This is an editorial from BPS Planning, issued for discussion only. It is not legal advice.
A fuller week than the last. The Supreme Court has given a significant judgment on how far an environmental assessment must follow the by-products of a project off site, and the High Court has dealt with three procedural questions that matter more to day-to-day practice than they might first appear: when time runs against a statutory consultee, whether an applicant can test a decision-maker's evidence by cross-examination, and what happens to an enforcement challenge left dormant for four years. Two of the High Court judgments concern site investigation surveys for the Codling offshore wind farm off the Wicklow coast.
Supreme Court: a poultry licence did not have to assess where the manure might end up
Sweetman v The Environmental Protection Agency, Ireland and the Attorney General [2026] IESC 48 (https://judgments.courts.ie/judgments/44759) (Michael Noel O'Connor, notice party). Supreme Court (O'Donnell CJ, O'Malley, Woulfe, Hogan and Donnelly JJ), judgment of Woulfe J delivered on 5 November 2026, with which the other members of the court concurred, and published on 10 November 2026.
The case concerned an industrial emissions licence granted by the Environmental Protection Agency for a broiler unit in County Limerick rearing 74,000 birds, above the 40,000-place licensing threshold. The poultry litter and wash water are rich in nitrates and phosphates. The application said that all of the litter would go to a mushroom compost producer in Gorey, County Wexford, and that wash water would be spread on the applicant's own adjoining land, although a report for 2016 showed that roughly two thirds of the litter that year had gone to farmers for landspreading. The Agency's inspector noted that litter "may also be sent for landspreading", but treated the licence as confined to the installation, with spreading regulated under the Nitrates Regulations. Mr Sweetman argued that landspreading was part of the project, and that the Agency should have assessed it for appropriate assessment, under the Water Framework Directive and as an emission from the activity. The High Court (Bradley J) and the Court of Appeal had both rejected that case.
The Supreme Court dismissed the appeal. It held that the Agency's jurisdiction under the Environmental Protection Agency Act 1992 relates to a specified activity in a particular installation, and that the licence, read as a whole, acknowledged that spreading might happen without authorising or regulating it. On the emissions point, the court did not decide whether litter and wash water were "emissions from the activity", because the inspector had in substance assessed the effects of possible spreading in her environmental impact assessment, which was not challenged. On appropriate assessment, Woulfe J accepted that Article 6(3) of the Habitats Directive has no geographical limit, but drew on the court's earlier cheese factory judgment in An Taisce v An Bord Pleanála and on the UK Supreme Court's Finch judgment. Because the application put all of the litter to composting, any landspreading remained "contingent and speculative"; and because the receiving lands could not be identified until a buyer appeared, he was "satisfied on the facts of this case that it is not an effect which is capable of meaningful assessment." The Water Framework Directive argument failed for the same reason. The court considered, and declined, a reference to the Court of Justice, noting that Advocate General Kokott's Opinion in the pending An Taisce references on the Nitrates Action Programme (C-531/24 and C-895/24) arose in a different context.
What it means for your assessment
The judgment confirms that the scope of the project is set by what the application actually proposes, and that an assessor must look at indirect effects but need not try to assess effects that the evidence does not show are likely or that cannot be meaningfully measured. That cuts both ways for practitioners. For applicants, the application documents carry real weight: here the statement that all litter would go to composting was decisive, so descriptions of where by-products, spoil, digestate or slurry will go should be accurate and should match how the operation actually runs, since an assessment built on an inaccurate description is open to attack on other grounds. For planning authorities and inspectors, the inspector's approach in this case is a useful model: she named the possibility of off-site spreading, gave a high-level view of its effects and the controls that apply to it, and said plainly that the licence did not extend to the receiving lands. Where receiving sites are known, or the spreading is an integral part of what is proposed, the position may be quite different, and the pending Court of Justice ruling on the Nitrates Action Programme may yet shape how farm-level spreading is assessed. The judgment is about likelihood and assessability on particular facts, not a general licence to leave off-site effects out of a screening report.
