Judgment;Summary — ECLI:EU:C:2023:545
Date: 2023-07-06
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary of 
demand projections based on an estimated pre-existing cohort of local amenity users 
of 100,000 per year and a “prudent estimate” of growth to 225,000 per year with a 
target for 300,000 for the subsequent five-year period. 
8. The document divides the public into “consumer segments” such as the “culturally 
curious (overseas)”, “social energisers (mainly UK)”, “connected families (domestic)” 
and “great escapers (overseas)”.  It states that a number of assumptions have been 
made to model the performance of the visitor’s centre which “for the most part are 
drawn from CHL’s experience of trends and norms in the visitor attraction sector.  In 
most cases the assumptions made tend to err on the side of caution”.  Caution here 
means that the report is not tending to overstate visitor numbers or revenue. 
9. The formal application for a visitor’s centre and associated works was submitted 
directly to the board under s. 175 of the 2000 Act on 31st July, 2017.  The lands 
concerned are owned by Coillte, which is consenting to the application.  No part of the 
development is within a European site. 
10. The main elements of the application are for two buildings comprising the visitor 
centre, a tree canopy walk/pedestrian bridge over the R115, conversion of conifer 
forest to deciduous woodland and conservation works to existing structures. 
11. On 5th September, 2017, the board requested the council to submit additional 
information by way of a shapefile showing the red-line boundary. 
12. On 9th October, 2017, the board requested further information in relation to potential 
impacts on fauna and habitats which had been raised in a submission from the 
Department of Culture, Heritage and the Gaeltacht on 25th September, 2017. 
13. The council responded to this request in November 2017, and that response was 
subjected to a round of public consultation. 
14. On 7th February, 2018, the board requested additional information in relation to 
potential impacts on specified matters, in particular the Wicklow Mountains Special 
Protection Area (SPA). 
15. An oral hearing took place over six days between 20th and 27th November, 2018. 
16. On 9th January, 2019, the inspector prepared a first report which was negative in 
nature.  It indicated that the inspector was satisfied with the issues of proper planning, 
zoning and design, but considered that the impact of the bridge had not been fully 
assessed.  The inspector thought that very little surveying had been carried out in 
Massy’s Woods (para. 10.3.11).  Certain aspects of the design were queried. 
17. An issue had been raised as to the identity of the applicant, but the inspector concluded 
that the applicant was the council, not the Dublin Mountains Partnership or Coillte (see 
para. 10.6.5 to 10.6.8). 
18. The ownership of one small piece of land was queried, but the inspector thought that 
that could be worked around if it became a problem (para. 10.6.10 to para. 10.6.11).    
19. She noted that the car park, footpaths and cycle lanes would be a planning gain and 
addressed existing safety issues (para. 10.8.4). 
20. Under environmental impact assessment (EIA) and consideration of alternatives, she 
noted at para. 11.2.12 that the design statement refers to similar buildings such as 
the Wordsworth Centre in Grasmere in the Lake District of England, the Sliabh Gullion 
Visitor Centre near Newry in County Armagh and the Rosmuc Visitor Centre in County 
Galway. 
21. Her main concerns were with biodiversity, noting the impact on squirrels from both 
clear-felling for the car park and replacement of coniferous trees with deciduous trees.  
The latter would give the invasive grey squirrel the advantage in its ongoing battle 
with the native red squirrel (see para. 11.6.5). 
22. She notes that a squirrel drey was recorded (para. 11.6.16) and also referred to 
mitigation measures (para. 11.6.17).  Observers provided evidence of other dreys in 
Massy’s Woods (para. 11.6.19) and she noted the intention to conduct a pre-
construction survey. 
23. The report noted that the EIAR table 6.16 notes that there will be a loss of a drey and 
a further information response notes that a derogation licence would be sought to 
destroy one drey (para. 11.6.20).  The inspector said that this was contradicted at the 
oral hearing in that it was stated that the design of the car park was arranged to avoid 
the drey. 
24. Regarding bats, she had concerns regarding the lack of baseline survey data (para. 
11.6.25) and had similar issues regarding otters (para. 11.6.32).  The lack of 
information regarding birds was of “significant concern” (para. 11.6.34). 
25. She considered there was insufficient assessment of the impact on merlin and generally 
was not satisfied that there had been assessment of the full impact on habitats. 
26. Mention is made of bryophytes and of the impact of introducing horses on an 
equestrian trail through the habitats concerned.  She was also concerned regarding 
the impact on adjacent Natura 2000 sites due to the potential increase in footfall, but 
overall the environmental impacts were acceptable apart from in relation to 
biodiversity (para. 11.16.2). 
27. On appropriate assessment (AA) she concluded that a stage 2 assessment was needed 
having noted the screening report.  She said that in the absence of a Natura Impact 
Statement (NIS) she could not conclude that there would be no significant impact on 
European sites, making specific mention of the Glenasmole Valley Special Area of 
Conservation (SAC) (001209), the Wicklow Mountains SAC and the Wicklow Mountains 
SPA. 
28. Following this report, the board requested additional information on 6th February, 
2019 in particular an additional bird survey, the preparation of an NIS and an additional 
survey of habitats and an updated EIAR.   
29. That further information was submitted in December 2019.  The revised EIAR referred 
at para. 6.9.3.1 to the impact on and mitigation measures for red squirrels as a key 
environmental receptor among other species. 
30. The council also submitted an NIS dated November, 2019 and an updated operational 
management and monitoring commitments document.  It also included a walkers 
survey from summer 2019 and surveys of fauna and habitats taken over the period 
April to September 2019. 
31. A red squirrel conservation management plan was submitted dated November 2019 as 
well as a paper by Amy Haigh, Fidelma Butler, Ruth M. O’Riordan and Rupert Palme, 
“Managed parks as a refuge for the threatened red squirrel (Sciurus vulgaris) in light 
of human disturbance”, Biological Conservation 211, (2017), pp. 29 to 36.  This 
information was subjected to an additional round of public information. 
32. The National Parks and Wildlife Service (NPWS) said that their concerns regarding 
merlins and the impact on European sites had been addressed in the further 
information. 
33. The applicant made a submission dated 7th February, 2020. 
34. The inspector then produced an addendum to the report on 6th May, 2020.  This noted 
that the further bryophytes survey indicated a number of notable findings including 
two species not previously recorded in Dublin and five not recorded in Dublin since 
1959.  No larval webs of Marsh Fritillary were found (para. 5.4.17) although it was 
noted that this was disputed by an observer. 
35. The inspector thought that “there were obvious gaps in the information initially 
provided”, but “I am satisfied that those lacunae have been addressed” (para. 5.4.26).  
She noted that the NPWS was of the same view and generally considered that matters 
had been adequately addressed. 
36. Under the heading of appropriate assessment, various objections to the new 
information were noted, but the inspector considered them not to have been borne 
out. 
37. On foot of that addendum and the original report, the board decided to approve the 
application, with conditions, on 25th June, 2020. 
38. The board’s decision states that it had regard, among other things, to the habitats 
directive 92/43/EEC, the birds directive 79/409/EEC, the water framework directive 
2000/60/EC and the EIA directive 2014/52/EU amending directive 2011/92/EU.  That 
is a mis-reference in that it should be to the 2011 directive as amended inter alia in 
2014.  Regard was also had to national, regional and local policy to the objectives and 
interests of the Wicklow Mountains SPA (004040) and the Wicklow Mountains SAC 
(002122). 
39. The board completed an appropriate assessment exercise and concluded there was no 
adverse effect on European sites.  It also completed an environmental impact 
assessment and concluded that the main direct and indirect effects would be mitigated 
as set out in the decision.  The conclusion was that “subject to the implementation of 
the mitigation measures proposed … and subject to compliance with the conditions set 
out … the effects on the environment of the proposed development … would be 
acceptable”. 
