Condon (No. 2): Leave to Appeal Refused Where Proposed Questions Misstate the Judgment and the Commission Failed “Step 1” Engagement with the Development Plan

1. Introduction

Condon v An Coimisiún Pleanála and Anor (No. 2) [2026] IEHC 137 is a High Court decision (Humphreys J., 6 March 2026) refusing the developer’s (Ruden Homes, the notice party) application for leave to appeal from the substantive judicial review judgment in Condon v. An Bord Pleanála (No. 1) [2025] IEHC 255.

The underlying planning dispute concerned permission for a strategic housing development granted under s. 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016. The applicant challenged the Commission’s decision principally on the basis of non-compliance with the Cork County Development Plan 2014–2020, specifically Objective HE 3-4 and related text requiring “careful assessment” of industrial and post-medieval archaeology (including unprotected dwellings), where demolition of older structures was proposed.

In the substantive judgment, the court quashed the permission because the Commission did not properly interpret and engage with the relevant development plan requirements before granting consent. In this “No. 2” judgment, the court addresses whether the developer should obtain leave to appeal by certification of questions of “exceptional public importance” and whether an appeal would be in the public interest.

2. Summary of the Judgment

The High Court dismissed the application for leave to appeal. The proposed questions were rejected because they:

  • did not properly arise from the pleadings, arguments, or findings, and/or were formulated at an impermissible level of abstraction;
  • misstated or exaggerated the ratio of the substantive judgment (i.e., erected a “straw-man”);
  • did not raise a genuine point of law of exceptional public importance requiring appellate clarification;
  • were inconsistent with the Supreme Court’s definitive guidance on development plan interpretation and material contravention in Sherwin v. An Bord Pleanála [2024] IESC 13;
  • and, in any event, an appeal was not in the public interest, particularly given statutory aims of finality/expedition and the fact that the relevant development plan wording had been replaced shortly after the impugned decision.

The court also made important practical observations about draft judgment circulation (confidentiality and permissible comment scope), and expressed concern at the factual foundation for the developer’s broad claims of systemic impact, especially where the archaeologist had not carried out a relevant site inspection prior to reporting.

3. Analysis

3.1 Precedents Cited

A. The governing Supreme Court authority on development plan interpretation and “material contravention”

The central legal anchor in this refusal is Sherwin v. An Bord Pleanála [2024] IESC 13. Although not expressly relied upon in the substantive judgment, Humphreys J. treated Sherwin as having already clarified the law and as fully consistent with his “No. 1” approach. Sherwin was used in “No. 2” to show that:

  • Interpretation of the development plan is for the courts (error in interpretation is a jurisdictional error);
  • Decision-makers must first engage with the text of the relevant policy/objective and explain their understanding before applying it (“step 1”);
  • Only after correct interpretation does the analysis move to questions of contravention/materiality and any planning judgment.

Sherwin itself drew on Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99 and Byrne v. Fingal County Council [2001] IEHC 141, [2001] 4 I.R. 565 to emphasise the primacy of the plan, and cited Maye v. Sligo Borough Council [2007] IEHC 146, [2007] 4 I.R. 678 on the spectrum between specific policies and more aspirational objectives. Humphreys J. used this framework to underline that the case failed before any nuanced “planning judgment” stage: the Commission did not meaningfully address Objective HE 3-4 at all.

B. “The Board’s expertise” and the developer’s misreading of authority

The developer proposed a question premised on South West Regional Shopping Centre v. An Bord Pleanála [2016] IEHC 84; [2016] 2 I.R. 481. Humphreys J. refused certification for two linked reasons:

  • Procedural/foundational: the case was not relied upon in the notice party’s substantive written submissions and was not properly advanced at the leave hearing; a “new” authority cannot plausibly be reframed as central on appeal.
  • Substantive: the developer misconstrued Costello J.’s reference to the Board’s “own expertise” (para. 95) as if material contravention were purely subjective and beyond judicial scrutiny. Humphreys J. clarified that South West concerned whether the Board was bound by the planning authority’s prior determination, not whether courts may interpret the plan.

C. Authorities confirming “interpretation is for the court” and “full-blooded review”

The judgment adopts the applicant’s reliance on:

  • Wicklow Heritage Trust v [Wicklow] County Council [[1998] IEHC 19] (McGuinness J.): whether a development materially contravenes a plan is a matter of law for the court.
  • Jennings [v. An Bord Pleanála [2023] IEHC 14] (Holland J.): interpretation of the development plan is a legal question subject to “full-blooded review”.

