Friends of Killymooney Lough v an Coimisiún Pleanála and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 08 July 2025
• Neutral Citation: [2025] IEHC 407
• Court: High Court
• Docket Number: [H.JR.2025.0000141]

In the Matter of Sections 50, 50A and 50B of the Planning and Development Act 2000

Between

Friends of Killymooney Lough

Applicant

and

An Coimisiún Pleanála, Minister for the Environment, Climate and Communications, Ireland and The Attorney General

Respondents

and

Tesco Ireland Limited

Notice Party

[2025] IEHC 407

[H.JR.2025.0000141]

THE HIGH COURT

PLANNING & ENVIRONMENT

Judicial review – Planning and development – Climate action plan – Applicant seeking an order of certiorari quashing an order for construction – Whether the decision adopting the 2024 Climate Action Plan should be quashed

Facts: The applicant, Friends of Killymooney Lough, sought: (1) an order of certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986 (RSC) and s. 50 of the Planning and Development Act 2000 quashing the order of the first respondent, An Bord Pleanála (the board), dated 3 December 2024, for construction of a single storey retail unit, 297 car parking spaces, a drive through ‘café’, a petrol filling station and associated development at Cock Hill, Cavan Town, County Cavan; and (2) an order of certiorari pursuant to Order 84 RSC and/or s. 50 of the 2000 Act quashing the decision of the second respondent, the Minister for the Environment, Climate and Communications, undated but believed to have been initially adopted about 23 December 2023 and subsequently subjected to strategic environmental assessment and possibly modified in or about May 2024, adopting the 2024 Climate Action Plan (CAP24).

Held by the High Court (Humphreys J) that: (i) a decision should be read as valid if a valid reading is reasonably available; (ii) the inspector’s wording could be construed as merely reflecting the developer’s material and not as relying on a non-existent document in some unlawful way; (iii) decision-takers are not novices and carry with them their own experience and learnings; (iv) there was nothing implausible about Mr McGarry’s averment that he was aware of CAP24, but in any event compliance with CAP24 was implicit in the commission’s express conclusion of compliance with climate legislation; (v) fair procedures involves having a reasonable opportunity to make one’s point; (vi) the applicant could have made the points advanced by reference to similar provisions of CAP23 when making its appeal - it did not do so, and accordingly the claim of unfairness rang hollow; (vii) a measure of general application should not be challenged on an academic basis and legal obligations should not be unworkable; (viii) the applicant’s basis for challenging CAP24 was impermissibly abstract and academic, and postulating a metaphysics of invalidity that nullifies planning decision-making pending some hypothetically better climate plan was not a workable concept; (ix) insofar as the environmental impact assessment (EIA) complaint was a failure-to-have regard or failure-to-contextualise point, that was incorrect on the facts, and insofar as it was an unreasonableness point, that had not been evidentially demonstrated by reference to anything properly pleaded; (x) the EIA Directive should not be read as imposing impossibly onerous obligations; and (xi) the notion that all vehicular emissions in the State ought to have been assessed was impossibly onerous and not a valid interpretation of the directive - that point was acte clair against the applicant.

Humphreys J ordered that: (i) there be an order amending the Central Office cause book to reflect the substitution of the commission for the board; and (ii) the proceedings be dismissed.

Proceedings dismissed.

JUDGMENT of Humphreys J. delivered on Wednesday the 16th day of July 2025

1 . The correct approach to projects that cause emissions is a topical issue, but the present case may not be the best vehicle to explore the wilder shores of that concept. Here, the emissions issues are pleaded as environmental impact assessment (EIA) points, but the question is whether the applicant has demonstrated lack of regard to necessary matters, or irrationality in the EIA conclusion, among other alleged defects.

Geographical context

2 . The project ( https://www.pleanala.ie/en-ie/case/318406) relates to construction of a single storey retail unit, drive-thru café unit, petrol filling station and all associated site works at Townparks & Tullymongan Lower (to the east of Main Street), Cock Hill, Cavan Town, Co. Cavan

Facts

3 . The notice party developer applied for permission on or about 16 January 2023.

4 . The applicant made a submission on the planning application on or about 17 February 2023.

5 . The council requested further information on or about 10 March 2023.

6 . The notice party submitted further information to the council on or about 18 August 2023.

7 . The council decided to grant permission on or about 12 October 2023.

8 . The applicant appealed against the council decision on 7 November 2023.

9 . The developer replied to the applicant's appeal on or about 5 December 2023.

10 . A draft climate action plan 2024 (CAP24) was published in December 2024 for consultation.

11 . CAP24 was published on 21 May 2024.

12 . The inspector prepared a report relating to the appeal on or about 7 October 2024.

13 . The board considered the appeal on 1 November 2024, and prepared a direction which it signed and dated the same day.

14 . The board signed its decision on 3 December 2024.

Procedural history

15 . The proceedings were issued on 4 February 2025. Leave was granted on 17 February 2025.

16 . An amended statement of grounds was filed, and the notice of motion was issued on 18 February 2025.

17 . The notice party applied for a hearing date under the expedited procedure on 10 March 2025 with the date fixed for 20 June 2025.

18 . The first named respondent served its statement of opposition and affidavit on 14 April 2025 and filed same on 16 April 2025.

19 . The notice party filed its statement of opposition and affidavits on 15 May 2025.

20 . The applicant raised a request for interrogatories and other information by letter on 20 May 2025.

21 . The applicant served a proposed second amended statement of grounds on a de bene esse basis on 20 May 2025.

22 . The board responded to the request for interrogatories and other information on 30 May 2025 at 16:53.

23 . The applicant served its written submissions and replying affidavits (unsworn) on 30 May 2025 at 21:30.

24 . The first named respondent delivered its written submissions on 6 June 2025.

25 . The second and third named respondents delivered their written submissions on 9 June 2025.

26 . The notice party delivered its written submissions on 10 June 2025.

27 . On 13 June 2025, during the Whit vacation, the applicant rather late in the day raised by correspondence an issue of possible cross-examination and in order to facilitate that and given the absence of scheduled sitting prior to the hearing date, was given liberty on a de bene esse basis to issue a motion to cross examine Chris McGarry on 17 June 2025, returnable to 20 June 2025.

28 . The applicant delivered its replying written submissions on 17 June 2025

29 . The board was reconstituted as the commission on 18 June 2025. By s. 495(3) of the 2024 Act, the commission substitutes for the board in legal proceedings without the necessity for an order. After discussion with the Central Office, the view they are adopting is that an order is however required to amend their cause books. This is the sort of administrative point on which over the years I have found it profitable to defer to their view, so I will make such an order.

30 . The matter was heard on 20 June 2025.

31 . 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.

32 . On 8 July 2025, 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. Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile in writing prior to the listing date 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) typographical, factual or legal errors in the decision;

• (d) requesting the court to decide a point that, while obiter/ unnecessary to decide, is one the party considers could beneficially be decided;

• (e) identifying significant points that the party considers that the court was required to address but has not;

• (f) identifying points that the court proposes to address but that the parties consider it unnecessary to address;

• (g) 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; and

• (h) any 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...