[2025] IEHC 309
THE HIGH COURT
PLANNING & ENVIRONMENT
[H.JR.2024.0000037]
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000
BETWEEN
PADDY MASSEY
APPLICANT
AND
AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL, MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE
RESPONDENTS
AND
CURNS ENERGY LIMITED
NOTICE PARTY
(No. 4)
JUDGMENT of Humphreys J. delivered on Friday the 30th day of May 2025
1. In refusing leave to appeal on a pretty much identical point as is raised here, the Supreme Court called the law on harmless error "well-established" (Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27th January 2025)). That doesn't deter this applicant, who leads with his chin in failing to understand that the CJEU has in its judgment of 7 November 2013, Gemeinde Altrip and Others v Land Rheinland-Pfalz, C‑72/12, ECLI:EU:C:2013:712 already upheld the doctrine that a developer's evidence to the court may allow the court to refuse relief if satisfied that any error doesn't make a difference in the context of an alleged inadequate EU law assessment. It is inherent in that that the court forms that view on the evidence, rather than that such a view is arrived at by quashing the decision and remitting it. That isn't an impermissible process - as the Irish, UK and European courts have consistently found. The argument that the point can arise in a large number of cases is contrived given that the inflection point in the case was entirely evidence-specific - the applicant's failure to prove that any alleged error would make any difference and the developer's evidence that it would not. Thus the fact that there are other sites without conservation objectives or measures is immaterial under this heading - whether a particular project could impact on a particular site is determined by particular evidence in a particular case. In this case the uncontroverted evidence was of no impact or effect on European sites - that isn't going to change as a result of the hypothetical grant of leave to appeal.
2. In Massey v. An Bord Pleanála & Ors. (No. 1) [2021] IEHC 783 (Unreported, High Court, 21st December 2021), I dismissed a challenged to the board's decision to categorise the development as strategic infrastructure development (SID).
3. In Massey v. An Bord Pleanála & Ors. (No. 2) [2025] IEHC 206 (Unreported, High Court, 11th April 2025), I dismissed the claim for certiorari, granted certain declaratory relief and decided to refer a question to the CJEU related to possible further declaratory relief.
4. In Massey v. An Bord Pleanála & Ors. (No. 3) [2025] IEHC 218 (Unreported, High Court, 11th April 2025), I issued the formal judgment for reference.
5. The applicant now seeks leave to appeal.
(i) The point must properly arise
(a) The question must fall within the pleadings: Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4th July 2024) per Murray J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring).
(b) The question must actually arise on the facts and should not be launched in the abstract: see analogously Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11, [2018] 1 JIC 1603 (Unreported, High Court, 16th January 2018), Donnelly J., para. 10.
(c) The question raised must actually have been argued by the would-be appellant and must not be a new issue formulated for the purposes of an appeal: GOCE Limited v. An Bord Pleanála [2025] IEHC 43 (Unreported, High Court, Farrell J., 31st January 2025).
(d) While not an absolute rule, the question should be determinative in some sense and should make a difference to the outcome - generally it should not be one which, if answered in a sense favourable to the would-be appellant, would leave the result unchanged: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14th November 2016). This is part of a broader principle that prolonging the process by recourse to a further instance can't be based on just identifying some shiny and interesting point - the whole thing has to be going somewhere. O'Donnell J. put this vividly in Rooney v. Minister for Agriculture and Food [2016] IESC 1 (Unreported, Supreme Court, 28th January 2016) at para. 3: "Some litigants, and not just those who represent themselves, prefer the comfort of focusing exclusively on the debatable ruling or judicial comment reinforcing a sense of grievance rather than recognise the forest of problems in the overall case. The cycle continues and becomes almost a form of litigious perpetual motion."
(e) The question must accurately reflect the judgment and must not be an addition, exaggeration or distortion launched for the purposes of creating a case for appeal: Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9, [2023] 1 JIC 1907 (Unreported, High Court, 19th January 2023) per Holland J. at §9(d); Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J.
(f) The application for leave to appeal should be made within time, generally within 28 days from the order to be appealed against: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14th November 2016).
(g) The question should be specific and should identify something specific that makes a difference - it should not be an invitation to an appellate court to write an essay on a particular topic or engage in a discursive, roving response: S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, 2016 WJSC-HC 439, [2016] 11 JIC 1404 (Unreported, High Court, 14th November 2016); Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J.
