1. In this application for judicial review, Michael and Maureen Larkin ("the applicants") seek to quash the notification of the decision of Roscommon County Council [1] dated 21^st February 2023 ("the decision") to grant retention permission and planning permission for the following development: (1) retain milking parlour shed; (2) retain roofed dungstead (3) retain and complete slatted shed with feeding passage and cow cubicle accommodation and associated site works; (4) permission to roof existing cow collection yard at the farm premises located at Rathleg, Castlerea, County Roscommon, which is owned and operated by the notice party (Mr. John Heneghan).

2. The application was received by the County Council on 19^th December 2022 and submissions and observations were made by Ms. Maureen Larkin, Mr. Alan Larkin and Mr. Michael Larkin on 30^th January 2023.

3. The subsequent notification of decision was dated 21^st February 2023.

4. Whilst these matters are addressed in more detail later in this judgment, in summary, this challenge against the decision of the County Council arises in circumstances where the applicants initially sought to appeal the notification of the decision to grant retention permission/planning permission to An Bord Pleanála ("the Board") but that appeal was deemed invalid arising from an error in the fee which accompanied the appeal. The context for the appeal arose from the use of the notice party's farming enterprise in proximity to where the applicants live as a retired couple.

5. In terms of substantive issues, again by way of synopsis, this application for judicial review is buttressed or book-ended by what is claimed by each of the central protagonists to be errors which have certain legal consequences: on behalf of the applicants, for example, it is claimed that the initial 'site notice' for the proposed development was not erected until 5^th January 2023 even though the actual site notice stated that it was erected on 18^th December 2022. The applicants submit that this alleged failure to comply with Article 17(1)(b) of the Planning and Development Regulations 2001, as amended ("the 2001 Regulations") renders the entire application and subsequent decision of the County Council to be invalid; the County Council argues first that its decision was correct (notwithstanding minor errors in the conditions attached to the permission consisting of a typographical error and the reference to a Regulation which had been revoked and replaced). It argues that the applicants' complaints are properly matters which should have been addressed on appeal to the Board and that the applicants, albeit through an inadvertence arising from an error in the fee which accompanied the appeal, have failed to exhaust the appropriate alternative remedy comprising of an appeal to the Board and, therefore, their challenge should be refused.

6. In considering these matters, I refer, first, to the issues which were raised by the applicants in their initial submission to the County Council as part of the notice party's planning application, second, to the applicants' appeal to the Board (which was deemed invalid) and, finally, to their application for judicial review, before discussing the legal consequences which arise.

LETTER OF SUBMISSION DATED 30TH JANUARY 2023

Summary

7. In the period after which the application for retention permission/permission (Reference Number 22672) was submitted by the notice party and received by the planning authority, the second named applicant made a number of "submission/observations" by way of a handwritten letter dated 30^th January 2023.

8. In summarising the contents of this letter, as follows, it can be noted that the applicants raised the same or similar types of issues which it sought subsequently to raise in their appeal to the Board, which was deemed invalid, and which they also seek now to raise in this challenge by way of judicial review, including inter alia the following: reference was made to the site notice and description of the proposed development (the subject of the application for retention), the underground slurry storage tank, the Nutrients Management Plan, the alleged material change of use, the planning permission in 2011, the spreading of slurry, whether slurry was being spread on sterilised land on particular dates (i.e., 20^th January 2023) and reference was made to a section 47 Agreement with the Planning Authority, Roscommon County Council and Condition 15 of the planning permission in reference no. 11389, the alleged noise, the odours and smells, the aesthetics, the site location map, the site lay-out plan, drawing no. 101, the E-Plan where it was submitted that corrections were required to Roscoco.maps.arcgis.com in the context of the applicants' boundary fences (Ordnance Survey Map 27-1, Digital 2220).

The issues raised

9. In paraphrasing these submissions of the second named applicant in greater detail, they alleged the following matters.

Site Notice & description

10. The letter stated that the Site Notice for the development states "Date of Erection of Site Notice: 18/12/2022". The letter stated that this date was incorrect and that the Site Notice was not erected until 5/1/2023 and further stated that Article 17(1)(b) of the Planning and Development Regulations 2001 (as amended) was not adhered to.

Underground slurry storage tank

11. The letter referred to "(3) Retain and complete slatted shed with feeding passage and cow cubicle accommodation and associated site works" and stated that the underground slurry storage tank that had been built for what was described as a 9-Bay slatted shed was 62.1m from the applicants' dwellinghouse which, it was contended, did not comply with the Planning and Development Regulations which required that "the distance from any house (other than owner) must be at least 100 metres unless consent is obtained in writing from the owner". The letter stated that written consent from the applicants was neither sought nor given.

Nutrients Management Plan

12. The letter contended that the Nutrients Management Plan which had been submitted as part of the planning application did not give a true portrayal of the operation of the farm enterprise. For example, it had stated that slurry storage facilities were required for 18 weeks to cater for the 110 dairy cows plus the 50 other cattle being housed over the winter; it was stated that the farm enterprise operated a zero-grazing system and that the 110 dairy cows plus the 50 other cattle were housed '365 days and nights' of the year. The letter stated that the last time the applicants had observed the dairy cows and other cattle out grazing on the parcels of land which are owned and rented was in the summer of 2019 and since then, the 110 dairy cows and the 50 cattle had been housed in the sheds next door - the point being alleged was that these dairy cows and other cattle had not been out on grass for the past 3 years and 5 months.

13. The letter contended that the Nutrients Management Plan which had been submitted did not give an accurate view of the day-to-day operations on the farm and consequently the slurry storage facilities were allegedly woefully inadequate.

Alleged material change of use

16. The letter stated that running and operating a dairy enterprise in compliance with the law required careful and proper planning. It stated that planning permission was required when making material (i.e., significant) change of use to a structure and further alleged that, in this case, planning permission was neither sought or obtained by the owner when significantly changing the use of housing/sheds from being short-term (18 weeks over the winter) to long-term (365 days and nights each year) in order to facilitate the zero-grazing system that was now in operation. A similar contention was made in relation to the slurry storage facilities, arguing that 18 weeks slurry storage capacity was previously insufficient. It was stated that the zero-grazing system operating on this farm at present, with the continual housing of 110 dairy cows and 50 other cattle for over 3 years and 5 months, raised very serious animal welfare and environmental concerns.

Planning permission in 2011

17. The letter stated that the last planning permission sought by the owner of this farm enterprise was in 2011 (reference number 11389) to construct an underground slurry storage facility with roof over and associated concrete yard and siteworks at Rathleg Townland, Castlerea, Co. Roscommon. Planning permission had been granted, in accordance with the plans submitted with the application on 12^th October 2011 and amended by the details submitted on 9^th December 2011, subject to 17 conditions, set out in a schedule attached to the permission.

Spreading of slurry

18. The letter stated that the Notification of the 'Final Grant of Permission' stated that "all the conditions set out must be strictly complied with, otherwise the work will be unauthorised." The letter referred to Condition 11 of that permission which stated that farmyard effluent "shall not be spread":

"(b) on frozen or snow-covered lands

(e) within 10m of a watercourse, drain or public road

(g) within 200m of a dwellinghouse or domestic water supply."

19. The 'reason' stated that it was "[i]n the interests of public health amenity and to protect pollution of groundwater and surface water."

20. The letter alleged that both (e) and (g) above, in Condition 11, were not being adhered to when slurry was being spread in the field in front of the applicants' house.

21. The letter alleged that slurry was being spread right up to the roadside wall which bounded the main R377 public road, contrary to the above condition and accordingly slurry was being spread within 10m of the R377 public road. The letter stated that the roadside/boundary was 50m from the applicants' dwellinghouse and that slurry was being spread 150m nearer to the applicants' house than it should be, contrary to the above condition (g) in that slurry was being spread within 200m of a dwellinghouse.

22. The letter further alleged that Part (b), in Condition 11, was 'not complied with' on Thursday 19^th January 2023 and on Friday 20^th January 2023 when slurry was spread on frozen, snow-covered land.

23. The letter questioned whether slurry was being spread on sterilised land on Friday 20^th January 2023 and referenced a section 47 Agreement with the Planning Authority, Roscommon County Council and Condition 15 of the planning permission in reference no. 11389. The letter stated that the last day for the spreading of slurry in 2022 was Thursday 6^th October. The letter stated that on Monday 10^th October 2022, a slurry agitator could be heard operating all day on the farm in question. The letter stated that the spreading of slurry commenced at 11am on 10^th October 2022 on the land, which was owned and rented, with the last load being spread after 6pm.

24. The letter added that normally, the spreading of slurry was carried out using a low trajectory splash plate but that once per year, at the opening of the slurry-spreading season, a dribble bar using an umbilical system was used to spread the slurry on the land and field which was located across the road from the applicants' dwellinghouse. The letter stated that to facilitate the spreading of slurry using this system, a pipe had been set down and passed under the R377 public road.

25. The letter described that one end of this block pipe could be seen protruding in the owner's front lawn and then it disappeared under the R377 road to reappear jutting out in the owner's field on the far side of the road from the lawn. The letter stated that when slurry was to be spread, a slurry-laden pipe/hose was brought from the slurry storage tank, across the lawn, under the road and emerged in the owner's field across the road enabling the umbilical system of spreading slurry.

26. Referencing the Planning Authority of Roscommon County Council, the letter questioned whether permission was received, and a road-opening licence was obtained by the owner to put down this pipe under the R377 public road. The letter stated that from the perspective of public health, noise, smell, overlooking, the retention and completion of what was alleged to be an unauthorised development (9-Bay underground slurry storage tank, slatted shed and cubicle house), would be intolerable.

Noise

27. The letter alleged the applicants' exposure to noise on a daily and nightly period for the past 3 years and 5 months, including what was alleged to be cows and other cattle lowing at all hours of the day and night, bull bellowing, (slurry) agitators at work, tractors with slurry spreaders on tow, milking machines, cooler, etc. It was alleged that it was not unusual to hear someone at work in the sheds and the sound of machinery working at 1am and 2am. The letter further alleged that what it described as 'constant noise' had robbed the applicants of their private space and amenity and stated, for example, that there was no joy to be found sitting out in their garden anymore, either at the rear and side of their house stating that they cannot enjoy peace and quiet, fresh air and birdsong. The letter stated that to have "a 9-bay slatted house and cubicle house and an underground slurry storage tank for same, retained and completed, with the consequent daily and nightly noise it would bring, once operational, would amount to persistent harassment and an abandonment/neglect of our health and well-being".

Smell/Odour

28. The letter complained of smell and odour arising from the number of cows (110) and other cattle (50) being housed every single day and night for the past 3 years and 5 months and stated that it was not surprising that the smell emanating from the sheds and tanks owned by the farmer in question was foul, pungent and persistent. The letter stated that the smell was ever-present, both inside and outside the applicants' house and the smell of cows' urine was particularly nauseating in warm weather.

29. One cow shed was located directly opposite (south of) the applicants' back door which resulted in a constant smell because the prevailing wind was south/south-west. It was further stated that due to the slurry tanks being filled up constantly (because of the zero-grazing system in operation) with the slurry tank capacity being at a premium, the agitating and spreading of slurry was almost a daily occurrence resulting in a "constant putrid smell of slurry." It was alleged that when the agitating and spreading of slurry started, it continued for the entire day and possibly the following day and therefore the windows and doors of the applicants' house must be closed, including the hot days during the summer. The letter further stated:

"It doesn't matter what day or time of day it is - slurry is spread on weekdays, Sundays, Bank Holidays, Friday evenings, Sunday mornings etc. As a result:

§ there is no chance for us to open windows and doors and enjoy fresh air coming into our house

§ there is extra work involved in washing and drying clothes for a second time because there is a smell on them when they are taken in from the clothesline

§ there is no let-up - it is creating constant annoyance and frustration, particularly when one sees an unauthorised development taking place, without any consideration whatsoever for established planning and development practices, for impact on others as well as the risks and hazards it creates for the environment".

Aesthetics

30. Under a subheading of 'aesthetics', the letter stated that the alleged unauthorised development could not be retained and completed because it would be an obtrusive feature on the landscape:

"It would ruin the aesthetics of our house; it's garden and the surroundings. Another grey shed would mean that our view southwards and south-westwards would become more restricted. At present, when we look towards the south, we see grey galvanize and concrete belonging to the owner's various sheds. When we look towards the southwest, we see a huge mound of clay - taken up from where the unauthorised slurry storage tank is now located. It totally blocks our view south-westwards - and a 9-bay, slatted shed and cubicle house erected on top of this slurry storage tank would have the same effect - our view south-westwards would be non-existent".

31. The letter stated that the applicants were becoming more and more "hemmed-in" and alleged that their view of open countryside southwards was disappearing and stated that they felt imprisoned when inside their house with their doors and windows shut to keep the smell out. The letter further alleged that the unauthorised development would overshadow the applicants in a south/south-west direction, causing the applicants a loss of light and a loss of privacy. The letter stated that when the applicants look out of their windows, patio door and back door (which are all located on the southern side of their house), their view is totally blocked with the grey sheds and concrete walls that are already located there, without adding another slatted shed and cubicle house, stating that development density on the site in question, marked as being 0.710 hectares on the Site Layout map, was very high.

32. The letter stated that in the interests of public health, this alleged unauthorised development could not be tolerated. It stated that on 3^rd January 2023, the agitation of slurry continued for the whole day on the farm in question and the slurry was moved with tractors and tankers, continuing all day, to the slurry storage tank of another farmer, who lived more than 2 miles away whereas the Nutrients Management Plan submitted with the planning application stated that no ("zero") slurry was exported.

33. The letter stated that Condition 10 of Planning Permission 11389 stated that "[n]o effluent/slurry or rainwater shall be permitted to flow onto adjoining lands or onto the public road" with the "Reason" being "[i]n the interest of public health and amenity and to prevent water pollution." The applicants stated that, from their yard, they were able to hear the constant sound of water dripping/leaking outside one of the sheds on the farm in question and it appeared that a burst water pipe had not been repaired for months at that stage. They stated that a section of their paddock, which was on the other side of the boundary ditch from this shed, was waterlogged, during winter and summer and the applicants suspected that the cause was an unrepaired water pipe on the farm in question.

Site Location Map/Plan

34. The letter stated that the Site Location Map did not show the correct distance between the alleged unauthorised slurry storage tank and the applicants' dwellinghouse which was 62.1m and that if, for example, the agitation point for the alleged unauthorised tank was to be drawn in, on the side nearest to the applicants' house, it would reduce further the 62.1m distance. The letter stated that having adequate space around outside agitation points was vital ("Specification S123 - DAFM").

