Section 146 Online-Publication Breaches: Declaratory Relief (Not Certiorari) and Costs Set-Off Where a Concession Is Not Timely Accepted

1. Introduction

This judicial review concerned An Coimisiún Pleanála’s decision (Order dated 30 June 2025) to grant permission for a seven-turbine wind farm in County Tipperary, together with extensive associated works, including an on-site substation, battery storage, and an underground grid connection to the Dallow 110kV substation in County Offaly. The applicants (five local individuals) advanced an exceptionally large “scattergun” challenge (133 grounds). The respondent was An Coimisiún Pleanála (the “Commission”); Carrig Renewable Energy Limited was the notice party.

The litigation distilled to one proven procedural failing: a single technical document (the Inspectorate Ecologist’s Technical Note dated 12 March 2025) was not uploaded to the Commission’s website within the statutory three-day post-decision timeline. The parties agreed that this justified declaratory relief. The core question became whether any additional relief—particularly certiorari quashing the permission—was warranted, and what costs consequences followed in a costs-protected planning JR regime.

2. Summary of the Judgment

Humphreys J. dismissed all substantive challenges to the permission. The only success was “one nugget of gold”: the Commission’s admitted failure to publish the Inspectorate Ecologist’s Technical Note on its website within three days post-decision, contrary to s.146(5) and (7) of the Planning and Development Act 2000. Because the breach occurred after the decision was made and did not infect the decision-making process, the appropriate remedy was a declaration, not certiorari.

A significant secondary holding concerned costs management in costs-protected environmental litigation. The Commission had offered to consent to a declaration (and limited costs) by letter of 14 November 2025, but the applicants did not clearly accept that concession until the hearing. The Court held that this caused unnecessary expense and ordered a set-off: applicants recovered costs on Ground 6 only up to 14 November 2025, but the Commission recovered (by set-off only) its costs from 15 November 2025 to the hearing date incurred defending the continued pursuit of certiorari on that ground.

3. Analysis

3.1 Precedents Cited (and Their Influence)

A. The nature of judicial review: legality not merits

• Sweeney v. Fahy [2014] IESC 50: cited for the foundational distinction that judicial review tests legality rather than correctness; it is not an appeal on the merits. This underpinned the Court’s repeated rejection of arguments that were, in substance, disagreements with planning judgment (e.g. noise criteria, safety concerns, evaluation of environmental evidence).
• the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3: relied upon to reaffirm that courts do not substitute their view for that of the decision-maker and that evaluative decisions are reviewed through established public-law standards (irrationality / legality, and proportionality where applicable).
• R (Cart) v. Upper Tribunal [2011] UKSC 28: deployed to caution against “dressing up” factual or merits complaints as points of law—an issue that recurred throughout the applicants’ challenge.
• Stapleton v. An Bord Pleanála & Savona [2025] IEHC 178 and Moran v. An Bord Pleanála [2025] IEHC 510: used as recent Irish authority to reinforce the same non-merits boundaries in the planning JR context.

B. Separation of powers and “judicial review is not politics by another means”

• R (Hoareau and Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) and the Irish constitutional authorities Sinnott v. Minister for Education [2001] IESC 63 and T.D. v. Minister for Education [2001] IESC 101: cited to emphasise that policy choices belong primarily to the political branches. This mattered in a renewable-energy case framed against climate obligations: the Court recognised the policy context but insisted that JR remains confined to legal invalidity.
• G. v. Ireland [2025] IESC 49 and comparative references (including United States v Butler (1936) 297 US 1): used to reinforce restraint where applicants attempt to turn broad constitutional principles into open-ended review powers.

C. Evaluative planning judgment and standard of review

• Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 (HL): cited on weight being for the decision-maker. The applicants’ attempt to re-litigate the Commission’s weighing of noise, safety, habitat loss, and ecological effects failed on this basis.
• Sherwin v. An Bord Pleanála [2024] IESC 13 and Graymount House Action Group v. An Bord Pleanála [2024] IEHC 327 (and refusal of leave in Graymount House Action Group v. An Bord Pleanála [2025] IESCDET 22): cited to support that planning evaluative judgment is reviewable on an irrationality standard where not tainted by legal/procedural error.

