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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Coolglas Windfarm Ltd v An Bord Pleanala (Approved) (Rev1) [2025] IEHC 1 (10 January 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC1.html Cite as: [2025] IEHC 1 |
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[2025] IEHC 1
[H.JR.2024.0001244]
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTIES
JUDGMENT of Humphreys J. delivered on Friday the 10th day of January 2025
"When a man says he approves of something in principle, it means he hasn't the slightest intention of putting it into practice" – Otto von Bismarck.
Geographical context
Facts
Procedural history
Relief sought
"i. An order of certiorari quashing the decision of An Board Pleanála (the 'Board') of 23 August 2024 (the 'Decision') to refuse permission to the Applicant for the construction of a
13 turbine wind farm and associated works in the townlands of Fossy Upper, Aghoney, Gorreelagh, Knocklead, Scotland, Brennanshill, Monamantrry, Coolgalss, Crissard, Kylenabehy, Monamanry, Brennanshill, Knocklead, Aghoney, Timahoe, Carrigeen, Ballygormill South, Money Upper, Hophall, Rathleague, Ballymooney, and Rathbrennan, County Laoise (the 'Proposed Windfarm').
ii. A declaration that the Board, in failing to approve adequate planning applications to meet Ireland's 2030 renewable energy targets in the Climate Action Plan 2024, is failing to comply with its obligations under section 15 of the Climate Action and Low Carbon Development Act 2015;
iii. Such declaration(s) of the legal rights and/or legal position of the Applicant and/or of the legal duties and/or legal position of the Board as the Court considers appropriate and, in particular, insofar as the Court considers it appropriate, declaratory relief with respect to the obligations of the Board under section 15 of the Climate Action and Low Carbon Development Act 2015 (as amended).
iv. An order remitting the matter to the Board with such directions as the Court considers appropriate.
v. Such further or other directions in relation to the affidavits filed in these proceedings or the hearing of these proceedings as may be necessary or appropriate.
vi. Further or other relief.
vii. An order providing for the costs of the within proceedings."
Grounds of challenge
"(1) Domestic Law Grounds
2 and 8 of the European Convention on Human Rights (the 'ECHR') in accordance with section
3 of the European Convention on Human Rights Act 2003, further particulars of which are set out in Part 2 below.
(2) EU Law Grounds
The fact-specific grounds
Core ground 4 – reliance on wrong section
"4. Core Ground 4: The Board erred in law and acted ultra vires in considering whether to grant permission notwithstanding that the Proposed Development materially contravened the Development Plan by reference to section 37(2) of the 2000 Act instead of section 37G of the 2000 Act, further particulars of which are set out in Part 2 below."
38. The Applicant's position is that Inspector incorrectly advised the Board: (i) that the Board's jurisdiction to materially contravene the Development Plan arose under section 37(2) of the 2000 Act, and (ii) that its jurisdiction was subject to the criteria cited in section 37(2)(b) of the 2000 Act (Inspector's Report, §11.3.23). The Board, therefore, incorrectly determined the application on the basis that its jurisdiction to materially contravene the Development Plan was circumscribed by the requirements of section 37(2)(b), which it was not, instead of determining the application having regard to its discretion under section 37G(6).
39. The Board's position is that the Board decision referred to s.37G of the PDA and the
onus is on the Applicant to demonstrate that the Board did not exercise its powers under that statutory provision. Insofar as the Inspector referred to s.37(2)(b) of the PDA, same must be understood in light of the Applicant's submissions which specifically quoted this provision and the Board decision must be read in context and in such a way as to render it valid. Further, the Applicant has not identified how the Inspector's analysis is irrational or unlawful or what factor(s) it might have relied on which are not captured by s.37(2) but potentially captured by s.37G(6)."
"The submissions on this file and the Inspector's report were considered at a Board meeting held on 09/08/2024.
The Board decided to refuse permission, generally in accordance with the Inspector's recommendation, for the following reasons and considerations. The Board also made a determination in relation to costs as set out hereunder.
Reasons and Considerations
Note 1:
The Board noted the matters raised relating to archaeology and cultural heritage, in the Department of Housing, Local Government and Heritage's submission (dated 6th October 2023) and the response to these by the applicant. Ordinarily these matters would elicit a request for further information, however, given the substantive reason for refusal the Board decided not to pursue those matters in this instance.
Note 2:
In deciding to refuse permission, the Board noted that at policy-making stage the planning authority's Wind Energy Strategy was subject to oversight by the Office of the Planning Regulator and subsequent Ministerial Direction. However, the Board noted that the areas designated where wind energy development was 'not open for consideration' remained unaltered with regards to the area of the proposed development in the final confirmed and adopted County Development Plan.
Schedule of Costs
In accordance with the provisions of section 37(H)(2)(c) of the 2000 Act (as amended), the
Board decided that the net amount due to be refunded to the applicant is €75,075.
Board Member: Tom Rabbette Date: 21/08/2024"
"11.3.23. The Board will be aware that under section 37(2)(a) of the Planning and Development Act 2000, as amended, it may, in determining an appeal under that section, decide to grant permission even if the proposed development contravenes materially the Development Plan. This decision-making power is subject to the provisions of paragraph (b), which stipulates that the Board may approve such developments under certain conditions: if the development is deemed strategically or nationally significant, if there are discrepancies or lack of clarity in the Development Plan's objectives regarding the project, if the development aligns with regional spatial and economic strategies, relevant government policies, or the statutory responsibilities of local authorities, or if it is consistent with the development trends and previous permissions in the area since the Development Plan was established.
11.3.24. In this instance, notwithstanding the Applicant's assertions of strategic importance and the imperatives of national energy policy, the compelling weight of evidence regarding the unsuitability of the site for wind farm development based on established policy provisions, significant visual impact, and landscape sensitivity, as well as oversight by the OPR and Ministerial Direction in 2022 is overwhelming. The proposed development not only challenges the integrity of the Laois County Development Plan but also raises substantive concerns about the precedent it sets for future developments within protected and sensitive areas. Therefore, considering all these factors and maintaining alignment with the principles of proper planning and sustainable development, I recommend refusing permission for the proposed development."
"(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission even if the proposed development contravenes materially the development plan relating to the area of the planning authority to whose decision the appeal relates.
(b) Where a planning authority has decided to refuse permission on the grounds that a proposed development materially contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it considers that—
(i) the proposed development is of strategic or national importance,
(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or
(iii) permission for the proposed development should be granted having regard to regional spatial and economic strategy for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or
(iv) permission for the proposed development should be granted having regard to the pattern of development, and permissions granted, in the area since the making of the development plan.
(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall, in addition to the requirements of section 34(10), indicate in its decision the main reasons and considerations for contravening materially the development plan."
"(6) The Board may decide to grant a permission for development, or any part of a development, under this section even if the proposed development, or part thereof, contravenes materially the development plan relating to any area in which it is proposed to situate the development."
totally conventional administrative law grounds.
"While it is noted that many of the submissions reference their agreement in principle in respect of merits of renewable energy, there is resistance to the location of such a proposal within the locality for the range of reasons outlined in the summary of submissions received above. In order to address Climate Change, I would suggest that other elements of our environment and the context within which the environment is perceived must also change. This includes in particular the visual context of an area which cannot be expected to remain unchanged in perpetuity but particularly within the context of a climate emergency."
Core ground 3 – abrogation to Minister/OPR
"3. Core Ground 3: The Decision is invalid as the Board purported to abrogate its obligations under section 15 of the 2015 Act and/or its jurisdiction under section 37G and/or 37(2)(b) of the 2000 Act to the Office of the Planning Regulation (the 'OPR') and/or the Minister for Housing, Local Government and Heritage (the 'Minister'), and in doing so failed to properly exercise its jurisdiction and/or fettered its discretion under those sections and/or had regard to an irrelevant consideration, further particulars of which are set out in Part 2 below."
"Core Ground 3: Abrogation of the Board's obligations under section 15 of the 2015 Act and/or its jurisdiction under section 37G of the 2000 Act
36. The Board did not expressly state a reason for its decision not to exercise its discretion to grant permission in material contravention of the Development Plan under section 37G(6) of the 2000 Act. However, Note 2 to the Direction and the relevant portions of the Inspector's Report (11.3.24 and §§12.5.30 – 12.5.33) make apparent that the Inspector and the Board decided that, 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 obligation imposed by section 15 of the 2015 Act on the Board is not delegable and the Board had to perform, and to give consideration as to how to perform, its functions consistently with the Climate Plans and Objectives, regardless of what steps had or had not been taken by the OPR and the Minister. The Board therefore impermissibly purported to abrogate its obligations under section 15 of the 2015 Act and/or its jurisdiction under section 37G of the 2000 Act to the OPR and/or the Minister.
37. The Board's position is that the Board Direction and Order clearly record the reasons for the Board's refusal and are to be considered in addition to the Inspector's Report which details why the Inspector considered that a grant in material contravention of the CDP was not appropriate. Insofar as the Applicant relies on Note 2 to ground a complaint that the Board abrogated its jurisdiction, this is denied. Without prejudice thereto, the pleas in respect of Note 2 comprise an impermissible collateral attack on the CDP process and the Applicant cannot impugn the Board decision by such means."
"Note 2:
In deciding to refuse permission, the Board noted that at policy-making stage the planning authority's Wind Energy Strategy was subject to oversight by the Office of the Planning Regulator and subsequent Ministerial Direction. However, the Board noted that the areas designated where wind energy development was 'not open for consideration' remained unaltered with regards to the area of the proposed development in the final confirmed and adopted County Development Plan."
The other grounds
Core ground 1 - breach of 2015 Act
"1. Core Ground 1: The Decision is invalid as 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 the Decision, and in particular in failing to exercise its discretion under section 37G and/or section 37(2)(b) of the Planning and Development Act 2000 (as amended) (the '2000 Act') in accordance with the requirements of section 15 of the 2015 Act, further particulars of which are set out in Part 2 below."
"Core Ground 1: Failure to comply with Section 15 of the Climate Action and Low Carbon Development Act 2015
31. The Applicant's position is that the Board failed to comply with its obligations under section 15 of the Climate Action and Low Carbon Development Act 2015 (the '2015 Act') in making the Decision. Section 15 of the 2015 Act requires the Board to carry out its functions consistently, insofar as practicable, with specified climate plans and objectives (the 'Climate Plans and Objectives'), which include the Climate Action Plan 2024 ('CAP24'). Refusing permission for the Proposed Windfarm was inconsistent with the achievement of the targets set by CAP24 of achieving 9 GW of onshore wind and an 80% share of renewable electricity by 2030. In those circumstances, the Board was required to grant permission for the Proposed Windfarm, unless it determined that it was not practicable for it to do so. In that context, where the obligation on the Board under section 15 to act 'consistently', insofar as practicable, with the Climate Plans and Objectives is more stringent than the obligation on the Board under section 37G(2)(c) of the Planning and Development to 'consider' the provisions of the Development Plan, the Board was required to exercise its discretion under section 37G(6) to materially contravene the Development Plan, unless it was not practicable for it to do so. The Board therefore erred in law and acted contrary to section 15 of the 2015 Act in refusing permission for the Windfarm Development on the sole basis that it materially contravened the Development Plan.
32. The Board denies that it failed to comply with s.15 of the 2015 Act and further denies that s.15 requires it to grant planning permission for any individual development and, in particular, for the proposed development which the Board otherwise concluded is contrary to the proper planning and sustainable development of the area. None of the statutory or policy provisions recited by the Applicant mandate a grant of planning permission for a proposed development simply because it is a renewable energy development and nor do they require the Board to subjugate all other planning and environmental considerations, such that the fact that the proposed development may bring benefits in climate terms necessarily overrides other relevant planning considerations. The Board was entitled to reach the conclusion it did and there is no statutory obligation on the Board to contravene materially the CDP.
