1) Introduction
The applicant, an environmental NGO, sought judicial review of An Coimisiún Pleanála’s Strategic Infrastructure Development decision (31 March 2025) to grant permission for
(i) a vertical raise of an existing bauxite residue disposal area (BRDA) on Aughinish Island, Co. Limerick,
(ii) an extension of a hazardous-waste salt cake disposal cell (SCDC) within the BRDA,
(iii) an extension of an on-site borrow pit quarry to supply rock for embankment construction,
and (iv) associated water-management works.
The challenge was multi-ground. Two themes dominated the High Court’s outcome:
(a) procedural legality and transparency in the Commission’s record-keeping and publication duties after an earlier inspector’s report (found to have been prepared using AI) was destroyed and deleted; and
(b) substantive rationality and plan-consideration in relation to seepage modelling and flood-risk policy.
The respondent was the Commission. The notice parties were the refinery operator and a related company.
3) Analysis
A. Procedural legality and transparency: s.111(7) and s.146 PDA 2000
(i) Record integrity: s.111(7) and “auto-falsified” meeting records
The Court found a breach of s.111(7) where the Commission’s internal system (“Plean-IT”) automatically updated older meeting records so that the “Inspector” and “Board Member” fields
were retroactively replaced with the names of later-assigned personnel. The judge characterised this effect as records being “automatically falsified” (without imputing bad faith), and held that the duty
to keep a written record necessarily entails that the record must remain accurate and permanently accurate.
This is practically significant: the Court treated the integrity of the Commission’s official record as a statutory requirement, not an administrative convenience.
The judgment also illustrates how defective internal documentation can generate plausible inferences of contamination or prior involvement—fuel for litigation even where those inferences later prove wrong.
(ii) Publication duties: “documents relating to the matter” under s.146
A central novelty was the Commission’s handling of an initial inspector’s report that had been used in an earlier, now-rescinded decision, and which was subsequently discovered to have been prepared using AI.
To avoid any “contamination” of the renewed decision process, the report was shredded (hard copy) and deleted (electronic copy). The Commission argued that once it chose not to rely on it, the report ceased to be
a document “relating to the matter”.
The Court rejected that narrow reading. Emphasising the transparency rationale of s.146, and treating “relating to” as naturally broad language, the judge held that the inspector’s report remained a
“document relating to the matter” notwithstanding that the Commission decided it was unsafe to rely on it. Its non-publication therefore breached s.146.
(iii) Precedents and influences
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Carrownagowan Concern Group, Rumberger & Henley v An Bord Pleanála & Futurenergy [2024] IEHC 300:
the Court drew heavily on Humphreys J’s distinction between informal internal notes and “formal documents part of the statutory process”, and relied on the observation that if an inspector’s report reaches a certain level of formality,
it remains within publication requirements even if amended—supporting the analogy that a “superseded” report should still be published.
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Nowak v The Data Protection Commissioner [2020] IECA 174 and Ironborn Real Estate Limited v Dun Laoghaire-Rathdown County Council [2023] IEHC 477:
deployed to underline that “relating to” / “in relation to” are ordinarily wide nexus-formulations, with scope informed by statutory context (here, transparency in planning decision-making).
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The Court’s willingness to grant declarations was framed by the judicial review function of promoting “the highest standards of public administration”, referencing
Environmental Trust Ireland v An Bord Pleanála & Cloncaragh [2022] IEHC 540, and the English decision
R.(Badger Trust) v Natural England, [2025] EWHC 2761 (Admin) [2026] A.C.D. 4 (as later cited in Ireland), as to judicial review’s public accountability purpose.
(iv) Practical significance of the AI context
The Court accepted the Commission’s motive (avoiding reliance on an AI-infected report) as bona fide, but treated destruction as legally and practically ill-judged where statute requires
retention and publication. The judgment signals that quarantining (segregation with documented access restrictions) is the legally safer tool: it preserves transparency without tainting the renewed decisional process.
B. CG3 – Seepage: irrationality grounded in evidential mismatch (post-closure modelling ≠ operational-phase risk)
(i) The core defect found
The Commission and developer relied on a seepage assessment that explicitly addressed post-closure conditions (after capping/doming), and whose modelling assumptions stated that
“no modelling of the construction phase is included” and that it dealt with “post-closure phase” conditions.
