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Keogh and Ors v An Coimisiun Pleanala and Anor (Approved)

High Court of Ireland
May 29, 2026
Smart Summary (Beta)

Factual and Procedural Background

The judgment was delivered by Judge Humphreys in proceedings brought by three local objectors (hereafter "Plaintiff 1", "Plaintiff 2" and "Plaintiff 3", collectively "Plaintiffs") against the planning decision-maker (hereafter "Defendant") challenging the grant of planning permission to the developer (hereafter "Company A") for a seven-turbine wind energy development in four townlands in County Carlow. The planning application was lodged with the planning authority on 13 May 2024 and refused by the authority on 5 July 2024. Company A appealed; an Inspector reported recommending permission; the Defendant granted permission by order dated 27 November 2025 subject to 24 conditions. The Plaintiffs commenced judicial review proceedings on 20 January 2026, obtained leave, filed amended grounds, and the matter was heard on 27 April and 5 May 2026. Judgment was reserved and a draft circulated to parties on 22 May 2026. The Court dismissed the proceedings and ordered a recital confirming that the second named plaintiff's dwelling is not a "participating property" for the purposes of Condition 9(a).

Legal Issues Presented

  1. Whether the Defendant lawfully complied with EIA/AA obligations in respect of the development (including cumulative noise, landscape/visual impacts and traffic safety).
  2. Whether the Defendant lawfully had regard to and treated development plan policy (alleged material contraventions) in deciding to grant permission.
  3. Whether the Defendant lawfully had regard to or improperly fettered its discretion by treating the 2006 Wind Energy Guidelines as determinative (and related SEA-related complaints).
  4. Whether submissions of the Plaintiffs (including on microplastics and the misdescription of a dwelling as a "participating property") were considered and if any failure of consideration or reasons arose.
  5. Procedural/contention issues about the admissibility and weight of late/replying affidavit evidence and whether unpleaded arguments (notably invoking s.15 of the Climate Action and Low Carbon Development Act 2015) could be relied on.

Arguments of the Parties

Plaintiffs' Arguments

  • The Defendant failed to carry out a full EIA and did not address likely significant effects on human amenity (particularly cumulative night-time noise), landscape/visual impacts and traffic safety.
  • The Defendant failed to consider relevant planning history (including a prior refusal) and failed to give reasons as to why the present proposal differed materially from that prior refusal.
  • The Defendant improperly treated the 2006 Wind Energy Guidelines as prescriptive, and should have applied more recent guidance (2019 draft), WHO 2018 noise guidance, and expert reports.
  • The Defendant ignored submissions on microplastics and misdescribed the second plaintiff's property as a "participating property", producing a material factual error affecting mitigation (shadow flicker).
  • The Plaintiffs relied on an expert affidavit/report filed late (Huson) to challenge the EIA/noise assessment.

Defendant's Arguments

  • The Defendant and Inspector properly considered all relevant material (including the EIAR, NIS, planning authority reports and submissions) and reached reasoned conclusions; reasons and main issues were addressed to the requisite standard.
  • The EIAR and Inspector's report addressed noise (including AM and low frequency issues), landscape and traffic; the Defendant adopted and applied those reasoned conclusions.
  • Allegations based on unpleaded legal grounds (including s.15 of the 2015 Act) were not raised on the pleadings and cannot be relied on; the Plaintiffs bear the onus of proof to displace the presumption that material was considered.
  • The misdescription of the second plaintiff's dwelling in Company A's material was an error of the applicant's documentation only and Condition 9 and related mitigation apply to the dwelling; a recital or clarification in the order suffices.
  • Late replying affidavit evidence was procedurally improper and, in any event, should be afforded no weight; conflicts of evidence resolve against the Plaintiffs absent cross-examination.

