Environment & Planning
IMPORTANT GUIDANCE ON CLIMATE ACT
Significant judgment setting out guidance for relevant bodies when applying the Climate Act in their decision making
An Bord Pleanála refused permission for the development of a wind farm in Co. Laois on the basis that it materially contravened the development plan for the county. 12 out of 13 proposed wind turbines were located in areas designated as “not open for consideration” for wind farm development. The Court found that the Board considered the wrong section of the Planning and Development Act 2000 in refusing permission. The Board failed to consider its power to grant permission for development in material contravention under section 37G(6) of the Act, instead adopting the Inspector’s Report, which considered the wrong test.
Importantly, the Court considered the Board’s obligations under the Climate Action and Low Carbon Development Acts 2015-2021 (the “Climate Act”) at length. Under section 15 of the Climate Act, the Board is obliged “in so far as practicable” to “perform its functions in a manner consistent with” Ireland’s climate action plan and other elements of the climate governance framework set out in the Climate Act, as well as the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State. The Court characterised this obligation as a duty “well above merely having significant regard to something”, stating that the obligation under section 15 applies “only unless compliance is not feasible”. A decision, even if it furthers climate goals, cannot be taken if there is a mandatory and non-fixable legal requirement that confers no discretion or evaluative judgement on the decision-maker.
The judgment sets out guidance on how the Board (or any other ‘relevant body’ for the purposes of the Climate Act) should proceed when called on to make a decision of relevance to the achievement of the matters at section 15(1) of the Climate Act.
The decision will be remitted to the Board to be considered in accordance with this judgment. This judgment is important and the guidance it sets out will need to be applied in the making of decisions by a wide range of public and semi-State bodies. Our briefing will follow.
EU
One-year postponement of the EU deforestation law adopted
The Council has formally adopted a regulation which provides that provisions of the EU Deforestation Regulation which were due to be applied from 30 December 2024 will now be applied from 30 December 2025. For micro-undertakings and small undertakings, certain rules will not apply until 30 June 2026. This deferral follows concerns raised by Member States, third countries and businesses that full compliance would not be achieved by the earlier date.
Separately, the EU Commission has launched the EUDR Information System, where due diligence statements required under the Regulation must be submitted. The system is now live.
IRELAND
Uisce Éireann sets out its investment priorities in its Strategic Funding Plan 2025-2029
The plan sets out the measures that Uisce Éireann proposes to carry out between 2025-2029. The programme to repair and upgrade Ireland’s water and wastewater treatment plants will extend beyond the lifetime of this plan. Water capacity is identified as a key challenge in the plan. Two national strategic projects are highlighted to increase capacity: the Eastern and Midlands Region Water Supply Project and the Greater Dublin Drainage Project.
RECENT JUDGMENTS
Supreme Court rules on statutory time limit for leave to bring judicial review
This appeal relates to an application to extend the time to apply for the judicial review of a decision made by the Board in respect of a windfarm in Co. Kilkenny. The primary issue was whether, if the time limit to bring an application for leave to bring a judicial review expires on a non-working day, the time limit will be considered to end on the next working day.
The Court determined that if the last day to make an application falls on a Sunday, a non-working day for the court offices, time would expire on the following day. The Court considered the Planning and Development Act 2000 as well as the Rules of the Superior Courts in its analysis, in addition to the common law presumption that, where an act required by a party to stop a limitation period running requires some action by the court, but the court offices are closed, the period will expire on the next day that the court offices are open.
Court of Appeal states that material deviations from a grant of planning permission will generally render a development unauthorised
The applicants challenged an order under section 160 of the Planning and Development Act 2000 prohibiting further development at a wind farm in County Donegal. The Court considered whether unauthorised works at the site, which materially deviated from the relevant planning permission, rendered the entire development unauthorised, or merely the elements which did not conform with the permission. The Court found that although in exceptional circumstances unauthorised elements might be severed from a development, such an exception could not apply in this case due to the nature, volume and scale of the deviations.
High Court dismisses application to quash permission granted by An Bord Pleanála, emphasising role of Court in judicial review
The applicant sought to quash the Board’s decision to grant permission for the development of a site at Merrion Street Lower in Dublin. The Court referred to established case law to emphasise its “limited role” in the judicial review of planning decisions. A judicial review concerns the legality of a decision, rather than its merits. The Court noted that, in this case, the decision-making process did not contain a legal error.
Furthermore, the Court stated that the applicant had not provided sufficient evidence to support many of its assertions, and noted that several issues raised in proceedings had not been raised during the planning process.