33. The Notice Parties position is that while section 15 (as amended in 2021) imposes a stronger obligation on relevant bodies, including the Respondent, than that originally imposed in 2015, section 15 of the 2015 Act cannot be interpreted in such a way that it would displace or disapply other legal obligations to which the Respondent is subject; that it would undermine the integrity of the planning system generally; or that it would transform a discretionary power vested in the Respondent, in the context of complex decision-making requiring the balancing of a wide range of interests, into a presumption that, subject to practicability, a specific outcome or result must follow."
Factors relevant to statutory interpretation here
[2023] IESC 10, [2023] 1 ILRM 335 ("A, B, C") (at para. 73) Murray J. said:
"... it is to be remembered that the cases – considered most recently in the decision of this court in Heather Hill Management Company CLG and anor. v. An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313 – have put beyond doubt that language, context and purpose are potentially in play in every exercise in statutory interpretation, none ever operating to the complete exclusion of the other. The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting or contextualising the apparent meaning of those words."
"159. In both McCallig [v. An Bord Pleanála (No. 2) [2014] IEHC 353 (Unreported, High Court, Herbert J., 5th June 2014)] and the Court of Appeal judgment in this case, reference was made to 'the presumption against radical amendments'. …
160. I cannot but think that this principle is sometimes now applied beyond its proper limits. One would expect that every statute 'changes' the law, and the limitations of language are such that it often happens that it can be said a law lacks clarity. Few statutes do not in some shape or form impinge upon rights (and in particular property rights) or effect alterations to the general law that cannot be described from someone's perspective as significantly departing from the pre-existing legal assumptions. There is no presumption against any of this. What there is, as the quoted passage shows, is a presumption that imprecise language will not be interpreted so as to impose significant changes to the pre-existing law particularly 'where the change is contrary to the actual objects of the Act'. To that might be added a related presumption that legislation will be strictly construed when it interferes with vested rights.
161. Where this has happened, however, it can be easily spotted. …
162. In this case, it might be argued that the legislation affects the rights of those who are respondents in proceedings to which the provision applies. Before the Act such persons might have enjoyed at least the expectation that they could apply for their costs if they successfully defended the claims against them, and they might say that the legislation should be strictly construed so as to maintain the status quo to the greatest extent possible having regard to the language of the section. But even if such a case could be made (and I express no view here as to the extent to which such an expectation has any legal effect) the fact is that there can be no doubt but that here the court is concerned with legislation which clearly and on any view effects radical changes to the law. That was the whole point. So, the argument is not as much that there should be an assumption that s. 50B did not radically change the law, but rather that the radical change in the law which it did introduce should be more limited than the language used to express it suggests. The language in the provision is not lacking in clarity, and the object for which the respondent contends is not supported by the text of the legislation. The respondent's argument therefore seeks to read down clear words by reference to an asserted but unsubstantiated purpose, not to interpret unclear language having regard to an object evident from the text. The presumption deployed is simply of no application where a major change in the law is clearly envisaged by the language used in the provision in question (and see Farrell v. Attorney General [1998] 1 IR 203, 226 per Keane J.)."
(i) the language of s. 15(1);
(ii) the context of s. 15(1);
(iii) the purpose of s. 15(1);
(iv) a conforming interpretation in EU law terms;
(v) a conforming interpretation in ECHR terms;
(vi) conclusion on interpretation; and
(vii) application of the law to the facts here.
Factor I – The language of s. 15(1)
"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."
(i) Simple have-regard obligations – the decision-maker has to take the matter into account but is free to depart from it. The weight to be attached to the matter is in principle for the decision-maker. This can also be phrased as requirement to consider something. An example from the 2000 Act, s. 18(3)(a):
"(3) (a) When considering an application for permission under section 34, a planning authority, or the Board on appeal, shall have regard to the provisions of any local area plan prepared for the area to which the application relates, and the authority or the Board may also consider any relevant draft local plan which has been prepared but not yet made in accordance with section 20."
(ii) Intensified have-regard obligations – the decision-maker is directed to have due or adequate or reasonable or appropriate regard to something. The weight to be given to the matter is now no longer totally discretionary. That implies something more than merely considering it and implies that the matter be given a degree of weight – not binding weight of course but material weight. It would normally mean an intensified duty of giving reasons – so that it would be clear why the decision-maker came to a conclusion different to the one that would be suggested by having regard to that factor in the event of such a different conclusion. An example from the Water Environment (Abstractions and Associated Impoundments) Act 2022, s. 86(2):
"(2) Without prejudice to the generality of subsection (1), or section 20 (2)(i), the Agency, in considering an application by Waterways Ireland under Part 5 for a licence stated in the application to be necessary for the management, operation or maintenance of navigable water or a canal or navigation thereon, shall have due regard to the functions conferred on Waterways Ireland under the Canals Act 1986 and the Act of 1990 and the need to protect navigation in navigable waters or canals."
Or a definition from s. 2 of the Freedom of Information Act 1997:
"'determined' means determined by the Minister and, in relation to a form, means determined having had appropriate regard to the needs of requesters, and cognate words shall be construed accordingly".
(iii) Comply-with to a reasonableness standard obligations – only reasonable as opposed to total compliance is required. An example from the Schedule to the S.I. No. 79 of 1981 - Harbour Rates (Dublin Harbour) Order 1981:
"2. Where 'by arrangement' is used in relation to any commodity mentioned in this Schedule the rates fixed in relation to that commodity shall be in reasonable conformity with the general standard of rates in the Schedule."
(iv) Comply-with insofar as relates to the achievement of objectives. Such an obligation leaves to the decision-maker the choice of detail of compliance but is mandatory as to the overall result to be achieved. A member state's choice of transposing measures falls into this category. Article 288 TFEU provides inter alia:
"A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."
Section 10(1A) of the 2000 Act is in this category – compliance with the National Planning Framework (NPF) and Regional Spatial and Economic Strategy (RSES) is as to objectives only, not to every jot and tittle of those documents (Killegland Estates Ltd. v. Meath County Council [2022] IEHC 393 (Unreported, High Court, 1st July 2022) at para. 146) and indeed must also take account of the fact that provisions in the NPF for example may only require general compliance rather than being highly prescriptive – Killegland Estates Ltd v. Meath County Council [2023] IESC 39 (Unreported, Supreme Court, Hogan J., 21st December 2023) at para. 101. Section 10(1A) states:
"(1A) The written statement referred to in subsection (1) shall include a core strategy which shows that the development objectives in the development plan are consistent, as far as practicable, with national and regional development objectives set out in the National Planning Framework and the regional spatial and economic strategy and with specific planning policy requirements specified in guidelines under subsection (1) of section 28."
(v) Comply-with as far as practicable or possible – the decision-maker is required to comply with the matter in question, unless it is not possible or practicable to do so (concepts that are linguistically separate but only infrequently different in practice). Practicable means capable of being put into practice, not merely doing what is reasonable. This is a very high standard only just falling short of unconditional compliance requirements. It applies only unless compliance is not feasible: Lord Goddard L.C.J. in Lee v. Nursery Furnishings Ltd [1945] 1 All ER 387, Budd J. in O'Donovan v. Attorney General [1961] I.R. 114. Practicability is more exacting that reasonableness: Gillen v. Commissioner of An Garda Síochána [2012] IESC 3, [2012] 1 IR 574 per O'Donnell J. at para. 5: it is a "demanding and somewhat unforgiving standard". Practicability is objective and is not based on the subjective view of the actor concerned. An example from the Roads Act 1993, s. 18(6):
"(6) In the performance of its functions, the Authority shall comply as far as possible with any plan approved under subsection (2)."
(vi) Compliance subject only to specified exception – here there must be straight compliance unless an exception applies. If the exception doesn't apply then there is not a further get-out clause of practicability or reasonableness. An example is s. 3 of the ECHR Act 2003:
"3.—(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions."
(vii) Unconditional comply-with obligations – these are straight obligations to comply with something with no exceptions envisaged. An example from the Local Government (Mayor of Limerick) and Miscellaneous Provisions Act 2024, s. 60(2):
"(2) The panel may, if it considers it appropriate to do so, request the Mayor, the Príomh Chomhairleoir, the director general or any member to provide specified documentation or information within a period specified in writing by the panel and the person so requested shall comply with the request."
Or s. 19(3) of the 2000 Act:
"(3) The Minister may provide in regulations that local area plans shall be prepared in respect of certain classes of areas or in certain circumstances and a planning authority shall comply with any such regulations."
Factor II – The context of s. 15(1)
"15. (1) A relevant body shall, in the performance of its functions, have regard to—
(a) the most recent approved national mitigation plan,
(b) the most recent approved national adaptation framework and approved sectoral adaptation plans,
(c) the furtherance of the national transition objective, and
(d) the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.
(2) The relevant Minister may, from time to time, give a direction to a relevant body requiring it to prepare, and submit to him or her, within such period as may be specified in the direction, a report specifying—
(a) the measures that the relevant body has adopted for the purposes of compliance by that relevant body with subsection (1), and
(b) the progress made by the relevant body in the performance of its functions in the manner referred to in that subsection.
(3) The relevant Minister may, from time to time, give a direction to a relevant body requiring it to adopt such measures as are specified in the direction for the purposes of compliance by the relevant body with subsection (1).
(4) A relevant body shall comply with a direction under this section.
(5) In this section—
'Act of 2014' means the Freedom of Information Act 2014 ;
'prescribed body' has the same meaning as it has in the Act of 2014;
'public body' has the same meaning as it has in the Act of 2014;
'relevant body' means—
(a) a prescribed body, and
(b) a public body;
'relevant Minister' means, in relation to a relevant body that is—
(a) a public body—
(i) referred to in section 6(1)(a) of the Act of 2014, the Minister of the Government having charge of the Department of State concerned,
(ii) referred to in section 6(1)(b) of the Act of 2014, such Minister of the Government as the Government may designate in relation to that public body,
(iii) referred to in section 6(1)(c) of the Act of 2014 that was established or appointed by—
(I) the Government, such Minister of the Government as the Government may designate in relation to that public body, or
(II) a Minister of the Government, the Minister of the Government who established or appointed the public body concerned,
(iv) referred to in paragraph (d) or (e) of section 6(1) of the Act of 2014, such Minister of the Government as the Government may designate in relation to that public body,
(v) referred to in section 6(1)(f) of the Act of 2014, that is directly or indirectly controlled by—
(I) a public body to which subparagraph (ii) or (iv) relates, such Minister of the Government as the Government may designate in relation to that public body,
(II) a public body to which subparagraph (iii)(I) relates, such Minister of the Government as the Government may designate in relation to that public body, or
(III) a public body to which subparagraph (iii)(II) relates, the Minister of the Government who established or appointed the public body referred to in section 6(1) (c) of the Act of 2014,
(vi) referred to in section 6(1)(g) of the Act of 2014, the Minister for Education and Skills,
(vii) referred to in section 6(1)(h) of the Act of 2014 (other than a public body referred to in subparagraphs (i) to (iv)), such Minister of the Government as the Government may designate in relation to that public body, and
(viii) referred to in paragraph (a) or (b) of section 6(2) of the Act of 2014 (other than a public body referred to in subparagraphs (i) to (iv)), such Minister of the Government as the Government may designate in relation to that public body,
and
(b) a prescribed body, such Minister of the Government as the Government may designate in relation to that public body."
"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.
(2) The relevant Minister may, from time to time, give a direction to a relevant body requiring it to prepare, and submit to him or her, within such period as may be specified in the direction, a report specifying—
(a) the measures that the relevant body has adopted for the purposes of compliance by that relevant body with subsection (1), and
(b) the progress made by the relevant body in the performance of its functions in the manner referred to in that subsection.
(3) The relevant Minister may, from time to time, give a direction to a relevant body requiring it to adopt such measures as are specified in the direction for the purposes of compliance by the relevant body with subsection (1).
(4) A relevant body shall comply with a direction under this section.
