Brady v Environmental Protection Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 09 March 2007
• Neutral Citation: [2007] IEHC 58
• Court: High Court
• Docket Number: [1999 No. 473 JR
• Date: 09 March 2007

[2007] IEHC 58

THE HIGH COURT

[No. 473 JR/1999]

BRADY v ENVIRONMENTAL PROTECTION AGENCY

JUDICIAL REVIEW

BETWEEN

D ÓNAL BRADY

APPLICANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(7)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 PART IV

LOCAL GOVERNMENT (WATER POLLUTION) ACT 1977 S10

LOCAL GOVERNMENT (WATER POLLUTION) ACT 1977 S11

LOCAL GOVERNMENT (WATER POLLUTION)(AMDT) ACT 1990 S20

AIR POLLUTION ACT 1987 S28(a)

AIR POLLUTION ACT 1987 S28(b)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S9

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S7

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S108

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S107(6)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S108(2)

EUROPEAN COMMUNITIES (GOOD AGRICULTURAL PRACTICE FOR PROTECTION OF WATERS) REGS 2006 SI 378/2006 PART II

EUROPEAN COMMUNITIES (GOOD AGRICULTURAL PRACTICE FOR PROTECTION OF WATERS) REGS 2006 SI 378/2006 PART III

EUROPEAN COMMUNITIES (GOOD AGRICULTURAL PRACTICE FOR PROTECTION OF WATERS) REGS 2006 SI 378/2006 PART IV

EUROPEAN COMMUNITIES (GOOD AGRICULTURAL PRACTICE FOR PROTECTION OF WATERS) REGS 2006 SI 378/2006 PART V

EEC DIR 75/442 ART I

EEC DIR 91/156

EEC DIR 75/442 ANNEX I

EEC DIR 75/442 ANNEX II(a)

EEC DIR 75/442 ANNEX II(b)

EEC DIR 75/442 ART II(1)(b)(iii)

CRIMINAL PROCEEDINGS AGAINST VESSOSO & ZANETTI 1990 ECR I-01461

CRIMINAL PROCEEDINGS AGAINST EURO TOMBESI, TOMBESI, SANTELLA, MUZI & ORS 1997 ECR I-03561

INTER-ENVIRONEMENT WALLONIE v REGION WALLONNE 1997 ECR I-07411

ARCO CHEMIE NEDERLAND LTD v MIN VAN VOLKSHUISVESTING, RUIMTELIJKE ORDENING ENMILIEUBEHEER & VERENIGING DORPSBELANG HEES, STICHTING WERKGROEP WEURT + & VERENIGING STEDELIJK LEEFMILIEU NIJMEGEN v DIRECTEUR VAN DE DIENST MILIEU EN WATER VAN DE PROVINCIE GELDERLAND 2000 ECR I-04475

PALIN GRANIT OY & VEHMASSALON KANSANTERVEYSTYON KUNTAYHTYMAN HALLITUS 2002 ECR I-03533

COMMISSION OF THE EUROPEAN COMMUNITIES v KINGDOM OF SPAIN 2005 I-07569

EEC DIR 91/676

EEC DIR 75/442 ART II(1)

TREATY OF ROME ART 174(2.2)

KRAMER EC ENVIRONMENTAL LAW 5ED 2003

BROWNE v AG & MIN MARINE & O'CONNOR 2003 3 IR 205 2003/7/1351

WASTE MANAGEMENT ACT 1996 S3

WASTE MANAGEMENT ACT 1996 S51

WASTE MANAGEMENT ACT 1996 S39

EEC DIR 75/442 ART II

COMMISSIONERS OF CUSTOMS & EXCISE v MIRROR GROUP PLC 2001 ECR I-07175

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S52

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(3)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 PART IV SCHED I

