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Milner and Anor v An Coimisiun Pleanala and Anor (Approved)
Factual and Procedural Background
The Applicants, local residents, objected to a proposed solar farm on five rural land parcels. The local planning authority granted permission subject to conditions, and the Respondent subsequently granted permission on appeal, also subject to conditions. [1][2][3][4][5]
The Applicants commenced judicial review proceedings challenging the Respondent’s decision. Leave was granted, and an amendment adding a seventh ground was allowed on a de bene esse basis. The proceedings were heard by Judge [Last Name], who dismissed the challenge. [6][7][8][9]
Legal Issues Presented
- Whether the solar farm was subject to the Environmental Impact Assessment Directive and whether alleged deficiencies in precautionary EIA screening invalidated the permission. [10][11][12]
- Whether the Respondent adequately considered land use, project duration, development-plan policy, cumulative effects, project size and proposed Natural Heritage Areas. [13][14]
- Whether the Applicants’ pleadings sufficiently particularised their legal claims and whether they discharged the evidential burden required for judicial review. [15][12][16]
- Whether relief should be refused as a matter of judicial-review discretion even if an error had been established. [17][18]
Arguments of the Parties
Applicants’ Arguments
- The Respondent conducted a full Schedule 7/Annex III screening of the entire solar farm and was therefore required to comply fully with the EIA screening criteria. [19][20][21]
- The screening allegedly failed to assess existing agricultural land use, project size, cumulative effects, the relevant development-plan policy and three proposed Natural Heritage Areas. [22][23][24][25][26][27]
- The Applicants challenged the description of the development as temporary, arguing that a 40-year operational period was effectively permanent and that continued sheep grazing was merely aspirational. [28][29]
- They contended that the pNHAs had been raised during the planning process and that the decision-maker was required to apply the screening framework to the facts presented, even if the Applicants had not formulated the precise legal argument. [30][31][32]
Respondent’s Arguments
- A solar farm is not an EIA project because it is not within Annex I or Annex II of the EIA Directive. Any precautionary screening of ancillary works did not make the solar farm subject to EIA obligations. [33][21]
- The Respondent argued that the Applicants’ grounds were inadequately particularised, impermissibly merits-based and unsupported by sufficient evidence or expert material. [34]
- The Respondent maintained that the Inspector and Respondent had considered the existing use, development-plan policy, cumulative effects, project size and ecological sensitivities, and had given the main reasons on the main issues. [35][36][37][38][39]
Notice Party’s Arguments
- The Notice Party supported the position that solar farms are not EIA projects and that alleged defects in unnecessary screening were legally irrelevant. [40][41][42]
- It argued that the Applicants had not discharged the burden of proof, particularly because they provided no expert evidence establishing significant environmental effects or defects in the ecological assessment. [43][44][45]
- It contended that the pNHAs were addressed in the ecological material, that two were outside the zone of influence, and that the amendment introducing the seventh ground should be refused. [46][47][48]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Breen v. An Coimisiún Pleanála [2026] IEHC 338 | Solar farms are not EIA projects. | Supported dismissal of the EIA-based challenge. [10][33] |
| Moss v. An Coimisiún Pleanála [2026] IEHC 62, [2026] IEHC 175, [2026] IESCDET 91 | Solar farms are not EIA projects; related screening issues do not alter that conclusion. | The Court treated the principle as settled. [10][33][41] |
| Cummins v. An Coimisiún Pleanála [2025] IEHC 521, [2025] IEHC 662 | Solar farms are not subject to EIA requirements. | Applied against all EIA-based grounds. [10][33][40] |
| Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 | The EIA Directive does not apply to projects that are not listed. | Formed the central basis for rejecting the challenge. [11][40][12] |
| Kavanagh v. An Bord Pleanála [2020] IEHC 259 | Solar farms are not EIA projects. | Relied on in support of the Respondent’s position. [10][33][40] |
