Cummins and Others v an Coimisiún Pleanála [No. 2]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 28 November 2025
• Neutral Citation: [2025] IEHC 662
• 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 662

[H.JR.2024.0000783]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning and development – Judicial review – Development consent – Applicants seeking an order of certiorari quashing a decision to grant development consent – Whether the respondent erred in its treatment of the rights of the applicants

Facts: The applicants, Mr Cummins, Ms Curry, Mr Fogarty, Mr O'Donovan and the Clonea Gun Club, applied to the High Court seeking an order of certiorari by way of application for judicial review quashing a decision made by the respondent, An Coimisiún Pleanála (the commission), on or about 24 April 2024 to grant development consent to the notice party developer, BNRG Mothel Ltd, for the construction of a solar farm and all associated ancillary development services and works at Bishopstown, Bridgetown, Ballyhest and Ballyneal, Co. Waterford.

Held by Humphreys J that: (i) a power such as to extend time must be exercised having regard to the interests of justice; (ii) the objection to the late filing of the statement of opposition was a meritless technicality and an opportunistic attempt to capitalise on human error by the other side; (iii) irrespective of opposition, the court itself must be satisfied as to the grant of relief by way of judicial review; (iv) even assuming the non-filing of the statement of opposition, the result would be the same as Humphreys J was not satisfied that relief should be granted; (v) an applicant is confined to her pleadings; (vi) any case based on the ESB line fell outside the pleadings, which referred only to the lines opposite the fourth applicant’s house which were the telegraph lines; (vii) the onus of proof lies on an applicant; (viii) the applicants had not proved facts necessary to draw the conclusion that the application was in breach of art. 22 of the Planning and Development Regulations 2001; (ix) the consent of the legal owner is required for an application for planning permission by a third party; (x) an application for permission is not invalid due to a lack of consent of a subordinate rights-holder other than the legal owner; (xi) the grant of permission does not terminate legal rights that exist independently of the permission; (xii) the allegation that the commission erred in its treatment of the rights of the applicants was misconceived; (xiii) legal obligations must be workable; (xiv) detailed investigation of property rights at the planning permission stage would have been unworkable, as would a duty to show wayleaves on application forms if there was no demonstrated basis from the title on which knowledge of such wayleaves could arise; (xv) relief should not be granted for harmless or non-consequential errors; (xvi) the opposing parties had pointed to facts establishing the lack of consequence of any error in the application documents, particularly the implausibility that the applicants were unaware of the lines, and their lack of submissions on such issues and the lack of any evidence of prejudice; (xvii) relief by way of judicial review is discretionary; and (xviii) Humphreys J would have declined certiorari as a matter of discretion on the facts including based on the lack of prejudice, absence of submissions and hypothetical nature of the alleged consequences.

Humphreys J dismissed the proceedings.

Proceedings dismissed.

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 28th day of November 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. The commission's inspector recommended a grant of permission which was reaffirmed by further reports of 8 and 11 March 2024. The commission granted permission on appeal in April 2024. The first module of the applicants' challenge has been dismissed. The question is whether anything else in their case warrants the grant of relief by way of judicial review, albeit that has generated some procedural skirmishing which doesn't involve anything of any great substance.

Judgment history

2 . In ( [2025] IEHC 521 Cummins v. An Coimisiún Pleanála (No. 1) Unreported, High Court, 3 October 2025), the proceedings were dismissed in respect of the grounds other than core grounds 1 and 2 (and any implications for other grounds arising from those grounds). The matter had been modularised due to a failure by the notice party to file its statement of opposition which led to a need to consider its application for late filing of that document as well as further elaboration of the factual basis of its contents.

Geographical context

3 . The commission 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.

4 . 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).

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

6 . 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

7 . Phase 1 of the solar farm, about a kilometre further to the north, was granted planning permission by the commission in September 2019 ( https://www.pleanala.ie/en-ie/case/304651). The commission 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.

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

9 . The council's planning file is at:

https://waterfordcouncil.eplanning.ie/iDocsWebDPSS/listFiles.aspx?catalog=planning&id=2360089&orderBy=type.

10 . 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.

11 . 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.

12 . 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.

13 . 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.

14 . 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.

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

16 . 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.

17 . 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...