Cummins and Others v an Coimisiún Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 03 October 2025
• Neutral Citation: [2025] IEHC 521
• Docket Number: [H.JR.2024.0000783]

In the Matter of S.50 of the Planning and Development Act 2000 and S.3 of the Environmental (Miscellaneous Provisions) Act 2011

Between

Mervyn Cummins, Josephine Curry, Paul Fogarty, Des O'Donovan and The Clonea Gun Club

Applicants

and

An Coimisiún Pleanála

Respondent

and

Bnrg Mothel Limited

Notice Party

[2025] IEHC 521

[H.JR.2024.0000783]

THE HIGH COURT

PLANNING & ENVIRONMENT

Judicial review – Development consent – Fair procedures – Applicants seeking an order of certiorari quashing a decision to grant development consent to the notice party – Whether the impugned decision was invalid and made contrary to fair procedures

Facts: The applicants, Mr Cummins, Ms Curry, Mr Fogarty, Mr O’Donovan and The Clonea Gun Club, applied to the High Court for an order of certiorari by way of application for judicial review quashing a decision made by the respondent, An Coimisiún Pleanála (the Board), on or about 24 April 2024 to grant development consent to the notice party, BNRG Mothel Ltd, for the construction of a solar farm at Bishopstown, Bridgetown, Ballyhest and Ballyneal, Co. Waterford. The core grounds of challenge included the following: (3) the impugned decision was invalid and made contrary to fair procedures and s. 34(2) of the Planning and Development Act 2000; (4) the decision was made contrary to ss. 37(1)(b); (5) the Board failed to consider matters that it ought to have considered; (7) the decision contravened Articles 6(3) and 12 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive); and (8) the decision contravened Article 103(1B)(b) of the Planning and Development Regulations 2001 and the EIA Directive.

Held by Humphreys J that: (i) on the facts, the Board did not fail to have regard to the development plan; (ii) the economic viability of a project is not an irrelevant consideration in assessing the conditions or duration of a permission; (iii) on the facts, the Board did not fail to consider the need for further information or fail to give reasons in that regard; (iv) on the facts, the applicants had not discharged the burden to show that the AA assessment was flawed; (v) on the facts, the claim that this was an urban development or other specified type of EIA project was without merit; (vi) it is settled law that a party is confined to its pleadings; (vii) applying that, the request for a reference on whether solar farms are EIA projects was inadmissible as that was founded on an unpleaded point; (viii) it is settled law that domestic law needs to be given an EU-conforming interpretation if possible, and it follows that terms in domestic transposing legislation should be construed consistently with the meaning of terms in the EU legislation which is thereby transposed; (ix) applying that, terms in sch. 5 of the 2001 regulations have the meaning in the EIA directive, not the meaning in s. 2 of the 2000 Act; (x) the claim that EIA was required due to road construction was incorrect because “road” in the EIA directive and sch. 5 of the 2001 regulations does not include primitive roads such as farm or forest tracks; and(xi) the applicants never got to that point anyway as the pleadings only complained of a sub-threshold development which could not arise on any interpretation (because if this was not a road then EIA did not arise and if it was a road then it was not sub-threshold).

Humphreys J ordered that, subject to any consequential issues that may arise in the context of core grounds 1 and 2 when they are dealt with, the proceedings be dismissed in respect of core grounds 3 to 5, 7 and 8; core ground 6 was withdrawn.

Proceedings dismissed in part.

JUDGMENT of Humphreys J. delivered on Friday the 3 ^rd day of October 2025

1 . The developer here was granted permission to construct a solar farm in 2019. It then sought permission for a phase 2 of the project about 1 km to the south of the existing development site, which was granted by the council in 2023 and by the board on appeal in April 2024. The applicants launch a battery of miscellaneous complaints including administrative law and planning law points and defects in European assessments, particularly in relation to Otter ( Lutra lutra), Freshwater Pearl Mussel ( Margaritifera margaritifera) and environmental impact assessment (EIA) screening. The question is whether any of these (insofar as they fall for decision now) have been pleaded and evidenced in such a way as to constitute a sufficient ground to quash the latest permission.

Geographical context

2 . The board granted planning permission for the construction of a solar farm on a total site area of 141 hectares (348 acres) close to the historic settlements of Clonea Power and Mothel, Co. Waterford, approximately 5 km south of Carrick-on-Suir.