(5) In this section—
'Act of 2014' means the Freedom of Information Act 2014; 'prescribed body' has the same meaning as it has in the Act of 2014; 'public body' has the same meaning as it has in the Act of 2014;
'relevant body' means—
(a) a prescribed body, and
(b) a public body;
'relevant Minister' means, in relation to a relevant body that is—
(a) a public body—
(i) referred to in section 6(1)(a) of the Act of 2014, the Minister of the Government having charge of the Department of State concerned,
(ii) referred to in section 6(1)(b) of the Act of 2014, such Minister of the Government as the Government may designate in relation to that public body,
(iii) referred to in section 6(1)(c) of the Act of 2014 that was established or appointed by—
(I) the Government, such Minister of the Government as the Government may designate in relation to that public body, or
(II) a Minister of the Government, the Minister of the Government who established or appointed the public body concerned,
(iv) referred to in paragraph (d) or (e) of section 6(1) of the Act of 2014, such Minister of the Government as the Government may designate in relation to that public body,
(v) referred to in section 6(1)(f) of the Act of 2014, that is directly or indirectly controlled by—
(I) a public body to which subparagraph (ii) or (iv) relates, such Minister of the Government as the Government may designate in relation to that public body,
(II) a public body to which subparagraph (iii)(I) relates, such Minister of the Government as the Government may designate in relation to that public body, or
(III) a public body to which subparagraph (iii)(II) relates, the Minister of the Government who established or appointed the public body referred to in section 6(1) (c) of the Act of 2014,
(vi) referred to in section 6(1)(g) of the Act of 2014, the Minister for Education and Skills,
(vii) referred to in section 6(1)(h) of the Act of 2014 (other than a public body referred to in subparagraphs (i) to (iv)), such Minister of the Government as the Government may designate in relation to that public body, and
(viii) referred to in paragraph (a) or (b) of section 6(2) of the Act of 2014 (other than a public body referred to in subparagraphs (i) to (iv)), such Minister of the Government as the Government may designate in relation to that public body,
and
(b) a prescribed body, such Minister of the Government as the Government may designate in relation to that public body."
supranational obligations is well summarised on behalf of the applicant by Mr O'Sullivan:
"53. The key elements of that framework, relevant to these proceedings, are inter alia as follows:
i. Section 3(1) of the 2015 Act puts in place a mandatory climate objective, known as its 'national transition objective': 'the State shall, so as to reduce the extent of further global warming, pursue and achieve, by no later than the end of the year 2050, the transition to a climate resilient, biodiversity rich, environmentally sustainable and climate neutral economy'.
ii. To achieve this mandatory objective, the Climate Act puts in place:
I. binding carbon budgets, which limit the permitted emissions for Ireland over three successive periods between 2021 and 2035 (section 6A, 6B and 6D),
II. binding sectoral emissions ceilings, which limit the permitted emissions for specified sectors over those periods (section 6D),
III. a climate action plan, which must be consistent with the carbon budget programme, and set out inter alia sector specific actions that are required to comply with the carbon budget and sectoral emissions ceiling for the period to which the plan relates (section 4),
IV. a national long term climate action strategy, which must be consistent with the carbon budget programme and set out the manner in which it is proposed to achieve the national climate objective (section 4), and
V. a national climate change adaptation framework (section 5).
iii. Section 6A(6) further puts on a legally binding footing Ireland's interim target of
51% emissions reductions relative to 2018 levels by 2030.
iv. To ensure that the foregoing objectives are complied with in practice, section 15 of the 2015 Act requires that public bodies shall, in so far as practicable, perform its functions in a manner consistent with the Climate Plans and Objectives.
v. A detailed monitoring and implementation framework is put in place through section 12 of the 2015 Act, which requires the Climate Change Advisory Council ('CCAC') to prepare annual reviews on the progress made during the immediately preceding year in: (i) achieving reductions in greenhouse gas emissions, (ii) complying with the carbon budget and each sectoral emissions ceiling for that period, and (iii) furthering the achievement of the national climate objective, and to make recommendations with respect inter alia to measures necessary with respect to the achievement of the sectoral emissions ceilings, the national climate objective, or any international or EU law obligations.
vi. CCAC reviews are required to have regard, inter alia, to Environmental Protection Agency ('EPA') greenhouse gas emissions projections."
"3. (1) The State shall, so as to reduce the extent of further global warming, pursue and achieve, by no later than the end of the year 2050, the transition to a climate resilient, biodiversity rich, environmentally sustainable and climate neutral economy (in this Act referred to as the 'national climate objective').
(2) For the purpose of enabling the State to pursue and achieve the national climate objective, the Minister shall make and submit to the Government for approval—
(a) carbon budgets in accordance with sections 6B and 6D,
(b) a sectoral emissions ceiling in accordance with section 6C,
(c) a climate action plan in accordance with section 4,
(d) a national long term climate action strategy in accordance with section 4, and
(e) a national adaptation framework in accordance with section 5.
(3) The Minister and the Government shall carry out their respective functions under sections 4, 5, 6, 6A, 6B, 6C and 6D in a manner—
(a) that is consistent with the ultimate objective specified in Article 2 of the United Nations Framework Convention on Climate Change done at New York on 9 May 1992, and:
(i) any mitigation or adaptation commitments entered into by the European Union in response or otherwise in relation to that objective;
(ii) the steps specified in Articles 2 and 4(1) of the Agreement done at Paris on 12 December 2015 to achieve that objective,
and
(b) which takes account of the most recent national greenhouse gas emissions inventory and projection of future greenhouse gas emissions, prepared by the Agency.
(4) The Minister shall consult with the Advisory Council for the purpose of the performance, by him or her, of his or her functions under sections 4, 5 and 6.
(5) The Government may consult with the Advisory Council for the purpose of the
performance by them of their functions under sections 4 to 6D."
"Climate action plan and national long term climate action strategy
4. (1) The Minister shall, to enable the State to pursue and achieve the national climate objective—
(a) prepare an annual update to the Climate Action Plan 2019 to Tackle Climate Breakdown, published by the Minister on 17 June 2019 (in this Act referred to as a 'climate action plan'), and
(b) prepare, not less frequently than once every 5 years, a national long term climate action
strategy (in this Act referred to as a 'national long term climate action strategy').
(2) The Minister shall, when preparing a climate action plan under subsection (1)(a)—
(a) ensure that the plan is consistent with the carbon budget programme,
(b) set out a roadmap of actions, to include—
(i) sector specific actions that are required to comply with the carbon budget and sectoral emissions ceiling for the period to which the plan relates,
(ii) sector specific actions that are required to address any failure, or projected failure, to comply with the carbon budget and sectoral emissions ceiling for the period to which the plan relates, and
(iii) other actions and measures that are reasonably necessary to support Government policy on climate change, including measures to inform, and promote dialogue with, the public regarding the challenges and opportunities in the transition to a climate neutral economy,
and
(c) consult with—
(i) any other Minister of the Government as he or she considers appropriate, including each Minister of the Government who has responsibility for sector specific actions, and
(ii) the public and such persons as he or she considers appropriate.
(3) The roadmap of actions referred to in subsection (2)(b) shall—
(a) specify measures that, in the Minister's opinion, will be required for the first budget
period in a carbon budget programme,
(b) set out an overview of the policies and, to the extent feasible, measures, that, in the Minister's opinion, will be required for the second budget period in a carbon budget programme, and
(c) outline potential policies that, in the Minister's opinion, may be required for the third
budget period in a carbon budget programme.
(4) The Minister shall, in each year, commencing with the year 2021, submit a draft of the climate action plan to the Government for approval.
(5) The national long term climate action strategy shall specify the manner in which it is proposed to achieve the national climate objective and shall include—
(a) projected reductions in greenhouse gas emissions and the enhancement of sinks, for a minimum period of 30 years,
(b) projected reductions in greenhouse gas emissions in each of the relevant sectors determined by the Government under section 6C and the enhancement of removals in such sectors, for a minimum period of 30 years, and
(c) an assessment of potential opportunities for achieving reductions in greenhouse gas emissions in the sectors referred to in paragraph (b).
(6) When preparing the national long term climate action strategy the Minister shall—
(a) ensure that the strategy is consistent with the carbon budget programme,
(b) have regard to Article 15 of Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 20181 on the Governance of the Energy Union and Climate Action, and
(c) consult with—
(i) any other Minister of the Government as he or she considers appropriate, and
(ii) members of the public and such persons as he or she considers appropriate.
(7) The Minister shall, as soon as may be after a draft national long term climate action strategy has been prepared, submit the draft national long term climate action strategy to the Government for approval.
(8) For the purposes of performing their respective functions under this section, the Minister and the Government shall have regard to the following matters:
(a) the need to deliver the best possible value for money consistent with the sustainable management of the public finances and to maximise, as far as practicable, the net benefits to society taking into account the impact of greenhouse gas emissions;
(b) the need to promote sustainable development and restore, and protect, biodiversity;
(c) relevant scientific or technical advice;
(d) climate justice;
(e) any recommendations or advice of the Advisory Council;
(f) the social and economic imperative for early and cost-effective action in relation to climate change;
(g) in so far as practicable, the need to maximise employment, the attractiveness of the State for investment and the long term competitiveness of the economy;
(h) the fact that the means of achieving a climate neutral economy and other measures to enable the State to pursue the national climate objective may not yet be fully identified and may evolve over time through innovation, evolving scientific consensus and emerging technologies;
(i) the role of behavioural change on the part of individuals and different sectors of society in supporting the Government to pursue the national climate objective and the policies and measures required to effect such change;
(j) the risk of substantial and unreasonable carbon leakage as a consequence of measures implemented by the State to pursue the national climate objective;
(k) the requirement for a just transition to a climate neutral economy which endeavours, in so far as is practicable, to—
(i) maximise employment opportunities, and
(ii) support persons and communities that may be negatively affected by the transition;
(l) the protection of public health;
(m) the National Planning Framework (or, where appropriate, the National Spatial Strategy);
(n) the special economic and social role of agriculture, including with regard to the distinct characteristics of biogenic methane;
(o) where a national long term climate action strategy has been approved under this section, the most recent approved national long term climate action strategy;
(p) the 2019 Climate Action Plan or, where a climate action plan has been approved under this section, the most recent approved climate action plan;
(q) where a national adaptation framework has been approved under section 5, the most recent approved national adaptation framework;
(r) where sectoral adaptation plans have been approved under section 6, the most recent approved sectoral adaptation plans.
(9) The Government may—
(a) approve, or
(b) approve, subject to such modifications as they consider appropriate,
a climate action plan submitted to them under subsection (4) or a national long term climate action strategy submitted to them under subsection (7).
(10) The Minister shall, as soon as may be, cause an approved climate action plan and an approved national long term climate action strategy to be laid before the Houses of the Oireachtas.
(11) A Minister of the Government, shall, in so far as practicable, perform his or her functions in a manner consistent with the most recent approved climate action plan and the most recent approved national long term climate action strategy.
(12) In this section—
'carbon leakage' means the transfer, due to climate policies, of production to other countries
with less restrictive policies with regard to greenhouse gas emissions;
'National Planning Framework' has the meaning assigned to it in section 20A of the Planning
and Development Act 2000 ;
'National Spatial Strategy' means the 'National Spatial Strategy: 2002-2020' published by the Government on 28 November 2002, or any document published by the Government which amends or replaces that Strategy."
"Role of local authority
14B. (1) Each local authority shall prepare and make a plan relating to a period of five years (in this section referred to as a 'local authority climate action plan') which shall specify the mitigation measures and the adaptation measures to be adopted by the local authority.
(2) A local authority shall make a local authority climate action plan—
(a) in the case of the first such plan, within 12 months of the receipt of a request from the Minister, which request shall be made not later than 18 months after the coming into operation of section 16 of the Climate Action and Low Carbon Development (Amendment)
Act 2021, and
(b) in the case of each subsequent plan, not less than once in every period of five years.
(3) A local authority climate action plan shall, in so far as practicable, be consistent with the most recent approved climate action plan and national adaptation framework, and in making a local authority climate action plan, a local authority shall have regard to—
(a) the most recent approved national long term climate action strategy,
(b) the most recent approved sectoral adaptation plans, and
(c) any policies of the Minister or the Government on climate change.
