An Taisce — The National Trust for Ireland v Minister for Housing and Others [No. 3]

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 24 July 2024
• Neutral Citation: [2024] IEHC 442
• Court: High Court
• Docket Number: [H.JR.2022.0000458]

Between

An Taisce — The National Trust for Ireland

Applicant

and

The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

The Minister for Agriculture Food and The Marine, Feirmeoirí Aontuithe Na Héireann Iontaobaithe Teoranta as Trustee of the Irish Farmers' Association and Francie Gorman, Tom O'Connor, Patrick Murphy, John Murphy and Frank Allen as Trustees of the Irish Creamery Milk Suppliers Association (By Order)

Notice Parties

[2024] IEHC 442

[H.JR.2022.0000458]

THE HIGH COURT

PLANNING & ENVIRONMENT

(No. 3)

JUDGMENT of Humphreys J. delivered on Wednesday the 24th day of July, 2024

1 . The present action is a challenge to the validity of domestic and European measures relating to the derogation for the use of nitrates above and beyond standard levels. That challenge raises significant issues of European law. To refer or not to refer is the primary question now, although it isn't a particularly difficult question, especially given that all contributing parties agree that almost all of the questions are not acte clair. The applicant has raised what are clearly novel, complex and important issues of EU law, culminating in a question regarding the validity of a Commission decision. The court doesn't have jurisdiction to determine the latter issue in favour of the applicant, and isn't particularly minded at the present time to determine it in favour of the respondents. While making a reference to the CJEU is generally optional apart from for apex courts, a case where the validity of an EU law measure is in issue can be an exception. Even a first instance court must refer such a question if it considers that the European law measure should be declared invalid by the CJEU.

Judgment history

2 . In An Taisce v. Minister for Housing (No. 1) [2024] IEHC 129, [2024] 3 JIC 0603 I decided the preliminary pleading-type objections in Module I of the proceedings, and set out a revised issue paper for Module II.

3 . In An Taisce v. Minister for Housing (No. 2) [2024] IEHC 248, [2024] 5 JIC 0102, I decided the preliminary evidential-type objections in Module II of the proceedings, and set out a revised issue paper for Module III.

4 . I now deal with the substantive EU law questions and will deal with the questions on the basis of the latest issue paper.

5 . While the judgments are getting shorter as we work through the issues (92,375 words + 65,318 words + 51,730 words) we are at a cumulative total of 209,423 words – exceeding Crime and Punishment but falling short of J.K. Rowling's Harry Potter and the Order of the Phoenix. There the analogy with great literature ends I'm afraid (except perhaps for the punishment bit).

6 . We ended up with 78 questions on an issue paper and a further 23 additional sub-questions once further issues had been factored in, making a grand total of 101 issues, a definite record for this List. On that basis it feels like a bit of a collective achievement to have winnowed that down to single digits with only 9 questions for reference which will be set out in this judgment.

Procedural history

7 . The proceedings were initiated in the judicial review list on 31st May 2022.

8 . Under the procedures then operative, leave had not been granted in the judicial review list in the 6-month period between May and November 2022.

9 . A motion to admit the case to what is now the Planning and Environment List was issued, returnable for 7th November 2022, and was granted on that date. Liberty to file an amended statement of grounds was also granted having regard to the pleading requirements in the List.

10 . On 21st November 2022, representatives of the Irish Farmers Association were added as notice parties on the basis of being represented by a single legal team. The second named respondent (Ecological Assessment Unit) was struck out on the grounds of not being a legal entity and as being already covered by having named the relevant Minister. Relief 4 ( certiorari of the appropriate assessment as distinct from the actual plan) was struck out on the basis that it was unnecessary to be claimed as a separate relief and would be deemed included in the overall claim for certiorari. The approach to be taken with the main relief was that a declaration of invalidity would normally be the appropriate relief for a measure of general application (like a statute, statutory instrument, or policy document), but certiorari could be claimed as a fall-back (this principle is now reflected in Practice Direction HC126.)