40. While the inspector had recommended to omit the tree-top bridge and canopy and 
bridleway in Massy’s Woods, the board decided not to omit that element, essentially 
on the basis of the further ecological information and surveys. 
41. The board concluded that the proposed development would be in accordance with 
proper planning and sustainable development.  Nine conditions were imposed including 
applying the mitigation measures in the EIAR (condition 2) and the NIS (condition 3), 
a revised forestry management plan to retain the majority of mature conifers on the 
Hellfire plantation to support the red squirrel (condition 5), and the engagement of an 
ecological clerk of works (condition 7). 
Relevant legal materials 
42. A list of the relevant EU, international and domestic legal material is summarised is set 
out in the appendix to the judgment together with web links.  
The relevant grounds of challenge 
43. In Hellfire Massy Residents Association v. An Bord Pleanála (No. 1) [2021] IEHC 424, 
[2021] 7 JIC 0201 (Unreported, High Court, 2nd July, 2021), I dismissed the 
proceedings save insofar as they concerned a challenge to the validity of regs. 51 and 
54 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. 
No. 477 of 2011) regarding the process to be adopted after the grant of development 
consent.  That is the only currently live issue in the proceedings.  
44. The regulations were adopted to give effect to the birds directive 2009/147/EC and the 
habitats directive 92/43/EEC.  They were amended by the European Union (Birds and 
Natural Habitats) (Sea-fisheries) Regulations 2013 (S.I. No. 290 of 2013),  the 
European Communities (Birds and Natural Habitats) (Amendment) Regulations 2013 
(S.I. No. 499 of 2013) and the European Communities (Birds and Natural Habitats) 
(Amendment) Regulations 2015 (S.I. No. 355 of 2015), but those amendments do not 
appear immediately relevant to the issue here. 
45. The essential ground of challenge to the legislation is that firstly the procedure for 
grant of development consent is not integrated with the system of strict protection for 
the purpose of art. 12 of the habitats directive, and secondly that the system of strict 
protection as implemented in Ireland does not provide for proper public participation.  
46. In Hellfire Massy Residents Association v. An Bord Pleanála (No. 2) [2021] IEHC 636, 
[2021] 10 JIC 1302 (Unreported, High Court, 13th October, 2021), I refused leave to 
appeal in relation to the aspects of the case that I had dismissed. 
47. In Hellfire Massy Residents Association v. An Bord Pleanála (No. 3) [2021] IEHC 771 
(Unreported, High Court, 14th December, 2021), I joined An Taisce and Save Our Bride 
Otters as amici curiae. 
Questions of European law arising 
48. As discussed in the No. 1 judgment, four questions of European law that relate to the 
interpretation of EU law and that are necessary for the decision arise from the 
substantive grounds identified above, and I consider it appropriate in all circumstances 
to make a reference to the Court of Justice under art. 267 TFEU. 
The first question  
49. The first question is: 
  whether the general principles of EU law arising from the supremacy of the 
EU legal order have the effect that a rule of domestic procedure whereby an 
applicant in judicial review must expressly plead the relevant legal 
provisions cannot preclude an applicant who challenges the compatibility of 
domestic law with identified EU law from also relying on a challenge based 
on legal doctrines or instruments that are to be read as inherently relevant 
to the interpretation of such EU law, such as the principle that EU 
environmental law should be read in conjunction with the Convention on 
Access to Information, Public Participation in Decision Making and Access to 
Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998  
as an integral part of the EU legal order. 
50. The applicant’s position is that the question should be answered “Yes”.  Allowing 
domestic procedural rules to preclude an applicant, in the manner described, from 
raising a point of European law would be inconsistent with the principle of supremacy; 
and such domestic procedural rules should be disapplied if they cannot be interpreted 
in a manner that gives full effect to the protections contained in the habitats directive, 
particularly where the referring court has accepted that the point raised by the 
applicant is “acceptably clear” and no prejudice arises to the position of the other 
parties.  European law is an integral part of the domestic legal system, not an alien 
and unfamiliar system which requires it to be spelt out to the very institutions which 
are supposed to be administering or implementing it.  The principle of effectiveness, 
or effective judicial protection, obliges Member State courts to ensure that national 
remedies and procedural rules do not render claims based on EU law impossible in 
practice or excessively difficult to enforce.  The elaborate pleading envisaged by the 
question in respect of points of European law infringes that requirement; the issue 
becomes not whether the argument is sufficiently clear but whether  the argument 
reaches a standard which is disproportionate to the purpose of pleadings.  The principle 
of equivalence requires the same remedies and procedural rules to be available to 
claims based on European Union law as are extended to analogous claims of a purely 
domestic nature.  Claims of a purely domestic nature do not require the elaborate 
pleading envisaged by the question in respect of points of European law; accordingly, 
such elaborate pleading requirements are inconsistent with the principle of 
equivalence. 
51. The board’s position is that “No”, the question is premised on a hypothetical scenario 
which does not arise on the facts of this case.  Domestic procedural rules governing 
pleading in judicial review did not operate to preclude the applicant from raising a point 
of European law or relying on the Aarhus Convention in this case.  Rather, the applicant 
did not properly plead the case which it now seeks to advance.  No obstacle or issue 
was  raised by the applicant in respect of a pleading point here.  In this case, there is 
no evidence that domestic procedural law governing pleadings rendered it any more 
difficult for the applicant to plead and/or rely on a European law argument. 
52. The State respondents’ position is that the question should be answered “No”.  The 
State proposed an elaborate answer which significantly exceeded the word count 
allowed, is too long to conveniently reproduce verbatim and defies easy 
summarisation, but essentially makes the following points.  Firstly that the issue is 
hypothetical.  Secondly that the applicant didn’t plead the case properly and that the 
principles of equivalence and effectiveness are not infringed.  The State goes on to say 
that it is a matter for the domestic court to determine the scope of the relief the 
applicant can seek within the pleadings.   
53. The amici curiae’s position is that the answer to this question is “Yes”.  An applicant 
has the right to rely on the rules of national law implementing EU environmental law 
as well as provisions of EU environmental law which are directly effective, it does not 
have to expressly plead a specific interpretation if it alleges at least an infringement of 
the relevant provisions of EU law. 
54. My proposed answer to the question is “Yes”.  EU law has a single indivisible meaning, 
so where an instrument of EU law is to be read in conjunction with another instrument, 
such as the Aarhus convention, such an interpretation must be implied and does not 
have to be expressly pleaded.  To permit national rules to cut across the single 
indivisible meaning of EU law would create a situation where a national court would be 
giving an EU law instrument something other than its true meaning.  As regards the 
State’s objection, I don’t accept that in the sense that the fact situation is such as to 
create a reasonable possibility of issues under the habitats directive arising, and it is 
the State’s own objection to the applicant’s pleadings that creates an interface between 
pleading rules and EU law.  As regards effectiveness and equivalence, I have framed 
the question in terms of supremacy rather than effectiveness and equivalence as such.  
As regards the State objection that this is a matter for the domestic court, here the 
State respondents have specifically objected to the applicant’s pleadings being 
interpreted in a way that allows reference to EU instruments to be read as a reference 
to those instruments as read in the light of the Aarhus convention.  Under those 
circumstances it seems to me to be appropriate to seek guidance as to whether this 
argument is in effect precluded by general principles arising from the supremacy of EU 
law.  If the CJEU were to decline to answer this question or the second question as 
urged by the State, that will in practice have the effect of legitimising and encouraging 
narrow and hyper-technical pleading objections of the type advanced by the State 
here, and thereby impairing the implementation of EU law.  
55. The reason for the reference of this question is that the State respondents have 
objected to the reliance by the applicant on the Aarhus Convention because the 
convention is not expressly referenced in the pleadings.  If the question is answered 
in a sense favourable to the applicant then the objection fails at the outset. 
