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: 02 July 2021
• Neutral Citation: [2021] IEHC 422
• Docket Number: [2020 No. 566 JR]
• Court: High Court

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 422

[2020 No. 566 JR]

THE HIGH COURT

JUDICIAL REVIEW

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 2nd day of July, 2021

1 In An Taisce v. An Bord Pleanála (No. 1) [2021] IEHC 254, ( [2021] 4 JIC 2003 Unreported, High Court, 20th April, 2021), I dismissed an application for judicial review of a planning permission for the notice party's proposed cheese manufacturing facility.

2 The applicant now seeks leave to appeal under s. 50A(7) of the Planning and Development Act 2000 and in that regard I have given consideration to the caselaw on leave to appeal, including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, [2006] 7 JIC 1302 (Unreported, High Court, MacMenamin J., 13th July, 2006), Kenny v. An Bord Pleanála (No. 2) [2001] I.R. 704, Dublin City Council v. An Bord Pleanála [2021] IEHC 34, ( [2021] 1 JIC 2801 Unreported, High Court, 28th January, 2021), Dublin Cycling Campaign CLG v. An Bord Pleanála (No. 2) [2021] IEHC 146, [2021] 2 JIC 2508 (Unreported, High Court, McDonald J., 25th February, 2021) and Heather Hill Management Company CLG v. An Bord Pleanála [2019] IEHC 820, [2019] 12 JIC 0502 (Unreported, High Court, Simons J., 5th December, 2019).

Issue 1: scientific certainty

3 The applicant's first proposed point of law of exceptional public importance on which leave to appeal is sought is “[w]hether, in the absence of scientific evidence placed before the Board to contradict the Natura Impact Statement submitted by the developer, the Applicant was precluded from contending that the Board's assessment under Article 6(3) of the Habitats Directive failed to remove all reasonable scientific doubt as to the effects of the proposed development on the protected sites concerned.”

4 In raising this point, the applicant has over-interpreted para. 26 of the judgment. That paragraph reads as follows: “In the present case the main consequence of not having pursued the point in the planning process is that there was no scientific evidence put before the board to contradict the Natura Impact Statement. Consequently, it cannot be maintained now that the board acted in a way which left open scientific doubt when there was no such doubt on the materials which it had.”

5 That does not mean that no applicant who does not produce its own evidence can challenge a Natura Impact Statement (NIS). It just means that this particular applicant cannot because there was not otherwise before the board any “materials which it had” that left open scientific doubt. Those materials could include materials put before the board by the developer and by other parties. For the avoidance of doubt, the board is not obliged to accept an NIS simply because it is uncontradicted. The NIS could have inherent flaws on its face, but I didn't expressly say that at para. 26 of the No. 1 judgment because that was not demonstrated here and, therefore, was not relevant. You can't cover everything.

6 This concept of looking at the totality of material before the board in any event emerges clearly from para. 29 of the judgment, so the applicant's point here is unfortunately a mischaracterisation of the judgment.

7 Nor is it correct to say, as the applicant puts it in submissions, that “the Judgment requires all would-be participants in the planning process to identify, commission and fund the necessary scientific evidence identifying deficiencies in the Developer's NIS”. Rather, the requirement, if an applicant wants to make a point about scientific doubt, is to do any one of three things:

• (i). bring forward something raising doubt within the process itself;

• (ii). point to something raising doubt that was brought forward by somebody else; or

• (iii). establish evidentially in the judicial review that the developer's material even if uncontradicted would on its face have created doubt in the mind of a reasonable expert.

8 If an applicant fails to do any of those things, it does not really have a valid complaint if its proceedings are dismissed. It is not unfair that an applicant is required to point to evidence for its complaints. This is consistent with the decisions of McDonald J. in Sliabh Luachra Against Ballydesmond Windfarm Committee v. An Bord Pleanála [2019] IEHC 888, ( [2019] 12 JIC 2017 Unreported, High Court, 20th December, 2019), at para. 35 and Dublin Cycling Campaign CLG v. An Bord Pleanála [2020] IEHC 587, ( [2020] 11 JIC 1906 Unreported, High Court, 19th November, 2000), at paras. 137 and 138.

