IEHC 62 — IEHC 62 — High Court

[2026] IEHC 62 THE HIGH COURT PLANNING & ENVIRONMENT [H.JR.2025.0001080] IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000 AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2024 AND IN THE MATTER OF AN APPLICATION BETWEEN SUSAN MOSS, ANNE HOEK, ANNE LACEY, FRANCIS PRENDERGAST, NED BARRON AND PAUL DAVIS APPLICANTS AND AN COIMISIÚN PLEANÁLA RESPONDENT AND LIGHTSOURCE RENEWABLE ENERGY IRELAND LIMITED NOTICE PARTY

Date of impugned decision: 20 May 2025 Date proceedings commenced: 14 July 2025 Date of main hearing: 13 January 2026 Date draft judgment circulated: 16 January 2026

JUDGMENT of Humphreys J. delivered on Tuesday the 10th day of February 2026 1. The project here was found acceptable by the county council, the inspector and the commission. Multiple decisions over recent years have emphasised that solar farms are not envrionmental impact assessment (EIA) projects (Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024) citing Sweetman v. An Bord Pleanála [2020] IEHC 39 (Unreported, High Court, McDonald J., 31 January 2020), Kavanagh v. An Bord Pleanála [2020] IEHC 259 (Unreported, High Court, O’Moore J., 29 May 2020)). The applicants try to upset that conclusion by a side-wind – because projects like solar farms inevitably require internal access tracks, the applicants characterise those as “roads” in a way that would engage EIA. The applicants are undeterred by the previous rejection of that argument in caselaw, and the question here is whether this or any other argument advanced furnished grounds to quash the permission here. Geographical context 2. The project (https://www.pleanala.ie/en-ie/case/318433) concerns a 10-year planning permission for a solar photovoltaic (PV) energy development. The proposed development consists of a solar PV energy development with associated battery storage compound with a total site area of c. 103.64 ha. to include solar panels mounted on steel support structures, associated cabling and ducting, inverters, transformers, switchgear substations, auxiliary transformer, permanent storage container, monitoring houses, composting toilet, BESS customer substation, battery blocks, BESS inverters, BESS interface cabinets, BESS MV skids, temporary construction compounds, tracks, boundary security fencing and security gates, CCTV, landscaping and ancillary works, with a 40 year operational period. It is proposed that the proposed development will be accessed from three separate access points: site access 1 will be a newly created access point of the L4205 and site access 2 and 3 will utilise two existing access points of an unnamed local road which runs along the northern boundary of the application site, both site access 2 and 3 will require upgrading, all on lands within the townlands of Castlegarden and Cloghscregg, Thomastown, County Kilkenny. Facts 3. Kilkenny County Council (the council) made the Kilkenny City and County Development Plan on 3 September 2021. The plan came into effect on 15 October 2021. 4. On 15 October 2021, the Minister of State at the Department of the Housing, Local Government and Heritage, consequent to a recommendation made to him by the Office of the Planning Regulator under s. 31AM(8) of the Planning and Development Act 2000 (the 2000 Act), notified the council of his intention to issue a direction to the Kilkenny City and County Development Plan 2021-2027 (see https://www.kilkennycoco.ie/eng/services/planning/development-plans/city- and-county-development-plan/adopted-city-and-county-development-plan.html). The final direction has yet to issue. 5. The notice party developer lodged an application for permission with the council on 27 February 2023. 2

6. The application was accompanied by an environmental impact assessment screening report (EIAR) as well as a Natura impact assessment (NIS). Other documents accompanying the application included inter alia a planning statement, noise impact assessment, an ecological appraisal, a biodiversity management plan as well as maps and drawings. 7. In or around April 2023, some of the applicants made submissions in respect of the proposed development, identifying concerns in respect of what was being proposed, and received acknowledgements in respect of those submissions as they related to the proposed development. 8. The council made a request for further information (RFI) on 20 April 2023, and a response to that RFI was submitted on behalf of the developer on 19 September 2023. Two planners’ reports were prepared by officials of the council, dated 20 April and 13 October 2023, respectively, on the planning application. 9. On 11 October 2023, the council’s environment section issued a memorandum stating that it had no objection to the proposed development subject to conditions. 10. On 13 October 2023, the council issued a notification of a decision to grant permission for the proposed development, subject to 25 conditions. 11. A third-party appeal was made to the commission on 9 November 2023 by BPS Planning & Development Consultants on behalf of a number of persons including the applicants. 12. Lightsource submitted a response to the appeal dated 8 December 2023. 13. The council also made a response to the appeal by submission dated 11 December 2023. 14. The commission appointed inspector Liam Bowe to prepare a report and recommendation in respect of the proposed development. 15. On 8 July 2024, a memorandum was prepared by the inspector stating that he considered that the proposed development would require the submission of an EIAR. 16. On 31 July 2024, the commission wrote to the applicants pursuant to s. 132 of the 2000 Act, requiring Lightsource to submit an EIAR within a period of six months. A copy of the s. 132 notice was circulated to all of the parties to the appeal on 1 August 2024. 17. On 27 August 2024, Lightsource responded to the s. 132 notice and set out its view that the proposed development did not require the submission of an EIAR and further submitted that the commission should withdraw the request made in the s. 132 notice. 18. On 4 September 2024, a memorandum was prepared by an executive officer of the commission, which noted that a response had been received from Lightsource and recommended that the provisions of s. 131 of the 2000 Act should not be invoked in respect of the council’s response. Following a recommendation from the inspector (made in two memoranda dated 17 September 2024) to circulate Lightsource’s responses to the s. 132 notice pursuant to s. 131 of the 2000 Act, the submission was circulated to the other parties to the appeal (including the applicants) on 17 September 2024. 19. Thereafter, a submission was made by BPS Planning & Development Consultants on behalf of the applicants in respect of Lightsource’s response to the s. 132 notice dated 10 October 2024. A separate submission was made on behalf of Willem Hoek, who is not a party to these proceedings, dated 10 October 2024. 20. The inspector prepared a report dated 4 December 2024 in respect of the appeal, which recommended that planning permission be granted subject to conditions. 21. The commission’s direction (BD-019181-25) is dated 12 March 2025. 22. By commission order dated 20 May 2025 (ABP-318433-23), the commission granted planning permission for the proposed development, subject to 21 conditions. Procedural history 23. The statement of grounds and verifying affidavit were filed in the Central Office of the High Court on 14 July 2025. 24. On 21 July 2025, Farrell J. granted leave to apply for judicial review, except for core ground 5. 25. On 15 September 2025, a hearing date was fixed for 13 January 2026. 26. On 29 September 2025, the matter was listed at request of parties to discuss an issue with directions. 27. The respondent filed its statement of opposition and verifying affidavit on 23 October 2025. 28. The notice party filed its statement of opposition and verifying affidavit on 30 October 2025. 29. On 1 December 2025, the matter was listed for callover. 30. On Monday 8 December 2025, the matter was listed for mention with new directions to be agreed by Friday 12 December 2025. 31. The applicants’ submissions were filed on 9 December 2025. 32. The respondent’s submissions were filed on 16 December 2025. 33. On 15 December 2025, the matter was listed for callover and papers were in order on that date. 34. The notice party’s submissions were filed on 18 December 2025. 3

35. On 9 January 2026, the applicants indicated that they would not be pursuing core ground 6. 36. On 12 January 2026, a corrective affidavit of Brigitta Lannen, dated 9 January 2026, was filed. 37. The matter was heard on 13 January 2026. Judgment was reserved at the end of that hearing. I would like to record my thanks to all of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have previously sought to make clear, insofar as any points advanced are not being accepted in this or any other given judgment, that is solely to do with the inherent merits of such points and is no reflection on those instructed to convey such points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to all concerned. 38. On 16 January 2026, a draft of the present judgment was sent to the parties to give an opportunity to identify any errors. The rules of engagement in such a situation are that the draft is without prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever content it considers appropriate. 39. Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile in writing within the specified time, and should not be to reargue the substance (submissions to that effect will be disregarded) but are confined to matters such as: (a) informing the court as to whether a formal judgment is required, and if so on what issues; (b) informing the court as to whether a judgment might be oral or written or partly in both modes; (c) any typographical, factual or legal errors in the decision; (d) any redaction of personal information that the party wishes to request; (e) in the event that the court proposes to place pivotal reliance on any authority or material not previously adverted to, as opposed to where such material merely reinforces a point that the court was making in any event, any comment as to why such material should not lead to the proposed conclusion; identifying points that the court proposes to address but that the parties consider it unnecessary to address; (f) requesting the court to decide a point that, while unnecessary to decide, is one the party considers could beneficially be decided; (g) identifying significant procedural, factual or legal points that the party considers that the court was required to address but has not addressed or not provided reasons for; and (h) any other suggestions as to the wording (as opposed to substance) of the decision if the proposed wording causes any significant issue for a party for any identified reason. 40. It is then entirely a matter for the court as to whether to list the matter for mention, or whether to simply give judgment with or without amendment to respond to any such comments or for any other reason that appears appropriate to the court. Any judgment may be given without further notice following the expiry of the specified period, whether comments are made or not. That period will not be extended save in exceptional circumstances. All parties involved are requested to positively confirm to the court the position including if they have no observations on the draft legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a concession which parties can engage with but must do so with immediate dispatch, discipline and focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to elaborate procedures at every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. Health Service Executive [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 39); and still less should the procedure invite the perhaps “serious error, to which lawyers are prone, to approach any such case on the tacit assumption that only procedures which approximate to a criminal trial are fair, and anything which departs from that is somehow dubious” (O’Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780). 41. For the avoidance of doubt, draft judgments are not public domain materials and, while they can be shared between the lawyers concerned and their clients, they are not intended for publication (indeed given their lack of status it is impracticable to refer to them, even in the context of considering such drafts in other litigation, until the judgment is formally issued) or for any other transmission save for the legitimate purposes of the litigation. Therefore anyone with information as to the text, content or proposed outcome of any draft is required not to transmit such information to others save solely by way of private transmission for the legitimate purposes of the litigation and subject to a similar restriction on any recipient (see Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication of draft judgments is in the interests of the administration of justice). The contents of this paragraph 4

constitute an immediately effective direction of the court to the parties and anyone having notice of the draft judgment with effect from the date of circulation of the draft. 42. The mention date to review matters following the foregoing was to be 26 January 2026. The parties did not have any comments on the draft. Relief sought 43. The reliefs sought are as follows: “1. An Order of Certiorari quashing the decision of the Respondent Commission to grant a 10 year planning permission for a development consisting of a Solar PV energy development with associated battery storage compound on a total site area of 103.64 hectares to include solar panels mounted on steel support structures, associated cabling and ducting, inverters, transformers, switch gear, substations, auxiliary transformer, permanent storage container, monitoring houses, composting toilet, BESS customer substation, battery blocks, BESS inverters, BESS interface cabinets, BESS MV skids, temporary construction compounds, tracks, boundary security fencing and associated gates, CCTV landscaping and ancillary works with a 40 year operational period with access from 3 separate access points off the L4205, with two additional access points from an unnamed local road which development is located within the townlands of Castlegarden and Cloghsgregg, Thomastown, Co. Kilkenny and in respect of which a Natura Impact Statement (NIS) was submitted, and which decision bearing An Coimisiún Pleanála reference no. 318433-23 was determined by Order dated the 23rd day of May 2025. 2. Such Declarations of the legal rights and/or legal position of the Applicants and (if and insofar as legally permissible and appropriate) persons similarly situated and/or of the legal duties and/or legal position of the Respondents as the Court considers appropriate. 3. A Stay on the implementation of any of the said development or taking any further steps in respect of the implementation of the said permission to include the implementation of any conditions pending the determination of these proceedings. 4. An Order providing for the costs of the application and, where appropriate, a protective costs Order pursuant to Sections 3, 4 and 7 of the Environmental (Miscellaneous Provisions) Act 2011 and/or Section 50B of the Planning and Development Act 2000 (as amended) and/or Order 99 of the Rules of the Superior Court in respect of the costs of the said application. 5. Interim and/or interlocutory relief. 6. Further and/or other relief. 7. The costs of these proceedings.” Grounds of challenge 44. The core grounds of challenge are as follows: “Domestic Law Grounds 1. The Respondent erred in law that whilst initially having determined that an Environmental Impact Assessment was required on the basis of the design and extent of the roadway servicing the development and on the basis of the plans for the said roads that were submitted with the application and the nature of the proposed roads which comprised ground formation, a terram layer, a geogrid layer, 200mm of hard core compacted stone and 75mm of stone or crushed stone cambered to allow runoff and/or tarmac and where a Notice under Section 132 of the Planning and Development Act 2000 was issued directing than an Environmental Impact Assessment Report be submitted which Notice was based on two separate technical reports and where, without any or any appropriate basis or without any or any appropriate evidence to deal with the original finding, the Respondent decided to proceed to determine the application without the submission of an Environmental Impact Assessment Report. The Respondent, without carrying out an Environmental Impact Assessment, had no or no basis on which basis on which to make the said decision, had no jurisdiction to disapply the Notice issued under Section 132 of the Planning and Development Act, erred in law in its determination that such an Environmental Impact Assessment Report was not required on the basis that it should not proceed with the issue of a Notice under Section 132. The Respondent made the determination without any or any notice to the Applicants or members of the public in respect of the said determination and only after the determination notified the said public and failed to have any regard to the submissions made, and accordingly the decision is contrary to fair procedures, was made without jurisdiction, without any or any Order of the Board withdrawing the Section 132 Notice, without any or any consideration of third party submissions including those of the Applicants, in breach of the principles of audi alteram partum, in breach of fair procedures, and in breach of the right of public participation under the Planning and Development Act and under European Community Law, and in particular Council Directive 2011/92EU, and amounts to an error of law on the face of the record and renders the decision invalid and void. 5

