The Supreme Court has granted the Board leave to appeal the High Court's decision in the Coolglass case.
In its judgment, the High Court quashed the Board's decision to refuse planning permission to a windfarm developer, Coolglass Wind Farm Limited, for a windfarm in Co. Laois. The Board had refused permission on the basis that the proposed development would materially contravene the development plan.
The developer successfully challenged the Board's decision in the High Court. Judge Humphreys quashed the decision on the basis that the Board 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 its decision and in particular in failing to exercise its discretion to materially contravene the development plan. Section 15 of the 2015 Act requires the Board, in so far as practicable, to perform its functions in a manner consistent with the most recently approved climate action plans and the “objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State". The High Court found that the Board had failed to act "consistently insofar as practicable with the goals and policies" contained in the 2015 Act and that the Board ought to have exercised its discretion to materially contravene the development plan in light of its section 15 obligations, unless it was not practicable for it to do so. The High Court also found that the Board failed to act in a manner compatible with Article 2 (Right to Life) and Article 8 (Right to private and family life) of the ECHR which were interpreted by the ECtHR in Verein Klima Seniorinnen (the Swiss Grannies case). Read our previous briefing on the High Court's judgment here.
The Supreme Court will now consider the extent of the obligation imposed by section 15 of the 2015 Act on bodies such as planning authorities and the extent to which the Board should have felt free to depart from the terms of the Laois Development Plan in order to accommodate the requirements of this provision. The Supreme Court will also consider the true effect and interpretation of the ECtHR's judgment in the Swiss Grannies case and the extent to which a limited company can rely on Article 8 of the ECHR dealing with family life.
The Supreme Court has acknowledged the urgency of this appeal noting that "it is necessary that the precise nature of the section 15 obligation imposed on the Board is clarified as this issue “necessarily impacts on the Board’s daily decision-making functions” and noting the obligations for the expeditious resolution of planning matters relating to renewable energy matters under RED III. It has directed that an early case management of the appeal take place next Monday, 26 May where the precise issues to be determined will be further clarified. Our team will continue to track and provide updates on the appeal.
For more information, please contact Jeanie Kelly or your usual contact in Beauchamps LLP.
