Eco Advocacy CLG v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 04 April 2025
• Neutral Citation: [2025] IEHC 195
• Docket Number: [H.JR.2024.0000290]

Between

Eco Advocacy CLG

Applicant

and

An Bord Pleanála

Respondent

and

Statkraft Ireland Limited

Notice Party

[2025] IEHC 195

[H.JR.2024.0000290]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning and development – Leave to appeal – Judicial review – Applicant seeking leave to appeal – Whether the proposed questions of alleged exceptional public importance properly arose

Facts: The applicant, Eco Advocacy CLG, did not obtain certiorari of a wind farm development ([2025] IEHC 15). The applicant launched 13 sub-points of alleged exceptional public importance (under eight broad headings): (i) Must the respondent, An Bord Pleanála (the Board), demonstrate that it has taken account of a submission by the Minister advising the planning authority that the developer’s screening for Appropriate Assessment (AA) was not supported by best scientific evidence and expressing concerns that the impacts of a proposed development on the conservation objectives of a European Site had not been assessed? (ii) Is it necessary for the Board to address in its reasons for screening out a development for AA, the opinions to the contrary and/or any reasonable doubts expressed in an expert scientific opinion if it has decided to grant permission? (iii) Is there an obligation on a member of the public concerned to engage scientific experts to give evidence on their behalf if they wish to subsequently challenge the AA screening and/or should the public be entitled to rely on the scientific expert opinion of a prescribed public body that the very low threshold has been crossed without having its own expert ‘prove’ its veracity? (iv) A composite question. (v) Another composite question. (vi) Is it within the inherent jurisdiction of the High Court to release to the public written legal submissions in a different manner to the process specified in PD101 and/or without any prior notification to the author(s) of those written legal submissions? (vii) Is it within the inherent jurisdiction of the High Court and or the meaning of Order 123 of the Superior Court Rules, for a Judge of the High Court to release to the public a copy of the Digital Audio Recording of the proceedings, without any application having been made to the Court by any party, by motion on notice or otherwise, and without the matter having been raised in Court during the trial of the matter? (viii) In the circumstances of the case, the complexity of the issues and the extent of the applicable law is it in accordance natural and Constitutional justice and in particular with Article 34(1) of the Constitution and/or the Public Participation Provisions of the Aarhus Convention and the EIA Directive to impose a 105 minute limit on the applicant’s oral submissions, thereby requiring the applicant to confine itself in oral argument only to its best points and to ‘identify (without being obliged to open in full) the key supporting material and the route-map from the material to the relief being requested, give those points one’s best shot, briefly neutralise the points put up by the other side, and then sit down’?”

Held by the High Court (Humphreys J) that many of the points could not properly arise, either because they represented a significant reprogramming of the pleaded case, raised points never argued, or misrepresented the substantive decision. He held that they were not pure questions of law but only ones of application. He held that the points were not ones of any public importance. He held that the public interest test was not satisfied.

Humphreys J dismissed the application for leave to appeal.

Leave refused.

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 4th day of April 2025

1 . While succeeding in getting declaratory relief and costs in that regard, this applicant did not obtain certiorari of a wind farm development ( ( [2025] IEHC 15 Eco Advocacy v. An Bord Pleanála (No. 1) Unreported, High Court, 15th January 2025)) for the simple reason that on the facts it didn't provide evidence sufficient to show that the board's reasons for its assessments were defective. Following its failed challenge, the applicant launches an implausible 13 points or sub-points of alleged exceptional public importance (under eight broad headings). The applicant certainly can't be faulted in terms of creativity and tenacity, or in terms of skill in coming up with new angles, but the primary legal question is whether these points properly raise issues of law of public importance suitable for appeal.

Some general principles

2 . The statutory criteria for leave to appeal are familiar. Some of the major elements required for the grant of leave to appeal are as follows:

(i) The point must properly arise

• (a) The question must fall within the pleadings: Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28, ( [2024] 7 JIC 0402 Unreported, Supreme Court, 4th July 2024) per Murray J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring).