(ii) The point must be one of law
(a) The point cannot be an essentially factual question such as construing the import and effect of a particular decision; Leech v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court, 24th March 2025) per Farrell J.
(b) Relatedly, the question should not be one of application of law to particular facts but rather one of the substance, content and interpretation of law. Questions about the application of established principles to particular facts are not pure questions of law and are at best mixed questions of fact and law, and are generally unsuitable for appeal in such a context: B.S. v. Director of Public Prosecutions [2017] IESCDET 134 (Clarke C.J., O'Donnell, McKechnie, MacMenamin, Dunne, Charleton and O'Malley JJ., 6th December 2017); per Simons J. in Halpin v. An Bord Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 (Unreported, High Court, 15th May 2020) (para. 60); per Barniville J. in Rushe v. An Bord Pleanála [2020] IEHC 429, [2020] 8 JIC 3101 (Unreported, High Court, 31st August 2020); per Phelan J. in Stanley v. An Bord Pleanála [2022] IEHC 671, [2022] 11 JIC 2805 (Unreported, High Court, 28th November 2022); Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024); per Farrell J. in Leech v. An Bord Pleanála [2025] IEHC 157 (Unreported, High Court, 24th March 2025).
(iii) The point of law must be of public importance
(a) The question must not be fact-specific arising in the particular context of a particular case - rather it must transcend the facts in order to create a point of public importance: see analogously and albeit non-precedentially, Patrick McCaffrey & Sons Limited v. An Bord Pleanála [2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 20th November 2024).
(b) Advancing the proposed question should resolve doubt rather than create doubt where none exists - this is consistent with the views of Baker J. in Ógalas v. An Bord Pleanála [2015] IEHC 205, 2015 WJSC-HC 22497, [2015] 3 JIC 2008 (Unreported, High Court, 20th March 2015) that an appeal may be necessary in the public interest to resolve doubt. But if no doubt exists, the function of the appeal mechanism is not to introduce new uncertainty into the system. Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 (Unreported, High Court, 10th January 2025) endorsed a submission that "where the law is not uncertain, the public interest suggests an appeal is not warranted".
(c) The application for leave to appeal should engage with the rationale of the judgment being appealed against and provide a plausible basis as to why that judgment is wrong to the level that meets the criteria for an appeal. While a leave to appeal application is in one sense premised on the view that the decision may be incorrect, that does not relieve a would-be appellant from actually engaging with the logic and reasoning of the judgment as opposed to merely repeating his or her position: see analogously and non-precedentially, Nagle View Turbine Aware v. An Bord Pleanála [2025] IESCDET 41 (O'Malley, Murray and Donnelly JJ., 10th March 2025).
(d) The fact that an official body is seeking leave to appeal is a relevant factor (Sherwin v. An Bord Pleanála (No. 2) [2023] IEHC 232, [2023] 5 JIC 0802 (Unreported, High Court, 8th May 2023)) but the mere fact that the request for leave to appeal is made by an official entity does not convert a point into one being suitable for appeal if it would not otherwise be so. As pointed out in Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J., a body concerned that it is bound by a decided issue is the whole point - the system is not a one-way ratchet whereby only applicants are bound by caselaw.
(e) The fact that a point is "novel" is not determinative as to whether a point is suitable for the granting of a certificate, or to put matters another way, the mere fact that a point is novel does not render it a suitable basis for appeal if it would not otherwise be so: Callaghan v. An Bord Pleanála [2015] IEHC 493, 2015 WJSC-HC 4417, [2015] 7 JIC 2405 (Unreported, High Court, Costello J., 24th July 2015). And as Hyland J. observed in Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209, [2023] 3 JIC 1307 (Unreported, High Court, 13th March 2023) at §27: "the mere fact that an applicant for leave disagrees with a conclusion in the judgment cannot be relied upon to characterise the state of the law as being uncertain".
(f) The mere inclusion of a request for a reference to the CJEU does not convert a point into one suitable for appeal if it is otherwise unsuitable for appeal by reason of being abstract, or not arising having regard to the findings of fact, or being an issue of application of law rather than interpretation, or due to lacking sufficient factual foundation or due to there not being any demonstrable reasonable doubt, for example: see analogously Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8 (Charleton, Collins and Donnelly JJ., 27th January 2025); Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27th January 2025).