The second question  
56. The second question is: 
  whether arts. 12 and/or 16 of directive 92/43/EEC and/or those provisions 
as read in conjunction with art. 9(2) of the Convention on Access to 
Information, Public Participation in Decision Making and Access to Justice in 
Environmental Matters done at Aarhus, Denmark, on 25 June 1998 and/or 
in conjunction with the principle that member states must take all the 
requisite specific measures for the effective implementation of the directive 
have the effect that a rule of domestic procedure whereby an applicant must 
not raise a “hypothetical question” and “must be affected in reality or as a 
matter of fact” before she can complain regarding the compatibility of the 
domestic law with a provision of EU law cannot be relied on to preclude a 
challenge made by an applicant who has invoked the public participation 
rights in respect of an administrative decision and who then wishes to 
pursue a challenge to the validity of a provision of domestic law by reference 
to EU law in anticipation of future damage to the environment as result of 
an alleged shortcoming in the domestic law, where there is a reasonable 
possibility of such future damage, in particular because the development 
has been authorised in an area which is a habitat for species subject to strict 
protection and/or because applying the precautionary approach there is a 
possibility that post-consent surveys may give rise to a need to apply for a 
derogation under art. 16 of the directive. 
57. The applicant’s position is that the question should be answered “Yes”.  Without 
prejudice to the applicant’s position that the question is not hypothetical, and that it is 
sufficiently affected, allowing domestic procedural rules to preclude an applicant, in 
the manner described, from raising a point of European law would be inconsistent with 
the principle of supremacy, the precautionary principle and the principle that 
preventive action should be taken (art. 191 TFEU) and  the judgment of the CJEU in 
Case C-183/05 Commission v. Ireland; such domestic procedural rules should be 
disapplied if they cannot be interpreted in a manner that gives full effect to the 
protections contained in the habitats directive.  It should not be necessary to allow any 
alleged breach to occur before the court could effectively intervene.  
58. The board’s position is that “No”, the question is premised on a hypothetical scenario 
which does not arise on the facts of this case.  The public participation provisions 
contained in art. 6 of the Aarhus Convention are not applicable to such a hypothetical 
scenario where decisions have not and may never be taken in respect of possible 
activities which may never arise.  Properly construed, neither the precautionary 
principle nor the principle that preventative action should be taken are of relevance in 
the context of the said hypothetical scenario upon which this question is premised.  No 
such rule of domestic procedure as described in the question was relied on in opposition 
to the applicant’s case.  Rather, the applicant, without any supporting evidence, 
asserted that the proposed development would give rise to a breach of art. 12 of the 
Habitats Directive.  In opposition to this assertion, the point was made that there was 
no evidence before the board to suggest that the grant of development consent for the 
proposed development would result in any breach of art. 12 of the Habitats Directive, 
and that no need for a derogation licence under reg. 54 of the 2011 regulations was 
identified at all.  No possible application could have been made for such a derogation 
licence because nothing specific had been identified that would involve a breach of art. 
12 of the Habitats Directive.  There was nothing in the development consent process 
that raised an art. 12 issue.   
59. The State respondents’ position is that the question should be answered “No”.   The 
public participation provisions contained in art. 6 of the Aarhus Convention apply to 
decisions on proposed permits or proposed activities and are only triggered when the 
relevant decision-making procedures are engaged.  They are not applicable in 
hypothetical circumstances where decisions have not and may never be taken in 
respect of possible activities which may never arise.  The court itself acknowledges 
that there is no more than a reasonable possibility that a derogation licence may be 
applied for.  It is submitted that this is not sufficient to engage the provisions of art. 6 
of the Convention in the manner suggested by the applicant or as the second question  
suggests.   Neither the precautionary principle nor the principle that preventative 
action should be taken, properly construed, are of relevance in the context of the 
hypothetical circumstances which comprise the factual matrix of the within 
proceedings.  The State goes on to object to the question as inadmissible and 
hypothetical.   
60. The amici curiae’s position is that the answer to this question is “Yes”.  It is noted that 
the referring court has found as a matter of fact that effects on strictly protected 
species from the project cannot be ruled out.  As a matter of EU law, the applicant in 
the main proceedings, must therefore be able to rely in legal proceedings on the rules 
of national law implementing EU environmental law and the rules of EU environmental 
law having direct effect. 
61. My proposed answer to the question is “Yes”.  It would severely undermine the 
attainment of the objectives of EU environmental law if an applicant had to wait for 
actual damage to the environment, or for such damage to occur as a matter of high 
probability.  It follows from the very nature of EU environmental law rules that recourse 
can be had to the domestic courts to seek effective remedies in relation to such rules 
where there is a reasonable possibility of such damage, even if it remains a matter of 
uncertainty.  As regards the State objection of inadmissibility, as with the first 
question, since the question arises from the State’s own pleading objection to the 
applicant’s case, it is appropriate to seek guidance as to whether that objection is 
precluded by EU law.  The question is a response to the State’s objections and in the 
circumstances that arise here is not hypothetical or otherwise inadmissible.   
62. The reason for the reference of this question is that the State respondents have 
objected to the reliance by the applicant on possible future harm to strictly protected 
species.  If the question is answered in a sense favourable to the applicant then the 
objection fails at the outset. 
The third question  
63. The third question is: 
  whether arts. 12 and/or 16 of directive 92/43/EEC and/or those provisions 
as read in conjunction with arts. 6(1) to (9) and/or 9(2) of the Convention 
on Access to Information, Public Participation in Decision-Making and 
Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 
June 1998 and/or with the principle that member states must take all the 
requisite specific measures for the effective implementation of the directive 
have the effect that a derogation licence system provided in domestic law to 
give effect to art. 16 of the directive should not be parallel to and 
independent of the development consent system but should be part of an 
integrated approval process involving a decision by a competent authority 
(as opposed to an ad hoc judgement formed by the developer itself on the 
basis of a general provision of criminal law) as to whether a derogation 
licence should be applied for by reason of matters identified following the 
grant of development consent and/or involving a decision by a competent 
authority as to what surveys are required in the context of consideration as 
to whether such a licence should be applied for.  
64. The applicant’s position is that the question should be answered “Yes”.  The approach 
to strict protection in Ireland is merely a collection of instruments that is the antithesis 
of a system of strict protection.  Indeed one of those instruments requires the 
establishment of a system of strict protection, which suggests that the system has not 
yet been established by the legislation in question.  Further, the directive is aimed at 
all organs of the Member States.  Leaving the decision on whether and how to apply 
for a derogation licence to the developer, after the grant of development consent, and 
on the basis of information selected by it and in respect of which the public have no 
right of participation is inconsistent with a system of strict protection and the 
requirements of Aarhus.  Articles 12 to 16 also seek to ensure a high level of 
environmental protection.  Some of the derogations are based on “public health and 
public safety, or for other imperative reasons of overriding public interest” – which 
underline the importance of public participation.  A necessary part of a system of strict 
protection is the adequacy of the surveys which are carried out for the annex IV 
species.  Integration into the planning process is of vital importance in ensuring the 
adequacy of such surveys, by subjecting them to public scrutiny and involving the 
competent authority in an assessment of their adequacy.  While the Minister decides 
whether a derogation licence should ultimately be granted, the Minister has no role in 
deciding whether a derogation should be sought in the first place.    
65. The board’s position is that “No”, there is no requirement under arts. 12 or 16 of the 
Habitats Directive, either express or implied, or whether by themselves or as read in 
conjunction with arts. 6(1) to (9) and/or 9(2) of the Aarhus Convention, which requires 
that the derogation system provided by art. 16 of the Habitats Directive be part of an 
integrated approval process conducted by a single competent authority.  While it is 
non-binding, it is of note that the recently published guidance from the European 
Commission, dated 12th October, 2021 titled Commission notice, Guidance document 
on the strict protection of animal species of Community interest under the Habitats 
Directive, does not support the assertion that an integrated approval process by a 
single competent authority is required (see section 3.3.2 of same).  Indeed, it clearly 
indicates the Commission’s position is that such an integrated system is not obligatory.  
