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Condon v An Coimisiun Pleanala and Anor [No. 2] (Approved)

Smart Summary

Summary of Judgment — High Court (Planning & Environment)

Factual and Procedural Background

The Applicant challenged a decision of the Respondent granting planning permission for a strategic housing development. The Notice Party was the developer. An archaeological assessment submitted with the application stated that certain buildings (including "The Highlands") were "not available for inspection". The planning inspector and the Respondent granted permission without a pre-consent internal assessment of those structures. The Applicant obtained a substantive judgment quashing the Respondent's decision on 2 May 2025. The Notice Party sought leave to appeal that judgment. The application for leave to appeal was heard on 10 November 2025 and judgment on the leave application was delivered by Judge Humphreys on 6 March 2026. The matter included exchanges and affidavits addressing why the archaeologist's report stated the structures were not available for inspection; it emerged that the consultant had not revisited the expanded site due to lack of time and had recycled an earlier desk-based report.

Legal Issues Presented

  1. Whether, as framed by the Notice Party, "Whether, as held in South West Regional Shopping Centre v An Bord Pleanála [2016] IEHC 84; [2016] 2 I.R. 481, the Board is entitled to exercise its own expertise and determine for itself whether or not an application materially contravenes a CDP for the purposes of s.37 of the PDA".
  2. Whether, as framed by the Notice Party, "Whether a CDP objective, of a type such as Objective 4-3 [sic], providing for archaeological assessment requires a mandatory physical survey of all relevant structures such as to definitively determine the existence, nature and extent of any remains prior to the date of the making of a planning application".

Arguments of the Parties

Notice Party's Arguments

  • The Notice Party argued the principal judgment conflicted with existing jurisprudence (notably the South West Regional Shopping Centre line) and that the judgment would have sweeping, adverse practical consequences for many projects unless clarified on appeal.
  • The Notice Party contended that the Court had "substituted its own view of material contravention" for that of the Respondent/Board and that the judgment implied a mandatory internal survey requirement prior to any planning application where a CDP objective refers to archaeological assessment.
  • The Notice Party relied on affidavits (including from a consultant and references to established practice) to assert the judgment would cause significant costs and delays to infrastructure and other projects and that a refusal to certify would be harmful in practice.

