Coolglass Windfarm Ltd v An Bord Pleanala (Approved)

Factual and Procedural Background

The Applicant submitted a proposal for a 13-turbine wind farm and associated works in multiple townlands within County Laois. The planning process included pre-application consultations with the Board, submission of an environmental impact assessment report and a Natura Impact Statement, and receipt of numerous public observations and submissions from prescribed bodies. The local county council's chief executive reported that 12 of the 13 turbines were located in areas designated as "not open for consideration" for wind farm development, constituting a material contravention of the County Development Plan (CDP) 2021-2027 and its Wind Energy Strategy (WES).

The Board classified the project as strategic infrastructure development and advised the Applicant to submit a planning application, which was subsequently refused permission by the Board in August 2024. The refusal was based primarily on the material contravention of the CDP objectives CM RE 7 and WES 7, concluding that the development would be contrary to proper planning and sustainable development.

The Applicant was granted leave to seek judicial review of the Board's decision in October 2024, with expedited procedures applied. The matter was heard in December 2024. The Applicant challenged the Board's decision on multiple grounds, including statutory interpretation of section 15(1) of the Climate Action and Low Carbon Development Act 2015 (as amended 2021), alleged failure to properly exercise discretion under the Planning and Development Act 2000, and breaches of EU law and the European Convention on Human Rights (ECHR).

Legal Issues Presented

1. Whether the Board erred in law by relying on section 37(2) of the Planning and Development Act 2000 instead of section 37G when considering material contravention of the development plan.
2. Whether the Board improperly abrogated its obligations under section 15 of the Climate Action and Low Carbon Development Act 2015 and its jurisdiction under the 2000 Act to the Office of the Planning Regulation and/or the Minister.
3. Whether the Board failed to comply with its obligations under section 15 of the Climate Action and Low Carbon Development Act 2015 (as amended), specifically the duty to perform its functions consistently, insofar as practicable, with approved climate action plans and objectives.
4. Whether the Board failed to exercise its functions compatibly with the State's obligations under Articles 2 and 8 of the ECHR in accordance with the European Convention on Human Rights Act 2003.
5. Whether the Board failed to treat the proposed development as being in the overriding public interest under Article 3(2) of Regulation (EU) 2022/2577 regarding renewable energy deployment.
6. Whether the Board breached the duty of sincere cooperation under Article 4(3) of the Treaty on the European Union by refusing to grant permission in material contravention of the development plan, thereby jeopardising the attainment of EU climate objectives.

Arguments of the Parties

Applicant's Arguments

• The Board incorrectly applied section 37(2) of the 2000 Act, which governs appeals, rather than section 37G, which applies to strategic infrastructure developments, thereby applying an improper and more restrictive test to material contravention.
• The Board unlawfully delegated or abrogated its statutory obligations under section 15 of the Climate Act and its discretionary powers under the 2000 Act to the Office of the Planning Regulation and the Minister, failing to independently consider its duties.
• The Board failed to comply with section 15(1) of the Climate Act by not performing its functions consistently, insofar as practicable, with climate action plans and objectives, notably the Climate Action Plan 2024 and legally binding renewable energy targets.
• The refusal to grant permission was inconsistent with the urgent national and EU climate objectives and was contrary to proper planning and sustainable development when considered in the context of climate emergency obligations.
• The Board's failure to exercise its discretion in light of climate obligations breached the European Convention on Human Rights, particularly Article 8, imposing positive obligations on the State to protect health and life from climate change effects.
• The proposed development should have been treated as being in the overriding public interest under EU Regulation 2022/2577, requiring priority be given to renewable energy projects in the planning process.
• The Board's approach undermines the achievement of national, EU, and international climate goals and sets an undesirable precedent for future developments in protected areas.

Respondent's Arguments

• The Board contends that the decision referred to section 37G of the 2000 Act and that the Applicant has not demonstrated that the Board failed to exercise its powers under that provision.
• The Board denies that section 15 of the Climate Act requires it to grant permission for any individual development and asserts that no statutory or policy provisions mandate such an outcome simply because a project is renewable energy-related.
• The Board maintains that it lawfully exercised its discretion based on proper planning and sustainable development principles and that it was entitled to refuse permission due to material contravention of the development plan.
• The Board denies abrogation of its statutory obligations to the Office of the Planning Regulation or the Minister and characterises the Applicant's challenge as an impermissible collateral attack on the development plan process.
• The Board submits that the pleas under EU law grounds do not meet procedural requirements and that the relevant EU regulations do not impose the effects contended by the Applicant in this case.
• The Board argues that the duty of sincere cooperation under EU law does not impose enhanced obligations beyond those set out in national legislation.

