Telecoms Masts, “Urban Development Projects” and the Limits of EIA: Commentary on McGowan & Warnock v An Coimisiún Pleanála [2025] IEHC 727

1. Introduction

This judgment of Humphreys J in the High Court of Ireland concerns a judicial review challenge to planning permission for a 24‑metre lattice telecommunications mast near Kinlough, Co. Leitrim. The case sits at the intersection of Irish planning law, EU environmental law and the national roll‑out of telecoms infrastructure.

The applicants, local residents Noel McGowan and Karol Warnock, sought to quash An Coimisiún Pleanála’s (the Commission’s) 14 February 2025 decision granting permission to Vantage Towers Ltd for the mast and associated works at Laghta townland, just outside Kinlough’s development boundary.

The challenge raised a wide range of domestic and EU grounds, including:

whether the site was a “last resort” location under the 1996 Telecommunications Antennae and Support Structures Guidelines and the Leitrim County Development Plan 2023–2029 (LCDP);
whether the Commission had properly applied and had “adequate regard” to those guidelines;
alleged material contravention of the LCDP, particularly policies on visual impact and protected views;
the extent to which public health concerns (RF emissions) must be addressed in planning decisions;
whether the mast was an “urban development project” under Annex II, point 10(b) of the EIA Directive and Part 2, Class 10(b)(iv) of Schedule 5 to the Planning and Development Regulations 2001 (PDR 2001); and
whether Appropriate Assessment (AA) screening unlawfully failed to consider decommissioning and reinstatement, contrary to Holohan (C‑461/17).

The case is procedurally notable because this was the second High Court challenge to the same mast. An earlier 2023 permission was quashed by consent after the Commission accepted it had failed to take account of planning authority material. The appeal was then remitted, a fresh inspector recommended refusal in 2024, but the Commission disagreed and granted permission in 2025—precipitating these proceedings.

Substantively, the judgment is significant for at least three reasons:

It consolidates and applies an “eight‑fold path” test for judicial review in planning and environmental cases.
It articulates a restrictive, but legally grounded, approach to when telecoms masts fall within the category of “urban development projects” for EIA purposes.
It reinforces the doctrines of onus of proof and harmless error, and the deference owed to planning judgment, particularly regarding visual impact, policy application and health concerns.

2. Summary of the Judgment

Humphreys J dismissed all grounds and refused certiorari. In outline:

Last‑resort siting and alternative sites: Even treating the mast as potentially engaging “last resort” principles, the Commission had in substance considered alternatives, given adequate reasons, and acted within its planning judgment. No irrationality or breach of s.34(10)(b) PDA 2000 was shown.
Regard to telecoms guidelines and mast type: The Commission demonstrably had regard to the 1996 Guidelines (as incorporated into the LCDP). The preference for monopoles over lattice structures applies only in residential areas or beside schools, which this site was not. Reasons for choosing a lattice mast (facilitating sharing) were evident from the developer’s documentation.
Visual impact and alleged material contravention: The Commission was entitled to treat the photomontages and written material as a “visual impact assessment” within the meaning of the LCDP. Its conclusion that the mast would not significantly affect protected views V3 and V20, or materially contravene TEL POL 5 and LD POL 1, was an evaluative judgment not shown to be irrational.
Public health / RF emissions: The Commission properly took account of compliance with ICNIRP standards and the separate ComReg licensing regime. Generic radiation health concerns do not generally warrant planning refusal where that parallel regime applies, absent specific contrary evidence.
Material contravention procedure: Section 37(2) PDA 2000 was not invoked by the Commission. In such circumstances, the heightened s.37(2)(b) reasoning obligations do not arise.
EIA and “urban development projects”: While the mast is a “project” in the broad sense of the EIA Directive, it falls outside Annex II(10)(b). A standalone telecom mast in a rural field at the edge of a small country town is not “urban development”. No preliminary examination, screening or EIA was required.
Appropriate Assessment and decommissioning: The AA screening documentation and inspector’s report explicitly addressed decommissioning. The premise that decommissioning had been left unassessed was factually incorrect. Holohan was not breached.

Accordingly, the proceedings were dismissed, with a provisional “no order as to costs” position unless submissions on costs were made within seven days.

