High Court allows wind farm planning application to proceed pending Supreme Court appeal on statutory interpretation.

[2025] IEHC 1

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0001244]

BETWEEN

COOLGLASS WIND FARM LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

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.

1. The refusal of permission for a wind farm development here has given rise to challenge both

on fact-specific grounds and on broader grounds. The latter include an issue of statutory

interpretation relating to s. 15(1) of the Climate Action and Low Carbon Development Act 2015 as

amended by the Climate Action and Low Carbon Development Act 2021.

Geographical context

2. The proposed development is a 13-turbine wind farm and associated works in the townlands

of Fossy Upper, Aghoney, Gorreelagh, Knocklead, Scotland, Brennanshill, Monamantrry, Coolglass,

Crissard, Kylenabehy, Monamanry, Brennanshill, Knocklead, Aghoney, Timahoe, Carrigeen,

Ballygormill South, Money Upper, Hophall, Rathleague, Ballymooney, and Rathbrennan, in County

Laois (https://www.pleanala.ie/en-ie/case/317809).

Facts

3. On 20th April 2022, the applicant submitted a pre-application request to the board.

4. The board held two pre-application consultation meetings with the applicant on 16th June

2022 and 16th November 2022, during which the project details, environmental assessments, and

strategic considerations were discussed.

5. Council Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to

accelerate the deployment of renewable energy entered into force on 30th December 2022.

6. On 8th May 2023, the board decided that the proposed development was a strategic

infrastructure development within the meaning of s. 37A of the 2000 Act and thus that it was advising

the applicant to submit a planning application direction to the board (https://www.pleanala.ie/en-

ie/case/313375).

7. On 14th August 2023, the applicant submitted a planning application to the board,

accompanied by an environmental impact assessment report (EIAR) and a Natura Impact Statement

(NIS). The application was registered under ABP Ref. 317809-23.

8. The board received 106 public observations on the proposed development, raising various

issues and concerns, such as environmental impacts, site suitability, grid connection, community

consultation, and county development plan policies.

9. The board also received submissions from prescribed bodies, including Laois County Council,

the Department of Housing, Local Government and Heritage, the Department of Defence, the

Department of Transport, the Health and Safety Authority, and Transport Infrastructure Ireland.

10. The council's chief executive's report stated that the proposed development would materially

contravene the county development plan 2021-2027 (the CDP) and its wind energy strategy (WES),

as 12 of the 13 proposed turbines were located in areas designated as “not open for consideration”

for wind farm development.

11. The board circulated the public observations and prescribed bodies’ submissions, including

the chief executive's report on 17th October 2023 and 25th October 2023 respectively requesting a

response from the applicant. The applicant submitted a response to the board on 20th December

2023.

12. The inspector prepared a report dated 16th May 2024, following a site inspection on 11th

April 2024. The inspector recommended that a grant of permission be refused on the basis that the

proposed development represented an identified material contravention of the CDP and, therefore,

concluded that the proposed development would be contrary to the proper planning and sustainable

development of the area.

13. The board direction relying on the inspector generally is dated 21st August 2024.

14. The board order issued on 23rd August 2024. The board’s decision notes the general support

policy for wind energy development within the CDP but concludes that the proposed development

would materially contravene objective CM RE 7 of the CDP and policy objective WES 7 of the WES,

and would therefore be contrary to the proper planning and sustainable development of the area.

15. In the interests of making clear what facts are being found, I am accepting all of the evidence

on behalf of the applicant that was not contested as to its substance (subject to the postscript).

The most pertinent such evidence is set out in more detail later in this judgment.

Procedural history

16. I granted leave to seek judicial review to the applicant in the Planning and Environmental

List on 14th October 2024. I confirmed that the expedited procedure under Practice Direction HC126

applied to the proceedings, and listed the substantive hearing for 20th December 2024.

17. On 1st November 2024, the board indicated its intention to contest the admissibility of the

affidavit of Brian Keville sworn on behalf of the applicant. The parties agreed that the board could

make that application to exclude the evidence of Brian Keville in its opposition papers and without

the necessity for a formal motion.

18. The board filed its opposition papers on 15th November 2024.

19. The notice parties confirmed on 22nd November 2024 that they did not intend to file

opposition papers.

20. The applicant delivered its written legal submissions on 29th November 2024 (filed on 2nd

December 2024).

21. The board delivered its written legal submissions on 9th December 2024 (filed on 10th

December 2024).

22. The applicant served a supplemental affidavit of Brian Keville on the parties on 13th

December 2024 and subsequently applied to the court on 16th December 2024 for liberty to file it.

The court granted liberty to file it on a without prejudice basis having regard to the board’s stated

objection.

23. The notice parties delivered their written legal submissions on 16th December 2024.

24. The applicant delivered its replying legal submissions on 19th December 2024.

25. The matter was then heard under the expedited procedure on 20th December 2024 (the last

day of term) – only 2.5 months after proceedings were commenced. As with other similar cases,

this sort of case processing speed would have been impossible, even unthinkable, without the

expedited procedure.

Relief sought

26. The reliefs sought in the statement of grounds are as follows:

“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

27. The core grounds of challenge are as follows:

“(1) Domestic Law Grounds

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.

2. Core Ground 2: The Decision is invalid as the Board has failed to properly exercise

its jurisdiction and/or fettered its discretion in adopting, and applying in this case, a policy

of refusing to exercise its discretion to grant permission in material contravention of the

development plan under section 37G and/or 37(2)(b) of the 2000 Act for wind farm

developments in areas designated unfavourably for wind farm development, further

particulars of which are set out in Part 2 below.

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.

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.

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.

(2) EU Law Grounds

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.

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.”

28. I should also say that the headings in the statement of grounds dividing the domestic from

EU law grounds are rather loose and can be regarded as indicative only, since EU law points are also

relevant to core ground 1.

The fact-specific grounds

29. Ultimately this matter is capable of being decided on two highly fact-specific grounds, which

I will deal with first – core ground 4 and core ground 3.

Core ground 4 – reliance on wrong section

30. Core ground 4 is:

“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.”

31. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 4: Reliance on section 37(2) of the 2000 Act

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).”

32. The board direction provides as follows (emphasis added):

“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

1. Policy Objective CM RE 5 of the Laois County Development Plan 2021-2027 seeks to

promote and facilitate wind energy development in accordance with the Guidelines for

Planning Authorities on Wind Energy Development and Appendix 5, Wind Energy Strategy

of the Development Plan, subject to compliance with normal planning and environmental

criteria. Notwithstanding the general supportive policy for wind energy development, Policy

Objective CM RE 7 prohibits the location of wind farms in areas identified as ‘Areas not open

for consideration’, as outlined in Map 3.2. The Wind Energy Strategy for County Laois

delineates ‘Areas Not Open for Consideration’ whereunder Policy Objective WES 7 refers,

stating that ‘these areas are not considered suitable for wind farm development due to their

overall sensitivity arising from landscape, ecological, recreational and/or cultural and built

heritage resources as well as their limited wind regime’. Accordingly, having regard to the

totality of relevant policy in relation to wind energy as set out in the statutory plan, it is

considered that the proposed development would materially contravene Policy Objective CM

RE 7 of the Laois County Development Plan 2021-2027 and Policy Objective WES 7 of the

Laois County Wind Energy Strategy and would, therefore, be contrary to the proper planning

and sustainable development of the area.

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”

33. That is an express reliance on the inspector, without identifying any matter where a different

approach is being taken.

34. The inspector’s report includes the following (emphasis added):

“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.”

35. It is confounding that the inspector referred to “an appeal” when he was dealing with a first-

instance decision, and that he treated the application as being made under a section that obviously

did not apply – and indeed that the erroneous reference to s. 37(2) wasn’t picked up expressly by

anybody subsequently. Admittedly the way the inspector phrased the matter suggested that he got

the wrong reference from within the applicant’s material, but the board has to be able to do better

than fly on automatic pilot and copy-and-paste mistakes into its decision-making documents. Plus,

he doesn’t claim to have got the utterly inappropriate word “appeal” from the applicant.

36. This is not a mere technicality. Section 37(2) of the 2000 Act (which does not apply)

provides:

“(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.”

37. By contrast, s. 37G(6) of the 2000 Act (which does apply) provides:

“(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.”

38. What is obvious is that s. 37G(6) is significantly more permissive than s. 37(2). The whole

premise of the inspector’s discussion of conditions in s. 37(2)(b) (which don’t exist in s. 37G) is a

completely false one. This is not merely relying on the wrong section but applying a test that doesn’t

exist in this context.

39. The reliance on the inspector’s report by the board vitiates the decision on that basis, on

totally conventional administrative law grounds.

40. The board’s position that it is up to the applicant to demonstrate that the wrong section was

relied on is misconceived. The applicant has demonstrated enough to give rise to such an inference

by pointing to the error in the inspector’s report and the express reliance on the report by the board.

A public body should not take an “admit nothing, deny everything, put the onus on the applicant for

everything” attitude. Despite the obviously erroneous wording, the board unacceptably isn’t even

admitting an error here, let alone the consequences of that. That is a poor strategic approach on

any view, even leaving aside duty to assist the court. The board’s legalistic defence at para. 111 of

submissions that the applicant should have evidentially established the extent of the board’s

consideration of relevant matters doesn’t get them anywhere in circumstances such as we have

here.

41. But even if (which has not been in any way made out) matters were in fact properly

considered, the material contains an error on the face of the record, which is a free-standing basis

on which the decision should be quashed.

42. In this context one can also note that the inspector’s analysis is disingenuous. The factors

in favour of material contravention are improperly trivialised as “the Applicant’s assertions”, with no

discussion in that regard and a complete and utter failure to even consider, still less decide, whether

these factors have objective basis beyond assertion. In that regard it would be far outside the realm

of the rational to deny such a basis or to characterise such matters as being only assertions.

43. The factors that are alleged to be “overwhelming” against the project are “established policy

provisions, significant visual impact, and landscape sensitivity, as well as oversight by the OPR and

Ministerial Direction in 2022”. But the second two factors are irrelevant considerations, a matter

to which we will turn shortly. The first three factors are the same thing. The ponderous-sounding

“established policy provisions” are just the development plan. What the inspector is saying

ultimately is that it is “overwhelming” that visual impacts (as enshrined in a plan) take priority over

compliance with national and EU legally binding targets to address the climate emergency (which

itself threatens landscapes here and globally with vastly more severe disturbance, desertification,

sea level rise and so on). Only a lawyer would attempt to call that rational. Someone else might

say that it represents a deeply skewed set of values and an unwillingness to face new realities so

starkly highlighted by the board elsewhere, something to which we will now turn.

44. Courts sometimes endearingly look at cases in total isolation (a virtue-signalling but

completely intellectually disreputable manoeuvre, although we needn’t get into that in detail), but if

we can widen the lens just a fraction, the contradictions of the present decision are apparent from

two cases in particular. Firstly in Shannon LNG v. An Bord Pleanála [2024] IEHC 555, [2024] 9 JIC

3004 (Unreported, High Court, 30th September 2024), the board protested meekly that it was not

in the business of making energy policy and was simply trying to reflect its understanding of

governmental policy in its refusal of permission. Yet here, Government policy and legally binding

targets that support a grant of permission are dismissed as mere “Applicant’s assertions”, and an

approach is taken (intended to be a “precedent”) that applied generally severely undermines the

achievement of both national, EU and international policy and legally-enshrined national, EU and

international climate goals (as Mr Keville outlines and as discussed below). The contrast between

the board as would-be humble servant of Government energy policy in Shannon LNG, and as a

significant roadblock and obstacle to the achievement of the climate goals of national and EU energy

policy here, is startling.

45. Secondly, I noted in Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603

(Unreported, High Court, 1st November 2024) that the inspector in that case had concluded with

the compelling and obvious point that:

“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.”

