Legal Owner Consent, Wayleaves and Workability in Planning Judicial Review: Commentary on Cummins & Ors v An Coimisiún Pleanála (No. 2) [2025] IEHC 662

1. Introduction

This judgment of Humphreys J. in Cummins & Ors v An Coimisiún Pleanála (No. 2) [2025] IEHC 662 arises from a judicial review challenge to a grant of planning permission for a large solar farm (141 hectares) near Clonea Power and Mothel, Co. Waterford. The case is the second module (“No. 2”) in a modularised challenge; the first judgment (Cummins (No. 1) [2025] IEHC 521) had already rejected most of the applicants’ grounds.

Module II focuses on:

a procedural issue: whether the developer (notice party) could file a late statement of opposition; and
the remaining “core” grounds:
- Core Ground 1: validity of the planning application due to:
  - alleged failure to map wayleaves (utility wayleaves in hedgerows), and
  - absence of written consent from holders of sporting (shooting) rights and their licensor;
- Core Ground 2: alleged breach of the constitutionally protected property rights of the local gun club and associated fair procedures defects.

The applicants are four local residents and the Clonea Gun Club, who say they hold sporting rights over the lands by agreement with the Marquis of Waterford. The respondent is An Coimisiún Pleanála (the successor body to An Bord Pleanála), and the notice party developer is BNRG Mothel Limited.

Although ostensibly about a specific solar farm, the judgment lays down or clarifies important principles on:

whose consent is required to make a valid planning application (only the “legal owner” within the statutory definition, i.e. normally the freeholder),
the limited role of subordinate rights (such as sporting rights) in that context,
how wayleaves must be treated and mapped in planning applications, and how “workability” constrains those duties,
the reduced contemporary role of Frescati Estates v Walker in light of the detailed regime in the Planning and Development Regulations 2001,
the onus of proof and strictness of pleadings in planning judicial review, and
the doctrine of harmless error and the discretionary nature of certiorari in both EU and domestic law contexts.

2. Summary of the Judgment

2.1 Outcome

The High Court:

granted an extension of time to the notice party to file its late statement of opposition;
admitted the post–Module I affidavits as evidence (by agreement of the parties);
rejected Core Ground 1, both as regards:
- the alleged invalidity for want of consent from the gun club and the Marquis of Waterford, and
- the alleged invalidity for failure to map wayleaves; and
rejected Core Ground 2 (constitutional property rights/fair procedures);
refused to reopen or revisit the previously dismissed core grounds (3–5, 7 and 8); and
dismissed the proceedings in their entirety, with a provisional “no order as to costs” (subject to any written submissions on costs) and a warning that unsuccessful attempts to vary provisional costs orders may attract adverse costs.

2.2 Key Legal Holdings

From the detailed summary at para. 117 and the reasoning throughout, the central legal propositions can be distilled as follows:

