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Hession v An Coimisiun Pleanala and Ors (Approved)

High Court of Ireland
Jun 5, 2026
Smart Summary (Beta)

Factual and Procedural Background

The Applicant sought judicial review of a decision by the Respondent granting planning permission for the use of part of an agricultural field as a private airstrip. The lands had previously been the subject of permissions: an initial permission by the Respondent dated 18 May 2011 (five years), a planning authority permission dated 13 February 2018 (five years), and a later planning authority grant on 16 February 2024. The Applicant, a local resident, made submissions to the planning authority and appealed the authority's grant to the Respondent on 7 March 2024. An Inspector recommended grant subject to a five-year limitation; the Respondent granted permission without a time limit on 18 November 2024 (commission order ABP-319221-24). The Applicant commenced judicial review proceedings on 17 January 2025; leave was granted on 17 February 2025. The High Court (Humphreys J.) heard the matter on 19 May 2026 and delivered judgment on 5 June 2026 dismissing the proceedings, with clarifications and a recital proposed as to the interpretation of one condition of the permission. The planning authority (Company A) and the second notice party (the developer, who did not participate) were notice parties.

Legal Issues Presented

  1. Whether the Respondent's grant of an unlimited-duration permission, contrary to an Inspector's recommendation of a five-year limit, was legally invalid (including whether the Respondent failed to give sufficient reasons for disagreeing with the Inspector).
  2. Whether the Respondent acted ultra vires or in excess of jurisdiction by granting permission for a development not said to have been sought.
  3. Whether the Respondent's screening under the EIA Directive and Stage 1 Appropriate Assessment under the Habitats Directive were legally adequate, including whether screening should have been revisited if the Respondent altered the basis of the Inspector's screening.
  4. Whether Condition 3 of the permission (confined aircraft use, unless otherwise agreed with the planning authority) was void for uncertainty or incompatible with EIA/Habitats public participation and assessment obligations.

Arguments of the Parties

Applicant's Arguments

  • The application and Inspector's report proceeded on the basis that any permission should be time-limited to five years; granting an open-ended permission was ultra vires and contrary to res judicata or the proper interpretation of the process.
  • The Respondent failed to give appropriate reasons for departing from the Inspector's recommended five-year limitation (s.34(10)(b)), thereby denying procedural fairness.
  • The plans and particulars (including flightpath plans) misrepresented nearby dwelling locations and failed to disclose or regularise alleged unauthorised development (including a concrete apron within a recorded monument), rendering the application/documentation invalid under the Planning & Development Regulations.
  • The Respondent's preliminary examination under the EIA Directive and AA screening under the Habitas Directive were defective (insufficient information, failure to consider conservation objectives of a nearby SAC, failure to consider use/noise impacts), and Condition 3 is uncertain and could permit unlawful expansion by agreement with the planning authority.

