Primitive Access Tracks Are Not “Roads” for EIA Purposes: Definitional Alignment with the EIA Directive and Pleading Discipline in Cummins & Ors v An Coimisiún Pleanála [2025] IEHC 521

Introduction

This modular judgment of Humphreys J in the High Court of Ireland arises from a challenge to An Coimisiún Pleanála’s decision granting permission (on appeal) for a Phase 2 solar farm near Clonea Power and Mothel, County Waterford, in proximity to the Lower Suir Special Area of Conservation (SAC), a designated habitat for Otter (Lutra lutra) and Freshwater Pearl Mussel (Margaritifera margaritifera). The notice party developer had secured Phase 1 permission in 2019 (for a solar farm and substation), and sought Phase 2 permission in 2023, granted by the council and upheld by the Board in April 2024.

The applicants—four local residents and the Clonea Gun Club—mounted a suite of domestic and EU law challenges, including alleged failures to have proper regard to the Development Plan, improper consideration of economic viability for a 40-year operational life, failure to seek further information (including an Architectural Heritage Impact Assessment), and alleged defects in appropriate assessment (AA) and EIA screening, especially concerning Otter and Freshwater Pearl Mussel.

Because of a procedural anomaly (the notice party’s statement of opposition was not properly filed), the Court adopted a modular approach. This first module addresses and dismisses core grounds 3 to 5 and 7 to 8; core grounds 1 and 2 (relating to wayleaves/consent and property rights) remain outstanding.

Summary of the Judgment

• Core Ground 3 (Development Plan UTL13 – alternatives): Dismissed. The Board had regard to the Development Plan, including UTL13’s alternatives principle; the choice not to seek more information was a merits decision.
• Core Ground 4 (40-year operational period – economic viability): Dismissed. Economic viability is a relevant planning consideration inherent to proper planning and sustainable development, particularly in renewable energy contexts.
• Core Ground 5 (further information – architectural heritage, habitats/botany, noise): Dismissed. Whether to seek further information is a merits judgment; reasons were adequate and the s.28 Architectural Heritage Guidelines are “have regard to” rather than mandatory.
• Core Ground 7 (AA adequacy – Otter and FPM): Dismissed. A typographical error about an “otter slide” was immaterial; applicants failed to establish lacunae or scientific doubt that the Board was required to dispel. The Board’s engagement with expert critique (including commissioning its own ecologist) was lawful.
• Core Ground 8 (EIA screening): Dismissed. Challenges alleging “urban development,” “industrial installation,” or “overhead cables” were implausible on the facts and law (solar farms are not EIA projects per settled Irish authority). Crucially, the Court sets a new definitional test: rudimentary internal access tracks are not “roads” for EIA purposes. Moreover, the applicants’ pleaded reliance on sub-threshold screening self-defeated: if the tracks were “roads,” the length (>2km) would be above threshold and article 103(1B) would not apply; if not “roads,” no EIA screening arose.
• Orders: Proceedings dismissed on grounds 3–5, 7 and 8 (subject to consequential issues from grounds 1–2); costs reserved; order not perfected pending Module II; matter listed for mention.

