When a fundamental EIA public‑notice breach does not trigger certiorari: the “phase‑two cure” discretion in North Westmeath Turbine Action Group v An Bord Pleanála [2025] IEHC 608

When a fundamental EIA public‑notice breach does not trigger certiorari: the “phase‑two cure” discretion in North Westmeath Turbine Action Group v An Bord Pleanála [2025] IEHC 608

Introduction

This commentary examines the High Court of Ireland’s judgment in North Westmeath Turbine Action Group & Anor v An Bord Pleanála & Ors [2025] IEHC 608 (Quinn J, 10 November 2025), a post-judgment ruling on the form of relief following the Court’s earlier merits decision in June 2025 ([2025] IEHC 367). The underlying dispute concerned planning permission granted by An Bord Pleanála (the Board) for a 13‑turbine wind farm near Coole, County Westmeath, and whether the environmental impact assessment (EIA) complied with Council Directive 2014/52/EU (the EIA Directive) and the Planning and Development Acts and Regulations as the transposing framework.

Two sets of proceedings were heard together: the applicants (North Westmeath Turbine Action Group and its company) and a related case brought by Mr Sweetman. The Court dismissed all grounds in Sweetman and almost all grounds in the applicants’ case. However, it upheld a single, fundamental EIA ground: that public notice failed to disclose that the EIA encompassed the grid connection—an integral component of the “single project” under O’Grianna v An Bord Pleanála [2014] IEHC 632—running approximately 26 km through 21 townlands. The notices had carefully listed the wind farm site works and several off‑site works and townlands, but omitted any reference to the grid connection route.

In its June judgment, the Court indicated that certiorari must follow. On the return for the settling of orders, the Board and the developer (Coole Windfarm Ltd/Greenwire entities) sought to limit relief to a declaration alone, intending to apply for a s.50A(7) certificate to appeal. The November ruling addresses three issues: (i) whether the Court had jurisdiction to revisit relief before perfection of the order; (ii) whether it was appropriate to do so; and (iii) if so, whether to quash the permission or confine relief to a declaration.

Summary of the Judgment

Quinn J held:

  • Jurisdiction to revisit relief: The Court may revisit and alter the form of relief prior to perfection of the order, especially where the Court had expressly invited submissions on orders and costs (citing Nash v DPP [2015] IESC 32; Lavery v DPP [2018] IEHC 185; Re L (2013) 1 WLR 634; HKR Middle East Architects Engineering LLC v English [2021] IEHC 376; Re McInerney Homes Ltd [2011] IEHC 25). The “Greendale” line does not apply as no final order had issued.
  • Appropriateness of revisiting relief: It was fair to consider the remedy afresh, since the original (June) judgment had not engaged with the remedial discretion and the parties had not been heard on it post‑judgment. The Court accepted it had erred in pronouncing on certiorari without hearing submissions informed by the reserved judgment.
  • Remedy: While the EIA public-notice breach was fundamental and not a trivial “harmless error” in the Doyle/Carrownagowan sense, the Court exercised its remedial discretion to refuse certiorari and grant a declaration only, on the exceptional facts that:
    • no works would commence until a separate planning application for the grid connection (“phase two”) is granted;
    • under O’Grianna, that phase‑two process will necessarily entail a fresh, integrated EIA of the overall project (wind farm plus grid) with compliant public notice;
    • that future, inevitable process will cure the present public participation deficit before any works occur, ensuring no prejudice to the public or the applicants.
  • Attribution of the notice failure: The obligation to give public notice lies with the developer, not the Board. The Court corrected the terms of its June declaration to reflect that the developer failed to notify the public, while the Board’s error lay in purporting to complete EIA absent valid public notice.
  • No remittal: The Court declined remittal to the Board; it would serve no purpose given the phase‑two process.

Analysis

Precedents Cited and Their Influence

O’Grianna v An Bord Pleanála [2014] IEHC 632

O’Grianna is the cornerstone of the Court’s analysis. It established that, for EIA purposes, a wind farm and its grid connection form an integrated single project. Project-splitting is impermissible; assessment must extend to both phases. Quinn J applied O’Grianna twice over:

  • Substantively, to hold the original EIA had to include the grid connection and that the failure to notify the public of the EIA’s inclusion of that element vitiated compliance with the Directive.
  • Remedially, to reason that the forthcoming grid-connection application necessarily triggers a full, integrated, EIA‑compliant process—thereby curing the present public-participation breach before any development occurs.

