Mc Gowan and Another v an Comisiúin Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 08 July 2025
• Neutral Citation: [2025] IEHC 405
• Docket Number: [H.JR.2025.0000094]

In the Matter of An Application Pursuant to Section 50, 50A, and 50B of the Planning and Development Act 2000 and in the Matter of An Application

Between

Aileen Donagher McGowan and The Mayo Sligo Energy Concern Group

Applicants

and

An Coimisiún Pleanála

Respondent

and

Mercury Renewables (Carrowleagh) Limited

Notice Party

[2025] IEHC 405

[H.JR.2025.0000094]

THE HIGH COURT

PLANNING & ENVIRONMENT

Judicial review – Planning permission – Burden of proof – Applicant seeking an order of certiorari quashing the granting of planning permission – Whether the applicants had overcome the burden of proof to adduce sufficient evidence to demonstrate error in the impugned decision

Facts: The applicants, Ms McGowan and the Mayo Sligo Energy Concern Group, sought: (1) an order of certiorari quashing the decision of the respondent, An Bord Pleanála (the board), to grant, subject to specified conditions (the Permission), planning permission for a proposed windfarm development including 13 wind turbines in Bunnyconnellan, Co. Mayo and a hydrogen plant in Castleconnor, Co. Sligo (the Proposed Development); (2) such declaration(s) of the legal rights and/or the legal position of the applicant and (if and insofar as legally permissible and appropriate) persons similarly situated and/or of the legal duties and/or legal position of the respondent as the High Court considered appropriate; and (3) if necessary, a stay on the implementation of the Permission pending the determination of the proceedings.

Held by Humphreys J that: (i) judicial review complaints must be pleaded with particularity; (ii) the applicants failed to comply with that across the substance of their three overlapping points; (iii) a judicial review applicant bears the burden of proof to adduce sufficient evidence to demonstrate error in an impugned decision; (iv) the applicants had failed to overcome that; (v) the right to reasons is limited to the main reasons on the main issues; (vi) the applicants got such reasons; (vii) an applicant cannot obtain certiorari on a basis that was not only not put to the decision-taker (with specified exceptions), but that is inconsistent with that case; (viii) the applicants’ attempt to argue for a radically inconsistent position to that adopted before the board was disqualifying in terms of judicial review relief; (ix) a statutory provision such as the commission’s power to impose conditions should not be interpreted so as to extend to conditions that are unworkable and unenforceable by reason of relating to the use of land outside of the control of the developer; (x) the complaint that the project should have been conditioned on the basis that third parties would cease to exercise turbary rights or that the developer should have acquired such rights was misconceived; (xi) there is no EU law obligation to centralise EIA obligations in a single decision-taker, and there is nothing inherently wrong with different elements of a project being dealt with by different decision-takers; and (xii) the complaint that there was no joint EIA assessment between the board and the Environmental Protection Agency was misconceived.

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; (ii) the applicant be required to file a third amended statement of grounds omitting sub-ground 84A within 7 days; and (iii) the proceedings be dismissed.

Proceedings dismissed.

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

1 . In order to succeed in a given challenge, an applicant has to make her case to the decision-taker save where exceptions apply, and a fortiori not make an inconsistent case at that point, plead her points with sufficient particularity, overcome the evidential onus of proof to back up such points, and demonstrate that the facts so proved give rise to a legally sound complaint. Here the applicants fail on all of these criteria, so the problem is not so much a question of deciding whether any objection to the case is fatal, but of deciding which of the multitude of fatal objections are deserving of any particular narrative discussion.

Geographical context

2 . The project ( https://www.pleanala.ie/en-ie/case/317560) involves development of a wind farm together with the development a 110kV substation, underground grid connection and a hydrogen plant with an underground interconnector from the wind farm substation to the substation in the hydrogen plant. The development will consist of 13 wind turbines in the townlands of Carrowleagh, Carha, Carrownaglogh, Drumsheen, Rathreedaun, Ballyglass East, Bunnyconnellan West, Cloonmeen West and Lavy More, Co. Mayo and a hydrogen plant in the townlands of Carraun, Knockbrack, Ballymoghany, Muingwore and Cloonkeelaun, Co. Sligo.