11 . On 5th December 2022 I granted leave on the basis of allowing a further minor amendment to the statement of grounds. The Irish Creamery Milk Suppliers Association was also added as a notice party through its trustees.

12 . The substantive notice of motion was returnable for 19th December 2022, at which point directions were made for exchange of papers. The State's opposition was directed to be filed by 20th February 2023, but in fact was not filed until 8th March 2023. Opposition by the notice parties was filed on 31st March 2023 and 27th April 2023, and there were then further exchanges of affidavits which went on until 17th July 2023. A hearing date commencing on 12th December 2023 was fixed and the matter was heard beginning on that date.

13 . The case was in effect modularised so that the initial module related primarily to the large number of pleading and evidential objections. The hearing concluded on 15th December 2023, following which the matter was adjourned to the following Monday 18th December 2023, to finalise the issue paper (that finalised version is set out in Schedule I to this judgment). The parties were permitted to file supplementary written submissions in a sequence (the State by 26th January 2024, notice parties by 2nd February 2024, and the applicant by 13th February 2024) to be completed by a mention date on 19th February 2024. The final submissions were in fact delivered on the morning of the latter date, at which point judgment was reserved. The No. 1 judgment was then delivered on 6th March 2024.

14 . As envisaged in the No. 1 judgment, written submissions on Module II were invited from all parties on the issues in the updated issue paper. An oral hearing was then held on 9th April 2024 when judgment was reserved.

15 . The No. 2 judgment was delivered on 1st May 2024.

16 . Subsequent to the No. 2 judgment, the applicant, State and ICMSA delivered written submissions on the present module. The IFA decided not to make a written submission in this module but did helpfully attend and contributed economically to the hearing for the present module.

17 . That oral hearing was held on Wednesday 26th June 2024, following which the parties asked for and were given liberty to file further submissions clarifying certain issues (the historical and current position regarding assignment of status to water bodies, and the extent to which mootness or pleading issues would be raised). Judgment was thus in essence reserved subject to receipt of these further clarifications, which were to be delivered by 3rd, 5th and 11th July respectively.

18 . The State required further time for its response and a supporting affidavit, and delivered that response on 8th July 2024. That response sets out further important evidential material for present purposes. The IFA and ICMSA replied in line with the State's position. The applicant then outlined its position on 16th July 2024 in a submission to which I will refer later. That intimated a possible amendment but no formal application was made. I can only work off what I have at any given time.

19 . Separately and to an extent simultaneously the court sought clarification from the parties on 12th July 2024 as to the extent, if any, of disagreement in relation to remedies and discretion. In response the State and ICMSA made further submissions on 17th July 2024, which was the deadline requested by the court. In the absence of a reply from the IFA, the court informed the parties that any further reply would need to be sent by 18th July 2024. The IFA indicated that they would do so but in fact nothing was received. The List Registrar then wrote on 19th July 2024 stating that “as nothing was received from the Irish Farmers Association (IFA) by the deadline set by the Court, the Court will assume that there are no further issues for determination and will proceed to give judgment, indicatively in the next week or so”. In circumstances where judgment had already been reserved over 3 weeks previously subject to final clarifications, a court has to be allowed to proceed on the basis that if parties don't take up the opportunity to raise issues that there are no such issues. Silence is acquiescence in many contexts and this is one of them. For the avoidance of doubt there is no problem with the IFA not contributing, but I simply want to make clear that not contributing means the process moves on, not that a party can hypothetically lie doggo and keep their powder dry for some future unheralded skirmish. I have no doubt that the latter is not the IFA's intention and that the non-response is merely because they don't have any additional issue to add, which is of course totally legitimate, but best to be clear about the procedure pour encourager les autres. That procedure is particularly important where the court is considering a reference to the CJEU, in which context massive prejudice would be caused to all other participants if a given party hypothetically did not put its European propositions on the table so that the court could form a unitary view of the case on the basis of all relevant issues of EU law. The alternative is that new European points could be hoarded to be launched later on in the case with the possibility of a second or subsequent reference. That would be an inappropriate procedure.

Relief sought

20 . The relief...