Jurisdiction to revisit relief before perfection

  • Nash v DPP [2015] IESC 32 and Re McInerney Homes Ltd [2011] IEHC 25: Confirm a judge may revisit a judgment before perfection of the order, particularly where strong reasons exist. Nash also emphasises a judge’s duty to do justice, including acknowledging and correcting error.
  • Lavery v DPP [2018] IEHC 185; HKR Middle East Architects Engineering LLC v English [2021] IEHC 376; Re L (2013) 1 WLR 634: Support the principle that a court can alter decisions pre‑perfection and that hearing on form of order remains open where invited by the court.
  • Re Greendale Developments Ltd (In Liquidation) [2000] 2 IR 514: Distinguished; applies where orders are already perfected. Here, no final order had issued.

“Harmless error” jurisprudence

  • Doyle v An Bord Pleanála [2025] IEHC 158: Humphreys J formulated a comprehensive approach to harmless error, including the principle that quashing is not appropriate for errors that made no difference to outcome, provided the court can exclude a “reasonable possibility” that the error mattered, particularly considering public participation.
  • Carrownagowan Concern Group v An Bord Pleanála (No. 3) [2024] IEHC 549: Treated an inspector’s erroneous reference to the absence of a hydrological connection as immaterial on uncontested evidence that the outcome would have been the same.
  • Save Cork City Community Association v An Bord Pleanála [2021] IEHC 509; Grafton Group plc v An Bord Pleanála [2023] IEHC 725; Clifford & Sweetman v An Bord Pleanála (No. 3) [2022] IEHC 474: Cases addressing public access/publication defects under the regulations (e.g., incorrect website), where courts sometimes limited relief to declarations. Quinn J distinguishes these as technical failures of access modalities, not a total omission to notify the public of the very existence of the EIA component in issue.
  • Gemeinde Altrip v Rheinland‑Pfalz (C‑72/12): The CJEU held national courts may refuse to recognise impairment of a right if they can conclude, without shifting the burden of proof to the applicant and considering the seriousness of the defect, that the decision would not have been different absent the procedural defect. Quinn J notes that particular care is required where public participation is affected.

How these influenced the decision: The High Court expressly declined to treat the omission of EIA notice for a 26 km grid route as a mere technicality. It could not conclude the outcome would necessarily have been the same had the public been duly notified and permitted to participate. This would normally militate for certiorari under Doyle/Altrip. However, O’Grianna and the developer’s undertaking introduced an exceptional forward‑looking cure: before any works, a second planning process must occur in which public participation will be fully vindicated for the integrated project. That unique confluence of authorities and facts drove the Court’s remedial discretion.

Legal Reasoning

1) Jurisdiction and appropriateness to revisit relief

Although the June judgment announced that certiorari would follow, no final order had yet been perfected, and the Court had invited submissions on the form of the order. Applying Nash and McInerney Homes, Quinn J accepted it was both permissible and fair to revisit the remedy to hear fully informed submissions—the Court candidly acknowledged it should not have committed to certiorari without first hearing the parties on remedy post‑judgment.

2) The public‑notice breach was fundamental

The published notices listed multiple off‑site works and townlands in careful detail, yet omitted any mention of a 26 km grid connection traversing 21 townlands—the very element that transformed the “wind farm” into an operational project. Under Article 6(2) EIA Directive, s.171A of the Planning and Development Act 2000, and O’Grianna’s integrated‑project rule, the EIA had to be notified as a single project. The omission deprived the public of awareness and opportunity to participate with respect to the grid corridor. Evidence included an affidavit (Ms Pilkington) attesting that landowners on the route were unaware. The Court characterised the defect as going “to the very validity of the process,” not a mere technicality.

3) Harmless error? No—at least not in the strict sense

Applying Doyle/Altrip, the Court could not exclude a reasonable possibility that public participation would have influenced the EIA outcome; the defect involved a total failure to notify a material component of the project. In ordinary circumstances, that finding would compel certiorari.

4) The “phase‑two cure”: a principled exercise of remedial discretion

The decisive pivot in the analysis is the developer’s confirmation that no works will commence until the grid connection secures planning permission. O’Grianna dictates that the phase‑two application must present and trigger EIA of the entire integrated project. That process will necessarily include:

  • lawful, comprehensive public notice (including the grid route);
  • public access to information and the opportunity to make submissions on the overall project (not just the grid);
  • a fresh environmental assessment that complies “in every respect” with the Directive before any permission issues for the connection.

On these facts, any prejudice from the original missing notice is prospectively eliminated: persons unaware in phase one will be notified and can participate in phase two; if permission is refused, no harm accrues; if granted, it will be in compliance with the Directive following full participation. The Court described this outcome as “curious,” but nonetheless the right and proportionate result: a declaration marking the breach, with no certiorari, because the forthcoming integrated process will cure the deficit before any development proceeds.

