Climate law duties trump local plan in Irish wind farm ruling

In a recent ruling, the court confirmed that that duty arises under Irish climate law and extends to “exercising discretionary and evaluative powers in whatever way is most likely to be consistent with the relevant plans and objectives”.

In the context of renewable energy projects, the court held that the practical effect of the duty on An Bord Pleanála, Ireland’s planning authority, will be that it must “almost always” grant permission for those projects to go ahead. An exception to this, it said, would be where an application “is prohibited by law”.

The court went on to state that duties on An Bord Pleanála arising under Ireland’s climate law “affects more than just how the board decides its cases”. It said it also “affects how it trains its inspectors and board members in climate law and science, and how it internally allocates work”, with the judge going on to state that “only duly trained people who understand climate issues at a deep level should be allowed near projects to which those issues are relevant”.

Louise McQuaid of Pinsent Masons in Dublin said: “Ireland has substantial climate targets to reach and the roles of planners and other public bodies in reaching these targets is noteworthy. This decision is very significant and could prove pivotal for the renewable energy sector. It reinforces with state bodies the importance of the climate legislation and their part in complying with it.”

The court ultimately held that An Bord Pleanála acted in breach of its climate law duties in refusing Coolglass Wind Farm Limited (Coolglass) planning permission for a 13-turbine wind farm in County Laois. It said An Bord Pleanála gave “no serious consideration” as to whether refusing the application was “a material contravention” of its duties.

An Bord Pleanála had refused the Coolglass application after determining that the proposed development would materially contravene the county development plan (CDP) 2021-2027 – most of the proposed wind farm was to be situated in areas that were designated as “not open for consideration” for wind farm development in the CDP, according to the judgment.

The High Court considered, however, that the decision of the An Bord Pleanála was invalid. It found the authority erred in law and that it failed to comply with its obligations under section 15 of the Climate Action and Low Carbon Development Act 2015, as amended (the Act).

At the heart of the court’s ruling was its interpretation of section 15.1 of the Act. That section provides that public bodies in Ireland, in so far as practicable, perform their functions in a manner

consistent with: the most recent approved climate action plan; the most recent approved national long term climate action strategy; the most recent approved national adaptation framework and approved sectoral adaptation plans; the furtherance of the national climate objective; and the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the state.

The court said An Bord Pleanála “failed to exercise its powers in a manner compliant as far as practicable with the climate objectives and policies set out [section 15.1].”

An Bord Pleanála had argued for what the court described as “watered-down interpretations” of section 15.1. However, the court said that would not reflect the purpose or wording of the legislation.

“A legislative purpose to facilitate radical and far-reaching action is consistent with the fact that: we know …  that  rapid,  deep  and  in  most  cases  immediate  cuts  in greenhouse gas (GHG) emissions are required to meet essential climate targets in the interests of preserving the state of the earth as a liveable habitat for human and other natural life; and we know – definitionally – that rapid, deep and immediate cuts to GHG emissions can’t be delivered by business as usual – and therefore it follows that radical new approaches are required, and required now, not at some indeterminate future time,” the court said.

The court was critical of An Bord Pleanála for placing so much emphasis on the visual impact the wind turbines would have on the landscape, citing the “vastly more severe disturbance” to the landscape that is threatened in Ireland and globally by the climate emergency.

An Bord Pleanála has been ordered to reconsider the application.