 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Eco Advocacy CLG v An Bord Pleanala (Approved) [2025] IEHC 195 (04 April 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC195.html Cite as: [2025] IEHC 195 |
||
[New search] [Printable PDF version] [Help]
[2025] IEHC 195
THE HIGH COURT
PLANNING & ENVIRONMENT
[H.JR.2024.0000290]
BETWEEN
ECO ADVOCACY CLG
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
STATKRAFT IRELAND LIMITED
NOTICE PARTY
(No. 2)
JUDGMENT of Humphreys J. delivered on Friday the 4th day of April 2025
1. While succeeding in getting declaratory relief and costs in that regard, this applicant did not obtain certiorari of a wind farm development (Eco Advocacy v. An Bord Pleanála (No. 1) [2025] IEHC 15 (Unreported, High Court, 15th January 2025)) for the simple reason that on the facts it didn't provide evidence sufficient to show that the board's reasons for its assessments were defective. Following its failed challenge, the applicant launches an implausible 13 points or sub-points of alleged exceptional public importance (under eight broad headings). The applicant certainly can't be faulted in terms of creativity and tenacity, or in terms of skill in coming up with new angles, but the primary legal question is whether these points properly raise issues of law of public importance suitable for appeal.
(i) The point must properly arise
(a) The question must fall within the pleadings: Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4th July 2024) per Murray J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring).
(b) The question must actually arise on the facts and should not be launched in the abstract: see analogously Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11, [2018] 1 JIC 1603 (Unreported, High Court, 16th January 2018), Donnelly J., para. 10.
(c) The question raised must actually have been argued by the would-be appellant and must not be a new issue formulated for the purposes of an appeal: GOCE Limited v. An Bord Pleanála [2025] IEHC 43 (Unreported, High Court, Farrell J., 31st January 2025).
(d) While not an absolute rule, the question should be determinative in some sense and should make a difference to the outcome - generally it should not be one which, if answered in a sense favourable to the would-be appellant, would leave the result unchanged: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14th November 2016). This is part of a broader principle that prolonging the process by recourse to a further instance can't be based on just identifying some shiny and interesting point - the whole thing has to be going somewhere. O'Donnell J. put this vividly in Rooney v. Minister for Agriculture and Food [2016] IESC 1 (Unreported, Supreme Court, 28th January 2016) at para. 3: "Some litigants, and not just those who represent themselves, prefer the comfort of focusing exclusively on the debatable ruling or judicial comment reinforcing a sense of grievance rather than recognise the forest of problems in the overall case. The cycle continues and becomes almost a form of litigious perpetual motion."
(e) The question must accurately reflect the judgment and must not be an addition, exaggeration or distortion launched for the purposes of creating a case for appeal: Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9, [2023] 1 JIC 1907 (Unreported, High Court, 19th January 2023) per Holland J. at §9(d); Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J.
(f) The application for leave to appeal should be made within time, generally within 28 days from the order to be appealed against: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14th November 2016).
(g) The question should be specific and should identify something specific that makes a difference - it should not be an invitation to an appellate court to write an essay on a particular topic or engage in a discursive, roving response: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14th November 2016); Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J.
(ii) The point must be one of law
(a) The point cannot be an essentially factual question such as construing the import and effect of a particular decision; Leech v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court, 24th March 2025) per Farrell J.
(b) Relatedly, the question should not be one of application of law to particular facts but rather one of the substance, content and interpretation of law. Questions about the application of established principles to particular facts are not pure questions of law and are at best mixed questions of fact and law, and are generally unsuitable for appeal in such a context: B.S. v. Director of Public Prosecutions [2017] IESCDET 134 (Clarke C.J., O'Donnell, McKechnie, MacMenamin, Dunne, Charleton and O'Malley JJ., 6th December 2017); per Simons J. in Halpin v. An Bord Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 (Unreported, High Court, 15th May 2020) (para. 60); per Barniville J. in Rushe v. An Bord Pleanála [2020] IEHC 429, [2020] 8 JIC 3101 (Unreported, High Court, 31st August 2020); per Phelan J. in Stanley v. An Bord Pleanála [2022] IEHC 671, [2022] 11 JIC 2805 (Unreported, High Court, 28th November 2022); Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024); per Farrell J. in Leech v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court, 24th March 2025).
(iii) The point of law must be of public importance
(a) The question must not be fact-specific arising in the particular context of a particular case - rather it must transcend the facts in order to create a point of public importance: see analogously and albeit non-precedentially, Patrick McCaffrey & Sons Limited v. An Bord Pleanála [2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 20th November 2024).
(b) Advancing the proposed question should resolve doubt rather than create doubt where none exists - this is consistent with the views of Baker J. in Ógalas v. An Bord Pleanála [2015] IEHC 205, 2015 WJSC-HC 22497, [2015] 3 JIC 2008 (Unreported, High Court, 20th March 2015) that an appeal may be necessary in the public interest to resolve doubt. But if no doubt exists, the function of the appeal mechanism is not to introduce new uncertainty into the system. Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 (Unreported, High Court, 10th January 2025) endorsed a submission that "where the law is not uncertain, the public interest suggests an appeal is not warranted".
(c) The application for leave to appeal should engage with the rationale of the judgment being appealed against and provide a plausible basis as to why that judgment is wrong to the level that meets the criteria for an appeal. While a leave to appeal application is in one sense premised on the view that the decision may be incorrect, that does not relieve a would-be appellant from actually engaging with the logic and reasoning of the judgment as opposed to merely repeating his or her position: see analogously and non-precedentially, Nagle View Turbine Aware v. An Bord Pleanála [2025] IESCDET 41 (O'Malley, Murray and Donnelly JJ. 10th March 2025).
(d) The fact that an official body is seeking leave to appeal is a relevant factor (Sherwin v. An Bord Pleanála (No. 2) [2023] IEHC 232, [2023] 5 JIC 0802 (Unreported, High Court, 8th May 2023)) but the mere fact that the request for leave to appeal is made by an official entity does not convert a point into one being suitable for appeal if it would not otherwise be so. As pointed out in Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J., a body concerned that it is bound by a decided issue is the whole point - the system is not a one-way ratchet whereby only applicants are bound by caselaw.
(e) The fact that a point is "novel" is not determinative as to whether a point is suitable for the granting of a certificate, or to put matters another way, the mere fact that a point is novel does not render it a suitable basis for appeal if it would not otherwise be so: Callaghan v. An Bord Pleanála [2015] IEHC 493, 2015 WJSC-HC 4417, [2015] 7 JIC 2405 (Unreported, High Court, Costello J., 24th July 2015). And as Hyland J. observed in Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209, [2023] 3 JIC 1307 (Unreported, High Court, 13th March 2023) at §27: "the mere fact that an applicant for leave disagrees with a conclusion in the judgment cannot be relied upon to characterise the state of the law as being uncertain".