3. The Court’s Framework: The Eight‑Fold Test for Judicial Review

At paras 46–51, drawing on Reilly v An Coimisiún Pleanála [2025] IEHC 659, Humphreys J re‑states an eight‑element cumulative test that an applicant must satisfy to obtain judicial review relief:

Compliance with jurisdictional requirements (time, standing).
A legally correct and workable point.
Proper, specific pleading of the point.
Standing to make that specific point.
Material capable of sustaining the point was before the decision‑taker (with narrow exceptions).
Applicant has discharged the onus of proof to establish all facts necessary for relief.
Any error goes beyond the harmless, non‑material or purely technical.
Discretion favours granting relief, bearing in mind proportionality and the limited nature of judicial review, especially under EU law.

In this case, the judge singles out three elements as most pertinent:

Workability – legal rules and obligations must be interpreted in a way that is workable and does not impose “impossibly onerous” requirements (paras 49, 130).
Onus of proof – the burden is on the applicant throughout, save for narrow exceptions (para 50).
Harmless error – even proven errors do not mandate quashing if they would not reasonably have changed the outcome (para 51).

This framework underpins the court’s disposition of each ground and is itself an important doctrinal consolidation for Irish planning and environmental judicial review.

4. Analysis of the Domestic Planning Grounds

4.1 “Last Resort” Siting and Alternative Sites (Core Ground 1)

4.1.1 The applicants’ argument

The applicants relied on the 1996 Telecommunications Antennae and Support Structures Guidelines, as incorporated into the LCDP via s.13.20.3, to contend that:

free‑standing masts should be located “only as a last resort” within or in the immediate surrounds of smaller towns or villages; and similarly only “as a last resort” in residential areas or beside schools;
the inspector had treated the site as a last‑resort location and recommended refusal because alternative sites (including co‑location on existing masts) had not been adequately examined; yet
the Commission’s decision stated the site “was not a site of ‘last resort’” but gave no adequate reasons for rejecting the inspector’s stance, rendering the decision irrational and in breach of s.34(10)(b) PDA 2000 (reasons requirement) and fair procedures.

4.1.2 The guidelines and their incorporation into the LCDP

The 1996 Guidelines distinguish three contexts (para 58 of the judgment):

Within or in the immediate surrounds of smaller towns or villages: “Only as a last resort should free‑standing masts be located” there.
In the vicinity of larger towns and city suburbs: preference for industrial areas, roof‑tops and micro‑cells.
In a residential area or beside schools: again “only as a last resort” and, if so, the structure “should be monopole … rather than a latticed … structure”.

Section 13.20.3 of the LCDP explicitly provides that proposals will be assessed in accordance with those Guidelines “as revised by Circular Letter PL 07/12”. This “gives a CDP‑level status to the guidelines (that would otherwise lack status)” (para 55, citing Four Districts Woodland Habitat Group [2023] IEHC 335).

4.1.3 The court’s reasoning

The Court proceeds on an assumption favourable to the applicants: even if one reads the Commission’s decision as accepting that a “last resort” analysis is applicable (because the site is at the immediate edge of the development envelope), the Commission then in substance applied that principle (paras 57, 60–62).

Key points:

Classification of the location: The inspector and Commission agreed the site was outside the development boundary, not in a residential area and not immediately beside a school. Those characterisations were not properly pleaded as wrong. Thus the stricter “beside schools / residential” last‑resort standard (and related monopole preference) was not engaged (paras 59–60, 69–70).
Substantive application of “last resort”: Even assuming the “smaller town/village surrounds” last‑resort criterion applied, the Commission expressly:
- considered the developer’s evidence of alternative sites and co‑location attempts; and
- concluded there was “adequate evidence of consideration … including justification of why they were unsuitable” (para 61).
Adequacy of reasons: The Commission’s reasons, quoted at para 62, explicitly identify:
- why it did not accept the inspector’s recommendation (site not last‑resort within the meaning of the Guidelines);
- its reliance on the alternative‑sites analysis and photomontages; and
- its conclusion that relevant LCDP policies (TEL POL 2, 4, 5 and s.13.20.3) were satisfied.
That is sufficient to meet s.34(10)(b) and standard reasons jurisprudence, bearing in mind the prohibition on over‑parsing decisions.
No duty to follow past decisions or the inspector: The judge reiterates that there is no doctrine of administrative precedent requiring the Commission to justify each departure from previous decisions (including its own or the planning authority’s). He cites Farrell J in Ó Murthuile v An Bord Pleanála [2025] IEHC 498: previous decisions reflect policy and evidence at that time and do not generally require explicit reasons for divergence (para 63).

Therefore “this point has not been made out” (para 64).

