High Court Planning Case, Connolly v An Coimisiun Pleanala, 17th Apr

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Connolly and Anor v An Coimisiun Pleanala and Ors (Approved) [2026] IEHC 224 (17 April 2026)
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[2026] IEHC 224

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001350]

IN THE MATTER OF SECTION 50 AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

GRETTA CONNOLLY AND MICHAEL CONNOLLY

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

BALLYSALLAGH SOLAR FARM LIMITED AND AUSTIN FARRAR

NOTICE PARTIES

---

Date of impugned decision:                   17 July 2025

Date proceedings commenced:             9 September 2025

Date of main hearing:                           27 March 2026

Date draft judgment circulated:             9 April 2026

**

JUDGMENT of Humphreys J. delivered on Friday the 17th day of April 2026

1. The Supreme Court has recently upheld the principle that an overall development can be consented in parts: Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024).  The present case involves a challenge to approval (under s. 182B(5) of the Planning and Development Act 2000) for a substation and grid connection serving a solar farm (which was separately approved under s. 37 of the 2000 Act).  While I appreciate the sincerity of the applicants as environmental litigants, and the very considerable expenditure of imagination and effort made to present the case on their behalf, the legal question here is whether any plausible basis to impugn the decision, which was acceptable to both the inspector and the commission, has been made out, especially when the solar farm permission, although pending at the time of the present approval, has since been granted.

Geographical context

2. The proposed development (https://www.pleanala.ie/en-ie/case/321518) is a 220 kV AIS tail-fed electricity substation (with 33 kV customer compound) (including two control buildings, associated electrical structures and apparatus, lightning protection, telecom pole, perimeter security fencing, security lighting, water and drainage infrastructure, temporary construction compound) to connect to and serve a solar farm; associated grid connection between the proposed substation and the existing Knockraha 220 kV substation comprising 220 kV underground electricity cables of c. 10.2 km in length to be provided in an excavated trench including associated fibre cable and ducting, and all associated site development and reinstatement works; temporary construction and operational access from the L7691, vehicular entrance and access track from this public road; all ancillary site development, landscaping and earthworks.  The project will serve a solar farm with a total area of c. 179 ha.  The solar farm will consist of solar panels on ground mounted frames, 25 single-storey electrical inverter/transformer stations, three single-storey spare parts containers, three Ring Main Units, seven weather stations, underground electrical ducting and cabling within the development site, private lands and within the L7691 and L7692 public roads to connect solar farm field parcels, security fencing, CCTV, access tracks, seven stream/drain deck crossings, temporary construction compounds, landscaping and all associated ancillary development and drainage works.  Construction and operational access will be via four entrances from the R626, L7691 and L7692, at Ballysallagh, Dundullerick East, Dundullerick West, Rathcobane, County Cork.  All located within the townland of Aghaduff, Ballinbrittig, Ballynabrannagh West, Ballynagaul, Ballynaglogh, Ballynanelagh, Ballynaskeha, Ballysallagh, Ballyvatta, Glengarriff More, Killeena and Pigeonhill, Co. Cork.

Facts

3. The development in issue is located within the administrative area of Cork County Council.  The relevant development plan is the Cork County Development Plan 2022-2028.

4. On 11 July 2024, the first named notice party, Ballysallagh Solar Farm Limited (Ballysallagh), engaged in pre-application discussions with the commission with a view to establishing whether the proposed development was strategic infrastructure development (SID).

5. A pre-application consultation meeting was held on 20 August 2024.

6. On 28 August 2024, Ballysallagh applied to the council for planning permission for the Ballysallagh Solar Farm (reg. ref. no. 24/5630).

7. On 21 October 2024, the council issued a request for further information (RFI) related to the Ballysallagh Solar Farm application.

8. On 13 September 2024, the commission inspector prepared a report relevant to the pre-application consultation relating to the proposed electricity transmission development.

9. On 23 September 2024, the commission confirmed that the proposed electricity transmission development fell within the scope of s. 182A of the Planning and Development Act 2000 (the 2000 Act) and that an application for approval could be made directly to the commission.

10. On 18 December 2024, Ballysallagh submitted the application for development the subject of these proceedings to the commission (ref. 321518).  The second named notice party had submitted a letter of consent for the application.  The application was described as follows:

"[A] 220kV AIS tail-fed electricity substation (with 33kV customer compound) (including two control buildings, associated electrical structures and apparatus, lightning protection, telecom pole, perimeter security fencing, security lighting, water and drainage infrastructure, temporary construction compound) to connect to and serve a solar farm; associated grid connection between the proposed substation and the existing Knockraha 220kV substation comprising 220kV underground electricity cables of c.10.2 km in length to be provided in an excavated trench including associated fibre cable and ducting, and all associated site development and reinstatement works; temporary construction and operational access from the L7691, vehicular entrance and access track from this public road; all ancillary site development, landscaping and earthworks.  The development subject to this application forms part of grid connection and access arrangements which will facilitate the connection of the proposed Ballysallagh Solar Farm (Cork County Council Reference 24/05630) to the national grid."

11. On 18 February 2025, Ballysallagh responded to the council's RFI request related to the Ballysallagh Solar Farm application.

12. On 20 February 2025, the council made a submission to the commission in respect of proposed electricity transmission development.

13. The applicants made submissions on the application by letters dated 23 February 2025.   Submissions were also made by several other parties including by the Leamlara Preservation Group on 11 February 2025 (the first named applicant is a member of that group).

14. On 2 April 2025, Ballysallagh was invited to make a submission on the observations received in relation to the application.   The planning authority also made a submission.

15. On 29 April 2025, Ballysallagh provided a response (prepared by HW Planning) to the submissions lodged.

16. The commission appointed an inspector to prepare a report and make a recommendation on the application for approval of the proposed development.  Following a site inspection on 24 March 2025, the inspector prepared a report dated 30 May 2025, in which he recommended that approval be granted for the proposed development subject to twelve conditions.

17. The application was considered by the commission at a meeting held on 15 July 2025, at which the commission decided to grant approval generally in accordance with the inspector's recommendation subject to eleven conditions.

18. The commission made its order granting approval for the proposed development on 17 July 2025 pursuant to s. 182A of the 2000 Act and subject to eleven conditions.

19. The application for the proposed Ballysallagh Solar Farm ref. 24/05630 (referred to in the description of the development) was subsequently refused permission by Cork County Council on 1 September 2025 for three reasons:

"1. Policy objective HE 16-9: Archaeology and Infrastructure Schemes of the Cork County Development Plan (2022) stipulates that all large scale planning applications (i.e.  development on lands 0.5ha or more in area or 1km or more in length) are subjected to an archaeological assessment (which would include appropriate archaeological investigations such as licensed geophysical survey and archaeological testing) as part of the planning application process to guide the design and layout of the proposed scheme/development and safeguard the archaeological heritage of the County in line with Development Management Guidelines.  Policy objective HE16-13: Undiscovered Archaeological Sites seeks to protect and preserve previously unrecorded archaeological sites within County Cork as part of any development proposals.  The Council will require preservation in situ to protect archaeological monuments discovered.  Preservation by record will only be considered in exceptional circumstances.  Having regard to identified areas of archaeological potential on site and to the scale/extent of the development there is potential for impacts on the Archaeological/Cultural heritage of the area.  In the absence of a comprehensive Archaeological Impact Assessment (incorporating archaeological geophysics and testing) and comprehensive assessment of potential impacts, it is considered that the applicant has failed to demonstrate that the proposed development would not be seriously injurious to the Archaeological/Cultural heritage of the area.  Therefore, it is considered that the proposed development would materially contravene policy objectives HE 16-9 and HE 16-13 of the Cork County Development Plan (2022) and would be contrary to the proper planning and sustainable development of the area.

2.  Having regard to the scale, extent and extensive site coverage of the proposed solar farm, and the operational duration, relative to the existing rural landscape and residential properties, and in the absence of sufficient mitigation measures to break up the overall panoramic /monolithic nature of the proposed development by way of siting, buffers, appropriate screening and landscaping to aid with its visual assimilation into its surroundings, it is considered that the proposed solar farm would represent a visually incongruous and overbearing feature on the rural landscape at this location which would be detrimental to the visual amenities of the area, would materially contravene policy objective GI 14-9: Landscape of the Cork County Development Plan (2022) and would depreciate the value of property in the vicinity.  Accordingly, the proposed development would be contrary to the proper planning and sustainable development of the area.

1. On the basis of the information provided, in particular in the absence of baseline and proposed greenfield runoff rates, it has not been demonstrated that there will be no net increase in discharge rates or runoff volume from the site arising from the proposed development.  Accordingly, it has not been demonstrated that the proposed development would not have an adverse impact on the wider hydrological regime of the area and/or contribute to flood risk elsewhere and would therefore be contrary to the proper planning and sustainable development of the area."

20. That refusal was appealed to the commission on 26 September 2025 (ref. 323747) by Ballysallagh.

21. On 28 January 2026 the inspector recommended a grant of permission for the solar farm.

22. On 19 February 2026, the commission granted permission (ACP-323747-25) for the Ballysallagh Solar Farm.

Procedural history

23. Papers were filed in the Central Office on 9 September 2025, and I granted leave on 29 September 2025.

24. On or about 10 October 2025, the first named notice party uploaded a form to apply for a hearing date seeking to have the expedited procedure apply to the proceedings.

25. On 13 October 2025, a hearing date was fixed for 27 March 2026, with the expedited procedure to apply.

26. A statement of opposition and verifying affidavit were filed on behalf of the commission on 16 December 2025.

27. A statement of opposition and verifying affidavit as well as an additional affidavit were filed by the first named notice party on 23 December 2025.

28. A replying affidavit was filed by the applicants on 18 February 2026.

29. The applicants' written legal submissions were delivered on 18 February 2026.

30. The commission's written legal submissions were delivered on 26 February 2026.

31. Ballysallagh's written legal submissions were delivered on 5 March 2026.

32. The matter was listed for mention on 9 March 2026 for callover and for hearing on 27 March 2026.

33. Judgment was reserved at the end of that hearing.  I would like to record my thanks to all of the lawyers involved for their unfailingly courteous, professional and helpful assistance.  As I have previously sought to make clear, insofar as any points advanced are not being accepted in this or any other given judgment, that is solely to do with the inherent merits of such points and is no reflection on those instructed to convey such points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to all concerned.

34. On 9 April 2026, a draft of the present judgment was sent to the parties to give an opportunity to identify any errors.  The rules of engagement in such a situation are that the draft is without prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever content it considers appropriate.

35. Any comments must be emailed to the court and uploaded to ShareFile in writing by the notified deadline, and should not be to reargue the substance (submissions to that effect will be disregarded) but are confined to matters such as:

(i) informing the court as to whether a formal judgment is required, and if so on what issues;

(ii) informing the court as to whether a judgment might be oral or written or partly in both modes;

(iii) any typographical, factual or legal errors in the decision;

(iv) any redaction of personal information that the party wishes to request;

(v) in the event that the court proposes to place pivotal reliance on any authority or material not previously adverted to, as opposed to where such material merely reinforces a point that the court was making in any event, any comment as to why such material should not lead to the proposed conclusion; identifying points that the court proposes to address but that the parties consider it unnecessary to address;

(vi) requesting the court to decide a point that, while unnecessary to decide, is one the party considers could beneficially be decided;

(vii) identifying significant procedural, factual or legal points that the party considers that the court was required to address but has not addressed or not provided reasons for; and

(viii) any other suggestions as to the wording (as opposed to substance) of the decision if the proposed wording causes any significant issue for a party for any identified reason.

36. It is then entirely a matter for the court as to whether to list the matter for mention, or whether to simply give judgment with or without amendment to respond to any such comments or for any other reason that appears appropriate to the court.  Any judgment may be given without further notice following the expiry of the specified period, whether comments are made or not.  That period will not be extended save in exceptional circumstances.  All parties involved are requested to positively confirm to the court the position including if they have no observations on the draft legitimately falling within the foregoing parameters.  Overall the draft judgment procedure is a concession which parties can engage with but must do so with immediate dispatch, discipline and focus - it is not the opening of a new phase of the litigation that gives rise to "an entitlement to elaborate procedures at every point" (to use a phrase of O'Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O'Sullivan v. Health Service Executive [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 39); and still less should the procedure invite the perhaps "serious error, to which lawyers are prone, to approach any such case on the tacit assumption that only procedures which approximate to a criminal trial are fair, and anything which departs from that is somehow dubious" (O'Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 ILRM 245, 780).

37. Draft judgments are not public domain materials and, while they can be shared between the lawyers concerned and their clients, subject to the following, it is inappropriate for any person to refer to them for any purpose other than to assist the court in relation to the finalisation of the formal judgment. Therefore anyone with information as to the text, content or proposed outcome of any draft is required not to publish or transmit such information to others save solely by way of private transmission for the legitimate purposes of assisting in the finalisation of the judgment and subject to a similar restriction on any recipient.  Trial participants should take reasonable steps to keep drafts confidential.  On this topic, see Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 WLR 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 WLR 1915, [2022] 4 All ER 599 (Sir Geoffrey Vos MR; Davies and Dingemans LJJ. concurring); Public Institution for Social Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368, [2022] 3 WLUK 291, [2022] B.L.R. 349 (Carr LJ; Jackson and Simler LJJ. concurring); Itkin v. Wood [2023] JRC 101 (Unreported, Royal Court of Jersey, 22 June 2023).  The contents of this paragraph constitute an immediately effective direction of the court to the parties and anyone having notice of the draft judgment with effect from the date of circulation of the draft.

38. The deadline for such comments from the parties was to be 16:00 on 14 April 2026.  The commission and notice party helpfully pointed out some minor errors (right down to a single superfluous space character in the draft of para. 86 which is truly world-class proofreading by the commission on any metric and exactly the sort of commitment to assist the court that I genuinely appreciate from parties).  The applicants confirmed that they had no comments.

Relief sought

39. The reliefs sought are as follows:

"1.        An Order of certiorari by way of application for judicial review quashing the decision of An Coimisiún Pleanála (the Commission), dated 17th July 2025 (ABP- 321518-24) to grant planning permission for development of a 220kV Substation and Grid Connection at Aghaduff, Ballinbrittig, Ballynabrannagh West, Ballynagaul, Ballynaglogh, Ballynanelagh, Ballynaskeha, Ballysallagh, Ballyvatta, Glengarriff More, Kileena and Pigeonhill, County Cork.

2.         Such declaration(s) of the legal rights and/or legal position of the Applicant and/or persons similarly situated as the Court considers appropriate.

3.         A Declaration that Section 50B of the 2000 Act, and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 and/or that the interpretative obligation set out in Case C-470/16 Northeast Pylon Pressure Campaign Limited v. An Bord Pleanála whereby in proceedings where the application of national environmental law is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention apply to these proceedings.