| Sweetman v. An Bord Pleanála [2020] IEHC 39 | Solar farms are not EIA projects. | Relied on in support of dismissal. [10][33][40] |
| Carvill v. Dublin City Council [2025] IECA 84 | Precautionary screening does not make the EIA Directive applicable where it otherwise does not apply. | The Court held that alleged screening defects were legally irrelevant. [49][21][42][50] |
| Amariei v. Chief Appeals Officer [2026] IESC 22 | Judicial review concerns legality, not merits; applicants bear the burden of proof; discretion is governed by established principles. | Applied to the Applicants’ pleading, evidential and discretionary difficulties. [51][52][53] |
| Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5 | Material must have been put before the decision-maker; planning judgement is relevant. | Supported the Court’s approach to matters raised and planning policy. [54][55] |
| Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 | Judicial review is concerned with legality rather than merits; reasons need not be discursive. | Used in the general principles on review and reasons. [56][57] |
| Sweeney v. Fahy [2014] IESC 50 | Judicial review concerns legality rather than merits. | Supported the Court’s rejection of merits-based complaints. [56] |
| A.P. v. Director of Public Prosecutions [2011] IESC 2 | Applicants are confined to their pleadings. | Supported the finding that the Applicants could not expand their pleaded case. [58][59] |
| Khashaba v. Medical Council [2016] IESC 10 | Applicants are confined to their pleadings. | Applied to the inadequacy of the pleadings. [58][59] |
| Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42 | Applicants are confined to their pleadings. | Supported the pleading analysis. [58][59] |
| O’Keefe v. An Bord Pleanála [1993] 1 I.R. 39 | Standard of review and reasons in planning cases. | Cited in the discussion of reasons. [60] |
| Connelly v. An Bord Pleanála [2018] IESC 31 | Reasons must address the main issues; reasons may be found in associated materials. | The Court held that the main reasons were given and could be found in the wider record. [61][62][22][63] |
| Killegland Estates Ltd v Meath County Council [2023] IESC 39 | Reasons may be found outside the formal decision. | Supported reliance on the Inspector’s Report and ecological material. [62][64] |
| G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 | There is a presumption that material was considered when the decision-maker says so. | Supported the conclusion that relevant material had been considered. [65] |
| Sherwin v. An Bord Pleanála [2024] IESC 13 | Evaluative planning judgements are reviewable for irrationality where not affected by legal, factual or procedural error. | Applied to the planning assessments. [66][37] |
| RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC 4 | Unresolved evidential conflicts generally operate against the party bearing the burden of proof. | The Applicants’ failure to challenge opposing expert evidence was material. [67][68] |
| Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest, C-275/09 | EIA applies to physical interventions, not merely changes of use. | Supported the conclusion that the project fell outside the EIA regime. [69][70] |
| Case C-2/07 Abraham and Others v Région Wallonne | Consideration of future use in EIA assessment. | Distinguished because the present project was not an EIA project. [28][71][72] |
| Kraaijeveld and Others v. Gedeputeerde Staten Van Zuid-Holland, C-72/95 | Interpretation of listed Annex II works. | Held irrelevant because the solar farm was outside the Annexes. [72] |
| R. (Wells) v. Secretary of State for Transport, Local Government and the Regions, C-201/02 | Application of EIA requirements to listed Annex II development. | Held irrelevant to the unlisted project. [72] |
| Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 | Not every error requires quashing; planning assessments may be relied upon. | Supported the treatment of the ecological evidence. [73][74] |
| Gemeinde Altrip and Others v Land Rheinland-Pfalz, C-72/12 | Harmless error does not necessarily justify annulment. | Supported the discretionary refusal of relief. [75][76] |
| G. v. DPP [1994] 1 I.R. 374 | Judicial review is discretionary. | Supported the Court’s alternative refusal of relief. [77][78][79] |
| De Róiste v. Minister for Defence [2001] IESC 4 | Judicial-review discretion. | Included in the Court’s discretion analysis. [77][80] |
