Condon v an Coimisiún Pleanála and Anor [No. 2]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 06 March 2026
• Neutral Citation: [2026] IEHC 137
• Docket Number: [H.JR.2022.0000672]

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Deirdre Condon

Applicant

and

An Coimisiún Pleanála

Respondent

and

Ruden Homes (No. 2)

Notice Party

[2026] IEHC 137

[H.JR.2022.0000672]

THE HIGH COURT

PLANNING & ENVIRONMENT

Judicial review – Leave to appeal – Planning and development – Notice party seeking leave to appeal – Whether an appeal was in the public interest

Facts: The High Court (Humphreys J), in the No. 1 judgment ([2025] IEHC 255), granted an order of certiorari quashing the decision of the respondent, An Coimisiún Pleanála (the commission). The notice party developer, Ruden Homes, sought leave to appeal. The notice party’s proposed questions of alleged exceptional public importance were as follows: (i) whether, as held in South West Regional Shopping Centre v An Bord Pleanála [2016] IEHC 84, the commission is entitled to exercise its own expertise and determine for itself whether or not an application materially contravenes a CDP for the purposes of s. 37 of the Planning and Development Act 2000; and (ii) whether a CDP objective, of a type such as Objective 4-3, providing for archaeological assessment requires a mandatory physical survey of all relevant structures such as to definitively determine the existence, nature and extent of any remains prior to the date of the making of a planning application.

Held by Humphreys J that: (i) the law on material contravention has already been clarified by the Supreme Court in Sherwin v An Bord Pleanála [2024] IESC 13, and the outcome in this case was consistent with and amounted in effect to a simple application of the logic of Sherwin - the problem for the notice party was that the council contended that CDP policy HE 3-4 had been breached, but the inspector and commission never engaged with that, thus failing step 1 of Sherwin; (ii) the core of the case was a lack of correct interpretation and therefore of compliance or even engagement with the plan and this was merely applying the correct procedure for engagement with the development plan - it was not offering a view on whether the plan could lawfully have been materially contravened; (iii) the development plan at issue was adopted 12 years ago and expired in June 2022, and the wording of the new plan was significantly different - the judgment had no wide ramifications as alleged or at all; (iv) the question based on South West Regional Shopping Centre did not properly arise as that was never argued and the submission misunderstood that case - the question based on material contravention misunderstood the principal judgment; and (v) an appeal was not in the public interest having regard to the foregoing, the fact that this case was about the lack of engagement with a specific term in a specific development plan which expired the best part of 4 years ago and which had been replaced by a different wording, and the fact that the whole issue could have been avoided by the developer by having its expert take a look at the structures before submitting her report, as opposed to merely writing that report at a desk - the significant inaccuracies in and omissions from the developer’s material on that issue did not assist its position.

Humphreys J dismissed the application for leave to appeal.

Application refused.

JUDGMENT of Humphreys J. delivered on Friday the 6 ^th day of March 2026

“[A]s stated in the Development Plan Objective 2014 HE 3–4 these buildings shall be subjected to careful assessment. The assumption that they can be demolished without acknowledgement and due regard to their heritage value is unacceptable and development in this area should be omitted pending the outcome of the Historic assessment of the buildings.” [Archaeology officer of Cork County Council, report to the Board]

1 . An old Jewish saying defines chutzpah as the quality demonstrated by “the boy who murdered his parents and then pleaded for mercy from the court on the grounds that he was an orphan” (as recounted by Irvin D. Yalom in The Schopenhauer Cure (New York, HarperCollins, 2005) p. 73). Almost as if viewing this as a how-to guide for forensic success, the developer here put forward an archaeology report to the commission that claimed that the relevant old structures were not available for inspection during the site visit, failed to mention that there was no site visit at all for the purposes of the application but rather an earlier site visit for a different application was recycled at a desk, failed to mention that the reason for this was lack of time, incorrectly claimed that the structures were not “available” when in fact they were simply not relevant to the earlier application as they fell outside the red-line for that earlier and more limited application, failed to explain any of this in the report until the matter was queried in these proceedings, incorrectly claimed through its consultant on affidavit that there was a “Heritage Report” supporting a conclusion of no historic merit, exhibited the archaeology assessment which made no such claim but which to the contrary advocated inspection and assessment of the structures, unwisely doubled down when the non-existence of this confabulated report was raised and sought refuge in various other documents, some of which either don't support such a conclusion or positively contradict it, and finally sought leave to appeal with the startling claim that compliance with the development plan here would have sweeping implications, when minimal effort was in fact made to engage with the plan in the first place.

Procedural history

2 . In ( [2025] IEHC 255 Condon v. An Bord Pleanála (No. 1) Unreported, High Court, 2 May 2025), I granted an order of certiorari quashing the commission's decision. The notice party now seeks leave to appeal.

3 . Following the substantive judgment on 2 May 2025, the notice party took some time – the best part of 5 months, albeit one of those was August – to formulate proposed questions of law for appeal, and ultimately delivered legal submissions seeking leave to appeal on 22 September 2025. The applicant delivered replying submissions. The matter was heard on 10 November 2025. Following that there were a number of mention dates and further affidavits and exchanges to attempt primarily to clarify why the archaeologist's report stated that the structures were not available for inspection when in fact they were so available at all times material to the present proceedings.

4 . Judgment was reserved at the final mention date of 9 February 2026. 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.

5 . On 13 February 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.

6 . Any comments must be emailed to the court and uploaded to ShareFile in writing by the deadline specified 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.

7 . 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 deadline specified, 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,...