High Court Ireland Planning Case - Certificate to Appeal

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  Phelan Walsh v An Coimisiun Pleanala (Approved) [2026] IEHC 177 (20 March 2026)

URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC177.html
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[2026] IEHC 177 | | |
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APPROVED ??? ??????????????????????????????????????????????????????????????????????? ??????????[2026] IEHC 177

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THE HIGH COURT

PLANNING AND ENVIRONMENT

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H.JR.2024.0001038

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IN THE MATTER OF AN APPLICATION PURSUANT TO THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

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IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

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BETWEEN

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??? JANE PHELAN WALSH

??????????? ??????????????????????????????????????????????? Applicant

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AN COIMISI?N PLEAN?LA

??????????????????????????????????????????????????????????????????????????????????????????????? ??????????????????? Respondent

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FINGAL COUNTY COUNCIL

??????????????????????????????????????????????????????????????????????????????????????????????? ??????????????????? Notice Party

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JUDGMENT of Mr Justice Nolan delivered on the 20 th day of March 2026

1. On the 8 th of October 2025, I gave judgment in this matter finding that in circumstance where a comprehensive report had been prepared by the Inspector, that it is behooven upon the Commission to give reasons why it departed from his recommendation. I granted an order of certiorari in relation to a decision of the Commission, dated the 21 st of June 2024 ("the Decision"), refusing to grant planning permission to the Applicant, for the construction of a proposed new two and a half storey, five-bedroom dwelling, at a site at Woodpark Farmhouse, Woodpark, Lusk, County Dublin ("the proposed development").

2. The application before the court now is for a certificate to appeal that judgment.

The Law Relating to Granting a Certificate to Appeal

3. The statutory criteria for leave to appeal as set out in Section 50A(7) of the Planning and Development Act 2000, ("the PDA") as amended, are familiar. For completeness the section reads as follows:

" (7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. "

4. There have been many judgments on this unusual section and procedure, which I note has been removed in the Planning and Development Act 2024, for which, no doubt, both practitioners and the bench are grateful. As Holland J. noted in Monkstown Road Residents Association v. An Bord Plean?la [2023] IEHC 9, it is helpful for the Court to assume it is in error, but that, in itself, is not a basis for granting a certificate to appeal.

5. A useful summary of the principles to be considered in such an application are set out in Monkstown and I gratefully adopt some of them. ?

6. It seems to me that a number of these principles are particularly relevant in this case. These include the observation that the jurisdiction to certify must be exercised sparingly and that most applications for a certificate to appeal fail.

7. At para. 8 of his judgment Holland J. said

"i. ... So, inter alia, 'exceptional' must be given its normal meaning. That imposes a very high hurdle ? the point of law must not just be important, but of unusual or untypical importance.

j. The test is not simply whether the point of law transcends the individual facts of the case. Such an interpretation would fail to apply the word 'exceptional'. Since most points of law are of some importance, the point of law must transcend well beyond the individual facts and the parties in the case...

l. The requirements of exceptional public importance and that appeal be desirable in the public interest are cumulative. They may overlap but to some extent may require separate consideration....

n. The law in question must be in a state of uncertainty, evolution or lack of clarity. It is for the common good that such law be clarified so as to enable the courts to administer that law, not only in the instant, but in future such cases.

q. The intending appellant must not use the application for leave to appeal as an opportunity merely to reargue the merits which the Court has already decided against that party in its substantive decision. However, it may sometimes be difficult to avoid doing so (or at least giving the impression of doing so) in order to persuade the Court that the law in the area is uncertain or evolving and that the posited point of law is of exceptional public importance...

y. It seems to me to follow from the principles set out above, which assume that the judgment which it is sought to appeal may well be wrong in point of law, that the mere assertion that such judgment may set an erroneous precedent which may be followed in later decisions of the High Court will not suffice to justify certification."

**

The First Question

8. Where the Commission disagrees with its Inspector, what factors distinguish the required level of reasons in a Commission Order from a statement of only conclusions?

9. Ms. Carroll SC for the Commission submits that the judgment represents a departure from the established law on reasons in terms of the level of detail required. It submits that it raises a point of law of exceptional public importance concerning the duty to give reasons. If the judgment is to be understood as introducing a nuance or change to the law on reasons, the Commission argues that it would be desirable that it should have the imprimatur of an appellate Court.

10. Mr. Kennedy SC for the Applicant disagrees, relying on Connelly v An Bord Plean?la [2018] IESC 31, where the Supreme Court held that " box-ticking " and bare conclusion do not satisfy the duty to give reasons. He says that the Court did not impose a novel standard in this case but rather made a fact-specific determination.

11. In my view, the judgment did not depart from the law but merely applied it. This was a particular case specific matter. The Court was not seeking to make new law but simply to apply the law as it stands. It may well be that the Court is incorrect but that is not the test. Neither do I think the law is in a state of uncertainty, it is clear.

12. In my view the matter is not of exceptional public importance since there are many cases setting out the appropriate legal principles. There is no need for yet another decision dealing with an issue which has been comprehensively dealt with by the Superior Courts.

The Second Question

13. Where the Commission disagrees with its Inspector but expressly agrees with the planning authority, are the reasons for the Commission's decision only to be found in the Commission's Order or can the reasons for the Commission's decision also be found elsewhere such as in the planning authority's decision?

14. The Commission submits that by implication, where the Court found that the Commission did not agree with its Inspector, the reasons for the Commission's decision must be found in the Commission's Order, and that expressly agreeing with the planning authority does not suffice without saying how or why, represents new law.

15. The Applicant disagrees, submitting that the law is settled in that in principle reasons can be found in documents but only where it is sufficiently clear to the reasonable observer that the external reasoning forms part of the Commission's rationale (see Connelly).