It is clear, inter alia, from the CJEU’s judgment in Case C-183/05 Commission v. 
Ireland (ECLI:EU:C:2007:14) that a strict protection regime can include more than a 
“hard” legislative framework and can for instance include a national network of full-
time rangers and officers responsible for monitoring and protecting species.  Question 
3 appears to pre-suppose that regs. 51 to 54 of the 2011 regulations comprise the 
total extent of the ‘system’ of strict protection, which is not a proven case.  In that 
regard, the applicant adduced no evidence as to the practical effectiveness or 
otherwise of the operation of the ‘system’ of strict protection (including the derogation 
licensing under the 2011 regulations).  It is simply not open to the applicant at this 
stage to attempt to advance arguments as to the effectiveness of the system - which 
are not pleaded - by way of submission and unsubstantiated assertion on this reference 
to the CJEU.    
66. The State respondents’ position is that the question should be answered “No’.  There 
is no requirement under Articles 12 or 16 of the Habitats Directive, either express or 
implied, which requires that the derogation system provided by Article 16 of the 
Habitats Directive be part of an integrated approval process conducted by a single 
competent authority. Neither Article  12 or 16 of the Habitats Directive, properly 
construed, require such an integrated approval process or mandate that it be 
conducted by a single competent authority. Similarly, Arts. 6(1) to (9) and/or 9(2) of 
the Aarhus Convention, whether by themselves or read in conjunction with Articles 12 
or 16 of the Habitats Directive, do not require an integrated approval process or 
mandate that it be conducted by a single competent authority.   
67. The amici curiae’s position is that the question should be answered “Yes”.  A system 
that permits post-consent assessment and derogation is contrary to EU law.  An effect 
prohibited under Article 12 of the Habitats Directive is a significant effect on the 
environment by its very nature and must be assessed as part of the EIA procedure.  
The public concerned must be given the opportunity to make its views known at an 
early stage.  If the EIA procedure identifies that the project is incompatible with Article 
12 of the Habitats Directive then consent must be refused.  Therefore, the derogation 
decision must precede development consent.  However, the derogation decision cannot 
constitute the final determination on effects on strictly protected species which must 
be determined as part of the EIA procedure.  
68. My proposed answer to the question is “Yes”.  A system of strict protection in the 
proper sense of the directive is lacking because the initiative to seek derogation rests 
with the developer, subject only to a very general provision of criminal law.  In addition, 
the concept of a system of strict protection requires detailed co-ordination between 
decision-makers and detailed and consistent independent scrutiny of the level of 
survey of protected species to be undertaken, whether before or after the grant of 
consent.  The development consent decision-maker has a role in determining the 
adequacy of studies and surveys carried out prior to the grant of permission, for the 
purposes of EIA and AA, but no role in the scientific standard of surveys for post-
consent derogations.  Hence the system is lacking in integration.  The system is also 
lacking in transparency.   
69. As regards the State objection of lack of clarity, this confuses the issue here because 
the reference relates only to the question of how derogation should be granted after 
the grant of development consent.  Hence it is clearly irrelevant that no derogation 
licence is currently required as of the time of grant of the development consent.  I 
don’t accept that where the No. 1 judgment refers to some level of integration of the 
derogation system with the development consent system, that this is unacceptably 
unclear.  The concept is phrased as a question in general terms because it is the very 
question on which guidance from the CJEU is sought.  The board’s argument that this 
point was not pleaded is without merit and I am satisfied that the pleadings adequately 
cover this issue.   
70. The reason for the reference of this question is that the Irish derogation licence system 
is independent of the planning consent system and thus the process of surveys and 
scrutiny for the purposes of EIA and AA does not carry over into any post-consent 
developments.  If the question was answered Yes then the Irish system would need to 
be integrated so that the development consent decision-maker would have a role in 
scrutinising any subsequent derogation application or at least in determining what level 
of surveys and measures would have to be undertaken for such an application.  
The fourth question  
71. The fourth question is: 
  whether arts. 12 and/or 16 of directive 92/43/EEC and/or those provisions 
as read in conjunction with arts. 6(1) to (9) and/or 9(2) of the Convention 
on Access to Information, Public Participation in Decision-Making and 
Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 
June 1998 have the consequence that, in respect of a development where 
the grant of development consent was subjected to appropriate assessment 
under art. 6(3) of directive 92/43/EEC, and in a context where a post-
consent derogation may be sought under art. 16 of directive 92/43/EEC, 
there is a requirement for a public participation procedure in conformity 
with art. 6 of the Aarhus Convention.  
72. The applicant’s position is that the question should be answered “Yes”.  The reasons 
set out in relation to the third question also apply here.  
73. The board’s position is that “No”, there is no requirement under arts. 12 or 16 of the 
Habitats Directive, either express or implied, or whether by themselves or as read in 
conjunction with arts. 6(1) to (9) and/or 9(2) of the Aarhus Convention, which requires 
that, where a grant of development consent was subjected to appropriate assessment 
under art. 6(3) of the Habitats Directive, and in a context where a possible post-
consent derogation may be sought under art. 16 of the Habitats Directive, there be a 
consequential public participation procedure in conformity with Article 6 of the Aarhus 
Convention.  The question is premised on a hypothetical scenario which does not arise 
on the facts of this case and in respect of an application for a derogation licence under 
the 2011 regulations which may never materialise.  There is no basis in law nor any 
legal authority that supports the proposition that such a public participation system is 
required in respect of such a post-consent derogation.  Nothing in the text of arts. 12 
or 16 of the Habitats Directive provides for or could be construed as providing for such 
a requirement.  
74. The State respondents’ position is that the question should be answered ‘No’.  Subject 
to the following, the reasons set out in relation to the third questions also apply here.  
Neither arts. 12 and/or 16 of the Habitats Directive read in conjunction with arts. 6(1) 
to (9) and/or 9(2) of the Aarhus Convention require that, where the grant of 
development consent was subjected to appropriate assessment under art. 6(3) of the 
Habitats Directive and in a context where a possible post-consent derogation may be 
sought under art. 16, there be a consequential public participation procedure in 
accordance with art. 6 of the Aarhus Convention.  For reasons already set out in respect 
of the proposed answer to questions two and three above, the public participation 
procedures of art. 6 of the Aarhus Convention do not apply in hypothetical 
circumstances in respect of an application for a derogation licence which may never 
materialise.  The public participation requirements of art. 6 of the Aarhus Convention 
applicable in respect of the AA conducted under art. 6(3) of the Habitats Directive have 
been discharged by virtue of the AA conducted in accordance with the provisions of 
the Planning and Development Act 2000.   
75. The amici curiae’s position is that the question should be answered “Yes”.  A derogation 
decision is a decision which comes within Article 6(1)(b) of the Aarhus Convention 
since the effect of a derogation under Article 16 is to permit an activity having the 
effect otherwise prohibited by Article 12 which is a significant effect by its very nature.  
Therefore, a derogation decision is one which requires a public participation procedure 
under Article 6 of the Aarhus Convention and the right to access a review procedure 
under Article 9(2). 
76. My proposed answer to the question is “Yes”.  Reading the habitats directive in the 
light of the Aarhus convention leads to a clear conclusion that a public participation 
procedure is required.  This is lacking from the Irish system which involves the grant 
of a derogation licence, allowing death, injury or disturbance to strictly protected 
species, without any adequate form of public notice, participation or objection, or 
detailed scrutiny of reasons.  This fails to meet the minimum standard that would 
constitute a system of strict protection, and lacks minimum standards of transparency 
and objectivity and is generally contrary to the principles of good administration.  
