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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> 100 Meter Tall Group & Ors v An Bord Pleanala (Approved) [2025] IEHC 196 (04 April 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC196.html Cite as: [2025] IEHC 196 |
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[2025] IEHC 196
THE HIGH COURT
PLANNING & ENVIRONMENT
BETWEEN
[H.JR.2023.0001391]
IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)
BETWEEN
100 METER TALL GROUP AND PATRICK KEOGH AND PATRICK GOREY AND JOHN CURRAN
APPLICANTS
AND
AN BORD PLEANÁLA
RESPONDENT
AND
SEAMUS MADDEN
NOTICE PARTY
(No. 2)
JUDGMENT of Humphreys J. delivered on Friday the 4th day of April 2025
1. The developer here had permission for a single wind turbine, but built it slightly out of position (36 m from the permitted location). The applicants seized on the consequential modest retention application in order to mount an unsuccessful full-scale challenge to the project based on 76 sub-grounds, 9 core grounds, 9 factual grounds and 1 jurisdictional ground (95 grounds overall). That mammoth exercise has now dissolved into a single issue, the meaning of s. 34(12)(b) of the Planning and Development Act 2000 (the 2000 Act). The applicants have skilfully put some thought into presenting the proposed appeal because the meaning of legislation looks like a promising point for appeal from a distance - until you discover that the interpretation the applicants are arguing for will give rise to absurd results and to a disconnect between Irish and EU law. The question here is whether such a notion is a suitable basis for an 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).
3. 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.
4. The applicants' proposed questions are all metastases of a single postulation as to the meaning of s. 34(12)(b). The sub-points are as follows:
(i) was a decision under the preliminary examination process as to whether an environmental impact assessment was required a "determination" within the meaning of s. 34(12)(b) at the date of the impugned decision;
(ii) did a "determination" within the meaning of s. 34(12)(b) from 5th October 2010 to 15th December 2023 only mean a "screening determination";
(iii) are preliminary examination determinations and screening determinations different concepts within the meaning of s. 34(12)(b) and/or art. 4 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);
(iv) in applying an "updated construction approach" in accordance with s. 10 of the Interpretation Act 2005, does "determination" within the meaning of s. 34(12)(b) mean a "screening determination" only; and
(v) was the planning authority and board on appeal precluded by s. 34(12)(b) from granting retention permission where a determination under the preliminary examination process was required at the time of the impugned decision?
5. All five of the questions refer to s. 34(12)(b) of the 2000 Act.
6. That is a slender fragment of the case as pleaded and argued. There are only a handful of references to s. 34(12) in the statement of grounds and no reference whatever to sub-s. (12)(b) specifically - not a single solitary identification of the paragraph which is now the cornerstone of the whole case. The references to the sub-section overall are:
(i) Core ground 5 - "The impugned decision was made ultra vires, in error of law and is invalid as it was made in breach of section 34(12) of the Planning and Development Act 2000 (as amended) and/or Article 4 and/or Annex II, Annex IIA and/or Annex III of the EIA Directive. In particular, Clare County Council did not have jurisdiction to determine and to grant the application to retain the unauthorised development because the Notice Party was required to make an application for substitute consent directly to the Respondent in respect of the unauthorised development in accordance with Part XA of the Planning and Development Act 2000 (as amended)". The problem there is that the applicants failed to show that there was any requirement to apply for substitute consent. This may be clearer when we look at the only currently relevant sub-ground below.
(ii) Sub-ground 26: "Moreover, Clare County Council and the Board failed to address public observations and/or failed to give adequate reasons for not accepting submissions that (i) Clare County Council did not have jurisdiction to hear the retention application pursuant to section 34(12) of the Planning and Development Act (as Amended) 2000; (ii) a detailed Radar Impact Assessment was required". That issue of lack of reasons isn't being pursued in the questions now raised.
(iii) Sub-ground 31 merely recites the statutory text.
