A Section 132 EIAR Request Is Not a Procedural Straightjacket: Solar Farm Access Tracks Are Not ‘Private Roads’ Triggering Mandatory EIA

1) Introduction

Moss and Ors v An Coimisiun Pleanala and Anor [2026] IEHC 62 is a High Court planning and environment judicial review in which local applicants sought to quash An Coimisiún Pleanála’s grant of permission for a large-scale solar photovoltaic (PV) farm (c. 103.64 ha) with associated battery energy storage (BESS) in Co. Kilkenny. The key legal battleground was whether internal site tracks (c. 5.3 km) could be characterised as “private roads” so as to trigger mandatory EIA under Class 10(dd) of Schedule 5, Part 2 of the Planning and Development Regulations 2001 (as amended), notwithstanding established authority that solar farms are not EIA projects.

A related procedural issue arose because the Commission had initially issued a s. 132 notice requiring an EIAR, but later—after receiving and circulating the developer’s response and submissions—proceeded to decide the appeal without an EIAR. The applicants argued this was ultra vires, unfair, and contrary to public participation rights.

Other grounds (largely unsuccessful at pleading/evidential level) concerned alleged invalidity of the Development Plan (due to an asserted Ministerial “direction”) and alleged invalidity of the planning application documentation/public notices.

Parties

  • Applicants: Susan Moss, Anne Hoek, Anne Lacey, Francis Prendergast, Ned Barron, Paul Davis
  • Respondent: An Coimisiún Pleanála
  • Notice Party: Lightsource Renewable Energy Ireland Limited

Core Issues

  1. EIA trigger: Are internal solar-farm access tracks “private roads” exceeding 2,000m (Class 10(dd)) requiring mandatory EIA?
  2. s. 132 process: Once the Commission issues a s. 132 EIAR notice, is it procedurally bound to insist on an EIAR (or formally “withdraw” the notice) before deciding?
  3. Pleadings/onus: Have the applicants adequately pleaded and proved the alleged defects (including alleged invalidity of notices/maps/drawings)?
  4. Development plan argument: Did reliance on the Kilkenny City and County Development Plan 2021-2027 become unlawful due to a Ministerial intervention?

2) Summary of the Judgment

Humphreys J. dismissed the proceedings in full. In substance, the Court held:

  • It is settled that solar farms are not EIA projects, and the attempt to reclassify internal access tracks as “roads” to force EIA had already been rejected in the case law.
  • The applicants did not establish that the permitted internal tracks were “private roads” within Class 10(dd); they were properly characterised as tracks, not a “road project” for mandatory EIA purposes.
  • The Commission was not procedurally trapped by having issued a s. 132 notice; it could lawfully consider the response and then decide that an EIAR was unnecessary. No formal “withdrawal order” was required.
  • Claims about invalidity of the Development Plan were misconceived (draft direction vs direction) and, critically, unsupported by evidence of reliance on any allegedly inoperative provisions.
  • The “invalid application” arguments failed principally due to inadequate pleadings and failure to discharge the onus of proof.

3) Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A) Solar farms and EIA: closing the “access tracks are roads” side-wind

The Court located the applicants’ EIA argument in a line of authority emphasising that solar farms do not fall within EIA classes simply because they include internal access infrastructure:

  • Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (citing Sweetman v. An Bord Pleanála [2020] IEHC 39 and Kavanagh v. An Bord Pleanála [2020] IEHC 259): relied on as the Court’s starting-point that solar farms are not EIA projects and that attempts to force EIA by reframing ancillary works as “roads” have been rejected.
  • Cummins v An Coimisiún Pleanála [2025] IEHC 521: treated as the closest comparator on the “track versus road” question. The Commission and developer relied on it; Humphreys J. found the tracks here not meaningfully distinguishable and therefore not within Class 10(dd).

B) s. 132 notices: the Commission may reconsider, and may still decide the appeal

  • Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43: cited for the proposition that the statutory scheme (including s. 132/s. 133) does not impose the procedural “straightjacket” suggested by the applicants; the Commission can proceed to determination after considering what was submitted.
  • Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord Pleanála [2022] IESC 30: used in support of the interpretive principle that planning legislation should be construed to produce a workable and coherent regime, not one that forces legally incorrect outcomes due to earlier procedural steps.
  • Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52: invoked as part of the broader proportionality/discretion backdrop and resistance to disproportionate outcomes for technical errors; also supportive of “workable” administration.