77. Insofar as the State seeks to condemn the question as hypothetical, I do not accept 
that characterisation.  It would not be appropriate to have to await a breach or 
potential breach of EU environmental law before this issue could be addressed.  The 
applicant’s complaint is directed to the very lack of public participation regarding post-
consent derogation.  If derogation were to occur it would by definition not involve 
public participation within any legal framework or context that guarantees legal 
certainty.  Hence there is no effective alternative but to make this point in advance at 
the level of the deficiency in the system overall.  
78. The reason for the reference of this question is that if a public participation procedure 
is required then the Irish regulations are not in conformity with EU law insofar as they 
fail to provide such a procedure. 
Order 
79. Accordingly, the order will be as follows: 
(a). I will direct that the order on foot of the present judgment and the No. 1 judgment be 
perfected forthwith and that the applicant lodge hard copy books of all pleadings by 
making direct contact with the Principal Registrar within 28 days of the delivery of this 
judgment for transmission to the CJEU and I will adjourn the balance of the matter 
pending the decision of the CJEU. 
(b). I will refer the following questions to the CJEU pursuant to art. 267 TFEU: 
(i). The first question is: 
 whether the general principles of EU law arising from the supremacy 
of the EU legal order have the effect that a rule of domestic procedure 
whereby an applicant in judicial review must expressly plead the 
relevant legal provisions cannot preclude an applicant who challenges 
the compatibility of domestic law with identified EU law from also 
relying on a challenge based on legal doctrines or instruments that are 
to be read as inherently relevant to the interpretation of such EU law, 
such as the principle that EU environmental law should be read in 
conjunction with the Convention on Access to Information, Public 
Participation in Decision Making and Access to Justice in 
Environmental Matters done at Aarhus, Denmark, on 25 June 1998 as 
an integral part of the EU legal order. 
(ii). The second question is: 
 whether arts. 12 and/or 16 of directive 92/43/EEC and/or those 
provisions as read in conjunction with art. 9(2) of the Convention on 
Access to Information, Public Participation in Decision Making and 
Access to Justice in Environmental Matters done at Aarhus, Denmark, 
on 25 June 1998 and/or in conjunction with the principle that member 
states must take all the requisite specific measures for the effective 
implementation of the directive have the effect that a rule of domestic 
procedure whereby an applicant must not raise a “hypothetical 
question” and “must be affected in reality or as a matter of fact” before 
she can complain regarding the compatibility of the domestic law with 
a provision of EU law cannot be relied on to preclude a challenge made 
by an applicant who has invoked the public participation rights in 
respect of an administrative decision and who then wishes to pursue 
a challenge to the validity of a provision of domestic law by reference 
to EU law in anticipation of future damage to the environment as result 
of an alleged shortcoming in the domestic law, where there is a 
reasonable possibility of such future damage, in particular because the 
development has been authorised in an area which is a habitat for 
species subject to strict protection and/or because applying the 
precautionary approach there is a possibility that post-consent 
surveys may give rise to a need to apply for a derogation under art. 16 
of the directive. 
(iii). The third question is: 
 whether arts. 12 and/or 16 of directive 92/43/EEC and/or those 
provisions as read in conjunction with arts. 6(1) to (9) and/or 9(2) of 
the Convention on Access to Information, Public Participation in 
Decision-Making and Access to Justice in Environmental Matters done 
at Aarhus, Denmark, on 25 June 1998 and/or with the principle that 
member states must take all the requisite specific measures for the 
effective implementation of the directive have the effect that a 
derogation licence system provided in domestic law to give effect to 
art. 16 of the directive should not be parallel to and independent of the 
development consent system but should be part of an integrated 
approval process involving a decision by a competent authority (as 
opposed to an ad hoc judgement formed by the developer itself on the 
basis of a general provision of criminal law) as to whether a derogation 
licence should be applied for by reason of matters identified following 
the grant of development consent and/or involving a decision by a 
competent authority as to what surveys are required in the context of 
consideration as to whether such a licence should be applied for.  
(iv). The fourth question is: 
 whether arts. 12 and/or 16 of directive 92/43/EEC and/or those 
provisions as read in conjunction with arts. 6(1) to (9) and/or 9(2) of 
the Convention on Access to Information, Public Participation in 
Decision-Making and Access to Justice in Environmental Matters done 
at Aarhus, Denmark, on 25 June 1998 have the consequence that, in 
respect of a development where the grant of development consent was 
subjected to appropriate assessment under art. 6(3) of directive 
92/43/EEC, and in a context where a post-consent derogation may be 
sought under art. 16 of directive 92/43/EEC, there is a requirement 
for a public participation procedure in conformity with art. 6 of the 
Aarhus Convention. 
  
APPENDIX – RELEVANT LEGAL MATERIALS 
European law 
(i). Article 191 of the Treaty on the Functioning of the European Union (Part Three - Union 
Policies and Internal Actions, Title XX – Environment, Article 191 (ex Article 174 TEC), 
OJ C 115, 9.5.2008, p. 132–133). 
 https://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=OJ:C:2008:115:FULL&from=EN  
(ii). Directive 79/409/EEC of 2nd April, 1979 on the conservation of wild birds. 
 https://eur-lex.europa.eu/eli/dir/1979/409/oj  
(iii). Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of 
wild fauna and flora. 
 https://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=CELEX:31992L0043&from=EN  
(iv). Directive 2000/60/EC of the European Parliament and of the Council of 23rd October 
2000, establishing a framework for Community action in the field of water policy. 
 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32000L0060  
(v). Directive 2009/147/EC of the European Parliament and of the Council of 30th 
November 2009 on the conservation of wild birds. 
 https://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=CELEX:32009L0147&from=EN  
(vi). Directive 2011/92/EU of the European Parliament and of the Council of 13th December, 
2011 on the assessment of the effects of certain public and private projects on the 
environment (as amended by council directive 2014/52/EU). 
 https://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=CELEX:32011L0092&from=EN  
(vii). Directive 2014/52/EU of the European Parliament and of the Council of 16th April, 
2014 amending Directive 2011/92/EU on the assessment of the effects of certain public 
and private projects on the environment (OJ L 124, 25.4.2014, p. 1–18). 
 https://eur-lex.europa.eu/eli/dir/2014/52/oj  
European Caselaw 
(i). Case C-33/76 Rewe-Zentralfinanz eG v. Landwirtschaftskammer für das Saarland 
(European Court of Justice, 16th December, 1976, ECLI:EU:C:1976:188). 
 https://curia.europa.eu/juris/showPdf.jsf?text=&docid=89192&pageIndex=0&doclan
g=en&mode=req&dir=&occ=first&part=1&cid=40051902  
(ii). C-312/93 Peterbroeck, Van Campenhout & Cie v. Belgian State (Court of Justice of the 
European Union, 14th December, 1995, ECLI:EU:C:1995:437). 
 https://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=312/93&td=ALL  
(iii). Case C-415/93 Union royale belge des sociétés de football association ASBL v. Bosman 
(Court of Justice of the European Union, 15th December, 1995, ELCI:EU:C:1995:463, 
[1995] ECR I-04921. 
 https://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=CELEX:61993CJ0415&qid=1636631803633&from=EN  
(iv). Case C-103/00 Commission of the European Communities v. Hellenic Republic (Court 
of Justice of the European Union, 30th January, 2002, ECLI:EU:C:2002:60, [2002] 
ECR I 1147). 
 https://curia.europa.eu/juris/liste.jsf?language=en&num=c-103/00  
(v). Case C-318/00 Bacardi-Martini SAS v. Newcastle United Football Company Ltd. (Court 
of Justice of the European Union, 21st January, 2003, ECLI:EU:C:2003:41). 
 https://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=CELEX:62000CJ0318&from=en  
(vi). Case C-98/03 Commission of the European Communities v. Federal Republic of 
Germany (Court of Justice of the European Union, 10th January, 2006, 
ECLI:EU:C:2006:3). 
