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Busher and Ors v An Coimisiun Pleanala and Anor [No. 2] (Approved)

Smart Summary

Summary of Judgment — High Court (Planning & Environment)

Factual and Procedural Background

The Appellants are local residents who challenged a decision of the Respondent (the planning decision-maker) dated 11 June 2025 granting permission to Company A to construct a wastewater treatment plant (WWTP), a foul pumping station and associated works at lands in The Town. The project had been subject to an Environmental Protection Agency (the Agency) wastewater discharge licence process since 2008 and an EPA licence was granted in 2013 with improvement works required. Company A made a planning application to the Local Authority in January 2024, provided further information in August 2024, and appealed to the Respondent after the Local Authority recommended refusal. The Respondent appointed an inspector who recommended refusal on site selection and landscape impact grounds, but the Respondent granted permission subject to conditions (including landscape conditions). The Appellants sought leave for judicial review on 5 August 2025; leave was granted ex parte with liberty to file further expert evidence. Motions seeking detailed explanations of the Respondent's consideration were refused by Judge Farrell. The judicial review hearing before Judge Humphreys was held on 17 June 2026 and judgment was delivered 3 July 2026.

Legal Issues Presented

  1. Whether the Respondent misdirected itself in law by treating odour and noise as matters solely for the Agency (alleged misinterpretation of the European Communities (Wastewater Treatment) (Prevention of Odours and Noise) Regulations 2005 and the Wastewater Discharge (Authorisation) Regulations 2007).
  2. Whether the Respondent failed to consider or determine a relevant issue, namely the potential impact of site lighting on neighbouring properties, or to give reasons contrary to S.34(10) of the Planning & Development Act 2000.
  3. Whether the Respondent failed to give adequate reasons when disagreeing with the inspector about the adequacy of landscaping, specifically failing to address the inspector's finding that planting would probably fail, and thereby failed to determine a main issue or have regard to a relevant consideration.

Arguments of the Parties

Appellants' Arguments

  • The Respondent misdirected itself by treating odour and noise as matters for the Agency under the Wastewater Discharge Regulations and/or EPA licensing, whereas those regulations do not displace the Respondent's planning jurisdiction; odour is a discharge to air and not covered by wastewater discharge licensing.
  • The Respondent failed to consider lighting impacts on neighbouring residents and did not give reasons addressing that issue, contrary to S.34(10) PDA.
  • The Respondent disagreed with the inspector on landscaping while failing to engage with the inspector's finding that planting would probably fail; the Respondent relied on planting without demonstrating it would succeed, producing inadequate reasons and omission to determine a main issue.
  • Relief sought included certiorari quashing the Respondent's decision, declaratory relief under environmental statutes and the Aarhus Convention provisions cited, and a possible stay of development.

Respondent's Arguments

  • The Appellants' affidavits largely contained inadmissible legal submissions and non-expert opinion; expert material relied on by the Appellants was not put before the Respondent and is inadmissible without explanation for late introduction.
  • Article 6 of the 2005 Regulations is largely a have-regard-to obligation and only requires the Respondent to include such conditions as may be necessary in its opinion to ensure operation and maintenance avoid nuisance; the Respondent validly imposed general conditions (e.g., condition 1) incorporating compliance with submitted particulars and the 2005 Regulations.
  • Lighting was addressed in the application materials and further information; the Respondent reasonably accepted Company A's mitigation measures and the conditions incorporated the relevant materials; there was no failure to consider residential lighting impacts.
  • The Respondent lawfully exercised planning judgment on landscaping, accepted an alternate landscaping proposal submitted at appeal and implemented it by condition; the Appellants failed to engage with that alternate proposal at the decision stage.
  • The Appellants failed to discharge the onus of proof and, in any event, certiorari would be inappropriate in the exercise of the Court's discretion given public interest in remedying long-standing untreated discharges.

