IEHC 437 — IEHC 437 — High Court

APPROVED [2026] IEHC 437

THE HIGH COURT JUDICIAL REVIEW PLANNING AND ENVIRONMENT 2025/1277JR

IN THE MATTER OF SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000 AND IN THE MATTER OF A DETERMINATION PURSUANT TO SECTION 51 OF THE ROADS ACT, 1993 AND IN THE MATTER OF PART 9 OF THE PLANNING AND DEVELOPMENT ACT, 2024

BETWEEN

JOHN ROGERS

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

DEFENDANT

AND

MEATH COUNTY COUNCIL

NOTICE PARTY

JUDGMENT of Mr. Justice Nolan delivered on the 3rd day of July 2026 Introduction

1. The Applicant brought a challenge to the Decision of the Respondent, An Coimisiún

Pleanála (“the Commission”), dated 27 June 2025, to grant approval to the Notice Party, Meath

County Council, (“the Council”) for the N2 Slane Bypass and Public Realm Enhancement

Scheme pursuant to section 51 of the Roads Act, 1993.

2. The Applicant’s central argument was that the Commission had failed to ensure that it

had, or had access as necessary to, sufficient expertise to examine the Environmental Impact

Assessment Report, (“EIAR”) contrary to Article (5)(3)(b) of Directive 2011/92/EU, as

implemented by section 51(2A) of the Roads Act 1993.

3. I delivered judgment on 28 April 2026, dismissing the application for judicial review,

but with some reservations.

4. This is the Applicant’s application seeking a certificate for leave to appeal to the Court

of Appeal from the decision of the High Court to dismiss the application for judicial review,

pursuant to section 50A(7) of the Planning and Development Act (“2000 Act”).

APPROPRIATE TEST

5. Subsection 50A(7) of the 2000 Act provides as follows:

“The determination of the Court of an application for section 50 leave or of an

application for judicial review on foot of such leave shall be final and no appeal shall

lie from the decision of the Court to the Supreme Court in either case save with leave

of the Court which leave shall only be granted where the Court certifies that its decision

involves a point of law of exceptional public importance and that it is desirable in the

public interest that an appeal should be taken to the Supreme Court.” 6. By virtue of section 75 of the Court of Appeal Act 2014, references to the Supreme

Court in section 50A(7) of the 2000 Act are to be construed as a reference to the Court of

Appeal.

7. For a party to obtain leave to appeal to the Court of Appeal, the High Court must be

satisfied and certify that its decision involves both: a point of law of exceptional public

importance; and that it is desirable in the public interest that an appeal should be taken.

8. The principles applicable to an application for leave to appeal have been elaborated on

numerous occasions in caselaw and recently stated by Humphreys J. in Rural Residents Wind

Aware & Environmental Group & Ors -v- ACP [2026] IEHC 301. He noted that the statutory

criteria for leave to appeal are familiar, with some of the major elements required for the grant

of leave to appeal being as follows:

(i) the point must properly arise (Concerned Residents of Treascon and

Clondoolusk v An Bord Pleanála & Ors [2024] IESC 28),

(ii) the point must be one of law (Leech v An Bord Pleanála (also referred to herein

as “ABP”) [2025] IEHC 157),

(iii) the point of law must be of public importance (Patrick McCaffrey & Sons Ltd v

ABP [2024] IESCDET 145),

(iv) the public importance must be exceptional, and

(v) an appeal must be in the public interest (Dunnes Stores v ABP [2015] IEHC

387).

