William Fry LLP was pleased to act for Tesco Ireland Limited in its successful defence of a judicial review challenge to its grant of planning permission for a new Tesco store, drive-thru café, and petrol station in Cavan Town (Proposed Development).
The case was afforded the Expedited Procedure in the Planning and Environment List of the High Court and final judgment was delivered by Mr Justice Humphreys within six months of the date on which proceedings were issued.
The Applicant, an environmental group, sought to quash An Coimisiún Pleanála's decision to grant planning permission (Decision) on a number of climate-related grounds, and sought to challenge the validity of the 2024 Climate Action Plan (CAP24).
Climate Action and Low Carbon Development Act 2015 (as amended)
This case forms part of a trend of climate-related judicial review challenges alleging a breach of Section 15 of the Climate Action and Low Carbon Development Act 2015 (as amended)(2015 Act) which requires public bodies, including the Commission, to perform its functions, "insofar as practicable" in a manner consistent with the most recently approved CAP and other specified climate policy documents.
It was argued on behalf of Tesco and the Commission that, whilst the Decision did not explicitly reference CAP24, it was clear from the Decision (and the affidavit evidence of a Board member), that the Commission did consider CAP24. The Decision provided that the Proposed Development would be consistent with 'national climate ambitions, the Climate Action and Low Carbon Development (Amendment) Act 2021', which incorporates obligations of consistency with CAP24. In addition, the Commission explicitly considered the objectives contained in the relevant Cavan Climate Action Plan, including an objective of reducing vehicle kilometres travelled by 20% – an objective that was also contained in CAP24.
The Court ultimately accepted that the Commission's decision implicitly complied with the 2015 Act, even though CAP24 was not explicitly referenced by the Commission, emphasising that decision-makers can carry knowledge of relevant policy without needing to cite it explicitly.
CAP24
This case also involved a challenge to the validity of CAP24, which was ultimately unsuccessful, with the Court concluding that the applicant had failed to discharge the burden of proving that CAP24 was invalid in that the basis of challenge was "impermissibly abstract and academic... postulating a metaphysics of invalidity that nullifies planning decision-making pending some hypothetically better climate plan is not a workable concept."
The Court did highlight that even if a challenge to the validity of CAP24 was successful, it did not automatically invalidate the Commission's decision to grant planning permission for the Proposed Development.
Expedited Procedure
William Fry successfully applied for and was granted the expedited procedure in this case.
It is an excellent example of this innovative procedure, which allows cases to be fast tracked to a hearing. The proceedings issued on 4 February 2025, the case was heard on 20 June 2025, and final judgment was delivered on 16 July 2025. However, under new Rules of Court, the expedited procedure is now only automatically available in limited cases relating to renewable energy development.
Conclusion
This case involved a pragmatic approach by the Court and reinforces the principle that a planning decision should be read as valid, if a valid reading is reasonably available. The case also re-stated the principle that planning decisions are not invalidated by minor or immaterial errors.
William Fry LLP was delighted to represent Tesco in such an interesting case, and helping Tesco to take care of its business – bringing it one step closer to realising a strategic development.
A copy of the judgment (Friends of Killymooney Lough v An Coimisiún Pleanála and Others) is available here.
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