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Busher and Ors v An Coimisiun Pleanala and Anor (Approved)
Factual and Procedural Background
This is an application for directions brought by the Applicants seeking an order requiring Company A to provide a written, candid account of the consideration given to specified issues (odour, lighting and screening) in relation to Company A's decision dated 11 June 2025 granting Company B permission to construct a wastewater treatment plant, pumping station and associated works in Kilkee (file reference ABP-321258-24). The Applicants seek, in the substantive judicial review, an order of certiorari quashing that decision and advanced four core grounds (Core Ground 4 now not pursued). Core Grounds 1–3 alleged (i) misdirection that noise/odour were matters for the EPA and could be addressed by standard conditions; (ii) failure to consider potential lighting impacts on neighbouring properties or to give reasons; and (iii) invalidity of reasons relating to landscaping and amenity, given the Inspector's findings and recommendation. Company A filed a Statement of Opposition (27 January 2026). An affidavit by the first named Applicant in support of the directions application was sworn in May 2026. Judge Farrell delivered the judgment refusing the application for directions on 10 June 2026. The substantive judicial review was listed for hearing on 17 June 2026. The court made no order as to costs (section 50B accepted) and permitted applications on costs within three weeks.
Legal Issues Presented
- Whether Company A must file affidavits (or otherwise provide evidence beyond its written decision and the public file) explaining the Commissioners' thought processes as to whether specified matters (odour, lighting, screening) were considered, in order to satisfy the duty of candour in judicial review.
- Whether an order compelling Company A to produce such affidavits would displace or reverse the presumption of validity that ordinarily attaches to an administrative decision.
- Whether the absence of express reference to particular matters in the decision or file suffices to infer that those matters were not considered, or whether the burden remains on the Applicants to rebut the presumption of validity by reference to the decision and materials.
Arguments of the Parties
Applicants' Arguments
- The Applicants submitted that Company A must put "all the cards face upwards" and, because the statutory file is required to be made available under s.146(5) PDA, the absence of material from that file permits inference that matters not mentioned were not considered.
- The Applicants argued that, if they could not draw such inferences, Company A should be ordered to file affidavits from the Commissioners explaining what was considered, so that the Applicants could overcome the presumption of validity.
- The Applicants relied on authorities (including Huddleston, Reid, Elsharkawy and others) and contended that the nature of the opposition justified the directions sought; they asserted equality-of-arms and Aarhus Convention concerns if Company A could rely on wording in the decision without filing further evidence.
Respondent's (Company A) Arguments
- Company A relied on the text of the Inspector's Report, the Commission's Direction, the Commission's Order, the material on the public file and relevant planning policy documents to demonstrate that the matters were considered; it relied on the approach in Connelly to read the decision with materials before the decision-maker.
- Company A argued that its Statement of Opposition was specific rather than a formulaic denial, identified the material it relied upon and that the onus remains on the Applicants to show the decision was invalid from the decision and the file.
Notice Party (Company B)
- Company B filed opposition papers (filed late); it did not dispute the general duty of candour but did not press for the directions sought by the Applicants.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v. Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941 | Duty of candour in public law litigation: authorities should not respond with blanket assertions; "all the cards face upwards". | Recognised as establishing the duty of candour; court accepted principle but observed most material often lies with the authority and that statutory framework here differs from Huddleston's context. |
| Reid v. An Bord Pleanála [2021] IEHC 362 | Cited in the line of authorities giving rise to the Applicants' novel application for directions. | Referenced as part of the authorities in the lineage of the Applicants' case; court noted no clear judicial template requiring the affidavits sought. |
| Elsharkawy v. The Minister for Transport [2024] IECA 258, [2025] 1 I.L.R.M. 162 | Duty of candour; modern transparency (FOI, data access) and disclosure obligations of public authorities in judicial review. | Used to confirm the continuing importance of candour but to show that breach findings are rare and that candour does not automatically require the affidavits sought here. |
| Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453 | Decision must be considered by reference to materials before the decision-maker; interpret decision with the file. | Accepted as the correct approach to interpreting Company A's decision; Company A relied on this principle and the court accepted that the decision is to be read with the material before it. |