(f) The mere inclusion of a request for a reference to the CJEU does not convert a point into one suitable for appeal if it is otherwise unsuitable for appeal by reason of being abstract, or not arising having regard to the findings of fact, or being an issue of application of law rather than interpretation, or due to lacking sufficient factual foundation or due to there not being any demonstrable reasonable doubt, for example: see analogously Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8 (Charleton, Collins and Donnelly JJ., 27th January 2025); Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27th January 2025).
(iv) The public importance must be exceptional
If the would-be appellant establishes that there is a point of law of public importance, it must also be established that the importance is exceptional.
(v) An appeal must be in the public interest
(a) The context is the objective of the Oireachtas in seeking finality, certainty and expedition in challenges brought by way of judicial review in planning cases (Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231, [2022] 4 JIC 2601 (Unreported, High Court, 26th April 2022) per Barniville J. at para. 32; Freeney v. An Bord Pleanála [2025] IEHC 36 (Unreported, High Court, 24th January 2025) per Bradley J). The nature of the project and the risks of further delay are factors going to the requirement that an appeal must be in the public interest: see per McGovern J. in Dunnes Stores v. An Bord Pleanála [2015] IEHC 387, 2015 WJSC-HC 6876, [2015] 6 JIC 1805 (Unreported, High Court, 18th June 2015) at §15 and §16. See also analogously and non-precedentially Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024) at para. 24: "The Court must have regard to the potential impact upon the notice party of any further delay in these proceedings".
(b) Any assertion of problems in practice caused by a judgment must be backed up with evidence: see Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J., and, relevant by analogy, albeit non-precedentially, Phoenix Rock Enterprises v. An Bord Pleanála & Ors [2023] IESCDET 97 (Dunne, Baker and Donnelly JJ., 20th July 2023) at §22 and §30 dealt with an argument that alleged uncertainty in the law was creating alleged difficulties in practice, but rejected this on the basis that there was "no evidence before the High Court that the quarry industry was being seriously affected by the issues in the case", and that "[t]he decision in this case was fact-specific to this quarry and it must be recalled that the role of the Supreme Court on an Article 34 appeal is not to give advisory opinions but to deal with the controversy at issue between the parties once the constitutional thresholds have been met". See also McCaffrey v. An Bord Pleanála [2024] IEHC 476 (Unreported, High Court, Gearty J., 26th July 2024) at §3.7, leave to appeal refused McCaffrey v. An Bord Pleanála [2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 29th November 2024).
3. Contextually, perhaps I can point out that if there is a solid case for leave to appeal, it will presumably be granted - see R.A. v. Refugee Appeals Tribunal [2015] IEHC 830 (Unreported, High Court, 21st December 2015); B.W. v. Refugee Appeals Tribunal [2015] IEHC 833 (Unreported, High Court, 21st December 2015); K.R.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 421 (Unreported, High Court, 24th June 2016); S.T.E. v. Minister for Justice and Equality [2016] IEHC 544 (Unreported, High Court, 14th October 2016); R.A. v. Refugee Appeals Tribunal (No. 3) [2016] IEHC 671 (Unreported, High Court, 21st November 2016); B.S. (India) & Anor. v. Minister for Justice and Equality & Ors. (No. 3) [2020] IEHC 485, [2020] 10 JIC 1202 (Unreported, High Court, 12th October 2020); Sweetman v. An Bord Pleanála (Sweetman XVII) (No. 2) [2021] IEHC 662, [2021] 10 JIC 2601 (Unreported, High Court, 26th October 2021); Dublin City Council v. An Bord Pleanála (No. 2) [2021] IEHC 34 (Unreported, High Court, 28th January 2021); Waltham Abbey Residents Association v. An Bord Pleanála [2021] IEHC 597, [2021] 10 JIC 0702 (Unreported, High Court, 7th October 2021); Save Roscam Peninsula CLG v. An Bord Pleanála (No. 2) [2022] IEHC 328, [2022] 6 JIC 0903 (Unreported, High Court, 9th June 2022); Joyce-Kemper v. An Bord Pleanála (No. 5) [2022] IEHC 349 (Unreported, High Court, 10th June 2022); Kerins v. An Bord Pleanála (No. 5) [2023] IEHC 280 (Unreported, High Court, 25th May 2023); Coolglass v. An Bord Pleanála [2025] IEHC 1 (Unreported, High Court, 10th January 2025). It does not necessarily assist matters to certify superfluous issues that do not meet the necessary criteria.
4. The applicant's proposed questions are as follows:
(i) "Must An Bord Pleanála demonstrate in its decision on an appeal that it has taken account of a submission by the Minister advising the planning authority that the developer's screening for Appropriate Assessment was not supported by best scientific evidence and expressing concerns that the impacts of a proposed development on the conservation objectives of a European Site had not been assessed and if so, how must this be done?"
(ii) "Is it necessary for the Board to address in its reasons for screening out a development for AA, the opinions to the contrary and or any reasonable doubts expressed in an expert scientific opinion (or at least make a determination that such doubts are not reasonable or scientific) if it has decided to grant permission notwithstanding the existence of such a doubt or opinion?"
(iii) "Is there an obligation on a member of the public concerned to engage one or more scientific experts to give evidence on their behalf if they wish to subsequently challenge the AA screening, an/or should the public be entitled to rely on the scientific expert opinion of a prescribed public body (or other participants) that the very low threshold has been crossed, without having its own expert 'prove' its veracity?"
(iv) A composite question:
(a) "Is it within the jurisdiction of the High Court to place a stay on an order for costs and include in such costs order a provision that if 'unsuccessful steps' are taken in respect of an appeal that a respondent could apply to the High Court for a set off of those costs against the order of costs now made?
(b) In this context what is meant by 'unsuccessful steps'?
(c) Does the High Court have jurisdiction to make orders for costs 'occasioned by such steps' at appellate level?
(d) Does the High Court have jurisdiction to order that 'those costs be set off against the costs now ordered in favour of the applicant' after such appeal has been determined?
(e) Is the operation of such a penalty consonant with the public participation provisions of the Aarhus Convention and/or EIA Directive?"
(v) Another composite question:
(a) "What, if any, discretion does the High Court have to refuse relief on the basis of an alleged failure on the part of the Applicant to show evidentially that additional assessment (i.e. stage 2 AA) would have made any difference, the disproportionate impact on the developer, and the applicant's failure to raise the relevant issues in its submissions to the decision- maker?
(b) Is it necessary for the Applicant to establish evidentially that additional assessment would have made any difference and, how could this be done without necessarily including material not already before the decision maker?"
(vi) "Is it within the inherent jurisdiction of the High Court to release to the public written legal submissions in a different manner to the process specified in PD101 and or without any prior notification to the author(s) of those written legal submissions, and in particular is it within the jurisdiction of the High Court to append written legal submissions of one party to a judgment?"
