Solar Farms Do Not Become EIA “Road” Projects Because They Contain Internal Access Tracks: Leave-to-Appeal Questions Must Arise from the Consented Project and Be Truly Legal, Exceptional, and in the Public Interest

1) Introduction

In Moss and Ors v An Coimisiun Pleanala and Anor [No. 2] (Approved) [2026] IEHC 175, the High Court (Humphreys J.) refused the applicants a certificate/leave to appeal under the planning judicial review regime. The proceedings challenged a planning decision of 20 May 2025 relating to a solar farm promoted by Lightsource Renewable Energy Ireland Limited (notice party), with An Coimisiún Pleanála as respondent.

The case sits against a clear Supreme Court backdrop that solar farms are not, as a category, projects listed for EIA under the EIA Directive. The applicants attempted to re-open that settled position indirectly, arguing that the solar farm necessarily involved a lengthy internal track which, they contended, should be treated as a “road” for EIA purposes, thus triggering EIA obligations.

The core issues in this “No. 2” judgment were therefore procedural and threshold in nature: whether the proposed appellate question (about whether the internal track was a “road”) properly arose, whether it was truly a question of law, whether it was of exceptional public importance, and whether an appeal was desirable in the public interest—especially given legislative policy favouring finality and expedition in planning litigation.

2) Summary of the Judgment

  • The application for leave/certificate to appeal was dismissed.
  • The proposed question did not properly arise because it was framed in a way that contradicted the trial judge’s factual findings (including that there would be no tarmac finish) and improperly ignored clarifications lawfully provided during the administrative process that defined what was consented.
  • The proposed question was not a point of law but an attempt to re-litigate the application of law to facts (whether the particular track, on the evidence, was a “road”).
  • It was not of public importance and did not disclose any genuine uncertainty; the applicants produced no supporting Irish/EU/jurisdictional authority for the proposition that internal tracks convert solar farms into EIA projects.
  • An appeal was not in the public interest, given the statutory emphasis on finality in planning JR, the public interest in renewable-energy infrastructure, and the non-compensatable prejudice of further delay to the developer.
  • The Court also addressed the draft-judgment circulation process, emphasising discipline, limits on submissions, and confidentiality of draft judgments.

3) Analysis

3.1 Precedents Cited

(A) Supreme Court authority: solar farms and pleading discipline

The judgment’s starting point is the Supreme Court’s statement in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 that solar farms are not projects subject to EIA because they are not listed in the EIA Directive (Directive 2011/92/EU). That case also anchors a distinct but related principle repeatedly invoked here: points must fall within the pleadings to be advanced (and, by extension, to ground a certificate/appeal).

Humphreys J. treated the applicants’ “internal tracks” argument as an attempted “side-wind” around the settled Supreme Court position. The absence of any contrary Irish or EU jurisprudence was decisive in concluding that there was no plausible basis for exceptional appellate intervention.

(B) Leave-to-appeal / certificate principles in planning JR

A substantial part of the decision consolidates and applies established criteria for leave/certification, supported by a dense line of authority. Key themes and the cases used for them include:

