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Busher and Ors v An Coimisiun Pleanala and Anor [No. 3] (Approved)
Factual and Procedural Background
The Applicants challenged permission granted by the Respondent Commission for a foul pumping station, wastewater treatment plant and associated works in a coastal town. The High Court previously upheld the permission after administrative scrutiny and proceedings concerning the development. [1][2][3]
The Applicants applied for leave to appeal. Written submissions were exchanged, the application was heard, and judgment was reserved. [4][5]
Legal Issues Presented
- Whether the Applicants could raise an issue concerning the interpretation of legislation or regulations in judicial review proceedings despite not addressing the legislation in their submissions to the administrative decision-maker. [6][7]
- Whether a condition requiring compliance with one regulation was sufficient to comply with another regulation. [8]
- Whether either proposed question satisfied the statutory requirements for leave to appeal, including being a point of law of exceptional public importance and an appeal desirable in the public interest. [9][10][11]
Arguments of the Parties
Applicants' Arguments
- The Applicants proposed the two questions identified above and argued that the judgment restricted their ability to challenge the legality of the decision. [6][12]
- They asserted that the judgment conflicted with other authorities, engaged the Aarhus Convention, and created uncertainty concerning the relevant regulations. [13][14][15]
- They advanced complaints concerning odour, licensing, infrastructure delivery and the weight given to wastewater infrastructure. [16]
- They argued that the project’s urgency should be discounted because of alleged delay by the Notice Party and disputed the effect of the existing discharge on water quality. [17]
Respondent Commission's and Notice Party's Arguments
- The Respondent submitted that the Applicants had been permitted to raise and argue their interpretation point, which had simply been rejected. [18][19]
- It argued that the first proposed question misrepresented the judgment and that the second was a merits-based application of law to particular facts, not a pure point of law. [19][20]
- The Respondent and Notice Party argued that the proposed questions were not determinative because the substantive challenge had failed on several independent grounds. [21][22]
- They submitted that the project addressed the ongoing discharge of untreated wastewater and that further delay was contrary to the public interest. [23][24][25]
- The Notice Party submitted that the application merely reargued the unsuccessful case and did not engage with the reasoning of the principal judgment or identify a legally significant uncertainty. [16][26]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rooney v. Minister for Agriculture and Food [2016] IESC 1 | Appeals should not produce “litigious perpetual motion”. | Further appellate litigation was unnecessary after multiple prior decision-making stages. [3][27] |
| Busher v. An Coimisiún Pleanála (No. 1) [2026] IEHC 362 | Prior procedural history. | A motion requiring an explanation of the decision had been rejected. [1] |
| Busher v An Coimisiún Pleanála (No. 2) [2026] IEHC 434 | Prior substantive judgment. | The permission was upheld. [2] |
| O'Sullivan v. Health Service Executive [2023] IESC 11 | Draft judgment procedures do not create entitlement to elaborate procedures at every stage. | The court confined post-draft responses to corrections and related matters. [28] |
| O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75 | Fairness does not require procedures approximating a criminal trial. | The draft judgment procedure was treated as a focused procedural concession. [28][29][30] |
| Attorney General v. Crosland (No. 2) [2021] UKSC 58 | Confidentiality of draft judgments. | It supported the direction restricting publication or transmission of the draft. [31] |
| Baigent v. Random House Group Ltd [2006] EWHC 1131 | Confidentiality and administration of justice. | It was cited in support of restricting use of draft judgments. [32] |
| R. (Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 | Confidentiality of draft judgments. | It was cited as supporting the confidentiality direction. [32] |
| Public Institution for Social Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368 | Confidentiality of draft judgments. | It was cited as supporting the confidentiality direction. [32] |
| Itkin v. Wood [2023] JRC 101 | Confidentiality of draft judgments. | It was cited as supporting the confidentiality direction. [32] |
| Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 | A proposed question must fall within the pleadings. | The court applied the requirement that an appeal question arise from the pleaded case. [33] |
| Leech v. An Bord Pleanála [2025] IESCDET 106 | Pleading and case-specific interpretation issues generally lack public importance. | The Applicants' first question was treated as mischaracterising a case-specific ruling. [33][34] |
| Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11 | A question must arise on the facts and not be abstract. | The court rejected an abstractly framed first question. [35][36] |
| GOCE Limited v. An Bord Pleanála [2025] IEHC 43 | The question must have been argued below and cannot be a newly formulated issue. | The belated Aarhus argument was not treated as properly arising. [37][15] |
| S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 | The question should affect the outcome, be timely and specific. | The court relied on these requirements in assessing the proposed questions. [38][39][40] |