2. The Respondent erred in law in having regard to the provisions of the Kilkenny County Development Plan 2021-2027, reference to which appears on the face of the Record in the Board Direction, the Board Order and in the Inspector’s Report in circumstances where the said plan as had regard to has been published in breach of a Ministerial Directive which directed that certain paragraphs of Chapter 11 be excluded, and in particular Chapter 11.4 and 11.5 of the said plan. In having regard to an invalid document the said decision is ultra vires the Respondent, invalid and void and in particular where the said provisions excluded from the development plan specifically refer to solar farms in respect of both paragraphs to be excluded and accordingly the Respondent acted in excess of jurisdiction, had regard to irrelevant and inappropriate considerations, and had regard to an invalid plan amounting to an error of law on the face of the record and renders the decision in excess of jurisdiction, amounts to an error of law on the face of the record, and renders the decision ultra vires the Respondent and is invalid and void. 3. The Respondent erred in law in accepting an invalid application for the purposes of the Planning and Development Act 2000 and the Planning and Development Regulations 2001 in respect of the public notice published that failed to describe the nature and extent of the proposed development contrary to Articles 17, 18 and 19 of the Planning and Development Regulations 2001 in failing to specify the number of structures including solar panels, inverters, BESS inverter cabinets, BESS MV skids and extent of roads, contrary to the obligations to state the nature and extent of the proposed development and failed to comply with Article 22(1)(b) in respect of the detail of the maps accompanying the application and Article 22(4) in respect of elevations of the said solar panel structures or any or any appropriate details of the other structures to be constructed, and Article 23(1)(a) in respect of features and/or structures in the vicinity of the site, 23(1)(b) in respect of the scale and detail of the said drawings, 23(1)(f) in respect of the dimensions of the drawings. Accordingly the said development amounts to an invalid application for the purposes of the Planning and Development Act and cannot ground any decision in respect of such an application and the Respondent erred in law in failing to consider the said validity issues and erred in law in determining that these are matters for the Planning Authority in the first instance, and accordingly there is an error of law on the face of the record, the decision is made without jurisdiction and is contrary to law and renders the decision invalid and void. European Law Grounds 4. The Respondent erred in law in failing to require a mandatory Environmental Impact Assessment having regard to Class 10(dd) of Schedule 5, Part 2 of the Planning and Development Regulations 2001 (as amended) which provides that private roads which would exceed 2000m in length require a mandatory Environmental Impact Assessment and where application reference no. 318433/23 is a specified development having circa 5.3km of roads comprised of drainage channels, geogrid layers, a subbase, 200mm compacted stone and 75mm stone/tarmac of a width of 3.5m to 4.5m in width, has been classified by the Respondent as a road in the first instance. The Respondent served a Notice requiring the submission of an Environmental Impact Assessment Report with the Notice issued pursuant to Section 132 of the Planning and Development Act 2000, and in failing to require the submission of an Environmental Impact Assessment Report and failing to carry out an Environmental Impact Assessment the Respondent acted contrary to Council Directive 2011/92EU, in breach of its obligations under European Community law, acted ultra vires and without jurisdiction and renders the decision under 318433-24 invalid and void. 5. The Respondent erred in law in having regard to the provisions of the Kilkenny County Development Plan 2021-2027, reference to which appears on the face of the Record in the Board Direction, the Board Order and in the Inspector’s Report in circumstances where the said plan as had regard to has been published in breach of a Ministerial Directive which directed that certain paragraphs of Chapter 11 be excluded, and in particular Chapter 11.4 and 11.5 of the said plan. In having regard to an invalid document the said decision is ultra vires the Respondent, invalid and void and in particular where the said provisions excluded from the development plan specifically refer to solar farms in respect of both paragraphs to be excluded and accordingly the Respondent acted in excess of jurisdiction, had regard to irrelevant and inappropriate considerations, and had regard to an invalid plan amounting to an error of law on the face of the record and renders the decision in excess of jurisdiction, amounts to an error of law on the face of the record, and renders the decision ultra vires the Respondent and is invalid and void. 6. The Respondent erred in law failing to have regard to S.I. No. 648/2024 - European Union Habitats (River Barrow and River Nore Special Area of Conservation 002162) Regulations 2024. The Respondent Board relied on the Natura Impact Statement dated 30/01/2023 and did not have any regard to the said regulations of 2024 which are directly 6

relevant and referable to the lands the subject-matter of this development. Accordingly, the Appropriate Assessment is invalid, void and of no effect, and is contrary to the provisions of Article 6(3) of the Council Directive 92/43EEC.” 45. Leave was refused for core ground 5, and core ground 6 was withdrawn in correspondence. Core ground 2 was formally moved only and no oral submissions were advanced. Core grounds 1 and 4 were taken together in submissions by the applicants. The impugned decision 46. The impugned decision provides as follows: “Decision GRANT permission for the above proposed development in accordance with the said plans and particulars based on the reasons and considerations under and subject to the conditions set out below. Reasons and Considerations In coming to its decision, the Board had regard to the totality of information on the file including the following: (a) The nature, scale and extent of the proposed development, (b) the pattern of development within the area and context of the receiving environment, (c) the national targets for renewable energy contribution to the overall national grid, (d) the national, regional and local policy support for developing renewable energy, in particular: (i) the Board to perform its functions in a manner consistent with the Climate Action Plan 2024 and the Climate Action Plan 2025, (ii) the Board to perform its functions in a manner consistent with the Climate Action and Low Carbon Development (Amendment) Act 2021, (iii) Project Ireland 2040 National Planning Framework (2018), (iv) National Biodiversity Action Plan 2023-2030, (v) National Development Plan 2021-2030, (vi) National Energy Security Framework (April 2022), (vii) National Energy and Climate Action Plan 2021-2030, (viii) Southern Regional Spatial & Economic Strategy, and (ix) Kilkenny City and County Development Plan 2021-2027, (e) the likely significant effects on European sites arising from the proposed development, including the location of the proposed development and the separation distance from the Natura 2000 sites, (f) the likely consequences for the proper planning and sustainable development in the area arising from the proposed development and the relevant provisions of the Kilkenny City and County Development Plan 2021-2027 and objectives and the results of the Strategic Environmental Assessment and Appropriate Assessment of this plan undertaken in accordance with the SEA Directive (2001/42/EC), (g) measures proposed for the construction, operation and decommissioning of the development, (h) the submissions on the file, (i) the documentation submitted with the application and the appeal, including the response to submissions on the appeal, and (j) the report and recommendation of the Inspector. The Board considered that, subject to compliance with the conditions set out below, the proposed development would be in accordance with the provisions of the Kilkenny City and County Development Plan 2021-2027, including Objective 1 1 A, would not have an unacceptable impact on the character of the landscape or on cultural or archaeological heritage, would not seriously injure the visual and residential amenities of the area, would be acceptable in terms of public health, traffic safety and convenience, would not have undue impacts on surrounding land uses, would not have an unacceptable impact on ecology or on any European Site, would not lead to an increased risk of flooding within the site or adjoining lands, and would make a positive contribution to Ireland’s requirements for renewable energy in accordance with national regional and local policy. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area. Appropriate Assessment Screening: The Board noted that the proposed development is not directly connected with, or necessary for the management of a European Site. The Board considered the documents submitted with the application, and all the other relevant submissions on file, and carried out an Appropriate Assessment in relation to the potential effects of the proposed development on designated European sites. The Board agreed with the screening assessment and conclusion 7

carried out in the Inspector’s Report that the River Barrow and River Nore Special Area of Conservation (Site Code 002162) and River Nore Special Protection Area (Site Code 004233) are the only European Sites in respect of which the proposed development has the potential to have a significant effect in view of the Conservation Objectives for those sites and that a Stage 2 Appropriate Assessment is, therefore, required. Appropriate Assessment: Stage 2: The Board considered the Natura Impact Statement, and all the other relevant submissions on file, and carried out an Appropriate Assessment of the implications of the proposed development on the River Nore Special Area of Conservation (Site Code 002162) and River Nore Special Protection Area (Site Code 004233) in view of the sites’ Conservation Objectives. The Board considered that the information before it was sufficient to undertake a complete assessment of all aspects of the proposed development in relation to the sites’ Conservation Objectives using the best scientific knowledge in the field. In completing the assessment, the Board considered, in particular, the following: (i) the site-specific Conservation Objectives for the European Sites, (ii) the likely direct and indirect impacts arising from the proposed development, both individually or in combination with other plans or projects, and (iii) mitigation measures which are included as part of the current proposal, and (iv) the report and recommendation of the Planning Inspector. In completing the Appropriate Assessment, the Board accepted and adopted the Appropriate Assessment carried out in the Inspector’s Report in respect of the potential effects of the proposed development on the aforementioned European Sites. In overall conclusion, the Board was satisfied that the proposed development would not adversely affect the integrity of these European Sites in view of the sites’ Conservation Objectives and that there is no reasonable scientific doubt as to the absence of such effects. Conditions 1 The development shall be carried out and completed in accordance with the plans and particulars lodged with the application submitted to the planning authority and the further plans and particulars submitted on the 19th day of September 2023, except as may otherwise be required in order to comply with the following conditions. Where such conditions require details to be agreed with the planning authority, the developer shall agree such details in writing with the planning authority prior to commencement of development and the development shall be carried out and completed in accordance with the agreed particulars. Reason: In the interest of clarity. 2. The mitigation measures contained in the submitted Natura Impact Statement (NIS), shall be implemented. Reason: To protect the integrity of European Sites. 3. All of the environmental, construction, ecological and heritage-related mitigation measures, as set out in the Planning Report and its associated appendices, Biodiversity Enhancement Action/ Management Plan and the Construction and Environmental Management Plan, and other particulars submitted with the application, shall be implemented in full by the developer, except as may otherwise be required in order to comply with the conditions of this Order. Reason: In the interest of clarity and of the protection of the environment during the construction and operational phases of the development. 4. The period during which the development hereby permitted may be carried out shall be 10 years from the date of this order. Reason: Having regard to the nature of the development, the Board considers it appropriate to specify a period of validity of this permission in excess of five years. 5. (a) The permission shall be for a period of 40 years from the date of the commissioning of the solar array. The solar array and related ancillary structures shall then be removed, and the site reinstated unless, prior to the end of the period, planning permission shall have been granted for their retention for a further period. (b) Prior to commencement of development, a detailed restoration plan, including a timescale for its implementation, providing for the removal of the solar arrays, including all foundations, anchors, CCTV cameras, fencing and site access to a specific timescale, shall be submitted to, and agreed in writing with, the planning authority. (c) On full or partial decommissioning of the solar farm, or if the solar farm ceases operation for a period of more than one year, the solar arrays, including foundations/ anchors, and all associated equipment, shall be dismantled and removed permanently from the site. The site shall be restored in accordance with this plan and all decommissioned structures shall be removed within three months of decommissioning. 8

Reason: To enable the planning authority to review the operation of the solar farm having regard to the circumstances then prevailing, and in the interest of orderly development. 6. This permission shall not be construed as any form of consent or agreement to a connection to the national grid or to the routing or nature of any such connection. Reason: in the interest of clarity. 7. Water supply and drainage arrangements, including the attenuation and disposal of surface water, shall comply with the requirements of the planning authority for such works and services. The developer shall agree such details in writing with the planning authority prior to commencement of development. Reason: In the interest of environmental protection. 8. (a) Prior to the commencement of development pre-commencement surveys for protected plant, animal species and invasive species shall be undertaken at the site and where required the appropriate licence to disturb or interfere with same shall be obtained from the National Parks and Wildlife Service. (b) Any tree or vegetation removal works that are required as part of this development shall be done outside of the bird nesting season from March 1st until August 31st inclusive. Reason: in the interest of wildlife protection. 9. Before construction commences on site, details of the structures of the security fence showing provision for the movement of mammals at regular intervals along the perimeter of the site shall be submitted for prior approval to the planning authority. This shall be facilitated through the provision of mammal access gates designed generally in accordance with standard guidelines for provision of mammal access (NRA 2008). Reason: To allow wildlife to continue to have access across the site, in the interest of biodiversity protection. 10. (a) No additional artificial lighting, beyond that permitted as part of this application, shall be installed or operated on site unless authorised by a prior grant of planning permission. (b) CCTV cameras shall be fixed and angled to face into the site and shall not be directed towards adjoining property or the road. (c) Cables within the site shall be located underground. (d) The power stations, transformers/ inverters, BESS containers and security fencing shall be dark green in colour. Reason: In the interest of clarity and of visual and residential amenity. 11. The developer shall appoint a suitably qualified ecologist to monitor and ensure that all avoidance/mitigation measures relating to the protection of flora and fauna are carried out in accordance with best ecological practice and to liaise with consultants, the site contractor, and the planning authority. A report on the implementation of these measures shall be submitted to the planning authority and retained on file as a matter of public record. Reason: To protect the environmental and natural heritage of the area. 12. Site development and building works shall be carried out only between the hours of 0700 to 1900 Mondays to Fridays inclusive, between 0800 to 1400 hours on Saturdays and not at all on Sundays or public holidays. Deviation from these times will only be allowed in exceptional circumstances where prior written approval has been received from the planning authority. Reason: In order to safeguard the amenities of property in the vicinity. 13. The developer shall facilitate the archaeological appraisal of the site and shall provide for the preservation, recording and protection of archaeological materials or features which may exist within the site. In this regard: (a) The developer shall employ a suitably qualified archaeologist (licensed under the National Monuments Acts) to carry and Archaeological Impact Assessment to include pre-development archaeological testing in areas of proposed ground disturbance and to assess the results and veracity of the results of the geophysical survey that was carried out under Licence number 22R0307. (b) The archaeologist shall submit an Archaeological Impact Assessment report for the written agreement of the planning authority, following consultation with the Department of Housing, Local Government and Heritage, in advance of any site preparation works or groundworks, including site investigation works/ topsoil stripping/ site clearance and/or construction works. The report shall include an archaeological impact statement and mitigation strategy. Where archaeological material is shown to be present, avoidance, preservation in-situ, preservation by record (archaeological excavation) and/or monitoring may be required. (c) Any further archaeological mitigation requirements specified by the planning authority, following consultation with the Department of Housing, Local Government and Heritage shall be complied with by the developer. No site preparation and/or 9

construction works shall be carried out on site until the archaeologist's report has been submitted to and approval to proceed is agreed in writing with the planning authority. (d) The planning authority and the Department of Housing, Local Government and Heritage shall be furnished with a final archaeological investigative works and/or monitoring following the completion of all archaeological work on site and the completion of any necessary post-excavation work. All resulting and associated archaeological costs shall be borne by the developer. (e) The Construction Environment Management Plan (CEMP) shall incorporate all significant findings from any archaeological or cultural heritage constraints relevant to the proposed development and decommissioning. Reason: in order to conserve the archaeological heritage of the area and to secure the preservation in-situ or by record and protection of any archaeological remains that may exist within the site. 14. A finalised Landscape Mitigation Plan and Biodiversity Management Plan for the proposed development, in accordance with that submitted, shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. The site shall be managed in accordance with the agreed plans. These plans shall cover a period of at least five years and shall include details of the arrangements for its implementation. Reason: To ensure the preservation and protection of flora and fauna within the site, and provide for the satisfactory future maintenance of this development in the interest of visual amenity. 15. The construction of the development shall be managed in accordance with a Construction and Environmental Management Plan, to include a Construction Traffic Management Plan, which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. This plan shall provide details of intended construction practice for the development, including: (a) Details of the site and materials compound(s) including area(s) identified for the storage of construction refuse, (b) Details of areas for construction site offices and staff facilities, (c) Details of site security fencing and hoardings, (d) Details of on-site car parking facilities for site workers during the course of construction, (e) Details of the timing and routing of construction traffic to and from the construction site and associated directional signage, to include proposals to facilitate the delivery of abnormal loads to the site, (f) Measures to obviate queuing of construction traffic on the adjoining road network, (g) Measures to prevent the spillage or deposit of clay, rubble or other debris on the public road network, (h) Details of appropriate mitigation measures for noise, dust and vibration, and monitoring of such levels, (i) Containment of all construction-related fuel and oil within specially constructed bunds to ensure that fuel spillages are fully contained. Such bunds shall be roofed to exclude rainwater, (j) Off-site disposal of construction/ demolition waste and details of how it is proposed to manage excavated soil, and (k) Means to ensure that surface water run-off is controlled such that no silt or other pollutants enter local surface water sewers or drains A record of daily checks that the works are being undertaken in accordance with the Construction Environmental Management Plan shall be kept for inspection by the planning authority. Reason: in the interest of amenities, public health, and safety. 16. The final details of the operational access arrangements shall be submitted to and agreed in writing with the planning authority, prior to commencement of development. Any gates shall open inwards only. Reason: in the interest of traffic safety. 17 All road surfaces, culverts, watercourses, verges and public lands shall be protected during construction and, in the case of any damage occurring, shall be reinstated to the satisfaction of the planning authority. Prior to commencement of development, a road condition survey shall be taken to provide a basis for reinstatement works. Details in this regard shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. Reason: In order to ensure a satisfactory standard of development. 10

