Clancy & Anor v An Bord Pleanála & Ors [2025] IEHC 528:
Limits on EU Environmental and Transposition Challenges at the Compulsory Purchase Order Stage After Unchallenged Part 8 Development Consents

1. Introduction

This judgment of Farrell J in Clancy & Anor v An Bord Pleanála & Ors ([2025] IEHC 528) is the third major High Court ruling arising from the Ennistymon “Blake’s Corner” inner relief road project. It is important for at least three reasons:

• It sharply defines the limits of using a challenge to a compulsory purchase order (“CPO”) as a vehicle to revisit environmental and habitats issues that should have been raised at the earlier development consent stage.
• It re‑states, and applies strictly, the law on late amendments to judicial review pleadings, particularly where FOI material is relied upon to re‑engineer a case long after proceedings have issued.
• It clarifies the distinction between “multi‑stage” development consent (as discussed in King v An Bord Pleanála [2024] IEHC 6) and the much more common situation where a CPO follows an unchallenged development consent.

The case arises from Clare County Council’s decision to acquire compulsorily the applicants’ family home and long‑standing flower shop in Ennistymon to facilitate a road safety scheme and inner relief road, including a new bridge upstream of the existing Michael Conway Bridge at Blake’s Corner.

The applicants sought (i) leave to apply for judicial review to quash An Bord Pleanála’s confirmation of the CPO; (ii) extensive late amendments to their already amended grounds, largely to introduce EU environmental and transposition arguments; (iii) costs protection; and (iv) to resist an application for wasted costs arising from an earlier adjournment. Farrell J refused leave, refused the amendments, but made no order for wasted costs.

The key doctrinal contribution of the judgment can be summarised as follows:

Where a local authority road scheme has been authorised in advance by an unchallenged Part 8 decision under s.179 of the Planning and Development Act 2000, a subsequent CPO to acquire land for that scheme:

• is not itself a “development consent” or part of a “multi‑stage” consent for the purposes of the EIA Directive or the Habitats Directive; and
• cannot be used as a platform to re‑open, out of time, challenges to environmental assessment, appropriate assessment or alleged failures of transposition that should have been raised against the original development consent.

2. Factual and Procedural Background

2.1 The project and the CPO

The underlying project is the “N67/N85 Inner Relief Road, Ennistymon (Blake’s Corner)”, involving:

• Construction of an inner relief road in Ennistymon;
• Construction of a new vehicular bridge over the Inagh/Cullinagh River, approximately 80 metres upstream of the existing bridge;
• Associated works including the pedestrianisation of the existing Michael Conway Bridge.

The applicants’ family home and business premises fall within the lands to be acquired compulsorily. The CPO was made by Clare County Council on 12 June 2020 and confirmed by An Bord Pleanála on 20 September 2022, following an oral hearing.

2.2 Part 8 development consent and prior environmental screening

Critically for the judgment’s reasoning:

• The Council had already decided, on 9 April 2018, under the Part 8 procedure (s.179 of the 2000 Act and Part 8 of the 2001 Regulations) to authorise the road scheme and new bridge.
• That Part 8 decision is unchallenged.
• Before the Part 8 decision, An Bord Pleanála had in 2016 issued screening decisions (references ABP 03.HD0037 and 03.JM0013) concluding that:
  • a full Environmental Impact Assessment (EIA) was not required; and
  • a Natura Impact Statement (NIS) was not required.
• The EIA screening report referred to “pedestrian enhancements” on the Michael Conway Bridge.
• Those 2016 screening decisions were also not challenged.

The applicants had actively participated in the Part 8 process; their February 2018 submissions (exhibited as SC6) showed that they were aware of the scheme and sought access to relevant documents at that time.

2.3 Commencement and evolution of the judicial review

Judicial review proceedings were commenced on 14 November 2022. By order of Humphreys J on that date, the applicants were permitted to amend their statement of grounds, with an Amended Statement of Grounds filed on 12 January 2023.

The case had already generated two earlier written judgments by Humphreys J, both on costs protection:

• Clancy v An Bord Pleanála (No. 1) [2023] IEHC 233
• Clancy v An Bord Pleanála (No. 2) [2023] IEHC 464

Meenan J directed that the leave application be brought on notice. The substantive on‑notice leave hearing was scheduled for 23 November 2023.

2.4 FOI request and adjournment

On 12 September 2023, almost ten months after the proceedings were issued, the first named applicant sought documents from An Bord Pleanála under the Freedom of Information Act. The material obtained included records relating to the Part 8 process (concluded in 2018).

On 23 November 2023, the leave hearing was adjourned at the applicants’ request, to allow them to assimilate the FOI material. The Board and State respondents acquiesced in the adjournment.

