An Taisce — National Trust for Ireland v an Bord Pleanála, The Minister for Communications, Climate Action and The Environment, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 16 February 2022
• Neutral Citation: [2022] IESC 8
• Docket Number: S:AP:IE:2021:000091
• Court: Supreme Court

Between/

An Taisce — National Trust for Ireland

Appellant

and

An Bord Pleanála, The Minister for Communications, Climate Action and The Environment, Ireland and The Attorney General

Respondents

and

Kilkenny Cheese Limited (Formerly Jhok Limited)

Notice Party

[2022] IESC 8

O'Donnell CJ

Dunne J

Charleton J

Woulfe J

Hogan J

S:AP:IE:2021:000091

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Planning permission – Judicial review – Development consent – Appellant challenging the grant of planning permission – Whether the respondent complied with the requirements of Article 6(3) of the Habitats Directive in granting permission

Facts: The appellant, An Taisce, in judicial review proceedings, sought to quash a decision of the first respondent, An Bord Pleanála, dated the 30th June 2020, to grant planning permission in respect of an application by the developer notice party, Kilkenny Cheese Ltd, to construct a major cheese factory at Slieverue, Co. Kilkenny. The developer was a joint venture between Glanbia and a Dutch company, Royal-a-Ware. It was envisaged that the project would facilitate a move by Glanbia from the supply of cheddar cheese to the UK market to the development of different lines of cheese production designed principally to satisfy demand in the continental European markets. In the High Court, Humphreys J delivered a written judgment on the 20th April 2021 dismissing the application for judicial review: [2021] IEHC 254. By a subsequent decision delivered on the 2nd July 2021, Humphreys J refused leave to appeal to the Court of Appeal: [2021] IEHC 422. By a determination dated the 23rd September 2021, the Supreme Court granted leave for a direct appeal to the Court pursuant to Article 34.5.4 of the Constitution: [2021] IESCDET 109. The central issue in the appeal was whether the Board was under an obligation to assess – whether for the purposes of an environmental impact assessment under the Environmental Impact Assessment Directive 2011 (2011/92/EU) (the EIA Directive) or an appropriate assessment under the Habitats Directive (Directive 92/43/EEC) – the upstream consequences of the operation of the proposed cheese factory and, specifically, the milk that was necessary to supply the factory. At the heart of the appellant’s objections to the grant of permission was its contention that such was the scale and size of the proposed factory that it would consume very large quantities of milk – estimated to be some 4.5% of the national milk supply in 2025 – and that this milk could only realistically be sourced by an expansion of the national herd, leading in turn to enhanced methane and other greenhouse gas emissions (GHGs). These were said to be the indirect consequences which would flow from the construction of the factory. The respondents maintained, however, that there was in fact no causal link between the anticipated increase in milk production and the factory. They contended that the increase in milk production would occur in any event, so that even if the increase in milk production resulted in increasing GHGs, those indirect environmental effects would not be as a result of the operation of the factory.

Held by Hogan J that he would reject the challenge to the adequacy of the environmental impact assessment report in the case and affirm the decision of the High Court in that respect. He held that he would reject the contention that the Board did not comply with the requirements of Article 6(3) of the Habitats Directive in granting permission for the site. He held that he would reject the appeal so far as it concerned alleged non-compliance with the requirements of the Water Framework Directive of 23rd October 2000 (Directive 2000/60/EC). He considered that the appeal in substance concerned the application of EU law, rather than any question of interpretation as such. It was for that reason that he considered that no Article 267 TFEU reference was, in fact, necessary.

Hogan J dismissed the appeal of An Taisce and upheld the decision of Humphreys J in the High Court. Hogan J held that An Taisce had nevertheless raised important and practical issues regarding the development consent process. In those circumstances, he considered that it would be appropriate that each side would abide its own costs.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 16 ^th day of February 2022

Part I: Introduction and Background

Introduction

1 . In 2021 the Oireachtas gave legislative approval to a decision by the Government to effect significant and far-reaching changes to the structure of Irish society so that we could achieve the goal of carbon-neutrality by 2050. This decision reflects commitments made not only by the Irish Government, but also by the other Member States of the European Union and by the Union itself to give practical effect to a range of international commitments designed first to arrest and ultimately to eliminate the continued dependence on fossil fuels and other similar practices contributing to the increase in greenhouse gas emissions (“GHGs”).

