Eco Advocacy CLG v An Bord Pleanála: “Availability” Means Accessible Online Publication; Declarations (not Certiorari) for s.146(7) Breaches; Evidence-Based AA Challenges within an Expedited Renewable-Energy JR Regime

Introduction

This High Court judgment (Humphreys J., 15 January 2025, [2025] IEHC 15) arises from a judicial review of An Bord Pleanála’s grant of permission (3 January 2024) for a wind farm of up to eight turbines at Dernacart Forest Upper and Forest Lower, Co. Laois. The site lies near Garryhinch/Garrymore bogs and c. 4.7 km from the Slieve Bloom Mountains SPA (Hen Harrier).

The applicant (Eco Advocacy CLG) advanced two core grounds:

• Core Ground 1 (Domestic): a breach of s.146(7) of the Planning and Development Act 2000 (as amended) due to failure to make the “amended EIAR” available on the Board’s website and, more generally, ineffective online “availability” of EIA material because documents were uploaded with unintelligible hexadecimal file names.
• Core Ground 2 (EU/Habitats): an inadequate Appropriate Assessment (AA) process under Article 6(3) of the Habitats Directive, focusing on Hen Harrier effects; complaint that AA screening failed to lawfully exclude reasonable scientific doubt, and that the Board did not grapple with NPWS concerns or the prospect of hen harriers using/commuting through the site to roosts north of the turbines.

The case was heard under the Planning & Environment Court’s expedited procedure (Practice Direction HC126), including an unusual post-hearing written “top-up” phase triggered by the court’s intention to publish a list of frequently used authorities in the List (and the court’s two specific cases of interest). In addition, the judge annexed extensive transcripts and submissions to address recurring complaints about hearing time and to promote transparency.

Summary of the Judgment

• Use of authorities not cited by the parties: The court reaffirmed it may refer to legal materials not cited by the parties without calling them back, unless the new material is pivotal and changes the result. The court flagged the forthcoming “book/list” of frequently cited Planning & Environment authorities, with parties deemed to be on notice of them.
• Expedited procedure and hearing time: The court robustly endorsed time-management and the expedited regime—grounded in inherent jurisdiction, rules of court, and the Renewable Energy Directive amendments requiring the most expeditious administrative and judicial procedures. Oral submissions are primarily for clarification; fairness is measured by the combination of written and oral opportunities.
• Core Ground 1 (s.146(7) publication):
  • There was no “amended EIAR” document as such; further information (FI) proposed amendments to be read with the EIAR/NIS. Linking to the planning authority’s site for FI was not pleaded as unlawful and was therefore not determined.
  • However, the Board uploaded documents with incomprehensible hexadecimal file names. That is not effective “availability” within s.146(7); “availability” must be practical and accessible, not a pro forma tick-box exercise. This was a breach (between on or about 6 January 2024 and the rectification on 23 August 2024).
  • That breach did not vitiate the permission. Post-decision publication duties do not render a decision invalid (Casey v Minister for Housing). No prejudice to the applicant was shown. The proper relief was a declaration, not certiorari.
• Core Ground 2 (AA/Habitats Directive):
  • Reaffirmed the CJEU’s Eco Advocacy (2023) ruling: a decision-maker has no duty to respond point-by-point to submissions; rather, reasons must demonstrate exclusion of reasonable scientific doubt.
  • The applicant did not adduce expert evidence showing that reasonable scientific doubt persisted, nor demonstrate a patent flaw on the face of the materials; assertions and reliance on NPWS letters did not, on these facts, carry the evidential burden.
  • The inspector’s reasons—no suitable on-site Hen Harrier habitat, lack of on-site recordings, and distance to the SPA—were open to the decision-maker and sufficient in law to screen out the SPA. No legal error was found.
  • Even if wrong, the court would have refused certiorari in its discretion given the absence of demonstrated prejudice or evidence that additional assessment would have made a difference, the disproportionate impact on a blameless developer, and the applicant’s failure to raise the issue in its appeal to the Board.
• No CJEU reference: The court declined reference requests, holding they were unnecessary, outside the pleaded case, or acte clair.
• Orders: Proceedings dismissed save for a declaration that s.146(7)(a) was breached by making available documents with incomprehensible file names (specified window). Costs to the applicant against the Board limited to the issue on which the applicant prevailed. No order as to costs for or against any other party. Permission for set-off if further unsuccessful steps are taken by the applicant.

