Doyle and Ors v An Coimisiún Pleanála and Ors [No. 3]

[2026] IEHC 156 THE HIGH COURT PLANNING & ENVIRONMENT [H.JR.2024.0000708] IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AND SECTION 15 OF THE CLIMATE ACTION AND LOW CARBON DEVELOPMENT ACT 2015 BETWEEN COLIN DOYLE, FRIENDS OF THE IRISH ENVIRONMENT CLG, FUTUREPROOF CLARE, MARTIN KNOX AND CHRISTINE SHARP APPLICANTS AND AN COIMISIÚN PLEANÁLA, THE GOVERNMENT OF IRELAND, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND ART DATA CENTRES LIMITED NOTICE PARTY (No. 3) Date of impugned decision: 5 April 2024 Date proceedings commenced: 30 May 2024 Date of main hearing of Module I: 25 February 2025 Date of main hearing for Module II: 2 March 2026 Date draft judgment circulated: 6 March 2026 JUDGMENT of Humphreys J. delivered on Friday the 13th day of March 2026 1. The applicants who challenge a data centre development here comprise two environmental NGOs with a strong record of relevant activism, and three individuals who have obviously very genuine concerns and strong awareness of the ramifications of the climate emergency. The first named applicant Dr Doyle holds a BA (Mod) in Physics, an MSc in Physics, a Postgraduate Diploma in Environmental Pollution, and a PhD in Climate Science. He has over twenty-five years of experience in environmental science in Ireland, including consultancy in the preparation of environmental impact assessments and emissions monitoring for a wide range of industrial and commercial projects. The fourth named applicant is a retired academic and environmental manager. The fifth named applicant is a horticulturalist and an environmental activist. Professor Daly who is well-known for her penetrating and lucid contributions to public understanding of climate science has weighed in to support the applicants, along with a body of other material and affidavits put forward. The primary question for the court, however, is not whether it would have interrogated the application for permission more sceptically. It is whether the applicants have overcome the onus to demonstrate that the permission fell outside the spectrum of options open to the commission in determining what was consistent with the matters referred to in climate legislation. Judicial review is not politics by other means. As far as jurisdictions like ours are concerned, a court’s role, to state the obvious, is to limit itself to reviewing the legality rather than merits of any given decision, and to do so by reference only to the issues that are duly pleaded and that properly arise, having regard to what was before the decision-taker, and within the confines of the substantive law, particularly as definitively interpreted domestically by the apex court within the given jurisdiction, and by the CJEU in the case of European law issues where those arise, as well as subject to the rules of forensic engagement, particularly the onus of proof generally resting with a challenger. Upholding a decision is not necessarily an endorsement of its merits any more than quashing a decision is necessarily indicative of a lack of merit. Amongst the many aspects of the case one could highlight at the outset, three points particularly stand out. Firstly, by virtue of the game-changing response document from John Spain Associates, this is a project that is going to be powered from renewable energy. It is therefore a project that prima facie the commission was able to regard as not being one that in itself causes major net emissions. Secondly, the climate challenge is virtually exclusively pleaded as a matter of domestic law. No principle of EU law (such as the EU Charter, art. 191(2) TFEU, the polluter pays principle, the European Climate Law (Regulation 2021/1119), Council Regulation (EU) 2022/2577 (see Case C-325/25 Eneco Wind) or otherwise) is pleaded in that regard. Even the environmental impact assessment (EIA)/ habitats directive/ derogation licence issue is focused on bats, not on climate. The strategic environmental assessment (SEA) and water framework (WFD) directive points were not pursued. The glancing and purely narrative reference to the environmental impact assessment report (EIAR) in sub-ground 25 does not constitute a proper or any legal plea of contravention of EU law. And thirdly, this was a case where the applicants did 2 not suggest to the other parties the possibility of seeking input from independent expert scientific entities (such as the Environmental Protection Agency (EPA) for example) in an amicus role to assist the court on any of the more general questions, given the particular difficulties that arise in science-heavy climate litigation, as discussed in Friends of Killymooney Lough v. An Coimisiún Pleanála No. 1 [2025] IEHC 407 (Unreported, High Court, 8 July 2025) at 174. Judgment history 2. In Doyle v. An Bord Pleanála (No. 1) [2025] IEHC 158 (Unreported, High Court, 21 March 2025), I held that the inspector’s failure to acknowledge the single Leisler’s bat (Nyctalus leisleri) roost in Building 6C constituted a harmless error which did not warrant quashing the permission and dismissed the applicants’ case in relation to Module I of the proceedings. 3. In Doyle v. An Bord Pleanála (No. 2) [2025] IEHC 205 (Unreported, High Court, 11 April 2025), the applicants argued that their Module I costs of making failed points should be reserved rather than be the subject of no order, a submission which I rejected. Geographical context 4. Two related commission decisions are challenged here. The data centre decision (https://www.pleanala.ie/en-ie/case/314474), involves the construction of six two-storey data centre buildings, associated structures and all ancillary site works on a 60 hectare site at Tooreen, Cahernalough and adjacent townlands, Tulla Road, Ennis, Co. Clare, subject to conditions for a 10- year period at Tooreen, Cahernalough, Knockanean, Ballymacahill, Muckinish and Rosslevan, Tulla Road, Ennis, Co. Clare 5. The substation decision (https://www.pleanala.ie/en-ie/case/313895) involves the development of a 110 kV GIS substation with two 110 kV underground transmission cables connecting to existing 110 kV overhead lines to the north, and two 110 kV underground cables connecting to the existing Ennis 110 kV substation and associated works in the Townlands of Tooreen, Cahernalough, Knockanean, Ballymacahill, Muckinish and Rosslevan to the north-east of Ennis, on the Tulla Road (R352), Co. Clare. Facts 6. On 16 July 2021, the notice party submitted a planning application to Clare County Council for a development comprising the construction of six two-storey data centre buildings, associated structures and all ancillary site works on a 60 hectare site at Tooreen, Cahernalough and adjacent townlands, Tulla Road, Ennis, Co. Clare (planning reg. ref. no. 21/757 refers). The data centre application was accompanied by, inter alia, an EIAR and a Natura impact statement (NIS). 7. On 8 September 2021, the planning authority requested further information in relation to the data centre application (RFI) and a response to the RFI was provided on behalf of the notice party on 25 February 2022. The RFI response was readvertised as required by the planning authority on the basis that it contained significant additional data. 8. Clarification on the RFI response was sought by the planning authority on 28 April 2022, and a reply to same was submitted on 10 June 2022, which included an updated EIAR (described in the commission’s order as a “consolidated EIAR”). Chapter 8 of the consolidated EIAR includes the following: “Electricity providers form part of the EU-wide Emission Trading Scheme (ETS) and thus greenhouse gas emissions from these electricity generators are not included when determining compliance with the targeted 30% reduction in the non-ETS sector i.e. electricity associated greenhouse gas emissions will not count towards the Effort Sharing Decision target. Thus, any necessary increase in electricity generation due to data centre demand will have no impact on Ireland’s obligation to meet the EU Effort Sharing Decision. Under this scenario, as outlined in the Regulation, the new electricity provider will be treated as a ‘new entrant’ under Phase IV of the ETS (i.e. an electricity generator obtaining a greenhouse gas emissions permit for the first time after 30th June 2018). The new electricity provider will be required to purchase allocations in the same manner as existing players in the market using the European Energy Exchange. EU leaders have also decided that during Phase IV (2021-2030) 90% of the revenue from the auctions will be allocated to the Member States on the basis of their share of verified emissions with 10% allocated to the least wealthy EU member states. The revised EU ETS Directive has enshrined in law the requirement that at least 50% of the auctioning revenues or the equivalent in financial value should be used for climate and energy related purposes. … In terms of the Proposed Development, as the facility generates over the threshold of 20 MW, a greenhouse gas emission permit will be required which will be regulated under the ETS scheme also. Thus, whether the facility is operated by electricity or gas engines onsite, the emissions are not included when determining compliance with the targeted 30% reduction in the non-ETS sector. In addition, on a EU-wide basis, where the ETS market in 2018 is approximately 1,655 million tonnes CO2eq, the