Late filings and interests of justice: Courts may extend time for late procedural steps (such as filing a statement of opposition) where the balance of justice so requires; technical lapses caused by human error will not normally justify excluding relevant pleadings or evidence, especially where there is no real prejudice to the other side.
Independent duty of the court: Even if the respondent or notice party does not formally oppose, the court must itself be satisfied that the applicant has made out a lawful entitlement to judicial review relief.
Strict confinement to pleadings: Applicants are strictly confined to their pleaded grounds. Attempts to shift the factual or legal basis of a challenge (for example, recharacterising which utility line is at issue) after leave has been granted or after hearing are impermissible.
Onus of proof on the applicant: The burden of proving any factual or legal basis for quashing the decision lies on the applicant throughout, save for limited recognised exceptions.
Consent for planning applications – only the legal owner: Under art. 22(2)(g) of the Planning and Development Regulations 2001 (“PDR 2001”), read with the definition of “owner” in s. 2 of the Planning and Development Act 2000, the only consent required to accompany an application is that of the legal owner (i.e. the person entitled to the rack rent – normally the freeholder). Subordinate rights-holders such as holders of sporting rights are not “owners” for this purpose.
Frescati largely superseded by the 2001 Regulations: The older Frescati Estates v Walker doctrine is no longer decisive in light of the modern statutory and regulatory scheme (particularly art. 22). The controlling norm is now the express text of the Regulations.
Planning permission does not extinguish property rights: A grant of permission does not authorise unlawful acts nor extinguish private law or constitutional property rights. Those rights remain enforceable separately. Therefore, alleged future interference with such rights is not automatically a ground to invalidate the permission.
Workability limits on wayleave duties: Obligations to show wayleaves on planning application drawings must be interpreted in a workable and realistic way, particularly given the existence of unregistered easements and wayleaves under the Registration of Title Act 1964. Developers cannot be expected to identify unknown and non-apparent burdens on pain of certiorari.
Harmless error doctrine: Even if technical non-compliance or error is shown, certiorari will not be granted where the error is demonstrably harmless and has no material effect on the outcome or on public participation.
Discretionary nature of judicial review: Relief is discretionary; factors such as lack of prejudice, failure to raise points in the administrative process, technicality, and proportionality can all justify refusing certiorari even where some defect might exist.

3. Detailed Analysis

3.1 Procedural Background and Modular Hearing

The underlying development is a two-phase solar farm:

Phase 1 (2019) – granted permission by An Bord Pleanála (now An Coimisiún Pleanála) but not yet constructed.
Phase 2 (impugned permission) – 141 hectares near Clonea Power/Mothel; Waterford City and County Council granted permission in May 2023; the Commission granted permission on appeal in April 2024 following an inspector’s report and an internal ecologist’s report.

The judicial review proceedings, commenced in June 2024, were modularised. Module I dealt with most of the substantive planning and environmental law grounds (including EIA screening and AA issues) and was decided in Cummins (No. 1), rejecting those grounds. Module II was reserved for:

late filing of the notice party’s statement of opposition and associated affidavits; and
Core Grounds 1 and 2 (validity/fair procedures/property rights).

3.2 Late Statement of Opposition: Equality of Arms vs Interests of Justice

The notice party had served, but never filed, its statement of opposition. It compounded this by uploading to ShareFile, under a misleading filename, a document that turned out to be legal submissions rather than the statement of opposition. This only came to light after the first hearing.

Humphreys J:

accepted that the statement of opposition should have been filed, and that directions in the List assumed such filing;
held that, in technical terms, O. 84 r. 22 RSC does not require a notice party to file a statement of opposition, but if it wishes to do so outside a time limit fixed by an order, it must seek an extension of time under O. 122 r. 7 RSC;
identified the governing test as the “interests of justice”, citing Ballyboden Tidy Towns Group v An Bord Pleanála [2024] IESC 4;
accepted, on affidavit, that the failure to file was a human oversight; and
emphasised that the applicants had had full actual notice of the contents of the statement of opposition and the affidavits for months.

He rejected the applicants’ objection as “meritless technicality and an opportunistic attempt to capitalise on human error” (para. 79), invoking Lynch J.’s observation in DPP v Corbett (1992) that “the day is long past when justice could be defeated by mere technicalities which did not materially prejudice the other party”.

Two notable points emerge:

Substance over form: Where a party has served its pleading and the other side is fully aware of it, the mere absence of formal filing will rarely justify excluding that pleading, especially when the defect is promptly addressed once discovered.
Independence of evidential admissibility: Even if the statement of opposition remained unfiled, affidavits sworn and filed in the case would not automatically become inadmissible. Any party may adduce evidence to assist the court, and the court is not constrained to ignore relevant sworn evidence because of a pleading irregularity.

Crucially, Humphreys J also made it clear that, even had he refused to allow late filing, the outcome would have been the same: the applicants bore the onus of proof and had not discharged it. Thus, the procedural ruling is carefully insulated from any allegation that it was outcome-determinative.