(4) In making the local authority climate action plan, a local authority shall—
(a) consult and co-operate with adjoining local authorities,
(b) consult with the Public Participation Network in the administrative area of the local authority and such other persons as the local authority considers appropriate,
(c) co-ordinate, where appropriate, with adjoining local authorities in relation to the mitigation measures and adaptation measures to be adopted,
(d) consider any significant effects the implementation of the local authority climate action plan may have on adjoining local authorities, and
(e) consider any submissions made to it by an adjoining local authority under subsection (5)(c).
(5) A local authority shall, before making a local authority climate action plan—
(a) publish, in such manner as the local authority considers appropriate, a draft of the proposed local authority climate action plan,
(b) publish a notice on the internet and in at least one newspaper circulating in the administrative area of the local authority inviting members of the public and any interested parties to make submissions in writing in relation to the proposed local authority climate action plan within such period (not exceeding two months from the date of the publication of the notice) as may be specified in the notice, and
(c) have regard to any submissions made pursuant to, and in accordance with, a notice under paragraph (b).
(6) A local authority climate action plan shall be submitted to the members of the local authority concerned and those members shall, by resolution, within a period of six weeks—
(a) approve, or
(b) approve, subject to such modifications as they consider appropriate, the local authority climate action plan.
(7) A local authority climate action plan shall have effect for a period of five years from the date on which it is approved by the members of the local authority concerned.
(8) The Minister may issue guidelines, consistent with furthering the achievement of the national climate objective, to local authorities in respect of the content and preparation of a local authority climate action plan and a local authority shall comply with any such guidelines.
(9) Not more than 30 days after a local authority climate action plan is approved under subsection (6), the local authority shall publish the local authority climate action plan in such manner as the local authority considers appropriate.
(10) A local authority may, at any time, vary or revise a local authority climate action plan approved under this section, and this section applies to any such variation or revision in the same manner as it applies to a local authority climate action plan, subject to the modification that any such variation or revision shall have effect for the unexpired period of the local authority climate action plan under subsection (7), and to any other necessary modifications.
(11) In this section, 'adjoining local authority' means, in relation to a local authority, a local authority whose administrative area adjoins the administrative area of the first mentioned local authority."
2000 Act results in two possible outcomes, both unacceptable:
(i) either this applies to all Acts – in which case, as the applicant points out, to accept this interpretation of s. 15 would almost entirely negate the section because the argument of no effect without express amendment could be made about any statutory provision;
(ii) or it only applies to the 2000 Act, in which case it would be unacceptable as a form of special pleading – implicitly, the illogical argument is that the 2000 Act alone is so sacred that it can't be influenced by anything other than express language.
"... an ambitious and far-reaching response to the climate crisis facing our planet. This immense climate challenge requires an equally immense effort to combat what will be, if we do not act, an utterly devastating impact on our world as we know it.
... The message was clear; we need climate action now. This momentum and appetite for system change, not climate change, has been steadily building. The urgency of this crisis has united millions of people across the globe. They have marched in their droves to strike for climate, demand change and fight for their futures. We must deliver emission reductions now for our children's futures, our planet's future and our shared future.
Sustained climate action requires a combined commitment and co-operation across politics and society The climate challenge can only be addressed if we are all working together to
do so. This requires a change in the way we govern, live and work. We must educate our children through school, university and apprenticeships so they are equipped with the skills and knowledge to tackle this challenge head-on. We need system change so that it is clear, obvious, safe and cheaper to make the green choice rather than the environmentally destructive one. ...
The Government's consultation on the climate action plan does not just ask what we can do but how Government can best help everybody to work together to meet this challenge. The Climate Action and Low Carbon Development (Amendment) Bill is a momentous Bill. I commend [the sponsoring Minister, Minister Ryan and] every single official, activist, expert and campaigner who contributed to make this the vital Bill it truly is. This Bill is the culmination of years of hard work, endless campaigning and unwavering commitment by so many to protect our planet as best we can, to make it a liv[e]able and safe place for generations to come and to transform Ireland into a world leader when it comes to tackling this climate crisis. Ní neart go cur le chéile. (https://www.oireachtas.ie/en/debates/debate/dail/2021-04-21/25/)"
Factor III – The purpose of s. 15(1)
Friends of the Irish Environment v. Government of Ireland [2020] IESC 49, [2021] 3 IR 1, [2020]
2 I.L.R.M. 233, [2020] 7 JIC 3107; KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, 9 April 2024. The UN IPCC states:
"All global modelled pathways that limit warming to 1.5°C (>50%) with no or limited overshoot, and those that limit warming to 2°C (>67%), involve rapid and deep and, in most cases, immediate greenhouse gas emissions reductions in all sectors this decade. Global net zero CO2 emissions are reached for these pathway categories, in the early 2050s and around the early 2070s, respectively. (high confidence) [Sixth Intergovernmental Panel
on Climate Change (IPCC) assessment report, summary for policymakers (https://www.ipcc.ch/report/ar6/syr/downloads/report/IPCC_AR6_SYR_SPM.pdf) cited in Toole v. Minister for Local Government and Heritage (II) [2024] IEHC 610 (Unreported, High Court, 1st November 2024) at para. 11]"
(i) we know from the IPCC 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
(ii) 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 CLIMATE ACT FRAMEWORK
6. The State recognises that climate change is the single greatest threat facing humanity and that taking ambitious climate action is necessary to ensure a sustainable future both nationally and globally.
7. In particular, limiting global warming to 1.5°C above pre-industrial levels will require rapid, far-reaching and unprecedented changes in all aspects of the economy and society. The ambitious but necessary emissions reductions targets necessary to achieve this objective will, by their nature, require very significant changes in Irish society.
8. It is for that reason that the Climate Action and Low Carbon Development (Amendment) Act 2021 amended the Climate Action and Low Carbon Development Act 2015 to put in place the robust legal framework for climate action that is now found in the Climate Act."
"9. The central mechanic of the greenhouse effect is that each net additional unit of greenhouse gases (GHG), of which the most significant is carbon dioxide (CO2), in the atmosphere contributes to global warming, and the effect is cumulative. It is not the case that there is some safe limit or timeframe up to which all will be well – every increase in atmospheric GHG amplifies climate change. Furthermore, reaching peak emissions, which is supposed to be happening around now, merely means that the level of annual increase in emissions is not itself increasing. But the cumulative level of emissions – which is what counts – will continues to increase for decades, and even when it stops increasing (net zero), we will be left at whatever concentration of GHG as exists at that point, which will be vastly in excess of pre-industrial levels. Indeed the effects of climate change will continue long after global temperature reaches its peak, which is still a long way off. And actually reducing GHG concentrations and temperatures from there to pre-industrial levels, if that were to be the ultimate goal, would require colossal measures of a kind that do not seem to be currently at hand. According to the Royal Society, even with no further GHG emissions as and from now (a completely counterfactual scenario), global temperatures would remain elevated for a thousand years (https://royalsociety.org/news-resources/projects/climate-change- evidence-causes/question-20/). The actual and potential effects of global warming are well documented – drought, heatwaves, wildfires, extreme rainfall and weather events, ocean acidification, other massive biodiversity and habitat loss, melting of sea ice and permafrost, rising sea levels and changes in ocean currents with potentially catastrophic effects, potential tipping points if as yet uncertain planetary boundaries are, or already have been, crossed, again with the potential for catastrophic results, and the effects of the foregoing on the human population including in terms of food security, vulnerability of housing to floods and sea rises, and other issues of physical safety."
"5. The invocation in these proceedings of the serious risks that arise by reason of the climate emergency, the vital importance of renewable energy, and the imperative for immediate and far-reaching action to combat climate change, is not novel. Nor is this the first case where litigants have sought to rely on that urgency to alter the approach of the Board – or indeed the Court – to planning applications where climate action is engaged.
6. Those attempts have, to date, almost invariably failed. The Courts have made clear that neither the urgency that arises with respect to climate change, nor the failure by the global community to address that urgency, can of itself create a justiciable standard against which decisions of the Board, or the policy of the State, can be challenged (see, e.g. An Taisce v An Bord Pleanála & Ors [2021] IEHC 254 ('An Taisce') (at 42-45); Coyne v An Bord Pleanála [2023] IEHC 412, ('Coyne') (at 90-91).
7. The Courts have recognised that, since the enactment of the 2015 Act, the State's response to climate change is not 'a law-free zone' (Coyne, at 91) and 'what might once have been policy has become law' (Friends of the Irish Environment v The Government of Ireland [2020] IESC 49, [2021] 3 IR 1 ('FOIE'). However, while the 2015 Act may have imposed an obligation to have regard to climate policy, it did not dictate compliance with climate policy and so was not effective at achieving climate goals.
8. That situation has changed significantly, by reason of three important advances in the legal framework governing climate action.
9. First, the amendment of the 2015 Act by the 2021 Act has fundamentally altered the legal landscape, through the introduction of a detailed and legally binding framework consisting of inter alia:
i. a binding 'national transition objective' to transition to a low carbon, climate resilient and environmentally sustainable economy by the end of 2050 (section 3(1));
ii. binding carbon budgets that must provide for a 51% reduction in emissions in 2030 on 2018 levels (section 3(2) and 6A(5));
iii. sectoral emission ceilings that must be within the limits of the carbon budgets (section 6C(1));
iv. climate action plans that must be consistent with those carbon budgets, and set out the sector specific actions that are required to comply with those carbon budget and the sectoral emissions ceilings (section 4(2));
v. a national long term climate action strategy that is required to be consistent with those carbon budgets, and to specify the manner in which it is proposed to achieve the national climate objective (section 4(2));
vi. a requirement on the Minister and the Government when making and approving those measures (and the Climate Change Advisory Committee ('CCAC') generally), to carry out their functions in a manner consistent with:
I. the objective stated in Article 2 of the United Nations Framework Convention on Climate Change done at New York on 9 May 1992 (the 'UNFCC'),
II. any mitigation or adaptation commitments entered into by the EU in response or otherwise in relation to that objective, and
III. the steps specified in Articles 2 and 4(1) of the Paris Agreement to achieve that objective;
and which takes account of the most recent EPA national greenhouse gas emissions inventory and projections (section 3(2));
vii. a requirement that Ministers, in so far as practicable, perform their functions in a manner consistent with the most recent approved climate action plan and the most recent approved national long term climate action strategy (section 4(11));
viii. a requirement that Ministers comply, in so far as practicable, in the carrying out of their functions, with the sectoral emissions ceiling that applies to the sector for which that Minister has responsibility (section 6C(9));
ix. a requirement that relevant bodies, which include the Board shall, in so far as practicable, perform their functions in a manner consistent with the Climate Plans and Objectives (as defined below) (section 15(1));
x. a detailed monitoring and compliance framework based on annual and periodic reviews by the CCAC which must draw on the EPA national greenhouse gas emissions inventory and projections, and a requirement on the Minister to account to a joint committee with respect to progress (section 12, 13 and 14A); and
i. a requirement on local authorities to make a climate action plan specifying the mitigation measures and the adaptation measures to be adopted by the local authority, which shall, insofar as practicable, be consistent with the most recently approved climate action plan and national adaptation plan (section 14B).
10. When compared to the general and non-binding obligations that arose under the unamended 2015 Act, there can be no doubt but that the Legislature, in enacting the 2021 Act, intended to bring about a transformative shift in how Ireland addresses the climate crisis, and to create an effective and enforceable framework for action. In that respect, that relevant bodies and Ministers can now be held directly to account in the Courts with respect to individual actions and decisions, based on an assessment of whether they have acted consistently with the Climate Plans and Objectives and, if not, whether they have established that it was not practicable for them to do so, is key to achieving the aims of that framework.
11. Second, to address the energy crisis following the Russian invasion of Ukraine, two EU measures were adopted with the express aim of accelerating the deployment of renewable energy: Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy (the 'Temporary Renewable Energy Regulation') and Directive (EU) 2023/2413 as regards the promotion of energy from renewable sources (the 'RED III Directive').