4.         Such further or other order as this Honourable Court shall deem fit.

5.         The costs of these proceedings.

6.         Liberty to file further affidavits."

Grounds of challenge

40. The core grounds of challenge are as follows:

"DOMESTIC LAW GROUNDS

Core Ground 1: The impugned decision of the Commission is invalid, void, ultra vires, and of no legal effect, insofar as the Commission erred in fact and/or law in finding that the application site was not subject to a specific zoning and/or not subject to Agriculture (AG) zoning and the objectives relating to Agriculture AG zoning in the Cork County Development Plan 2022–2028, including Objective ZU 18-19, and/or that it would align with local policy and/or erred in failing and/or to give adequate reason relating to the zoning.  The development is not consistent with, ('Development Plan') and/or materially contravenes, the AG zoning and the requirements of Objective ZU 18-19, which provides, inter alia, that it is a requirement to conserve and protect agricultural land from undesirable development and non-agricultural uses.  The Commission failed to take account of relevant considerations namely relating to the site's deemed zoning under Objective ZU 18-4, the requirement for retention of agricultural use under Section 18.3.45, and the limitations on appropriate uses in agricultural areas, in purporting to grant permission for the development.  It took irrelevant considerations into account.  Further particulars are set out in Part 2 below.

Core Ground 2: The impugned decision of the Commission is invalid, void, ultra vires, and of no legal effect, insofar as the Commission in granting planning permission for the 220kV AIS electricity substation and associated grid connection acted without proper regard to the Inspector's express recommendation to consider the status of the Ballysallagh Solar Farm (Cork County Council Planning Ref. 24/5630) and/or the submission of the planning authority that the application could be considered premature, which, at the time of the Commission's decision, was undetermined and at Further Information stage (and was subsequently refused by the planning authority), and so failed to have regard to relevant considerations.  The Commission failed to provide reasons for its apparent disregard of the Inspector's recommendation and/or rejection of the submission of the planning authority that the application was premature, in purporting to grant permission.  Further particulars are set out at Part 2 below.

Core Ground 3: The impugned decision of the Commission is invalid, void, ultra vires, and of no legal effect insofar as the Commission erred in law in its application of the Cork County Development Plan objectives in granting planning permission for the proposed 220kV AIS electricity substation and associated grid connection.  In particular, the Commission misapplied and/or failed to have proper regard to Objectives ET 13-14 and ET 13-21 of the CCDP and/or failed to give adequate reasons and/or to engage with the conditional nature of those objectives and/or acted irrationally insofar as it found that such objectives supported the proposed development, where those objectives require that such development (including associated infrastructure) be located at 'appropriate locations' and be 'subject to environmental safeguards' and 'proper planning considerations' in granting permission for a substation that is intrinsically dependent on the Ballysallagh Solar Farm notwithstanding that the solar farm remained at Further Information stage and undetermined/unassessed at the time of the Commission's decision, and in circumstances where the Inspector expressly advised the Commission to consider the status of that application before making any determination and the planning authority considered the application premature.  Further particulars are set out at Part 2 below."

The impugned decision

41. The impugned decision provides as follows:

"Decision

APPROVE the proposed development under section 182A of the Planning and Development Act, 2000, as amended, for the following reasons and considerations and subject to the conditions set out below, and

DETERMINE under section 182B of the Planning and Development Act, 2000, as amended, the sum to be paid by the undertaker in respect of costs associated with the application, as set out in the Schedule of Costs below.

Reasons and Considerations

The Commission performed its functions in relation to the making of its decision, in a manner consistent with:

(a) Section 15(1) of the Climate Action and Low Carbon Development Act 2015, as amended by Section 17 of the Climate Action and Low Carbon Development (Amendment) Act 2021, and the requirement to, in so far as practicable, perform its functions in a manner consistent with Climate Action Plan 2024 and Climate Action Plan 2025 and the national long term climate action strategy, national adaptation framework and approved sectoral adaptation plans set out in those Plans and in furtherance of the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.

(b) Directive 2000/60/EC, the Water Framework Directive and the requirement to exercise its functions in a manner which is consistent with the provisions of the Directive and which achieves or promotes compliance with the requirements of the Directive.

The Commission also had regard to the following in coming to its decisions:

(a) European legislation, including of particular relevance: The relevant provisions of EU Directive 201 1/92/EU, as amended by Directive 2014/52/EU (EIA Directive) on the assessment of the effects of certain public and private projects on the environment, European Policy/Legislation including:

(i) Directive 2014/52/EU amending Directive 2011/92/EU (Environmental Impact Assessment Directive);

(ii) Directive 92/43/EEC (Habitats Directive) and Directive 79/409/EEC, as amended by 2009/147/EC (Birds Directive);

(iii) Directive 2000/60/EC (Water Framework Directive)

National Policy and Guidance including:

(i) Project Ireland 2040 - National Planning Framework (2018);

(ii) National Planning Framework - First Revision, April 2025;

(iii) National Development Plan (2021-2030);

(iv) The objectives and targets of the National Biodiversity Action Plan 2023-2030;

(v) Long-term Strategy on Greenhouse Gas Emissions Reductions (2024);

(vi) Policy Statement on Security of Electricity Supply (November 2021);

(vii) National Energy Security Framework (April 2022);

(viii) National Energy and Climate Action Plan (2021-2030);

Regional and Local Planning Policy, including in particular:

(i) The Regional Spatial and Economic Strategy for the Southern Region;

(ii) The Cork County Development Plan 2022 - 2028;

(iii) The location, nature, scale and layout of the proposed development;

(iv) The range of mitigation measures set out in the Natura Impact Statement;

(v) The submissions received in relation to the application by all parties;

(vi) The Inspector's report and recommendation.

Appropriate Assessment Stage 1:

The Commission agreed with and adopted the screening assessment and conclusion carried out in the Inspector's report that the Cork Harbour Special Protection Area (Site Code: 004030) and Great Island Channel Special Area of Conservation (Site Code: 001058) are the only European Sites in respect of which the proposed development has the potential to have a significant effect.

Appropriate Assessment Stage 2:

The Commission considered the Natura Impact Statement and associated documentation submitted with the application for approval, the mitigation measures contained therein, the submissions and observations on file, and the Inspector's assessment.  The Commission completed an appropriate assessment of the implications of the proposed development for the affected European Sites, namely the Cork Harbour Special Protection Area (Site Code: 004030) and Great Island Channel Special Area of Conservation (Site Code: 001058), in view of the sites' conservation objectives.  The Commission considered that the information before it was adequate to allow the carrying out of an appropriate assessment.  In completing the appropriate assessment, the Commission considered, in particular, the following:

(i) the likely direct and indirect impacts arising from the proposed development both individually or in combination with other plans or projects;

(ii) the mitigation measures which are included as part of the current proposal; and

(iii) the conservation objectives for the European Sites.

In completing the appropriate assessment, the Commission accepted and adopted the appropriate assessment carried out in the Inspector's report in respect of the potential effects of the proposed development on the integrity of the aforementioned European Sites, having regard to the sites' conservation objectives.

In overall conclusion, the Commission was satisfied that the proposed development, by itself or in combination with other plans or projects, would not adversely affect the integrity of the European Sites, in view of the sites' conservation objectives.

Proper Planning and Sustainable Development

It is considered that, subject to compliance with the conditions set out below, the proposed development would be consistent with and align with relevant European, national, regional and local planning and related policy which recognises the importance of renewable energy and associated electricity infrastructure to support transmission and distribution of this energy to the national grid (noting also the dual consent obligation which requires this application for substation and grid connection and associated works to be made directly to the Commission in its constituent form), would not have an unacceptable impact on the landscape, biodiversity or on the cultural or archaeological heritage, would not seriously injure the visual or residential amenities of the area or of property in the vicinity, and would be acceptable in terms of traffic safety and convenience.  The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area.

CONDITIONS

1. The proposed development shall be carried out and completed in accordance with the plans and particulars lodged with the application, except as may otherwise be required in order to comply with the following conditions.  Where such conditions require details to be agreed with the planning authority, the undertaker shall agree such details in writing with the planning authority prior to commencement of development and the development shall be carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.

2 The period during which the development hereby permitted may be carried out shall be 10 years from the date of this Order.

Reason: Having regard to the nature of the proposed development, the Commission considered it reasonable and appropriate to specify a period of the permission in excess of five years.

1. The mitigation measures contained in the submitted Natura Impact Statement shall be implemented in full.

Reason: To protect the integrity of European Sites.

1. All of the environmental, construction, and ecological related mitigation measures, as set out in the Ecological Impact Assessment, Construction and Environmental Management Plan, Electrical Infrastructure - Construction Methodology, Noise Impact Assessment Report, and other particulars submitted with the application, shall be implemented by the undertaker in conjunction with the timelines set out therein except as may otherwise be required to comply with the conditions of this Order.

Reason: In the interests of clarity and of the protection of the environment during the construction and operational phases of the development.

1. Prior to commencement of development, a detailed Construction Environmental Management Plan (CEMP) and Electrical Infrastructure - Construction Methodology for the construction phase shall be submitted to, and agreed in writing with, the planning authority, generally in accordance with the Outline CEMP and Electrical Infrastructure - Construction Methodology submitted with the application.  The CEMP and Electrical Infrastructure - Construction Methodology shall incorporate the following:

(a) a detailed plan for the construction phase incorporating, inter alia, construction programme, supervisory measures, noise, dust and surface water management measures including appointment of a site noise liaison officer, transport and disposal of construction waste.

(b) a comprehensive programme for the implementation of all monitoring commitments made in the application and supporting documentation during the construction period;

(c) an Invasive Species Eradication and Management Strategy for the site, to include monitoring post completion of works;

(d) an emergency response plan;

(e) proposals in relation to public information and communication.  A record of daily checks that the works are being undertaken in accordance with the Construction Environmental Management Plan and Construction Methodology shall be kept for inspection by the planning authority.

Reason: In the interests of environmental protection and orderly development

1. Prior to the commencement of development, the undertaker shall comply with the transportation requirements of the planning authority for such works and services, as appropriate.  Such requirements shall require provision of a detailed Traffic Management Plan and shall include the following details:

(a) Consultation with Transport Infrastructure Ireland (TII) and all private and public companies and road authorities;

(b) Details of haulage routes, control measures for abnormally sized vehicles and an Abnormal Load Assessment;

(c) A road condition survey of roads and bridges along the haul route to be carried out at the undertaker's expense and to the satisfaction of the planning authority;

(d) Detailed arrangements for construction damage to be made good by the undertaker to the satisfaction of the planning authority;

(e) Detailed arrangements for temporary traffic management/controls and protocols to keep residents informed;

(f) Construction route signage;

(g) Road Opening Licences that will be required;

(h) Arrangements for the phasing of the development.

Reason: in the interests of traffic and pedestrian safety.

7 (a) All mitigation measures in relation to archaeology and cultural heritage, as set out in the Archaeological Impact Assessment (Rubicon Heritage Services Limited date October 2024) shall be implemented in full, except as may otherwise be required in order to comply with the conditions of this Order

(b) The undertaker shall engage a suitably qualified archaeologist (licensed under the National Monuments Acts) to carry out a pre-development Archaeological Geophysical Survey and a pre-development Archaeological Test Excavation at the location for the sub-station and to submit an archaeological impact assessment report for the written agreement of the planning authority, following consultation with the Department of Housing, Local Government and Heritage, in advance of any site preparation works or groundworks, including site investigation works/topsoil stripping/site clearance and/or construction works.

(i) The Archaeological Geophysical Survey must be carried out under licence from the National Monuments Service and in accordance with an approved method statement.  Having completed the work, the archaeologist shall submit a written report to the Department and the planning authority describing the results of the Archaeological Geophysical Survey.

(ii) The archaeologist shall liaise with the Department to establish - based on the results of the Archaeological Geophysical Survey - the appropriate scope of the Archaeological Test Excavation to adequately characterise the character and extent of any potential sub-surface archaeological material within the development site.

(iii) The report on the Archaeological Test Excavation shall include an archaeological impact statement and mitigation strategy.  Where archaeological material is shown to be present, avoidance, preservation in-situ, preservation by record (archaeological excavation) and/or monitoring may be required.

(iv) Any further archaeological mitigation requirements specified by the planning authority, following consultation with the Department, shall be complied with by the undertaker.

(v) No site preparation and/or construction works shall be carried out on site until the archaeologist's report has been submitted to, and approval to proceed is agreed in writing with, the planning authority.

(c) The Construction Environment Management Plan (CEMP) shall include the location of any and all archaeological or cultural heritage constraints relevant to the proposed development, as set out in Archaeological Impact Assessment by Rubicon Heritage Services Limited (dated October 2024) and by any subsequent archaeological investigations associated with the project.  The CEMP shall clearly describe all identified likely archaeological impacts, both direct and indirect, and all mitigation measures to be employed to protect the archaeological or cultural heritage environment during all phases of site preparation and construction activity.

(d) The planning authority and the Department shall be furnished with a final archaeological report describing the results of all archaeological monitoring and any archaeological investigative work/excavation required, following the completion of all archaeological work on site and any necessary post-excavation specialist analysis.  All resulting and associated archaeological costs shall be borne by the undertaker.

Reason: To ensure the continued preservation (either in situ or by record) of places, caves, sites, features and other objects of archaeological interest.

1. Prior to the commencement of development, the undertaker shall engage a suitably qualified archaeologist (licensed under the National Monuments Acts) to carry out an Underwater Archaeological Impact Assessment (UAIA) report which shall include the following:

(a) A desktop assessment that addresses the underwater cultural heritage of the proposed development area.  The assessment shall include a full inventory, mapping and survey (photographic, descriptive, photogrammetric, as appropriate) of underwater cultural heritage features and structures identified by fieldwork cartographic analysis, historical research and prior archaeological investigations.