Analysis

1) Precedents and Sources Influencing the Decision

• Case management, time limits and expedited procedures:
  • Talbot v Hermitage Golf Club [2014] IESC 57; Defender v HSBC France [2020] IESC 37; Dowling v Minister for Finance [2012] IESC 32; O’Connor v Legal Aid Board [2022] IECA 216; Tracey v Burton [2016] IESC 16. These endorse robust case management, reasonable limits on oral argument, and deference on appeal.
  • Rules and practice: O.36 r.42 RSC (trial judge’s control), O.63A (Commercial Court powers), O.63C (general case management). Practice Direction HC126 (expedited renewable energy stream) fits within the court’s inherent authority.
  • EU dimension: Directive (EU) 2023/2413 amending 2018/2001 (Renewable Energy Directive) requires the most expeditious administrative and judicial procedures. Confirmed domestically in Power v ABP [2024] IECA 295 (expedited reference to CJEU).
  • Comparative authority: Langley v North West Water Authority [1991] 1 WLR 697 (CA) recognises binding force of local practice directions stemming from inherent jurisdiction.
• Court’s use of authorities not cited by parties:
  • O’Doherty and Waters v Minister for Health [2022] IESC 32. Supports judges bringing their own legal knowledge to bear; additional citations need not be canvassed with parties unless pivotal.
  • Planning & Environment “book/list of authorities”: The court will publish recurring authorities for the List; parties are deemed to be on notice. Additional notice will issue only where “new” authority is pivotal and changes the outcome.
• Publication and post-decision duties:
  • Casey v Minister for Housing [2021] IESC 42: non-publication of a post-decision notice does not invalidate the decision itself.
  • Other publication cases: Clonres (No. 2) [2021] IEHC 303; Clifford (No. 1) [2021] IEHC 459; Clifford (No. 3) [2022] IEHC 474; Reid (No. 7) [2024] IEHC 27; Carrownagowan [2024] IEHC 300; Kennedy [2024] IEHC 570; Grafton Group [2023] IEHC 725. These authorities reinforce the declaration/“no certiorari” pathway where breaches are post-decision, non-prejudicial, or technical. The court deployed that approach here.
• AA/Habitats jurisprudence and evidentiary standards:
  • Waddenzee C‑127/02 and Holohan C‑461/17: “no reasonable scientific doubt” standard; assess implications for species outside the site if liable to affect conservation objectives.
  • Grace & Sweetman C‑164/17: AA must contain complete, precise and definitive findings.
  • Eco Advocacy (CJEU, 15 June 2023, C‑721/21): no duty of point-by-point rebuttal; reasons must show exclusion of reasonable scientific doubt notwithstanding contrary submissions.
  • Domestic emphasis on evidence: an applicant must prove the legal error (typically via expert evidence unless patent flaws exist): see An Taisce (SC) [2022] IESC 8; Carrownagowan [2024] IEHC 300; Kennedy [2024] IEHC 570; Murphy [2024] IEHC 59; Power [2024] IEHC 108. Conflicts of affidavit evidence in JR without cross-examination are resolved against the applicant (RAS Medical [2019] IESC 4).
• Discretion and relief:
  • Ballyboden Tidy Towns [2024] IESC 4: the High Court grants JR relief in the exercise of judicial power; it must be satisfied relief is warranted even if unopposed. Discretion and proportionality matter.
  • EU constraints: UH C‑64/20 confirms national courts cannot refuse declarations in state-transposition failures (legislation context). At decision level, proportionality and “harmless error” are recognised (Altrip C‑72/12).
  • Here the court would—with or without error—decline to quash given disproportionate impact on the developer, absence of applicant prejudice, and the applicant not having raised the issue before the Board.

