Are planning applications now at greater risk of legal challenge if they fail to address climate change?  Aoife Murray and Maria O’Loan discuss recent case law developments across the UK and Ireland and consider the implications for the development industry.

 

Key takeaways

• Courts are requiring more rigorous climate impact assessments in planning decisions. How these must be conducted in practice is still evolving and will likely result in further litigation.
• Public and private interest in climate change is increasingly recognised in legal challenges.
• Developers should now demonstrate alignment with statutory climate targets and obligations to mitigate legal risks.
• Government proposals to limit judicial review could impact future climate litigation.

 

Is your development proposal at risk?

Climate change litigation is shifting the goalposts for planning and development across the UK and Ireland.  A series of landmark rulings – including Finch, Greenpeace and Uplift, Cumbria Coalmine, Coolglass and No Gas Caverns – have reinforced the need for comprehensive environmental impact assessments and the consideration of climate change in development applications.

The latest ruling from the Scottish Court of Session adds to this growing trend, reinforcing the need for greater scrutiny of emissions assessments in planning decisions.

Developers who fail to demonstrate alignment with climate goals may now face serious legal hurdles.  Is this a turning point for planning and development decisions?

 

The Scottish Court of Session’s decision in Jackdaw and Rosebank: A game changer?

Much like the downstream gas emissions that were at the centre of its judgment, Finch v Surrey County Council & Others continues to have a downstream effect on consents for new fossil-fuel related developments, most recently in relation to the Jackdaw and Rosebank oil and gas projects in the North Sea.

In Petitions by Greenpeace Limited & Uplift [2025] CSOH 10 the  Outer House (the first instance court) Scottish Court of Session, following the judgment in Finch, held that the consents granted for Jackdaw and Rosebank oil and gas projects were unlawful on the basis that the Environmental Impact Assessments (EIA) prepared for the projects failed to consider the effect on climate of the combustion of the oil and/or gas that would be produced from each site. Such effects are commonly labelled as downstream emissions, or Scope 3 emissions.

However, the broader significance of this case lies in the Court’s balancing of public and private interests in determining the relief to be granted.  The Court explicitly prioritised the public interest in lawful decision-making, and uniquely, the private interests of members of the public in climate change over the private commercial interests of developers.

 

The judgment stated:

“The public interest in authorities acting lawfully and the private interest of members of the public in climate change outweigh the private interest of the developers.”

This is the first decision that we are aware of which recognises a private interest of members of the public in climate change in this way, but seems to be part of a more general trend seen in other cases across the UK and Ireland, where courts are increasingly engaging with public and private interest standing in climate litigation.

 

A wider shift across the UK and Ireland?

The Scottish ruling  is part of a wider trend across the UK but is also reflected in Ireland and Northern Ireland.

The Irish High Court’s decision in Coolglass is particularly relevant. That decision concerned An Bord Pleanála’s (the national planning authority) refusal of planning permission for a wind farm, citing visual impacts and local development plan designations for wind turbines. The applicant argued that under Section 15(1) of the Climate Act, as well as in line with EU law and obligations under the European Convention on Human Rights (ECHR), the planning authority had an obligation to interpret its planning decisions such that climate considerations would take priority over the visual concerns and that the authority had therefore taken inadequate account of Section 15(1) of the Climate Act.

The Irish High Court found that a broad approach to the obligations in Section 15 was necessary, reflecting the need for “rapid, far-reaching and unprecedented changes to all aspects of society and the economy”.   The Court also accepted that the ruling in KlimaSeniorinnen v Switzerland demonstrated the requirement to read legislation in an ECHR-compliant manner.

 

Whilst it is understood the Coolglass decision will be appealed, it provides a clear methodology for public authorities and decision-makers to follow when carrying out their functions.  Notably this extends beyond planning functions but to the functions of all public bodies which fall within Section 15.

It is not clear whether such a broad approach to the interpretation of statutory climate change duties will catch on in Northern Ireland, however, there are parallels with Section 52(1)(a) of the Climate Change Act (Northern Ireland) 2022. This provision mandates that Northern Ireland Departments must exercise their functions in a manner consistent with achieving certain statutory climate targets.

 

The same principle was reinforced by the Lady Chief Justice in No Gas Caverns [2024] NICA 50, who stated:

“Specifically, it seems logical to us given the climate commitments now enshrined in our law that decision makers on large scale projects such as this will have to rationalise any convergence or divergence with those standards set in law.”

It remains to be seen how the Northern Irish Courts will interpret and apply Section 52(1)a of the Climate Change Act (Northern Ireland) 2022 but we suspect it will be a fertile ground of litigation for both promoters of renewable energy projects and those opposed to fossil fuel (and other) development.

 

Judicial Review and Government Intervention: A turning point for climate litigation?

Although the Labour government previously pledged an embargo on new oil and gas licences, the Prime Minister has recently declared war on both  “green zealots”, and red tape in planning decisions citing examples such as Hinkley Point C’s “fish disco” (no, not a trendy nightclub, but an acoustic deterrent to prevent fish becoming entrapped in cooling equipment).   Read alongside recent announcements regarding the government’s plans to effectively limit the opportunities for judicial review challenges against nationally significant infrastructure projects (NSIPs), there is uncertainty as to the outcome of any redetermination of the Rosebank and Jackdaw applications.

It should be noted that any restrictions on judicial review are unlikely to apply to Northern Ireland. Will this make Northern Ireland a more attractive place to bring climate change litigation, especially given its land border with an EU country  and its unique constitutional status?

The key question is: Will government proposals to curtail judicial reviews slow the trend for climate change challenges to development, or is this the new normal for planning decisions?

 

Final thoughts: What developers should do now

Renewable energy projects may benefit from this shift in focus, whereas fossil fuel and carbon intensive projects must prepare robust emissions assessments to stand up to legal challenge.

 

Developers should consider the following:

• Scope 3 Emissions: Expect a greater risk of legal challenge if your application fails to properly assess downstream emissions.  Assessment of downstream emissions will vary depending on the development proposed and it is likely that we will see further clarification from the courts in respect of the extent of this obligation.
• Alignment with Climate Targets: Demonstrating alignment with national climate policies and carbon budgets may help future proof your project and assist decision makers in documenting their compliance with statutory obligations.
• Proactive Legal and Environmental Strategies: Engaging legal and environmental consultants early in project development can help mitigate risks and strengthen applications.

 

The question is no longer “should climate considerations be factored into planning?” – but rather, “Can your project withstand the growing legal scrutiny ahead?”

 

Would you like to discuss how your project can navigate these legal developments? Get in touch with Maria O’Loan or Aoife Murray in our Planning and Environment Team.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.