judicial reasoning – the administrative obligation can’t be greater); N.P.B.K. (D.R.C.) v. International Protections Appeals Tribunal [2020] IEHC 450 (Unreported, High Court, 25 September 2020) at 29; Ó Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September 2025) at 49. (iii) Certain issues are to be viewed objectively as main reasons given the nature of the process or decision at issue – for example if it is in dispute as to whether key statutory criteria for the decision have been satisfied. Where the commission is disagreeing with a council (Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023)) or with its own inspector on a point on which the grant or refusal of permission turns, such an issue is virtually by definition a main issue, speaking objectively, such that a decision not to give reasons on it would be held to be erroneous (Crekav Trading GP Ltd v. An Bord Pleanála and Ors. [2020] IEHC 400 (Unreported, High Court, Barniville J., 31 July 2020); Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303 (Unreported, High Court, 7 May 2021); O'Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1 November 2023); Killegland Estates Ltd v. Meath County Council [2023] IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023) (O'Donnell C.J., Charleton, O'Malley, Baker, Woulfe and Donnelly JJ. concurring); Ventaway v. An Coimisiún Pleanála [2025] IEHC 406 (Unreported, High Court, 16 July 2025); Phelan Walsh v. An Bord Pleanála [2025] IEHC 533 (Unreported, High Court, Nolan J., 8 October 2025) at 53 citing Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453 (Clarke C.J.)). In the case of the inspector, there is the additional factor that by contrast with a normal case where the commission adopts the inspector’s reasons, in a case where the commission disagrees it must come up with reasons of its own. Where the commission disagrees with the inspector’s conclusion but on a basis that was not dealt with at all by the inspector, then any enhanced reasons obligation does not apply: AAI Baneshane v. An Coimisiún Pleanála [2025] IEHC 641 (Unreported, High Court, 21 November 2025). (iv) As to what are the main issues arising from submissions of interested parties, the decision in Friends of the Irish Environment CLG & Anor. v. Minister for Housing, Local Government and Heritage & Ors. [2025] IECA 128 (Unreported, Court of Appeal, 5 June 2024) is clear that, per Hyland J. (Costello P. and Collins J. concurring) at para. 148, it is for the decision-taker in the first instance to decide whether submissions raise relevant issues. Failure to address an issue in a submission can be challenged in the normal way. 12 (v) There is no obligation to provide a discursive, narrative consideration or to “engage with” submissions in such a sense, or to provide an issue-by-issue or submission-by-submission response: see Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25, [2008] 3 I.R. 795, per Denham J. (Murray C.J., Fennelly, Kearns and Finnegan JJ. concurring) referring to the lack of a need for a “micro specific format” (at p. 819); per Clarke J. (Fennelly and MacMenamin JJ. concurring) in Rawson v. Minister for Defence [2012] IESC 26 (Unreported, Supreme Court, 1 May 2012) at para. 6.9, referring to the need for a “reasoned but not discursive ruling”. Confusing a lack of narrative discussion with a lack of reasons is a classic applicant’s fallacy: see e.g. Ó Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September 2025) at 23. (vi) Reasons may be found anywhere, not necessarily in the decision itself, for example in an inspectors report: Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, para. 9.2 per Clarke C.J. (O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, 11 April 2024) per Woulfe J. (Charleton, O’Malley, Baker and Murray JJ. concurring) at para. 129; thus no additional requirement for reasons is required when adopting a reasoned report (for example of a chief executive or indeed an inspector): Killegland Estates v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022) at para. 65; Shadowmill v. An Bord Pleanála [2023] IEHC 157 (Unreported, High Court, Holland J., 31 March 2023), para 84; Pat O’Donnell v. Dublin City Council [2024] IEHC 671 (Unreported, High Court, Holland J., 26 November 2024) at para. 144. (vii) Reasons may be implicit from the context, for example it can be implicit that matters submitted were held not to be outweighing when placed against factors supporting the conclusion arrived at: Rana v. Minister for Justice [2024] IESC 46 (Unreported, Supreme Court, O’Malley J., 18 October 2024), paras. 96-99 (Dunne, Hogan, Collins and Donnelly JJ. concurring). (viii) Consistently with the principle that there do not need to be reasons for the reasons, a decision-maker doesn’t need to give reasons for not changing her mind from an already-articulated position absent a significant change in circumstances or a significant new point (Killegland Estates v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022), para. 67; Pat O’Donnell v. Dublin City Council [2024] IEHC 671 (Unreported, High Court, 26 November 2024), para. 145 per Holland J.) or for not making an exception to a clear policy for which reasons have been previously articulated, unless there is a significant change in circumstances or the unusual case of a new point being made of such significance that it needs to be expressly addressed: AAI Baneshane v. An Coimisiún Pleanála [2025] IEHC 641 (Unreported, High Court, 21 November 2025). That principle in turn reflects an even broader principle that a re-iteration of a previous position or decision is not a new decision for the purposes of judicial review, and does not for example re-start the clock for challenge: Killegland v. Meath County