'Enforceable requirements on public bodies’

The Supreme Court recently upheld the High Court's decision to quash the refusal by An Coimisiún Pleanála of planning permission for a wind farm in County Laois, but for narrower reasons than those on which the High Court based its conclusion, write Jason Milne, Michelle Martin, Emma-Louise Nolan, Hannah Faul and Emma-Louise Nolan of William Fry.

This decision redefines the role of section 15(1) of the Climate Action and Low Carbon Development Act 2015 (as amended by the Climate Action and Low Carbon Development (Amendment) Act 2021).

Beyond mere procedure

It confirms that climate obligations now impose real, enforceable requirements on public bodies, beyond mere procedural obligations.

The court firmly rejected the High Court's expansive approach, which had effectively created an almost automatic presumption in favour of renewable energy projects.

An Coimisiún Pleanála must now reconsider whether to grant permission, exercising the discretion afforded under section 37G (6) of the Planning and Development Act 2024, to properly engage with its obligations under section 15(1) of the Climate Act.

The court analysed the meaning of the wording of section 15(1), particularly the words "functions", "consistent with" and "in so far as practicable".

It held that the "evident purpose and effect" of the 2021 amendment to section 15 was to strengthen the obligations imposed upon public bodies.

It held that section 15(1) did not expand or confer any additional functions on public authorities, and that in the planning context, the functions of the planning authority were set out in the Planning and Development Act 2000.

It is the existing functions which must be carried out in a manner consistent with section 15(1).

The court also noted that the consistency obligation was undoubtedly stronger than a "have regard to" obligation, but was more flexible and less demanding than a "comply with" obligation.

Complex wording

The court emphasised that the "consistent with" wording was much more complex than mere adherence to a general climate-friendly goal and allowed a range of lawful outcomes.

The court also noted that the obligation to perform a function "consistent with" the climate objectives was itself qualified by the phrase "in so far as practicable".

It again pointed out that section 15(1) was not a standalone provision, nor a "single radical provision intended to carry the full weight of the State's response to climate change".

The court rejected the High Court's decision tree, which suggested that renewable energy projects should "almost always" be approved.

The High Court's simple reasoning could not be upheld, and the duty of compliance with section 15(1) could not be reduced to a simple formula, the higher court said, warning that such a test was likely to lead to uncertainty on planning decisions.

The court also analysed the relationship between section 15(1) and development plans.

The High Court had ruled that the commission had been incorrectly applying a fixed policy of refusing permission where a proposed development materially contravened the relevant county development plan, which designated the site location of the proposed wind farm as "not open for consideration" for wind energy due to landscape and heritage sensitivities.

Consistent

The court ruled that a planning authority was entitled to approach its task on the assumption that any strategy or development plan adopted was consistent with climate objectives.

This, of course, is qualified by the possibility that development plans may become out of date or be drafted by reference to earlier iterations of national climate-action plans.

The court noted that where a designation had been made in a county-development plan, that designation would typically be followed, but that the demands of the climate emergency, as reflected in the most up-to-date climate action plan, might tip the balance in favour of granting permission.

In any of these cases, it can be argued that the duty imposed on the commission by section 15(1) should mean that the body should exercise its power to grant permission, notwithstanding that the development would be a material contravention of the development plan.

Discretion to grant permission 

The central issue before the High Court was that the commission never meaningfully assessed whether the climate benefits justified granting permission, notwithstanding a material contravention of the development plan.

Chief Justice O'Donnell stated that: "[s]ection 15 does not confer a general discretion on a relevant body", but is concerned with the performance of the functions of all such bodies, not just planning decision makers, and in principle, a court must be able to decide if the obligation has been complied with or not. It is a legal test, rather than a procedural one. 

The court noted that the commission's refusal involved an "error of law", in that the planning decision and inspector's report suggested that permission could not be granted if the decision materially contravened the development plan, and that they erred by relying on section 37(2) instead of section 37G(6) of the Planning and Development Act 2024.

This failure was fatal under section 15(1).

The court clarified that the commission had the power to grant permission that contravened the provisions of the development plan under section 37(2) or section 37G(6), and that this is "a function of the commission to which s. 15(1) applies." 

It was held that it was not a case of asking whether a material contravention of the plan would assist in achieving the climate goals and, therefore, granting permission for any renewable-energy project that did so.

The function being exercised is the grant of permission for a development that materially contravenes the development plan. It is this function which must be performed so far as is practicable, consistent with the climate change objectives in section 15(1).

ECHR and EU-law arguments

The court rejected the High Court's reliance on article 8 ECHR (KlimaSeniorinnen).

It set aside the High Court's finding that the State was in breach of its obligation of sincere cooperation under article 4(3) TFEU.

The court upheld the High Court's ruling that the Climate Act 2015 and 2021 were not intended to give effect to EU obligations.

The court found no inconsistency with EU law and no basis for EU law requiring a presumption in favour of granting permission.

The court made important comments on issues of locus standi and on proceedings seeking to assert a breach of the ECHR.

It stated that there needed to be a "victim" for article 34 ECHR to claim a personal right, distinguishing the corporate entity of Coolglass from the NGO in Klima.

The court also stated that, where issues of interpretation or application of the ECHR arose, they fell under the Constitution, specifically under article 41, and that these must be referenced in any challenge.

Impact of decision

The court overturned many of the High Court's findings, but ultimately upheld that the commission's refusal of permission was still unlawful and had to be quashed.

This is because the commission failed to properly consider whether to exercise its power under s.37G(6) to grant permission, notwithstanding a material contravention of the development plan.

The commission must now assess the remitted application and correctly apply sections 15(1) and 37G(6).

This decision highlights that section 15 of the Climate Act imposes real and substantive obligations on public bodies that are "relevant bodies" under the act, not just on the commission or other planning decision-makers.

Statutory functions

The clarification that this obligation does not introduce any new obligation, but must be balanced against existing statutory functions on a case‑specific basis, is welcomed.

The Supreme Court suggests no rigid formula, and there is comfort that decision-makers can rely on the implication that the pursuit and achievement of the climate objective are already woven into the planning process to a significant degree.