(vii) "Is it within the inherent jurisdiction of the High Court and or the meaning of Order 123 of the Superior Court Rules, for a Judge of the High Court to release to the public (as an appendix to his judgment or otherwise) a copy of the Digital Audio Recording ('DAR') of the proceedings, without any application having been made to the Court by any party, by motion on notice or otherwise, and without the matter having been raised in Court during the trial of the matter?"
(viii) "In the circumstances of this case, the complexity of the issues and the extent of the applicable law is it in accordance natural and Constitutional justice and in particular with Article 34(1) of the Constitution and/or the Public Participation Provisions of the Aarhus Convention and the EIA Directive to impose a 105 minute limit on the Applicant's oral submissions, thereby requiring the Applicant to confine itself in oral argument only to its best points and to 'identify (without being obliged to open in full) the key supporting material and the route-map from the material to the relief being requested, give those points one's best shot, briefly neutralise the points put up by the other side, and then sit down'?"
5. Many of the points clearly can't properly arise at this stage, either because they represent a significant reprogramming of the pleaded case, raise points never argued, or misrepresent the substantive decision.
6. In the context of the first three questions, the applicant is seeking to make further legal arguments above and beyond its pleaded case. As the notice party submits:
"the Applicant for the first time equates the submission from the NPWS as being from the Minister and refers to article 27(5) and article 48 of SI 477/2011. These arguments were not advanced by the Applicant in the Statement of Grounds and cannot now form the basis of an application for a certificate for leave to appeal."
7. The board is correct to contend that this heading should be rejected as a basis for appeal:
"What is striking is that Points 1 and 2 seek to re-argue points rejected by the CJEU in Case C-721/21 Eco Advocacy (where similar demands for narrative, point by-point replies to submissions were rejected by the CJEU at §31-§43).
...
Points 1, 2, 3 and 5 do not reflect a correct understanding of the decision of the High Court (Monkstown Road Residents Association [2023] IEHC 9 at §8(d) and are therefore not appropriate for certification.
...
10. Points 1, 2, 3 and 5 concern arguments that the Court rejected by way of conventional application of well-established legal principles and the relevant case law in a AA context to the particular facts of the case, and questions about the application of established principles to particular facts are unsuitable for appeal in the s.50A(7) context (Nagle View (No.2) [2025] IEHC 3 at §9(iii); Concerned Residents of Treascon [2023] IEHC 112 at §12).
11. Points 1, 2, 3 and 5 are a clear example of the intending appellant having lost in the High Court on the basis of the application of clear and well-established principles to the facts of the case and then positing their unsuccessful view of the law (itself advanced on factual assertions that the Applicant failed to evidentially establish) as indicating uncertainty in the law's application. The points are inappropriate for certification for this reason also (Carrownagowan (No.3) [2024] IEHC 549 at §27; Maguire (no.2) [2023] IEHC 209 at §27).
12. As noted above, a further reason to refuse a certificate on Points 1 and 2 is that both points in substance are based on non-factual premises that fail to accurately reflect the actual evidence and findings of the Court in its judgment in this case relative to Core Ground 2, and merely re-argue points rejected by the CJEU in Case C-721/21 Eco Advocacy (where similar demands for narrative, point by-point replies to submissions were rejected by the CJEU at §31-§43). As noted in 100 Meter Tall Group [2025] IEHC 42 at §196, 'What the CJEU decided in Eco Advocacy was that the board didn't need to dispel doubt on a point-by-point, party-by-party basis, but rather it needs to provide reasons sufficient to explain that the decision doesn't create reasonable scientific doubt as to impact on European sites.' Further, as noted at §196 in that case, and of equal application here as regards Points 1 and 2 in particular:
'198. It follows from the CJEU decision in Eco Advocacy that the board doesn't have to expressly respond to any specific submission. That seems to be the piece that the applicants here don't take on board.'"
8. As the notice party points out:
"15. The [first] question raised simply does not arise on the facts of the case where the Inspector had regard to the NPWS Second Observation, which was on the Board file. The Inspector clearly recorded the submissions of the prescribed bodies and engaged with the issues raised. The Board's Order also records that, in respect of Appropriate Assessment, the Board considered 'all other relevant submissions'. ...
18. Question 2 relates to the requirement to give reasons for screening out a development for the purpose of Appropriate Assessment. The case law on this issue is clear and established and was applied by the Court in this case. As such the question is inappropriate for certification.
19. The question also fails to reflect the actual evidence and the Court findings and seeks to re-argue a requirement for a narrative point-by-point reply to submissions that has been rejected by the CJEU in Case C-721/21 Eco Advocacy."
9. The fourth heading is about the terms of a provisional order as to costs (and it was provisional - expressly subject to submissions, which weren't made) which would simply provide for liberty to apply in relation to set-off or non-prohibitively expensive (NPE) costs. The way to challenge such an order is to make contrary submissions in relation to the provisional order, or simply to argue against such an order in the event of an application, not to claim that a provisional order for liberty to apply is impermissible in principle.
10. The notice party summarises the position correctly:
"26. There are number of reasons why proposed questions 4 to 8 fail to satisfy the statutory test for certification. Firstly, no order in the terms provided for in §173(ii)(e) of the Judgment has in fact been made. Paragraph 173(ii) states that 'unless any party applies by written legal submissions by 22nd January 2025' the court would make the following order. While the Court did proceed to make an Order along the terms specified in §173(ii)(e) of the Judgment same was vacated by agreement of the parties on the 27 January 2025 and as such no Order has in fact been made. Furthermore, the Applicant did not make any written submissions as to the proposed order contained in §173(ii)(e)
27. Secondly, the questions sought to be certified do not arise out of the 'decision' of the High Court. While the proposed costs order is referred to in the judgment, the Court did not consider the question of costs in the judgment nor was there any argument in respect of the costs issue. Instead, any argument as to the costs issue was to be done via written submissions as is evident from §173(ii)(e) and same was not availed of by any party.
28. Thirdly, the Board in its Written Submissions has indicated that it will not seek any potential 'set off' in respect of costs and as such the issue simply does not arise."
11. The applicant complains that even the possibility of set-off is a disincentive to an appeal. That isn't the issue. At the level of principle the point is that the Aarhus Convention doesn't automatically provide for a complete free ride for applicants no matter what. If an applicant obtains some costs but then causes opposing parties to incur further costs unnecessarily, it is not at all obvious that such a waste of costs should be consequence-free. The rules are already unbalanced enough against opposing parties and there is no obvious reason why they should be made even more unbalanced by immunising an applicant against possible set-off. The applicant here characterises that as penalisation, but of course it isn't penalisation. It is applying some form of costs incentive to assist the prevention of inflicting unnecessary costs on other parties. Anyway it is all academic because all that was provided for was a provisional order which wasn't taken up. Had it been taken up in some way there would have been an opportunity for discussion of such issues.