Council [2022] IEHC 393 (Unreported, High Court, 1 July 2022). That said, a new plan is indeed a new decision and can be challenged afresh even if it contains the proverbial old wine in a new bottle. But an individual decision does not become a fresh decision merely because the decision-maker is asked to change her mind and doesn’t. (ix) There is no obligation to give reasons for not changing the status quo, for example maintaining a previous plan provision, in respect of which reasons would have been given at an earlier stage: Jones v. South Dublin County Council [2024] IEHC 301 (Unreported, High Court, 11 July 2024) at §209, Voyage Property v. Limerick City and County Council [2025] IEHC 696 (Unreported, High Court, Holland J., 16 December 2025) at 106. (x) There is no obligation to state reasons for what is obvious: Killegland Estates v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022) (from which the Supreme Court dismissed an appeal, [2023] IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023) (O’Donnell C.J., Charleton, O’Malley, Baker, Woulfe and Donnelly JJ. concurring)), para. 83; Industrial Development Agency v. Information Commissioner [2024] IEHC 649 (Unreported, High Court, Phelan J., 15 November 2024), para. 132. (xi) There is no obligation to give reasons for rejecting a legally incorrect point: see Ironborn v. Dun Laoghaire Rathdown County Council [2023] IEHC 477 13 (Unreported, High Court, Mulcahy J., 31 July 2023). Reasons are tied into the exercise of evaluation and judgement, so if the latter do not arise then neither does the former – thus there is no need for reasons if there is in fact no evaluation by the decision-taker – if the issue is correctly applying a mandatory, non- discretionary, non-evaluative, legal rule, a valid decision does not become invalid due to failure to explain the law or indeed to give reasons for the rejection of a legally incorrect submission. (xii) A decision should not be quashed for lack of reasons if nobody could be in any real doubt as to what the reasons were: Killegland Estates v. Meath County Council [2023] IESC 39, [2023] 12 JIC 2109 (Unreported, Supreme Court, 21 December 2023) per Hogan J. (O’Donnell C.J., Charleton, O’Malley, Baker, Woulfe and Donnelly JJ. concurring); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 34. (xiii) If some reasons are good and others are bad, the decision may be severable if the good reasons are stand-alone (McCarthy Meats v. Minister for Housing, Planning and Local Government [2020] IEHC 371, [2020] 7 JIC 2707 (Unreported, High Court, Heslin J., 27 July 2020); Murtagh v. An Bord Pleanála [2023] IEHC 345 (Unreported, High Court, Owens J., 29 March 2023); Ironborn v. Dun Laoghaire Rathdown County Council [2023] IEHC 477 (Unreported, High Court, Mulcahy J., 31 July 2023); Voyage Property v. Limerick City and County Council [2025] IEHC 696 (Unreported, High Court, Holland J., 16 December 2025)). (xiv) Reasons are not severable if there is a certain link between the reasons (Element Power Ireland Ltd v. An Bord Pleanála [2017] IEHC 550 (Unreported, High Court, Haughton J., 28 September 2017)). (xv) Reasons should not be created ex post facto: K v. Minister for Justice [2022] IEHC 582 (Unreported, High Court, Bolger J., 21 October 2022); Ballindooley Developments Limited v. Minister for Housing Local Government and Heritage & Ors. [2025] IEHC 109 (Unreported, High Court, Holland J., 20 February 2025), although reasons that existed at the relevant time can be evidenced after the event if appropriate: RPS Consulting Engineers Ltd v. Kildare County Council [2016] IEHC 113, [2017] 3 I.R. 61 at para. 109. Enforcement notices 55. Turning to the specific statutory scheme here, it might be helpful to consider enforcement notices under a number of headings: (i) the statutory procedure, (ii) the extent of the alleged requirement for elaborate procedures in the issue of a notice, (iii) the scope of judicial review of enforcement notices and (iv) the scope to challenge the factual contentions of notices in other proceedings. 56. Enforcement notices are somewhat sui generis in law, and perhaps for understandable reasons courts, while generally resistant to judicial reviews of such notices, have been reluctant to lay down a complete overall theory as to why that should be so. I share that reluctance to a degree, so some of the following has to be viewed as obiter as I hope will be made clear below. I – Statutory procedure for enforcement notices 57. Section 151 of the Planning and Development Act 2000 (the 2000 Act) provides: “Offence. 151.—Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence.” 58. Section 152 provides: “Warning letter. 152.—(1) Where— (a) a representation in writing is made to a planning authority by any person that unauthorised development may have been, is being or may be carried out, and it appears to the planning authority that the representation is not vexatious, frivolous or without substance or foundation, or (b) it otherwise appears to the authority that unauthorised development may have been, is being or may be carried out, the authority shall issue a warning letter to the owner, the occupier or any other person carrying out the development and may give a copy, at that time or thereafter, to any other person who in its opinion may be concerned with the matters to which the letter relates. (2) Notwithstanding subsection (1), where the development in question is of a trivial or minor nature the planning authority may decide not to issue a warning letter. (3) A planning authority shall issue the warning letter under subsection (1) as soon as may be but not later than 6 weeks after receipt of the representation under subsection (1). (4) A warning letter shall refer