Save The South Leinster way and Another v an Coimisiún Pleanála and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 15 October 2025
• Neutral Citation: [2025] IEHC 541
• Court: High Court
• Docket Number: [H.JR.2022.0001006]

In The Matter of Section 50 of the Planning and Development Act 2000, As Amended

Between

Save the South Leinster Way and Tara Heavey

Applicants

and

An Coimisiún pleanála, Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Springfield Renewables Limited (No. 2)

Notice Party

[2025] IEHC 541

[H.JR.2022.0001006]

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDGMENT of Humphreys J. delivered on Wednesday the 15th day of October 2025

1 . In the exercise of statutory powers to that effect, the Minister intervened in the development plan-making process to ensure a policy regime that was more favourable to wind energy projects. That gave rise to unanticipated technical questions as to the status of the old development plan. The applicants seize on the technical issue thereby created as to the temporary continuation of a provision of an old development plan as a basis to quash a development consent for renewable energy infrastructure, which is the sort of outcome that is the direct opposite of the purpose of the Minister's intervention. The primary question here is whether the court is required to give effect to such an effectively perverse conclusion by quashing the permission.

Judgment history

2 . In ( [2023] IEHC 577 Save the South Leinster Way & Another v. An Bord Pleanála (No. 1) Unreported, High Court, 25 October 2023), I set aside the leave order on foot of a time objection from the opposing parties.

3 . In ( [2024] IESC 55 Save the South Leinster Way & Another v. An Bord Pleanála Unreported, Supreme Court, 5 December 2024), the Supreme Court held that the leave application was not out of time, and remitted the matter back to the High Court.

Geographical context

4 . The applicants seek to quash the board's decision of 26 September 2022, to grant planning permission for the development of 21 wind turbines and ancillary works at Castlebanny, County Kilkenny. The board's reference is 309306 ( https://www.pleanala.ie/en-ie/case/309306).

5 . The application was made under the strategic infrastructure development (SID) regime. The developer's SID website is https://castlebannyplanning.ie/

6 . The South Leinster Way is part of the European E8 walking route linking Dublin with Dursey Island. The impugned development traverses the southern section of the South Leinster Way.

Facts

7 . On 28 January 2021, the notice party applied to the board under s. 37E of the Planning and Development Act 2000 for permission for the impugned development.

8 . When the SID application was made, the Kilkenny County Development Plan 2014–2020 (the 2014 CDP) was in force.

9 . The 2014 CDP designated the Castlebanny area as ‘open for consideration’ – meaning no more than 5 turbines; output not greater than 5 MW; turbines not exceeding 65 m to hub height.

10 . When the SID application was submitted, a review of the 2014 CDP was ongoing, with a draft 2021 CDP going out to consultation in December 2022. In the draft 2021 CDP, Castlebanny was to be designated as ‘acceptable in principle’ for ‘large scale’ wind farms.

11 . On 8 June 2021, the elected members of the council adopted the following motion to amend the draft 2021 CDP –“The elected members agree to change the wind strategy map for Castlebanny area from ‘acceptable in principle’ to ‘open for consideration’”.

12 . These and other revisions were made the subject of a revised strategic environmental assessment (SEA) and remained in the adopted CDP, notwithstanding the recommendation of the Office of the Planning Regulator (the OPR) to revert to the provisions of the draft 2021 CDP.

13 . In the impugned planning process, on 10 August 2021, the board (by way of letter) sought further information from the notice party on the subject application. The board in this regard requested the developer to respond to various matters raised in the submissions made in respect of the subject application. The board, amongst other things, also sought further details on the turbine dimensions proposed.

14 . On 26 November 2021, the board received a response from the notice party to the aforesaid request for further information. The said response included, inter alia, turbine dimension details and also updated the environmental impact assessment report (EIAR) and Natura impact statement (NIS) in respect of new information set out in the response regarding turbine dimensions.

15 . The developer's response was not advertised by the board.