16. I do not accept the characterisation of the judgment which the question implies. The Court found that there was an obligation on the Commission to engage with the Inspector's report and that in the circumstances of this case, it did not do so.

17. Therefore, applying the test in Monkstown, this is not an issue of exceptional public importance that it is desirable in the public interest that an appeal should be taken to the Supreme Court. It was a case decided on its own facts. In those circumstances, I do not believe that it is in the public interest that this should be determined before a higher court and I shall refuse a certificate on this issue.

The Third Question

18. Does the Planning and Development Act 2000 (as amended) and/or the Planning and Development Regulations 2001("DPRs) (as amended) require the Commission Order in providing reasons and considerations to expressly refer to relevant provisions of the Development Plan and/or National Planning Framework?

19. The Commission submits that the judgment could be read as introducing a requirement that the PDA 2000 Act or the PDRs requires the Commission, in its Order to provide reasons and considerations such as an explicit reference to relevant provisions of the development plan or the national planning framework.

20. However as was agreed at the hearing that was not an issue which arises from the judgment. The Court was simply setting out the submissions of the Applicant and no more. Therefore, this question falls away.

The Fourth Question

21. Where the National Policy Objective 19 ("NPO 19") of the National Planning Framework and the relevant Development Plan refer to a "demonstrable economic or social need to live in a rural area", is the question of whether an applicant for permission has such a need a matter for the Commission expert's jurisdiction subject to review by the Court for irrationality only, or is it subject to review by the Court on a full-blooded basis?

22. The Commission submits that this matter transcends the facts. It contends the Court's interpretation of " demonstrable economic or social need " raises two issues which have the potential to apply in every case involving NPO 19 and/or the rural housing provisions of the relevant Development Plan. It says the matter does not involve a mere application of established principles to the facts but **** rather fails to identify the correct principles. It says that the NPO and the N. P. Framework document and Table 3.5 of the development plan involve the exercise of planning judgment and therefore the applicable standard of review is irrationality only.

23. I have no doubt that maybe the case. However as is clear from the Court's decision in Herbert v An Coimisi?n Plean?la [2025] IEHC 673, the Court did not and does not see it that way.

24. The Applicant says that the Commission's argument fundamentally mischaracterises the judgment, emphasising that the case concerned the adequacy of reasons rather than a merits review. It submits that the observations referred to were not substantial determinations on the merits.

25. Again, I agree with the Applicant. The Court's conclusions were narrow and procedural. They related to the Court's view that there had been a failure to engage with the Inspector's report. The Court was simply applying the statutory provision namely, Section 34(10)(b).

26. While the judgment does refer to the issue of demonstrable economic or social need, it was only in the context of failing to engage with the Inspector's report. While the Commission submits that matter does not involve a mere application of established principles to the facts but **** rather fails to identify the correct principles, but **** as Holland J. noted, and indeed as Ms. Carroll SC for the Commission conceded, the Court might well be wrong, but that does not give rise to an issue of exceptional public importance, accordingly, I would refuse a certificate on this question.

The Fifth Question

27. Where a development plan, applying National Policy Objective 19 of the National Planning Framework, includes criteria for the provision of single housing in the countryside based on the core consideration of a "demonstrable economic or social need to live in a rural area" (in this case, the relevant criteria is that a planning applicant be in "a full-time occupation which is considered to satisfy local needs by predominantly serving the rural community/economy"), is it irrational or otherwise unlawful for the Commission to:

a) refuse permission where there is uncontroverted information before the Commission that an applicant for permission cannot afford any of the available houses within the area?

b) refuse permission on the basis that the applicant's place of business is located within an urban settlement?

28. The Commission submits that the judgment was not solely one on reasons but involved a review of the Commission's finding that the relevant development plan criteria were not met. It argues that this is a point of exceptional public importance concerning the interpretation and application of NPO 19 and of the rural housing provisions of the development plan, particularly in relation to the standard of review by the courts.

29. The Applicant repeats her position that this amounts to a mischaracterisation of the judgment. Mr. Kennedy says that, insofar as the Commission argues that the Court made substantive findings that the Applicant had demonstrated an economic need or was serving the rural community and economy, that is to misread the judgment. I agree. This was a reasons case and not a merits review. The ratio of the Court's decision is clear from paragraph 104 where I said: "I am satisfied that given the comprehensive report which was prepared by the Inspector, it is behooven upon the Commission to give reasons why it departed from his recommendation." That is not in any way different from the statutory obligation or the case law.

30. I repeat this case was decided on its own facts. It was not intended to place any greater burden on a planning authority nor the Commission. The Court concluded that on this occasion, the Commission had not engaged with its own Inspectors' report, applying Connelly. That is consistent with Konisberry v. An Bord Plean?la [2024] IEHC 194 (enhanced duty when disagreeing with the inspector), Clonres CLG v An Bord Plean?la [2021] IEHC 303 (reasons must engage with the inspector's rationale) and O'Donnell v ABP [2023] IEHC 381 (main reasons on main issues).

31. In my view what undermines the Commission's submissions is the Court's decision in Herbert. That case was in many ways on all fours with the facts in this case. ?Indeed, it appeared in the Applicants' submissions in that case. In Herbert the Court made it clear that notwithstanding similar facts, the case had no precent value to the extent contended for.

32. At para. 45 in Herbert I said, " In that case the Commission failed to give reasons in circumstances where its decision went against its own inspector's repor t. In this case it was agreeing with its inspector. Therefore, the reasons which it gave did not have to be as fulsome or detailed, as reflected in the case law."

33. In my view the point of law is not novel or of exceptional public importance nor is an appeal n necessarily in the public interest. Indeed, an appeal will add significantly to the planning process which cannot be in the public interest. In all the circumstances I shall refuse the application for a certificate to appeal the decision.

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URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC177.html