Friends of the Irish Environment CLG v The Government of Ireland and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 19 October 2023
• Neutral Citation: [2023] IEHC 562
• Court: High Court
• Docket Number: [H.JR.2021.888]

Between

Friends of the Irish Environment CLG

Applicant

and

The Government of Ireland, Minister for Agriculture, Food and The Marine, Ireland and The Attorney General

Respondents

[2023] IEHC 562

[H.JR.2021.888]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Appropriate assessment – Transposition – Applicant seeking judicial review – Whether a lack of transposition had been demonstrated

Facts: The applicant, Friends of the Irish Environment CLG, applied to the High Court seeking: an order of certiorari by way of application for judicial review quashing the strategy for the agriculture and marine sector entitled “Food Vision 2030” (FV2030) published on 3rd August 2021 and/or the decision of the respondents, the Government of Ireland, the Minister for Agriculture, Food and the Marine, Ireland and the Attorney General, to adopt, publish or otherwise approve FV2030; and a declaration that art. 5 of the European Communities (Access to Information on the Environment) Regulations 2007 inadequately transposes art. 7(1) of Directive 2003/4/EC on Public Access to Environmental Information (the AIE Directive). The third amended statement of grounds set out the following grounds: (1) FV2030 is invalid as it does not comply with the requirements of art. 12 (when read with art. 5(2) and Annex I) of the European Communities (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 and/or the respondents had regard to irrelevant considerations and/or failed to provide adequate reasons and/or acted irrationally and unreasonably; (2) FV2030 is invalid as it does not comply with the requirements of art. 17 of the 2004 Regulations; (3) FV2030 is invalid as the respondents erred in law in not subjecting the decision to replace Food Wise 2025 with Food Vision 2030 to assessment for the purposes of art. 9 of the 2004 Regulations; (4) FV2030 is invalid as the respondents erred in law in not subjecting FV2030 to any or any adequate Appropriate Assessment (AA) for the purposes of s. 177 of the Planning and Development Act 2000 and/or the respondents could not have screened out the possibility of significant effects on European Sites from FV2030 in the absence of Site Specific Conservation Objectives and Measures; (5) FV2030 is invalid as the respondents erred in law in characterising the assessments undertaken by the respondents for the purpose of the Strategic Environmental Assessment (SEA) Directive (2001/42/EC) and the Habitats Directive (1992/43/EC) as voluntary and/or devoid of legal consequence; and (6) the respondents have failed adequately to transpose art. 7(1) of the AIE Directive by failing to provide for active dissemination of environmental information as required by the Directive – the purported transposition set out in art. 5 of the 2007 Regulations does not achieve the objective in art. 7(1) of the Directive as it does not provide for such active dissemination.

Held by Humphreys J that, regarding ground 4, judged by reference to the pleadings, FV2030 is just too general and contains nothing relevant to any identifiable site that would allow an AA to be carried out by reference to the site’s conservation objectives. Regarding ground 5, he held that that which is valid does not become invalid merely because the person doing it is under the hypothetically erroneous impression that they are acting voluntarily rather than under compulsion. Regarding ground 1, he held that the test for SEA is set out in art. 3(2) of the SEA directive; insofar as para. (b) is concerned, success for the applicant under that heading was dependent on success under the AA heading, which did not arise; insofar as para. (a) is concerned, the critical point was the judgment of 9 March 2023, NJ v An Bord Pleanála, C-9/22, ECLI:EU:C:2023:176 (CJEU), and the plan did not satisfy the final rider – it was not binding and thus did not require SEA. He held that ground 2 failed for similar reasons. He held that ground 3 was logically dependent on the misconceived assertion of an obligation to comply with SEA. Regarding ground 6, he held that no lack of transposition had been demonstrated on the pleaded facts, or in relation to the pleaded provision of EU law (art. 7(2)(f) of the AIE Directive).

Humphreys J dismissed the proceedings.

Proceedings dismissed.

JUDGMENT of Humphreys J. delivered on the 19th day of October, 2023

1 . For the past 20 years or so, the agri-food sector has been guided by strategy documents led by stakeholders, with Government support. The approach has been one of 10 Year plans, reviewed and replaced mid-way through the life of each plan.

2 . On 31st July, 2019, an initial public consultation process commenced in relation to what is now the current plan. The applicant did not make a submission.