9. As noted by Holland J. in Monkstown Road Residents Association v An Bord Pleanála

[2023] IEHC 9, para. 5, the starting point of the application of the well-established principles

of law applicable in an application for a certificate of leave to appeal has been identified by

Barniville J. in Cork Harbour Alliance for a Safe Environment v An Bord Pleanála [2022]

IEHC 231, at para. 32(1) as follows:- “The clear intention of the Oireachtas in enacting s.50A(7) (and its statutory

predecessors) was that, in most cases, the decision of the High Court on an application

for leave to seek Judicial Review in respect of a planning decision or on an application

for judicial review of such a decision should be final and should not be the subject of

an appeal”

10. It is important to note that the Court is not concerned with the strength of the point

raised, only that it arises from the judgment, is a point of exceptional public importance, that it

is desirable in the public interest that an appeal should be taken and that it could be

determinative of the case. (emphasis added)

The Judgment

11. Bearing in mind that test, the starting point for consideration is my judgment. At the

outset, I noted that the bridge across the River Boyne at Slane Village has for years been very

dangerous and that there had been many attempts to remediate the problem but without success.

At para. 56, I found that the obligations arising under the Directive are autonomous obligations,

deriving from the Directive and on that basis, there was no obligation on the Applicant to have

raised them during the planning process. That mandatory obligation on the part of the

Commission was to ensure that it has, or has access as necessary to, sufficient expertise to

examine the EIAR (Art. 5(3)b).

12. At para. 59, I said that the issue was how that autonomous obligation interacts with the

duty of candour, in circumstances where the question of the Commission’s expertise was raised

by correspondence from the Applicant’s solicitor, shortly before the hearing, and where that

correspondence was not responded to.

13. I then dealt at some length with the issue of the duty of candour and posed the question

as to how far that duty should go. I identified the present law as stated by Costello J. (as she then was) in Friends of the Irish Environment CLG v. The Government of Ireland & others

[2021] IECA 317 and her observations on the judgment of Barrett J. in Murtagh v. Judge

Kilrane [2017] IEHC 384, I said that the present state of Irish law was that in judicial review

proceedings, a respondent is required to disclose to the court all material in its possession which

is relevant to the decision sought to be impugned, but that duty does not require the disclosure

of material in respect of which the respondent would be entitled to claim privilege in a

discovery process, nor does it amount to a duty of general disclosure.

14. At para. 66, having set out the remaining seven principles in Murtagh, I said as follows:

“If the remaining principles, as outlined by Barrett J. in Murtagh, formed part of Irish law, the

case advanced by the Applicant would be quite different and could, in the circumstances of this

case, potentially shift the onus of proof, to the extent that the Commission’s failure to respond

to the query regarding the expertise of its members and the inspector, could be determinative”.

It is that observation which is the corner stone of the application.

The Questions for Certification

15. The Applicant now seeks a certificate for leave to appeal in respect of the following

points:

a) Does a public body owe a duty of candour as a respondent in judicial review

proceedings concerning compliance with an autonomous EU law obligation to disclose

the expertise it has or has access to when that point is a properly pleaded issue in dispute

in the proceedings?

b) Does the presumption of validity of the decision of the Commission apply when the

issue in dispute in the proceedings is a jurisdictional requirement imposed by Article

5(3)(b) of Directive 2011/92/EU, as amended? c) Where the Court has judicial doubt as to compliance with an express EU law

requirement which forms a jurisdictional condition, can it allow the decision to stand?

d) Can adverse inferences be drawn where information uniquely within the possession of

a public body respondent is refused or withheld in judicial review proceedings.

The Applicant’s Submissions

16. Mr. Cush SC for the Applicant says, that since I accepted that the obligation under

Article 5(3)(b) was an “autonomous obligation” imposed on the Respondent was properly

pleaded, the sufficiency of the Commission’s expertise was an issue to be determined.

17. He identified the passage in the judgment where I said that the question was whether

the Respondent could remain silent and rely solely upon presumptions, where the existence of

the requisite expertise lies peculiarly within its knowledge, where the EU obligation is imposed

directly upon it.

18. He said that I had noted that the parameters of the duty of candour remain unsettled in

Irish law and brought me to para. 66 of the judgment, where I said that if the principles outlined

by Barrett J. applied, that could potentially shift the onus of proof and therefore could be

determinative. He says that, if the duty of candour is extended in that way — a possibility

contemplated, but not decided, by the Court of Appeal — that would be a highly important

proposition of law. He submits that it is of exceptional public importance due to its breadth and

potential impact in judicial review applications. He relies on the statement in Monkstown that

“[t]he requirements of exceptional public importance and that an appeal be desirable in the

public interest are cumulative.”