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84

TREATY OF ROME ART 10

CONSTITUTION ART 29

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87

ENVIRONMENTAL PROTECTION AGENCY (LICENSING)(AMDT NO 2) REGS 1996 SI 240/1996

HANRAHAN FARMS LTD v ENVIRONMENTAL PROTECTION AGENCY & ORS 2006 1 ILRM 275 2005/28/5867 2005 IEHC 249

R v CITY OF SAULT STE MARIE 1978 85 DLR 3D 161

SHANNON REGIONAL FISHERIES BOARD v CAVAN CO COUNCIL 1996 3 IR 267 1996/15/4588

C (C) & G (P) v IRELAND & ORS UNREP SUPREME 12.7.2005 2005/7/1439 2005 IEHC 48

R v PRINCE 1875 13 COX CC 138

B (A MINOR) v DPP 2000 2 AC 428

Abstract:

Planning & Environment - Statutory interpretation - Waste Management - Words and phrases - "Waste" - Environmental protection - Applicant granted licence for industrial production and sale of slurry with conditions requiring him to monitor and control its spreading after sold on to third party - Whether slurry intended for land spreading "waste" - Whether conditions imposed on licensee ultra vires - Council Directive 75/42/EC, articles 1 and 2 - Environmental Protection Agency Act 1992, section 3 - Waste Management Act 1996, section 4.

Council Directive 75/442/EC was passed to further the objective of ensuring that waste disposal had to be effected so as to protect human health and the environment. The applicant was granted an integrated pollution control licence under the Environmental Protection Agency Act 1992, as amended, and the Waste Management Act 1996 for the production of pig slurry and sale or gift of it to other farmers in industrial quantities by the respondent. Attached to the licence were conditions imposing criminal liability on the licensee and which required him to monitor and control land spreading of the slurry. The applicant sought to quash the conditions imposed on the basis that they were ultra vires the statutory powers of the respondent in that, inter alia, once he had sold on the slurry to other farmers, he had no control of and could not be reasonably expected to control how it was to be used thereafter.

Held by Mr Justice Charleton in declaring the licence and conditions attached thereto to be lawful: 1. that the nature of waste depended on the type of substance in question and the use to which it was .proposed to be put or was actually put.

2. By its inherent dangerousness and because it was more than animal faeces dropped while grazing or feeding, pig slurry could not be regarded as having been excluded from art. 2(1) of Council Directive 75/442, as amended.

3. That, by reason of the fact that special environmental precautions had to be taken when pig slurry was used as fertiliser, that that constituted evidence that the substance required to be discarded.

4. That for such a substance not to be classifiable as waste, its reuse had to be both certain and lawful.

5. That such disposal had to take place under regulations prescribed for good agricultural practice.

6. That the national definition of "waste" contained in section 4 of the Waste Management Act 1996, which excluded slurry, did not materially alter the description of that concept in European law and that exclusion had to be given a narrow definition so as not to undermine the purpose of effect of a European Directive.

7. That under Article 10 of the Treaty of Rome and Article 29 of Bunreacht na hÉireann, the court was obliged to define the concept of "waste" in the same way as defined by Council Directive 75/442/EC, as amended. In the event of any ambiguity, the interpretation of national legislation had to provide for the State's European obligations.

8. That despite the wide powers given to the respondent through the Act of 1992, as amended, an administrative body was not entitled to impose arbitrary conditions on a licensee.

9. That for a licence condition to be valid it had to be within the powers of the issuing authority, such condition had to be imposed for the purpose for which the power to grant conditions was specified and it had to be reasonably related to the activity that was to be permitted in the avoidance of the harm for which licensing of an activity was required by legislation.

10. That the focus of section 83, combined with section 52, of the Act of 1992 was to impose an obligation on the agency to ascertain from the most reliable sources what the effects of particular activities and the disposal of particular substances could have on the environment.

11. That the Waste Management Act 1996 and the Environmental Protection Agency Act 1992 could go further in terms of the protections in favour of the environment that they impose than what was required by European legislation, provided that in so doing no other provision of European law was infringed.

12. That the applicant was not faced with absolute or strict liability for the commission of a criminal offence.

13. Accordingly, the slurry being produced by the applicant was waste within the meaning of article 1 of Council Directive 75/42/EC, as amended, the disposal of which constituted the disposal of waste within the meaning of section 3 of the Act of 1992 and the conditions attached thereto were within the powers of the respondent and reasonably related to the activity licensed.

Reporter: P.C.

Introduction

1 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 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 3. The applicant...