Site Layout Plan

35. The letter referred to the Site Layout Plan and stated that as the distance between the alleged unauthorised slurry storage tank and the applicants' dwellinghouse was 62.1m - the Site Layout Plan was not accurate. The letter stated that the distance shown on this Site Layout Plan of 14.775m between the alleged unauthorised slurry storage tank and the boundary ditch was incorrect and that it was a lot less than 14.775m on the ground. The letter noted that in the 061754-planning application in 2006, this same distance was marked on the Site Layout Plan as 17.210m (as opposed to 14.775m in the current application, 22672). The letter alleged that credulity was being stretched in both applications.

Drawing No. 101

36. The letter referred to Drawing No.101 and stated that the wall that would be common to both the existing shed and the alleged unauthorised slatted house and cubicle house. The applicants strongly believed that the distance between the wall and the nearest wall of the slurry storage tank would be a lot longer on the ground than the 7.25m shown on the Plan. Therefore, it was contended that if the slatted shed and cubicle house were to be completed, it would be built to a much larger specification than what was shown on the plans. The applicants believed that the measurements on the ground were greater than those shown on the plans.

E-Plan - Roscoco.maps.arcgis.com

37. The letter stated that the Site Location Map boundaries were not outlined correctly on the Planning Register of Roscommon County Council on Roscoco.maps.arcgis.com in relation to the applicants' boundary fences [Ordnance Survey Map 27-1, Digital 2220]. The letter stated that the applicants needed to have these corrected by the Planning Authority for Roscommon County Council, on Roscoco.maps.arcgis.com.

38. Finally, the letter enclosed documents/photographs as evidence of the applicants' observations and stated that both video and photographic evidence had been submitted to the Environment Section of Roscommon County Council.

NOTIFICATION OF DECISION DATED 21^ST FEBRUARY 2023

39. By notification of decision to grant retention permission and permission (subject to conditions) under section 34 of the 2000 Act dated 21^st February 2023, the planning authority of the County Council granted 'retention permission': (1) to retain the milking parlour shed; (2) retain the roofed dungstead; and (3) retain and complete the slatted shed with feeding passage and cow cubicle accommodation and associated site works and permission to roof the existing cow collection yard at Rathleg, Castlerea, County Roscommon, subject to the following eight (8) conditions:

"(1)The development shall be retained and carried out strictly in accordance with the plans and documents submitted on the 19^th December 2022, except where conditions hereunder specify otherwise.

Reason: In the interest of proper planning and development.

(2)The development hereby permitted shall be operated at all times in accordance with the following stipulations:

(a) The number of animals to be accommodated in the development shall not exceed that which adequate slurry storage capacity is provided in accordance with S.I. No. 31 of 2014 European Union (Good Agricultural Practice for the Protection of Waters) Regulations 2014.

(b) Provision shall be made to collect soiled water, effluent from dungsteads, farmyard manure pits and silage pits.

(c) Any storage tanks on site shall be maintained and managed as to prevent run-off or seepage, directly or indirectly into surface and ground waters. The capacity of the storage tanks shall equal or exceed the capacity required to store all livestock effluent on the holding during the 18-week storage period. Provision shall also be made for adequate storage capacity likely to be required during periods of adverse weather conditions when the application or organic fertiliser to lands is precluded.

(d) Organic fertiliser and farmyard manure shall only be spread on the areas submitted with this planning application. The spreading of fertiliser and / or manure in any other area is prohibited unless such spreading has first been approved in writing by the Planning Authority.

(e) All spreading of organic fertilisers associated with this development shall be in accordance with the European Union Good Agricultural Practice for the Protection of Waters Regulations 2014.

(f) Soil analysis testing shall be carried out for all lands proposed for use or being used for land spreading of waste generated by the development.

Reason: To control the volume of effluent generated by the development, to prevent water pollution and in the interests of proper planning and sustainable development of the area.

(3)The application of organic fertiliser or soiled water shall be prohibited from the 15^th October to the 15^th January inclusive. The application of farmyard manure shall be prohibited from the 1^st November to 15^th of January inclusive.

Farmyard manure shall not be held in a field at any time during the prohibited period. The application of both organic fertiliser and farmyard manure shall be precluded:

· Within 15 metres of exposed cavernous or karstified limestone features such as swallow holes and collapse features;

· Within 200m of any watercourse, borehole, spring or well used for human consumption;

· Within 20m of a lake shoreline.

· Within 50m of a sensitive building (e.g. school, church, hospital etc.)

· On wet or waterlogged lands

· On frozen or snow covered lands

· During heavy rain or is rain is forecast within 48 hours; and

· On exposed bedrock

Land spreading shall be carried out on the lands identified in the nutrient management plan submitted on the 16^th May 2022 only.

Reason: In the interest of public health and amenity.

(4)The collection, storage and spreading of all organic fertilisers, soiled water and run-off produced by the farm shall be carried out in accordance with the provisions of the European Unions (Good Agricultural Practice for Protection of Waters) Regulations 2022 and any subsequent amendments to these regulations.

Reason: In the interests of environmental protection.

(5) All organic fertilisers, including but not limited to bedding manure, spent silage, stored within the farmyard area shall be stored were suitably designed effluent control systems are in place. All effluent control systems shall be sited and designed in accordance with Department of Agriculture, Food and Marine specifications and the European Union (Good Agricultural Practice for Protection of Waters) Regulations 2022 and any subsequent amendments to these regulations.

Reason: In the interests of public health.

(6)Inspection manholes shall be installed on all surface water collection systems/pipe lines prior to their discharge point to all soak pit(s) and/or surface water drains, this should include all existing discharge points.

Reason: In the interests of public health and amenity.

(7)All construction and demolition waste generated as a result of the proposed development shall be disposed of to a facility authorised in accordance with the provisions of the Waste Management Act 1996 as amended only.

Reason: In the interests of orderly waste management.

(8) Within three months of the date of the final grant of planning permission or within such other timescale agreed in writing with the Planning Authority, a development contribution in the sum of €8,325 (updated at the time of payment in accordance with changes in the Wholesale Price Index - Building and Construction (Capital Goods), published by the Central Statistics Office) shall be paid to Roscommon County Council as a contribution towards the expenditure that was incurred or is proposed by the Local Authority in respect of providing public infrastructure and services. Payment of this contribution is subject to the provisions of the adopted Development Contribution Scheme 2014 as amended 2020).

Reason: It is considered reasonable that the developer should contribute towards the expenditure that is proposed to be incurred by the Council in respect of the provision of public infrastructure and services."

40. This notification of decision also contained an advice notice which stated that "Condition No. 7 applies to the transport, recovery and disposal of all waste arising as a result of the development. All waste arising at the construction stage shall be source segregated for onward recovery or disposal."

41. Letters of notifications of the decision dated 22^nd February 2023 were also sent to the applicants to this judicial review application.

42. As set out later in greater detail in this judgment under the sub-heading "Reasons", the notification sent to the applicants inter alia stated that a final grant would issue as soon as may be, but not earlier than three working days after the expiration of the period for the making of an appeal to the Board, and if there was no appeal before the Board on the expiration of the said period and that no development could commence until the final grant had issued. The notification stated that the date of the decision was 21^st February 2023 and included the decision and the schedule of eight conditions.

43. Importantly, the notification also set out details of how an appeal could be made to An Bord Pleanála, including that it should be "accompanied by the appropriate fee as required by the Planning & Development Regulations 2001 (as amended)" and referred to an attached Schedule entitled "Schedule of Fees payable to An Bord Pleanála". The letter advised that the appeal must be received by the Board within 4 weeks beginning on the date of the making of the decision by the Planning Authority and added that "[a]n appeal which is not made in the prescribed manner will be deemed to be invalid".

SUMMARY OF THE SECOND-NAMED APPLICANT'S APPEAL TO THE BOARD

44. Consistent with her earlier submission, on 20^th March 2023 the second named applicant submitted a comprehensive appeal, which was clear in form and substance, and addressed a range of matters and enclosed the fee of €220.00 and also her earlier submission dated 30^th January 2023 to Roscommon County Council (which I have paraphrased above) and the acknowledgement of receipt of that submission from the County Council.

45. The introductory part of the appeal also stated that in support of her appeal, the second named applicant was "enclosing photographs, documents, Site Notice and a letter from my Engineer, Mr. Patrick Eugene Waldron, dated 11^th October 2022, confirming the distance between the proposed slatted house unit and our dwellinghouse to be 62.1 metres after he surveyed same".

46. Not surprisingly, the second named applicant's appeal to the Board raised many of the earlier submissions which had been made to the County Council consequent upon the initial application for retention permission/permission.

47. In summary, the second named applicant's appeal to the Board raised, inter alia, the following matters:

· the first ground of appeal stated inter alia that the retention permission granted was in non-compliance with the 2001 Regulations as the development was 62.1 metres from the applicants' house and they had not given their consent to a distance of less than 100 metres.

· the second ground of appeal inter alia took issue with the reference in the County Council's planning report (page 4) to the 'retention' of development and uses "within an existing farmyard" setting and stated that they were in fact extensions of the existing farmyard noting an increase from 0.637 hectares to 0.71 hectares.

· the third ground of appeal inter alia took issue with condition 3 in the grant of retention permission/permission and stated that insofar as it related to the application of both organic fertiliser and farmyard manure, it provided less protection for local residents and for the environment than it did in the past.

· the fourth and fifth grounds of appeal inter alia took issue with the details contained in the Nutrient Management Plan submitted on 19^th December 2022 and stated that it did not reflect that the enterprise was a "zero-grazing system" in operation and 110 dairy cows, and 50 other cattle were housed in the sheds next door for the 365 days and nights of the year. The fifth ground of appeal inter alia referred to the fact that condition number 3 referred to land spreading being carried out on lands identified in the Nutrient Management Plan submitted on "16^th May 2022 only" whereas the Nutrient Management Plan available to view on the e-plan facility was in fact submitted on "19^th December 2022". The appeal states that Ms. Mary Grier, senior planner of the County Council explained that this was a typographical error which would be corrected, and a corrected schedule of conditions would be reissued to all relevant parties.

· the sixth ground of appeal inter alia stated that planning permission was neither sought or obtained by the notice party when changing the use of his existing sheds from being short term, namely 18 weeks over the winter, to long-term 365 days and nights per year to facilitate the zero-grazing system and a similar point was made in relation to slurry storage facilities.

· the seventh ground of appeal inter alia stated that a section 47 agreement had been signed by the Planning Section of the County Council in April 2006 which resulted in some of the lands being sterilised but that in the planning authority's checklist, question 9 asked if there was a section 47 agreement and the question was answered "no" and, in addition, it was not addressed in the planning report;

· the eighth ground inter alia refers to the apparent mixed communications received from officials in the County Council to the second named applicant concerning the submission of video evidence and on the evening of 20^th February 2023 (i.e., the evening before the decision was due), the second named applicant received an e-mail from the Planning Department that the video content was not in a format which could be displayed and therefore could not be taken into account;

· the ninth ground of appeal refers to the site notice and states as follows:

"The site notice for this development was not erected until 05.01.2023 even though the actual site notice stated that it was erected on 18/12/2022 (Copy Site Notice enclosed) i.e. [Article] 17(1)(b) of the Planning and Development Regulations 2001 & [2006] [sic.] was not adhered to".

· the tenth ground of appeal expresses the second named applicant's disappointment that, in her view, not one of her concerns was given any credence at all by the planner for the County Council and summarises her concerns as to the future as follows:

"After living at our address for nigh on 30 years and after following established planning and development practices over the years, it is both sobering and chilling to know that into the future:

· Our windows and doors will have to remain shut in an effort to keep smells/odour outside even on hot summer days.

· Many a load of washing will have to be washed and dried twice.

· We will be ever conscious of the fact that the prevailing wind will bring more than rain to us, it will bring the noxious stinking smell of cow urine too.

· Noise - of both machinery and livestock will be a constant both day and night.

· Sitting out in our garden will be a rarity.

· The peace, quiet, fresh air and birdsong synonymous with rural living won't belong to us.

· The aesthetics of our house, its gardens and its surrounding will be ruined because the retention and completion of the slatted shed and cubicle house accommodation would be an obstructive feature on the landscape.

· Our view south and south-westwards will disappear.

· We will lose sunlight and privacy through overshadowing.

It isn't fair or just to sacrifice our rights, our health and our well-being in order to accommodate the bringing of unauthorised developments into the realm of authorised".

48. On 24^th March 2023, in case reference PL20.316094 (Planning Authority Case Reference: 22672), the Board deemed the third-party appeal by Mrs. Maureen Larkin (lodged on 20^th March 2023) in relation to the grant of 'retention permission' of the milking parlour shed, roofed dungstead and retain and complete slatted shed with feeding passage and cow cubicle accommodation and associated site works and 'permission' for construction of a roof to the existing cow collection yard at Rathleg, Castlerea, County Roscommon to be invalid having regard to the provisions of section 127(1)(f) of the 2000 Act, which requires that an appeal shall be accompanied by the fee required (in accordance with section 144 of the 2000 Act).

THE APPLICATION FOR JUDICIAL REVIEW

The parameters for judicial review

49. The parameters of this application for judicial review are enjoined by the issues raised in the Statement of Grounds for which leave was granted by order of the High Court (Cregan J.) on 13^th April 2023 and the Statement of Opposition dated October 2023. No application for an amendment has been made by either party.

50. The principles in this regard were re-stated by the Supreme Court in Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála & Ors [2024] IESC 28 and were previously set out in the judgments of the Supreme Court in AP v Director of Public Prosecutions [2011] IESC 2; [2011] 1 IR 729 at paragraphs 7-9 per Denham J. (as she then was) and Murray C.J., in the context of sections 50 and 50A of the 2000 Act, Order 84 of the Rules of the RSC 1986 in the judgment of the High Court (Humphreys J.) in Reid v An Bord Pleanála (No.7) [2024] IEHC 27, where at paragraphs 48 to 58 of that judgment, Humphreys J. refers to many of the leading decisions of the Superior Courts which address the circumstances of when, effectively, new grounds are sought to be argued for via legal submissions (written and oral) at the hearing and for which leave (or an amendment) has not been granted, or where there is insufficient particularisation of grounds contrary to the requirements of O. 84, r. 20(1) RSC 1986 and O. 84, r. 20(3) RSC 1986: see also Environmental Trust Ireland v An Bord Pleanála & Others [2022] IEHC 540 (per Holland J.). As it happens, in this case, arguments have been raised on behalf of the applicants and the County Council as to what has in fact been raised as to the grounds for seeking relief and the grounds opposing same.

The Applicants' grounds

51. The grounds upon which the applicants were granted leave to apply for judicial review are as follows:

"(1) In these proceedings, the Applicants challenge the decision made by Roscommon County Council on 21 February 2023 for retention permission and permission to (1) retain milking parlour shed, (2) retain roofed dung stead, (3) retain and complete slatted shed with feeding passage and cow cubicle accommodations and associated site works; (4) permission to roof existing cow collection yard (hereinafter "the Development") at Rathleg, Castlerea, Co. Roscommon (hereinafter "the Lands").