Respondent's Arguments

  • The application was not made on qualified temporal terms; the Respondent was entitled to grant permission de novo and to grant an unlimited permission after assessment.
  • The Respondent provided adequate reasons (noting it "did not note any justification to limit the grant of permission to five years") and there is no general obligation to provide a discursive, submission-by-submission response.
  • The EIA Directive does not apply because the proposal involved use of existing grassland with no physical works; screening and AA were properly carried out by the Inspector and adopted by the Respondent.
  • The Applicant has not discharged the onus of proof to show defects in pleading, documentation, EIA screening or AA, and alleged inaccuracies or unauthorised works were assessed by the Inspector who found no bar to grant of permission.
  • Condition 3 should be read in context (together with Conditions 1 and 2) and does not permit radical expansion; it is a valid limited matters condition under s.34(5).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
A.P. v. Director of Public Prosecutions Applicants are confined to their pleadings. The Court applied the principle that the Applicant is bound by his pleadings.
Khashaba v. Medical Council Support for the rule that applicants are confined to their pleadings. The decision supported the same pleading constraint relied on by the Court.
Casey v. Minister for Housing, Planning and Local Government & Ors. Support for the rule that applicants are confined to their pleadings. Referenced for the pleading constraint applied to the Applicant.
Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. Applicants are confined to their pleadings; EIA does not apply to unlisted projects (later citation). Used in support of pleading limits and EIA principles in this judgment.
Oguekwe v. Minister for Justice, Equality and Law Reform No obligation to provide a discursive, narrative consideration or to engage with submissions submission-by-submission. The Court relied on this to reject a claim that the Respondent had to provide issue-by-issue narrative reasons.
Rawson v. Minister for Defence Support for the proposition that decision-taker need not provide discursive narrative reasons. Referenced to reinforce the reasons standard applied by the Court.
Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest EIA applies to physical interventions, not changes of use. Applied to conclude EIA did not apply to this use-only permission.
Pro-Braine ASBL and Others v Commune de Braine-le-Château EIA applies to physical interventions, not changes of use. Used with Brussels case to support the EIA conclusion.
Directive 2003/35/EC (and Aarhus Article 8) Details of project can change during the process because of public participation and assessment. Referenced to explain that project details may evolve during assessment.
People Over Wind and Peter Sweetman v Coillte Teoranta Mitigation should not be considered for the purposes of AA screening. Applied by the Court to construe the Inspector's AA screening as referring to the project as sought (i.e., not to be read by reference to mitigation/conditions).
Sherwin v. An Bord Pleanála Evaluative planning judgments are reviewable on an irrationality standard. Used to frame standard of review for evaluative planning judgments in this case.
Baby O. v. Minister for Justice Support for evaluative judgments reviewable only on irrationality. Cited in context of limits to merits review.
Amariei v. Chief Appeals Officer Judicial review is concerned with legality rather than merits; discretion; onus principles. Applied as part of general principles governing JR, discretion and onus.
State (Keegan) v. Stardust Compensation Tribunal Support for the distinction between merits and legality in JR. Referenced in relation to the point that JR is about legality, not merits.
Meadows v. Minister for Justice, Equality and Law Reform Onus of proof in judicial review lies on applicant. Applied to hold the Applicant had not discharged the onus of proof on key complaints.
Sweeney v. Fahy Judicial review concerned with legality rather than merits. Referenced in support of that proposition.
Connelly v. An Bord Pleanála Obligation to provide the main reasons on the main issues. Applied in assessing sufficiency of reasons given by the Respondent.
O'Keefe v. An Bord Pleanála Support for the reasons standard (main reasons on main issues). Referenced in discussion of adequacy of reasons.
Faulkner v. Minister for Industry and Commerce Reasons standard—"broad gist" or main reasons. Referenced regarding the standard for reasons.
G.K. v. Minister for Justice, Equality and Law Reform Presumption that material has been considered if the decision-taker says so (onus on applicant to rebut). Applied to require the Applicant to evidentially displace the presumption that submissions were considered.
Rana v. Minister for Justice Support for the presumption that material has been considered. Used similarly to G.K. in relation to onus of proof.
An Taisce v. An Bord Pleanála & Ors. Onus of proof in environmental assessment challenges lies on the applicant. Applied to conclude the Applicant had not discharged evidential burdens on AA/EIA complaints.
G. v. DPP Judicial review is a discretionary remedy. Applied to exercise discretion against relief on unpleaded or non-prejudicial points.