(iv) The public importance must be exceptional
If the would-be appellant establishes that there is a point of law of public importance, it must also be established that the importance is exceptional.
(v) An appeal must be in the public interest
(a) The context is the objective of the Oireachtas in seeking finality, certainty and expedition in challenges brought by way of judicial review in planning cases (Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231, [2022] 4 JIC 2601 (Unreported, High Court, 26th April 2022) per Barniville J. at para. 32; Freeney v. An Bord Pleanála [2025] IEHC 36 (Unreported, High Court, 24th January 2025) per Bradley J.). The nature of the project and the risks of further delay are factors going to the requirement that an appeal must be in the public interest: see per McGovern J. in Dunnes Stores v. An Bord Pleanála [2015] IEHC 387, 2015 WJSC-HC 6876, [2015] 6 JIC 1805 (Unreported, High Court, 18th June 2015) at §15 and §16. See also analogously and non-precedentially Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce - The National Trust for Ireland and Client Earth AISBL [2024] IESCDET 62 (Charleton, Woulfe and Collins JJ., 27th May 2024) at para. 24: "The Court must have regard to the potential impact upon the notice party of any further delay in these proceedings".
(b) Any assertion of problems in practice caused by a judgment must be backed up with evidence: see Stapleton v. An Bord Pleanála [2025] IEHC 178 (Unreported, High Court, 1st April 2025) per Holland J., and, relevant by analogy, albeit non-precedentially, Phoenix Rock Enterprises v. An Bord Pleanála & Ors [2023] IESCDET 97 (Dunne, Baker and Donnelly JJ., 20th July 2023) at §22 and §30 dealt with an argument that alleged uncertainty in the law was creating alleged difficulties in practice, but rejected this on the basis that there was "no evidence before the High Court that the quarry industry was being seriously affected by the issues in the case", and that "[t]he decision in this case was fact-specific to this quarry and it must be recalled that the role of the Supreme Court on an Article 34 appeal is not to give advisory opinions but to deal with the controversy at issue between the parties once the constitutional thresholds have been met". See also McCaffrey v. An Bord Pleanála [2024] IEHC 476 (Unreported, High Court, Gearty J., 26th July 2024) at §3.7, leave to appeal refused McCaffrey v. An Bord Pleanála [2024] IESCDET 145 (Dunne, Hogan and Collins JJ., 29th November 2024).
7. Contextually, perhaps I can point out that if there is a solid case for leave to appeal, it will presumably be granted - see R.A. v. Refugee Appeals Tribunal [2015] IEHC 830 (Unreported, High Court, 21st December 2015); B.W. v. Refugee Appeals Tribunal [2015] IEHC 833 (Unreported, High Court, 21st December 2015); K.R.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 421 (Unreported, High Court, 24th June 2016); S.T.E. v. Minister for Justice and Equality [2016] IEHC 544 (Unreported, High Court, 14th October 2016); R.A. v. Refugee Appeals Tribunal (No. 3) [2016] IEHC 671 (Unreported, High Court, 21st November 2016); B.S. (India) & Anor. v. Minister for Justice and Equality & Ors. (No. 3) [2020] IEHC 485, [2020] 10 JIC 1202 (Unreported, High Court, 12th October 2020); Sweetman v. An Bord Pleanála (Sweetman XVII) (No. 2) [2021] IEHC 662, [2021] 10 JIC 2601 (Unreported, High Court, 26th October 2021); Dublin City Council v. An Bord Pleanála (No. 2) [2021] IEHC 34 (Unreported, High Court, 28th January 2021); Waltham Abbey Residents Association v. An Bord Pleanála [2021] IEHC 597, [2021] 10 JIC 0702 (Unreported, High Court, 7th October 2021); Save Roscam Peninsula CLG v. An Bord Pleanála (No. 2) [2022] IEHC 328, [2022] 6 JIC 0903 (Unreported, High Court, 9th June 2022); Joyce-Kemper v. An Bord Pleanála (No. 5) [2022] IEHC 349 (Unreported, High Court, 10th June 2022); Kerins v. An Bord Pleanála (No. 5) [2023] IEHC 280 (Unreported, High Court, 25th May 2023); Coolglass v. An Bord Pleanála [2025] IEHC 1 (Unreported, High Court, 10th January 2025). It does not necessarily assist matters to certify superfluous issues that do not meet the necessary criteria.