2 . While the detail of these legislative changes do not directly concern or govern the present appeal, the following extract from the Long Title of the Climate Action and Low Carbon Development ( Amendment) Act 2021 (“the 2021 Act”) nonetheless succinctly describes the aims of both the Oireachtas and the Government:

“An Act to provide for the approval of plans by the Government in relation to climate change for the purpose of pursuing the transition to a climate resilient, biodiversity rich and climate neutral economy by no later than the end of the year 2050 and to thereby promote climate justice…”

3 . Agricultural emissions – not least from the dairy sector – also present a challenge in this context. It is these emissions which form a key part of the overall context of this appeal which concerns the indirect environmental effects which the construction and operation of a proposed major cheese factory are said to entail. Will this lead to enhanced milk production (and, by extension, greater GHG emissions), or will this milk be produced in any event? And, one way or the other, should the likely emissions from this enhanced milk production be identified and assessed as part of the required environmental impact assessment in respect of the cheese factory project?

4 . Article 3(1) of the Environmental Impact Assessment Directive 2011 (2011/92/EU) (“the EIA Directive”) (as inserted by Article 1(3) of Directive 2014/52/EU) articulates what at first blush seems a straightforward principle. It provides that every environmental impact assessment shall “identify, describe and assess” in an appropriate manner “in the light of each individual case, the direct and indirect significant effects of a project” on a range of matters, including biodiversity and “land, soil, water, air and climate.” The object of the EIA Directive is itself perfectly clear, in that it seeks to ensure that the likely environmental impacts of any major project are themselves considered and assessed before any development permission is granted, even if, as this Court has already held, “the outcome of that examination, analysis, evaluation and identification informs, rather than determines, the planning decisions which should or may be made”: Fitzpatrick v. An Bord Pleanála [2019] IESC 23, [2019] 3 IR 617 at 642, per Finlay Geoghegan J.

5 . The difficulty arises in the application of this principle and, specifically, the reference to significant indirect effects. Nearly every major construction project will have both direct and indirect effects on the environment. The question is: what is meant by “significant indirect effects of the development” in Article 3(1) of the EIA Directive?

6 . As I have already hinted, this problem arises in the present appeal in an acute form. In these judicial review proceedings the appellant seeks to quash a decision of An Bord Pleanála dated the 30 ^th June 2020 to grant planning permission in respect of an application by the developer Notice Party to construct a major cheese factory at Slieverue, Co. Kilkenny. The developer is a joint venture between Glanbia and a Dutch company, Royal-a-Ware. It is envisaged that this project will facilitate a move by Glanbia from the supply of cheddar cheese to the UK market to the development of different lines of cheese production designed principally to satisfy demand in the continental European markets.

7 . The central issue in this appeal is whether the Board was under an obligation to assess – whether for the purposes of an environmental impact assessment under the EIA Directive or an appropriate assessment under the Habitats Directive – the upstream consequences of the operation of the proposed cheese factory and, specifically, the milk that is necessary to supply this factory. At the heart of the appellant's objections to this grant of permission is its contention that such is the scale and size of the proposed factory that it will consume very large quantities of milk – estimated to be some 4.5% of the national milk supply in 2025 – and that this milk can only realistically be sourced by an expansion of the national herd, leading in turn to enhanced methane and other GHG emissions. These are said to be the indirect consequences which will flow from the construction of this factory. The respondents maintain, however, that there is in fact no causal link between the anticipated increase in milk production and the factory. They contend that this increase in milk production will occur in any event, so that even if this increase in milk production results in increasing GHGs, these indirect environmental effects will not be as a result of the operation of the factory.

8 . Before considering these difficult and troubling questions, it is necessary first to describe the parties and to set out the background to the...