Notice Parties' Arguments

• The Notice Parties assert that section 15 of the Climate Act cannot be interpreted in a manner that displaces or undermines other legal obligations and planning considerations, preserving the integrity of the planning system.
• They do not intend to file opposition papers and have limited their submissions accordingly.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the fact-specific grounds, focusing on the Board's erroneous reliance on section 37(2) of the 2000 Act instead of section 37G when considering material contravention. The court found that section 37G(6) provides a more permissive discretion to grant permission despite contravention, and the Board's reliance on the wrong statutory provision vitiated its decision on conventional administrative law grounds.

The court also found that the Board improperly took into account an irrelevant consideration by relying on the absence of changes to the development plan following oversight by the Office of the Planning Regulation and the Minister, effectively abrogating its statutory obligations under section 15 of the Climate Act and fettering its discretion.

Turning to the statutory interpretation of section 15(1) of the Climate Action and Low Carbon Development Act 2015 (as amended by the 2021 Act), the court undertook a detailed analysis of the language, context, and purpose of the provision. It rejected the Board's and State's narrower interpretations that reduced the obligation to a mere "have regard to" or advisory role, instead concluding that section 15(1) imposes a mandatory duty to perform functions consistently, insofar as practicable, with approved climate action plans and objectives.

The court emphasized the imperative nature of the obligation in light of the climate emergency, national and EU binding targets, and the need for urgent and far-reaching action. It noted relevant EU law principles requiring domestic law to be interpreted compatibly with EU obligations, and ECHR obligations imposing positive duties on the State to protect health and life from climate change.

The court found that the Board's decision failed to meaningfully engage with or comply with section 15(1), as neither the inspector's report nor the Board's decision referred to the Act or demonstrated consideration of its requirements. The Board simply equated material contravention of the development plan with refusal without assessing whether exercising discretion to permit would be practicable and consistent with climate goals.

The court rejected arguments that the Board's discretion should be narrowly construed or that climate obligations are subordinate to local planning policies motivated by visual or landscape concerns. It found the inspector's approach to be flawed and inconsistent with other decisions recognizing the primacy of climate emergency measures over local sensitivities.

Regarding the EU Regulation 2022/2577 ground, the court found that the specific provisions relating to overriding public interest in renewable energy projects did not clearly apply on the facts, as the refusal was based on development plan contravention rather than impacts on European sites.

The court upheld the grounds alleging breach of the duty of sincere cooperation under EU law and the ECHR Act 2003, finding that the Board failed to exercise its functions compatibly with these obligations by refusing permission without proper consideration of climate goals.

In summary, the court found multiple legal errors: reliance on the wrong statutory provision, taking irrelevant considerations into account, failure to comply with section 15(1) of the Climate Act, and breaches of EU and ECHR obligations. These errors collectively rendered the Board's decision unlawful.

Holding and Implications

The court made the following orders:

• Certiorari was granted to quash the Board's decision refusing permission for the proposed wind farm.
• The matter was remitted to the Board to reconsider the application in accordance with the judgment, including proper application of section 15(1) of the Climate Act and relevant statutory provisions.
• Costs were provisionally awarded to the Applicant against the Respondent, with no order as to costs in favor of or against the State parties.
• A stay on remittal and execution of costs was ordered pending final determination of the proceedings.
• The parties agreed to seek leapfrog leave to appeal to the Supreme Court, with certification of points of law.
• The Board was granted liberty to file additional affidavit evidence without prejudice, and the judgment was re-opened for limited matters related to a separate ground (core ground 2), with liberty to re-enter as necessary.

The direct effect of this decision is to invalidate the Board's refusal and compel reconsideration consistent with the court's interpretation of statutory and constitutional climate obligations. No new binding precedent beyond this case was explicitly established, but the judgment provides authoritative guidance on the interpretation of section 15(1) of the Climate Act, the exercise of discretion under the Planning and Development Act 2000, and the integration of climate and human rights obligations in planning decisions.