8. The applicant's proposed questions are as follows:
(i) (Assuming that the CJEU answers the question referred herein in the affirmative) - By what criteria can a court withhold certiorari where appropriate assessment (AA) screening was carried out in the absence of valid conservation objectives; and were those criteria correctly applied in the present case?
(ii) Is s. 37A of the 2000 Act, and in particular the phrase "if the following condition is satisfied", to be interpreted as directory or mandatory?
9. The first question does not properly arise as drafted. It is based on a hypothetical as to how the CJEU will answer the referred question. Perhaps re-drafting could save this point in some way so I will deal with the other criteria below.
10. More generally, much of the applicant's submission raised totally unpleaded points, or points that were pleaded under core ground 2 in impermissible support for core ground 1. That can't be a valid basis for an appeal of any kind - Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4th July 2024) per Murray J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). The applicant complained that the objectives hadn't been in place when the statement of grounds had been filed - which is fine, but that doesn't dispense with the rules of pleading. The onus is on the applicant to amend the pleadings if such be required, which this applicant didn't do. It is not the law that an applicant can get relief based on any unpleaded happening merely because such happening occurs after the date of filing of the proceedings.
11. I don't have a lot to add under this heading to the notice party's submission:
"1. An application for leave to appeal, pursuant to s.50A(7) of the PDA, "must accurately reflect the judgment and must not be an addition, exaggeration or distortion launched for the purposes of creating a case for appeal" - Eco Advocacy CLG v An Bord Pleanála [2025] IEHC 195 (§2(i))). Regrettably, the Applicant's Submissions do not reflect such requirements.
2. While the Applicant has formulated his two questions with admirable concision, this is not matched by his Submissions which are afflicted with a form of legalistic logorrhoea running to some 9,100 words (equalling the length of their submissions in the substantive matter). In fact, much of the Submissions do not concern the questions at all, insofar as same comprise - the rehearsing of failed arguments about expert evidence; the advancing of un-pleaded and unargued points about the subsequent site specific conservation objectives; and taking the State to task about a lack of explanation for the absence of site specific conservation objectives, notwithstanding the concession of a declaration. While the Applicant may not be able to resist engaging in such zoilism (including in respect of the Judgment itself), it is outside the permissible boundaries for seeking leave to appeal."
12. The first question is not one of law. Whether the principles about harmless error (which are clear in any event insofar as they are relevant to these proceedings - see next heading) were correctly applied is at best only a mixed question of fact and law. Whether law was correctly applied is error-correction, and is not an appropriate matter for appeal in a planning context.
13. Insofar as the applicant now tries to question the evidence, he didn't produce any expert of his own, and his non-expert views and legal submissions do not amount to admissible evidence.
14. The second question is in fairness phrased as a legal one - I will give the applicant that much.
15. Neither point is of any public importance for the following reasons.
16. The criteria to withhold relief for harmless error are now "well-established" according to the Supreme Court, albeit non-precedentially, as noted above. There is no further need for clarification after something comes back clarified by the CJEU (Altrip in relation to harmless error generally, and the law in relation to the remedial obligation in relation to an ongoing obligation to rectify the effects of breach of EU law, if there are effects - but the evidence shows there are no such effects here).
17. One move straight out of the appellant's handbook is to produce new authority and to claim a conflict of jurisprudence (hence unlocking the magic door of the matter not being acte clair and an appeal being necessary to resolve doubt). The problem of course is that typically the doubt is stimulated artificially for the purpose.
18. Any two judgments picked at random can be made to look contradictory if you approach them looking for contradiction. By contrast, the common law method is to try to read caselaw as fitting together if such a reading is reasonably available.