9 There is no conflict with Kelly v. An Bord Pleanála [2014] IEHC 400, [2014] 7 JIC 2503 (Unreported, High Court, Finlay Geoghegan J., 25th July, 2014), because that was a case where there was scientific doubt on the basis of materials before the board. Consequently, the No. 1 judgment does not, as alleged at para. 12 of the applicant's submissions here, “switch the burden of proof”. Placing the burden on the applicant (in the sense of a burden to demonstrate the problem, as opposed to proving it by the applicant's own evidence alone) is placing it in line with existing jurisprudence. That is not a “switch”.

Issue 2: indirect environmental effects

10 The applicant's second proposed point of law of exceptional public importance is “[w]hether the indirect environmental effects of the project, including those due to the production of milk, are within the scope of the assessment required by Article 2(1) of the EIA Directive and Section 172(1) of the 2000 Act”. Overall I see little need for further appellate clarification of this point given the Supreme Court's judgment in Fitzpatrick v. An Bord Pleanála [2019] IESC 23, [2019] 3 I.R. 617, but in fairness to the applicant's submissions, I will try to deal with the point in more detail.

11 The applicant contended that the effects of milk production were indirect effects of the project and should have been assessed in more detail. I disagreed because I thought they were too remote. The applicant contends that the wording of the No. 1 judgment went further than what the board contended. That was slightly surprising because that hadn't been intended. What I had been trying to do was to accept the submission from the board insofar as it agreed that “it hasn't been established that the demand for raw materials for this project will increase production or, if so, by how much … and therefore you don't have to assess the … effects” (Day 2 p. 132).

12 That's another way of saying that the production is too remote from the project to require assessment. If that is a complete answer, then there wasn't an obligation to consider the effects of production at a general level, so I really don't think the judgment was meant to go any further than the board's submission.

13 That doesn't mean that production could never be sufficiently proximate as to require assessment – just that that hasn't been demonstrated here, either by reference to the relationship between the production and the project or by reference to expert economic evidence.

14 A relationship whether functional, legal or otherwise between a given project and some other project or activity including, but by no means limited to, a process of project-splitting, can require a broader definition of the “project” for the purposes of both environmental impact assessment and appropriate assessment.

15 There were, however, no such factors demonstrated here, and hence the decision in An Taisce v. An Bord Pleanála [2015] IEHC 633, [2015] 10 JIC 0907 (Unreported, High Court, White J., 9th October, 2015), where the power plant the subject of the permission was connected to bogs by a dedicated railway network, thus giving rise to a direct environmental consequence at those bogs, is simply not relevant. Here, the milk production for the factory is to be carried out on around 4,500 unidentified farms located across the east of Ireland which may vary from year to year. While conscious of the An Taisce v. An Bord Pleanála decision, I regarded the factual context there as so clearly different as just not to be relevant here and thus as not necessitating discussion. However, I had better make that explicit now in order to assist the applicant.

16 The applicant now contends (in a formulation that isn't hugely familiar from its submission the first time round, but maybe that's my misunderstanding) that, in effect, even if the production is too remote to be part of the project, its effects are still indirect effects of the project. On foot of that submission it accuses the No. 1 judgment of confusing the project and its effects. This is the sort of Jesuitical distinction that lawyers love, but I am not altogether sure that it makes complete sense. Even assuming arguendo that it does, it isn't relevant here because the effects are too remote.

17 Finally, the applicant says the judgment is unclear if it means that the only effects that need assessment are site-specific ones. I agree that if you strip out the context and implied assumptions, the wording could lend itself to that interpretation, but that isn't the case. If the effects concerned are effects of the project, then they do require assessment whether they are site-specific or not. The No. 1 judgment should be read as subject to that clarification. But that doesn't help the applicant here because I didn't think the effects were effects of the project. Even if I'm wrong in that, it is an error in the application of the law to the facts, not a point of law in itself.

Issue 3: collateral attack

18 The applicant's third proposed point of...