2.5 The November 2024 applications

On 12 November 2024, four applications came before the Court:

1. Liberty to amend the (already amended) Statement of Grounds, to introduce:
   • New EU law grounds involving the Habitats Directive, EIA Directive and alleged non‑transposition;
   • Additional constitutional and proportionality arguments; and
   • Detailed reference to the FOI material.
2. Leave to apply for judicial review, on both the existing and proposed amended grounds.
3. A further application by the applicants for costs protection (on an outstanding issue after the two earlier judgments of Humphreys J).
4. An application by Clare County Council (“the Council”) for wasted costs associated with the adjourned November 2023 hearing date.

Although An Bord Pleanála and the State did not oppose the grant of leave on the existing pleaded grounds (subject to full reservation of their position at the substantive stage), the Council – as developer and acquiring authority – opposed leave outright and sought dismissal of the proceedings, relying on Ballyboden Tidy Towns Group v An Bord Pleanála [2024] IESC 4.

3. Summary of the Judgment

3.1 Outcome in brief

Farrell J determined the case on three main fronts:

• Amendments refused: The proposed “Amended Amended Statement of Grounds” amounted, collectively, to an impermissible attempt to re‑program the entire case, introducing a new set of EU law and transposition challenges without a sufficient explanation for the delay and in circumstances giving rise to irremediable prejudice to the public interest in road safety.
• Leave to seek judicial review refused: Even assuming (contrary to her conclusion) that the amendments could be allowed, none of the pleaded or proposed grounds – domestic or EU – reached the statutory threshold of “substantial grounds” (or even basic arguability where that lower test might apply) for challenging the Board’s confirmation of the CPO or for mounting a legislative transposition challenge.
• No order as to wasted costs: Notwithstanding the Council’s application, the Court declined to order wasted costs in respect of the adjourned November 2023 hearing, largely because of the applicants’ interim costs protection and the respondents’ failure to object to the adjournment.

Accordingly:

• The application to amend was refused;
• The application for leave to seek judicial review was dismissed;
• No order was made as to the costs of the adjourned hearing;
• The case was listed for 3 November 2025 for any consequential orders.

3.2 Central legal holdings

Key holdings include:

• The Clancys’ attempt to rely on FOI material obtained in late 2023 to reshape their case did not meet the three‑fold test for amendment: arguability, explanation, and absence of irremediable prejudice (BW v RAT [2017] IECA 296).
• Where a project has already been authorised under the Part 8 process and that development consent is unchallenged, a subsequent CPO is not part of a “multi‑stage development consent” for EU environmental law purposes. The CPO does not reopen, and cannot modify, the environmental or habitats evaluation for the project (Dunne and King distinguished).
• The Board’s confirmation of a CPO does not itself extinguish public rights of way; it merely approves a potential future order by the local authority to that effect. Any challenge to extinction of rights of way is premature until such an order is actually made.
• Allegations that the statutory scheme for CPO fails to transpose Article 6 of the Habitats Directive must be pleaded with precision, in compliance with Order 84 r.20(3) RSC. Generalised assertions are insufficient (Concerned Residents of Treascon; Sweetman; Rushe followed).
• Constitutional complaints about compensation cannot ground a challenge to the Board’s decision where:
  • the Board has no jurisdiction over compensation at CPO confirmation stage; and
  • the alleged constitutional infirmities are unparticularised.
• Given the road safety nature of the project, the balance of justice and the risk of irremediable prejudice to the public weighed strongly against allowing late amendments that would further delay implementation.

4. Detailed Analysis

4.1 The law on amendment of judicial review grounds

4.1.1 The three‑limb test

At para. 13, Farrell J restates the now well‑established test for the amendment of pleadings in judicial review:

“It is well established that amendment of pleadings requires three elements – arguability, explanation and lack of irremediable prejudice: BW v. RAT [2017] IECA 296.”

She also emphasises the courts’ reluctance to permit “extensive reprogramming of an entire case” by amendment, citing:

• O’Lone v An Bord Pleanála [2023] IEHC 136
• Sherwin v An Bord Pleanála [2023] IEHC 26 (Humphreys J), applying Keegan v GSOC [2012] 2 IR 570 on limits of prejudice arguments.
• Sweetman v An Bord Pleanála [2007] IEHC 153 (Clarke J), discussed by Collins J in North Westmeath Turbine Action Group v An Bord Pleanála [2022] IECA 126.
• Hewitt v HSE [2016] IECA 194 (Hogan J), citing Dunne J in Farrell v Coffey [2009] IEHC 537.

The key message from this line of authority, as applied here, is:

• Amendment is not a device for starting a new case late in the day.
• New grounds must be reasonably related to the original case, or else justify an extension of time for a new challenge to a different decision.

