Friends of the Irish Environment v An Coimisiun Pleanala [No. 2] (Approved)

Factual and Procedural Background

The present judgment, delivered by Judge Humphreys, concerns an application by the Plaintiff seeking leave to appeal against a substantive High Court judgment upholding a grant of planning permission (pertaining to environmental impact assessment compliance and related matters). The substantive litigation and interlocutory history are long-running: this is the eighth written decision connected to the project. The principal judgment challenged was handed down on 1 April 2026. The Plaintiff sought leave to appeal; written submissions were filed on 13 May 2026 and the leave hearing occurred on 15 June 2026. A draft of the present judgment was circulated to parties on 19 June 2026 for limited comment; no substantive comments were received. The respondents included the administrative planning decision-maker ("The Commission"), the State and a developer ("Company A") as notice party. The Court reserved judgment and then issued the present decision dismissing the application for leave to appeal and giving ancillary orders about costs and finality.

Legal Issues Presented

1. Where a party has standing under EU law to raise a ground in judicial review without having raised it before the decision-maker, is the domestic court entitled to confine the scope of review to material before the decision-maker or to refuse relief because the issue was not raised; and is such an approach compatible with Commission v Germany C‑137/14 and/or the right to an effective remedy — specifically, whether the Plaintiff could introduce post‑process material challenging EIA "efficiency" projections whose forecasting/methodology details were withheld on confidentiality grounds?
2. Whether the decision-maker (The Commission) can be regarded as acting within the range of possible outcomes under s.15 Climate Action and Low Carbon Development Act 2015 where the developer has not supplied information that the EIA Directive specifies as relevant to s.15 and the "reasoned conclusion" required by Article 1(2)(g)(iv) of the EIA Directive; and whether the Commission may "dispense with" information so specified.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff proposed the two questions above and argued that leave should be granted because the issues raise EU‑law points and public importance, including implications for ability of NGOs to challenge decisions effectively when essential forecasting details are withheld as confidential.

The Commission's Arguments

• The Commission submitted that the Plaintiff failed to engage with the substance and rationale of the substantive judgment, failed to raise relevant points in the administrative process, and did not identify a point of law of exceptional public importance under s.50A(7) PDA. The Commission argued that public participation mechanisms and powers to require further information are central and that allowing re‑litigation with fresh evidence would frustrate those processes.

Company A (Notice Party) Arguments

• Company A emphasised that the judgment applied settled law (including recent Supreme Court authority) and that the Plaintiff's formulations mischaracterised the factual and legal findings. Company A argued the Plaintiff had not discharged the burden of proof and that confidentiality provisions in Article 10 EIA Directive were appropriately considered; it submitted that the proposed questions were fact‑sensitive, not pure points of EU law, and that no authority was produced to demonstrate genuine doubt requiring CJEU reference.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court proceeded by reference to the statutory and common law criteria for leave to appeal and the established jurisprudence governing such applications. Core points of analysis were:

• The proposed questions were examined against multiple gatekeeping requirements: (i) that the point properly arise within the pleadings and on the facts; (ii) that it be a question of law (not merely application of law to fact); (iii) that it be of exceptional public importance; and (iv) that an appeal be in the public interest.
• The Court found the substantive question (Q2) did not properly arise because it was not pleaded or argued in the form now advanced, because the judgment below had in fact held the EIA Directive was complied with on the facts, and because the Plaintiff had not specifically challenged the confidentiality basis on the pleadings.
• The Court held the ancillary question (Q1) mischaracterised the principal judgment: the court had not "confined the scope of review" nor "refused relief" solely because a point was not raised; rather the validity assessment is performed by reference to material before the decision‑maker, and failure to advance material in the process was relevant to burden of proof and outcome. Thus Q1 did not get the Plaintiff anywhere in absence of a viable substantive point.
• The substantive question was fact‑sensitive and evaluative (including margin of appreciation/margin of evaluation in assessing adequacy of EIA information), not a pure question of law suitable for appellate determination or CJEU referral.
• The Court concluded there was no demonstrable doubt in EU law requiring referral: the Plaintiff produced no national or EU authority or persuasive logic to show divergence; the point was therefore acte clair in the Court's assessment and did not satisfy art. 267 TFEU prerequisites for a reference.
• On public interest, the Court emphasised finality, the scale and repetitive litigation of the project, national policy considerations (including energy security and supply resilience), the absence of evidential basis for alleged systemic practical harms, and the failure to raise points in the administrative process as factors weighing strongly against granting leave.
• The Court applied recent domestic authority (notably Coolglass) as settled law and concluded the substantive judgment applied settled principles to the facts; it rejected attempts to recast that application as legal uncertainty.

Holding and Implications

HOLDING: The application for leave to appeal is DISMISSED.

Implications:

• The direct effect is that the Plaintiff's application for leave to appeal against the substantive judgment is refused; the Court ordered that if leapfrog leave to appeal is later granted and the Supreme Court accedes, costs of the leave application will be costs in that appeal; otherwise no order as to costs of the leave application. The substantive judgment's order dismissing the proceedings with no order as to costs is to be perfected forthwith as the final High Court order in these proceedings.
• The Court identified no basis in the present record for certifying a novel point of law of exceptional public importance nor for referring an EU point to the CJEU; the decision applies established caselaw to the particular facts rather than creating new precedent.