(b) A licenced dive/wade assessment, accompanied by a hand-held metal detection survey, centred on (but not confined to) the area(s) where in- stream works are proposed within or immediately proximal to the proposed development area, including the proposed locations of enabling works, coffer dams and machinery movements that may affect the watercourses.  The dive/wade assessment and metal detection survey shall be undertaken by a suitably licenced and experienced underwater archaeologist.  All identified underwater cultural heritage shall be surveyed (photographic, descriptive, photogrammetric) in detail as part of the assessment.  A Dive/Survey licence (Section 31987 National Monuments Act) and Detection Device consent (Section 2 1987 National Monuments Act) will be required for the dive/wade survey and metal detection, respectively.  Licenses should be applied for to the Department of Housing, Local Government and Heritage and should be accompanied by a detailed method statement.  All archaeological wading/diving should comply with the Health and Safety Authority's Safety, Health and Welfare at Work (Diving) Regulations 2018/2019. (c) Having completed the above-described works, the archaeologist shall submit a final written report to the Department of Housing, Local Government and Heritage describing the results of the UAIA.  The report shall include a comprehensive Archaeological Impact Statement (AIS) that comments on the degree to which the extent, location and levels of all proposed works (including ground disturbances, foundations, service trenches and other sub-surface works including Site Investigation works) required for the development will impact upon any underwater cultural heritage, archaeological materials, objects and/or areas of archaeological potential that have been identified.  The AIS shall describe the potential impact(s) of all proposed in-stream development, access and ingress routes to the river channels, and shall also assess any proposed additional potential secondary/indirect impacts such as scouring resulting from changes in hydrology.  The AIS should be illustrated with appropriate plans, sections and photographs that clearly describe any adverse effect(s) of the development on the underwater cultural heritage and proposals for their mitigation.  Mitigation may include recommendations for redesign to allow for full or partial preservation in situ, the institution of archaeological exclusion zones, further wade/dive surveys, test excavations, excavations ('preservation by record') and/or monitoring, as deemed appropriate.  The Department will advise with regard to these matters.  No construction works shall commence until after the UAIA has been submitted and reviewed.  All recommendations will require the agreement of the Department.

Reason: To ensure the continued preservation (either in situ or by record) of underwater cultural heritage features and other objects of archaeological interest.

1. The undertaker shall appoint a suitably qualified ecologist to monitor and ensure that all avoidance/mitigation measures relating to the protection of flora and fauna are carried out in accordance with best ecological practise.

Reason: To protect the environmental and natural heritage of the area 10 Site development and building works shall be carried out only between the hours of 0700 and 1900 from Mondays to Fridays inclusive, between 0800 and 1400 hours on Saturdays and not at all on Sundays or public holidays.  Deviation from these times will only be allowed in exceptional circumstances where prior written approval has been received from the planning authority.

Reason: In order to safeguard the amenities of property in the vicinity.

1. All road surfaces, culverts, watercourses, verges, and public lands shall be protected during construction and, in the case of any damage occurring, shall be reinstated to the satisfaction of the planning authority at the undertaker's expense.  Prior to commencement of development, a road condition survey shall be carried out to provide a basis for reinstatement works.  Details in this regard shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development.

Reason: In order to protect the road network."

Some general considerations

42. It may be of assistance to set out some general considerations arising from previous caselaw, under a number of headings as follows.

Overall requirements for relief by way of judicial review

43. As discussed in Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November 2025) and other cases (see also Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23 (Unreported, High Court, Holland J., 23 January 2026)), there is an eight-fold path to obtaining relief by way of judicial review.  These tests are cumulative, and relief should only be granted if the proceedings meet all of the following:

(i) the applicant complies with jurisdictional requirements (e.g. time or standing to bring the proceedings at all (as opposed to standing for particular issues within a case that the applicant can bring at a general level));

(ii) the applicant's point is legally correct and workable;

(iii) the applicant's point is properly pleaded with the requisite specificity;

(iv) the specific point is one that the applicant has standing to make (bearing in mind that while standing can relate to issues such as ius tertii it does not generally require prior participation in the process insofar as there is an EU/ Aarhus Convention dimension);

(v) material capable of sustaining the point was properly before the decision-taker at the relevant time such as to give rise to a duty to consider it (subject to exceptions primarily related to failure by the decision-taker to fulfil her autonomous obligations);

(vi) the applicant has discharged the onus of proof to establish all facts necessary for relief;

(vii) any error must transcend the harmless, the non-material and the purely technical lacking real-world consequences, bearing in mind that if error is demonstrated, then the onus shifts to the opposing parties to show harmlessness; and

(viii) the exercise of discretion within established parameters does not militate against the making of the order (such as considering the proportionality of the order sought), bearing in mind that discretion is potentially more limited in an EU law context.

44. Before dealing with specific elements in detail, some general comments are worth noting at this juncture:

(i) Judicial review is concerned with the legality rather than the correctness of the decision: per Clarke J. (Dunne J. concurring) in Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31 July 2014) at paras. 3.8-3.15.  It is not an appeal on the merits and it is not for the court to substitute its view for that of the decision-taker: per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 at p. 654 (Hamilton P. concurring); per Denham J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 at p. 743; per Lady Hale in R (Cart) v. Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 at para. 47: "it is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon ... factual conclusions".  See also Stapleton v. An Bord Pleanála & Savona [2025] IEHC 178 (Unreported, High Court, Holland J., 1 April 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 11.

(ii) As Singh L.J. and Carr J. put it in R (Hoareau and Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), [2019] 1 WLR 4105 at 326: " Judicial review is not, and should not be regarded as, politics by another means ".  The court must keep the separation of powers firmly in mind: Sinnott v. Minister for Education [2001] IESC 63, [2001] 2 IR 545 (Keane C.J., Denham, Murphy, Murray, Hardiman, Geoghegan and Fennelly JJ.); T.D. v. Minister for Education [2001] IESC 101, [2001] 4 IR 259 (Keane C.J., Denham, Murphy, Murray and Hardiman JJ.); B. v. Child & Family Agency & Ors. [2025] IESC 2 (Unreported, Supreme Court, Hogan J., 27 January 2025) (O'Donnell C.J., Murray, Collins and Donnelly JJ. concurring), para. 62; consequently the courts must respect the principle that policy choices are for other branches of government.  To stray into policy fundamentally distorts the process because "[t]he administrator is often concerned with broad considerations of the public interest whereas the judge tends to focus on the claims of the parties to the case before him" De Blacam, Judicial Review, 2nd ed, p. 97.  What O'Donnell C.J. (Charleton and Woulfe JJ. concurring) has recently said of Article 42A is true of the Constitution and law generally - it is not " an open-ended provision that requires courts to substitute their judgment on social issues ... for that of the Oireachtas " (G. v. Ireland [2025] IESC 49 (Unreported, Supreme Court, 26 November 2025) at 68).  Nor is the equality guarantee to "become instead a more general power to second guess legislative choices in difficult areas where the courts have very limited insight. " (at para. 86).  He noted:

"In Re SC [2021] UKSC 26, [2022] AC 223, Lord Reed cautioned against an expansive application of the equality guarantee contained in Article 14 ECHR observing that, in effect, since legislation was the art of differentiation, any legislation could be contested from the point of view of equality, and that a broad and expansive application of the guarantee risked undue interference with the sphere of political choice.  I agree.  Once it is established that a classification is not arbitrary or capricious or based on prejudice or stereotype, then this is an area where there is particular merit in the observations of Chief Justice Stone that '[c]ourts are not the only agency of government that must be assumed to have capacity to govern' (United States v Butler (1936) 297 US 1)."

(iii) Insofar as concerns evaluative judgement, **** the weight to be given to any consideration or piece of evidence is quintessentially a matter for the decision-taker: Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 (HL), 780 (Lord Hoffmann); per Keane C.J. (Denham, Murphy and McGuinness JJ. concurring) in Baby O v. Minister for Justice [2002] IESC 44, [2002] 2 IR 169, [2003] 1 I.L.R.M. 24; M.E. v. Refugee Appeals Tribunal [2008] IEHC 192 (Unreported, High Court, Birmingham J., 27 June 2008) at para. 27; Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All ER 967, [2021] PTSR 190, [2020] 12 W.L.U.K. 212, Lord Hodge and Lord Sales SCJJ. at 121; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 12.  Generally speaking evaluative judgements involving a significant degree of planning judgement and not tainted by other procedural, legal or factual errors are reviewable on an irrationality standard: Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton, O'Malley, Baker and Murray JJ. concurring); Barr J. in Graymount House Action Group v. An Bord Pleanála [2024] IEHC 327 (Unreported, High Court, 31 May 2024), leave to appeal refused in Graymount House Action Group v. An Bord Pleanála [2025] IESCDET 22 (Dunne, Woulfe and Hogan JJ., 17 February 2025).

(iv) A decision must be read in a way that makes sense rather than nonsense if such a reading is available.  It is not the case that decisions must be read in the most erroneous way possible so that applicants can get their order of certiorari (M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020); Rostas v. DPP [2021] IEHC 60 (Unreported, High Court, 9 February 2021) at §50; St. Margaret's Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024) at §57); Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December 2025) at 32.

(v) Thus a decision should not be read as invalid if a valid reading is reasonably available: see M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41 (Unreported, High Court, 29 January 2020) at §7; Mulloy v. An Bord Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12 March 2024) at §178 (citing O'Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1 November 2023)); Save Roscam Peninsula CLG  v. An Bord Pleanála (No. 6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024) at §64); thus for example "unhelpful" statements should not be read as inconsistent with statutory factors if the decision can be read as valid - E.M. v. Minister for Justice and Equality [2024] IESC 3 (Unreported, Supreme Court, 21 February 2024) per Dunne J. (Charleton, Woulfe, Murray and Donnelly JJ. concurring); Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13, and this applies even if the wording is sub-optimal: Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December 2025) at 32.

(vi) It is not appropriate to engage in legalistic over-parsing or micro-analysis of decisions, or of legal instruments generally, frequently based on semantic querulousness: per Sullivan J. in R (Blewett) v. Derbyshire County Council [2003] EWHC 2775 (Admin), [2004] Env LR 29 at para. 41; R. (Friends of the Earth Ltd and others) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All ER 967, [2021] PTSR 190, [2020] 12 W.L.U.K. 212, Lord Hodge and Lord Sales SCJJ.; per O'Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O'Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 37.  As stated by Peart J. in G.T. v. Minister for Justice, Equality and Law Reform [2007] IEHC 287, [2007] 7 JIC 2708 (Unreported, High Court, 27 July 2007), para. 3: "It is not desirable that a decision be parsed and analysed word for word in order to discern some possible infelicity in the choice of words or phrases used and to hold that a finding of credibility adverse to the applicant is invalid, unless the matters relied upon have been clearly misunderstood or mis-stated by the decision maker.  The whole of the decision must be read and considered in order to reach a view as to whether, when the decision is read in its entirety and considered as a whole, there was no reasonable basis for the decision maker reaching that conclusion".  See also A.I.M.Z. v. Refugee Applications Commission & Ors. [2008] IEHC 420,  [2008] 11 JIC 0705 (Unreported, High Court, 7 November 2008) at para. 24 per Clarke J.; per McCarthy J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009] IEHC 383, [2010] 7 JIC 2803 (Unreported, High Court, 28 July 2009), para. 13; per Clark J. in Obuseh v. Minister for Justice, Equality and Law Reform & Ors. [2010] IEHC 93, [2010] 1 JIC 1404 (Unreported, High Court, 14 January 2010), para. 21; per MacEochaidh J. in Bondo v. Minister for Justice & Ors. [2012] IEHC 454, [2012] 11 JIC 0903 (Unreported, High Court, 9 November 2012), para. 24; per Barr J. in P.M. v. Refugee Appeals Tribunal [2014] IEHC 497, [2014] 10 JIC 0204 (Unreported, High Court, 2 October 2014), para. 59; per Faherty J. in O.S. v. Refugee Appeals Tribunal [2015] IEHC 839, 2015 WJSC-HC 25494, [2015] 12 JIC 1505 (Unreported, High Court, 15 December 2015), para. 59; X.E. v. International Protection Appeals Tribunal [2018] IEHC 402, [2018] 7 JIC 0405 (Unreported, High Court, Keane J., 4 July 2018); B.D.C. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460, [2018] 7 JIC 2006 (Unreported, High Court, 20 July 2018), para. 7; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13.  Mere technicalities are not normally a proper basis for the grant of relief: see e.g. The State (Toft) v. Galway Corporation 1981 WJSC-SC 2110 , [1981] I.L.R.M. 439 (O'Higgins C.J.; Walsh and Kenny JJ. concurring); Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 ILRM 417 (Hogan J.; MacMenamin, Charleton, O'Malley and Baker JJ. concurring); Moore v. Dun Laoghaire Rathdown County Council [2016] IESC 70, [2017] 3 IR 42, [2017] 2 I.L.R.M. 21 (Clarke, Laffoy and O'Malley JJ.) para. 4.8 (distinguishing a substance point from "a technicality").  In Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O'Malley and Hogan JJ. concurring) said (without needing to decide the point) that there was "a great deal of force" in the submission that it would be disproportionate to quash a decision on the basis of a "technical procedural error".  See also Watchhouse Cross Shopping Centre v. An Coimisiún Pleanála [2025] IEHC 520 (Unreported, High Court, 3 October 2025).

(vii) Relatedly, a decision must be read in the round and in its context.  One has to view an administrative decision in the round, and not place undue weight on semantic quibbles in respect of micro-sub-elements of it: O.A.A. v. Minister for Justice, Equality and Law Reform & Anor. [2007] IEHC 169, [2007] 2 JIC 0904 (Unreported, High Court, Feeney J., 9 February 2007); J.B.R. v. Refugee Appeals Tribunal & Ors. [2007] IEHC 288, [2007] 7 JIC 3110 (Unreported, High Court, Peart J., 31 July 2007); per Cooke J. in I.R. v. Minister for Justice [2009] IEHC 510, [2015] 4 IR 144 at p. 152; M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 6.  A decision should be read not solely from an applicant's point of view (an impossible standard), but from the starting point of it being valid rather than invalid where possible.  One has to stand back and ask what the decision is fundamentally saying (O'Donnell & Ors. v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1 November 2023), para. 54; St. Margaret's Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024) at §57; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13.

(viii) Judicial review is not an exercise in pointless formalism: see for example Okunade v. Minister for Justice [2018] IESC 56, [2018] 11 JIC 1401 (Unreported, Supreme Court, 14 November 2018) per O'Donnell J. (Clarke C.J. and O'Malley J. concurring) at para. 21.  It is not a game where the respondents can score as many goals as they like, but if the applicant scores one goal, the game is over.  The court must make a balanced and reasonable assessment of the overall sustainability of a decision, even if there is an argument for saying that limited parts of it are sub-optimal: M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 21.

(ix) It is not for the applicant to dictate the procedures to be adopted or the form of a decision: see for example per Ryan P. (Peart and Hogan JJ. concurring) in A.B. v. Minister for Justice and Equality [2016] IECA 48, [2016] 2 JIC 2602, 2016 WJSC-CA 1525 (Unreported, Court of Appeal, 26 February 2016) at para. 43.