| Kelly v. Minister for Agriculture [2021] IESC 62 | The court is not at large when exercising discretion. | Supported the structured approach to discretionary relief. [77][81] |
| Ryan v. An Bord Pleanála [2025] IEHC 111 | It may be disproportionate and futile to quash a decision for obligations that did not apply. | Applied by analogy to the EIA challenge. [82][83] |
| Boland v. An Bord Pleanála [2006] IEHC 102 | Planning authorities may impose conditions. | Supported the validity of the 40-year duration and decommissioning condition. [84] |
| Re XJS Investments Limited [1986] I.R. 750 | A policy expressing a preference may involve appreciable discretion. | Applied to the development-plan preference for brownfield sites. [55] |
| Save Roscam Peninsula v An Bord Pleanala CLG [2024] IEHC 156 | Principles concerning amendment of judicial-review grounds. | Referred to in the Notice Party’s objection to the seventh ground. [85] |
| Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19 | No CJEU reference is required where the issue is acte clair or acte éclairé. | The Court found no properly pleaded issue giving rise to real doubt. [86] |
| O’Connell v. Behan [2021] IECA 186 | Judicial review is discretionary; conduct, practical value and proportionality may be relevant. | Supported the structured discretion analysis. [87][88] |
| Pat O’Donnell & Co. v. Dublin City Council [2026] IESC 36 | Two-stage approach to invalidity and relevant proportionality factors. | Applied to the alternative refusal of relief. [89][90] |
| Christian v. Dublin City Council [2012] IEHC 163 | Discretion must be connected to an important constitutional or legal value. | Used to define the limits of discretion. [81][91] |
| Protect East Meath v. Meath County Council [2026] IESC 1 | Statutory requirements must be observed; futile relief may be refused. | Supported refusal of relief where no useful purpose would result. [81][92] |
Court's Reasoning and Analysis
The Court treated the central premise of the challenge as legally incorrect: the solar farm was not a project listed in the EIA Directive. Consequently, any deficiencies in precautionary screening could not invalidate a permission on the basis that mandatory EIA obligations had been breached. [10][11][93][12]
The Court also found that the ancillary access tracks did not constitute relevant road projects and that the limited hedgerow removal did not amount to rural land restructuring. [94][50]
Independently, the Court held that the Applicants had not demonstrated factual or legal error. The existing agricultural use, project size, cumulative effects, development-plan policy and ecological material had been considered in the wider decision-making record. The Court was not required to find that every point appeared expressly in the formal order. [95][96][63][97][98]
The Court rejected the challenge to the word “temporary”. The permission imposed a defined 40-year operational period, decommissioning obligations and restoration requirements. A reversible use could lawfully be described as temporary even if it lasted several decades. [99][100][84]
Regarding the pNHAs, the Court held that Derries Wood had been considered in the ecological assessment and that the other two sites were considered outside the relevant zone of influence. The Applicants had not displaced that evidence, including through cross-examination or expert evidence. [101][102][68]
The Court further held that the pleadings lacked the clarity required for complex EU-law arguments and that later affidavits could not cure pleading deficiencies. [15][103]
Finally, even if a breach had been established, the Court would have refused relief in its discretion. Quashing the permission for failure to comply with EIA obligations that did not apply would have served no useful substantive, environmental or legal purpose, particularly in light of the project’s renewable-energy importance and the absence of demonstrated environmental harm. [17][104][83]
Holding and Implications
DISMISSED. The judicial-review proceedings were dismissed. The proposed order was that there be no order as to costs unless a party made a contrary application within the specified time. [9][105]
The permission therefore remained in force, subject to its conditions. The Court’s decision applied established principles concerning unlisted EIA projects, pleading, evidential burdens, reasons and discretionary judicial review; it did not state that a new precedent was created. [106][18][9]
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