4.1.2 Were the proposed amendments a “new case”?

The proposed amendments:

• Added fresh EU law grounds (1A, 1B, 1C) challenging:
  • an alleged failure to carry out appropriate assessment (AA) or screening for AA in relation to the extinguishment of public rights of way;
  • an alleged failure to remedy supposed earlier failures to conduct proper AA at the Part 8 / screening stage; and
  • an alleged failure of the Housing Act 1966 / Roads Act 1993 / Planning Act 2000 regime to transpose Article 6 of the Habitats Directive.
• Expanded proportionality and constitutional rights arguments under Domestic Core Ground 2.
• Inserted a lengthy factual recital about FOI materials obtained in November 2023.

Farrell J concludes (para. 14) that the amendments:

“go well beyond permissible adjustment and collectively introduce what amounts to an entirely new case.”

Where amendments introduce “a separate decision” or a ground not “reasonably related” to the original grounds, the applicant must show:

• a “good and sufficient reason” for failing to bring proceedings in time against that earlier decision.

Here, the real target of the new EU law complaints was the 2018 Part 8 consent and the 2016 screening decisions – decisions never challenged and now long out of time.

4.1.3 The FOI material and lack of explanation

The applicants argued that they only discovered the Council’s true intentions in relation to aspects of the scheme (notably at 2015 stage) when they received FOI material on 20 November 2023. The Court rejects this as a justification:

• The Part 8 process concluded in April 2018; its documentation was publicly available and, with reasonable diligence, could have been examined before initiating proceedings (para. 15).
• The applicants had in fact made detailed submissions during the Part 8 process (February 2018), indicating both knowledge of and engagement with the scheme.
• The FOI request was only made on 12 September 2023, almost ten months after the proceedings commenced; no explanation was given for that delay (para. 17).

Farrell J is explicit (paras. 15–17) that:

• The question is not whether the applicants were subjectively aware of the Part 8 details, but whether they could reasonably have become aware within the time limits.
• Seeking information a year into a judicial review, in a field with strict time limits, cannot rescue an applicant from the consequences of delay.

4.1.4 The irremediable prejudice and road safety

In a particularly important passage on prejudice (para. 33), the Court emphasises the public interest dimension:

“[T]he one major factor that the Applicants do not acknowledge … is the significant public interest in the project as a matter of road safety. Where a project is designed for safety purposes, allowing claims to be made that potentially delay or complicate the project creates a risk of irremediable prejudice, in particular of death or injury at an unsafe location.”

The Court stresses that:

• Assessing such risk is primarily for the statutory authorities, consistent with the separation of powers.
• The Part 8 development approval, which accepted the project’s safety rationale, stands unchallenged.
• Further delay by permitting expansive amendments would “give rise to irremediable prejudice” and, in any event, the balance of justice weighed against it.

On this basis, and on the arguability and explanation grounds, the application to amend was refused (para. 34).

4.2 The CPO stage versus the development consent stage

4.2.1 The King distinction: multi‑stage development consent

A central debate in the case was whether the CPO confirmation in this case formed part of a “multi‑stage development consent” process such that EU environmental requirements (EIA and AA) applied directly to the CPO decision, as argued by the applicants by analogy with King v An Bord Pleanála [2024] IEHC 6 (Simons J).

In King, a CPO for a flood relief scheme had been made before the project received development consent. Simons J treated the CPO as arguably forming part of a multi‑stage consent process, triggering EU law obligations (including potential costs protection) at the CPO stage because the CPO would significantly constrain design options before consent was granted.

Farrell J carefully distinguishes King (paras. 19–22):

• In some cases a CPO made in advance of development consent can materially constrain later design options, thereby potentially forming part of a multi‑stage development consent process.
• In such a scenario, EU law (EIA and Habitats Directives) may bite at the CPO stage.
• However, in this case the Part 8 development consent was granted in April 2018, and remained unchallenged when the CPO was sought and confirmed.
• By the time the CPO was considered, the “development consent was a done deal” (borrowing the phrase from Humphreys J in the earlier Clancy costs judgments).

Farrell J quotes Simons J’s own acknowledgment in King that the earlier Clancy decisions were not dispositive in King precisely because the sequencing there was reversed (para. 22).

The doctrinal point:

Where development consent (here, the Part 8 decision) precedes the CPO and is unchallenged, the CPO is not part of a “multi‑stage” consent, but rather an implementation measure designed to assemble land to give effect to an already authorised project.