to the land concerned and shall— 14 (a) state that it has come to the attention of the authority that unauthorised development may have been, is being or may be carried out, (b) state that any person served with the letter may make submissions or observations in writing to the planning authority regarding the purported offence not later than four weeks from the date of the service of the warning letter, (c) state that when a planning authority considers that unauthorised development has been, is being or may be carried out, an enforcement notice may be issued, (d) state that officials of the planning authority may at all reasonable times enter on the land for the purposes of inspection, (e) explain the possible penalties involved where there is an offence, and (f) explain that any costs reasonably incurred by the planning authority in relation to enforcement proceedings may be recovered from a person on whom an enforcement notice is served or where court action is taken.” 59. Section 153 provides: “Decision on enforcement. 153.—(1) As soon as may be after the issue of a warning letter under section 152, the planning authority shall make such investigation as it considers necessary to enable it to make a decision on whether to issue an enforcement notice or make an application under section 160. (2) (a) It shall be the duty of the planning authority to ensure that decisions on whether to issue an enforcement notice are taken as expeditiously as possible. (b) Without prejudice to the generality of paragraph (a), it shall be the objective of the planning authority to ensure that the decision on whether to issue an enforcement notice shall be taken within 12 weeks of the issue of a warning letter. (3) A planning authority, in deciding whether to issue an enforcement notice shall consider any representations made to it under section 152(1)(a) or submissions or observations made under section 152(4)(b) and any other material considerations. (4) The decision made by the planning authority under subsection (1) including the reasons for it shall be entered by the authority in the register. (5) Failure to issue a warning letter under section 152 shall not prejudice the issue of an enforcement notice or any other proceedings that may be initiated by the planning authority. (7) Where a planning authority establishes, following an investigation under this section that unauthorised development (other than development that is of a trivial or minor nature) has been or is being carried out and the person who has carried out or is carrying out the development has not proceeded to remedy the position, then the authority shall issue an enforcement notice under section 154 or make an application pursuant to section 160, or shall both issue such a notice and make such an application, unless there are compelling reasons for not doing so. (8) Nothing in this section shall operate to prevent or shall be construed as preventing a planning authority, in relation to an unauthorised development which has been or is being carried out, from both issuing an enforcement notice under section 154 and making an application pursuant to section 160.” 60. Section 154 provides: “Enforcement notice. 154.—(1) (a) Where a decision to enforce is made under section 153 or where urgent action is required under section 155, the planning authority shall, as soon as may be, serve an enforcement notice under this section. (b) Where an enforcement notice is served under this section, the planning authority shall notify any person who made representations under section 152(1)(a) and any other person, who in the opinion of the planning authority may be concerned with the matter to which the notice concerned relates, not being a person on whom the enforcement notice was served, of the service of the enforcement notice. (2) Where the planning authority decides not to issue an enforcement notice, it shall notify any person to whom the warning letter was copied under section 152 and any other person who made a representation under that section of the decision in writing within 2 weeks of the making of that decision. (3) (a) An enforcement notice under subsection (1) shall be served on the person carrying out the development and, where the planning authority considers it necessary, the owner or the occupier of the land or any other person who, in the opinion of the planning authority, may be concerned with the matters to which the notice relates. (b) If, subsequent to the service of the enforcement notice, the planning authority becomes aware that any other person may be carrying out development or is an owner or occupier of the land or may be affected by the notice, the notice may be served on that person and the 15 period specified for compliance with the notice shall be extended as necessary to a maximum of 6 months, and the other person or persons on whom the notice had previously been served under paragraph (a) shall be informed in writing. (4) An enforcement notice shall take effect on the date of the service thereof. (5) An enforcement notice shall refer to the land concerned and shall— (a) (i) in respect of a development where no permission has been granted, require that development to cease or not to commence, as appropriate, (ii) in respect of a development for which permission has been granted under Part III or section 293, require that the development will proceed in conformity with the permission, or with any condition to which the permission is subject, or (iii) in respect of a development in respect of which a certificate has been issued by the Dublin Docklands Development Authority under section 25(7)(a)(ii) of the Dublin Docklands Development Authority Act 1997 or by the Custom House Docks Development Authority under