impact of the emissions associated 3 with the proposed development will be less than 0.040% of the total EU-wide ETS market which is imperceptible. … Data centres are typically 84% more efficient than on-premises servers and the GHG savings associated with this are not included in the GHG emissions total. In addition, in terms of total forecasted capacity, it is predicted that 1,700MW of data centres capacity will be operational by 2025 in Ireland. However, the carbon intensity of electricity is predicted to decrease from 331 gCO2/kWh in 2019 to 100 gCO2/kWh in 2030 as a result of the increase in renewables to 70% of the electricity market by 2030. Overall, it is predicted that data centres will peak at 2.2% of total GHG emissions in 2024 and will fall or level off after this date. The indirect CO2 emissions from electricity to operate the facility will not be significant in relation to Ireland’s national annual CO2 emissions. A Report titled ‘Energy Related CO2 Emissions In Ireland 2005 – 2018 (2019 Report)’ published by the Sustainable Energy Authority of Ireland (SEAI, 2020) states the average CO2 emission factor for electricity generated in Ireland was 375 gCO2/kWh in 2018. This average CO2 emission factor is based on the national power generating portfolio. On the basis that the Proposed Development will consume 200 MW of power this equates to 1752 GWh annually based on the assumption of the national fuel mix. This translates to approximately 657,000 tonnes of CO2eq per year. This will have an indirect, long-term, negative and slight impact on climate.” 9. The clarification response was readvertised as required by the planning authority on the basis that it contained significant additional data. 10. The council’s planner prepared three reports as part of the consideration of the application – dated 8 September 2021, 18 April 2022, and 4 August 2022. Same, inter alia, considered the issue of climate impacts, including the submissions/objections raised; and noted, as to energy supply for the development, that a balance would be achieved as Ireland moves towards the achievement of its renewable energy targets. The council’s planner’s report also provides the conclusions on the planning assessment, including in relation to, inter alia: “• The design of the data centre development to facilitate the use of renewable hydrogen energy in the future and, in order to minimise air quality impacts, incorporate gas engines for selective catalytic deduction. • The proposed development including an energy centre which runs on natural gas and is capable of generating 120MW. The proposed energy centre is also capable of running on hydrogen when supplies become available, thereby providing a path to the use of decarbonised energy sources for the entire development. • By reference to the previous Climate Action Plan 2021 and various other policies, the data centre development would be ‘in accordance with the proper planning and sustainable development of the area’.” 11. On 8 August 2022, the planning authority made a decision to grant planning permission. 12. Seven third-party appeals were lodged with the commission in respect of the PDC – by An Taisce, Friends of the Irish Environment, Futureproof Clare, Clare Green Party, Christine Sharp, Martin Knox, and Colin Doyle. 13. The commission’s reference for the data centre application appeal was ABP-314474-22. 14. Relatedly, on 23 June 2022, the notice party submitted a strategic infrastructure development (SID) application to the commission under s. 182A of the Planning and Development Act 2000 (the 2000 Act) for the development of a 110 kV gas insulated switchgear substation with two 110 kV underground transmission cables connecting to existing 110 kV overhead lines to the North, and two 110 kV underground cables connecting to existing Ennis 110 kV substation to the West, and associated works. The commission’s reference for the substation application was ABP- 313895-22. 15. As the commission points out, the notice party submitted substantial documentation in response to the appeals, inter alia addressing the greenhouse gas (GHG) emissions issues. I would broadly accept the commission’s summary of these: “38. Following various appeals by third parties, the Developer lodged a comprehensive suite of appeal documents to the Commission in response – which included: • Appeal Response Report from John Spain Associates, dated 26 September 2022, which addressed the various grounds of appeal, including by reference to the evidence informing the application and the further evidence adduced for the purposes of responding to the appeal. In this respect, it provided a response to the submissions made alleging errors or omissions in the application documentation in respect of the consideration of climate – stating, inter alia: ‘… 4 Contrary to the submission of Dr Colin Doyle (at para 2) the applicant has not sought to argue, solely on the basis that the development operates within the ETS, that the proposed development complies with both European and national policy. The applicant has fully addressed the requirements of EU, national, regional and local policy in the EIAR and other technical reports submitted in relation to the application. … As is clear from Chapter 8 of the EIAR, the Applicant's references to GHG emissions falling within the EU ETS regime are simply directed at highlighting that in Ireland, as in all EU Member States, the EU ETS is an EU wide regime; and that EU ETS emissions are not calculable for the purpose of Member States' EU targets and reduction obligations in respect of non-trading sector emissions (e.g. transport, agriculture, buildings (heating) etc (under the EU's 'Effort-Sharing Regulation'). That is an entirely accurate and factual statement in relation to the basic structure/intent of the EU ETS relative to non-trading sector emissions, targets and reduction obligations of Member States. The same part of the Appeal has suggested that, by expressing the quantum of estimated GHG emissions (related to energy generated for the proposed facility) by reference to total EU-wide EU ETS-related emissions, that the Applicant is somehow avoiding or concealing the quantum of GHG emissions relative to national GHG emissions. That is, again, not an accurate reading or interpretation of the information that the Applicant has provided in the EIAR; because it is very clear that the Applicant has referenced estimated GHG emissions from the facility as well as referencing national-level GHG emissions. The EU ETS has been the flagship GHG reduction mechanism within the EU – both collectively across the EU and within individual Member States - since the commencement of its pilot phase in 2005. Since then, through phases 1, 2 and 3 and, most recently, the current phases 4 (running to 2030) of the EU ETS system, it covers c. 10,000 installations across the EU. As referred to in the environmental response note prepared by AWN (appendix 3 to this response document) significant GHG reductions have been achieved under the EU ETS. These have been achieved by virtue of its design, its ‘pricing in’ of carbon and also by virtue of its annual ‘linear reduction factor’. As indicated above, when it comes specifically to non-trading sector specific emission reduction targets for EU Member States, the EU ETS is not calculable – for the simple reason that the EU ETS is separate to the non-trading sector. That is simply the discrete point that that the Applicant has made; and it is erroneous of the Appellant to state that the Applicant, in making that point/distinction, is somehow avoiding indicating EU ETS emissions in national terms. In any event, outside of EU-wide targets i.e. in relation to domestically-set, economy- wide GHG reduction targets set by Member States for themselves, EU ETS- regulated installations, because they are GHG sources, will, in relation to the reductions they achieve, contribute to the overall performance of individual Member States in achieving those domestically- set/national economy-wide (combined EU ETS and Non-EU ETS) targets. In that regard, contrary to the Appellant’s assertions regarding the Applicant’s references to the EU ETS, the position is that the EU ETS is an important mitigation mechanism for all Member States GHG reduction efforts.… … Indeed in relation to the most important target – the 2050 target - just as the EU's ultimate target ( and most legally- binding target - under the EU ‘Climate Law’) is one of achieving climate neutrality (‘Net Zero’) by 2050, that is precisely the same target as Ireland has undertaken under the Climate Action and Low Carbon Development Act 2015 (as amended in 2021) and all reductions achieved by Irish EU ETS-participating installations will contribute towards that.’ • Response addressing the principles for sustainable data centre development (§4.54 et seq). • AWN Appeal Response, dated September 2022 (Appendix 3 of Appeal document) – outlining: ‘…the energy generated and associated GHG emissions to serve the proposed development will fall within the scope of the EU Emissions Trading System (ETS) either as a result of electricity from the national grid (with diesel generators as an emergency measure) (for Phase 1) or as a result of onsite generation of electrical power using gas generators (Phase 2 & 3) with all phases requiring a Greenhouse Gas Permit in order to operate…’ (§1.4) ‘…Within the context of global or EU-wide emissions, the GHG emissions associated with the project are small. The approach that has been adopted at EU level is the EU Climate and Energy Package…’ (§1.8) 5 ‘The ETS is a “cap and trade” system where an EU-wide limit, or cap, is set for participating installations. Thus, the geographical location of a given development within the EU is not relevant as there is only one EU-wide target which is applicable to the ETS and thus the cumulative direct and indirect climate assessment of relevance in this context is the GHG emissions associated with the EU under the ETS. When viewed in this context, on an EU- wide basis, where the ETS market in 2021 was approximately 1,307 million tonnes CO2eq, the impact of the emissions from the proposed development, either from electricity generation from the national grid or from onsite generation, will be less than 0.05% of the total EU-wide ETS market. Thus, where there is a medium sensitivity environment and the magnitude of impact of the project is small, this equates to a slight impact.’ (§1.10) ‘In terms of the specific references to CO2 emissions within the third party appeals, the emissions associated the development (either directly or indirectly) will be within the ETS mechanisms as outlined in Section 8.7.2.2 of the EIAR’. (§1.15) ‘It should be noted that the projected CO2 emissions (as quoted in Section 8.7.2.2 of the EIAR) associated with the proposed development are calculated based on the 2018 grid mix. The national fuel mix will decrease in carbon intensity as the grid reaches the 80% in renewables predicted for 2030 (see Figure 3 below). Therefore, the servicing of Phase 1 from the national grid will allow for a reduction in the emissions associated with the proposed development over time. In addition, the introduction of biomethane into the natural gas network will also lead to reductions in emissions from Phases 2 & 3 over time.’ (§1.16) It should also be observed that the appeal submission addressed PAS 2050 (inter alia, §1.17) – noting that same was raised by the Applicants in their appeal. This report proceeds to then set out an assessment of the significance of the emissions (§1.27 et seq) – by reference to the Institute of Environmental Management and Assessment (IEMA) guidance note on ‘Assessing Greenhouse Gas Emissions and Evaluating their Significance’ (IEMA, 2022) – concluding: ‘Thus, through a series of measures including project replacement, a reduction in residual emissions through best practice and the implementation of a series.’ Thus, we see an identified methodology which informed the consideration of GHG emissions – a methodology which the Commission was entitled to consider as appropriate. In this respect, the Applicants are not correct that there was a failure to consider the extent of emissions (Submissions, §77), same were considered, and found to be acceptable in the Developer’s documentation, with which the Commission agreed. It further addressed the contentions raised in the appeal regarding alleged non-compliance with s.15 of the 2015 Act and the CAP – addressing the carbon budgets and sectorial emission ceilings (§3.10 et seq), and setting out for stated reasons that: ‘…as outlined below, the facility will operate in compliance with the policies and objectives of the 2021 Climate Act. The phasing of the development and the period taken to reach full capacity within each planned phase will result in the “ramping up” of demand associated with the project over a number of years during the lifetime of the 10 year permission.’ (§3.15) In this context, the report (pg.19) expressly quotes s.15 of the 2015 Act in its amended form – consistent with ‘so far as practicable’ – and explains that the ‘GHG emissions associated with the proposed project are in compliance with the above mentioned plans, strategies and objectives’ (§3.17 et seq). Noting the foregoing, the Applicants complaint that there was a failure to address the development by reference to sectoral emissions ceiling and carbon budgets (Submissions, §93 et seq) is not correct. Noting the relevant policy context, which conforms with s.15, the assessment of GHG emissions, including by reference to the sectoral emissions ceiling and carbon budgets was analysed in the Developer’s documentation – which aligns with the requirements of the Development Plan in terms of the requirement to provide an analysis and which the Commission was lawfully entitled to accept (contrary to the Applicants’ complaints at Submissions, §106). The report also addresses the national climate objective – stating (§3.22): ‘Thus, the proposed project aligns with the national climate objective as the project will be within the EU ETS which is the cornerstone of the EU’s objective to reduce GHG emissions by at least 55% by 2030 (compared to 1990) and to achieve climate neutrality by 2050.’ The report addresses each of the matters arising under s.15 of the 2015 Act, insofar as same arose, and provides informed responses. In this respect, for example, in respect of mitigating GHG emissions, the report outlines (§3.23 et seq): ‘The project will replace activities which have a higher GHG profile. Data storage facilities represent a significantly more efficient means of data storage when compared to a 6 distributed model of enterprise data storage by individuals and companies (or “enterprise sites”). … A range of measures will be employed which is in line with “best practice” as outlined in IEMA (IEMA, 2022) including the installation of solar panels, the installation of a vertical farm and the installation of flow and return pipes from the Energy Centre which will allow an onward connection to a local user for heat or a future heat network. Measures will be implemented in line with “best practice” as outlined in IEMA (IEMA, 2022). As set out within the appended letter from the applicant, the applicant has had positive engagement in relation to the securing of a CPPA to provide renewable power to offset that used by the proposed development. The letter forms Appendix 5 to the JSA response document. The letter notes that the timeline associated with the delivery of the proposed development over the duration of the 10-year permission sought aligns with the intended delivery of significant renewable capacity by renewable energy providers in the vicinity of the proposed development…’ The AWN Appeal Response also addresses climate adaption (§3.25 et seq) and decarbonised data centres by design (§4.0 et seq) – this included further consideration of the Data Centre Enterprise Strategy. The foregoing report is important in the context of this case as same is largely ignored by the Applicants. However, when same is considered – noting that the Inspector and the Commission ultimately agreed with the Developer’s position – it is clear that the evidence was informed by a correct understanding of s.15 of the 2015 Act (i.e. the correct legislative text). • Appendix 5 of the appeal response comprises correspondence regarding a Corporate Power Purchasing Agreement (‘CPPA’) – which details the Developer’s engagement with renewable energy providers. • Appendix 6 of the appeal response included a HDR Response which further addressed how same accords with the Data Centre Enterprise Strategy by reference to the principles set out in same – including in relation to the proposed use of gas. As to energy usage and renewable policy, noting the phased nature of the development, it provides: ‘The data centre building design is based on best in class low energy technologies to ensure that the buildings have the lowest energy usage possible in the first instance. Where possible, direct renewable energy production is provided on the data centre campus, primarily in the form of solar/PV arrays. The energy centre will be provided with gas engines that will be enabled to run on initially natural gas but also onto blends of natural gas, biomethane and hydrogen. The engines will then have the ability to provide power to the data centres and also, if required, to disconnect the data centre campus to be off grid and even to allow export to the electricity grid. CPPAs and/or direct private wire connections will be avidly encouraged to link up with local renewable energy sources, particularly local wind farms.’ The report also addressed submissions regarding the potential future use of hydrogen – stating: ‘In this regard it is correct that currently there is no production of hydrogen on any significant scale that is being used by Gas Networks Ireland (GNI) in their gas transmission system. This is not a surprise, in GNI’s Vision 2050, they say that hydrogen production (green or blue) is being considered and the intention for it to be in the mix of gases in the gas network by 2030 onwards as per Figure 1 above (extracted from GNI’s Vision 2050). For the first 5 or more years from 2030, the quantum of hydrogen intended to be injected is small, a few percent, but will increase but even by 2050 it is only likely to make up around 12% of the total volume supplied. It is true that fully replacing Natural Gas completely with hydrogen is currently not an option due to the embrittlement of pipework by hydrogen itself, however there are already many gas networks around the world where natural gas has been replaced in part (up to 20%) with hydrogen with no issues at all. So a mix of only 12% hydrogen is clearly an achievable target. … the intention by GNI to introduce biomethane sources from existing waste streams (see earlier reference to KPMG/GNI report 2021) from a range of food and agricultural waste products…” 16. The council’s submission on the appeal is highlighted by the commission as follows: “40. The Council also provided submissions on the various appeals, reiterating the rationale for the first instance grant of permission, whilst also addressing the points raised in the appeals. The Council’s submissions: • Included a detailed consideration of the Data Centre Enterprise Strategy. • Included submissions on the EIAR, including air and climate. 