Summary of Judgment — Planning & Environment List

Factual and Procedural Background

The Applicants are residents and operators of a family business located on lands in The City which were included in a Compulsory Purchase Order ("CPO") made by Company B on 12 June 2020. Company A confirmed the CPO on 20 September 2022 following an oral hearing. The CPO relates to acquisition of lands for the construction and improvement of an inner relief road and a vehicle bridge crossing a river approximately 80 metres upstream of an existing bridge; the CPO documentation also referred to pedestrianisation of the existing bridge.

Prior to the CPO, Company B had made a development decision under the Part 8 procedure on 9 April 2018 authorising works including the inner relief road and bridge; that Part 8 decision is unchallenged in these proceedings. The Applicants initiated judicial review proceedings on 14 November 2022 and filed an Amended Statement of Grounds on 12 January 2023 in accordance with an earlier court order. There were contested interlocutory applications concerning costs protection decided in judgments by Judge Humphreys. A contested leave hearing was listed for 23 November 2023 but was adjourned at the Applicants' request after the first named Applicant obtained documents under the Freedom of Information Act which included materials relating to the Part 8 procedure.

On 12 November 2024 the Applicants made four applications in the proceedings: (a) liberty to amend pleadings; (b) leave to apply for judicial review (including on amended grounds); (c) an application for costs protection on outstanding issues; and (d) an application by Company B for costs in respect of the adjourned leave hearing. The court considered the proposed amendments, the leave application and related interlocutory matters and reserved decision on consequential listing matters to a subsequent date.

Legal Issues Presented

1. Whether the Applicants should be granted liberty to amend the Amended Statement of Grounds to add extensive new grounds (including EU law and transposition claims) and expanded reliefs.
2. Whether leave should be granted to the Applicants to apply for judicial review on the existing and proposed amended grounds.
3. Whether costs protection should be afforded to the Applicants for the proceedings (issue considered but rendered unnecessary by dismissal).
4. Whether Company B should be awarded costs for the adjourned leave hearing (wasted costs application).

Arguments of the Parties

Applicants' Arguments

• The Applicants sought to amend their pleadings to add multiple new grounds including claims under the Habitats Directive (alleging failure to carry out Appropriate Assessment and screening), a claim of non-transposition of Article 6 of the Habitas Directive into domestic law, claims concerning extinguishment of rights of way, and expanded declaratory relief including an allegation that domestic statutory provisions are inconsistent with EU obligations.
• They advanced arguments that the confirmation of the CPO was unnecessary in part, disproportionate to their constitutional rights, and that the CPO (or schedules within it) would extinguish rights of way without appropriate assessment.
• The Applicants relied on documents obtained by FOI in support of new factual material said to justify the amendments and late pleading of EU-based arguments.

Respondents' Arguments (Company A, Company B and Company C)

