Last Friday, the 10th January, Mr Justice Humphreys delivered a landmark judgement in the High Court providing welcome clarity on the obligations imposed on public bodies under section 15 of the Climate Action and Low Carbon Development Act, 2015 (as amended) – Coolglass Wind Farm Limited v An Bord Pleanála [2025] IEHC 1.
Coolglass Wind Farm Limited (Coolglass) applied to an Bord Pleanála (the Board) for planning permission for the development of a 13 turbine wind farm in Coolglass, County Laois in August 2023 pursuant to section 37E of the Planning and Development Act, 2000 (as amended) – a strategic infrastructure development or "SID" application.
12 of the 13 proposed wind turbines were located in areas "not open for consideration" for wind farm development in the Laois county development plan. Therefore granting permission for the proposed development would be a material contravention of the Laois county development plan and its associated wind energy strategy.
In his report, the Board's inspector recommended that permission be refused on the basis that the proposed development represented an identified material contravention of the CDP and consequently was contrary to the proper planning and sustainable development of the area. The Board adopted the inspector's report generally and, on the 23 August 2024, refused planning permission.
Coolgrass applied for, and was granted, leave to apply for judicial review of the Board's decision on the 14th October 2024 seeking inter alia an order of certiorari quashing the decision of the Board of the 23 August and an order remitting the matter back to the Board.
The principal grounds of challenge were (1) that the Board erred in law and failed to comply with its obligations under section 15 of the Climate Action and Low Carbon Development Act, 2015 (as amended – the 2015 Act) in making its decision and in particular in failing to exercise its discretion under section 37G of the Planning and Development Act, 2000 (as amended – the 2000 Act), and (2) The decision of the Board was invalid as the Board "purported to abrogate" its obligations under section 37G to the Office of the Planning Regulator and/or the Minister for Housing, Local Government and Heritage. Section 15 of the 2015 Act is as follows:
Duties of certain bodies
15. (1) A relevant body shall, in so far as practicable, perform its functions in a manner consistent with—
(a) the most recent approved climate action plan,
(b) the most recent approved national long term climate action strategy,
(c) the most recent approved national adaptation framework and approved sectoral adaptation plans,
(d) the furtherance of the national climate objective, and
(e) the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.
Coolgrass submitted that section 15 of the 2015 Act requires the Board to carry out its functions consistently, in so far as practicable, with, inter alia, the Climate Action Plan 2024 (the "CAP") and refusing permission for the proposed development is inconsistent with the achievement of the targets set out in the CAP of achieving 9GW of onshore wind by 2030; the obligation to act consistently, insofar as practicable, with the CAP is more stringent than the obligation on the Board under section 37G(2) to 'consider' the provisions of the development plan and the Board was therefore obliged to grant permission by exercising its discretion under section 37G(6) to materially contravene the county development plan, unless it determined that it was not practicable for it to do so.
In response the Board advocated a much narrower interpretation of the section 15 of the 2015 Act which, in essence, equated the obligation under section 15 of the 2015 Act to exercises its functions "in a manner consistent with" the States climate objectives to nothing more than an obligation to 'have regard to' those obligations in common with other matters for which it must have regard, including the development plan, and could not be interpreted as requiring the Board to subjugate all other considerations such that the fact the proposed development may bring climate benefits should be determinative and override other relevant considerations.
Mr Justice Humphreys undertook a detailed consideration of the interpretation of section 15 of the 2015 Act under a number of headings including the language of the section, its context, the purpose of the section and ensuring conformity with EU law and the ECHR and concluded:
…all vectors of interpretation point strongly in the same direction – the need for an imperative reading of s. 15(1) in line with what it says, namely that the board and any other relevant body is required to act in conformity with the climate plans and objectives set out in the subsection unless it is impracticable to do so.…
That does not mean allowing an application which is prohibited by law. That wouldn’t be practicable apart from anything else. But it does mean exercising discretionary and evaluative powers in whatever way is most likely to be consistent with the relevant plans and objectives.
The attempt by the board to cut down the scope and meaning of s. 15 by reference to Latin maxims such as noscitur a sociis (submissions para. 43) or generalia specialibus (para. 45) brings to mind a different classical analogy, that of the Emperor Nero fiddling while Rome burned in 64 CE. That isn’t an irrelevant comparison – the greenhouse effect involves the planet literally burning due to the cumulative volume of GHGs in the atmosphere since the Industrial Revolution.
The Court went on to summarise the Board's obligations under section 15 of the 2015 Act when called on to make a decision relevant to the achievement of our climate objectives as requiring it to:
(i) Consider if granting permission would contribute to achieving our climate goals, and in the case of renewable energy projects the answer is invariably yes.
(ii) Consider whether granting permission is precluded by a "mandatory and non-flexible legal requirement that confers no discretion or evaluative judgment on the [board]"
(iii) "If the answer to that is No, the board should then ask if its discretion or evaluative judgment can be exercised in such a way as to support the outcome favouring climate goals."
On the specific question of material contravention of development plans Mr Justice Humphreys concluded:
insofar as concerns material contravention, if such contravention arises, the board should exercise the power to permit such contravention in whatever way that furthers climate goals if practicable to do so – as the applicant submits, the board cannot merely defer to a limitation in an individual development plan if to do so would contribute to an inconsistency (the avoidance of which is not impracticable) with climate plans and objectives contrary to s. 15;
With respect to Coolgrass' position that the Board purported to abrogate its obligations to the Office of the Planning Regulator and/or the Minister, Mr Justice Humphrey's noted that the among the Board's reasons for refusing permission, and the inspector's report adopted by the Board, included the fact that the OPR and/or the Minister had not invoked their power under section 31 of the 2000 Act to alter the areas not open for consideration for wind energy development – in fact the inspector went as far as saying "in circumstances where the Office of the Planning Regulation (the ‘OPR’) and the Minister for Housing, Local Government and Heritage (the ‘Minister’) had not altered the areas designated not open for consideration for wind farm development during the section 31 Ministerial Direction procedure, the Board was not required to independently consider its obligations under section 15 of the 2015 Act and/or the exercise of its discretion under section 37G(6) of the 2000 Act."
The Court went on to hold that consideration of the action or inaction of the Minister and/or the OPR was "a manifestly irrelevant consideration" and "the fact that the Minister and OPR did not seek an amendment of the plan relates to a different test under a different statutory provision and is simply not a legally relevant consideration to the refusal of permission. The reliance on the former in coming to the latter decision vitiates that decision."
Notwithstanding the discretion conferred on it under sections 37(2)(b) and 37G of the Planning and Development Act 2000 to grant permission where a proposed development materially contravenes a development plan, in recent times it appears as if the Board has felt obliged to defer to the Minister and/or the Planning Regulator where there are inconsistencies between areas designated for renewable energy development under the local county development plan and national and European policy. The clear message to the Board following the Coolglass judgment is section 15 of the 2015 Act requires it to engage in its own independent consideration of the impact of a proposed development on the State achieving its climate targets and to exercise its discretion under sections 37(2)(b) and 37G in a manner which supports the achievement of those targets.
This helpful clarification of the Boards obligations when determining applications for permission for renewable energy developments will be welcomed by renewable energy developers and should go some way towards facilitating the acceleration of the deployment of renewable energy generation as required under national and EU policy.
Finally, one further aspect of the Coolglass case that is in itself landmark and should be acknowledged and applauded, is the efficacy of the expedited JR procedure under High Court Practice Direction HC126. Leave was granted on the 14th October 2024, the matter was heard on the 20th December 2024 and judgment delivered on the 10th January 2025 – under three months!