3 . As the inspector notes:

“2.1.1. The site is located in the northwest of Ireland, on the border of Mayo and Sligo County Councils, in the Ox Mountains, close to the N59. Ballina is the nearest town. The area has ten wind farms with 65 turbines within 20km of the site. The Carrowleagh Wind Farm is adjacent to the site to the east. Please refer to the drawings submitted at oral hearing, which demonstrate the placement of the proposed development in relation to the existing turbines (6a-b 6129-ABP OH-001). These turbines are 99.5m to blade tip.

2.1.2. The site consists of two parcels of land, as well as the linear routes for the grid connection and interconnector. The proposed wind farm is located in Mayo, near the county boundary with Sligo. It consists of approximately 445 ha of cutover blanket bog. This bog has over 620 individual turbary plots and is still harvested. The levels of the wind farm turbines foundations are cited from 120m.O.D to 160m.O.D.

2.1.3. The proposed hydrogen plant is located in Sligo, on 6.5ha of agricultural land set back from the N59, in the townland of Carraun. It is approximately 5.5km northeast of Ballina.

2.1.4. The underground grid connection is 6.65km from the proposed substation to the Gleenree-Moy overhead line.

2.1.5. The interconnector underground cable route connects the substation to the hydrogen plant substation and 8.2 km in length.”

Facts

4 . A previous permission was granted for 21 turbines on this site, which has expired. The present application is for a somewhat more modest development, something the applicants' submissions didn't particularly recognise.

5 . On 6 July 2023, the planning application was submitted directly to the board on behalf of Mercury Renewables (Carrowleagh) Limited (Mercury Renewables) for planning permission for a strategic infrastructure development (SID) comprising 13 wind turbines, generating up to 78MW of power, 110kV substation, underground grid connection and a hydrogen plant (which would generate 80MW of power) with an underground interconnector from the wind farm substation to the substation in the hydrogen plant (the proposed development).

6 . The applicants made submissions dated 1 September 2023.

7 . Submissions and observations were made on the planning application to the board (including from the applicants, Minister for Housing Local Government and Heritage and the Environmental Protection Agency ( EPA)) and, pursuant to the board's request, a document entitled “Response to Third Party Submissions and Observations” was submitted to the board in November 2023.

8 . The notice party's reply to observations is dated November 2023.

9 . On 28 December 2023, the board made a request for further information (RFI) to Mercury Renewables, which was responded to by letter dated 15 January 2024. The board invited a further round of submissions and observations, and thereafter, Mercury Renewables was invited to submit a further response to those submissions and observations, which it did in a document entitled “Second Response to Third Party Submissions and Observations” dated March 2024.

10 . The applicants made a further submission dated 19 January 2024.

11 . The board assigned a senior inspector, Mary McMahon (the inspector), to report on the planning application. The inspector chaired the oral hearing, prepared a report in relation to the application dated 28 August 2024, in which she made a recommendation to the board to grant permission for the proposed development and recorded that she had carried out a site inspection on 7 and 8 February 2024. Appendix 1 to the inspector's report is the board ecologist report.

12 . The notice party submitted a second reply to submissions dated March 2024.

13 . An oral hearing was carried out on 20 and 21 March 2024.

14 . Further information in respect of the blue line and/or the area of the biodiversity and enhancement management plan was requested and advertised.

15 . The first named applicant made a third submission dated 24 May 2024.

16 . The notice party submitted a third reply to submissions in July 2024.

17 . The inspector's report is dated 28 August 2024.

18 . The board direction (BD-018121–24) dated 8 November 2024, states that the submissions on file and the inspector's report were considered at a board meeting held on 6 November 2024 (BM-004502–24), and the board decided to grant permission generally in accordance with the inspector's recommendation.

19 . On 19 November 2024, the board granted planning permission for the proposed development subject to 36 conditions (ABP-317560–23).

Procedural history

20 . The proceedings were issued on 22 January 2025.

21 . The application for leave was listed for 27 January 2025. On that date, the applicants had not yet uploaded their affidavits, and the amended statement of grounds remained in draft form. The matter was adjourned to 10 February 2025.

22 . On 10 February 2025, leave to apply for judicial review was granted. The applicants were given a further three weeks to finalise and file the amended statement...