2) The Court’s Legal Reasoning

A. Court’s use of authorities and the “List”

Judges are expected to bring their legal knowledge to bear. The court announced a publicly available list of frequently cited authorities for Planning & Environment cases, with parties deemed to be on notice and no need to reprint them. Only if a new authority is pivotal and changes the outcome will the court canvass it with parties. This procedural clarity promotes coherence and efficiency in the List.

B. Hearing time, expedition and fairness

The court meticulously justified the expedited procedure and time limits through a raft of domestic and ECHR jurisprudence, rules of court, comparative practice and EU law (the Renewable Energy Directive). Oral hearings are important but not paramount; written pleadings and submissions often carry greater weight. Fairness is ensured by multiple written opportunities (statement of grounds, affidavits, submissions, reply submissions) plus oral time for clarification. Limited time does not equate to injustice; it may improve focus. The court also underlined equality-of-arms across positions rather than parties; both sides receive equal overall time as between “applicant” and “opposers”.

C. Core Ground 1: Publication (“availability”) under s.146(7)

The statutory duty to make documents “available” on the Board’s website requires practical, accessible availability. Publishing documents under opaque alphanumeric/hexadecimal names is not effective: the public cannot meaningfully locate or understand the EIA materials. That breached s.146(7)(a) between c. 6 January 2024 and 23 August 2024 (when filenames were corrected).

But that breach did not invalidate the permission. Following Casey, post-decision publication failures do not vitiate the decision; and no applicant prejudice was shown. The only relief warranted was a declaration, tailored to the pleaded ground that succeeded (incomprehensible filenames), not to the unpleaded proposition that linking to the planning authority’s website was unlawful, nor to a non-existent “amended EIAR” document. The court carefully recast the applicant’s relief (consistently with the pleaded grounds) to reflect the actual breach.

D. Core Ground 2: AA/Habitats—no lacuna shown, no evidence of persisting scientific doubt

The court adopted and applied the CJEU’s 2023 Eco Advocacy ruling: there is no duty on the Board to rebut every external submission point-by-point; the legal duty is to demonstrate—on the reasons—that reasonable scientific doubt was excluded. The inspector’s screening conclusion rested on three strands: no on-site hen harrier recordings, lack of suitable habitat on the application site, and distance to the SPA. The screening table expressly recognised commuting/foraging might occur but the subsequent reasoning set out why significant effects on the SPA could be ruled out at screening stage.

Crucially, the onus lay with the applicant to show, usually via expert evidence, that reasonable scientific doubt remained or that the reasoning was legally flawed. Assertions and reliance on NPWS correspondence did not, on these facts, carry the day. Absent admissible expert evidence or an obvious facial flaw, the court declined to interfere with the Board’s evaluative judgment. The later national survey (IWM 147) post-dated the decision and could not recast the lawfulness of the decision.

E. Discretion and proportionality

The court emphasised its discretion over relief (per Ballyboden): even if an arguable omission had been shown, the court would have refused certiorari due to the absence of demonstrated prejudice, the lack of any showing that further assessment would change the outcome, the disproportionate impact on the developer (who had engaged extensively with ecology), and the fact the applicant did not canvass the Hen Harrier screening at the appeal stage. Only declaratory relief marked the s.146(7) lapse; an order quashing the permission would be disproportionate.

F. CJEU references

Requested references were declined: the publication point was either acte clair or outside the pleaded case; a discretion-related reference would have been obiter and unnecessary. References must be necessary to decide the case; they were not here.