3.3 Core Ground 1 – The “Owner’s Consent” and Sporting Rights

3.3.1 The statutory framework

Article 22(2)(g) of the PDR 2001 provides that where the applicant is not the “legal owner” of the land or structure concerned, the application must be accompanied by:

“(i) the written consent of the owner to make the application …”

The Planning and Development Act 2000 defines “owner” (s. 2) as:

“… a person, other than a mortgagee not in possession, who, whether in his or her own right or as trustee or agent for any other person, is entitled to receive the rack rent of the land or, where the land is not let at a rack rent, would be so entitled if it were so let …”

This is a technical definition: “owner” means the person entitled to receive the full market rent (“rack rent”) of the land – in practice, the freeholder in almost all cases.

3.3.2 The applicants’ argument

The gun club and the Marquis of Waterford asserted that:

the gun club held sporting rights since 1966 by agreement with the Marquis;
therefore they had an interest in the land; and
the developer was required to obtain their written consent under art. 22(2)(g), or, at minimum, the Marquis’ consent as owner of those rights.

They also relied on Frescati Estates Ltd v Walker [1975] IR 177 – a foundational case that historically had been used to police “meddlesome interloper” planning applications – to argue that the planning application was void ab initio for want of sufficient land interest.

3.3.3 The Court’s analysis: who is the “owner”?

Humphreys J took a clear textual approach:

The phrase “legal owner” in art. 22(2)(g) is informed by the statutory definition of “owner” in s. 2 of the 2000 Act – the person entitled to receive the rack rent.
That is “normally the freeholder”.
Other types of proprietary interest in land (such as a lease of shooting rights) are still “land” in a broad sense, but that does not transform the holder of such rights into an “owner” for art. 22 purposes.

Accordingly:

Only the freeholder (or equivalent “rack rent” owner) need give consent for a third party to make the planning application.
A lessee of sporting rights – and even the freeholder as regards those rights specifically – is not the type of “owner” whose separate consent is required under art. 22(2)(g).

This is an important clarification: the consent requirement is narrow and formal, not a general protection for all conceivable property interests.

3.3.4 The place of Frescati Estates v Walker after the 2001 Regulations

The judgment is particularly significant in how it recalibrates the status of Frescati in contemporary planning law.

Key points:

Humphreys J endorses the view (expressed in Simons’ text) that Frescati is “to a large extent … not materially relevant” because art. 22(2) of the 2001 Regulations now prescribes in detail what must accompany an application.
He notes that the Act considered in Frescati has been repealed; the 2000 Act assumes that an application is to be made “in accordance with regulations”, and those regulations now “occupy the field”.
It is not a case of a statutory instrument overruling a Supreme Court judgment; it is a case of the legislative framework itself changing, which necessarily changes the interpretative starting point.

He underscores a separation-of-powers theme: once the Oireachtas enacts new, clear statutory or regulatory text, courts must apply that text rather than cling to a judicial gloss derived from a repealed regime. Old case law is not an “enduring touchstone” if the legal landscape has been rewritten.

So, while Frescati remains historically important (especially as a property-rights driven limit on meddlesome interlopers), its practical reach is narrowed and subordinated to the explicit requirements of art. 22.

3.3.5 Balancing screening out frivolous applications vs practicality

Humphreys J adopts an explicitly pragmatic “trade-off” analysis, quoting Thomas Sowell’s reminder that “there are no solutions, only trade-offs”. Applied here:

If consent thresholds are set too low, “anybody can apply for permission improperly”.
If thresholds are set too high, they create “technical traps” and force planning authorities into complex title enquiries for which they are unsuited.

The legislature’s judgment call – as reflected in art. 22 – is that:

Validity of the application turns on the consent of the legal owner (freeholder);
the existence of other rights-holders may be relevant only at the stage of deciding whether the development can lawfully be implemented (if it is obvious that it cannot be); but
planning authorities are not expected to conduct intricate property law investigations into subordinate rights.

Thus, even where someone else’s consent would be required in private law to carry out the development, this does not retroactively invalidate the planning application.

