An Taisce — The National Trust for Ireland v Minister for Housing and Others [No. 4]

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 30 July 2024
• Neutral Citation: [2024] IEHC 472
• 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 472

[H.JR.2022.0000458]

THE HIGH COURT

PLANNING & ENVIRONMENT

(No. 4)

JUDGMENT of Humphreys J. delivered on Tuesday the 30th day of July 2024

Subject-matter of the dispute

1 . This request for a preliminary ruling concerns the interpretation of Directives 91/676, 92/43, 2000/60 and 2001/42 and the validity of Commission Implementing Decision 2022/696.

2 . The request is being made in proceedings concerning a challenge by the applicant to the validity of Ireland's Fifth Nitrates Programme under Directive 91/676 and implementing measures, together with a challenge to the validity of Commission Implementing Decision 2022/696 which permits a derogation for Ireland which allows that, for each relevant farm or livestock unit, the amount of livestock manure applied to the land each year, including by the animals themselves, may exceed an amount of manure containing 170 kg N/ ha.

Legal context

European Union law

TEU

3 . Article 3(3) TEU provides:

“3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity among Member States.

It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced.”

4 . Article 4 TEU provides:

“Article 4

1. In accordance with Article 5, competences not conferred upon the Union in the Treaties

remain with the Member States.

2. The Union shall respect the equality of Member States before the Treaties as well as their

national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.”

TFEU

5 . Article 11 TFEU provides:

“Environmental protection requirements must be integrated into the definition and implementation of the Union's policies and activities, in particular with a view to promoting sustainable development.”

6 . Article 191(2) TFEU provides:

“2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.”

EU Charter of Fundamental Rights

7 . Article 37 provides:

“A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”

Directive 91/676 and Commission Implementing Decision 2022/696

8 . Article 3 of Directive 91/676 provides:

“1. Waters affected by pollution and waters which could be affected by pollution if action pursuant Article 5 is not taken shall be identified by the Member States in accordance with the criteria set out in Annex I.

2. Member States shall, within a two-year period following the notification of this Directive, designate as vulnerable zones all known areas of land in their territories which drain into the waters identified according to paragraph 1 and which contribute to pollution. They shall notify the Commission of this initial designation within six months.

3. When any waters identified by a Member State in accordance with paragraph 1 are affected by pollution from waters from another Member State draining directly or indirectly in to them, the Member States whose waters are affected may notify the other Member States and the Commission of the relevant facts.

The Member States concerned shall organize, where appropriate with the Commission, the concertation necessary to identify the sources in question and the measures to be taken to protect the waters that are affected in order to ensure conformity with this Directive.

4. Member States shall review if necessary revise or add to the designation of vulnerable zones as appropriate, and at last every four years, to take into account changes and factors unforeseen at the time of the previous designation. They shall notify the Commission of any revision or addition to the designations within six months.

5. Member States shall be exempt from the obligation to identify specific vulnerable zones, if they establish and apply action programmes referred to in Article 5 in accordance with this Directive throughout their national territory.”

9 . Article 4 provides:

“Article 4

1. With the aim of providing for all waters a general level of protection against pollution, Member States shall, within a two-year period following the notification of this Directive:

(a) establish a code or codes of good agricultural practice, to be implemented by farmers on a voluntary basis, which should contain provisions covering at least the items mentioned in Annex II A;

(b) set up where necessary a programme, including the provision of training and information for farmers, promoting the application of the code(s) of good agricultural practice.

2. Member States shall submit to the Commission details of their codes of good agricultural practice and the Commission shall include information on these codes in the report referred to in Article 11. In the light of the information received, the Commission may, if it considers it necessary, make appropriate proposals to the Council.”

10 . Article 5 provides:

“Article 5

1. Within a two-year period following the initial designation referred to in Article 3 (2) or within one year of each additional designation referred to in Article 3 (4), Member States shall, for the purpose of realizing the objectives specified in Article 1, establish action programmes in respect of designated vulnerable zones.

2. An action programme may relate to all vulnerable zones in the territory of a Member State or, where the Member State considers it appropriate, different programmes may be established for different vulnerable zones or parts of zones.

3. Action programmes shall take into account:

(a) available scientific and technical data, mainly with reference to respective nitrogen contributions originating from agricultural and other sources;

(b) environmental conditions in the relevant regions of the Member State concerned.

4. Action programmes shall be implemented within four years of their establishment and shall consist of the following mandatory measures:

(a) the measures in Annex III;

(b) those measures which Member States have prescribed in the code(s) of good agricultural practice established in accordance with Article 4, except those which have been superseded by the measures in Annex III.

5. Member States shall moreover take, in the framework of the action programmes, such additional measures or reinforced actions as they consider necessary if, at the outset or in the light of experience gained in implementing the action programmes, it becomes apparent that the measures referred to in paragraph 4 will not be sufficient for achieving the objectives specified in Article 1. In selecting these measures or actions, Member States shall take into account their effectiveness and their cost relative to other possible preventive measures.

6. Member States shall draw up and implement suitable monitoring programmes to assess the effectiveness of action programmes established pursuant to this Article.

Member States which apply Article 5 throughout their national territory shall monitor the nitrate content of waters (surface waters and groundwater) at selected measuring points which make it possible to establish the extent of nitrate pollution in the waters from agricultural sources.

7. Member States shall review and if necessary revise their action programmes, including any additional measures taken pursuant to paragraph 5, at least every four years. They shall inform the Commission of any changes to the action programmes.”

11 . Annex III is as follows:

“ANNEX III

MEASURES TO BE INCLUDED IN ACTION PROGRAMMES AS REFERRED TO IN ARTICLE 5 (4) (a) The measures shall include rules relating to:

1. periods when the land application of certain...