4.2.2 Dunne and the concept of “development consent”

To reinforce this distinction, Farrell J draws heavily on the Supreme Court’s analysis in Dunne v Minister for the Environment [2006] IESC 49; [2007] 1 IR 194 (paras. 23–24). In Dunne:

• The primary consent for a road scheme had been granted in 1998 under the Roads Act 1993, with full EIA.
• In 2004, the Minister issued directions under s.8 regulating archaeological works as part of the scheme.
• The applicants argued that the 2004 directions were another “stage” of the same project and therefore required further environmental assessment.

The Supreme Court rejected that argument, holding that:

• The “project” subject to EIA was the road development itself, not the subsequent archaeological directions.
• The 1998 approval was a stand‑alone development consent; the 2004 directions merely regulated the implementation of that consent.
• The Minister’s directions:
  • did not allow reconsideration of environmental issues or modification of the road development; and
  • did not themselves constitute a “prescribed project” under the EIA Directive.

Murray C.J. observed that it was “the construction of the road development which gives rise to the environmental impact, not the archaeological resolution measures”.

Applying Dunne, Farrell J reasons (paras. 25, 28):

• The Ennistymon Part 8 decision in 2018 is the relevant “development consent” that authorised the project.
• The Board’s later confirmation of the CPO simply authorises the compulsory acquisition of land to carry out works already authorised.
• At the CPO stage, the Board:
  • had no power to reconsider environmental issues arising from the project; and
  • had no power to modify the development project.

Therefore, by analogy with the Minister’s directions in Dunne, the CPO is an implementation decision, not a development consent.

4.2.3 EU authorities on “project” and timing of assessment

The applicants relied on EU case law, notably:

• Inter‑Environnement Wallonie ASBL (C‑411/17)
• Namur‑Est Environnement (C‑463/20)
• Commission v Greece (C‑504/14)

They argued that:

• The term “project” under the Habitats Directive is broader than under the EIA Directive.
• The extinction of rights of way, and related public realm measures, formed part of a “project” affecting European sites and required assessment at the CPO stage.

Farrell J accepts that:

• Under both the EIA and Habitats Directives, “project” covers works or interventions altering the physical aspect of a site (para. 26, citing Inter‑Environnement Wallonie).
• Works “inextricably linked” to measures can fall within the scope of assessment where their nature and potential impact is sufficiently identifiable (ibid.).
• Effective public participation must occur at a stage “when all options are open” (Namur‑Est, para. 72; para. 27 of this judgment).

However, she emphasises (para. 28) that:

• The relevant stage for Article 6(3) assessment and EIA in this case was the Part 8 development consent decision.
• By the time the Board considered the CPO, the environmental impacts and alternatives had already been addressed (rightly or wrongly) at the earlier stage, and those decisions were never challenged.
• Article 6(3) is engaged only when the national authority grants authorisation for a project (Commission v Greece, para. 121), which here occurred at Part 8 stage, not at CPO confirmation.

The conclusion is stark: the CPO is not the appropriate procedural vehicle to revisit those issues.

4.3 Extinguishment of public rights of way: prematurity

A novel aspect of the proposed EU grounds concerned the alleged extinction of public rights of way (in particular for vehicular traffic) and its supposed environmental/habitats implications. The applicants sought to characterise the extinction of rights of way as a “project” requiring AA/EIA at the CPO stage.

Farrell J identifies a fundamental misconception (para. 29):

• The Board’s decision does not extinguish any public rights of way.
• The Council has merely:
  • proposed; and
  • obtained approval for
  a potential future order to extinguish rights of way for vehicular traffic only.
• Any such extinction order will only fall to be made after the acquisition of the lands and will be made by the Council, not the Board.

Thus:

“The decision of the Board in this case which is simply to confirm the Council's CPO does not, of itself, either effect such extinguishment and a challenge in that regard is premature unless and until the Council actually make any such order...”

Humphreys J had, in an earlier costs judgment (Clancy (No. 2)), provisionally described the Board’s role in more expansive terms, but he had done so in the Council’s absence. With the Council now present and clarifying its legal position, Farrell J clarifies the matter and implicitly corrects that earlier assumption.

The prematurity of the claim on rights of way was another reason why the EU grounds based on extinguishment could not be allowed by amendment or at leave stage.

4.4 EU remedial obligations and the Carrownagowan criteria

One of the proposed grounds (1B) invoked the principle of sincere cooperation in EU law (former Article 10 EC) and argued that the Board was obliged to “remedy” alleged earlier failures of AA/screening at the Part 8/screening stage.

Farrell J rejects this (para. 31) as misconceived, relying on:

• Carrownagowan Concern Group v An Bord Pleanála [2023] IEHC 579; [2024] IECA 234

In Carrownagowan, both the High Court and Court of Appeal set out the conditions under which a remedial obligation may arise to nullify the consequences of unlawful acts under EU environmental law. Those conditions are stringent and, typically, involve:

• a prior finding of breach of EU law in a specific decision;
• an identifiable set of consequences to be undone; and
• appropriate remedial powers available to the authority in question.