| O'Neill v. Governor of Castlerea Prison [2004] WJSC-SC 9109, [2004] 1 I.R. 298, [2004] 2 I.L.R.M. 241 | Respondent should disclose all materials in its possession relevant to the impugned decision; criticism where respondent left applicants to FOI requests rather than filing affidavit. | Cited as authority supporting disclosure obligations; court noted relevance but did not hold it required the Commissioners' affidavits in this case. |
| RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4 | Huddleston relied on as support for transparency in public law litigation. | Referenced to support the transparency principle; used in the court's analysis of candour obligations. |
| Student Transport Scheme Limited v. The Minister for Education and Skills [2021] IESC 35 | Principle of transparency in public law litigation. | Referred to in support of the duty of candour theme; court considered it in the context of pleading and disclosure obligations. |
| T.G. v. Refugee Appeals Tribunal [2007] IEHC 377 | Where a matter is of sufficient significance, absence of reference may rebut presumption that it was considered. | Applied to explain that some matters require express reference; used to assess whether absence of reference here might rebut the presumption of validity. |
| Wild Ireland Defence v. An Coimisiún Pleanála & Ors [2025] IEHC 726 | Illustration of applicants failing to discharge onus where relevant matters were peculiarly within the Commission's knowledge. | Cited as an instance where applicants failed to present sufficient evidence; court treated it as relevant context for burden allocation. |
| Rogers v. An Coimisiún Pleanála [2026] IEHC 257 | Example of applicant failing to discharge onus (cited by Applicants). | Referenced among authorities illustrating the difficulty applicants face in displacing presumption of validity. |
| Maryland Residents Association v. An Coimisiún Pleanála 2024/1021 JR | Example where Commissioners were directed to file affidavits (as pleaded by Applicants, though no written judgment produced). | Cited by Applicants as support but court observed no written judgment exists setting out the affidavit type or circumstances. |
| Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28 | Clarifies scope of leave to apply for judicial review (not an open investigation). | Applied to stress that proceedings must be conducted within established judicial review principles. |
| Sherwin v. An Bord Pleanála [2023] IEHC 26 | Confirms onus remains on applicant in judicial review (subject to limited exceptions). | Used to support the court's statement that the burden of proof remains on Applicants. |
| Amariei v. Chief Appeals Officer [2026] IESC 22 | Affirms the applicant's onus in judicial review. | Relied on in setting out the applicable burden of proof. |
| Rutledge v. Fingal County Council [2026] IEHC 223 | Affirms presumption of validity and burden placement. | Referenced in the court's exposition of the presumption of validity. |
| Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 | Explains operation of presumption of validity and the Board's right to defend the decision. | Quoted to show the presumption identifies who bears the burden; court relied on this to refuse to displace presumption here. |
| In re Comhaltas Ceoltóirí Éireann (unreported, High Court, 14 December 1977) | Authority cited for presumption that decision is valid unless contrary shown. | Used as part of the court's statement on the presumption of validity. |
| Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88, [1984] I.L.R.M. 47 | Principle that presumption of validity attaches to administrative decisions. | Cited in support of the presumption principle applied by the court. |
| Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 | Referred to for presumption of validity. | Referenced in the court's presentation of authorities confirming presumption. |
| Moran v. An Bord Pleanála [2025] IEHC 510 | Reference for presumption of validity. | Cited as part of the line of authorities upholding the presumption. |
| Coyne v. An Bord Pleanála [2023] IEHC 412 | Burden of proof on applicant; practical difficulties of proving negatives about decision-maker's mind without illuminatory content. | Quoted to acknowledge applicants' evidential difficulties and to explain burden remains on them. |
| Four Districts Woodland Habitat Group & Ors v. An Bord Pleanála & Ors [2023] IEHC 335 | Having regard to something does not necessarily require reasons for not accepting it; main issues may require main reasons. | Used to explain that "having regard" does not always impose a duty to give reasons unless main issues are concerned. |
| Cork County Council v. Minister for Housing, Local Government and Heritage & Ors [2021] IEHC 683 | Defines "having regard" / "considering" and when failure to look at matters can give rise to certiorari; concept of an "enhanced duty" to give reasons in context. | Applied to explain when specific reasons may be required and to contextualise the obligation to give main reasons on main issues. |
| Morehart v. An Bord Pleanála [2025] IEHC 418 | Absence of express reference to a document not always sufficient to show it was not considered; significance of document matters. | Relied on to reinforce that the decision speaks for itself and that inference depends on materiality. |