12. Order 99 r. 6 RSC allows for set-off. If this were ever to have been applied here, a costs order would first have had to be made against the applicant, and then an application to set off could be brought. That is all theoretical at this stage because the opposing parties didn't take up the option so the provisional order isn't going to be made. This is an argument about something which, at most, I thought about doing, but in the end didn't do.
13. The board is correct to say:
"16. Point 4 seeks a roving advisory opinion on 5 abstract sub-questions, none of which arise on the facts and/or are purely hypothetical as the Board is not seeking an order for costs or a set-off costs order against the Applicant in these proceedings.
17. A general advisory opinion on what are hypothetical abstract questions is unnecessary and not a point of law in respect of which certification is required (Clonres CLG [2022] IEHC 42 at §17; YY v. The Minister for Justice and Equality (No.2) [2017] IEHC 185 at §65; Patrick McCaffrey & Sons Ltd [2024] IEHC 476 at §3.2 and §3.8).
18. Point 4 is also not appropriate for certification as it would not actually be determinative of the proceedings at all. It is a point which would leave the result of the case unchanged. Point 4 raises no dispute the resolution of which in the posited appeal is capable of leading to the reversal or variation of the order made by the High Court refusing certiorari of the Board's Decision (Monkstown Road [2023] IEHC 9 at §8e and the case law cited).
19. Further, insofar as concerns set-off costs orders in cases to which costs protection applies, there is no uncertainty in the law regarding same - no uncertainty is demonstrated and there are no conflicting decisions. Uncertainty cannot be imputed to the law simply by raising a question as to the point of law (Patrick McCaffrey & Sons Ltd [2024] IEHC 476 at §2.8). Indeed, such set-off orders can and in fact have been made in a context where equivalent costs protection applies. In a s.160 planning injunction context - in a case where costs protection under the 2011 Act was held to apply - see the set-off costs order made by Simons J. in Kelly Dunne & Ors v. Guessford Ltd T/A Oxigen Environmental [2022] IEHC 427.
20. There is also provision made for costs orders against Applicants in cases to which s.50B of the 2000 Act applies under subsection (3) which 'allows the awarding of costs against a party in derogation from the costs protection afforded by s. 50B(1)' (per Holland J. in EPUK Investments Limited v. Environmental Protection Agency [2023] IEHC 138 at §14). Further, as the Court stated in Rafferty v. An Bord Pleanála [2025] IEHC 19 at §46(ii):
'Section 50B(3)(b) of the 2000 Act gives the court a jurisdiction to award costs against a party who makes an unsuccessful application or otherwise causes other parties to incur costs unnecessarily, even if the party concerned has not acted frivolously or vexatiously, abused the process, or acted in contempt of court. That applies equally to opposing parties that act in a way that adds to the costs of an applicant (being an applicant that obtains relief ultimately), as it would apply to costs of failed or unnecessary applications or steps by an otherwise winning applicant (thus allowing the court to award such costs by way of set off against the applicant's substantive costs, but (for the avoidance of doubt) not set-off to create a prohibitively expensive negative balance).'
21. In addition, as noted in Malone v. GCHL Ltd. [2025] IEHC 83 at §33 "the interpretative obligation in the context of the NPE (and Aarhus) and the provisions of the 2011 Act allows a court in an appropriate case to award costs, or a portion of costs, against an applicant or plaintiff'."
14. The fifth heading about discretion is about an obiter point so can't properly arise as a basis for appeal. The applicant failed on the merits, and discretion was only a fall-back issue on an in-case-I-am-wrong basis. So it can't be a plausible basis for an appeal.
15. As the notice party says (emphasis added):
"the questions do not arise where the Court did not refuse relief in the exercise of its discretion."
16. In any event the points under the first group of questions apply here. Also, as the board points out (emphasis added):
"13. Point 5 (which comprises two questions) is also not appropriate for certification because (i) it comprises a request for general advisory opinions, which is not appropriate for certification (Clonres CLG [2022] IEHC 42 at §17; YY v. The Minister for Justice and Equality (No.2) [2017] IEHC 185 at §65; McCaffrey & Sons [2024] IEHC 476 at §3.2 and §3.8), and (ii) there is no uncertainty in the law in relation either of two questions, and uncertainty cannot be imputed to the law simply by raising a question as to the point of law (McCaffrey & Sons [2024] IEHC 476 at §2.80, yet that is precisely what the Applicant is doing by way of the two questions posited at Point 5.
14. Further, while the Applicant omits to refer to it, and albeit non-precedential, of note is what the Supreme Court said recently in refusing leave to appeal in Carrownagowan [2025] IESCDET 9 at §20 and §21:
'As regards the High Court's refusal of relief on the basis that the error made in the screening for AA was "harmless", it is well-established as a matter of Irish law that, where a decision is challenged in judicial review proceedings, not every error on the part of a decision-maker will result in the quashing of that decision.
[... ]
[21] The Applicants have not identified any arguable basis for contending that EU law compels a different approach, whether by reference to the provisions of the Habitats Directive, the jurisprudence of the CJEU or otherwise. On the contrary, Altrip - which was concerned with the EIA Directive - clearly indicates that not every "defect" will necessarily have consequences that can possibly affect the purport of a decision to approve a development: §49.'
15. Further as regards Point 5, there is no conflict between the Court's judgment and the judgment in Kelly v. An Bord Pleanála [2014] IEHC 400 as the Applicant incorrectly asserts. This should be rejected as a similar attempt was rejected in Carrownagowan [2024] IEHC 549 at §61 et seq
'61. The applicants then make an utterly contrived point that "[t]he approach taken in the Judgment differs from the approach of Holland J in Stapleton [v. An Bord Pleanála [2024] IEHC 3, [2024] 2 JIC 1305 (Unreported, High Court, Holland J., 13th February 2024)], §213" and indeed is "irreconcilable" with Stapleton (para. 34 of submissions). This is straight from the Appellant's Playbook 101 - asserting a conflict of jurisprudence is virtually required practice for would-be appellants, in order to enable thundering rhetoric along the lines that "an appeal is necessary to reconcile conflicting High Court decisions".
62. But the whole thing is threadbare. There is no conflict in High Court jurisprudence - indeed the jurisprudence is remarkably consistent. [...] Perhaps the unstated collective applicants' policy is not to take no for an answer and to keep seeking leave to appeal on reasons in case after case until further notice.
63. The applicants have made no attempt to reconcile the cases or even properly explain why they can't be reconciled. Anything they don't like the sound of is condemned as wrong and irreconcilable with other cases. Luckily for everyone else, that isn't how the common law method works.
65. [...] There will always be differences of emphasis or phraseology between one judge and another. If the existence of such differences is the test for jurisprudential conflict and uncertainty then there is no test. There can be no body of law either - just a series of atomised individual cases jockeying against each other in a perpetual war of all against all.