section 12(6)(b) of the Urban Renewal Act 1986, require that the development will proceed in conformity with the planning scheme made under those Acts in respect of which the development was certified to be consistent and any conditions to which the certificate is subject, (b) require such steps as may be specified in the notice to be taken within a specified period, including, where appropriate, the removal, demolition or alteration of any structure and the discontinuance of any use and, in so far as is practicable, the restoration of the land to its condition prior to the commencement of the development, (c) warn the person or persons served with the enforcement notice that, if within the period specified under paragraph (b) or within such extended period (not being more than 6 months) as the planning authority may allow, the steps specified in the notice to be taken are not taken, the planning authority may enter on the land and take such steps, including the removal, demolition or alteration of any structure, and may recover any expenses reasonably incurred by them in that behalf, (d) require the person or persons served with the notice to refund to the planning authority the costs and expenses reasonably incurred by the authority in relation to the investigation, detection and issue of the enforcement notice concerned and any warning letter under section 152, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers, and the planning authority may recover these costs and expenses incurred by it in that behalf, and (e) warn the person or persons served with the enforcement notice that if within the period specified by the notice or such extended period, not being more than 6 months, as the planning authority may allow, the steps specified in the notice to be taken are not taken, the person or persons may be guilty of an offence. (6) If, within the period specified under subsection (5)(b) or within such extended period, not being more than 6 months, as the planning authority may allow, the steps specified in the notice to be taken are not taken, the planning authority may enter on the land and take such steps, including the demolition of any structure and the restoration of land, and may recover any expenses reasonably incurred by it in that behalf. (7) Any expenses reasonably incurred by a planning authority under paragraphs (c) and (d) of subsection (5) and subsection (6) may be recovered— (a) as a simple contract debt in any court of competent jurisdiction from the person or persons on whom the notice was served, or (b) secured by— (i) charging the land under the Registration of Title Act, 1964, or (ii) where the person on whom the enforcement notice was served is the owner of the land, an instrument vesting the ownership of the land in the authority subject to a right of redemption by the owner within five years. (8) Any person on whom an enforcement notice is served under subsection (1) who fails to comply with the requirements of the notice (other than a notice which has been withdrawn under subsection (11)(a) or which has ceased to have effect) within the specified period or within such extended period as the planning authority may allow, not exceeding 6 months, shall be guilty of an offence. (9) Any person who knowingly assists or permits the failure by another to comply with an enforcement notice shall be guilty of an offence. (10) Particulars of an enforcement notice shall be entered in the register. (11) (a) A planning authority may for stated reasons by notice in writing to any person served with the notice, and, where appropriate, any person who made a representation under section 152(1)(a), withdraw an enforcement notice served under this section. 16 (b) Where an enforcement notice is withdrawn pursuant to this subsection by a planning authority or where a planning authority finds that an enforcement notice has been complied with, the fact that the enforcement notice was withdrawn and the reason for the withdrawal or that it was complied with, as appropriate, shall be recorded by the authority in the register. (12) An enforcement notice shall cease to have effect 10 years from the date of service of the notice under subsection (1) or, if a notice is served under subsection (3)(b), 10 years from the date of service of the notice under that subsection. (13) A person shall not question the validity of an enforcement notice by reason only that the person or any other person, not being the person on whom the enforcement notice was served, was not notified of the service of the enforcement notice. (14) A report of a local authority under section 50 of the Local Government Act, 1991, shall contain details of the number of enforcement notices issued under this section, warning notices issued under section 153, prosecutions brought under section 157 and injunctions sought under section 160 by that authority.” 61. Section 155 provides: “Issue of enforcement notice in cases of urgency. 155.—(1) Where, in the opinion of the planning authority, due to the nature of an unauthorised development and to any other material considerations, it is necessary to take urgent action with regard to the unauthorised development, notwithstanding sections 152 and 153, it may serve an enforcement notice under section 154. (2) Where an enforcement notice is issued in accordance with subsection (1), any person who made a representation under section 152(1)(a) shall be notified in writing within two weeks of the service of the notice.” 62. Section 157 provides (emphasis added): “Prosecution of offences. 157.