These authorities supported the conclusion that the developer’s “substitution” complaint was misconceived: the High Court was not re-making a planning judgment, but performing its institutional role in interpreting the plan and policing legal compliance.

D. “Conflict of jurisprudence” claims rejected: incommensurable comparators

The notice party argued conflict with Nee v. An Bord Pleanála (No. 1) [2012] IEHC 532, Balz and Heubach v. An Bord Pleanála & Ors. [2016] IEHC 134, and Freeney v. An Bord Pleanála [2024] IEHC 427 on the distinction between mere “contravention/conflict” and “material contravention”. Humphreys J. held this distinction did not arise because the Commission had not correctly interpreted the relevant plan objective in the first place; thus, these authorities were beside the point in this procedural posture.

E. The structured criteria for leave to appeal in planning judicial review

A large portion of “No. 2” consolidates and applies the familiar statutory filters for certification. The court drew on multiple authorities to police:

  • Pleadings and whether the point arises:
    • Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28
    • Leech v. An Bord Pleanála [2025] IESCDET 106 (case-specific pleading/interpretation complaints usually not of public importance)
    • GOCE Limited v. An Bord Pleanála [2025] IEHC 43 (no new issue for appeal)
    • Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11 (no abstract questions divorced from facts)
  • Determinative nature and avoiding academic appeals:
    • S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646
    • Morehart v. An Bord Pleanála [2025] IEHC 701
    • Rooney v. Minister for Agriculture and Food [2016] IESC 1 (appeals should not become “litigious perpetual motion”)
  • Accuracy and non-distortion of the first-instance decision:
    • Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9
    • Stapleton v. An Bord Pleanála [2025] IEHC 178
    • Cooper v. An Bord Pleanála [2025] IESCDET 96 (misunderstanding the law is not public importance)
  • Point must be law, not fact or application to facts:
    • Leech v. An Bord Pleanála [2025] IEHC 157
    • B.S. v. Director of Public Prosecutions [2017] IESCDET 134
    • Halpin v. An Bord Pleanála [2020] IEHC 218
    • Rushe v. An Bord Pleanála [2020] IEHC 429
    • Stanley v. An Bord Pleanála [2022] IEHC 671
    • 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
  • Public interest, finality, and evidence of systemic impact:
    • Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231
    • Dunnes Stores v. An Bord Pleanála [2015] IEHC 387
    • Phoenix Rock Enterprises v. An Bord Pleanála & Ors. [2023] IESCDET 97 (no evidence of industry-wide difficulty)
    • Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 and Nagle View Turbine Aware v. An Bord Pleanála [2025] IESCDET 41
    • McCaffrey v. An Bord Pleanála [2024] IEHC 476 and leave refusal in Patrick McCaffrey & Sons Limited v. An Bord Pleanála [2024] IESCDET 145
  • Novelty is not enough:
    • Callaghan v. An Bord Pleanála [2015] IEHC 493
    • Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209
  • CJEU references do not “rescue” an otherwise unsuitable appeal:
    • Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8 and Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9

F. Draft judgments: procedure, limits, and confidentiality

The court set out an unusually detailed protocol for party comments on draft judgments and stressed that draft circulation is not a re-argument opportunity, citing:

  • O'Sullivan v. Health Service Executive [2023] IESC 11 (no “entitlement to elaborate procedures at every point”)
  • O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75 (warning against assuming only near-criminal-trial procedures are fair)
  • Attorney General v. Crosland (No. 2) [2021] UKSC 58 (confidentiality of draft judgments serves administration of justice)

3.2 Legal Reasoning

A. The “real” ratio being defended: engagement with the development plan, not an archaeology rulebook

The developer attempted to reframe “No. 1” as establishing a sweeping rule that archaeological assessment objectives require a “mandatory physical survey of all relevant structures” prior to application/consent. Humphreys J. rejected this as an exaggeration: the substantive decision was narrower—Objective HE 3-4 required “careful assessment,” and here there was effectively no meaningful pre-consent assessment of the relevant structures and no engagement by the Commission with the plan requirement.

Crucially, the court treated the case as failing at the Sherwin “step 1” stage: the inspector and Commission did not interpret and apply HE 3-4 at all, despite Cork County Council’s explicit warning (and despite the developer’s own archaeological material recommending inspection/assessment).