Farrell J finds that such conditions are not met here:

• There is no prior judicial or administrative determination that the Part 8 decision or 2016 screening decisions breached EU law.
• The CPO decision is not the instrument that created any alleged unlawful consequences of EU non‑compliance at the earlier stage.
• The Board had no power, at CPO stage, to revisit or nullify the earlier development consent.

Thus, the proposed “remedial obligation” ground fails at the level of basic legal coherency.

4.5 Non‑transposition claims and Order 84 r.20(3)

The applicants also sought to argue that the statutory scheme governing CPOs – including s.76 and the Third Schedule to the Housing Act 1966 (as extended and amended by subsequent legislation) – fails properly to transpose Article 6 of the Habitats Directive and the EIA Directive.

Farrell J underlines (para. 32) that there is settled Supreme Court and High Court authority requiring strict compliance with Order 84 r.20(3) RSC where an applicant alleges a failure properly to transpose EU law, including:

• Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28 (Murray J)
• Sweetman v An Bord Pleanála [2020] IEHC 39 (McDonald J)
• Rushe v An Bord Pleanála [2020] IEHC 122 (Barniville J)

In essence, a non‑transposition claim must:

• Identify precisely the EU obligation allegedly unimplemented or improperly implemented;
• Identify the specific domestic provision(s) that supposedly fail to transpose that obligation; and
• Explain with some precision the nature of the inconsistency or lacuna.

The applicants’ non‑transposition claims were generalised and lacked this level of specificity. No detailed explanation was given as to how or why the Housing/Roads/Planning statutory matrix fails to transpose Article 6, particularly in circumstances where:

• The relevant Directives are fully transposed at the development consent stage in the Irish system; and
• The Part 8 decision in this case was made following that transposed regime (even if the applicants disagreed with the screening outcomes).

Consequently, at both the amendment and leave stages, the non‑transposition arguments were held not to reach even a basic arguability threshold.

4.6 The leave to seek judicial review: domestic law grounds

Farrell J conducts a ground‑by‑ground analysis of the “Domestic Law Core Grounds” and the remaining EU law grounds, assuming for argument’s sake that the amendments had been allowed. She applies the “substantial grounds” threshold under s.50 of the Planning and Development Act 2000 (as amended) to the challenge to the Board’s decision, and at least an arguability threshold (and arguably substantial grounds) to the legislative challenges.

4.6.1 Domestic Core Ground 1 – alleged wrong legal test on necessity/public interest

The applicants claimed that the Board failed to apply the appropriate legal test/procedure in considering the CPO application.

Farrell J finds no evidential basis for this (para. 39):

• The Inspector, and therefore the Board, had explicitly identified and applied the correct test of “necessity” and “public interest” for CPOs, citing Clinton v An Bord Pleanála [2005] IEHC 84.
• Community need and public good were expressly considered in §§6.0–6.5 of the Inspector’s Report.
• The Inspector concluded at §7.1 that the acquisition was in the public interest and consistent with the Clare County Development Plan 2017–2023.

The challenge therefore amounted to no more than a disagreement with the merits of the Board’s assessment, which is not a cognisable ground for judicial review.

4.6.2 Domestic Core Ground 2 – proportionality and constitutional rights

As amended, this ground alleged that:

• The primary purpose of acquiring the lands (including to construct a pedestrianised plaza) was “unnecessary”; and
• The Board failed properly to apply proportionality as a “primary consideration” when weighing the Applicants’ constitutional rights against the public interest.

Farrell J rejects this (para. 45), noting that:

• Proportionality, and the impact on the applicants’ home and business, had in fact been addressed in the Inspector’s Report and Board’s decision.
• At §6.4.4, the Inspector acknowledged the “profound impacts” on owners and expressly weighed them against the common good.
• At §6.6.3, the Inspector concluded that the significant benefits for road safety and the community outweighed those impacts.

Again, the complaint is essentially a merits challenge dressed in legal language and does not disclose substantial grounds.

4.6.3 Domestic Core Ground 3 – alleged failure to consider submissions properly

The applicants alleged that the Board failed to “facilitate, consider, or engage with” their submissions appropriately.

Farrell J finds this unsubstantiated (para. 46):

• The Inspector’s Report expressly summarised and engaged with the Clancys’ submissions at various points (paras. 3.3.12, 4.4, 6.6.2, and elsewhere).
• Judicial review requires demonstrable lack of consideration of material issues; this was not present here.

