McGowan and Anor v an Coimisiún Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 17 December 2025
• Neutral Citation: [2025] IEHC 727
• Court: High Court
• Docket Number: [H.JR.2025.0000477]

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

Between

Noel McGowan and Karol Warnock

Applicants

and

An Coimisiún Pleanála

Respondent

and

Vantage Towers Limited and Leitrim County Council

Notice Parties

[2025] IEHC 727

[H.JR.2025.0000477]

THE HIGH COURT

PLANNING & ENVIRONMENT

Judicial review – Planning permission – Material contravention – Applicants seeking an order of certiorari quashing planning permission – Whether the impugned decision materially contravened the development plan

Facts: The applicants, Mr McGowan and Mr Warnock, applied to the High Court seeking an order of certiorari quashing the decision of the respondent, An Coimisiún Pleanála (the commission), dated 14 February 2025, granting permission to the first notice party, Vantage Towers Ltd, to erect a 24m high lattice telecommunications support structure together with antennae, dishes and associated telecommunications equipment all enclosed in security fencing with a new access track at Laghta, Kinlough, County Leitrim. The core grounds of challenge were as follows: (1) the commission erred in law in concluding that the site was not a site of ‘last resort’; (2) the commission failed to have any adequate regard to the Telecommunications Antennae and Support Structures Guidelines for Planning Authorities; (3) the proposed development contravened Policies TEL POL 5 and LD POL 1 of the Leitrim County Development Plan 2023-2029 and the requirements of s. 13.20.3 of said plan; (4) the commission failed to consider health and safety issues raised in the appeal; (5) the impugned decision materially contravened the Leitrim County Council Development Plan 2023-2029, by failing to provide reasons for the material contravention, failing to take into account relevant considerations and taking into account irrelevant considerations; (6) the commission erred in law in concluding that the proposed development did not fall within a class of development set out in Schedule 5, Part 1 and/or Part 2 of the Planning and Development Regulations 2001 for which environmental impact assessment (EIA) may be required; and (7) the commission’s decision contravened Art. 6(3) of the Habitats Directive (Council Directive 92/43/EC) and Part XAB of the Planning and Development Act 2000.

Held by Humphreys J that: (i) a decision should not be quashed on a technical infirmity if the points were correctly dealt with in substance; (ii) the commission applied the last resort test in substance and gave adequate reasons; (iii) if a decision says it has had regard to something, an applicant has an onus of proof to displace that; (iv) the applicants had not discharged that onus; (v) a planning decision-taker has a margin of evaluation in respect of evaluative elements of applicable instruments such as development plans; (vi) the commission had not been shown to have exceeded its margin of evaluation; (vii) a decision should be read as valid rather than invalid if a valid reading is available; (viii) the inspector’s ruling out of health impacts should be read as ruling out weight being given to submissions about health impacts of the type canvassed, which was a valid approach; (ix) the onus lies on an applicant to establish the factual premise of any complaint about inadequate appropriate assessment; (x) the applicants had failed to discharge that onus; (xi) the onus is on the applicant to establish the factual premise for a question of EU law; and (xii) the applicants had failed to discharge that onus because there was no plausible interpretation of the EIA Directive (Directive 2011/92/EU) by reference to which on the facts the project constituted urban development.

Humphreys J dismissed the proceedings.

Proceedings dismissed.

JUDGMENT of Humphreys J. delivered on Wednesday the 17 ^th day of December 2025

1 . Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the EIA directive), and transposing law, specifies “[u]rban development projects” as a category for potential assessment. There is no corresponding requirement applicable to “rural development projects”. So whatever the concept of urban development means, it would be inappropriate to ignore this clear legislative distinction or to blur the concepts in a way not envisaged by the directive and transposing law, or otherwise to improperly assimilate the rural into the urban. Given the essentially rural-related scale, location, nature and general features of this project, the primary question here is whether there is any ground to quash the commission's conclusion that environmental impact assessment (EIA) was not engaged.