16 . The 2021–2027 Kilkenny City and County Development Plan was made on 3 September 2021, and by s. 12(17) of the 2000 Act came into effect on 15 October 2021. The full adopted development plan including its notice of adoption is available on the website of Kilkenny City and County Council: https://kilkennycoco.ie/eng/services/planning/development-plans/city-and-county-development-plan/adopted-city-and-county-development-plan.html

17 . On 15 October 2021, the Minister issued a notice to the planning authority under s. 31(3) containing a draft direction with a requirement to “Reinstate areas designated at Castlebanny to ‘acceptable in principle’ in accordance with the ‘draft wind energy strategy’ of the draft Plan”.

18 . Thereafter in accordance with s. 31(8) and (9) the chief executive officer report on the draft direction and consultation was issued on 10 December 2021, and thereafter the OPR issued a s. 31AN(4) notice on 10 January 2022.

19 . The Minister's intervention has not reached a conclusion, and no final direction has issued.

20 . On 26 September 2022, the board made the impugned decision to grant planning permission.

Procedural history

21 . The proceedings were issued on Monday 21 November 2022.

22 . Leave was granted on 23 January 2023, with liberty to file an amended statement of grounds. An amended statement of grounds was filed on 31 January 2023.

23 . The board filed its opposition papers on 4 May 2023. The second, third and fourth named respondents filed their opposition papers on 23 May 2023 and 29 May 2023. The notice party filed its opposition papers on 21 June 2023.

24 . As noted above, the time issue was resolved in favour of the applicants by the Supreme Court, with an order for the applicants' costs against the respondents collectively ( i.e., not the notice party).

25 . On 16 December 2024, I ordered that core ground 7 (except insofar as it relates to the Lesser Black Backed Gull in the Saltee Islands SPA) and core ground 9A be postponed to a subsequent Module of the proceedings, alongside any relief against the State (this including core ground 9), and the State respondents were excused from further participation until that Module.

26 . The rationale for that was because those matters were awaiting a decision of the CJEU in Case C-27/25, Knocknamona.

27 . Module I was originally listed for 16 May 2025, but was postponed to 25 June 2025 and was heard on that date.

28 . At the end of that hearing the notice party produced maps of the development site with the various land use objectives overlain. As reinforced by the subsequent information provided, these showed that:

• (i) in the 2014 map, most of the development site was open for consideration but about 20% of it on the south-western side (7 turbines) was not subject to one of the three specified area wind turbine policies;

• (ii) in the draft 2021 plan, virtually all of the site apart from a marginal sliver on the north was acceptable in principle for wind farms; and

• (iii) in the adopted 2021 plan the entire site was open for consideration.

29 . This was to be put on affidavit by 27 June 2025, with the applicants having 10 days to reply and the matter to be listed for finalisation on 14 July 2025.

30 . Seamus Todd furnished an affidavit for the notice party on 27 June 2025. Pat O'Donnell for the applicant replied on 7 July 2025. Kenneth Dunne furnished a replying affidavit on 11 July 2025 on behalf of the notice party.

31 . In the meantime, on 7 July 2025, the commission amended the board order here under s. 146A of the 2000 Act.

32 . On 14 July 2025, the matter was listed again, the main issues being the new maps and the commission's s. 146A order.

33 . Liberty to formally file the notice party's latest affidavit was also given without significant objection (the developer's affidavit was not in the correct form apparently not including the necessary address), subject to my considering in the judgment whether it significantly advanced the position and warranted a reply – the answer to both is No. There isn't anything significantly new in the final affidavit that goes to anything crucial, so further reply isn't necessary.

34 . The applicants were given liberty to file an amended statement of grounds, the amendments being limited to a challenge to the commission order amending the original board order, subject to submitting the text to the court, without objection. The hearing was thus in effect modularised with the s. 146A and habitats issues to be dealt with at a later stage.

35 . 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.

36 . On 9 September 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...