46. I will discuss this further later in the judgment, but again only a lawyer would attempt to

call it rational for the board to produce totally inconsistent approaches in different decisions. To

anyone else, the board can’t say on the one hand that measures to tackle the climate emergency

“must” (the inspector in Nagle View) result in changes to visual context, and on the other hand that

renewable energy infrastructure “must” (the inspector in this case) take place within local policy

provision – such that the board must capitulate immediately and without meaningful discussion to a

provision of a development plan grounded in the council’s assertion that visual context takes priority

over the climate emergency. Whether all of this plunges one into depression, brings out one’s inner

Skolstrejk för klimatet, or just inspires judicial levels of indifference, is probably a matter of taste

and perspective. But either way, the inspector’s report here is an utterly flawed document in key

respects, even on the most orthodox and established administrative law basis.

Core ground 3 – abrogation to Minister/OPR

47. Core ground 3 is:

“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.”

48. The parties’ positions as recorded in the statement of case are summarised as follows:

“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.”

49. The position here is relatively simple. Note 1 and 2 in the direction appear under the heading

of Reasons and Considerations. Note 1 explains why the board didn’t do something it could have

done. Note 2 says (emphasis added):

“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.”

50. As the applicant says, “there is no way to read that other than as explaining why the board

decided to refuse permission”. That’s what it says. It is a manifestly irrelevant consideration. It

is true at one level that, in a situation where legally binding targets for renewables are not actually

being met, attempts by councils to preclude or limit renewable energy infrastructure can generally

be regarded as unlawfully inconsistent with EU, ECHR and national law and policy in this area. But

the fact that the Office of the Planning Regulation (OPR) and the Minister for Housing, Local

Government and Heritage (the Minister) failed to take any action to address the inconsistency

(something that the Climate Change Advisory Council suggests they should urgently rectify across

the board – especially I might add given the relative triviality of some of their objections to

development plans in relation to other matters, which was my view of the storm in a teacup in

Friends of the Irish Environment v. Minister for Housing [2024] IEHC 588 (Unreported, High Court,

17th October 2024), para. 150) doesn’t make the refusal of an application for such infrastructure

consistent with climate plans and goals when it wouldn’t otherwise be so.

51. To put it another way, and again sticking to the most orthodox interpretation of

administrative law, the fact that the Minister and OPR did not seek an amendment of the plan relates

to a different test under a different statutory provision and is simply not a legally relevant

consideration to the refusal of permission. The reliance on the former in coming to the latter decision

vitiates that decision.

The other grounds

52. Having regard to the foregoing, the decision must be quashed and the matter remitted. I

did give serious consideration to stopping here, or to only deciding the other grounds in part.

Compared to purely legal decisions, tactical (not really the right word but no better one comes

immediately to hand) decisions can involve a great deal more agony. But with all necessary caveats,

in case I am wrong about the fact-specific points I think on balance and in the circumstances of this

particular case (which can be distinguished from most other cases that can be decided on a net

point), it is for the best if I decide all of the other grounds. (In the end this did not include core

ground 2 for reasons set out in the postscript.)

53. So we can turn next to core ground 1.

Core ground 1 - breach of 2015 Act

54. Core ground 1 is:

“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.”

55. The parties’ positions as recorded in the statement of case are summarised as follows:

“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

56. While the board tries to drown s. 15 under Latin maxims, there are some rather more basic

principles of statutory interpretation that need to be taken as the starting point.

57. In A, B, C (A Minor Suing by His Next Friend, A) v. The Minister for Foreign Affairs and Trade

[2023] IESC 10, [2023] 1 I.L.R.M. 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.”

58. In Heather Hill and Anor. v. An Bord Pleanála and Ors. [2022] IESC 43, [2022] 2 I.L.R.M.

313, [2022] 11 JIC 1004 at paras. 159-162 Murray J. said:

“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.).”

59. In addition, readings that, if possible, comply with EU law and ECHR obligations are required

under the judgment of 13 November 1990, Marleasing SA v La Comercial Internacional de

Alimentacion SA, C-106/89, ECLI:EU:C:1990:395 and the European Convention on Human Rights

Act 2003.

60. So the way in which I would propose to approach the interpretation of s. 15 in this case is

to look at the following headings:

(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)

61. Section 15(1) of the 2015 Act as amended by the 2021 Act provides:

“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.”

62. We can start with what the section says on its face.

63. The distinction between have-regard-to obligations and comply-with obligations is

foundational to administrative law and to planning law in particular.

64. The basic fault line is between regard and compliance, but there are shades of emphasis

within that. I can attempt to sketch the spectrum as follows:

(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 I.R. 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.”

65. Insofar as concerns climate issues, different obligations weigh in at different places on the

spectrum. On its face, and in terms of its own language (“plain meaning” if you like), s. 15(1) is at

level (v), well above merely having significant regard to something.

Factor II – The context of s. 15(1)

66. The primary context of the amendment to s. 15 effected by the 2021 Act is that it

significantly strengthened the pre-existing wording of the section.

67. Section 15 as originally enacted provided (emphasis added):

“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.”

68. As amended, section 15 now provides (emphasis added):

“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.”

69. There are three essential aspects that emerge from the context.

70. Firstly, the change to s. 15(1) is clearly a step-change from a mere have-regard-to obligation

to a comply-with obligation. That distinction is foundational and not to be minimised or nullified,

and nor could it have been inadvertent.

71. Secondly, the subsequent provisions whereby the Minister can give notice to a body can’t

on any reasonable view contradict that or be deemed to be some sort of self-contained mechanism

to enforce the law which renders it wholly or partly non-justiciable. Those notice provisions pre-

existed the 2021 Act in any event.

72. And thirdly, any pinched and narrow reading of s. 15(1) has to be reality checked against

what the 2021 Act says overall (rather than just about how one public body operates at the moment).

And what we find is that it imposes sweeping obligations across the public sector from the

Government down.

73. The overall architecture of the 2015 and 2021 Acts in the context of the framework of

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.”

74. Specifically, the 2021 Act inserts a new s. 3 in the 2015 Act:

“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.”

75. It also inserts a new s. 4:

“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.”

76. It requires local plans consistent with national plans:

“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.”