(2) The Notice Part owns the Lands and the Applicants reside adjacent to the Lands.

(3) The interests of the Applicants are directly affected by the impugned decision as they reside next to the Lands and bear the brunt of the impact of the Development and use of the Lands for intensive farming, including slurry spreading.

(4) On or about October 2022, the Applicants complained to Respondent regarding unauthorised development at the Lands by the Notice Party using the Respondent complaint form and made a number of complaints regarding the activities of the Notice Party on site regarding the spreading of slurry on the lands and unauthorised development and the impact this was having on the Applicants, details of which are provided in the grounding affidavit.

(5) On or about the 21 September 2022, the Respondent issued a warning letter to the Notice Party regarding the unauthorised development consisting of the construction of an unauthorised slurry storage tank and structures without the benefit of planning permission.

(6) On or about 16 December 2022, the Respondent issued an enforcement notice to the Notice Party regarding the unauthorised development consisting of the construction of an unauthorised slurry storage tank and structures without the benefit of planning permission.

(7) On 19 December 2022, the Notice Party applied for retention permission in respect of the unauthorised development under reference number PD22-672.

(8) On or about the 30 January 2023, the Applicants provided detailed submissions and observations to the Respondent in respect of the application setting out detailed objections to the application.

(9) The submission and observation of the 30 January 2023, included the following submissions in summary:

(a) The site notice for this development states: "Date of erection of site notice; 18/12/2022". That this date was incorrect - the site notice was not erected until the 5/01/2023 and the Applicants cited Regulation 17 (1)(b) of the Planning and Development Regulations 2001 & 2006 stating that this was not adhered to.

(b) In relation to this development and in particular to; "(3) Retain and complete slated shed with feeding passage and cow cubicle accommodation and associated site works,". The underground slurry storage tank that has been built for this 9 bay slatted shed is 62.1 metre from our dwellinghouse. This does not comply with planning and development regulations which state "the distance from any house (other than own) must be at least 100 metres unless consent is obtained in writing from the owner". Written consent from us was neither sought nor given.

(c) Detailed submissions were made in respect of the Nutrient Management Plan and it was submitted that it does not give a true portrayal of the operation of the farm enterprise. This was referred to in the Planners report. The conclusion of the submission was that the Nutrient Management Plan did not give a true and fair view of the day-to-day operations on this farm and consequently the slurry storage facilities are woefully inadequate.

(d) There was a material change of use arising from the use of the housing/sheds for short term as opposed to long term use. Planning permission as neither sought nor obtained by the owner when significantly changing the use of housing/ sheds from being short term (18 weeks over the winter) to long term (365 day and 265 nights each year) in order to facilitate the zero-grazing system that in now in operation. Likewise for the slurry storage facilities - 18 weeks slurry storage capacity is grievously insufficient. The zero-grazing system operating on this farm at present with the continual housing of 110 dairy cows and 50 other cattle for over 3 years and 5 months now, raises very serious animal welfare and environmental concerns.

(e) The last planning permission sought by the owner of this farm enterprise was in 2011 (11/389 to construct underground slurry storage facility with roof over and associated concrete yard and siteworks at Rathleg Townland, Castlerea, County Roscommon) .Planning permission was granted in accordance with the plans submitted with the application on 12/10/2021 and amended by the details submitted on 09/12/2011, subject to 17 conditions, set out in a schedule attached to the permission. Condition 11 was highlighted and detailed submission were made on the breach of Condition 11 which governs the spread of effluent. Condition 11 requires that farmyard effluent shall not be spread.

· in frozen or snow-covered land

(e)within 10 m of a watercourse, drain or public road

(g) within 200m of a dwelling house or domestic water supply

The stated reason of this in the interests of public health and amenity and to protect pollution of ground water and surface water.

Detailed submissions were then made that both (e) and (g) above in Condition 11 are not being adhered to when slurry is being spread in the field in front of our house. It was submitted that the slurry is being spread right up to the roadside walls which bounds the main R377 public road (i.e., slurry is BEING SPREAD within 10m of a public road R377); that this roadside/boundary wall was 50 m from out dwellinghouse i.e. slurry is being spread 150 m nearer to our house than it should be (i.e. slurry is BEING SPREAD within 200m of a dwellinghouse).

(f) Further submissions were then made regarding the fact that to facilitate the spreading of slurry using this system, a pipe has been set down and passed under the R377 public road.one end of this blue pipe can be seen protruding in the owners front lawn then it disappears under the R377 road only to appear again jutting out in the owners field on the far said of the road from the lawn. When slurry is to be spread a slurry laden pipe/hose is brought from the slurry storage tank, across the lawn, under the road, and emerges in the owners fired across the road-this enabling the umbilical system of spreading slurry. The Applicants raised the questions as to the legality of this, in particular whether or not permission was received/ road - opening licence was obtained by the owner, to put down this pipe under the R377 road.

(g) Detailed submissions were then made regarding three further aspects: noise, smell, overlooking. It was submitted that if the unauthorised development being retained and completed (9 bay underground slurry storage tank, slatted shed and cubicle house) would be intolerable.

(h) Regarding the SITE LOCATION MAP/PLAN did not reflect/show the true distance between the unauthorised slurry storage tank and our dwelling house i.e. 62.1metres - in fact, where the agitation tank for this unauthorised tank was to be drawn in, on the side nearest our house, it would reduce further the 62.1 distance. Having adequate space around outside agitation points is vital and reference was made to the Department of Agriculture s. 123.

(i) Regarding the SITE LAYOUT PLAN the distance between the unauthorised slurry storage tank and our dwelling house is 62.1 metres - his site layout plan does not accurately reflect/show this. The distance shown on this site layout plan of 14.775 metres between the unauthorised slurry storage tank and the boundary ditch isn't correct - it is a lot less than 14.775 meters on the ground. Reference is made to the 061754 planning application in 2006 where the same distance was market on the site layout plan as 17.210 metres (as opposed to 14.775 metres in the current application, 22672) and it was submitted that in both applications, credulity is stretched.

(j) Regarding DRAWING NO. 101, the wall that would be common to both the exiting shed and unauthorised slatted house and cubicle house, it was submitted that the distance between this wall and the nearest well of the slurry storage tank would be a lot longer in reality (i.e., on the ground) than the 7.25 metres shown on the plan. In other words, if this slated shed and cubicle house were to be completed, it would be built to a much larger specification than what was shown on the plans. The measurements on the ground, we believe are greater than what are shown on the plans.

(10) The Applicants sought to provide video evidence in support of their allegations and the Respondent wrongfully and/or unlawfully and/or contrary to natural justice, constitutional justice and fair procedures refused to accept or consider the evidence which the Applicants sought to adduce the day before the deadline for making objection. Further particulars of this plea are provided in the grounding affidavit.

(11) By Order dated the 21 February 2023 the Respondent granted permission for the development subject to 8 conditions.

(12) The Order was preceded by a planning report dated the 20 February 2023 ("the Planning Report").

(13) The Order does not refer expressly to the planning report of that it is adopting it in its entirety or has had regard to it, but does cite that it has considered various submissions and reports in connection with the application.

(14) The Order itself fails to provide any or any adequate reasons for the decision.

(15) In so far as by implication, the impugned decision was made by adopting the facts, considerations and conclusions of the Planning Report (which is not expressly stated on the face of the Order or accepted), the Applicants will rely on the full contents of the Planning Report to demonstrate, inter alia:

(a) a failure to provide any or any adequate engagement with or consideration of the points made by the Applicants,

(b) a failure to provide any or any adequate reasons for the decision or for rejecting the points made by the Applicants,

(c) a failure to

· state the conclusion as to whether an EIA was required or not, as required by the PDA and PD Regulations, and/or

· have any or any adequate regard to relevant criteria and considerations when carrying out the preliminary examination and/or taking into account irrelevant considerations, or apply same, and/or

· without prejudice to the generality of the plea at paragraph (b) hereof, a failure to have regard to the criteria and considerations in Annex III of the EIA Directive, or apply same, and/or

· have any or any adequate regard to the statutory Guidelines for Planning Authorities and An Bord Pleanála on carrying out Environmental Impact, Assessment August 2018, or apply same contrary to the PDA, and/or

· failing to provide any or any adequate reasons for the conclusion that there was no real likelihood of significant effects on the environment.

(d) the grant of permission was granted when it ought not have been and/or when further inquiry was required to establish the facts and/or based on materially incorrect facts and/or there was a failure to establish or reject relevant facts and/or a failure to have regard to relevant considerations.

(16) On the 31 January 2023, the Applicants appealed to An Bord Pleanála but the application was rejected in circumstances were the accompanying cheque was returned due to insufficient funds.

BREACH OF FAIR PROCEDURES, NATURAL AND CONSTITUTIONAL JUSTICE

(17) The principles of audi alteram partem and natural and constitutional justice required that the Applicants, as the parties directly and most affected by impugned decision were entitled to be heard fully and fairly on the proposed decision (which affected their peaceable enjoyment of their own property).

(18) The Applicants plead that the provisions the PDA 2000 are to be interpreted in a manner which gives effect to the requirements of fair procedures, natural and constitutional justice and are intended by the Oireachtas to be so interpreted.

(19) While detailed submission were provided, the Respondent failed or neglected to engage with the points made by the Applicants or provide any reasons to reject these.

(20) That the Applicants were entitled to be heard in relation to that impugned decision requires that the Respondent consider and engage with the Applicants submission, and were appropriate accept or reject these citing reasons for so doing, and were necessary establishing and stating the relevant findings of facts found by the Respondent. The Respondent failed or neglect to do so in the impugned decision or in the Planning Report.

(21) Without prejudice to the generality of the foregoing plea, any reasons that were given by or on behalf of the Respondent were not published in writing by the Respondent which was expressly referred to or confirmed as adopted by the respondent. Moreover, in so far as the Planning Report is relied on for the reasons for the decision, it is gross deficient in failing to identify, engage with the submissions by the Applicants, and consequently provides no or no adequate reasons to explain why the points made by the Applicants were rejected.

(22) In all the circumstances as pleaded heretofore, Roscommon County Council did not have any material before it which would permit the Respondent to reasonably consider and reject the merits or not of the Applicants submissions, and if the merits of the points were considered, this is not identified or cited in the impugned decision or the planning report and/or reasons for such conclusions (which themselves are not cited) are not provided either.

(23) These failures are contrary to the requirements of natural justice, constitutional justice and fair procedures, as well as being contrary to the scheme provided by and under the PDA, including the express duty to provide reasons for its decisions.

(24) Moreover, the said failures on the part of the Respondent were a breach of the rights of the Applicant under Articles 40.3 and 43 of Bunreacht na hÉireann and of a fundamental right of the Applicant at common law. In addition, the Charter of Fundamental Rights of the European Union ("the Charter") makes provision, as an express fundamental right, for the right to an effective remedy and the right to a fair and public hearing, which has not occurred here.

(25) In these circumstances, in making the decision impugned in these proceedings, the respondent Council acted in breach of fair procedures and in breach of natural and/or constitutional justice and in breach of the rights of the Applicant under the Charter of Fundamental Rights of the European Union, Applicant under Articles 40.3 and 43 of Bunreacht na hÉireann and common law and the Respondent failed to five any or any adequate reasons for the impugned decision.

(26) In consequence of each of the foregoing, the impugned decision of the Respondent was unlawfully made and is invalid and has no legal effect.

BREACH OF EU AND NATIONAL LAW: PRELIMINARY EXAMINATION

(27) By Article 2 of the EIA Directive, an EIA is required, for development projects of classes defined in Article 4and Annexes 1 & 2, before development consent (in this case planning permission) is given for such projects, where those projects are "likely to have significant effects on the environment". That is a general requirement applicable as to any project falling within one of the prescribed classes, regardless of the size of project. As to any such project, a decision must be made whether EIA is required.

(28) As Ireland has transposed the EIA Directive, projects requiring EIA are identified in three ways by s.172 PDA 2000 and Schedule 5 PDR 2001. An EIA is required, in accordance with Article 2 of the EIA Directive, for those projects which do not exceed the threshold or limit set for each class but which, nonetheless, are likely to have significant effects on the environment. The need for EIA of sub-threshold development is decided on a case-by-case basis.

(29) The 2014 amendment of Article 4(3) of the EIA Directive allowed Member States to "set thresholds or criteria to determine" when projects do not need even EIA Screening. Preliminary Examination is intended to impose a lesser obligation of inquiry and examination than is imposed by EIA Screening.

(30) Under a "Preliminary Examination" - 3 outcomes are possible: that EIA is not required; that EIA Screening is required; that EIA is required.

(31) The standard for concluding that EIA is not required is the same in Preliminary Examination as in EIA Screening.

(32) Annex III of the EIA Directive - "Criteria to Determine Whether the Projects Listed in Annex II Should be Subject to an Environmental Impact Assessment" apply in Preliminary Examination as in EIA Screening.

(33) Schedule 7 PDR 2001 replicates Annex III of the EIA Directive in listing criteria for determining whether development listed in Part 2 of Schedule 5PDR 2001 should be subjected to EIA.

(34) The Order and the Planning Report make no reference to the above, including either the Guidelines or Schedule 7 of the PDR which govern a preliminary assessment.

(35) Guidelines for Planning Authorities and An Bord Pleanála on carrying out Environmental Impact, Assessment August 2018 under section 28 of the PDA 2000, as amended, and the Respondent is required to have regard to the Guidelines in the performance of its functions under the Act.

(36) The Guidelines make clear that a preliminary examination is undertaken, based on professional expertise and experience, and having regard to the 'Source - Pathway - Target' model, where appropriate and that the examination should have regard to the criteria set out in Schedule 7 to the 2001 Regulations.

(37) The EIA Guidelines say of Preliminary Examination that where the resultant conclusion is that there is no real likelihood of significant effects on the environment and, so, that EIA is not needed, this "considered view" should be recorded, with reasons for this conclusion stated. The Planning Report fails to record any decision or conclusion that an EIA is not needed and does not provide reasons for this conclusion and makes no reference to the precautionary principle.

(38) Under Schedule 7 of the PDR 2001, the respondent was required to consider and assess the characteristics of the development including having particular to, amongst other things, cumulation with other existing and/or approved projects; the use of natural resources, in particular land, soil, water and biodiversity; the production of waste; pollution and nuisances; the risks to human health (for example due to water contamination or air pollution); the existing and approved land use; the relative abundance, availability, quality and regenerative capacity of natural resources (including soil, land, water and biodiversity) in the area and its underground; the absorption capacity of the natural environment; areas in which there has already been a failure to meet the environmental quality standards, laid down in Union legislation and relevant to the project, or in which it is considered that there is such a failure. Moreover, the likely significant effects of projects on the environment were required to be considered with regard to the impact of the project on the factors specified in Article 3(1) taking into account: the nature of the impact; the transboundary nature of the impact; the intensity and complexity of the impact; the probability of the impact; the expected onset, duration, frequency and reversibility of the impact; the cumulation of the impact with the impact of other existing and/or approved projects or the possibility of effectively reducing the impact.

