The Supreme Court has dismissed the appeal against the High Court's order quashing the Commission's decision to refuse permission for the Coolglass Wind Farm in Co. Laois. In doing so, the Supreme Court upheld the High Court's finding that the Commission failed in its obligations under section 15 of the Climate Action and Low Carbon Development Act, 2015 (as amended) (the 2015 Act) – but for different reasons to the High Court.
High Court Decision
In its judgment, the High Court quashed the Commission's decision to refuse planning permission for the wind farm. The Commission had refused permission on the basis that the proposed development would materially contravene the development plan.
The developer successfully challenged the Commission's decision in the High Court. The High Court quashed the decision on the basis that the Board failed to comply with its obligations under 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. Read our previous briefing on the High Court's judgment here.
Supreme Court Decision
Interpretation of section 15 of the 2015 Act
The Supreme Court found that the evident purpose and effect of section 15 of the 2015 Act was to impose obligations on relevant bodies, including the Commission "to make the performance of all their functions consistent with the climate objectives insofar as is practicable." The Supreme Court agreed with the High Court's finding that this requires relevant bodies to do more than simply "have regard" to the climate objectives. However, the Court held that while the provision imposes an obligation relating to outcome rather than simply of process, it also implies that there is a range of possible outcomes open to the relevant body rather than dictating a single result and "a degree of tolerance in the manner in which it is achieved". The Court went on to say that tolerance is further reinforced by the inclusion of the qualification "in so far as is practicable" which makes it clear that there may be circumstances in which a relevant body may not be required to perform its functions in a manner consistent with the climate objectives. This will depend on what is practical (rather than possible) in the circumstances and appropriate to the requirements of the situation.
Obligation imposed by section 15 on relevant bodies
The Supreme Court noted that the impact of section 15 will vary depending on the relevant body and its functions, along with the matters to which they are obliged to have regard or to implement. The question to be asked is whether the performance of its functions in that regard falls within the spectrum of possible outcomes that could be said to be consistent, in so far as is practicable, with the objectives of section 15.
Given the range of potential options, coupled with the "practicability" "qualification" and the difference between an individual decision and a policy objective, it should not be a difficult to demonstrate such consistency, particularly where an individual decision can be shown to be consistent with some plan or strategy which itself was prepared in accordance with the section 15 obligation.
Obligations imposed by section 15 on planning authorities
Taking this approach, the Supreme Court went on to say that section 15 will likely be less decisive for individual planning decisions than it will be for the actions of other relevant bodies. This is because climate objectives are already woven into the planning process to a significant degree. The Supreme Court found that by the time a planning decision comes to be made, the way in which the State proposes to meet its climate objectives has already been set at a national level, percolating down to a local level through the specific context of the development plan. A planning authority is therefore entitled to presume that compliance with the development plan will itself be compliant with climate objectives.
The Supreme Court therefore disagreed with the High Court's finding that the application of section 15 in the planning context should result in a strong presumption favouring the grant of permission for any renewable energy project, subject only to considerations of practicability and the exclusion of any other consideration. Instead, it found that the question of whether an individual planning decision was consistent with climate objectives was "much more complex than a traffic light system of climate friendly 'go' (unless impracticable), and climate unfriendly ‘stop’".
In this case, the relevant "function" for the purpose of section 15 was granting or refusing permission for a development which materially contravenes the development plan. In contrast to the High Court's interpretation of the obligations imposed by section 15, the Supreme Court said that it is not simply a case of asking whether material contravention of the plan will assist in achieving the climate goals and therefore granting permission for any renewable energy project that does so. Instead, the Supreme Court found that the function must be performed, so far as is practicable, consistent with the climate change objectives in section 15.
If the development plan is itself consistent with the climate objectives set out in section 15, then it will normally be the case that a decision which complies with that plan will also be consistent with those objectives. However, it may be possible to contend that permission should be granted, because it is established that the development plan does not meet the climate objectives, or no longer does so because of a change in those objectives, or because of particular features of the specific development. Where climate objectives are raised in support of a planning application, the Supreme Court found that the Commission must consider whether it should grant the permission, and should be able to explain why the decision it has come to is consistent with the climate objectives.
Conclusion
The Supreme Court concluded that a central part of the High Court's reasoning could not be upheld. It said that the duty of the Commission to perform its function in a manner consistent with the climate objectives set out in section 15, while real, effective and enforceable, cannot be converted into the simple formula set out in the High Court's decision, it is much more nuanced and cannot be relied on to simply displace all other relevant maters, but must be considered in the wider context of the architecture of the planning system in which climate change and climate mitigation are already intrinsically woven.
The Supreme Court decision highlights the obligation placed on a planning authority by section 15 when carrying out its function to prepare and adopt its development plan, to do so in a manner consisted with the climate action plan and national climate objectives, and in carrying out its decision making function the Commission is therefore entitled to presume the planning authority has discharged its duty such that any decision consistent with the development plan will itself be consistent with the climate action plan.
However, this presumption may be rebutted (by an applicant or an objector as the case may be) in the circumstances of a particular application, in which case the Commission is required to engage in a consideration of the matters raised in a real and substantive way, including the exercise of its discretion to grant permission notwithstanding a material contravention of the development plan, and furthermore the Commission must be able to demonstrates why its ultimate decision is consistent as far as practicable with the climate action plan and climate objectives.
The fundamental question in this case was whether the Commission should exercise its power to materially contravene the development plan, in circumstances where Coolglass had advanced a justification for doing so given the significant climate benefit of the proposed development. The Supreme Court agreed with the High Court that the Commission never engaged with that question in a real and substantive way, and instead proceeded to refuse permission on the basis that the development would contravene the plan. The Supreme Court found that that was an error of law because the Commission was required to consider whether the climate benefits of the project required or justified the grant of permission notwithstanding the material contravention of the development plan. On that basis, the Supreme Court found that the decision of the Commission must be quashed, and the decision of the High Court in this regard must be upheld, albeit on different, and narrower grounds.
For more information, please contact Stuart Conaty, Jeanie Kelly or your usual contact in Beauchamps.