 https://curia.europa.eu/juris/showPdf.jsf?text=&docid=57288&pageIndex=0&doclan
g=EN&mode=lst&dir=&occ=first&part=1&cid=21601664  
(vii). Case C-6/04 Commission of the European Communities v. United Kingdom of Great 
Britain and Northern Ireland (Court of Justice of the European Union, 20th October, 
2005, ECLI:EU:C:2005:626). 
 https://curia.europa.eu/juris/document/document.jsf?text=&docid=60655&pageInde
x=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=21616103  
(viii). Case C-183/05 Commission of the European Communities v. Ireland (Opinion of 
Advocate General Bobek, 21st September, 2006, ECLI:EU:C:2006:597). 
 https://curia.europa.eu/juris/document/document.jsf?text=&docid=195752&pageInd
ex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=21611062  
(ix). Case C-183/05 Commission of the European Communities v. Ireland (Court of Justice 
of the European Union, 11th January, 2007, ECLI:EU:C:2007:14). 
 https://curia.europa.eu/juris/document/document.jsf?text=&docid=64738&pageInde
x=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=21613489  
(x). Case C-220/05 Auroux v. Commune de Roanne (Court of Justice of the European 
Union, 18th January, 2007, ECLI:EU:C:2007:31). 
 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62005CJ0220  
(xi). Case C-222/05 van der Weerd v. Minister van Landbouw, Natuur en Voedselkwaliteit 
(Court of Justice of the European Union, 7th June, 2007, ECLI:EU:C:2007:318). 
 https://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=CELEX:62005CJ0222&qid=1636632546963&from=EN  
(xii). C-342/05 Commission of the European Communities v. Republic of Finland (Court of 
Justice of the European Union, 14th June, 2007, ECLI:EU:C:2007:341). 
 https://curia.europa.eu/juris/liste.jsf?language=en&num=C-342/05  
(xiii). Case C-2/07 Abraham v. Région wallonne (Court of Justice of the European Union, 
28th February, 2008, ECLI:EU:C:2008:133). 
 https://curia.europa.eu/juris/document/document.jsf?text=&docid=69435&pageInde
x=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=21611062  
(xiv). Case C-240/09 Lesoochranárske zoskupenie VLK v. Ministerstvo životného prostredia 
Slovenskej republiky (Court of Justice of the European Union, 8th March, 2011, 
ECLI:EU:C:2011:125). 
 https://curia.europa.eu/juris/document/document.jsf?text=&docid=80235&pageInde
x=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=21623408  
(xv). Case C-420/11 Leth v. Republik Österreich, Land Niederösterreich (Court of Justice of 
the European Union, 14th March, 2013, ECLI:EU:C:2013:166). 
 https://curia.europa.eu/juris/liste.jsf?num=C-420/11&language=EN  
(xvi). Case C-137/14 European Commission v. Federal Republic of Germany (Court of Justice 
of the European Union, 15th October, 2015, ECLI:EU:C:2015:683). 
 https://curia.europa.eu/juris/liste.jsf?language=en&num=C-137/14  
(xvii). Case C-504/14 European Commission v. Hellenic Republic (Court of Justice of the 
European Union, 10th November, 2016, ECLI:EU:C:2016:847). 
 https://curia.europa.eu/juris/liste.jsf?language=en&num=C-504/14  
(xviii). Case C-243/15 Lesoochranárske zoskupenie VLK v. Obvodný úrad Trenčín (Court of 
Justice of the European Union, 8th November, 2016, ECLI:EU:C:2016:838). 
 https://curia.europa.eu/juris/document/document.jsf?text=&docid=185199&pageInd
ex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=40051902  
(xix). Case C-644/15 Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation v. 
Bezirkshauptmannschaft Gmünd (Court of Justice of the European Union, 20th 
December, 2017, ECLI:EU:C:2017:987). 
 https://curia.europa.eu/juris/liste.jsf?num=C-664/15  
(xx). Case C-112/16 Persidera SpA v. Autorità per le Garanzie nelle Comunicazioni (Court 
of Justice of the European Union, 26th July, 2017, ECLI:EU:C:2017:597). 
 https://curia.europa.eu/juris/liste.jsf?language=en&num=C-112/16  
(xxi). Case C-142/16 Commission v. Federal Republic of Germany (Court of Justice of the 
European Union, 26th April 2017, ECLI:EU:C:2017:301). 
 https://curia.europa.eu/juris/document/document.jsf?text=&docid=190143&pageInd
ex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=21623408  
(xxii). Case C-470/16 North East Pylon Pressure Campaign Limited v. An Bord Pleanála (Court 
of Justice of the European Union, 15th March, 2018, ECLI:EU:C:2018:185). 
 https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-470%2F16  
(xxiii). Case C-526/16 European Commission v. Republic of Poland (Court of Justice of the 
European Union, 31st May, 2018, ECLI:EU:C:2018:356). 
 https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A62016CJ0526&qid=1634837396872  
(xxiv). Case C-117/17 Comune di Castelbellino v. Regione Marche (Court of Justice of the 
European Union, 28th February, 2018, ECLI:EU:C:2018:129). 
 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62017CJ0117  
(xxv). Case C-441/17 European Commission v. Republic of Poland (Court of Justice of the 
European Union, 17th April, 2008, ECLI:EU:C:2018:255). 
 https://curia.europa.eu/juris/liste.jsf?num=C-441/17  
(xxvi). Case C-674/17 Luonnonsuojeluyhdistys Tapiola Pohjois-Savo – Kainuu ry v. Risto 
Mustonen (Court of Justice of the European Union, 10th October, 2019, 
ECLI:EU:C:2019:851). 
 https://curia.europa.eu/juris/liste.jsf?num=C-674/17  
(xxvii). Case C-535/18 IL v. Land Nordrhein-Westfalen (Court of Justice of the European Union, 
28th May, 2020, EU:C:2020:391). 
 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0535  
(xxviii). Case C-621/18 Wightman v. Secretary of State for Exiting the European Union (Court 
of Justice of the European Union, 10th December, 2018, ECLI:EU:C:2018:999). 
 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0621  
(xxix). Case C-826/18 LB v. College van burgemeester en wethouders van de gemeente Echt-
Susteren (Court of Justice of the European Union, 14th January, 2021, 
ECLI:EU:C:2021:7). 
 https://curia.europa.eu/juris/liste.jsf?num=C-826/18  
(xxx). Case C-254/19 Friends of the Irish Environment Limited v. An Bord Pleanála (Opinion 
of Advocate General Kokott, 30th April 2020, ECLI:EU:C:2020:320). 
 https://curia.europa.eu/juris/document/document.jsf?text=&docid=226000&pageInd
ex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=298959  
(xxxi). Case C-473/19 Föreningen Skydda Skogen v. Länsstyrelsen i Västra Götalands län 
(Court of Justice of the European Union, 4th March, 2021, ECLI:EU:C:2021:166). 
 https://curia.europa.eu/juris/document/document.jsf?text=&docid=238465&pageInd
ex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=21625577  
(xxxii). Case C-463/20 Namur-Est Environnement ASB v. Région wallonne (Opinion of 
Advocate General Kokott, 21st October, 2021, ECLI:EU:C:2021:868). 
 https://curia.europa.eu/juris/document/document.jsf?docid=247882&text=&doclang
=EN&part=1&occ=first&mode=LST&pageIndex=0&cid=40051902  
International law 
(i). The UN/ECE Convention on Access to Information, Public Participation in Decision-
Making and Access to Justice in Environmental Matters, signed in Aarhus (Denmark) 
on 25th June, 1998 (‘the Aarhus Convention’). 
 https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-
13&chapter=27  
Domestic legislation 
(i). The Planning and Development Act 2000, as amended. 
 https://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/pdf?annotations=true  
(ii). The European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 
477 of 2011). 