(39) The respondent failed or neglected to carry out the assessment having regarding to the foregoing contrary to Schedule 7 of the PRD 2001.

(40) Further, by failing to have regard to or assess the environmental points made by the Applicants in its submissions to the Respondent, the Respondent failed to take any or any adequate account of matters relevant to the Preliminary Examination as envisaged by Schedule 7 PDR 2001, as required in a preliminary examination.

(41) In breach of the said obligations and requirements of European Union and Irish law, the Respondent unlawfully failed to:

(a) state the conclusion as to whether an EIA was required or not, as required by the PDA and PD Regulations, and/or

(b)have any or any adequate regard to relevant criteria and considerations when carrying out the preliminary examination and/or taking into account irrelevant considerations, or apply same, and/or

(c) without prejudice to the generality of the plea at paragraph (b) hereof, a failure to have regard to the criteria and considerations in Schedule 7 of the PDR 2001 or Annex III of the EIA Directive, or apply same, and/or

(d) have any or any adequate regard to the statutory Guidelines for Planning Authorities and An Bord Pleanála on carrying out Environmental Impact, Assessment August 2018, or apply same contrary to the PDA, contrary to section 28 of the PDA and/or

(e)failing to provide any or any adequate reasons for the conclusion that there was no real likelihood of significant effects on the environment.

(f) the grant of permission was granted when it ought not have been and/or when further inquiry was required to establish the facts and/or based on materially incorrect facts and/or there was a failure to establish or reject relevant facts and/or a failure to have regard to relevant considerations.

(42) In consequence of each of the foregoing, the impugned decision was made in breach of the said obligations and requirements of European Union and Irish law, and is invalid and has no legal effect.

BREACHES OF THE PDR 2001 / INACCURATE/INCORRECT INFORMATION/ RELEVANT AND IRRELEVANT CONSIDERATIONS/UNREASONABLE

(43) The Applicants submitted that the application contained a number of defects and factual errors which were not assessed or addressed by the respondent, and the application was as a consequence contrary to the requirements of the PDR 2001, including:-

(a) Article 17 governing the time for site notices,

(b) Article 23(1)(c) which requires the contours to be shown and Ordnance Survey datum to be shown,

(c)Article 23(1)(f) which requires that the site or layout plan must indicated the distances of any structure from the boundaries of the site,

(44) In this respect, as set out above, the Site Plan and other documents submitted failed to adequately identify the distance from the development to the Applicants' home or the boundary line. Moreover, in failing to do so, the Respondent failed to take into account accurate relevant information and took into account incorrect or irrelevant information regarding the distance to the Applicant home and lands.

(45) In respect of the Nutrient Management Plan, the Plan contained a number of deficiencies and conveys an inaccurate or incomplete picture as detailed in the submissions made by the Applicants. These errors included but are not limited to:

(a) page 2 and 15 refers to the weeks of storage as 18 weeks for cows and other cattle in the past three years and seven months (i) 18 week storage is inadequate, and (ii) gives the impression that all cows and cattle are out on the grass again after being housed in the slatted shed for the winter. If they were out to grass then the slurry tanks would not be in use until the next winter. However, they sheds are used all year round and the slurry pits are consequently being filled up on a constant basis. A zero-grazing system in operation and the 110 dairy cows and 50 other cattle are housed in the sheds next door for the 365 days and 365 nights of the year.

(b) Page 5 of 15 refers to 110 dairy cows and maximizes then underneath that a total of 50 cows depending on their ages namely 0 to one year 30 cattle, one to two year 15 cattle, two years or more 5 cattle. On page 7 to 15, however, different figures are quoted and both cannot at the same time be correct.

(c)On page 8 of 15 this refers to the existing tank capacity of the slurry tank. The existing tank capacity is 1063.8m cubed. The proposed tank (Planning Reference 22672) is intended to be 362.2 m cubed. However in planning application 11389 refers to the existing tank capacity as being 560 squared and the proposed tank (11389) as being 868m squared. The differential between the two is 1426m squared (22672) as against which is said in the Teagasc report of 868m squared (11389). There are clear discrepancies between the two and the question arises as to why the capacity has increased since 2011. The extra cubic capacity is 195.8m cubed. No planning permission has been applied for or granted since Planning Commission 11389. In planning application 061754 referenced the existing tank capacity as 390.06m cubed. The new tank capacity then proposed in this planning application (061754) was intended to be 216m cubed which would leave a grand total of 606.06 m cubed. This suggests that there was a total of 46.06m cubed more capacity than was stated in the planning application 11389 (560m cubed). A copy of this plan appears at page 16. Further particulars concerning deficiencies sin the NMP are identified in the grounding affidavit.

(46) A Section 47 Agreement was signed by Roscommon County Council (Planning Section) and the Notice Party in April 2006. This resulted in some lands being sterilised due to neighbour and environmental concerns. However in the "Checklist Before Decision Issues" question 9 asks if there is a Section 47 Agreement and this question was answered no. In the Nutrient Management Plan, dated 19/12/2022 there are no sterilised lands identified. The Planning Report does not mention the Section 47 Agreement.

(47) Condition Number 3 stated the "land spreading shall be carried out on the lands identified in the Nutrient Management Plan submitted on 16 May 2022 only", however there is no such document. The NMP submitted with the application is dated the 19 December 2022 and no NMP dated the 16 May 2022 was published or made available to the public. The Applicants have been informed that the condition is an error and should refer to the 19 December 2022 and will be corrected. To date, it does not appear that the condition has been correct.

(48) In consequence of each of the foregoing, the impugned decision of the Respondent was made contrary to the PDA and the PDR 2001 and the Decision was unreasonable or irrational having been made on erroneous information and/or was made on foot of irrelevant and incorrect facts, of which each individually is reason to set aside the impugned decision."

52. These grounds are verified in the Affidavit of Mrs. Maureen Larkin (the second named applicant) sworn on 12^th April 2023 which is supported in the Affidavit of her husband, Mr. Michael Larkin (the first named applicant) also sworn on 12^th April 2023. Mrs. Maureen Larkin swore a further second Affidavit in reply to the County Council's Statement of Opposition and the verifying Affidavit of Mary Grier, Senior Planner for the County Council sworn on 13^th October 2023.

Statement of Opposition

53. The first ground of opposition raised on behalf of the County Council in its Statement of Opposition on or about October 2023 states that "[t]he Applicants are not entitled to the reliefs sought by reason of having failed to exhaust the appeal procedures available to them."

54. The Statement of Opposition also refers to matters being further addressed in the verifying Affidavit of Mary Grier, Senior Planner of the planning department of the County Council, which affidavit was sworn on 13^th October 2023.

55. In addition, the structure of the Statement of Opposition treats seriatim each of the grounds in the Statement of Grounds.

56. There is an overlap of issues raised in this judicial review application with the submissions made on behalf of the applicants in Mrs. Larkin's letter dated 30^th January 2023 setting out her objections to the Planning Authority and also the matters raised in her appeal to An Bord Pleanála dated 20^th March 2023 (which was deemed invalid). For example, in Ms. Larkin's verifying affidavit sworn on 12^th April 2023 grounding this application for judicial review, she summarises the objections raised in her letter of submission dated 30^th January 2023 at paragraphs 13(a) to 13(j). These are responded to seriatim by Ms. Grier at paragraphs 6(a) to (j) of her Affidavit dated 13^th October 2023 grounding the Statement of Opposition of the County Council.

57. The respective arguments of the parties in the Statement of Grounds, Statement of Opposition, verifying and replying affidavits, cover a range of issues including those which relate to farming practices, the Nutrient Management Plan (including the treatment of inter alia slurry and the requirements of the European Union (Good Agricultural Practice for the Protection of Waters) Regulations 2022 (S.I. 113/2022), the nature and scale of the development (including structures), the different conditions in previous planning permissions, the decision to omit previous conditions which had been applied in 2011 which related to farming practices or impacts which are now addressed in different legislative regimes, issues such as the proximity of the applicants' dwelling by reference to the Site Specific Assessment in the Planning Report and substantive planning issues past and present, such as, for example, the reference to a previous section 47 agreement between the County Council and the Notice Party in 2006 referred to in the condition of a previous planning permission, whilst accepted, was stated to be misconceived as a ground of challenge because the checklist referred to, related exclusively to this planning application for retention permission and permission and not to previous applications and the conditions attached to the grant of permission dated 21^st February 2023 did not include any section 47 agreement and, therefore, the negative answer given to question 9 in the 'checklist' was correct.

58. Arising from the replying Affidavit of Mrs. Larkin sworn on 21^st December 2023 and the further response of Mary Grier in her Affidavit sworn on 29^th April 2024, previous issues raised were re-addressed by both parties with the County Council, for example, dealing inter alia with the matters the subject of the retention application and the application for permission, including the agricultural structures referred to, that the imposition of conditions regarding noise, smell and overlooking were not appropriate for typical agricultural development of the nature of the farming and agricultural proposal contained in the retention and permission application, the erection of the site notice, the treatment of the three submissions received by County Council in the Planning Report and including the report from the Environment Section of the County Council (which did not raise an objection to the application) and the details in the Nutrient Management Plan (including the housing of cows and cattle, the treatment of slurry and the European Union (Good Agricultural Practice for the Protection of Waters) Regulations (S.I. 113/2022), that the site location map and site layout plan were in accordance with the 2001 Regulations, the juxtaposition in relation to Drawing No.101 of the application for retention and permission and previous enforcement action, the differences between 2011 and 2023 respective permissions and conditions, and an explanation to the effect that the County Council's officials ability to view the video submitted by the applicants was separate from the point that video submissions were not accepted as submissions/observations.

59. The Statement of Opposition on behalf of the County Council is verified in the Affidavit of Ms. Mary Grier, Senior Planner in the Planning Department of the County Council, sworn on 13^th October 2023. As mentioned, Ms. Grier also swore a supplemental replying Affidavit on 29^th April 2024 in response to Mrs. Larkin's Affidavit sworn on 21^st December 2023 and she exhibits the report from the Environment Department dated 16^th February 2023 (from Gerard Hannon).

DISCUSSION & DECISION

Reasons

60. At paragraphs 17 to 26 of the applicants' Statement of Grounds (under the sub-heading 'Breach of Fair Procedures, Natural and Constitutional Justice'), the applicants in effect rely on what is often referred, in a judicial review challenge, as a failure in relation to the 'duty to give reasons'.

61. In Sherwin v An Bord Pleanála [2024] IESC 13, Woulfe J. stated that the approach identified in the Supreme Court decision in Connelly v An Bord Pleanála & Ors [2018] IESC 31, [2021] 2 IR 752 remained the correct approach when considering the issue of reasons and inter alia observed as follows at paragraph 127 of his judgment:

"As the judgment of Clarke C.J. observed, the standard to be imposed on the Board should not be "too exacting" (at para. 14.1) and a Court reviewing such decision-making must ensure that the reasons given are adequate to enable an interested party to know why a decision went the way it did, and whether there existed any legitimate basis for seeking to mount a challenge. In the course of that judgment Clarke C.J. emphasised that the type of reasons which may be necessary will depend, amongst other things, on the type of decision which is being made and the legal requirements which must be met in order for a sustainable decision of that type to be reached. In particular the Court noted that materials expressly referred to in a decision of the Board can be taken by necessary implication to form part of the reasoning leading to the ultimate decision of the Board".

62. In FOIE v The Minister for the Environment, Climate and Communications [2025] IEHC 61, the High Court (Humphreys J.) at paragraph 86 of its judgment, summarised the law in relation to reasons, both as to measures addressed to individuals and general measures, as follows: (i) for individual decisions [2] and measures of general application that affect individual rights, [3] the decision-maker must give the main reasons on the main issues; (ii) for measures of general application made under a statute that expressly or implicitly requires a particular level of reasons, for example by mandating public consultation, such reasons as are so required, for example such as will enable a participant in a consultation process to evaluate the measure; [4] and (iii) for measures of general application not made under a statute, or made under a provision that does not require reasons, and that do not affect individual rights, there is no requirement to give any reasons (for example, the enactment of primary law or most statutory instruments, the issuing of non-statutory policies).

63. The decision-making process engaged in by the County Council which culminated in the Notification of decision to grant retention permission and permission, subject to the schedule of eight conditions, each of which contains reasons, under section 34 of the 2000 Act on 21^st February 2023, in my view, meets the requirement to give reasons as articulated in the above authorities.

64. The full context of each of the eight conditions in that planning permission - including, for example, the standard condition in condition 1 which requires that "development shall be retained and carried out strictly in accordance with the plans and documents submitted on the 19^th December 2022, except where conditions hereunder specify otherwise" - was set out earlier in this judgment.

65. In terms of the "reasons jurisprudence" the 'participation' by the applicants in the planning process is a further relevant factor. In this regard, for example, the context of the application in relation to the subject farming premises operated by the Notice Party at Rathleg, Castlerea, County Roscommon was an application for retention permission and planning permission for the following development: (1) retain milking parlour shed; (2) retain roofed dungstead (3) retain and complete slatted shed with feeding passage and cow cubicle accommodation and associated site works; (4) permission to roof existing cow collection yard at the farm premises Rathleg, Castlerea, County Roscommon.

66. In the second named applicant's submission dated 30^th January 2023 (as set out previously), detailed and comprehensive submissions were made. These were assessed by the County Council. The Planning Report (from the Area Planner/Assistant Planner Ms. Karen Dunleavy dated 20^th February 2023 and endorsed by the Senior Planner, Ms. Mary Grier on 21^st February 2023) inter alia describes the site and recites the description of the development as retention permission to (1) retain milking parlour shed; (2) retain roofed dungstead (3) retain and complete slatted shed with feeding passage and cow cubicle accommodation and associated site works; (4) permission to roof existing cow collection yard at Rathleg, Castlerea, County Roscommon. The Planning Report then refers to the planning history, pre-planning, planning policy, and consultations with the Environment Department which did not object to the proposed development subject to standard conditions (which is a reference to a report from the Environment Department (Gerard Hannon) dated 16^th February 2023 of the County Council to the Senior Planner.

67. The Planning Report dated 20/21 February 2023 summarises the submissions/observations received as follows:

"Three submissions were received in relation to this planning application raising a number of issues including proximity of development from dwelling; nutrient management plan; public health issues; noise due to machinery; impact on residential amenity; concerns with odours; visual impact; impact on privacy and sunlight. All matters raised in the submission have been considered."

68. The report addressed the reference to "all matters in the submission have been considered" by doing so under the following headings: Environmental Impact Assessment and Appropriate Assessment; Planning Assessment which addressed Strategic Assessment (Policy Issues), Site Specific Assessment (which as set out later in this judgment dealt with the issue of the proximity of the applicant's dwelling house), Services, Development Contributions and a recommendation which listed the 8 conditions (with reasons) and the advice notice in relation to condition 7.

