Background
Friends of the Irish Environment sought leave to appeal a High Court judgment upholding the planning commission’s decision to grant permission for a 600 MW powerplant, 120 MW battery storage system, and associated ancillary works near Tarbert, Co. Kerry. This appeal followed a complex litigation history spanning multiple decisions across the High Court and Court of Appeal, including a prior referral to the Court of Justice of the European Union regarding whether the project’s renewal triggered the Habitats Directive.
The applicant raised two questions framed as matters of exceptional public importance: (1) whether a court can confine judicial review to material before the decision-maker when an applicant raises grounds not previously pleaded, and whether confidentiality claims for efficiency projections comply with EU law; and (2) whether the planning commission could act within the lawful range of outcomes under the Climate Action and Low Carbon Development Act 2015 when the developer withheld information specified by the Environmental Impact Assessment (EIA) Directive.
The Court’s Holding
Justice Humphreys refused leave to appeal, holding that the proposed grounds did not properly arise and did not meet the statutory criteria for appellable questions. The court found that the applicant’s substantive points were not pleaded or argued in the original proceedings, and that the applicant’s leave to appeal submissions tendentiously mischaracterized the factual conclusions and legal reasoning of the principal judgment. Specifically, the court found that the applicant’s claim that the court “confined the scope of review” and “dispensed with” EIA Directive information did not accord with the judgment as written.
The court determined that the EIA Directive was in fact complied with on the facts, and that the applicant’s failure to challenge confidentiality claims on the pleadings—rather than merely noting them factually—meant the substantive challenge to the decision did not properly arise. The judge emphasized that the court’s application of settled law to the particular facts does not constitute a point of law suitable for exceptional appeal.
Key Takeaways
- Points of law raised for the first time on a leave to appeal application must have been pleaded or argued in the original proceedings; failure to do so prevents them from properly arising.
- Mischaracterizing the findings and reasoning of a judgment—whether tendentiously or otherwise—does not establish a valid ground for appeal; the proposed question must accurately reflect what the judgment decided.
- Questions about the application of settled law to particular facts, even when framed as raising public importance issues, do not qualify as points of law of exceptional public importance suitable for appellate review.
- A leave to appeal applicant must engage with and rebut the logic and reasoning of the judgment appealed against, not merely reassert its own position or advance entirely new legal theories.
Why It Matters
This decision illustrates the High Court’s strict gatekeeping approach to leave to appeal in planning cases, particularly concerning environmental challenges. It reinforces that appellants cannot use the leave to appeal process to circumvent pleading requirements or to reframe their case on new legal grounds. The judgment applies settled principles from recent Supreme Court authority (notably Coolglass Wind Farm Limited v. An Coimisiún Pleanála [2026] IESC 5) requiring that decisions be assessed against what was actually submitted in the original process.
For practitioners, the decision underscores the importance of pleading all grounds—including legal objections to confidentiality claims and EIA compliance issues—at the first instance rather than attempting to introduce them via appeal. The court’s emphasis on accuracy in characterizing judgments and the requirement that questions make a demonstrable difference to outcome serves as a practical constraint on speculative or threshold appeals in complex environmental litigation.