C) Judicial review is legality review: restraint, context, and avoiding micro-parsing

The judgment contains an extensive compendium of judicial review principles, deployed to frame (and ultimately defeat) the applicants’ approach as an attempt to re-run merits arguments or over-technical critiques:

  • Sweeney v. Fahy [2014] IESC 50 and the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, plus Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3: foundational authority that judicial review addresses legality not correctness and does not substitute the court’s view for the decision-maker’s.
  • R (Cart) v. Upper Tribunal [2011] UKSC 28: used to warn against dressing factual/merits challenges as legal points.
  • Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 and Sherwin v. An Bord Pleanála [2024] IESC 13: weight and evaluative planning judgment are for the decision-maker; review is generally on irrationality for such matters.
  • M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, Rostas v. DPP [2021] IEHC 60, and St. Margaret's Recycling v. An Bord Pleanála [2024] IEHC 94: decisions should be read sensibly and, where reasonably possible, in a way that sustains validity.
  • O'Sullivan v. Health Service Executive [2023] IESC 11 and O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75: relied upon in the judgment’s discussion of procedure (including the draft judgment process) and a broader caution against importing trial-like procedural expectations into administrative law contexts.

D) Pleading discipline: applicants are confined to their grounds

  • Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42 and Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28: key authorities underpinning the Court’s insistence on specific, workable, properly particularised pleadings—especially in complex EU-heavy planning disputes.
  • People Over Wind & Anor v. An Bord Pleanála & Ors (No. 1) [2015] IEHC 271 and Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2022] IEHC 7: cited for stringent pleading requirements and the proposition that ambiguity does not accrue to an applicant’s benefit.
  • Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38 and Babington v. Minister for Justice Equality and Law Reform & Ors. [2012] IESC 65: deployed against “scattergun” grounds and repetitive formulations that obscure rather than clarify the real complaint.

E) Onus of proof: applicants must prove the factual predicate for relief

  • Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3: cited for the general rule that the burden remains with the applicant.
  • An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8 and the sequence of authorities on evidential burdens in environmental assessment challenges (including Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300, and Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603): used to reinforce that alleged scientific/factual shortcomings must be established by evidence (often expert), not assertion.

F) Discretion and proportionality in remedies

  • Dun Laoghaire Rathdown County Council v. Westwood Club Ltd [2019] IESC 43 and O'Connell v. Behan [2021] IECA 186: cited for the discretionary nature of judicial review remedies.
  • Moore v. Dun Laoghaire Rathdown County Council [2016] IESC 70 and Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52: used to support the proposition that purely technical or inconsequential errors do not necessarily justify quashing.
  • Authorities on invalidity/non-compliance with Regulations not automatically entailing certiorari—Byrnes v. Dublin City Council [2017] IEHC 19 and Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403—feature in the Court’s “even if” discretionary analysis (though the Court ultimately found no established breach).

G) Climate and renewables context (contextual, not a licence to relax legality)

  • The Court situated planning decisions within domestic and EU climate obligations, referencing Coolglass v. ACP [2026] IESC 5 and EU renewables measures (including REDIII), and also noted Verein KlimaSeniorinnen Schweiz and Others v Switzerland as part of the modern rights-based climate context.

3.2 Legal Reasoning

A) The “tracks are roads” argument fails both doctrinally and factually

The applicants’ strategy was to treat an otherwise non-EIA solar farm as a mandatory-EIA project by focusing on the length and construction detail of internal access tracks. Humphreys J. rejected this on two intersecting bases:

  1. Doctrinal coherence: If internal tracks ancillary to non-EIA development were readily reclassified as “private roads”, many developments would be “transmogrified” into EIA projects, contradicting settled authority that solar farms are not EIA projects. The Court’s approach aligns with the “workable interpretation” principle.
  2. Factual/legal characterisation: The permission and inspector’s analysis proceeded on a “stone or crushed stone” finish—consistent with “tracks” rather than roadworks of the Class 10(dd) type. The Court treated Cummins v An Coimisiún Pleanála [2025] IEHC 521 as effectively dispositive on the classification issue.

B) A s. 132 EIAR notice does not bind the Commission to insist on an EIAR

A central practical holding is that the statutory architecture does not compel the Commission to refuse permission merely because it once considered an EIAR “may be necessary” and therefore issued a s. 132 notice. The Court read:

  • s. 132 as a discretionary information-gathering tool (“may be necessary” and “absolute discretion”), not a one-way gate into mandatory EIA.
  • s. 133 as expressly permitting determination “at any time after” the period, having considered what was submitted—consistent with the Commission ultimately concluding that an EIAR was not required.

