Moss 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 175
• Docket Number: [H.JR.2025.0001080]

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 the Planning and Development Act 2024 and In the Matter of An Application

Between

Susan Moss, Anne Hoek, Anne Lacey, Francis Prendergast, Ned Barron and Paul Davies

Applicants

and

An Coimisiún Pleanála

Respondent

and

Lightsource Renewable Energy Ireland Limited (No. 2)

Notice Party

[2026] IEHC 175

[H.JR.2025.0001080]

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 Moss v An Coimisiún Pleanála (No. 1) [2026] IEHC 62, dismissed the proceedings. The applicants, Ms Moss, Ms Hoek, Ms Lacey, Mr Prendergast, Mr Barron and Mr Davies, applied to the High Court seeking leave to appeal. Some of the major elements required for the grant of leave to appeal are as follows: (i) the point must properly arise (Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála & Ors [2024] IESC 28); (ii) the point must be one of law (Leech v An Bord Pleanála [2025] IEHC 157); (iii) the point of law must be of public importance (Ógalas v An Bord Pleanála [2015] IEHC 205); (iv) the public importance must be exceptional; and (v) an appeal must be in the public interest (Dunnes Stores v An Bord Pleanála [2015] IEHC 387). The applicants’ proposed question of alleged exceptional public importance was as follows: “Whether a road/track of 5.3kms comprising drainage channels, geogrid layers, sub-base up to 200mm of compacted stone, 75mm of stone/tarmac of a width of 5.3 metres to 4.5 metres and extending to a length of 5.3kms is a road for the purposes of Class 10(dd) of Part II of Schedule 5 of the Planning and Development Regulations, 2001?”

Held by Humphreys J that: (i) the proposed question tendentiously contradicted the factual conclusions of the substantive judgment and disregarded the information furnished by the developer during the administrative process on the basis of which consent was granted, and hence the proposed question did not properly arise; (ii) the proposed point was not one of law but of the application of law to the facts; (iii) particularly for that reason it was also not of public importance; and (iv) further appellate agitation of the case was not in the public interest, particularly having regard to the public interest in infrastructure and renewable energy and to the non-compensatable prejudice to the developer.

Humphreys J ordered that: (i) the application for leave to appeal be dismissed; (ii) in the event that an application for leapfrog leave to appeal was made and acceded to by the Supreme Court, the costs of the leave to appeal application be costs in that appeal; (iii) otherwise, there be no order as to the costs of the leave to appeal application; and (iv) the foregoing order and the order already pronounced in the substantive judgment be perfected forthwith with no further listing as the final order of the High Court in the proceedings.

Application refused.

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

1 . In Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28 (Unreported, Supreme Court, Murray J., 4 July 2024), the Supreme Court emphasised the consistent jurisprudence that solar farms are not projects subject to environmental impact assessment (EIA) and are not listed in 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 (the EIA directive). The applicants have nothing to the contrary by way of jurisprudence from Ireland, Europe or any specific European jurisdiction. Rather by a side-wind they advance the implausible argument that solar farms must be EIA projects because they necessarily involve internal access tracks. Again they come with nothing to support that by way of EU law-related authority. The question therefore is whether there is any plausible basis for this point to go further.

Judgment history

2 . In ( [2026] IEHC 62 Moss v. An Coimisiún Pleanála (No. 1) Unreported, High Court, 10 February 2026), I dismissed the proceedings. The applicants now seek leave to appeal.

Procedural history

3 . Following the substantive judgment, the applicants delivered legal submissions seeking leave to appeal, dated 9 March 2026. The opposing parties delivered replying submissions dated 11 March 2026, and 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 observations on the draft legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a concession which parties can engage with but must do so with immediate dispatch, discipline and focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to elaborate procedures at every point” (to use a phrase of O'Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in ( [2023] IESC 11 O'Sullivan v. Health Service Executive Unreported, Supreme Court, 10 May 2023) at para. 39); and still less should the procedure invite the perhaps “serious error, to which lawyers are prone, to approach any such case on the tacit assumption that only procedures which approximate to a criminal trial are fair, and anything which departs from that is somehow dubious” (O'Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780).

8 . Draft judgments are not public domain materials and, while they can be shared between the lawyers concerned and their clients, subject to the following, it is inappropriate for any person to refer to them for any purpose other than to assist the court in relation to the finalisation of the formal judgment. Therefore anyone with information as to the text, content or proposed outcome of any draft is required not to publish or transmit such information to others save solely by way of private transmission for the legitimate purposes of assisting in the finalisation of the judgment and subject to a similar restriction on any recipient. Trial participants should take reasonable steps to keep drafts confidential. On this topic, see Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022 ] T.L.R. 1 which discusses why restriction on publication of draft judgments is in the interests of the administration of justice; see also Baigent v. Random House Group Ltd [2006] EWHC 1131 (Ch), [2006] 5 WLUK 45, (2006) 150 S.J.L.B. 603 (Smith J.); R. (Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, [2022] 1 W.L.R. 1915, [2022] 4 All E.R. 599 (Sir Geoffrey Vos MR; Davies and Dingemans LJJ. concurring); Public Institution for Social Security v. Banque Pictet & Cie SA and others ...