7 • Addressed the 2015 Act and climate impacts/justice – outlining that, for stated reasons, it was considered that ‘the proposed development is in line with the overarching principles underpinning’ the 2015 Act. • Noted that the potential for the energy centre to run off alternative supplies, such as hydrogen, provided a path to the use of decarbonised energy resources. The Council further outlined that it was a matter for the Developer ‘to engage commercially with end users / tenants of the proposed development in relation to Corporate Power Purchase Agreements’. • Outlined that Government Policy ‘advocates for a plan led approach in the delivery’ of data centres, which the Council considers it adopted in zoning the lands in the Development Plan. The Council’s submission concluded by stating that it: ‘…considers that the proposed development represents a plan led approach to the development of a data centre in Ennis, which has the potential to contribute to enterprise and regional policy objectives and represent a strategically important element of Ireland’s economic prospects…’” 17. The inspector carried out a site inspection on 3 September 2022. 18. The notice party submitted a response to the appeals (with appendices) on 26 September 2022. 19. Submissions were made in response, notably by Dr Doyle. 20. The Climate Action Plan 2023 (the first to be prepared under the Climate Action and Low Carbon Development (Amendment) Act 2021, and following the introduction, in 2022, of economy- wide carbon budgets and sectoral emissions ceilings (SECs)) was launched on 21 December 2022. 21. On 11 January 2023, the commission gave notification that it would not be possible to determine the appeal within the statutory period of 18 weeks and indicated its intention to determine the appeal by 4 April 2023. 22. On 3 April 2023, the commission gave notification that it would not be possible to determine the appeal by 4 April 2023. It expressed the hope that it would receive the inspector’s report and recommendation “in the near future”. 23. As part of the Climate Action Plan 2023, the National Hydrogen Strategy was published by the Department of the Environment, Climate and Communications on 12 July 2023. 24. The inspector carried out a further site inspection 13 October 2023. 25. On 11 December 2023, the inspector submitted a report to the commission which contained a recommendation that planning permission should be granted subject to 17 conditions. The inspector also conducted an EIA and an appropriate assessment (AA). 26. She was also appointed by the commission to prepare a report on the substation application and on the same date, she submitted a report to the commission on that application in which she recommended that planning permission be granted subject to 14 conditions. 27. A commission direction dated 27 March 2024, in respect of the data centre application indicated that the commission decided to grant permission generally in accordance with the inspector’s recommendation. The commission direction indicated that the commission had undertaken an AA in respect of a number of “screened in” European sites. The direction indicated that the commission considered that the information before it was sufficient to undertake a complete assessment of all aspects of the proposed development in relation to the conservation objectives of the said European sites using the best available scientific knowledge in the field. 28. The commission’s direction also indicated that the commission undertook an EIA of the proposed development. 29. A commission direction dated 27 March 2024, in respect of the substation application is framed in similar terms to that relating to the data centre application. 30. On 5 April 2024, the commission granted planning permission for the data centre development subject to 17 conditions. On the same date, it granted permission for the substation development subject to 14 conditions. The commission’s orders in respect of both records that it carried out an EIA and an AA of the proposed development. Procedural history 31. On 30 May 2024, the applicants’ statement of grounds was filed in the High Court Central Office. 32. On 24 June 2024, I granted leave to apply for judicial review seeking, inter alia, an order quashing the commission’s decisions taken on 5 April 2024. On the same date I fixed a hearing date of 25 February 2025 for the judicial review for two days. 33. On 7 October 2024, in advance of delivering a statement of opposition the commission’s solicitors wrote to the other parties indicating that the commission had decided not to oppose the applicants’ claim for certiorari quashing the commission’s decisions on the data centre application and the substation application. Their letter stated: 8 “Having regard to the circumstances of this case and, in particular, the plea(s) advanced at Core Ground 6 of the said Statement of Grounds – namely, that the Board erred in law in failing to consider adequately the environmental effects of the proposed developments on the environment, specifically in terms of impacts on bat fauna for the purposes of the Environmental Impact Assessment carried out by the Board.” 34. The legal community will be forever grateful to the unsuccessfully appealing applicants 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), because that case clarified the really important procedural point that a developer can defend a permission even if the decision-taker does not. On foot of the procedure recognised in that decision, on 25 November 2024, the notice party communicated to the court that it was seeking that the hearing date of 25 February 2024 would be retained to facilitate a hearing in relation to core ground 6 only, as the notice party intended to resist certiorari being granted by reference to the ground on which the commission’s concession was made. I directed that the matter proceed as a modular hearing for one day on 25 February 2025, on the question of whether I should quash the decisions in light of the commission’s concession. 35. On 5 December 2024, the notice party’s solicitors wrote to the commission’s solicitors stating: “We note that there are sixteen paragraphs contained in the Applicant's Statement of Grounds with respect to Core Ground 6. Can you please confirm the exact point(s) pleaded, under Core Ground 6, which forms the basis of your client's concession, so that the precise contours of the upcoming hearing can be defined.” 36. On 9 December 2024, the commission’s solicitors wrote to the solicitors for the other parties, clarifying that: “The Board accepts the errors pleaded in the particulars set out at §91-§93 of the Statement of Grounds insofar as same are premised on the Inspector’s statement (at pg.74 of the Inspector’s Report) … On the basis that the information before the Board, including the updated EIAR, the evidence demonstrated that the Proposed Development would result in the loss of a bat roost. Thus, in failing to recognise the loss of the bat roost, it is conceded that the Inspector and the Board erred in failing to identify, consider and assess the potential impacts of the Proposed Development on bat fauna for the purposes of EIA.” 37. On 16 December 2024, I directed that the hearing scheduled for 25 February 2025 would be in relation to the matters in §§91-93 only of the applicant’s statement of grounds, following clarification from the commission in its letter of 9 December 2024 that its concession related only to the matters pleaded thereunder. 38. On 23 December 2024, the notice party served a limited statement of opposition, together with a verifying affidavit sworn by Deborah Delaney and an affidavit of Colm Clarke. 39. On 23 January 2025, the applicants’ solicitors sent a letter to the notice party’s solicitors asserting that the notice party’s statement of opposition addressed the entirety of the grounds pleaded in relation to core ground 6. The letter stated that: “This was not what was required, and would appear to be an attempt to impermissibly expand on the matters directed to be heard at the hearing. The Affidavit of Ms Delaney traverses matters far beyond those in ground 91- 93 of the Statement of Opposition. Furthermore, your client has delivered an affidavit of Colm Clarke ecologist and it is clear that this Affidavit also addresses issues which go far beyond what is in issue in relation to grounds 91-93 of the Statement of Opposition.” 40. The letter indicated that the applicants would apply to have parts of the statement of opposition struck out and the notice party’s affidavits “resworn to address the matters relevant to those to be addressed at the forthcoming hearing”. 