4.6.4 Domestic Core Ground 4 – compensation issues at CPO stage

This ground alleged that the Board erred in excluding consideration of the procedure and adequacy of compensation, claimed to be necessary to protect the applicants’ constitutional rights.

Farrell J holds (para. 47) that this:

• Misunderstands the statutory architecture: the Board has no jurisdiction to determine compensation at the CPO confirmation stage.
• Compensation is a separate statutory process, pursued after (or in parallel with) confirmation of the CPO.

Any constitutional challenge to the compensation regime must be brought against the appropriate decision or legislation at the appropriate time; it cannot be used to invalidate the Board’s confirmation of a CPO where the Board has no role over compensation quantum or procedure.

4.6.5 Domestic Core Ground 5 – fettering of discretion in costs policy

The applicants attacked the Board’s policy and decision on costs relating to the oral hearing.

Farrell J notes (para. 48):

• The Board’s general policy itself reserves the right to depart from it where circumstances warrant;
• The Board had twice deferred its costs decision to consider the applications;
• The Board gave case‑specific reasons, concluding that a contribution to costs was not warranted “in this instance”.

Thus, there was no unlawful fettering of discretion; the decision reveals individualised rather than mechanistic application of policy.

4.6.6 Domestic Core Ground 6 – ultra vires and inconsistency with Development Plan

The applicants alleged that the “scheme” underpinning the CPO was not provided for in, or inconsistent with, the Clare County Development Plan, rendering the decision ultra vires.

Farrell J characterises the notion of “scheme” as somewhat amorphous but holds (para. 49):

• The Plan had been expressly considered; the Inspector and Board found the project consistent with it.
• The Plan’s Table 8.2 refers to the N67/N85 Road Improvement Scheme, Ennistymon as a proposed project for future development.
• No substantial ground was advanced to suggest that interpretation was unreasonable or unlawful.

4.6.7 Domestic Core Ground 8 – alleged constitutional invalidity of statutory scheme on compensation/homelessness

This ground claimed that the statutory framework excluding consideration of compensation adequacy at the CPO stage, in cases where compulsory acquisition would render applicants homeless, is contrary to Articles 40.3, 40.5 and 43 of the Constitution.

Farrell J again stresses (para. 52):

• Compensation is separate from the CPO decision, and the applicants’ rights to seek adequate compensation are unaffected by the confirmation of the CPO.
• The challenge is highly unparticularised:
  • No specific statutory provisions are identified as inconsistent with the Constitution.
• Irish legislation is presumed constitutional and must be read, if possible, consistently with the Constitution.

Furthermore, the Inspector recorded that the Council had already entered into early negotiations on compensation to reduce stress and uncertainty; this was not refuted by the applicants.

Accordingly, this constitutional broadside does not disclose substantial grounds.

4.7 The leave to seek judicial review: EU law grounds

4.7.1 European Law Core Ground 1 – reliance on Part 8 to “exclude” Habitats Directive submissions

The applicants alleged that the Board erred in relying on s.179 and Part 8 to “exclude” their submissions under the Habitats Directive, thereby “predetermining” issues.

Farrell J’s response (para. 53) is grounded in the earlier analysis:

• This misapplies the King logic to a different factual matrix.
• The CPO was not part of a multi‑stage consent; it simply implemented an existing, unchallenged consent.
• Any Habitats or EIA issues ought to have been raised by challenging the Part 8 decision and/or the 2016 screening decisions in time.

4.7.2 European Law Core Grounds 1A–1C – AA for rights of way; remedial obligations; non‑transposition

These were the newly proposed grounds, which the Court had already refused to allow by amendment. Out of completeness, Farrell J addresses them at the leave stage (paras. 54–56) and reiterates:

• Ground 1A (AA for extinguishment of rights of way):
  • Appropriate Assessment is a matter for the development consent stage, not implementation.
  • The decision to extinguish rights of way has not yet been made; any challenge to it is premature.
• Ground 1B (remedial obligations and principle of cooperation in good faith):
  • As explained via Carrownagowan, the conditions for a remedial obligation are not met.
  • The Board had no function to “nullify” or revisit any alleged earlier failures.
• Ground 1C (non‑transposition of Habitats Directive by CPO legislation):
  • The claim is insufficiently particularised.
  • There is no basis for arguing that the Habitats Directive must be separately transposed at the CPO implementation stage when it is already implemented at the consent stage, particularly where consent came first.

4.7.3 European Law Core Ground 4 – general failure to transpose Directives into CPO scheme

This ground alleged that the statutory scheme excluded the application of the Habitats and EIA Directives at the CPO stage and was therefore incompatible with EU law.