Company A's (Notice Party) Arguments

  • Company A contended that the Appellants' expert reports were inadmissible or of no weight because they raised merits-based points not advanced during the planning process; Company A filed expert evidence in answer on a de bene esse basis and said any conflict should be resolved against the Appellants absent cross-examination.
  • Company A asserted that the application materials demonstrated design and mitigation to meet the 2005 Regulations and that the Respondent was entitled to conclude no bespoke further conditions were required beyond compliance with the lodged particulars and conditions imposed.
  • Company A maintained that lighting and landscaping matters were properly addressed in the application, further information, and appeal materials and that Condition 6 incorporated the alternate landscaping scheme adopted by the Respondent.
  • Company A urged refusal of relief in the exercise of the court's discretion citing the environmental need and public interest, absence of demonstrable prejudice, and availability of further regulatory remedies via the Agency.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Busher v. An Coimisiún Pleanála (No. 1) [2026] IEHC 362 Record that Judge Farrell rejected a motion seeking further explanation of the Respondent's decision. The Court noted and agreed with Judge Farrell's refusal of a motion for a fuller account of the Respondent's consideration on odour/lighting/landscaping.
Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 Emphasises relevance of the extent to which submissions were made to the decision-taker; material must generally have been before the decision-taker. Applied to conclude Appellants' late evidence and submissions that were not before the Respondent are generally impermissible bases for judicial review relief.
A.P. v. Director of Public Prosecutions [2011] IESC 2 Supports principle that applicants are confined to their pleadings. Referred to as authority for limiting Appellants to grounds properly pleaded.
Khashaba v. Medical Council [2016] IESC 10 Supports confinement to pleadings principle. Used to reinforce that the Appellants are bound by their pleadings.
Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42 Applicants are confined to their pleadings; complex EU law arguments must be clear on pleadings. Applied to stress the need for clear pleading of EU law arguments.
Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 Complex EU law arguments need particular clarity on the pleadings. Cited to require clarity in the Appellants' EU-related pleadings (if any).
Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25 On the nature of reasons and the approach to reasons required of decision-makers. Cited in discussion about obligations as to reasons; supports contextual reading of reasons.
Rawson v. Minister for Defence [2012] IESC 26 On the approach to reasons — no obligation to provide a discursive, narrative consideration of every submission. Applied to counter Appellants' demand for detailed discursive reasons on each submission.
O'Sullivan v. Health Service Executive [2023] IESC 11 Draft judgment procedure and limits on re-argument in draft responses (cited in Practice Direction context). Referred to in the Court's directions on draft judgment circulation and responses.
O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75 Cautions against treating administrative procedures as approximating criminal trial standards. Quoted to frame limits of parties' engagement with draft judgment procedure.
Attorney General v. Crosland (No. 2) [2021] UKSC 58 Why restriction on publication of draft judgments is in the interests of the administration of justice. Referenced in relation to confidentiality of draft judgments circulated to parties.
Baigent v. Random House Group Ltd [2006] EWHC 1131 Discusses publication/restriction principles for drafts (contextual). Used as supporting authority for draft judgment confidentiality.
R. (Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 Discusses limits of draft circulation/publication (contextual). Referred to for draft judgment confidentiality principles.
Public Institution for Social Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368 Contextual authority on draft judgments/publication control. Referenced in the Court's procedural directions on draft confidentiality.
Itkin v. Wood [2023] JRC 101 Contextual authority cited alongside other draft-judgment confidentiality cases. Referenced in procedural discussion.
Sherwin v. An Bord Pleanála [2024] IESC 13 Evaluative planning judgements are reviewable on an irrationality standard; also addresses when express reasons are required. Applied in defining the applicable standard of review and reasons requirements.
Baby O. v. Minister for Justice [2002] IESC 44 Supports the standard for evaluative judgments and judicial review limits. Referenced in relation to standards of review.
Amariei v. Chief Appeals Officer [2026] IESC 22 On judicial review being concerned with legality rather than merits and principles governing discretion. Applied in the Court's analysis of discretion and limits on merits review.
State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 Historical authority cited concerning review principles. Referenced in support of legal history on review and discretion.
Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 On legality vs merits and obligation to demonstrate onus of proof. Cited for onus and legality principles.
Sweeney v. Fahy [2014] IESC 50 Authority on judicial review principles. Referred to in support of legal propositions on review.
Connelly v. An Bord Pleanála [2018] IESC 31 On reasons: obligation to provide main reasons on the main issues; and that reasons may be found in materials beyond the decision itself. Applied to assess sufficiency of reasons in the Respondent's decision and to emphasise that reasons may be located in inspector's report or other materials.
O'Keefe v. An Bord Pleanála [1993] 1 I.R. 39 Authority on reasons and review of planning decisions. Referenced in discussing the Court's approach to reasons.
Faulkner v. Minister for Industry and Commerce 1997 WJSC-SC 962 Referenced in list of authorities concerning reasons/grounds. Used as supporting authority in the reasons/discretion discussion.
G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 Presumption that material is considered if the decision-taker says so; onus on applicant to rebut. Relied on to uphold presumption that the Respondent considered material it stated it had considered.
An Taisce v. An Bord Pleanála & Ors. [2022] IESC 8 Supports presumption that material cited by decision-maker was considered. Applied in assessing whether the Respondent had considered relevant material.
Rana v. Minister for Justice [2024] IESC 46 On burden/onus principles in judicial review. Referenced for onus of proof issues.
E.M. v. Minister for Justice and Equality [2024] IESC 3 Decision should not be read as invalid if a valid reading is reasonably available. Applied to prefer a valid reading of the Respondent's decision over strained interpretations.
G. v. DPP [1994] 1 I.R. 374 Judicial review is a discretionary remedy; overview of discretion principles. Used to frame discretion in granting certiorari.
De Róiste v. Minister for Defence [2001] IESC 4 On discretion and principles limiting judicial review remedies. Applied in the Court's discretion analysis.
Kenny v. Dublin City Council [2009] IESC 19 Example of discretion refusing relief for inconsequential breach. Referenced in discretionary refusal analysis.
Kelly v. Minister for Agriculture [2021] IESC 62 Limits on exercise of discretion; court not "at large" to substitute its merits view. Invoked when explaining bounds of judicial discretion.
Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52 Proportionality and cautions about quashing decisions on technical procedural errors. Applied in considering proportionality of certiorari given public interest.
Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 On discretionary nature of judicial review and court's power to refuse relief even where jurisdictional infirmity exists. Cited in discretion discussion.
S. v. Minister for Justice and Equality [2025] IESC 48 Further authority on discretion and remedies. Used to support the Court's discretionary approach.
Pat O'Donnell & Co. v. Dublin City Council [2026] IESC 36 Two-stage inquiry for statutory non-compliance and factors for exercising discretion (substantial compliance, prejudice, public interest). Applied in the Court's two-stage discretionary analysis and proportionality assessment.
Protect East Meath v. Meath County Council [2026] IESC 1 On importance of statutory requirements and their observance. Referenced in discretion/context analysis.
Kennedy v. An Bord Pleanála [2024] IEHC 570 Affidavit contents on expert evidence and admissibility of litigant evidence. Cited by Respondent to challenge admissibility/weight of Appellants' affidavits.
Pierse v An Bord Pleanála [2018] IEHC 669 On evidentiary limits of litigant affidavits and scope of appropriate material. Relied on to challenge Appellants' non-expert affidavit material.
Friends of the Irish Environment CLG [2026] IEHC 205 On inadmissibility of late substantive evidence not put before decision-maker. Applied to reject Appellants' attempt to rely on evidence not before the Respondent.
Monkstown Road Residents Association v An Bord Pleanála [2022] IEHC 318 On inadmissibility of late evidence raising substantive issues not before decision-maker. Used to support inadmissibility of Appellants' late material.
Doyle v An Coimisiún Pleanála [2025] IEHC 725 On excluding affidavit material advancing points never made in the process. Cited to exclude or deprioritise parts of Appellants' expert evidence.
Oxigen Environmental Unlimited Company v An Coimisiún Pleanála [2025] IEHC 632 Similar authority on late evidence in judicial review of planning decisions. Applied to argue against crediting late expert reports.
Fahybeg Windfarm Opposition Group v. An Bord Pleanála [2025] IEHC 310 Addresses admissibility and weight of evidence filed for the first time in judicial review. Used as supporting authority for excluding late evidence and resolving conflicts against party with onus.
Sliabh Luachra v An Bord Pleanála [2019] IEHC 888 On inadmissibility of points not made during planning process. Invoked to justify excluding material not presented to the Respondent.
Wild Irish Defence CLG v An Coimisiún Pleanála [2025] IEHC 726 On admissibility and the form of reasons required. Referenced in reasons/discretion arguments.
