Home Knowledge Laois Wind Farm Development Refusal Quashed

Laois Wind Farm Development Refusal Quashed

High Court judgment has significant impact on public bodies’ obligations to align functions with climate strategies.

Facts

In August 2023, Coolglass Wind Farm Limited applied for planning permission for a 13-turbine wind farm across multiple townlands in County Laois.

An Bord Pleanála (Board) refused to grant planning permission on the basis that the proposed development would materially contravene both the County Development Plan and the county’s wind energy strategy and would, therefore, be contrary to the proper planning and sustainable development of the area.

Mr Justice Humphreys quashed the decision on a number of grounds, including the fact that the Board relied on the wrong section of the Planning and Development Act 2000 (as amended) (Planning Act) concerning material contravention. In circumstances where this planning application was for Strategic Infrastructure Development (SID), section 37G of the Planning Act provides that the Board can grant permission for proposed development even if it materially contravenes the relevant development plan. However, the Board did not have regard to this section (and instead took account of a more limiting provision of the Planning Act that did not apply in the context of an SID application).

This article focuses on Humphreys J’s decision to quash the Board’s refusal of planning permission because the Board failed to comply with its climate obligations under section 15 of the Climate Action and Low Carbon Development Act 2015 (as amended) (Climate Act).

The Climate Action and Low Carbon Development (Amendment) Act 2021 significantly altered the scope of the obligation under section 15. When originally enacted, section 15 of the Climate Act provided that a ‘relevant body’ (which included the Board) in performing its functions shall have regard to particular climate plans, policies and objectives. However, in 2021, this obligation was amended such that it now requires relevant bodies to, in so far as practicable, perform their functions in a manner consistent with these climate plans, policies and objectives.

Humphreys J characterised this amendment to section 15 as a change from a ‘have-regard-to’ obligation to a ‘comply-with’ obligation. He stated that an obligation to “comply-with as far as practicable or possible” means that the decision-maker must comply with the matter in question unless it is not possible or practicable. ‘Practicable’ means capable of putting into practice, not merely doing what is reasonable. Humphreys J found that “this is a very high standard only just falling short of unconditional compliance requirements.”

The State argued that the wording of section 15 means that “in performing its functions, a relevant body must engage in a meaningful way with the objectives and measures identified in section 15(1)(a)-(e); must endeavour to carry out its functions in a manner consistent with those objectives and measures and; where it considers that it is not practicable to do so, it may be required to explain why.” However, Humphreys J rejected this interpretation as setting the bar too low for relevant bodies. In any event, he found that even if the State’s interpretation of the obligation was correct, the Board did not comply with this lower standard of obligation, given that it had not meaningfully engaged with section 15 in its decision. The Court concluded that neither the Board nor the Board’s Inspector referred to the Climate Act meaningfully.

The Court’s View on Compliance with Section 15

Humphreys J concluded that the Board (or any other ‘relevant body’), when making a decision relevant to the policies, plans and objectives referred to in section 15, should consider:

  1. If it can decide the application in a way that would contribute to achieving section 15 goals. Humphreys J noted that, in the case of renewable energy projects, the answer will “almost always be a grant of permission”.
  2. If it is impossible to decide the application in a way that would further climate goals due to a mandatory and non-fixable legal requirement that confers no discretion on the decision-maker. If so, the project must be refused, no matter how climate-friendly.
  3. If the answer to 2 above is No, the relevant body should ask if it can exercise its discretion in a way that supports the outcome favouring climate goals.

Humphreys J quashed the decision of the Board to refuse planning permission because it did not engage with its section 15 obligations in its decision. He found that the Board was incorrectly operating a fixed policy of refusing permission if the proposed development materially contravened the relevant Development Plan.

Impact on Other Types of Development

Humphreys J was cautious in pointing out that the Board’s obligation to use its powers favourably towards renewable energy infrastructure does not automatically mean that there is an obligation to refuse planning permission for developments that cause emissions. He gave some examples of developments which the Board could grant permission for regardless of the section 15 obligations – projects that support energy security and projects where there may be displacement effects (i.e., if the project cannot proceed in Ireland, it may be relocated to another jurisdiction with lower environmental standards).

Specifically, Humphreys J stated that it does not necessarily follow that his judgment should be interpreted as “anti-cheese factory”, “anti-data centre” or “anti-LNG storage.” He stated that the “trade-offs and displacement effects would need to be considered.”

Therefore, in the future, applications for permission for certain types of proposed development should, if possible, include some information regarding the proposed development’s place in the transition to net zero and/or possible displacement effects if planning permission is not granted in Ireland.

Planning applications must contain sufficient information that engages with the plans, policies and objectives listed in section 15.

Conclusion

The judgment in Coolglass is favourable for proposed renewable energy developments. It seems likely that applications for such developments (particularly under the SID provisions) are far more likely to be granted than previously.

A recent statement from An Bord Pleanála regarding renewable energy decisions (published in the context of the Coolglass decision) showed that of the 30 decisions the Board made in appeals relating to wind farm applications in 2023 and 2024, 15 were refused. Five of 16 SID decisions made concerning wind farm developments in 2023 and 2024 were refused.

While Humphreys J stated that this judgment does not automatically mean that proposed developments that cause emissions should be refused planning permission, it may be more difficult for the Board to grant permission for proposed development that does not support the climate plans, policies and objectives listed in section 15. Given the onerous nature of the obligation to comply with these plans, policies, and objectives in so far as practicable, this case will likely impact applications for proposed developments that will require a large amount of energy or may cause significant emissions. However, permission for such developments could be justified because they support energy security or where there may be displacement effects where permission is refused in Ireland.

In addition, this case will apply to many other public bodies that are ‘relevant bodies’ for the purposes of section 15.

The Board is seeking leave to appeal the judgment on a specific ground relating to how it used its discretion to refuse permission by reference to the Development Plan, despite its obligations under section 15. We will issue further updates on relevant developments regarding the appeal.

We also await further cases relating to section 15 with interest to see how the courts will decide cases where the Board had given more detailed consideration to its section 15 obligations than it did in this case.

Contributed by Aoife Garvey.