Brady v The Environmental Protection Agency, [2007] IEHC 58 (2007)

Docket Number:1999 473JR
Judge:Charleton J.
 
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THE HIGH COURT

JUDICIAL REVIEW[1999 No. 473 JR]BETWEENDÓNAL BRADYAPPLICANTAND

THE ENVIRONMENTAL PROTECTION AGENCYRESPONDENTJUDGMENT of Mr. Justice Charleton delivered the 9th day of March,_2007

Introduction

1. The applicant owns an intensive pig farm near Edgeworthstown, County Longford. He has 2000 sows, together with their progeny. At any particular time somewhat less than 25% of those sows will have piglets suckling on them. Of the pigs born, about 10% die naturally and the rest are reared for fattening. This results in him having around 10,000 pigs, I am told, in a purpose built facility which is called Carrick Boy Farms.

2. These pigs produce an enormous amount of effluent which, on the evidence before me, I am satisfied exceeds that of a similar human population and is many times more toxic in terms of its bacteriological and viral content and the potential that it carries for pollution. In this country, the organic load generated by agricultural livestock, is said to be equivalent to that of a human population of sixty-eight million persons. This applicant produces somewhere in the region of 30,000 m3 of pig slurry per year. If this is not properly dealt with, it can result in pollution to the environment by way of odour and water contamination. Odours are unpleasant but usually amounted to no more than a nuisance. Pig slurry is 80 times more polluting than untreated human sewage and 1,000 times more polluting than treated sewage. Pig slurry contains pathogens which are harmful to human health. The micro-organisms in it have a high demand for oxygen. In consequence, if pig slurry is discharged in quantity into water systems, the resultant micro-biological action consumes the natural oxygen content of the water. The result can be fish kills together with the growth of undesired plant species. The relevant pathogens in pig slurry include viruses that can live for up to 170 days in ground water. The bacterial count in every gram of pig slurry is counted in millions whereas the national standard for drinking water is zero. Pig slurry is also a valuable fertilizer and is particularly good at replenishing the nutrients in grassland.

Issues

3. The applicant holds an integrated pollution control licence; which is reference No. 408 of the 28th October, 1999. This enables him to carry on the business of industrial-scale pig farming subject to strict conditions. He seeks an order quashing the decision of the respondent to grant that licence and asks the court to remit his application to the respondent so that the matter can be determined "in accordance with the requirements of the Environmental Protection Agency Act, 1992".

4. The applicant applied for his licence on the 9th March, 1998. A draft licence was issued on the 29th May, 1999. On receiving this draft licence, the applicant was aggrieved. Many of its features were repeated when the licence was issued. He had submitted details with licence application as to how he proposed to deal with the pig slurry he produces. He had constructed on his land a number of large storage tanks, which have now a capacity equivalent to his entire annual output. He had entered into agreements with a number of neighbouring farmers that they would take this pig slurry to use it as an organic fertilizer. These lands amounted to, in total, just under 6,000 acres.

5. The applicant is required by the terms of his licence to make sure that these farmers use the pig slurry properly, so that it does not cause pollution. The applicant says that whereas he can control his own operation in his own farm, he would find it impossible to ensure that the pig slurry accepted by these farmers was dealt with in an acceptable way. He argues that the respondent has no power to do anything other than regulate his operation; which operation ends at the perimeter of his premises. Any condition to the licence which he holds that he should monitor the activities of any local farmer accepting, or buying, the pig slurry from him as an organic fertilizer is, it is argued, unlawful because the powers of the Environmental Protection Agency do not extend to imposing such a condition. Even more fundamentally, it is argued that pig slurry is not waste but is organic fertilizer; a substance which, it is claimed, the respondent has no power to regulate in terms of its disposal.

6. I now quote some selected portions of the licence with which the applicant asserts he has the most severe problems:-"5.5.4. Landspreading shall not take place on land identified in schedule 3(iv) lands where land spreading of organic waste from this facility are excluded.

5.5.7. The licensee shall ensure that no slurry/manure from the facility to which this licence relates is provided to lands in the land bank which receive waste from lands spreading from any other off-farm source which are not included in the Nutrient Management Plan, other than by agreement with the Agency.