De Róiste v. Minister for Defence Support for discretionary nature of JR and jurisprudence on remedies. Referenced in discussing discretion in relief.
Kenny v. Dublin City Council Examples of discretion and proportionality in granting relief. Applied in the Court's discretionary analysis of relief.
Kelly v. Minister for Agriculture Principles on discretion; limits on substitution of court judgment for administrative choices. Referenced in discretion analysis.
Save Cork City Community Association CLG v. An Bord Pleanála Proportionality of relief; caution about quashing for technical errors. Used to support proportionality considerations.
Ballyboden Tidy Towns Group v. An Bord Pleanála Discretionary refusal of relief; pleading standards cautioned. Referenced in pleading and discretion discussion.
S. v. Minister for Justice and Equality Discretionary principles in JR. Referenced regarding exhaustion of remedies and discretion.
O'Sullivan v. Sea Fisheries Protection Authority Warning against treating JR as a criminal-trial-like process; limits on procedural elaboration. Applied in relation to draft-judgment procedure and parties' engagement.
Attorney General v. Crosland (No. 2) Reasons for restricting publication of draft judgments. Referentially cited in the Court's directions on draft judgment confidentiality.
Baigent v. Random House Group Ltd Authority on confidentiality/publication considerations (referenced). Referenced regarding draft judgment confidentiality.
R. (Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy Publication/confidentiality jurisprudence (referenced). Referenced regarding draft judgments confidentiality.
Public Institution for Social Security v. Banque Pictet & Cie SA and others Publication/confidentiality jurisprudence (referenced). Referential citation on confidentiality of drafts.
Itkin v. Wood Referential citation on draft-judgment confidentiality. Referenced in that context.
Reilly v. An Coimisiún Pleanála Eight-part tests / requirements for relief by way of JR (referenced later as framing). Used to set out cumulative tests for relief by JR applied by the Court.
Foran v. An Coimisiún Pleanála & Glenveagh Referenced in relation to requirements for JR relief. Referentially applied to frame the tests for relief.
Tesco Stores Ltd v. Secretary of State for the Environment Evaluative weight is for decision-taker (planning judgment). Used to support deference to planning evaluative judgments.
M.E. v. Refugee Appeals Tribunal Support for deference to evaluative judgments. Referenced in deference discussion.
Heathrow Airport Ltd Authority on evaluative judgments and environmental law principles (cited). Referenced in relation to evaluative assessments.
Moran v. An Bord Pleanála Deference to planning judgments; reasons standard context. Applied as authority on reading decisions in context and deference.
Stapleton v. An Bord Pleanála & Savona Referenced on merits/legality distinction and pleadings. Used illustratively in analysis of JR scope.
R (Hoareau and Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs Judicial review is not politics by other means; respect separation of powers. Applied as part of admonition against substituting policy judgments for administrative actors.
Sinnott v. Minister for Education Separation of powers / limits on courts substituting policy choices. Referenced in limits to judicial policy intrusion.
T.D. v. Minister for Education Support for separation of powers propositions. Referenced in that context.
B. v. Child & Family Agency & Ors. Separation of powers / judicial restraint. Referenced within that theme.
Re SC (UKSC) Caution against expansive application of equality guarantees (referenced). Referenced in separation-of-powers discussion.
United States v Butler Quotational support for limits of judicial role (referenced). Used in an illustrative passage on institutional competence.
G.T. v. Minister for Justice, Equality and Law Reform Warning against legalistic over-parsing; reading decisions in context. Referenced in admonition against micro-analysis of decisions.
R (Blewett) v. Derbyshire County Council Against hyper-technical parsing of decisions. Referenced on that point.
R. (Friends of the Earth Ltd and others) v. Heathrow Airport Ltd Iterative nature of environmental assessments; details of project can change. Referenced in relation to iterative EIA/AA processes.
M.R. (Bangladesh) v. International Protection Appeals Tribunal Decision must be read so as to make sense; not invalid if valid reading available. Applied to read the Respondent's decision in a way that rendered it valid.
Rostas v. DPP Support for reading decisions in context to avoid quashing unnecessarily. Referenced in that context.
St. Margaret's Recycling v. An Bord Pleanála Reading decisions in the round; not over-parsing. Cited to support contextual reading of decisions.
Duffy v. An Bord Pleanála Not to engage in legalistic micro-analysis; reasons may be implicit. Referenced on the reasons standard.
Mulloy v. An Bord Pleanála Decision should be read so as to render it valid where reasonably available. Referenced on reading decisions in a valid manner.
Save Roscam Peninsula CLG v. An Bord Pleanála (No. 6) Reading decisions in context to avoid technical quibbles. Referenced similarly.