Company A's Arguments

  • Company A submitted that the EIAR was adequate, that cumulative and technical issues were assessed, and that the Plaintiffs have not adduced expert evidence to overturn the Inspector's technical conclusions.
  • Company A contended the mislabelling of the second plaintiff's property was de minimis, harmless, and in any event would be remedied by interpreting Condition 9 to apply to the dwelling.
  • Company A joined the Defendant in submitting that unpleaded collateral challenges to the validity of Government guidelines (SEA point) cannot be advanced in these proceedings without joining the State and that the have-regard status of s.28 guidelines limits the Plaintiffs' argument.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
A.P. v. Director of Public Prosecutions [2011] IESC 2 Applicants are confined to their pleadings. Applied to hold that unpleaded arguments cannot be advanced by submission alone (e.g. s.15 point).
Khashaba v. Medical Council [2016] IESC 10 Pleadings confinement principle. Reinforced the need for clarity in pleadings for complex points.
Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42 Pleadings confinement principle. Used to support approach that applicants are confined to pleaded grounds.
Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28 Need for particular clarity in complex EU law pleadings. Applied to reject late or vague EU-based contentions absent clear pleading.
Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38 Scattergun pleadings are inappropriate. Invoked to criticise inconsistent/multiple formulations by Plaintiffs.
Babington v. Minister for Justice Equality and Law Reform & Ors. [2012] IESC 65 Criticism of repetitive and unclear pleading practice. Referenced as authority for strict pleading requirements.
Amariei v. Chief Appeals Officer [2026] IESC 22 Judicial review concerns legality not merits; scope of discretion; onus of proof; discretionary remedy. Applied as central framework: emphasised legality/onus/discretion and informed dismissal on merits and in discretion.
State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 Judicial review is not an appeal on merits. Used to underline that court will not substitute its merits judgment for the decision-taker's.
Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 Onus on applicant; legality vs merits. Applied to stress applicant's burden to prove factual and legal errors.
Sweeney v. Fahy [2014] IESC 50 Judicial review concerned with legality not merits. Reinforced standard of review for evaluative judgments.
An Taisce v. An Bord Pleanála & Ors. [2022] IESC 8 Onus of proof in challenges to environmental assessment; presumption material considered. Applied to hold Plaintiffs must adduces admissible evidence to displace conclusions on AA/EIA.
G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 Presumption that material has been considered if decision-taker says so. Applied: Court accepted Defendant's statement that submissions and reports were considered absent evidential displacement.
Rana v. Minister for Justice [2024] IESC 46 Presumption material considered; reasons may be implicit. Used to support that absence of narrative detail does not prove non-consideration.
Sherwin v. An Bord Pleanála [2024] IESC 13 Evaluative planning judgements are reviewable on an irrationality standard. Applied to assess whether Defendant's evaluative judgments exceeded allowed margin; held they did not.
Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 Relevance of extent to which submissions were made to decision-taker; material must be before decision-taker to engage duty. Applied to assess whether Plaintiffs' points were validly before Defendant and thus could ground relief.
Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25 No obligation to provide discursive, submission-by-submission narrative reasons. Applied to reject argument that lack of issue-by-issue response equated to failure of reasons.
Connelly v. An Bord Pleanála [2018] IESC 31 Obligation to provide main reasons on main issues; reasons may be found outside decision itself. Applied in evaluating sufficiency of Inspector's Report and Defendant's Order as providing main reasons.
Faulkner v. Minister for Industry and Commerce 1997 WJSC-SC 962 Reasons standard: "main reasons on the main issues". Invoked to test adequacy of reasons provided by Inspector/Defendant.
Waltham Abbey/Pembroke Road Association v. An Bord Pleanála [2022] IESC 30 Law does not favour unworkable interpretations. Applied to avoid an unworkable reading of plan provisions or guidelines.
Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43 Law does not favour unworkable interpretations. Used similarly to guard against unworkable interpretations.
Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52 Discretion as to relief; proportionality in quashing decisions for technical procedural errors. Applied in discretionary analysis—quashing inappropriate for minor/technical procedural defects.
