Factual and Procedural Background
The Applicant seeks judicial review of the Respondent’s decision to grant the Notice Party a three-year licence for surveys and investigations connected with a proposed offshore wind farm. The survey area is approximately 477 km² in the Irish Sea. [1][2][3][4]
The Applicant challenges the licence principally by reference to the protection afforded to cetaceans, including harbour porpoises, under Article 12 of the Habitats Directive. Leave to apply for judicial review was granted on 11 May 2026. [5][6][7]
An ecological expert retained by the Respondent produced evidence criticising aspects of the licence and supporting documentation. Experts instructed by the Notice Party responded, producing conflicting evidence. The Applicant applied to cross-examine two of those witnesses. [7][8]
Legal Issues Presented
- Whether the Applicant had demonstrated a sufficient conflict in the expert evidence, relevant to a pleaded issue, such that cross-examination was necessary for the fair determination of the judicial review. [9][10][11]
- Whether the proposed cross-examination concerned genuine disputes requiring resolution, rather than legal interpretation, evidential gaps, or a prohibited roving examination. [12][13][11][14]
- Whether the expert evidence, which postdated the decision under review, might be relevant to showing a lacuna in an assessment under Article 12 of the Habitats Directive. [15][16][17]
Arguments of the Parties
Applicant’s Arguments
- The Applicant argued that noise from the proposed surveys would cause displacement of harbour porpoises and that displacement constituted disturbance under Article 12. [18][19]
- Alternatively, the Applicant relied on the interpretation of planning documents by an ordinary member of the public and argued that the alleged effects amounted to disturbance on the established facts. [19][20]
- The Applicant argued that, even if significance were required, the evidence demonstrated significant environmental effects, including potential displacement of harbour porpoises. [20][21]
- The Applicant contended that cross-examination was important to address the alleged significance of the environmental effects and any “harmless error” argument. [22][23][24]
- The Applicant sought broad-ranging cross-examination concerning the disagreements between the experts. [25][26][24]
Notice Party’s Arguments
- The Notice Party argued that many of the Applicant’s grounds concerned questions of law or matters apparent from the decision and underlying papers, rather than issues requiring expert cross-examination. [27][28][29][30][31]
- It contended that the alleged disputes mainly concerned the meaning of disturbance, the interpretation of data, methodology, and inferences, rather than primary facts. [32][11][33]
- It argued that the Applicant had not connected the proposed cross-examination to specific grounds in the statement of grounds. [34][35][36][37]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| RAS Medical Limited v Royal College of Surgeons [2019] 1 IR 63 | A party challenging credibility or reliability must normally cross-examine the witness and give the witness an opportunity to respond. | The Court adopted the principle that cross-examination is required where conflicting evidence on a material issue must be resolved. [38][39][40][41][42] |
| Ethical Farming Ireland v Minister for Agriculture & Ors [2026] IEHC 42 | Addressed cross-examination of factual deponents, while expressly excluding expert evidence. | The Court distinguished the case because the present application concerned expert evidence. [43][44][45] |
| Friends of the Irish Environment and others v Environmental Protection Agency [2026] IEHC 415 | Cross-examination in judicial review is limited to material conflicts requiring resolution; it is not intended to fill evidential gaps or permit roving examination. | The Court relied on this limitation in refusing the Applicant’s wide-ranging application. [12][13][46][14][47][48] |
| Salmon Watch Ireland CLG v Aquaculture Licences Appeals Board [2023] IEHC 129 | Cross-examination is necessary only where facts, or expert opinions, are genuinely disputed and resolution is material. | The principle supported the requirement that any expert conflict be material to the proceedings. [49][50] |
| Hegarty v Commissioner of An Garda Siochana [2021] IECA 328 | Considered the requirements for an order permitting cross-examination. | The Court referred to it through the test requiring a relevant conflict and demonstrating that the issue cannot be justly decided without cross-examination. [9][10] |
