Hoctor and Ors v an Coimisiún Pleanála and Anor [No. 2]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 20 March 2026
• Neutral Citation: [2026] IEHC 174
• Docket Number: [H.JR.2025.0001283]

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and In the Matter of Part 9 of the Planning and Development Act 2024

Between

Sheila Hoctor, Patrick Carney, John Dooley, Michael Mahon, and Regina Hoctor

Applicants

and

An Coimisiún Pleanála

Respondent

and

Carrig Renewable Energy Limited (No. 2)

Notice Party

[2026] IEHC 174

[H.JR.2025.0001283]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning and environment – Leave to appeal – Question of exceptional public importance – Applicants seeking leave to appeal – Whether an appeal would be in the public interest

Facts: The High Court (Humphreys J), in Hoctor v An Coimisiún Pleanála (No. 1) [2026] IEHC 65, dismissed the claim of the applicants, Ms Hoctor, Mr Carney, Mr Dooley, Mr Mahon and Ms Hoctor, for certiorari and granted declaratory relief in respect of core ground 6. The applicants sought leave to appeal. Their proposed questions of alleged exceptional public importance were as follows: (i) “Is design flexibility in a development where the height can vary between 5.5 metres in terms of total height, 5 metres in terms of hub height, and where the blade diameter can vary within 14 metres, and where there are multiple variations possible within and between each of the turbines, consistent with or contrary to Articles 17, 18, 19, and in particular Articles 22 and 23 of the Planning and Development Regulations, 2001, and is a breach of the requirements in respect of a provision that is required to be complied with a matter that goes to jurisdiction or can such departures be treated as de minimis?” (ii) “Where it can be shown that there is non-compliance with a requirement of Articles 17, 18, 19, 22 and 23, is there any obligation on the Applicants to adduce evidence of a planning issue, or is it for the person seeking to be excused from the requirements of the Planning and Development Regulations, 2001, to adduce evidence that no planning issue can arise from the said departures?” (iii) “Is ‘evidence’ for the purposes of paragraph 57.12.i of the Judgment of the 10th of February 2026 met by assertions by the Applicants that as the design submitted entail a multiplicity of options arising from different heights (both in respect of overall height, hub height and height of rotor blades above ground level) within an individual turbine and as between turbines such that it was asserted that it was impossible to make submissions or have assessed the effect of the proposed development on landscape and visual amenity, on noise vibration, shadow flicker, on the effect of avian impacts and/or residential amenity, a ‘genuine planning issue’ for the purposes of the said paragraph of the Judgment?”

Held by Humphreys J that, having regard to the statutory criteria for leave to appeal, and the well-established legal principles applicable thereto, it was not appropriate for an appellate court to be asked to consider points that: (i) did not arise from the High Court’s judgment; (ii) did not arise on the facts; (iii) amounted to an attempt to reargue fact-specific findings on which the applicants failed; (iv) did not accurately reflect the High Court’s judgment; (v) did not engage with the rationale of that judgment or advance any plausible basis for contending that it was wrong; (vi) misapprehended the judgment and the factual context; (vii) relied on unfounded assertions of conflict of jurisprudence and uncertainty in the law; and (viii) were not in the public interest (noting the urgent need for permitted renewable energy infrastructure in the context of the climate emergency, and the applicants' failure to identify any affirmative public benefit or public interest in certifying any point).

Humphreys J dismissed the application for leave to appeal.

Application refused.

JUDGMENT of Humphreys J. delivered on Friday the 20 ^th day of March 2026

1 . In Waltham Abbey Residents Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417, the Supreme Court made the point that the planning regulations, like law generally, must be given a workable interpretation. The applicants don't now argue that there can never be design flexibility allowed by a planning decision-taker, but major on the theoretical argument that legislation can impose precise requirements that don't allow for such flexibility in relation to particular matters. In one way that stance is no surprise because a conclusion along those lines is in effect a logical corollary of the view expressed by the Supreme Court in Boland v. An Bord Pleanála [1996] 3 I.R. 435 that conditions imposed in a planning permission may afford a certain limited degree of flexibility having regard to the nature of the matter, the extent of permissible flexibility being effectively a matter for case-by-case consideration. The principal judgment merely applied the foregoing to the particular facts of this case. There isn't anything new, let alone revolutionary, about such an approach. So the question is whether this renewable energy project, which was held to be acceptable by both the inspector and the commission and which has survived an extensive challenge on 133 grounds as set out in the principal judgment should now be subjected to further delay on the basis of fairly artificial questions which have little or nothing to do with the logic of the judgment sought to be appealed against. The impressive esprit d'escalier ingenuity of the applicants, relying on a multitude of points and authorities not argued at the substantive stage, does not provide a basis for pursuit of appellate procedures. As Clarke J. said in ( [2015] IESC 10 Ambrose v. Shevlin Unreported, Supreme Court, 5 February 2015) at 4.21, most recently quoted by Hogan J. in ( [2025] IESC 3 Cave Projects Ltd v. Gilhooley Unreported, Supreme Court, 28 January 2025) at 28, “a trial in the High Court is not a dress rehearsal”.

Judgment history

2 . In ( [2026] IEHC 65 Hoctor v. An Coimisiún Pleanála (No. 1) Unreported, High Court, 10 February 2026), I dismissed the applicants' claim for certiorari and granted declaratory relief in respect of core ground 6. The applicants now seek leave to appeal.

Procedural history

3 . The draft substantive judgment was circulated on 27 January 2026. Following the formal delivery of the substantive judgment, the notice party circulated draft directions proposing applicants' submissions by 27 February 2026. The applicants ultimately delivered legal submissions seeking leave to appeal dated 5 March 2026 but not uploaded until 11 March 2026 (the applicants may possibly have been under the misapprehension that filing the submissions would bring them to my attention – that is not the case because the Central Office file remains in that office and it is instead the upload to the ShareFile platform that makes the judge concerned aware of any given item). The opposing parties delivered replying submissions on 11 March 2026. The matter was heard on 12 March 2026.

4 . 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.

5 . On 13 March 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 notified deadline, 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 specified period, 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...