Workability

45. Legal provisions and obligations should be given a workable, sensible interpretation where this is at all possible:

(i) Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 ILRM 417 per Hogan J. (MacMenamin, Charleton, O'Malley and Baker JJ. concurring) at 43: "There is clear judicial authority for the proposition that statutory provisions should be read, where possible, so as to produce a workable and coherent interpretation, thereby avoiding interpretations which were either incongruous or which imposed unfair or anomalous obligations on private citizens in particular.  Thus, for example, as far back as Frescati Estates Ltd v Walker [1975] IR 177 at 187 this Court held that the Planning Acts should, where possible, not be interpreted in a way which would lead to 'strange incongruities.'  In a subsequent Housing Act case, this Court rejected an interpretation of what constituted the relevant dates for the service of notices to treat for the purposes of the making of compulsory purchase orders under the Housing Act 1966 where it concluded that such an interpretation such render the legislation effectively unworkable: see In re Murphy [1977] IR 243 at 251 per Henchy J.".

(ii) 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1 July 2025), para. 13, citing the statement that where the statutory words used "are reasonably capable of a meaning which is in accord with the essence of the provision, it is that interpretation which should prevail": see Kellystown Co. v. Hogan [1985] I.L.R.M. 200 at 203, per Henchy J. (Griffin J. concurring).

(iii) A discretionary power should not be construed as extending to impose unworkable and unenforceable requirements - McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 8 July 2025).

(iv) Likewise, European law should not be read as imposing impossibly onerous obligations: An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8, [2022] 2 IR 173, [2022] 1 ILRM 281, per Hogan J. (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring) at para. 105, rejecting "impossibly onerous and unworkable obligations"; Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025).

Onus of proof

46. Some relevant legal principles concerning the onus of proof which have been rehearsed in previous caselaw include the following:

(i) With only defined and extremely limited exceptions, in judicial review the onus of proof is on the applicant at all times: per Denham J. (Murray C.J. and Fennelly J. concurring) in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 at p. 743; Cork County Council v. Minister for Housing, Local Government and Heritage (No. 1) [2021] IEHC 683 (Unreported, High Court, 5 November 2021) at §57; Monkstown Road Residents Association v. An Bord Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) at para. 96 per Holland J.; that remains the case even when in a constitutional challenge it is proved that constitutional rights have been interfered with: O'Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O'Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring) at para. 116; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 14.  To put the same point another way, there is a presumption of validity for administrative decisions: per Finlay P. in In re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5 December 1977) and per Keane J. in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 at 102; Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High Court, Holland J., 25 November 2024), para. 22; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 15.

(ii) The onus shifts only in defined special circumstances.  For example, where an error is demonstrated by an applicant, the onus shifts to opposing parties to show that the error is harmless : H.A. v. Minister for Justice [2022] IECA 166, [2022] 7 JIC 2201 (Unreported, Court of Appeal, Donnelly J., 22 July 2022) at para. 48 (Ní Raifeartaigh and Collins JJ. concurring).  An onus on a decision-taker in the administrative process (e.g. to conduct a valid AA) does not convert into an evidential or any burden in the judicial process to show that the decision is valid (for reasons explained in Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023) at para. 85).

(iii) The onus of proof does not shift to a notice party merely because the decision-taker does not defend the decision on a given point or generally. Such a rule would be inconsistent with the Supreme Court's finding in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O'Donnell C.J., Woulfe, Hogan and Collins JJ. concurring) that a notice party can defend a permission even if the decision-taker does not.

(iv) In the context of a challenge to an environmental assessment, the onus of proof to show, by evidence (normally expert evidence), or by demonstrating a flaw on face of material, that AA/EIA was defective, or that there were factual circumstances requiring a decision-taker to consider any other autonomous obligation, lies on the applicant: R v. Crischuk, 2010 BCSC 716 (Barrow J.) at paras. 36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141; Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021), para. 19; An Taisce v. an Bord Pleanála & Ors. ** [2022] IESC 8, [2022] 2 IR 173, [2022] 1 ILRM 281 per Hogan J. at para. 124 (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring); Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v) (leave to appeal refused in Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025)); Salmon Watch Ireland, Inland Fisheries Ireland, Sweetman & Ors. v. Aquaculture Licences Appeals Board & Ors. [2024] IEHC 421 (Unreported, High Court, Holland J., 12 July 2024), §1097; Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November 2024) at para. 115; Minoa Ltd v. An Bord Pleanála [2024] IEHC 704 (Unreported, High Court, Heslin J., 10 December 2024), para. 333; Ó Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September 2025) at 55; Oxigen v. An Coimisiún Pleanála [2025] IEHC 632 (Unreported, High Court, 19 November 2025) (for example, in relation to proving that a decision-taker lacks expertise).  Thus, apart from (i) failure to consider something that the decision-taker was autonomously required to consider, (ii) patent flaw on the face of the materials, or (iii) other legal error, inadequate consideration or failure to dispel scientific doubt has to be established by admissible evidence (normally expert evidence) in the judicial review showing either that reasonable doubt was created by the material before the decision-taker at the time (albeit not limited to what was adduced by the applicant specifically), or that such material even if uncontradicted would on its face have created doubt in the mind of a reasonable expert: An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021] 7 JIC 0205 (Unreported, High Court, 2 July 2021) at §7 and §8; Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v), leave to appeal refused: Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025); Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024) at §§ 73 and 105; Roache v. An Bord Pleanála [2024] IEHC 311 (Unreported, High Court, Phelan J., 21 May 2024) at §117; Ryanair DAC v. An Bord Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February 2025) at §64 et seq.; analogously, Donegal County Council v. Planree [2024] IECA 300 (Unreported, Court of Appeal, Butler J., 18 December 2024), para. 141; Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025).  As noted in Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November 2024), summarised in the non-precedential determination refusing leave to appeal [2025] IESCDET 41 (O'Malley, Murray and Donnelly JJ., 10 March 2025) at para. 8, "the critical point was that scientific and factual shortcomings in EIA or indeed in an Appropriate Assessment, must be established by the applicant who bore the burden of proof".  Similarly, leave to appeal was refused in Eco Advocacy v. An Bord Pleanála [2025] IESCDET 74 (Dunne, Hogan and Donnelly JJ., 4 June 2025) where "The applicant's claim failed for the reason that the High Court accepted that the respondent had come to a lawful conclusion of no doubt that an appropriate assessment was not needed and that the respondent had given reasons for that conclusion.  On the judicial review the applicant had not displaced that conclusion by way of evidence" (para. 25).  That is consistent with the general law: O'Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O'Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring).  The Supreme Court determination in 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1 July 2025) is to the same effect: "17.  As [the trial judge] pointed out (at para. 196) the Court of Justice ruled in Case C-721/22 Eco Advocacy CLG (EU:C: 2023: 477) the Board simply provides 'reasons sufficient to explain that the decision does not create reasonable scientific doubt as to impact on European sites.'  This was simply the test which [the trial judge] applied in the present case.  He concluded (at para. 230) that the Board had addressed the issue of potential bird movements of water birds and hen harriers and 'gives reasons for that conclusion which the applicants have not displaced evidentially.'  18. The Court considers that this second issue involves the application of standard principles and does not meet the constitutional criteria".  See also Eco Advocacy CLG v. An Bord Pleanála & Statkraft [2025] IEHC 15 (Unreported, High Court, 15 January 2025) at §95; Concerned Residents of Coolkill v. An Bord Pleanála & Midsal Homes [2025] IEHC 265 (Unreported, High Court, Holland J., 19 May 2025) at 309.

(v) The onus of proof as to an inadequacy in the decision cannot be discharged by mere assertion: Joyce Kemper v. An Bord Pleanála [2020] IEHC 601, [2020] 11 JIC 2402 (Unreported, High Court, Allen J., 24 November 2020) at §9; Murphy v. An Bord Pleanála [2024] IEHC 59 (Unreported, High Court, Bolger J., 6 February 2024) at §14; nor does mere assertion create scientific doubt for AA purposes: Harrington v. An Bord Pleanála [2014] IEHC 232, [2014] 5 JIC 0909 (Unreported, High Court, O'Neill J., 9 May 2014); Murphy v. An Bord Pleanála [2024] IEHC 59 (Unreported, High Court, Bolger J., 6 February 2024) at §14; Duffy v. An Bord Pleanála [2024] IEHC 558 (Unreported, High Court, Holland J., 27 September 2024) at §40-§41.

(vi) If demonstration of error depends on expert opinion, the onus of demonstration in that regard cannot be discharged by non-expert views articulated by or on behalf of an applicant.  Such an exercise in ultracrepidarianism is generally inadmissible on standard evidential principles insofar as matters of opinion are concerned: Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025).

(vii) Where there is a conflict of admissible evidence, in the absence of cross-examination such a conflict must generally be resolved against the party carrying the onus of proof: RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 IR 63, [2019] 2 ILRM 273 (Clarke C.J.) (O'Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ. concurring).  That is normally the applicant but in the case of an opposing party asserting that a demonstrated error is harmless, the conflict will be resolved against the opposing party.

(viii) That said, while conflict between equally inherently credible averments, with no cross-examination, is generally resolved against the party carrying the onus of proof, a court is not always obliged to regard all averments as being equally credible, or to disregard internal or evident problems with them (see by analogy the manner in which the Supreme Court considered it was entitled to prefer an affidavit over even oral evidence in Koulibaly v. Minister for Justice, Equality and Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court, Denham J. (Geoghegan and McCracken JJ. concurring), 29 July 2004)).  Among the matters to which regard might be had would be included the failure to explain patently relevant questions that are clearly within that party's responsibility (Doorly v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022) at para. 137 (Ní Raifeartaigh and Pilkington JJ. concurring)).  This specific and common sense power of the court to evaluate inherent defects in evidence remains notwithstanding caselaw on cross-examination such as RAS Medical or Re Bayview Hotel (Waterville) Limited [2022] IEHC 516 (Unreported, High Court, Butler J., 8 September 2022). This is consistent by analogy with the judgment of Hardiman J. (Hanna and Feeney JJ. concurring) in DPP v. Barnes [2006] IECCA 165, [2007] 3 IR 130, [2007] 1 ILRM 350 at para. 95 - the court as finder of fact is "not ... constrained" to accept "the only account available" even if that account is provided by oral evidence. The evidence of experts is one area where the court is not automatically obliged to accept evidence absent cross-examination: Tesco Ireland Limited v. Stateline Transport Limited [2024] IECA 46 (Unreported, Court of Appeal, Butler J., 23 February 2024).

Discretion

47. Some issues regarding discretion established by the caselaw are as follows:

(i) Judicial review is a discretionary remedy: per Charleton J. in Dun Laoghaire Rathdown County Council v. Westwood Club Ltd [2019] IESC 43, [2020] 3 I.R. 417 at 10; per Murray J. (Whelan and Pilkington JJ. concurring) in O'Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, 1 July 2021) at 43.  This historically arose from the development of judicial review out of the power to grant equitable relief.

(ii) Discretion applies both at the leave stage and at the substantive stage: per Finlay C.J. (Blayney and Denham JJ. concurring) in G. v. DPP [1994] 1 I.R. 374 at p. 378; De Róiste v. Minister for Defence [2001] IESC 4, [2001] 1 IR 190, [2001] 2 ILRM 241 at 204 per Denham J.; Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring).

(iii) The effect of the doctrine of discretion is that even if there was a "jurisdictional" infirmity such as in planning application documents, AA, or other such requirement the process is not automatically void *ab initio* and certiorari is not automatic: Byrnes v. Dublin City Council [2017] IEHC 19 (Unreported, High Court, Baker J., 18 January 2017); Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403 (Unreported, High Court, Owens J., 16 June 2021); Ballyboden Tidy Towns Group v. An Bord Pleanála [2023] IEHC 722 (Unreported, High Court, Holland J., 21 December 2023) (§102 et seq.); and Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November 2025) (§81 et seq.).

(iv) The court can exercise discretion of its own motion because the court itself has to be satisfied as to the correctness of granting relief: Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O'Donnell C.J., Woulfe, Hogan and Collins JJ. concurring).  That implies that the court has an entitlement to exercise such discretion itself even if a party doesn't plead discretion as such or pleads it on limited grounds.

(v) In exercising that discretion however the court is bound by established principles as to the exercise of such discretion: Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring) at 60.  As Donnelly J. pointed out in that case at 27, the use of the term discretion is strictly delineated.  O'Donnell J. (Clarke C.J. and Dunne J. concurring) said in Kelly v. Minister for Agriculture [2021] IESC 62, [2023] 1 I.R. 38 that the court is not "at large", or is free to take into account "its views on the underlying merits" (the contrast with Christian below indicates that what is envisaged is merit in some general sense separate from the "constitutional or legal value[s]" concerned).  Rather, "the circumstances which allow the court not to make an order which would otherwise be justified must be such as to derive from an important constitutional or legal value of sufficient weight to warrant not making an order otherwise justified" (Clarke J. in Christian v. Dublin City Council [2012] IEHC 163, [2012] 2 IR 506, at 567) as cited with approval by Donnelly J. in Amariei at 27.  Thus the court must be conscious of the need for statutory requirements to be observed, see e.g. Protect East Meath v. Meath County Council [2026] IESC 1 (Unreported, Supreme Court, 22 January 2026).

(vi) The established principles as to the exercise of discretion fall into three broad categories: conduct of the applicant, the practical value of the remedy, and disproportionality.  Under these headings the following points emerge:

(a) "[T]he action or inaction of the claimant (such as a failure to exhaust an alternative remedy, delay, laches, waiver, acquiescence or misconduct in connection with the proceedings)" is relevant (O'Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, Murray J. (Whelan and Pilkington JJ. concurring) 1 July 2021) at 43).  In particular:

1. Failure to exhaust remedies as the general rule: Amariei v. Chief Appeals Officer [2026] IESC 22 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton and Murray JJ. concurring), save where for example there is a fundamental failure of justice: A.B. v Chief International Protection Officer & Ors [2026] IESC 23 (Unreported, Supreme Court, Donnelly J., 25 March 2026) (O'Donnell C.J., Charleton, Woulfe and Murray JJ. concurring).  "It is a long-standing principle of the law relating to judicial review that the court asked to quash an administrative decision has a discretion to refuse to do so if there is an alternative remedy available to put right the wrong complained of in the proceedings." per Dunne J. (Charleton, Woulfe, Collins and Donnelly JJ. concurring), S. v. Minister for Justice and Equality [2025] IESC 48 (Unreported, Supreme Court, 25 November 2025) at 98.

2. This can include failure by an applicant to take action to protect their position: Baile Bhruachlain Teoranta v. Galway County Council [2024] IEHC 604 (Unreported, High Court, 1 November 2024); Voyage Property v. Limerick City and County Council [2025] IEHC 696 (Unreported, High Court, Holland J., 16 December 2025) at 263-264.

3. The failure by the applicant to make the point in the process is relevant: Costello J. in Friends of the Irish Environment CLG v. Government of Ireland [2021] IECA 317 (Unreported, Court of Appeal, 26 November 2021) at 277.

4. Unwarranted failure to prosecute the proceedings: Delaney v. An Coimisiún Pleanála [2025] IEHC 621 (Unreported High Court, 13 November 2025).