77. The board, taking s. 15(1) out of context, presents the applicant’s interpretation as a

shuddering nightmare of an implicit change in the law. But positioning s. 15(1) in the overall context

of the legislation as a whole renders such scare tactics rather less plausible. It is clear that the 2021

Act has created a broad range of sweeping obligations across the whole public sector, of which the

implications on the board are of a piece, and not to be read down on the basis of some sort of special

pleading for planning decision-makers – a board-related exceptionalism that permeates the whole

set of opposing submissions.

78. Had the legislature been required to amend each and every enactment to which the broad

and sweeping obligations of the 2015 and 2021 Acts apply, the Bill would probably still be in the

Parliamentary Counsel’s office being worked on, such would be the complication involved.

79. Insofar as it is suggested that the wide application of s. 15 is a reason to give it a narrow

interpretation, I agree with the applicant that far from this being the case, the approach of a general

requirement of general application underlines and reflects the need for “rapid, far-reaching and

unprecedented changes to all aspects of society and the economy”. To subject the Act to the detail

of any and every rule in a contrary sense is to allow it to die a thousand deaths.

80. This isn’t in any way unprecedented – as the applicant points out it is a similar approach to

that in s. 3 of the ECHR Act 2003.

81. The applicant neatly illustrates that where a different approach is taken such as the example

of transposition of directive 2014/52/EU on the assessment of the effects of certain public and private

projects on the environment (the EIA Directive) by granular Act-by-Act amendment, it has taken

decades to implement EU law properly, and indeed one can’t be sure that even that has happened

fully as yet.

82. The argument that the Act can’t mean what it says because it should have amended the

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.

83. The board’s argument that the applicant’s reading is a form of breach of a postulated

principle against implicit amendment of the law is a classic case of the fallacy outlined by Murray J.

in Heather Hill. And anyway there is no implicit change in the law here – the change is very explicit.

84. At para. 71 of submissions, the board raises the petrified cry against any “far-reaching”

interpretation. But that term isn’t the insult the board seems to think it is. Indeed the State in

submissions (para. 7) expressly endorsed that phrase.

85. While of course I don’t put weight on the Dáil debates, I can’t help noticing in passing that

one cabinet Minister at second stage of the Bill for the 2021 Act rather undermined the board’s case

in advance by positively championing that phrase, saying (emphasis added) that she and her own

colleagues in Government had advocated for:

“... 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/)”

86. Without relying on that obviously, the actual statutory context of s. 15(1) viewed in the light

of the Act as a whole supports an interpretation that the subsection means what it says.

Factor III – The purpose of s. 15(1)

87. The climate emergency represents a critical risk to human and other natural life on earth:

Friends of the Irish Environment v. Government of Ireland [2020] IESC 49, [2021] 3 I.R. 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]”

88. A legislative purpose to facilitate radical and far-reaching action is consistent with the fact

that:

(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.

89. Similar statements were available to legislators when the Dáil declared a climate emergency

in May 2019 and when the 2021 Act was enacted.

90. The State’s submission in the present case reinforces this (emphasis added):

“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.”

91. The applicant throws down the gauntlet as to whether this is “all just empty rhetoric”,

because the board (largely supported by the State) recoils in horror from the logical implications of

this and demands the right to continue business as usual. But an immediate end to business as

usual is a precondition for planetary survival.

92. The problem is that the problem is so big that to even describe it factually sounds like

scaremongering. I tried to summarise it at para. 9 of Toole v. Minister for Local Government and

Heritage (II) [2024] IEHC 610 (Unreported, High Court, 1st November 2024):

“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.”

93. The applicant’s summary of how the law has changed in recent years is worth quoting at

length. The applicant identifies the three critical binding developments as the enactment of the

2021 Act, the 2022-23 EU legislation, and the 2024 decision in KlimaSeniorinnen:

“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.”

94. The affidavit of Mr O’Sullivan, uncontradicted in these respects, illustrates two fundamental

points:

(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.

95. Rather than try to paraphrase these points, the affidavit is worth quoting at length (some

emphasis added):

“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.”

96. All of this context supports a purposive interpretation of s. 15(1) in line with what it actually

says. A weak meaning falling short of an obligation to comply will result in a failure to achieve the

statutory purpose.

Factor IV – EU law conformity

97. As the applicant submits, the duty of sincere cooperation under art. 4(3) TEU applies to the

State and its emanations (including relevantly the board and the court). The problem for the board

is that an interpretation of s. 15(1) that allows the board to merely have-regard-to climate goals

rather than actually comply with such goals would give rise to a failure to give effect to or a

jeopardising of 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, contrary to the duty

of sincere cooperation.

98. An interpretation of s. 15 insofar as it applies to the board’s decisions on such infrastructure

that supports the overall requirement to comply with EU law regarding supply of renewable energy,

is consistent with the Marleasing requirement to read domestic law in an EU law-compatible way.

99. Mr O’Sullivan’s evidence, not contradicted in this respect, as to the extent of compliance

with EU law obligations is as follows:

“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.”

100. The State replies to the effect that the 2015 and 2021 Acts were not in purported

transposition of any specific EU law measure. And it’s true that the Acts don’t state on its face that

they are transposing any given such measure. It’s also true that EU law doesn’t, in terms, require

member states to impose such an interpretative and general obligation on public bodies. But as the

applicant says, that is “just irrelevant”. The critical point is that faced with an issue of interpretation

of a national provision, the domestic courts should give that provision an interpretation that supports

and implements EU law rather than allows such law to be undermined.

101. The irrelevance of the point that no specific directive is being implemented by the 2021 Act

is borne out by the important relevant principle laid down by the CJEU Grand Chamber in the

judgment of 5 October 2004, Bernhard Pfeiffer (C-397/01), Wilhelm Roith (C-398/01), Albert Süß

(C-399/01), Michael Winter (C-400/01), Klaus Nestvogel (C-401/01), Roswitha Zeller (C-402/01)

and Matthias Döbele (C-403/01) v Deutsches Rotes Kreuz, Kreisverband Waldshut eV, joined cases

C-397/01 to C-403/01, European Court Reports 2004 I-08835, ECLI:EU:C:2004:584:

“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.”