3 . The development site is located at the townlands of Bishopstown, Bridgetown, Ballyhest and Ballyneale, Carrick-on-Suir, Co. Waterford in the functional area of Waterford City and County Council ( https://www.pleanala.ie/en-ie/case/317188).

4 . The river Clodiagh passes through Clonea Power village, and two of its tributaries intersect the site of the impugned development.

5 . The river Clodiagh is within the Lower Suir Special Area of Conservation (SAC) and is a known habitat for Freshwater Pearl Mussel. The National Parks and Wildlife Service (NPWS) has prepared conservation documents for the SAC which was also designated for other species including Otter.

Facts

6 . Phase 1 of the solar farm, about a kilometre further to the north, was granted planning permission by the board in September 2019 ( https://www.pleanala.ie/en-ie/case/304651). The board also granted planning permission for a substation on the same date in 2019. The solar farm and substation granted planning permission in 2019 did not anticipate the impugned development as a ‘phase 2’. The infrastructure granted planning permission in 2019 has not yet been constructed.

7 . On 10 March 2023, the planning application was made to Waterford City and County Council (the council).

8 . The council's planning file is at: https://waterfordcouncil.eplanning.ie/iDocsWebDPSS/listFiles.aspx?catalog=planning&id=2360089&orderBy=type.

9 . All five applicants participated in the impugned process. The first four named applicants live in the locality and the fifth named applicant is the local gun club. The gun club say that since 1966, they have held sporting rights on the lands by agreement with the Marquis of Waterford who owns those rights. The Marquis of Waterford was not an applicant but has provided an affidavit confirming his willingness to be joined to the proceedings if necessary. That was a decision for the applicants rather than the court and no such joinder was in fact applied for.

10 . The Clonea Mothel Solar Action Group, an association of local residents, made a submission which included an opinion by the Fresh Water Pearl Mussel expert Dr Evelyn Moorkens. The fifth named applicant gun club also made a submission to the planning authority, as did the Marquis of Waterford who contended that the application should be considered void ab initio. The submission of the fourth named applicant incorporates photographs illustrating the proximity of his home to the proposed development and the absence of any existing screening of the proposed development from the upstairs floor of his home.

11 . On or about 19 April 2023, the council's executive conservation officer submitted a report to the process, setting out the architectural significance of the village of Clonea and recommended further information, specifically an architectural heritage impact assessment (AHIA). This further information was not sought.

12 . The council's executive planner prepared a report dated 17 April 2023 on its heading and 27 April 2023 at the end. The planner's report considered that an AHIA was not warranted. The planner's report recommended that planning permission be granted, subject to conditions.

13 . By order dated 3 May 2023, the planning authority decided to grant planning permission for the proposed development, subject to the conditions recommended by its planner.

14 . On 24 May 2023, the decision of the planning authority was appealed to An Bord Pleanála. The board recorded a record-breaking (as far as recent proceedings are concerned) 17 third-party appeals and three observations by third parties to those appeals.

15 . An appeal was made on behalf of the first and third named applicants in these proceedings and others by BPS Planning Consultants. This submission also included the opinion of Dr Moorkens in relation to impacts on Freshwater Pearl Mussel.

16 . Separately appeals were made by the second named applicant Josephine Curry and the fourth named applicant, Des O'Donovan. An appeal was also lodged by Henry De La Poer, Marquis of Waterford, whose seat is Curraghmore, Co. Waterford, apparently the record-holder for the oldest family home in Ireland and the largest private demesne in Ireland ( https://curraghmorewhiskey.com/curraghmore-estate/). Lord Waterford's appeal included a letter from Vincent Whelan who is identified as Chairman of the Clonlea Gun Club, the fifth named applicant. The said letter from Vincent Whelan included what the applicants describe as a copy of the lease agreement between the gun club and Lord Waterford. The fifth named applicant did not lodge an appeal. The developer submitted two responses to the various appeals dated 5 July 2023 and 24 July 2023.

17 . The board appointed an inspector to report on the appeals. The inspector visited the site on or about 24 October 2023, and prepared what seems to be a PowerPoint presentation of photographic images taken on the visit. The inspector made a report to the board dated 15 November 2023.

18 . The board met to consider the inspector's report and decided to request a report...