• (b) The question must actually arise on the facts and should not be launched in the abstract: see analogously Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11, ( [2018] 1 JIC 1603 Unreported, High Court, 16th January 2018), Donnelly J., para. 10.

• (c) The question raised must actually have been argued by the would-be appellant and must not be a new issue formulated for the purposes of an appeal: GOCE Limited v. An Bord Pleanála [2025] IEHC 43 (Unreported, High Court, Farrell J., 31st January 2025).

• (d) While not an absolute rule, the question should be determinative in some sense and should make a difference to the outcome – generally it should not be one which, if answered in a sense favourable to the would-be appellant, would leave the result unchanged: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November 2016). This is part of a broader principle that prolonging the process by recourse to a further instance can't be based on just identifying some shiny and interesting point – the whole thing has to be going somewhere. O'Donnell J. put this vividly in ( [2016] IESC 1 Rooney v. Minister for Agriculture and Food Unreported, Supreme Court, 28th January 2016) at para. 3: “Some litigants, and not just those who represent themselves, prefer the comfort of focusing exclusively on the debatable ruling or judicial comment reinforcing a sense of grievance rather than recognise the forest of problems in the overall case. The cycle continues and becomes almost a form of litigious perpetual motion.”

• (e) The question must accurately reflect the judgment and must not be an addition, exaggeration or distortion launched for the purposes of creating a case for appeal: Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9, ( [2023] 1 JIC 1907 Unreported, High Court, 19th January 2023) per Holland J. at §9(d); ( [2025] IEHC 178 Stapleton v. An Bord Pleanála Unreported, High Court, 1st April 2025) per Holland J.

• (f) The application for leave to appeal should be made within time, generally within 28 days from the order to be appealed against: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November 2016).

• (g) The question should be specific and should identify something specific that makes a difference – it should not be an invitation to an appellate court to write an essay on a particular topic or engage in a discursive, roving response: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November 2016); ( [2025] IEHC 178 Stapleton v. An Bord Pleanála Unreported, High Court, 1st April 2025) per Holland J.

(ii) The point must be one of law

• (a) The point cannot be an essentially factual question such as construing the import and effect of a particular decision; ( [2025] IEHC 157 Leech v. An Bord Pleanála Unreported, High Court, 24th March 2025) per Farrell J.

• (b) Relatedly, the question should not be one of application of law to particular facts but rather one of the substance, content and interpretation of law. Questions about the application of established principles to particular facts are not pure questions of law and are at best mixed questions of fact and law, and are generally unsuitable for appeal in such a context: B.S. v. Director of Public Prosecutions [2017] IESCDET 134 (Clarke C.J., O'Donnell, McKechnie, MacMenamin, Dunne, Charleton and O'Malley JJ., 6th December 2017); per Simons J. in Halpin v. An Bord Pleanála [2020] IEHC 218, ( [2020] 5 JIC 1501 Unreported, High Court, 15th May 2020) (para. 60); per Barniville J. in Rushe v. An Bord Pleanála [2020] IEHC 429, ( [2020] 8 JIC 3101 Unreported, High Court, 31st August 2020); per Phelan J. in Stanley v. An Bord Pleanála [2022] IEHC 671, ( [2022] 11 JIC 2805 Unreported, High Court, 28th November 2022); Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce — The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024); per Farrell J. in ( [2025] IEHC 157 Leech v. An Bord Pleanála Unreported, High Court, 24th March 2025).

(iii) The point of law must be of public importance

• (a) The question must not be fact-specific arising in the particular context of a particular case – rather it must transcend the facts in order to create a point of public importance: see analogously and albeit non-precedentially, Patrick McCaffrey & Sons Limited v. An Bord Pleanála [2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 20th November 2024).

• (b) Advancing the proposed question should resolve doubt rather than create doubt where none exists – this is consistent with the views of Baker...