Shorten v an Coimisiún Pleanála and Ors

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 24 July 2026
• Neutral Citation: [2026] IEHC 517
• Docket Number: [H.JR.2025.0000088]

Between

John Shorten

Applicant

and

An Coimisiún Pleanála, Ireland and The Attorney General

Respondents

and

Peter King and Milltown Construction

Notice Parties

[2026] IEHC 517

[H.JR.2025.0000088]

THE HIGH COURT

PLANNING & ENVIRONMENT

Judicial review – Planning permission – Detention – Applicant seeking to quash planning permission – Whether Art. 4(1)(a) of Directive 2000/60/EC was breached

Facts: The applicant, Mr Shorten, applied to the High Court seeking an order of certiorari quashing the order of the first respondent, An Coimisiún Pleanála (the Board), granting planning permission for the construction of houses and associated works at Ballymanus Lower and Ballyfree East, Glenealy, County Wicklow. The core grounds of challenge were as follows: (2) the planning application did not comply with the requirements of Arts. 22 and 23 of the Planning and Development Regulations 2001 and was invalid under Art. 26(3) of the 2001 Regulations; (3) the impugned decision was granted in breach of Art. 4(2) of Directive 2011/92/EU (the EIA Directive) because the Board did not make a lawful EIA Screening determination or give any or adequate reasons for its determination under Art. 4(5)(b) of the EIA Directive or alternatively unlawfully excluded the need for a determination under Art. 4(2) of the EIA Directive pursuant to a case-by-case examination under Reg. 109(2)(a) of the Planning and Development Regulations 2001 which is invalid because it is a mis-transposition of the second sentence of Art. 4(3) of the EIA Directive; (4) the decision was invalid because planning permission was granted in breach of Art. 4(1)(a) of Directive 2000/60/EC (the Water Framework Directive) and/or Regs. 4 and 5 of the European Communities Environmental Objectives (Surface Waters) Regulations 2009 because the Board did not ensure that the grant of planning permission would not cause a deterioration of the status of a body of surface water or that it would not jeopardise the attainment of good surface water status or of good ecological potential and good surface water chemical status and/or failed to identify, describe and assess the significant environmental impacts for the purposes of the EIA Directive and/or reached conclusions unsupported by the evidence and or/erred in failing to seek further submissions in relation to s. 131 and/or s. 137 of the Planning and Development Act 2000; (5) Art. 109(2) of the 2001 Regulations is ultra vires and invalid insofar as it contravenes and/or mis-transposes the second sentence of (3) of the EIA Directive by providing for a case-by-case examination as to whether a project need not undergo EIA screening or EIA and/or is not in accordance with and is in breach of the EIA Directive; and (6) Art. 109(2) is invalidly transposed in breach of s. 3 of the European Communities Act 1972. Core ground 1 was not pursued.

Held by Humphreys J that: (i) core ground 1 was withdrawn; (ii) core ground 2 was dismissed; (iii) core ground 3 added nothing to core ground 5 and could therefore be dismissed save for the formal purpose that hypothetical success in core ground 5 will lead to certiorari; (iv) core ground 4 would await further submissions; (v) core ground 5 would await further submissions; and (vi) core ground 6 was fundamentally misconceived and/or added nothing to core ground 5 and could be dismissed.

Humphreys J ordered that the proceedings be dismissed other than insofar as specified in the judgment and invited the parties to make Eco Advocacy CLG v An Bord Pleanála (No. 4) [2023] IEHC 713 submissions on the three questions identified in the judgment.

Proceedings dismissed in part.

JUDGMENT of Humphreys J. delivered on Friday 24 July 2026

1 . The present case involves issues concerning the interpretation of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (WFD) and 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 (EIA directive). While certain points can be disposed of at this juncture, a number of specific questions will require further focused submissions as outlined below.

Judgment history

2 . The initial application in 2021 was granted in 2023 ( https://www.pleanala.ie/en-ie/case/312844) and was challenged in a first set of judicial review proceedings, Shorten v. An Bord Pleanála 2023 886 JR. The decision was quashed and remitted on consent.

