An Taisce The National Trust for Ireland v The Minister for Housing, Local Government and Heritage and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 06 March 2024
• Neutral Citation: [2024] IEHC 129
• 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 129

[H.JR.2022.0000458]

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDGMENT of Humphreys J. delivered on Wednesday the 6th day of March, 2024

1 . In these proceedings, An Taisce challenges the validity of Ireland's Nitrates Action Programme and related matters. As well as a full defence on the merits, the State, supported by the IFA and ICMSA, has deposited an unprecedented volume of pleading-type objections into the case, so much so that modularisation is required. Even dealing with the first module is requiring a judgment of 92,375 words, the length of a respectable PhD thesis, albeit without quite the same claim to originality. The question to be considered now is whether this indiscriminate scattershot of pleading objections is meritorious.

Legal context – the nitrates directive

2 . Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (“the nitrates directive”) is described by the European Commission as an instrument that “aims at protecting water quality across Europe by reducing and preventing ground and surface water pollution caused by nitrates from agricultural sources, including by promoting the use of good farming practices and adopting Action Programmes.” (FAQ note on the links between the Nature Directives and the Nitrates Directive Final document October 2019: https://www.ecologic.eu/sites/default/files/publication/2019/3535-_nature-directives.pdf).

3 . Article 3 of the nitrates directive 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.”

4 . It can be noted on the last point that Ireland has chosen the “national territory” option — European Communities (Protection of Waters against Pollution from Agricultural Sources) Regulations, 2003 (S.I. No. 213).

5 . Article 4 envisages codes of good agricultural practice:

“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.”

6 . Article 5 of the directive goes on to provide for nitrates action programmes:

“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.”

7 . Annex III, specifying the content of programmes, 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 types of fertilizer is prohibited;

2. the capacity of storage vessels for livestock manure; this capacity must exceed that required for storage throughout the longest period during which land application in the vulnerable zone is prohibited, except where it can be demonstrated to the competent authority that any quantity of manure in excess of the actual storage capacity will be disposed of in a manner which will not cause harm to the environment;

3. limitation of the land application of fertilizers, consistent with good agricultural practice and taking into account the characteristics of the vulnerable zone concerned, in particular:

(a) soil conditions, soil type and slope;

(b) climatic conditions, rainfall and irrigation;

(c) land use and agricultural practices, including crop rotation systems;

and to be based on a balance between:

(i) the foreseeable nitrogen requirements of the crops,

and

(ii) the nitrogen supply to the crops from the soil and from fertilization corresponding to:

— the amount of nitrogen present in the soil at the moment when the crop starts to use it to a significant degree (outstanding amounts at the end of winter),

— the supply of nitrogen through the net mineralization of the reserves of organic nitrogen in the soil,

— additions of nitrogen compounds from livestock manure,

— additions of nitrogen compounds from chemical and other fertilizers.

2. These measures will ensure that, for each farm or livestock unit, the amount of livestock manure applied to the land each year, including by the animals themselves, shall not exceed a specified amount per hectare.

The specified amount per hectare be the amount of manure containing 170 kg N. However:

(a) for the first four year action programme Member States may allow an amount of manure containing up to 210 kg N;

(b) during and after the first four-year action programme, Member States may fix different amounts from those referred to above. These amounts must be fixed so as not to prejudice the achievement of the objectives specified in Article 1 and must be justified on the basis of objectives criteria, for example:

— long growing seasons,

— crops with high nitrogen uptake,

— high net...