4.1.4 Significance

The judgment confirms that:

the “last resort” language in the 1996 Guidelines, when embedded into a development plan, does have legal force; but
the assessment whether a site is last‑resort, and whether alternatives were sufficiently considered, is an evaluative exercise for the planning authority/Commission. Courts will not re‑weigh that evidence on judicial review, provided reasons exist and are rational.

Objectors seeking to rely on “last resort” must therefore not only show the guideline applies to the location but also demonstrate, with evidential support, that the authority’s alternative‑sites analysis was irrational or procedurally defective.

4.2 Regard to Telecoms Guidelines and the Lattice vs Monopole Issue (Core Ground 2)

4.2.1 The complaint

The applicants argued that the Commission:

failed to have “adequate regard” to the 1996 Guidelines (as per s.28 PDA 2000 and LCDP s.13.20.3); and
failed to explain why a lattice mast, rather than a monopole, was acceptable, despite guideline language preferring monopoles (particularly in sensitive locations such as near schools).

4.2.2 The court’s findings

Humphreys J rejects this ground on several bases (paras 67–71):

Express consideration of the guidelines: Both the inspector and the Commission explicitly referred to and relied on the 1996 Guidelines. Once a decision states it has had regard to a guideline, the onus lies on the applicant to displace that, which was not done here (para 67).
Lattice vs monopole rationale: The developer’s material (RFI and appeal) clearly explained why a lattice structure was preferred: it allows equipment‑sharing at the same height, which a monopole does not (para 68). The inspector summarised this in his report. The Commission was entitled to adopt that reasoning without repeating it verbatim in its order.
Scope of the monopole preference: Crucially, the 1996 Guidelines only prescribe monopoles rather than lattice structures “in a residential area or beside schools”. As already determined, this site was not in that category; it was outside the development boundary and not beside the school. Thus the applicants’ reliance on that aspect of the guideline was “confused and contradictory” (para 70).

Accordingly, the allegation of failure to have regard to the guidelines, or of inadequate reasons, could not be sustained.

4.3 Visual Impact, Protected Views and Alleged Material Contravention (Core Grounds 3 & 5)

4.3.1 The planning policy context

The applicants objected that the mast would be highly visible and would adversely affect protected views V3 and V20 as designated in Table 11.8, Figure 11.4 and Volume III of the LCDP. They relied on:

LD POL 1: safeguard protected views and prospects from “intrusive development”;
LD POL 4 / LCA POL 5: require a landscape and visual impact assessment (LVIA), prepared by suitably qualified professionals, for development that may significantly affect landscape character; and
TEL POL 5: ensure telecommunications structures are located to minimise/mitigate adverse impacts on communities, residential properties, schools and the environment (para 85).

Section 13.20.3 of the LCDP further requires that planning applications include, inter alia:

a reasoned justification of need;
details of co‑location efforts and alternative sites; and
a “visual impact assessment and mitigation measures” (para 81).

4.3.2 The applicants’ case

They contended that:

no proper LVIA had been provided;
the inspector had explicitly found there was no evidence demonstrating no adverse impact on V3 and V20 and had recommended refusal partly on that basis;
the Commission’s reliance on photomontages was irrational, as those did not specifically address the protected viewpoints; and
by contradicting the inspector and by allegedly accepting a development contrary to TEL POL 5 and LD POL 1, the Commission had effectively authorised a “material contravention” of the LCDP without invoking and satisfying s.37(2) PDA 2000.

4.3.3 Visual assessment and the Commission’s evaluative margin

The Court accepts that the LCDP requires a “visual impact assessment” but emphasises that:

the plan does not prescribe the form of that assessment (e.g. a formal LVIA report) (para 82);
the developer’s application, RFI response and photomontages did constitute such an assessment in substance; and
any dispute over whether this material deserved the label “visual impact assessment” is, at best, a semantic debate not sufficient to ground certiorari (paras 82–84).

The Commission was entitled to disagree with the inspector’s view that the information was insufficient. Evaluating visual impact and the sufficiency of visual material is a classic planning judgment. The judge reiterates that:

protected view points V3 and V20 were some distance from the mast; V20 was several kilometres away, and V3 faced in a different direction (para 74, 59);
photomontages 4 and 5 showed the mast from closer and flatter viewpoints than those protected views; and
the Commission could legitimately infer from those montages that any impact on V3 and V20 would not be significant (para 76).

The applicants provided no expert evidence or other cogent material to displace that evaluative conclusion.