 http://www.irishstatutebook.ie/eli/2011/si/477/made/en/pdf  
(iii). The European Union (Birds and Natural Habitats) (Sea-fisheries) Regulations 2013 
(S.I. No. 290 of 2013). 
 https://www.irishstatutebook.ie/eli/2013/si/290/made/en/print  
(iv). The European Communities (Birds and Natural Habitats) (Amendment) Regulations 
2013 (S.I. No. 499 of 2013). 
 https://www.irishstatutebook.ie/eli/2013/si/499/made/en/print  
(v). The European Communities (Birds and Natural Habitats) (Amendment) Regulations 
2015 (S.I. No. 355 of 2015). 
 https://www.irishstatutebook.ie/eli/2015/si/355/made/en/print  
(vi). Order 84 of the Rules of the Superior Courts. 
 https://www.courts.ie/rules/judicial-review-and-orders-affecting-personal-liberty  
Domestic caselaw 
(i). Cahill v. Sutton [1980] I.R. 269. 
 https://app.justis.com/case/cahill-v-sutton/overview/c4Gto3Cdm2Wca  
(ii). O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. 
 https://app.justis.com/case/okeeffe-v-an-bord-pleanla/overview/c5aJm4CZnWWca  
(iii). I. v. Minister for Justice, Equality and Law Reform [2003] IESC 42, [2003] 3 I.R. 197. 
 https://www.courts.ie/acc/alfresco/e6990028-e990-4c62-a3a4-
366ed45b141d/2003_IESC_42_1.pdf/pdf#view=fitH  
(iv). Arklow Holidays Ltd. v. An Bord Pleanála [2006] IEHC 102, [2007] 4 I.R. 112. 
 https://www.courts.ie/acc/alfresco/3809d283-04bc-43b7-9eaa-
fa40bbcff05c/2006_IEHC_102_1.pdf/pdf#view=fitH  
(v). A.P v. D.P.P. [2011] IESC 2, [2011] 1 I.R. 729 
 https://app.justis.com/case/ap-v-dpp/report-irish-reports/c5Gtn0itn1Wca  
(vi). JC Savage Supermarket Ltd. v. An Bord Pleanala [2011] IEHC 488, [2011] 11 JIC 2205 
(Unreported, High Court, Charleton J., 22nd November, 2011). 
 https://www.courts.ie/acc/alfresco/a61c8626-c36f-4f0a-94ae-
8bcf8364689a/2011_IEHC_488_1.pdf/pdf#view=fitH  
(vii). Omega Leisure Ltd. v. Barry [2012] IEHC 23, [2012] 1 JIC 1205 (Unreported, High 
Court, Clarke J., 12th January, 2012). 
 https://www.courts.ie/acc/alfresco/c698cc22-8bc9-4dea-9c68-
12945edcab91/2012_IEHC_23_1.pdf/pdf#view=fitH  
(viii). The People (D.P.P.) v. Rattigan [2013] IECCA 3, [2013] 2 I.R. 221 at 245. 
 https://app.justis.com/case/dpp-v-rattigan/overview/aXadn1GJm0edl  
(ix). Schrems v. Data Protection Commissioner (No. 2) [2014] IEHC 351, [2014] 2 ILRM 
506. 
 https://www.courts.ie/acc/alfresco/7f06c782-28e8-4ae1-abc2-
5af136c74dda/2014_IEHC_351_1.pdf/pdf#view=fitH  
(x). JTI Ireland Limited v. Minister for Health [2015] IEHC 481, [2015] 7 JIC 0708 
(Unreported, High Court, Cregan J., 7th July, 2015). 
 https://www.courts.ie/acc/alfresco/07acd200-3ab9-4501-8ce3-
d8ba09389f8a/2015_IEHC_481_1.pdf/pdf#view=fitH  
(xi). Ross v. An Bord Pleanála (No. 2) [2015] IEHC 484, [2015] 7 JIC 2107 (Unreported, 
High Court, Noonan J., 21st July, 2015). 
 https://www.courts.ie/acc/alfresco/4e2534a0-d34b-4e4f-9945-
480c0fe59aea/2015_IEHC_484_1.pdf/pdf#view=fitH  
(xii). Data Protection Commissioner v. Facebook Ireland Limited [2016] IEHC 414, [2016] 7 
JIC 1906 (Unreported, High Court, McGovern J., 19th July, 2016). 
 https://www.courts.ie/acc/alfresco/04331413-7978-495e-9aee-
002c8fab6f55/2016_IEHC_414_1.pdf/pdf#view=fitH  
(xiii). S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, [2016] 11 JIC 1404 
(Unreported, High Court, 14th November, 2016). 
 https://www.courts.ie/acc/alfresco/9061ac50-4450-4cc3-9efd-
fe4aa463b834/2016_IEHC_646_1.pdf/pdf#view=fitH  
(xiv). Conway v. Ireland [2017] IESC 13, [2017] 1 I.R. 53. 
 https://www.courts.ie/acc/alfresco/027345d1-98b6-4bcf-ac25-
c0c84cdfb196/2017_IESC_13_1.pdf/pdf#view=fitH  
(xv). Callaghan v. An Bord Pleanála (No. 1) [2017] IESC 60, [2017] 7 JIC 2706 (Unreported, 
Supreme Court, Clarke J. (MacMenamin and Dunne JJ. concurring), 27th July, 2017). 
 https://www.courts.ie/acc/alfresco/cefd1393-683a-423a-917c-
2ef74e9fbdf6/2017_IESC_60_1.pdf/pdf#view=fitH  
(xvi). Alen-Buckley v. An Bord Pleanála [2017] IEHC 311, [2017] 5 JIC 1211 (Unreported, 
High Court, Costello J., 12th May, 2017). 
 https://www.courts.ie/acc/alfresco/98cebcad-771d-449e-a176-
d9a19f69164c/2017_IEHC_311_1.pdf/pdf#view=fitH  
(xvii). Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 453. 
 https://www.courts.ie/acc/alfresco/b5fc7d8a-a799-4446-95e3-
37a2a7f5bdd8/2018_IESC_31_1.pdf/pdf#view=fitH  
(xviii). Sanofi Aventis Ireland Ltd. v. Health Service Executive [2018] IEHC 566, [2018] 10 
JIC 1203 (Unreported, High Court, McDonald J., 12th October, 2018). 
 https://www.courts.ie/acc/alfresco/043cf1a5-9bf7-4697-9bb2-
e6f300b12de6/2018_IEHC_566_1.pdf/pdf#view=fitH  
(xix). North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála (No. 5) [2018] IEHC 622, 
[2018] 10 JIC 3009 (Unreported, High Court, 12th November, 2018). 
 https://www.courts.ie/acc/alfresco/36a7fc77-e595-4de1-9c5d-
d0685775f977/2018_IEHC_622_1.pdf/pdf#view=fitH  
(xx). Mohan v. Ireland [2019] IESC 18, [2019] 2 I.L.R.M. 1. 
 https://www.courts.ie/acc/alfresco/e99bc5f8-b582-42bf-94a3-
e8a1cb0f1dcc/2019_IESC_18_1.pdf/pdf#view=fitH  
(xxi). Friends of the Irish Environment Ltd. v. An Bord Pleanála [2019] IEHC 80, [2019] 2 
JIC 1501 (Unreported, High Court, Simons J., 15th February, 2019). 
 https://www.courts.ie/acc/alfresco/ba3b595c-7f21-4a9b-a48a-
31c03021cca5/2019_IEHC_80_1.pdf/pdf#view=fitH  
(xxii). Balz v. An Bord Pleanála [2019] IESC 90, [2020] 1 I.L.R.M. 637. 