102. As the applicant submits, the interpretative obligation arising under EU law extends not only

to ensuring that Ireland’s climate targets under EU law are properly transposed, but rather requires

the national courts to do everything within their power, including to consider the whole body of rules

of national law, and to interpret and apply that body of rules in so far as possible, to achieve an

outcome consistent with the objective pursued by EU climate law. Thus I agree with the applicant

that the court must interpret the 2015 Act, insofar as possible, to ensure that Ireland’s EU law

climate obligations will in fact be met. Such an interpretation is consistent with s. 15(1) meaning

what it says rather than being merely a souped-up “have-regard-to” obligation.

Factor V – ECHR conformity

103. Section 2 of the ECHR Act provides:

“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.”

104. Section 3(1) of the ECHR Act 2003 provides:

“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.”

105. It can be noted that this is pretty much at or near the highest point on the regard-comply

spectrum – it means comply unless compliance is illegal.

106. Self-evidently, in interpreting the ECHR, one has regard to the Strasbourg jurisprudence.

Section 4 provides:

“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.”

107. In April 2024, as discussed in Toole (II), the ECtHR gave judgment in Verein

KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, 9 April 2024

(https://hudoc.echr.coe.int/eng/?i=001-233206). The judgment contains a wide overview of

developments in climate law and litigation. The court found a violation of art. 8 of the ECHR which

encompasses a right to effective protection from the serious adverse effects of climate change.

There was a breach of the positive obligations thereby imposed in terms of establishing a relevant

domestic regulatory framework relating to budgeting for and limiting emissions. In addition, the

failure by the domestic courts to accept the applicants’ standing to litigate was a breach of art. 6.1

of the ECHR. In the latter respect, reliance was placed on the Aarhus Convention and related

guidance, The Aarhus Convention: An Implementation Guide, Second Edition, 2014

(https://unece.org/DAM/env/pp/Publications/Aarhus_Implementation_Guide_interactive_eng.pdf),

and the Maastricht Recommendations on Promoting Effective Public Participation in Decision-making

in Environmental Matters, 2015 (https://www.un-ilibrary.org/content/books/9789210574082).

108. For present purposes, there are two pertinent elements to the KlimaSeniorinnen case –

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.”

109. I agree with the applicant that one must conclude that art. 8 of the 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.

110. Ireland has a framework of course but (as discussed above under the heading of EU law

conformity) it is clear that it is not being complied with. The latter failure, on the logic of

KlimaSeniorinnen, involves a breach of art. 8 of the ECHR.

111. The application of the framework in practice is crucial. As we know from the termination

of pregnancy context (Case of A, B and C v. Ireland [GC], no. 25579/05, ECHR 2010

(https://hudoc.echr.coe.int/fre?i=001-102332)), the Strasbourg court takes a dim view of a

situation where there are laws on the books but a failure to put in place practical arrangements to

implement them.

112. The problem for the opposing parties here is firstly that an interpretation of s. 15(1) that

allows the climate goals in legislation to fall by the wayside due to a failure by the board to exercise

discretionary powers to override development plans is an interpretation that fails to conform with

ECHR obligations contrary to s. 2 of the 2003 Act.

113. Secondly, the failure by the board to use its discretionary powers in that manner constitutes

a failure to act consistently with ECHR obligations contrary to s. 3 of the 2003 Act.

114. The board rather weakly raises the defence that a body corporate doesn’t have locus standi

to argue for the right to a private life in a climate-relevant sense under art. 8 of the ECHR. But that

isn’t the point of course. Whether an individual applicant has standing in a hypothetical case or not

doesn’t affect the interpretation of a statutory provision. The point being made is that the court

should interpret the 2015 Act as amended in an ECHR-compatible manner. Such an interpretation

supports the applicant’s proposition that s. 15(1) should be read as meaning what it says.

115. Thus the requirement to read legislation in an ECHR-compliant manner supports an

interpretation of s. 15 that goes beyond the board’s have-regard-to interpretation and the State’s

meaningful engagement interpretation. It reinforces the applicant’s case that the interpretation

should ensure that ECHR obligations are complied with in practice, including compliance in practice

with stated goals in relation to renewable energy infrastructure.

Conclusion on the meaning of s. 15

116. Sometimes (although not as often as some people think) the language, context and purpose

of a provision, or the requirements of EU law conformity or ECHR conformity, pull in different

directions. This is not such a case.

117. On the contrary, all vectors of interpretation point strongly in the same direction – the need

for an imperative reading of s. 15(1) in line with what it says, namely that the board and any other

relevant body is required to act in conformity with the climate plans and objectives set out in the

subsection unless it is impracticable to do so.

118. I therefore reject the watered-down interpretations of s. 15(1) offered by the opposing

parties here and accept the applicant’s interpretation.

119. The logical implication of that is that s. 15 applies to the board as it applies to other relevant

bodies and as other provisions of the legislation apply to central and local government. It imposes

an obligation to act consistently with the climate plans and objectives referred to in s. 15 insofar as

practicable. That does not mean allowing an application which is prohibited by law. That wouldn’t

be practicable apart from anything else. But it does mean exercising discretionary and evaluative

powers in whatever way is most likely to be consistent with the relevant plans and objectives.

120. The attempt by the board to cut down the scope and meaning of s. 15 by reference to Latin

maxims such as noscitur a sociis (submissions para. 43) or generalia specialibus (para. 45) brings

to mind a different classical analogy, that of the Emperor Nero fiddling while Rome burned in 64 CE.

That isn’t an irrelevant comparison – the greenhouse effect involves the planet literally burning due

to the cumulative volume of GHGs in the atmosphere since the Industrial Revolution.

121. The State’s plea for a “wide margin of appreciation” reduces the compliance language of

s. 15 to something functionally indistinguishable from a mere have-regard-to obligation.

122. The State re-writes s. 15 into vanishing point in its submissions at para. 103:

“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.”

123. Merely providing “support” to bodies reduces the section to a mere information note or

reminder that they can do something they can do anyway. It drains the section of the clear

imperative force on its face, reinforced by its context and purpose and by EU and ECHR obligations.