18. (a) During the operational phase of the proposed development, the noise level arising from the development, as measured at the nearest noise sensitive location shall not exceed: (i) An LAeqT value of 55 dB(A) during the period 0800 to 2200 hours from Monday to Saturday inclusive. The T value shall be one hour. (ii) An LAeqT value of 45 dB(A) at any other time. The T value shall be 15 minutes. The noise at such time shall not contain a tonal component. At no time shall the noise generated on site result in an increase in noise level of more than 10 dB(A) above background levels at the boundary of the site. (b) All sound measurement shall be carried out in accordance with ISO Recommendation R 1996 ‘Assessment of Noise with respect of Community’ as amended by ISO Recommendations R 1996 1, 2 or 3 ‘Description and Measurement of Environmental Noise’ as applicable. Reason: To protect the amenities of property in the vicinity of the site. 19. Prior to commencement of development, the developer shall lodge with the planning authority a cash deposit, a bond of an insurance company, or such other security as may be acceptable to the planning authority, to secure the reinstatement of public roads which may be damaged by the transport of materials to the site, coupled with an agreement empowering the planning authority to apply such security or part thereof to the satisfactory reinstatement of the public road. The form and amount of the security shall be as agreed between the planning authority and the developer or, in default of agreement, shall be referred to An Bord Pleanala for determination. Reason: In the interest of traffic safety and the proper planning and sustainable development of the area. 20. Prior to commencement of development, the developer shall lodge with the planning authority a cash deposit, a bond of an insurance company, or such other security as may be acceptable to the planning authority, to secure the satisfactory reinstatement of the site on cessation of the project coupled with an agreement empowering the planning authority to apply such security or part thereof to such reinstatement. The form and amount of the security shall be as agreed between the planning authority and the developer or, in default of agreement, shall be referred to An Bord Pleanala for determination Reason: To ensure satisfactory reinstatement of the site. 21. The developer shall pay to the planning authority a financial contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority that is provided or intended to be provided by or on behalf of the authority in accordance with the terms of the Development Contribution Scheme made under section 48 of the Planning and Development Act 2000, as amended. The contribution shall be paid prior to commencement of development or in such phased payments as the planning authority may facilitate and shall be subject to any applicable indexation provisions of the Scheme at the time of payment. Details of the application of the terms of the Scheme shall be agreed between the planning authority and the developer or, in default of such agreement, the matter shall be referred to An Bord Pleanala to determine the proper application of the terms of the Scheme. Reason: It is a requirement of the Planning and Development Act 2000, as amended, that a condition requiring a contribution in accordance with the Development Contribution Scheme made under section 48 of the Act be applied to the permission.” Some general considerations 47. It may be of assistance to set out some general considerations arising from previous caselaw, under a number of headings as follows. The eight-fold test for judicial review 48. As set out in Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November 2025) and other cases (see also Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23), there is an eight-fold path to obtaining relief by way of judicial review. These tests are cumulative, and relief should only be granted if the proceedings meet all of the following: (i) the applicant complies with jurisdictional requirements (e.g. time or standing to bring the proceedings at all (as opposed to standing for particular issues within a case that the applicant can bring at a general level)); (ii) the applicant’s point is legally correct and workable; (iii) the applicant’s point is properly pleaded including with the requisite specificity; (iv) the specific point is one that the applicant has standing to make (bearing in mind that while standing can relate to issues such as ius tertii it does not generally require prior participation in the process insofar as there is an EU/Aarhus Convention dimension); 11

(v) material capable of sustaining the point was properly before the decision-taker at the relevant time such as to give rise to a duty to consider it (subject to exceptions primarily related to failure by the decision-taker to fulfil her autonomous obligations); (vi) the applicant has discharged the onus of proof to establish all facts necessary for relief; (vii) any error must transcend the harmless, the non-material and the purely technical lacking real-world consequences, bearing in mind that if error is demonstrated, then the onus shifts to the opposing parties to show harmlessness; and (viii) the exercise of discretion properly favours the making of the order (such as considering the proportionality of the order sought), bearing in mind that discretion is limited in an EU law context. 49. The most pertinent issues here are workability, pleadings, onus of proof and discretion. 50. Before dealing with the tests in detail, some general comments are worth noting at this juncture: (i) Judicial review is concerned with the legality rather than the correctness of the decision: per Clarke J. (Dunne J. concurring) in Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31 July 2014) at paras. 3.8-3.15. It is not an appeal on the merits and it is not for the court to substitute its view for that of the decision- taker: per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 at p. 654 (Hamilton P. concurring); per Denham J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at p. 743; per Lady Hale in R (Cart) v. Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 at para. 47: “it is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon ... factual conclusions”. See also Stapleton v. An Bord Pleanála & Savona [2025] IEHC 178 (Unreported, High Court, Holland J., 1 April 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 11. (ii) As Singh L.J. and Carr J. put it in R (Hoareau and Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), [2019] 1 W.L.R. 4105 at [326] (emphasis added): “Judicial review is not, and should not be regarded as, politics by another means”. The court must keep the separation of powers firmly in mind: Sinnott v. Minister for Education [2001] IESC 63, [2001] 2 I.R. 545 (Keane C.J., Denham, Murphy, Murray, Hardiman, Geoghegan and Fennelly JJ.); T.D. v. Minister for Education [2001] IESC 101, [2001] 4 I.R. 259 (Keane C.J., Denham, Murphy, Murray and Hardiman JJ.); B. v. Child & Family Agency & Ors. [2025] IESC 2 (Unreported, Supreme Court, Hogan J., 27 January 2025) (O’Donnell C.J., Murray, Collins and Donnelly JJ. concurring), para. 62; consequently the courts must respect the principle that policy choices are for other branches of government. To stray into policy fundamentally distorts the process because “[t]he administrator is often concerned with broad considerations of the public interest whereas the judge tends to focus on the claims of the parties to the case before him” De Blacam, Judicial Review, 2nd ed, p. 97. What O’Donnell C.J. (Charleton and Woulfe JJ. concurring) has recently said of Article 42A is true of the Constitution and law generally – it is not “an open-ended provision that requires courts to substitute their judgment on social issues ... for that of the Oireachtas” (G. v. Ireland [2025] IESC 49 (Unreported, Supreme Court, 26 November 2025) at 68). Nor is the equality guarantee to “become instead a more general power to second guess legislative choices in difficult areas where the courts have very limited insight. ” (at para. 86). He noted: “In Re SC [2021] UKSC 26, [2022] AC 223, Lord Reed cautioned against an expansive application of the equality guarantee contained in Article 14 ECHR observing that, in effect, since legislation was the art of differentiation, any legislation could be contested from the point of view of equality, and that a broad and expansive application of the guarantee risked undue interference with the sphere of political choice. I agree. Once it is established that a classification is not arbitrary or capricious or based on prejudice or stereotype, then this is an area where there is particular merit in the observations of Chief Justice Stone that ‘[c]ourts are not the only agency of government that must be assumed to have capacity to govern’ (United States v Butler (1936) 297 US 1).” (iii) Insofar as concerns evaluative judgement, the weight to be given to any consideration or piece of evidence is quintessentially a matter for the decision-taker: 12

Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 (HL), 780 (Lord Hoffmann); per Keane C.J. (Denham, Murphy and McGuinness JJ. concurring) in Baby O v. Minister for Justice [2002] IESC 44, [2002] 2 I.R. 169, [2003] 1 I.L.R.M. 24; M.E. v. Refugee Appeals Tribunal [2008] IEHC 192 (Unreported, Birmingham J., 27 June 2008) at para. 27; Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 WLUK 212, Lord Hodge and Lord Sales SCJJ. at 121; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 12. Generally speaking evaluative judgements involving a significant degree of planning judgement and not tainted by other procedural, legal or factual errors are reviewable on an irrationality standard: Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton, O’Malley, Baker and Murray JJ. concurring); Barr J. in Graymount House Action Group v. An Bord Pleanála [2024] IEHC 327 (Unreported, High Court, 31 May 2024), leave to appeal refused in Graymount House Action Group v. An Bord Pleanála [2025] IESCDET 22 (Dunne, Woulfe and Hogan JJ., 17 February 2025). (iv) A decision must be read in a way that makes sense rather than nonsense if such a reading is available. It is not the case that decisions must be read in the most erroneous way possible so that applicants can get their order of certiorari (M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020); Rostas v. DPP [2021] IEHC 60 (Unreported, High Court, 9 February 2021) at §50; St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024) at §57). (v) Thus a decision should not be read as invalid if a valid reading is reasonably available: see M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41 (Unreported, High Court, 29 January 2020) at §7; Mulloy v. An Bord Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12 March 2024) at §178 (citing O’Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1 November 2023)); Save Roscam Peninsula CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024) at §64); thus for example “unhelpful” statements should not be read as inconsistent with statutory factors if the decision can be read as valid – E.M. v. Minister for Justice and Equality [2024] IESC 3 (Unreported, Supreme Court, 21 February 2024) per Dunne J. (Charleton, Woulfe, Murray and Donnelly JJ. concurring); Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13. (vi) It is not appropriate to engage in legalistic over-parsing or micro-analysis of decisions, or of legal instruments generally, frequently based on semantic querulousness: per Sullivan J. in R (Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin), [2004] Env LR 29 at para. 41; R. (Friends of the Earth Ltd and others) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R. 190, [2020] 12 WLUK 212, Lord Hodge and Lord Sales SCJJ.; per O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 37. As stated by Peart J. in G.T. v. Minister for Justice, Equality and Law Reform [2007] IEHC 287, [2007] 7 JIC 2708 (Unreported, High Court, 27 July 2007), para. 3: “It is not desirable that a decision be parsed and analysed word for word in order to discern some possible infelicity in the choice of words or phrases used and to hold that a finding of credibility adverse to the applicant is invalid, unless the matters relied upon have been clearly misunderstood or mis-stated by the decision maker. The whole of the decision must be read and considered in order to reach a view as to whether, when the decision is read in its entirety and considered as a whole, there was no reasonable basis for the decision maker reaching that conclusion”. See also A.I.M.Z. v. Refugee Applications Commission & Ors. [2008] IEHC 420, [2008] 11 JIC 0705 (Unreported, High Court, 7 November 2008) at para. 24 per Clarke J.; per McCarthy J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009] IEHC 383, [2010] 7 JIC 2803 (Unreported, High Court, 28 July 2009), para. 13; per Clark J. in Obuseh v. Minister for Justice, Equality and Law Reform & Ors. [2010] IEHC 93, [2010] 1 JIC 1404 (Unreported, High Court, 14 January 2010), para. 21; per MacEochaidh J. in Bondo v. Minister for Justice & Ors. [2012] IEHC 454, [2012] 11 JIC 0903 (Unreported, High Court, 9 November 2012), para. 24; per Barr J. in P.M. v. Refugee Appeals 13

Tribunal [2014] IEHC 497, [2014] 10 JIC 0204 (Unreported, High Court, 2 October 2014), para. 59; per Faherty J. in O.S. v. Refugee Appeals Tribunal [2015] IEHC 839, 2015 WJSC-HC 25494, [2015] 12 JIC 1505 (Unreported, High Court, 15 December 2015), para. 59; X.E. v. International Protection Appeals Tribunal [2018] IEHC 402, [2018] 7 JIC 0405 (Unreported, High Court, Keane J., 4 July 2018); B.D.C. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460, [2018] 7 JIC 2006 (Unreported, High Court, 20 July 2018), para. 7; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13. Mere technicalities are not normally a proper basis for the grant of relief: see e.g. Moore v. Dun Laoghaire Rathdown County Council [2016] IESC 70, [2017] 3 I.R. 42, [2017] 2 I.L.R.M. 21 (Clarke, Laffoy and O’Malley JJ.) para. 4.8 (distinguishing a substance point from “a technicality”). In Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ. concurring) said (without needing to decide the point) that there was “a great deal of force” in the submission that it would be disproportionate to quash a decision on the basis of a “technical procedural error”. See also Watchhouse Cross Shopping Centre v. An Coimisiún Pleanála [2025] IEHC 520 (Unreported, High Court, 3 October 2025). (vii) Relatedly, a decision must be read in the round and in its context. One has to view an administrative decision in the round, and not place undue weight on semantic quibbles in respect of micro-sub-elements of it: O.A.A. v. Minister for Justice, Equality and Law Reform & Anor. [2007] IEHC 169, [2007] 2 JIC 0904 (Unreported, High Court, Feeney J., 9 February 2007); J.B.R. v. Refugee Appeals Tribunal & Ors. [2007] IEHC 288, [2007] 7 JIC 3110 (Unreported, High Court, Peart J., 31 July 2007); per Cooke J. in I.R. v. Minister for Justice [2009] IEHC 510, [2015] 4 I.R. 144 at p. 152; M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 6. A decision should be read not solely from an applicant’s point of view (an impossible standard), but from the starting point of it being valid rather than invalid where possible. One has to stand back and ask what the decision is fundamentally saying (O’Donnell & Ors. v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1 November 2023), para. 54; St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20 February 2024) at §57; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 13. (viii) Judicial review is not an exercise in pointless formalism: see for example Okunade v. Minister for Justice [2018] IESC 56, [2018] 11 JIC 1401 (Unreported, Supreme Court, 14 November 2018) per O’Donnell J. (Clarke C.J. and O’Malley J. concurring) at para. 21. It is not a game where the respondents can score as many goals as they like, but if the applicant scores one goal, the game is over. The court must make a balanced and reasonable assessment of the overall sustainability of a decision, even if there is an argument for saying that limited parts of it are sub- optimal: M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41, [2020] 1 JIC 2903 (Unreported, High Court, 29 January 2020), para. 21. (ix) It is not for the applicant to dictate the procedures to be adopted or the form of a decision: see for example per Ryan P. (Peart and Hogan JJ. concurring) in A.B. v. Minister for Justice and Equality [2016] IECA 48, [2016] 2 JIC 2602, 2016 WJSC- CA 1525 (Unreported, Court of Appeal, 26 February 2016) at para. 43. Workability 51. Legal provisions and obligations should be given a workable, sensible interpretation where this is at all possible: (i) Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 per Hogan J. (MacMenamin, Charleton, O'Malley and Baker JJ. concurring) at 43: “There is clear judicial authority for the proposition that statutory provisions should be read, where possible, so as to produce a workable and coherent interpretation, thereby avoiding interpretations which were either incongruous or which imposed unfair or anomalous obligations on private citizens in particular. Thus, for example, as far back as Frescati Estates Ltd. v. Walker [1975] IR 177 at 187 this Court held that the Planning Acts should, where possible, not be interpreted in a way which would lead to ‘strange incongruities.’ In a subsequent Housing Act case, this Court rejected an interpretation of what constituted the relevant dates for the service of notices to treat for the purposes of the making of compulsory purchase orders under the Housing Act 1966 where it 14

