IEHC 85 — IEHC 85 — High Court

THE HIGH COURT PLANNING & ENVIRONMENT [2026] IEHC 85 Record No: 2025/ 1063 JR

IN THE MATTER OF THE LOCAL GOVERNMENT (NO. 2) ACT, HOUSING ACT, 1966 AND THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED) AND IN THE MATTER OF GALWAY COUNTY COUNCIL (CONNEMARA GREENWAY PROJECT – CLIFDEN TO OUGHTERARD COUNTY GALWAY) COMPULSORY PURCHASE ORDER NO. 2/2024

Between/

OLIVER JOYCE

Applicant

and

AN COIMISIÚN PLEANÁLA

Respondent

and

GALWAY COUNTY COUNCIL

Notice Party

JUDGMENT of Ms. Justice Emily Farrell delivered the 16th February 2026

Introduction 1. Planning consent was granted under section 175 of the Planning and Development Act, 2000 by An Coimisiún Pleanála (then called An Bord Pleanála) for the Connemara Greenway Project – Oughterard to Clifden on 8th March 2013 (reference 07.JA0033). The Greenway will be approximately 52 kms long and, as of the date of the Report prepared by the Inspector for the CPO decision, 14.75km of the Greenway had been constructed and 6.5km were under construction.

1 2. The Applicant owns lands near Clifden, Co. Galway which include a segment of the Greenway route and which have been in his family’s ownership since the 1940s. The lands are part of the old railway bed of the Galway to Clifden rail line. The lands the subject of these proceedings are between the part of the Greenway that has been constructed and that which is under construction.

3. An Environmental Impact Assessment Report and Natura Impact Statement were included in the application for planning consent. When the planning consent was granted, there was no objection to the Connemara Greenway Project traversing the Applicant’s lands. The Applicant describes that consent as having been made on a permissive basis.

4. Galway County Council made a compulsory purchase order (‘CPO’) on 9th July 2024 in respect of a 6.75km strip of land, which is stated to be required for the Connemara Greenway Project connecting Oughterard with Clifden. These lands include a strip of land which runs through the lands owned by the Applicant. The CPO was affirmed by An Coimisiún Pleanála on 16th May 2025 (ABP 320230-24), having held an oral hearing. The letter of 4th June 2025 from the Commission is to be read with the Order of 16th May 2025, as that Order contained a clerical error.

5. The Applicant participated in the compulsory purchase process, as the legal representative of the late Mary Joyce.

6. Leave to apply for judicial review was granted to challenge the Commission decision to affirm the CPO on the grounds set out at paragraph E of the Statement of Grounds filed on 10th July 2025.

7. The grounds on which the Applicant seeks to impugn the CPO include the contention that the EIA Directive and/or the Habitats Directive apply to the decision to confirm the CPO as, he contends, it is part of the planning consent. The Applicant contends that the Commission was not entitled to rely on an EIAR or NIS prepared for the scheme authorised in 2013 as that scheme is fundamentally different to the current scheme as it was based on permissive access, rather than compulsory acquisition of lands.

8. The Inspector stated, at §4.1.3 that “The planning consent for the Greenway addressed the relevant planning and environmental considerations arising.” It is not in dispute that a fresh

2 EIAR and NIS were not before the Commission, and that the Commission did not carry out AA screening or a preliminary examination as part of the CPO process.

9. The Applicant contends that a fresh EIA and NIS were required as he contends that the scheme the subject of the CPO is fundamentally different to the scheme for which planning consent has been granted. He submits that as the use of the lands was assessed for those purposes on the basis that the lands would not be compulsorily acquired, severance of the Applicant’s lands was not proposed, and as a result, the environmental impacts of the scheme will be fundamentally different.

10. Leave to apply for judicial review was granted on 21st July 2025 to seek the reliefs at paragraphs D (1) – (7) of the Statement of Grounds on the grounds set out at paragraph E. The Applicant seeks an order declaring that costs protection applies in respect of these proceedings.

11. Opposition papers have not yet been filed, although it seems clear that the Respondent and Notice Party do intend to oppose the substantive application.

Application for Costs Protection 12. The application before the court is the Applicant’s application for a declaration that he is entitled to costs protection. The Notice of Motion, issued on 23rd July 2025, seeks orders including a declaration that “the protective costs provisions of Section 50B of the Planning and Development Act, 2000, as amended and/or Section 3 of the Environment (Miscellaneous Provisions) Act, 2011 and/or Order 99 and/or Section 169 of the Legal Services Regulation Act, 2015 as interpreted in the light of Article 9 of the Aarhus Convention apply to the above-entitled proceedings.” However, in the submissions filed by the Applicant and made in support of this application, and the Statement of Case, reliance was placed solely on section 50B of the 2000 Act.

