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The High Court’s decision in Coolglass [2025] IEHC 1 attracted significant attention in early 2025, because the Court applied section 15 of the Climate Action and Low Carbon Development Act 2015, as amended (2015 Act) in a far-reaching way. The judgment had significant implications for climate mitigation projects, and projects that could significantly contribute to Ireland’s failure to stay within its carbon budgets. (See our Philip Lee LLP Alison Hardiman PhD, BL post: Climate Action and Planning- Thoughts on the Coolglass Judgment – Philip Lee LLP).
The judgment arose from a challenge to a decision of An Coimisiún Pleanála to refuse permission for a wind farm on the basis that it would materially contravene the express land use objectives of the site in the statutory development plan. The planning decision was taken, notwithstanding the statutory obligation imposed on public bodies under section 15 of the 2015 Act to perform their functions consistently with climate action plans and objectives “in so far as practicable“. The High Court found that, not only had the planning authority failed to expressly have regard to the matters prescribed by section 15, it had further failed in its statutory duty to exercise its discretionary planning powers in favour of renewable energy infrastructure, even if doing so would materially contravene the express provisions of the development plan.
The development plan effectively prohibited wind farm development at the site as “not open for consideration” due to landscape, ecological, recreational, and cultural sensitivities. The Court found that section 15 of the 2015 Act imposed more than a “have regard to” obligation as regards the climate action plans and objectives specified in that section. The Court drew on a wide body of law in determining that section 15 requires public bodies to act in conformity with relevant climate plans and objectives, unless impracticable to do so.
In this regard, the Court drew upon the decision of the European Court of Human Rights (ECtHR) in Verein KlimaSeniorinnen Schweiz v Switzerland delivered in April 2024, which found that Article 8 of the European Convention on Human Rights (ECHR) imposes positive obligations on States to establish and apply legislative and administrative frameworks for climate action, and that Article 8 encompasses a right to effective protection from the serious adverse effects of climate change on lives, health, well-being, and quality of life. It found that States bear positive obligations to adopt, and to effectively apply in practice, regulations and measures capable of mitigating existing and potentially irreversible future effects of climate change. These obligations include: specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget; setting intermediate emissions reduction targets and pathways; providing evidence of compliance or progress towards compliance with targets; keeping targets updated based on the best available evidence; and acting in good time and in an appropriate and consistent manner when implementing legislation and measures.
The High Court considered that an interpretation of section 15 of the 2015 Act that would set aside climate action plans and objectives due to restrictive zoning objectives in the development plan would not be compatible with the State’s obligations under the ECHR. There are echoes of this line of legal reasoning in the UK, for example in R (Friends of the Earth) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin) in which the Court held that the Government’s Net Zero Strategy failed to provide sufficient quantification of how the policies contained within it would deliver the necessary emissions reductions such that an informed member of the public could assess whether the strategy was realistic. In Greenpeace UK and Uplift v Secretary of State for Energy Security and Net Zero [2025] CSOH 10 the Opinion quoted from KlimaSeniorinnen in the context of the failure to assess downstream (scope 3) emissions and that this frustrated the public’s ability to participate effectively in the decision-making process.
It is anticipated that the Supreme Court will address in its Coolglass judgment how section 15 of the 2015 Act should be understood, in particular whether it is capable of dictating the outcome of a planning application or whether it is more procedural in nature leaving discretion with the planning authority to weigh all relevant matters before making a decision which takes climate action properly into account.
In this respect, it is interesting to note that there is a pending reference to the CJEU from the Conseil d’État in Belgium in Case C-325/25 Eneco Wind Belgium which asks similar questions about the extent to which the prioritisation of renewables is absolute or qualified. The reference in Case C-325/25 relates to the EU Accelerated Permitting Regulation (Council Regulation (EU) 2022/2577 of 22 December 2022, as amended), which introduced a presumption that renewable energy projects are of overriding public importance for the purposes of determining whether to grant a derogation from environmental protections under the Habitats, Birds and Water Framework Directives. (See Alison Hardiman PhD, BL post: The Recommendation from the EU Commission – to Just Make it Work! – Philip Lee LLP).
The CJEU is being asked whether, under the Accelerated Permitting Regulation, Member States must ensure that renewable energy projects are given priority only when balancing specific legal interests for the purposes of derogations under Article 6(4) of the Habitats Directive, Article 4(7) of the Water Framework Directive, and Article 9(1)(a) of the Birds Directive, or any competing interests including those which fall outside the scope of those Directives, for example landscape and cultural heritage. The CJEU is also asked whether the Regulation establishes an absolute priority or merely a priority in principle from which States may depart, provided the decision is adequately reasoned.
While the reference in Case C-325/25 relates to the Accelerated Permitting Regulation, the questions are also relevant to the interpretation of the RED III Directive (Directive (EU) 2023/2413 of 18 October 2023 amending Directive (EU) 2018/2001), and its partial transposition in Ireland to date via the EU (Planning and Development) (Renewable Energy) Regulations 2025 (S.I. No. 274 of 2025), as amended, which insert new provisions into the Planning and Development Act 2000 including section 177AA(10), that proposed development comprising the planning, construction and operation of a renewable energy plant, any works necessary for connection to the grid, and any related grid or storage assets “is presumed to be in the overriding public interest and serving public health and safety when balancing legal interests in the individual case“. (See post RED III Planning Regulations – Philip Lee LLP).
From a pure planning perspective, it is anticipated that tomorrow morning the Supreme Court will deliver a judgment which provides much-needed clarity for planning authorities to understand the extent to which they have a discretion to adhere to or depart from development plan objectives in order to give effect to the requirements of the climate plans and objectives prescribed by section 15 of the 2015 Act, and the extent to which land use objectives, for example as regards the protection and conservation of landscape and cultural heritage, must yield to overriding climate objectives. It will be equally interesting to see the extent to which the Court will make findings on the impact of KlimaSeniorinnen in an Irish planning context and in particular as regards projects that may significantly contribute to Ireland exceeding its carbon budgets.