3.3.6 Standing and ius tertii

A further obstacle for the applicants was that the primary rights-holder – the Marquis of Waterford – was not a party. The applicants pointed to an affidavit in which he expressed willingness to be joined, but never actually applied for such joinder.

Drawing on Cahill v Sutton [1980] IR 269 and subsequent planning jurisprudence, the Court held:

an applicant cannot assert the constitutional or fair procedures rights of a third party (the ius tertii rule), save in exceptional circumstances;
mere willingness of the rights-holder to be joined, without an application actually made, does not overcome this.

Thus, even if the sporting rights issue had traction in substance (which it did not), the applicants’ capacity to rely on the Marquis’ independent rights was legally constrained.

3.4 Core Ground 1 – Wayleaves and Mapping Obligations

3.4.1 The regulatory obligation

Under art. 22(2)(b)(iii) PDR 2001, planning applications must be accompanied by site location maps on which “wayleaves” are identified (traditionally in yellow). The applicants argued that:

there were utility poles and overhead lines (ESB or telecoms) running within or over hedgerows at the boundary near the fourth applicant’s house;
these constituted “wayleaves”;
they were not marked on the application drawings; and
this omission invalidated the planning application ab initio.

They also contended that this had material consequences because hedgerow enhancement was proposed as mitigation for visual impact and glint/glare, and utility lines are “incompatible” with high hedgerows.

3.4.2 Onus of proof: proving that a wayleave exists

Humphreys J starts at first principles: the onus of proof lies on the applicant to show that:

there is a wayleave; and
it was not shown on the application drawings.

The existence of physical poles and wires is not the same as the existence of a legal wayleave. The applicants had not:

produced any evidence (deeds, maps, statutory notices) showing a grant or statutory acquisition of a wayleave; or
taken any steps to call upon the statutory undertakers (ESB, telecoms providers) to clarify the legal basis for the lines.

Their failure to use available mechanisms to obtain this information meant they had not discharged the burden of proof. In the absence of such proof, the court could not find that a wayleave existed that should have been mapped.

3.4.3 Confined to pleadings: ESB line vs telephone line

An important pleading point arose. At leave stage, the applicants had narrowed their claim to a single wayleave claim: the line running across the road from the fourth applicant’s house, described and pleaded as an ESB line interfering with hedgerow growth.

By the time of Module II, however, they accepted that:

the line they had focused on is not in fact an ESB line; and
they sought instead to rely on a different ESB line “passing over the roadside hedgerow” and an old telephone line.

The Commission’s written submissions (quoted extensively by the Court) exposed this shift and its implications:

the ESB line now relied on was not pleaded;
there was no evidence of a wayleave for the old telephone line, nor any specific statutory power to cut hedges for that line; and
the glint and glare assessment showed that, with existing screening, there was no glint/glare impact on the relevant houses (H25 and H26).

The Court accepted that:

any case based on the ESB line fell “far outside the pleadings” (para. 117(vi)); and
in any event, the mapped layout indicated that no solar panels were proposed in the very corner of the site near the ESB line, and no additional screening was required there to avoid impact.

Thus, both on pleadings and on substance, the wayleave complaint collapsed.

3.4.4 Workability and the Registration of Title Act 1964

The judgment is particularly instructive in how it links wayleave mapping obligations with the law of registered land.

Sections 69 and 72 of the Registration of Title Act 1964 provide that:

certain easements, profits à prendre and wayleaves may be registered as burdens affecting registered land (s. 69);
but importantly, other categories – including easements not created by express grant or reservation after first registration, and certain statutory gas wayleaves – can bind land without registration (s. 72);
in other words, a substantial number of easements and wayleaves are effective without appearing on the folio.

Humphreys J emphasises the practical consequences:

A developer examining the title (the folio) cannot be confident of identifying all existing wayleaves, because some need not be registered at all.
Imposing an obligation on the developer to declare, on pain of certiorari, all wayleaves affecting the land – including those not apparent from the folio and not reasonably knowable – would be “unworkable”.

