Clever Richard - Village Magazine

34 April-May 2025

April-May 2025 35

Clever Richard

Proﬁle: Judge Richard Humphreys: formerly blue then

red, and now legal and (not always but sometimes, e.g.

in the recent Statkraft case) radically green

By Michael Smith

ENVIRONMENT

34 April-May 2025

April-May 2025 35

An Bord Pleanála to refuse it permission, Judge

Humphreys ruled that planners had not fulﬁlled

their duty to comply with climate law in a case

where a wind farm was wrongly denied

planning permission. He said the planners had

not attached enough importance to the need

for renewable energy.

It is the most radical judgment ever given on

the environment in Ireland.

The Bord Pleanála (ABP) order noted the

general support policy for wind energy

development within the Laois County

Development Plan but concluded that the

proposed development would materially

contravene provisions on windfarms — which

excluded development on some of the lands in

question; and on landscape protection, and

would therefore be contrary to the proper

planning and sustainable development of the

area. ABP can, however, grant permission for

developments despite material contravention

of the County Development Plan. But it did not.

He notes the board adopted its inspector’s

report generally, which considers the wrong

section of the 2000 Act regarding material

contravention and which involves a

signiﬁcantly dierent test”. That was terminal

for its defence.

Humphreys notes:

“What the inspector [who advises the Board]

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

ichard Humphreys is a Judge of the

High Court. He was previously a

member of Fine Gael, a barrister,

legal academic, political adviser to

liberalising Labour Minister

Mervyn Taylor, and was a member of Dún

Laoghaire–Rathdown County Council for the

Labour Party.

On his mother’s side, an ancestor was mayor

of Limerick and his grandfather was a Sinn Féin

TD. On his father’s side, his great grandfather

was a nationalist member of the House of

Commons and his grandfather (Richard) was

out in 1916.

The judge’s father, also Dick, was also a

onetime member of Fine Gael, and an inveterate

and angry letter writer to the Irish Times in the

1980s about declining sexual and moral

standards in Irish society.

Dick turned out during the 1983 abortion

referendum as a leading member of the Pro-life

amendment campaign and was a founding

member of Family Solidarity, for which he acted

as a spokesman in the 1986 divorce campaign.

He was an inventor and successful

businessman. In the 1960s he acquired a

licence to quarry marble in Recess, County

Galway.

He was Sales Manager for the Gowan Group

and became president of the MBA Association

and the Mount Merrion Residents Association.

In the 2000s he campaigned for an international

wealth tax.

Richard’s mother, Deirdre Flanagan, taught

religion in Mount Sackville school, on Dublin’s

northside.

Judge Humphreys attended St Michael’s

College in Dublin. While a student at UCD in the

mid-1980s, where he was regarded as highly

academically talented, he was the auditor of

the garrulous L&H society.

Around that time he was inclined to

hysterical agitation on the anti-abortion side

and on one occasion during the twilight of the

oppressive state approach to contraception

transported condoms from UCD’s student

union, where he had purchased them, to the

Garda station in Donnybrook on the basis the

students union should be prosecuted.

Ironically, then he was a legal advisor to the

liberal Labour Party for 20 years and advisor

(1993-7) to the most socially-liberalising

minister in the history of the state, Labour’s

Mervyn Taylor who introduced divorce

legalisation (1995), the legalisation of

homosexuality (1993), anti-discrimination

laws, domestic-violence protections and rights

for cohabiting couples. The Regulation of

Information (Services Outside the State for

Termination of Pregnancies) Act 1995 was also

enacted (1995), allowing information about

abortion services abroad, following the X Case

ruling and the 1992 referendums on the issue.

Taylor was not the lead minister on this.

Following his experience as a government

advisor in the run-up to the 1998 Good Friday

Agreement he wrote two learned texts on the

Good Friday agreement: “Countdown to Unity:

Debating Irish Reuniﬁcation” and “Beyond the

Border: The Good Friday Agreement and Irish

Unity after Brexit”. These works explore the

pathways and implications of potential Irish

reuniﬁcation within the framework established

by the Good Friday Agreement.

Humphreys received a PhD in law from

Trinity College Dublin and has lectured widely.

He is divorced and remarried. He was

appointed a High Court judge in 2015.

Reverting to abortion, in an immigration case

in 2016, he followed a 2008 ruling of Judge Mary

Irvine that the unborn had constitutional rights

that should be considered by the Minister for

Justice, and took the view that this conclusion

was reinforced by Article 42A of the Constitution

of Ireland. The Supreme Court reversed this

reasoning but upheld the order that the Minister

was obliged to consider the rights that would

accrue on the child’s birth.

In 2020, the Supreme Court upheld two 2019

judgments by Humphreys in an immigration

case which Judge Marie Baker described as

“lucid, reasoned, elegant and intelligent” but

she castigated “quite remarkable and

personally insulting comments” he had made

about counsel for both sides. Village would

forgive him that.

It is fair to say that his judgments are

characteristically learned, freeﬂowing and

colourful, fun even, and that these qualities do

not endear judges to those who appoint,

promote or consider appeals from, them.

He is now in charge of the Strategic

Infrastructural Development Judicial Review

List of the High Court and says he aims to bring

a level of informality to the new court over

which he presides. He is said to be friendly and

admirably willing to talk to litigants outside his

court where he is refreshingly free of the

normal extra-judicial uptightness.

In January 2025, in a judicial review taken by

Statkraft, proposers of the Coolglass Wind

Farm project in County Laois, of a decision by

Statkraft is the most

radical judgment ever

given on the environment

in Ireland

Windmills like Sttkrft’s in Co Lois: “will lmost lwys be grnted permission”

36 April-May 2025

April-May 2025 PB

call that rational. Someone else might say that

it represents a deeply skewed set of values and

an unwillingness to face new realities”.