Analysis

Precedents Cited and Their Influence

• Pleading discipline and clarity:
  • Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28: Supreme Court emphasis on confining parties to pleadings and the need for acceptable clarity; relied upon to confine the applicants’ arguments and refuse an unpleaded CJEU reference.
  • People Over Wind (No. 1) [2015] IEHC 271; Ballyboden Tidy Towns [2022] IEHC 7; Hellfire Massy Residents [2022] IESC 38; Reid (No. 7) [2024] IEHC 27: reiterated the stringent Order 84 pleading standard, the prohibition on “scattergun” pleadings, and the need to map facts to relief.
  • Carvill v An Bord Pleanála [2025] IECA 84: court must address pleaded objections; supports the approach to reject points either on pleading or merits.
• Assessment standards:
  • Waddenzee (C-127/02) AG and Judgment; Holohan (C-461/17); Commission v Ireland (C-50/09): AA must dispel reasonable scientific doubt using best scientific knowledge; EIA must be as complete as possible; courts must ensure thorough scrutiny.
  • Champion [2015] UKSC 52; Smyth [2015] EWCA Civ 174; Wyatt [2022] EWCA Civ 983: AA/EIA conclusions are evaluative judgments for the competent authority.
• Statutory interpretation:
  • Heather Hill IESC 43; A, B & C [2023] IESC 10; Maher [2024] IESC 14; Donegal v Quinn [2025] IESC 19: text, context, and purpose as co-equal interpretive tools.
  • Blackbushe Airport [2021] EWCA Civ 398 and Bourne v Norwich Crematorium [1967] 1 WLR 691: ordinary meaning derived from practice; avoid disaggregated dictionary parsing.
  • Marleasing (C-106/89); East Donegal; ECHR Act s.2: conforming interpretation to EU, constitutional and ECHR norms where possible.
• Solar farms and EIA classification:
  • Sweetman v ABP (2020) IEHC 39; Kavanagh v ABP (2020) IEHC 259; Concerned Residents of Treascon [2024] IESC 28: solar farms are not “industrial installations for the production of electricity” for Annex II purposes; supports refusal to expand EIA classes.
  • Reid (No. 5) [2022] IEHC 687; Ryan v ABP [2025] IEHC 111: “urban development” category construed contextually; solar farm dissimilar.
• “Roads” in EIA law:
  • Commission v Ireland (C-427/07): led to inclusion of “private roads” >2km as EIA projects in Irish law; but the instant ruling focuses on what counts as a “road” for EIA purposes in the first place.
  • Interpretation Act 2005 s.19 and Planning and Development Act 2000 s.2(8): terms in regulations informed by the EU Directive meaning; key to aligning “road” with the EIA Directive rather than the broader Roads Act 1993 definition.
• Harmless error and expert disagreement:
  • Massey v ABP (No. 2) [2025] IEHC 206: immaterial errors (e.g., typographical) do not warrant certiorari.
  • Environmental Trust Ireland [2022] IEHC 540; Eco Advocacy [2025] IEHC 15: expert disagreement does not itself vitiate AA; challengers bear the burden to show legal/scientific insufficiency.

Legal Reasoning

The Court’s reasoning proceeds in four principal strands: Development Plan compliance; relevance of economic viability to planning conditions; the Board’s discretion on further information; AA adequacy; and EIA classification—culminating in a new articulation of “road” for EIA purposes.

1) Duty to have regard to the Development Plan (UTL13 alternatives)

The applicants alleged that the Board failed to have proper regard to UTL13’s requirement to consider reasonable alternatives at the initial design stage for renewable infrastructure. The Court found that the inspector explicitly engaged with UTL13, acknowledged the “scant” alternatives narrative, and explained why further information was unnecessary, including the close integration with Phase 1 infrastructure (thereby advancing UTL13’s policy of utilising existing assets). The duty to “have regard to” was satisfied. Absent a pleaded material contravention, complaints about the weight attached are merits-based and non-justiciable.

2) Economic viability and the 40-year operational period

The challenge to the Board’s reliance on economic viability failed. The Court squarely held that “proper planning and sustainable development” encompasses whether a permission can be implemented and operated viably. Economic viability, including the interaction with the Renewable Electricity Support Scheme and consumer cost reductions, is a legitimate factor. The Court noted contextual support in the Renewable Energy Directive (RED II/RED III), which promotes streamlined procedures for repowering and longer-term operational horizons. Acceptance of the developer’s rationale did not amount to abdication; it reflected a reasoned planning judgment.

3) Further information (AHIA, habitats/botany update, and noise)

The Board’s choice not to seek an Architectural Heritage Impact Assessment, despite the conservation officer’s recommendation, was within its margin of planning judgment, supported by the Archaeology and Cultural Heritage Impact Assessment and LVIA material, the site’s separation from the Clonea ACA (approx. 450m), and the inspector’s reasoned appraisal. Section 28 guidelines are not mandatory; they are “have-regard-to”. On habitat/botany timing and noise, the Court found adequate engagement and reasoning in the materials and inspector’s report. The applicants identified no legal defect in the way the Board exercised its discretion.