The applicant calls attention to the stark disconnect between the State’s recognition of the climate

emergency as the supreme challenge of our time in theory, and the rejection of the logical

implications of that in practice.

124. As far as practicability is concerned, that has an objective and established meaning. It is

not up for renegotiation in every case, and still less here where there is an overriding legal context

to ensure compliance with overall goals.

125. The State submits at para. 95:

“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).”

126. As the applicant says, this is an attempt to read down the section to deprive it significantly

of its efficacy. And the scarecrow reference to quasi-judicial functions falls flat. Being judicial (or

even quasi-judicial, surprisingly) doesn’t give one an immunity from being subjected to mandatory

statutory provisions.

127. Again we have a massive and unexplained contradiction between the State’s opening

rhetorical acceptance of the climate emergency as the supreme challenge of our times, combined

with quibbling rejection and inadequacy of intention when it comes to actually operationalising that

to its logical conclusions. Pure Otto von Bismarck.

(https://www.oxfordreference.com/display/10.1093/acref/9780191826719.001.0001/q-oro-ed4-

00001699)

128. That lack of intention can be the only explanation for the State’s dogged insistence in reading

in quite a lot of qualifying language into s. 15 that is simply not there (for example that it only

requires a body to merely “endeavour”). Nor is it the case that the obligations end if a body considers

that a further step is impracticable – that step has to be actually impracticable. The applicant quite

correctly points out the “myriad of ways” in which the State is adding qualifiers that are simply not

to be found in the section. This in substance amounts, impermissibly, to the State in effect getting

cold feet about the legislation for some unexplained reason and attempting to render it of limited

meaning in practice by rewriting it in a narrow way.

129. Opposing parties generally love nightmare scenarios and floodgates arguments, and the

board has been to the fore on occasion in that regard. It surely wins another campaign medal with

the following:

“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.”

130. This is over-simplistic I’m afraid, as bogeyman defences tend to be. It ignores several critical

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.

131. The conclusion is that where the board (or mutatis mutandis any other relevant body) is

called on to make a decision of relevance to the achievement of the matters set out in s. 15(1), it

should proceed as follows:

(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.

132. I do need to emphasise that the obligation to use discretionary powers favourably to

renewable energy infrastructure does not automatically translate into an obligation to refuse

permission for developments that cause emissions. One can see an argument as to why the board

would not be required to start from a position of scepticism in relation to projects causing emissions

to quite the same extent as it should start from a presumption of favourability regarding renewable

projects. We can save detailed consideration for a case in which it arises but there are two obvious

reasons for this:

(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.

133. In other words, it doesn’t automatically follow from a pro-renewables interpretation that

there must be, say, an anti-cheese factory interpretation, an anti-data centre interpretation or an

anti-LNG storage interpretation. The trade-offs and displacement effects would need to be

considered.

Application of the law to the facts here

134. Of course, one thing the board and the State don’t attempt to explain is how refusal of this

application could be consistent with the climate obligations governed by s. 15.

135. As adverted to above, the State proposed a limited meaning for s. 15, but not as limited as

that argued for by the board. But under even the State’s bare bones reading, “a relevant body must

do more than simply have regard to the objectives and measures identified in paragraphs (a) to (e).

In performing its functions, a relevant body must engage in a meaningful way with the objectives

and measures identified in section 15(1)(a)-(e), must endeavour to carry out its functions in a

manner consistent with those objectives and measures, and, where it considers that it is not

practicable to do so, it may be required to explain why this is so” (State submissions para. 72).

Even if (incorrectly in my view) the bar were to be set at this extremely minimalist level, the board

decision here didn’t in any rational sense constitute meaningful engagement with s. 15. There is

some reference in the background to climate in the inspector’s report, but the actual analysis in

section 11 didn’t consider the s. 15 obligation at all. As the applicant correctly submits, “There is

simply no reading of the inspector’s report ... that could possibly be said to support the contention

that ... the inspector and then the board ... considered the obligations under s. 15”.

136. The inspector doesn’t refer to s. 15. The board doesn’t refer to s. 15. The inspector doesn’t

refer to the 2015 Act at all. The board doesn’t refer to the 2015 Act either. The 2021 Act only

gets a passing mention by the inspector on an issue that isn’t relevant in this respect. The board

doesn’t mention it at all. Of course even a mention doesn’t constitute meaningful engagement, let

alone compliance, but the board hasn’t even managed a bargain-basement version of having regard

to the legislation.

137. The board simply engaged in a direct read-across from the contravention to “therefore” the

application being not in accordance with proper planning and development. That skips several

essential steps, including the crucial step of engagement with consistency with the plans and

objectives in s. 15, the practicability of approving the application, and thus whether the board should

have materially contravened the plan.

138. I noted in Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603

(Unreported, High Court, 1st November 2024) that the board is already using the language of a

presumption in favour of renewable energy development. The inspector in that case said in section

14.2.3.1 (emphasis added)

(https://www.pleanala.ie/anbordpleanala/media/abp/cases/reports/308/r308885.pdf?r=17660365

5092):

“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.”

139. The report inter alia notes national policy as follows:

“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”

140. The inspector also identified national and European legislation and policy as follows:

“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)”

141. The inspector applied this inter alia as follows (emphasis added):

“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.”

142. We should bookmark that observation as its common sense contrasts so markedly with the

dogmatic contrary position of the inspector in the present case in relation to visual impacts.

143. As noted above, if climate goals take precedence over visual impacts and the like, then

logically they must take precedence over development plan provisions that are motivated by visual

impacts. Outside of Orwellian doublethink, there is no way the board can logically support the

position it articulated in Nagle View while at the same time refusing material contraventions where,

as here, the plan provision is motivated by visual impacts.

144. And again, if the reader can bear to be depressed further, we can note from the inspector’s

wording that those objecting to wind developments in that case have much in common with the

board itself and the State in the present matter. Those objecting parties are, as she notes, in favour

of renewable energy infrastructure “in principle”, but, as Otto von Bismarck would have predicted,

they are not minded to particularly support that in practice. The message is familiar – of course yes

in principle, but unfortunately not this development, not this developer, not here, not now. Perhaps

we should commend our public institutions for being so in tune with the public mood in that regard.