St. Margaret's Recycling v An Bord Pleanála [2024] IEHC 94 On curial deference to the Respondent on technical matters absent an irrationality challenge. Invoked to emphasise deference to planning decision-maker on technical zoning/design issues.
Reid v. An Bord Pleanála [2021] IEHC 230 Categories of admissible evidence in planning JR (referenced). Used to analyse whether Appellants' expert evidence fits recognised admissible categories.
RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC 4 Where conflict of admissible evidence exists absent cross-examination, it is resolved against the party bearing the onus of proof. Applied to resolve evidential conflicts against the Appellants who bore the onus.
West Wood Club Ltd v An Bord Pleanála [2010] IEHC 16 Affidavit may note exhibits and documents before decision-maker; scope of verifying affidavits. Referenced to validate certain aspects of the Respondent's verifying affidavit.
Redmond v. An Bord Pleanála [2020] IEHC 151 Granting planning permission does not displace compliance with other statutory schemes. Applied to note that permission does not absolve Company A from regulatory duties under other regimes.
Friends of the Irish Environment (Dublin Airport Noise) [2025] IECA 128 Cited in relation to reasons and interpretation principles. Used as part of the authorities on interpreting decisions and reasons.
McGowan v. An Coimisiún Pleanála [2025] IEHC 405 On resolving evidential conflicts absent cross-examination. Applied to weigh competing expert affidavits.
Hoctor v. An Coimisiún Pleanála (No. 1) [2026] IEHC 65 On onus and resolving conflicts without cross-examination. Referenced for evidential resolution principles.
Carrownagowan (No.2) [2024] IEHC 300 On limits to reading prior Supreme Court authority in a particular way (contextual). Used to reject an overbroad interpretation of Sherwin by the Appellants.
Duffy v The Minister for Housing, Local Government and Heritage [2026] IEHC 46 On sufficiency of reasons and form of analysis required. Referenced to support that the form of the Respondent's reasoning need not match the Appellants' preferred structure.
O'Donnell v An Bord Pleanála [2023] IEHC 381 On content and sufficiency of reasons. Used in reasons analysis.
Nagle View v An Bord Pleanála [2024] IEHC 603 On planning JR reasons standards. Cited in relation to sufficiency of reasons.
Ó Murthuile v An Bord Pleanála [2025] IEHC 498 On reasons and review practice. Referenced in support of reasons jurisprudence.
Friends of Killymooney Lough v An Coimisiún Pleanála [2025] IEHC 407 On admissibility and reasons. Referenced in the reasons discussion.
Hession (reported authority in text) Contextual citation on reasons/analysis in planning JR. Referenced in support of reasons jurisprudence.
Rural Residents Wind Aware v An Coimisiún Pleanála I (No 1) [2025] IEHC 600 On approach to reasons and admissibility. Referenced in context of reasons and admissibility.
Byrnes v. Dublin City Council [2017] IEHC 19 Discretionary relief: certiorari not automatic for jurisdictional infirmity; discretion applies. Invoked in discussing discretion where defects alleged might not mandate certiorari.
Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403 Discretionary nature of judicial review remedies. Used in the discretion analysis.
Reilly v. An Coimisiún Pleanála [2025] IEHC 659 On discretion and relief refusal even where errors exist. Applied to support refusal of certiorari in exercise of discretion.
O'Connell v. Behan [2021] IECA 186 Judicial review is discretionary; factors relevant to discretion. Used to set out the established principles for exercising discretion.
Baile Bhruachlain Teoranta v. Galway County Council [2024] IEHC 604 Failure by claimant to take action relevant to discretion. Referenced in conduct-of-applicant considerations.
Voyage Property v. Limerick City and County Council [2025] IEHC 696 Failure to protect position relevant to discretion. Invoked in conduct-of-applicant analysis.
Friends of the Irish Environment CLG v. Government of Ireland [2021] IECA 317 Failure to raise points in process is relevant to discretion. Applied to weigh against granting relief where Appellants did not raise technical points earlier.
Delaney v. An Coimisiún Pleanála [2025] IEHC 621 Unwarranted failure to prosecute proceedings relevant to discretion. Referenced on conduct-of-applicant principles.
Independent Newspapers (Ireland) Ltd v. IA [2020] IECA 19 Practical value/futility of remedy (mootness) in discretion analysis. Cited when assessing practical value of certiorari.
Monaghan Urban District Council v. Alf-a-Bet Promotions Ltd 1980 WJSC-SC 1341 Substantial compliance is a factor in discretion. Invoked to consider whether there was substantial compliance with statutory requirements.
Gillen v. Commissioner of An Garda Síochána [2012] IESC 3 Substantial compliance and importance of provision not complied with. Applied in proportionality analysis.
Kelly v. Minister for Agriculture (referenced earlier) Limits on court substituting merits views when exercising discretion. Referred to in the Court's approach to exercising discretion.
Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27 Factors relevant to exercise of discretion and seriousness of errors. Used to identify factors (seriousness, pattern, rectification) in discretion analysis.

