(1) Coolglass Windfarm Ltd v. An Bord Pleanála
This decision is highly relevant to developers because it addresses how planning authorities must approach climate obligations and the exercise of discretion in the context of renewable energy developments. The case involved a challenge to the refusal of a 10-year Strategic Infrastructure Development (SID) permission for a wind farm, where An Bord Pleanála (“the Board”) had relied on the wrong statutory provision, and failed to independently consider its obligations under Section 15 of the Climate Action Act 2015 (as amended) and Section 37G(6) of the Planning and Development Act 2000. The High Court found that the Board should not have deferred to the Minister or the Office of the Planning Regulator on whether to materially contravene the County Development Plan (CDP) but should have exercised its own discretion independently.
A key takeaway for developers is the interpretation of Section 15(1) of the Climate Action Act. The Court made clear that this provision imposes a strong, imperative obligation: relevant bodies must, so far as is practicable, perform their functions in a manner consistent with climate plans and objectives, such as the Climate Action Plan 2024. This is a ‘comply with’ obligation, not merely a ‘have regard to’ obligation, and decision-makers must use their discretionary powers in favour of renewable energy infrastructure unless it is objectively impracticable to do so. The Court also clarified that the obligations under Section 15(1) are broad and sweeping, marking a significant shift in how planning decisions must be made.
For developers, this means that planning authorities are now required to prioritise climate objectives and cannot simply refuse permission for renewable projects on the basis of local planning policies (like visual amenity) without a robust, objective justification. The case sets a precedent that strengthens the legal basis for renewable energy projects and places greater responsibility on authorities to support such developments, unless there are compelling reasons not to. Coolglass Windfarm Ltd v. An Bord Pleanála has been appealed to the Supreme Court, and the outcome of the appeal is awaited.
(2) Doyle & Ors v. An Bord Pleanála & Ors
The case clarifies the approach courts will take when considering whether to quash a planning permission due to errors made by planning authorities, particularly in relation to environmental assessments. In this case, the Board admitted it had made an error regarding the assessment of impacts on bat fauna, a species strictly protected under EU law. However, the Court held that not every error will automatically result in the quashing of a decision. Instead, the Court distinguished between material and harmless errors, stating that only errors which could have materially affected the outcome of the decision will justify quashing the permission. The burden of proving that an error was harmless lies with the party asserting it, and the Court will consider all relevant evidence, including mitigation measures and whether public participation was compromised.
For developers, this decision provides reassurance that minor or harmless errors in the planning process, particularly where robust mitigation measures are in place and public participation has not been undermined, will not necessarily lead to the loss of planning permission. It also underscores the importance of ensuring that EIAs and related documentation are thorough, as significant or material errors, especially those affecting protected species or compliance with EU law, can still result in quashing of permissions. This case encourages developers to be proactive in addressing potential errors and providing evidence of mitigation, as well as engaging with the planning process to minimise the risk of successful judicial review challenges.
(3) Foran v. An Bord Pleanála & Ors
In Foran, the High Court clarifies the procedural requirements and time limits for challenging planning decisions and associated strategies. This case involved a challenge to both the approval of a roads scheme and the underlying non-statutory strategic transport strategy (the Galway Transport Scheme, or GTS). The Court held that the statutory eight-week time limit for judicial review under section 50 of the Planning and Development Act 2000 applies to challenges against measures of general application, such as the GTS, when they are challenged indirectly through a final decision. The Court also found that there was no good reason for the applicant’s delay, and that allowing late challenges would prejudice public authorities and undermine certainty in planning. Additionally, the Court confirmed that certain policy declarations, which lack legal effect, cannot form the basis for judicial review. For developers, this case underscores the importance of acting promptly within statutory timeframes when seeking to challenge planning decisions or associated strategies, and that only legally binding instruments are susceptible to judicial review, thereby providing greater certainty and stability in the planning process.
(4) Murphy v. An Bord Pleanála & Anor
This decision is relevant to developers because it clarifies the requirements for standing in environmental judicial review proceedings. The judgment confirms that while participation in the planning process is not an absolute requirement for standing, failure to participate without a valid explanation is a significant factor against being granted standing. The Court emphasised that wide access to justice is mandated by EU law in environmental cases, but this does not equate to unlimited access. For developers, this means that judicial reviews challenging planning permissions are more likely to be brought by individuals or groups who have actively engaged in the planning process or can demonstrate a sufficient interest. This provides greater certainty and helps limit the risk of speculative or unmeritorious challenges by individuals with no direct connection to the development or the affected area. Also watch out for Part 9 of the Planning and Development Act 2024, which provides that an applicant for judicial review will not be permitted to plead a ground in proceedings, unless they have a sufficient interest in the matter to which the ground relates.
(5) Save the South Leinster Way v An Bord Pleanála
This case also addresses the treatment of technical errors in the consenting process for renewable energy projects. In this case, the planning application for a windfarm was challenged on the basis that the previous Development Plan restricted the site to small-scale development, while a new plan was more supportive of renewables. The Court found that although the applicants were technically correct in their arguments, it refused to quash the permission due to the highly technical nature of the error, and the absence of actual environmental harm. The Court emphasised that the Minister's intervention was aimed at increasing renewable energy permissions, and that quashing the project on a technicality would be "perverse and counterproductive" given the urgent need for renewable energy infrastructure in the context of the climate emergency. This case demonstrates that courts may prioritise substantive environmental and policy considerations over technical planning errors, providing greater certainty for developers that minor procedural missteps may not necessarily jeopardise their permissions where no real harm is caused and public interest in renewables is strong.
(6) North Westmeath Turbine Action Group v An Bord Pleanála
This decision highlights the critical importance of public notification requirements in the EIA process for renewable energy projects. In this case, the planning application for a 13-turbine windfarm failed to reference the grid connection in its public notices, despite the legal requirement established in O'Grianna v ABP that a windfarm and its grid connection must be assessed as a single project for EIA purposes. The High Court found the public notices defective because they did not mention the grid connection or any EIA related to it, emphasising that EIA is a process that includes giving notice to the public. The High Court refused to quash the permission, instead granting declaratory relief on the basis that the windfarm would not be constructed until permission for the grid was granted, and an EIA of the whole project was carried out in the context of the grid application. In summary, public notice could be properly given in this context, ‘curing’ the defect. This decision underscores that developers must ensure all elements of a project, including ancillary infrastructure, like grid connections, are properly notified to the public in accordance with EIA requirements to avoid legal challenges and potential project delays.
The latest Irish authorities on EIA provide several important clarifications and practical guidance for developers:
