Rogers v An Coimisiun Pleanala and Anor (Approved)

Factual and Procedural Background

The Applicant challenged the decision of the Defendant dated 27 June 2025 to grant approval to Company A for the N2 The Town Bypass and Public Realm Enhancement Scheme pursuant to section 51 of the Roads Act 1993. The Applicant alleged that the Defendant had failed to ensure it had, or had access as necessary to, sufficient expertise to examine the Environmental Impact Assessment Report (EIAR), contrary to Article 5(3)(b) of Directive 2011/92/EU as implemented by section 51(2A) of the Roads Act 1993. The High Court (Judge Nolan) delivered judgment on 28 April 2026 dismissing the judicial review application, but expressed reservations concerning the duty of candour and the Defendant's expertise. The Applicant applied for a certificate for leave to appeal to the Court of Appeal under section 50A(7) of the Planning and Development Act 2000; Judge Nolan delivered the judgment summarized here on 3 July 2026 and certified two questions for appeal, listing a hearing to make final orders on 15 July 2026.

Legal Issues Presented

1. Does a public body owe a duty of candour as a respondent in judicial review proceedings concerning compliance with an autonomous EU law obligation to disclose the expertise it has or has access to when that point is a properly pleaded issue in dispute in the proceedings?
2. Does the presumption of validity of the decision of the Defendant apply when the issue in dispute in the proceedings is a jurisdictional requirement imposed by Article 5(3)(b) of Directive 2011/92/EU, as amended?
3. Where the Court has judicial doubt as to compliance with an express EU law requirement which forms a jurisdictional condition, can it allow the decision to stand?
4. Can adverse inferences be drawn where information uniquely within the possession of a public body respondent is refused or withheld in judicial review proceedings?

Arguments of the Parties

Applicant's Arguments (Attorney Cush)

• The obligation under Article 5(3)(b) is an autonomous obligation properly pleaded against the Defendant, making the sufficiency of the Defendant's expertise an issue to be determined.
• If Irish law recognised the additional principles outlined by Barrett J. in Murtagh, the duty of candour could shift the evidential onus and be determinative where the Defendant failed to respond to queries about expertise.
• The question is of exceptional public importance given environmental sensitivities and potential irreversible effects.

Defendant's Arguments (Attorney Valentine)

• The High Court's decision turned on the specific facts: the concern about expertise was raised very shortly before the hearing and the Applicant had not used available procedures earlier to obtain evidence.
• The Applicant bears the burden of proof in judicial review and cannot rely on pleadings alone to require the Defendant to produce evidence.
• The presumption of validity applies; there was no breach of any duty of candour in the circumstances.

Notice Party's Arguments (Company A; Attorney Keane)

• The proposed appeal does not raise an issue of exceptional public importance and conflicts with the purpose of section 50A(7) which promotes finality and expedition in planning judicial reviews.
• The expertise issue was raised too late and without evidence; ordinary evidential rules apply and the Applicant failed to meet the evidential burden.
• Granting leave would delay a project with public safety and transport benefits.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Nolan began from his earlier judgment dismissing the judicial review but expressing reservations about whether the Defendant had the requisite expertise and about the duty of candour. He held that Article 5(3)(b) imposes an autonomous obligation on the Defendant to ensure it has, or has access to, sufficient expertise to examine the EIAR. The court considered whether that autonomous obligation interacts with the duty of candour when concerns were raised shortly before the hearing and not answered.

The Judge analysed the present state of Irish law on duty of candour (citing Friends of the Irish Environment and Murtagh), noting that while respondents must disclose material relevant to the impugned decision, there is no duty of general disclosure and privilege remains protected. He observed that Barrett J.'s remaining principles in Murtagh, if adopted into Irish law, could shift evidential burdens and be determinative where the relevant information is peculiarly within the respondent's knowledge.

The Judge emphasised he must not assess the merits of the argument but only whether the points arise from the judgment, are points of law of exceptional public importance, and whether an appeal is desirable in the public interest. Weighing the unsettled state of the law on duty of candour, the autonomous nature of Article 5(3)(b), the concentration of relevant information within the Defendant, and the competing public interests (project completion, public safety, and potential irreversible environmental impacts), he concluded that at least two questions met the statutory threshold for certification.

Holding and Implications

HOLDING: The court certified two questions for leave to appeal to the Court of Appeal and directed the matter be listed for final orders on 15 July 2026.

Implications: The direct effect is that two specific legal questions (concerning the duty of candour/disclosure of expertise and the application of the presumption of validity to a jurisdictional requirement under Article 5(3)(b)) will be argued before the Court of Appeal. The judgment recognises the unsettled state of the law on the duty of candour and indicates the potential for a consequential ruling from the appellate court; the High Court did not itself alter the existing evidential rules or create a new precedent beyond certifying the questions for appeal.