  • Point must arise on the pleadings / be case-appropriate: Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28; and the caution that pleading disputes are usually not public-law points for appeal in Leech v. An Bord Pleanála [2025] IESCDET 106.
  • No abstract questions: the analogy drawn from Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11.
  • No new issue invented for appeal: GOCE Limited v. An Bord Pleanála [2025] IEHC 43.
  • Question should be determinative / not academic: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646; Morehart v. An Bord Pleanála [2025] IEHC 701; and the Supreme Court’s warning against fixation on “debatable” points in Rooney v. Minister for Agriculture and Food [2016] IESC 1.
  • Question must accurately reflect the judgment (no distortion): Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9; Stapleton v. An Bord Pleanála [2025] IEHC 178; and Cooper v. An Bord Pleanála [2025] IESCDET 96 (misunderstanding the law is not a public-importance point).
  • Point must be one of law (not fact, not mixed application): Leech v. An Bord Pleanála [2025] IEHC 157; and the broader “application to facts is unsuitable” line: B.S. v. Director of Public Prosecutions [2017] IESCDET 134; Halpin v. An Bord Pleanála [2020] IEHC 218; Rushe v. An Bord Pleanála [2020] IEHC 429; Stanley v. An Bord Pleanála [2022] IEHC 671; Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62.
  • Public importance must transcend the facts: Patrick McCaffrey & Sons Limited v. An Bord Pleanála [2024] IESCDET 145 (noted as “albeit non-precedentially”).
  • Appeal may resolve doubt, but should not create it: Ógalas v. An Bord Pleanála [2015] IEHC 205; and the endorsement that where law is not uncertain, public interest may weigh against appeal in Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3.
  • Novelty is not enough: Callaghan v. An Bord Pleanála [2015] IEHC 493; and disagreement does not equal uncertainty per Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209.
  • Requesting an EU reference does not “upgrade” an unsuitable point: Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8; Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9.
  • Public interest includes expedition and avoidance of harmful delay: Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231; Freeney v. An Bord Pleanála [2025] IEHC 36; Dunnes Stores v. An Bord Pleanála [2015] IEHC 387; and the delay-prejudice concern in Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62.
  • Claims of practical disruption require evidence: Stapleton v. An Bord Pleanála [2025] IEHC 178; Phoenix Rock Enterprises v. An Bord Pleanála & Ors. [2023] IESCDET 97; McCaffrey v. An Bord Pleanála [2024] IEHC 476; and refusal of leave in McCaffrey v. An Bord Pleanála [2024] IESCDET 145.
  • “Official body” appellants: Sherwin v. An Bord Pleanála (No. 2) [2023] IEHC 232 (relevance of official status), tempered by Stapleton v. An Bord Pleanála [2025] IEHC 178 (no “one-way ratchet” in binding effect of caselaw).

(C) Draft judgments: procedure, fairness, confidentiality

Although ancillary to the leave-to-appeal outcome, the Court gave clear operational guidance:

  • On resisting endless process and “elaborate procedures”: O'Sullivan v. Health Service Executive [2023] IESC 11.
  • On avoiding the “criminal trial” fairness fallacy: O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75.
  • On confidentiality of draft judgments as an aspect of administration of justice: Attorney General v. Crosland (No. 2) [2021] UKSC 58; Baigent v. Random House Group Ltd [2006] EWHC 1131 (Ch); R. (Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181; Public Institution for Social Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368; Itkin v. Wood [2023] JRC 101.

(D) EU law: Article 267, acte clair, and roads

  • Acte clair/acte éclairé standard for referrals: Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19 (Grand Chamber), cited for para. 33.
  • Applicants’ reliance on “roads” jurisprudence found irrelevant on these facts: Commission v Ireland, C-427/07, because it only matters if the tracks are “roads” within the Directive, which the Court found was not established.

3.2 Legal Reasoning

(A) The “consented project” governs, not a frozen snapshot of the initial application

The Court rejected the applicants’ attempt to assess EIA obligations by reference to the application “as made” while disregarding clarifications provided during the planning process. The legal target in judicial review is whether the permission granted is unlawful (including for EU law reasons). Permissions are necessarily understood by reference to the documentation before the decision-maker, including lawful clarifications. Otherwise, the applicants’ logic would require an “obligation” on decision-makers to ignore relevant information furnished during the process—an approach the Court described as illogical and unprincipled.

(B) The proposed question did not “arise” because it was framed against findings of fact

The question proposed for certification asserted, tendentiously, that the solar farm involved a “road/track” with a stone/tarmac finish. The Court held that this contradicted the trial findings: specifically, that tarmac would not be used. On that basis, the question failed at the threshold: it did not properly arise from the judgment appealed from.

(C) The “road” contention was treated as a factual application exercise, not a legal uncertainty

Even if the question had arisen, Humphreys J. held it was not a genuine question of law. It was, “blatantly”, a dispute about applying settled principles to the particular characteristics of these internal tracks. Such mixed or fact-application issues do not meet the certificate standard.

(D) No demonstrated uncertainty; the internal-tracks theory would destabilise the EIA scheme

On public importance, the Court emphasised two things: (i) the applicants cited no supporting authority from Ireland or other Member States; and (ii) the argument lacked internal logic because it would “catapult” a wide array of developments into EIA territory merely because they contain internal access infrastructure. That would undermine the Directive’s architecture distinguishing listed Annex projects from those not listed and would generate “chaos” well beyond solar farms—yet no such jurisprudential trend exists.