145. In the present case, the inspector stated (emphasis added):

“12.5.28. Assessment

12.5.29. I acknowledge the concerns raised by the third-party submissions, particularly the

apprehension that the proposed wind farm's location within the scenic Slieve Margy region

may significantly impinge upon the visual amenity and character of the area. I note the

concerns raised by Laois County Council regarding the landscape and visual impacts of the

proposed development. The Council highlighted potential discrepancies in the planning

documents concerning turbine placement and the accuracy of their location, whereby their

location contravenes the Laois County Development Plan and its Wind Energy Strategy. They

have also pointed out issues with the validity of the landscape and visual assessment due to

potential inaccuracies in the site layout depicted in Figures 7-1 and 7-2 of the EIAR. I also

note the concerns raised by the Department of Housing, Local Government and Heritage –

Development Applications Unit regarding the landscape and visual impact assessment within

the EIAR for the proposed wind farm. The Unit has identified deficiencies in the report,

criticising the methodology for its reliance on desk-based research and the absence of

adequate fieldwork, which could potentially overlook the effects on archaeology and cultural

heritage. They note that the visual impact assessment lacks comprehensiveness, with

limited viewpoints and photomontages failing to fully represent the impact on national

monuments and the wider landscape setting, contrary to the objectives of the Laois County

Development Plan. The applicant’s response to these concerns are detailed in Section 10

above.

12.5.30. In consideration of the foregoing, my assessment of the proposed development

must take into consideration the policy framework outlined within the Laois County

Development Plan 2021-2027, which categorically designates areas for wind energy

development, as well as areas where such development is explicitly prohibited. I have

addressed this issue in Section 11.3 of this report. In view of the facts presented in Section

11.3 of this report and the policies within the Laois County Development Plan, it is my view

that the proposed development's location within an area designated as ‘not open for

consideration’ represents a fundamental conflict with the planning policy framework.

12.5.31. The Laois County Development Plan provides a considered approach to landscape

protection, balancing the need for renewable energy infrastructure with the preservation of

landscape character. Policy Objective CM RE 7, by demarcating ‘Areas not open for

consideration’, underscores a commitment to safeguard certain landscapes from

development impacts that would significantly alter their appearance or character. The

specific policy objectives for Hills, Uplands, and Mountain Areas delineate criteria that the

proposed wind farm cannot satisfy due to its visual impact and siting within a highly sensitive

landscape, as detailed under objectives LCA 5 through to LCA 11.

12.5.32. Furthermore, the Wind Energy Strategy for County Laois reinforces these

designations, indicating a clear intent to steer wind farm development towards less sensitive

areas. The strategy's classifications are aimed at ensuring that development is compatible

with the valued landscape characteristics of Laois County. The positioning of the proposed

turbines, primarily within ‘Areas not open for consideration’, contravenes the Wind Energy

Strategy for the county. This Wind Energy Strategy was subject to oversight by the OPR,

and changes were subject to Ministerial Direction regarding (inter alia) turbine separation

distances from neighbouring properties, and the Development Plan contributing to the

realisation of national renewable energy targets (dated 7th March 2022).

12.5.33. It is my view that the overarching significance of the proposed

development for renewable energy, economic development, and climate change

mitigation cannot override the clear policy directives set by the County

Development Plan. National energy policy and objectives, while critically

important, must be realised in a manner that respects local landscape sensitivities

and planning policies. To permit a development of this nature, which contravenes the

explicit provisions of the Laois County Development Plan, would undermine the legitimacy

of the Plan and the statutory planning process, setting an undesirable precedent for the

future development of protected areas.

12.5.34. In light of these considerations and taking into account the landscape and visual

impact assessment presented in the EIAR, I consider that the proposed wind farm, due to

its location, would not only materially contravene the Laois County Development Plan but

would also significantly impact the visual integrity and character of the landscape, which the

Development Plan seeks to preserve. The Plan's policies and objectives reflect a deliberate

prioritisation of landscape protection in areas not deemed suitable for wind farm

development, a policy intent that must be upheld.

12.5.35. Therefore, I conclude that, notwithstanding the potential benefits associated with

renewable energy development, the proposal in its current location would materially

contravene the Laois County Development Plan 2021-2027 and its appendaged Wind Energy

Strategy by reason of its location in an area ‘not open for consideration’ and thereby would

be contrary to the proper planning and sustainable development of the area. I recommend,

therefore, that the proposed development be refused permission on this basis.”

146. The obvious point to note here is that the inspector starts from a proposition that determines

the issue – dealing with the climate emergency “must be realised in a manner that respects local

landscape sensitivities and planning policies”. Must it? That is an a priori position, and one that

is by no means obvious to put it mildly – indeed it is the direct opposite of the much more compelling

view expressed by the inspector in Nagle View, who said that visual impacts “must” be subordinated

to tackling the climate emergency.

147. The inspector here begs the question and loads the dice before the start – local sensitivities

plus whatever related bans on wind energy a majority of councillors in a particular area manage to

push through “must” have priority. The fact that if the climate emergency is not addressed, far

worse impacts, chaotic and unplanned, will happen on landscapes here and everywhere, just

vanishes from sight in this reasonable-sounding linguistic framing of the issues. Indeed that is a

reminder that s. 15 affects more than just how the board decides its cases. It affects how it trains

its inspectors and board members in climate law and science, and how it internally allocates work

to which those issues are relevant.

148. Whatever the inspector’s and board’s approach is, it is not compliance with s. 15(1). It isn’t

even a serious attempt to engage with the aims of that provision. Not only does it fail to exercise

the power to materially contravene, which would have been practicable, in order to further the

urgent climate goals and policies of s. 15(1), it gives no serious consideration to a material

contravention.

