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: 21 December 2021
• Neutral Citation: [2021] IESC 83
• Docket Number: S:AP:IE:2021:000091
• Year: 2021
• 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)(No.2)

Notice Party

[2021] IESC 83

O'Donnell CJ.

Dunne J.

Hogan J.

S:AP:IE:2021:000091

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Joinder – Public interest – Judicial review – Attorney General seeking to be joined as a party to the proceedings – Whether the Attorney General’s application was in the public interest

Facts: The appellant, An Taisce, in judicial review proceedings, sought to quash a decision of the first respondent, An Bord Pleanála (the Board), dated the 30th June 2020, to grant planning permission in respect of an application made by the developer notice party, Kilkenny Cheese Ltd, to construct a cheese factory at Slieverue, Co. Kilkenny. 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. On the 7th December 2021, the Court was required to clarify the scope of its earlier determination giving leave to appeal to the Court: [2021] IESC 79. The Attorney General issued a motion seeking to be joined as a party to the proceedings in his capacity as guardian of the public interest. That application was resisted by the appellant. First, it was said that the Attorney had delayed making the application until the scope of the appeal was clarified, thus putting in jeopardy the scheduled hearing date of the 12th January 2022 in respect of the main appeal. Second, it was contended that no constitutional issue or issue of EU law had been identified which neither the Board nor the notice party could adequately address. Third, it was contended that the Attorney’s application was not in fact in the public interest. In that respect it was submitted that the public interest was firmly in ensuring the highest standards of environment protection rather than permitting a large scale industrial development which, it was said, would jeopardise Ireland’s capacity to meet greenhouse gas and climate change obligations, in particular in light of the off-site impacts caused by the necessity to source very large quantities of milk.

Held by Hogan J that the Attorney had at all stages reserved his position regarding the joinder application and this had been made clear to all the parties at various stages during the case management process. Hogan J noted that while the final decision to seek to intervene was made only after the first judgment of the Court was delivered on the 7th December 2021 and then only when it was clear that the Court had in fact sanctioned a broad view of the scope of the appeal, it was clear that the Attorney then moved with some dispatch. Hogan J rejected the contention that the application was made too late. Hogan J held that the Attorney did not have to identify any constitutional or EU point of any importance with which the existing parties could not already deal. Hogan J held that it was sufficient that the Attorney could point to the existence of a matter of public interest. Hogan J held that the appeal presented issues of potentially far-reaching importance concerning the application of environmental law standards. Hogan J held that if the appellant’s arguments were correct, this would have major implications for the planning process in general and large scale industrial developments in particular. Hogan J held that the appeal had implications which transcended the private interests of the parties to the litigation, so that the public interest was plainly engaged. Hogan J held that the Attorney’s right to apply to intervene in cases of this kind applied to those category of cases where he formed the view that the case in question presented important questions of law which transcended the private interests of the parties.

Hogan J granted an order pursuant to the provisions of Order 58, r. 3(2) permitting the joinder of the Attorney to the appeal on condition that he abide his own costs.

Application granted.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 21st December 2021

Introduction

1 . This is now the second interlocutory judgment which this Court has been called upon to deliver in respect of judicial review proceedings raising issues of far-reaching importance concerning the scope and reach of our environmental law. In the first judgment delivered on the 7th December 2021 the Court was required to clarify the scope of its earlier Deter-mination giving leave to appeal to this Court pursuant to Article 34.5.4 of the Constitution: see An Taisce – The National Trust of Ireland v. An Bord Pleanála & ors (No.1) [2021] IESC 79. In this judgment the Court is now required to consider whether the Attorney Gen-eral should be permitted to joined as a party to this appeal in his capacity as guardian of the public interest. At the conclusion of the hearing on the 13th December 2021 this Court decided that the Attorney General should be permitted to be a party to this appeal subject to the condition that he must abide his own costs. The purpose of this judgment is, accord-ingly, to give reasons for that decision.

2 . Before proceeding to examine this question, it is necessary first to set out in summary the background to these proceedings. In these judicial review proceedings the appellant seeks to quash a decision of An Bord Pleanála dated the 30th June 2020 to grant planning per-mission in respect of an application made by the developer notice party to construct a cheese factory at Slieverue, Co. Kilkenny. The developer is a joint venture between Glanbia and a Dutch company, Royal-a-Ware.

3 . In the High Court Humphreys J delivered a written judgment on the 20th April 2021 dis-missing 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: see [2021] IEHC 422. By a determination dated the 23rd September 2021 this Court granted leave for a direct appeal to this Court pursuant to Article 34.5.4 of the Constitution: see [2021] IESCDET 109.

4 . According to the non-technical summary of the environmental impact assessment report prepared in respect of this development, the proposed cheese plant will require 450 million litres of milk each year, of which approximately 20% is already in circulation. The remain-ing milk will be sourced from Glanbia's own milk suppliers. This consists principally of some 4,500 farms, largely based in Kilkenny, Tipperary and Waterford and some other surrounding counties. Some 75% of these farms have rivers or streams or other water-courses running through them or are immediately adjacent to them. Of these farms only some 57% have nutrient management programmes designed to mitigate water quality de-terioration. A significant portion of the milk supply for the plant is already available but is currently supplied to other processors.

5 . At the heart of the appellant's judicial review proceedings lies the contention that the Board did not properly take into account the downstream consequences of the operation of the proposed cheese factory. Specifically, it is contended that there was no adequate environ-mental impact assessment of the 450 million litres of milk necessary to supply the factory. It is further said that such supply will have consequences for Ireland's greenhouse obliga-tions in that, for example, the supply of milk at these quantities will have consequences for methane and nitrate emissions. The appellant accordingly maintains that the Board was under an obligation under Article 2(1) of the Environmental Impact Assessment Directive ( Directive 2011/92/EU as amended) (“the EIA Directive”) to assess these wider (if indirect) environmental impacts due to the demand for milk likely to be created by the project.

6 . The appellant adopted a similar argument in respect of Article 6(3) of the Habitats Directive (Directive 92/43/EEC as amended) insofar as these indirect impacts may affect a Natura 2000 site. But it also argued that the Board's inspector erred in screening out certain inter-ests, particularly Atlantic salt meadows, in any assessment. (Atlantic salt meadows are communities of salt tolerant small plants which congregate in tidal estuaries and rivers). It also contended that the Board had failed to have regard to the impact of treated effluent.

7 . A slightly different point is made in respect of the Water Framework...