Ballycar wind farm: a statutory consultee's conduct can be challenged within the time for challenging the final decision
Ballycar Green Energy Ltd v An Coimisiún Pleanála and The Irish Air Navigation Service trading as AirNav Ireland [2026] IEHC 726 (https://judgments.courts.ie/judgments/44743) (Shannon Airport Authority DAC, notice party). High Court (Nolan J), judgment delivered 3 November 2026 (record H.JR.2026.0000958).
The Commission refused permission on 7 May 2026 for a 12-turbine wind farm of around 50 to 54 megawatts at Ballycar in south-east Clare, near Meelick and north-west of Limerick city. The developer says the refusal rested on AirNav's objection that the scheme posed an aviation safety risk to Shannon Airport, and that it could not offer site-specific mitigation because AirNav would not engage with it or share underlying radar data. Alongside its challenge to the Commission's decision, it sought a declaration that AirNav had failed to act consistently with section 15 of the Climate Action and Low Carbon Development Act 2015 and had breached its right to fair procedures. AirNav, a prescribed body rather than a decision-maker, argued that the claim against it was governed by Order 84 and was out of time, since its last submission was made on 11 February 2026, more than three months before proceedings issued.
Nolan J granted leave against AirNav. Requiring an applicant to sue each participant in a live planning process before the decision issued would, he said, produce multiple sets of proceedings; he wrote: "I accept the submission that it would create havoc in the planning list." Relying on Spencer Place, North East Pylon Pressure Campaign and the Ballyboden Uisce Éireann confirmation-letter case, he was "satisfied that the Applicant was entitled to wait until the final decision of the Commission before instituting proceedings." He rejected, for now, AirNav's complaint that the pleadings were deficient, while leaving it free to raise the point at the hearing. This is a leave decision only: the judge said expressly that he had no idea whether the complaint about AirNav's engagement was legitimate.
What it means for your assessment
Statutory consultees and prescribed bodies, including AirNav, Transport Infrastructure Ireland, Uisce Éireann and the Department's nature conservation officials, should assume that how they engage with an application may be examined in court alongside the final decision, and should keep a clear record of what was asked of them and what they provided. For applicants, the practical lesson is to put requests for data or meetings in writing and to bring any refusal to engage to the decision-maker's attention during the process, so that the record shows the issue was raised. For inspectors, where a refusal is likely to turn on a single consultee's objection, it is worth recording whether the applicant had a fair chance to respond to it and whether further information was considered. Whether section 15 of the Climate Act imposes any enforceable duty on a consultee in these circumstances remains to be decided at the full hearing.
Codling wind farm surveys: two refusals of cross-examination, and what they say about the record
Ryan and Ors v Maritime Area Regulatory Authority [2026] IEHC 731 (https://judgments.courts.ie/judgments/44752) and Blue Ireland Coalition CLG v Maritime Area Regulatory Authority and Ors [2026] IEHC 732 (https://judgments.courts.ie/judgments/44753) (Codling Wind Park Limited, notice party in both). High Court (Conlon J), judgments delivered 4 November 2026 and published on 6 November 2026.
Both cases challenge maritime usage licence MUL230034, granted by the Maritime Area Regulatory Authority on 23 February 2026, which allows geophysical and geotechnical surveys over about 477 square kilometres to inform the design of the Codling wind farm on the Codling bank, between 13 and 22 kilometres off the coast between Wicklow Town and Greystones. In Ryan, a group of fishermen argue that the authority never itself decided that environmental impact assessment screening was unnecessary under section 117(5)(a) of the Maritime Area Planning Act 2021, and that the only consideration was by a senior marine advisor without authority to decide. They sought to cross-examine the director who signed the licence. Conlon J refused: the director swore that he made the decision having considered the advisor's report, the licence recitals recorded that the authority had decided screening was not necessary, and the applicants had offered only a bare denial. He held that "the recitals in substance form part of the decision, or are incorporated into the decision."