(iv) The complaint underlying core ground 5 is set out in sub-ground 32: "Clare County Council did not have jurisdiction to hear the retention application pursuant to section 34(12) of the Planning and Development Act (as Amended) 2000 because the application to retain authorised development required:
(a) a determination as to whether an environmental impact was required in accordance with Part X of the Planning and Development Act 2000 (as amended) and/or Article 4 and/or Annex II and/or Annex IIA and/or Annex III of the EIA Directive; and
(b) an appropriate assessment was required in accordance with Article 6(3) of the Habitats Directive (Council Directive 92/43/EC) and Part XAB of the Planning and Development Act 2000 (as amended)".
The problem with that is that, as drafted, it is just a merits-based disagreement - the applicants' assertion that the development required a screening determination isn't a valid legal ground. Rather an applicant has to plead a clear and reasoned basis as to why the decision-taker's view to the contrary was unlawful, giving a route map from error of law or fact to the relief sought - these applicants haven't done that. Also it can be noted that the actual point as pleaded is inconsistent with the case now made. The pleaded point is that the retention application could not be entertained "because the application ... required ... a determination as to whether environmental impact [some word missing here] was required". The case now made is that the application could not be entertained because there was a decision at preliminary examination stage to the effect that such a determination was not required. The point now made is a different case from the one on the pleadings.
7. That paltry set of references is all the applicants have got in terms of the pleaded case referring to s. 34(12).
8. It is not possible to conclude that the applicants' point such as it is in relation to s. 34(12)(b) was pleaded to an extent commensurate with the points of law now said to be central to the case. On balance it is thus not possible to say that this point properly arises on the pleadings to the extent or in the manner alleged in the proposed questions for appeal.
9. If I am wrong about that I will go on to consider the other issues.
10. I will certainly give the applicants that much - the points are phrased as legal issues.
11. There are multiple insuperable problems under this heading. On the applicants' own case, as reflected in the wording of the questions, this issue relates to a closed, historical category of situations prior to legislative clarification in 2023.
12. This, in other words, is an issue that no longer arises. While the applicants say in effect that it may have affected all cases between 15th October 2010 (commencement of the previous version of s. 34(10)) and 15th December 2023 (commencement of the 2022 amendments), that conveniently overlooks the fact that proceedings to challenge a decision must be brought within eight weeks of the date of the decision. Hence any number of past decisions may have been challengeable on any number of grounds, but in the absence of proceedings, they become generally unchallengeable eight weeks after they are made.
13. Out of hundreds of live cases in the List, I am not aware of any other case in which this issue was litigated within time or indeed at all and nor did any of the parties point to any such case. The applicants said there could be "thousands" of such cases somewhere in the system, but the applicants certainly haven't produced evidence of even one such case.
14. What the proposed appeal amounts to therefore is to reach back into a closed historical category, pluck out this one case on its own, and assert that an error of law was committed, being an error that no longer arises and that doesn't affect any other case that the applicants can point to that was instituted within time or at all.
15. A point that grounds such an exercise is not a point of public importance. Nor in particular is it likely to help resolve other cases as there appear to be no other such cases, and new cases almost certainly can't arise due to the eight-week limit for proceedings.
16. The ultimate and overarching reason why the complex smokescreen of law skilfully constructed by the applicants is not a basis for leave to appeal is that the whole effect of that smokescreen is to obscure the fundamentally implausible basis of the applicants' case. The applicants' proposition is that where a development is subjected to a preliminary examination as to environmental impacts, and the impacts are so lacking in substance as to not require environmental impact assessment (EIA) screening let alone actual assessment, then the very fact of the preliminary examination is a complete and total legal bar to the grant of retention permission.
17. The word "absurdity" is thrown around a lot but if anything qualifies, that argument does. An alternative interpretation of the legislation is available and was applied in the substantive judgment. It is not a matter of public importance that legislation should be given an absurd interpretation which defeats obvious statutory purposes and gives rise to a divergence in terminology and meaning as between national and EU law (see para. 129 of the No. 1 judgment).