4) Appropriate Assessment (AA) – Otter and Freshwater Pearl Mussel

The Court rejected the AA challenge. A typographical error in the inspector’s report (“an otter slide was found within the site a…”) was immaterial. Substantively, the NIS and PECR addressed noise and disturbance in context: no otter holts were found; construction would occur during daytime hours; and potential sediment effects were assessed. On Freshwater Pearl Mussel, the Board considered criticisms (including those of Dr Evelyn Moorkens submitted at appeal), commissioned its own ecologist (Dr Maeve Flynn), and addressed the issues. Without sworn expert evidence impeaching Dr Flynn’s analysis or an evident face-value flaw, the applicants did not discharge their burden to show a lacuna.

Importantly, the Court flagged a developing EU law overlay: the insertion by RED III of Article 16b(2) to Directive 2018/2001 (not yet transposed) providing that, where necessary mitigation is adopted, certain killings/disturbances of strictly protected species shall not be considered deliberate; this underlines a policy trajectory toward enabling renewables while maintaining safeguards. The Court urged urgent transposition.

5) EIA Screening – Project classification and the meaning of “road”

The EIA claims fell into two groups:

• Non-road classifications (urban development; industrial installations; overhead cables; grid connection): Rejected as implausible or factually misplaced. Irish authority consistently holds that solar farms are not Annex II “industrial installations for the production of electricity” and are dissimilar to “urban development”. The attempted CJEU reference was inadmissible (unpleaded) and, in any event, acte clair against the applicants.
• “Private roads” >2km: The applicants argued that circa 3.5 km of internal tracks met the “private roads” EIA class and that the Board failed to screen under article 103(1B). The Court’s pivotal analysis proceeds in two steps:
  • Pleading self-destruction: Article 103(1B) applies only to sub-threshold developments. If the tracks are “roads,” 3.5 km exceeds the 2 km threshold, so the pleaded sub-threshold screening duty cannot arise; if they are not “roads,” no EIA duty arises. The ground fails on its own terms.
  • Definitional alignment with the EIA Directive: The Court held that terms in Schedule 5 of the 2001 Regulations must bear the meaning of the EIA Directive, not the broader Roads Act 1993 definition (by virtue of s.2(8) PDA 2000 and s.19 Interpretation Act 2005). Considering the Directive’s text, context (noscitur a sociis—roads alongside “harbours and port installations”), and purpose, “road” for EIA purposes denotes a way constructed and finished by modern and more-than-rudimentary methods, suited to independent movement of persons, animals or vehicles, with ancillary infrastructure. Rudimentary or primitive access tracks (such as those formed with geotextile, base stone and quarry dust) do not meet this threshold. On that basis, the solar farm’s internal gravel tracks were not “roads” under the Directive.

Impact and Significance

A. A new definitional rule for “road” under EIA law

The judgment crystallizes a novel and practical test in Irish EIA jurisprudence: internal, rudimentary access tracks typically used within solar (and likely other) projects do not constitute “roads” for the purposes of Schedule 5/EIA Directive classification. This is significant because:

• It prevents the routine reclassification of internal farm/forest/renewable project tracks as “roads,” which would artificially trigger EIA obligations contrary to the Directive’s text and purpose.
• It anchors domestic interpretation to the EU meaning, ensuring uniformity and avoiding overreach that would rewrite the Directive by implication.
• It provides a workable metric for planning authorities and developers: “modern and more-than-rudimentary” construction and finish, coupled with ancillary infrastructure, marks the line between a “road” and a mere access track.

B. Renewables planning: viability is legitimately within “proper planning and sustainable development”

The express recognition that economic viability can inform conditions such as operational duration is highly consequential for renewable projects. It aligns with RED II/RED III policy objectives and supports a planning practice that ensures projects, once permitted, can actually deliver energy and climate benefits rather than become stranded or underutilized assets.