 https://www.courts.ie/acc/alfresco/f0d807dc-b302-47c1-b2f6-
8a93e73c4c1b/2019_IESC_90_1.pdf/pdf#view=fitH  
(xxiii). Heather Hill Management Company CLG v. An Bord Pleanala [2019] IEHC 186, [2019] 
3 JIC 2901 (Unreported, High Court, Simons J., 29th March, 2019). 
 https://www.courts.ie/view/judgments/aba5000e-b621-4346-b0eb-
45709ea2c223/472c9192-8b2e-430f-b709-
885177705318/2019_IEHC_186_1.pdf/pdf  
(xxiv). Heather Hill Management Company CLG v. An Bord Pleanála [2019] IEHC 820, [2019] 
12 JIC 0502 (Unreported, High Court, Simons J., 5th December, 2019). 
 https://www.courts.ie/acc/alfresco/3677690f-f768-46c0-ba71-
c59e9487a739/2019_IEHC_820_1.pdf/pdf#view=fitH  
(xxv). Sweetman v. An Bord Pleanála [2020] IEHC 39, [2020] 1 JIC 3104 (Unreported, High 
Court, McDonald J., 31st January, 2020). 
 https://www.courts.ie/acc/alfresco/53a163a0-ce58-4435-bfed-
2561e3ea9b86/2020_IEHC_39.pdf/pdf#view=fitH  
(xxvi). Friends of the Irish Environment CLG v. Ireland [2020] IESC 49, [2020] 2 I.L.R.M. 
233. 
 https://www.courts.ie/acc/alfresco/681b8633-3f57-41b5-9362-
8cbc8e7d9215/2020_IESC_49.pdf/pdf#view=fitH  
(xxvii). Rushe v. An Bord Pleanála [2020] IEHC 122, [2020] 3 JIC 0502 (Unreported, High 
Court, Barniville J., 5th March, 2020). 
 https://www.courts.ie/acc/alfresco/e661addc-fb3b-473c-8fc6-
c58690bcabc4/2020_IEHC_122.pdf/pdf#view=fitH  
(xxviii). Redmond v. An Bord Pleanála [2020] IEHC 151, [2020] 3 JIC 1003 (Unreported, High 
Court, Simons J., 10th March, 2020). 
 https://www.courts.ie/acc/alfresco/f3e3af70-c3c7-45fc-b757-
01a5e785e6af/2020_IEHC_151.pdf/pdf#view=fitH  
(xxix). Halpin v. An Bord Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 (Unreported, High 
Court, Simons J., 15th May, 2020). 
 https://www.courts.ie/acc/alfresco/63b13fae-8d1f-4346-bddb-
121028c515ec/2020_IEHC_218.pdf/pdf#view=fitH  
(xxx). M.R. (Albania) v. Minister for Justice and Equality [2020] IEHC 402, [2020] 8 JIC 1702 
(Unreported, High Court, 17th August, 2020). 
 https://www.courts.ie/acc/alfresco/86b12dda-b456-4286-9250-
af5b5dfadb9f/2020_IEHC_402.pdf/pdf#view=fitH  
(xxxi). Rushe v. An Bord Pleanála [2020] IEHC 429, [2020] 8 JIC 3101 (Unreported, High 
Court, Barniville J., 31st August, 2020). 
 https://www.courts.ie/acc/alfresco/dd32fd16-7dff-4740-a3ee-
368eeac12ddc/2020_IEHC_429.pdf/pdf#view=fitH  
(xxxii). Balscadden Road SAA Residents Association Ltd. v. An Bord Pleanála [2020] IEHC 586, 
[2020] 11 JIC 2501 (Unreported, High Court, 25th November, 2020). 
 https://www.courts.ie/acc/alfresco/5cd3ccef-f0e8-4066-9b5e-
7cbdbc535146/2020_IEHC_586.pdf/pdf#view=fitH  
(xxxiii). Highlands Residents Association v. An Bord Pleanála [2020] IEHC 622, [2020] 12 JIC 
0201 (Unreported, High Court, McDonald J., 2nd December, 2020). 
 https://www.courts.ie/acc/alfresco/0f76ebe9-2d4c-4134-97cc-
4f1a78281f9c/2020_IEHC_622.pdf/pdf#view=fitH  
(xxxiv). Casey v. Minister for Housing, Planning and Local Government [2021] IESC 42, [2021] 
7 JIC 1606 (Unreported, Supreme Court, Baker J. (Clarke C.J., O’Donnell, 
MacMenamin, and Dunne JJ. concurring), 16th July, 2021). 
 https://www.courts.ie/acc/alfresco/97a66644-850d-4947-8fec-
5ccd51059841/2021_IESC_42.pdf/pdf#view=fitH  
(xxxv). Balscadden Road SAA Residents Association Ltd. v. An Bord Pleanála (No. 2) [2021] 
IEHC 143 (Unreported, High Court, 12th March, 2021). 
 https://www.courts.ie/acc/alfresco/f097937d-a913-466c-9fde-
57ff65ef0c74/2021_IEHC_143.pdf/pdf#view=fitH  
(xxxvi). Dublin Cycling Campaign CLG v. An Bord Pleanála [2021] IEHC 146, [2021] 2 JIC 2508 
(Unreported, High Court, McDonald J., 25th February, 2021). 
 https://www.courts.ie/acc/alfresco/59e6264e-3eab-468c-93ed-
e640da44d152/2021_IEHC_146.pdf/pdf#view=fitH  
(xxxvii).  Eco Advocacy CLG v. An Bord Pleanála (No. 1) [2021] IEHC 265, [2021] 5 JIC 2704 
(Unreported, High Court, 27th May, 2021). 
 https://www.courts.ie/acc/alfresco/54138cf5-791e-4ed0-ad84-
315eb9ec8caf/2021_IEHC_265.pdf/pdf#view=fitH  
(xxxviii).  Waltham Abbey Residents Association v. An Bord Pleanála (No. 1) [2021] IEHC 312, 
[2021] 5 JIC 1002 (Unreported, High Court, 10th May, 2021). 
 https://www.courts.ie/acc/alfresco/c17ca06c-8ba1-4557-ae6d-
62f303cf62ac/2021_IEHC_312.pdf/pdf#view=fitH  
(xxxix). Reid v. An Bord Pleanála (No. 2) [2021] IEHC 362, [2021] 5 JIC 2705  (Unreported, 
High Court, 27th May, 2021). 
 https://www.courts.ie/acc/alfresco/b2e21ef5-935e-42f5-9d17-
cf42d2d5c81a/2021_IEHC_362.pdf/pdf#view=fitH  
(xl). Hellfire Massy Residents Association v. An Bord Pleanála (No. 1) [2021] IEHC 424, 
[2021] 7 JIC 0201 (Unreported, High Court, 2nd July, 2021). 
 https://www.courts.ie/acc/alfresco/9dace5d5-02ca-484a-a6f9-
e147c9d15f16/2021_IEHC_424.pdf/pdf#view=fitH 
(xli). In Re Lennon [2021] IEHC 594, [2021] 9 JIC 3003 (Unreported, High Court, 30th 
September, 2021). 
 https://www.courts.ie/acc/alfresco/9c3f2345-1b43-4b3f-99ba-
4f34b7aa03be/2021_IEHC_594.pdf/pdf#view=fitH  
(xlii). Hellfire Massy Residents Association v. An Bord Pleanála (No. 2) [2021] IEHC 636, 
[2021] 10 JIC 1302 (Unreported, High Court, 13th October, 2021). 
 https://www.courts.ie/acc/alfresco/f94e2d97-a1bd-443a-8ff3-
552359e3f3e5/[2021]_IEHC_636.pdf/pdf#view=fitH  
(xliii). Hellfire Massy Residents Association v. An Bord Pleanála (No. 3) [2021] IEHC 771 
(Unreported, High Court, 14th December, 2021). 
 https://www.courts.ie/acc/alfresco/2942a060-c59d-40e2-b204-
6d240c41338e/2021_IEHC_771.pdf/pdf#view=fitH