(E) Lawful “ordering of affairs” to avoid EIA is permissible; post-permission “tarmacking” is not a loophole

The Court addressed (and dismissed) the insinuation that the developer clarified the track finish to avoid EIA: even if so, a developer may lawfully design a project to remain outside a legal regime, provided it is not unlawfully evading obligations that objectively apply. Further, the applicants’ fallback argument—that the developer might later tarmac without permission as exempt development—was answered by s. 4(4) of the Planning and Development Act 2000: development is not exempt if EIA is required. Accordingly, if the hypothetical later change created an EIA-triggering “road”, it would not be exempt and would require permission/EIA scrutiny.

(F) Public interest weighs against delay in renewable energy planning JR

Applying the statutory policy of finality and expedition, and taking account of the public interest in renewable energy and the non-compensatable financial prejudice of delay, the Court found an appeal not desirable in the public interest. The Court endorsed the notice party’s submissions, including reliance on Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 (renewables as an overriding public interest recognised in EU law instruments, and delay as a concrete public-interest harm).

3.3 Impact

  • Reinforcement of the “solar farms are outside EIA” position: The decision operationalises Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 by refusing to permit an indirect reclassification of solar farms as EIA projects through internal access infrastructure arguments.
  • Constraining “internal works = EIA” theories: The Court’s concern about systemic “chaos” signals that attempts to expand EIA via internal tracks/ancillary works will face a high plausibility threshold, especially absent supporting EU authority.
  • Sharper discipline in certificate applications: The judgment illustrates that certificate questions must be anchored in the trial findings and the consented project, not rhetorically reframed or factually inflated to manufacture a point of law.
  • Practical guidance on draft judgments: The Court’s explicit direction on confidentiality and the limits of post-circulation “comments” strengthens procedural expectations in the Planning & Environment list and beyond.
  • EU reference requests: The decision confirms that Art. 267 TFEU arguments will not rescue an otherwise unsuitable appeal where the matter is treated as acte clair/acte éclairé on the current legal landscape.

4) Complex Concepts Simplified

  • EIA (Environmental Impact Assessment): A structured EU-law assessment required for certain categories of projects (listed in annexes to Directive 2011/92/EU) likely to have significant environmental effects. If a project is not listed, it is generally outside mandatory EIA unless it falls within other EIA mechanisms.
  • “Road” as an EIA trigger: Certain “road” projects can be EIA-relevant under the Directive/implementing rules. The applicants tried to characterise internal access tracks within a solar farm as “roads” to trigger EIA obligations.
  • “Consented project”: In planning JR, the legality question is whether the permission actually granted complies with law. That permission is interpreted by reference to the whole administrative record (plans, EIAR where relevant, clarifications), not merely the first version of the application.
  • Pleadings: The formal statement of the case. A party generally cannot advance unpleaded points (especially at certificate/appeal stage) because that defeats fairness and case-management.
  • Exempted development and s. 4(4) of the 2000 Act: Even if something would usually be exempt from permission, it is not exempt if it requires EIA (or appropriate assessment). This blocks “do it later as exempt” workarounds where the later works would, in truth, trigger EIA.
  • Acte clair / acte éclairé (Art. 267 TFEU): An EU-law concept limiting the duty of national courts (including apex courts) to refer questions to the CJEU where EU law is already clear (acte clair) or already settled by CJEU case-law (acte éclairé).

5) Conclusion

Moss and Ors v An Coimisiun Pleanala and Anor [No. 2] [2026] IEHC 175 is a firm refusal to allow planning certificate/leave-to-appeal machinery to be used to re-run factual disputes or to manufacture legal uncertainty where none exists. The Court insists that an appellate question must arise from the consented project and from the trial findings, must be truly legal (not fact-application), must be of exceptional public importance, and must be desirable in the public interest—an assessment heavily influenced by the legislature’s commitment to finality and expedition in planning JR and by the public interest in timely renewable-energy delivery.

Substantively, the judgment underscores that internal access tracks do not, without more, convert a solar farm into an EIA “road” project, and procedurally it strengthens discipline around draft judgments and the certification threshold in environmental and planning litigation.