| Morehart v. An Bord Pleanála [2025] IEHC 701 | An appeal question should make a difference to the outcome. | The proposed questions were not determinative. [38] |
| Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9 | A question must accurately reflect the judgment. | The first question was rejected as tendentious and inaccurate. [41] |
| Stapleton v. An Bord Pleanála [2025] IEHC 178 | Mischaracterised issues, lack of demonstrated practical problems and specificity. | The court rejected assertions of uncertainty and practical difficulty. [41][40][42][43] |
| Cooper v. An Bord Pleanála [2025] IESCDET 96 | Misunderstanding the legal position is not a matter of public importance. | The Applicants' disagreement did not establish an appealable legal issue. [44] |
| B.S. v. Director of Public Prosecutions [2017] IESCDET 134 | Application of established law to facts is generally not a pure question of law. | The second proposed question was classified as factual or mixed. [45] |
| Halpin v. An Bord Pleanála [2020] IEHC 218 | Application of law to particular facts is generally unsuitable for appeal. | The court applied that principle to the regulatory condition. [45] |
| Rushe v. An Bord Pleanála [2020] IEHC 429 | Distinction between legal interpretation and factual application. | The second question concerned application rather than interpretation. [45] |
| Stanley v. An Bord Pleanála [2022] IEHC 671 | Mixed questions of fact and law are generally unsuitable. | The court treated the Applicants' complaint as merits-based. [45] |
| Eco Advocacy CLG v. An Bord Pleanála [2024] IESCDET 62 | Application of law to facts is not generally a pure legal question; delay may affect public interest. | The proposed appeal did not satisfy the legal or public-interest criteria. [45][46] |
| Ógalas v. An Bord Pleanála [2015] IEHC 205 | An appeal may be necessary to resolve genuine doubt. | No genuine doubt was identified here. [47] |
| Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 | Where the law is not uncertain, public interest does not ordinarily warrant an appeal. | The Applicants had manufactured, rather than demonstrated, uncertainty. [47] |
| Nagle View Turbine Aware v. An Bord Pleanála [2025] IESCDET 41 | An appeal application must engage with the judgment's reasoning rather than repeat the losing case. | The Applicants had not provided a plausible basis for saying the judgment was wrong. [48][16] |
| Sherwin v. An Bord Pleanála (No. 2) [2023] IEHC 232 | An official body's application may be relevant but is not automatically appealable. | The court applied the same principle generally. [42] |
| Callaghan v. An Bord Pleanála [2015] IEHC 493 | Novelty alone does not make a point suitable for appeal. | The alleged novelty of the issue did not establish appealability. [49] |
| Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209 | Disagreement with a judgment does not establish legal uncertainty. | The Applicants' disagreement was insufficient. [49] |
| Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8 and [2025] IESCDET 9 | A CJEU reference does not cure an abstract or otherwise unsuitable question. | The court rejected the Applicants' belated reliance on the Aarhus Convention. [50][51][15] |
| Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231 | Planning judicial review legislation pursues finality, certainty and expedition. | Those objectives weighed against further litigation. [46] |
| Freeney v. An Bord Pleanála [2025] IEHC 36 | Finality and expedition in planning challenges. | The court applied the statutory policy favouring finality. [46] |
| Dunnes Stores v. An Bord Pleanála [2015] IEHC 387 | Project characteristics and delay risks are relevant to public interest. | The urgent environmental need for the project weighed against an appeal. [46][52] |
| Phoenix Rock Enterprises v. An Bord Pleanála & Ors. [2023] IESCDET 97 | Assertions of practical problems require evidence. | No evidential basis for alleged practical uncertainty was shown. [53] |
| McCaffrey v. An Bord Pleanála [2024] IEHC 476 and [2024] IESCDET 145 | Fact-specific disputes and unsupported practical effects do not ordinarily justify appeal. | The proposed questions were similarly case-specific. [53] |
| Colbeam v DLRCC & Jennings [2026] IEHC 613 | Judicial notice may sometimes establish practical problems, but mere assertion is insufficient. | The Applicants had not established such a basis. [53] |
| R.A. v. Refugee Appeals Tribunal; B.W. v. Refugee Appeals Tribunal; K.R.A. v. Minister for Justice and Equality (No. 2); S.T.E. v. Minister for Justice and Equality; R.A. v. Refugee Appeals Tribunal (No. 3); and other authorities cited at paragraph 15 | A genuinely solid application should ordinarily obtain leave; superfluous questions should not be certified. | The court considered the present application insufficient. [54][55][56] |
| Coolglass Wind Farm Ltd v. An Bord Pleanála [2026] IESC 5 | Validity is assessed primarily through the material before the decision-maker. | The Applicants had in fact been permitted to raise the regulatory interpretation issue, but had failed on its merits. [57] |
| Friends of the Irish Environment CLG (No. 2) [2026] IEHC 413 | A point cannot be manufactured by distorting the judgment; tendentious questions weigh against appeal. | The first proposed question was rejected as a distortion. [58][23][59] |
| Grace & Sweetman [2020] 3 IR 286; Balz [2020] 1 ILRM 367; Environmental Trust [2022] IEHC 540; Reid (No.1) [2021] IEHC 230; Reid (No.2) [2021] IEHC 362 | Authorities relied on by the Applicants as allegedly conflicting. | The court held that the judgment was consistent with them and that they did not establish legal uncertainty. [13] |