66. As the board correctly submits here:
'... there is no contradiction between the Court's judgment and the judgment in Stapleton [2024] IEHC 3 at §213 or the Supreme Court judgments in Balz and Connelly. The suggestion that there is (§§29-34 of the Applicant's submissions) is contrived and advanced to impute uncertainty in the law where none exists.''"
17. The only substantive questions are the first three, which in one way or another seek to revisit the decision of the CJEU in the judgment of 15 June 2023, Eco Advocacy CLG v An Bord Pleanála, C-721/21, ECLI:EU:C:2023:477. The whole point is that the purpose of the reference procedure under art. 267 TFEU is to get a definitive answer, not to spark off a whole new bout of wheedling and renegotiation. There isn't any doubt here - the position has been definitively clarified by the CJEU. Any errors, if one wants to see errors, are those of application of the law to specific facts. The third (and fifth) questions fail to account for the established law that the onus of proof is on an applicant. These questions (and many of the others including the eighth heading) are clearly totally fact-specific.
18. So these are not in fact pure questions of law to begin with but only ones of application. The other points don't relate to the actual merits of the grant or otherwise of certiorari.
19. The points are not ones of any public importance. The first three are totally fact-specific, as just noted.
20. The fourth and fifth headings never get off the starting blocks for the reasons set out above.
21. The sixth and seventh issues are very odd indeed. The applicant itself said at one point - expressly (as can be seen on the digital audio recording transcript (DAR)) - that the DAR would bear out its claims about the use of time. In such circumstances it is contradictory for the applicant to complain about publication of the DAR. Likewise for submissions - the applicant's repeated challenges to the alleged unfairness of the procedures adopted as well as to the practice direction necessitated an exercise to demonstrate that there had been a reasonable opportunity for the applicant to make its point, and to provide sufficient detail for that to be assessed by the reader. The applicant says that mentioning the submission would have been enough, but unfortunately it wouldn't. That would be asking the reader to take my word for it, but given the way the applicant represented the trial management issue, the only plausible way in which the factual position could have been put beyond doubt was to set out the full texts. If this applicant hadn't made such an extraordinary issue of the (non-existent) prevention of an opportunity to make its point, then such an exercise wouldn't have been necessary on my part - indeed it would never have occurred to me. The applicant complained that it didn't know why the submissions were published but that is a misconceived complaint. The reason is obvious and is explained in the judgment. The applicant's submissions claim at para. 79 that "The larger part of this judgment concerns a matter which was not pleaded or argued in court or in written submissions by the parties". It would be absolutely wonderful if that were true but unfortunately it isn't - and indeed the publication of the DAR establishes that beyond even an unreasonable doubt. The applicant majored on a complaint that it wasn't being given an opportunity to make its point - that and that alone explains why I dealt with it in the judgment and set out the materials that would demonstrate the position beyond question. An applicant can't on the one hand complain that it hasn't been able to make its point, canvass, expressly and in advance, the option of taking that to a higher court, condemn the trial court for applying allegedly "unfair and perverse" procedures set out in a practice direction that is said in effect to be a mere nothing that "nobody voted for", and complain that it is considering challenging such a practice direction, and at the same time assert that the trial court is somehow debarred from demonstrating the total and utter inaccuracy of all of that in a definitive manner by setting out the materials actually put forward. That just isn't logical. Fairness isn't a one-way street that applies to the benefit of this applicant alone.
22. Ultimately, the materials before the court are in the control of the court concerned. So publication of them, if considered appropriate by the court concerned, is in principle within that court's jurisdiction. For good measure we live in a democratic, transparent age where access is, if not the norm, certainly something that isn't in itself objectionable without more. The complaint about intellectual property is unfortunately misconceived in a forensic context (see e.g., s. 71(1) of the Copyright and Related Rights Act 2000). Anyway the whole concern, if you want to call it that, is very difficult to understand - surely the applicant should welcome the opportunity to showcase its points by the full publication of its arguments and material. Why not consider it as free advertising?
23. The applicant's reliance on practice directions and rules of court regarding publication of submissions and the DAR are misconceived as those procedures don't apply to the court considering it necessary and appropriate to publish material itself. Anyone unclear as to why I came to that conclusion should just read the DAR.
24. The applicant began its oral submission on leave to appeal by listing out a series of subjective complaints about its disappointment with the substantive judgment. My own view was that that wasn't a particularly productive procedure and nor did it have any legitimate forensic purpose that I could immediately identify. A litigant can have such a view of course - there is no obligation to agree with judgments and I have no problem with the applicant disagreeing with this one - but it's not conspicuously apparent that it is helpful or even appropriate to articulate that to the court concerned. Also arguably relevant is the fact that the frolic of criticising the court wasn't set out in the written submissions, which it could easily have been, and which would have allowed the opposing parties to reply properly to it.
25. The applicant seemed to suggest that the relevance of the CJEU judgment in Eco Advocacy hadn't been made clear and somehow wasn't relied on by the opposing parties and so reliance on it by me was somehow not cricket - all of this is a misconception. Eco Advocacy was expressly relied on by the board and was included in the book of authorities. It was hard to keep up with the volley of complaints but they more or less concluded with the argument that if the position wasn't clear to the lawyers for the applicant then the position was objectively unclear. That was the point when the mask slipped, so to speak - this applicant seems to be still unable to accept the ramifications of having lost its earlier case in the CJEU as to the extent of reasons for appropriate assessment (AA). The underlying fallacy was exposed long ago by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, [2006] 7 JIC 1302 (Unreported, High Court, 13th July 2006), at para. 9: "'Uncertainty' cannot be 'imputed' to the law by an applicant simply raising a question as to the point of law".
26. Speaking of the applicant's lawyers (who on any view must be recognised as having left no stone unturned for their client), the applicant incorrectly identifies its lawyers with their client by postulating that the rejection of its points or doing so by reference to the written or oral submissions made somehow makes its lawyers look bad. That isn't the case - that's why we have the cab rank rule. Lawyers are often called on to make arguments that are unlikely to be upheld - this is one such case. Rudyard Kipling's poem "If -" (1895) could have been composed with the legal profession in mind. If it helps I certainly amn't trying to make anybody look bad, and if it also helps can I make the obvious point that I value the contributions of all voices in the list, whether parties or their representatives, and whether I happen to agree with them in any given case or not, the present case included (that isn't post hoc - I said as much at the hearing, as the DAR confirms). Nor do I think setting out the DAR or the submissions or both does in fact make the applicant or its lawyers look bad as alleged or at all - indeed I imagine there are as many observers who will positively admire the chutzpah of the approach adopted as would beg to differ from it. The applicant also made the contradictory complaint that publishing submissions in whole or in part identified lawyers with their clients - but it doesn't, either at all or any more than they are already linked to their clients by reason of the fact of appearing in the first place. Publication of full text isn't going to be a regular procedure. That's because parties don't regularly make unfounded complaints of unfairness that necessitate publication of the materials to conclusively demonstrate the contrary. If people don't want the latter that's perhaps understandable but they shouldn't necessitate that by engaging in the former.