4.3.4 Material contravention and s.37(2)

The applicants tried to elevate alleged policy inconsistency into a “material contravention” argument, contending that s.37(2)(b) PDA 2000 had been engaged without the necessary reasons being set out. The Court holds this untenable (paras 88, 103):

Section 37(2)(b)/(c) applies only where the Commission has deliberately decided to permit a development that materially contravenes the development plan and invokes s.37(2)(a).
Here, the Commission did not purport to exercise that power; rather, it found the development consistent with relevant LCDP policies.
Accordingly, the enhanced reasoning framework for material contraventions simply did not arise (citing South West Regional Shopping Centre [2016] IEHC 84 and the High Court decision in Balz [2016] IEHC 134).

Again, the onus rested on the applicants to show that the Commission’s non‑contravention conclusion was irrational. They failed to do so.

4.4 Public Health Concerns and RF Emissions (Core Ground 4)

4.4.1 The issue

The applicants argued that the Commission had unlawfully failed to consider health and safety issues (primarily exposure to electromagnetic fields from the mast), misdirecting itself by treating health as outside its remit because of Circular PL 07/12.

They contended that:

there is no statutory provision removing public health considerations from the Commission’s jurisdiction;
the planning system and ComReg’s licensing regime are complementary; and
the Commission could not abdicate its responsibility to consider human health effects via a ministerial circular.

4.4.2 The regulatory context

Humphreys J reviews the framework (paras 92–97):

EU and ICNIRP standards: Council Recommendation 1999/519/EC on limiting public exposure to EMF, drawing on ICNIRP guidelines.
National implementation: S.I. No. 444/2022 (European Union (Electronic Communications Code) Regulations 2022) and ComReg’s licensing regime.
Circular PL 07/12: reiterates that planning authorities should not include monitoring conditions or determine applications on health grounds; health and safety in telecoms infrastructure are regulated by other codes and “should not be additionally regulated by the planning process” (para 94).

4.4.3 The court’s approach

The Court’s reasoning is pragmatic and policy‑aware:

Health is considered, but via general standards: The Commission did not ignore health altogether; it noted the applicant’s declaration of compliance with ICNIRP standards and accepted that the specialised telecommunications regulatory regime addresses EMF risks (paras 69–71).
Impracticability of case‑by‑case scientific re‑litigation: It would be unworkable to re‑open fundamental scientific questions on EMF in each mast application in the absence of specific, compelling, case‑related evidence (para 92, 97–99). Generic objections, without expert support, do not require detailed engagement.
Reading the inspector’s remarks as valid, not as an a priori exclusion: While the inspector wrote that “health issues are not a matter for An Bord Pleanála”, the judge insists such statements must be read in context as saying that in this type of case health concerns of the sort raised are not a factor of weight, given the parallel regulatory regime (para 99). This is a legitimate policy‑based reasoning approach, not an unlawful abdication of jurisdiction.
Exceptional cases not ruled out: The Court does not exclude that in some truly exceptional case—e.g. where unusual medical equipment or site‑specific vulnerabilities are demonstrated—health could be a relevant planning consideration. But this case was far from such a scenario (para 99).

The ground therefore fails. The judgment essentially confirms that, in the ordinary run of telecoms mast cases, compliance with ICNIRP‑based standards and the ComReg regime suffices to address public health concerns for planning purposes.

5. EU Law Grounds: EIA and AA

5.1 Whether a Rural Telecom Mast is “Urban Development” (Core Ground 6)

5.1.1 The applicants’ EIA argument

The applicants’ key EU law contention was that:

telecoms masts and antennae are “infrastructure” that fall within “urban development projects” under Annex II, point 10(b) of the EIA Directive (2011/92/EU as amended by 2014/52/EU);
the transposing provision—Schedule 5, Part 2, Class 10(b)(iv) PDR 2001—thus captured the mast as “urban development … elsewhere” (20 ha threshold); and
the Commission had erred in concluding that the mast was not in any Schedule 5 class, thereby wrongly dispensing with preliminary examination, screening or EIA.

They further sought a potential preliminary reference to the CJEU on whether telecoms infrastructure within or near smaller towns or villages is per se covered by Annex II(10)(b).

5.1.2 The Directive’s structure: “projects” vs “Annex projects”

The Court emphasises a basic but crucial distinction (paras 108, 112, 124):

Many things are “projects” under Article 1(2)(a) EIA Directive (i.e. construction works or other interventions). A mast clearly qualifies as a project.
However, only projects listed in Annex I or Annex II (and any national additions) can be subject to the mandatory EIA regime under Articles 2 and 4.
Thus being a “project” with environmental effects is not, by itself, enough. The project must fall within an Annex category (Annex II 10(b) here) as further refined by national thresholds/criteria.

