Wind farm planners granted Judicial Review in 'significant' High Court case
The principal grounds of the challenge was that the board had erred in law in failing to comply with its obligations under Section 15 of the Climate Action and Low Cabon Development Act 2015.
Recently, the Irish Courts considered the obligations imposed on public bodies under the Climate Action and Low Carbon Development Act 2015. The case concerned an application to construct a wind farm in Co Laois.
An Bord Pleanála rejected Planning Permission for the wind farm, citing the local development plan designation for wind turbines. Under the local County Development Plan in Laois, wind farms could not be constructed in the relevant area based on various criteria.
The developer sought to appeal the decision by way of judicial review before the High Court, arguing that Section 15(1) of the 2015 Act as well as in line with other European Law obligations and obligations under the European Convention and Human Rights, that the Planning Authority had an obligation to interpret its planning decisions, such that climate considerations would take priority over the development plan and that the authority had therefore taken inadequate account of Section 15 of the Climate Act.
Section 15 of the Climate Act states that a relevant public body shall perform its functions in a manner consistent with the most recent approved Climate Action Plan, the most recent approved National Climate Action Strategy, the most recent National Adaptation Framework, and in furtherance of the National Climate Objective and the objective of reducing greenhouse gas emissions and adapting the effects of climate change in the state.
In this particular case, 12 of the 13 proposed wind turbines were located in areas that were not open for consideration for wind farm development as per the Laois County Development Plan.
Accordingly, a Grant of Permission for the proposal then would have been a material contravention of the Laois County Development Plan and its associated wind energy strategy.
The board adopted the inspector's report and accordingly refused Planning Permission.
The developer applied for judicial review, seeking certiorari quashing the decision of the board. The principal grounds of the challenge was that the board had erred in law in failing to comply with its obligations under Section 15 of the Climate Action and Low Cabon Development Act 2015. The submissions essentially were that the board had failed to carry out its functions insofar as practicable with the Climate Action Plan.
Mr Justice Humphreys, the judge who dealt with the case in the High Court, undertook a detailed consideration of the interpretation of Section 15 of the 2015 Act and summarised the board’s obligations under Section 15, which was when making a decision it had to be relevant to the achievement of the climate objectives.
The court found that the board failed to exercise its power in a manner compliant with the Climate Objectives and policies set out in the Climate Act. The High Court also noted that there was a breach of duty under the European Court of Human Rights Legislation and other European law.
The court granted the application for judicial review and ordered that the application be remitted to An Bord Pleanála for further consideration in accordance with the Judgement.
This is a significant case and places obligations on public bodies, particularly planning bodies, in respect of renewable energy developments and indicates that such state bodies will have to factor in Climate Objectives before making decisions, and this certainly will have significant impacts or repercussions on the renewable energy sector for wind and solar developers who are bringing planning applications to construct solar or wind farms, particularly on agricultural lands.
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- Disclaimer: While every care is taken to ensure the accuracy of the information contained in this article, solicitor Stephen Coppinger does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.