69. As stated, this report from Area Planner Ms. Karen Dunleavy of 20^th February 2023, was adopted and endorsed by the Senior Planner Ms. Mary Grier on 21^st February 2023, where immediately after the reference to the 8 conditions and advice note in relation to condition 7 and the signature of Ms. Dunleavy and date, it is recited that "[h]aving considered the application details and the various reports and recommendations applicable, I agree with the recommendation of the Area Planner and therefore recommend that planning permission is granted." The report was then signed by Ms. Grier and dated as 21^st February 2023.

70. By order of the Chief Executive (Manager's order) in PL/157/23 signed by the Acting Director Services- Roads and Transportation, Active Travel, Planning & Boyle MD Area Manager on 21^st February 2023, the nature of the application is described as 'RETENTION PERMISSION' to: (1) retain milking parlour shed; (2) retain roofed dungstead (3) retain and complete slatted shed with feeding passage and cow cubicle accommodation and associated site works; (4) PERMISSION to roof existing cow collection yard at Rathleg, Castlerea, County Roscommon, and it was ordered that:

"By virtue of the powers vested in me by the Local Government Acts, 1925-2019, and the Planning and Development Act 2000 (as amended) and having considered the various submissions and reports in connection with the application described above [5] it is hereby ordered that the decision of Roscommon County Council upon the application is to Grant RETENTION PERMISSION & PERMISSION for the development of the land which is the subject of the Planning Application subject to the conditions (if any) listed in the Schedule hereto.

IT IS FURTHER ORDERED that RETENTION PERMISSION & PERMISSION be granted in accordance with the said decision unless an appeal against the decision which is not subsequently withdrawn is lodged with An Bord Pleanála."

71. The Chief Executive's Order was signed by the Acting Director Services- Roads and Transportation, Active Travel, Planning & Boyle MD Area Manager and dated 21^st February 2023.

72. As stated earlier, the notification of decision to grant retention permission & permission (subject to conditions) under section 34 of the 2000 Act dated 22^nd February 2023, the planning authority of the County Council granted 'retention permission' (1) to retain the milking parlour shed (2) retain the roofed dungstead (3) retain and complete the slatted shed with feeding passage and cow cubicle accommodation and associated site works and permission to roof the existing cow collection yard at Rathleg, Castlerea, County Roscommon, subject to eight (8) conditions which were enclosed in a schedule with the notification (which had adopted the conditions and reasons for the conditions set out in the Planning Report). As set out earlier in this judgment, each of the eight conditions contains separate reasons explaining the purpose for the condition.

73. These letters of notifications of the decision dated 22^nd February 2023 were sent to the applicants to this judicial review application. They recited that "[t]he RETENTION PERMISSION & PERMISSION referred to in this notice shall be issued by way of a Final Grant as soon as may be but not earlier than 3 working days after the expiration of the period for the making of an appeal to An Bord Pleanála if there is no appeal before An Bord Pleanála on the expiration of the said period. (No development shall commence until Final Grant has been issued)."

74. The notification stated the date of the decision as being 21^st February 2023 and included the decision and the eight conditions to same. It also stated that an appeal against the decision could be made to the Board, giving its address and setting out the requirements as follows:

"An Appeal shall:

(a) Be made in writing.

(b) State the Name and address of the appellant.

(c) State the subject matter of the Appeal.

(d) State, in full, the grounds of Appeal and the reasons, considerations and arguments on which they are based.

(e) Be accompanied by the appropriate fee as required by the Planning & Development Regulations 2001 (as amended). See attached Schedule entitled "Schedule of Fees payable to [A]n Bord Pleanála."

(f) In the case of an appeal by a person who made submissions or observations in accordance with the permission regulations, be accompanied by an acknowledgement by the planning authority of receipt of the submissions or observations.

(g) The Appeal must be received by An Bord Pleanála within 4 weeks beginning on the date of the making of the decision by the Planning Authority.

An appeal which is not made in the prescribed manner will be deemed to be invalid".

75. Consequent upon this decision-making process and the reasons set out therein, the applicants were in fact enabled on 20^th March 2023 to submit a comprehensive appeal to the Board (the details of which are set out earlier in this judgment) and, thereafter, to draft a comprehensive Statement of Grounds dated 12^th April 2023 (which has also been set out earlier in this judgment). Therefore, the County Council's decision-making process satisfied the requirement that the reasons given were adequate to enable an interested party, such as the applicants, to know why a decision went the way it did, and whether there existed any legitimate basis for seeking to mount a challenge.

Preliminary Examination

76. At paragraphs 27-42 (under the sub-heading 'Breach of EU and National Law: Preliminary Examination'), the Applicants refer inter alia to an alleged failure to carry out a preliminary examination of a sub-threshold development in order to assess and determine whether to require a screening for EIA. This ground was not pressed on behalf of the applicants at the hearing before me. The development applied for was not of a development class listed in either Parts 1 or 2 of Schedule 5 of the 2001 Regulations or on a subthreshold basis and the criteria in schedule 7 did not apply.

77. Further and as recorded in the Planning Report from Area Planner, Ms. Karen Dunleavy, dated 20^th February 2023 (as adopted and endorsed by the Senior Planner Ms. Mary Grier on 21^st February 2023), in addition to stating that the application was not accompanied by an EIAR, it referred to details of an SAC and an SPA, 4.1km north of the application site and confirmed that there was no AA (Appropriate Assessment) and stated that "[h]aving regard to the nature and scale of the proposed development, the distance from designated sites and the absence of any connectivity to any sensitive location, there is no real likelihood of significant effects on the environment arising from the proposed development. A screening determination is not required."

The question of validity

78. At paragraphs 43 to 48 of the Statement of Grounds, the applicants set out what might be described as 'validation grounds' and 'merits-based grounds'.

79. There are two central issues in relation to the main validity argument in relation to the site notice: the first matter relates to the facts which are set out by the respective parties at the hearing before me; the second matter relates to the legal consequences arising from those facts.

The 2001 Regulations

80. Section 33(2)(b) of the 2000 Act refers for example to the promulgation of ministerial regulations requiring any applicants to publish any specified notices with respect to their applications.

81. Article 17 of the 2001 Regulations addresses the notice of a planning application and Article 17(1) provides that an applicant shall within the period of 2 weeks before the making of a planning application - (a) give notice of the intention to make the application in a newspaper in accordance with article 18, and (b) give notice of the intention to make the application by the erection or fixing of a site notice in accordance with article 19.

82. Article 17(1)(b) of the 2001 Regulations, therefore, refers to the requirement that an applicant for planning permission within the period of 2 weeks before the making of a planning give notice of the intention to make the application by the erection or fixing of a site notice in accordance with article 19 of the 2001 Regulations.

83. Article 26 of the 2001 Regulations provides for the procedure on receipt of a planning application.

84. Article 26(1) provides, for example, that upon receipt of a planning application, a planning authority shall consider whether an applicant has complied with the requirements of articles 18, 19(1)(a) and 22 (and, as may be appropriate, of articles 15J, 24 or 25).

85. Article 26(2) provides that where a planning authority considers that a planning application complies with the requirements of articles 18, 19(1)(a) and 22 and, as may be appropriate, of article 24 or 25, it shall stamp each document with the date of its receipt and send to the applicant an acknowledgement stating the date of receipt of the application. After various publication (including on-line) and notification requirements, Article 29(1)(a) of the 2001 regulations provides that any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of 5 weeks beginning on the date of receipt by the authority of the application.

86. Various documents which have been exhibited in this application for judicial review, for example, the Planning Application Form, (beginning on page 112 of Booklet 1 of 3) and a copy of the Site Notice (on page 164 of Booklet 2 of 3) both of have been date stamped by the Planning & Development Section of Roscommon County Council as "19 DEC 2022 22-672", suggest that the planning authority was satisfied that the planning application complied with the requirements of articles 18, 19(1)(a) and 22 of the 2001 Regulations. Though, these provisions are subject to the provisions of Article 26(4) of the 2001 Regulations, referred to below. These documents also contain, on their face, the following watermark:

"Roscommon County Council, Planning Authority-Viewing Purposes Only !"

87. Article 19 deals with a site notice and refers inter alia to the required contents and position of "a site notice erected or fixed on any land in accordance with article 17(1)(b)". [6] For example, Article 19(1)(a) of the 2001 Regulations provides that a site notice erected or fixed on any land or structure in accordance with article 17(1)(b) shall be (a) in the form set out at Form No. 1 of Schedule 3, or (b) a form substantially to the like effect.

88. In this case, as just referred to, in the Planning Application Form (which is date stamped by the Planning & Development Section of Roscommon County Council as "19 DEC 2022 22-672" with the watermark: 'Roscommon County Council, Planning Authority-Viewing Purposes Only !'), paragraph 21 (on page 121 of Booklet 1 of 3) refers to "Details of Public Notice" and sets out the following:

Approved Newspaper in which notice was published	ROSCOMMON HERALD
Date of publication	13/12/2022
Date on which site notice was erected	18/12/2022

89. After the application fee details at paragraph 22, the following is set out in the form:

"I hereby declare that, to the best of my knowledge and belief, the information given in this form is correct and accurate and fully compliant with the Planning and Development Act 2000, as amended, and the Regulations made thereunder" (emphasis/bold is in the original document).

90. Immediately, under this declaration the document is signed by the Agent of the Notice Party and dated "19-12-2022".

91. Also, a copy of the Site Notice (on page 164 of Booklet 2 of 3) is date stamped by the Planning & Development Section of Roscommon County Council as "19 DEC 2022 22-672" with the watermark: 'Roscommon County Council, Planning Authority-Viewing Purposes Only !'. That copy of the Site Notice is also signed by the Agent of the Notice Party, Deane Associates, Chartered Building Engineers and states at paragraph numbered 6: "Date of erection of site notice: 18/12/2022" (emphasis/bold in the original document).

92. Article 20 of the 2001 Regulations makes provision for time limits for a site notice and provides that in addition to the requirements of Article 17(1)(b) of the 2001 Regulations, a site notice shall be maintained in position on the land or structure concerned for a period of 5 weeks from the date of receipt of the planning application by the planning authority, shall be renewed or replaced if it is removed or becomes defaced or illegible within that period and shall be removed by the applicant following the notification of the planning authority decision under Article 31.

93. Article 26(3) provides that where, following consideration of an application under Article 26(1), a planning authority considers that - (a) any of the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of articles 15J or 24 have not been complied with, or (b) the notice in the newspaper or the site notice, because of its content or for any other reason, is misleading or inadequate for the information of the public, the planning application shall be invalid.

94. Article 26(4) provides that where, on inspection of the land to which the application relates, the planning authority considers that the requirements of articles 17(1)(b), 19 or 20 have not been met, or the information submitted in the planning application is substantially incorrect or substantial information has been omitted, the planning application shall, notwithstanding the fact that an acknowledgement has been sent to an applicant in accordance with sub-article (2), be invalid.

The question of 'exceptional circumstances'

95. It is argued that the applicants' circumstances come within the ambit of exceptional circumstances contemplated in Duffy v Clare County Council [2023] IEHC 430.

96. The "exceptions" referred to in Duffy included situations referred to at paragraph 25 of the judgment of Humphreys J., where "one can go straight to court if there is an inevitability of injustice, or something that taints the process in an ongoing way, or some flagrant breach of fairness that deprives the person of any real first-instance consideration and warrants immediate intervention" [7] and at paragraph 28 where reference was made to both the legal and statutory "requirement to exhaust remedies does not create some lawless zone whereby first instance decision-makers can do what they like, as the applicant in effect submitted. The procedure of administrative appeal is the check and balance, with judicial review of the first instance decision available in truly exceptional circumstances. That demonstrates that the legal system has to accommodate multiple objectives, including workability and the orderly functioning of the administrative system, and husbandry of judicial resources, rather than elevating total and immediate judicial scrutiny of everything that moves as being the sole objective".

97. It is forcefully argued on behalf of the applicants that, as elderly persons who are retired, the applicants did try to appeal and notwithstanding the understandable error which led, temporarily, to insufficient funds being in the account from which the cheque to the Board was drawn for their appeal, the applicants did not delay (or "sleep on their rights": Hughes and Sinclair v Dublin City Council & Ors [2024] IEHC 344 per Humphreys J. at paragraph 1). Further, it is argued that the alleged defect which they identified at a specific point in time in relation to the site notice tainted the process throughout. It is also argued that the County Council did not address the site notice issue in the Planning Report and that the response in the Affidavit of Mary Grier (Senior Planner in the Planning Department of the County Council) sworn on 13^th October 2023 was insufficient and further that the factual situation of the applicants in this case was different to that which applied in Morehart v Monaghan County Council & Anor [2024] IEHC 100, where inter alia Mr. Morehart did not appeal because he was outside the jurisdiction and therefore was not aware of the planning application.

The submissions of the second named applicant

98. The position of the second named applicant, in her submission before the planning authority (on 30^th January 2023) and notably also before the Board on 20^th March 2023

(which was deemed invalid) and in her Affidavit sworn on the 12^thApril 2023 grounding this application for judicial review (paragraph 13) is that the site notice for the proposed retained and new development was not erected until 5^th January 2023 even though the actual site notice stated that it was erected on 18^th December 2022.

The response of the planning authority

99. This matter and, in addition, the fact of the site notice being in situ for the requisite period of five weeks is addressed in paragraph (6)(a) of the Affidavit of Mary Grier (Senior Planner in the Planning Department of the County Council) sworn on 13^th October 2023, as follows:

"The Applicants state that the site notice was not erected until the 5^th day of January 2023, when it should have been erected on the 18^th day of December 2023. I say and believe that an inspection of the site notice was carried out by the assigned planner on the 17^th February 2023 and the required site notice was in place at the that time, well beyond the statutory 5 week and nine day minimum period such notices must be kept in place. The additional nine days were required as the notice period covered the 24^th day of December to the 1^st day of January and the relevant statutory provision expressly stipulates that that period, both days inclusive, shall be disregarded in the calculation of time for notices. Resources do not allow the Respondent to verify whether site notices are erected on the day that they are required to be erected. For the purposes of considering the Notice Party's application and the Applicants' submissions, there was no evidence that the site notice was not erected at [the] required time and the Respondent was entitled to proceed on the basis that it was erected as required. The Applicants state, at paragraph 14, that they took a photograph of the site notice on the 6^th day of January 2023. This, however, does not prove that the notice was not in place from the required date, merely that it was in place on the day that photographed it".

100. The matter is also referred to in Mary Grier's supplementary replying Affidavit sworn on 29^th April 2024 at paragraph 5 as follows:

"Erection of site notice

I say that it is disputed that the explanation offered is "somewhat contradictory." The Applicants have not provided any evidence that the site notice was not in place on the 18^th day of December 2022. The purpose of a site notice is to inform the public of the proposed development and alert them to its nature and content. As appears from the engagement of the Applicants, the notice that was in place served its purpose".