The inspector’s conclusion that the mast was not a Schedule 5 class therefore “screened out” EIA at the threshold stage.

5.1.3 EU guidance and case law on Annex II(10)(b)

Annex II(10)(b) refers to:

Urban development projects, including the construction of shopping centres and car parks.

The Commission’s 2024 guidance on interpreting Annex I & II notes that:

10(b) has a “wide scope and broad purpose” and is interpreted broadly across Member States;
examples include housing developments, sports stadiums, leisure centres, multiplex cinemas, university campuses, major religious buildings etc.;
“projects to which the terms ‘urban’ and ‘infrastructure’ can relate”, such as sewerage and water supply networks and “telecommunications/wireless communication deployment”, can fall within 10(b) in appropriate circumstances; and
Member States must ensure that projects likely to have significant environmental effects do not escape assessment, but have discretion to assign such projects to different Annex II categories depending on national systems.

Importantly, CJEU case law in Commission v Spain (C‑332/04) and WertInvest (C‑575/21) focuses on:

preventing systematic exclusion of entire classes of urban development from EIA through over‑broad thresholds; and
ensuring that large, genuinely urban redevelopment projects (like major city‑centre schemes) are not categorically exempted.

5.1.4 Humphreys J’s two‑stage answer

The Court gives a two‑pronged response (paras 125–140).

(a) The inherently evaluative nature of “urban development projects”

First, the judge stresses that “urban development” is an inherently nebulous, open‑textured concept:

It is not a pure question of law; it involves a fact‑sensitive, evaluative judgment by the competent authority.
Judicial review therefore scrutinises only whether the authority’s classification is irrational or legally misconceived, not whether the court would have classified it differently (para 126–127).
Placing heavy reliance on noscitur a sociis, he notes that the exemplars in 10(b) (shopping centres and car parks) are large‑scale, inherently urbanising developments (para 128–129).

Against that backdrop, the onus remained firmly on the applicants to show that the Commission’s conclusion—that a single telecom mast in this location is not “urban development”—fell outside that evaluative margin. They did not come close to doing so.

(b) Even on a stricter view, this mast is plainly not “urban development”

Secondly, even if one assumed that masts can sometimes be urban development projects, this particular mast is clearly not (paras 136–139):

It is a standalone mast in an unzoned rural field.
It lies outside the development boundary and development envelope of Kinlough.
Kinlough is a very small country town in the LCDP settlement hierarchy, far from anything resembling a city or major urban area; the development does not extend an urban fabric into a rural hinterland (no “urbanisation” of countryside).
Telecommunications infrastructure is not inherently urban: it is needed in rural areas (for farm operations, rural broadband, etc.) as much as in cities, and standalone masts are actually more characteristic of rural/suburban contexts. The 1996 Guidelines themselves highlight that urban communications infrastructure often uses rooftop equipment rather than standalone masts (para 137).
The mast is a single node in a national network, not a large‑scale urban redevelopment project.

On any plausible interpretation of Annex II(10)(b), this development could not sensibly be classified as “urban development”.

5.1.5 Harmless error and reasons

The judge acknowledges that the inspector’s wording “this is not a class for the purposes of EIA” could have been more precise (e.g. by saying “masts do not generally constitute urban development, and this particular mast does not either”). But any imprecision is:

harmless error because, on a proper evaluation, nothing in the facts could have led to a different conclusion; and
not a reasons defect requiring quashing, because “reasons are not required for the obvious” (para 140). Where it is manifest that a project is not urban development, elaborate EIA reasoning is not necessary.

5.1.6 No basis for a CJEU reference

On the proposed preliminary reference (paras 150–154), the Court refuses:

The suggested question—whether “telecommunications infrastructure within or in the immediate surrounds of smaller towns or villages” is within Annex II(10)(b)—is not a pure question of interpretation but a mixed question of law and fact.
There is no “acute” interpretative doubt. The applicants’ thesis—that any industrial‑type development near a small town is urban development—is “outlandish” and would radically extend the EIA Directive beyond what the EU legislature envisaged.
Given the size of the European legal space, the applicants’ inability to identify any supporting national or EU authority strongly suggests the matter is acte clair as applied to these facts.