19. The applicant produces the judgment of the EFTA Court of 21 May 2025 in Case E-18/24, The Norwegian State v Greenpeace Nordic, Nature and Youth Norway, claiming conflict, but misunderstands this judgment. What this says is:
(i) At paras. 113 and 114, that Altrip only applies to procedural irregularities, not substantive irregularities such as the complete lack of an EIA (there was no such assessment at all in that case). It doesn't seem to be disputed that the concept of procedural irregularity has an autonomous meaning in EU law. Greenpeace was about a total lack of EIA which doesn't arise here. Altrip was about defective EIA - which is analogous to what is alleged here (defective AA). This is clear from para. 16, as noted by the Supreme Court in the Carrownagowan determination (emphasis added) - "The applicants, who are all affected by the project as owners or tenants of land located within the area acquired for the work in question for public purposes, brought an action before the Verwaltungsgericht (Administrative Court) seeking the annulment of the regional authority's decision approving plans to construct that work. In challenging that decision, they claimed that the environmental impact assessment carried out beforehand was inadequate. Their action having been dismissed, they lodged an appeal with the Oberverwaltungsgericht Rheinland-Pfalz (Rhineland-Palatinate Higher Administrative Court)."
(ii) At para. 115, that art. 11 of 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) confers discretion on member states to determine by law what is an impairment of a right for the purpose of Aarhus rights. That is certainly true - the judgment of 28 May 2020, IL and Others v Land Nordrhein-Westfalen, C‑535/18, ECLI:EU:C:2020:391, para. 59 - but that is about what national law can recognise for the purposes of procedural rights under the EIA directive. There is no particular read-across to the test for harmless error in judicial proceedings.
(iii) At para. 116, the court said "In this regard, the Court notes that the present case concerns an environmental impact assessment that has not been carried out in the line with the EIA Directive as it has omitted very significant amounts of the greenhouse gas emissions related to the project concerned. Concluding that such an omission could not have impacted the development consent would undermine the whole purpose of the EIA Directive, which is to assess the environmental impacts of a project and take these assessments into consideration in the development consent procedure. It follows that a national court cannot retroactively dispense with the obligation to assess the direct and indirect effects on the environment of a project under Article 3(1) of the EIA Directive". The context there was of course the complete lack of an EIA. But the ultimate punchline was that there is a continuing obligation to assess the unassessed effects of a project - that's the remedial obligation recognised by CJEU jurisprudence. That's all well and good but it has no relevance, where the evidence shows there are no effects, even if counterfactually there was a breach (which in my view there wasn't). So the question of remedying such effects (as in Greenpeace, a much more extreme case where there was no assessment at all) doesn't get out of the starting blocks.
(iv) At para. 120, the operative part of the judgment, the court resolves the matter in terms familiar from and consistent with CJEU caselaw: "In the light of all the above considerations, the answer to the second question must be that a national court is required under Article 3 EEA, to the extent possible under national law, to eliminate the unlawful consequences of a failure to carry out a full environmental impact assessment required under the EIA Directive. However, this does not preclude regularisation through the conducting of such an assessment while the project is under way or even after it has been completed, on the twofold condition that: - - national rules allowing for that regularisation do not provide the parties concerned with an opportunity to circumvent the rules of EEA law or to dispense with applying them, and any subsequent or ancillary assessment carried out for regularisation purposes is not conducted solely in respect of the project's future environmental impact, but must also take into account its environmental impact since the time of completion of that project."
20. The ultimate point is that the applicant tries to generalise from an extreme case - no EIA at all - to say that in this case an alleged shortcomings in assessment requires certiorari even if it makes no difference. What this overlooks among so many other things is that if a project isn't going to have any effects on site X then it doesn't matter what site X's conservation objectives are or whether there are any.
21. The second question is of no public importance. The precise entity within a group of companies that applies for the permission isn't a matter of importance at any level. It is just a technicality and one not worth wasting any more time about, even if - or especially if - I am wrong. It is inherent in the restricted appeal policy in planning that the occasional erroneous judgment will have to be allowed to stand, and even assuming that I am wrong about this point, one has to say so what? This is in substance an indoor management point, viewed from within a corporate group. It doesn't do any great harm to the public if there is marginally more flexibility about who a planning applicant can be.
22. It can't be said that the first question lacks authority - there are decisions of the Irish, UK and European courts, all of which are consistent with the point made by the Supreme Court, albeit non-precedentially, quoted above. This is a well-established point. More generally, as the notice party points out, "there is ample authority as to the discretionary nature of judicial review and that certiorari is not always required - Pembroke Road Association v An Bord Pleanála [2022] IESC 30 at §52". There are no contrary authorities. Norway v Greenpeace is not a contrary authority for the reasons explained - it says what many other CJEU judgments say about a remedial situation that doesn't exist in the present case on the facts.
