Mc Gowan & Anor v An Comisiuin Pleanala (Approved)

Factual and Procedural Background

The case concerns an application pursuant to sections 50, 50A, and 50B of the Planning and Development Act 2000, challenging a planning permission granted by the planning authority for a strategic infrastructure development (SID). The proposed development involves a wind farm with 13 wind turbines, a 110kV substation, underground grid connection, and a hydrogen plant with an underground interconnector between the wind farm substation and the hydrogen plant substation. The site spans townlands in two counties, Mayo and Sligo, located in northwest Ireland near the Ox Mountains and the N59 road.

A previous permission for 21 turbines at the site had expired, and the current application for 13 turbines was submitted by Company A on 6 July 2023. The planning process included submissions and observations by the applicants, the Minister for Housing Local Government and Heritage, the Environmental Protection Agency (EPA), and Company A as notice party. An inspector was appointed who conducted site inspections, chaired an oral hearing, and prepared a report recommending permission. The planning board considered the inspector's report and granted permission subject to 36 conditions on 19 November 2024.

The applicants commenced judicial review proceedings on 22 January 2025, seeking to quash the planning board’s decision. The procedural history includes multiple rounds of submissions, requests for particulars, amendments to pleadings, and affidavits filed by the parties. The matter was heard on 24 June 2025, with judgment reserved and a draft judgment circulated to the parties on 8 July 2025 for comment.

Legal Issues Presented

1. Whether the planning board lawfully carried out an Environmental Impact Assessment (EIA) with respect to the environmental effects of continued domestic turf cutting on the site during the lifespan of the permission.
2. Whether the planning board failed to properly consider or misinterpreted the relevant development plan and renewable energy strategy, including whether conditions restricting turf cutting should have been imposed.
3. Whether the planning board failed to comply with the obligation to carry out a joint assessment with the Environmental Protection Agency (EPA) pursuant to relevant provisions of the EIA Directive and the Planning and Development Act 2000.

Arguments of the Parties

Applicants' Arguments

• The planning board’s decision is invalid for failing to carry out a lawful EIA, specifically for inadequate assessment of the environmental effects of continued turf cutting, including greenhouse gas emissions and biodiversity loss.
• The planning board breached statutory provisions and failed to have regard to or misinterpreted the Mayo County Development Plan 2022-2028 and the Mayo Renewable Energy Strategy, particularly regarding peat maintenance and greenhouse gas maximisation objectives.
• The planning board erred by concluding that imposing conditions to restrict turf cutting would render the project infeasible, without adequately considering the feasibility or cost of acquiring further turbary rights.
• The planning board failed to consult adequately with the EPA and did not carry out a joint assessment, despite knowledge that no proper EIA was conducted with respect to emissions from the proposed development.
• The applicants sought an order quashing the planning permission, declarations of legal rights, a stay on implementation, a protective costs order, and costs of the proceedings.
• The applicants attempted to introduce a new ground alleging inconsistent assessment methodology between the Environmental Impact Assessment Report (EIAR) and the inspector’s report, which was disallowed due to lateness and lack of explanation.

Planning Board's Arguments

• The planning board contends that the decision was lawful and supported by adequate reasons, including proper consideration of the relevant development plan and renewable energy strategy.
• The board asserts that it carried out a full and lawful EIA, including assessment of the impact of continued turf cutting, with expert ecological input confirming adequacy.
• The board denies any failure to consult the EPA or to carry out a joint assessment, noting that the EPA made submissions which were considered in the process.
• The board argues that it lacks jurisdiction to impose conditions regulating turf cutting on lands not controlled by the developer and that the applicants’ inconsistent case on this point precludes relief.
• The board maintains that the applicants’ grounds are inadequately particularised, largely merit-based disagreements dressed as legal arguments, and fail to establish any legal error or irrationality.
• The board opposes the belated amendment to plead a new ground of challenge and has addressed it on a de bene esse basis.

Company A's Arguments

• Company A opposes the applicants’ expansion of their pleaded case beyond what was raised before the planning board and objects to complaints based on non-expert assertions unsupported by evidence.
• Company A submits that the planning board and its inspector properly considered all relevant environmental and planning issues, including turbary rights and biodiversity impacts.
• It is argued that the board does not have power to impose conditions regulating land not under the developer’s control, and that the applicants’ submissions before the board were inconsistent with their current position.
• Company A denies any failure in the EIA process or consultation with the EPA and asserts that the environmental effects of the proposed development were properly assessed and mitigated.
• Company A supports the board’s position opposing the disallowed amendment and the inadequacy of the applicants’ pleadings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court commenced by emphasizing the fundamental principles governing judicial review: that applicants bear the onus of proof, must plead with sufficient particularity, and that judicial review concerns legality rather than merits. The court underscored that applicants are confined to the case they put before the decision-maker and cannot advance inconsistent arguments at the review stage.

Regarding the factual and environmental context, the court noted the project involves a wind farm and hydrogen plant on cutover blanket bog with existing turbary rights exercised by third parties. The planning board and its inspector had considered the environmental impacts, including turf cutting, and concluded there would be a net biodiversity gain due to cessation of turf cutting on lands under the developer’s control and habitat restoration measures.

The court addressed the applicants’ attempt to introduce a new ground alleging inconsistency between the Environmental Impact Assessment Report (EIAR) and the inspector’s report concerning biodiversity gain methodology. This amendment was disallowed for lack of sufficient explanation and lateness. Even if allowed, the court found the claim unfounded, relying on the inspector’s affidavit and rejecting the applicants’ misinterpretation of the replies to particulars.

On the substantive grounds, the court found the applicants’ pleadings on failure to consider or misinterpret the development plan and renewable energy strategy to be impermissibly vague and unparticularised. The court accepted the board’s position that the relevant policies were considered and that the applicants’ submissions before the board had supported continuation of turbary rights, rendering their current contradictory position unsustainable and an abuse of process.

The court held that the planning board lawfully concluded that conditions restricting turf cutting on lands outside the developer’s control could not be imposed, as the board lacks jurisdiction to impose conditions regulating land not controlled by the applicant. The court rejected the applicants’ argument that the developer should have acquired further turbary rights, noting no legal basis was pleaded or established.

Regarding the Environmental Impact Assessment, the court found that the board conducted a lawful and adequate EIA, including consideration of turf cutting impacts, supported by expert ecological evidence. The court rejected the applicants’ claim that a joint assessment with the EPA was required, holding that EU law does not mandate centralisation of EIA functions in a single authority. The EPA was consulted, made submissions, and these were considered by the board and inspector.

The court emphasized that the applicants failed to provide expert evidence to substantiate their claims of inadequacy and that their complaints amounted to impermissible merits-based disagreements. The reasons given by the board and inspector were found sufficient to satisfy legal requirements.

In sum, the court found multiple fatal flaws in the applicants’ case, including lack of particularity, failure to discharge the burden of proof, inconsistent and contradictory pleadings, and absence of legal or evidential foundation for their complaints.

Holding and Implications

The court DISMISSED the judicial review proceedings challenging the planning board’s decision to grant permission for the proposed development.

The applicants were ordered to file a third amended statement of grounds omitting the disallowed sub-ground within seven days. The dismissal was made without order as to costs unless any party applied otherwise within a specified period.

This decision confirms the strict application of pleading and evidential requirements in judicial review of planning decisions, affirms the limits on the planning board’s power to impose conditions relating only to land under the developer’s control, and upholds the lawfulness of the Environmental Impact Assessment process as conducted. It reinforces the principle that judicial review is not a vehicle for merits-based appeals or for advancing inconsistent positions to those taken before the decision-maker.