ALG advises Coolglass Wind Farm Limited on successful challenge to a decision by An Bord Pleanála

In a challenge to a decision of An Bord Pleanála (the Board) to refuse an application for the construction of a proposed 13-turbine wind farm and all associated works at a location in County Laois, the High Court has delivered a judgment quashing the decision and remitting it back to the Board for a fresh determination.

The High Court has stated that “rapid, far-reaching and unprecedented changes to all aspects of society and the economy” and “an immediate end to business as usual” by consenting authorities is required to cut GHG emissions and ensure planetary survival. The Court went on to find that the pattern of refusals of proposed windfarm development is “sabotaging” the compliance by the State with its national and international climate commitments.

This is the first judgment to consider in detail the nature and scope of the obligation imposed on public bodies by s15 of the Climate Action and Low Carbon Development Act 2015 (as amended) (the 2015 Act). We have put together a short a summary of the judgment of Mr Justice Humphreys below.

Reliance on the wrong section of the legislation regarding material contravention

The Court held that the Board made an error in considering whether to “materially contravene” the County Development Plan (CDP) under s37(2) of the Planning and Development Act 2000 (as amended) (PDA) when in fact the application properly engaged s37G(6) of the PDA which applies to “Strategic Infrastructure Development” (SID). The Court agreed with the applicant that the Board should have relied on s37G(6) and added that the provisions allowing for material contravention of a CDP are “significantly more permissive” under this section. The Court found that this mistake on the part of the inspector rendered the decision of the Board invalid as it meant that the wrong test was applied in the context.

In this context, the Court highlighted contradictions between the decision of the Board in the Coolglass case and the decisions in Shannon LNG v An Bord Pleanála [2024] IEHC 555 and Nagle View Turbine Aware Group v An Bord Pleanála [2024] IEHC 603 in terms of the Board’s approach to how climate law / policy and visual impacts are correctly to be weighed against each other in planning applications for renewable energy projects.

The absence of any objection to the CDP by the Minister / OPR is an irrelevant consideration

The next core ground considered by the Court concerns the obligations on the Board to perform its functions consistently with specified climate plans and objectives under s15 of the 2015 Act (Core Ground 3). More specifically, the Applicant argued that the Board was wrong to consider the failure on the part of the Minister for Housing, Local Government and Heritage (the Minister) and the Office of the Planning Regulator (OPR) to alter the areas designated “not open for consideration” for wind farm development in deciding to refuse permission. The Court determined that the obligations on the Board under s15 of the 2015 Act exist independently of the obligations on the Minister and the OPR. As such, the Board took into account an irrelevant consideration which vitiated the decision of the Board to refuse to grant permission for the proposed development.

Public bodies must act consistently with climate objectives and policies so far as practicable

Beyond these specific issues, the Court examined the extent of the Board’s obligations under s15 of the 2015 Act. Having traced the most relevant Irish and EU case law on statutory interpretation, Mr Justice Humphreys looked at s15 of the 2015 Act under the headings of (i) language (ii) context;(iii) purpose (iv) a conforming interpretation in EU law terms;(v) a conforming interpretation in ECHR terms (iv) conclusion on interpretation and (vii) application of the law to the facts. In summary, Mr Justice Humphreys’ findings under these headings are as follows:

1. The language of s15 of the 2015 Act requires compliance with obligations as far as practicable or possible. This means that the decision-maker must comply with the matter in question unless it is not possible or practicable to do so. “Practicable” means capable of being put into practice, not merely doing what is reasonable. This is a very high standard only just falling short of unconditional compliance.
2. The context of the amendment to the 2015 Act introduced in 2021 was a “step change” that was not “inadvertent” and shows an ambitious and far-reaching attempt to respond to the climate crisis which significantly strengthened the wording of s15. In particular, the “have regard to” obligation was changed to a “comply with” obligation and a broad range of sweeping obligations were introduced across the whole public sector which have general application.
3. The legislative purpose of the 2021 amendments to the 2015 Act is to facilitate radical and far-reaching action to address the climate emergency, as illustrated by the applicant in its submissions and affidavit evidence.
4. The interpretative obligation arising under EU law requires the national courts to interpret s15 of the 2015 Act and apply EU law in a way which ensures so far as possible an outcome consistent with EU climate objectives.
5. Article 8 of the European Convention on Human Rights (the ECHR) imposes a positive obligation on the State to put in place a legislative and administrative framework with respect to climate change to provide for the protection of human health and life and to apply that framework in an effective and timely manner.  It follows that s15 of the 2015 should be interpreted in a manner which ensures compliance with stated goals in relation to renewable energy infrastructure.

What must the Board / Planning Authority do in order to comply with their obligations under s15 when determining planning applications for renewable energy developments?

The Court determined (at paragraph 131 of the judgment) that the Board must ask itself the following questions when processing an application relevant to the achievement of climate plans and objectives under s15 of the 2015 Act.

1. How can the application be decided in a way that would contribute to achieving climate goals?

2. Is deciding the application in this way prohibited by a strict legal requirement that does not give any flexibility to the decision maker?

3. If the decision-maker is given some flexibility, can this flexibility be used to support the decision favouring the achievement of climate goals?

Applying the law to the facts, the failure on the part of the inspector and the Board to engage in any meaningful way with the 2015 Act means that the decision of the Board must be quashed on this ground.

Helpfully, the Court clarified that the obligation on the Board to give a pro-renewables interpretation to s15 does not mean that the Board must necessarily refuse to grant permission to any developments that cause emissions, including datacentres.

Later in the judgment, Mr Justice Humphreys refers back to his ruling on this issue in determining that the Board’s decision further did not comply with either its obligations under the European Convention on Human Rights (Core Ground 5) or the duty of sincere co-operation under EU law (Core Ground 7).

The Board’s fixed approach to material contravention is unlawful

The Court answered the question of whether there exists a fixed policy within the Board of refusing to exercise its discretion to grant permission for wind development since late 2022 / early 2023 in material contravention of the CDP in areas designated unfavourable for wind farm development.  

Based on affidavits sworn by Mr Brian Keville of MKO on behalf of the Applicant, the court analysed the approval ratings of wind energy projects, including the pattern of refusals emerging from the 27 decisions made between 1 January 2023 and 30 September 2024. The Court concluded that the change in approach to the exercise of discretion in respect of the material contravention of development plans by the Board was deliberate. Mr Justice Humphreys stated that the “effectively fixed approach” adopted by the Board (notwithstanding the climate emergency) was inconsistent with the obligations of s15 of the 2015 Act and independently fell foul of the principle against fettering its discretion in its decision-making.  Accordingly, the Court decided that this was a further basis for quashing the decision of the Board.

Next steps

On 20 January 2025, the parties will appear before Mr Justice Humphreys to decide on the form of order remitting the matter back to the Board.

For further information in relation to this topic, please contact  Alan Roberts, partner, Brendan Curran, senior associate, Marika Williams, lawyer, or your usual ALG Environmental & Planning contact.

Date published: 15 January 2025