B. The s. 37 misdirection and the statutory architecture actually applicable

The proposed appeal questions relied on s. 37 of the Planning and Development Act 2000 jurisprudence, but this was a s. 9 SHD permission. Humphreys J. pointed out that the relevant SHD analogue was s. 9(6)(c) of the 2016 Act (a “counterfactual” test: would the Board grant permission if s. 37(2)(b) applied?), but the Commission never carried out that analysis. Therefore, the claim that the court “substituted its own view” on material contravention was logically incoherent: there was no first-instance evaluative conclusion on that statutory pathway for the court to substitute.

C. Evidence matters: systemic-impact claims must be evidenced and factually grounded

The developer’s affidavits advanced broad “moral panic” assertions—major infrastructure would be delayed, practice nationwide would change—yet the factual matrix showed a much simpler failure: the relevant structures were not inspected because the report was desk-based and a prior site visit for a different application was recycled. This undercut the credibility of claims that the judgment imposed onerous new burdens; it was, rather, an insistence on ordinary compliance with a specific plan objective.

D. “Public importance” is weakened when the plan has changed

The court placed weight on the temporal context: three days after the impugned decision, a new county development plan came into force with materially different wording (including an express “general presumption for retention” and “appropriate assessment and record”). That change diminished any arguable need for appellate clarification about the old, superseded text.

E. The public interest in finality and preventing “maximum confusion”

The judgment invoked the Supreme Court’s warning against appeals that “spread maximum confusion,” citing Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38. An appeal premised on misunderstanding the judgment and on abstracted, exaggerated questions was found not merely unnecessary, but affirmatively contrary to the public interest in clarity and expedition in planning litigation.

3.3 Impact

  • Sharper policing of “straw-man” certification: The decision reinforces that proposed questions must faithfully reflect what the court decided; exaggeration to manufacture “public importance” risks refusal and costs.
  • Re-centering Sherwin’s methodology: Although arising on a leave application, the judgment operationalises Sherwin in practical terms: decision-makers must identify, interpret, and grapple with the relevant plan objective before moving to evaluative planning judgment.
  • Evidence-based public interest claims: Assertions that a judgment will disrupt national practice must be supported by concrete evidence, not rhetoric—especially where the applicant’s own facts suggest the difficulty was self-created.
  • Draft judgment discipline and confidentiality: The court’s detailed guidance may be influential in shaping litigation conduct, clarifying that draft review is for correction and process management, not a re-run, and that confidentiality is enforceable.
  • Planning authority objections matter: The decision highlights the significance of explicit, reasoned planning authority submissions (here, the council’s conservation/archaeology position), and the legal risk where the Commission fails to respond in any meaningful way.

4. Complex Concepts Simplified

  • Certiorari: A court order quashing an administrative decision because it is legally invalid (e.g., based on an error of law or failure to follow required legal steps).
  • Development Plan (CDP) interpretation: The plan guides what can be permitted. Its meaning is ultimately a legal question for the courts, not a matter left entirely to planning “expertise.”
  • Material contravention: A development may conflict with the plan; if the conflict is “material,” special statutory procedures/justifications are required before permission can lawfully be granted. But you cannot reach that question unless the plan has first been correctly interpreted and applied.
  • “Step 1” (from Sherwin): The decision-maker must first show they identified and understood the relevant plan policy/objective. Only then can they apply it and, if necessary, assess contravention/materiality.
  • Leave to appeal in planning judicial review: Not automatic. The applicant must show a point of law of exceptional public importance and that an appeal is in the public interest, reflecting legislative policy for finality and speed in planning cases.
  • SHD (Strategic Housing Development) regime: A fast-track consent process under the 2016 Act (now replaced), where certain development plan issues are filtered through the statutory mechanism in s. 9(6)(c).

5. Conclusion

Condon (No. 2) [2026] IEHC 137 is less about creating new substantive planning law and more about enforcing disciplined appellate gateways in planning judicial review. The judgment’s core message is that appellate certification will be refused where proposed questions do not truly arise, misstate the first-instance reasoning, or seek advisory pronouncements untethered from the actual decision-making failure.

Substantively, the decision affirms—consistently with Sherwin v. An Bord Pleanála [2024] IESC 13—that lawful planning decision-making begins with genuine engagement with the development plan’s text. Where a plan calls for “careful assessment” of vulnerable, often unprotected heritage structures, it is not enough to proceed as if assessment can be deferred until after permission, nor to omit any meaningful explanation of how the plan objective was understood and met.

In the broader landscape, Condon (No. 2) strengthens the expectation that both development documentation and litigation strategy must be factually accurate, proportionate, and legally targeted—particularly where statutory policy prioritises finality and timely delivery in planning disputes.