5) Attribution of the obligation to notify

The Court corrected the earlier formulation: the duty to notify the public of the EIA rests on the developer, not the Board. The Board erred by proceeding to complete EIA without valid public notice, but the publication failure itself was the developer’s.

Impact and Significance

A new, carefully circumscribed remedial pathway in EIA litigation

This decision breaks new ground on remedy in Irish EIA judicial review by holding that:

  • Even a fundamental breach of the public participation requirement (total omission to notify an integral project component) does not inevitably trigger certiorari.
  • Where the record establishes that no works will occur before a legally mandated, future, integrated EIA—one that will necessarily include compliant public notice—courts may, in exceptional circumstances, treat the breach as effectively remediable and confine relief to a declaration.

This is not a dilution of public participation rights; rather, it is a pragmatic reconciliation of the effectiveness of EU law with procedural proportionality. The key is that full public participation will be vindicated before any works. The Court’s refusal to extend the “harmless error” label to the notice defect underscores that this is not a permissive approach to notification. It is a narrow, fact‑sensitive remedy where a guaranteed, imminent, and integrated process will occur.

Concrete implications

  • For developers and planning authorities: The safest course remains scrupulous compliance with O’Grianna at the notice stage: if the EIA covers the grid connection as part of the single project, the public notice must say so and identify its route/townlands. Failure invites litigation and at least declaratory relief marking non‑compliance.
  • For courts: The decision articulates a two‑step remedial analysis:
    1. Assess seriousness and the Altrip/Doyle harmless‑error threshold; and
    2. Where strict harmlessness is not established, consider whether an inevitable, integrated phase‑two process will cure the participation deficit before any works, such that quashing would be disproportionate.
  • For objectors and the public: The ruling confirms robust protection for public participation, but signals that, if a mandatory, imminent process guarantees a full opportunity to participate before development, courts may prefer declarations over quashing.
  • For wind energy projects: The case re‑emphasises that grid connections are integral. Notices must reflect this reality. At the same time, the judgment reduces the systemic risk of complete project collapse where an inevitable phase‑two application will lawfully restore participation.

Complex Concepts Simplified

  • EIA (Environmental Impact Assessment): A legal process to identify, describe, and assess the environmental effects of a proposed project before consent is granted, including public participation.
  • Project splitting (O’Grianna rule): Prohibits separating a single project into parts (e.g., wind farm and grid connection) to avoid full EIA; both must be assessed together.
  • Public notice under the EIA Directive: Authorities must ensure the public is informed that an EIA is being carried out and of the project’s nature, location, and potential impacts, so people can make submissions.
  • Certiorari vs Declaration: Certiorari quashes the decision; a declaration states the law or identifies a breach without quashing the outcome.
  • Harmless error doctrine: Courts may refuse to quash where an error clearly made no difference to the outcome, especially when public participation was not materially compromised.
  • Perfection of an order: Final sealing of the order. Before perfection, a court may revisit aspects of its decision, including the relief granted.

Key Takeaways from the Court’s Reasoning

  • The omission to notify the EIA’s inclusion of a 26 km grid route was a serious, fundamental breach of Article 6(2) of the EIA Directive and s.171A.
  • The Court could not find the error “harmless” in the strict Doyle/Altrip sense.
  • Nonetheless, in exceptional circumstances—where no works will commence until a mandatory, future, integrated EIA with full public notice is done—the Court may exercise its discretion to refuse certiorari and grant a declaration only.
  • The obligation to publish EIA notices rests on the developer, though the Board erred by proceeding absent valid notice.
  • No remittal was ordered; phase‑two will operate as the curative process.

Conclusion

North Westmeath Turbine Action Group [2025] IEHC 608 crystallises a nuanced remedial principle in Irish EIA law. It reaffirms, with clarity, that public notice must reflect the integrated nature of wind farm projects, including grid connections, and that a total omission of that element is a fundamental defect. Yet the Court also recognises a narrow space for proportionality in remedy: where it is certain that a subsequent, integrated EIA process will take place—with compliant public notice and full participation before any works—quashing may be unnecessary and disproportionate. The decision thus harmonises the effectiveness of EU‑mandated participation with practical sequencing in energy infrastructure, and it does so without diluting the core participatory guarantees of the Directive.

As a precedent, the case should not be read as a general licence to under‑notify. Rather, it sets out an exceptional “phase‑two cure” pathway. In most cases, defective public notice of EIA will still point towards quashing. But where an inevitable, imminent, integrated assessment with full notice is on the way and no works can begin beforehand, the High Court has signalled that a declaration may suffice to vindicate EU law while avoiding unnecessary disruption.

Case Details

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