—(1) Subject to section 149, summary proceedings for an offence under this Act may be brought and prosecuted by a planning authority whether or not the offence is committed in the authority’s functional area. (1A) Summary proceedings for an offence under this Part may be brought and prosecuted by the Maritime Area Regulatory Authority whether or not the offence is committed in the maritime area. (2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, and subject to subsection (3) of this section, summary proceedings may be commenced— (a) at any time within 6 months from the date on which the offence was committed, or (b) at any time within 6 months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify proceedings comes to that person’s knowledge, whichever is the later. (3) For the purposes of this section, a certificate signed by or on behalf of the person initiating the proceedings as to the date or dates on which evidence described in subsection (2)(b) came to his or her knowledge shall be evidence of the date or dates and in any legal proceedings a document purporting to be a certificate under this section and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown. (4) (a) No warning letter or enforcement notice shall issue and no proceedings for an offence under this Part shall commence— (i) in respect of a development where no permission has been granted, after seven years from the date of the commencement of the development, (ii) in respect of a development for which permission has been granted under Part III or section 293, after seven years beginning on the expiration, as respects the permission authorising the development, of the appropriate period within the meaning of section 40 or, as the case may be, of the period as extended under section 42, (iii) in respect of a development in respect of which a certificate has been issued by the Dublin Docklands Development Authority under section 25(7)(a)(ii) of the Dublin Docklands Development Authority Act 1997 or by the Custom House Docks Development Authority under section 12(6)(b) of the Urban Renewal Act 1986, after seven years beginning on the date the certificate ceases to have effect in accordance with Part 4 of the Dublin Docklands Development Authority (Dissolution) Act 2015. (aa) Notwithstanding paragraph (a) a warning letter or enforcement notice may issue at any time or proceedings for an offence under this Part may commence at any time in respect of 17 unauthorised quarry development or unauthorised peat extraction development in the following circumstances: (i) where no permission for the development has been granted under Part III and the development commenced not more than 7 years prior to the date on which this paragraph comes into operation; (ii) where permission for the development has been granted under Part III and, as respects the permission— (I) the appropriate period (within the meaning of section 40), or (II) the appropriate period as extended under section 42 or 42A, expired not more than 7 years prior to the date on which this paragraph comes into operation. (ab) Notwithstanding paragraph (a) or (aa) a warning letter or enforcement notice may issue at any time to require any unauthorised quarry development or unauthorised peat extraction development to cease and proceedings for an offence under section 154 may issue at any time in relation to an enforcement notice so issued. (b) Notwithstanding paragraph (a), proceedings may be commenced at any time in respect of any condition concerning the use of land to which the permission is subject. (c) It shall be presumed until the contrary is proved that proceedings were commenced within the appropriate period. (5) Proceedings for other offences under this Act shall not be initiated later than 7 years from the date on which the offence concerned was alleged to have been committed.” 63. There is nothing incorrect about the law providing that unauthorised development can give rise to both civil and criminal liability. Many wrongs are in that category. Civil enforcement of something that is also a crime is not itself punishment – it is providing for the consequences of the wrong in civil law. That raises no problematic issues of principle. Sometimes there can be a third strand of administrative/disciplinary consequences as well. That isn’t inherently problematic either. People who face civil remedies for crimes always complain they are being “punished”, and any order a court makes is inevitably damned as “punitive” even if it is merely compensatory and rectifying and even if a fairly extensive order is properly required in order to achieve full compensation and/or full rectification. A civil judgment for debt isn’t “punitive” merely because the defendant can’t pay it, or merely because it is large, for example. It is a misconception to suppose that an order addressing the civil consequences of a wrong is punitive or “disproportionate” (another favourite term of abuse in this context) merely because, for example, making the polluter pay means making the polluter pay the full costs of remediation, or because an order addressing the criminal consequences would be different and perhaps even less swingeing. II – Whether there is a need for elaborate procedures in the issue of an enforcement notice 64. One quickly runs into unworkability if the fair procedures processes applicable to a full trial are imported into litigation strategy or decision-making in terms of issuing notices or commencing proceedings. There is no requirement that public bodies have to engage in elaborate processes before they can take measures which can lead in due course to a full hearing before a court in which any findings can be contested. This is the kind of excessive demand for “an entitlement to elaborate procedures at every point” referred to by 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; or 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. (Clarke C.J.,