19. He says that it is clearly in the public interest, given its importance particularly where

the development is located adjacent to two areas of special conservation interest, which would be irreversible against the background where I expressed doubt as to whether the Commission

had the requisite expertise.

The Commission and the Council’s Submissions

20. Mr. Valentine SC, for the Commission, argues that the High Court’s decision turned on

the particular facts of the case. He accepts that such a duty exists, but there was no breach

because the Applicant only raised concerns about the Commission’s expertise two days before

the hearing and had not used the available procedures earlier to obtain the necessary evidence.

He submits that the Applicant still bears the burden of proving its judicial review and cannot

simply make allegations in its pleadings and expect the Commission to provide the evidence.

21. Mr. Keane SC, for the Council, similarly submits that the proposed appeal raises no

issue of exceptional public importance and is inconsistent with the purpose of section 50A(7),

which promotes certainty, finality, and speedy resolution in planning judicial reviews. He

argues that the expertise issue was raised too late, was not properly supported by evidence, and

did not alter the normal burden of proof on the Applicant. He also submits that granting an

appeal would not serve the public interest, as it would further delay the Slane Bypass project,

with all its obvious public safety and transport benefits, something which I observed in the

judgment.

Discussion

22. As noted above, the starting point is my judgment. There is no doubt that I was troubled

about the issue of the duty of candour, which was raised very late in the day and was not part

of the pleadings or the written submissions. Nonetheless, it has become the focus of much

debate in the case. 23. I decided the case on established legal principles, as the law now stands. As I said in

the judgment at para. 66, if the remaining parts of the principles, as outlined by Barrett J. in

Murtagh, formed part of Irish law, the case advanced by the Applicant would be quite different

and could – and I emphasise could – in the circumstances of this case, potentially shift the onus

of proof, to the extent that the Commission’s failure to respond to the query regarding the

expertise of its members and the inspector be determinative.

24. However, as the caselaw makes clear, it is not for me to determine the strength of that

argument, only to see if it arises from the judgment and is a point of law of exceptional public

importance; and that it is desirable in the public interest that an appeal should be taken. In

Monkstown, Holland J. noted that "...the Court should not concern itself with the merits,

strength or weakness of the parties' arguments on the point or prospects of success on any

appeal."

25. If the law was as set out in Murtagh, there is little doubt that it would be a matter of

exceptional public importance, transcending the facts of the case, affecting a whole range of

judicial review proceedings. Indeed, it would be groundbreaking, as I observed at para 76.

26. There is no doubt that the jurisdiction to grant leave is to be exercised sparingly,

nonetheless, I accepted that the obligation under Article 5(3)(b), is an “autonomous obligation”

on the Respondent, was properly pleaded and that the question of the sufficiency of the

expertise on the part of the Commission was an issue to be determined.

27. I am satisfied that taking the judgment as a whole and reflecting a correct understanding

of it, that at least one if not two of the points or questions raised, clearly arise from it.

28. It is clear from the caselaw particularly Friends of the Irish Environment CLG; Murtagh

and Elsharkawy v The Minister for Transport [2024] IEAC 258, that the parameters of the duty

of candour are not yet settled in Irish law. 29. On one view, the issue may well be determinative of the case. That is another factor in

favour of certification, based on the guidance provided in Monkstown, particularly where the

issue concerns compliance with an autonomous EU law obligation imposed directly on the

Respondent itself and where the relevant information concerning compliance lies within the

Respondent’s the possession and knowledge of.

30. I note the submissions of both the Commission and the Council that I ultimately decided

that the information was not sought in time. However, no doubt that will be a matter which will

be raised in the Court of Appeal and goes to the merits of the case. That is not a consideration

for me at this point.