Court's Reasoning and Analysis

The Court applied established principles governing judicial review of planning decisions, reasons, admissibility of evidence and the exercise of discretion. The reasoning proceeded as follows:

  1. Preliminary evidential rulings: the Court held much of the Appellants' later affidavit material to be inadmissible or of no weight where it advanced substantive points not put before the Respondent, where it comprised legal submissions by a litigant, or where expert opinion was offered without having been before the decision-maker. Conflicts in admissible evidence without cross-examination were to be resolved against the party bearing the onus.
  2. Application of statutory interpretation to the 2005 Regulations: the Court examined Article 6 and Articles 3 and 4 of S.I. No. 787/2005 and concluded Article 6 is primarily a have-regard-to obligation; the only binding substantive duty is to include such conditions as the Respondent considers necessary in order to ensure a plant is operated and maintained so as to avoid odour/noise nuisance. That obligation can properly be discharged by imposing a condition requiring compliance with the application particulars (Condition 1).
  3. On Core Ground 1 (odour): the Court found the Respondent's approach was a valid reading of the regulations and of the material before it (which recorded Company A's design and mitigation measures and explicit commitment to comply with the 2005 Regulations). The Appellants had not shown that no lawful decision-maker could have treated Condition 1 and the lodged materials as satisfying Article 6. The Appellants' failure to raise detailed technical criticisms in the planning process was material against them.
  4. On Core Ground 2 (lighting): the Court concluded lighting was addressed in the application and the further information, that the Respondent properly read condition 1 as incorporating the submitted lighting regime (taller emergency lights off in normal unmanned operation; low-level bollards in low-power mode), and that the Appellants did not demonstrate an evidential basis for alleging the Respondent failed to consider residential lighting impacts or to give adequate reasons.
  5. On Core Ground 3 (landscaping): the Court analysed the sequence of three landscaping schemes (original application, revised FI proposal, alternate appeal proposal). The Respondent had adopted the alternate appeal proposal by Condition 6. The Appellants had not engaged with that alternate proposal before the Respondent and had not shown that landscaping was a main issue requiring fuller discursive reasons; the inspector's comment about likely limited growth was rendered moot by the different mitigation ultimately adopted. The Respondent's evaluative judgment in preferring the alternate scheme was lawful.
  6. Discretion: even if defects were established, the Court applied the discretionary principles set out in authority. On that footing the Court found certiorari would be inappropriate and disproportionate: public interest in remedial infrastructure to stop long-standing untreated discharges, the Appellants' failure to make certain points in the process, the technical or semantic nature of criticisms, absence of demonstrated prejudice and availability of further regulatory remedies (Agency enforcement) weighed against quashing the permission.
  7. Overall synthesis: applying principles on reasons, statutory interpretation, admissibility, onus of proof and discretion, the Court concluded the Appellants had not shown a legal error warranting certiorari and that, alternatively, relief should be refused in the exercise of discretion.

Holding and Implications

HOLDING: The Court ordered that the proceedings be dismissed. The Court declined to quash the Respondent's decision and declined to grant the declaratory or injunctive relief sought by the Appellants; the proposed order provided for no order as to costs subject to limited exceptions and permitted limited further submissions on costs.

Implications:

  • The direct effect is that the Respondent's planning permission (as conditioned) remains in force and Company A may proceed subject to compliance with the conditions and other statutory regimes.
  • The judgment emphasises (a) the limited scope for introducing substantive evidence in judicial review that was not before the decision-maker, (b) that Article 6 of S.I. No. 787/2005 imposes a discretion-based condition duty (a "have regard to" obligation with a duty to include such conditions as the Respondent in its opinion considers necessary), and (c) the exercise of judicial discretion may preclude certiorari where public interest, substantial compliance and other factors weigh against quashing a decision. No novel legal principle beyond the application of established authorities was created.
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Busher and Ors v An Coimisiun Pleanala and Anor [No. 2] (Approved)

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Busher and Ors v An Coimisiun Pleanala and Anor [No. 2] (Approved)
(Jul 3, 2026)