27. The board is correct to submit:
"23. Point 6 is not a point of law at all, still less one of exceptional public importance that satisfies the cumulative threshold for certification under s.50A(7) of the 2000 Act. The written submissions of parties in judicial review are routinely quoted in the body of judgments - outside of the 'process specified in Practice Direction 101' (which Practice Direction doesn't override or constrain the inherent jurisdiction of the Court, and in any event it's not an issue as to jurisdiction in the sense that Point 6 incorrectly asserts). Indeed, sometimes written submissions are quoted extensively in judgments if a court considers that appropriate in the particular context... The Applicant's complaint therefore appears to be really one as to the extent to which the written submissions are cited (i.e. in full) but that is without substance, as at its height it amounts to a complaint about the extent to which something was done that is permissible to do (and the Applicant has failed to demonstrate that any unlawfulness or procedural impropriety arises at all on the point)."
28. And:
"24. Point 7 is also not appropriate for certification as it would not actually be determinative of the proceedings at all. It is a point which would leave the result of the case unchanged. Point 7 raises no dispute the resolution of which in the posited appeal is capable of leading to the reversal or variation of the order made by the High Court refusing certiorari of the Board's Decision (Monkstown Road [2023] IEHC 9 at §8e and the case law cited).
25. Further, the 'correct application' of Order 123 RSC is not an issue in this case and cannot be a basis for a certificate.
26. Point 7 is not a point of law at all, still less one of exceptional public importance that satisfies the cumulative threshold for certification under s.50A(7) of the 2000 Act. Extracts from the Digital Audio Recording (DAR) of proceedings have been quoted in the body of judgments, as are transcripts of a hearing in terms of a Court quoting what has been said by lawyers at the hearing of the case in oral legal submission. There is no point of law arising from any of the foregoing matters at all. Again, the Applicant's complaint therefore appears to be really one as to the extent to which the DAR is referenced, but that is without substance, as at its height, it likewise amounts to a complaint about the extent to which something was done that is permissible to do (and the Applicant has failed to demonstrate that any unlawfulness or procedural impropriety arises at all on the point).
27. Further, it is not accepted that the judgment is inaccurate in the manner the Applicant contends in advancing Point 7. Rather, the Applicants now proffer a retrospective subjective interpretation of what was said at the hearing via legal submission all of which the Court can determine having regard to the transcript. Even if that were an inaccuracy as contended, it is simply not a basis for a certificate for leave to appeal."
29. To put the whole thing in a slightly different way, one point that gets made in the context of assessing the quality of reasons in a decision is that a major influencing factor is the nature of the material put before the decision-taker, particularly by the person subsequently complaining. The present case is simply that principle writ large. It was the nature of the submissions made - and in particular the repeated, lengthy, strenuous and wholly unfounded complaints about various matters such as the alleged lack of opportunity to make its point - that determined the texture of the substantive judgment. The submissions and complaints launched were totally within the control of the applicant, so it isn't a legally valid procedure to now complain that I dealt with those in the judgment in what I considered to be the most definitive matter possible and in a way that would leave it to the reader to be able to assess for herself rather than filter it through a summary or through my version of matters.
30. The eighth issue - whether there should have been a time limit on the oral hearing in the manner determined - is fully dealt with in the judgment. The applicant hasn't even begun to attempt to demonstrate that the points made there are not valid or even to acknowledge those points and the legal basis set out for them. Provision for time limits is supported by considerable Supreme Court authority. And finally, although this won't appear important to those who haven't lived through the hearing, there's something rather forlorn about the fact that the question is framed on the incorrect premise of a 105-minute time allocation where that was only the initial allocation and not the final provision of 2 hours for the applicant overall.
31. Contextually, the expedited procedure has proved to be not just increasingly popular but an absolutely indispensable tool in practice for progressing the caseload of the Planning & Environment Court. Management of the court's List in even the most minimally acceptable way would be impossible without it. Condemning it in the manner this applicant has chosen to adopt can't be said to be a balanced and holistic assessment when placed in such a context.
32. The notice party's summary is valid (emphasis added):
"37. Question 13 relates to the 'expedited hearing procedure' and the time allocation provided to the Applicant. However, a fact not referred to by the Applicant, is that all parties had to abide by the time allocation. This meant that the Board and the Notice Party had 50% of the overall allotted time - the Applicant having the remaining 50%. Neither the Board nor the Notice Party complained as to their allocation of time. This is not surprising given that the case only raised two Core Grounds, one relating to a publication requirement and whether same went to certiorari or declaratory relief, an issue which had been considered by the Court previously (see in particular §87 of the Judgment which refers to the case law on this point). Furthermore, the Applicant was permitted to file additional submissions over and above what is generally provided for. This is a feature of the expedited procedure and is provided for in the Practice Direction.
38. The Applicant's reliance on Klohn v An Bord Pleanála [2017] IESC 11 is misplaced in circumstances where the hearing proceeded by way of oral hearing and not on the papers. ..."
33. The board submits (emphasis added):
"29. The Applicant's complaints about the expedited hearing procedure in relation to oral hearing time were fully considered by the Court in an objective, fair, reasonable and accurate manner (at §50 to §59, pages 5 to 20) and rejected as unfounded, as summarised at §172:
'(i) The complaint about inadequate time for the oral hearing was unfounded - taking the applicant's opportunities to make its case together by way of a combination of written material and oral presentation, the applicant had a reasonable opportunity to put forward its case overall.'
30. Respectfully, there is nothing in Point 8 at all and it falls far short of the cumulative threshold for a certificate for leave to appeal pursuant to s.50A(7).
31. It is respectfully submitted that the Applicant does not have a monopoly on fairness. There is no basis at all to the suggestion in Point 8 that the conduct of the hearing was in some sense not in accordance with provisions of the Constitution, or the Aarhus Convention or EIA Directive. Both the Board and the Notice Party were able to present their case by oral legal submissions within the time allocated as well as per the written submissions, and additional written submissions and further short oral hearing that the Court afforded all the parties. An example of the fairness, latitude and facility extended by the Court to the Applicant is apparent from pages 19 (§15.82) and 20 of the judgment:
'To illustrate the situation one can turn to the annexes to this judgment which set out the applicant's ten opportunities to make its case - its grounding affidavit, statement of grounds (superseded by the amended statement), the supplemental affidavit, three sets of submissions, the summary in the statement of case, and three listing days, albeit that the middle date wasn't particularly substantive. [...]