(b) Grounds relating to " the practical value of the remedy (such as mootness or futility) (see Independent Newspapers (Ireland) Ltd v. IA [2020] IECA 19, [[2021] 1 I.R. 384] at para. 78)" are relevant: O'Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, Murray J. (Whelan and Pilkington JJ. concurring), 1 July 2021) at 43.  Thus for example a remedy is not required where the order sought would be futile and inappropriate: Protect East Meath v. Meath County Council [2026] IESC 12 (Unreported, Supreme Court, 19 February 2026) at 8.

(c) The proportionality of certiorari (as opposed for example to either no order or declaratory relief only) may also be a factor: in Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O'Malley and Hogan JJ. concurring) said (without needing to decide the point) that there was "a great deal of force" in the submission that it would be disproportionate to quash a decision on the basis of a "technical procedural error".  In particular:

1. The importance of the provision not complied with is a factor - the process requires "consideration of whether the matter concerned is one of importance or of triviality ": per Finlay C.J. (Blayney and Denham JJ. concurring) in G. v. DPP [1994] 1 I.R. 374 at p. 378 (emphasis added).  Thus an "inconsequential" breach was not a basis for the grant of relief as a matter of discretion in Kenny v. Dublin City Council [2009] IESC 19 (Unreported, Supreme Court, 5 March 2005) at 79 per Fennelly J. (Macken and Peart JJ. concurring).

2. Likewise the importance of the countervailing legal value being protected by the impugned decision is a factor in the balance, whether that be a value enshrined in law generally, the ECHR as transposed, the Constitution or EU law - as cited above, the court can consider whether there is "an important constitutional or legal value of sufficient weight to warrant not making an order otherwise justified" (Clarke J. in Christian v Dublin City Council [2012] IEHC 163, [2012] 2 IR 506, at 567) as cited with approval by Donnelly J. in Amariei at 27.

1. Prejudice or the lack of it to the applicant or anyone else (see O'Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, 1 July 2021) at 43: "grounds relating to the impact a remedy will have on others (such as where the grant of relief would represent an unwarranted interference with the settled rights or expectations of third parties)").

2. In assessing proportionality it follows that matters regarding the seriousness of the error such as the extent of the non-compliance, whether the error was once-off, whether the issue is purely historic and cannot reoccur, the level of deliberation involved in the error and the extent to which reasonable steps were taken to prevent or identify such an error, whether the error was rectified promptly when it came to light (if capable of rectification), whether there is a pattern of non-compliance, and any other relevant circumstances may be relevant (see also Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High Court, 24 January 2024) para. 134).

The climate law context

48. Insofar as relevant, some relevant issues concerning the climate context include the following:

(i) The climate emergency represents a critical risk to human and natural life on earth (as noted in e.g. Wild Ireland Defence v. An Coimisiún Pleanála [2025] IEHC 726 (Unreported, High Court, 17 December 2025) at 53).  According to the statutory Climate Action Plan 2025 published by the Government under the Climate Action and Low Carbon Development Act 2015 as amended, as well as known critical risks of climate change, "[w]e also face increasing risks of reaching irreversible climate tipping points, with unknown and potentially catastrophic consequences for societies, ecosystems and economies" (p. 22, emphasis added).  One recent widely-reported study noted that "research on climate tipping points, amplifying feedbacks, and cascading interactions shows that several Earth system components may be closer to destabilizing than once believed.  These processes are thought to be the precursors of a potential 'hothouse trajectory': a pathway in which self-reinforcing feedbacks push the climate system past a point of no return, committing the planet to substantially higher long-term temperatures, even if emissions are later reduced.  Policymakers and the public, however, remain largely unaware of the risks posed by such a practically irreversible transition " (emphasis added) (William J. Ripple et al, "The risk of a hothouse Earth trajectory", One Earth, 101565, 11 February 2026).

(ii) Domestic law imposes significant climate-related obligations on national decision-takers, including in the field of planning.  The Climate Action and Low Carbon Development (Amendment) Act 2021 (amending the Climate Action and Low Carbon Development Act 2015) mandates the achievement of a net-zero carbon economy by 2050 (s. 3(1) of 2015 Act as substituted by the 2021 Act), with a legally binding 51% reduction in emissions by 2030 compared to 2018 levels (s. 6A(5) of 2015 Act as substituted by the 2021 Act): see Coolglass v. An Coimisiún Pleanála [2026] IESC 5 (Unreported, Supreme Court, 4 February 2026).

(iii) EU law also involves significant climate-related objectives and obligations.  As well as general treaty-level commitments to environmental rights (the EU Charter, art. 191(2) TFEU, the polluter pays principle), the following instruments are particularly notable in that regard:

i. The Emissions Trading System Directive (Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a system for greenhouse gas emission allowance trading within the Union and amending Council Directive 96/61/EC) as amended involves a cap (on emissions) and trade (in allowances) covering emissions from the electricity and heat generation, industrial manufacturing and aviation sectors and, more recently, maritime transport.

ii. Directive 2009/28/EC **** (the Renewable Energy Directive) of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC established mandatory targets for the consumption of energy from renewable sources by member states.

iii. The LULUCF Regulation (Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No 529/2013/EU) sets binding limits on emissions from the land use sector.

iv. Regulation (EU) 2018/1999 (the Governance Regulation) of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action, amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No 525/2013 of the European Parliament and of the Council (the Governance Regulation) was adopted to implement the Paris Agreement commitments (agreement at conference of parties of the UNFCCC (the United Nations Framework Convention on Climate Change opened for signature at UN Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14 June 1992) (COP21) in Paris, on 12 December 2015).

v. By way of implementation of the Paris Agreement, the European Climate Law (Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999) involves a reduction of GHG emissions for the EU by at least 55% by 2030 compared to 1990 levels.  Ireland's Nationally Determined Contributions (NDCs) under Paris are as part of the EU contribution to GHG reductions.

vi. Council Regulation (EU) 2022/2577 of 22 December 2022 lays down a framework to accelerate the deployment of renewable energy.  Article 3(1) introduced a presumption of overriding public interest for renewable energy projects for the purpose of the birds, habitats and strategic environmental assessment (SEA) directives, and provision was made for the acceleration of such projects.  Case C-325/25 Eneco Wind is ongoing as to the ramifications of this legislation.

vii. The Effort Sharing Regulation (Regulation (EU) 2023/857 of the European Parliament and of the Council of 19 April 2023 amending Regulation (EU) 2018/842 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement, and Regulation (EU) 2018/1999) involves binding obligations on member states to reduce GHGs in sectors not covered by the ETS system by 2030.

viii. The recast Energy Efficiency Directive (Directive (EU) 2023/1791 of the European Parliament and of the Council of 13 September 2023 on energy efficiency and amending Regulation (EU) 2023/955 (recast)) mandates a significant reduction in energy consumption.  The transposition date was 11 October 2025.

ix. The current version of the Renewable Energy Directive (REDIII), Directive (EU) 2023/2413 of the European Parliament and of the Council of 18 October 2023 amending Directive (EU) 2018/2001, Regulation (EU) 2018/1999 and Directive 98/70/EC as regards the promotion of energy from renewable sources, and repealing Council Directive (EU) 2015/652, provides for a presumption of overriding public interest and for accelerated timelines including requiring judicial remedies to be the most expeditious available in national law.

(iv) The ECHR, relevant to domestic law via the European Convention on Human Rights Act 2003, involves a binding legal obligation to address climate change: Verein KlimaSeniorinnen Schweiz and Others v Switzerland (9 April 2024, App. no. 53600/20) (this is consistent with the decisions of all other international courts/ tribunals to date: International Court of Justice Advisory Opinion of 23 July 2025, Obligations of States in respect of Climate Change; International Tribunal for the Law of the Sea, Advisory opinion, Request by Commission of Small Island States, 21 May 2024; Inter-American Court of Human Rights, Request by Chile and Colombia, Opinión Consultiva Oc-32/25 de 29 de Mayo de 2025).

Core ground 1 - zoning

49. Core ground 1 is:

"Core Ground 1: The impugned decision of the Commission is invalid, void, ultra vires, and of no legal effect, insofar as the Commission erred in fact and/or law in finding that the application site was not subject to a specific zoning and/or not subject to Agriculture (AG) zoning and the objectives relating to Agriculture AG zoning in the Cork County Development Plan 2022–2028, including Objective ZU 18-19, and/or that it would align with local policy and/or erred in failing and/or to give adequate reason relating to the zoning.  The development is not consistent with, ('Development Plan') and/or materially contravenes, the AG zoning and the requirements of Objective ZU 18-19, which provides, inter alia, that it is a requirement to conserve and protect agricultural land from undesirable development and non-agricultural uses.  The Commission failed to take account of relevant considerations namely relating to the site's deemed zoning under Objective ZU 18-4, the requirement for retention of agricultural use under Section 18.3.45, and the limitations on appropriate uses in agricultural areas, in purporting to grant permission for the development.  It took irrelevant considerations into account.  Further particulars are set out in Part 2 below."

50. The parties' positions as recorded in the statement of case are summarised as follows:

"Applicants' Position

35.       The Commission erred in fact and law in concluding that the application site was not subject to a specific zoning, or alternatively not subject to Agriculture (AG) zoning, under the Cork County Development Plan 2022–2028.  This is a misinterpretation of the Development Plan rather than a matter of planning judgment.  Objective ZU 18-4, provides that where lands are not explicitly zoned on the maps, the specific zoning is deemed to be that of the existing authorised use.  As the site is in active agricultural use, this means that the lands are specifically zoned or deemed to be zoned Agriculture (AG), and that the Inspector and Commission erred in treating the lands as effectively unzoned.  Neither the Inspector's Report nor the Commission's Order engaged with Objective ZU 18-4, and that the Statements of Opposition misconstrue the zoning framework and fail to contain a clear positive plea regarding the deemed zoning.  A failure properly to identify and apply the applicable zoning constituted a material error of law.

36.       The Applicants further submit that, having failed properly to identify the agricultural zoning or deemed zoning of the lands, the Commission did not correctly apply the relevant agricultural policy objectives, including Objective ZU 18-19 and section 18.3.45, which provide for the conservation and protection of agricultural land from undesirable development and non-agricultural uses.  A 220kV substation is not an agricultural use and permanently removes land from agricultural production, and therefore materially contravenes the stated purpose of zoning.  Also reliance on previous solar farm permissions granted under an earlier Development Plan constituted an irrelevant consideration and could not lawfully inform interpretation of the operative Development Plan.  A statutory obligation under section 182B to 'have regard to' the Development Plan as a precondition requires correct identification of the applicable zoning in the development plan, and in wrongly proceeding on the basis that no zoning applied there was a failure to have regard to a mandatory consideration and/or a misinterpretation of the Development Plan.

The Commission's Position

37.       The Commission Decision is not invalid as alleged at Core Ground 1 or at all.  The Commission did not err in fact or in law in finding that the application site was not subject to a specific zoning and/or not subject to Agriculture (AG) zoning and the objectives relating to Agriculture AG zoning in the Core County Development Plan 2022-2028 (the 'CDP').  There has been no misinterpretation or misapplication of the CDP.  The application site is located in a rural location on agricultural lands, which is not covered by any specific land use zoning objective in the CDP.  The Applicants' reliance on the Agriculture AG zoning objective, as well as policy objective ZU 18-4 in the CDP and the deemed zoning of Agriculture AG zoning objective, is incorrect and misconceived.

38.       Section 18.3.45 of the CDP relating to Agriculture AG expressly states that '[t]hese lands have been identified as having the potential to play a role in the delivery of future residential development in the period after 2028'.  The use of the Agriculture AG zoning objective in the CDP is used to demarcate the zoning at the edge of certain urban settlements and the location of lands designated as Agriculture AG and the proximity of those lands to urban settlements can be seen in the interactive map at Volume 6 of the CDP.  Objective ZU 18-19 relied upon by the Applicants expressly states that the purpose is '...to prevent premature development of agriculture land adjacent to development areas' which clearly does not apply to the subject site.  Although the application lands are in 'agricultural' use, agricultural use of land does not necessarily fall  within Agriculture (AG) zoning and the objectives associated with such zoning, which zoning must be construed in accordance with the ordinary principles for interpretation of a development plan.

39.       The Commission does not accept that the approval for the Proposed Development is inconsistent with or materially contravenes to the CDP but, without prejudice to that, neither section 182A nor section 182B of the 2000 Act contain any limitation on the Commission granting approval where the proposed development would materially contravene the Development Plan.  Section 182(10) also provides for a 'have regard to' standard in respect of the development plan for the area which the Commission complied with.  The Development Plan expressly acknowledges (p.301) that solar farms have the potential to be built on agricultural land, and the development of solar farms is not necessarily inconsistent with the agricultural use of lands.  Reference to other permitted solar farms was not an irrelevant consideration and it was not contended that those permissions were binding on the outcome of the application for approval before the Commission.

40.       The Commission acted lawfully in consideration of the Application for approval as part of the dual consent regime.  Noting the applicable statutory provisions, two separate applications for the proposed electricity transmission development and the proposed Ballysallagh Solar Farm were required to be submitted which was permissible in law, and the Applicants have not sought to challenge the validity of the statutory framework in these proceedings.

Ballysallagh's Position

41.       It is Ballysallagh's position that the Impugned Decision is not invalid by reference to any matter pleaded by the Applicants in relation to Core Ground 1 in circumstances where, inter alia, the application site is not contained within any settlement boundary and, as a consequence, is not subject to land-use objective 'Agriculture (AG)', or any specific land-use objective established in the Development Plan.  Moreover, the purpose and intent of the 'Agriculture (AG)' land-use zoning objective is 'to prevent premature development of agricultural land adjacent to development areas', which clearly does not apply to the application site which is not, as a matter of uncontested fact, adjacent to any development area.  In any event, even if the application site was subject to the land-use objective 'Agriculture (AG)' - which it clearly is not - the provisions of section 182B do not contain a limitation on the jurisdiction of the Commission to grant approval where proposed electricity transmission development would materially contravene a development plan (see, by way of analogy, the position in respect of local area plans in Ryanair DAC v An Bord Pleanála [2025] IEHC 74 at §61-62) .

42.       There is nothing unlawful about the fact that the Inspector referred to previous grants of permission.  For example, there is no suggestion that the Commission's decision on the application for approval was predetermined on that basis nor did the Inspector state that previous grants of permission were binding as to the outcome of the section 182A approval application.  The Commission complied with its statutory obligation to 'have regard' to the development plan.  Finally, as a result of the applicable statutory provisions, two separate applications for the proposed electricity transmission development and the proposed Ballysallagh Solar Farm were required to be submitted, and the Applicants have not sought to challenge the validity of the statutory framework in these proceedings.