Yet the planning decision implicitly required assurance about seepage risk during the operational/construction phase (years of ongoing deposition and interim hydraulic head effects) up to closure (estimated c. 2039).
The Court held that the EIA material (and thus the decision adopting it) misinterpreted the seepage study and lacked an evidential basis for the crucial inference that basal seepage would remain negligible
during the operational phase of the raise. That evidential gap rendered the permission irrational and required quashing.
(ii) The irrationality standard applied
The judgment rehearses the high threshold for irrationality (Keegan/O’Keeffe/Wednesbury lineage), but then applies it to a concrete evidential lacuna:
where the only modelling relied on disavowed modelling the phase at issue, the decision-maker could not rationally treat that modelling as answering the relevant question.
(iii) Precedents influencing the Court’s evidential approach
- O'Keeffe v An Bord Pleanála [1993] 1 IR 39 and the Keegan formulation (decision must not “plainly and unambiguously” fly in the face of reason and common sense) anchored the threshold.
- Holohan v An Bord Pleanála [2017] IEHC 268 (and later citations) was invoked to stress that “wrong on the merits” is not enough—yet the Court treated the absence of evidence on the relevant question as different in kind.
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RAS Medical v Royal College of Surgeons [2019] IESC 4 and Moss v An Coimisiún Pleanála & Lightsource [2026] IEHC 62:
absent cross-examination, conflicts of expert evidence are generally resolved against the party bearing the onus. Here, however, the decisive issue was not choosing between two competing models but
identifying that the relied-upon model did not address the operational phase at all (as a matter of its own stated limitations).
(iv) Impact
The ruling is likely to be cited where environmental modelling is phase-specific (construction/operation/closure), and a decision-maker is invited to treat modelling from one phase as dispositive for another.
The judgment insists on fit-for-purpose evidence: a modelling exercise must match the temporal and physical scenario that underpins the asserted conclusion.
C. CG4 – Flooding: failure to have regard to the Development Plan’s SFRA as a “main issue”
(i) What was (and was not) decided
The Court did not find the Commission’s substantive flood-risk conclusions irrational. The quashing on CG4 was narrower:
the Commission failed to have regard to the Development Plan’s flood policy architecture—especially the SFRA—despite flood risk being a central issue given the defended estuarine setting and potential pollution consequences.
(ii) The legal “regard” duty and its content
While the Commission’s duty to “consider” / have regard to the Development Plan is “light” and does not mandate compliance, the Court held that it still requires a
positive engagement with relevant plan provisions, especially where the topic is a “main issue”.
The Court drew on Irish authority that regard presupposes (a) consulting the relevant material and (b) interpreting it correctly.
(iii) Precedents shaping the plan-consideration analysis
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Sherwin v An Bord Pleanála [2024] IESC 13:
Woulfe J’s insistence that the “crucial starting point” is what determination was made with the required “focus” on the specific plan provision allegedly contravened influenced the Court’s approach to flood-risk policy.
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Eglington Residents Association v An Bord Pleanála [2025] IEHC 209:
cited for the proposition that the ability to grant permission in material contravention does not reduce the obligation to have regard, and that expressly deciding compliance/contravention is the clearest demonstration of having considered a policy.
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Coyne v An Bord Pleanála & EngineNode [2023] IEHC 412 and related “regard” cases:
used to articulate that regard requires correct understanding; failure to look at the relevant policy can ground certiorari.
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The Court also engaged with flood-risk authorities including Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696 (status of Flood Risk Guidelines),
and planning-flood guidance cases such as O'Neill v An Bord Pleanála & Ruirside [2020] IEHC 356.
(iv) Discretion and why relief was not refused
Even though the Court acknowledged extensive flood-related material was before the Commission and that substantive irrationality was not shown,
it refused to deny relief on a discretionary basis. Influential factors included:
the EU-embedded national framework for flood risk (Flood Risk Guidelines/SFRA/NPF),
the project’s pollution consequences if flooding occurred,
and the public confidence imperative where long-term residual risks behind defences are at issue.
The Court relied on the constitutional framing of discretion in judicial review as explained in L.A v The Chief Appeals Officer, [2026] IESC 22 and the “do not presume the outcome” principle in Talbot v An Bord Pleanála [2008] IESC 46.