Applicant's Arguments

  • The Applicant argued the Notice Party's proposed questions misread the judgment and did not properly arise on the pleaded facts; the core error was the Respondent's failure to engage with and interpret the specific CDP objective (HE 3-4) as required by law.
  • The Applicant emphasised that the archaeologist had not carried out a fresh inspection because of lack of time and that the desk-produced assessment should have made that clear; the omission could have been avoided by a site visit prior to the report.
  • The Applicant submitted that the proposed appeal questions were fact-specific, lacked the necessary public importance and that the principal judgment was consistent with Supreme Court authority (Sherwin).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
O'Sullivan v. Health Service Executive [2023] IESC 11 Discussed in context of draft-judgment engagement and limits on re‑argument after circulation of a draft. Cited to explain the draft-judgment procedure and limits on parties' responses to drafts.
O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780 Authority on error of approaching procedural fairness as if it must approximate a criminal trial. Quoted to caution against treating draft procedures as opening a new litigatory phase.
Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R. 367 Reasoning supporting restrictions on publication/transmission of draft judgments. Used to justify the Court's direction limiting circulation of the draft judgment.
Condon v. An Bord Pleanála (No. 1) [2025] IEHC 255 The substantive High Court judgment quashing the Board's decision (subject of the leave application). Referred to as the principal judgment; the present application was for leave to appeal that decision.
Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 Pleading requirement: the point must fall within the pleadings for leave to appeal. Cited in explaining that points must be within the trial pleadings to justify leave.
Leech v. An Bord Pleanála [2025] IESCDET 106 Limits on appealing issues of pleading and alleged misinterpretation that are case specific. Used to show such points are not usually matters of law of public importance.
Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11, [2018] 1 JIC 1603 Point must actually arise on the facts, not be launched in the abstract. Cited as authority for that criterion.
GOCE Limited v. An Bord Pleanála [2025] IEHC 43 Point must actually have been argued by the would-be appellant. Cited to support requirement that the issue was argued at trial level.
S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 Point should be determinative and make a difference to the outcome; timing for leave (28 days). Applied within the framework of criteria for leave to appeal.
Morehart v. An Bord Pleanála [2025] IEHC 701 Illustration of requirement that a point should make a difference to outcome. Cited among authorities on the practical significance threshold for leave.
Rooney v. Minister for Agriculture and Food [2016] IESC 1 Warning against focusing on narrow debatable rulings to the exclusion of broader case weaknesses. Quoted to emphasise the court's reluctance to certify peripheral points.
Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9 Certificate must accurately reflect judgment and not be exaggerated for appeal purposes. Referred to when criticising the formulation of proposed questions.
Stapleton v. An Bord Pleanála [2025] IEHC 178 Application and limits for leave to appeal; examples of unsuitable questions. Used to support caution against expansive or discursive appeal questions.
Cooper v. An Bord Pleanála [2025] IESCDET 96 The applicant's misunderstanding of law does not create a matter of public importance. Cited to show disagreement with judgment is insufficient for certification.
B.S. v. Director of Public Prosecutions [2017] IESCDET 134 Distinguishing pure questions of law from factual or mixed questions. Cited to support that factual questions are unsuitable for leave as questions of law.
Halpin v. An Bord Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 Limits on appeals that are application-of-law-to-fact rather than pure law. Referenced among authorities on the nature of suitable appellate questions.
Rushe v. An Bord Pleanála [2020] IEHC 429, [2020] 8 JIC 3101 Similar authority on limitations of appellate review of fact-sensitive issues. Cited in support of that principle.
Stanley v. An Bord Pleanála [2022] IEHC 671, [2022] 11 JIC 2805 Authority on mixed questions of law and fact being unsuitable for leave. Part of the line of cases relied on for that proposition.
Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 Importance of public-interest consideration and potential impact of delay on notice parties. Cited to require consideration of practical impacts when assessing whether leave is in the public interest.
Maye v. Sligo Borough Council [2007] IEHC 146, [2007] 4 I.R. 678 Describes spectrum between specific plan provisions and aspirational objectives requiring evaluative judgment. Quoted within discussion of what constitutes material contravention.
Sherwin v. An Bord Pleanála [2024] IESC 13 Definitive Supreme Court exposition on development-plan interpretation and material contravention analysis. Cited as the governing authority; the Court held the principal judgment was consistent with Sherwin.
Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99, [1989] I.L.R.M. 768 Authority on the importance of the development plan. Cited within Sherwin's reasoning as underpinning plan importance.
Byrne v. Fingal County Council [2001] IEHC 141, [2001] 4 I.R. 565 Authority on interpretation of development plans cited within Sherwin. Used to support the proposition that interpretation of a plan is ultimately for the courts.
Wicklow Heritage Trust v [Wicklow] County Council [1998] IEHC 19 "It is for the Court and not for the planning authority to decide as a matter of law whether a particular development is a material contravention of the local development plan." Cited to underline judicial role in plan interpretation.
Jennings v. An Bord Pleanála [2023] IEHC 14 Confirmation that interpretation of development plan is a question of law requiring full-blooded review. Quoted to show consistency with the Court's approach.
Nee v. An Bord Pleanála (No. 1) [2012] IEHC 532 Cited by the Notice Party in an attempted comparison on contravention concepts. Court held the comparison was inapt because the commission had not correctly interpreted the plan in the present case.
Balz and Heubach v. An Bord Pleanála & Ors. [2016] IEHC 134 Cited by the Notice Party in attempted jurisprudential conflict argument. Court found no conflict because the factual and procedural posture differed.
Freeney v. An Bord Pleanála [2024] IEHC 427 Cited in the context of jurisprudence on material contravention distinctions. Court held the present case did not raise the same issues.
Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 Statement that appeals are unnecessary where law is not uncertain. Used to support that absence of doubt negates public-importance basis for appeal.
Callaghan v. An Bord Pleanála [2015] IEHC 493 Novelty alone does not make a point suitable for appeal. Cited to caution against certifying novel points without broader appropriateness.
Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209 Statement that disagreement with a judgment does not render law uncertain. Used to reject the Notice Party's argument of uncertainty.
Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8 Example where CJEU reference inclusion did not convert an unsuitable point into an appealable one. Cited to show that inclusion of a European reference is not determinative for certification.
Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 As immediately above. As immediately above.
Phoenix Rock Enterprises v. An Bord Pleanála & Ors. [2023] IESCDET 97 Requires evidence when asserting practical difficulties caused by a judgment. Cited to require evidential foundation for asserted impacts on industry/practice.
McCaffrey v. An Bord Pleanála [2024] IEHC 476 Illustration of leave refused where factual specificity precluded public-importance point. Cited as an example where leave to appeal was refused.
McCaffrey v. An Bord Pleanála [2024] IESCDET 145 Supreme Court disposition on leave to appeal in McCaffrey. Referenced as related appellate outcome.
R.A. v. Refugee Appeals Tribunal [2015] IEHC 830 Instances where solid cases for leave to appeal will be granted. Cited to note that meritorious leave applications are usually allowed.
B.W. v. Refugee Appeals Tribunal [2015] IEHC 833 As above. As above.
K.R.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 421 As above. As above.
S.T.E. v. Minister for Justice and Equality [2016] IEHC 544 As above. As above.
R.A. v. Refugee Appeals Tribunal (No. 3) [2016] IEHC 671 As above. As above.
B.S. (India) & Anor. v. Minister for Justice and Equality & Ors. (No. 3) [2020] IEHC 485 As above. As above.
Dublin City Council v. An Bord Pleanála (No. 2) [2021] IEHC 34 As above. As above.
Waltham Abbey Residents Association v. An Bord Pleanála [2021] IEHC 597 As above. As above.
Sweetman v. An Bord Pleanála (Sweetman XVII) (No. 2) [2021] IEHC 662 As above. As above.
Save Roscam Peninsula CLG v. An Bord Pleanála (No. 2) [2022] IEHC 328 As above. As above.
Joyce-Kemper v. An Bord Pleanála (No. 5) [2022] IEHC 349 As above. As above.
Kerins v. An Bord Pleanála (No. 5) [2023] IEHC 280 As above. As above.
Coolglass v. An Bord Pleanála [2025] IEHC 1 As above. As above.
Heavey v. An Bord Pleanála (No. 2) [2025] IEHC 311 As above. As above.