Ashbourne Holdings Ltd v. An Bord Pleanála [2003] IESC 18 Law avoids unworkable interpretations. Referenced in interpreting development plan and policy tensions.
G. v. DPP [1994] 1 I.R. 374 Judicial review is a discretionary remedy. Applied in concluding relief could be refused in exercise of discretion even if error shown.
Meadows / R v. Crischuk / Reid v. An Bord Pleanála (No.1) and related High Court authorities Onus lies on applicant to prove defects in AA/EIA by evidence; iterative nature of environmental assessments. Applied to require evidential proof for alleged EIA/AA defects and to reject mere assertion.
R (Friends of the Earth Ltd) v. Heathrow Airport Ltd [2020] UKSC 52 EIA/AA principles; many matters evaluative; iterative assessment process. Used to frame approach to adequacy and iterative nature of EIA/AA and margin of judgement.
R (on the application of Finch on behalf of the Weald Action Group) v. Surrey County Council [2024] UKSC 20 Deciding significance of environmental effects requires value judgment; different reasonable outcomes possible. Applied to emphasise evaluative character of significance assessments.
R. (on the application of Champion) v. North Norfolk District Council [2015] UKSC 52 AA evaluation is primarily for the decision-taker; courts review legal compliance. Referred to support deference to inspector/commission on scientific assessments unless evidence displaces them.
Holohan v An Bord Pleanála, C-461/17, ECLI:EU:C:2018:883 Standard for AA: national courts must examine scientific soundness. Quoted to explain the legal standard for appropriate assessment and judicial scrutiny.
Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Waddenzee) AA standard does not require impossible certainty; absence of reasonable scientific doubt is required. Applied to explain acceptable standard for absence of reasonable doubt in AA.
No Adastral New Town Ltd v. Suffolk Coastal District Council [2015] EWCA Civ. 88 Iterative EIA process; flaws at one point can be addressed later. Applied to support that the process overall can cure initial information gaps.
R. (Friends of the Earth Ltd) v. Heathrow Airport Ltd (again) Decision-maker need not consider every conceivable matter; weight is for decision-taker. Applied in evaluating Plaintiffs' reliance on multiple submissions and guidance.
R v Crischuk 2010 BCSC 716 Onus on applicant to show EIA/AA defects by evidence. Used to require expert evidence for alleged scientific shortcomings.
Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230 Affidavits/expert evidence limitations; applicants must put evidence forward timely. Applied to exclude or devalue late evidence and to stress procedural timeliness.
Hayes v. Environmental Protection Agency [2024] IECA 162 Eight-week rule not absolute but does not permit ongoing entitlement to drip-feed evidence. Applied to limit Plaintiffs' late evidence and to uphold case management expectations.
Sliabh Luachra Against Ballydesmond Windfarm Committee v. An Bord Pleanála [2019] IEHC 888 Affidavit evidence can be excluded for unexplained delay causing prejudice. Invoked to support exclusion/discounting of late affidavits lacking justification.
Solan v. An Bord Pleanála [2023] IEHC 58 Decision-maker cannot treat a specific issue as determinative while failing to consider relevant evidence. Distinguished on facts; Court found planning history had been considered here.
Cleary Compost and Shredding Ltd v. An Bord Pleanála [2017] IEHC 458 Planning history may be considered but does not require detailed comparative analysis in every case. Applied to reject Plaintiffs' claim that prior refusal automatically precluded current permission.
McGowan v. An Coimisiún Pleanála [2025] IEHC 727 No general obligation to assess each prior decision in planning history; context matters. Relied on to support that consideration of past refusals is not automatically determinative.
Sherwin / Tesco / Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 (HL) Weight to be given to considerations is for decision-taker; courts review irrationality only. Applied to defer to planning judgment where not tainted by legal/factual error.
ClientEarth v. Shell plc [2023] EWHC 1897 Court ill-equipped to second-guess complex managerial/planning balancing exercises. Used to caution against substitution of court judgment for planning evaluative balancing.
S. v. Minister for Justice and Equality [2025] IESC 48 Failure to exhaust alternative remedies and conduct of applicant relevant to discretion. Applied in discretionary assessment of whether relief should be refused.
Doyle v. An Coimisiún Pleanála & Ors (No.3) [2026] IEHC 156 Standards on reasons and severability; no need to give reasons for legally incorrect points. Applied to assess adequacy of reasoning and to refuse to quash for incorrect but immaterial points.
St Teresa's Gardens / Case C-9/22 (NJ and OZ v An Bord Pleanála) Guidance on whether non-binding guidelines set a framework requiring SEA. Applied to conclude 2006 Wind Energy Guidelines (have-regard) did not trigger SEA in this context.