149. The inspector does state that the applicant asked for approval despite material

contravention, at para. 11.3.21, and then rejects that in a single paragraph, for patently flawed

reasons which we have already discussed, at para. 11.3.4. That probably qualifies as consideration

of the concept of contravention in a very general sense (albeit highly confused and legally

unsustainable consideration). But it doesn’t comply with s. 15(1) and it doesn’t even comply with

the watered-down interpretation offered by the State that the board should seriously engage with

the matters supported by s. 15(1). Those matters are not considered at all let alone seriously

considered – insofar as they feature at all, they are improperly dismissed as mere applicant’s

assertions.

150. Applying the duty to act consistently insofar as practicable with those goals and policies

here, the board didn’t do that. So the decision must be quashed on this ground also.

Core ground 5 – breach of ECHR Act 2003

151. Core ground 5 is:

“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.”

152. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 5: Section 3 of the ECHR Act 2003

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.”

153. In effect this issue has already been considered under core ground 1 above and for reasons

broadly explained there I would uphold this ground also.

Core ground 6 – breach of regulation 2022/2577

154. Core ground 6 is:

“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.”

155. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 6: Failure to treat the development as being in the overriding public interest

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.”

156. It is not clear to me that this ground really arises on the facts. The basis of refusal was

contravention of a development plan, not impacts on European sites. So the overriding public

interest issue in the sense of art. 3(2) council regulation (EU) 2022/2577 (which is the pleaded

issue) doesn’t really seem to arise. While I take the applicant’s point that some of the language in

recitals 13 and 14 to council regulation (EU) 2024/223 of 22 December 2023 amending regulation

(EU) 2022/2577 laying down a framework to accelerate the deployment of renewable energy is

somewhat wider, that point wasn’t particularly developed in written or oral argument and thus I

don’t think it has been shown in this particular case that the subsequent regulation enlarges the

scope of art. 3(2) of the 2022 regulation sufficiently to put that provision in play here.

Core ground 7 – breach of EU law by failure to provide for material contravention

157. Core ground 7 is:

“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.”

158. The parties’ positions as recorded in the statement of case are summarised as follows:

“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.”

159. As with the ECHR point, in effect this issue has already been considered under core

ground 1 above and for reasons broadly explained there I would uphold this ground

also.

Summary

160. In outline summary, without taking from the more specific terms of this judgment:

(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

161. The order announced on 10th January 2025 was that:

(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

162. Following the delivery of the original version of the foregoing judgment, the board applied

to re-open the judgment for the purpose of adducing additional evidence, primarily in relation to

core ground 2 and limited related matters. This presented the court with a little bit of a dilemma

because none of the options available were particularly appealing, to say the least of it. My

assessment (with the punchline of which the parties ultimately agreed) was that reopening the case

in a very limited way or not at all would complicate and delay the appeal process, probably

significantly, whereas reopening it and deciding core ground 2 afresh from scratch at High Court

level would delay the matter overall, probably significantly. Thus on a pragmatic basis the only

remaining option was to reopen specified matters (centrally core ground 2) and adjourn such

matters generally with liberty to re-enter in the event that developments at appellate level made

that necessary. That would allow an appeal against the central finding to be processed forthwith

and without undue complication, which is the key desideratum on which everyone is agreed.

Obviously that isn’t ideal but the other options are even less ideal when measured against the critical

metric of speed which is so vital in the present matter. Another demonstration of Thomas Sowell’s

insight that there are no solutions, only trade-offs. The applicant, while reserving its position if we

get to the re-entry stage, didn’t make an issue at this point of any of the matters that the board

wanted to revisit, so I wasn’t particularly motivated to do so either. The general principle is not to

get too attached to one’s own wordings or views, especially if they could get in the way of solutions.

I suppose one upside is that since I am forever encouraging parties to be pragmatic I may as well

lead from the front in that regard when the situation calls for it. Owning it probably will be more

edifying than any amount of sermons on the subject.

163. Two final matters. Firstly, for the purposes of bringing matters up to date, and of attempting

to assisting the appellate courts, perhaps I can be allowed to draw attention without further

comment, for whatever consideration if any is thought appropriate, to paras. 60-61 of Friends of

the Irish Environment v. Minister for the Environment [2025] IEHC 61 (Unreported, High Court, 7th

February 2025) which references a matter that I would have mentioned in the discussion above on

legislative history and context, had I been focused on it at the time.

164. Finally, if and insofar as my view is to be considered, I would respectfully endorse the

concept of the proposed leapfrog application and would request the Supreme Court, if it accepts it,

to give the matter as much priority as it can. If that court doesn’t mind me offering my view, the

primary issue is one of pure statutory interpretation, so is at the end of the spectrum that potentially

looks similar in the legal sense after an intermediate appeal. The matter is inherently urgent and a

lengthy or multi-level appeal process has the potential to delay decision-making generally in relation

to cases where climate issues arise, which are in themselves an inherently urgent category. Finally,

what is absolutely clear on the science is that failure to take necessary climate action now will have

consequences into the far future – unquestionably for hundreds and probably for thousands of years.

References are set out above and in the caselaw referred to. I gave the legislation a reading that

would make such necessary action mandatory as far as Irish public bodies are concerned, as

opposed to something that is to be encouraged or even strongly encouraged; much as the ECtHR

envisaged “a binding regulatory framework at the national level, followed by adequate

implementation ... [t]he relevant targets and timelines must form an integral part of the domestic

regulatory framework, as a basis for general and sectoral mitigation measures” (KlimaSeniorinnen,

para. 549). What would be hard to deny based on the empirical track-record to date is that voluntary

actions are not going to be sufficient and that “binding” measures are necessary if one wants to

actually achieve climate goals – the road to climate hell is paved with good intentions, as the

applicant in the Friends of the Irish Environment case pointed out. So if I am wrong and if climate

objectives are legally a somewhat aspirational exercise involving serious engagement or best

endeavours rather than being legally binding to the standard of being required as far as practicable,

that is something that, I would respectfully suggest, needs to be known to all interested parties

including the public concerned as soon as possible.

165. In the light of the foregoing and of the terms of what was agreed by the parties, it is ordered

on foot of this amended judgment by way of order being perfected on 14th March 2025 that:

(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.