• Company B (as developer) opposed leave and the extensive amendments, submitting that the proposed amendments amounted to an entirely new case, were out of time and prejudicial, and that the Part 8 development consent (made in 2018) was unchallenged and already addressed environmental issues.
• Company A did not oppose grant of leave in respect of the existing pleaded case but reserved the right to contest points later; Company C likewise engaged on procedural points. The Respondents also emphasised that issues properly raised at the development consent (Part 8) stage could not be belatedly advanced at the CPO stage when the consent pre-existed the CPO confirmation.
• The Respondents argued that claims of non-transposition were insufficiently particularised and that statutory compensation procedures are separate from the CPO confirmation process, so constitutional complaints about compensation did not amount to substantial grounds to invalidate the Board's decision.
• Company B also argued any delay by the Applicants in seeking FOI materials and in bringing these specific arguments lacked reasonable explanation and that allowing the amendments or leave would cause irremediable prejudice given public interest in road safety.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
[2017] IECA 296 — Plaintiff v. Defendant (BW v. RAT)	Amendment of pleadings requires three elements: arguability, explanation and lack of irremediable prejudice.	The court applied this tripartite test when assessing the proposed amendments and found the Applicants failed to satisfy these requirements.
[2023] IEHC 136 — Plaintiff v. Company A (O'Lone v. Company A)	Court reluctance to permit extensive reprogramming of a case by amendment.	Used as part of the general principle cautioning against extensive amendments; supported refusal to permit the new case to be introduced.
[2023] IEHC 26 — Plaintiff v. Company A (Sherwin v. Company A)	Discussion of flexibility in allowing amendments and interaction with precedent (and reference to Keegan).	Cited to explain that some flexibility exists but did not justify the extensive amendments sought here.
[2012] 2 IR 570 — Plaintiff v. Defendant (Keegan)	Prejudice does not necessarily arise from an amendment that allows a new argument which may succeed.	Used to temper strictness on amendments but the court held that the scale of the proposed amendments went beyond what Keegan permits.
[2007] IEHC 153 — Plaintiff v. Company A (Sweetman)	Amendments may not be used to introduce an entirely new case.	Relied upon to support the conclusion that the proposed amendments would amount to a new case and were therefore impermissible.
[2022] IECA — Plaintiff v. Company A (North Westmeath Turbine Action Group)	Authority cited in the context of limits on permissible amendments.	Used alongside other authorities to emphasise the court's reluctance to permit wholesale reworking of the case.
[2016] IECA 194 — Plaintiff v. Defendant (Hewitt v. HSE)	Authority cited (in turn citing Farrell v. Coffey) on amendment and prejudice principles.	Used to reinforce established principles on amendment and prejudice.
[2009] IEHC 537 — Plaintiff v. Defendant (Farrell v. Coffey)	Authority on when prejudice arises in the context of amendment.	Cited by higher authorities and relied upon as part of the body of law governing amendments.
[2024] IEHC 6 — Plaintiff v. Company A (King v. Company A)	Analysis of sequencing where a CPO precedes development consent and its potential to form part of a multi-stage consent process that might trigger Habitats/EIA obligations.	The court distinguished King on its facts: here the Part 8 consent predated the CPO, so King did not dictate the outcome; the CPO was treated as giving effect to an existing consent rather than constituting a stage of consent.
[2006] IESC 49; [2007] 1 IR 194 — Plaintiff v. Minister (Dunne)	Principle that whether a decision constitutes "development consent" is not determined by a simple "but for" test; assessment of alternatives and the content of the consent are critical.	Applied to conclude the Part 8 decision was the substantive development consent and that the later confirmation of the CPO did not amount to a re-opening of development consent issues for EIA/Habitats assessment purposes.
Case C-461/17 — National case (Holohan)	Principle that availability and assessment of alternatives is important in grant of development consent.	Referenced to support the court's approach to what constitutes the project for EIA/Habitats assessment and the importance of alternatives at the consent stage.
Case C-411/17 — National case (Inter‑Environnement Wallonie)	Interpretation that "project" under Habitats Directive can be wider than under the EIA Directive; works inextricably linked to measures may require assessment if impacts are identifiable.	The Applicants relied on this authority but the court held it did not alter the outcome because the Part 8 consent predated the CPO and environmental assessments were matters for the consent stage.
Case C-463/20 — National case (Namur‑Est Environnement)	Public participation under EIA Directive need not apply to preliminary decisions provided effective participation is available early and before consent is granted.	Used to explain timing of public participation rights and why the CPO stage was not the correct juncture to raise EIA participation complaints where consent had already been granted.
Case C-504/14 — Commission v. State (Commission v. Greece)	Article 6(3) of Habitats Directive relevant when national authorities grant authorisation for a project.	The court relied on this to support the proposition that Appropriate Assessment obligations attach at authorisation (consent) and not at the CPO stage where consent already existed.
[2023] IEHC 579; [2024] IECA 234 — Plaintiff group v. Company A (Carrownagowan Concern Group)	Conditions for a remedial obligation claim for unlawful breach of EU law.	The court held the Applicants did not meet the conditions identified in these authorities for advancing a remedial obligation remedy.
[2024] IESC 28 — Plaintiff residents v. Company A (Concerned Residents of Treascon and Clondoolusk)	Requirement to strictly observe procedural rules (Order 84 r. 20(3)) for pleading failure to transpose EU obligations.	Applied to require particularity in transposition challenges; the Applicants' transposition claim was held to be generalised and inadequately pleaded.
[2020] IEHC 39 — Plaintiff v. Company A (Sweetman — 2020)	Further authority on pleading requirements for transposition/challenges.	Used to support the requirement for particularisation of transposition allegations which was not satisfied here.
[2020] IEHC 122 — Plaintiff v. Company A (Rushe)	Pleading and procedural requirements in EU transposition challenges.	Applied similarly in support of strict pleading rules for transposition claims.
[2024] IESC 4 — Plaintiff group v. Company A (Ballyboden Tidy Towns Group)	Settled that a private developer may object to judicial review even where statutory bodies consent.	Relied upon to confirm Company B's entitlement to oppose the leave application despite Company A and Company C not opposing leave on certain grounds.
[2005] IEHC 84 — Plaintiff v. Company A (Clinton)	Test to be applied in assessing justification/necessity for compulsory acquisition (referred to in Inspector's Report).	The Inspector had applied the Clinton test in assessing necessity and public interest; the court accepted the Inspector's analysis as part of the Board's reasoning.
[2013] 1 IR 142 — Plaintiff v. Minister (Nawaz)	Legislative challenge procedure under section 50 of the Planning and Development Act 2000 requires substantial grounds.	The court applied the substantial grounds threshold to legislative/transposition-type challenges where relevant.