Farrell J, adopting a cautious approach, considers this (para. 58) on an arguability standard, but still finds it wanting:

• Even if a CPO preceded development consent (as in King), an argument about transposition at CPO stage might be arguable.
• But where, as here, development consent comes first and the Directives are already fully transposed at that stage, it is not arguable that EU law requires a “second bite” at the cherry at the CPO implementation stage.
• The applicants had a full opportunity – indeed they engaged in the Part 8 process – to raise EU law issues then but did not bring a timely challenge.
• No reasonable explanation was provided for the delay in seeking relevant information; the FOI application came nearly ten months after proceedings started, despite applicants’ earlier 2018 requests for documents.

4.7.4 European Law Core Ground 5 – overlap with earlier grounds

Ground 5 essentially re‑asserted that the statutory scheme’s exclusion of environmental issues from the CPO process was contrary to or failed to transpose the EIA, Habitats and SEA Directives.

Farrell J treats this as a repetition of earlier points and dismisses it on the same basis (para. 60).

4.8 Costs protection and wasted costs

4.8.1 Costs protection: mootness

Because leave to seek judicial review was refused and the proceedings were dismissed, Farrell J held that it was “unnecessary and inappropriate” to decide whether the proceedings would have benefited from costs protection had leave been granted (para. 62). The costs protection questions that had been to the forefront in the earlier Clancy judgments therefore remained academic in this third judgment.

4.8.2 Wasted costs for the adjourned November 2023 hearing

Clare County Council sought its costs for the adjourned November 2023 hearing, arguing that the late FOI‑based adjournment should not impose costs on the respondent.

Farrell J exercises her discretion to make no order as to costs (paras. 63–64), relying on several factors:

• The applicants already enjoyed an interim costs protection order; it would be harsh to retrospectively undo that protection because of the adjournment.
• The other parties, including the Board and State, acquiesced in the adjournment; they could have opposed it.
• There is value in “erring on the side” of the applicants’ arguable right to rely on EU costs protection rules.
• The interests of finality favoured drawing a line under the matter without satellite costs litigation.

Accordingly, there was no order as to costs for the adjourned hearing, despite the ultimate dismissal of the proceedings.

5. Simplifying the Legal Concepts

5.1 Development consent vs implementation decision

A recurring distinction in the judgment is between:

• Development consent – the planning or other authorisation that legally allows a project (e.g. a road) to be built and operated; and
• Implementation decisions – steps taken to carry out that authorised project, such as acquiring land, setting conditions for archaeological works, or ordering the temporary closure of roads.

For EU law, EIA and AA must generally:

• be carried out at the development consent stage;
• precede the decision irrevocably committing the authority to the project; and
• take place when “all options are open”.

If the development consent has already been granted and is unchallenged, later implementation decisions are typically not a new “stage” of consent and will not require fresh EIA or AA in the absence of material change. This is the key lesson from Dunne and is confirmed here.

5.2 Multi‑stage development consent

“Multi‑stage development consent” refers to a system where a project undergoes several legally binding decision points, all of which are part of the overall consent process. EU law can require that environmental assessment covers the project “as a whole” and sometimes at more than one stage.

In King, the CPO came before planning consent and significantly constrained the future design of a flood scheme; it was therefore arguable that the CPO formed part of a multi‑stage consent.

In Clancy (this judgment), development consent preceded the CPO; the CPO was treated as an implementation measure only, so the project did not operate as a multi‑stage consent in the same sense.

5.3 Appropriate assessment (AA) and EIA

Two main EU assessment regimes were invoked:

• Environmental Impact Assessment (EIA) – required for certain projects (e.g. major roads) to assess significant environmental effects.
• Appropriate Assessment (AA) under Article 6(3) of the Habitats Directive – required where a plan or project is likely to have a significant effect on a Natura 2000 site (Special Areas of Conservation or Special Protection Areas).

In this case:

• The Board in 2016 screened the project and decided that no EIA or NIS (for AA) was required.
• The applicants tried to argue that AA was required at the CPO stage, particularly in respect of extinguishment of rights of way and use of a plaza.
• The Court held that any AA/EIA issues had to be raised at the development consent stage and could not be revived at CPO stage.

5.4 “Substantial grounds” for leave under s.50

In Irish planning judicial review, s.50 of the Planning and Development Act 2000 raises the standard for leave: applicants must show “substantial grounds” rather than mere arguability.

“Substantial grounds” means:

• A reasonable prospect that the ground might succeed at a full hearing;
• More than a tenuous or technical complaint; and
• A ground that, if correct, would materially affect the lawfulness of the decision.

Farrell J consistently assesses each ground against this heightened threshold.