E.M. v. Minister for Justice and Equality Support for reading decisions in a valid light. Referenced.
Friends of the Irish Environment v. Government of Ireland Court decides only points that are not academic and properly in dispute. Applied to decline to decide academic or unpleaded points.
Sweetman v. An Bord Pleanála (Sweetman XV) Stringent pleading requirements for complex EU law arguments. Applied to require clarity for EU-based pleading points.
Rushe v. An Bord Pleanála Pleading specificity in EU law contexts. Referenced on pleading standards.
Alen-Buckley v. An Bord Pleanála Cannot launch non-transposition claims not set out on pleadings. Referenced on pleading limits for EU non-transposition claims.
Foley v. Environmental Protection Agency Need to specify a route-map linking facts to relief; pleading must connect chain of reasoning. Applied in assessing sufficiency of Applicant's pleadings.
Ballyboden Tidy Towns v. An Bord Pleanála (earlier citations) Scattergun pleadings are unacceptable; pleading requirements strict. Applied in criticizing repetitive or scattergun formulation of grounds.
Babington v. Minister for Justice Equality and Law Reform Critique of repetitive and imprecise pleadings. Referenced in pleading context.
Salvatore Aiello and Others v Regione Lombardia and Others EIA applies only to projects listed in Annexes I & II (supporting that only listed projects are covered). Used to support that EIA does not extend beyond listed categories.
Kavanagh v. An Bord Pleanála Support that EIA covers listed project types only. Referenced on EIA scope.
Environmental Impact Assessment of Projects - Guidance (EU, 2017) Renewal of an existing permit without works is not a 'project'. Used to support finding that EIA did not apply to the use permission.
Connelly (repeated) Main reasons on main issues standard for reasons. Applied to find reasons adequate.
Balz and Heubach v. An Bord Pleanála Support for reasons standard. Referenced regarding adequacy of reasons.
Balscadden Road SAA Residents Association Ltd v. An Bord Pleanála (No. 1) Reasons standard; "broad issues" approach. Referenced on reasons.
Atlantic Diamond v. An Bord Pleanála Reasons standard in context. Referenced.
Grassridge v. Dun Laoghaire Rathdown County Council Reasons standard; presumption of consideration where decision states so. Applied to require Applicant to rebut presumption of consideration.
Pat O'Donnell v. Dublin City Council Reasons standard; reasons understood in context of "broad issues". Referenced on reasons standard.
Graymount House Action Group v. An Bord Pleanála Evaluative judgements and reasons standard. Referenced.
Morris v. An Bord Pleanála Non-precedential reference on reasons. Referenced.
Ó Murthuile v. An Bord Pleanála Reasons need not be discursive; lack of narrative does not equal lack of reasons. Applied to reject complaint of lack of narrative reasons.
Meadows (repeated) Onus of proof rests on applicant. Applied in onus analysis.
Cork County Council v. Minister for Housing, Local Government and Heritage (No.1) Onus of proof principles in JR (referenced). Referenced in onus discussion.
Monkstown Road Residents Association v. An Bord Pleanála Onus of proof and presumption of validity of admin decisions. Referenced.
O'Doherty and Waters v. Minister for Health Onus of proof remains on applicant even in constitutional challenges. Applied to require Applicant to show interference and proof.
R v. Crischuk Onus in environmental assessment challenges lies on applicant (evidentially, often expert evidence required). Referenced on evidential burdens in environmental claims.
Reid v. An Bord Pleanála (No. 1) Onus and evidential requirements in environmental challenges. Referenced in onus discussion.
Carrownagowan Concern Group v. An Bord Pleanála Scientific/factual shortcomings in EIA/AA must be established by applicant. Applied to find Applicant had not adduced expert evidence displacing the Respondent's conclusions.
Nagle View Turbine Aware Group v. An Bord Pleanála Scientific shortcomings in AA must be established by applicant. Referenced in support of the onus point.
Eco Advocacy CLG v. An Bord Pleanála Board must give reasons sufficient to show decision does not create reasonable scientific doubt re European sites. Referenced in relation to AA evidential standard and onus.
Oxigen v. An Coimisiún Pleanála Wide scope of EIA; potential and unmitigated impacts require consideration. Referenced on EIA scope (not applied to this use-only case).
R. (on the application of Finch) v. Surrey County Council Deciding whether environmental effect is "significant" requires value judgment; different decision-makers may reach different conclusions. Applied to underline evaluative nature of "significance" in EIA/AA.
Champion v. North Norfolk District Council AA evaluation is for the decision-taker in first instance. Referenced to justify deference to Inspector/Commission on AA screening.
Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College van gedeputeerde staten National courts must examine scientific soundness of AA thoroughly. Referenced to describe the scope of judicial review on AA when properly pleaded and evidenced.
Holohan v An Bord Pleanála (C‑461/17) AA standard and relationship between national courts and CJEU jurisprudence. Referenced in AA standard discussion.