Geographical context

3 . The project ( https://www.pleanala.ie/en-ie/case/319711) is construction of 19 bungalows, pedestrian links, vehicular entrances off R752, connection to all public services and ancillary site works all on lands at Ballymanus Lower and Ballyfree East, Glenealy, Co. Wicklow. It is located at or near the following: https://maps.app.goo.gl/oJsd6qRaTam7i9KWA.

4 . Also relevant are the following links:

• (i) original decision (quashed) https://www.pleanala.ie/en-ie/case/312844;

• (ii) first instance decision

  https://www.eplanning.ie/WicklowCC/AppFileRefDetails/21840/0; and

• (iii) related decision referred to in pleadings

  https://www.eplanning.ie/WicklowCC/AppFileRefDetails/2360169/0.

Parties

5 . John Shorten, the applicant, lives immediately adjacent to the proposed development.

6 . An Coimisiún Pleanála, the first named respondent, is the decision-maker. Ireland and the Attorney General, the second and third named respondents, have been joined to the proceedings by the applicant in respect of the reliefs and grounds alleging failure by Ireland in its transposition of the EIA directive.

7 . The first and second named notice parties are Peter King and Milltown Construction, the applicants for permission, and are not participating.

Facts

8 . On 14 July 2021, the notice parties made an application to Wicklow County Council for planning permission to construct 19 houses in Glenealy, Co. Wicklow. The reference is 21/840.

9 . The applicant made a submission on 16 August 2021, which inter alia pointed out issues relating to wastewater treatment and lack of information about the proposed entrance way and its impact on the applicant's boundary.

10 . On 6 September 2021, Wicklow County Council requested further information from the notice parties including a request to submit revised drawings, a revised application form, to consult with Uisce Éireann (UÉ) in relation to wastewater treatment capacity and to provide a report in relation to the ability of the existing wastewater treatment plant and the receiving waters to cater for the proposed development.

11 . On 7 December 2021, the notice parties submitted their response to the further information request.

12 . Uisce Éireann made an observation on 14 December 2021, pointing out that the headroom in the Ballymanus WWTP is reserved to assimilate the effluent from existing non-sewered development within the village centre as per the conditions of the existing wastewater certificate and that there were currently no plans to carry out those works.

13 . On 17 January 2022, the applicant made a submission on the further information observing inter alia that it was still not clear that there was adequate space for the access road and inaccuracies in the drawings relating to his boundary.

14 . Uisce Éireann issued a further report on 18 January 2022, in which it indicated no objection to the proposed development. The submissions confirmed that there was in fact capacity at the WWTP.

15 . On 27 January 2022, on the recommendation of the planning officer dated 25 January 2022, Wicklow County Council refused permission on a single ground:

“Having regard to the existing deficiency in public wastewater capacity in the area of the proposed development, it is considered that the proposed development would be premature by reference to the timescale within which this deficiency is likely to be made good. The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.”

16 . On 22 February 2022, the notice parties appealed to the commission arguing that the spare WWTP capacity could be used for their development, that ultimately UÉ raised no objection, and that the council was confused by the conflicting positions of UÉ during the process. The reference is 312844.

17 . On 20 March 2022, the applicant made observations on the appeal in support of the decision of the council to refuse permission, pointing to irregularities in the UÉ material, and asking the commission to establish the true facts. The observation re-iterated other concerns, including in relation to the boundary and other particulars. The submission stated:

“The deficiencies in the application as lodged were clearly of such a significant nature and extent that they should have led to the invalidation of the application. While this is not a matter for An Bord Pleanála to address, it may well place the planning application open to challenge in the future event of a grant of permission …”

18 . The commission's inspector visited the site on 28 November 2022, and issued a report on 14 March 2023 recommending a grant of permission subject to 19 conditions. In relation to WWTP the inspector found that the deficiency in the sewer network (in relation to unconnected houses) was not planned to be addressed by UÉ, the notice parties were prepared to provide the connection to the proposed development, and therefore the reason for refusal could be set aside.

19 . The commission met on 7 June 2023, and decided to grant permission subject to 23 conditions and its order was sealed on 22 June 2023.

20 . On 24 July 2023, a third party applied to Wicklow County Council for a proposed development of 12 houses on a site 150 m to the west of the site of the proposed development (planning ref. 2360169).

21 . The...