13. The Applicant contends that the CPO relates to a scheme which is fundamentally different to that which for which section 175 consent was granted in 2013, the difference being the compulsory rather than permissive nature of the scheme. The Applicant also submits that the fact of the division of the land is also material, and that the fencing and access arrangements which will be required are materially different. It is submitted that the CPO

3 forms part of the development consent, as in King v. An Bord Pleanála [2024] IEHC 6, and accordingly section 50B applies. As a result, the Applicant submits, at least preliminary examination or EIA screening and Stage I screening under the Habitats Directive are required.

14. The Commission and Galway County Council submit that the CPO simply follows and gives effect to the 2013 development consent and is neither a development consent nor part of a multi-stage development consent procedure. The Commission, and the Council rely on Clancy v. An Bord Pleanála (No.2) [2023] IEHC 464 and Clancy v. An Bord Pleanála (No.3) [2025] IEHC 528. The Council also submits that the decision to affirm the CPO was not made pursuant to a statutory provision which gives effect to any of the EU legislation listed in section 50B, which is not engaged, nor did that decision involve issues of EU environmental law.

15. Section 50B applies to judicial review proceedings in which challenge, inter alia, a decision made “pursuant to a statutory provision which gives effect to – “(I) a provision of the Environmental Impact Assessment Directive (within the meaning of the Planning and Development Act 2024) to which, by virtue of paragraph 1 of Article 11 of that Directive, the said Article 11 is subject,

(II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment,

(III) a provision of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 201020 on industrial emissions (integrated pollution prevention and control) to which, by virtue of paragraph 1 of Article 25 of that Directive, Article 24 of that Directive is subject, or

(IV) paragraph 3 or 4 of Article 6 of the Habitats Directive (within the meaning of the Planning and Development Act 2024)”

4 16. The Commission and Council agree that costs protection applies in respect of this application.

Costs Protection Principles 17. The parties agree that Heather Hill Management Company v. An Bord Pleanála [2024] 2 I.R. 222; [2022] 2 I.L.R.M. 313; [2022] IESC 43 is the leading authority on costs protection. They also rely on King v. An Bord Pleanála [2024] IEHC 6 and Clancy v. An Bord Pleanála (No. 1) [2023] IEHC 233, Clancy v. An Bord Pleanála (No. 2) [2023] IEHC 464 and Clancy v. An Bord Pleanála (No. 3) [2025] IEHC 538. The Applicant also relies on the judgment of Simons J. in An Taisce v. Aquaculture Licences Appeals Board [2024] IEHC 60, in which an extension of time to institute proceedings was refused.

18. An applicant who satisfies the following three conditions is entitled to benefit from costs protection under section 50B: (a) the proceedings comprise an application for judicial review or for leave to seek judicial review, (b) the decision of which judicial review is sought is made pursuant to a statutory provision, and (c) the statutory provision is one which gives effect to one of four named EU Directives.

19. As was clarified in Heather Hill, once these conditions are satisfied, costs protection applies to the entirety of the proceedings. It is not necessary that the grounds relied upon involve issues of EU law: King v. An Bord Pleanála (§39).

20. Conditions (a) and (b) are satisfied in this case: that is not in dispute. Both the Environmental Impact Assessment Directive (Directive 2011/92/EU) and the Habitats Directive (Directive 92/43/EEC) are listed. The only question is whether the decision to confirm the CPO was made pursuant to a statutory provision which gives effect to one of the four EU Directives named in section 50B.

The effect of the CPO 21. Approval for the construction of the Greenway was granted by the Commission in 2013. That decision has not been impugned. The Applicant submits that approval was granted for

5 a development which was described as permissive – he submits that the EIAR and NIS were prepared on the basis that there would be no objection to the creation of a public right of way over the lands utilised for the Greenway. The only physical difference relied upon by the Applicant was that he submitted that fencing, or different fencing, would be required to separate the acquired lands from those retained by him.

22. The Applicant submits that there has been a fundamental modification in the scheme due to the compulsory acquisition of the lands, rather than the permissive scheme envisaged in 2013. For this reason, he contends that the CPO is part of the development consent process and submits that following King, EIA is required, as is AA screening, at a minimum. The Commission and Council submit that the instant case is indistinguishable from Clancy, as the CPO simply gives effect to the Greenway, which scheme was approved in 2013.

