Eco Advocacy CLG v An Bord Pleanala (Approved)

Factual and Procedural Background

The Applicant sought judicial review of a wind farm development decision made by the Respondent. While the Applicant succeeded in obtaining declaratory relief and costs related to that relief, it did not obtain certiorari quashing the Respondent's decision due to insufficient evidence to show defects in the Respondent's reasoning. Following this unsuccessful challenge, the Applicant submitted a set of 13 proposed points of exceptional public importance under eight broad headings, seeking leave to appeal. The court was tasked with determining whether these points properly raised legal issues of public importance suitable for appeal.

Legal Issues Presented

1. Whether the Respondent must demonstrate in its decision that it has taken account of submissions from the Minister advising the planning authority regarding Appropriate Assessment (AA) screening and how this must be done.
2. Whether the Respondent must address contrary expert scientific opinions or reasonable doubts in its reasons for screening out a development for AA.
3. Whether members of the public challenging AA screening must engage scientific experts or may rely on expert opinions of prescribed public bodies without independent proof.
4. Whether the High Court has jurisdiction to place a stay on a costs order and make provisions for set-off of costs occasioned by unsuccessful steps in appeals, and the compatibility of such costs orders with public participation provisions of the Aarhus Convention and EIA Directive.
5. The discretion of the High Court to refuse relief based on evidential failure to show additional assessment would have made a difference, disproportionate impact on the developer, and failure to raise relevant issues before the decision-maker.
6. Whether the High Court has inherent jurisdiction to release written legal submissions publicly in a manner differing from Practice Direction 101, including appending submissions to judgments without prior notification to authors.
7. Whether the High Court may release to the public a Digital Audio Recording (DAR) of proceedings without application or prior notice and without the matter being raised during trial.
8. Whether imposing a 105-minute limit on the Applicant’s oral submissions accords with natural and constitutional justice and public participation provisions.

Arguments of the Parties

Applicant's Arguments

• Advanced 13 detailed points of alleged exceptional public importance, challenging the Respondent’s AA screening process and procedural issues related to costs, disclosure of submissions, and hearing time limits.
• Contended that the Respondent failed to properly consider scientific submissions and that procedural limitations infringed on fair process and public participation rights.
• Complained about the publication of written submissions and the DAR, asserting procedural unfairness.
• Argued that the time limit imposed on oral submissions was unjust and contrary to constitutional and public participation provisions.