31. I reached the decision I did, by reference to the principles governing judicial review

and the presumptions which must guide the Court in its determination, rather than on any

finding as to whether the Commission possessed the requisite expertise required by Article

5(3)(b).

32. It is the interplay between the presumption of validity attaching to administrative

decisions, the allocation of evidential burdens in judicial review proceedings, the duty of

candour in public law proceedings and the requirements of effective judicial protection under

EU environmental law, that leads me to the view that the matter should be considered by the

Court of Appeal.

33. As noted by Clarke J. (as he then was) in Arklow Holidays v An Bord Pleanala & others

[2006] IEHC 15, there is a public interest in the construction of major infrastructure of the

nature of this project and the importance of bringing finality to the questions concerning its

validity. These are factors to be properly considered and weighed against. However, once this

project is up and running, the work done and any effects from it, will be irreversible in an area

of particular world heritage importance. 34. As in all these matters, it is a case of balancing interests. On the one hand public safety

while on the other a potential breach of European law. In my view the delay will not be, in the

overall context, excessive, given the efficiency of the Court of Appeal list management. It

should be noted that at the time of Clarke J’s. observations, the Court of Appeal had not yet

been established.

35. Therefore, taking all matters into consideration, I am satisfied, that the judgment raises

a point of law of exceptional public importance; and that it is desirable in the public interest

that an appeal should be taken.

36. The next issue are the questions posed.

The Questions

37. The first question reads as follows: - Does a public body owe a duty of candour as a

respondent in judicial review proceedings concerning compliance with an autonomous EU law

obligation to disclose the expertise it has or has access to when that point is a properly pleaded

issue in dispute in the proceedings?

38. Mr. Cush said that the first and fourth questions could be linked. I agree with his

suggestion.

39. The second question reads as follows: - Does the presumption of validity of the decision

of the Commission apply when the issue in dispute in the proceedings is a jurisdictional

requirement imposed by Article 5(3)(b) of Directive 2011/92/EU, as amended?

40. Mr. Valentine submits that the answer to the question is plainly yes. He further submits

that the Applicant has failed to engage with the relevant case law or to demonstrate that the

issue raises a point of law of exceptional public importance. Accordingly, the application of

settled law does not provide a proper basis for seeking leave to appeal. 41. Mr. Keane submits that the Applicant has mischaracterised the judgment, in that the

Court accepted that the Commission’s expertise could be a jurisdictional fact, but did not hold

that such facts are exempt from ordinary evidential rules or that the presumption of validity

automatically defeats any challenge. The Court found that presumptions in judicial review can

only be rebutted by evidence, and where the alleged error depends on expert opinion, it must

be supported by expert evidence, which the Applicant failed to provide.

42. He says the Applicant did not challenge the methodology, substance, or expertise

behind the EIAR assessments, but merely complained that the Commission did not appear to

have used external experts in certain areas and that the Applicant is seeking to reframe his

failure to meet the evidential burden as an abstract legal issue about jurisdictional facts and

presumptions.

43. But it seems to me that having decided the matter in principle, it will be for the Court

of Appeal to determine this issue. On that basis I will certify the second question.

44. As regards the third question it seems to me that a court will always have some doubt

in nearly every case it decides, unless the matter is clearcut, which it seldom is. Therefore, I

shall not certify the third question.

45. The fourth question has already been merged with the first question and therefore falls

away as a standalone question.

Conclusion

46. Having considered the detailed written and oral submissions I shall certify the following

two questions: -

Does a public body owe a duty of candour as a respondent in judicial review

proceedings concerning compliance with an autonomous EU law obligation to disclose the expertise it has or has access to when that point is a properly pleaded issue in

dispute and/or the information was requested in the proceedings?

and

Does the presumption of validity of the decision of the Commission apply when the issue

in dispute in the proceedings is a jurisdictional requirement imposed by Article 5(3)(b)

of Directive 2011/92/EU, as amended?

47. I shall put the matter in for making final orders at 15 of July 2026 at 10:30.