In Blue Ireland, the applicant challenges the licence on Habitats Directive grounds concerning harbour porpoise, an Annex IV species, and the Rockabill to Dalkey Island SAC. The Natura impact statement calculated that, applying a 5 kilometre effective deterrence range, 31.1 per cent of the SAC could potentially be affected; the developer's ecologist describes that as a precautionary estimate rather than an area affected at any one time. After leave was granted, an ecological expert's report criticising the Annex IV assessment and the Natura impact statement was filed, the developer's expert replied, and the applicant sought a wide-ranging cross-examination. Conlon J accepted that expert evidence may be needed to show a gap in a Habitats Directive assessment, but observed that "reliance by an applicant on evidence which was not before the decision maker should be the exception rather than the rule." He refused the motion because the applicant had not tied the cross-examination to specific pleaded grounds, the issues were fallback arguments that might never arise, and what was sought was roving, though the trial judge may revisit the question. Neither judgment decides whether the licence is valid.
What it means for your assessment
Ryan is a reminder that the paper trail of who decided what matters. Where an officer's or advisor's report recommends a screening conclusion and a more senior person decides, the decision document should say that the decision-maker considered the report and adopted the conclusion, and should record the screening determination itself; here the recitals and the director's affidavit carried the day. Planning authorities and the Commission, which work the same way through planners' and inspectors' reports, should check that their decision templates do this clearly. Blue Ireland underlines that points about disturbance, mitigation and in-combination effects are best made, with evidence, to the decision-maker during the process; a court reviewing legality will not readily weigh new expert material against the record. For those preparing Annex IV and Natura assessments, the disputes aired here (the legal meaning of disturbance, the use of effective deterrence ranges, residual effects after mitigation, and how a separation condition between survey vessels avoids cumulative effects) are a useful checklist of what a report should address explicitly.
Kilfenora wastewater: dormant enforcement challenge refused leave
Duffy v Clare County Council [2026] IEHC 725 (https://judgments.courts.ie/judgments/44744) (Irish Water Limited, notice party). High Court (Nolan J), judgment delivered 3 November 2026 (record 2022 493 JR).
Mr Duffy, a Kilfenora resident who has brought several earlier challenges about wastewater in the area, sought leave for judicial review, including mandamus and declarations, over the council's handling of his December 2021 complaints of unauthorised development at the Kilfenora wastewater treatment plant, permitted on appeal in March 2020. He also sought injunctions against a temporary treatment plant and a discharge to groundwater through a swallow hole. The proceedings issued in June 2022 but had not been pursued by him since July 2022. Nolan J refused leave. He found no substantial grounds, as the allegations of bias, failure to investigate under sections 152 and 153 of the 2000 Act and breach of the Groundwater Regulations were "advanced in broad and conclusory terms" without particulars. He also held that it would be an abuse of process to proceed when the same issues could have been pursued in an earlier case, Duffy One, which Mr Duffy had discontinued against the council, and were before the Circuit Court in section 160 proceedings; and that the delay was a further reason to refuse. He wrote that "proceedings once issued, must be pursued with urgency", and noted that the Aarhus costs protection is not absolute, pointing to the court's power under section 50B(3) to award costs where proceedings are frivolous or vexatious or a party has acted unreasonably.
What it means for your assessment
For enforcement officers, the case is a reminder that a section 5 declaration, here confirming that works for the percolation area were development within the terms of the existing permission, can be an important part of the record when complaints are later litigated, and that a written account of how each complaint was investigated is the best answer to a claim of inaction. For residents and community groups, the judgment is a caution rather than a criticism of concern for water quality: a complaint has the best chance in one well-chosen forum, pursued promptly and pleaded with specific facts linked to specific legal errors. The same pleading standard applies to litigants in person as to represented parties.
Further reading
Sweetman v The Environmental Protection Agency [2026] IESC 48 (https://judgments.courts.ie/judgments/44759), Courts Service judgment page, with the court's own judgment summary
Ballycar Green Energy Ltd v An Coimisiún Pleanála [2026] IEHC 726 (https://judgments.courts.ie/judgments/44743)
Ryan v Maritime Area Regulatory Authority [2026] IEHC 731 (https://judgments.courts.ie/judgments/44752) and Blue Ireland Coalition CLG v Maritime Area Regulatory Authority [2026] IEHC 732 (https://judgments.courts.ie/judgments/44753)
Duffy v Clare County Council [2026] IEHC 725 (https://judgments.courts.ie/judgments/44744)