A platter of Kilkenny cheese grounds for judicial review

An Taisce – The National Trust for Ireland v An Bord Pleanala & ors, [2021] IEHC 254, [2021] IEHC 422, [2021] IESCDET 109]

This case concerned a joint venture between Glanbia Ireland and Royal A-Ware. The companies have applied for planning permission to build a cheese factory in County Kilkenny. Kilkenny County Council (the council) had granted planning permission for the development on 14 November 2019. The claimant, An Taisce, appealed against the granting of this planning permission to An Bord Pleanála (ABP), which granted the building permit on June 30, 2020 following a favorable opinion. inspector’s report. One of the arguments made by An Taisce was that the milk needed to make the cheese had to come from 4,500 farms. The indirect effects of these dairy farms could have a negative impact on Ireland’s ability to meet its climate and environmental policy objectives.

Environmental impact assessment

The Court held that the planning permission was not invalid due to ABP’s failure to conduct an upstream impact assessment of dairy farming. The Inspector considered that there would be an indirect impact from milk production, but that this would be mitigated by production efficiency and Glanbia’s sustainability program. The Inspector also considered that these emissions are already accounted for and regulated by the National Climate Action Plan as part of dairy sector emissions.

The Court agreed with ABP and found that the effects of dairy farming are too remote and remote enough from development to be assessed in site-specific terms. Therefore, it should not be considered part of the development for the purposes of an Environmental Impact Assessment (EIA) or Appropriate Assessment (AA). The CJEU had already given guidance on the key distinction, which is that between “programmatic” measures and “environmental permitting procedures”.

Political decisions

Judge Humphreys noted that the applicant’s real grievance concerned public order. He felt that while political decisions do not escape judicial review, “they are not a basis for challenging a particular decision under the planning code”. Plaintiff was attempting to use the latter process to indirectly challenge the former, which is not acceptable as a collateral attack. For these reasons, An Taisce’s case was dismissed.

The Council’s Appropriate Assessment

One of the other applicant’s grounds was that An Bord Pleanala’s proper assessment was flawed. An Appropriate Assessment (AA) must be carried out before planning permission is granted, to determine whether the proposed development is likely to have adverse effects on the integrity of any European site. The Board’s assessment should contain complete, accurate and definitive findings and conclusions and should not contain any gaps or deficiencies. The Applicant alleged that the Board’s proper assessment was flawed.

The applicant alleged that firstly, the inspector erred in eliminating certain interests in the AA, in particular the Atlantic salt marshes, and secondly, that the Board failed to give sufficient consideration to the impact treated effluents. Although these points were not raised with the Board before it rendered its decision, the judge presumed that the applicant still had standing to make them. The same judge had ruled in another case that if grounds and evidence are to be admitted in a legal challenge, they must have been presented to the decision maker before he makes his decision, subject to limited exceptions (Reid v. the Commission (#1) [2021] IEHC 230 – for more information on this case, please see the update to Case 2 above). Basically, the rationale for the general rule is that it would otherwise be unfair to the decision maker.

The judge considered that the main consequence of not having addressed these questions in the planning process is that no scientific evidence has been presented to the Office to contradict the Natura impact study. This statement was prepared by the Proponent and relied on by the Board in making its proper assessment. With respect to treated effluent, the judge disagreed with Council and the proponent that this would be a matter for the Environmental Protection Agency. However, evidence of the Commission’s assessment was not presented to the Commission prior to its decision.

The High Court judgment on the application for leave to appeal

The judge subsequently dismissed the application for leave to appeal the judgment of the High Court to the Court of Appeal ([2021] IEHC 422). The judge held that none of the grounds raised constituted a point of law of exceptional public importance on which leave to appeal should be granted to the Court of Appeal.

The Supreme Court’s decision on the leave to appeal judgment

The petitioner sought leave directly from the Supreme Court – what is known as a “leapfrog appeal”. The plaintiff argued that Judge Humphreys required the plaintiff to present scientific evidence demonstrating doubt in the decision maker’s AA. The Board argued that Justice Humphreys had in fact asked the plaintiff to point out certain aspects of the evidence before the decision maker.

The Supreme Court, in granting the petitioner’s request [2021] IESCDET 109]considered that: “there are, in the opinion of the Court, questions as to how evidence in this regard should be treated in the context of a challenge to consent granted” and “the Court considers that providing greater clarity as to the appropriate approach to evidence or argument in relation to relevant scientific issues in judicial review proceedings of this type is a matter of general public importance which arises in such proceedings.”

New Supreme Court judgment clarifying scope of appeal

In another judgment of December 7, 2021, Judge Hogan clarified that the scope of the appeal to the Supreme Court would not be limited to the ground relating to the Habitats Directive. The plaintiff had filed submissions on whether the indirect effects of “off-site milk productionwere properly assessed in the Commission’s EIA (see Case Update 8). In addition, the judge accepted in the context of the appeal an argument of the applicant:whether the Board has been prevented from granting permission in circumstances where it would lead to an increase in the discharge of pollutants into the River Suir and where it is said that this body of water has not reached what is known as the “good” condition for the purposes of Section 28 of the Surface Law. Water Regulations”. However, Council or the party to the notice would be permitted to argue that the ground should not be determined, as it was not sufficiently raised or argued in the High Court.

While these issues were not noted in the Supreme Court’s original decision, the judge clarified that following a fuller hearing in which the parties were given an opportunity to address the Court, the Court may clarify or vary the earlier decision. This approach is consistent with the general administration of justice and fairness to the parties.

Conclusion

This case shows that indirect effects from the source of materials or resources that are transported and used in a separate manufacturing process are normally considered too remote to be assessed as part of this second process in an EIA. These effects must be considered as part of any assessment of their production in the first place, and more broadly as part of government policy. In this respect, there is a difference between programmatic or political decisions and individual planning or environmental decisions for permits or authorisations. The latter cannot be a basis for judicial intervention for the former.

Government policy can be challenged in court in exceptional circumstances such as violations of the law. However, the fact that there are different points of view on an issue does not mean that government policy is incorrect. Questions of distributive justice, that is to say the distribution of common benefits and burdens in society, are the responsibility of elected officials. Stand-alone court cases are too focused on individual facts to be an appropriate means of deciding policy.

That said, the Supreme Court will consider whether offsite milk production should have been included in the EIA or whether it was too remote. In addition, the Supreme Court will consider an issue raised for appropriate assessments. There is a well-established principle that all scientific doubt must have been removed when determining whether there are adverse effects on the integrity of a European protected site. However, there is less clarity on the evidence required to show scientific doubt to a decision maker and the Supreme Court will rule on this issue.

The Supreme Court can also examine a question relating to the decision of the Council in the context of the framework directive on water. However, this issue may not be decided by the Supreme Court if the Council or the party to the notice can show that it was not sufficiently raised or argued in the High Court.

An inadequate AA or EIA are common grounds for judicial review applications and many building permits have been revoked as a result. The Supreme Court’s comments on these grounds and, if allowed, on the Water Framework Directive ground, will be helpful to policy makers and proponents. However, this may cause delays in the interim for judicial review challenges when these grounds have been raised.