An Taisce — The 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: Humphreys J.
• Judgment Date: 20 April 2021
• Neutral Citation: [2021] IEHC 254
• Docket Number: [2020 No. 566 JR]
• Court: High Court
• Date: 20 April 2021

Between

An Taisce — The National Trust for Ireland

Applicant

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

[2021] IEHC 254

[2020 No. 566 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning and development – Environmental impact – Judicial review – Applicant seeking certiorari of the respondent’s decision to grant permission to construct a cheese manufacturing plant and associated works and infrastructure – Whether the respondent’s decision was invalid due to the respondent’s failure to conduct an assessment of the upstream impacts of milk production

Facts: The notice party, Kilkenny Cheese Ltd, applied for permission to construct a cheese manufacturing plant and associated works and infrastructure at Belview Science and Technology Park, Gorteens, Slieverue, Co. Kilkenny. Kilkenny County Council decided to grant permission for the development on 14th November, 2019. The applicant, An Taisce – the National Trust for Ireland, appealed the permission to the first respondent, An Bord Pleanála, on 11th December, 2019. A major issue in the appeal was that meeting the State’s climate targets required reducing the national herd of cows and not increasing it and that the dairy industry overall was unsustainable due to the adverse environmental impacts created. The board’s inspector made a favourable report on 15th June, 2020. The board issued a direction to grant permission generally in accordance with the inspector’s report and made a formal decision to do so on 30th June, 2020. A statement of grounds was filed on 13th August, 2020. The primary relief sought was certiorari of the board’s decision. Simons J granted leave on 23rd November, 2020. The matter was later struck out as against the State respondents, the Minister for Communications, Climate Action and the Environment, Ireland and the Attorney General, with no order as to costs, and proceeded before the High Court (Humphreys J) only as against the board and notice party. The main point in the case was the scope of the duty to assess the indirect effects of a project for the purposes of art. 3 of the EIA directive (2011/92/EU) and art. 6(3) of the habitats directive (92/43/EEC).

Held by Humphreys J that the decision was not invalid due to the board’s failure to conduct an assessment of the upstream impacts of milk production, even where the board did consider such matters at the broad level, which it was not obliged to do. Humphreys J held that effects of raw material production where such production is sufficiently removed from the project as not to be capable of assessment in site-specific terms are not to be considered part of the project for the purposes of EIA or AA. Humphreys J held that such effects need to be considered on a more programmatic basis and hence lie outside the direct purview of grounds for challenging an individual planning decision.

Humphreys J held that the application would be dismissed and that the parties would be directed to liaise with the List Registrar to have the matter listed on the next convenient Monday with a view to addressing any consequential matters.

Application dismissed.

JUDGMENT of Humphreys J. delivered on Tuesday the 20th day of April, 2021

1 The notice party developer is a joint venture between Glanbia Ireland and a Dutch company, Royal A-Ware. It applied for permission to construct a cheese manufacturing plant and associated works and infrastructure at Belview Science and Technology Park, Gorteens, Slieverue, Co. Kilkenny.

2 According to the non-technical summary of the environmental impact assessment report, 450 million litres of milk per year will be required for the proposed development from 2022 onwards, of which approximately 20% is already in circulation. The milk required will equate to approximately 4.5% of the milk pool projected to be available in Ireland in 2025. The milk will be sourced from Glanbia's own milk suppliers, 4,500 farms in the eastern part of the country. Some 75% of these farms have streams or watercourses running through or adjacent to their lands and only 57% have nutrient management programmes to mitigate water quality deterioration. A significant portion of the milk supply for the plant is already available and being sold to other processers.

3 The applicant, An Taisce – the National Trust for Ireland, is a statutory consultee and made a submission to the planning authority on 23rd October, 2019.

4 Kilkenny County Council decided to grant permission for the development on 14th November, 2019.

5 Following the council's decision, the applicant appealed the permission to the board on 11th December, 2019. A major issue in the appeal was that meeting the State's climate targets requires reducing the national herd of cows and not increasing it and that the dairy industry overall is unsustainable due to the adverse environmental impacts created.