12. Both RED III and the Temporary Renewable Energy Regulation introduce a presumption that renewable energy projects are of overriding public importance for the purposes of certain environmental measures, including Article 6(4) of the Habitats Directive. In addition, the Temporary Renewable Energy Regulation requires that Member States ensure, for projects recognised as being of overriding public interest, that in the planning and permit-granting process, the construction and operation of plants and installations for the production of energy from renewable sources and the related grid infrastructure development are given priority when balancing legal interests in the individual case.
13. In the domestic context, both the Climate Action Plan 2023 ('CAP23') (at 12.1.4 and 12.3.1) and the Climate Action Plan 2024 ('CAP24') (at 12.4.1.1) state that it is necessary to ensure that renewable energy generation projects and associated infrastructure are considered to be in the overriding public interest, reflecting those EU law measures.
14. These new measures are again intended to be transformative with respect to the consenting procedures for renewable energy development in the EU. They complement the existing detailed and prescriptive framework for combating climate change in the EU, as summarised in the affidavit of Donal O'Sullivan.
15. Third, in April 2024, the European Court of Human Rights ('ECtHR') in Verein KlimaSeniorinnen v Switzerland, Application No. 53600/20 ('KlimaSeniorinnen'), found a breach of the European Convention on Human Rights ('ECHR') with respect to climate change, for the first time. In particular, the ECtHR considered that Article 8 imposes a positive obligation on the State 'to put in place the relevant legislative and administrative framework designed to provide effective protection of human health and life' and a further positive obligation to 'apply that framework effectively in practice', and in an 'timely' manner. (paragraph 538) (emphasis added here and below).
16. These developments fundamentally alter the legal landscape, introducing judiciable standards capable of grounding substantive challenges to development consent decisions, based on climate concerns. To the knowledge of the Applicants, this is the first time that the Court will be called on to determine the implications of these new developments for the obligations on the Board when determining applications for permission for renewable energy development."
(i) reaching the targets for renewable energy are key to reaching the overall binding national climate targets and related international commitments; and
(ii) Ireland is falling short in relation to those targets.
"Climate Obligations of Ireland and the EU under the Paris Agreement
15. The obligations of the EU and Ireland with respect to climate action, and in turn the Board's obligations, stem from the international framework: the United Nations Framework Convention on Climate Change (the 'UNFCCC') and the measures adopted under that Convention, and in particular the Paris Agreement.
16. The Paris Agreement, together with subsequent decisions of the Conference of the Parties ('COP') and the Conference of the Parties serving as the Meeting of the Parties ('CMA'), outlines a clear and detailed oversight framework, agreed by the international community following extensive negotiation, aimed at ensuring that the goals of the Paris Agreement are achieved.
17. The central goal of the Paris Agreement is defined in Article 2(1)(a) thereof, and commits the Parties to the aim of:
'holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change'.
18. Under Article 4(2) of the Paris Agreement, the key obligation on the parties designed to ensure the achievement of the long term temperature goal ('LTTG') set out in Article 2 is to 'prepare, communicate and maintain successive nationally determined contributions that it intends to achieve' ('NDCs') and to 'pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions'.
19. Under Article 4(3) of the Paris Agreement, the NDCs of each party 'shall reflect its highest possible ambition'.
...
Commitments of the EU and Ireland under the Paris Agreement
Under Article 4(16) of the Paris Agreement, the Member States of the European Union – including Ireland – have opted to fulfil their international climate change obligations jointly, by:
i. preparing and submitting an EU NDC to the UNFCCC collectively for all Member States of the European Union so as to comply with the Paris Agreement, and
ii. implementing its obligations under the Paris Agreement in the internal legal order of the European Union, by a detailed system of legislative measures that are binding on all Member States.
23. The EU and its Member States submitted their intended nationally determined contribution ('INDC') on 6 March 2015. The EU's INDC became its NDC when the EU ratified the Paris Agreement in October 2016, and the EU committed to a target of at least 40% economy-wide reduction of greenhouse gas emissions by 2030, compared to 1990 level.
24. On 18 December 2020, the EU submitted an updated and enhanced NDC, committing the EU to reducing net greenhouse gas emissions by at least 55% by 2030 compared to 1990 levels. On 16 October 2023, the EU submitted a further updated NDC, maintaining the same target as the 2020 NDC. ...
25. In addition to interim targets, the EU has committed to achieving a climate- neutral EU by 2050, consistent with Article 4(1) of the Paris Agreement. This aim was endorsed by the European Council in December 2019 and, on 6 March 2020, the EU long-term low greenhouse gas emission development strategy, reflecting that climate neutrality objective, was adopted by the Council and submitted to the UNFCCC Secretariat in accordance with Article 4(19) of the Paris Agreement. ...
EU Legislative Framework
26. The EU's commitments under the Paris Agreement were given binding effect in EU law, in particular, through the adoption of Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (the 'European Climate Law') which entered into force on 29 July 2021, and which, inter alia:
i. establishes a framework for achieving the binding objective, in Article 2(1), of climate neutrality within the European Union by 2050, with the aim of achieving negative emissions in the European Union thereafter, and
ii. provides, in Article 4(1), for an interim binding EU target of a net domestic reduction in greenhouse-gas emissions by at least 55% compared to 1990 levels by 2030, and for the setting of a climate target for 2040 within six months of the first Global Stocktake under Article 15 of the Paris Agreement.
27. The European Union's overall climate targets are supported by a detailed legislative
framework at the EU level.
28. First, a number of key legislative measures in the EU law framework divide emissions reduction targets between three legislative systems, which cover different sectors of the economy: the EU Emissions Trading System ('EU ETS'), the Effort Sharing Regulation ('ESR') and the regulation on land-use related emissions and removals ('LULUCF').
The Emissions Trading System
29. The EU ETS is governed by Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC ('the ETS Directive,').
30. The system works on the 'cap and trade' principle. A cap is set on the total amount of certain greenhouse gases that can be emitted by installations covered by the system and is reduced over time so that total emissions fall. The sectors covered by the system include power and heat generation, energy-intensive industry sectors, and commercial aviation. The electricity sector is covered by the ETS.
31. Since the commencement of Phase 3 of the ETS (2013-2020), there is a single, EU- wide cap on emissions, in place of the previous system of national caps. The ETS is therefore centrally controlled by the EU and Member States do not have individual targets. The current target of the EU ETS is to reduce emissions from the existing EU ETS sectors and from maritime by 62% by 2030, compared to 2005 levels.
The Effort Sharing System
32. EU effort sharing measures are governed by Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/3013 (the 'Effort Sharing Regulation' or the 'ESR').
33. The ESR was introduced in 2018, replacing the Effort Sharing Decision ('ESD'), and set nationally binding non-ETS targets for 2030. The initial aim of the ESR was to collectively deliver a reduction of 30% in total EU emissions from non-ETS sectors by 2030, which together with a 43% cut in ETS emissions by 2030 would allow the EU to achieve the 40% reduction target committed to in its initial NDC.
34. Under the revised ESR, a new more ambitious target of EU-level greenhouse gas emissions reductions of 40% by 2030 compared to 2005 was introduced. Together with the 62% reduction envisaged under the ETS, this 40% reduction in ESR emissions is aimed at achieving the EU's overall 55% reductions target.
35. Unlike the ETS, which operates at an EU level, with a single EU target, effort sharing measures have individual binding targets for Member States. Under Article 4 and Annex I of the ESR, Ireland is required to achieve a 42% reduction in ERS emissions by 2030, compared to 2005. Although the electricity sector falls under the ETS rather than the ESR, decarbonisation of the electricity sector is key to permitting decarbonisation of the sectors governed by the ESR, and therefore key to achieving the EU and Ireland's targets under the ESR.
LULUCF
36. The LULUCF Regulation (Regulation (EU) 2018/841) addresses emissions and removals of CO2 in the land use, land use change and forestry sectors. The EU has adopted a Union net greenhouse gas removals target of 310 million tonnes of CO2 equivalent, as a sum of the reported greenhouse gas net emissions and removals in the sector in 2030. I reference LULUCF here for completeness, where it is the third measure addressing emissions reduction in the EU. However, it is not relevant to the obligations that arose for the Board under section 15 of the 2015 Act with respect to the Proposed Development.
Renewable Energy Targets
37. In addition to the ETS, ESR and LULUCF, which address emissions reduction directly, there are a range of further EU measures that do not directly govern emissions reductions, but that are essential to achieving those reductions.
38. In particular, and relevant to these proceedings, ambitious targets for improving energy efficiency and for increasing renewables in the EU energy mix have been agreed by the EU. In line with the European Commission's plan to make Europe independent from Russian fossil fuels well before 2030, (RePowerEU), the EU has agreed to increase ambition on energy savings through an enhanced target to reduce final energy consumption at EU level by 11.7% in 2030, and a new target for increasing renewable energy in final energy consumption of at least 42.5% by 2030, with an additional 2.5% indicative top up that would allow the EU to reach 45%.
39. The enhanced target of reducing final energy consumption at EU level by 11.7% in 2030 was made binding by Article 4(1) Directive (EU) 2023/1791 of the European Parliament and of the Council of 13 September 2023 on energy efficiency and amending Regulation (EU) 2023/955 (recast) (the 'Energy Efficiency Regulation').
40. The enhanced target for increasing renewable energy in final energy consumption of at least 42.5% by 2030 was made binding on the EU by Article 3(1) of Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (recast) (the 'Renewable Energy Directive'), as amended by Directive (EU) 2023/2413 as regards the promotion of energy from renewable sources (the 'RED III Directive').
41. Member States are required to define their individual contribution to achieving that 42.5% legislative target, under Article 4, Article 5 and Annex II of the Governance of the Energy Union and Climate Action [Regulation (EU) 2018/1999] (as amended) (the 'Governance Regulation'). Ireland initially defined its individual contribution at 31.4%. However, following criticism by the Commission through the NECP process, Ireland increased its individual contribution to 42.5%. ...
42. Notably, in the context of Ireland's EU obligations to achieve its defined individual contribution of an increase of renewable energy in final energy consumption of 43% by 2030, compared to 2005 levels, Ireland has confirmed in its national energy and climate plan that: 'Ireland's proposed trajectory will not be in line with the desired trajectory set out in the Governance Regulation. This is primarily due to the fact that large projects, particularly offshore wind projects, cannot be constructed in shorter timeframes and will not be fully operational by the end of the decade.'
43. This indicates that, not only are the Renewable Energy Targets essential to meeting Ireland's EU obligations in that respect, Ireland will need to go further in that respect, if the requirements of the Governance Regulation are to be complied with.
EU Law Compliance Mechanism
Compliance by Member States with their obligations under EU Climate Law is monitored through a detailed monitoring and compliance framework established by the Governance Regulation.
...
European Wind Power Action Plan
47. In October 2023, the European Commission published the European Wind Power Action Plan, which sets out immediate actions to be taken together by the European Commission, Member States and industry to support the wind energy sector. It builds on existing policies and legislation and focuses on six main areas, including the acceleration of deployment through increased predictability and faster permitting.
48. The European Wind Power Action Plan recognises that wind energy is 'pivotal to meeting the EU's decarbonisation objectives and delivering clean, affordable and secure electricity to our households, our industry and increasingly our transport sector,' and cautioned that 'with 16 GW of new wind projects installed in 2022, we are nowhere near the 37 GW/year needed as cost-effective contribution to achieving the EU 2030 targets.'
49. The European Wind Power Action Plan calls on Member States to commit to specific, concrete pledges on wind energy deployment volumes for at least the period 2024-2026, providing a clear and credible overview of wind energy deployment in the following years, to be formalised by the end of 2023. On 19 December 2023, those pledges were published, in a document entitled 'Wind Pledges - European Wind Power Action 19 December 2023'. That document confirmed:
'These non-legally binding pledges show the commitment of Member States to accelerate and ramp-up the deployment of wind in the EU, both onshore and offshore. They show that there is a solid business case and a positive outlook for the wind sector in the EU in the short-, medium- and long-term, under the positive effect of recent EU and Member States' policies. However, more is needed to get closer to the 37 installed GW a year needed to cost-effectively deliver on the 2030 EU renewable energy target.'