41. On 24 January 2025, the notice party’s solicitors sent a letter to the applicant’s solicitors stating: “…[o]ur client fully accepts that the issue which the Court has to decide on 25 February 2025 relates specifically to paragraphs 91-93 of the Statement of Grounds, concerning the effect of a factual error which appears on page 74 of the Inspector’s report on the Data Centra application, in the section of her report dealing with ecology issues and bats in particular. The extract states, inter alia, that ‘[t]he various EIAR desk-top and site surveys confirm that the site and environs are frequented by bats, and although some of the older farm buildings may also have roosting potential, the applicant confirmed that no roosts were recorded during the surveys … It would be entirely unrealistic and artificial, and a waste of court time, to ask the Court to determine whether the Inspector’s factual error should result in the Board’s decision being quashed without addressing the other matters [in Core Ground 6], including the allegation that the Board had no objective information before it in terms of the impacts on bat fauna 9 for the purposes of the EIA and/or the issue of whether a derogation licence was required in advance of the Board’s decision. Indeed, were our client to simply deal with the issue of the Inspector’s factual error in isolation from the treatment of the issue of bat fauna generally, it could expect to be criticised by both your client and the Court, given the overlap between the issues and the critical requirement of the Court to have an understanding of the totality of the matters raised in Core Ground 6 in considering proportionality. Furthermore, given that our client is asking the Court to exercise its discretion against quashing, it is imperative that the Court has a full picture of the issues in order to properly consider the matter. In so doing, our client is not asking the Court to do anything other than determine the issue with respect to the Inspector’s factual error.” 42. On 27 January 2025, on the application of the applicants, the matter was listed before the court and I clarified – with the agreement of the applicants and the notice party – that where the commission concedes a ground and the court conducts a modular hearing on the notice party’s application determining whether the decision should be quashed in light of the commission’s concession, for the purposes of determining that issue, the court approaches the application on the basis that all other issues would be resolved in the notice party’s favour. However, in the event that the court exercises its discretion against quashing and the matter proceeds to a further module dealing with the remaining grounds which the commission has not conceded, those other issues revert to being fully in contest for the purposes of the subsequent module. 43. On 3 February 2025, the applicants’ solicitors confirmed that the applicants would not be filing replying affidavits in response to the notice party’s limited statement of opposition and affidavits. 44. On 5 February 2025, the notice party delivered its legal submissions. 45. On 19 February 2025, the applicants delivered their legal submissions. 46. Module I was heard on 25 February 2025. 47. In the No. 1 judgment delivered on 21 March 2025, I dismissed the argument raised in that Module. 48. Module II would have happened much sooner but for the fact that the issue got caught up in the appeal in Coolglass. The proceedings were adjourned from time to time thereafter to await the decision in the Coolglass proceedings which was delivered on 4 February 2026 (Coolglass v. An Coimisiún Pleanála [2026] IESC 5 (Unreported, Supreme Court, 4 February 2026). 49. Module II was heard shortly thereafter on 2 March 2026. At the end of that hearing the notice party produced a document, which I had suggested as a possible way to clarify the point made in written submissions, which was their attempt at classifying the point in time at which various issues had been raised by the applicants. I indicated that I might review and reformat the document and put the matter in for mention at 09:30 the following morning for arrangements to be made for the applicants input by way of response. 50. At the conclusion of the foregoing final mention, I decided that it was not necessary to pursue further written submissions subject to reserving the right to revisit that if I thought it necessary in the course of writing, so judgment was then reserved at the end of that listing. I record my thanks to all of the lawyers for their endeavours to assist the court. 51. On 6 March 2026, a draft of the present judgment was sent to the parties to give an opportunity to identify any errors. The rules of engagement in such a situation are that the draft is without prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever content it considers appropriate. 52. Any comments must be emailed to the court and uploaded to ShareFile in writing by the notified deadline, and should not be to reargue the substance (submissions to that effect will be disregarded) but are confined to matters such as: (i) informing the court as to whether a formal judgment is required, and if so on what issues; (ii) informing the court as to whether a judgment might be oral or written or partly in both modes; (iii) any typographical, factual or legal errors in the decision; (iv) any redaction of personal information that the party wishes to request; (v) in the event that the court proposes to place pivotal reliance on any authority or material not previously adverted to, as opposed to where such material merely reinforces a point that the court was making in any event, any comment as to why such material should not lead to the proposed conclusion; identifying points that the court proposes to address but that the parties consider it unnecessary to address; (vi) requesting the court to decide a point that, while unnecessary to decide, is one the party considers could beneficially be decided; 10 (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. 53. 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). 54. 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. 55. While on some previous occasions periods of 7 or more days have been allowed for comments this has led to unintended slippage so there is a case for a tighter timeline, as in the High Court of England & Wales (the draft is provided “by 4 p.m. on the second working day before handing down”, Practice Direction 40E, Reserved Judgments, para. 2.3). The deadline for such comments from the parties was to be 16:00 on Tuesday 10 March 2026. The opposing parties pointed out a typographical error (in fact one that had its origin in the applicants’ material). Contrary to the request set out above, the applicants failed to respond to the court in any manner by the specified deadline. Relief sought 56. The reliefs sought are as follows: “1) An Order of Certiorari quashing the decisions, and each of them, dated 5 April 2024 of the first named Respondent granting planning permission to the Notice Party for: (a) the construction of a proposed data centre (PDC) located in Ennis, County Clare, comprising six two-storey data centre buildings with three storey plant/office levels and associated ancillary development that will have a combined gross floor area of 118,740 square metres, including a 120MW gas powered electricity generation facility and dispatchable electricity generation facility powered by 66 diesel generators (ABP-314474- 22, ‘the Data Centre Decision’); (b) the provision of a new 110 kilovolt (kV) Gas Insulated Switchgear (GIS) grid substation (the Substation), two 110 kV underground transmission cables connecting to existing 110kV overhead lines to the north of the proposed substation, and two 110kV underground transmission cables connecting to the existing Ennis 110kV grid substation 11 (located to the east of the M18 and to the north of the Tulla Road (R352), along with associated and ancillary works) (ABP-313895-22, ‘the Substation Decision’). [In this Statement of Grounds any reference to a document contained in the planning files before the Board or the Planning Authority relate to the application and appeal in respect of the PDC, unless otherwise stated]. 2) Such declaration(s) of the legal rights and/or legal position of the applicants and (if and insofar as legally permissible and appropriate) persons similarly situated and/or of the legal duties and/or legal position of the respondents as the court considers appropriate. 3) A declaration that the State's adoption of the ‘Government Statement on the Role of Data Centres in Ireland's Enterprise Strategy July 2022’ is invalid as it was not subject to assessment for the purposes of Articles 1 and 3 of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. 4) If necessary, a stay on works being carried out pursuant to the Data Centre Decision and the Substation Decision pending the resolution of these proceedings. 5) A Declaration that the within proceedings are covered by the protective costs provisions of Section 50B of the Planning and Development Act 2000 (as amended), and/or otherwise. 6) Further or other orders. 