Court's Reasoning and Analysis

The Court proceeded by applying established principles drawn from Irish and EU caselaw concerning (i) the limits of judicial review (legality not merits), (ii) stringent pleading requirements, (iii) the onus of proof on applicants to establish defects in EIA/AA by admissible evidence, (iv) the standard for reasons (main reasons on main issues), (v) the evaluative margin accorded to planning decision-makers, and (vi) the discretionary nature of certiorari.

Applying those principles the Court dealt with each core ground:

  • Preliminary procedural points: the Court held unpleaded invocation of s.15 of the Climate Act was not part of pleaded grounds and could not be relied on; late/replying affidavit evidence (Huson) was procedurally problematic and, even if admitted, carried no weight where it conflicted with contemporaneous material before the Defendant and the Inspector's report.
  • Planning history (Core Ground 2): the Court found the Inspector's Report and the Defendant's Order expressly engaged with past applications and permitted developments; a prior refusal did not automatically preclude permission for a different proposal in a changed factual and policy context.
  • Wind energy guidelines and noise/shadow flicker (Core Ground 3): the Court held the Inspector and Defendant had regard to the 2006 Guidelines while also considering more recent material; Plaintiffs failed to discharge the onus to show the Defendant treated the guidelines as prescriptive or that the noise/AM assessments were legally defective.
  • Misdescription of the second plaintiff's property (Core Ground 5): the Court concluded the error lay in Company A's documentation and did not affect the operation of the planning condition; Condition 9 and related mitigation applied to the dwelling and a recital in the order would clarify this.
  • Material contravention of the development plan (Core Ground 6): the Court analysed the plan provisions, noted tensions between different policies (some supporting renewables), accepted the Inspector's sophisticated analysis of plan/national policy interaction, and held the plan provisions left evaluative judgment to the Defendant; no material contravention was demonstrated.
  • EIA/AA and specific technical claims (Core Grounds 1 and 4): the Court emphasised that alleged scientific or technical shortcomings must be established by admissible expert evidence. The Plaintiffs did not discharge that onus; the EIAR, Inspector's report and Defendant's Order set out the assessments and conclusions which, unless displaced by evidence, were presumed considered and adequate.
  • SEA challenge to 2006 Guidelines (Core Ground 7): the Court treated any collateral attack on the validity of the Guidelines as impermissible in these proceedings absent joinder of appropriate State parties and concluded that s.28 "have regard to" guidance did not amount to a framework for development consent that would trigger SEA.
  • Discretion: even if an error had been established the Court applied discretionary principles (conduct of Plaintiffs, practical value of remedy, proportionality and public interest in renewable infrastructure) and concluded certiorari would be inappropriate.

Holding and Implications

DISMISSED

Holding: The Court dismissed the Plaintiffs' judicial review proceedings in their entirety. It ordered that a recital be included confirming that the second named plaintiff's dwelling is not a "participating property" for the purposes of Condition 9(a), and otherwise ordered dismissal of the proceedings with no order as to costs unless otherwise applied for as directed.

Implications: The immediate effect is that the Defendant's grant of planning permission (27 November 2025) remains effective and Company A may proceed subject to the conditions. The Court applied established principles on pleading, onus of proof, reasons, evaluative deference in planning matters, and discretion; it did not establish a novel legal principle or depart from cited jurisprudence. Where claimants rely on technical or scientific defects in EIA/AA they must adduce timely admissible expert evidence and properly plead legal bases; collateral attacks on non-binding guidelines require appropriate State joinder.