D. How to read administrative decisions: avoid micro-parsing

• M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, Rostas v. DPP [2021] IEHC 60, St. Margaret's Recycling v. An Bord Pleanála [2024] IEHC 94, Duffy v. An Bord Pleanála [2025] IEHC 715, Mulloy v. An Bord Pleanála [2024] IEHC 86, and Save Roscam Peninsula CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335: used for the interpretive discipline that decisions should be read “in the round” and, where reasonably possible, as valid rather than invalid. This was pivotal in rejecting readings of the permission as (for example) “authorising” expropriation of turbary rights, or rendering mitigation conditions void for uncertainty.
• R (Blewett) v. Derbyshire County Council [2003] EWHC 2775 (Admin) and O'Sullivan v. HSE [2023] IESC 11: cited against “legalistic over-parsing” and “pointless formalism”, particularly important given the applicants’ extremely granular attacks.
• Moore v. Dun Laoghaire Rathdown County Council [2016] IESC 70 and Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52: invoked to distinguish substantive legal wrongs from “technicalities” and to support a proportionality-sensitive approach to quashing.

E. Workability as an interpretive constraint

• Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord Pleanála [2022] IESC 30: treated as central authority requiring planning legislation to be interpreted coherently and workably. Humphreys J. relied on this in rejecting claimed “requirements” said to be implicit in the regulations (e.g. that design flexibility is unlawful; that planning must ensure compliance with separate licensing regimes).
• Kellystown Co. v. Hogan [1985] I.L.R.M. 200 (as cited in 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85): used to prioritise workable meaning aligned with the provision’s essence.
• An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8: relied upon (by analogy) to reject “impossibly onerous and unworkable obligations” in EU environmental assessment contexts.
• McGowan v. An Coimisiún Pleanála [2025] IEHC 405: cited both for workability and, specifically, that a discretionary power should not be construed to allow unworkable, unenforceable conditions—while clarifying that conditions can be imposed where compliance is reasonably envisaged.

F. Pleadings discipline in planning/environmental JR

• A.P. v. Director of Public Prosecutions [2011] IESC 2, Khashaba v. Medical Council [2016] IESC 10, Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42, and Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28: used to stress that applicants are confined to their pleadings and must state grounds precisely (Order 84 r.20(3)).
• People Over Wind & Anor. v. An Bord Pleanála & Ors. (No. 1) [2015] IEHC 271 and Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2022] IEHC 7: cited for “stringent” pleading requirements and the principle that ambiguity does not benefit an applicant.
• Sweetman v. An Bord Pleanála (Sweetman XV) [2020] IEHC 39 (approved in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28), Rushe v. An Bord Pleanála [2020] IEHC 122, and Alen-Buckley v. An Bord Pleanála [2017] IEHC 311: relied upon to demand particular clarity for EU-law/non-transposition style arguments—relevant to the applicants’ SEA-related attack.
• Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38 and Babington v. Minister for Justice Equality and Law Reform & Ors. [2012] IESC 65: directly addressed the dangers of scattergun pleadings and repetitive reformulations; the Court expressly characterised the applicants’ approach as loose/overbroad and attempted to interpret it but did not allow it to become a substitute for proper pleading.

G. Standing and ius tertii

• Cahill v. Sutton [1980] I.R. 269, Conway v. Minister for Housing, Local Government & Heritage & Ors. [2024] IESC 34, and Mohan v. Ireland [2019] IESC 18: cited to reject attempts to vindicate third-party property rights (e.g. turbary rights held by non-applicants) as a basis to quash a permission.
• Frascati Estates Ltd v. Walker [1975] I.R. 177, Heather Hill Management Company CLG v. An Bord Pleanála [2019] IEHC 450, Balscadden Road SAA Residents Association Ltd v. An Bord Pleanála [2020] IEHC 586, Heather Hill Management Company CLG v. An Bord Pleanála & Ors. [2022] IEHC 146, Minoa Ltd v. An Bord Pleanála [2024] IEHC 704, and Watchhouse Cross Shopping Centre v. An Coimisiún Pleanála [2025] IEHC 520: used to support the proposition that permissions are not ordinarily quashed for interference with third-party rights and that s.34(13) underscores that permission does not itself confer entitlement to implement development absent necessary consents.