This segment of the judgment is likely to be cited as a leading Irish authority on the EIA status of telecoms masts and the meaning of “urban development projects”.

5.2 Appropriate Assessment and Decommissioning (Core Ground 7)

5.2.1 The applicants’ Holohan argument

Relying on Holohan v An Bord Pleanála (C‑461/17), the applicants argued that:

Art.6(3) Habitats Directive requires all aspects of a project that might affect conservation objectives—construction, operation and decommissioning—to be catalogued and assessed before consent.
Condition 2(b) of the permission required decommissioning and reinstatement details to be agreed later with the planning authority.
The Commission had not assessed the environmental effects of decommissioning at screening stage and had wrongly “left it over” for future consideration.

5.2.2 Factual premise found to be incorrect

The Court demonstrates that this argument rests on a factually false premise (paras 143–148):

An AA Screening Report (Jan 2023) and a June 2024 addendum were on the file.
The addendum expressly addressed decommissioning, stating that a Stage 2 AA was not required for either construction or decommissioning (para 144).
The inspector’s report summarised and endorsed those conclusions:
- at p.39, noting that potential impact on Lough Melvin SAC and other European sites was ruled out due to lack of hydrological connectivity and distance;
- at p.41, stating that “potential impacts from decommissioning would be similar to those arising at construction stage”;
- at pp.44–45, explaining that even if pollutants entered a nearby ditch, dilution and dispersion, coupled with standard best practice measures (not site‑specific mitigation), made significant effects on the SAC unlikely.

Thus, decommissioning had been explicitly analysed at screening stage. Condition 2 simply regulates how decommissioning is to be carried out operationally, not whether it may take place.

On the principle (important for future cases): routine construction/decommissioning best‑practice measures that any competent operator would use, “notwithstanding any proximity to any Natura 2000 site” (para 148), are not mitigation in the Holohan sense and can be considered at the screening stage without converting the process into an AA.

6. Precedents and Authorities: Their Influence on the Judgment

The judgment is rich in authority. Only key strands can be highlighted here.

6.1 Limits of Judicial Review and Planning Judgment

State (Keegan) v Stardust Compensation Tribunal [1986] IR 642;
– foundational on irrationality and the distinction between legality and merits. Cited for the proposition that the court must not substitute its view for that of the decision‑maker.
Meadows v Minister for Justice [2010] 2 IR 701;
– confirms proportionality‑informed review yet retains deference to administrative evaluation; cited, in particular, on the onus of proof remaining with the applicant (para 50).
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759;
– Lord Hoffmann’s statement that the weight to be given to particular considerations is a matter for the decision‑maker is extensively endorsed (para 48(iii)).
Sherwin v An Bord Pleanála [2024] IESC 13;
– Supreme Court authority that evaluative judgements in planning are reviewed on an irrationality standard unless tainted by procedural or legal error (para 48(iii)).
Roache v An Bord Pleanála [2024] IEHC 311; People Over Wind v An Bord Pleanála [2015] IEHC 271;
– confirm that the Commission may disagree with its inspector on issues such as visual impact, provided reasons are given.
Blewett [2004] Env LR 29; O’Sullivan v HSE [2023] IESC 11; G.T. v Minister for Justice [2007] IEHC 287;
– a cluster of authorities stressing that decisions must be read fairly and in the round, not parsed word‑by‑word to find “infelicities” (para 48(vi)–(vii)). This directly informs the court’s refusal to treat the inspector’s “health is not a matter for An Bord” phrase as an a priori rejection.

6.2 Onus of Proof in Environmental JR

An Taisce v An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8;
– central on avoiding “impossibly onerous and unworkable obligations” in EIA/AA and on applicants bearing the burden of evidentially displacing an authority’s conclusion that no reasonable scientific doubt exists (para 50(iv)).
Carrownagowan Concern Group v An Bord Pleanála [2024] IEHC 300; [2025] IESCDET 9;
– both the High Court and Supreme Court determination emphasise that applicants must use expert evidence to show scientific shortcomings in AA/EIA; harmless error doctrine is applied.
Eco Advocacy (C‑721/22, CJEU) and the Irish follow‑up cases Eco Advocacy CLG v An Bord Pleanála & Statkraft [2025] IEHC 15, and 100 Meter Tall Group v An Bord Pleanála [2025] IESCDET 85;
– confirm that it is enough that the Board provides reasons showing that its decision does not create reasonable scientific doubt, and that applicants must “displace evidentially” those reasons. Humphreys J adopts that logic in his onus‑of‑proof discussion (para 50(iv)).