Court's Reasoning and Analysis

Judge Farrell applied established principles governing amendments to pleadings, judicial review leave and the timing of environmental and EU-law challenges. The analysis proceeded in layered steps:

1. Threshold for amendment: The court applied the tripartite test (arguability, explanation and absence of irremediable prejudice) and authorities cautioning against using amendments to reframe a case wholesale. The proposed amendments were found to introduce multiple new grounds (including EU transposition and Appropriate Assessment claims) that together constituted an entirely new case rather than permissible refinement.
2. Delay and explanation: The Applicants had not provided a satisfactory explanation for the significant delay in seeking key documents (FOI requested many months after proceedings were issued) and for not advancing the new claims at the earlier Part 8/development consent stage. The court held that the Part 8 process concluded in April 2018 and the Applicants could, with reasonable diligence, have been aware of the material earlier.
3. Sequencing and scope of review: A central element of the reasoning was distinction between cases where a CPO precedes development consent (potentially part of a multi-stage consent process) and cases, like this one, where development consent pre-existed the CPO. Relying on Dunne and related authorities, the court held that where consent is already granted, the confirmation of a CPO does not give the confirming authority power to revisit the substantive environmental or consent determinations (including Appropriate Assessment/EIA issues) that should have been raised at the consent stage.
4. Specific grounds assessed: The court examined each pleaded core ground and the proposed amended grounds. In summary:
   • Domestic grounds framed as merits challenges (e.g. proportionality, failure to consider submissions, adequacy of procedure regarding compensation) were not supported by evidence of lack of consideration and, in substance, amounted to merits challenges improper for judicial review of the CPO confirmation stage.
   • Claims that the Board's decision had the effect of extinguishing rights of way were premature: the actual extinguishment decision remained for Company B and had not been effected by the Board's confirmation of the CPO.
   • EU-law grounds (Appropriate Assessment and non-transposition) were either out of time, insufficiently particularised, or inapposite given the sequencing where development consent preceded the CPO. The court emphasised strict pleading requirements for transposition challenges (Order 84 r. 20(3)).
   • Remedial obligation claims under EU law were held not to meet the applicable conditions established in recent authorities.
5. Irremediable prejudice and public interest: The court gave weight to the public interest in the road safety objectives underpinning the Part 8 development. Allowing expansive amendments and consequent delay posed a risk of irremediable prejudice (including safety risks) and the balance of justice favoured refusal of the amendments.
6. Costs and wasted costs: Given that leave to seek judicial review was refused and the proceedings were dismissed, the question of prospective costs protection became moot. On the adjournment of the leave hearing in November 2023, the court exercised discretion and declined to order wasted costs against the Applicants, noting an existing interim costs protection order and that the adjournment was not opposed by Company A and Company C.

Holding and Implications

HOLDING: The court refused the Applicants' application for liberty to amend the Amended Statement of Grounds, dismissed the application for leave to apply for judicial review (including on the proposed amended grounds), and made no order as to costs in respect of the adjourned hearing.

Implications:

• Direct effect: The decision terminates these proceedings in respect of the CPO confirmation challenged by the Applicants. The CPO confirmation by Company A (as related to the Applicants' lands) stands subject to any separate, appropriately timed and particularised challenges that might be available on distinct decisions (for example, any future extinguishment order by Company B, if and when made).
• Procedural guidance: The judgment underscores the principle that environmental and EU-law challenges tied to a development consent must ordinarily be raised at the consent stage; a later challenge at the CPO confirmation stage will generally be impermissible where consent pre-existed the CPO, absent exceptional justification and a proper extension of time. The court also reaffirms strict pleading requirements for transposition claims and the need to explain delay when seeking late amendments.
• Costs outcome: The court exercised discretion to make no order as to wasted costs for the adjourned hearing, noting the prior interim costs protection order and the acquiescence of some respondents to the adjournment.
• Precedential effect: The judgment applies and distinguishes existing authorities (including a recent decision addressing sequencing where a CPO precedes consent). The court did not purport to create novel legal principles but clarified the application of established principles on amendment, delay, sequencing of consent and CPO confirmation, and pleading requirements for EU-transposition allegations.

Order (as recorded): refusal of the sought amendments, dismissal of the leave application, and no order as to costs of the adjourned hearing. The matter was directed to be listed for possible consequential applications on a specified later date.

---

Summarised and anonymised from the provided judgment text by the court.