101. Generally, there are two time periods which are relevant when a site notice is being considered as part of the process of making an application for planning permission (and retention permission): the first refers to 'within the period of two weeks' before the making of a planning application', i.e., Article 17(1)(b) of the 2001 Regulations; the second is in addition to this first period and refers to a site notice being maintained in position on the land or structure concerned for a period of five weeks from the date of receipt of the planning application by the planning authority, i.e., Article 20 of the 2001 Regulations.

102. Both are relevant in this case.

103. In terms of the site notice being erected within the period of 2 weeks before the making of a planning application, Mrs. Maureen Larkin's evidence is that the site notice for the proposed retained and new development was not erected until 5^th January 2023 even though the actual site notice stated that it was erected on 18^th December 2022; in terms of the five week period Ms.Mary Grier's evidence is that the County Council/Planning Authority inspected the lands and confirmed that the site notice was in situ during (and beyond) the requisite five week period.

104. The response of the County Council to the second named applicant's evidence that the site notice was not erected until 5^th January 2023, even though the actual site notice stated that it was erected on 18^th December 2022 is first, that resources did not allow it to verify whether site notice was erected on the day that it was required to be erected; second, for the purposes of considering the Notice Party's application and the Applicants' submissions, there was no evidence that the site notice was not erected at the required time and the planning authority was entitled to proceed on the basis that it was erected as required; third, the photograph of the site notice taken by the applicants on 6^th January 2023 does not prove that the notice was not in place from the required date, merely that it was in place on the day that it was photographed it; fourth, the site notice served its purpose as evidenced by the applicants' participation in the process.

105. On the evidence before me, the County Council appear not to be able to definitively dispute the assertion by the second named applicant that the site notice for the proposed retained and new development was not erected until 5^th January 2023 even though the actual site notice stated that it was erected on 18^th December 2022. Further, it is not a question of there being a factual dispute because the County Council's response is that "resources do not allow the Respondent to verify whether site notices are erected on the day that they are required to be erected". The fact that this statement is generalised and not particularised to the precise situation and circumstances raised in Mrs. Larkin's evidence is, in my view, less than satisfactory. It is, further, somewhat perplexing that resources are referred to in a generalised way for 'within the period of two weeks' but not for the 'period of five weeks from the date of receipt of the planning application by the planning authority'. Additionally, to state immediately thereafter that "there was no evidence that the site notice was not erected at the required time and the Respondent was entitled to proceed on the basis that it was erected as required" seeks to discount the contrary evidence of Mrs. Larkin, which has been made on three separate occasions (before the planning authority, before the Board and before the court) with no apparent basis for so doing.

106. That said, and whilst I find this response by the County Council to be sub-optimal, the question arises as to whether this matter, in the context of the other matters referred to, is sufficient such as to entitle the applicants to a remedy in these proceedings. That is the key consideration for me. Judicial review involves the exercise of a discretionary supervisory jurisdiction and for the following reasons, I do not consider that the applicants have established the exceptional circumstances which warrants a direct challenge by way of judicial review to the first instance decision of the County Council rather than the valid invocation of the alternative remedy provided by the statutory appellate process of an appeal to the Board. In brief, for the following reasons, I do not consider that the applicants are entitled to a remedy by way judicial review in this application.

107. Applying Mrs. Larkin's statement that the site notice for the proposed retained and new development was not erected until 5^th January 2023, even though the actual site notice stated that it was erected on 18^th December 2022 and the County Council's failure to confirm that the notice was erected within the period of two weeks before the making of a planning application giving notice of the intention to make the application, the combination of Articles 17(b)(1), 26(3) and 26(4) of the 2001 Regulations require, however, the planning authority in the exercise of its discretion to come to the view as to whether or not the site notice failed to comply with the 2001 Regulations such that the planning application shall be invalid. It clearly did not do so, and the documents as stamped and the fact of the notification of the decision to issue the retention permission and the planning permission confirms, the view taken by the County Council was that the application for retention permission/permission was valid. However, that is not the end of the matter. The question arises as to whether the site notice/validity question and the other matters raised by the applicants come within 'exceptional circumstances' to justify a direct challenge by way of judicial review to the first instance decision of the County Council rather than the invocation of the alternative remedy of an appeal to the Board.

108. I do not consider that the applicants were prejudiced in the making of their initial submissions/observations in the letter of objection dated 30^th January 2023 – which by any standard, were comprehensive and detailed - by the apparent failure of the County Council to confirm that the site notice was erected 'within the period of two weeks' prior to the making of the application together with the apparent ability of the County Council to confirm that the site notice was erected during (and beyond) the 'period of five weeks from the date of receipt of the planning application by the planning authority'. It is also noted, for example, that the ninth ground of the second named appellant's appeal to the Board (which appeal was deemed to be invalid) refers to the site notice and states as a ground of appeal that "the site notice for this development was not erected until 05.01.2023 even though the actual site notice stated that it was erected on 18/12/2022 (Copy Site Notice enclosed) i.e. Regulation 17(1)(b) of the Planning and Development Regulations 2001 & [2006] [sic.] was not adhered to." While the fact of this matter being included in the appellants' appeal to the Board (which was itself deemed invalid) is not, in and of itself, dispositive of the question as to the Board's jurisdiction to address this issue, for the reasons set out later in this judgment, the Board, in my view, had (and has) a jurisdiction to deal with this issue and the other issues raised by the applicants and, therefore, this provided an adequate alternative remedy to the applicants.

109. Having regard to the second named applicant's statement that the site notice for the proposed retained and new development was not erected until 5^th January 2023 and the respondent's failure to confirm that it was erected within the period of two weeks before the making of a planning application, the purpose of requiring the erection of a site notice within the period of two weeks before the making of a planning application is to alert and notify persons who are likely to be interested in that particular development as to the general nature of the development and to consider whether they should make a submission or observation.

110. The evidence before me is that the applicants were not prejudiced in any way in the making of their submissions and observations by any failure of the County Council/Planning Authority to confirm that the notice was erected within the period of two weeks before the making of a planning application give notice of the intention to make the application. Further in this regard, unlike the period of five weeks, Article 17(1)(b) of the 2001 Regulations does not require that the site notice had to be erected two weeks prior to the submission of the planning application and be in situ throughout that two-week period: see Mulhaire v An Bord Pleanála [2007] IEHC 324 per Birmingham J. (as he then was) at paragraph 14. Rather, the reference in the Regulations is to "within the period of two weeks". In addition, there is no evidence before me that this situation gave rise to any other prejudice where, for example, a number of potential objectors lost out on their opportunity to object: see Mulhaire v An Bord Pleanála [2007] IEHC 324 per Birmingham J. (as he then was) at paragraph 17 and distinguishing the decision of the High Court (Peart J.) in Marshall v Arklow Town Council [2004] 4 I.R. 92.

111. Separately, the County Council's confirmation that the site notice was erected during (and beyond) the period of five weeks from the date of receipt of the planning application by the planning authority, has not been disputed. The Affidavit of Mary Grier (Senior Planner in the Planning Department of the County Council) sworn on 13^th October 2023 confirms that the County Council/Planning Authority inspected the lands and confirmed that the site notice was in situ during and beyond the requisite five-week period.

112. Further in this regard, in Dunne v An Bord Pleanála [2006] IEHC 400, a similar issue to that raised by the applicants in these proceedings also arose in that case where there was a dispute as to whether the site notice was erected in accordance with Articles 17(1)(b) (i.e., prior to the making of the application) and 19 of the 2001 Regulations and, also, the appropriate colour of the notice. The High Court (McGovern J.) did not find it possible to resolve the issues of the site notices in the affidavits, but observed that "it was quite clear from the affidavits and exhibits and the submissions which have been made that both the first and second named applicants were aware that an application to develop the site was made by the second named respondent and they were aware of this within sufficient time to enable them to object to the proposed development" and they, therefore, were not prejudiced.

113. At paragraph 39 of his judgment, McGovern J. stated:

"I have already indicated that it is not possible to resolve the dispute as to the date on which the notice went up...

...In any event I am satisfied that there was no prejudice to the applicants because they knew in sufficient time of the development, and they were able to make objections before the planning authority and subsequently appeal the matter to An Bord Pleanála. As the remedy of certiorari is a discretionary remedy, I accordingly exercise my discretion against making any order on that issue".

114. The applicants' situation is closer to the position in Dunne v An Bord Pleanála [2006] IEHC 400 than that which arose in Morehart v Monaghan County Council & Anor [2024] IEHC 100.

115. Further, in considering these matters, I have applied Mrs. Larkin's statement that the site notice for the proposed retained and new development was not erected until 5^th January 2023, even though the actual site notice stated that it was erected on 18^th December 2022 and the County Council's failure to confirm that the notice was erected within the period of two weeks prior to the making of a planning application giving notice of the intention to make the application (and separately, the County Council's confirmation that the site notice was erected during (and beyond) the period of five weeks from the date of receipt of the planning application by the planning authority).

Additional matter

116. The documents exhibited before me at the hearing of this judicial review included several copy printouts of 'eplan-Online Planning details' in relation to previous planning applications and also in the context of the application, the subject of this challenge by way of judicial review. For example, on page 162 of Book 2 of 3 there is a copy extract dated and timed as "12/01/2023, 22:40". It was entitled "ePlan-Online Planning Details" and "Planning application details ref: 22672 Roscommon County Council". It recited further details such as "Received 19/12/2022" and "Decision 21/02/2023" and in the box area it refers to "Validated date: 19/12/2022." (Underlining added in this judgment).

117. In line with the 2001 Regulations, generally, after an application for permission and/or retention permission is received, the usual practice of a planning authority is to check that an application complies with the various provisions of the 2001 Regulations and to confirm that by stamping the documents and in an acknowledgement letter. If not invalid, the decision is made and notification of the decision is sent to the relevant parties. That, essentially, is what happened in this case.

118. Whilst this additional matter does not arise from the material which was before me, it is information which is publicly available and can be accessed through An Bord Pleanála's website on the page which in fact records the applicants' appeal as being deemed invalid and it provides a link to the County Council's portal and the documents there are in the same format as the documents set out at pages 162 and 163 of Book 2 of 3 which were exhibited before me.

119. As stated, the purpose of a site notice is to give members of the public who may be concerned with the development an idea whether the development looked for is the kind that may affect their interest. I have, in this judgment, referred to the following: the statement of the second named applicant that the site notice was not erected until 5^th January 2023 even though the actual site notice stated that it was erected on 18^th December 2022, the County Council's failure to confirm that the notice was erected within the period of two weeks prior to the making of a planning application giving notice of the intention to make the application and, separately, the County Council's confirmation that the site notice was erected during and beyond the period of five weeks from the date of receipt of the planning application by the planning authority. I have found that the applicants in this case were not prejudiced in the making of their submissions and observations, notwithstanding the failure of the County Council/Planning Authority to confirm that the notice was erected within the period of two weeks before the making of the planning application. As will be set out presently, I am also of the view that the Board has jurisdiction to deal with site notice/validity issue and the other issues raised by the applicants and, therefore, this provided an adequate alternative remedy to the applicants.

120. However, and notwithstanding that the following matter does not impact on my decision in this judicial review, I consider it to be sufficiently important to refer to it.

121. As stated, some copies of online documents were exhibited in the papers before me in relation to this planning application in Reference: 22672.

122. When accessed via the Board's portal via a link to the County Council's portal, the online details of this planning application contain several other documents some of which are County Council generated documents including, in relation to this planning application, inter alia three documents referenced as "Acknowledgement/Validation Letter", "Validation Check List" and "Validation Check List (GRANT)".

123. The document entitled "Validation Check List" is pink in colour and has handwritten in a box, the name of the notice party, the date the application was submitted (in this case "19/12/22") and the reference number given to this application, "Reg. No. PD: 22/672". There are two additional boxes to be ticked one is marked 'VALID []' and the other is marked 'INVALID []'. In this case, the box marked 'VALID' is ticked.

124. The following is then set out:

"Validation Checklist for files received on or after 31 March 2007

In accordance with Planning and Development Regulations 2001 & 2006

This does not form part of the application and does not purport to be an interpretation of the regulations.

For indication only. RCC internal use only.

If any of the questions below are marked NO the application will be invalid by reason of non-compliance with the Regulations."

(The emphasis in bold is in the original document on-line).

125. This pink document then sets out, in tabular format, a checklist with the 2001 Regulations covering the following matters:

· Contents of the Application;

· Notice in Newspaper;

· Site Notice; [8]

· Site Location Map;

· Layout Plan;

· Drawings of Floor Plans, Elevations, Sections;

· Miscellaneous;

· Appropriate Fee in accordance with Schedule 9;

· Electricity Companies.

126. Taking the example of the site notice, the pink coloured document (Validation Check List) sets out the following:

Site Notice	Yes	No	N/A	Comments	Regs
Copy of site notice provided	Ö				22(2)(a)
In accordance with Form No.1 of Schedule 3 or similar	Ö				19(1)(a)
Inside the 2 week rule	Ö				17(1)(b)
Yellow Background (if within 6 months of valid application)			Ö		19(4)
Adequate content	Ö

127. As it happens, none of the boxes in any of the matters checked, including the site notice, are marked "no".

128. Notwithstanding that the above matters have no bearing on this judgment, the County Council should clarify this issue when final orders are to be made on the next date, and whether the answer "yes" to "inside the 2-week rule" relates to any of the matters deposed to on affidavit by the County Council in the case before me.

Jurisdiction of An Bord Pleanála

129. The second aspect of the case made on behalf of the applicants dealing with the question of validity and the site notice was in response to the principal argument of the County Council that the applicants had failed to exhaust the alternative remedy of an appeal to An Bord Pleanála.

130. In brief, it was argued that that the Board does not have jurisdiction to deal with questions as to validity and the site notice and that its jurisdiction arises under section 37 of the 2000 Act which is an appeal from a decision under section 34 of the 2000 Act which in turn is a separate decision to that dealt with under Article 26 of the 2001 Regulations and not one caught under section 34 of the 2000 Act, i.e., it was argued that the Article 26 process dealing with 'validity' is separate to the process under sections 34 and 37 of the 2000 Act and that the process of addressing validity under Article 26 of the 2001 Regulations is not a decision under section 34 of the 2000 Act.

131. The underlying principle seeking to be advanced in this proposition made on behalf of the applicants has, however, been addressed in a number of decisions of the Superior Courts to the effect that any issue in relation to the validity of an application for planning permission can be considered by the Board on any appeal to it and a decision of the Board on an appeal involves a decision as to whether or not there was a valid application for planning permission in the first place and "[t]herefore any questioning of the validity of the decision of the Board on the appeal can include a challenge to the validity of the application for planning permission": per Costello J. (as she then was) in South-West Regional Shopping Centre v An Bord Pleanála [2016] IEHC 84 at paragraphs 83, 84, 85 and 86.