18. The applicants' throwaway complaint that they "never had any opportunity to address the Court on Section 10 of the 2005 Act" (para. 13) is the standard appellant's move of trying to create a process issue when all else fails. The court is required to autonomously consider general interpretative rules such as the Interpretation Act 2005 and the European Convention on Human Rights Act 2003 when interpreting legislation - if parties don't bring the relevant binding and applicable rules to the court's attention so be it but the court can't give legislation the wrong meaning as a result. The court can't give a statute an incorrect interpretation merely because the parties don't argue for the correct construction - see per Alito J. (diss.) in Johnson v. United States 576 U.S. 591 (2015). Anyway, acknowledging general interpretative principles is small potatoes compared to the deluge of national and comparative material relied on in a judgment but not mentioned at the hearing which the Supreme Court found acceptable in O'Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421. One needn't go much further than O'Donnell C.J.'s comments (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring) referring to the conclusions in the dissenting judgment:
"94. In support of those conclusions, Hogan J. marshals an impressive combination of historical information from the early years of the State, quotations from a large range of Irish authorities, and has regard to the decisions in other jurisdictions such as Roman Catholic Diocese of Brooklyn v. Cuomo 592 US - (2020), Leigh v. Commissioner of Metropolitan Police [2020] EWHC 527 Admin ('Leigh'), a decision of the French Conseil d'État of 6 July, 2020 Confédération Générale du Travail et autres, and the decision of the German Constitutional Court of 16 April, 2020, De: BV ferG: 2020 VK 2020415.1BVV082820. The judgment also contains some illuminating quotations from Irish and international authorities such as the judgment of Mr. Justice Jackson in Railway Express v. New York (1949) 336 US 106. The judgment also shows an impressive understanding of the public health position in respect of Covid-19 over the course of the pandemic in various countries, and of significant events in this jurisdiction.
95. It bears observation that, almost without exception, these materials, instances and references were not mentioned in the judgments appealed against, the submissions, written or oral, for this Court, and so far as I can see, in the extensive submissions made to the High Court and the Court of Appeal, or indeed, anywhere else in this case. I do not suggest that this, and in particular such reference to legal material, is in itself by any means a fatal objection. Judges are appointed after extensive practice and build up considerable experience in their role. It is, I think, to be expected that they will bring to any case the legal knowledge which they have amassed. Our jurisprudence would be poorer, and our decisions less firmly based, if judges were expected to approach each case as if they knew nothing of the law. This case is undoubtedly enhanced by the wealth of knowledge brought to bear on these matters in Hogan J.'s judgment. In particular, his wide-ranging and nuanced consideration of the development of knowledge of the transmission of Covid-19 as the pandemic developed and his consideration of the constitutional interests involved perhaps highlights the fact that it appears that measures were adopted on the advice of NPHET, which itself, while containing considerable technical expertise, does not appear to contain any person with expertise in constitutional rights or indeed human rights more broadly, and it is not apparent that the process of converting that advice into guidelines and sometimes binding regulations involved any separate assessment of these matters."
19. So a case can be "undoubtedly enhanced" if a judge brings to bear not just legal but even factual knowledge which was "not mentioned ... anywhere else in th[e] case". Unfortunately for the applicants, that isn't compatible with the idea that a court can't mention something in a judgment, even in passing, if it wasn't mentioned at the hearing. Obviously if the something is so central that it changes the result from what it otherwise would have been, best practice is normally to mention it, but this wasn't pivotal - it was merely further support for a point being made anyway. If I had considered it to be "crucial", as the applicants now allege, I would have asked the parties about it but I didn't see it as crucial. The judgment would be exactly the same without that single reference and nothing particularly turns on it.
20. Fundamentally therefore, my glancing side-reference to the Interpretation Act 2005 (a grand total of one mention in 258 paragraphs - what the notice party calls an "en passant" reference) was merely reinforcing an obvious point which I arrived at independently, namely that any legislation has to be generally construed in the present tense. The notice party points out that this is "well-recognised" in the planning context. The applicants haven't shown a plausible - or any - basis for contending that that general principle is wrong and haven't even attempted to do that. Instead they have made process complaints that aren't leading anywhere in particular, and further arguments they could have made the first time around. I'm happy to consider those arguments but they don't get the applicants anywhere as they relate to different interpretative situations from the present one. The present issue is about giving the legislation a workable, non-absurd interpretation, using terms in a sense compatible with EU law rather than in divergence from such law. That shouldn't be controversial - no meaningful doubt exists about the desirability of such an interpretative approach.
21. The applicants' misplaced focus on s. 10 of the 2005 Act calls to mind O'Donnell J.'s comment referred to above in Rooney v. Minister for Agriculture and Food [2016] IESC 1 (Unreported, Supreme Court, 28th January 2016) at para. 3: "Some litigants ... 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."