3) Impact and Practical Consequences

• Publication and website practices:
  • “Availability” on the Board’s website must be substantively accessible. Hexadecimal or opaque filenames are non-compliant. Expect increased emphasis on meaningful filenames, logical indexing, and easily navigable document sets.
  • While hosting FI on planning authority sites was not decided (unpleaded), the court’s logic suggests that control and continued accessibility matter. Boards should consider hosting or reliably integrating FI with clear labels and stable links.
  • Post-decision publication lapses are unlikely to invalidate decisions absent prejudice, but they will attract declarations (and costs on the issue). Repeated failures risk compounding judicial censure and remedial directions.
• AA litigation strategy:
  • Applicants must adduce expert evidence (or identify a patent legal flaw) to show reasonable scientific doubt was not excluded. Submissions by consultees (e.g., NPWS) may be important but are not, by themselves, determinative.
  • CJEU’s Eco Advocacy (2023) is now fully bedded-in: no point-by-point rebuttal is required. The lawful focus is on adequate reasons that exclude reasonable scientific doubt. Applicants should aim at demonstrable lacunae, not formatting complaints.
  • Later scientific publications cannot retroactively undermine a past decision; they might be relevant to enforcement/monitoring or future applications, but not to the JR of the original decision.
• Expedited renewable-energy JRs are here to stay:
  • The judgment firmly anchors the expedited procedure in EU law and inherent jurisdiction. Parties should expect short, focused oral hearings with heavy reliance on sharply drafted written pleadings and submissions.
  • Courts will actively manage lists to ensure reasonable expedition across the List; arguments about time will cut little ice absent evidence of real prejudice, especially where multiple written opportunities exist.
• “Book/List of Authorities”:
  • The Planning & Environment Court will maintain a recurring list of authorities. Parties are deemed on notice; judges may cite them without separate canvassing unless a new authority would change the result. This should produce more consistent and succinct submissions, reduce duplication, and elevate substance over citation volume.
• Relief and discretion:
  • Even where an arguable unlawful omission arises, certiorari is not inevitable. Proportionality, prejudice, developer blamelessness, and whether the issue was raised at the administrative stage all matter. Declaratory relief may adequately vindicate the rule of law.

Complex Concepts Simplified

• What does s.146(7) require? When the Board carries out EIA, it must make the “documents relating to the matter” available on its website in perpetuity, beginning three days after the decision. “Available” means meaningfully accessible to the public (comprehensible filenames, sensible structure).
• What is AA screening vs Stage 2 AA? Screening asks whether a project is likely to have a significant effect on a European site (in view of conservation objectives). If yes (or if reasonable scientific doubt cannot be excluded), a Stage 2 AA is required. If the Board can exclude significant effects reasonably and lawfully, it may screen out.
• “No reasonable scientific doubt”: The legal yardstick from the Habitats Directive: before allowing a project without AA (or after AA), the decision-maker must be satisfied there is no reasonable scientific doubt as to adverse effects on site integrity.
• No “point-by-point” duty: The Board must give reasons that exclude scientific doubt; it need not reply to every contrary submission individually. The analysis is holistic and reason-based.
• Discretionary remedies in JR: Certiorari is discretionary. Courts may refuse to quash if it would be disproportionate (e.g., no applicant prejudice; developer blamelessness; outcome would not have changed), and instead grant a declaration marking the breach.

Conclusion

This decision sets two important markers for Irish planning and environmental litigation.

• Effective online publication: The court explicitly equates “availability” under s.146(7) with practical, accessible presentation. Incomprehensible file naming is a breach. But where publication duties are post-decision and prejudice is absent, declaratory relief, not certiorari, is the norm.
• Evidence-driven AA challenges within an expedited regime: The court reaffirms that AA screening decisions stand unless applicants meet their evidential burden to show persisting reasonable scientific doubt or a patent legal flaw. The CJEU’s 2023 Eco Advocacy ruling on reasons (not point-by-point rebuttal) is now decisively embedded in Irish law. The expedited renewable-energy JR model is lawful, necessary, and will be enforced.

Overlaying these is a procedural advance: the Planning & Environment Court’s intention to maintain a public list of recurring authorities—a pragmatic mechanism to cut duplication, standardise expectations, and speed justice. Together, the ruling’s doctrinal and procedural strands will shape how parties plead, evidence, and present future planning and environmental challenges—emphasising practical access to information, precise pleadings, expert evidence where needed, and lean, focused advocacy tailored to the expedited List.