[59] The punchline is that no injustice is done to a party by not allowing that party to keep talking for as long as they see fit, as long as they have had a reasonable opportunity to set out their case, whether in writing, orally, or a combination of both, as directed by the court. This applicant has had such an opportunity.'
32. It is not accepted that the manner in which the Applicant elected to conduct these proceedings gives rise to point of law that requires appellate clarification, which in substance is what Point 8 involves."
34. The final point to be made is that any request for extended time is something to be addressed in a reasoned way when the trial date is fixed, which happens in tandem with a time allocation. Once a date is fixed, it is fixed for a particular time period, and other matters whether sittings or something else are then structured and diaried around that time period, by both the court and by all other trial participants. Making such a complaint on the day of the hearing that has been so fixed is - obviously - totally disruptive and procedurally chaotic as well as being unfair to all others involved in the hearing. Even given that, I didn't completely reject that demand but explored reasonable flexibilities, which the applicant wasn't particularly open to. Reinforcing all of this is the fact that on the second listing date the applicant agreed to an additional 30 minute hearing to top matters up (publication of the DAR was necessary to demonstrate that, given what happened next), and yet when the date came around, the applicant again launched strident objections on the day itself. That isn't the correct procedure, to put it mildly. The whole constellation of complaint now stirred up by the applicant needs a serious reality check.
35. This doesn't arise having regard to the foregoing.
36. Even if I am wrong under the heading of there being a proper point of law of public importance, let alone exceptional public importance, the public interest test is not satisfied. The claim of practical difficulties caused by the judgment is evidence-free and meritless. And more broadly, as the developer submits:
"39. The delay involved in an appeal would tend to defeat the public interest in the expeditious determination of judicial reviews brought under section 50 of the 2000 Act. The High Court in Glancré Teoranta acknowledged that it was the intention of the legislature that most planning cases will be determined in the High Court and that an appeal will remain the exception:
'It is clear that the statutory regime which has been devised by the legislature indicates an interest to ensure that the planning process is not to be hampered by a completely unrestricted access to the court which may cause harmful delays. I am satisfied that it is a restriction to be lifted only in exceptional cases.'
40. In Arklow Holidays Ltd v An Bord Pleanála [2007] 4 IR 112, while the Court was satisfied that one of the points of law which the applicant sought to be certified was a point of law of exceptional public importance, the Court nonetheless refused the application as it was not in the public interest to grant a certificate. In considering the public interest, the Court considered the nature of the development and the consequences of further delay:
'24 However, in the light of the authorities to which I have been referred, it seems to me that I must ask a further question which is as to whether it is, nonetheless, in the public interest to grant the certificate sought. I have come to the view that it is not. The public interest, in an issue such as this, needs to take into account the nature of the development proposed and the potential consequences of a significant further delay in the matter being finally disposed of before the courts. While it is undoubtedly the case that issues and questions concerning the public nature of the project involved are not necessarily decisive (it would be wrong to say that the public importance of the project concerned must necessarily outweigh all other considerations in the case), such factors are, nonetheless, in my view, matters which have to be taken into account by the court in assessing whether it is in the public interest to grant the certificate. Having regard, on the one hand, to the importance of the issue raised by counsel on behalf of the applicant and, on the other hand, to the importance of the project and the consequences of the likely delay that would be incurred, I have come to the view that it would not be in the public interest to grant a certificate notwithstanding my finding that the point of law raised by counsel on behalf of the applicant is a point of law of exceptional public importance.'
41. The nature of the project, in this case a windfarm development, and the risks of further delay are factors going to the public interest. This particular issue was considered by the High Court (Humphreys J) in an application for a certificate for leave to appeal that arose in the case of Nagle View Turbine Aware Group No. 2 v An Bord Pleanála [2025] IEHC 3):
'26. On the contrary, the public interest is strongly the other way. The development will provide significant renewable energy in line with local, regional, national and EU policy, backed up by legal instruments referred to in the No. 1 judgment. In the context of the climate emergency and of the need for energy independence in the light of the Russian Federation's full-scale criminal war of aggression against Ukraine, I agree with the notice party that "it is directly relevant that EU law has recognised renewable energy projects as being in the overriding public interest" as stated in 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. So public interest in favour of such projects has a legal and not merely a policy basis.
27. These proceedings have delayed the project by almost a full year so far (with further delay a virtual certainty as a result of the inevitable application for leapfrog leave to appeal, an application that will take time to determine either way). There is no convincing counterbalancing reason why an appeal would be in the public interest at all, let alone in such a way as to outweigh the damage to the public interest of further delay in the matter. ...'
42. The same applies with equal force to this case and the application for a certificate for leave to appeal should be refused on the basis that an appeal is not 'desirable in the public interest'."
37. There is a further fact-specific reason relevant here which is the very lengthy delay that this specific project has already suffered. The planning application was made on 17th February 2020, so we are now more than five years on. Especially in a climate emergency context, but in any commercial context, further delay will cause irremediable prejudice that can't be compensated for in costs by reason of the Aarhus Convention.
38. An extraordinarily popular delusion in modern society is that there are simple answers to complex questions. It is just a fact of life that that problem arises a lot when it comes to opinionated comment on procedures in the Planning & Environment Court. What those commentators don't seem to be capable of understanding is that if the simple answers were so great we would have thought of them already. The applicant here makes a simple demand - more time for the hearing. The answer is, of course - sure, that's a simple answer, but it comes at a cost - if all cases have longer hearings, fewer cases are going to get heard and all cases are going to have to wait longer for a hearing date. There are, I'm afraid, no solutions, only trade-offs, even accepting that reasonable people could debate the trade-offs. That's the evaluative judgement that is inherent in the process of managing anything (the concept of anything includes the Planning & Environment Court). The best that can be achieved is to have certain default approaches (not unilaterally imposed but arrived at following consultation), with parties free to agree variations or, in default of agreement, to request variations in the context of an ordered, rational discussion. The pretence that there are pat answers to the problem of time allocation or any other procedural issue is the flaw in the applicant's complaint here, although as I say the applicant by no means alone in succumbing to the fallacy of the glib solution.
39. Ultimately, whatever one thinks of the procedures or their application in this this or any case, behind it all is a developer who is attempting to put in place renewable energy infrastructure that in principle is urgently needed as part of the response to the climate emergency. Obviously, like any decision, if the permission is flawed the court should address that, but here there is no evidence that it is flawed - that's the public interest issue in two sentences. At some point the system needs to bring that point to the centre of the discussion rather than indulge excessively in procedural peripheralities and satellite process points.
40. What's notable about the present application is that like all previous iterations of this case, of which there are many (the 10 previous versions of its position are set out in the substantive judgment - each at best subtly different and at worst radically reprogrammed) the applicant has mutated its points again into a whole fresh battery of problems and issues, mostly never before raised in the current format. That isn't the way the process is meant to work.
