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Wild Ireland Defence CLG v An Coimisiun Pleanala and Ors [No. 2] (Approved) (Rev1)
Factual and Procedural Background
The Applicant challenged the Commission’s decision of 25 February 2025 granting the Notice Party permission for a 13-turbine wind farm and associated infrastructure. The project was supported by an environmental impact assessment report, appropriate-assessment screening and a Natura impact statement. [1][2][3][4]
Site-specific conservation objectives for the Gearagh SPA were published only on 25 April 2025. In an earlier judgment, the Court granted, by consent, a declaration concerning the State respondents’ failure to have those objectives in place, dismissed the other grounds, and reserved the remaining issue concerning whether the Commission’s appropriate assessment required certiorari. [5][6]
This judgment determined that remaining issue following the second module hearing. [7][8]
Legal Issues Presented
- Whether the Commission’s appropriate assessment, conducted before publication of site-specific conservation objectives for the Gearagh SPA, required certiorari. [9][10]
- Whether the Applicant was entitled to a declaration recording the resulting legal error. [11][12]
- Whether a further reference to the Court of Justice of the European Union was necessary. [13][14]
- What consequential orders, including costs orders, should be made. [15][16]
Arguments of the Parties
Applicant’s Arguments
- The Applicant relied on the Court of Justice’s ruling in Knocknamona, submitting that prior site-specific conservation objectives were a legal prerequisite to a valid appropriate assessment. [17][18]
- It argued that there was no scope for harmless error where the assessment was conducted without those objectives and that certiorari should follow. [19][20]
- It contended that accepting the Notice Party’s evidence would improperly require the Court to conduct its own appropriate assessment. [21][22]
Commission’s Arguments
- The Commission accepted that the appropriate assessment involved legal error but argued that the error had no demonstrated ecological or procedural consequence. [23][24]
- It relied on uncontested expert evidence that the later-published objectives would not have altered the assessment, mitigation or conclusion that there were no adverse effects on the Gearagh SPA. [25][26]
- It submitted that discretion should therefore be exercised against both certiorari and declaratory relief. [27][28]
Notice Party’s Arguments
- The Notice Party argued that the updated Natura impact statement demonstrated that the publication of the objectives would not have changed the assessment’s conclusions. [29][30]
- It relied on the doctrine of harmless error, proportionality, the public interest in renewable-energy infrastructure and the absence of any fault on its part. [31][23]
State Respondents’ Position
The opinion records the State respondents’ position only as “[…]”. [17]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| European Central Bank v Crédit lyonnais | Judicial restraint and institutional balance. | The Court used the principle to explain why judicial review does not automatically replace administrative decision-making. [32][33] |
| Knocknamona, Joined Cases C-27/25 and C-256/25 | A valid appropriate assessment cannot be carried out without prior site-specific conservation objectives. | The Court accepted that the Commission committed legal error by assessing the Gearagh SPA without those objectives. [34][35][9][36] |
| Amariei v. Chief Appeals Officer | Judicial review concerns legality rather than merits; discretion is governed by established principles. | The Court applied those principles in refusing automatic certiorari. [37][38][39][40] |
| Cahill v. Sutton; Mohan v. Ireland and the Attorney General; Odum v. Minister for Justice | Relief should not be granted for academic or hypothetical issues. | The Court considered whether quashing the decision would have practical value. [41] |
| Coolglass Wind Farm Ltd v. An Coimisiún Pleanála | Material supporting a challenge must generally have been put before the decision-maker; even a vires error does not necessarily require quashing. | The Court treated the Applicant’s failure to raise the point during the planning process as relevant to discretion. [42][43][44] |
| Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála | Applicants are confined to their pleadings and complex EU-law arguments must be clearly pleaded. | The Court considered the scope and timing of the Applicant’s case. [45][38] |
| Altrip, C-72/12 | A decision need not be quashed for procedural error where the court can exclude a reasonable possibility that the outcome would have differed. | The Court held that this harmless-error doctrine applied and that the Notice Party’s evidence could be considered. [46][47][48][49] |
| Carrownagowan Concern Group v. An Bord Pleanála | Not every decision-maker error requires quashing; harmless error is recognised in Irish law. | The Court relied on the uncontested evidence that the missing objectives made no difference. [46][50][47] |
| O’Donnell v Dublin City Council | Harmless error reflects the established discretionary question of whether a breach caused prejudice. | The Court treated the error as immaterial on the evidence. [30][21] |
| R. (on the application of Champion) v. North Norfolk District Council | The court may determine whether an environmental error would have affected the outcome. | The Court used the case to support assessment of the counterfactual effect of the error. [46][51][52] |
| Commission v Ireland (Derrybrien Wind Farm) | Where an EU-law error materially affects the outcome, certiorari will ordinarily be required. | The Court distinguished that situation because no material effect was established here. [53] |
| R (Bradbury) v Brecon Beacons National Park Authority | A permission may stand where the decision would not substantially have differed despite the error. | The Court considered this reasoning consistent with its conclusion. [54][55] |
| Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA | No reference is required where the issue is acte clair or acte éclairé. | The Court refused a further reference because the relevant legal principles were settled and no real doubt was shown. [56][57][58][59] |
| B. v. Child & Family Agency & Ors. | Declarations require a good reason, a real and substantial issue, and a party with a real interest in opposing them. | The Court found the unusual circumstances justified a declaration concerning the specific error. [12][60][61] |
Court's Reasoning and Analysis
The Court first identified an agreed legal error: the Commission conducted an appropriate assessment for the Gearagh SPA before the site-specific conservation objectives had been adopted. [9][36]
That error did not automatically require certiorari. Judicial review is discretionary, and the relevant question was whether the opposing parties established that the error was harmless and whether the circumstances made quashing proportionate. [62][40][63]
The Notice Party produced an updated Natura impact statement and expert evidence concluding that, with the proposed mitigation, the published objectives would not have altered the impact prediction or conclusion that the Gearagh SPA would not be adversely affected. The Applicant produced no evidence directed to that SPA capable of contradicting this material. [21][64][65]
The Court therefore found that the opposing parties had discharged the burden of showing that the error had no material effect. The Applicant’s arguments that the error was “jurisdictional” or that harmless error was unavailable were rejected as inconsistent with the settled authorities. [22][66][67]
Additional discretionary factors supported refusal of certiorari: the Applicant had not raised the point during the planning process; renewable-energy infrastructure engaged significant public and legal interests; quashing would disproportionately affect the Notice Party; and the project had already experienced substantial delay. [68][69]
The Court nevertheless considered a declaration appropriate because the error was a distinct decision-level error, different from the earlier State-level error, and recording it produced sufficient public benefit in the unusual circumstances. [60][70]
A further CJEU reference was refused. The Court held that Knocknamona did not address harmless error or discretionary relief, that Altrip remained applicable, and that no demonstrated legal doubt or properly arising issue required referral. [59][71][72]
Holding and Implications
CERTIORARI REFUSED. The proceedings were dismissed insofar as they sought to quash the Commission’s permission. [73][74]
The Court perfected declarations that the State respondents had failed to put site-specific conservation objectives for the Gearagh SPA in place before 25 April 2025, and that, in those circumstances, the Commission contravened Article 6(3) by conducting the appropriate assessment without those objectives. [75][76]
The Applicant received specified costs relating to the declarations; otherwise, there was no order as to costs. [77][16]
The direct consequence was that the planning permission remained in force despite the identified legal error. The decision applied existing principles on discretion and harmless error rather than creating a new precedent. [78][79]
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