H. Onus of proof and the “evidence problem” in environmental JR

• Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 and O'Doherty and Waters v. Minister for Health [2022] IESC 32: relied upon for the general principle that the applicant bears the onus of proof and that administrative decisions enjoy a presumption of validity.
• H.A. v. Minister for Justice [2022] IECA 166: cited for the limited circumstance where onus shifts—once error is shown, the respondent must show harmlessness. This directly informed the Court’s relief analysis on s.146 (error admitted; question became materiality/remedy).
• Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2024] IESC 4: used to confirm that developers can defend permissions even where the decision-maker does not (relevant to how burdens do not shift merely because a respondent concedes a discrete declaratory point).
• The Court’s extensive list of EIA/AA “evidential burden” authorities—An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8, Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (and refusal in Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9), Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (and refusal in [2025] IESCDET 41), Eco Advocacy CLG v. An Bord Pleanála & Statkraft [2025] IEHC 15, Eco Advocacy v. An Bord Pleanála [2025] IESCDET 74, and 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85: used to reject unsubstantiated claims that EIA/AA was inadequate. The applicants’ late affidavit (Lavelle) was found inadmissible/weightless, leaving them without expert evidence to displace the Commission’s technical conclusions.
• RAS Medical v. Royal College of Surgeons in Ireland [2019] IESC 4: applied to resolve conflicts of affidavit evidence (absent cross-examination) against the party bearing the onus—here, the applicants.
• Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206: cited to reject “ultracrepidarianism”—non-expert opinion standing in for expert evidence—on technical environmental assessment issues.

I. Project-splitting / multiple consents under the EIA Directive

• Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála (No. 1) [2022] IEHC 700, Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála (No. 2) [2023] IEHC 112, and Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28: cited for the proposition that EU law does not require centralisation of EIA into a single authority/consent and that multiple competent authorities may lawfully be involved, provided the “project as a whole” is appropriately assessed where required.
• The Court’s review of CJEU project-splitting authorities (e.g. Commission of the European Communities v Ireland, C-392/96; Commission v United Kingdom, C-508/03; Ecologistas en Acción-CODA v Ayuntamiento de Madrid, C-142/07; WertInvest Hotelbetriebs GmbH, C-575/21): informed the legal framework but, on the facts, the ground failed because the EIAR assessed the full grid connection, including the Offaly section.

J. Discretion and proportionality of relief

• Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52: relied upon to support the view that quashing for technical procedural error may be disproportionate—especially where the defect is post-decision and causes no demonstrated prejudice.
• O'Connell v. Behan [2021] IECA 186 and Dun Laoghaire Rathdown County Council v. Westwood Club Ltd [2019] IESC 43: used to locate JR remedies within discretionary (equitable) traditions, while acknowledging that discretion is constrained where EU law requires particular outcomes.
• S. v. Minister for Justice and Equality [2025] IESC 48: cited for the principle that the existence of alternative remedies can justify refusing to quash.

K. Draft judgments: confidentiality and administration of justice

• Attorney General v. Crosland (No. 2) [2021] UKSC 58: cited to justify restricting publication/transmission of draft judgments as part of protecting the administration of justice. While peripheral to the planning merits, it sets a clear procedural direction for parties in Irish planning JRs that use draft-judgment circulation.
• O'Sullivan v. Health Service Executive [2023] IESC 11 and O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75: invoked to emphasise that fairness does not entail “elaborate procedures at every point” and to resist over-judicialised approaches to civil/administrative process.

L. Climate context and renewables

• Coolglass v. ACP [2026] IESC 5: cited for the binding domestic climate framework (net-zero by 2050; 51% reduction by 2030) informing planning decision-makers’ legal context.
• Verein KlimaSeniorinnen Schweiz and Others v Switzerland: referenced for the proposition that the ECHR (via the European Convention on Human Rights Act 2003) carries climate-related obligations, situating renewable projects in an evolved rights-and-obligations landscape.

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3.2 Legal Reasoning

(1) The Court’s controlling framework: an “eight-fold test” for JR relief

Humphreys J. adopted and applied the cumulative “eight-fold path” to relief (as set out in Reilly v. An Coimisiún Pleanála [2025] IEHC 659 and noted as recently applied in Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23). The structure was not merely rhetorical: it functioned as a filter through which each ground predictably failed—on pleading, standing, evidence, materiality/harmlessness, or discretion.