132. Further, in McCallig v An Bord Pleanála (No. 1) [2013] IEHC 60, whilst the challenge was to An Bord Pleanála's decision, the main grounds related to the failure of Donegal County Council, as the first instance planning authority, to deem Mr. Molloy's initial application for permission for a proposed wind-farm development near Glenties in County Donegal to be invalid for non-compliance with the provisions of section 34 of the 2000 Act and Article 22(2)(g) of the 2001 Regulations in that the proposed application for development included some of Ms. McCallig's lands and she had not consented to their inclusion in the application.

133. In an argument which is similar to the one made on behalf of the applicants in this case, the Board and Mr. Molloy had in fact sought to argue in McCallig that it was not entitled to look behind the planning authority's initial decision to accept the application as a valid application and the court records this argument as being that it - the Board "could consider the matter only on the merits by reference to planning and development criteria, and it could not look behind the statutory acknowledgment sent by [Donegal County Council] to [Mr. Molloy] pursuant to the provisions of [A]rticle 26(2) of the Planning and Development Regulations 2001, (as amended)". (Underlining added in this judgment).

134. The High Court (Herbert J.), however, did not accept this argument to the effect that the Court "should not consider an application for judicial review taken against the respondent [i.e., An Bord Pleanála] rather than the first notice party [i.e., the planning authority - in this instance, Donegal County Council] where the basis of the application is some alleged infirmity in the procedures adopted by the first notice party during the first stage of the two-stage planning process".

135. The Court accepted as correct the following passage from Hynes v An Bord Pleanála & Ors (Unreported, High Court, McGuinness J., 10^th December 1997) at paragraph 62 of the judgment:

"[t]here remains the question of the validity of the Developer's original application. While the judgment of Costello J. in the O'Keeffe case makes it clear that it is the decision of the Planning Authority that founds the jurisdiction of An Bord Pleanála, no question of the validity of the original application arose in that case, and I would not interpret the judgment as meaning (as suggested by Mr. Collins) that An Bord Pleanála could simply ignore a situation where the original planning application was clearly invalid. I accept that the primary duty of vetting a planning application and ensuring that it is in accordance with the relevant planning regulations lies with the Planning Authority but one must ask whether An Bord Pleanála would have jurisdiction to adjudicate on an appeal where the application on its face was one which would be considered invalid under the criteria set out by the Supreme Court in the Frascati case? Surely the answer must be no, particularly bearing in mind the cross reference from s. 26(5) to s. 26(1) of the Act of 1963. It seems to me, therefore, that I should consider the validity or otherwise that the Developer's original planning application."

136. The point of principle was also addressed by the High Court (Hyland J.) in Sweetman v An Bord Pleanála & Ors [2021] IEHC 16, at paragraphs 27 to 30, as follows:

"(27) Next, in respect of the argument that this is a hypothetical argument given that no landowner or any other person has complained about their lack of consent, the requirements of Article 22(2)(g) of the PDR in my view go to the jurisdiction of the Board to deal with the application. Section 34 of the 2000 Act provides, that where an application is made to a planning authority in accordance with permission regulations (my emphasis) for development of land, and all requirements of the regulations are complied with, the authority may decide to grant the permission, subject to or without conditions,

or may refuse it.

Section 37(1)(b) provides that where an appeal is brought against a decision of a planning authority, the Board shall determine it as if it had been made to the Board in the first instance and s. 34(1) shall apply in relation to the determination of an application by the Board on appeal. Therefore the Board must satisfy itself that the application has been made in accordance with permission regulations. The cases of Hynes v An Bord Pleanála & Ors [1998], (Unreported, High Court, 10 December 1997, McGuinness J.) and McCallig v. An Bord Pleanála and Others [2013] IEHC 60 make it clear that the Board should consider whether it has jurisdiction to adjudicate on an appeal where the application on its face is one that would be considered invalid.[ [9]]

(28) Regulation 26 of the PDR 2001 provides that "on receipt of a planning application, a planning authority shall ... consider whether the applicant has complied with the requirements' of Articles 18,19(1)(a) and 22..."

(29) Regulation 26(3) makes it clear that where, following consideration of an application under sub-article (1), a planning authority considers that any of the requirements of, inter alia, Articles 18, 19(1)(a) or 22 have not been complied with, the planning application shall be invalid.

(30) Because the consequences of a planning application submitted in breach of Article 22(g) are that the application is invalid, and because those provisions are fully applicable to a consideration of an appeal by the Board, this is not a case where a complaint about lack of consent is hypothetical absent a complaint by an affected landowner. The question of consent goes to the heart of the Board's jurisdiction to consider the application. Therefore, if any issue is raised about the existence of that jurisdiction, as has been done here by the applicant, I am satisfied that the issue is not hypothetical and should be determined. I am reinforced in that conclusion by the fact that the requirement to obtain consent is a mandatory rather than a directory requirement".

137. In Quinn & Eco Advocacy v An Bord Pleanála & Ors [2022] IEHC 699 at paragraph 33, the High Court (Humphreys J.) observed that challenges to interim decisions can be saved for the final decision: see Northeast Pylon Pressure Campaign Ltd v An Bord Pleanála [2016] IEHC 300; North Westmeath Turbine Action Group v Westmeath County Council [2020] IEHC 505; Spencer Place Development Company Ltd v Dublin City Council [2020] IECA 268. In Duffy v Clare County Council [2023] IEHC 430, the High Court (Humphreys J.) at paragraphs 25 to 29 of its judgment stated that the applicant's claim to be entitled to sue the council was based on the misconception that the first-instance decision was a nullity because it mishandled the appropriate assessment ("AA") issue. Humphreys J. observed that this was not the sort of legal irregularity that justified "by-passing administrative appeal" [10] and that calling AA "jurisdictional" did not solve that problem.

138. In addition to the above matters, the applicants also raised other aspects of compliance with the 2001 Regulations.

139. Article 23(1)(c) of the 2001 Regulations provides that plans, drawings and maps accompanying a planning application in accordance with article 22 shall all be in metric scale and comply with the following requirements: (c) the site layout plan and other plans shall show the level or contours, where applicable, of the land and the proposed structures relative to Ordnance Survey datum or a temporary local benchmark, whichever is more appropriate. These requirements were satisfied by Drawing No. 103 (Revision PO) dated December 2022 entitled 'Site Layout'. This drawing stated referred to "90.00 Existing Levels to [sic.] Ordinance Survey Datum" and referred to various levels as per the requirements of Article 23(1)( c) of the 2001 Regulations.

140. Article 23(1)(f) of the 2001 Regulations provides that plans, drawings and maps accompanying a planning application in accordance with article 22 shall all be in metric scale and comply with the following requirements: (f) plans and drawings of floor plans, elevations and sections shall indicate in figures the principal dimensions (including overall height) of any proposed structure and the site, and site or layout plans shall indicate the distances of any such structure from the boundaries of the site (underlining added in this judgment). Again, the site was outlined in red in Drawing No. 103 (Revision PO) dated December 2022 entitled 'Site Layout' with dimensions and distances of all the structures, the subject of the retention application from the boundaries of the site, clearly shown in compliance with the 2001 Regulations.

141. The Planning Report summarises the submissions/observations received as follows:

142. As stated earlier in this judgment, the Planning Report addressed the reference to "all matters in the submission have been considered" by examining Environmental Impact Assessment and Appropriate Assessment; Planning Assessment which addressed Strategic Assessment (Policy Issues), Site Specific Assessment (which as set out in the judgment dealt with the issue of the proximity of the applicant's dwelling house), Services, Development Contributions and a recommendation which listed the 8 conditions (with reasons) and the advice notice in relation to condition 7.

143. Under the heading "Site Specific Assessment" and further sub-heading "Visual Impact, Siting and Design" the report inter alia summarised the submissions/observations received as follows:

"The slatted house to be retained and completed is stated to have a gfa of 592m²and will have a maximum heights of 7.5m. it is noted that issues relating to visual impact were raised in the third party submission. In examining this issue, it is relevant to note the location of the farm buildings which are the subject of this planning application, within a long established farmyard. Whilst the proximity of the nearest residential property (other than the applicants [11] house to the north of the subject site (planning ref. no. PD/)(/589 refers), the current proposal represents an expansion of an existing farm enterprise, of a scale and nature which is to be typically expected in the rural area. The nature of the structures proposed in this application are typical farmyard structures in this existing farmyard setting. In this context, the development is considered acceptable".

144. Whilst it is accepted that the applicants disagree fundamentally with this assessment, the question of proximity to their dwelling house was considered by the planning authority in its assessment.

Merits-based, errors and other grounds

145. As referred to earlier in this judgment when setting out the Statement of Grounds and the Statement of Opposition, there are several matters which, it is accepted on behalf of the applicants, approximate to 'merits-based' arguments on behalf of the applicants and some also relate to the conditions in the schedule of eight conditions in the planning permission.

146. Included in those 'merits-based' arguments were the EIA points referred to earlier and arguments in relation to the Nutrient Management Plan.

147. In addition, it is accepted by the County Council that the reference in condition 3 of the permission dated 21^st February 2023 to "[l]and spreading shall be carried out on the lands identified in the nutrient management plan submitted on the 16^th May 2022 only" is a typographical error which it intended to correct but that correction had been paused pending the applicants' initial appeal to the Board and thereafter this application for judicial review.

148. A further incorrect reference, albeit one that is not referred to or relied upon in the applicants' Statement of Grounds, relates to that in Condition 2(a) and (e) and "S.I. No. 32 of 2014 European Union (Good Agricultural Practice for the Protection of Waters) Regulations, 2014" which had been revoked and replaced at the time of the notification of decision on 21^st February 2023. The correct Regulations are referred to in Condition 4 and Condition 5 and it was clarified at the hearing that at the time of the decision on 21^st February 2023, the correct Regulations were the European Union (Good Agricultural Practice for the Protection of Waters Regulations 2022 (S.I. No. 113 of 2022, as amended).

149. Whilst the typographical error is unfortunate, it is not, in my view, a basis for granting the applicants either an order of certiorari or a declaration by way of judicial review and I accept the statement on behalf of the County Council that it is intended to correct that error when these proceedings are at an end.

150. It is accepted by the parties that the reference to Regulations which have in fact been revoked and replaced in Condition 2(a) and (e) of the notification of decision dated 21^st February 2023 is not a ground of challenge which has been relied upon in the applicants' Statement of Grounds. It is, therefore, not an issue enjoined in this application for judicial review.

151. However, a similar approach to the typographical error has been suggested to correct this matter. It seems to me that such an approach is correct particularly having regard to the fact that the County Council, in this case, is the statutory planning authority and the provisions of section 7(3) of the 2000 Act provide, in the context of the statutory planning register, that "the planning authority shall make the entries and corrections as soon as may be after the receipt of any application, the making of any decision or agreement or the issue of any letter, notice or statement, as appropriate."

152. As referred to earlier in this judgment in the context of the applicants' Statement of Grounds and the County Council's Statement of Opposition, many of the alleged grounds of complaint and challenge referred to by the applicants appear to be matters which can be raised by them and/or the planning authority (or others), if applicable and warranted, as part of an initial inquiry via the enforcement process in the planning code and, by virtue of section 34(13) of the 2000 Act (which provides that "[a] person shall not be entitled solely by reason of a permission under this section to carry out any development"), via the mechanisms in European Union (Good Agricultural Practice for the Protection of Waters Regulations 2022 (S.I. No. 113 of 2022, as amended), again if applicable and warranted. Hypothetically, this could arise if, for example, there was a concern about alleged non-compliance with the planning permission and its conditions over the entire range of matters which the permission relates to.

153. Equally, and as detailed earlier in this judgment, the applicants' submissions and objections before the planning authority, the Board, and, in this judicial review application are largely repeated and contextualise how the availability of an adequate or suitable alternative remedy through the statutory appeal to An Bord Pleanála should inform the exercise of my discretion in this application for judicial review. It is that issue which I now address.

An adequate (or suitable) alternative remedy & the exercise of discretion

154. There is a correlation between questions raised as to the jurisdiction of the Board to address the issues raised by the applicants, including questions as to the validity of the application made by the notice party, the merits-based arguments (just referred to), the requirement to exhaust the alternative remedy of an appeal to An Bord Pleanála and the exercise of discretion by the High Court on an application for judicial review.

155. It will be recalled that at paragraph 1 of the County Council's Statement of Opposition, which is verified by the Affidavit of Mary Grier, Senior Planner, the County Council's first ground of opposition states that "[t]he Applicants are not entitled to the reliefs sought by reason of having failed to exhaust the appeal procedures available to them."

156. The context of the applicants' attempt to appeal the County Council's decision dated 21^st February 2023 the Board are set out at paragraph 36 of the Affidavit of Maureen Larkin sworn on 12^th April 2023. The applicants sought to appeal the decision of the planning authority to the Board on 31^st January 2023 but the application was declined in circumstances where the accompanying cheque was returned because of insufficient funds as due to an oversight, explained by Mrs. Larkin, the particular account on which the cheque for the appeal fee was drawn, which was not often used, had moneys transferred from that account after the cheque was written but before it was cashed.

157. The Affidavit of the County Council's senior planning official Mary Grier sworn on 13^th October 2023 addresses the affidavits of the applicants sworn on 12^th April 2023 and "further verifies the matters pleaded in the Statement of Opposition and filed on behalf of the Respondent".

158. At paragraph 17 of her Affidavit, Mary Grier avers that "the content of paragraphs 36 of the grounding Affidavit are noted. As appears therefrom, the failure to exhaust the appeal procedure available to them was entirely that of the Applicants. It is submitted that the Applicants had formed an intention to appeal as they did not believe that the matters complained of herein were such as to justify the bringing of proceedings in judicial review, but rather were more appropriately to be dealt with by way of appeal to An Bord Pleanála". Earlier, in the context of conditions attached to the planning permission, the subject of this application, and previous planning permissions, Ms. Grier avers at paragraph 14 of her affidavit that "it is correct for the Applicants to observe that the conditions attached to this impugned decision differ from those which attached to the Notice Party's earlier grant of permission from 2011. The reason for this is that the Respondent has determined to omit conditions which relate to farming practices or impacts which are more properly and appropriately regulated by other regimes or which could of themselves give rise to impracticalities or difficulties with enforcement. The conditions which were applied to the impugned grant of permission are consistent with those used in more recent years concerning agricultural developments. The appropriate forum for challenging the adequacy of conditions is through An Bord Pleanála and not this Honourable Court".

159. I consider that the applicants were obliged to exhaust the available alternative appellate procedure to the Board and, as set out earlier, I do not consider that the applicants have established exceptional circumstances to allow the challenge to the first instance decision of the County Council and in circumstances where an appeal to the Board was made but was deemed invalid for the reasons just referred to.