concluded that such an interpretation such render the legislation effectively unworkable: see In re Murphy [1977] IR 243 at 251 per Henchy J.”. (ii) 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1 July 2025), para. 13, citing the statement that where the statutory words used “are reasonably capable of a meaning which is in accord with the essence of the provision, it is that interpretation which should prevail”: see Kellystown Co. v. Hogan [1985] I.L.R.M. 200 at 203, per Henchy J. (Griffin J. concurring). (iii) A discretionary power should not be construed as extending to impose unworkable and unenforceable requirements – McGowan v. An Coimisiún Pleanála [2025] IEHC 405 (Unreported, High Court, 8 July 2025). (iv) Likewise, European law should not be read as imposing impossibly onerous obligations: An Taisce v. An Bord Pleanála (Kilkenny Cheese) [2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281, per Hogan J. (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring) at para. 105, rejecting “impossibly onerous and unworkable obligations”; Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025). Proper pleadings 52. Some relevant legal principles concerning pleading requirements which have been rehearsed in previous caselaw include the following: (i) Applicants are confined to their pleadings: A.P. v. Director of Public Prosecutions [2011] IESC 2, [2011] 1 I.R. 729, [2011] 2 I.L.R.M. 100, [2011] 1 JIC 2501 (Denham J. and Fennelly J., Murray C.J., Hardiman J. and Finnegan J. concurring); Khashaba v. Medical Council [2016] IESC 10, [2016] 3 JIC 0701, 2016 WJSC-SC 12280 per O’Malley J. (Denham C.J. and Clarke J. concurring) at para. 56; Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42, [2021] 7 JIC 1606 (Unreported, Supreme Court, Baker J., 16 July 2021) (Clarke C.J., O'Donnell, MacMenamin and Dunne JJ. concurring) at §§29 and 31; Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024) per Murray J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring); Eglington Residents Association v. An Bord Pleanála [2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025) at 11. The rules of pleading are well-established, clear and mandatory, and are of particular importance in a context of special complexity such as technical EU-heavy areas of planning law; while exact specification of every jot and tittle of a case is an impossible standard, an applicant can only be permitted to advance at a hearing a point that is acceptably clear from the express terms of the statement of grounds, subject to the grant of any order allowing an amendment: Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High Court, 24 January 2024). (ii) Pleading requirements in judicial review are “stringent”, allowing “little room for manoeuvre”: People Over Wind & Anor v. An Bord Pleanála & Ors (No. 1) [2015] IEHC 271, [2015] 5 JIC 0106 (Unreported, High Court, Haughton J., 1 May 2015). “It shall not be sufficient for an applicant to give as any of his grounds for the purposes of paragraphs (ii) or (iii) of sub-rule (2)(a) an assertion in general terms of the ground concerned, but the applicant should state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground”: Order 84 r. 20(3) RSC. “If on the Grounds pleaded there is genuine ‘doubt, ambiguity or confusion’ an Applicant in Judicial Review cannot have the benefit of it”, per Holland J. in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2022] IEHC 7, [2022] 1 JIC 1001 (Unreported, High Court, 10 January 2022) at para. 308. (iii) Complex EU law arguments need to be articulated with particular clarity. It is particularly important, in the case of an allegation of a failure properly to transpose an obligation under EU law, that the requirements of O. 84, r. 20(3) be observed: Sweetman v. An Bord Pleanála (Sweetman XV) [2020] IEHC 39, [2020] 1 JIC 3104 (Unreported, High Court, 31 January 2020) per McDonald J. at para. 103 (cited with approval by Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring) in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024); Rushe v. An Bord Pleanála [2020] IEHC 122, [2020] 3 JIC 0502 (Unreported, High Court, 5 March 2020) per Barniville J.; attempts to launch for example non-transposition claims not set out on the pleadings are impermissible: Alen-Buckley v. An Bord Pleanála [2017] IEHC 311, [2017] 5 JIC 1211 (Unreported, High Court, Costello J., 12 May 2017). 15

(iv) Recital of high-level principles does not create certiorari by osmosis – an applicant must specify a route-map connecting the particular factual problem alleged with the particular relief sought via a chain of reasoning: Ballyboden Tidy Towns v. An Bord Pleanála [2021] IEHC 648 (Unreported, High Court, 7 January 2022), para. 20; Foley v. Environmental Protection Agency [2022] IEHC 470 (Unreported, High Court, Twomey J., 24 January 2023), paras. 71-72; Stapleton v. An Bord Pleanála & Savona [2024] IEHC 3 (Unreported, High Court, Holland J., 13 February 2024), para. 124. (v) Scattergun pleadings are liable to be viewed as “a witch’s brew designed to spread maximum confusion and to permit any argument to be made at the hearing that ingenuity can suggest”: Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38, [2024] 1 I.R. 386, [2022] 10 JIC 2402 per O’Donnell C.J. at para. 22 (Dunne, Woulfe, Hogan and Murray JJ. concurring). MacMenamin J. (Fennelly and Clarke JJ. concurring) in Babington v. Minister for Justice Equality and Law Reform & Ors. [2012] IESC 65 (Unreported, Supreme Court, 18 December 2012) referred to the pleading requirements in judicial review and said at para. 7: “Regrettably, these explicit stipulations are frequently not complied with, and the same grounds are set out in as many different, varying, (and wearying) reformulations of the same point as can be conceived. Practitioners should realise that, in this entirely counterproductive and unnecessary process, there is a real risk of not being able to see the wood for the trees. A good point does not gain force by repetition”. (vi) While the court has jurisdiction to grant unpleaded reliefs it can allow such relief only within the contours of the case as defined by the pleaded grounds: Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024), para. 42 per Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). Therefore a court can’t grant relief if there is no supporting ground for it. (vii) It is not necessary that the specific provisions of national or EU law relied on are expressly enumerated if they are implicitly identifiable with acceptable clarity: Eco Advocacy CLG v. An Bord Pleanála (No. 4) [2023] IEHC 713 (Unreported, High Court, 18 December 2023); Kennedy & Anor. v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024), para. 132; Leech v. An Bord Pleanála [2024] IEHC 599 (Unreported, High Court, Farrell J., 12 November 2024); Mount Salus Residents' Owners Management Company Limited by Guarantee v. An Bord Pleanála & Ors. [2025] IEHC 14 (Unreported, High Court, Holland J., 15 January 2025), para. 39. The standard is acceptable clarity, not express enumeration. (viii) As noted by the Court of Appeal in Carvill v. An Bord Pleanála [2025] IECA 84 (Unreported, Court of Appeal, Barniville P., Collins and Faherty JJ., 11 April 2025) at para. 148, where a developed pleading objection is made, the court should not accept the point made by the applicant without first addressing the objection. That said, the court can reject a point without deciding the pleading objection if it fails either way. Onus of proof 53. Some relevant legal principles concerning the onus of proof which have been rehearsed in previous caselaw include the following: (i) With only defined and extremely limited exceptions, in judicial review the onus of proof is on the applicant at all times: per Denham J. (Murray C.J. and Fennelly J. concurring) in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at p. 743; Cork County Council v. Minister for Housing, Local Government and Heritage (No. 1) [2021] IEHC 683 (Unreported, High Court, 5 November 2021) at §57; Monkstown Road Residents Association v. An Bord Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) at para. 96 per Holland J.; that remains the case even when in a constitutional challenge it is proved that constitutional rights have been interfered with: O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring) at para. 116; Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 14. To put the same point another way, there is a presumption of validity for administrative decisions: per Finlay P. in In re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5 December 1977) and per Keane J. in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 at 102; Grassridge v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High Court, Holland J., 25 November 2024), para. 22; Moran v. An 16

Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J. at 15. (ii) The onus shifts only in defined special circumstances. For example, where an error is demonstrated by an applicant, the onus shifts to opposing parties to show that the error is harmless: H.A. v. Minister for Justice [2022] IECA 166, [2022] 7 JIC 2201 (Unreported, Court of Appeal, Donnelly J., 22 July 2022) at para. 48 (Ní Raifeartaigh and Collins JJ. concurring). An onus on a decision-taker in the administrative process (e.g. to conduct a valid AA) does not convert into an evidential or any burden in the judicial process to show that the decision is valid (for reasons explained in Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January 2023) at para. 85). (iii) The onus of proof does not shift to a developer merely because the decision- taker does not defend the decision on a given point or generally. Such a rule would be inconsistent with the Supreme Court’s finding in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ. concurring) that a developer can defend a permission even if the decision-taker does not. (iv) In the context of a challenge to an environmental assessment, the onus of proof to show, by evidence (normally expert evidence), or by demonstrating a flaw on face of material, that AA/EIA was defective, or that there were factual circumstances requiring a decision-taker to consider any other autonomous obligation, lies on the applicant: R v. Crischuk, 2010 BCSC 716 (Barrow J.) at paras. 36-38, affirmed 2010 BCCA 391, 2010 D.T.C 5141; Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021), para. 19; An Taisce v. An Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281 per Hogan J. at para. 124 (O'Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring); Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v) (leave to appeal refused in Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025)); Salmon Watch Ireland, Inland Fisheries Ireland, Sweetman & Ors. v. Aquaculture Licences Appeals Board & Ors. [2024] IEHC 421 (Unreported, High Court, Holland J., 12 July 2024), §1097; Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November 2024) at para. 115; Minoa Ltd v. An Bord Pleanála [2024] IEHC 704 (Unreported, High Court, Heslin J., 10 December 2024), para. 333; Ó Murthuile v. An Bord Pleanála [2025] IEHC 498 (Unreported, High Court, Farrell J., 19 September 2025) at 55. Thus, apart from (i) failure to consider something that the decision-taker was autonomously required to consider, (ii) patent flaw on the face of the materials, or (iii) other legal error, inadequate consideration or failure to dispel scientific doubt has to be established by admissible evidence (normally expert evidence) in the judicial review showing either that reasonable doubt was created by the material before the decision-taker at the time (albeit not limited to what was adduced by the applicant specifically), or that such material even if uncontradicted would on its face have created doubt in the mind of a reasonable expert: An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, [2021] 7 JIC 0205 (Unreported, High Court, 2 July 2021) at §7 and §8; Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported, High Court, 20 May 2024) at §191(v), leave to appeal refused: Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27 January 2025); Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024) at §105; Roache v. An Bord Pleanála [2024] IEHC 311 (Unreported, High Court, Phelan J., 21 May 2024) at §117; Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October 2024) at 73; Ryanair DAC v. An Bord Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February 2025) at §64 et seq.; analogously, Donegal County Council v. Planree [2024] IECA 300 (Unreported, Court of Appeal, Butler J., 18 December 2024), para. 141; Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025). As noted in Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1 November 2024), summarised in the non-precedential determination refusing leave to appeal [2025] IESCDET 41 (O’Malley, Murray and Donnelly JJ., 10 March 2025) at para. 8, “the critical point was that scientific and factual shortcomings in EIA or indeed in an Appropriate Assessment, must be established by the applicant who bore the burden 17

of proof”. Similarly, leave to appeal was refused in Eco Advocacy v. An Bord Pleanála [2025] IESCDET 74 (Dunne, Hogan and Donnelly JJ., 4 June 2025) where “The applicant’s claim failed for the reason that the High Court accepted that the respondent had come to a lawful conclusion of no doubt that an appropriate assessment was not needed and that the respondent had given reasons for that conclusion. On the judicial review the applicant had not displaced that conclusion by way of evidence” (para. 25). That is consistent with the general law: O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin, O’Malley, Baker and Murray JJ. concurring). The Supreme Court determination in 100 Meter Tall Group v. An Bord Pleanála [2025] IESCDET 85 (Charleton, Hogan and Collins JJ., 1 July 2025) is to the same effect: “17. As [the trial judge] pointed out (at para. 196) the Court of Justice ruled in Case C-721/22 Eco Advocacy CLG (EU:C: 2023: 477) the Board simply provides ‘reasons sufficient to explain that the decision does not create reasonable scientific doubt as to impact on European sites.’ This was simply the test which [the trial judge] applied in the present case. He concluded (at para. 230) that the Board had addressed the issue of potential bird movements of water birds and hen harriers and ‘gives reasons for that conclusion which the applicants have not displaced evidentially.’ 18. The Court considers that this second issue involves the application of standard principles and does not meet the constitutional criteria”. See also Eco Advocacy CLG v. An Bord Pleanála & Statkraft [2025] IEHC 15 (Unreported, High Court, 15 January 2025) at §95; Concerned Residents of Coolkill v. An Bord Pleanála & Midsal Homes [2025] IEHC 265 (Unreported, High Court, Holland J., 19 May 2025) at 309. (v) The onus of proof as to an inadequacy in the decision cannot be discharged by mere assertion: Joyce Kemper v. An Bord Pleanála [2020] IEHC 601, [2020] 11 JIC 2402 (Unreported, High Court, Allen J., 24 November 2020) at §9; Murphy v. An Bord Pleanála [2024] IEHC 59 (Unreported, High Court, Bolger J., 6 February 2024) at §14, nor does mere assertion create scientific doubt for AA purposes: Harrington v. An Bord Pleanála [2014] IEHC 232, [2014] 5 JIC 0909 (Unreported, High Court, O’Neill J., 9 May 2014); Murphy v. An Bord Pleanála [2024] IEHC 59 (Unreported, High Court, Bolger J., 6 February 2024) at §14; Duffy v. An Bord Pleanála [2024] IEHC 558 (Unreported, High Court, Holland J., 27 September 2024) at §40-§41. (vi) If demonstration of error depends on expert opinion, the onus of demonstration in that regard cannot be discharged by non-expert views articulated by or on behalf of an applicant. Such an exercise in ultracrepidarianism is generally inadmissible on standard evidential principles insofar as matters of opinion are concerned: Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206 (Unreported, High Court, 11 April 2025). (vii) Where there is a conflict of admissible evidence, in the absence of cross-examination such a conflict must generally be resolved against the party carrying the onus of proof: RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273 (Clarke C.J.) (O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ. concurring). That is normally the applicant but in the case of an opposing party asserting that a demonstrated error is harmless, the conflict will be resolved against the opposing party. (viii) That said, while conflict between equally inherently credible averments, with no cross-examination, is generally resolved against the party carrying the onus of proof, a court is not always obliged to regard all averments as being equally credible, or to disregard internal or evident problems with them (see by analogy the manner in which the Supreme Court considered it was entitled to prefer an affidavit over even oral evidence in Koulibaly v. Minister for Justice, Equality and Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court, Denham J. (Geoghegan and McCracken JJ. concurring), 29 July 2004)). Among the matters to which regard might be had would be included the failure to explain patently relevant questions that are clearly within that party’s responsibility (Doorly v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022) at para. 137 (Ní Raifeartaigh and Pilkington JJ. concurring)). This specific and common sense power of the court to evaluate inherent defects in evidence remains notwithstanding caselaw on cross-examination such as RAS Medical or Re Bayview Hotel (Waterville) Limited [2022] IEHC 516 (Unreported, High Court, Butler J., 8 September 2022). This is consistent by analogy with the judgment of Hardiman J. (Hanna and Feeney 18