(2) Inadmissibility/weight of late technical evidence (Lavelle affidavit)

A striking practical holding was the Court’s refusal to allow applicants to cure evidential deficits via a late “replying” affidavit that (i) introduced new material not before the Commission, (ii) was not filed at commencement, (iii) lacked proper expert foundations, and (iv) did not address matters through the lens of the record before the decision-maker. Even if admitted, conflicts would be resolved against applicants under RAS Medical v. Royal College of Surgeons in Ireland [2019] IESC 4. This reinforced a recurring planning JR reality: technical EIA/AA challenges usually require timely, admissible expert evidence.

(3) Design flexibility and “workable” interpretation of the Regulations

On “invalid application” arguments (Core Ground 1 / Core Ground 10), the Court rejected the premise that the Planning and Development Regulations require a fully fixed turbine specification at application stage. A limited range (tip height, hub height, rotor diameter) was not, of itself, unlawfully “imprecise”. A workable reading (invoking Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord Pleanála [2022] IESC 30) recognised market/technological realities and the regulatory purpose of public notice.

(4) Property rights and public roads: s.34(13), ius tertii, and the limits of planning permission

Core Ground 2 (turbary rights) failed primarily as ius tertii: the rights-holders were not applicants. The Court also adopted a “valid reading” of the permission: it did not “authorise” extinguishment of rights, nor did it mandate compensation; it simply acknowledged that implementation may require separate consents and that permission is not, per s.34(13), an entitlement to carry out the development absent other lawful permissions/consents.

Core Ground 3 (blade overhang and alleged nuisance) failed for lack of evidence of actual obstruction/danger and for attempting to convert speculative fear into legal invalidity. The Court treated safety evaluation as a matter for the statutory decision-maker absent proven legal error.

(5) Waste and “other codes”: no general duty on the Commission to police separate licensing regimes

Core Ground 4 framed peat/spoil management as “waste” requiring a waste licence and suggested the Commission erred by not analysing the project “through the lens” of waste legislation. The Court rejected that as unworkable: planning decision-makers are not general supervisors of other statutory codes. Absent a specific legal obligation to consider a separate-consent regime, “relevance” alone does not create a duty (an approach expressly linked to Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23).

(6) Mitigation conditions (Conditions 4 and 5) and control of land

The Court distinguished McGowan v. An Coimisiún Pleanála [2025] IEHC 405: conditions are unlawful only where the Commission cannot reasonably envisage the developer bringing about compliance (i.e., truly unworkable/un-enforceable). Here, mitigation conditions requiring implementation of EIAR/NIS measures were not shown to be beyond the developer’s capacity, particularly where works in a public road corridor may proceed with statutory undertaker powers and/or consent mechanisms.

(7) Section 146 publication: why the breach yielded declaration, not certiorari

The Court treated s.146(5) and (7) as governing post-decision transparency. The breach was admitted and remedied by later upload. Critically, because the upload timing occurs after the decision, it could not retroactively infect the legality of decision-making; no non-speculative prejudice to access to justice was established. Accordingly, declaratory relief was appropriate, but quashing was not.

(8) SEA challenge to the Wind Energy Development Guidelines 2006: proper parties and collateral attacks

The applicants’ SEA argument (Core Ground 9) was not determined on the substantive merits of whether guidelines are “plans and programmes”. Instead, it failed procedurally: the applicants did not join the appropriate State parties (Ireland/Attorney General/Minister). Without the legitimus contradictor, the presumption of validity of the guidelines could not be displaced, and the challenge became an impermissible collateral attack.

(9) Appropriate Assessment and EIA: the “evidence gap” is fatal

Core Ground 11 (AA) and related EIA complaints failed because the applicants did not adduce admissible expert evidence demonstrating that the Commission’s assessments could not lawfully dispel reasonable scientific doubt (AA) or that EIA was legally inadequate. The Court treated “mere assertion” as insufficient, consistent with the line of authority including Eco Advocacy CLG v. An Bord Pleanála & Statkraft [2025] IEHC 15, Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603, and the Supreme Court determinations refusing leave such as 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85.