50. Ireland's commitment under its Wind Pledge mirrors its target under CAP24. Thus Ireland's target of 9GW for onshore wind forms part of its commitment to the European Union as its contribution to meet the EU's 2030 EU renewable energy target under the Renewable Energy Directive as amended by RED III, and under the European Wind Power Action Plan, as well as constituting a national target.
...
The Climate Action Plan 2024 and the Renewable Energy Targets
56. CAP24 is the third annual update to the Government's plan to deliver on its climate targets and transition to a low-carbon, climate-resilient and environmentally sustainable economy and society. The plan sets out actions across all key sectors, including electricity, transport, buildings, industry, agriculture, land use and waste, as well as cross-cutting themes such as governance, finance, innovation, education and international cooperation. The plan is informed by extensive stakeholder engagement, technical analysis, environmental assessment and alignment with the carbon budgets and sectoral emissions ceilings.
57. The plan recognises the potential of renewable energy, especially wind and solar, to decarbonise the electricity sector and enable the electrification of other sectors, such as transport and heating. The plan envisages a large-scale deployment of renewables, with a target of 80% renewable electricity by 2030, supported by grid development, interconnection, flexibility, storage and demand response. The plan also supports community and micro-generation, as well as offshore wind development, which is facilitated by the Maritime Area Planning Act 2021.
58. The Climate Action Plan 2024 sets out a sectoral emissions ceiling for the electricity sector of 40 MtCO2eq for the first carbon budget period (2021-2025) and 20 MtCO2eq for the second carbon budget period (2026-2030). This requires a 75% reduction in emissions from the electricity sector by 2030, based on 2018 levels. Achieving these targets is crucial as the electricity sector plays a pivotal role in decarbonising other sectors, including transport, heating, and industry, through electrification.
59. The plan outlines the need for a significant increase in the share of renewable electricity to 80% by 2030. It further outlines ambitious targets for deploying 9 GW of onshore wind, 8 GW of solar power, and at least 5 GW from offshore wind projects. I will refer to those obligations collectively as the 'Renewable Energy Targets'.
Summary of Obligations Arising
60. In summary, therefore, the relevant obligations arising for the EU and its Member States under international and EU law are inter alia as follows:
i. The EU and its Member States have committed in their NDC submitted to the UNFCCC under Article 4(16) of the Paris Agreement to a target of at least 55% reduction of greenhouse gas emissions by 2030, compared to 1990 levels;
ii. The EU and its Member States have committed in their EU's long-term low greenhouse gas emission development strategy submitted to the UNFCCC under Article 4(16) of the Paris Agreement to achieving climate neutrality within the EU by 2050;
iii. Article 2(1) of the European Climate Law puts in place a binding obligation on the EU and its Member States of achieving climate neutrality within the EU by 2050;
iv. Article 4(1) of the European Climate Law puts in place an interim binding EU target of a net domestic reduction in greenhouse-gas emissions by at least 55% compared to 1990 levels by 2030;
v. The Emissions Trading System requires an EU wide reduction in ETS emissions of 62% by 2030, compared to 2005 levels;
vi. The Effort Sharing Regulation requires an EU wide reduction in ESR emissions of 40% by 2030, compared to 2005 levels;
vii. The Energy Efficiency Regulation requires a reduction in final energy consumption at EU level by 11.7% in 2030, compared to 2005 levels;
viii. The Renewable Energy Directive as amended by the RED III Directive requires an increase of renewable energy in final energy consumption of 42.5% by 2030, compared to 2005 levels.
61. The obligations on Ireland, and the electricity sector, specifically under EU and national law are as follows:
i. Ireland must achieve climate neutrality by 2050, under section 3 of the 2015 Act;
ii. Section 6A(5) of the 2015 Act requires Ireland to achieve an interim target of an overall 51% emissions reductions by 2030, compared to 2018;
iii. The Effort Sharing Regulation requires Ireland to reduce its ESR emissions by 42% by 2030, compared to 2005 levels;
iv. The Renewable Energy Directive together with Article 4, Article 5 and Annex II of the Governance Regulation require Ireland to achieve their defined individual contribution of an increase of renewable energy in final energy consumption of 43% by 2030, compared to 2005 levels;
v. Under the 2015 Act and CAP24, the electricity sector is required to remain within its sectoral emissions ceiling of 40 MtCO2eq for the first carbon budget period (2021-2025) and 20 MtCO2eq for the second carbon budget period (2026-2030);
vi. Under CAP24, and to achieve compliance with the sectoral emissions ceiling, the electricity sector must achieve the Renewable Energy targets.
62. The centrality of the Renewable Energy Targets to achieving Ireland's and the EU's broader obligations with respect to climate change as detailed above is clear from CAP24, the CCAC Annual Review 2023, the CCAC Annual Review 2024 for Electricity and Ireland's Updated NECP published in July 2024. The Applicant will rely on the full content of those documents, in this respect.
63. In particular, however, I am advised and believe that CAP24, the CCAC Annual Review 2023, the CCAC Annual Review 2024 for Electricity make clear that:
i. Achieving the Renewable Energy Targets is necessary to achieving the 75% reduction in emissions from the electricity sector by 2030 relative to 2018 required by CAP24;
ii. Achieving that 75% reduction in emissions from the electricity sector by 2030 relative to 2018 is necessary to comply with the legally binding sectoral emissions ceiling for the electricity sector in CAP24, of 40 MtCO2eq for the first carbon budget period (2021-2025) and 20 MtCO2eq for the second carbon budget period (2026-2030);
iii. Decarbonisation of the electricity sector is the foundation for the decarbonisation of other sectors such as heat, transport and industry, and onshore wind energy is the foundation for decarbonisation of the electricity sector in the short-term, pending the rollout of offshore wind energy;
iv. Meeting the Renewable Energy Targets, and in particular the 9 GW onshore wind target, is therefore essential not only to meeting the sectoral emissions ceiling for the electricity sector, but also to facilitate other sectors in meeting their sectoral emissions ceilings;
v. Complying with the sectoral emissions ceiling for the electricity sector, and facilitating other sectors in meeting their sectoral emissions ceilings, is necessary for Ireland to comply with the legally binding carbon budgets adopted by Ireland on 6 April 2022;
vi. Complying with Ireland's carbon budgets is necessary for Ireland to achieve its binding national target of 51% emissions reductions relative to 2018 by 2030;
vii. Achieving compliance with Ireland's binding national target of 51% emissions reductions relative to 2018 levels by 2030 is fundamental to the furtherance of the binding national climate objective, to transition to a climate-neutral economy by 2050;
viii. The Renewable Energy Targets are therefore key to the objective of mitigating greenhouse gas emissions.
64. The Renewable Energy Targets are therefore of key importance in achieving the domestic targets set out in the Climate Plans and Objectives, as well as complying with Ireland and the EU's obligations under national and international law."
Factor IV – EU law conformity
"Progress to Achieving the Climate Plans and Objectives and the Renewable Energy Targets
65. It is well known that Ireland, the EU and the global community are not on track to meet their respective climate targets.
66. In the context of the global community, this was confirmed in the first Article 14 Global Stocktake, in inter alia Decision 1/CMA.5 of the Council of Ministers, Outcome of the first global stocktake, ...
67. In the context of the EU, this was confirmed in the Commission's Climate Action
Progress Report 2023, ...
68. In the context of Ireland's EU law obligations, this was confirmed in the Commission's Climate Action Progress Report 2023, the Commission Recommendation (EU) 2024/1029 of 23 February 2024 on the draft updated integrated national energy and climate plan of Ireland covering the period 2021- 2030, and the Commission Staff Working Document Assessment of the draft updated National Energy and Climate Plan of Ireland (C(2024) 1187 final).
69. In the context of Ireland's domestic obligations, that Ireland is not on track to meet its targets was confirmed by the CCAC Annual Review 2023, the CCAC Annual Review 2024 for Electricity, Ireland's Updated National Energy and Climate Plan published in July 2024 and the EPA 2023 and 2024 greenhouse gas emissions projections for the period 2023-2050.
70. Finally, and most relevantly for the purposes of these proceedings, it is clear that Ireland is not on track to meet the Renewable Energy Targets, or the requirements of the Climate Plans and Objectives more generally. In particular, Ireland is not on track to meet the 9 GW onshore wind target, and significant and urgent further action is required if there is to be any prospect of that target being met. This has been outlined in the Statement of Grounds, and is clear from the relevant EPA publications, the CCAC Annual Review 2023, the CCAC Annual Review 2024 for Electricity, and Ireland's Updated National Energy and Climate Plan published in July 2024 and the Environmental Protection Agency ('EPA') 2023 and 2024 greenhouse gas emissions projections for the period 2023-2050."
"115 Although the principle that national law must be interpreted in conformity with Community law concerns chiefly domestic provisions enacted in order to implement the directive in question, it does not entail an interpretation merely of those provisions but requires the national court to consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive (see, to that effect, Carbonari, paragraphs 49 and 50).
116 In that context, if the application of interpretative methods recognised by national law enables, in certain circumstances, a provision of domestic law to be construed in such a way as to avoid conflict with another rule of domestic law or the scope of that provision to be restricted to that end by applying it only in so far as it is compatible with the rule concerned, the national court is bound to use those methods in order to achieve the result sought by the directive.
117 In such circumstances, the national court, when hearing cases which, like the present proceedings, fall within the scope of Directive 93/104 and derive from facts postdating expiry of the period for implementing the directive, must, when applying the provisions of national law specifically intended to implement the directive, interpret those provisions so far as possible in such a way that they are applied in conformity with the objectives of the directive (see, to that effect, the judgment in Case C-456/98 Centrosteel [2000] ECR I-6007, paragraphs 16 and 17).
118 In this instance, the principle of interpretation in conformity with Community law thus requires the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law, to ensure that Directive 93/104 is fully effective, in order to prevent the maximum weekly working time laid down in Article 6(2) of the directive from being exceeded (see, to that effect, Marleasing, paragraphs 7 and 13).
119 Accordingly, it must be concluded that, when hearing a case between individuals, a national court is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive. In the main proceedings, the national court must thus do whatever lies within its jurisdiction to ensure that the maximum period of weekly working time, which is set at 48 hours by Article 6(2) of Directive 93/104, is not exceeded."
Factor V – ECHR conformity
"2.—(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter."
"3.—(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions."
"4.—Judicial notice shall be taken of the Convention provisions and of—
(a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction,
(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,
(c) any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction,
and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments."
putting in place a framework of measures and complying with that framework:
"550. When assessing whether a State has remained within its margin of appreciation (see paragraph 543 above), the Court will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to:
(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub-paragraphs (a)-(b) above);
(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.
...
573. In conclusion, there were some critical lacunae in the Swiss authorities' process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets (see paragraphs 558 to 559 above). By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context."
Conclusion on the meaning of s. 15
s. 15 to something functionally indistinguishable from a mere have-regard-to obligation.
"103. Fifth, taking all of these considerations together, it is submitted that section 15(1) cannot be interpreted as an overriding obligation which would take precedence over other legal or other considerations to which a relevant body is required to or entitled to have regard in the performance of its functions. Section 15(1) is intended to support relevant bodies in acting in a manner consistent with the Climate Act, rather than to disrupt the proper and lawful performance of their functions."
"The duty under section 15(1) cannot be interpreted in such a way as to impose an unduly onerous and exacting obligation on relevant bodies, including, in particular, in the context of individual decision-making functions a relevant body may discharge (including functions of a quasi-judicial nature)."
"68. However, if one was to follow the logic of this argument, it appears that any projects which contribute to a reduction of greenhouse gas emissions and, thereby, meet the objectives in s.15 of the 2015 Act would have to be granted (in so far as is practicable). Conversely, any projects which contribute to an increase in such emissions would have to be refused. The role of the Board as decision-maker would be reduced to a mechanistic analysis of whether a specific project either increased or decreased greenhouse gas emissions and, it appears on the Applicant's logic, the Board would have to grant or refuse permission based on that analysis, regardless of other consequences.