23. The mere fact that it could be argued that the second point isn't definitively covered by appellate authority doesn't convert a minor issue into a major issue or one of limited if any importance into one of public importance. There is no conflict of jurisprudence because Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2021] IEHC 203, [2021] 3 JIC 1904 (Unreported, High Court, Barniville J., 19th March 2021) was based on a concession, and my decision is consistent with the view of Owens J. in Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403 (Unreported, High Court, 16th June 2021). In none of these cases was certiorari granted. There are no problems in practice arising from the approach taken by Barniville J., Owens J. or myself or to the approach in the first question. Certainly there is no evidence of any such problems. The submission in that regard is totally speculative. Again, there are no contrary authorities.
24. The applicant's scare-term of "forbidden territory" misunderstands the law in relation to harmless error and as the board says, is in substance the same argument as that rejected by the Supreme Court in refusing leave to appeal in Carrownagowan as noted above (there the applicant had phrased it as a confected "substitutionary rule"). The CJEU has already - expressly - said that developer's evidence in a judicial review can lawfully be relied on by the court in refusing relief if it shows that an error is harmless. A spurious "substitutionary" or "forbidden territory" concept can't be correct for the simple reason that it is totally inconsistent with that. There couldn't be a doctrine of harmless error at all if the court couldn't take on board a developer's evidence in the manner permitted in Altrip.
25. The fact that there is a Supreme Court appeal in Friends of the Ardee Bog v. An Bord Pleanála [2025] IESC 13 (Unreported, Supreme Court, Hogan J., 25th March 2025) does not in logic mean that there should be a certificate granted in this case for the simple reason that this case turns on its own facts and on the uncontroverted evidence as to the harmlessness of the error here. If reinforcement of that be needed, the precise issue here wasn't argued in Ardee Bog.
26. The applicant's complaints about my comment about over-use of the term "jurisdictional" as not being particularly helpful in many instances are a contrived issue. Nothing particularly turns on those comments. The bottom line is that while a determination as to effects on European sites is a prerequisite to the board's jurisdiction to grant permission (Kelly v. An Bord Pleanála [2014] IEHC 400 (Unreported, High Court, Finlay Geoghegan J., 25th July 2014) and subsequent cases), that doesn't have the effect that any infelicity or shortcoming in the detailed process of AA requires automatic certiorari irrespective of the peripherality of any alleged error to anything. Calling everything to do with AA jurisdictional is just the other side of the coin of denying any meaningful doctrine of harmless error. If there can be harmless errors then such errors are not jurisdictional in the sense of requiring certiorari independently of whether the errors have any meaningful effect or not. The applicant tries to cling on to the concept of "jurisdictional" error to get an order of certiorari that is not in fact merited on the evidence. That is not a valid argument. There is no conflict of jurisprudence - the applicant is simply reading Kelly in a much wider sense and as having much more radical implications than arose in that case.
27. As stated above, the argument that the point can arise in a large number of cases is contrived given that the inflection point in the case was entirely evidence-specific - the applicant's failure to prove that any alleged error would make any difference and the developer's evidence that it would not in this specific case. Generalising this case as being somehow determinative for many other projects is a spurious exercise because it fails to take that into account.
28. This doesn't arise having regard to the foregoing.
29. In my perhaps erroneous opinion, an appeal is not in the public interest. One convenient starting point to view this issue is the urgent need, in the climate emergency context, for renewable energy infrastructure. Of course if the decision is unlawful the court will need to address that, and will address that by declaratory relief. But there is no basis for more imperative relief because there is simply no evidence that the issue complained of made any difference to anything. I agree with the notice party:
"the development at issue is a renewable energy project, in respect of which planning application was made over four years ago (January 2021) and in respect of which permission was granted over 17 months ago (November 2023). In Nagle View Turbine Aware Group [2025] IEHC 3, the Court emphasised that 'The nature of the project and the risks of further delay are factors going to the public interest' (§24 et seq). See also Eco Advocacy CLG [2025] IEHC 195; Glancre (§5); and Arklow Holidays Limited v An Bord Pleanála [2008] IEHC 2 - delaying public infrastructure was a relevant consideration in determining that an appeal was not in the public interest."