(10) Project-splitting and the Offaly grid connection: no factual foundation

Core Ground 12 alleged unlawful splitting because Offaly County Council had separately permitted the Offaly segment and that permission was unappealed. The Court rejected this on the facts: the EIAR before the Commission identified, described, and assessed the full grid connection route, including the Offaly portion. The legal framework for multiple consents did not assist the applicants where no assessment gap was proven.

(11) Costs: s.50B permissive regime and Order 103 set-off

A noteworthy and practically significant aspect of the judgment is its express treatment of s.50B as permissive: there is no automatic right to positive costs, even for a successful applicant, and conduct-based costs orders remain available (s.50B(3)(b)). Where the Commission offered a declaration and limited costs on 14 November 2025, the applicants’ failure to clarify acceptance and their continued written pursuit of certiorari drove unnecessary expenditure. The Court therefore:

• awarded applicants costs for the declaration (Ground 6) only up to and including 14 November 2025; and
• awarded the Commission its costs incurred from 15 November 2025 to 20 January 2026 defending the continued pursuit of certiorari on Ground 6—enforceable by set-off only (no net adverse liability beyond set-off).

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3.3 Impact

• Remedies for transparency breaches: The decision strengthens the proposition that a post-decision transparency failure under s.146 will ordinarily yield declaratory relief (and possibly tailored costs), not the drastic remedy of quashing—absent proven material prejudice or linkage to decision-making legality.
• Procedural discipline in costs-protected litigation: The judgment signals that costs protection is not a licence to run needless points once relief is conceded. Order 103 r.39 set-off, coupled with s.50B(3)(b), provides a concrete mechanism to control unnecessary costs.
• Higher bar for technical environmental challenges without expert evidence: The decision consolidates the trend that AA/EIA adequacy attacks must be evidence-led; “mere assertion” and late, record-external affidavits will not suffice.
• SEA challenges require proper parties: Applicants seeking to argue that guidelines/policies are invalid for SEA reasons must properly constitute proceedings by joining the State; otherwise, the presumption of validity blocks a collateral attack within a project-specific JR.
• Renewables context but JR boundaries intact: While the Court recognises climate/renewables obligations (including REDIII context), it does not relax the classic constraints of JR: legality, pleading, evidence, standing, and workability remain decisive.

4. Complex Concepts Simplified

• Certiorari vs declaration: Certiorari quashes the decision (permission falls). A declaration states what was unlawful (e.g. a statutory breach) but leaves the decision intact where the illegality did not affect validity.
• Section 146 PDA 2000: a transparency provision governing availability of documents after decisions; breach can be wrongful but does not automatically invalidate the underlying decision.
• Appropriate Assessment (AA): the Habitats Directive (Article 6(3)) process requiring the decision-maker to exclude adverse integrity effects on European sites beyond reasonable scientific doubt, using best scientific knowledge.
• Environmental Impact Assessment (EIA): a project-level assessment under Directive 2011/92/EU leading to a “reasoned conclusion” on significant effects; it informs consent but does not itself dictate a substantive “no-adverse-effect” outcome in the same way AA does.
• SEA: Strategic Environmental Assessment applies to certain “plans and programmes” at policy/plan level; challenging a guideline for lack of SEA is typically a validity challenge requiring the State to be joined.
• Ius tertii: an applicant generally cannot ask the court to quash a permission to vindicate the rights of non-parties (e.g. turbary rights held by others).
• Set-off costs: where each side has a costs entitlement on different “elements”, the court can net them off so the losing conduct does not inflate the winner’s recovery.

5. Conclusion

Hoctor and Ors v An Coimisiun Pleanala and Anor [2026] IEHC 65 is primarily a judgment about discipline: discipline in pleading, evidence, standing, and remedy selection, and discipline in how costs-protected environmental litigation is conducted. The Court confirmed that a s.146 post-decision online publication breach warrants a declaration (and appropriately limited costs), but will not ordinarily justify quashing where it did not affect the lawfulness of the decision-making process and no material prejudice is shown.

Equally important is the costs reasoning: where a respondent concedes the proper relief, applicants must respond clearly and proportionately. Failure to do so may trigger a costs set-off under s.50B and Order 103, reinforcing that Aarhus-style costs protection is a shield against prohibitive expense—not a procedural weapon to generate unnecessary litigation cost.