| Irish Bank Resolution Corporation Ltd (in special liquidation) v Moran [2013] IEHC 295 | An applicant must demonstrate a probable conflict in the affidavits relevant to an issue and that the issue cannot be justly decided without cross-examination. | The Court treated engagement with the pleaded grounds as essential and found that the Applicant had not done so. [9][10][51][52][36][53] |
| Waddenzee, Case C-127/02 | Cited in relation to appropriate assessment under the Habitats Directive and the admissibility of evidence not before the decision-maker. | The Court noted the authority but did not determine admissibility. [54] |
| Sweetman, Case C-258/11 | Cited in relation to Habitats Directive appropriate assessment. | The Court noted the authority without determining its application to admissibility. [54] |
| Reid (No 1) v An Bord Pleanála [2021] IEHC 230 | Cited concerning appropriate assessment and evidence not before the decision-maker. | The Court noted the authority without deciding admissibility. [54] |
| Environmental Trust Ireland v An Bord Pleanála [2022] IEHC 540 | Cited concerning appropriate assessment and post-decision expert evidence. | The Court noted the authority without deciding admissibility. [54] |
| Foran v An Coimisiún Pleanála [2026] IEHC 23 | Cited concerning appropriate assessment and evidence not before the decision-maker. | The Court noted the authority without deciding admissibility. [54] |
| Hayes v EPA [2024] IECA 162 | A reviewing court does not re-evaluate scientific evidence, but expert evidence may identify an otherwise unapparent gap in an appropriate assessment. | The Court accepted that expert evidence may be appropriate to demonstrate a lacuna, while emphasising that the court must not merely choose between competing experts. [55][56][57][58][59][16][17] |
| XJS [1986] IR 750 | Cited for the proposition that planning documents may be interpreted by reference to how an ordinary member of the public would understand them. | The Applicant relied on this alternative argument; the Court did not decide its merits. [19][20] |
| Carrownagowan [2024] IEHC 300 | Cited in support of the relevance of evidence concerning significance to a possible harmless-error argument. | The Applicant relied on the authority to justify cross-examination, but the Court refused the application on other grounds. [22][23] |
| Commission v France, Case C-383/09 | Cited in the Applicant’s pleaded argument concerning protection of breeding sites and resting places. | The Court noted the pleaded allegation but did not determine its merits. [60][61][62] |
Court's Reasoning and Analysis
The Court distinguished legal disputes from factual or expert disputes. The meaning of “disturbance” under Article 12 was a question of law for the Court, not a matter for expert cross-examination. [63][64][65]
The alleged conflicts largely concerned the interpretation of terms, the data selected, methodology, and predictions or inferences drawn from primary facts. The Court considered that some such expert disagreements could in principle justify cross-examination, provided their resolution was necessary to determine a pleaded ground. [32][11][66][67]
The Court accepted that post-decision expert evidence may exceptionally be relevant to demonstrate a lacuna in an appropriate assessment under the Habitats Directive. However, such evidence should not ordinarily be used simply to challenge the decision-maker’s conclusions or invite the Court to re-evaluate competing scientific evidence. [54][56][57][58][59][16][17]
The Applicant had not analysed the proposed cross-examination by reference to specific grounds in the statement of grounds. The Court considered that several grounds concerned legal questions, the contents of the decision, or matters apparent from the papers, and therefore did not require expert cross-examination. [36][37][27][28][29][30][31][68][69]
The Court also considered it uncertain whether the issues connected with the expert evidence would arise at all, because the Applicant’s case relied on contingent fallback arguments and admissibility had not been determined. [70][71][72]
Finally, the proposed examination was expressly broad-ranging and directed at almost every disagreement between the experts. The Court considered that approach inconsistent with the prohibition on roving cross-examination. [26][73][14]
Holding and Implications
The application for cross-examination was refused. [74]
The Applicant failed to demonstrate, by reference to a specific pleaded ground, that cross-examination was necessary to resolve a material issue. [53]
The trial judge may revisit the issue if disputed expert evidence later becomes crucial to a pleaded issue requiring determination. [48] No broader precedent was established beyond applying the existing principles governing cross-examination in judicial review.