Hession v An Coimisiun Pleanala and Ors (Approved)

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

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.