R. (on the application of Wyatt) v. Fareham Borough Council Referential authority on review standards in environmental assessment (cited). Referenced in AA/EIA standard discussion.
Waddenzee (Landelijke Vereniging tot Behoud van de Waddenzee) AA does not require disproof of any effect whatsoever; standard is removal of reasonable scientific doubt. Applied to explain the proper scope of AA assessment.
Heather Hill Management Company CLG v. An Bord Pleanála AA standard; absence of reasonable doubt does not mean absolute certainty. Referenced on AA standard.
R Mynydd Y Gwynt Ltd v. Secretary of State for Business, Energy and Industrial Strategy AA/EIA standard references (cited). Referenced regarding reasonable doubt standard.
An Taisce v. An Bord Pleanála (Kilkenny Cheese) EIA directive should not be read as imposing impossibly onerous obligations. Applied to caution against over-stringent interpretations of EIA obligations.
Friends of Killymooney Lough v. An Coimisiún Pleanála Referential authority on EIA/AA scope (cited). Referenced.
Byrnes v. Dublin City Council Jurisdictional infirmity does not automatically lead to certiorari; discretion applies. Applied in discretion analysis of relief.
Pembroke Road Association v. An Bord Pleanála Discretionary relief and substantial compliance principles. Referenced in discretion/proportionality analysis.
Killegland Estates Ltd v. Meath County Council Reasons and when enhanced reasons obligation arises if Commission disagrees with inspector. Considered in assessing whether reasons were required for departing from Inspector's condition.
AAI Baneshane v. An Coimisiún Pleanála When Commission disagrees on a basis not dealt with by the inspector, enhanced reasons obligation may not apply. Referenced in analysis of whether fresh reasons/screening were required.
Crekav Trading GP Ltd v. An Bord Pleanála When Commission disagrees with a council/inspector on a main issue, reasons are a main issue objectively. Referenced in discussing when reasons are required.
Clonres CLG v. An Bord Pleanála & Ors. Support for reasons obligation when main issues decided. Referenced.
Ventaway v. An Coimisiún Pleanála Referenced on reasons/AA issues. Referenced.
Phelan Walsh v. An Bord Pleanála Reasons standard and main issues context. Referenced.
O'Connell v. Behan Discretionary remedy; factors for discretion include conduct of applicant, practical value, proportionality. Applied in discretionary assessment of relief and remedies.
Independent Newspapers (Ireland) Ltd v. IA Practical value of remedy (mootness/futility) relevant to discretion. Referenced in discretion discussion.
Protect East Meath v. Meath County Council Examples of proportionality and futility in remedy assessment. Referenced in discretion/proportionality analysis.
Reid v. An Bord Pleanála (No. 7) Pleading amendment and requirement for clarity in grounds. Referenced for pleading standards and consequences of inadequate particulars.
Joyce Kemper v. An Bord Pleanála Onus of proof cannot be discharged by mere assertion. Applied to find Applicant's assertions insufficient without evidential support.
Harrington v. An Bord Pleanála Mere assertion does not create scientific doubt for AA purposes. Referenced in AA evidential standards.
Murphy v. An Bord Pleanála Mere assertion insufficient to establish EIA/AA defects. Referenced in onus/evidence discussion.
RPS Consulting Engineers Ltd v. Kildare County Council Reasons existing at relevant time can be evidenced after the event, but ex post facto reasons should not be created. Referenced on evidence of contemporaneous reasons.
K v. Minister for Justice Reasons should not be created ex post facto. Referenced in reasons discussion.
Ballindooley Developments Limited v. Minister for Housing Local Government and Heritage & Ors. Reasons ex post facto caution. Referenced.
RAS Medical Ltd v. Royal College of Surgeons in Ireland Where conflict of evidence exists without cross-examination, it is generally resolved against the party with the onus of proof. Applied to evidential evaluation and onus in contested matters.
Doorly v. Corrigan Court may disregard inherently weak averments even without cross-examination. Referenced in evidential assessment principles.
DPP v. Barnes Court not constrained to accept the only account available when evaluating evidence. Referenced to support court's appraisal of inherent defects in evidence.
McCarthy Meats v. Minister for Housing, Planning and Local Government Severability of good reasons from bad where good reasons stand alone. Referenced in discussion of severability of reasons.
Murtagh v. An Bord Pleanála Severability of reasons where appropriate. Referenced.
Ironborn v. Dun Laoghaire Rathdown County Council No need for reasons if issue was legally incorrect; severability principles. Referenced on reasons and severability.
Voyage Property v. Limerick City and County Council Severability of reasons and discretion considerations. Referenced.
Element Power Ireland Ltd v. An Bord Pleanála Reasons not severable if link between reasons certain. Referenced on limits of severability.
Koulibaly v. Minister for Justice, Equality and Law Reform Considerations on preferring affidavit evidence where appropriate. Referenced in evidential assessment discussion.
Okunade v. Minister for Justice JR not an exercise in pointless formalism; discretion and practicality. Referenced.

Court's Reasoning and Analysis

The Court applied settled principles of judicial review: applicants are confined to their pleadings; judicial review concerns legality not merits; the onus of proof lies on the applicant to establish defects; reasons need only set out the main reasons on the main issues; and EIA applies only to listed projects and to physical interventions, not to mere use without works. Applying those principles, the Court found:

  • Many of the Applicant's pleaded grounds were inadequately particularised against the standards for judicial review and EU-based environmental pleading; some complaints were reclassified or limited by the Court to what was acceptably clear from the pleadings.
  • The Respondent's departure from the Inspector's recommendation (omitting the five-year temporal condition) was lawful: the application was not formally made as a time-limited application and the Respondent was entitled to make a de novo assessment and to grant an unlimited permission after concluding there was no justification for a time limit. The reasons given (a lack of justification to limit to five years) met the "main reasons on the main issues" standard.
  • The Applicant had not discharged the onus to show that submissions were not considered; the decision and Inspector's report indicated that submissions were considered.
  • EIA did not apply because the proposed development involved use of existing agricultural land (a grassed airstrip) without construction or physical intervention; CJEU and guidance authority supported that EIA applies to physical interventions and listed project types. Accordingly preliminary EIA screening and EIA obligations did not arise.
  • AA screening by the Inspector and adoption by the Respondent was adequate on the facts: the Inspector's screening concluded there was no conceivable risk to nearby European sites (Lough Corrib SAC approximately 1.4 km away), and the Court found that the Applicant had not evidentially raised reasonable scientific doubt requiring a Stage 2 AA. The Court accepted that if the Respondent had materially changed the project as screened by the Inspector it should re-run screening, but concluded here the Inspector's screening properly related to the project as consented (mitigation/conditions could not be considered at screening stage per People Over Wind).
  • Condition 3 (permitting the airstrip's use by the Applicant's identified aircraft unless otherwise agreed with the planning authority) was interpreted restrictively: agreements may allow substitution of different single aircraft from time to time, but not use by more than one aircraft concurrently nor substitution by an aircraft that would be significantly different in adverse environmental impact. The Court proposed to recite that interpretation in the order to avoid uncertainty; radical expansions by agreement would be ultra vires.
  • Overall, the Applicant failed to demonstrate legal error transcending harmless or technical flaws; many complaints were merits-based, evidentially unsupported, or inadequately pleaded. The Court exercised its discretion to dismiss the proceedings.

Holding and Implications

DISMISSED

Holding: The High Court dismissed the Applicant's judicial review proceedings. The Court held that (i) the Respondent lawfully granted permission without a five-year time limit after a de novo assessment; (ii) the reasons provided met the required standard; (iii) EIA did not apply to the use-only permission; (iv) AA screening was adequate on the facts and no fresh AA was required; and (v) Condition 3 is to be interpreted in a confined manner (substitution of single aircraft from time to time, not multiple concurrent aircraft nor substitution that materially increases adverse impacts).

Implications: The direct effect is that the Respondent's decision granting permission stands as valid subject to the Court's clarified interpretation of Condition 3. No new binding precedent beyond application and clarification of existing principles was created by this decision; the Court reiterated established rules on pleadings, reasons, onus of proof, EIA scope (physical interventions/listed projects) and AA screening (mitigation exclusion at screening), and recorded that if a decision-maker varies the inspector's basis of screening it should ensure any necessary renewed screening/AA is carried out.