Geographical context

2 . The project ( https://www.pleanala.ie/en-ie/case/319695) involves the construction of a telecommunications structure with all associated site works at Laghta (Townland), Kinlough, Co. Leitrim. The applicants challenge the decision of the commission made on 14 February 2025 (ref: ABP-319695–24) granting permission to the first named notice party to erect a 24 m high lattice telecommunications support structure together with antennae, dishes and associated telecommunications equipment all enclosed in security fencing with a new access track. A view at the national school looking in the general direction of the locus in quo is at https://maps.app.goo.gl/2YSDv8kJmAaWqxs68.

3 . At para. 2.1 the inspector states:

“The appeal site, which has a stated area of 0.0596 hectares, is located to the west of the settlement of Kinlough, just outside of the defined development boundary. The appeal site is part of an existing field with the main body of the site located at the south eastern corner of the existing field and along its eastern boundary (proposed access track). The site is accessed off an existing laneway that serves agricultural lands and a number of existing dwellings and links into the public road to the east of the site. The nearest dwelling is located approximately 100m to the east of the northern boundary of the site (at it's closest point) off the same laneway providing access to the site. The boundaries of the site are defined by existing hedgerow along the eastern and southern boundaries and no existing boundaries to the north or west. The site rises gently from north to south, from +37m A.S.L to +40m A.S.L. at near the site of the proposed mast.”

4 . The location of the project is not entirely irrelevant. The redline boundary is a reverse L-shape with the mast location at the lower left side, i.e., away from the town. Using the draw-line function on Google Maps shows a distance of about 280 m from there to the concentrated residential settlement boundary near Dartry Vale, even bearing in mind that there is a single house 100 m away. The zoning objectives map for Kinlough (map 21 in the CDP) shows a dark red zoning (social & community use) for the school plus two fields to the West which apparently the school owns and intends to expand into.

5 . Based on the application documents, the mast is 40 m from the edge of the field it is located in, and on a Google Maps (satellite view) draw-line basis is approximately 86.6 m from the nearest point of the site owned by the school and not yet developed.

6 . There is a pink zoning further to the West but no designation in the legend – which seems to be enterprise and employment from table 6.5. There is a blue line designated as “development envelope”, and the mast is effectively contiguous with that, just marginally to the north and certainly in the immediate vicinity of it.

Facts

7 . On 10 October 2022, Vantage lodged an application to Leitrim County Council (the council) for the proposed development.

8 . A planner's report was prepared by a senior executive planner of the council on 29 November 2023, which recommended that further information be sought from Vantage.

9 . A request for further information (RFI) was made by the council to Vantage on 30 November 2022.

10 . Vantage responded to the RFI on 27 February 2023.

11 . The applicants each made a further submission to the council dated 22 March 2023.

12 . A planner's report was prepared by a senior executive planner of the council on 31 March 2023.

13 . The council issued a notification of decision on 31 March 2023 that permission for the proposed development be refused. By way of decision dated 3 April 2023 (reg. ref. 22/215), the council refused planning permission for the proposed development.

14 . Vantage lodged a first-party appeal with the commission, which was dated 20 April 2023. The applicants made submissions on the appeal.

15 . The commission appointed an inspector who carried out a site inspection on 15 July 2023.

16 . The council made a submission on the appeal on 23 May 2023, recommending that planning permission be refused.

17 . The inspector furnished a report to the commission on 17 July 2023, recommending that permission be granted for the proposed development subject to 20 conditions.

18 . By commission direction (BD-013489–23) dated 30 August 2023, the commission directed that permission for the proposed development be granted.

19 . By order of the commission dated 31 August 2023 (ABP-316566–23), the commission granted permission subject to nine conditions.

20 . On 25 October 2023, the applicants brought an application for leave to challenge the commission's said decision by way of judicial review and on 20 November 2023, the High Court (Hyland J.) granted the applicants leave to apply for judicial review.

21 . The applicants challenged that grant of permission by way of judicial review in October 2023 [ ...