Invoking the Supreme Court’s workability principle in Waltham Abbey v An Bord Pleanála; Pembroke Road Association v An Bord Pleanála [2022] IESC 30, he holds that:

legal obligations, including those in planning regulations, must be interpreted in a way that is “workable” and does not impose “impossibly onerous and unworkable obligations”; and
this militates against treating art. 22(2)(b)(iii) as requiring the mapping of any conceivable, possibly unregistered wayleave.

Accordingly, in the absence of a demonstrated basis from the title or other clear evidence that a wayleave existed, there was no breach of art. 22.

3.4.5 Prejudice and harmless error

Even if a technical breach of art. 22(2)(b)(iii) had been shown, the Court makes clear that this would not automatically justify quashing the permission. Applying the “harmless error” doctrine (discussed below), he notes:

the applicants “knew all about these lines or should have done so”; their failure to object during the planning or appeal process indicates a lack of prejudice;
the glint and glare assessment, and the inspector’s photographs, show that the Commission was fully aware of the hedgerows and utility lines as part of the site context;
there was no evidence that any member of the public was misled or prevented from participating effectively; and
no concrete prejudice to the applicants’ interests was established.

Thus, even if a mapping omission were assumed, it would be a non-material defect, insufficient to trigger certiorari as a matter of either EU law or domestic discretion.

3.5 Core Ground 2 – Constitutional Property Rights and Fair Procedures

Core Ground 2 alleged that the decision violated the constitutionally protected property rights of the fifth applicant (the gun club) and breached fair procedures. In effect, it re-packaged the sporting rights and wayleave arguments in constitutional language.

The Court disposed of this ground relatively briefly but decisively:

A planning permission is not an authorisation to commit trespass, nuisance or other civil wrongs. Section 34(13) PDA 2000 (though not quoted in full in the judgment) embodies this principle: permission does not abrogate private law or constitutional rights.
If, when implemented, the development infringes the gun club’s or the Marquis’ rights, they retain their full range of civil and constitutional remedies in separate proceedings.
Thus, the grant of permission itself is not unfair or constitutionally invalid merely because of a potential future interference with rights.
The applicants did not plead or prove that the project was so plainly unlawful vis‑à‑vis those rights that the Commission, as a reasonable decision‑maker, was bound to refuse permission.

Once again, standing/ius tertii issues also arise: the main rights-holder (the Marquis) was not a party, and the applicants could not assert his constitutional rights on his behalf.

3.6 Harmless Error and Discretion

The judgment contains an extended exposition (paras. 59–60, 117) of the doctrines of harmless error and judicial discretion, much of it drawn from earlier case law but applied concretely here.

3.6.1 Harmless error

The Court reaffirms that:

Not every legal error or procedural defect requires quashing a decision.
The key question is whether the error could have had a material effect on:
- the outcome of the decision; and/or
- the effectiveness of public participation.

Drawing on CJEU authority, especially Gemeinde Altrip (C‑72/12), and domestic cases such as Carrownagowan Concern Group v An Bord Pleanála and Massey v An Bord Pleanála, the Court notes that:

where an error is demonstrated, the burden shifts to the decision‑maker or developer to show that the error is harmless;
the court may rely on evidence from the developer to reach that conclusion; and
a decision should not be quashed for “things that make no difference”, absent a mandatory provision requiring such a result.

Applying that to the alleged wayleave mapping error:

no evidence of any actual prejudice was adduced;
the Commission had full appreciation of the site context (hedgerows, poles, lines);
glint/glare impacts were assessed as nil with existing screening; and
any mapping defect, if it existed, would be “harmless” in Altrip terms.

3.6.2 Discretion in judicial review

Certiorari is a discretionary remedy. The Court recalls factors that inform that discretion, including:

the applicant’s conduct (e.g. failure to raise issues at the earliest opportunity in the administrative process);
the seriousness vs triviality of the non-compliance;
the presence or absence of prejudice to the applicant or others;
whether the issue is historic or capable of repetition;
whether the error was once-off and whether it was promptly rectified; and
proportionality and practical utility of the remedy.