160. Insofar as the parties are confined to the grounds as set out in their respective Statement of Grounds and Statement of Opposition, the County Council did not make any reference to the provisions of the legislative amendment contained in section 50A(3)(c) of the 2000 Act in its Statement of Opposition and whilst it was referred to in its written legal submissions, it cannot be relied upon by the Council. In any event, leave was granted by the High Court (Cregan J.) on 13^th April 2023 and no application was made to set aside that order, and, as referred to earlier, this legislative amendment is largely declaratory of the pre-existing common law position (albeit brought forward to the "leave stage" of an application for judicial review and put on a statutory footing) and whilst not determinative of Mr. and Mrs. Larkin's case, in those cases which involve section 50A(3)(c) of the 2000 Act, the 'general' discussion of the doctrine of exhaustion of alternative remedies is reflective, by analogy, of how that principle informs the exercise of the courts discretionary supervisory jurisdiction at the substantive hearing stage and are referred to in that context.

161. The applicable principles in relation to an adequate (or suitable) alternative remedy represent what could be described as established judicial review orthodoxy in the exercise of the High Court's discretion, which applies both in Ireland and the UK.

162. In LA v The Chief Appeals Officer & Ors, [12] the Court of Appeal [13] (in the judgment of Collins J. [14]) re-stated the development of the principle of alternative remedies in the exercise of judicial discretion in a judicial review application between the seminal decisions of Henchy J. in State (Abenglen Properties Ltd) v Dublin Corporation [15]and the review of the authorities carried out in EMI Records (Ireland) Ltd. and Ors. v Data Protection Commissioner [16] and observed that when a court is requested to adjudicate upon an argument that the availability of a statutory appeal or review bars access to the High Court's judicial review jurisdiction, it must consider "the nature and scope of that statutory remedy with a view to determining if, by reference to all relevant circumstances, it can afford the person who seeks to challenge the correctness of a decision an effective remedy in order to address his or her complaint." [17]

163. The court referred to the well-established jurisprudence which provided that the availability of alternative remedies constituted "a discretionary bar" to relief by way of judicial review. This was exemplified in the following oft-quoted extract from the judgment of Henchy J. in State (Abenglen Properties Ltd) v Dublin Corporation [18] where Henchy J. referred approvingly to an extract from the practice in the United States of America in 14 Am. Jur.2d, p.787 [19] before concluding that:

"where Parliament has provided a self-contained administrative and quasi-judicial scheme, postulating only a limited use of the Courts, certiorari should not issue when, as in the instant case, use of the statutory procedure for the correction of error was adequate (and, indeed, more suitable) to meet the complaints on which the application for certiorari is grounded." [20]

164. In EMI Records (Ireland) Ltd. and Ors. v Data Protection Commissioner, [21] the Supreme Court carried out an extensive review of the post-Abenglen jurisprudence Clarke J. (as he then was) made the following observations at paragraphs 4.8 to 4.10 of his judgment:

"4.8 Thus the overall approach is clear. The default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings. The reason for this approach is, as pointed out by Hogan J. in Koczan v Financial Services Ombudsman[ [22]], that it must be presumed that the Oireachtas, in establishing a form of statutory appeal, intended that such an appeal was to be the means by which, ordinarily, those dissatisfied with an initial decision might be entitled to have the initial decision questioned.

4.9 However, there will be cases, exceptional to the general rule, where the justice of the case will not be met by confining a person to the statutory appeal and excluding judicial review. The set of such circumstances is not necessarily closed. However, the principal areas of exception have been identified. In some cases an appeal will not permit the person aggrieved to adequately ventilate the basis of their complaint against the initial decision. As pointed out by Hogan J in Koczan, that may be so because of constitutional difficulties or other circumstances where the body to whom the statutory appeal lies would not have jurisdiction to deal with all the issues. Likewise, there may be cases where, in all the circumstances, the allegation of the aggrieved party is that they were deprived of the reality of a proper consideration of the issues such that confining them to an appeal would be in truth depriving them of their entitlement to two hearings.

4.10 However these and any other examples must be seen as exceptions to the general rule."

165. A similar approach is evident in the UK case law.

166. In R v Huntingdon District Council, ex p Cowan [1984] 1 WLR 501, at page 507, where an application for judicial review of a refusal of a local authority to grant a liquor licence and a music and dancing licence was sought despite a right of appeal to the Magistrates Court, Glidewell J. (as he then was) held that if other means of redress were conveniently and effectively available to a party, they ought ordinarily to be used before resort to judicial review:

"the relief sought is discretionary. Where there is an alternative remedy available but judicial review is sought, then in my judgment the court should always ask itself whether the remedy that is sought in the court, or the alternative remedy which is available to the applicant by way of appeal, is the most effective and convenient, in other words, which of them will prove to be the most effective and convenient in all the circumstances, not merely for the applicant, but in the public interests. In exercising discretion as to whether or not to grant relief, that is a major factor to be taken into account.' and 'What I am being asked to deal with is a matter which affects the conduct by Local Authorities throughout the country of their functions under the legislation."

167. This extract from Glidewell J. in R v Huntingdon District Council was referred to by Lord Bingham in Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 at paragraph 30, Lord Bingham referred to the principle that if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review.

168. More recently, in In the matter of an application by Noeleen McAleenon for Judicial Review [2024] UKSC 31, at paragraphs 50 and 51, the UK Supreme Court in the joint judgment of Lord Sales and Lord Stephens – (with whom Lord Lloyd-Jones, Lord Briggs and Lady Simler agreed) - observed that the forms of relief available in a claim for judicial review and the availability of the judicial review procedure, were both discretionary, when addressing the question of "[t]he suitable alternative remedy principle", as follows:

"(50)...A court may refuse to grant leave to apply for judicial review or refuse a remedy at the substantive hearing [23] if a suitable alternative remedy exists but the claimant has failed to use it. As stated in R (Glencore Energy UK Ltd) v Revenue and Customs Comrs [2017] EWCA Civ 1716; [2017] 4 WLR 213, para 55, "judicial review in the High Court is ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective". If other means of redress are conveniently and effectively available, they ought ordinarily to be used before resort to judicial review: Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465, para 30; R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] EWCA Civ 154; [2016] 1 WLR 2625, para 19.

(51) Where Parliament has enacted a statutory scheme for appeals in respect of certain decisions, an appeal will in ordinary circumstances be regarded as a suitable alternative remedy in relation to such decisions which ought to be pursued rather than having resort to judicial review: Glencore Energy, above, paras 55-58; Watch Tower Bible & Tract Society, above, para 19. Otherwise, use of judicial review would undermine the regime for challenging decisions which Parliament considers to be appropriate in that class of case. Therefore the Court of Appeal in Alpha Resource Management was correct to hold that Alpha was precluded by the suitable alternative remedy principle from seeking judicial review of the abatement notice issued against it: Parliament had provided for a right of appeal in section 65(8) of the 2011 Act in respect of such a notice".

169. Similar sentiments have been expressed in a number of decisions from the High Court, particularly in the judgments of Humphreys J. Notwithstanding the fact that many of these decisions are in the context of the statutory leave stage in section 50 of the 2000 Act, they reflect by analogy, the administrative common law principle which applies generally when considering the availability of an adequate alternative remedy.

170. In North Westmeath Turbine Action Group & Anor v Westmeath County Council & Ors [2020] IEHC 505, for example, Humphreys J. observed at paragraph 10 of his judgment that "[a]n application to cut off a process in midstream raises the perennially awkward question as to whether the applicant has to challenge a preliminary decision (such as to accept a planning permission)[ [24]] or whether the applicant can wait until the final decision. The general principle must be that a process should be allowed to proceed and that all steps can be challenged at the end. Any other rule would encourage multiple judicial reviews and unnecessary expenditure of court time on a premature basis". [25]

171. In Morehart v Monaghan County Council & Anor [2024] IEHC 100, where inter alia Mr. Morehart did not appeal because he was outside the jurisdiction and was not aware of the planning application and was therefore a different scenario from that which applied in the circumstances of the applicants in this case, the general position, by analogy, was summarised by Humphreys J. at paragraph 46 of his judgment in the following five points:

"(i) Before taking any judicial review, an applicant should normally avail of any more appropriate remedy first. That almost invariably means appealing a first instance process rather than challenging it by judicial review, unless there is a breach of justice such as bias, clear unfairness, refusal to make a decision, or other limited exceptions.

(ii) Whether an applicant has availed of appropriate alternative remedies is to be judge by reference not just to the remedies that she has sought but also by reference to the remedies she could have availed of but did not. Failure to seek a remedy does not render judicial review appropriate when it would not otherwise be so.

(iii) Furthermore, a remedy such as an appeal should first be availed of if it is substantially effective even if not demonstrated to be entirely so, on the basis that the applicant is not thereby legally precluded from raising in any ultimate judicial review points which could not have been addressed by the remedy.

(iv) Here the applicant failed to appeal and hasn't established substantial grounds to show that he could not have done so. Rather he was simply outside the country and has given inadequate further detail.

(v) Independently of that, his remedy as an observer gave him ample status to make his points to the board and constitutes an available remedy. A challenge to the council's decision is therefore a premature intervention in a yet-to-be-complete process. Either way there are no exceptional circumstances or likely injustices warranting departure from the normal approach here".

CONCLUSION

172. The discretionary nature of the remedies available pursuant to the judicial review process is exemplified in several principles, including, for example the availability of an alternative remedy. The statutory process of invoking an appeal to An Bord Pleanála is perhaps the most oft cited one in Irish case law, and as it happens, it is the alternative remedy which is in issue in this case.

173. In the exercise of that discretion, I have had regard to all of the circumstances of the case, including the purpose for which the remedies of judicial review are sought, the adequacy of the alternative remedy of an appeal to An Bord Pleanála and the conduct of both the applicant and the respondent (paraphrasing O'Higgins C.J. in The State (Abenglen Properties) v Dublin Corporation [1984] I.R. 381 at p. 393). This includes, in the context of the applicants' main argument in relation to validity, having regard to Mrs. Larkin's statement that the site notice was not erected until 5^th January 2023, even though the actual site notice stated that it was erected on 18^th December 2022 and the County Council's failure to confirm that the notice was erected within the period of two weeks prior to the making of a planning application giving notice of the intention to make the application and separately, the County Council's confirmation that the site notice was erected during, and beyond, the period of five weeks from the date of receipt of the planning application by the planning authority.

174. Further and having regard to the comprehensive submissions and objections made by the applicants on 30^th January 2023 to the Planning Authority, to the Board on 20^th March 2023 (albeit that this appeal was deemed invalid for the reasons already mentioned) and the issues set out in the Statement of Grounds, the order of the High Court (Cregan J.) on 13^th April 2023, Statement of Opposition and respective verifying and replying Affidavits on behalf of the applicants, I do not consider that the applicants have been prejudiced or disadvantaged in the making of their submissions, at any stage, or that their circumstances satisfy the requirement of exceptionality which would warrant a challenge to the first instance decision of Roscommon County Council in circumstances where the applicants had in fact appealed to An Bord Pleanála (which grounds of appeal included their arguments that the site notice did not comply with the Article 17(1)(b) of the 2001 Regulations) but where the Board determined that the applicants' appeal was itself invalid because of non-compliance with the fee requirements.

175. Having considered the nature and scope of the appeal procedure and all the circumstances of this case, I consider that the route of an appeal to An Bord Pleanála would have afforded the applicants in this case, who sought to challenge the correctness of the County Council's decision, an effective remedy.

176. I therefore refuse the applicants' application for the reliefs claimed by way of judicial review.

PROPOSED ORDER

177. Accordingly, I propose to make an order refusing the applicants the reliefs claimed by way of judicial review.

178. I shall put the matter in for mention at 10:00 on Wednesday 7^th May 2025 to address the question of costs and any ancillary and consequential matters which arise.

Appearances:

179. Paul McGarry SC and David Dodd BL appeared for the applicants, instructed by O'Dwyer Solicitors, Solicitors for the applicants, Bridge Street, Ballyhaunis, County Mayo.

180. Peter Bland SC and Dermot G Hewson BL appeared for the respondent, instructed by Dermot M. MacDermot Solicitors, Solicitor for Roscommon County Council, Castlerea, County Roscommon.

181. The notice party did not participate in the hearing.

CONLETH BRADLEY

25^th April 2025

[1] Also referred to in this judgment as "the County Council", "the planning authority" or "the respondent."

[2] Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 IR 752, [2018] 2 ILRM 453, Balscadden Road SAA Residents Association Limited v An Bord Pleanála [2020] IEHC 586.

[3] Christian and Others v Dublin City Council (No. 1) [2012] IEHC 163, [2012] 2 IR 506.

[4] Friends of the Irish Environment v The Government of Ireland & Ors [2020] IESC 49, [2021] 3 IR 1, [2020] 2 ILRM 233.

[6] Article 19 of the 2001 Regulations was substituted by Article 8 of the Planning and Development Regulations 2006 (S.I. No. 685/2006).

[7] Harding v Cork County Council & Anor [2006] IEHC 295.

[9] Emphasis and underlining added in this judgment.

[10] Humphreys J. referred to Sweetman v Clare County Council [2018] IEHC 517, Mount Juliet Estates Residents Group v Kilkenny County Council [2020] IEHC 128.

[16] [2013] IESC 34, [2014] 1 ILRM 225, Clarke J. (Fennelly and O'Donnell JJ. concurring).

[17] LA v The Chief Appeals Officer & Ors [2025] IECA 54 per A.M. Collins J. at paragraph 15.

[19] "[u]nder the prevailing practice, a writ of certiorari will not issue if there is another adequate remedy, such as an appeal or writ of error, an action at law or in equity, or intervention with the right of appeal secured. It is only in cases of unusual hardship and in the furtherance of justice that the use of the writ of certiorari is permitted to supplement the method of review expressly provided by statute". In his judgment at p.405, Henchy J. emphasised the following "to supplement the method of review expressly provided by statute" and observed that "It may be that not all the limitations in that passage on the issue of certiorari accord with the law as it has evolved in this jurisdiction" before adding the above quotation.

[20] State (Abenglen Properties Ltd) v Dublin Corporation [1984] I.R. 381 per Henchy J. at p. 405 (with whom Griffin and Hederman JJ. agreed; O'Higgins C.J. gave a concurring judgment).

[21] [2013] IESC 34, [2014] 1 ILRM 225, Clarke J. (Fennelly and O'Donnell JJ. concurring).

[25] Humphreys J. referred to North East Pylon Pressure Campaign Ltd v An Bord Pleanála [2016] IEHC 300 and the decision of the Court of Appeal (Costello J., as she then was) in Spencer Place Development Company Ltd v Dublin City Council [2020] IECA 268; see also the similar observations at paragraph 21 of the judgment of Humphreys J.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Larkin & Anor v Roscommon County Council (Approved) [2025] IEHC 250 (25 April 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC250.html Cite as: [2025] IEHC 250

High Court of Ireland Decisions