30. The applicant's arguments make little sense anyway for the reasons explained in the No. 2 judgment, but what is even more relevant under this heading is the disproportionality of further delay which will prejudice the developer without any likely comeback in costs, damages or otherwise. The applicant is going to get his day in court in Luxembourg and back in the High Court following the reference, but having failed on the evidence to show that the alleged "error" makes any difference, it would not be in the public interest to allow further proceedings to block an urgently needed renewable energy project on the basis of an asserted error that is, on the facts, harmless if it exists at all. Obviously my view is that there is no error, but even assuming there is one, that doesn't get the applicant over the evidential deficit, in which situation he can't reasonably expect more than declaratory relief.
31. On the identity of the applicant for permission point, the fundamental stumbling block is that this is not a matter of public interest, just a legal technicality. As the notice party points out:
"During the course of the hearing and in this certificate application, the Applicant has simply failed to advance any basis as how he or anyone else could conceivably be prejudiced by this most technical of matters ..."
32. Generally, the applicant's arguments for leave to appeal are replete with straw-man arguments, impermissible expansion upon the pleaded case, and obvious non-sequiturs or points that have been rejected on previous occasions in the caselaw. There is no particular public interest in permitting an appeal on such a basis.
33. Ultimately I agree with the board's submission:
"24. It is not in the public interest to certify either point - noting in this respect Nagle View (No.2) [2025] IEHC 3 at §9(vii). The Applicant has manifestly failed to establish how certification of any of questions is in the public interest. No actual affirmative public benefit or public interest has been identified or relied upon by the Applicant in this regard. It is respectfully submitted that the public interest militates against allowing an appeal, for the same reasons as set out in Carrownagowan (No.3) [2024] IEHC 549 at §83 to §92, and §93(vii)."
34. Stating the obvious perhaps but while I am refusing certiorari on the basis of the evidence, the applicant will have further appellate opportunities in respect of the declaratory relief if there is something to appeal following the CJEU judgment. The case has some similarity to Hellfire Massy v. An Bord Pleanála [2022] IESC 38, [2024] 1 I.R. 386 (O'Donnell C.J.) because the same basic dynamic applies - no outcome in Luxembourg can require certiorari. We arrive at that point here because I have already found that the evidence shows that the alleged error makes no difference, so I am required to apply the law as to harmless error. The constitutional and statutory architecture for appeal does not envisage that an appellant gets to argue factual and evidential points indefinitely.
35. As to costs, the normal position will apply, in other words that if leapfrog leave to appeal is granted, costs will be costs in the appeal. If not, the opposing parties' costs will be reserved. Those costs can be considered in due course if an application is made on the basis of s. 50B(3) of the 2000 Act or on the basis of general set-off.
36. As regards a listing date, the case can go to the new procedure of the virtual List to Fix Dates, which is a notional listing date on the Unified Case Management System (UCMS). If and when the parties want to mention the matter again, contact can be made with the registrars to get an actual date. Or I will list it when the CJEU judgment comes out. Either way it can be mentioned any time it needs to be.
37. In outline summary, without taking from the more specific terms of this judgment:
(i) On the particular facts and uncontested evidence in this case, there could not have been an effect on European sites. The applicant's points are thus academic. The applicant's claim of general significance for the proposed appeal ignores that this decision turns on its own evidence.
(ii) The principle that harmless errors do not require automatic certiorari is well established. This includes allegedly defective European assessments - as the CJEU found at para. 16 of Altrip. The application of that to particular facts is not a pure question of law in any event and unsuitable for appeal in a planning context.
(iii) The corporate identity point is a technicality of no particular importance, merit or public interest. No rights of the applicant were meaningfully affected. My decision is wholly consistent with that of Owens J. in Pembroke Road, who I followed.
(iv) An appeal is not in the public interest having regard to the disproportionality of further delay, the prejudice to the developer, the urgent requirement for renewable energy infrastructure in the context of the climate emergency, the technical nature of the points and the total lack of any tangible public interest identified, still less established, by the applicant.
38. For the foregoing reasons, it is ordered that:
(i) the application for leave to appeal be dismissed;
(ii) in the event that an application for leapfrog leave to appeal is 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 applicant's costs of the leave to appeal application and the costs of all other parties be reserved;
(iv) the matter be listed in the virtual List to Fix Dates to await the outcome of the reference; and