23. There appear to be two possible arguments as to how to approach the question of costs protection in a situation such as here. Only the first was actually made, but I will consider the second for completeness: (1) By asking whether the impugned decision of the Commission amounted to a development consent, or was part of a multi-stage development consent, and if so, whether that gives rise to a right to costs protection (2) If not, by asking whether the Commission’s decision was made under a statutory provision which gives effect to one of the four Directives identified in section 50B.

Approach 1 – whether the CPO was a development consent or part of a multi-stage consent 24. The lands the subject of the CPO are included in the lands authorised for construction of the Greenway in 2013. At §12.1.8 of his Report, the Inspector noted that “the lands to be acquired are in accordance with the route and consistent with the consent approved by the Board under Board reference PL/07 JA0033 in 2013.” At §10.1.6 it was stated that “the extent of the land that would be acquired under the CPO is determined by the specifications of the proposed greenway layout design and its associated construction works. I am satisfied that the land proposed to be acquired by the Council is required to accommodate the completion of these sections of the Connemara Greenway Route…”

6 25. The Applicant submits that there are two material differences between the development authorised in 2013 and the scheme which he submits the CPO will give effect to. He submits, firstly, that the issue of compulsory acquisition was not addressed in the EIAR and the NIS and that both were based on permissive access, as was the authorisation granted. Secondly, it is submitted that the type of fencing envisaged is different to that which was authorised by the Order made in 2013, and that as a result, a new EIAR and NIS are required. During the hearing it was accepted that, had there been agreement between the Applicant and the Council that the type of fencing currently envisaged would be erected, it would be permitted by the 2013 authorisation. However, the Applicant states that his consent to the erection of such fencing would never have been forthcoming.

26. At §1.6 of the Inspector’s Report, which was opened by the Applicant, the Report prepared for the 2013 authorisation was referred to. The Inspector stated: “The Inspector outlined within Section 2 of his report that the ‘Greenway would be developed as a permissive trail, and that in the event that agreement is not reached with landowners, the use of Compulsory Purchase Order (CPO) powers or the establishment of a public right of way along the route maybe examined at a later stage in order to proceed with the development’.” (emphasis added)

27. The Applicant relies on the statement at §7.3.2 of the Inspector’s Report, that “The 2013 consent permitted by the Board was proposed and approved on the basis that the Greenway would be developed on a permissive access basis and not to be acquired under CPO powers, which is entirely different.” However, I accept the submission of the Council that the Inspector had recited the submission made by another objector; the Inspector made no such finding.

28. I am satisfied that the scheme as authorised in 2013 contemplated compulsory purchase if the landowners did not consent to the works authorised by the Order of 8th March 2013. Even if I am incorrect in finding that the development authorised in 2013 was not confined to a permissive scheme, the change in ownership from the Applicant to the Council, albeit compulsorily, is not a matter to which EIA, or AA applies. The Court of Justice stated in C- 420/20 Leth that environmental impact assessment under the EIA Directive (then Directive 85/337) does not include an assessment of the effects of the project on the value of material assets. (§48)

7 29. While the Applicant avers that the type of the fencing which will be erected is different to that authorised in 2013, that is not evident from the materials before the court, which include the Board Order, the EIAR and unchallenged statements of the Commission’s Inspector in his report on the CPO dated 31st March 2025. It is clear therefrom, that the possibility of the erection of fencing along the entire route, was considered in the process which led to the 2013 authorisation. It is also clear that there was flexibility as to the type of the fencing which would be erected.

30. At §4.2.2 of the Inspector’s Report, reference is made to the Brief of Evidence (which was before the Commission) and it is stated: “Details of fencing and gateway access along the Greenway are provided within Appendix B of AMJ’s BoE. A 1.2 m high post and rail timber fence or other appropriate boundary fencing on each side of the Greenway, including installation of stock proof fencing with a double barbed wire layer above sheep wire fencing, where appropriate.”

31. It was submitted on behalf of the Council, which has not filed an affidavit in response to this application, that its stated position remains that noted at §6.3.3 of the EIAR i.e. “It will be necessary to fence both sides of the Greenway where landowners require it. Fencing will not be provided where the landowner specifically requests this to be the case. At areas where livestock need to be moved there are a number of different options to enable farmers to move livestock in a safe manner both for the stock and for Greenway users. Below are a number of different options for cattle stops (Image 6.3 and 6.4), fencing (Figures 6.4 and 6.5) and cattle grid detail (Figure 6.6) which is dependent on the different needs of each farmer.