3 . In November, 2019, the Agri-Food Stakeholder Committee was established by the Department of Agriculture, Food and the Marine as a non-statutory unincorporated body with 32 members representing various interests in the sector. On its establishment, the Committee was tasked with the preparation of a new strategy to replace a document entitled Food Wise 2025, published in 2015.

4 . On 27th May, 2020, RSK (Ireland) Ltd and RSK ADAS Ltd consultants were engaged by the Department on behalf of the Committee to prepare assessment exercises.

5 . On 4th June, 2020, and Environmental Analysis Steering Group (EASG) was established by the Department to work with the Committee and the consultants at a technical level.

6 . On 11th August, 2020, a Strategic Environmental Assessment (SEA) scoping consultation exercise took place, in purported compliance with the SEA directive 2001/42/EC. Again the applicant failed to make a submission.

7 . In February, 2021, the Environmental Pillar withdrew from the Committee, complaining inter alia that the approach being taken was insufficiently ambitious in terms of climate goals. Save insofar as relates to SEA or appropriate assessment (AA) under the habitats directive 92/43/EEC, that complaint isn't an issue in these proceedings – the applicant hasn't challenged the strategy by reference to climate obligations other than insofar as they arise as part of more traditional assessments.

8 . This raises a contextual point which is that it isn't for the court to assess the merits of any given strategy or other action or omission under challenge, or to agree or disagree with any policy criticisms of it. The role of the court, to state the obvious no doubt, is only to assess any given act or omission, including the adoption or endorsement of a strategy or plan, against such justiciable benchmarks as may be properly pleaded in any given case. The fact that a given act might fail the test of legal benchmarking doesn't mean it isn't a good idea in principle, and likewise the fact that the act might pass any pleaded justiciable standards doesn't amount to endorsement. A court just doesn't have either the expertise or the investigative instruments at its disposal to hazard a view as to how ambitious any given policy should be, and nor is that the court's role under our system of separation of powers.

9 . On 19th April, 2021, public consultation on the draft strategy began for the purposes inter alia of AA and SEA. The applicant finally enters the picture with a submission at this stage. National dialogues on Ireland's food system also began in April, 2021.

10 . On 2nd July, 2021, the Committee finalised the new strategy, called Food Vision 2030 (FV2030).

11 . On 16th July, 2021, the Minister made an AA determination in respect of the strategy.

12 . On 21st July, 2021, a Government Decision was adopted which:

• (i) approved the publication of the strategy FV2030;

• (ii) agreed that the Minister for Agriculture, Food and the Marine would express Government support for the broad policy thrust of FV2030, and in particular the vision that Ireland will become a world leader in Sustainable Food Systems, and

• (iii) agreed that the Government would utilise the Strategy and its food systems approach as the theme of Ireland's engagement with the UN Food Systems Summit (which was held in New York on 23rd September, 2021 during the UN General Assembly that week).

13 . FV2030 was launched on 3rd August, 2021 by the Government and the Agri-Food Stakeholder Committee.

14 . On 10th August, 2021, the applicant's solicitors made a request to the Department of the Taoiseach under the European Communities (Access to Information on the Environment) Regulations 2007 transposing the Access to Information on the Environment (AIE) directive 2003/4/EC for copies of (a) the cabinet minutes recording the Government's consideration of Food Vision 2030; (b) all Government decisions in relation to Food Vision 2030; and (c) of any other records of the Government relating to Food Vision 2030.

15 . This request was refused on 8th September, 2021 although it did identify the government decision dated 21st July, 2021. An internal review was requested on the same day but there was no response to this request. An appeal was filed with the Commissioner for Environmental Information on 10th October, 2021. The appeal was put on hold by the Commissioner on 28 October, 2022 because it involved an issue that is pending before the Court of Justice of the European Union in Right to Know v. An Taoiseach, Case C-84/22, on reference from Simons J. (see Opinion of Advocate General Kokott delivered on 17 May 2023, ECLI:EU:C:2023:421).

Procedural history

16 . The proceedings were filed on 22nd October, 2021. Leave was granted on 1st March, 2022. A statement of opposition was filed on 30th June, 2022.

17 . On 9th November, 2022, the Supreme Court gave judgment in a challenge by this applicant to the National Development Plan, FOIE v. Government of Ireland [2022] IESC 42, [2022] 11 JIC 0903 (Baker J.), and decided to refer certain matters to the CJEU. That earlier case...