JJ. concurring) in DPP v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130, [2007] 1 I.L.R.M. 350 at para. 95 – the court as finder of fact is “not ... constrained” to accept “the only account available” even if that account is provided by oral evidence. The evidence of experts is one area where the court is not automatically obliged to accept evidence absent cross-examination: Tesco Ireland Limited v. Stateline Transport Limited [2024] IECA 46 (Unreported, Court of Appeal, Butler J., 23 February 2024). Discretion 54. Some issues regarding discretion established by the caselaw are as follows: (i) Judicial review is a discretionary remedy: per Charleton J. in Dun Laoghaire Rathdown County Council v. Westwood Club Ltd [2019] IESC 43, [2020] 3 I.R. 417 at 10; per Murray J. (Whelan and Pilkington JJ. concurring) in O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, 1 July 2021) at 43. This historically arose from the development of judicial review out of the power to grant equitable relief. (ii) In exercising that discretion however the court is not at large. Factors to be considered as part of a holistic review of all relevant circumstances in deciding whether to grant relief, and if so, what type of relief include the following (see Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High Court, 24 January 2024) para. 134): (a) “the action or inaction of the claimant (such as a failure to exhaust an alternative remedy, delay, laches, waiver, acquiescence or misconduct in connection with the proceedings)” (O’Connell v. Behan [2021] IECA 186 at 43) or the failure by the applicant to make the point in the process: Costello J in Friends of the Irish Environment CLG v. The Government of Ireland [2021] IECA 317 (Unreported, Court of Appeal, 26 November 2021) at 277. (b) The importance of the provision not complied with – “consideration of whether the matter concerned is one of importance or of triviality”: per Finlay C.J. in G. v. DPP [1994] 1 I.R. 374 at p. 378 (emphasis added). Thus an “inconsequential” breach was not a basis for the grant of relief as a matter of discretion in Kenny v. Dublin City Council [2009] IESC 19 (Unreported, Supreme Court, 5 March 2005) at 79 per Fennelly J. (Macken and Peart JJ. concurring). (c) The extent of the non-compliance. (d) Prejudice or the lack of it to the applicant or anyone else (see O’Connell v. Behan [2021] IECA 186 at 43: “grounds relating to the impact a remedy will have on others (such as where the grant of relief would represent an unwarranted interference with the settled rights or expectations of third parties)”). (e) Whether the error was once-off. (f) Whether the issue is purely historic and cannot reoccur. (g) The level of deliberation involved in the error and the extent to which reasonable steps were taken to prevent or identify such an error. (h) Whether the error was rectified promptly when it came to light (if capable of rectification). (i) Whether there is a pattern of non-compliance. (j) The proportionality of certiorari (as opposed for example to either no order or declaratory relief only) may also be a factor: in Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60, Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ. concurring) said (without needing to decide the point) that there was “a great deal of force” in the submission that it would be disproportionate to quash a decision on the basis of a “technical procedural error”. (k) Grounds relating to “the practical value of the remedy (such as mootness or futility) (see Independent Newspapers (Ireland) Ltd. v. IA [2020] IECA 19, [[2021] 1 I.R. 384] at para. 78)”: O’Connell v. Behan [2021] IECA 186 (Unreported, Court of Appeal, Murray J., 1 July 2021) (Whelan and Pilkington JJ. concurring) at 43. (l) “It is a long-standing principle of the law relating to judicial review that the court asked to quash an administrative decision has a discretion to refuse to do so if there is an alternative remedy available to put right the wrong complained of in the proceedings.” per Dunne J., S v. Minister for 19

Justice and Equality [2025] IESC 48 (Unreported, Supreme Court, 25 November 2025) at 98. (m) Any other relevant circumstances. (iii) Discretion also applies at the leave stage of judicial review: De Róiste v. Minister for Defence [2001] IESC 4, [2001] 1 I.R. 190, [2001] 2 I.L.R.M. 241 at 204 per Denham J.; per Finlay C.J. in G. v. DPP [1994] 1 I.R. 374 at p. 378. (iv) The court can exercise discretion of its own motion because the court itself has to be satisfied as to the correctness of granting relief: Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ. concurring). That implies that the court has an entitlement to exercise such discretion itself even if a party doesn’t plead that. The climate context 55. Insofar as relevant, some relevant legal principles concerning the climate context which have been rehearsed in previous caselaw include the following: (i) Domestic law imposes significant climate-related obligations on national decision- takers, including in the field of planning. The Climate Action and Low Carbon Development (Amendment) Act 2021 (amending the Climate Action and Low Carbon Development Act 2015) mandates the achievement of a net-zero carbon economy by 2050 (s. 3(1) of 2015 Act as substituted by the 2021 Act), with a legally binding 51% reduction in emissions by 2030 compared to 2018 levels (s. 6A(5) of 2015 Act as substituted by the 2021 Act): See Coolglass v. ACP [2026] IESC 5. (ii) EU law also involves significant climate-related objectives and obligations. Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC established mandatory targets for the consumption of energy from renewable sources by member states. Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action, amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No 525/2013 of the European Parliament and of the Council (the Governance Regulation) was adopted to implement the Paris Agreement commitments (agreement at conference of parties of the UNFCCC (the United Nations Framework Convention on Climate Change opened for signature at UN Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14 June 1992) (COP21) in Paris, on 12 December 2015). By way of implementation of the Paris Agreement, the European Climate Law (2021) (Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999) involves a reduction of GHG emissions for the EU by at least 55% by 2030 compared to 1990 levels. Ireland’s Nationally Determined Contributions (NDCs) under Paris are as part of the EU contribution to GHG reductions. Council Regulation (EU) 2022/2577 of 22 December 2022 lays down a framework to accelerate the deployment of renewable energy. Article 3(1) introduced a presumption of overriding public interest for renewable energy projects for the purpose of the birds, habitats and strategic environmental assessment (SEA) directives, and provision was made for the acceleration of such projects. The current version of the Renewable Energy Directive (REDIII), Directive (EU) 2023/2413 of the European Parliament and of the Council of 18 October 2023 amending Directive (EU) 2018/2001, Regulation (EU) 2018/1999 and Directive 98/70/EC as regards the promotion of energy from renewable sources, and repealing Council Directive (EU) 2015/652, provides for a presumption of overriding public interest and for accelerated timelines including requiring judicial remedies to be the most expeditious available in national law. (iii) The ECHR, relevant to domestic law via the European Convention on Human Rights Act 2003, involves a binding legal obligation to address climate change: Verein KlimaSeniorinnen Schweiz and Others v Switzerland (9 April 2024, App. no. 53600/20) (this is consistent with the decisions of all other international courts/ tribunals: International Court of Justice Advisory Opinion of 23 July 2025, Obligations of States in respect of Climate Change; International Tribunal for the 20

Law of the Sea, Advisory opinion, Request by Commission of Small Island States, 21 May 2024; Inter-American Court of Human Rights, Request by Chile and Colombia, Opinión Consultiva Oc-32/25 De 29 de Mayo de 2025). Domestic law issues Core ground 2 – development plan 56. Core ground 2 is (emphasis added): “2. The Respondent erred in law in having regard to the provisions of the Kilkenny County Development Plan 2021-2027, reference to which appears on the face of the Record in the Board Direction, the Board Order and in the Inspector’s Report in circumstances where the said plan as had regard to has been published in breach of a Ministerial Directive which directed that certain paragraphs of Chapter 11 be excluded, and in particular Chapter 11.4 and 11.5 of the said plan. In having regard to an invalid document the said decision is ultra vires the Respondent, invalid and void and in particular where the said provisions excluded from the development plan specifically refer to solar farms in respect of both paragraphs to be excluded and accordingly the Respondent acted in excess of jurisdiction, had regard to irrelevant and inappropriate considerations, and had regard to an invalid plan amounting to an error of law on the face of the record and renders the decision in excess of jurisdiction, amounts to an error of law on the face of the record, and renders the decision ultra vires the Respondent and is invalid and void.” 57. The parties’ positions as recorded in the statement of case are summarised as follows: “Applicants’ Position Core Ground No. 2 50. The Respondent erred in law in having regard to the provisions of the Kilkenny County Development Plan 2021-2027, reference to which appears on the face of the Record in the Board Direction, the Board Order and in the Inspector’s Report in circumstances where the said plan as had regard to has been published in breach of a Ministerial Directive which directed that certain paragraphs of Chapter 11 be excluded, and in particular Chapter 11.4 and 11.5 of the said plan. In having regard to an invalid document the said decision is ultra vires the Respondent, invalid and void and in particular where the said provisions excluded from the development plan specifically refer to solar farms in respect of both paragraphs to be excluded and accordingly the Respondent acted in excess of jurisdiction, had regard to irrelevant and inappropriate considerations, and had regard to an invalid plan amounting to an error of law on the face of the record and renders the decision in excess of jurisdiction, amounts to an error of law on the face of the record, and renders the decision ultra vires the Respondent and is invalid and void. Commission’s Position: 51. The Applicants fail to properly understand the relevant background to this Core Ground. For example, in Submissions, the Applicants repeatedly refer to the ‘Ministerial Directive’ or ‘Ministerial Direction’ pursuant to s.31 of the PDA. This is incorrect, no Ministerial Direction ever issued in respect of the Development Plan – only a Draft Direction did. In this regard, whilst not referred to by the Applicants, the Court set out the procedural history relevant to the Development Plan and Draft Direction in Save South Leinster Way v An Coimisiún Pleanála [2025] IEHC 541 (§16 et seq). 52. The Applicants contend, based on an erroneous understanding of the statutory process, that the Commission had regard to an invalid document, the online Development Plan, as it contained two sections in the published version which should not have been included (as a result of the Draft Direction). The Applicants assert that two aspects of the published plan ‘relating to solar farms’ were, but should not have been, considered. There are a number of problems with this complaint: - The burden of proof rests on the Applicants to demonstrate an error in the approach of the Commission. This is a burden which is not discharged by mere assertion – McGowan v An Coimisiún Pleanála [2025] IEHC 405 (§50). Speculatively asserting that the Commission must have considered and relied on Section 11.4 and Section 11.5.1 is not evidence of such reliance. - Decisions carry the presumption of validity and cannot be read as unlawful or in error where a lawful or correct reading is available – see Friends of Killymooney Lough v An Coimisiún Pleanála [2025] IEHC 407 (§41); St Margaret’s Recycling v An Bord Pleanála [2024] IEHC 94 (§57); McGowan v An Coimisiún Pleanála [2025] IEHC 405 (§49); and Eco Advocacy v An Bord Pleanála [2025] IEHC 15, (§63(vii)). There is no evidence that the Commission relied on either Section 11.4 and Section 11.5.1 – referring to the Development Plan generally or other specific aspects of same is not evidence that either section was considered. 21

The Commission can be taken to be aware of the status of the Draft Direction and the consequence of same on the Development Plan – noting that the Draft Direction was also publicly available. There is absolutely no evidence to demonstrate that the Commission did not understand or interpret the Development Plan by reference to the Draft Direction. - The Applicants’ complaint of error of law on the face of the record, at its height, is a complaint that because the Commission considered the Development Plan, it must have considered the sections which were the subject matter of the Draft Direction – it is no more specific than that. There is nothing to suggest that the Commission had regard to either Section 11.4 and Section 11.5.1. As outlined above, the onus of proof is on the Applicants and same is not discharged through their speculative assertions. - Further, the two contentious sections, Section 11.4 and Section 11.5.1, do not relate to solar farms – contrary to what the Applicants contend. Although, it is telling that neither in their pleaded case or in Submissions do the Applicants actually refer to the text of either section or any aspect of the Inspector’s Report or Commission’s Decision which allegedly relied on same. 53. Sections 11.4 and 11.5.1 of the Development Plan are not materially relevant to the decision impugned in these proceedings and do not affect Section 11.6 of the Development Plan, which expressly relates to solar energy. As is evident from the Inspector’s Report (p.14, 15), the Inspector considered the Proposed Development with regard to Section 11.6 of the Development Plan (which was not the subject of the draft Direction) and did not refer to Sections 11.4 and 11.5.1 of the adopted Development Plan. The Applicants’ complaints are wholly devoid of any substance. 54. Without prejudice to the foregoing, if any error arises in this respect (which is denied) – similar to the approach of the Court in Save South Leinster Way (§88 et seq), yet noting the distinguishing factual differences – this Honourable Court should exercise its discretion to refuse relief. Lightsource’s Position 55. Notwithstanding the positive pleas made in the respective Statements of Opposition filed on behalf of the Commission and Lightsource, to the effect that no Ministerial Direction has been issued which bears on any issue in these proceedings, the Applicants persist in advancing a manifestly unfounded contention that a Ministerial Direction was issued on 15 October 2021. Furthermore, the Applicants continue to mischaracterise the nature and effect of the Draft Ministerial Direction which did, in fact, issue on 15 October 2021. The Draft Ministerial Direction actually requires that parts of Chapter 11 of the Draft Kilkenny CDP, which were omitted from the Kilkenny CDP as made by the elected members, should be re-inserted into the Kilkenny CDP. However, the Applicants continues to assert that the purported Ministerial Direction requires text to be omitted from the Kilkenny CDP as made by the elected members. In this connection, this Core Ground and its related particulars are incapable of being sustained and, on this basis alone, the application for judicial review on Core Ground 2 should be dismissed. 56. Strictly without prejudice, the Commission did not have regard to a plan that was not in compliance with a Ministerial Direction, in circumstances where no such Ministerial Direction has actually issued. The Applicants continue to maintain, erroneously, that sections 11.4 and 11.5.1 of the Kilkenny CDP were relevant to the Commission’s consideration of the planning application. However, it is clear that the provisions of sections 11.4 and 11.5.1 were not considered by the Inspector, so this ground of challenge simply cannot be maintained to vitiate the Impugned Decision. There is simply no evidence that the Commission had regard to some incorrect version of the Development Plan, and this ground of challenge is unsustainable.” 58. The applicants, wisely, chose to make no oral submissions on this point. The point is not sustainable for multiple reasons. The applicants incorrectly premised some of the points on the assumption that there was a direction, whereas there is only a draft direction. More fundamentally, it does not follow from the existence of a draft direction that the commission erred in relying on a development plan to which the direction relates. At the level of theory, a draft direction may render temporarily inoperable certain provisions of a plan (if the Minister requires removal of such provisions and if they do not correspond to the provisions the previous plan) but there is no basis for any contention that in this specific case and in relation to the commission’s reliance on the plan here, the commission relied on any specific provision of the plan that was rendered inoperative by the draft direction. 59. Reinforcing that, the draft direction is phrased in terms of wind energy (section 11.5 of the plan), not solar energy (section 11.6). The only operative provision even capable of a wider reading (i.e., by referring to the general targets in section 11.4) is: 22

