The Winds of Change for Isle of Man Wind Turbines?

In a decision of the Isle of Man Director of Planning and Building Control last year, a planning application to build two wind turbines above Port Erin was refused, determining that the loss of visual amenity (as a result of the turbines) for the community in Port Erin would be “unacceptable” (“the Manx Decision”).

However, in a recent judgment of the Republic of Ireland High Court in Coolglass v An Bord Pleanála, a decision by Ireland’s planning authority refusing to grant planning approval to a wind farm on the basis of the loss of visual amenity was overturned, as the Court found that the obligation to reduce greenhouse gas emissions took precedence over visual amenity (“the Irish Judgment”).

In this article, litigation advocate Andrew Langan-Newton explores how the Irish Judgment may influence future planning applications for wind turbines in the Isle of Man.

The Manx Decision

The site of wind turbines which were the subject of the Manx Decision had had an earlier application for three 10kw wind turbines in 2017 which was also denied (in part) as a result of the loss of visual amenity to the area. However, between the two applications, the law in relation to renewable energy in the Isle of Man had significantly changed, particularly with the introduction of the Climate Change Act 2021 and the April 2024 European Court of Human Rights judgment in Klimaseniorinnen v Switzerland (as applicable to the Isle of Man under the Human Rights Act 2001).

Notwithstanding the significant change in the law, the Manx Decision refused the application for the wind turbines on the grounds that:

1. The wind turbines would render an “unacceptable degree of visual intrusion” to the appearance of the countryside from Port Erin and the surrounding area; and
2. The applicant had not demonstrated that the wind turbines would not adversely affect the running of the airport.

In respect of (i), the Manx Decision made no reference to climate change, the legal obligations to reduce greenhouse gas emissions, or the role of renewable energy in delivering the same.  Particularly absent was any apparent consideration of the climate change duties of public bodies imposed under section 21 of the Climate Change Act 2021 (“the Manx Climate Change Duties”).

In respect of (ii), in a surprising move, the Manx Decision referred to the requirement to prove it would not adversely affect the airport despite the planning officer (assessing the application) recommending approving the application on the grounds that issues relating to the airport could be resolved via a planning condition.

The Irish Judgment

The Irish Judgment was a judicial review of a decision of the Republic of Ireland planning authority to refuse a planning application for the construction of a 13turbine wind farm in County Laois.

In refusing the application, the planning authority had considered that the wind farm would materially contravene a relevant area plan, determining that the factors against the application (essentially the visual impact of the wind farm) were “overwhelming” and (in effect) took precedence over legally binding targets to address the climate emergency.

In reviewing the decision, the Irish High Court noted that while the planning authority had placed precedence on the change of appearance to the landscape, it had apparently not noted the threat to the landscape from climate change (both in Ireland and globally) through “vastly more severe disturbance, desertification, sea level rise”. The judge determined that the climate goals took precedence over the visual impact of the wind turbines and accordingly “they must take precedence over development plan provisions that are motivated by visual impacts.”

In reviewing and quashing the decision of the planning authority, the judge determined that the refusal was unlawful on a number of grounds, including that:

1. The planning authority failed to comply with obligations under section 15 of the Irish Climate Action and Low Carbon Development Act 2015 (“the Irish Act”) which required it to take into account Irish climate plans and objectives; and
2. Since the judgment in Klimaseniorinnen, state parties to the European Convention on Human Rights (“the Convention”) had positive obligations to introduce and apply “effective protection of human health and life” in regard to climate change, which had been breached by the refusal of the planning authority.

In considering the Irish climate change targets and the obligation under section 15 to consider the same, the judge noted that when a planning authority is tasked with determining a renewable energy project, (save for a mandatory restriction) “the answer to that will almost always be a grant of permission”. The judge stated that it was not a proper answer that one renewable energy project won’t achieve climate goals in its own right, because that “is the drop-in-the-ocean fallacy that is rejected globally, and would obviously strangle the effort to address climate change at the starting line.”

The Impact of the Irish Judgment

Judgments of the Courts of the Republic of Ireland, while not binding on an Isle of Man Court, are likely to be persuasive on an Isle of Man Court’s decision making, particularly when interpreting similar statutory and human rights law as applicable in the Isle of Man.

It may well have particular relevance in the Isle of Man as:

1. The Manx Climate Change Duties on public bodies bear similarities to the obligations on the Irish planning authority under section 15 of the Irish Act; and
2. Under the Human Rights Act 2001, the statutory law of the Isle of Man must be read and given effect in a manner that is compliant with the Convention, which includes the climate obligations on the Isle of Man Government following the Klimaseniorinnen

It is understood that the Manx Decision is being appealed by the applicant. Such an appeal (and future planning applications for wind turbines in the Isle of Man) may well be influenced by the Irish Judgment.

If you have any questions on the issues raised in this article, please contact Andrew Langan-Newton.