69. This would reduce the decision-maker's discretion, which of course must be guided
by the overall principle of proper planning and sustainable development, to vanishing point."
factors:
(i) firstly, the board's position is not totally mechanistic because there does need to be
an assessment of practicability;
(ii) secondly, that the concept of proper planning and sustainable development inherently (indeed for practical purposes expressly) means development that is sustainable in a planetary sense – the need for renewable energy provision is an irreplaceable part of sustainable development, not something to be set in opposition to it;
(iii) thirdly, there will be many developments that have no discernible impact one way or the other on climate goals – the board is quite free to continue business as usual in those areas;
(iv) further, projects causing emissions aren't automatically affected to the same extent because of the different context and the fact that due to displacement effects it is much less certain whether refusal would bring about a net contribution to climate goals;
(v) the applicant accepts that if the board independently of a council's view as expressed in a plan considered that a particular development would be contrary to proper planning and sustainable development, that would be a ground for refusal compatible with s. 15; and
(vi) finally, the board's role won't be as limited as suggested because the 2021 Act only impacts on the exercise of their discretionary and evaluative powers – where the 2000 Act requires them to do something or not to do something in an imperative and non-discretionary way, that continues unaffected.
(i) The board must ask itself what substantive disposition of the matter that is practicably available would contribute to achieving the s. 15 goals. In the case of renewable energy projects, the answer to that will almost always be a grant of permission, and is obviously so here. It is not an answer that the permitting of any one project won't achieve climate goals on its own. That is the drop-in-the-ocean fallacy that is rejected globally, and would obviously strangle the effort to address climate change at the starting line.
(ii) The board should then ask whether the substantive disposition of the matter in a way that furthers climate goals is precluded by a mandatory and non-fixable legal requirement that confers no discretion or evaluative judgement on the decision- maker. If so, the project has to be refused no matter how climate-friendly it is.
(iii) If the answer to that is No, the board should then ask if its discretion or evaluative judgement can be exercised in such a way as to support the outcome favouring climate goals. Examples include the following:
(a) insofar as concerns an overall judgement as to proper planning and sustainable development, that must be exercised in an evaluative way that furthers climate goals if practicable, albeit that it could allow the board to form an independent judgement that a project did not comply with the principles of proper planning and sustainable development, if those two concepts are properly considered together;
(b) 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;
(c) if non-mitigable impacts on European sites arise, the board must apply the public interest override in a manner that furthers climate goals, if practicable to do so; and
(d) if there is some impracticability in a grant of permission, but it can (or could potentially) be resolved by a procedural decision that is not impracticable, then the board is required to make the procedural decision that is most consistent with climate goals to enable the problem to be fixed – for example to require further information or to carry out any additional steps open to it regarding assessments if the developer's initial assessment information is deemed inadequate.
(i) The concept of net zero implies a continuing necessity for some emissions in the short term at least. That relates to the fact that pending complete adaptation of the economy, there will be other imperatives of economic necessity that require projects that, in and of themselves, wouldn't support climate goals in isolation. Energy security to enable the ongoing orderly functioning of society, especially in the context of the Russian Federation's full-scale criminal war of aggression against Ukraine, is one example.
(ii) Even if a project is not in itself driven by such an imperative, one has to be conscious of displacement effects. Refusal of a project in Europe may simply have the effect of the project being relocated to a jurisdiction with lower environmental standards, thus producing more emissions overall. Emissions are definitionally a cumulative global problem, so while refusing such projects feels good in the moment, it may or may not be doing anything to combat climate change. Rightly or wrongly, that was an explicit part of my thinking in An Taisce v. An Bord Pleanála [2021] IEHC 254, [2021] 7 JIC 0205 (Unreported, High Court, 2nd July 2021). Such an approach doesn't particularly give one a feeling of virtue, but it makes a certain amount of sense depending on the context.
Application of the law to the facts here
application could be consistent with the climate obligations governed by s. 15.
"Guidelines and National and Regional Policy
There is a positive presumption in favour of renewable energy development at National, Regional and Local policy levels. At national level, the proposed development complies with national planning policy as set out in the National Planning Framework Plan, 2018-2040 which recognises the need to move toward a low carbon and climate resilient society with a sustainable renewable energy supply.
The 2006 Wind Energy Development Guidelines (and 2019 Draft Guidelines) advise that a reasonable balance must be achieved between meeting national policy on renewable energy and the proper planning and sustainable development of an area.
The Guidelines also state that projects should not adversely affect any European sites, have an adverse impact on birds, give rise to peat instability or adversely affect drainage patterns, cultural heritage, sensitive landscapes, the local road network or residential amenity. These matters will be addressed specifically, where relevant, in the relevant sections of this assessment and the EIA and AA below.
In terms of the consideration that the current Guidelines are not fit for purpose, while it is acknowledged that the Guidelines date from 2006, draft Guidelines dated 2019 have been prepared and consenting authorities await the finalisation of same by the Department which according to the CAP 2023 (Table 12.6) is expected to be redrafted in 2023 and published in 2024. Until that time, the existing guidelines remain in force but with the applicant in this instance opting to apply key elements of the draft guidelines in terms of the proposed development – such as the minimum set back of 4 times the tip height and zero-shadow flicker. I consider that this is appropriate and seeks to apply best practice to the consideration of the proposed development.
At regional level, the policies reiterate those at National Level in the main and I note it is outlined that the RSES recognises and supports the many opportunities for wind as a major source of renewable energy and contends that Wind Energy technology has an important role in delivering value and clean electricity for Ireland."
"5.1.1. Project Ireland - National Planning Framework 2040
The National Policy Position establishes the fundamental national objective of achieving a transition to a competitive, low carbon, climate resilient and environmentally sustainable economy by 2050. This will be achieved by harnessing both the considerable on-shore and off-shore potential from energy sources such as wind, wave and solar.
Of particular relevance is National Strategic Outcome NSO8 which seeks a Transition to a low carbon and climate resilient economy. It is stated that 'the National Climate Policy Position establishes the national objective of achieving transition to a competitive, low carbon, climate-resilient and environmentally sustainable economy by 2050. This objective will shape investment choices over the coming decades in line with the National Mitigation Plan and the National Adaptation Framework. New energy systems and transmission grids will be necessary for a more distributed, renewables focused energy generation system, harnessing both the considerable on-shore and off-shore potential from energy sources such as wind, wave and solar and connecting the richest sources of that energy to the major sources of demand'.
One of the objectives in respect of Green Energy is to 'deliver 40% of our electricity needs from renewable sources by 2020 with a strategic aim to increase renewable deployment in line with EU targets and national policy objectives out to 2030 and beyond. It is expected that this increase in renewable deployment will lead to a greater diversity of renewable technologies in the mix'.
National Policy Objective (NPO) 55 seeks to 'promote renewable energy use and generation at appropriate locations within the built and natural environment to meet national objectives towards achieving a low carbon economy by 2050'.
5.1.2. Project Ireland 2040 – National Development Plan 2018-2027
The key role of the NDP is to set out the public capital investment to achieve the National Strategic Outcomes as set out within the National Planning Framework. A number of key energy initiatives, proposed to diversify energy resources and assist in the transition towards a decarbonised society are set out with the NDP further emphasises National Strategic Outcome 8: Transition to Sustainable Energy by stating that: 'Ireland's energy system requires a radical transformation in order to achieve its 2030 and 2050 energy and climate objectives. This means that how we generate energy and how we use it, has to fundamentally change. This change is already underway with the increasing share of renewables in our energy mix and the progress we are making on energy efficiency. Investment in renewable energy sources, ongoing capacity renewal, and future technology affords Ireland the opportunity to comprehensively decarbonise our energy generation. By 2030, peat and coal will no longer have a role in electricity generation in Ireland. The use of peat will be progressively eliminated by 2030 by converting peat power plants to more sustainable low-carbon technologies.'
To achieve a Low-Carbon, Climate Resilient Society, the Plan outlines a New Renewable Electricity Support Scheme to support up to 4,500 megawatts of additional renewable electricity by 2030.
5.1.3. Ireland's Transition to a Low Carbon Energy Future 2015-2030
This document is a complete energy policy update, which sets out a framework to guide policy up to 2030. Its objective is to guide a transition, which sets out a vision for transforming Ireland's fossil fuel-based energy sector into a clean, low carbon system. It states that under Directive 2009/28/EC the government is legally obliged to ensure that by 2020, at least 16% of all energy consumed in the state is from renewable sources, with a sub-target of 40% in the electricity generation sector. It notes that onshore wind will continue to make a significant contribution but that the next phase of Ireland's energy transition will see the deployment of additional technologies as solar, offshore wind and ocean technologies mature and become more cost-effective.
5.1.4. Climate Action Plan 2023
The Climate Action Plan (CAP) 2023 was adopted in December 2022 and follows a number of predecessors which arose following the declaration of a climate and biodiversity emergency by the Irish Government. The Plan seeks to identify how Ireland will achieve its 2030 targets for carbon emissions by sector and through a series of actions. The overarching requirement in the Climate Action Plan as they relate to electricity require transformational policies, measures and actions, and societal change to increase the deployment of renewable energy generation, strengthen the grid, and meet the demand for flexibility in response to the challenge.
The Plan seeks to reduce the State's greenhouse gas emissions by 51% by 2030. One of the most important measures increasing the proportion of renewable electricity to up to 80% by 2030, including a target of 9 GW from onshore wind, 8 GW from solar and at least 5 Gigawatts of offshore wind energy by 2030.
5.1.5. Wind Energy Development Guidelines 2006
The following sections of the Guidelines are of particular relevance:
• Section 5.6 discusses noise impacts, which should be assessed by reference to the nature and character of noise sensitive locations i.e. any occupied house, hostel, health building or place of worship and may include areas of particular scenic quality or special recreational importance. In general noise is unlikely to be a significant problem where the distance from the nearest noise sensitive property is more than 500m.
• Section 5.12 notes that careful site selection, design and planning and good use of relevant software can help to reduce the possibility of shadow flicker in the first instance. It is recommended in that shadow flicker at neighbouring offices and dwellings within 500m should not exceed 30 hours per year or 30 minutes per day. The potential for shadow flicker is very low at distances greater than 10 rotor diameters from a turbine.
• Chapter 6 relates to aesthetic considerations in siting and design. Regard should be had to profile, numbers, spacing and visual impact and the landscape character. Account should be taken of inter-visibility of sites and the cumulative impact of developments.
5.1.6. Draft Wind Energy Development Guidelines 2019
Chapter 5 – considering an application for wind energy development. A planning authority may consider some if not all of the following matters:
• Environmental assessments (EIA, AA etc.)
• Community engagement and participation aspects of the proposal
• Grid Connection details
• Geology and ground conditions, including peat stability; and management plans to deal with any potential material impact. Reference should be made to the National Landslide Susceptibility Map to confirm ground conditions are suitable stable for project;
• Site drainage and hydrological effects, such as water supply and quality and watercourse crossings; Site drainage considerations for access roads/tracks, separate in addition to the impact of the actual turbines management plans to deal with any potential material impact on watercourses; the hydrological table; flood risk including mitigation measures;
• Landscape and visual impact assessment, including the size, scale and layout and the degree to which the wind energy project is visible over certain areas and in certain views;
• Visual impact of ancillary development, such as grid connection and access roads;
• Potential impact of the project on natural heritage, to include direct and indirect effects on protected sites or species, on habitats of ecological sensitivity and biodiversity value and where necessary, management plans to deal with the satisfactory co-existence of the wind energy development and the particular species/habitat identified;
• Potential impact of the project on the built heritage including archaeological and architectural heritage;
• It is recommended that consideration of carbon emissions balance is demonstrated when the development of wind energy developments requires peat extraction.