The judge pointed to a strengthening of the

wording of the section of the 2015 Climate Act

in the amending 2021 Act, which he described

as a foundational “step-change” from a ‘have-

regard-to’ to a ‘comply-with’ obligation. The

change followed the landmark judgment in

Friends of the Irish Environment v Government

of Ireland, which required greater speciﬁcity

within the government’s plans to achieve its

climate targets,

Under the 2021 Climate Act, An Bord

Pleanála, and indeed all public bodies

established under statute have to act

consistently with the government’s Climate

Plan, now in its 2024 iteration. But that’s on the

face of the Act so it is hardly surprising

Humphreys would apply it. However, in a

lengthy legal survey he then confoundingly

equates “consistent with” with “complying

with as”. But consistency means harmony with,

not obligation. Moreover both standards are

mitigated by the notion of “practicability”,

posing another layer of ambiguity.

Clarifying the context, he went on: “where

the obligation on the Board under section 15

to act ‘consistently’, insofar as practicable,

with the Climate Plans and Objectives is more

stringent than the obligation on the Board

under section 37G(2)(c) of the Planning and

Development Act to ‘consider’ the provisions

of the Development Plan, the Board was

required to exercise its discretion under

section 37G(6) to materially contravene the

Development Plan, unless it was not

practicable for it to do so. The Board therefore

erred in law and acted contrary to section 15 of

the 2015 Act in refusing permission for the

Windfarm Development on the sole basis that

it materially contravened the Development

Plan”.

The failure, he said, also constituted a

breach of duty under EU law and the European

Convention on Human Rights.

He ruled that “The board must ask itself

what substantive disposition of the matter that

is practicably available would contribute to

achieving the section 15 goals. In the case of

renewable energy projects, the answer to that

will almost always be a grant of permission,

and is obviously so here. It is not an answer

that the permitting of any one project won’t

achieve climate goals on its own. That is the

drop-in-the-ocean fallacy that is rejected

globally”. But it does not seem literally obvious

that without this wind farm the County Council

would, necessarily, not meet its renewable

targets and he relies in part on the “cumulative”

eect of ABP making similar decisions. His

forceful ruling denying the Bord has discretion

to refuse in this case and more generally for

windfarms “unless it is precluded by a

mandatory and non-ﬁxable legal requirement”

may not stand up in the appeal that ABP is now

taking.

Central to Humphreys’ judgment was that:

“The obligation imposed by section 15 of

the 2015 Act on the Board is not delegable and

the Board had to perform, and to give

consideration as to how to perform, its

functions consistently with the Climate Plans

and Objectives, regardless of what steps had

or had not been taken by the Oce of the

Planning Regulator (OPR) and the Minister…It

is true at one level that, in a situation where

legally binding targets for renewables are not

actually being met, attempts by councils to

preclude or limit renewable energy

infrastructure can generally be regarded as

unlawfully inconsistent with EU, ECHR and

national law and policy in this area. But the fact

that the Oce of the Planning Regulation

(OPR) and the Minister for Housing, Local

Government and Heritage (the Minister) failed

to take any action to address the inconsistency

(something that the Climate Change Advisory

Council suggests they should urgently rectify

across the board) – especially I might add

given the relative triviality of some of their

objections to development plans in relation to

other matters…doesn’t make the refusal of an

application for such infrastructure consistent

with climate plans and goals when it wouldn’t

otherwise be so.

Refusing permission for the Proposed

Windfarm was inconsistent with the

achievement of the targets set by the 2024

Climate Action Plan of achieving 9GW of

onshore wind and an 80% share of renewable

electricity by 2030. In those circumstances, the

Board was required to grant permission for the

Proposed Windfarm, unless it determined that

it was not practicable for it to do so”.

This judgment is strong on rhetoric and

badinage, opening with an appropriate quote

from Bismarck and occasionally vituperating.

For example he asserts: “the board [which

followed its inspectors mistaken treatment of

the application as if it was an appeal] has to be

able to do better than ﬂy on automatic pilot and

copy-and-paste mistakes into its decision-

making documents”.

Excitingly for radical environmentalists he

notes of climate: “The problem is that the

problem is so big that to even describe it

factually sounds like scaremongering”. He

accuses the board of raising “the petriﬁed cry”

against any “far-reaching” interpretation of the

new terms in the 2021 Act. But, he says, “that

term isn’t the insult the board seems to think it

is”. He accuses ABP of “sabotaging” the

government’s climate commitments and refers

to its recent...diculties.

It is good to see an intelligent awareness of

the acuteness of the realities and imperatives.

Nevertheless, ultimately it does not work for

judges to strain the bounds of the law as they

are vulnerable to being overturned on appeal

which has an unfortunate chastening eect on

their future judgments.

Some weeks later on 7 February, in a more

important case, Friends of the Irish Environment

v the Minister for the Environment, Judge

Humphreys refused a judicial review of the

Climate Action Plan 2023. He determined that

the plan did provide quantiﬁable measures

and a level of speciﬁcity that would enable a

reasonable person to assess its likelihood of

meeting statutory objectives. The court

emphasised that the plan must ensure

compliance with carbon budgets and sectoral

ceilings, which involves quantiﬁcation of

measures and estimation where necessary.

And he gave the applicants a ﬂea in their ear

for not providing evidence of any lack of clarity.

Evidentiary reasoning, the narrowest

basis, can be a mark of reactionary decision-

making.

Refusing permission for the proposed Windfarm was

inconsistent with the achievement of the targets

set by the 2024 Climate Action Plan of achieving 9

GW of onshore wind and an 80% share of renewable

electricity by 2030. In those circumstances, the Board

was required to grant permission for the Proposed

Windfarm, unless it determined that it was not

practicable for it to do so