6.3 Harmless Error Doctrine

Gemeinde Altrip (C‑72/12); R (Champion) v North Norfolk DC [2015] 1 WLR 3710; Carrownagowan and Massey v An Bord Pleanála [2025] IESCDET 126;
– these authorities anchor the principle that not every legal defect in EIA/AA or planning decisions requires quashing; courts may conclude an error is “harmless” if it could not reasonably have affected the outcome (para 51).
Colbeam v Dun Laoghaire Rathdown CC [2025] IEHC 437;
– Holland J’s colourful phrase about “an isolated undisciplined utterance not hair‑triggering certiorari” is endorsed (para 51(ii)), capturing the move away from automatic quashing for inconsequential missteps.

6.4 Urban Development and EIA

Commission v Spain (C‑332/04); WertInvest (C‑575/21); Commission’s 2024 guidance on Annex II:
– used to show that:
- Member States cannot categorically exempt all urban development projects in urban areas;
- major redevelopment schemes in dense urban contexts may clearly fall within 10(b); but
- classification depends on nature, size and location, and does not automatically extend to small, rural, stand‑alone infrastructure such as a single mast adjoining a small town.
R (Condron) v Merthyr Tydfil CBC [2009] EWHC 1621 (Admin); Ryan v An Bord Pleanála [2025] IEHC 111; Carvill v Dublin City Council [2025] IECA 84;
– illustrate that it is the urbanising effect of development, not mere proximity to a settlement, that matters for “urban development” classification. Humphreys J adopts this logic (para 137).

6.5 Health Concerns and Parallel Regulatory Regimes

T‑Mobile (UK) Ltd v First Secretary of State [2004] EWHC 1713 (Admin); Harris v First Secretary of State [2007] EWHC 1847 (Admin);
– English authorities where, under national policy, public concerns about base station health effects are usually not determinative if ICNIRP compliance is demonstrated, save in “exceptional cases”. Humphreys J references this approach (para 98), effectively aligning Irish practice with it.

7. Complex Concepts Explained

7.1 Judicial Review vs Appeal

Judicial review:

tests the legality of a decision (procedures followed, interpretation of law, rationality), not its correctness on the merits;
does not allow the court to re‑assess planning balance (visual impact, need, alternatives) unless the authority’s view is irrational or legally flawed;
is subject to the eight‑fold test summarised in section 3 above.

An appeal (e.g. a planning appeal to the Commission) allows re‑examination of merits; judicial review does not.

7.2 EIA and AA in Simple Terms

Environmental Impact Assessment (EIA): A structured study of a project’s likely significant environmental effects. Required only for projects listed in Annex I or II of the EIA Directive (or national equivalents) that, by nature, size or location, may have significant effects.
Appropriate Assessment (AA): A stricter, site‑specific assessment under the Habitats Directive Art.6(3) where a plan/project is likely to have a significant effect on a Natura 2000 site. Before AA, a screening determines if such likelihood exists. If no reasonable scientific doubt exists as to absence of effects, a full AA is not required.

7.3 “Urban Development Projects”

“Urban development projects” in Annex II(10)(b):

cover a wide range of large‑scale development in urban settings: shopping centres, big car parks, housing estates, stadiums, major educational/cultural complexes, etc.;
are characterised by urbanising effects—they create or significantly expand urban fabric;
do not automatically include every project happening near a town; the project must itself be of an urban nature and scale.

Telecoms infrastructure may fall within 10(b) if, for example, it forms part of a major integrated urban transport or infrastructure scheme, but not simply because a mast is near a small town.

7.4 Material Contravention (s.37 PDA 2000)

A “material contravention” occurs when a permission conflicts with the development plan in a significant way (e.g. zoning, height limits, key policies). If the Commission decides to grant permission contrary to the plan, it must:

invoke s.37(2)(a); and
justify that contravention under s.37(2)(b) criteria (e.g. strategic or national importance, conflicting objectives in the plan, etc.).

If the Commission finds there is no contravention—as here—s.37(2) does not apply, and the issue becomes one of evaluative judgment rather than a procedural duty to give “material contravention” reasons.

7.5 “Last Resort” in Telecoms Guidelines

The 1996 Guidelines use “last resort” in two key contexts:

within or in the immediate surrounds of smaller towns/villages; and
in a residential area or beside schools.