• Local environmental impacts including noise, shadow flicker, electromagnetic interference, etc.;
• Adequacy of local access road network to facilitate construction of the project and transportation of large machinery and turbine parts to site, including a traffic management plan;
• Information on any cumulative effects due to other projects, including effects on natural heritage and visual effects;
• Information on the location of quarries to be used or borrow pits proposed during the construction phase and associated remedial works thereafter;
• Disposal or elimination of waste/surplus material from construction/site clearance, particularly significant for peatland sites; and
• Decommissioning considerations.
Notable changes within the draft guidelines relate to community engagement, noise and separation distance.
Noise
• Section 5.7.4 - The 'preferred draft approach', proposes noise restriction limits consistent with World Health Organisation Guidelines, proposing a relative rated noise limit of 5dB(A) above existing background noise within the range of 35 to 43dB(A), with 43dB(A) being the maximum noise limit permitted, day or night. The noise limits will apply to outdoor locations at any residential or noise sensitive properties.
Shadow Flicker
• Section 5.8.1 - The relevant planning authority or An Bord Pleanála should require that the applicant shall provide evidence as part of the planning application that shadow flicker control mechanisms will be in place for the operational duration of the wind energy development project.
Community Investment
• Section 5.10 - The Code of Practice for Wind Energy Development in Ireland Guidelines for Community Engagement issued by the Department of Communications, Climate Action and Environment (December 2016) sets out to ensure that wind energy development in Ireland is undertaken in observance with the best industry practices, and with the full engagement of communities around the country.
Visual Impact
• Section 6.4- Siting of Wind energy projects. Set back
• Section 6.18.1 Appropriate Setback Distance to apply - The potential for visual disturbance can be considered as dependent on the scale of the proposed turbine and the associated distance. Thus, a setback which is the function of size of the turbine should be key to setting the appropriate setback. Taking account of the various factors outlined above, a setback distance for visual amenity purposes of 4 times the tip height should apply between a wind turbine and the nearest point of the curtilage of any residential property in the vicinity of the proposed development, subject to a mandatory minimum setback of 500 metres.
• Policy SPPR 2 – Set back.
• Section 6.18.2 Exceptions to the mandatory minimum setbacks - An exception may be provided for a lower setback requirement from existing or permitted dwellings or other sensitive properties to new turbines where the owner(s) and occupier(s) of the relevant property or properties are agreeable to same but the noise requirements of these Guidelines must be capable of being complied with in all cases"
"9.1.3. Policy Context and Guidance (see section 5 above) which includes reference to the following:
EU Directives and Polices
- EU Renewable Energy Directive 2009/28/EC
- European 2020 Strategy for Growth
- 2030 Climate and Energy Framework
- Energy Roadmap 2050
- Recast Renewable Energy Directive (RED2)
• European Green Deal National Policy
- Climate Action and Low Carbon Development Act 2015
- Project Ireland 2040: The National Planning Framework
- Project Ireland 2040: National Development Plan 2018-2027
- Climate Action Plan 2019
- Climate Action and Low Carbon Development (Amendment) Bill 2020
- Department of Environment Heritage and Local Government Planning Guidelines for Wind Energy (June 2006)
- Draft Revised Wind Energy Guidelines (Published for Consultation on 12th December 2019)
- National Landscape Strategy for Ireland 2015-2015 (DAHG)
- Code of Practice for Wind Energy Development in Ireland Guidelines for Community Engagement issued by the Department of Communications, Climate Action and Environment (December 2016)"
"14.2.2. Need for Proposed Development
This matter is addressed in some detail in the documentation received and it is not intended to repeat same. The proposed windfarm would be compatible with European and National climate change and renewable energy policies as summarised in section 5 above. It would contribute to the achievement of European and National renewable energy targets, and in particular the objectives of the Climate Action Plan (2023) which seeks to reduce the State's greenhouse gas emissions by 51% by 2030 and increase the proportion of renewable electricity to up to 80% by 2030, including a target of 9 GW from onshore wind. Providing the physical infrastructure, in this instance onshore wind turbines, to facilitate the achievements of this measure is critical thereby providing a demonstrable need for the proposed development.
While it is noted that many of the submissions reference their agreement in principle in respect of merits of renewable energy, there is resistance to the location of such a proposal within the locality for the range of reasons outlined in the summary of submissions received above. In order to address Climate Change, I would suggest that other elements of our environment and the context within which the environment is perceived must also change. This includes in particular the visual context of an area which cannot be expected to remain unchanged in perpetuity but particularly within the context of a climate emergency."
"12.5.28. Assessment
Core ground 5 – breach of ECHR Act 2003
"5. Core Ground 5: The Decision is invalid as the Board failed to exercise its functions under the 2000 Act, and in particular its discretion under section 37G and/or section 37(2)(b) of the 2000 Act, in a manner that was compatible with the State's obligations under Articles
2 and 8 of the European Convention on Human Rights (the 'ECHR') in accordance with section
3 of the European Convention on Human Rights Act 2003, further particulars of which are set out in Part 2 below."
40. The Applicant's position is that Article 8 of the European Convention on Human Rights ('ECHR') imposes a positive obligation on the State to put in place a legislative and administrative framework with respect to climate change designed to provide effective protection of human health and life, and a further positive obligation to apply that framework effectively in practice, and in a timely manner. In failing to properly apply section 15 of the 2015 Act, in a manner that resulted in the effective application of the framework established by the 2015 Act in practice, the Board erred in law and acted in breach of section 3 of the ECHR Act 2003.
41. The Board's position is that the sole particular in respect of this ground does not comply with Order 84, Rule 20(3) of the Rules of the Superior Courts as it does not identify the nature of the legal obligation which is said to be placed on the Board qua the ECHR and in the context of the consideration of an application for development consent, nor does it identify the basis upon which it is asserted that the refusal of an application for planning permission is inconsistent with the Applicant's rights under Articles 2 and 8 of the ECHR and/or specify any interference in this respect.
42. Without prejudice thereto, the Applicant has failed to demonstrate that it has locus standi to make this argument and / or how a private limited company has rights under Articles 2 and 8 of the ECHR and/or that they are engaged in this context. The Applicant's reliance on Case 53600/20 Verein [KlimaSeniorinnen] Schweiz v Switzerland in this regard is misconceived.
43. Further, it is denied that the Board failed to consider climate policy in the context of its decision."
Core ground 6 – breach of regulation 2022/2577
"6. Core Ground 6: The Decision is invalid as the Board failed to treat the Proposed Development as being in the overriding public interest and serving public health and safety, and to give priority to that overriding public interest when balancing legal interests when making the Decision, as required by Article 3(2) of Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy, further particulars of which are set out in Part 2 below."
44. The Applicant's position is that EU law requires that, in the development consent process, windfarm developments are treated as being in the overriding public interest. Specifically, Article 3(2) of Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy requires that the construction and operation of plants and installations for the production of energy from renewable sources is given priority when balancing legal interests in the individual case. The Board therefore erred in law and acted in breach of EU law in rejecting the Applicant's submission that the Board should determine the application for permission based on a presumption that the Proposed Development is in the overriding public interest.
45. The Board's position is that the pleas under this ground do not comply with Order 84, Rule 20(3) of the Rules of the Superior Courts in circumstances where they do not identify the basis upon which the Board's refusal to exercise its discretion to grant permission in material contravention of an application for planning permission for an individual project breaches Regulation EU 2022/2577 (the 'TRE Regulation').
46. Without prejudice thereto, the TRE Regulation does not have the meaning and effect contended for by the Applicant. The presumption under the TRE Regulation is for the purposes of balancing legal interests in the context of the carrying out of certain EU law assessments under the three specified Directives therein. The Board did not refuse permission because of any constraint arising under any of the three specified Directives in Article 3(1) of the TRE Regulation and it does not have the effect contended for by the Applicant. Furthermore, Article 3(2) of the TRE Regulation did not preclude the Board from refusing to exercise its discretion under s.37G(6) and/or s.37(2)(b) to grant permission for the Proposed Development in material contravention of the CDP. The Applicant's erroneous premise is based on a misunderstanding of the scope of the TRE Regulation."
Core ground 7 – breach of EU law by failure to provide for material contravention
"7. Core Ground 7: The Decision is invalid as the Board breached the duty of sincere cooperation in Article 4(3) of the Treaty of the European Union, in refusing to exercise its discretion under section 37G and/or section 37(2)(b) of the 2000 Act to grant permission for the Proposed Development, and thereby failing to give effect to and/or jeopardising the attainment of the objectives of European Law, including the binding obligations of the European Union and its Member States with respect to climate change, further particulars of which are set out in Part 2 below."
"Core Ground 7: Duty of Sincere Cooperation
47. The Applicant's position is that the Board breached the duty of sincere cooperation under Article 4(3) of the Treaty of the European Union, in refusing to exercise its discretion to grant permission for the Proposed Development in material contravention of the development plan. In doing so, the Board failed to give effect to and/or jeopardised the attainment of the objectives of European Law, including the binding obligations of the European Union and its Member States with respect to climate change, as detailed in Core Ground 7 of the Statement of Grounds.
48. The Board's position is that the pleas under this ground do not comply with Order 84, Rule 20(3) of the Rules of the Superior Courts and cannot form a proper basis for relief. Without prejudice thereto, it is denied that the duty of sincere cooperation can be relied upon by the Applicant in the manner contended for and/or to the extent it operates to read in enhanced obligations under s.15."
Summary
(i) as regards the fact-specific points, firstly the board adopted the inspector's report generally, which considers the wrong section of the 2000 Act regarding material contravention and which involves a significantly different test;
(ii) secondly, the board had regard to an irrelevant consideration regarding the lack of ministerial/OPR objection to the contested provisions of the development plan;
(iii) in case I am wrong on the foregoing I will set out a decision on the other points (other than core ground 2);
(iv) section 15(1) of the 2015 Act means what it says, and the board failed to exercise its powers in a manner compliant as far as practicable with the climate objectives and policies set out in that subsection;
(v) that failure also constituted a breach of duty under the ECHR Act 2003 and a breach of EU law obligations; and
(vi) the alleged breach of regulation 2022/2577 has not been shown to arise on the facts.
Order of 10th January 2025
(i) there be an order of certiorari in terms of relief 1;
(ii) subject to a final decision on the form of the order, there be an order remitting the matter to the board to reconsider the application in accordance with this judgment;
(iii) provisionally, there be an order for costs (including the costs of written submissions and certifying for two counsel in respect of all relevant court applications) to the applicant against the respondent in respect of the proceedings, the quantum of costs to be determined, in default of agreement, in the legal costs adjudication process, and (in view of the matter being capable of being decided on the fact-specific grounds) there be no order as to costs in favour of or against the State parties; and
(iv) the matter be listed on Monday 20th January 2025 to confirm the foregoing.
Postscript – order of 14th March 2025
(i) the order set out (in part provisionally) at para. 161(i) to (iii) above be perfected forthwith along with the following orders;
(ii) there be a stay on remittal and on execution of costs until the final determination of the proceedings;
(iii) it be noted that it is agreed between the parties that an application for leapfrog leave to appeal will be made to the Supreme Court by the board by consent of the other parties and with the endorsement and support of the trial court;
(iv) it be noted that it is agreed between the parties that the present order insofar as concerns the re-opening the judgment is a pragmatic approach in the particular and exceptional special circumstances of the case, and is not to be taken as a precedent;
(v) by consent that the application for leave to appeal be granted and that the points of law agreed between the parties be certified for that purpose;
(vi) by consent that the board have liberty to file the affidavit of Cathal Walsh delivered on the 17th day of February 2025 without prejudice to any arguments the applicant might make;
(vii) by consent, without prejudice to the positions of the parties and without the court being taken as accepting any matters advanced by the respondent in that regard, the judgment be re-opened in respect of core ground 2 and limited related matters as determined by the court, and that the foregoing amended judgment extract such matters for further consideration in the event that that arises; and
(viii) that the issues relating to the removed text be adjourned generally with liberty to re-enter in the event that developments at appellate level make that necessary.