| 100 Meter Tall v. An Bord Pleanála [2025] IEHC 42 | Mentioning a subject in the papers does not permit every later argument concerning that subject. | The Applicants' earlier references to odour did not establish every subsequent regulatory complaint. [60] |
| Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38 | Courts should not permit an unfocused mixture of arguments to be assembled at the hearing. | The court rejected the attempt to expand the issues through later arguments. [60] |
| Holohan v. An Bord Pleanála [2017] IEHC 268 | The scope of judicial review is already broad. | The court rejected the claim that the judgment unlawfully restricted review. [15] |
| N.M. (D.R.C.) v. Minister for Justice and Equality [2016] IECA 217 | Judicial review remains an effective domestic and European remedy while preserving the legality/merits distinction. | The Aarhus and EU-law arguments did not displace that distinction. [15] |
| The People (D.P.P.) v. Rattigan [2013] IECCA 13 | “Delayed eloquence” does not make a new issue properly appealable. | The belated Aarhus argument was not allowed to proceed as a new appellate issue. [15] |
| Keogh v. An Coimisiún Pleanála (No. 2) [2026] IEHC 453 | The proposed issue must be determinative. | The proposed questions would not alter the result because independent grounds remained. [22] |
| Lissan Coal v. An Coimisiún Pleanála [2026] IEHC 457 | Non-determinative questions and delay weigh against certification. | The proposed questions failed that requirement. [22][61] |
| Condon (No. 2) [2026] IEHC 136 | Public interest in planning appeals includes finality, certainty and expedition. | The court applied that statutory context. [23] |
| Rural Residents Wind Aware and Environmental Group v An Coimisiún Pleanála (No. 3) [2026] IEHC 300 | Public interest may weigh against appeal where an important development would be delayed. | The development's environmental importance supported refusal. [62] |
| Doyle v An Coimisiún Pleanála [2026] IEHC 340 | Public-interest considerations in planning appeals. | The court applied analogous reasoning concerning the importance of the project. [62] |
| Massey v An Bord Pleanála (No. 4) [2025] IEHC 309 | Finality, certainty, expedition and project-related delay are relevant to public interest. | The statutory appeal regime was treated as deliberately restrictive. [52] |
Court's Reasoning and Analysis
The court began with the statutory criteria for leave to appeal. A proposed question must arise within the pleadings, arise on the facts, have been argued below, be capable of affecting the result, accurately reflect the judgment, be timely and specific, and constitute a point of law of exceptional public importance. The appeal must also be desirable in the public interest. [9][33][37][38][39][40][63][64][10][11]
The first proposed question did not properly arise because it inaccurately suggested that the Applicants had been barred from raising statutory interpretation issues. The Applicants had raised the regulatory interpretation point, but the court had rejected it. [7][18][19]
The court held that the validity of the administrative decision had to be assessed primarily through the evidence and submissions before the decision-maker. Allowing decisive new evidence or merits arguments at judicial review stage would transform review of legality into reconsideration of the correctness of the decision, contrary to the separation of powers. [57][15]
The second proposed question did arise, but it was not a pure question of law. It concerned the application of an evaluative regulatory provision to the particular facts and effectively sought to reargue the merits of the planning decision. [65][66][20][67]
Neither question was of public importance. The first did not arise, while the second concerned a provision that left the form of any necessary condition to the Commission's evaluative judgment and generated no genuine legal uncertainty. [68][69][70]
The questions were also non-determinative. The substantive judgment had rejected the challenge on several independent grounds, including failure to raise the relevant complaint in the planning process, the overstated effect of the regulations, the lawfulness of the condition, lack of demonstrated legal or evidential failure, and discretionary considerations. Those grounds would remain even if the proposed questions were answered in the Applicants' favour. [21][22][71]
Finally, an appeal was not desirable in the public interest. The statutory scheme favoured finality, certainty and expedition in planning judicial review, while the project addressed the ongoing discharge of untreated wastewater into coastal waters. Further litigation would delay infrastructure regarded as environmentally important, without any demonstrated countervailing public benefit. [72][62][52][25][73][26]
Holding and Implications
APPLICATION FOR LEAVE TO APPEAL DISMISSED. The court ordered that, if leapfrog leave were granted by the Supreme Court, the costs of the leave application would be costs in that appeal; otherwise, there would be no order as to those costs. [74][75][76][77]
The substantive proceedings also remained dismissed, with no order as to costs, and the orders were to be perfected as the final order of the High Court. [78][79][80][81]
The direct effect was that the permission remained in place and no further High Court appeal proceeded. The opinion applied existing principles concerning leave to appeal and did not state that it created a new precedent.
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