Applicants' Response to the Commission and Notice Party Position

43.       The Applicants reject the contention of the Commission and the Notice Party that the application site is not subject to any zoning or that Objective ZU 18-4 has no application.  The Development Plan expressly provides a mechanism whereby lands not explicitly zoned on the relevant maps are assigned a deemed zoning based on their existing authorised use.  In circumstances where it is uncontested that the lands are in active agricultural use, Objective ZU 18-4 operates such that the lands are deemed to be zoned Agriculture (AG) or alternatively is zoned agriculture.  The Commission and the Notice Party seek to characterise AG zoning as limited to lands at the edge of settlements, but that submission does not address the clear wording and function of Objective ZU 18-4, which operates independently of mapped zoning and which the Inspector and Commission failed to identify or apply.  The failure to consider or interpret that objective constitutes a misinterpretation of the Development Plan rather than a matter of planning judgment.

44.       Further, the Applicants do not accept that the agricultural policy objectives relied upon are inapplicable merely because the lands are not adjacent to a settlement boundary.  Even if the Commission were correct that the mapped AG zoning primarily concerns lands adjoining settlements, that does not displace the operation of Objective ZU 18-4 or the broader policy framework within the Development Plan aimed at protecting agricultural land from non-agricultural development.  The proposed 220kV electricity substation is plainly a non-agricultural use which permanently removes agricultural land from production and therefore engages the objectives relied upon by the Applicants.  The Commission's approach effectively bypassed the relevant zoning and policy framework by treating the lands as unzoned, thereby failing properly to have regard to the Development Plan as required by section 182B of the 2000 Act.

45.       The Applicants further reject the suggestion that the question of material contravention is irrelevant because section 182A does not prohibit such a contravention.  The Applicants' case is not dependent upon establishing a formal material contravention of the Development Plan, but rather upon the prior failure of the Commission to correctly identify and interpret the applicable zoning and policy provisions.  The statutory obligation to 'have regard to' the Development Plan necessarily requires the Commission to correctly identify the applicable planning framework before assessing the proposal.  The reliance on references to solar farm development elsewhere in the Development Plan or on prior permissions granted under an earlier development plan does not cure that failure and constitutes reliance on considerations which cannot lawfully substitute for proper interpretation of the operative Development Plan."

51. The relevant text of the CDP is:

"18.1 Introduction

18.1.1 The purpose of zoning is to indicate the land use objectives for all the lands within the County. Zoning aspires to promote the orderly development of the County by eliminating potential conflicts between incompatible land uses and to establish an efficient basis for investment in public infrastructure and facilities.

18.1.2 Zoning policy must also have regard to the core principles underlying the Plan.  These include the principles of Sustainability, Social Inclusion, Placemaking, Resilience and Climate Action which when coupled with the need for the integration of land use and transportation planning, will help safeguard and improve the quality of life for all within the County.

County Development Plan Objective

ZU 18-1: Implementation of Zoning Objectives

Secure the implementation of the Zoning Objectives applied to each area of the County.

18.2 Overall Approach to Land Use Zoning

18.2.1 The zoning objectives and maps for all the settlements in the County are set out in the relevant County Development Plan Volumes Three, Four and Five and in Volume 6 Maps CDP Map Browser and the objectives and general principles that should be followed in these plans are set out below."

52. The applicants assert this wording is ambiguous in that on the one hand it suggests that "all the lands within the County" will be zoned, whereas on an "overall approach" the zoning objectives and maps only apply to "all the settlements".  But this is a prototypical applicant's fallacy of reading text as being erroneous when a non-erroneous reading is available.  In fact, read by the court in accordance with established principles (Re XJS Investments Ltd [1986] I.R. 750, [1987] I.L.R.M. 659 (McCarthy J.; Finlay C.J., Henchy, Griffin and Hederman JJ. concurring); Clonres v. An Bord Pleanála [2021] IEHC 303 (Unreported, High Court, 7 May 2021) at §79; Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton, O'Malley, Baker and Murray JJ. concurring) at §96), both statements are consistent when we consider the residual zoning referred to in ZU 18-4.  The specific objectives and maps relate to specifically labelled zonings, but all other lands also have zoning on a residual basis (emphasis added):

"Land Use Zoning of Other Lands

County Development Plan Objective

ZU 18-4: Land Use Zoning of Other Lands

Where lands have not been explicitly zoned, in the Plan the specific zoning shall be deemed to be that of the existing use of the lands (if such a use is not an authorised use under the Planning Acts) or, if such use is unauthorised, that of the most recent authorised use of the lands."

53. The word "not" there is admittedly erroneous - the applicants are right about that - and needs to be disregarded as a typo.  The applicants say that this is "the only way of reading it that makes sense".

54. I appreciate that a deemed zoning may strike some readers as strange but as it happens I am not such a reader - it is really up to a council to decide how it wants to phrase its plan.  A provision specifying the named zonings and stating anything else is deemed zoned in a particular way is legally equivalent to creating a specific label (for the sake of discussion it could be called EA - existing authorised use) and a specific colour for the residual areas and completing the maps accordingly.  Both options come to the same thing.  The council is entitled to do it whatever way it wants as long as the outcome is reasonably clear to the court viewing the matter as it would appear to a reasonably intelligent non-expert reader - which it is.

55. The applicants' contention is that the deemed zoning has the consequence that the land is deemed to be specifically zoned Agriculture AG with the effect that para. 18.3.45 and policy 18-19 apply.  (Incidentally it would appear that there is also an error in 18-19 where the word "members" is used when "family members" was intended.)

56. The intellectual sleight of hand in the applicants' superficially attractive argument is that a general deemed zoning objective to maintain existing authorised uses is not the same thing as a specific zoning for a specific albeit related purpose.

57. For what it's worth, on the facts here, the redlined development site is in any event not just an agricultural field - it includes a grid connection that runs extensively along roads.

58. The applicants' misreading is the concoction of a non-existent bright-line rule that means if the existing use is agricultural then the full panoply of the closest and most relevant specific zoning (here, AG) applies.  That isn't what the plan says - on the contrary the plan creates a residual zoning albeit without a specific label which should be construed in keeping with existing authorised uses of the land concerned.

59. The inspector says:

"9.3.6. The site is located in a rural location on agricultural lands which is not covered by any specific land use zoning objective in the development plan."

60. This is not an error as alleged.  There is indeed no "specific" land use zoning objective in the sense meant by the inspector, which obviously means one with a specific label and which is specifically marked on the maps.  What applies instead is the deemed residual objective of use in keeping with the existing authorised use.

61. The absolutely critical point is that stated by the commission in submissions as follows:

" Agricultural use is not the same as the express 'Agriculture (AG)' zoning objective and does not result in the land-use zoning objective 'Agriculture (AG)' being deemed to apply to the lands and therefore the site is not subject to the express zoning objectives under that zoning objective.  In other words, Agriculture (AG) zoning and agricultural use are not necessarily interchangeable and agricultural use of land does not automatically result in Agriculture (AG) zoning and the objectives associated with such zoning."

62. As far as the claim that the commission referring to previous applications (under the heading of policy) is concerned, this reads headings as definitional.  It is not up to an applicant to dictate the form of a challenged decision.  Courts should be familiar with the point that which heading to use in one's decision is often fairly subjective for any given issue which might arise under a number of potential headings.  Clearly previous decisions are relevant potentially to any application as part of the planning history.  They are also relevant to policy not least because they illustrate the application of policy.  They are not irrelevant considerations.  Nor was there any failure to consider anything actually relevant such as the status of the solar farm application - the commission was obviously aware of that.

63. So the applicants haven't made out an error in the reasoning.  The AG zoning simply doesn't apply.  That said, since the inspector recognised, correctly, that no specific zoning label applied, the deemed zoning per the existing authorised use applied by default.  The commission did have regard to the CDP and did not misinterpret it.  Ideally there would have been express reference to that deemed zoning (what the commission, aptly in my view, calls "small 'a' agriculture") but that situation doesn't give rise to grounds for certiorari given that:

(i) the deemed zoning didn't do a whole lot other than recognise the existing authorised use, and in all relevant respects the commission did consider the existing authorised use;

(ii) a solar farm and associated infrastructure is in principle consistent with agricultural use (see also Navan Co-Ownership v. An Bord Pleanála [2016] IEHC 181 (Unreported, High Court, McGovern J., 12 April 2016)), and the developer's planning report positively proposes at 4.13.4 that sheep grazing will continue on the site of the solar farms, something which is by no means unusual if the solar panels can be sufficiently elevated, so on the facts the applicants have not discharged the onus of proof to show that placed in the overall context, the sub-station project should be regarded as fundamentally inconsistent with the agricultural use given that it supports a project which itself is designed to be supportive of and consistent with agricultural uses - akin to the way that for example a recreational structure for farmhouse occupants supports the farmhouse and thus the underlying agricultural activity even though it is not inherently agricultural, so a structure to support the solar farm project will economically support the hybrid solar farm/ sheep grazing land use as an overall project which is part-agricultural; and

(iii) unlike regular planning there is no constraint on departure from a plan set out in s. 182B(5) - the applicants did not contest that and it is clear from the text: see by analogy Ryanair DAC v. An Bord Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February 2025) at §61-62.  A similar logic applies here by analogy under s. 182B.  In that regard, in refusing leapfrog leave to appeal, the Supreme Court said albeit non-precedentially in Ryanair DAC v. An Bord Pleanála [2025] IESCDET 84 (1 July 2025, Charleton, Murray and Collins JJ.):

"18. Section 18(3) of the 2000 Act obliged ABP to 'have regard' to the provisions of the LAP when consider the planning application.  That appears to be the only constraint placed on ABP in considering an application under the Act.  In particular, there appears to be no dispute that section 37 of the 2000 Act applies only to a 'development plan' under section 9(1) of the Act and therefore has no application to LAPS.  ABP can therefore grant permission for a development which would contravene an LAP, provided only that it has appropriate regard to the provisions of the LAP in making its planning assessment.  That is so regardless of whether the contravention involved is 'material' or not.

1. Here, the Inspector and ABP clearly had regard to the relevant provisions of the LAP relating to the provision of aircraft stands.  Even if Ryanair is correct in contending that the statutory obligation 'to have' regard to the LAP brings with it an obligation to correctly interpret it - and it is not necessary to express any view on that point here - the fact is that the High Court Judge expressly held that ABP and its Inspector correctly interpreted the LAP here. ..."

64. Thus the applicants have not overcome the onus of proof to show that the commission, in coming to the decision it did, erred in fact or in law in the manner alleged or at all.

Core ground 2 - overall project

65. Core ground 2 is:

"Core Ground 2: The impugned decision of the Commission is invalid, void, ultra vires, and of no legal effect, insofar as the Commission in granting planning permission for the 220kV AIS electricity substation and associated grid connection acted without proper regard to the Inspector's express recommendation to consider the status of the Ballysallagh Solar Farm (Cork County Council Planning Ref. 24/5630) and/or the submission of the planning authority that the application could be considered premature, which, at the time of the Commission's decision, was undetermined and at Further Information stage (and was subsequently refused by the planning authority), and so failed to have regard to relevant considerations.  The Commission failed to provide reasons for its apparent disregard of the Inspector's recommendation and/or rejection of the submission of the planning authority that the application was premature, in purporting to grant permission.  Further particulars are set out at Part 2 below."

66. The parties' positions as recorded in the statement of case are summarised as follows:

"Applicants' Position

46.       The Commission failed to give consideration and/or reasons in relation to the Inspector's express recommendation that it consider the status of the Ballysallagh Solar Farm application (Cork County Council Ref. 24/5630) before determining the substation application, and to the Planning Authority's submission that the substation and grid connection could be premature.  The Applicants contend that this issue was clearly and repeatedly identified in the material before the Commission: the Planning Authority expressly stated that the development related to enabling infrastructure for a solar farm that remained undetermined and that the issue of prematurity 'shall' be taken into consideration; third-party submissions highlighted concerns arising from the Further Information request in the solar farm application; and the Inspector twice recommended that the Commission consider the status of that application prior to making its decision.  The Inspector further acknowledged the intrinsic interdependence of the substation and the solar farm, noting that one would not proceed without the other.

47.       Neither the Commission's Direction nor its Order addressed the issue of prematurity or the Inspector's recommendation, and also significantly, the Commission's Statement of Opposition contains no positive plea that the matter was considered.  A mere reference to the existence of the solar farm application in the description of development does not amount to consideration of its status, and that the absence of reasons addressing this issue constitutes a failure to take into account relevant considerations and a breach of the statutory obligation to state the main reasons and considerations for the decision.  While accepting that the Commission was not bound to follow the Inspector's recommendation, the Applicants argue that it was required to engage with it and, if departing from it, to explain why, particularly in light of the Planning Authority's submission and the acknowledged interdependence of the developments.  Proceeding on the basis of an undetermined and contested solar farm application involved reliance on speculative assumptions and rendered the decision unlawful.

The Commission's Position

48.       The Commission is the competent authority for approval for an application made under s.182A of the 2000 Act (as was the case here) and, in the performance of these functions, was not constrained by the pending planning permission application before the planning authority or the Commission on appeal.  The Commission was entitled to consider and determine the within application for approval notwithstanding the pending application for planning permission before the Planning Authority (Planning ref: 24/5630), and in so doing the Commission has not acted impermissibly or unlawfully.  The Commission's Decision was made within the legislative framework provided under the dual consent procedure and the said legislative framework has not been challenged by the Applicants.  There is no legislative provision or policy requiring the suspension or deferral of a decision for approval under section 182A pending the decision of the substantive solar farm application or vice versa and there is no provision dictating the timing nor the determination of the applications nor a requirement to simultaneously determine the s.182A application and the solar farm application on appeal.

49.       The Applicants place undue and outsized reliance on the references in the Inspector's Report to the status of the solar farm planning application (planning ref 24/5630)'.  This did not amount to a recommendation not to grant the approval or not to make a decision pending the decision before the Planning Authority.  Furthermore, the Commission was not bound by the outcome of the application, which remained pending when the Commission determined the application for approval which is challenged in these proceedings.  There was no obligation to provide reasons in respect of the recommendation of this nature in the manner as contended for by the Applicants.  The Commission was entitled to follow the overall recommendation of the Inspector granting approval for the Proposed Development and provided reasons for same.  The Commission expressly noted the dual consent obligation and it is clear that the Commission had regard to the fact that there was a pending application.

Ballysallagh's Position

50.       As a matter of fact, the Inspector made a recommendation to approve the section 182A application.  The statutory obligation on the Commission, pursuant to section 182B(5A)(ab) of the 2000 Act, is to give the main reasons for not accepting an inspector's recommendation to 'approve or refuse'.  In this matter, the Commission, following the Inspector's recommendation to approve the proposed development, and as such, section 182B(5A)(ab) is not engaged.  It is clear that the obligation on the Commission to provide reasons for not accepting an Inspector's recommendation under section 182B(5A) does not extend beyond the parameters of the recommendation made by an Inspector as to whether the Commission should approve, or refuse to approve, the proposed electricity transmission development.