On the facts of Cummins (No. 2), even if one assumed technical defects in consents or wayleave mapping, these would:

be highly technical;
have caused no demonstrated prejudice;
not gone to the heart of proper planning and sustainable development; and
not justified the drastic remedy of quashing a major renewable energy permission.

Humphreys J explicitly states that he would, in any event, have declined certiorari as a matter of discretion (para. 117(xvii)–(xviii)).

3.7 Strict Pleading and Onus of Proof Reaffirmed

The judgment also reinforces well-established but increasingly emphasised norms on pleading and proof in planning judicial review:

Applicants are confined to their statement of grounds (O. 84 r. 20(3) RSC; Concerned Residents of Treascon and Clondoolusk; Ballyboden Tidy Towns).
High-level recitations of principles (e.g. about EU environmental law, property rights, fairness) do not suffice; a “route-map” from facts to relief must be clearly articulated.
The onus of proof lies on the applicant throughout, including:
- proving factual predicates (e.g. the existence of a wayleave); and
- showing any alleged environmental assessment gaps by expert evidence or patent flaws on the face of the material.

In this case, the applicants’ failure to:

plead the ESB line now relied upon,
adduce evidence that any wayleave actually existed, or
show concrete prejudice arising from any mapping omission,

meant that, even ignoring the notice party’s affidavits, their case failed on the burden of proof alone.

4. Complex Concepts Simplified

4.1 Wayleaves and Easements

A wayleave is a type of easement – a right to pass over or under someone else’s land, usually for utility infrastructure (pipes, cables, power lines). It has a legal dimension:

Physically seeing a line or pipe does not tell you what the legal right is.
The right may arise from:
- a written agreement;
- a statutory “compulsory” acquisition power; or
- long use (prescription).

Under the Registration of Title Act 1964, some easements and wayleaves must or may be registered, but others automatically bind the land without appearing on the folio. This makes it impossible to deduce all such rights purely from title documents, which is why the court stresses “workability” when interpreting planning obligations to show wayleaves on maps.

4.2 Rack Rent and “Owner” in Planning Law

“Rack rent” is essentially the full market rent a property could command in an open market – not a nominal or peppercorn rent. The person entitled to receive this full market rent is, by definition, the “owner” for planning purposes.

Consequences:

“Owner” in the Planning and Development Act 2000 does not simply mean “anyone with an interest in land”; it means the person at the top of the chain, financially speaking – usually the freeholder.
Holders of lesser rights (leases, licences, sporting rights) are not the “owners” whose consent is required by art. 22(2)(g).

4.3 Sporting Rights

Sporting rights are the right to hunt or shoot on land. They can be:

owned by someone other than the freeholder;
leased or licensed to clubs or individuals; and
valuable property rights in their own right.

However, in planning law:

they are subordinate rights, sitting “under” the freehold;
they do not make their holders “owners” for art. 22(2)(g) purposes; and
absence of their consent does not render a planning application invalid.

If development interferes with those rights in implementation, the rights-holder can sue, but the planning permission itself is not thereby invalid.

4.4 Ius Tertii

“Ius tertii” (“the right of a third”) refers to an attempt by A to rely on the rights of B as a basis for challenging a measure, when B is not party to the case.

Irish constitutional and judicial review law generally prohibits this, except in tightly confined exceptions. Each rights-holder should, in principle, vindicate their own rights. In Cummins (No. 2), the applicants could not rely on the Marquis’ property rights when he was not joined as a party.

4.5 Harmless Error Doctrine

In both EU and Irish law, a public law decision is not quashed merely because:

some procedural step was imperfectly carried out, or
a technical requirement was not complied with to the letter.

The doctrine of harmless error asks:

Could this defect reasonably have affected the outcome or the quality of public participation?