Court's Reasoning and Analysis

The Court applied the established multi-factor framework for granting leave to appeal. It examined whether the proposed questions (i) properly arose in the pleadings and on the facts, (ii) were points of law rather than factual or mixed questions, (iii) were of public importance and exceptionally so, and (iv) whether an appeal would be in the public interest. The Court found:

  • The Notice Party's first proposed question misread and exaggerated the authorities relied upon; the Notice Party had not properly argued the South West Regional Shopping Centre point at the substantive hearing and did not engage with the principal judgment's reasoning.
  • The second proposed question was imprecise and based on a factual misdescription (reference to "4-3" instead of 3-4) and speculative generalisation; the principal judgment did not hold that every CDP archaeological objective requires a mandatory internal physical survey in all cases.
  • The principal judgment was consistent with Sherwin v. An Bord Pleanála: interpretation of a development plan is for the courts, and it was the Respondent's failure to engage with Objective HE 3-4 that was decisive. The inspector and Board did not address that objective and therefore failed the first step identified in Sherwin.
  • Material factual shortcomings undermined the Notice Party's case: the archaeologist had not revisited the expanded site because of lack of time; the phrase "not available for inspection" was inaccurate and created confusion; there was no "Heritage Report" as averred by a consultant.
  • There was no demonstrable public importance or exceptional significance: the disputed provision was in a development plan adopted in 2014 that expired on 6 June 2022 and has since been replaced with different wording; the alleged systemic consequences were speculative and unsupported by evidence.
  • Accordingly, the proposed questions did not meet the statutory and jurisprudential thresholds for certification for appeal, and an appeal was not in the public interest.

Holding and Implications

HOLDING: The application for leave to appeal was DISMISSED.

Implications:

  • The dismissal means the substantive judgment quashing the Respondent's decision stands (certiorari granted as set out in the principal judgment).
  • The Court ordered costs against the Notice Party in favour of the Applicant (with specified qualifications and reserved quantum to be determined), and made ancillary directions regarding costs and possible leapfrog leave consequences.
  • The Court emphasised that the judgment did not establish a universal rule requiring mandatory internal inspections in every case; it applied existing law (notably Sherwin) to the particular factual failure by the Respondent to engage with the specific CDP provision. No new general precedent beyond that application was created.

This summary has been prepared solely from the text of the provided judgment and has been anonymised in accordance with the instruction to replace personal identifiers with generic placeholders.

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Condon v An Coimisiun Pleanala and Anor [No. 2] (Approved)

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Condon v An Coimisiun Pleanala and Anor [No. 2] (Approved)
(Mar 6, 2026)