6 The board's inspector made a favourable report on 15th June, 2020 in which she refers to a number of national policies at section 5:

• (i). the National Spatial Strategy 2002 to 2020;

• (ii). the National Planning Framework 2018; and

• (iii). “Food Wise 2025” succeeding “Food Harvest 2020” a growth plan for the agri-food sector which involves a significant increase in primary production.

7 She also referred to regional and local plans. Under the heading of Climate Change, at para. 6.2.12 she referred to:

• (i). the National Mitigation Plan which was subsequently quashed by the Supreme Court in Friends of the Irish Environment v. The Government of Ireland [2020] IESC 49, [2020] 2 I.L.R.M. 233. It can be noted that the inspector also relied on the High Court decision in that case, Friends of the Irish Environment CLG v. The Government of Ireland [2019] IEHC 747 (Unreported, High Court, MacGrath J., 19th September, 2019), referenced at para. 8.7.3 of her report which was later reversed on appeal (perhaps I can note here that I held in Balscadden Road SAA Residents Association Ltd. v. An Bord Pleanála [2020] IEHC 586, ( [2020] 11 JIC 2501 Unreported, High Court, 25th November, 2020), that reliance on materials later quashed was a ground for challenging a decision, but the applicant didn't plead that point here and in fairness it would only have made a difference if the discussion on climate was something the inspector was obliged to engage in in this way, which I address below);

• (ii). the National Adaptation Framework 2018;

• (iii). the Climate Action and Low Carbon Development Act 2015;

• (iv). the Climate Action Plan, which she says at para. 8.7.2 was made under the 2015 Act, but that is not the case — it is a non-statutory plan made without a strategic environmental assessment.

8 While the Climate Action Plan wasn't quoted extensively by the inspector, it's worth recording that it notes that “the accelerating impact of greenhouse gas emissions on climate disruption must be arrested. The window of opportunity to act is fast closing, but Ireland is way off course … [w]e are close to a tipping point where these impacts will sharply worsen. Decarbonisation is now a must if the world is to contain the damage and build resilience in the face of such a profound challenge.” It goes on to address the use of a marginal abatement cost curve (MACC) to identify the most cost-effective pathway to reduce emissions in the different economic sectors (see p. 33). At pp. 98 to 99 it is noted that dairy products are “products with a high carbon footprint” and indicates that the State will work to meet food demand while contributing to climate commitments “including avoiding the perverse incentive to off-shore agricultural activity to less carbon-efficient production systems and locations”. At p. 105 the plan notes that “[w]hile existing policy measures have increased carbon efficiency to an extent, the expansion of the dairy and dry stock herds has exceeded those gains …”.

9 The inspector went on to address indirect effects of the development at para. 8.4.2 The effects on individual farms “would be too remote” as they are distributed over 4,500 dairy suppliers. National policy is also noted which envisages what the inspector seems to consider to be a modest increase in dairy farming.

10 She states at para. 8.6.3 that the supply of milk to the proposed development will not result in any additional emissions beyond what is currently projected by the government and that the appellant is challenging issues of policy outside the scope of the appeal.

11 She says at para. 8.7.3 that matters involving policy and political choices are for elected representatives.

12 At para. 8.8.1 she implies that the effects of production are too remote and at para. 8.8.2 says that the proposed development will not of itself drive increased milk production the expected increase in production sits within the national policy context and “aligns with national climate change policy”.

13 At para. 11.138 she says that “there is an indirect impact” from the development but that this is “expected to decrease by virtue of the production efficiency of the existing dairy herd and implementation of mitigation measures as outlined in the EIAR. Further these emissions are already accounted for and regulated through the National Climate Action Plan as part of dairy sector emissions. The proposed development will not directly or indirectly result in an increase of CO2 emissions proportionate to the required milk input. The impacts arising would be mitigated through compliance with both the Government and Glanbia's sustainability programmes as outlined in the EIAR which I have reviewed and consider reasonable.”

14 Under the heading of appropriate assessment, she noted at para. 12.2 that there were six European sites within 15 kilometres but considered that four of them...