It is envisaged that fencing where required alongside the proposed Greenway will be the first item to be dealt with by a contractor to establish the site boundaries.” Figure 6.4 in the EIAR refers to mesh type or barbed wire fencing where required.

32. Fencing authorised by the 2013 development consent includes fencing of the type which the Applicant contends will be erected if the CPO is confirmed. This was accepted by the Applicant in response to a question by the court – counsel accepted that the fencing which is proposed to be erected could be erected under the 2013 authorisation if the Applicant and the Council agreed to it, although the Applicant does not agree. Therefore, whilst the fencing

8 may not be what was anticipated by the Applicant, because he would not have agreed to it, the CPO has not altered the nature of the fencing authorised in 2013. The width of the land to be compulsorily acquired is slightly wider that the width of the path which will be used for walking or cycling.

33. The more fundamental difficulty from the Applicant’s perspective is that, unlike King, the development consent for the Greenway was granted in 2013 and the CPO was made to enable the development, which had already been authorised, to proceed. The decision of the Commission to confirm the CPO is neither a development consent, nor is it part of a multi- part development consent. Whilst the project was expected to be carried out on a permissive basis, it was in fact envisaged that the CPO may be required, when the project was authorised in 2013, and the statutory scheme provides for compulsory purchase by a local authority for these purposes. In King, prior to making the application for planning permission, Uisce Éireann proceeded with the CPO process to facilitate the proposed development project. The stated reason for doing so was the concern that Uisce Éireann might lack the requisite interest to seek planning permission without the CPO. The application was made prior to the Planning and Development (Amendment) (No. 2) Regulations 2022, which enables Uisce Éireann apply for planning permission on production of written confirmation of its intention to compulsorily acquire the land for the proposed development.

34. In King, it was held that the Applicant had established a strong case that EIA was required because alternative options for the location of the proposed development would be limited by the CPO. The parameters for the application for permission were set by the CPO, unlike the CPO in Clancy, where the nature and location of the development was described as a ‘done deal’. This basic factual distinction explains why King and Clancy are not in conflict – both judgments addressed the particular facts and the arguments made. Dunne v. Minister for the Environment, Heritage and Local Government [2006] IESC 49; [2007] 1 I.R. 194 was distinguished in King on the basis that the decision maker in Dunne was not empowered to embark on a reconsideration of the environmental issues arising from the underlying development project nor to modify it. As the CJEU has stated in Namur-Est Environnement (at §72), for public participation for the purposes of EIA to be effective, the public should be able to express views on the project concerned and its environmental impact not only in a useful and comprehensive manner, but also at a juncture when all options are open. The

9 issue before the Commission in deciding whether or not to confirm the CPO is whether the lands should be compulsorily acquired for the purposes of carrying out the development authorised by the 2013 Order. As was held to have been the case in Clancy (No. 3), the Commission did not have the power to modify the Greenway when it confirmed the CPO. The sequencing of the planning permission and the CPO is critical to the question whether the CPO is, or is part of, the development consent: King (§60) and Clancy (No. 3) (§60). Insofar as the Applicant may wish to complain about compliance with the EIA Directive and Habitats Directive in the process which led to the grant of development consent for the Greenway, including that portion which is subject to the CPO, the prescribed period for doing so ran from the making of the Order of 8th March 2013.

35. The Applicant sought to distinguish Clancy (No. 2) and Clancy (No. 3) on the grounds that the planning authority had sought and obtained decisions from An Bord Pleanála ruling out the need for EIA and AA, prior to embarking on the Part 8 process. He does not contend that those cases are wrongly decided and should be departed from. In the instant case, in deciding to authorise the Greenway, An Bord Pleanála carried out an environmental impact assessment and concluded that, subject to compliance with the conditions set out in Order of 8th March 2013, the proposed development was not likely to have significant adverse effects on the environment. It also concluded, based on the information available that the proposed development, either individually or in combination with other plans or projects, would not adversely affect the integrity of any European site in view of its conservation objectives.

36. As in Clancy and Dunne, and unlike King and C-504/14 Commission v. Greece, the Commission was not empowered to embark upon a reconsideration of the environmental issues arising from the underlying project nor to modify the development project in deciding whether or not to confirm the CPO. The effect of the Order of 16th May 2025 is to authorise the Council to compulsorily purchase lands to be utilised to carry out development in accordance with a prior unchallenged development consent. As development consent had already been granted and could not be modified by the impugned decision of the Commission, no obligation to carry out an environmental impact assessment, or screening therefor or for AA, arose.