5.5.9. All land spreading activities shall be undertaken in accordance with a Nutrient Management Plan which must be agreed with the Agency and submitted not later than six months from date of grant of this licence and each calendar year thereafter as part of the AER.

5.5.10. The applicant shall provide a copy of the REPS plans for all farms identified in the land bank which are included in the REPS scheme, to the Agency, within six months of the date of grant of the licence.

5.5.11. Landspreading shall be carried out in accordance with schedule 3(v) buffer zones for land spreading of organic waste and schedule 3(iv) code of practice for land spreading of organic waste. All land spreading activities shall be carried out in such a manner as to avoid contamination of surface and ground waters, and so as to minimise odour nuisance from the activity.

5.5.13. A register of land spread slurry/manure ("slurry/manure register") shall be maintained on site on a daily basis and shall be available for inspection by authorised personnel of the Agency at all times. The register shall include details of … date of slurry … spreading, contractor… spreading slurry… weather and ground conditions … nutrient requirements for individual fields … volumes of slurry … applied.

7.1.5. The licensee shall within twelve months of the date of grant of this licence submit to the Agency for agreement the surface water monitoring programme for surface waters which bisect the land spread areas. The results generated by the agreed programme are to be reported annually as part of the AER."

7. A number of affidavits have been exchanged in these proceedings and some relevant scientific papers have been exhibited. The core point in this judicial review application, however, is well summarised in the affidavit of Dr. Vincent Flynn, an agricultural advisor, which was sworn on the 17th November, 2006:-"… it appears that the Agency does in fact seek to control holdings outside the licensable installation and occupiers of holdings that are not licensable holdings. I say that the Agency appears in the impugned licence to require the applicant to accept a condition or conditions in his licence that would somewhat result in the applicant having a level of control over the customer farmer's lands to enable them to carry out a scientific evaluation of the nutrient status of their lands and to take responsibility for implementing a fertilising regime on those lands based on such evaluation… [the respondent] appears to be concerned that if a farmer having purchased such animal manure proceeds to spread it and subsequently causes pollution that it is the applicant who is responsible and I say that this is I say and believe and dealt with by other legislation and is a matter over which the producer of the animal manure can have no control and in effect what the Agency are seeking to do is to make the applicant responsible for the acts of third parties."

Consequences

8. Section 84(2) of the Environmental Protection Agency Act, 1992 provides that it is an offence not to comply with any condition attached to a licence, or a revised licence. Section 83(7) provides that it is a good defence to a prosecution under any enactment, apart from Part IV of the Environmental Protection Agency Act, 1992, or to proceedings pursuant to ss. 10 or 11 of the Local Government (Water) Pollution Act, 1977, s. 20 of the Local Government (Water Pollution) (Amendment) Act, 1990 or s. 28A or s. 28B of the Air Pollution Act, 1987 to prove that the Act complained of was authorised by a licence or a revised licence granted under that Act. No other relevant defence is provided under the Environmental Protection Agency Act, 1992 or the Waste Management Act, 1996. Section 9 of the Environmental Protection Agency Act 1992, provides that a person guilty of an offence under this Act is liable on summary conviction to imprisonment for up to twelve months and a fine not exceeding IR£1,000 and is liable on conviction on indictment to a fine not exceeding IR£10,000,000 or to imprisonment for a term not exceeding ten years.

9. The applicant claims that the terms of the licence means that once there is a breach by a third party, he becomes criminally liable. In imposing the penalty, the Court has to have regard to the risk, or extent of damage, to the environment arising from the act or omission constituting the offence. A further contravention after conviction constitutes a separate offence. Curiously, were the applicant to be prosecuted in respect of noise pollution under s. 7 of the Environmental Protection Agency Act, 1992, or for a nuisance in respect of noise under s. 108 of the same Act, then both s. 107(6) and s. 108(2) provide that it is a good defence, but only in relation to such prosecutions, for the accused to show that he took reasonable care. No such defence otherwise exists in general terms under the Act. This is what the applicant faces should the conditions attached to his licence be breached; he argues without his...

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