If the answer is “no”, and the court is satisfied (taking into account any evidence from the decision-maker or developer), then the defect is treated as “harmless” and does not warrant quashing, especially in the absence of a mandatory rule requiring nullity.

5. Impact of the Judgment

5.1 For Developers and Planning Authorities

Consent requirements clarified: Developers need only obtain and exhibit the consent of the statutory “owner” (rack-rent/freehold owner). They are not required to chase consents from every rights-holder (e.g. sporting rights, licences) as a condition of a valid application.
Practical mapping of wayleaves: Developers must still show known wayleaves on site maps, but the Court recognises that they cannot be held responsible for unknown or unregistered burdens. Title searches and reasonable enquiries suffice; there is no duty of exhaustive investigation.
Role of planning authorities: They are not expected to resolve complex property law disputes at application stage. They should, however, refuse permission where it is clear on the face of the materials that the project is incapable of lawful implementation.

5.2 For Objectors and Community Groups

Higher bar for technical property-rights objections: Challenges based on alleged defects in consents or mapping now face a high hurdle:
- objectors must produce cogent evidence (not just photos and suspicion) of legal wayleaves or rights; and
- they must demonstrate material prejudice or planning significance – not just theoretical conflict.
Pleading discipline: Objectors must carefully define the factual basis of their grounds at leave stage. Changing the core factual narrative midstream (e.g. which utility line is at issue) will not be permitted.
Need to raise issues early: Failure to raise a point in the planning or appeal process can count heavily against relief, both in assessing whether there was a flaw and in the exercise of discretion.

5.3 For Property Rights Jurisprudence

Planning vs private rights separated: The judgment reaffirms that planning permission is about the public interest in land use (proper planning and sustainable development), not about adjudicating private property disputes.
Frescati narrowed: By locating Frescati in its historical and statutory context, the Court signals that property-rights based challenges to planning permissions must now be anchored in the 2000 Act and the 2001 Regulations, not in free-floating “inherent jurisdiction” to police land interests.

5.4 For Renewable Energy Projects

In the renewable energy context, where large tracts of rural land and multiple overlapping interests are common, the judgment provides:

greater certainty that permissions will not be derailed by minor technical or latent property rights disputes; and
comfort that planning decisions will be tested against workable, realistic standards, particularly in relation to title and infrastructure mapping.

At the same time, it preserves the possibility of genuine challenges where:

there is clear evidence of substantial unaddressed rights conflicts; and
those conflicts are so obvious that a reasonable planning authority could not ignore them.

6. Conclusion

Cummins & Ors v An Coimisiún Pleanála (No. 2) is more than a procedural coda to the earlier Module I judgment. It consolidates and sharpens several strands of modern Irish planning law:

Only the legal owner, defined by entitlement to rack rent, must consent to a third party’s planning application. Subordinate rights-holders’ consent is not a prerequisite to validity.
The old Frescati doctrine is now largely superseded by, and must operate within, the detailed framework of art. 22 PDR 2001 and the 2000 Act. Judicial gloss on repealed statutes cannot override new express legislative text.
Obligations to map wayleaves and similar burdens are constrained by workability: developers cannot be expected to identify unknown or unregistered easements, and technical omissions that cause no real prejudice will not suffice to overturn permissions.
Planning permission does not authorise unlawful encroachments on property rights; those rights remain enforceable in their own forum. Only where illegality is clear and unavoidable at the planning stage will it ground invalidity of the permission.
The doctrines of harmless error and discretion remain central: certiorari is a serious remedy, not a mechanical response to every procedural misstep or technical irregularity.
Finally, the judgment reinforces the strict requirements for clear pleadings and evidential substantiation in environmental and planning judicial review: applicants must define their case precisely, prove the factual predicates, and show material prejudice.

Taken together, these principles support a planning system that is both respectful of property rights and conscious of environmental obligations, but also resistant to purely technical or speculative challenges that would undermine workable administration and the delivery of large-scale infrastructure, including renewable energy projects.