Respondent's and Notice Party's Arguments

• Contended that many points advanced by the Applicant did not properly arise, were fact-specific, or represented new arguments not pleaded or argued previously.
• Asserted that the Respondent had properly considered all relevant submissions, including those of prescribed bodies, and that the AA screening complied with established case law and the CJEU decision in Eco Advocacy.
• Maintained that provisional costs orders were subject to submissions which were not made, and no order for set-off costs had been sought, rendering related questions hypothetical and inappropriate for certification.
• Argued that publication of written submissions and the DAR was within the court's inherent jurisdiction and necessary to demonstrate the fairness of proceedings.
• Defended the time allocation for oral submissions as fair, reasonable, and consistent with case management principles and Supreme Court authority.
• Emphasized that the Applicant’s points were either non-legal, non-determinative, or re-argued settled principles, and thus unsuitable for leave to appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28	Legal questions must fall within pleadings and actually arise on the facts.	Applied to reject new or unpleaded points by the Applicant.
Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11	Questions must not be launched in the abstract.	Used to support rejection of hypothetical or abstract points.
GOCE Limited v. An Bord Pleanála [2025] IEHC 43	Questions must have been argued by the appellant and not be newly formulated for appeal.	Applied to dismiss points newly raised by Applicant.
S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646	Questions should be determinative and make a difference to the outcome.	Used to reject points that would not alter the case outcome.
Rooney v. Minister for Agriculture and Food [2016] IESC 1	Warning against litigants focusing only on debatable rulings, causing perpetual litigation.	Quoted to characterize Applicant’s repeated reformulations as litigious perpetual motion.
Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9	Questions must accurately reflect the judgment and not distort it.	Applied to find Applicant’s points misrepresented the Court’s findings.
Eco Advocacy CLG v An Bord Pleanála, C-721/21, ECLI:EU:C:2023:477 (CJEU)	Clarified extent of reasons required in Appropriate Assessment decisions.	Held that the Respondent need not provide point-by-point replies; reasons must dispel reasonable scientific doubt.
Callaghan v. An Bord Pleanála [2015] IEHC 493	Novelty of a point does not alone justify certification if otherwise unsuitable.	Applied to reject novel but unsuitable points by Applicant.
Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8 & 9	Requests for CJEU references do not convert unsuitable points into appealable issues.	Used to reject Applicant’s attempts to elevate points via CJEU reference requests.
Kelly Dunne & Ors v. Guessford Ltd T/A Oxigen Environmental [2022] IEHC 427	Set-off costs orders can be made in contexts with costs protection.	Referenced to confirm lawfulness of potential costs set-off mechanisms.
Fennelly J. in De Róiste v. Minister for Defence [2001] IESC 4	Certiorari is discretionary.	Applied to emphasize discretionary nature of quashing decisions.
Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3	Judicial review is not an appeal on the merits; onus of proof lies with applicant.	Applied to reject Applicant’s factual re-arguments as unsuitable for appeal.
Holohan v An Bord Pleanála, C-461/17, ECLI:EU:C:2018:883	Obligation to comply with Habitats Directive lies with decision-maker.	Referenced to confirm Respondent’s responsibility and scope of review.
Rudyard Kipling’s poem "If -" (1895) (metaphorical reference)	Illustrates professional perseverance and advocacy despite adverse outcomes.	Used to contextualize Applicant’s persistent litigation approach.
Hardiman J. in Gilroy v. Flynn [2004] IESC 98	Limits on indulgence for litigants; case management imperative.	Applied to support efficient case management and time limits.
Charleton J. in Defender v. HSBC France [2020] IESC 37	Fixing time limits for submissions is within legitimate case management.	Supported the court’s imposition of hearing time limits.

Court's Reasoning and Analysis

The Court systematically applied established legal principles governing leave to appeal in planning judicial review cases. It emphasized that points for appeal must properly arise within the pleadings, be factually grounded, have been argued previously, and be determinative of the outcome. The Court found that the Applicant’s 13 points largely failed these tests, often representing re-argument of settled law, unpleaded new issues, or abstract and hypothetical questions.

The Court relied heavily on precedent, including the CJEU’s decision in Eco Advocacy, which clarified the Respondent’s obligations in Appropriate Assessment decisions. The Court held that the Respondent was not required to address every submission point-by-point but only to provide sufficient reasons to dispel reasonable scientific doubt. The Applicant’s failure to provide sufficient evidence undermined its challenge.

Regarding procedural points on costs orders and publication of submissions and the digital audio recording, the Court concluded these matters were either hypothetical, not determinative, or within the Court’s inherent jurisdiction and case management powers. The Court rejected the Applicant’s complaints about the hearing time allocation, finding the expedited procedure fair and consistent with Supreme Court authority on case management and time limits.

The Court underscored the public interest in finality, certainty, and expedition in planning cases, especially given the urgent need for renewable energy infrastructure in the context of the climate emergency. It noted the significant delay already suffered by the project and the lack of any evidence that the Respondent’s decision was flawed.

The Court characterized the Applicant’s approach as repeatedly reformulating points in a manner akin to "litigious perpetual motion," which is not conducive to the orderly administration of justice or the appellate process.

Holding and Implications

The application for leave to appeal is dismissed.

The Court ordered that if the Applicant applies for leapfrog leave to appeal and it is granted by the Supreme Court, the costs of the leave application will be costs in that appeal; otherwise, no order as to costs is made. A stay on execution of costs already ordered will apply if leapfrog leave is granted until final determination.

The decision underscores the strict application of criteria for leave to appeal in planning judicial review cases, emphasizing that appeals must be based on clear points of law of exceptional public importance that are determinative and properly raised. The ruling reinforces the importance of procedural fairness, case management, and the public interest in avoiding undue delay, particularly in the context of critical renewable energy projects.

No new legal precedent was established; rather, the Court reaffirmed existing principles and the application of settled law to the facts of this case.