(v) Impact
The flood-risk element is a reminder that decision-makers cannot safely treat flood assessment as purely technical material divorced from plan policy where a plan introduces a structured SFRA framework.
Where flood risk is a “main issue”, a failure to demonstrate engagement with the SFRA may expose permission to being quashed even if the underlying technical evidence is substantial.
D. Evidence, experts, and pleadings: notable (though largely ancillary) rulings
(i) Expert evidence and independence
The Court excluded opinion evidence from ETI’s president (also a solicitor in the firm on record), relying on prior authority and the incompatibility of advocacy and the expert’s duty of impartiality,
with references including Duffy v McGee [2022] IECA 254, Duffy v ABP & McDonagh [2024] IEHC 558, Murphy v An Bord Pleanála [2024] IEHC 59 and Foran v An Coimisiún Pleanála & Glenveagh [2026] IEHC 23.
By contrast, the Court admitted expert evidence from a marine biologist who had objected in the planning process, treating the objection largely as one of weight rather than admissibility in context
(and noting practicalities for effective access to justice in environmental litigation).
(ii) Conflicts of expert evidence on affidavit
The judgment gives a clear, practice-relevant exposition of RAS Medical v Royal College of Surgeons [2019] IESC 4:
absent cross-examination, conflicts of expert affidavit evidence will usually be resolved against the party bearing the onus.
This was repeatedly deployed in dismissing grounds that depended on contesting specialist assessments without forensic testing.
(iii) Pleading strictness in EU environmental cases
The Court reaffirmed strict pleading requirements in planning judicial review, including that affidavits cannot substitute for pleadings (100 Meter Tall Group v An Bord Pleanála [2025] IEHC 42),
and noted that strictness also applies to EU-law issues (citing Eco Advocacy CLG v An Bord Pleanála (C-721/21), [2024] Env L.R. 8).
(iv) Document management and “Russian dolls”
Although not dispositive, the judgment contains pointed criticism of voluminous, nested appendices that impede comprehension and public participation, and encourages clearer indexing and document labelling.
This is likely to be cited as an access-to-justice observation in complex EIA/AA litigation.
E. Grounds dismissed: what the Court’s approach signals
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Heavy metals / WFD: the Court treated this primarily as an irrationality challenge and found adequate data and explanation were before the Commission.
A Water Framework Directive argument was found inadequately pleaded and evidentially thin (with reference to Ryanair DAC v An Bord Pleanála [2025] IEHC 74 and SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 421).
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Flora / Ecological Impact Assessment: the Court required an evidential basis that the protected plants were within the project’s zone of influence;
uncontradicted expert evidence (and NPWS mapping) that the species did not occur locally defeated the claim.
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Cumulative quarrying: the Court emphasised onus of proof, baseline methodology, and the absence of properly particularised, receptor-specific cumulative harm evidence.
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Bottlenose dolphin strict protection/habituation: despite criticising the failure to explicitly name-check Annex IV/Article 12 status, the Court held that the substance of disturbance was addressed via AA/EIA materials and the marine mammal risk assessment.
The judgment contains a careful clarification that “disturbance” is a technical concept (not every disturbance in the colloquial sense suffices).
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Out-of-date/incomplete information: the Court treated “age” of reports as insufficient without showing what changed and why that change mattered,
and stressed that the Inspector expressly considered whether further survey work was needed.
5) Conclusion
ETI v ACP & Aughinish Alumina [2026] IEHC 387 is notable less for rejecting most environmental grounds than for insisting on
statutory integrity of the planning record and transparent publication, even where the Commission seeks (for understandable reasons) to quarantine a tainted document.
It also provides a sharp illustration of how an EIA conclusion can become irrational where the technical foundation is
phase-mismatched—post-closure modelling cannot be treated as answering operational-phase questions when its authors expressly excluded that scenario.
On flood risk, the case underscores a practical lesson: where a Development Plan introduces an SFRA framework, and flood risk is objectively central, the Commission must be able to show that it engaged with that framework.
“Considering flood risk” in general terms was not enough to withstand review when the plan-specific prism (SFRA) was not demonstrably applied.