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Judge highlights ABP’s climate-act obligations

Lawyers at A&L Goodbody say that a recent High Court judgment is the first to consider in detail the nature and scope of the obligation imposed on public bodies by 2015 legislation on climate action.

Mr Justice Richard Humphreys last week quashed a decision by An Bord Pleanála (ABP) to refuse an application to build a 13-turbine wind farm in County Laois, sending it back to the planning body for a fresh determination.

ALG advised Coolglass Wind Farm Ltd on its challenge to the refusal.

Wording strengthened

While upholding the challenge on specific grounds linked to the rules on contraventions of County Development Plans, Mr Justice Humphreys’ judgment also examined the extent of ABP’s obligations under section 15 of the Climate Action and Low Carbon Development Act 2015.

He found that the language of the section required compliance with climate-action obligations as far as practicable or possible.

The judge pointed to a strengthening of the wording of the section in an amended 2021 act, which he described as “a step-change” from a ‘have-regard-to’ to a ‘comply-with’ obligation.

“Section 15(1) of the 2015 act means what it says, and the board failed to exercise its powers in a manner compliant, as far as practicable, with the climate objectives and policies set out in that sub-section,” the judgment states.

‘Fixed approach’

This failure, the judgment added, also constituted a breach of duty under EU law.

Mr Justice Humphreys also referred to evidence of “a significant shift since end-2022, whereby the board [ABP] now effectively refuses to materially contravene development plans in support of renewable energy”.

He found that this “effectively fixed approach” was inconsistent with ABP’s obligations under the 2015 act.