| Banzuzi v. Minister for Justice [2007] IEHC 2 | No obligation to refer to every document or aspect of evidence in a decision. | Cited in support of the proposition that not every document must be mentioned in the decision. |
| A.W.S. v. Refugee Appeals Tribunal [2008] IEHC 276 | Endorses limited obligation to refer to all evidence or documents. | Referenced alongside other authorities on express reference obligations. |
| State (Crowley) v. The Irish Land Commission [1951] IR 250 | Judgment and orders must speak for themselves; affidavit cannot be used to add to or explain orders. | Cited for the principle that ex post facto affidavits cannot be used to supplement or contradict a decision's written orders. |
| Tumblr Incorporated v. Coimisiún Na Meán [2024] IEHC 366 | Decision must stand or fall on its own terms; subsequent elaboration is not permissible in the ordinary course. | Applied to support the general rule against ex post facto elaboration of reasons. |
| Jacksonway Properties v The Information Commissioner [2020] IEHC 73 | Referenced in relation to decisions standing on their terms and limitations on later elaboration. | Used to reinforce the principle cited in Tumblr Incorporated. |
| Utmost Paneurope DAC v Financial Services and Pensions Ombudsman [2020] IEHC 538 | Referenced with similar effect regarding decisions speaking for themselves. | Relied upon in the court's summary of the rule against post hoc explanation. |
| Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407 | Illustrates that ex post facto reasoning cannot normally be provided. | Cited as not assisting the Applicants' request for post hoc affidavits. |
| Carrownagowan Concern Group v. An Bord Pleanála (No.2) [2024] IEHC 300 | Discusses materiality and when absence of reference matters (paras cited). | Referenced in support of the court's materiality analysis. |
Court's Reasoning and Analysis
The court analysed the applicants' application against the backdrop of the duty of candour, the statutory obligations on Company A (section 34(10) to state main reasons and section 146(5) to make the file available), and established authorities on the presumption of validity and disclosure. The judge accepted that a respondent in judicial review must defend with "all the cards face upwards" but emphasised that how that duty is satisfied depends on context and statutory framework. Company A had identified the Inspector's Report, its Direction and Order, the file and policy documents as the materials explaining its decision, consistent with Connelly.
The court reiterated that the presumption of validity attaches to administrative decisions and places the evidential onus on applicants to rebut it, save in narrowly defined exceptions. The Applicants conceded they had no direct evidence that Company A failed to consider the specific issues and sought affidavits asserting the Commissioners' thought processes. The judge held that compelling such affidavits would, in effect, reverse the presumption of validity and impose a positive obligation on Company A to prove its decision valid beyond the normal posture of judicial review.
The court reviewed authorities establishing when absence of express reference may rebut the presumption (T.G., Morehart, Cork County Council) and when ex post facto explanation is impermissible (State (Crowley), Tumblr). It concluded that while there are circumstances (for example where matters peculiarly within the decision-maker's knowledge are relied upon) in which further affidavit evidence may be necessary, the present case was not one of them: Company A's Statement of Opposition was specific rather than formulaic; the decision and identified materials could be read to ascertain whether the matters were considered; and no failure to disclose was pleaded. The application for directions would, if granted, disapply the presumption of validity and reverse the onus of proof. Having considered delay and urgency, the court refused the application as unnecessary to ensure justice in the case.
Holding and Implications
REFUSED
Holding: The application for directions compelling Company A to file affidavits from the Commissioners explaining what they considered on odour, lighting and screening was refused. The court concluded that the order sought would amount to a reversal of the onus of proof and a disapplication of the presumption of validity attaching to Company A's decision.
Implications: The Applicants must proceed to the substantive judicial review hearing with the ordinary burden of proof and may seek to draw inferences from Company A's decision and the material on the public file. The judgment clarifies that, absent exceptional circumstances (such as reliance on matters peculiarly within the decision-maker's knowledge or undisclosed materials), Company A is not routinely required to file affidavits detailing Commissioners' thought processes. No order was made on costs (section 50B applied) and parties may apply about costs within three weeks. The decision does not purport to create a new general rule requiring Commissioners' affidavits in such cases.
Judgment delivered by Judge Farrell on 10 June 2026.
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