51.       Strictly without prejudice to the foregoing, and in any event, the Commission clearly had regard to the Inspector's report, which report including statements, such as, '[p]rior to making any decision in respect of this file, it is recommended the Board consider the status of this planning application and whether any appeal has been received' and, the Council's submissions to the Commission.  It was clear from the documents submitted by Ballysallagh with the application made under section 182A that, as at the date of that application for approval, the planning application in respect of the proposed solar energy development was pending before the Council (e.g., section §1.2 in the Planning and Environmental Statement).  Furthermore, the Commission Order (at page 2) expressly  refers to 'the proposed Ballysallagh Solar Farm (Cork County Council Reference 24/05630)' and, as the Applicants highlight, the Commission Order also refers (at page 5) to 'the dual consent application'.

Applicants' Response to the Commission and Notice Party Position

52.       The Applicants do not contend that the Commission lacked jurisdiction to determine the section 182A application while the Ballysallagh Solar Farm application remained pending.  Rather, the Applicants' complaint is that the Commission failed to engage with a clearly identified and relevant planning issue, namely the prematurity of determining enabling infrastructure for a development which had not yet been assessed or approved.  The Planning Authority expressly raised the issue of prematurity and the Inspector twice recommended that the Commission consider the status of the solar farm application prior to determining the substation application.  In circumstances where the Inspector acknowledged the intrinsic interdependence of the two developments, the Commission was required at minimum to address that issue and explain its approach.  The absence of any reference to the matter in the Direction or Order indicates that the issue was not meaningfully considered.

53.       The Applicants further reject the contention that the Inspector's recommendation was of no relevance merely because the overall recommendation was to grant approval.  The Inspector's report forms a central part of the decision-making record before the Commission and identified a specific matter which the Inspector considered should be taken into account before the Commission reached its decision.  The Applicants do not contend that the Commission was obliged to follow the recommendation, but it was required to engage with it, particularly where the issue had also been raised by the Planning Authority and by third-party submissions.  The statutory obligation to provide the main reasons and considerations for the decision requires the Commission to address such a clearly identified issue where it formed part of the material before it.

54.       The Commission and the Notice Party rely on references in the Order to the solar farm application and to the dual consent process as evidence that the matter was considered.  The Applicants submit that such references do not amount to engagement with the specific issue raised, namely whether it was appropriate to determine the substation application before the status of the solar farm application had been resolved.  A mere descriptive reference to the solar farm does not address the Planning Authority's prematurity submission or the Inspector's recommendation.  In circumstances where the Commission proceeded to grant approval for infrastructure acknowledged to be dependent upon the solar farm, the absence of any reasoning addressing this issue amounts to a failure to consider a relevant matter and a breach of the obligation to state the reasons and considerations for the decision."

67. The complaint that the commission did not have regard to the inspector's report is manifestly unsustainable on the facts given the terms of the decision.

68. The complaint that the commission did not have "proper" regard to the inspector's views is a merits-based disagreement dressed up in ostensibly legal language and not a ground for certiorari.

69. In any event, there was no disagreement with the inspector and no "apparent disregard" of his views.  He recommended a grant of permission, with which the commission agreed.  He added that the commission should "consider the status" of the solar farm application (paras. 1.2 and 9.2.1) - but the commission were aware of that application so obviously did consider it.  The inspector did not state that permission should not be granted until there was a live appeal pending still less a grant for the solar farm - he said that the status should be considered.  The applicants haven't proved any failure to consider anything that needed legally to be considered.

70. Insofar as the applicants' point is to be construed as some claim that it is a breach of some legal requirement to proceed with this application in advance of some other application, the fallacy underlying this argument is that it leads logically to a situation where a developer must have near perfect oversight over the whole project before applying for permission for any part of it.  The Supreme Court has already rejected analogous arguments in Concerned Residents of Treascon where the whole complaint was centred on the fact that the project was consented in part.

71. The applicants concede in submissions that a project can be consented in parts but only if there is "reasonable certainty as to the other aspects proceeding".  Such an implausible bright-line rule is manifestly totally unworkable and sets a developer up to fail from the start.  There will always be something a lot less than reasonable certainty, because each individual consent process has its own integrity and cannot be taken for granted.  The applicants' proposition is as unfounded as saying that a party should not be required to participate in Module I of a court proceeding without reasonable certainty as to the outcome of Module II.  Some things just can't be predicted in the mechanical way implicitly demanded by the applicants' invented new rule.

72. Such an edict would have the effect that only minor stand-alone projects would be lawful and any major project that required multiple consents over a period of time would run into immediate problems and invalidity.  This supposed rule of law comes from nowhere - certainly not the 2000 Act or EU law, and is wholly inconsistent with the recent Supreme Court decision in Concerned Residents of Treascon.  It would cause nationally significant infrastructural development to grind to a halt.

73. In short, there does not need to be reasonable certainty as to other stages of a multi-stage project proceeding before any given stage can be consented - indeed there cannot be such certainty or anything like it.  While it is absolutely clear that the whole project needs to be considered for the purposes of any EIA obligations, it is a matter of evaluation for the decision-taker as to how to consider the question of uncertain elements.  That zone of evaluation includes the right but generally not the obligation to ask how much information if any about the likelihood of such elements is required and what sort of consent if any should be given depending on the answer to that.

74. The total unreality of all of this is illustrated by looking at any given large project.  The HS2 project in the UK (which may cost over £80 billion (https://www.theguardian.com/uk-news/2024/dec/17/cost-of-hs2-estimate-euston))) required 8,276 separate development consents (https://www.bbc.com/news/articles/c9wryxyljglo).  Some imagined "prematurity" rule, concocted out of nothing, that required consents for an overall project to be progressed in tandem or in some abstract rigidly pre-predetermined sequence, would result in a petty-minded provincial mentality, good for the occasional cottage perhaps but totally unworkable for anything of complexity, scale and ambition.  For the courts to go down that road would be a major interference in the rights of other branches of public administration to govern the country.

75. Insofar as the inspector and/or the council could be construed as suggesting consideration of progress on the solar farm first, that is at most evaluative judgement (which the commission is free to depart from), not a legal obligation.  More generally, it is not up to someone objecting to a project to dictate to a developer how permission should be applied for.

76. Furthermore, prematurity arguments lead rapidly to a Mexican standoff.  If two or more consent processes are required, and if any one can be rejected as premature pending one or more of the others, then no multi-stage development could ever get off the ground.  The applicants' ingenuous and reasonable-sounding plea that the solar farm should go first ahead of the grid connection and sub-station can be turned on its head with ease if a developer were to be incautious enough to follow that advice.  Anything a developer does in such a situation can be represented as being in the wrong order.  This rapidly becomes an applicant's logic that the correct order is simply whichever order the developer did not pick in the given case.  The correct legal situation is that projects can be consented in parts, subject to assessment of the overall project if EIA applies.  The term "project-splitting" is potentially misleading or at least problematic because project-splitting is an inherently lawful activity.   It only becomes a problem if it interferes with the application of EU assessment obligations - the decision-taker always has to look at the whole project and consider thresholds accordingly.  Subject to compliance with the EU law requirement to assess the overall development, and to apply thresholds in that overall context, it is up to the developer to decide whether and how to divide the project and if so, to decide the sequence and number of applications for development consent.  That also may, if the decision-maker in her evaluative judgement so decides, involve assessment of what might happen if other parts do not get consent - there are no guarantees and it would be pointless to demand "reasonable certainty" (typically applicants try to set an impossible standard in such matters).  But once the matter has been considered in the round for EIA purposes, each individual application for development consent can be decided on as it is made.

77. The lack of reality to prematurity objections follows from Treascon and is discussed in additional detail in McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 8 July 2025) (at §56); Hoctor & Ors v. An Coimisiún Pleanála [2026] IEHC 65 (Unreported, High Court, 10 February 2026), at §114 and 100 Meter Tall Group  v. An  Bord  Pleanála [2025]  IEHC  42 (Unreported, High Court, 31 January 2025) in particular as to why an obviously poorly-considered and misconceived obiter comment in Ó Gríanna v. An Bord Pleanála & Ors [2014] IEHC 632 (Unreported, High Court, Peart J., 12 December 2014) is not a credible basis to conclude otherwise, noting also that that obiter suggestion failed at the first test and was not even followed by the same judge in Ó Gríanna v. An Bord Pleanála (No. 2) [2015] IEHC 248, 2015 WJSC-HC  22515, [2015]  4  JIC  1606 (Unreported, High  Court, Peart J., 16 April 2015).

78. A final immense irony of all this is that under core ground 3 the applicants place outsize reliance on R. (Ashchurch) v. Tewksbury Borough Council [2023] EWCA Civ 101, [2023] PTSR 1377, [2023] 2 WLUK 87, [2023] Env. L.R. 25 (Andrews, Laing and Warby LJJ.), but that case has the logical consequence that it would be open to a decision-taker to consent part of an overall project even if there was no guarantee that later stages would happen (see para. 64: "it was open to the decision maker to treat the prospective benefits of the wider development as material factors"), thereby completely undercutting the applicants' case under core ground 2.

79. The ultimate reason why the prematurity argument, and indeed the ancillary argument that the commission didn't give reasons for not doing something about the possibility that the solar farm might not be approved, comes down to workability.

80. It is a matter for evaluative judgement as to whether the downsides of leaving phase 1 of a project as a stranded asset, if phase 2 never happens, are such as to warrant express treatment or conditions or something else.  That will vary from case to case - Ashchurch was an extreme case.  It would start tying planning decision-takers in knots if one were to impose some new invented rule that they had to consider (or a fortiori expressly consider) conditions to cover every eventuality.  Applying such a hypothetical rule to the (albeit English but, inconveniently for the applicants, entirely real) case of dealing with the contingencies of 8,276 development consents, and assuming simplistically in favour of the applicants that each consent has a yes/no binary answer, that is 2 8276 permutations, vastly more than the number of atoms in the universe.  If in future people want paradigmatic examples of unworkability in a legal context, the applicants' invented bright-line rule postulating an obligation to consider contingencies, if later stages of a multi-stage consent process are not permitted, will be a valuable addition to the literature.

81. The foregoing being the case, whether to insert such conditions or not is not a "main issue" in the sense of the caselaw requiring main reasons only for main issues, even if counterfactually the inspector had squarely raised it in that way as opposed to being merely something to consider.

82. In any event, all this was is academic in circumstances where the solar farm was later approved.

83. It can finally be pointed out that there is no challenge to the legislation which is clear in its consequences that the two parts of the project are dealt with under separate statutory procedures and by way of separate applications.  That said, it's hard to see how an attempt at a systemic challenge would have got the applicants any further, in the light of the foregoing.

Core ground 3 - misapplication of CDP

84. Core ground 3 is:

"Core Ground 3: The impugned decision of the Commission is invalid, void, ultra vires, and of no legal effect insofar as the Commission erred in law in its application of the Cork County Development Plan objectives in granting planning permission for the proposed 220kV AIS electricity substation and associated grid connection.  In particular, the Commission misapplied and/or failed to have proper regard to Objectives ET 13-14 and ET 13-21 of the CCDP and/or failed to give adequate reasons and/or to engage with the conditional nature of those objectives and/or acted irrationally insofar as it found that such objectives supported the proposed development, where those objectives require that such development (including associated infrastructure) be located at 'appropriate locations' and be 'subject to environmental safeguards' and 'proper planning considerations' in granting permission for a substation that is intrinsically dependent on the Ballysallagh Solar Farm notwithstanding that the solar farm remained at Further Information stage and undetermined/unassessed at the time of the Commission's decision, and in circumstances where the Inspector expressly advised the Commission to consider the status of that application before making any determination and the planning authority considered the application premature.  Further particulars are set out at Part 2 below."

85. The parties' positions as recorded in the statement of case are summarised as follows:

"Applicants' Position

55.       The Applicants submit that the Commission erred in relying on Objectives ET 13-14 and ET 13-21 of the Cork County Development Plan 2022–2028 without regard to their express conditionality, the undetermined status of the Ballysallagh Solar Farm application, and the full range of environmental safeguards required by the Development Plan.  Those objectives support renewable energy and associated infrastructure only at appropriate locations, subject to environmental safeguards, proper planning considerations, and the protection of landscape, heritage, biodiversity, hydrology and ecological interests, including by way of Appropriate Assessment where necessary.  The substation and grid connection by themselves make no contribution to renewable energy and so there was no basis to cite these policies in favour of permission when no permission for the solar farm was granted..  The Applicants submit that the Commission treated these objectives as establishing unqualified policy support, mischaracterised the Inspector's recommendations, and failed to engage with the Inspector's express recognition that the substation and solar farm were intrinsically linked and that the status of the solar farm should be considered prior to determination.  In circumstances where the solar farm remained at Further Information stage and had been identified by the Planning Authority as premature, the Applicants argue that the environmental safeguards required under the objectives could not properly be assessed.

56.       The dual consent process does not dictate the timing of an application nor its determination, which is entirely within the control of the Notice Party and the Commission.  The Notice Party in this instance made the error of lodging the application without coordinating or awaiting the outcome of the solar farm application and the Commission compounded the error by granting consent prior to the determination of the application for the solar farm.  Notwithstanding that it is conceded by the developer (and the Commission) that the substation and grid connection have no intrinsic or planning standalone status from the solar farm, the Commission went ahead and granted the approval and did so, without a condition making commencement of the approval conditional on the grant of permission for the solar farm, in the form of a Grampian condition.  The substation and grid connection have zero planning benefit in the absence of the solar farm and only has [sic ] adverse planning impacts and so it is incapable in themselves of being in accordance with proper planning and sustainable development as was determined by the Commission.

57.       The Applicants further submit that, by granting permission for a substation which has no independent function absent the solar farm, the Commission assumed the acceptability of the solar farm and relied on the benefits of renewable energy promotion without assessing the potential adverse impacts of the wider development.  The Applicants rely on King (Ashchurch) v Tewkesbury Borough Council [2023] EWCA Civ 101 in support of the proposition that it is irrational to attribute weight to contingent benefits of a wider development without considering its potential harms.  The Applicants contend that the Commission's conclusion that the development would not have unacceptable impacts on landscape, biodiversity, cultural heritage or hydrology mischaracterised the status of the project, particularly in light of the Planning Authority's subsequent refusal of the solar farm for reasons including archaeology, visual impact and drainage.  They argue that reliance on prior permissions under a superseded Development Plan was irrelevant, that the Commission failed to engage with the conditionality of Objectives ET 13-14 and ET 13-21 and Section 13.8.5, and that the decision was taken without proper consideration of relevant matters and without adequate reasoning, rendering it irrational, ultra vires and of no legal effect.