C. Pleading discipline reinforced

The Court’s reliance on Order 84 and recent appellate authority reaffirms that planning judicial reviews must be tightly pleaded. Unpleaded innovations (such as the proposed CJEU reference) will not be entertained; “scattergun” grounds will not be rewarded. This disciplines future litigants to identify precise legal errors and to link them to the relief sought.

D. AA litigation: evidentiary burden on challengers

Where the Board has engaged with expert critique (including commissioning its own specialist), and the applicants do not adduce sworn expert evidence to demonstrate a scientific flaw or a clear face-value gap, AA challenges will struggle. The Court’s emphasis on the challenger’s burden and on distinguishing immaterial errors reflects a trend toward robust but realistic judicial scrutiny.

E. Legislative alert: urgent transposition of RED III species interaction provisions

The Court’s observation that Article 16b(2) RED III has not yet been transposed signals an immediate compliance task for the State, with practical consequences for permitting, AA, and species protection jurisprudence in renewable energy projects.

Complex Concepts Simplified

• Appropriate Assessment (AA) vs Environmental Impact Assessment (EIA):
  • AA is a site-specific, species/habitats-focused assessment under the Habitats Directive, triggered where a plan/project may affect a Natura 2000 site. The decision-maker must be satisfied beyond reasonable scientific doubt that site integrity will not be adversely affected.
  • EIA is a broader environmental assessment of certain classes of projects with likely significant effects, as defined in Annex I/II of the EIA Directive and national transposition (e.g., Schedule 5 of the 2001 Regulations).
• Sub-threshold vs above-threshold EIA:
  • Above-threshold projects require EIA by class/size (e.g., private roads >2,000 m).
  • Sub-threshold projects may still require screening if likely to have significant effects; article 103(1B) addresses the screening duty for sub-threshold developments only.
• “Road” for EIA purposes:
  • Not the same as the very broad Roads Act 1993 definition. For EIA, “road” must be construed by reference to the EIA Directive: a way constructed and finished by modern and more-than-rudimentary methods, for the independent movement of persons, animals or vehicles, with ancillary infrastructure. Primitive gravel/dust access tracks generally will not qualify.
• Section 28 guidelines:
  • They are “have regard to” instruments, not absolute requirements. Authorities may depart with cogent reasons.
• “Proper planning and sustainable development”:
  • A holistic standard that includes environmental, social and economic dimensions. Whether a permitted project can operate viably over its life is a legitimate factor.
• Harmless error:
  • Not every mistake warrants quashing. Trivial or immaterial errors (e.g., typographical slips) do not undermine otherwise lawful decisions.
• Modular judgment:
  • The Court may decide discrete clusters of grounds where procedural circumstances justify, leaving others (here, wayleaves/consent/property grounds) to a later module.

Conclusion

Cummins & Ors v An Coimisiún Pleanála is a substantial planning and EU environmental law decision that clarifies several recurrent issues in renewable energy permitting and judicial review practice. The standout contribution is the EU-conforming definition of “road” for EIA purposes: internal rudimentary access tracks—common in solar and wind projects—are not “roads” within the meaning of the EIA Directive and Schedule 5, and therefore do not, merely by their length, trigger EIA scrutiny. This is anchored in a careful treatment of text, context, and purpose, and in statutory interpretive canons that align domestic transposition with EU meaning.

The Court also affirms that economic viability is not an improper consideration; rather, it is integral to proper planning and sustainable development, particularly in the context of national and EU commitments to accelerate renewable deployment. On AA, the judgment reiterates the heavy burden on challengers to demonstrate substantive lacunae; disagreement among experts does not automatically disqualify the AA where the Board has lawfully weighed the evidence.

Finally, the decision underscores procedural rigor: tight pleadings under Order 84 are essential, unpleaded theories (including prospective CJEU references) will not be entertained, and benign mistakes will not overturn considered planning decisions. Together, these holdings provide a clearer roadmap for authorities and developers, especially in the renewable sector, while preserving robust environmental safeguards consistent with EU law. The remaining wayleave/consent issues await Module II, but for the grounds addressed, the legal terrain is now considerably more settled.