“The Planning Authority is hereby directed to take the following steps with regard to the ‘wind energy strategy’ within the Development Plan: a. Reinstate sections 11.4 and 11.5.1 of the draft Development Plan, including the identification of 201 MW renewable energy to meet the objective for the generation of 100% of electricity needs from renewable sources for the county by 2030 consistent with the Climate Action Plan. …” 60. The problem for the applicants is that the objective of reinstatement of more ambitious targets in the plan is that that is a pro-renewables intervention. Any argument that the commission was not entitled to approve a renewable energy project because the council’s less ambitious targets were countermanded as insufficient by a pro-renewable draft ministerial direction would be perverse and illogical. 61. To put it another way, there is simply no logical route-map between the matters pleaded and the relief claimed, let alone any demonstration of error. Core ground 3 – alleged invalid application 62. Core ground 3 is: “3. The Respondent erred in law in accepting an invalid application for the purposes of the Planning and Development Act 2000 and the Planning and Development Regulations 2001 in respect of the public notice published that failed to describe the nature and extent of the proposed development contrary to Articles 17, 18 and 19 of the Planning and Development Regulations 2001 in failing to specify the number of structures including solar panels, inverters, BESS inverter cabinets, BESS MV skids and extent of roads, contrary to the obligations to state the nature and extent of the proposed development and failed to comply with Article 22(1)(b) in respect of the detail of the maps accompanying the application and Article 22(4) in respect of elevations of the said solar panel structures or any or any appropriate details of the other structures to be constructed, and Article 23(1)(a) in respect of features and/or structures in the vicinity of the site, 23(1)(b) in respect of the scale and detail of the said drawings, 23(1)(f) in respect of the dimensions of the drawings. Accordingly the said development amounts to an invalid application for the purposes of the Planning and Development Act and cannot ground any decision in respect of such an application and the Respondent erred in law in failing to consider the said validity issues and erred in law in determining that these are matters for the Planning Authority in the first instance, and accordingly there is an error of law on the face of the record, the decision is made without jurisdiction and is contrary to law and renders the decision invalid and void.” 63. The parties’ positions as recorded in the statement of case are summarised as follows: “Applicant’s Position Core Ground 3 57. The Respondent erred in law in accepting an invalid application for the purposes of the Planning and Development Act 2000 and the Planning and Development Regulations 2001 in respect of the public notice published that failed to describe the nature and extent of the proposed development contrary to Articles 17, 18 and 19 of the Planning and Development Regulations 2001 in failing to specify the number of structures including solar panels, inverters, BESS inverter cabinets, BESS MV skids and extent of roads, contrary to the obligations to state the nature and extent of the proposed development and failed to comply with Article 22(1)(b) in respect of the detail of the maps accompanying the application and Article 22(4) in respect of elevations of the said solar panel structures or any or any appropriate details of the other structures to be constructed, and Article 23(1)(a) in respect of features and/or structures in the vicinity of the site, 23(1)(b) in respect of the scale and detail of the said drawings, 23(1)(f) in respect of the dimensions of the drawings. Accordingly the said development amounts to an invalid application for the purposes of the Planning and Development Act and cannot ground any decision in respect of such an application and the Respondent erred in law in failing to consider the said validity issues and erred in law in determining that these are matters for the Planning Authority in the first instance, and accordingly there is an error of law on the face of the record, the decision is made without jurisdiction and is contrary to law and renders the decision invalid and void. Commission’s Position: 58. Respectfully, this Core Ground and the particulars to same are illustrative of the type of ‘scattergun’ (Save South Leinster Way, §51) pleadings which the Courts have consistently found to be inadequate and inappropriate. The approach of the Applicants appears to be: allege as many contraventions of the PDRs as possible, cite the language from the PDRs, do not engage in any meaningful way whatsoever with the evidence relevant to same, including plans and particulars lodged, and hope that something sticks. Unfortunately for the Applicants, when one delves into the detail of the complaints and the application documentation, all of them are lacking in factual substance. 23

59. Their approach also has to be viewed in the context of the Applicants’ participation in the planning process. In this regard, in their appeal to the Commission via their planning consultant, the Applicants did not claim to be unable to understand the scale and extent of the Proposed Development – rather, and contrary to the claims they now make, they actually took issue with what they perceived to be the ‘excessive scale’ (Appeal Submission, BPS Planning, pg.6) of the Proposed Development and specifically referred to the various aspects of same, including ‘solar arrays, related structures, buildings, boundary fences…’ (Appeal Submission, BPS Planning, pg.7). The Applicants’ claim that it is impossible to identify the scale and extent of the Proposed Development therefore lacks credibility – tellingly, nobody, including the Applicants, found this to be an issue before the Council or the Commission. This, together with the detail in the application documentation and the complete lack of any prejudice to the Applicants, weighs in favour of refusing relief (should the Court need to consider same). 60. Moreover, simply asserting a contravention of the PDRs should not be accepted without more – for example, by looking at the purpose of the specific Article in question and asserting some form of prejudice or unfairness arising from/related to any alleged non- compliance with same (the Applicants have not done this). The mostly generic pleas of the Applicants should not be accepted as being adequate. 61. The PDRs have been complied with and the Applicants have not established to the contrary. Moreover, when the application documentation is considered as a whole, same complies with requirements of the PDRs and the purpose underpinning same, including identifying the nature and extent of the Proposed Development – and the Commission was lawfully entitled to reach this conclusion. 62. Noting the various complaints made under this Core Ground, not all instances of non-compliance with the PDRs (if so established – which the Applicants have failed to do) require an application to be deemed invalid or a permission quashed – see, inter alia, Reilly v An Coimisiún Pleanála [2025] IEHC 659 (§81 et seq); Ballyboden Tidy Towns Group v An Bord Pleanála [2023] IEHC 722 (§102 et seq); Pembroke Road Association v An Bord Pleanála [2021] IEHC 403; and Byrnes v Dublin City Council [2017] IEHC 19. Having regard to the totality of the evidence presented, if any non-compliance with the PDRs is established, same does not warrant the quashing of the Commission’s Decision. Lightsource’s Position 63. The Applicants assert that the Impugned Decision is invalid because the planning application failed to comply with articles 17, 18, 19, 22(1)(b), 22(4), 23(1)(a), 23(1)(b) and 23(1)(f) of the 2001 Regulations. However, there is a complete absence of pleaded particulars to support these grounds of challenge. Lightsource denies that any deficiency arises in respect of the planning application documentation. Lightsource submits that the Applicants have not established that there was any breach of the 2001 Regulations, and the Applicants have not actually identified any specific prejudice sustained as a result of any alleged deficiencies in the planning application documentation. The level of detail which the Applicants submit is required goes beyond the scope of the relevant provisions of the Regulations. Even if the Applicants have made out any inadequacy in the drawings (which is denied), the law is clear that even a breach of a mandatory requirement under the 2001 Regulations does not automatically lead to certiorari.” 64. Unfortunately this point is not a basis for relief, for a number of reinforcing reasons. 65. Firstly as regards the pleadings, this point is by and large not adequately articulated in the statement of grounds. The pleadings list out a mixum gatherum of alleged inadequacies without full particulars of how exactly a breach arises or any route map from that to relief. There is a fair bit of substance to the notice party’s complaint that “there is a complete absence of pleaded particulars to support these grounds of challenge”. Generic pleas are insufficient: the commission correctly invokes Casey v. Minister for Housing, Planning and Local Government [2021] IESC 42 (Unreported, Supreme Court, Baker J., 16 July 2021) (§22 et seq.) and Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024) (§41 et seq.). The basic problem is that while various missing pieces of information are set out, it is unclear in most cases which specific provision of the regulations is infringed and why. 66. The full particulars of this claim are as follows. The provisions of the regulations are highlighted – no provisions are cited in the “particulars” of grounds (emphasis added): “Particulars in respect of Core Ground No. 3 The Respondent erred in law in accepting an invalid application for the purposes of the Planning and Development Act 2000 and the Planning and Development Regulations 2001 in respect of the public notice published that failed to describe the nature and extent of the proposed development contrary to Articles 17, 18 and 19 of the Planning and Development Regulations 2001 in failing to specify the number of structures including 24

solar panels, inverters, BESS inverter cabinets, BESS MV skids and extent of roads, contrary to the obligations to state the nature and extent of the proposed development and failed to comply with Article 22(1)(b) in respect of the detail of the maps accompanying the application and Article 22(4) in respect of elevations of the said solar panel structures or any or any appropriate details of the other structures to be constructed, and Article 23(1)(a) in respect of features and/or structures in the vicinity of the site, 23(1)(b) in respect of the scale and detail of the said drawings, 23(1)(f) in respect of the dimensions of the drawings. Accordingly the said development amounts to an invalid application for the purposes of the Planning and Development Act and cannot ground any decision in respect of such an application and the Respondent erred in law in failing to consider the said validity issues and erred in law in determining that these are matters for the Planning Authority in the first instance, and accordingly there is an error of law on the face of the record, the decision is made without jurisdiction and is contrary to law and renders the decision invalid and void. 20. The maps and drawings divide the site into 8 parts, and the drawing has numerical numbers and letters with the letters relating to subsequent maps showing the location of the development for each sector and the map numbers identifying the maps to which these sections relate. 21. It is impossible to identify precisely the scale and extent of the development with the legend on the right-hand side, for example, identified in pink is temporary access roads but the designation on the map is not consistent with that. There are various features shown whose colour on the legend does not equate to what is shown on the plans, and it is impossible to try and ascertain the nature of the development from the maps that have been submitted. The developments in the vicinity of the site, which does not identify lands outlined in blue other than it would appear within the site outlined in red are seriously deficient and in respect of the houses on the perimeter do not show septic tanks and percolation areas, do not show the bored wells which attach to many if not all of the houses in the vicinity, and do not identify the significant tree stands or other features adjoining or in the vicinity of the lands to which the application relates. It is impossible to identify from these drawings the nature and extent of the development. There are no contours or if the contours are on the drawing the intervals are not identified and are completely obscured by a series of developments and in only a very limited number of cases is there any identification of the distance from each of the structures to the boundary. This renders any identification and analysis of the development virtually impossible given the manner in which the drawings are presented. The said maps furthermore do not identify the location of the of the public notice for each of the proposed entrances to the proposed site or wayleaves shown in yellow across the site notwithstanding that there is a 110kv line extending across the site. There a stream which is an important watercourse, and which flows through the site identified. The drawings are uninformed, obscure, impenetrable and incapable of any or any appropriate basis upon which to formulate a submission as required. 22. The drawings submitted with the application are equally inadequate with drawing no. FT-2P-25-6854(TR640-685) purporting to show the solar panels but where the structure comprising the solar panel does not even provide a drawing of the full extent of the elevation nor does it give any dimension as to its length. There are a number of different structures of different lengths and it is impossible to know from the drawings that have been submitted the appearance of the structures as neither a complete front elevation or rear elevation of any of these structures have been provided. 23. These structures are substantial structures extending to a height of 3.55m, but the drawings do not clearly show the foundation details and while there is a typical section shown, it is unclear as to whether there is a concrete plinth onto which the structure is constructed. The entire foundation details are either contradictory or entirely absent, and it is impossible to understand the process by which these structures are to be erected. 24. One cannot therefore discern with any degree of clarity the nature of these structures, the manner in which they are to be constructed or even how they will operate, and certainly one cannot make any type of judgement as to the visual impact of these having regard to the plans and drawings lodged. 25. Similar comments are made in respect of the other structures, including the transformer building in respect of which there is no details as to what the materials referred to comprise, although there is a reference on the drawing that the building is to be painted, but this appears to be inconsistent with the design that has been submitted. The switchgear production substation does not describe what it is to be constructed of. The drawings of the BEFF MV skid row do not appear to illustrate what the materials are and it is difficult to envisage what these buildings will look like from the drawings submitted and it is difficult to 25

discover where they are to be located on the site. The entire drawings are totally inadequate, confusing, contradictory and could never form the basis upon which one could make either an assessment of the impact of the building or even formulate a submission as to their impact. 26. There is a drawing described as ‘IRL_EPD_ROAD CROSS SECTION 3500_01’ and headed ‘access track detail’ which shows quite a sophisticated design in respect of the proposed road which illustrates in different colours ground formation, a terrain layer, a geogrid layer, 200mm of hard core stone compacted, a geogrid layer above that and a 75mm stone or crushed stone cambered to allow water runoff. The top 75mm stone or crushed stone has elsewhere been described in the application as constituting a tarmac or recycled tarmac surface. It is proposed that approximately 5.3km of this road is to be laid across the site including to the substation with junction radii designed it would appear for heavy vehicles and which roads are designed to a high standard. There appears to be both permanent roads which are coloured orange and pink for temporary access roads, but the nature of these temporary access roads is difficult to understand from the drawings. There is no figure in respect of the panels which is estimated to be in the order of 250,000, and in the site notice in respect of the other aspects of the development there is no enumeration of the quantities of inverters, battery blocks etc. when in reality there are 34 no. inverters, 34 no. transformers, 17 no. switchgear substations, 42 no. EPD battery blocks, 21 no. BESS inverters, 42 no. BESS interface cabinets and 21 no. BESS MV skids as well as electrical and communications cabling, site entrances and access roads, a battery storage facility, construction compounds, 2m high deer fencing to extend around the entire perimeter of the site, pole mounted security cameras, as well as a landscaping scheme.” 67. Articles “17, 18 and 19” of the 2001 regulations are a somewhat large block of text. They provide as follows: “Notice of planning application. 17.(1) An applicant shall within the period of 2 weeks before the making of a planning application— (a) give notice of the intention to make the application in a newspaper in accordance with article 18, and (b) give notice of the intention to make the application by the erection or fixing of a site notice in accordance with article 19. (2) Where the last day of the 2 week period referred to in sub-article (1) is a Saturday, Sunday, a public holiday (within the meaning of the Organisation of Working Time Act 1997 (No. 20 of 1997)), or any other day on which the offices of the planning authority are closed, the application shall be valid if received on the next following day on which the offices of the planning authority are open. (3) The requirement of sub-article (1)(b) shall not apply in relation to a planning application for development consisting of the construction or erection by an electricity undertaking of overhead transmission or distribution lines for conducting electricity, or development consisting of the construction or erection by any statutory undertaker authorised to provide a telecommunications service of overhead telecommunications lines. Notice in newspaper. 18.(1) A notice published in accordance with article 17(1)(a) shall be published in a newspaper approved for this purpose in accordance with sub-article (2), shall contain as a heading the name of the planning authority to which the planning application will be made and shall state— (a) the name of the applicant, (b) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate), (c) whether the application is for permission for development, permission for retention of development, outline permission for development or permission consequent on the grant of outline permission (stating the reference number on the register of the relevant outline permission), (d) a brief description of the nature and extent of the development, including – (i) where the application relates to development consisting of or comprising the provision of houses, the number of houses to be provided, (ii) where the application relates to the retention of a structure, the nature of the proposed use of the structure and, where appropriate, the period for which it is proposed to retain the structure, (iii) where the application relates to development which would consist of or comprise the carrying out of works to a protected structure or proposed protected structure, an indication of that fact, 26

(iv) where the application relates to development which comprises or is for the purposes of an activity requiring an integrated pollution control licence, an industrial emissions licence or a waste licence, an indication of that fact, (v) where a planning application relates to development in a strategic development zone, an indication of that fact, (vi) where the application relates to an LRD, an indication of that fact and include the web address referred to in article 20A, (vii) where applicable, that the application is subject to section 34D of the Act, and that where a notice is given under section 34D(b) of the Act, article 26A shall apply, and (e) that the planning application may be inspected, or purchased at a fee not exceeding the reasonable cost of making a copy, at the offices of the planning authority during its public opening hours and that a submission or observation in relation to the application may be made to the authority in writing on payment of the prescribed fee within the period of— (i) 5 weeks, or (ii) 2 weeks, in the case of a planning application for smallscale solar energy equipment development or development that is the installation of a small-scale non- ground source heat pump, beginning on the date of receipt by the authority of the application. (2)(a) For the purposes of these Regulations, each planning authority shall approve a list of the newspapers, including national newspapers, it considers have a sufficiently large circulation in its functional area, and different newspapers may be approved in respect of different parts of such functional area. (b) The list referred to in paragraph (a) shall be reviewed by the planning authority as may be appropriate and at least once a year. (c) The list referred to in paragraph (a) shall be displayed in or at the offices of the planning authority or at any other place or by any other means, including in electronic form, that the authority considers appropriate, and copies shall be made available at the offices of the planning authority during office hours, free of charge. Site Notice. 19.(1) A site notice erected or fixed on any land or structure in accordance with article 17(1)(b) shall be— (a) in— (i) the form set out at Form No. 1 of Schedule 3, (ii) where the development is one that is covered by the provisions of the Renewable Energy Directive, the form set out at Form No. 23 of Schedule 3, or (iii) in either case mentioned in subparagraph (a) or (b), a form substantially to the like effect, (b) subject to sub-article (4), inscribed or printed in indelible ink on a white background, affixed on rigid, durable material and secured against damage from bad weather and other causes, and (c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or where there is more than one entrance from public roads, on or near all such entrances, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road, and shall not be obscured or concealed at any time. (2) Where the land or structure to which a planning application relates does not adjoin a public road, a site notice shall be erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible by persons outside the land or structure, and shall not be obscured or concealed at any time. (3) Where a planning authority considers that the erection or fixing of a single site notice is not sufficient to comply with the requirements of sub-articles (1) and (2), or does not adequately inform the public, the authority may require the applicant to erect or fix such further site notice or notices in such a manner and in such terms as it may specify and to submit to the authority such evidence as it may specify in relation to compliance with any such requirements. (4) Where a valid planning application is made in respect of any land or structure, and a subsequent application is made within 6 months from the date of making the first- mentioned application in respect of land substantially consisting of the site or part of the site to which the first-mentioned application related, in lieu of the requirements of sub-article (1)(b), the site notice for the subsequent application shall be inscribed or printed in indelible ink on a yellow background and affixed on rigid, durable material and be secured against damage from bad weather and other causes.” 27