On this reasoning, there was no legal requirement for a formal “withdrawal” order: the Commission simply determined the appeal on the legally correct basis after considering submissions.

C) Fair procedures and public participation: “options are still open” means minds may change

The Court held that it is inherent in public participation that the decision-maker’s provisional view may change before final decision. Importantly, the applicants’ factual premise (no notice/no opportunity to comment) failed: the developer’s response was circulated to parties, and submissions were invited and made.

D) Development plan challenge: draft direction ≠ direction, and no proven reliance on disputed text

The Court treated the development plan ground as misconceived:

  • There was only a draft direction, not a final ministerial direction.
  • Even at the level of theory, the applicants failed to connect the draft direction to any identifiable unlawful reliance by the Commission.
  • The draft direction concerned wind-energy strategy provisions; solar energy was addressed elsewhere (not the target of the draft direction), undermining relevance.
  • The Court described the applicants’ implied logic as perverse: an intervention seeking more ambitious renewables targets could not sensibly be deployed to invalidate approval of a renewables project.

E) “Invalid application” grounds: pleading and proof failures

The Court’s treatment of the alleged breaches of Articles 17, 18, 19, 22 and 23 is a strict application of pleading and onus principles:

  • Pleading deficiency: The applicants cited multiple provisions but did not specify with sufficient precision which words/requirements were breached and how. The Court noted, for example, that “Articles 17, 18 and 19” comprise a large body of text, and the pleadings did not identify the allegedly infringed sub-requirement.
  • Failure of proof: The Court found that key information (including numbers and dimensions) was, in fact, contained in the application documentation, and that requiring the same granularity in public notices would be unworkable.

3.3 Impact

A) Planning practice: stronger operational clarity on s. 132

The judgment provides practical certainty that:

  • Issuing a s. 132 notice does not lock the Commission into refusing permission if the requested material is not ultimately required as a matter of law.
  • The Commission may correct course mid-process—provided procedural fairness is maintained (here, circulation and opportunity to comment).

B) Renewables consenting: limiting a common litigation tactic

By reasserting that internal access tracks for solar farms are not readily treated as “private roads” for mandatory EIA, the decision narrows a frequently attempted “side-wind” route to EIA for solar developments.

C) Litigation discipline: pleadings and evidence remain decisive

The judgment reinforces that complex regulatory challenges will fail if framed as broad, multi-provision attacks without:

  • clear identification of the alleged breach,
  • a “route-map” from breach to remedy, and
  • evidence sufficient to discharge the burden of proof (often requiring expert input in assessment-related disputes).

4) Complex Concepts Simplified

  • EIA / EIAR: Environmental Impact Assessment is the decision-maker’s assessment process; an Environmental Impact Assessment Report is the developer’s document that typically informs EIA where required.
  • Mandatory EIA thresholds (Class 10(dd)): Certain “private roads” over 2,000m can trigger mandatory EIA. The dispute here was whether internal stone tracks inside a solar farm fit that category.
  • s. 132 notice: A procedural mechanism allowing the Commission to request further information (including potentially an EIAR) if it thinks it may be necessary to decide the appeal. This case confirms it is not irrevocable.
  • Audi alteram partem: The right to be heard. The applicants claimed unfairness, but the Court held they had notice and opportunity to respond to the developer’s position.
  • Presumption of validity & onus of proof: Administrative decisions are presumed lawful unless the challenger proves otherwise; mere assertion is insufficient.
  • Certiorari & discretion: Quashing is not automatic; even where an error is shown (especially a technical one), the court may refuse relief where appropriate—though EU-law errors can constrain that discretion.

5) Conclusion

Moss and Ors v An Coimisiun Pleanala and Anor [2026] IEHC 62 consolidates two practical propositions of real importance in Irish renewables consenting litigation:

  1. Internal solar-farm access tracks are not readily reclassified as “private roads” to trigger mandatory EIA under Class 10(dd), particularly where the works are properly characterised as tracks and align with Cummins v An Coimisiún Pleanála [2025] IEHC 521.
  2. A s. 132 EIAR request does not procedurally bind the Commission to insist on an EIAR; the Commission may lawfully reconsider after receiving submissions and still determine the appeal under s. 133, without the formalism of “withdrawing” the notice.

Beyond renewables, the judgment is also a pointed reminder that judicial review in planning is won or lost on disciplined pleadings, evidence that meets the burden of proof, and legally workable interpretations of procedural powers.