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

1. 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.
2. 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.
3. 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

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.