7) Costs.” Grounds of challenge 57. The core grounds of challenge are as follows: “DOMESTIC LAW GROUNDS 1. The Data Centre Decision is invalid in that the Board failed to apply and/or consider its mandatory obligation under section 15 of the Climate Action and Low Carbon Development Act 2015 (as amended by Section 17 of the Climate Action and Low Carbon Development (Amendment) Act 2021), namely in so far as practicable, to perform its functions in a manner consistent with the matters stated in section 15, including (a) the most recent approved climate action plan, (the Climate Action Plan 2023), (d) the furtherance of the national climate objective, and (e) the objective of mitigating greenhouse gas emissions (GHG emissions) and adapting to the effects of climate change in the State; and/or failed to provide sufficient reasons to explain how it sought to apply and/or consider its mandatory obligation under the 2015 Act, further particulars of which are contained below. 2. The Data Centre Decision is invalid in that the Board acted irrationally, erred in law and/or failed to provide reasons and/or adequate reasons, in finding that the PDC would have potentially positive environmental impacts, based on a future switch to the use of sustainable/renewable gas supplies, which do not exist in sufficient volumes for any practical application in respect of the PDC and which are not expected to exist in sufficient volumes for any practical application in respect of the PDC at any point during the operational phase of the PDC, further particulars of which are contained below. 3. The Data Centre Decision is invalid in that the Board acted irrationally by failing to require any mitigation of the GHG emissions from the PDC, further particulars of which are contained below. EUROPEAN LAW GROUNDS 4. The Data Centre Decision is invalid in that the Board treated the Government Statement on the Role of Data Centres in Ireland's Enterprise Strategy July 2022 as the framework for development consent in respect of data centres: while simultaneously deciding that the Government Statement on the Role of Data Centres in Ireland's Enterprise Strategy July 2022 is not a plan or programme to which Article 3(2) of the Strategic Environmental Assessment (SEA) Directive applies, further particulars of which are contained below. 5. The Data Centre Decision is invalid as it relied on the Government Statement on the Role of Data Centres in Ireland's Enterprise Strategy July 2022 which is invalid as it was not assessed for the purposes of Articles 1 and 3 of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, further particulars of which are contained below. 6. The Data Centre Decision and the Substation Decision are invalid as the Board failed to consider adequately or at all the environmental effects of the proposed development on the environment in terms of impacts on bat fauna for the purposes of the EIA assessment carried out by the Board and/or had no objective information before it to support a conclusion of no significant effects on the environment for the purposes of the Board's EIA assessment and/or impermissibly granted development consent prior to a decision granting a derogation 12 licence authorising bat roost removals and/or disturbance to bat species, further particulars of which are contained below. 7. The Data Centre Decision is invalid as the Board granted planning permission in breach of Article 4(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (the ‘Water Framework Directive’) and/or Regulations 4 and 5 of the European Communities Environmental Objectives (Surface Waters) Regulations 2009 because the Board did not ensure that the grant of planning permission would not cause a deterioration of the status of a body of surface water or that it would not jeopardise the attainment of good surface water status or of good ecological potential and good surface water chemical status and/or the Board could not have arrived at that conclusion in the absence of the developer making available to the public during the procedure for approving the project the data which were necessary in order to assess the effects of the development on receiving waterbodies, further particulars of which are contained below. VALIDITY GROUND 8. The State's adoption of the Government Statement on the Role of Data Centres in Ireland's Enterprise Strategy July 2022 is invalid as it was not subject to assessment for the purposes of Articles 1 and 3 of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, further particulars of which are contained below.” The impugned decision 58. The impugned decision provides as follows: “An Bord Pleanála Board Order ABP-314474-22 Planning and Development Acts 2000 to 2022 Planning Authority: Clare County Council Planning Register Reference Number: 21/757 Appeal by Colin Doyle of 12 Cottage Gardens, Station Road, Ennis, County Clare and by others against the decision made on the 8th day of August, 2022 by Clare County Council to grant subject to conditions a permission to Art Data Centres Limited care of John Spain Associates of 39 Fitzwilliam Place, Dublin in accordance with plans and particulars lodged with the said Council. Proposed Development: Permission of 10 years in duration sought for development consisting of: the demolition of an existing single storey with pitched roof farm dwellinghouse together with eight number farm outbuildings on the overall site. The construction of six number two-storey data centre buildings with three-storey plant/office levels and associated ancillary development that will have a combined gross floor area of 118,740 square metres. These data halls are maximum 19 metres high and will consist of the data halls and air handling units and offices and ancillary plant and support. Each of the six data centre buildings will include data halls, associated electrical and mechanical plant rooms, loading bays, maintenance and storage spaces, office administration areas, pump rooms, water storage tanks, and plant, as well as backup (standby) generators (11 number per building) for emergency use only situated along one elevation of each building. The standby diesel generators will have associated eight-metre-high flues. Each generator will also include local diesel storage tanks with a single refuelling area to serve the proposed emergency generators. A gas-powered energy centre and Above Ground Installation (AGI) 4,674 square metres in size. The energy centre will primarily comprise 18 number lean-burn natural gas engines, two number pump rooms, and fuel storage compound. Each generator will have its own flue of 25 metres height. The energy centre and buildings within the compound will be 12 metres high, single storey with mezzanine level. The buildings will house ancillary office, welfare facilities and associated parking. A two-storey Vertical Farm Building. The vertical farm will be circa 2,430 square metres and 12 metres high. It will comprise circa service area of 1,444 square metres, handling area of 844 square metres and ancillary areas. Solar panels located on each of the data centres and rainwater harvesting included in the development. Undergrounding of two existing overhead 110kV electricity transmission lines. Ancillary site development works that will include attenuation ponds and the installation of pipes and connections to the public water supply, foul and storm water drainage network and installation of utility ducts and cables. Other ancillary site development works will include hard and soft landscaping throughout the site, lighting, fencing, signage, central services road and internal access roads, security gate, 299 number car parking spaces and 126 number bicycle parking spaces. The development will be enclosed with landscaping to all frontages, including the retention of an ecological buffer area to the west. The development will be accessed from the Tulla Road (R352) with the provision of a new 13 vehicular access road, together with an emergency access/egress road to the south-west of the site. A shared surface cycle/footpath is to be provided along both sides of the Tulla Road across the campus site's full road frontage. All associated and ancillary works. The application site has a total of circa 60 hectares with a nett area for development of circa 45 hectares, and is bound to the south by R352 (Tulla Road), to the east and the north by agriculture land, to the west by the M18, all in the townlands of Tooreen, Cahernalough, Knockanean, Ballymacahill, Muckinish and Rosslevan, Tulla Road, Ennis, County Clare, as revised by the further public notices received by the planning authority on the 9th day of March, 2022 and on the 14th day of June, 2022. Decision GRANT permission for the above proposed development in accordance with the said plans and particulars based on the reasons and considerations under and subject to the conditions set out below. Reasons and Considerations The Board in making its decision had regard to the following: (a) the National Planning Framework - Ireland 2040, (b) the Climate Action Plan 2023, (c) the Regional Spatial and Economic Strategy for the Southern Region 2020, (d) the policies of the planning authority as set out in the Clare County Development Plan 2023-2029, (e) the Government Statement on the Role of Data Centres in Ireland's Enterprise Strategy July 2022, (f) the distance to dwellings or other sensitive receptors, (g) the submissions made in connection with the planning application and the appeal, (h) the likely consequences for the environment and the proper planning and sustainable development of the area in which it is proposed to carry out the proposed development and the likely significant effects of the proposed development on European Sites, and (i) the report and recommendation of the Inspector. Appropriate Assessment: Stage 1: The Board agreed with the screening assessment and conclusion carried out in the Inspector's Report that the Old Domestic Building (Keevagh) Special Area of Conservation (Site Code: 002010), the Dromore Woods and Laughs Special Area of Conservation (Site Code: 000032), the Old Domestic Buildings, Rylane Special Area of Conservation (Site Code: 002314), the Lower River Shannon Special Area of Conservation (Site Code: 002165), the Ballyallia Lough Special Protection Area (Site Code: 004041), the River Shannon and River Fergus Estuaries Special Protection Area (Site Code: 004077), the Slieve Aughty Mountains Special Protection Area (Site Code: 004168) and the Corofin Wetlands Special Protection Area (Site Code: 004220) are the European Sites in respect of which the proposed development has the potential to have a significant effect in view of the Conservation Objectives for the sites and that Stage 2 Appropriate Assessment is, therefore, required. Appropriate Assessment: Stage 2: The Board considered the consolidated Natura Impact Statement, and all the other relevant submissions on file, and carried out an appropriate assessment of the implications of the proposed development on the Old Domestic Building (Keevagh) Special Area of Conservation (Site Code: 002010), the Dromore Woods and Loughs Special Area of Conservation (Site Code: 000032), the Old Domestic Buildings, Rylane Special Area of Conservation (Site Code: 002314), the Lower River Shannon Special Area of Conservation (Site Code: 002165), the Ballyallia Lough Special Protection Area (Site Code: 004041), the River Shannon and River Fergus Estuaries Special Protection Area (Site Code: 004077), the Slieve Aughty Mountains Special Protection Area (Site Code: 004168) and the Corofin Wetlands Special Protection Area (Site Code: 004220) in view of the sites' Conservation Objectives. The Board considered that the information before it was sufficient to undertake a complete assessment of all aspects of the proposed development in relation to the sites' Conservation Objectives using the best scientific knowledge in the field. In completing the assessment, the Board considered, in particular, the following: (i) the site-specific Conservation Objectives for the European Sites, (ii) the current conservation status, threats and pressures on the qualifying interest/special conservation interest features, (iii) the likely direct and indirect impacts arising from the proposed development, both individually or in combination with other plans or projects, (iv) the view of the Department of Arts, Heritage and the Gaeltacht, and (v) the mitigation measures which are included as part of the current proposal. 14 In completing the appropriate assessment, the Board accepted and adopted the appropriate assessment carried out in the Inspector's Report in respect of the potential effects of the proposed development on the aforementioned European Sites. In overall conclusion, the Board was satisfied that the proposed development would not adversely affect the integrity of the European Sites in view of the sites' Conservation Objectives and there is no reasonable scientific doubt as to the absence of such effects. Environmental Impact Assessment: The Board completed an environmental impact assessment of the proposed development taking account of: (a) the nature, scale, location and extent of the proposed development, (b) the Environmental Impact Assessment Report (EIAR), the consolidated EIAR report, and associated documentation submitted in support of the application, (c) the submissions received from the prescribed bodies, planning authority and third parties, and (d) the Inspector's report. The Board considered that the Environmental Impact Assessment Report (EIAR) and consolidated EIAR report, supported by the documentation submitted by the applicant, adequately considers alternatives to the proposed development and identifies and describes adequately the direct, indirect, secondary and cumulative effects of the proposed development on the environment. The Board agreed with the examination, set out in the Inspector's report, of the information contained in the EIAR report and consolidated EIAR report and associated documentation submitted by the applicant and submissions made in the course of the application. The Board considered that the main significant direct and indirect effects of the proposed development on the environment are, and would be mitigated, as follows: • The risk of pollution of ground and surface waters, or changes to ground water flow paths during the construction phase through a lack of control of surface water during excavation and construction, the mobilisation of sediments and other materials during excavation and construction. The construction of the proposed development could also potentially impact negatively on ground and surface waters by way of contamination through accidents and spillages, and disrupting flow paths. These impacts would be mitigated by the implementation of the Drainage Management Plan, agreement of measures within a Construction and Environment Management Plan, and the implementation of mitigation measures related to: design and avoidance; accidental spills and contamination; sediment and erosion control; and drainage management. • Biodiversity impacts arising from habitat loss and fragmentation, changes to the vegetation on the site, loss of foraging habitat and disturbance to otters, badgers, birds and bats, connections to foraging, aquatic and water dependent habitats and general disturbance during the construction and operational phases. These impacts would be mitigated by the agreement of measures within a Construction and Environment Management Plan, the measures contained in the Landscape and Biodiversity Management Plan, and the implementation of mitigation measures which include: Pre-construction Bird, Bat & Mammal Surveys; Water Quality protection measures (as above); an Invasive Species Management Plan; and the appointment of a Project Ecologist. • The proposed development gives rise to an increase in vehicle movements and resulting traffic impacts during the construction phase and significant impacts on the road network can be avoided by the proposed works along the road network. These impacts would be mitigated by the agreement of measures within a Construction and Environment Management Plan and the implementation of mitigation measures related to: pre- construction road condition surveys; deliveries; and implementation of a Construction Traffic Management Plan and Construction and Demolition Waste Management Plan. • Air pollution and noise during the construction and operational phase which would impact negatively on sensitive ecological receptors and populations in the vicinity of the site. These impacts are substantially avoided by the limited number of sensitive receptors in close proximity to the proposed development. Any remaining impacts would be mitigated by the agreement of measures within a Construction and Environment Management Plan and the implementation of mitigation measures related to: air quality, dust and noise. • The impacts on residential amenity during the construction and operational phases would be avoided by the implementation of the measures set out in the Environmental Impact Assessment Report (EIAR) and the consolidated EIAR report which include specific provisions relating to the control and management of dust, noise, water quality and traffic movement. 15 • The impacts on cultural heritage during the construction and operational phases would be avoided by the implementation of the measures set out in the Environmental Impact Assessment Report (EIAR) and the consolidated EIAR report, and by compliance with the recommended conditions in relation to archaeological assessment of the site. • The proposed development would have potentially positive environmental impacts during the operational phase arising from the undergrounding of the existing overhead transmission cables, and from the future switch to the use of sustainable/renewable gas supplies in the energy centre for energy generation, with a corresponding reduction in carbon emissions. The Board completed an environmental impact assessment in relation to the proposed development and concluded that, subject to the implementation of the mitigation measures proposed, and subject to compliance with the conditions set out below, the effects of the proposed development on the environment, by itself and in combination with other plans and projects in the vicinity, would be acceptable. In doing so, the Board adopted the report and conclusions of the Inspector. Conclusions on Proper Planning and Sustainable Development: It is considered that, subject to compliance with the conditions set out below, the proposed development would be in accordance with European, national, regional and local planning and related policy, would not have an unacceptable impact on the landscape or ecology, would not seriously injure the visual or residential amenities of the area or of property in the vicinity, and would be acceptable in terms of traffic safety and convenience. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area. Conditions 1. The proposed development shall be carried out and completed in accordance with the plans and particulars lodged with the application, as amended by the further plans and particulars received by the planning authority on the 25th day of February, 2022, the 10th day of June, 2022 and by An Bord Pleanala on the 26th day of September, 2022, except as may otherwise be required in order to comply with the following conditions. Where such conditions require details to be agreed with the planning authority, the developer shall agree such details in writing with the planning authority prior to commencement of development and the proposed development shall be carried out and completed in accordance with the agreed particulars. Reason: In the interest of clarity. 2. This permission shall be for a period of 10 years from the date of this Order. Reason: In the interest of clarity and orderly development. 3. The mitigation measures identified in the Environmental Impact Assessment Report, the Natura Impact Statement and other plans and particulars submitted with the planning application and appeal shall be implemented in full by the developer, except as may otherwise be required in order to comply with the conditions of this permission. Reason: In the interest of clarity and the protection of the environment during the construction and operational phases of the proposed development. 4. The developer shall comply with the following general requirements: (a) The developer shall submit full details in relation to all external finishes of all buildings to the planning authority for written agreement prior to commencement of development. (b) No additional artificial lighting shall be installed or operated on site unless authorised by a prior grant of planning permission. (c) Operational noise levels shall not exceed 55dB(A) Leq 1hr at the nearest existing noise sensitive locations between 0800 and 2000 hours (Monday to Friday inclusive) and shall not exceed 45dB(A) Leq 1hr at any other time. (d) Each fencing panel shall be erected such that for a minimum of 300 millimetres of its length its bottom edge is no less than 150 millimetres from ground level. (e) Cables within the site shall be located underground. (f) No additional signage or advertising shall be erected on the lands or buildings without a prior grant of planning permission. Reason: In the interest of clarity, of visual and residential amenity, to allow wildlife to continue to have access to and through the site, and to minimise impacts on drainage patterns and surface water quality. 5. The developer shall comply with the following nature conservation requirements: (a) A suitably qualified and experienced Project Ecologist shall be appointed to oversee the protection of biodiversity during the construction phase, and for a monitoring period of five years following completion of the development. 16 (b) The Project Ecologist shall certify that the completed development is compliant with the Environmental Impact Assessment Report and Natura Impact Statement mitigation measures and the following conditions. (c) No felling or vegetation removal shall take place during the period 1st March to 31st August. (d) A pre-construction bat survey shall be carried out by a suitably qualified ecologist during the active bat season. (e) Any destruction of bat roosting sites or relocation of bat species shall be carried out by a suitably qualified ecologist under a Derogation Licence granted by the Minister for Housing, Local Government and Heritage. (f) A pre-construction otter survey shall be carried out by a suitably qualified ecologist. (g) Any destruction or relocation of otter halts shall be carried out by a suitably qualified ecologist under a Derogation Licence granted by the Minister for Housing, Local Government and Heritage. (h) Mammal friendly fencing shall be installed during the construction and post construction phases. Reason: In the interest of biodiversity and nature conservation. 6. The developer shall implement mitigation measures to lessen the potential for impacts on badgers arising from the excavation and construction works: (a) A 30-metre cordon shall be installed around any badger sett entrances, which shall be screened and remain in place throughout the construction works. (b) There shall be no artificial lighting of any badger sett entrances during the construction and operational phases. (c) During the breeding season, no works shall take place within 50 metres of the sett for general construction and 150 metres for noisy and vibratory activities. (d) The built-in construction design shall allow for escape from trenches. Reason: To ensure appropriate monitoring of the impact of the proposed development on the badger species of the area. 7. The landscaping proposals shall be carried out within the first planting season following commencement of construction of the proposed development during the first phase of the works. Only native species of trees and hedgerow shall be planted. All existing roadside hedgerows (except at access point openings) and hedgerows around the outer perimeter of the site shall be retained. The landscaping and screening shall be maintained at regular intervals. Any trees or shrubs planted in accordance with this condition which are removed, die, become seriously damaged or diseased within two years of planting shall be replaced by trees or shrubs of similar size and species to those original required to be planted. The landscaped berms located in the southern section of the site, shall be constructed during the first phase of the works. Reason: To assist in screening the proposed development from view and to blend it into its surroundings in the interest of visual amenity, in the interest of biodiversity and to protect wildlife. 8. The developer shall comply with the following transportation requirements: (a) A final Traffic Management Plan for the construction phase of the proposed development shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. (b) The Traffic Management Plan shall ensure that there is not a backlog of construction traffic from the M18/Junction 13 and shall include for staggered deliveries to the site. (c) Construction of the proposed right-hand turning lane at the main access shall be commenced concurrently with the commencement of the site works and shall be completed within six months of the commencement of development on site. The site access and right- hand turning lane, including the proposed pavement overlay, shall be undertaken as indicated in the details submitted with the planning application and detailed design, including drainage arrangements, along the R352 Tulla Road. Works shall be carried out by the developer at its own expense. (d) Design details in relation to the proposed pedestrian crossing points on the R352 Tulla Road shall be submitted to the planning authority for written agreement prior to commencement of development. The crossing points shall be fully in-situ prior to occupation of the development and the works shall be carried out by the developer at its own expense. (e) Design details in relation to the proposed shared use footpath/cycle track shall be submitted to the planning authority for written agreement prior to commencement of development. The shared use footpath/cycle track shall be located on both sides of the R352 Tulla Road along the extent of the development boundary to a point just east of the 17 L8168 side road junction, and the works shall be carried out by the developer at its own expense. (f) Details of the exact location of the bus stop shall be submitted to the planning authority for written agreement prior to commencement of development, which should be constructed prior to the operation of any part of the proposed development. (g) CCTV cameras shall be fixed and angled to face into the site and shall not be directed towards adjoining properties or the road. Reason: In the interest of pedestrian, cyclist and traffic safety, infrastructure provision, and the proper planning and sustainable development of the area. 9. Water supply and drainage arrangements, including the attenuation and disposal of surface water, and flood risk management, shall comply with the requirements of Irish Water and the planning authority for such works and services, as appropriate. Reason: In the interest of public health and to ensure a proper standard of development. 10. The developer shall comply with the following additional water supply and drainage requirements: (a) The storm water attenuation pond and primary network shall be installed in Phase 1 of the proposed development. (b) Drainage on to the R352 Tulla Road and the site access shall be by means of a separate drainage network and attenuation system that discharges directly to the Ballymacahill/Spancelhill Stream. This system shall be independent of the M18 Motorway Drainage network. (c) The final size, volume and design of the proposed attenuation pond and associated infrastructure shall comply with section 2.2.5 of the Engineering Report received by the planning authority on the 25th day of February, 2022 and the clarification of further information response received on the 10th day of June, 2022. (d) The developer shall install the storm water network, hydrocarbon interceptors and attenuation area as part as per the designer's requirements and the manufacturer's instructions, and a suitability qualified Engineer shall certify same. The certification shall be submitted to the planning authority for written agreement prior to the occupat