41. This case is relatively simple despite everything - to repeat, the applicant - who benefitted from winning in the proceedings on the claim for a declaration - didn't obtain certiorari because on the facts it didn't provide evidence sufficient to show that the board's reasons for its assessments were defective.
42. The applicant's technique has been to obscure that straightforward problem, to mutate its case at every turn, and to revel in starting side bush-fires to generate new points - a bomb-throwing, shape-shifting process that has reached a climax in the current baroque list of complaints which bears virtually no recognisable relationship to the original pleaded case. That isn't a process that should be indulged by the grant of leave to appeal.
43. O'Donnell J.'s comment in Rooney v. Minister for Agriculture and Food [2016] IESC 1 at para. 3, quoted above, could have been formulated for this case: "Some litigants ... prefer the comfort of focusing exclusively on the debatable ruling or judicial comment reinforcing a sense of grievance rather than recognise the forest of problems in the overall case. The cycle continues and becomes almost a form of litigious perpetual motion".
44. In the present case, the perpetual motion machine is spinning at full tilt - amidst the smoke and sirens, and the control panel lights furiously flashing red, the applicant has somehow managed to manufacture 13 points for appeal. The couple of points that ostensibly relate to the validity of the impugned permission (all being points that are knocked on the head by the judgment of the CJEU in previous proceedings by the same applicant, but leave that aside for now) are dwarfed by 10 process points that weren't even a dot on the radar prior to the hearing. Of those 10, seven of them are about issues that don't in fact arise on any possible view - a costs approach I was thinking of taking but didn't, and a discretion issue which I didn't need to get to because the application failed on the merits.
45. As the board submits (written submissions para. 1):
"The Board does not propose to match the length of the Applicant's submissions but relies on what was said in Nagle View (No.2) [2025] IEHC 3 at §30(i):
'the questions are based on non-factual premises that either mis-state the facts, do not arise in the present case, cannot be pursued given the absence of a factual foundation and the applicant's failure to produce evidence establishing its propositions, run contrary to established law (such as on the burden of proof), include unpleaded points, incorrectly characterise the judgment and/or are impermissibly vague'"
46. Ultimately, the application overall is an attempt to revisit matters already covered by apex authority, including:
(i) the context that the climate emergency represents a critical risk to human and natural life on earth - Friends of the Irish Environment v. Government of Ireland [2020] IESC 49, [2021] 3 IR 1, [2020] 2 ILRM 233, [2020] 7 JIC 3107; KlimaSeniorinnen Schweiz and Others v Switzerland (9 April 2024, App. no. 53600/20);
(ii) the substantive issue of the extent of reasons in the AA process - judgment of 15 June 2023, Eco Advocacy CLG v An Bord Pleanála, C-721/21, ECLI:EU:C:2023:477;
(iii) the onus of proof remains on the applicant at all times - per Denham J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 at p. 743; 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. at para. 116;
(iv) judicial review is not an appeal on the merits - per Denham J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 at p. 743; per Clarke J. (McKechnie and Dunne JJ. concurring) in Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31st July 2014) at paras. 3.8-3.15;
(v) the obligation to comply with the habitats directive is one for the decision-taker (subject to review) - judgment of 7 November 2018, Holohan v An Bord Pleanála, C-461/17, ECLI:EU:C:2018:883 at para. 44;
(vi) the onus of proof to show, normally by evidence, or demonstrating a flaw on face of material) that AA/EIA was defective lies on the applicant - An Taisce v. An Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 IR 173, [2022] 1 ILRM 281 per Hogan J. at para. 124;
(vii) in the absence of cross-examination any conflict of evidence must be resolved against the party bearing 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;
(viii) 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., 22nd February 2024);
(ix) "an order of certiorari is always, as a matter of principle, discretionary" - Fennelly J. in De Róiste v. Minister for Defence [2001] IESC 4, [2001] 1 IR 190 at 220; see also Waltham Abbey/ Pembroke Road Association v. An Bord Pleanála & Ors. [2022] IESC 30, [2022] 2 ILRM 417, [2022] 7 JIC 0401 (Hogan J.) at §53;
(x) case management directions attract a high degree of deference for appellate purposes - per Clarke J. (Denham C.J. and Hardiman J. concurring) in Dowling v. Minister for Finance [2012] IESC 32 (Unreported, Supreme Court, 24th May 2012) at para. 3.1;
(xi) the fixing of time limits for submissions is within the scope of legitimate case management - Defender v. HSBC France [2020] IESC 37 (Unreported, Supreme Court, 3rd July 2020), Charleton J. (O'Donnell, Dunne, O'Malley and Baker JJ. concurring) at para. 5; Denham J. in O'Reilly McCabe v. Minister for Justice & Patrick Cusack Smith & Co (Agents of Thomas McCabe, Ward of Court & Minor) [2009] IESC 52, [2009] 7 JIC 0701 (Unreported, Supreme Court, 7th July 2009) at para. 33; Charleton J. (Denham C.J. and Hardiman J. concurring) in Talbot v. Hermitage Golf Club & Ors. [2014] IESC 57 (Unreported, Supreme Court, 9th October 2014); Tracey v. Burton [2016] IESC 16, 2016 WJSC-SC 24045, [2016] 4 JIC 2501 (Unreported, Supreme Court, 26th April 2016), MacMenamin J. at para. 45;
(xii) "comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end" - per Hardiman J. in Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 290, [2004] 12 JIC 0306 at para. 13;
(xiii) "We live in an era of case management, when a serious attempt is being made to deal with all litigation, civil or criminal, in an efficient manner" - per Hardiman J. in Cruise v. Judge O'Donnell [2007] IESC 67, [2008] 3 IR 230, [2007] 12 JIC 2018; and
(xiv) "Judges are entitled to move cases on, to ask for and to enforce reasonable time limits" - O'Sullivan v. Ireland [2019] IESC 33, [2020] 1 I.R. 413, [2019] 5 JIC 2301, per Charleton J. at 40.
47. The substantive judgment applies the foregoing to the facts here. Again, if one insists on error, any errors are of application only. The smokescreen of legal questions now raised is obviously an artificial exercise.
48. For the foregoing reasons, it is ordered that:
(i) the application for leave to appeal be dismissed;
(ii) in the event that an application for leapfrog leave to appeal is made and acceded to by the Supreme Court, the costs of the leave to appeal application be costs in that appeal;
(iii) otherwise, there be no order as to the costs of the leave to appeal application;
(iv) in the event of an application for leapfrog leave to appeal being acceded to, there be a stay on the execution of costs already ordered until the final determination of the proceedings; and
(v) the foregoing order and the order already pronounced in the substantive judgment at para. 173(i) and (ii)(b), (c) and (d) be perfected forthwith with no further listing as the final order of the High Court in the proceedings.