68. Which provision out of the foregoing 1,196 words is allegedly infringed and why? There is no answer – this is impossibly vague and falls well short of minimum pleading requirements. 69. That leaves us with the additional provisions cited which are as follows. 70. Article 22(1)(b) is referred to, but there is no such provision. Possibly art. 22(2)(b) is intended: “A planning application referred to in sub-articles (1) and (1A) shall be accompanied by – (a) ..., (b) 6 copies of a location map of sufficient size and containing details of features in the vicinity such as to permit the identification of the site to which the application relates, to a scale (which shall be identified thereon) of not less than 1:1000 in built up areas and 1:2500 in all other areas, or such other scale as may be agreed with the planning authority prior to the submission of the application, in any particular case and marked so as to identify clearly: (i) the land or structure to which the application relates and the boundaries thereof in red, (ii) any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant or the person who owns the land which is the subject of the application in blue. (iii) any wayleaves in yellow, and (iv) the position of the site notice or notices erected or fixed to the land or structure pursuant to article 17(1)(b), ...” 71. Article 22(4) provides: “(4) Subject to articles 24 and 25 – (a) a planning application in respect of any development consisting of or mainly consisting of the carrying out of works on, in, over or under land or for the retention of such works shall be accompanied by 6 copies of such plans (including a site or layout plan and drawings of floor plans, elevations and sections which comply with the requirements of article 23), and such other particulars, as are necessary to describe the works to which the application relates, (b) a planning application for any development consisting of or mainly consisting of the making of any material change in the use of any structure or other land, or for the retention of any such material change of use, shall be accompanied by- (i) a statement of the existing use and of the use proposed together with particulars of the nature and extent of any such proposed use, (ii) where the development to which the application relates comprises the carrying out of works on, in, over or under the structure or other land, 6 copies of such plans (including a site or layout plan and drawings of floor plans, elevations and sections which comply with the requirements of article 23), and such other particulars, as are necessary to describe the works proposed, and (iii) such plans and such other particulars as are necessary to identify the area to which the application relates.” 72. Article 23(1)(a), (b) and (f) provide: “23.(1) Plans, drawings and maps accompanying a planning application in accordance with article 22 shall all be in metric scale and comply with the following requirements: (a) site or layout plans shall be drawn to a scale (which shall be indicated thereon) of not less than 1:500 or such other scale as may be agreed with the planning authority prior to the submission of the application, the site boundary shall be clearly delineated in red, and buildings, roads, boundaries, septic tanks and percolation areas, bored wells, significant tree stands and other features on, adjoining or in the vicinity of the land or structure to which the application relates shall be shown, (b) other plans, elevations and sections shall be drawn to a scale of not less than 1:200 (which shall be indicated thereon), or such other scale as may be agreed with the planning authority prior to the submission of the application in any particular case, ... (f) plans and drawings of floor plans, elevations and sections shall indicate in figures the principal dimensions (including overall height) of any proposed structure and the site, and site or layout plans shall indicate the distances of any such structure from the boundaries of the site. ...” 73. Why exactly are the application documents in breach of the foregoing? Generally this is not clear at first sight and certainly the applicants have left the reader a great deal of homework if not guesswork. Pleadings are meant to set out a chain of logic whereby particular facts and particular contentions of law lead to particular legal conclusions resulting in relief. The applicants have largely abandoned this task by making general complaints about the documents and citing the regulations 28

without pleading or demonstrating that the wordings of the various provisions of the regulations can bear the weight sought to be placed on them. 74. Secondly, even if the point had been properly pleaded, the applicants bear the onus to show that there has in fact been non-compliance, which unfortunately they have not discharged. As the notice party submits, “The level of detail which the Applicants submit is required goes beyond the scope of the relevant provisions of the Regulations”. 75. The applicants’ main point was a lack of specification of the number of structures – but in fact there is much detail on this in the application documentation. For example the number of structures including inverters/panels is specified in the planning report at p. 10 (of 52). Figure FT- 2P-25-6854 (Tr 604-685) sets out further detail on the module array and racking system. The site layout plans show the extent of the structures. Dimensions are shown in the application documentation. There is no obligation to include this level of detail in the newspaper or site notice and indeed it would be obviously unworkable to do so. 76. Finally, I deal with discretion later in this judgment and would refuse relief under this heading on a discretionary basis if counterfactually there was a properly pleaded and demonstrated breach. EU law issues 77. While core ground 1 is pleaded under the domestic heading it is really a mix of domestic and EU issues and can be taken together with core ground 4. Core grounds 1 and 4 – lack of EIA 78. Core ground 1 is: “1. The Respondent erred in law that whilst initially having determined that an Environmental Impact Assessment was required on the basis of the design and extent of the roadway servicing the development and on the basis of the plans for the said roads that were submitted with the application and the nature of the proposed roads which comprised ground formation, a terram layer, a geogrid layer, 200mm of hard core compacted stone and 75mm of stone or crushed stone cambered to allow runoff and/or tarmac and where a Notice under Section 132 of the Planning and Development Act 2000 was issued directing than an Environmental Impact Assessment Report be submitted which Notice was based on two separate technical reports and where, without any or any appropriate basis or without any or any appropriate evidence to deal with the original finding, the Respondent decided to proceed to determine the application without the submission of an Environmental Impact Assessment Report. The Respondent, without carrying out an Environmental Impact Assessment, had no or no basis on which basis on which to make the said decision, had no jurisdiction to disapply the Notice issued under Section 132 of the Planning and Development Act, erred in law in its determination that such an Environmental Impact Assessment Report was not required on the basis that it should not proceed with the issue of a Notice under Section 132. The Respondent made the determination without any or any notice to the Applicants or members of the public in respect of the said determination and only after the determination notified the said public and failed to have any regard to the submissions made, and accordingly the decision is contrary to fair procedures, was made without jurisdiction, without any or any Order of the Board withdrawing the Section 132 Notice, without any or any consideration of third party submissions including those of the Applicants, in breach of the principles of audi alteram partum, in breach of fair procedures, and in breach of the right of public participation under the Planning and Development Act and under European Community Law, and in particular Council Directive 2011/92EU, and amounts to an error of law on the face of the record and renders the decision invalid and void.” 79. Core ground 4 is: “4. The Respondent erred in law in failing to require a mandatory Environmental Impact Assessment having regard to Class 10(dd) of Schedule 5, Part 2 of the Planning and Development Regulations 2001 (as amended) which provides that private roads which would exceed 2000m in length require a mandatory Environmental Impact Assessment and where application reference no. 318433/23 is a specified development having circa 5.3km of roads comprised of drainage channels, geogrid layers, a subbase, 200mm compacted stone and 75mm stone/tarmac of a width of 3.5m to 4.5m in width, has been classified by the Respondent as a road in the first instance. The Respondent served a Notice requiring the submission of an Environmental Impact Assessment Report with the Notice issued pursuant to Section 132 of the Planning and Development Act 2000, and in failing to require the submission of an Environmental Impact Assessment Report and failing to carry out an Environmental Impact Assessment the Respondent acted contrary to Council Directive 2011/92EU, in breach of its obligations under European Community law, acted ultra vires and without jurisdiction and renders the decision under 318433-24 invalid and void.” 80. The parties’ positions as recorded in the statement of case are summarised as follows: “Applicants’ Position: 29

Core Ground No. 1 38. Core Ground No. 1 is concerned with the failure of the Respondent Commission to carry out an Environmental Impact Assessment in respect of a development that exceeds the thresholds provided for in Council Directive 2011/92EU as transposed into Irish law by virtue of Class 10(dd) of Schedule 5 of Part 2 of the Planning and Development Regulations, 2001. The said ground is also relied upon in Core Ground No. 4 and the substance of these grounds identify, in broad terms, 2 specific issues as follows: (i) That the Respondent erred in law in determining an application where part of the development exceeded the threshold provided for in respect of which a mandatory Environmental Impact Assessment is required and acted without any or any appropriate jurisdiction in determining the application without requiring the submission of an Environmental Impact Assessment Report and without carrying out an Environmental Impact Assessment. (ii) That the Respondent erred in law in making a determination that an Environmental Impact Assessment was required, served a Notice under Section 132 of the Planning and Development Act, 2000, directing that an Environmental Impact Assessment Report be submitted and having made that determination which is based on the plans and particulars lodged with the application, which is the only basis upon which any such determination can be made, the Respondent was obliged to require the terms of that Notice be complied with. Commission’s Position: 39. In essence, these grounds allege: - That part of the Proposed Development – namely the access tracks – comprise a ‘road’ project for the purposes of Class 10(dd) of Schedule 5, Part 2 of the PDRs – namely a ‘private road…which would exceed 2000 metres in length’. The Applicants assert that same required mandatory EIA (Core Ground 4). - That the Commission erred in circumstances where it issued a s.132 Notice, dated 31 July 2024, requiring the submission of an EIAR on the basis that it initially considered the said access tracks comprised such a road project for the purposes of EIA, but subsequently decided, upon clarifications from the Developer as to the nature of the access tracks, dated 27 August 2024, that an EIAR was not necessary as same were not in fact such a road project (Core Ground 1). 40. As to Core Ground 4, the access tracks in this case do not comprise a category of EIA road project – they are not a ‘private road which would exceed 2000 metres in length’ (Class 10(dd) of Schedule 5, Part 2 of the PDRs). Having regard to the nature/make-up of the access tracks (see, inter alia, the Developer’s submission to the Commission in response to the s.132 Notice and Drawing IRL-EPD-ATS) and the decision in Cummins v An Coimisiún Pleanála [2025] IEHC 521 (which concerned consideration of similar access tracks), the Applicants’ complaints are without merit. While the Applicants have referred to the Cummins decision, the submissions have not identified any cogent basis to distinguish it and its reliance on the Forestry Regulations is misconceived. 41. If the Commission is correct and the access tracks are not a category of ‘road’ project for the purposes of Class 10(dd) of Schedule 5, Part 2 of the PDRs, then the complaints regarding s.132 (Core Ground 1) should also fail as they are premised on what would be an incorrect claim that an EIAR and EIA were required. In this respect, if no EIAR or EIA was required in respect of the Proposed Development, then the alleged failures arising from the s.132 Notice process cannot credibly be maintained as a basis for quashing the Commission’s Decision. 42. As to the substance of Core Ground 1, same is predicated: (i) On the false premise that the access tracks comprise an EIA road project – they do not. (ii) On an incorrect and unworkable interpretation of s.132 of the PDA – the Applicants’ interpretation of the statutory framework is such that the issuing of a s.132 Notice operates as a procedural straightjacket, confining the Commission to a specific course of action regardless of whether same is subsequently considered not to be legally correct or necessary in light of the response provided 43. The Commission’s approach should not be that contentious, with s.132 expressly allowing the Commission to determine an appeal even if the notice is not responded to (here, it was and the Commission accepted the response) – same does not preclude such a course, but expressly envisages same. The approach of the Commission in this case was perfectly reasonable – having obtained clarity on the matter, it decided not to seek an EIAR as one was not required. Contrary to what the Applicants contend in Submissions (although they plead no ground relevant to same), there was nothing “disturbing” about the procedures adopted, nor were the Applicants prejudiced in any way by same – in fact, they were 30

provided with an opportunity to make further submissions on this issue following the Developer’s response. The fact that their legally incorrect submission on this issue was not accepted is not a basis for relief or for grounding a complaint of unfairness. 44. Even if there was an error in the procedures adopted by the Commission in this case, noting the case law referred to herein, same was trivial/minor and of no substance, and does not warrant the quashing of the Commission’s Decision – such an approach would be entirely disproportionate in the circumstances. Lightsource’s Position Core Ground 1 45. In respect of Core Ground 1, the Commission’s jurisdiction under section 132 of the 2000 Act is clear. Pursuant to section 133, where a section 132 notice has been issued, the Commission may ‘at any time after the expiration of the period specified in the notice’, having considered ‘any submissions or observations or document, particulars or other information submitted by the person on whom the notice has been served’, determine or dismiss the appeal. There is no dispute that the Section 132 Notice was issued on 31 July 2024, and the response to the Section 132 Notice received by the Commission was circulated to the other parties to the Appeal (including the Applicants) on 17 September 2024, pursuant to the provisions of section 131. In all the circumstances, the Commission was entitled to determine or dismiss the Appeal. In this case, the Commission acted within jurisdiction and lawfully determined the Appeal. 46. There is no prohibition on the Commission proceeding to determine the Appeal on the basis that no EIAR was required, having earlier sought the submission of an EIAR by notice issued under section 132, nor has the Applicant advanced any provision of the 2000 Act or the Planning and Development Regulations 2001, as amended, to support such a case. Rather, it is clear from the correct interpretation of sections 131, 132 and 133 of the 2000, that such a limitation is not placed on the Commission: see Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43 (at §106), and Cummins v An Coimisiún Pleanála [2025] IEHC 521 (at §48). Core Ground 4 47. In respect of Core Ground 4, as is apparent from the public notices, the planning application did not seek, and was not granted, permission for a private road. Rather, the Applicants seek to rely upon an error made in the preparation of the site layout plan submitted with the planning application, which contained an incorrect reference to ‘access roads’. However, the error was acknowledged both before the Council (in the RFI Response submitted on 19 September 2023 and in the submission to the Commission on the Section 132 Notice. This issue was considered by the Inspector in his Report at sections 5.5.3 to 5.5.7. 48. Lightsource’s response to both the Councils’ RFI and the Commission’s Section 132 Notice clarified that the surface finish of the tracks would be ‘75 mm stone or crushed stone’, as also identified in the relevant cross-sections and photographs. Accordingly, to the extent that any issue arises, there is no inconsistency between the decision of the Commission and the judgment of the High Court in Cummins, and this ground of challenge ought to be dismissed on that basis. 49. Separately, the Applicants’ attempt in their Written Submissions to distinguish this case from Cummins on the basis of the Forestry Regulations 2017 [S.I. No. 191 of 2017] (the ‘Forestry Regulations’) is wholly misconceived. However, the issue does not arise for consideration by the Court in circumstances where there is no pleaded reference to the Forestry Regulations. Strictly without prejudice, in advancing this unpleaded ground, the Applicants are attempting to argue that Cummins was decided per incuriam by failing to consider the Forestry Regulations. However, that submission is demonstrably incorrect. The Applicants rely on Regulation 13(2) of the Forestry Regulations and, in particular, place reliance on the requirement that ‘forest road which would involve a length of 2000 meters or more’ is subject to EIA. However, it is clear that Part 7 of the Forestry Regulations relates to ‘development’ which is defined to mean ‘afforestation or forest road works’ and the obligation for the Minister to carry out an EIA arises only in respect of an application for a licence, including a licence in respect of ‘forest road works’. 81. Section 132 of the 2000 Act provides (emphasis added): “Power of Board to require submission of documents, etc. 132.—(1) Where the Board is of opinion that any document, particulars or other information may be necessary for the purpose of enabling it to determine an appeal or referral, the Board may, in its absolute discretion, serve on any party, or on any person who has made submissions or observations to the Board in relation to the appeal or referral, as appropriate, 31

