Coolglas Windfarm Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 10 January 2025
• Neutral Citation: [2025] IEHC 1
• Court: High Court
• Docket Number: [H.JR.2024.0001244]

Between

Coolglass Wind Farm Limited

Applicant

and

An Bord Pleanála

Respondent

and

Ireland and The Attorney General

Notice Parties

[2025] IEHC 1

[H.JR.2024.0001244]

THE HIGH COURT

PLANNING & ENVIRONMENT

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...