10 37. The argument based on an alleged need for European law assessments due to an alleged modification of the project at CPO stage therefore fails on the facts. The CPO was not a development consent or part of a multi-stage consent process, did not significantly or materially modify the project and did not require EU law assessments.

Approach 2 – whether CPO legislation inherently gives effect to relevant Directives 38. The argument actually advanced by the Applicant was that because the scheme approved in 2013 was fundamentally different to that which is the subject of the CPO, the CPO is development consent, or at least, part of a multi-stage development consent, and as such, costs protection applies. The case was not made that costs protection applies to any decision to confirm a CPO made by the Commission under the 2000 Act. However, for completeness, I will consider it.

39. The fact that the Act may be construed as enabling the Commission to comply with the EIA Directive, or Habitats Directive, if they are required to be applied in a CPO context as King suggests may be the case when a CPO is confirmed prior to the grant of planning permission, does not mean that the provision under which the Commission made the decision to confirm the CPO in this case is “a statutory provision which gives effect to” those Directives. Domestic courts are required to construe national law in conformity with EU law, unless to do so would be read national law contra legem. It is clear from Joined Cases C-397/01 to C-403/01 Bernhard Pfeiffer & Ors v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV European Court Reports 2004 I-08835, ECLI:EU:C:2004:584 (in particular §115 – 119) that the obligation to construe national law in conformity with EU law where possible is not limited to provisions of national law enacted to implement EU law. It does not follow that every provision which may be construed in a compatible way must be regarded as giving effect to EU law. The distinction is important.

40. For this reason, if a situation arises whereby a particular CPO would require assessments under EU law, a decision made by the Commission to confirm a CPO in exercise of the functions transferred by section 214, it may be done in a manner compliant with the obligations of the State under the EIA Directive and Habitats Directive, by invoking the power to seek further information or otherwise. Such a conform ing interpretation does not lead to the conclusion that section 214, or the Acts to which it relates, is a provision enacted

11 to give effect to the obligations of the State under those Directives. Insofar as costs protection would arise in such a situation, it would arise, not under section 50B, but under the obligation to interpret domestic law (including the general costs jurisdiction under Order 99 RSC) in a way which gives effect to the Aarhus Convention, so far as possible. But that is academic for present purposes and any final decision on that can be left to a case where it arises.

41. Therefore, insofar as it may be necessary to go further than deciding whether the impugned decision of the Commission amounted to a development consent, or is part of a multi-stage development consent, which I have found it is not, I do not consider that the Commission’s decision was made under a statutory provision which gives effect to one of the four Directives identified in section 50B.

Conclusion 42. The Applicant maintains that he is entitled to costs protection under section 50B of the 2000 Act because the project for which the CPO of his land was confirmed is fundamentally different from the Greenway scheme authorised by An Bord Pleanála in 2013. In deciding whether or not the confirm the CPO, the Commission was not empowered to alter the Greenway Scheme, nor did it purport to do so. The impugned decision is neither a development consent nor is it part of a multi-stage development consent. It is distinguishable from King in which case Simons J. held the applicant had established a strong case for contending that EIA was required for the CPO.

43. Insofar as the Applicant had claimed an entitlement to costs protection under section 3 of the Environment (Miscellaneous Provisions) Act, 2011 and/or Order 99 and/or section 169 of the Legal Services Regulation Act, 2015 as interpreted in the light of Article 9 of the Aarhus Convention in the Notice of Motion, that claim was not advanced. The application before the court was limited to the contention that the Applicant was entitled to costs protection under section 50B of the Planning and Development Act, 2000 (as amended). That appears to have been a reasonable approach because it is not apparent that anything arises from the other provisions cited that would go much further than section 50B of the 2000 Act in the circumstances of this case.

12 44. The Applicant is not entitled to costs protection in respect of proceedings brought to challenge the decision of the Commission made the 16th May 2025 to confirm the CPO made by Galway County Council in respect of lands including lands owned by him.

Order 45. The application for a declaration that the protective costs provisions of Section 50B of the Planning and Development Act, 2000, as amended, apply to these proceedings is refused.

46. As the Respondent and Notice Party have agreed that costs protection applies to this application, I propose making no order for the costs of this application. Should any party wish to contend that a different order should be made, written submissions (not to exceed 1,500 words) may be filed within two weeks of the date of this judgment.

Emily Farrell

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