Clarification of “Determination” under Section 34(12)(b) of the Planning and Development Act 2000

Introduction

This commentary examines the High Court decision in 100 Meter Tall Group & Ors v An Bord Pleanála ([2025] IEHC 196), delivered by Humphreys J. on 4 April 2025. At issue was the interpretation of “determination” in s. 34(12)(b) of the Planning and Development Act 2000 (“the 2000 Act”), in the context of a retention application for a wind turbine built 36 metres out of its originally permitted location. The applicants challenged the retention permission on multiple grounds, but ultimately distilled their case to a single point of law: whether a preliminary examination decision as to environmental impact assessment (EIA) falls within the statutory concept of “determination” that precludes retention permission. The High Court refused leave to appeal, holding that the applicants’ interpretation would lead to absurd results, conflict with EU law, and fail to satisfy established criteria for leave to appeal.

Summary of the Judgment

After permission for one turbine was granted and the structure built slightly off-centre, the developer applied to retain the built location. The applicants resisted, bringing 95 grounds of challenge in judicial review—ranging from jurisdictional to factual objections—eventually focusing on the meaning of s. 34(12)(b). The court canvassed the statutory tests for leave to appeal, examined the pleaded case, and concluded:

The applicants had not properly pleaded the meaning of s. 34(12)(b) as now argued.
The question—purely legal in nature—no longer arises in future cases, belongs to a closed historical category (2010–2023), and lacks evidence of other live challenges.
The applicants’ strained interpretation would create absurd obstacles to retention, conflict with EU law (the EIA Directive), and defeat statutory purpose.
In the public interest and in the exercise of discretion, leave to appeal was refused.

Analysis

Precedents Cited

Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála & Ors [2024] IESC 28: requirements that appeal points must arise on facts and within pleadings.
Minister for Justice and Equality v Andrzejczak (No.2) [2018] IEHC 11: issues cannot be raised in abstract.
GOCE Limited v An Bord Pleanála [2025] IEHC 43: new issues cannot be formulated solely for appeal.
S.A. v Minister for Justice and Equality (No.2) [2016] IEHC 646: a point of law must be determinative and change the outcome.
Rooney v Minister for Agriculture and Food [2016] IESC 1: avoids “litigious perpetual motion” by focusing on the forest, not a single tree.
Multiple post-2020 decisions (e.g., Leech, Halpin, Rushe, Stanley) on the unsuitability of mixed questions of fact and law for appeal.
Baker J in Ógalas v An Bord Pleanála [2015] IEHC 205: appeal for public interest must resolve doubt, not create it.

Legal Reasoning

Humphreys J. structured the leave-to-appeal analysis under five themes:

Properly Arising: The court found only scant reference to s. 34(12) in the pleadings; no coherent pleading of sub-paragraph (b) as now urged.
Pure Point of Law: While the interpretation dispute was legal, it was mixed with merits and factual context, unsuitable for pure appeal.
Public Importance: The “determination” issue belongs to a closed period (2010–2023), with no evidence of other live cases—thus not of public importance or utility.
Exceptional Importance: Even if the point were of public importance, it was not exceptional in the absence of demonstrated uncertainty or broader impact.
Public Interest: The court weighed factors such as finality, procedural expediency in planning, minimal factual deviation (36 m turbine shift), removal of the contested provision by later amendment, and the absurdity and EU conflict of the applicants’ interpretation.

Key interpretative principles applied:

Avoidance of Absurdity: Legislation must be given a workable meaning that does not frustrate statutory purpose.
EU Consistency: National terms must align with EU terminology—here, screening determinations under Directive 2011/92/EU.
Interpretation Act 2005: Statutory terms are construed in the present tense, but this general rule cannot override clear legislative intent or cause absurdity.
Discretionary Relief: Even if an error of law, the court may refuse relief where it serves no practical purpose and creates “pointless formalism.”

Impact

The decision clarifies that:

“Determination” in s. 34(12)(b) refers specifically to a screening determination under EIA law, not any preliminary examination decision.
Preliminary examinations do not preclude retention permission absent a formal screening decision.
Future leave applications in planning review must show properly pleaded issues, genuine public importance, and a likelihood of changing the outcome.
Courts will refuse leave where appellants advance novel, abstract points that cause divergence from EU law or “absurd” results.

Planning authorities and applicants can read this judgment as guidance on the narrow ambit of s. 34(12)(b) and the stringent standard for appellate certification in planning judicial review.

Complex Concepts Simplified

Section 34(12)(b) of the 2000 Act: Provides that retention permission cannot be granted if a formal screening determination for EIA was required by the planning authority.
Preliminary Examination: A preliminary step under the Act to decide whether an EIA screening determination is needed.
Screening Determination: A formal decision under Article 4 of the EIA Directive that environmental impact assessment is— or is not—required.
Leave to Appeal (Certification): A High Court must certify that a point of law is properly raised, of exceptional public importance, and that an appeal is in the public interest before granting leave to appeal to the Supreme Court.
Absurdity Principle: Statutory provisions must be interpreted to avoid nonsensical or unworkable outcomes that defeat legislative purpose.

Conclusion

The High Court’s refusal of leave to appeal in 100 Meter Tall Group & Ors v An Bord Pleanála solidifies the interpretation that only a screening determination—not a preliminary examination decision—falls within s. 34(12)(b). It reinforces strict criteria for appellate certification in planning challenges and underscores the imperative of consistent alignment with EU law. The judgment furnishes clarity for practitioners and applicants on the narrow scope of “determination,” the role of preliminary examination in the EIA process, and the high threshold for raising purely technical, historical points in leave applications. Its emphasis on avoiding absurd statutory constructions and preserving procedural finality confirms a cautious and disciplined approach to planning appeals in Irish law.