other than the applicant for permission in the case of an LRD appeal, a notice under this section— (a) requiring that person, within a period specified in the notice (being a period of not less than 2 weeks beginning on the date of service of the notice) to submit to the Board such document, particulars or other information as is specified in the notice, and (b) stating that, in default of compliance with the requirements of the notice, the Board will, after the expiration of the period so specified and without further notice to the person, pursuant to section 133, dismiss or otherwise determine the appeal or referral. (2) Nothing in this section shall be construed as affecting any other power conferred on the Board under this Act to require the submission of further or additional information or documents.” 82. Section 133 provides (emphasis added): “Powers of Board where notice served under section 131 or 132. 133.—Where a notice has been served under section 131 or 132, the Board, at any time after the expiration of the period specified in the notice, may, having considered any submissions or observations or document, particulars or other information submitted by the person on whom the notice has been served, without further notice to that person determine or, in the case of a notice served under section 132, dismiss the appeal or referral.” 83. The applicants’ point here requires a little unpacking. The applicants’ issues as ultimately advanced at the hearing and as summarised in the statement of case can be broken down as follows: (i) A challenge to the change of mind – “whilst initially having determined that an Environmental Impact Assessment was required … and where a Notice under Section 132 of the Planning and Development Act 2000 was issued … and where, without any or any appropriate basis or without any or any appropriate evidence to deal with the original finding, the Respondent decided to proceed to determine the application without the submission of an Environmental Impact Assessment Report … The Respondent, without carrying out an Environmental Impact Assessment, … erred in law …” (ii) Lack of notice of the change of mind – “The Respondent made the determination without any or any notice to the Applicants or members of the public in respect of the said determination and only after the determination notified the said public and failed to have any regard to the submissions made, and accordingly the decision is contrary to fair procedures … and in breach of the right of public participation under the Planning and Development Act and under European Community Law, and in particular Council Directive 2011/92EU”. (iii) Lack of commission order – The change of mind “was made … without any or any Order of the Board withdrawing the Section 132 Notice”. No oral submission was made on this. (iv) Substantive error regarding lack of EIA of tracks/roads – “The Respondent erred in law in failing to require a mandatory Environmental Impact Assessment having regard to Class 10(dd) of Schedule 5, Part 2 of the Planning and Development Regulations 2001 (as amended) ...” 84. Unfortunately these points are without substance: (i) It is inherent in the public participation process that the shape of a project and/or the proposed decision can change – that is the whole point of consultation and participation. Article 8 of the Aarhus Convention says this expressly (emphasis added): “Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment”. The public participation directive (Directive 2003/35/EC) uses similar language (arts. 2(2)(b) and 3(4) amending the EIA directive 85/337). (See also Clifford v. An Bord Pleanala (No. 2) [2021] IEHC 642 (Unreported, High Court, 15 October 2021) at para. 12 onwards, Coyne v. An Bord Pleanála [2023] IEHC 412 (Unreported, High Court, Holland J., 21 July 2023), para. 333 onwards and Eglington Residents Association v. An Bord Pleanála [2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025) at para. 63). As a general principle, there is nothing in law to prevent a decision- taker from changing her mind prior to a final decision. Indeed if a decision-taker could not do so, it would nullify many provisions on consultation and public participation in many contexts. This case illustrates that – the change of mind was as a result of submissions made. The fact that the submissions were from the developer rather than the applicants does not give the applicants a cause of action. 32

I don’t think it’s too harsh to suggest that if the applicants had succeeded in changing the commission’s mind from an initial hypothetical decision not to invoke EIA they would not be here complaining that change of mind was unlawful – rather they would be celebrating a success of the consultation process. In the planning context specifically, there is nothing to impose such a restriction that merely because the commission issues a notice under s. 132 it is precluded from forming a final view to the contrary. Section 133 expressly requires consideration of submissions put forward by the person on whom a notice was served – that occurred and quite properly the consideration was not pro forma but resulted in a substantive view that EIA was not necessary. A decision-taker is not obliged to make an incorrect or even unlawful decision merely because she did not realise the problem earlier. As the commission submits, “the PDA should be given a workable interpretation”, citing inter alia Waltham Abbey/Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (§43 per Hogan J.); Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43, [2024] 2 I.R. 222, [2022] 2 I.L.R.M. 313 (§106 et seq. per Murray J.); Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 (inter alia, §47 per Woulfe J.). The argument that the developer should have judicially reviewed the notice is misconceived – mid-process judicial review is presumptively inappropriate but more fundamentally it is unnecessary – the decision-taker can generally rectify or mitigate the effects of any sub-optimal step before the process is complete. Here the effect of the notice was mitigated by the grant of permission notwithstanding that the notice was not complied with. (ii) The fair procedures issue is a non-starter because all parties including the applicants were given the opportunity to comment on the developer’s submission that urged a change of mind, and the views expressed including by the applicants were then considered. It was not a breach of fair procedures or of EU law for the commission to change its mind on the necessity for EIA, because anyone engaging in public participation was in any event entitled to make any points they wanted to. Indeed EU public participation rights are not free-standing – they depend on EU law being engaged in the first place. But even leaving that aside, anyone engaging in public participation was entitled to make whatever points they wanted about the necessity or otherwise for EIA. As already noted, this point doesn’t even get off the ground on the facts because the applicants got notice of the developer’s request that the s. 132 notice not be insisted on, and had the opportunity to comment on that. Insofar as there was an allegation in oral submissions that certain submissions were not considered (specifically from Mr Joe Noonan, solicitor, of 10 October 2024 regarding the alleged impermissibility of withdrawing a s. 132 notice (written on the applicants’ instructions rather than being some sort of formal legal opinion), and by Mr Buck of the applicants’ planning consultants, also on 10 October 2024), the statement of grounds is generic in this regard and such a complaint is not specifically pleaded but in any event the onus of proof of non-consideration has not been discharged. Insofar as there was a complaint in submissions that internal memoranda should have been available on the website, that is not a pleaded complaint. Insofar as there is a reasons complaint, the reasons are clear. Narrative analysis is not required. The developer’s submissions were clearly accepted. In any event this is a legal issue (EIA not being required for solar farms or for internal tracks falling short of roads), so failure to give reasons for a correct conclusion on a point of law does not render an otherwise lawful position unlawful. Reasons are tied in to the exercise of evaluative judgement, not a basis for undermining a decision-taker in following what is legally required. Following the law is a situation where there is no choice involved. It is not to be equated with a discretionary or evaluative choice which involves a reasoned line of argument and thought. (iii) There is no legal obligation for there to be any particular formality about the form of a decision by the commission. That is a matter for them. I am not hugely enthusiastic about the over-formal term “order” in any event which feels a bit of a throwback to the bygone days when the board was chaired by a judge, but it’s up to the commission rather than an applicant to decide how to record its decisions. In any event, it is not technically correct that the commission decided to “withdraw” the notice. The statutory architecture does not have the effect that a permission must be refused in the event of non-compliance – it creates a power rather than an obligation to refuse. The commission can lawfully decide not to refuse – as they did here – if they decide that the grant of permission would be lawful notwithstanding 33

that the information envisaged by the s. 132 notice was not furnished. No “withdrawal” of the notice is necessary and none took place here – albeit that the decision is in substance a decision to no longer place any reliance on the notice. But there isn’t anything unlawful about that. (iv) The applicants have not discharged the onus of proof to show that these are roads within the meaning of the directive. The applicants in effect say that the finish proposed was of road quality, but such a conclusion wouldn’t accurately reflect the application documentation. The developer had already clarified to the planning authority that tarmac finish was not envisaged – see letter of 27 August 2024 (the photos attached to that letter may look a bit like tarmac but the applicants haven’t proved that and the notice party confirms that they are in fact stone). The actual permission granted was on the basis that as noted at para. 5.5.5 of the inspector’s report, the finish will be stone or crushed stone, which makes these primitive tracks that are not meaningfully distinguishable from Cummins v. An Coimisiún Pleanála [2025] IEHC 521 (Unreported, High Court, 3 October 2025). If the roads were fully finished in road-like manner to withstand ongoing vehicular movement rather than being for intermittent access only then the fact that they were internal would not exclude them from being roads. The applicants ask if the Ferrari circuit at Maranello is a road – but the notice party helpfully draws attention to the fact that such constructions are dealt with separately by the directive (annex II, point 11(a) which suggests, perhaps favourably to the opposing parties here by analogy, that they would not in fact qualify as roads in themselves despite being permanent constructions – but there is no need to get into further obiter discussion on that specific hypothetical for present purposes). By contrast as emphasised in Cummins, to categorise internal access tracks as roads would transmogrify many developments that fall outside the directive into EIA projects. Caselaw has repeatedly emphasised that solar farms are not subject to EIA. Insofar as a forestry-law related point was made in submissions, the Forestry Regulations are not pleaded. As in Cummins, the fact that the tracks use modern methods of construction is to be expected and does not have the implication that they are roads. 85. So this point unfortunately must fail. Discretion 86. Even assuming counterfactually that there was a breach in relation to the domestic law issues, discretion should be exercised against relief on a number of independent but mutually reinforcing grounds: (i) In the full context of the application and its detailed consideration any breach was de minimis. (ii) As regards lack of particulars, the applicants participated in the process and did not claim any prejudice from lack of particulars of the project. Indeed they responded expressly to the particulars of the scale of the project. (iii) Nobody else made such a complaint to the commission either or indicated any difficulty in understanding the project. (iv) The application documents contain a great degree of detail in any event so any hypothetical non-compliance would have been minor in the context. (v) No prejudice to the applicants has been demonstrated evidentially. (vi) Even if some technical infirmity existed, the public interest in renewable energy outweighs the public interest in strict technical compliance that did not give rise to any identified and established harm. 87. Discretion is a general concept and its application certainly includes infirmities in planning application documents. Even if there was a breach of the regulations, certiorari is not automatic: Byrnes v. Dublin City Council [2017] IEHC 19 (Unreported, High Court, Baker J., 18 January 2017); Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403 (Unreported, High Court, Owens J., 16 June 2021); Ballyboden Tidy Towns Group v. An Bord Pleanála [2023] IEHC 722 (Unreported, High Court, Holland J., 21 December 2023) (§102 et seq.) and Reilly v. An Coimisiún Pleanála [2025] IEHC 659 (Unreported, High Court, 28 November 2025) (§81 et seq.). 88. Broadly speaking I would endorse the notice party’s submission here: “91. It is Lightsource’s position that all grounds sought by the Applicants should be refused, and as such, that there is no basis upon which the Court should be called upon to consider the exercise of its undoubted discretion to refuse to grant relief, particularly, certiorari. However, in the event that the High Court concludes that the Applicants have made out one or more of its grounds of challenge (which is not accepted for the reasons set out above), then it is Lightsource’s position that this court should exercise its discretion to refuse the reliefs sought. 34

92. As outlined at the outset, the Proposed Development comprises a renewable energy project which, when developed, will make a significant contribution towards achieving national climate action targets, including those set out in the Programme for Government 2025 (which commits to achieving a 51% reduction in greenhouse gas emissions from 2018 to 2030 and net-zero emissions no later than 2050) and the Climate Action Plan 2025 (which includes a legally binding reduction in sectoral emissions by 75% by 2030). 93. In addition to the Proposed Development’s significant contribution to the achievement of the national climate targets, it offers capacity to address issues identified in relation to security of electricity supply, as outlined in the Planning Statement submitted on the planning application (including at page 51). 94. In such circumstances, … the public interest in the production of renewable energy arises, inter alia, as a direct consequence of Article 3(1) of Directive 2018/2001/EU, which introduces a binding requirement on the EU to ensure that at least 42.5% of all energy produced from renewable sources by 2030. It is well-established that Ireland is obliged, by reason of the duty of sincere cooperation enshrined in the TFEU, to interpret its legislation in a manner that conforms with the requirements of EU law: Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43, subject to the limitation that a Court is not obliged to interpret legislation contra legem and to do violence to the words of the text (§ 204). 95. Whilst it is not submitted that the principle of conforming interpretation removes the Court’s discretion in deciding whether to grant relief by way of judicial review, it is submitted that the duty on the State to comply with Directive 2018/2001 is such that the impact of any order which minimises the State’s production of renewable energy is unquestionably a weighty factor to be considered in the exercise of the Court’s discretion in deciding whether to grant relief, particularly certiorari.” 89. As regards EU law issues, the scope for discretion in the event of there counterfactually having been a breach is admittedly more limited (see e.g. the judgment of 25 June 2020, A and Others v Gewestelijke stedenbouwkundige ambtenaar van het departement Ruimte Vlaanderen, afdeling Oost-Vlaanderen, C-24/19, ECLI:EU:C:2020:503 (Grand Chamber)), but I don’t need to consider that further given that discretion was effectively being advanced as an answer to the domestic complaints rather than the European complaints. Summary 90. In outline summary, without taking from the more specific terms of this judgment: (i) It is settled law that an applicant must plead sufficient particulars to establish how a breach arises. (ii) Applying such law to the facts here, there is generally insufficient pleading of how any breach arises in relation to the development plan or the application documentation. (iii) It is settled law that the onus of proof lies on an applicant. (iv) Applying such law to the facts here, the applicants have failed to show how a breach arises in relation to consideration of the development plan, and have failed to show how precisely the application documentation was insufficient by reference to the specifics of the regulations. They have also failed to demonstrate evidentially that the access tracks were roads within the EIA directive. (v) It is settled law that consultation and public participation should occur while options are still open, and it follows from that that an interim decision that EIA is required can lawfully be revisited following submissions. (vi) Applying such law to the facts here, there was nothing unlawful about the commission having received and acted on contrary submissions on foot of its initial decision that EIA was engaged. (vii) It is settled law that relief by way of judicial review is discretionary. (viii) Applying such law to the facts here, multiple factors favour refusal of relief even if counterfactually there was a technical breach of domestic law here. 91. By way of a ground-by-ground summary of the disposition of the matter: (i) core ground 1 – dismissed in this judgment; (ii) core ground 2 – moved formally without oral submissions, dismissed in this judgment; (iii) core ground 3 – dismissed in this judgment; (iv) core ground 4 – dismissed in this judgment; (v) core ground 5 – refused at leave stage; and (vi) core ground 6 – withdrawn by applicants. Order 92. For the foregoing reasons, it is ordered that: 35

(i) the proceedings be dismissed; (ii) unless any party applies otherwise by written legal submission before the next mention date, the foregoing order be perfected forthwith thereafter on the basis of no order as to costs including reserved costs; (iii) for the avoidance of doubt, any unsuccessful application to vary any provisional order as to costs proposed in the judgment may be addressed pursuant to O. 103 r. 40(4) RSC; and (iv) the matter be listed on Monday 23 February 2026 to confirm the foregoing.