22. In any event, the alleged argument that the meaning of s. 34(12) is being retrospectively changed is misconceived. When the provision was enacted, it only precluded retention if there was a screening decision. That meaning remained following the introduction of preliminary examination - the preclusion only applied once a screening decision was made - which didn't happen here. So this argument that s. 10 of the 2005 Act is somehow being used to completely re-programme the meaning of s. 34 of the 2000 Act is simply unreal and inaccurate.
23. This doesn't arise having regard to the foregoing.
24. The whole elaborate application needs a reality check. The notice party got a planning permission for the turbine, and built it. Unfortunately the construction location differed modestly from the permission location, and commendably the notice party sought to regularise the position via a retention application. The applicants, opportunistically, seized on this procedure to launch a full-frontal attack on all aspects of the decision, as if it were a completely fresh application - everything from wind guidelines to radar assessments to the EIA directive and council directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the habitats directive).
25. Having seen these points rejected in the principal judgment, the applicants now focus the entirety of their energies on a very narrow front - s. 34(12)(b) of the 2000 Act.
26. This is a pure technicality. It is an alleged jurisdictional block to the grant of retention permission - but not a block that is required by EU law. It is conjured into existence by the applicants' strained reading of domestic legislation alone.
27. Two obvious and immediate points are:
(i) there is no public interest in the creation of tension between domestic and European legislation by reference to interpreting common terms in different senses; and
(ii) there is no public interest in facilitating unworkable and inconvenient interpretations that defeat the statutory intention that there be a retention procedure.
28. In the principal judgment I didn't need to get into the situation as to what would happen if I was wrong, because the applicants' point under this heading seemed so far-fetched. But to consider that now, under the public interest heading, the case to exercise discretion against relief if I am wrong about everything else is overwhelming. The critical points are:
(i) the minor nature of the factual issue - a modest deviation in the location of a turbine that has been already permitted;
(ii) the closed historical nature of the category of cases we are talking about;
(iii) the fact that the existence of any other live challenges on this basis had not been demonstrated, so what this exercise almost certainly involves is singling out this development alone;
(iv) the purely technical nature of the alleged obstacle to the grant of permission;
(v) the fact that the alleged obstacle arises only from the wording of domestic law, and is not required by EU law;
(vi) the consequent fact that the court's discretion, while by no means at large, is wider than it would be where EU obligations are at stake;
(vii) the fact that the alleged obstacle has been removed already by domestic legislation;
(viii) the fact that since the amending legislation is procedural (assessment being procedural), it presumptively applies to matters in being rather than purely prospectively; and
(ix) thus the fact that this issue wouldn't arise on remittal of the application for reconsideration (assuming remittal to be possible) - hence we would be engaging in the empty formula of quashing a decision because of alleged breach of a requirement and then remitting it to a process where the requirement doesn't apply; surely the legal system has better things to be doing than engaging in such "pointless formalism" (to use a phrase of Alito J. again, (diss.), slip op. p. 9 in Mathis v. United States 579 US __ (2016)).
29. On any vector of analysis - the fact that the basic pre- and post-amendment meaning is the same, the fact that the applicants' interpretation gives rise to absurdity, the need to avoid divergence between Irish and EU law, the unworkable outcomes of the applicants' artificial reading, the modest nature of the original non-compliance to which the retention application relates, the modest nature of the development to begin with, the closed historical category affected, the fact that the category is likely to have only a single occupant in the form of this case, the argument for the exercise of discretion against certiorari on such a technical basis, and the fact that quashing the permission due to a technical obstacle and then remitting it to a process in which the technical obstacle would not apply would be an empty exercise, this is not a serious point. Alleged novelty in itself doesn't rectify that "forest of problems".
30. An alleged "infirmity" that lacks merit to that extent is an infirmity that there is no particular public interest in establishing at appellate level.
31. 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 costs of the leave to appeal application; and
(iv) the foregoing order and the order already pronounced (provisionally in part) in the substantive judgment dismissing the proceedings with no order as to costs up to the date of the judgment be perfected forthwith with no further listing as the final order of the High Court in the proceedings.