“Last resort” does not mean “never”. It means the applicant must show:

why less sensitive or more appropriate alternatives (industrial land, existing structures, co‑location) are unavailable or unsuitable; and
that siting in the sensitive location is therefore necessary.

The application of that test is a matter of planning judgment subject to rationality review.

7.6 Harmless Error

Harmless error in judicial review means:

even if a legal or procedural error is identified, relief is not granted if the court is satisfied there is no reasonable possibility the decision would have been different absent the error;
this applies in EIA/AA and other EU‑law contexts, as confirmed by CJEU and Supreme Court authority;
the party asserting harmlessness (often the developer or authority) bears the burden of showing that once an error is established.

8. Impact and Future Significance

8.1 For Planning Authorities and An Coimisiún Pleanála

Telecoms masts and EIA: Authorities can be confident that standalone rural masts adjacent to small settlements will ordinarily fall outside Annex II(10)(b). They are not obliged to treat every such mast as requiring EIA screening solely on proximity grounds.
Use of guidelines: Once an order or report shows explicit engagement with s.28 guidelines and plan policies, courts will rarely infer a failure to “have regard” unless applicants bring strong evidence to the contrary.
Visual impact and LVIA: Photomontages and reasoned visual descriptions can satisfy “visual impact assessment” requirements unless a plan clearly prescribes a formal report. The sufficiency of those materials is for planning judgment.
Health concerns: The Court’s endorsement of reliance on ICNIRP/ComReg regimes provides a clear framework: ordinary mast cases need not re‑litigate EMF science at planning level.

8.2 For Developers, Particularly Telecoms Operators

Alternative‑site analysis: Robust documentation is still needed—mapping existing masts, explaining co‑location attempts and why they were unsuitable, and setting out technical constraints. This case shows how such evidence can sustain a “last resort” argument even where guidelines are engaged.
Defending permissions: Following Ballyboden Tidy Towns, developers can actively defend permissions even where the authority is passive or has previously conceded in related litigation. Here, Vantage’s evidence and submissions were critical to upholding the decision.
Risk of EIA/AA challenges: The judgment reduces the risk that objections can easily force EIA or AA by relying on categorical arguments (“all masts near towns are urban development”, “all decommissioning must be fully designed now”). Instead, opponents must demonstrate realistic, evidence‑based environmental risks.

8.3 For Objectors and Environmental NGOs

Higher evidential bar: The decision reiterates that bare assertions, even carefully drafted legal submissions, are insufficient. Expert evidence is often required to show that AA/EIA conclusions are flawed or that significant visual/health/environmental impacts have been overlooked.
Narrower path to CJEU references: Courts will not refer questions that are, at root, applications of established principles to specific facts. Applicants must identify a genuine, unresolved interpretative issue in EU law and relevant supporting materials.
Strategic focus: Challengers may need to concentrate on clear procedural errors (e.g. complete failure to do AA screening) or misinterpretation of specific plan policies, rather than attempting to stretch EIA categories beyond their plausible scope.

8.4 For Environmental and EU Law Doctrine

Consolidation of onus and harmless error: The judgment sits within a strong line of Irish and EU authority favouring a pragmatic approach: substantive justice over formalistic quashing.
Clarification of “urban development projects”: While not a definitive, abstract definition, the case firmly indicates that:
- “urban development” is about urbanisation, not mere geographic adjacency to a town; and
- highly localised, functionally rural infrastructure like a single mast will seldom qualify absent integration in a larger urban scheme.

9. Conclusion

McGowan & Warnock v An Coimisiún Pleanála [2025] IEHC 727 is a detailed and conceptually rich judgment which:

re‑affirms a structured, eight‑fold framework for granting judicial review;
clarifies that standalone rural telecoms masts near small towns are not, in ordinary circumstances, “urban development projects” under Annex II(10)(b) of the EIA Directive;
strengthens the doctrinal emphasis on onus of proof and harmless error in planning and environmental challenges;
confirms that health effects of EMF from telecoms infrastructure are normally addressed at the level of general regulatory standards (ICNIRP, ComReg), not re‑tried in each planning application; and
underscores the deference owed to the Commission’s planning judgment on visual impact, application of guidelines and development plan policies, provided it engages with the material, gives intelligible reasons and stays within the bounds of rationality.

While formally a High Court decision, its careful integration of EU and domestic case law, and its clear statement on the EIA status of telecoms masts in rural settings, ensure that it will be a touchstone in future Irish planning litigation concerning infrastructure, urban development categories, and the lawful limits of judicial review.