5.5 Non‑transposition claims and Order 84 r.20(3)

When a litigant claims that Irish law has failed to implement EU law correctly, Order 84 r.20(3) requires:

• Clear identification of the EU rule at issue;
• Clear identification of the offending domestic measure or omission; and
• Explanation of the inconsistency.

Broad invocations of “failure to transpose Article 6” are insufficient. The judgment underscores that such claims will be filtered rigorously at the leave stage.

6. Impact and Significance

6.1 For planning and CPO litigation

The judgment has several practical implications for future challenges:

• No “back‑door” challenge via CPO:
  Where a Part 8 or other planning consent has been granted and not challenged in time, litigants cannot use a later CPO challenge to reopen EIA, AA or transposition issues that belonged at the consent stage.
• Caution with FOI‑driven late amendments:
  Obtaining FOI documents long after proceedings commence will rarely justify a radical amendment if the underlying material could reasonably have been obtained, or was public, within the limitation period.
• Front‑loading EU environmental arguments:
  Claimants must raise EU law issues at the earliest appropriate stage and in direct challenges to the relevant consents. The courts are unlikely to indulge attempts to litigate those points via implementation decisions years later.
• Clearer separation of roles at CPO stage:
  The Board’s role on CPO confirmation is limited to necessity/public interest/appropriateness, not compensation, not re‑assessment of environmental impacts, and not modification of an already authorised project.

6.2 Clarifying King and the scope of multi‑stage consent

Doctrinally, this judgment sits alongside King as part of a more nuanced framework for understanding multi‑stage development consent:

• Where a CPO precedes consent and constrains key choices, it may form part of a multi‑stage process engaging EU assessment duties at that earlier point (King).
• Where consent is already a “done deal” before the CPO, the CPO is an implementation step that does not trigger new EU assessment duties (Clancy (No. 3) following Dunne).

This delineation provides clearer guidance to both practitioners and public authorities on when CPO decisions may attract EU environmental law scrutiny as part of a multi‑stage consent and when they will not.

6.3 For EU environmental and constitutional litigation strategy

The judgment reinforces several strategic lessons:

• Timeliness is critical: EU environmental and constitutional objections must be directed at the correct decision at the right time. Delayed or collateral challenges are highly vulnerable.
• Pleadings must be precise: Generalised allegations about failure to transpose directives, breach of Articles 6/8 ECHR or Articles 40/43 of the Constitution will not clear the leave hurdle without careful particularisation.
• Public interest and safety matter at the margin: In weighing amendments and extensions of time, courts will factor in the risk of delay to safety‑driven infrastructure, giving weight to the statutory authorities’ assessment of risk.

6.4 Costs and access to environmental justice

While costs protection was not finally determined because leave was refused, the approach to wasted costs is noteworthy:

• The Court showed sensitivity to the chilling effect of adverse costs on public interest environmental litigation;
• Interim costs protection already granted was respected;
• The respondents’ own conduct (acquiescing in adjournment) was taken into account.

This tempered approach reflects an awareness of Ireland’s EU obligations on access to environmental justice (e.g. under the Aarhus Convention and related EU directives), even as the Court robustly enforced procedural discipline on amendments and time limits.

7. Conclusion

Clancy & Anor v An Bord Pleanála & Ors [2025] IEHC 528 is a significant addition to Irish planning and environmental jurisprudence. It does not expand substantive environmental rights, but it clarifies and tightens the procedural architecture within which those rights must be asserted.

The main takeaways are:

• CPOs following unchallenged Part 8 consents are not a second opportunity to litigate EIA/Habitats issues. They are implementation decisions, not development consents, and do not form part of a multi‑stage consent in the King sense.
• Amendments in judicial review are strictly policed. Applicants must show arguability, a convincing explanation, and absence of irremediable prejudice. FOI‑driven late amendments that effectively start a new case will rarely be allowed, especially in time‑sensitive infrastructure contexts.
• Non‑transposition and constitutional claims must be pleaded with precision. Vague assertions that statutory schemes fail to transpose EU law or breach constitutional rights will not satisfy the “substantial grounds” threshold for leave.
• Public safety and the common good influence procedural discretion. Where a project is driven by road safety concerns, courts will be slow to permit procedural maneuvers that could prolong exposure to risk in the absence of a clearly arguable legal flaw.
• Costs remain a nuanced area. Even as the Court dismissed the proceedings, it declined to penalise the applicants via wasted costs, reflecting a balancing of access to justice and procedural fairness.

In the broader legal landscape, Clancy (No. 3) stands as an authoritative statement on the limits of EU environmental and constitutional arguments at the CPO stage, reinforcing the primacy of timely challenges to the true “development consent” decision. It should be read together with Dunne, King, and Carrownagowan as part of an emerging body of case law that structures, rather than expands, the terrain of environmental judicial review in Ireland.