Summary of Judgment — High Court (Planning & Environment)

Factual and Procedural Background

This is a summary of the written judgment delivered by Judge Humphreys in judicial review proceedings brought by the Plaintiffs challenging an April 24, 2024 decision of the planning authority (the Respondent) to grant planning permission to Company A for a 141 hectare solar farm near historic settlements in County Waterford (the City). The permission followed a 2019 permission for a separate, earlier phase of development and a subsequent 2023 local authority grant for the phase 2 site, the latter appealed to the Respondent. The Respondent's inspector recommended grant; further internal ecological reports were prepared in March 2024; the Respondent granted permission on appeal on 24 April 2024.

The Plaintiffs (five named local participants including a local sporting club) commenced proceedings on 18 June 2024. Leave to apply for judicial review was granted on 29 July 2024 and an amended statement of grounds was filed thereafter. The proceedings were modularised into at least two modules following procedural issues arising from a failure by the notice party (Company A) initially to file its statement of opposition; further affidavit evidence was filed and Module II addressed the late filing and related factual matters. Judgment on Module I was prepared and delivered first; the present judgment resolves the remaining issues and records that the proceedings are dismissed.

Legal Issues Presented

1. Whether the notice party (Company A) should be permitted to file a late statement of opposition and whether its belated affidavits should be admitted as evidence.
2. Whether the planning application was invalid ab initio because required map/wayleave information was not provided (Article 22(2)(b)(iii) PDR 2001) or because the applicant lacked sufficient interest (absence of owner/consent) — i.e. the "wayleave" and "shooting rights/consent" complaints (Core Ground 1).
3. Whether the Respondent breached constitutional/fair procedures or the Plaintiffs' property rights (Core Ground 2).
4. Ancillary: whether any demonstrated procedural or legal error was harmless or material and, if material, whether certiorari should be granted (discretion and remedial questions).
5. Whether, if either Core Ground 1 or 2 succeeded, previously dismissed grounds (Module I grounds 3–5, 7, 8) should be revisited.

Arguments of the Parties

Plaintiffs' Arguments

• The planning application was invalid because maps did not identify wayleaves in yellow (Article 22(2)(b)(iii)), and therefore the Respondent exceeded jurisdiction and should have treated the application as void ab initio.
• The application was invalid because the developer lacked sufficient interest and did not have written consent from the holders of sporting/shooting rights (the sporting club and/or the landowner), so Article 22(2)(g)(i) was not complied with.
• The Respondent breached fair procedures and constitutionally protected property rights of the sporting-club applicant.
• Additional pleaded grounds (in Module I) raised EIA/AA and other environmental and procedural complaints (not revisited here because they were dismissed in Module I).

Respondent's Arguments (An Coimisiún Pleanála)

• No complaint as to validity (on these grounds) was raised before the Respondent and cannot be raised now; the Applicants are confined to their pleadings.
• Article 22(2)(g) requires the written consent of the legal owner; it does not require written consent of a subordinate rights-holder (e.g. holders of sporting rights) and Frescati is not a basis to extend that requirement beyond the regulations.
• There was no evidence of prejudice from any alleged omission of wayleave identification and the application documents and appeal materials made the hedgerow/line situation apparent; the Applicants did not put the statutory undertakers or title evidence before the court.
• If any error existed, it was harmless and not material to the outcome; the court should exercise discretion against certiorari.

Notice Party's Arguments (Company A)

• The failure to file a statement of opposition was an oversight; the statement was verified by affidavit and the late filing should be permitted in the interests of justice.
• Landowner consent was obtained from the registered owner; no additional written consent from subordinate rights-holders is required by Article 22.
• There is no evidence of any wayleave omitted from the application drawings (and if any existed, there is no evidential foundation that it would have produced prejudice or altered the outcome); glint-and-glare and visual-impact assessments showed no effect with existing screening.
• If any procedural defect existed, it was non-material/harm-less; the court may rely on developer evidence to exclude a reasonable possibility that the defect affected the decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded in modular fashion, addressing threshold procedural matters before the substantive grounds. The principal strands of reasoning were:

1. Late filing of statement of opposition and admission of affidavits: the court accepted that the statement of opposition ought to have been filed but concluded the omission resulted from oversight. Applying Order 122 r.7 RSC and the interests-of-justice test, the court permitted late filing and admitted post-Module I affidavits (the parties effectively agreed to admission). The court emphasised that there was no real prejudice to the Plaintiffs and that formal non-filing would not, in any event, alter the outcome because the court itself must be satisfied on the merits.
2. Pleading discipline and limits on argument: the court repeatedly applied established authorities that applicants are confined to their pleaded grounds and that EU-heavy or technical matters require precise pleadings and evidential support. The court found that many of the Plaintiffs' points either lacked appropriate pleading (for example, not pleading owner-status under Article 22(2)(g)) or advanced factual permutations outside the pleadings (notably new arguments about an ESB line).
3. Shooting rights/consent (Core Ground 1 — consent point): interpreting Article 22(2)(g) in the context of the Planning and Development Act 2000 and its definitions, the court concluded that the regulation requires the written consent of the legal owner (normally the registered/freehold owner). The court held that subordinate rights-holders (e.g. holders of sporting/shooting rights) are not required to give written consent under the regulation and that Frescati does not displace the statutory text. The court emphasised the legislative framework and the principle that subsequent regulations can alter the practical legal position.
4. Wayleave complaint (Core Ground 1 — wayleaves): addressing the complaint that wayleaves were not shown on the application maps, the court determined the onus to prove existence of an omitted wayleave lies on the applicant. The court noted multiple defects in the Plaintiffs' approach: no steps were taken to obtain title/undertaker evidence; there was a failure to plead and prove necessary facts; and the evidence before the Respondent and in the appeal materials (including the inspector's site images and glint-and-glare assessment) demonstrated no material planning prejudice. The court also applied workability considerations (Registration of Title Act provisions make many easements/wayleaves unregistered) and concluded it would be unworkable to invalidate permissions on the basis of information that could not reasonably be known.
5. Constitutional/fair procedures claim (Core Ground 2): the court held that permission does not extinguish independent legal/property rights and that the mere prospect of rights being enforced is not a ground to quash a permission. The court concluded that the Plaintiffs had not established a clear, obvious, and inescapable breach of constitutional rights such that the Respondent should have refused permission at the planning stage. The primary rights-holder (the landowner) was not a party, and the Plaintiffs could not rely on that third party's rights without joinder.
6. Onus, evidence and harmless error: the opinion reiterated that the onus of proof in judicial review remains on the applicant and that, where a technical or procedural error is shown, the onus shifts to others to demonstrate harmlessness. The court applied the Altrip/Carrownagowan line of authority and concluded that even if a defect had occurred, the Applicants had not provided admissible evidence creating reasonable scientific or factual doubt, and the developer/other parties had pointed to materials showing lack of consequence. The court therefore excluded a reasonable possibility that any alleged error made a difference to the outcome, and in any event would have declined certiorari in the exercise of its discretion.
7. Discretion and proportionality of remedies: even where an error might be identified, the court applied discretionary principles (delay, prejudice, triviality, workability, likelihood of recurrence, etc.) and concluded that quashing (certiorari) would be disproportionate and unnecessary given the absence of demonstrated prejudice and the Applicants' failure to establish material error.
8. Consequential grounds: because Core Grounds 1 and 2 failed, the court found no basis to reopen the dismissals of the other grounds addressed in Module I.

Holding and Implications

Holding: The court ordered that the proceedings be DISMISSED.

Implications and direct consequences:

• The late filing of the statement of opposition by Company A was permitted in the interests of justice and the post-Module I affidavits were admitted; however the court recorded that the result would have been the same even if the statement had been disallowed because the Plaintiffs failed to establish entitlement to relief on the merits.
• The Plaintiffs' Core Grounds 1 (shooting-rights/wayleaves) and 2 (constitutional/fair-procedures) failed for lack of pleading, lack of evidential foundation, and on workability/interpretation grounds as to Article 22; the court found no material prejudice and would have declined certiorari in its discretion.
• The dismissal leaves the Respondent's April 24, 2024 grant of planning permission intact; independent legal or property rights of third parties remain unaffected by the permission and can be pursued by those rights-holders by appropriate means (nothing in this judgment extinguishes any such rights).
• The court ordered the proceedings dismissed and recorded procedural directions regarding perfection of the order and a listing date; costs directions were reserved on the basis indicated in the judgment.

Broader precedent-setting: the judgment applies and synthesises established principles (pleading strictness in planning JR, onus of proof on applicants, workability in interpreting application-documentation rules, and the harmless-error doctrine in environmental planning litigation). The decision does not purport to create a new legal principle beyond the application of those established authorities to the facts of this case.

This summary is derived exclusively from the provided opinion and contains only factual and legal material appearing in that opinion. No external facts have been added. All identifying details from the original opinion have been anonymised in accordance with the required conventions.