The Commission's Position

1. The Commission's assessments and determination in respect of the appropriateness of the location, environmental safeguards and planning considerations and the likely consequences for the proper planning and sustainable development in the area were matters within the competence, expertise and judgement of the Commission.  The absence of an approved solar farm at the time of the decision does not invalidate the Commission's assessments or determinations on those issues and the subsequent refusal of the solar farm by the Planning Authority did not retrospectively invalidate the assessments and determinations of those issues by the Commission as the competent authority for determining an application for approval under section 182A.  The Decision was made within the legislative framework of the dual consent regime and the Commission was entitled to consider and determine the section 182A application as the competent authority notwithstanding the fact that the application for planning permission for the solar farm remained pending at that time before the competent authority for that consent.

59.       The Commission considered the proper planning and sustainable development and clearly did not only recognise the importance of renewable energy but also the associated electricity infrastructure to support transmissions and distribution of this energy to the national grid.  The Commission did not err in considering objectives ET 13-14 and ET 13-21 in support of renewable energy development to justify approval for the substation and grid connection and the Commission did not require the approval of the solar farm planning application before the Planning Authority to permit it to rely on objectives in support of renewable energy development.

Ballysallagh's Position

60.       Contrary to the pleas made by the Applicants at Core Ground 3, the absence of planning permission in respect of the proposed solar energy development as at the date of the Impugned Decision did not result in a deficient assessment of environmental considerations in section 13.8.5 and/or Objectives ET 13-14 of the Development Plan.  The Commission was lawfully entitled to consider and determine the application for approval made to it in respect of the proposed electricity transmission development, notwithstanding that permission had not been granted in respect of the proposed solar energy development.  The Applicants advance no particulars as to the manner in which it is contended that consideration of 'key environmental safeguards' was deficient, and have not adduced any expert evidence to substantiate their pleas in this regard, or to impugn the content of any of the assessments contained in the approval application documentation submitted and/or carried out by the Commission and its Inspector.

61.       The Commission lawfully concluded that the proposed electricity transmission development was consistent with local planning policy and would not have unacceptable environmental impacts.  The fact that the Council decided to refuse permission for the proposed Ballysallagh Solar Farm after the date of the Impugned Decision does not vitiate the assessments carried out by the Commission, or the Impugned Decision (noting that permission for the solar farm was granted on appeal).   It is clear from the Inspector's report that Objectives ET 13-14 and ET 13-21 were adequately considered by the Commission and its Inspector.

Applicants' Response to the Commission and Notice Party Position

62.       The Applicants reject the contention that the matters raised under this ground fall exclusively within the planning judgment of the Commission.  The Applicants' case concerns the legal misapplication of the Development Plan objectives relied upon by the Commission, rather than disagreement with the planning merits of the decision.  Objectives ET 13-14 and ET 13-21 provide policy support for renewable energy development and associated infrastructure only subject to specified conditions, including appropriate location, environmental safeguards and proper planning considerations.  The Applicants submit that the Commission relied upon those objectives as establishing unqualified policy support for the development without engaging with their conditional nature or with the fact that the infrastructure in question has no independent planning function in the absence of the solar farm to which it is intrinsically linked.  The Applicants do not challenge the technical environmental assessments carried out for the substation itself.  The complaint is that the Commission relied upon policy support for renewable energy development derived from the solar farm without assessing the wider development from which those benefits arise.

63.       The Commission and the Notice Party further contend that the pending status of the solar farm application was irrelevant to the Commission's assessment.  The Applicants do not accept that position.  Where the planning justification for the substation and grid connection derives entirely from their role in facilitating a specific solar energy development, the assessment of whether the infrastructure is located at an appropriate location and consistent with environmental safeguards necessarily requires consideration of the wider development of which it forms part.  The Inspector expressly recognised the interdependence between the two developments and advised the Commission to consider the status of the solar farm application prior to determining the matter.  The Commission's failure to address that issue meant that the conditional planning framework within the Development Plan was not properly applied.

64.       The Applicants also reject the submission that the subsequent refusal of the solar farm is irrelevant.  The refusal is not relied upon to retrospectively invalidate the Commission's decision, but rather illustrates the practical consequences of the Commission's failure to address the conditionality of the relevant Development Plan objectives and the interrelationship between the developments.  The Applicants' case is that the Commission attributed weight to the benefits of renewable energy policy while assessing only the adverse impacts of the substation in isolation, notwithstanding that the substation has no planning utility absent the solar farm.  In doing so, the Commission misapplied the relevant policy objectives and failed properly to engage with the planning framework governing renewable energy infrastructure in the Development Plan."

86. Inconsistently with core ground 1, here the applicants in effect complain that the commission did consider the CDP (at 6.2.2 of the inspector's report referencing inter alia policies 13-14 and 13-21).  The applicants' complaint as argued is that the commission did not have regard to what they call the "conditionality" of those policies which they explained as meaning by reference to the question of the location, the lack of certainty as to the solar farm, environmental considerations and proper planning considerations (this also illustrates another general applicant's fallacy - conjuring up a problem and an accompanying idiosyncratic piece of terminology and then attacking the decision-taker or indeed the trial court for not conceptualising matters in precisely those terms).  That is somewhat repetitive of points made under a different heading in previous grounds.  But all of these matters were in fact considered by the commission - they were aware of the agricultural use, the status of the solar farm application, and the environmental and planning issues.  The applicants have not discharged the onus to show any misinterpretation of the CDP or any failure to consider matters the commission should have considered.  The applicants' argument provides no tangible basis to quash the decision in view of the fact that the commission referred to the pro-renewables policies that they were independently required to consider under for example the 2015 Act.  In any event it is not up to an applicant to dictate the form and wording of a decision.  Whether something is, for example, in an "appropriate" location does not, on facts such as these, present any acute issue requiring express treatment separate from the overall planning assessment, which the commission obviously did carry out.

87. As referred to above, the applicants rely on R. (Ashchurch) v Tewksbury Borough Council [2023] EWCA Civ 101, [2023] PTSR 1377, [2023] 2 WLUK 87, [2023] Env. L.R. 25 (Andrews, Laing and Warby LJJ.) at 64, which was a case about a bridge which would have facilitated a housing development.  The problem was that the bridge had contingent benefits in that regard but it also had downsides (such as impacts on listed structures) which would remain even if the contingent benefit did not happen.  The problem was that the planning consideration not only emphasised just the pluses but positively excluded the minuses (emphasis added):

"On a fair reading of the OR, the Planning Officer did place substantial weight on the contingent benefits that, in his assessment, would accrue from the development in Phase 1, and he invited the Committee to do the same.  His overall approach was to invite the Committee to attribute substantial or significant weight to the prospective benefits of the wider development whilst directing them that they must leave out of account entirely any possible harms.  Whilst it was open to the decision maker to treat the prospective benefits of the wider development as material factors, and it is understandable why they did, it was irrational to do so without taking account of any adverse impact that the envisaged development might have, to the extent that it was possible to do so, (which it was, albeit at a high level).  The two go hand in hand; you cannot have one without the other.  Ground 1 is therefore made out."

88. That therefore was an extreme case about exclusion of consideration of a relevant matter.

89. The applicants seek to expand this beyond recognition into a demand that the commission give express consideration to all potential contingencies about future consents including by expressly considering conditioning this project in some appropriate way to take that into account.

90. That demand is not just quasi-legislative and micro-managing, but also quickly unworkable once the number of contingencies starts to accumulate, as discussed above.  It makes no sense for a court to invent such a rule anyway, but it makes even less sense (if that's possible) when it is appreciated that the rule could only work in the simplest cases because the number of contingencies increases exponentially with any increase in the number of stages or permissions required (this is a situation where the increase is literally and not just figuratively exponential in mathematical terms as will have been apparent from the previous discussion).  A rule that is only good for simple cases where it is largely pointless isn't much of a rule, even if there was any valid legal basis for it, which there isn't.

91. The commission makes the point that this argument could apply whichever part of a multi-stage development was consented first, and that the applicants are essentially failing to acknowledge that Catch-22 by suggesting, inconsistently, that the solar farm should have gone first:

"this submission would also presumably apply if a permission for a solar farm was granted but with no substation or grid connection and yet the Applicants commended the approach in Treascon, where the solar farm was granted."

92. Therefore, as to the demand that the commission should have given express consideration to the situation that would occur if this part of the overall project was consented but the rest of it was not, that is a matter for their evaluative judgement based on matters such as the number and nature of potential contingencies, and the irremediable downsides if such a scenario would occur.  The court should not micro-manage planning decision-takers to this level of detail. Ashchurch does not propose a rule for all cases and in any event was an extreme situation because the planning decision-taking process expressly excluded consideration of immediate harms caused by part 1 of the overall project.

93. Ultimately no misapplication of the CDP or other error has been demonstrated by the applicants under this heading as alleged or at all.

Discretion

94. We don't get to discretion having regard to the foregoing but if counterfactually we had, I would have upheld the submissions of the commission:

"68.      ... the Commission was free to grant 'approval', even if there was a material contravention.  Therefore, even if the Applicants are correct on their construction of the Development Plan, relief should be refused on discretionary grounds because of the permissive power in s. 182B of the 2000 Act or, to put it another way, it would not have made a difference.  In that regard, the Court is also entitled to have regard to the nature [of] the development, which is intended to support renewable energy, in the exercise of its discretion: see e.g., Save the South Leinster Way (No.2) [2025] IEHC 541 at §53(ii)(j); Eco Advocacy [2025] IEHC 15 at §147-§156; Massey (No.2) [2025] IEHC 206 at §170)).

69.       In Hoctor v An Coimisiún Pleanála [2026] IEHC 65, which concerned a challenge to a solar development, [the court] also stated (§116) that, if necessary as a matter of domestic law, [it] would exercise discretion against certiorari if counterfactually there was a breach of such law, having regard to the importance of renewable energy in EU law including Directive (EU) 2023/2413 of the European Parliament and of the Council of 18 October 2023 amending Directive (EU) 2018/2001, Regulation (EU) 2018/1999 and Directive 98/70/EC as regards the promotion of energy from renewable sources, and repealing Council Directive (EU) 2015/652 (the 'REDIII Directive')."

95. I would also have upheld the submissions of the notice party on this point:

"III.      DISCRETIONARY FACTORS

84.       It is Ballysallagh's position that all grounds sought by the Applicants should be refused, and as such, that there is no basis upon which the Court should be called upon to consider the exercise of its undoubted discretion to refuse to grant relief, particularly, certiorari.  However, in the event that the High Court concludes that the Applicants have made out one or more of its grounds of challenge (which is not accepted for the reasons set out above), then it is Ballysallagh's position that this court should exercise its discretion to refuse the reliefs sought.

85.       The proposed electricity transmission development is part of a renewable energy project which, when developed, will make a significant contribution towards achieving national climate action targets, including those set out in the Programme for Government 2025 (which commits to achieving a 51% reduction in greenhouse gas emissions from 2018 to 2030 and net-zero emissions no later than 2050) and the  Climate Action Plan 2025 (which includes a legally binding reduction in sectoral emissions by 75% by 2030).

86.       In addition to the proposed electricity transmission development's potentially significant contribution to the achievement of the national climate targets, it offers capacity to address issues identified in relation to security of electricity supply."

96. Of course (as explained earlier in this judgment) the court is not at large in terms of discretion, but one has to factor in at some level the question of proportionality between any breach and the consequences of that.  In the climate emergency context where the need for additional renewable infrastructure is urgent to meet immediate climate targets in the interests of human and other life and avoiding catastrophic change to the environment and the long-term functioning of society, that has to be a factor - in support of values with considerable legal, ECHR, EU, constitutional and international law support, to be weighed against potential errors particularly if they veer towards the technical or procedural end of the spectrum.  That is not to undermine the rule of law - on the contrary, public respect for the law is weakened if technicality is fetishised above real legal values.  Law ultimately is an instrument for governing society, not a doll's house, a parlour game or an end in itself.

Summary

97. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that an applicant's point must be workable in order to warrant the grant of relief;

(ii) applying such law to the facts here, the applicants' demand for reasonable certainty about future stages of a project, or for express consideration of future contingencies and/or conditions in the event of such hypotheticals, is clearly unworkable;

(iii) it is settled law that an applicant must have discharged the onus of proof to establish all facts necessary for relief;

(iv) applying such law to the facts here, the applicants have not shown that the project overall is inconsistent with the existing agricultural use, so the fact that associated elements of it that are modest in scale may in isolation be inconsistent with agriculture must be viewed in that context, and nor have they shown any error in interpretation of the CDP, any failure to consider any necessary matter or any consideration of any irrelevant matter;

(v) it is settled law that interpretation of the plan is a matter for the court in line with the reading taken by the reasonably intelligent non-expert, bearing in mind that a document should be read as making sense rather than nonsense if such a reading is available;

(vi) applying such law to the facts here, the clear meaning of the plan is that the residual zoning in line with current authorised use is distinct from and far less prescriptive than the formal Agricultural AG zoning, and in the absence of anything prescriptive a project such as this cannot be regarded as a material contravention of a general objective to permit existing uses;

(vii) it is settled law that regard but non-compliance with something to which only regard but not compliance has to be had does not give rise to legal infirmity;

(viii) applying such law to the facts here, even if the project is inconsistent with the agricultural use in the sense of the CDP, that does not give rise to invalidity because the commission did not misinterpret the plan and did have regard to it;

(ix) it is settled law that a project can be consented in stages - that being so it axiomatically follows that there will always be some uncertainty about later stages of a multi-stage project requiring future consents, and consideration of how to address that is within the decision-taker's evaluative judgement;

(x) applying such law to the facts here, there is no unlawfulness arising from the sub-station and grid-connection being consented first or otherwise arises under this heading;

(xi) it is settled law that judicial review is a discretionary remedy; and

(xii) applying such law to the facts here, if counter-factually there was an error, it would be disproportionate to quash the permission on the basis of any error of a primarily procedural or technical nature.

Order

98. For the foregoing reasons, it is ordered that:

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by the time and in the manner set out below, the foregoing order be perfected forthwith thereafter on the basis of no order as to costs (including no order as to any reserved or adjourned costs or costs not otherwise dealt with);

(iii) the foregoing proposed order be subject to contrary written legal submission or any consequential application supported by a written legal submission, such submission to be delivered within 7 days, with replies by other parties within a further 7 days;

(iv) for the avoidance of doubt, any unsuccessful application to vary any provisional order as to costs proposed in this judgment may be addressed pursuant to O. 103 r. 40(4) RSC; and

(v) the matter be listed at 09:30 on Monday 27 April 2026 to confirm the foregoing.

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