Are hideous wind farms and solar panels and other forms of green energy about to be unleashed without any legal restriction onto the Irish landscape? That is the view of many a planning lawyer after the decision in Coolglass Windfarm Limited v An Bord Pleanála by Mr Justice Richard Humphreys.
In a decision heavy on rhetoric and sarcasm, that kicks off with a nice quote from Otto von Bismarck, the case centered mainly on the interpretation of s. 15(1) of the Climate Action and Low Carbon Development Act 2015 as amended by the Climate Action and Low Carbon Development Act 2021.
That section states that public bodies must carry out their duties consistent with the need for climate action. In other words, all public bodies must bow down before the climate Gods, according to the learned Judge’s interpretation of the law. It would be easy to blame the Judge for this one, but remember: He didn’t write the law.
What happened in the case is that a wind farm company wanted to construct yet another wind farm in Laois. An Bord Pleanála said no as parts of the development were proposed in an area that the County Development Plan (CDP) had designated as ‘not open to consideration’ for wind generation. This was because – we might fairly assume – wind farms as ugly as hell, although that was not the term they used. The visual impact on the landscape was their concern, as they said ‘these areas are not considered suitable for wind farm development due to their overall sensitivity arising from landscape, ecological, recreational and/or cultural and built heritage resources as well as their limited wind regime.’
Justice Humphreys objected to this blanket refusal of wind farms in a particular area. He also had serious issues with the fact that inadequate consideration was given to Section 15 of the Climate Action and Low Carbon Development Act 2015. His opinion was that things are serious, very serious indeed and the government while they talk the talk about climate change are not serious enough to take the necessary action to combat climate change.
Opening his opinon with, “When a man says he approves of something in principle, it means he hasn’t the slightest intention of putting it into practice” – Otto von Bismarck, the judge was just warming up.
Humphreys did not have much time for the argument that the negative visual impact of wind farms on the landscape was a reason to refuse them. What would it matter anyway if the landscape was threatened by climate change itself, was his observation:
“What the inspector is saying ultimately is that it is “overwhelming” that visual impacts (as enshrined in a plan) take priority over compliance with national and EU legally binding targets to address the climate emergency (which itself threatens landscapes here and globally with vastly more severe disturbance, desertification, sea level rise and so on). Only a lawyer would attempt to call that rational. Someone else might say that it represents a deeply skewed set of values and an unwillingness to face new realities so starkly highlighted by the board elsewhere, something to which we will now turn.”
The judge simply did not accept that An Bord Pleanála were indeed concerned about climate change and they were abiding by the provisions of the 2015 Act but just that in this case, they were not going to allow permission for a wind farm. And nor would they in the next case or the one after that mostly because of the visual impact on such farms.
I can understand the judge’s point on this.
His argument was, climate change is an existential threat, and action must be taken under the 2015 Act. If the natural implication of the 2015 Act is the destruction of the Irish countryside with wind farms and solar panels, then ultimately that is on our virtue signaling government who passed the 2015 Act in the first place.
I grudgingly accept the point the Judge is making – namely he objects to cakeism, which Otto Von Bismarck was well aware of. He also objected to the board trying “to drown s.15 under Latin maxims.” I thought this was harsh as it is standard operating procedure for a lawyer – drowning things out with latin maxims is what we do. Truely, there is no better way to spend your time.
To make his point the Judge did point out that politicians do talk endlessly about the need for action on climate change.
“I can’t help noticing in passing that one cabinet Minister at second stage of the Bill for the 2021 Act rather undermined the board’s case in advance by positively championing that phrase, saying (emphasis added) that she and her own colleagues in Government had advocated for:“… an ambitious and far-reaching response to the climate crisis facing our planet. This immense climate challenge requires an equally immense effort to combat what will be, if we do not act, an utterly devastating impact on our world as we know it.”
And that immense effort will be fundamentally destroying our landscape and way of life. This means wind farms all over the place, a carbon tax that punishes you should you have the temerity to heat your home in subzero temperatures and the banning eventually of petrol and diesel cars and if you cannot afford an electric vehicle that’s your tough luck. Get on your bike. That is the result of the 2015 Act and the Judge is right to call the politicians out on the inconsistency of their tough rhetoric but lack of action.
All joking aside, the precedent that this decision could set is considerable. The Judge again:
“the applicant throws down the gauntlet as to whether this is “all just empty rhetoric” because the board (largely supported by the State) recoils in horror from the logical implications of this and demands the right to continue business as usual. But an immediate end to business as usual is a precondition for planetary survival. The problem is that the problem is so big that to even describe it factually sounds like scaremongering.”
Legally speaking this means, anything goes. If we face climate Armageddon which is what the politicians have been telling us and resulted in the passing of the 2015 and 2021 Act, then the judge is right to set out what the implications of this are. He literally says, it means an end to business as usual as a precondition for planetary survival.
An end to business as usual, is the end to you living your life as usual. An end to heating your home, driving your car, or going open holiday. What’s to stop the compulsory purchase of vast swathes of farm land and turning them into wind or solar panel farms? Not much I’d say, as we are talking about the survival of the planet here. So please don’t bore me with your petty arguments as to ‘property rights’ or visual eye sores, or my family has worked the land for generations. What about the generation to come and their survival, will come the reply?
So there we have it. Your instinct might be to blame Justice Humphrey and his reliance on Otto Von Bismark to potentially unleash an anything goes climate action plan on your land and your life. But I believe he is right to call out the inconsistency of the politicians on this. The government and the virtue signalling politicians passed the 2015 Act which if you believe we are on the brink of planetary collapse, means anything goes. There will be no limit to what a government can do or will be expected to do, to avoid the wrath of the sun gods. That’s on them, not Justice Humphrey or Otto von Bismarck.