Hanrahan Farms Ltd v Environmental Protection Agency and Others

JurisdictionIreland
JudgeMR. JUSTICE T.C. SMYTH
Judgment Date29 July 2005
Neutral Citation[2005] IEHC 249
CourtHigh Court
Docket Number[2003 No. 22
Date29 July 2005

[2005] IEHC 249

THE HIGH COURT

22 JR/2003
Hanrahan Farms Limited v Environmental Protection Agency & Ors
(JUDICIAL REVIEW)
BETWEEN:-
HANRAHAN FARMS LIMITED
APPLICANT
-and-
THE ENVIRONMENTAL PROTECTION AGENCY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
-and-
JIM NOONAN, EILEEN NOONAN, JAMES SHEEHY, KAY SHEEHY PAT MULLINS AND CATHERINE MULLINS
NOTICE PARTIES

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 PART IV

ENVIRONMENTAL PROTECTION AGENCY (LICENSING) REGULATIONS 1994 SI 85/1994

ENVIRONMENTAL PROTECTION AGENCY (LICENSING) (AMDT) REGULATIONS 1995 SI 59/1995

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

PROTECTION OF THE ENVIRONMENT ACT 2003 S15

PROTECTION OF THE ENVIRONMENT ACT 2003 COMMENCEMENT ORDER 2004 SI 393/2004

PYX GRANITE COMPANY LIMITED v MINISTER OF HOUSING 1958 1 QB 554

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S82(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 19921992 SCHED 1

ENVIRONMENTAL PROTECTION AGENCY ACT 19921992 SCHED 1 PARA 6

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S3(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S1

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S5(2)(b)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S52(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S52(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S52(d)

O RECOMMENDATION 75/436/EURATOM

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(3)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84(1)

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 114 2003 2 ILRM 446

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84

EEC DIR 85/337

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84(1)(f)

KEANE LAW OF LOCAL GOVERNMENT IN THE REPUBLIC OF IRELAND 1992 198

XJS INVESTMENTS LTD v DUN LAOGHAIRE CORPORATION 1986 IR 750 1987 ILRM 659

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

KEANE & NAUGHTON v BORD PLEANALA & COMMISSIONERS OF IRISH LIGHTS 1997 1 IR 184

FPH PROPERTIES, STATE v BORD PLEANALA 1987 IR 698

DIRECTOR OF CONSUMER AFFAIRS v GOVERNOR & CO OF BANK OF IRELAND 2003 2 IR 217

AG v GREAT EASTERN RAILWAY CO 1880 5 AC 473

MIN TRANSPORT & POWER v TRANSWORLD AIRLINES INC UNREP SUPREME 6.3.1974

AIR NAVIGATION & TRANSPORT ACT 1936

BLASCAOD MOR TEORANTA & ORS v COMMISSIONERS OF PUBLIC WORKS IN IRELAND UNREP 19.12.1996 KELLY 1997/1/96

EEC DIR 96/61

TREATY OF ROME ART 10

LA COMERCIAL INTERNACIONAL DE ALIMENTACION SA v MARLEASING 1990 1 ECR 4135

ARCARO [1996] ECR I-4705

WELLS v SECRETARY OF STATE FOR TRANSPORT 2004 ECR I-00723

EEC DIR 96/61 ART 3

DUNRAVEN ESTATES LTD v CMRS OF PUBLIC WORK 1974 IR 113

ARTERIAL DRAINAGE ACT 1945

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

HUGHES & ANOR v DONCASTER METROPOLITAN BOROUGH COUNCIL 1991 1 AER 290

AIR POLLUTION ACT 1987

HEMPENSTALL v MIN ENVIRONMENT 1994 2 IR 20

MAHER v MIN AGRICULTURE 2001 2 IR 139

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S5(3)(a)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S5(2)(b)(iii)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S5

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S5(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S5(1)

M & J GLEESON & CO v COMPETITION AUTHORITY 1999 1 ILRM 401

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION AND METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159

AER RIANTA CPT v COMMISSIONER FOR AVIATION REGULATION UNREP O'SULLIVAN 16.1.2003 2003/1/141

DUNNES STORES (IRL) CO & HEFFERNAN v RYAN & MIN ENTERPRISE 2002 2 IR 60

EAST DONEGAL CO-OP v AG 1970 IR 317

LYNCH, STATE v COONEY 1982 IR 33

COMPANIES ACT 1990 S19

MISHRA v MIN JUSTICE 1996 1 IR 189

ROBERT & MURESAN v MIN JUSTICE UNREP PEART 2.11.2004 2004/44/10153

DEVITT v MIN FOR EDUCATION 1989 ILRM 639

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S42(1)

BORD NA MONA v BORD PLEANALA 1985 IR 205

1

MR. JUSTICE T.C. SMYTH DELIVERED ON THURSDAY 21ST JULY 2005

APPEARANCES

For the Applicant:

MR. J. GLEESON SC

MR. J. FITZSIMONS BL

Instructed by:

Carroll & Co. Solicitors

For the Respondents:

MS. N. BUTLER SC

MS. N. HYLAND BL

Instructed by:

Barry Doyle & Co. Solicitors

For Pat Mullins & Catherine Mullins:

MR. H. O'NEILL SC

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 21ST DAY OF JULY 2005
2

MR. JUSTICE SMYTH: By Order of the High Court dated 17th January 2003 (and varied on 7th February 2003) the Applicant was granted leave to apply for Judicial Review of the imposition of Condition 4 (and in particular Condition 4.2) of the Integrated Pollution Control (IPC) licence granted to the Applicant by the Environmental Protection Agency ("the Agency") on 19th November 2002.

3

The application for an IPC licence was originally submitted in the name of Hanrahan Farms, however, the application was ultimately treated as an application by Hanrahan Farms Limited ("the Applicant"). The business of the Applicant is that of a pig farmer, it is essentially a family business conducted under the aegis of the company.

4

The IPC licence application was made on 6th March 1998. The applicable law governing IPC licences applicable on that date was provided for under Part IV of the Environmental Protection Agency Act, 1992 (the Act of 1992) and the statutory regulations made thereunder (viz the EPA (licensing) Regulations 1994 to 1996). Notwithstanding that Part IV of the Act of 1992 was substituted by section 15 of the Protection of the Environment Act, 2003 such did not become effective until 12th July 2004, pursuant to the provisions of the Protection of the Environment Act, 2003 (Commencement) Order, 2004 (S.I. No. 393 of 2004).

5

The Applicant's Statement of Grounds challenges Condition 4. This provides as follows:

"Condition 4 - Emissions to Atmosphere"

6

2 4.1. The licensee shall ensure that all operations on site shall be carried out in a manner such that air emissions and/or odours do not result in significant impairment of, or significant interference with amenities, or the environment beyond the site boundary.

7

3 4.2. The licensee shall within three months of the date of this licence, submit a plan to the Agency to de-stock the unit to the numbers specified in Column 2 of the schedule 1(i) Animal Numbers Housed at the Facility and this de-stocking shall be completed within the timeframe specified in this schedule.

8

4 4.3. The licensee may increase stocking levels above the numbers specified in column 2 of Schedule 1(i) Animal Numbers Housed At the Facility, where an odour reduction/abatement programme, in accordance with Condition 4.1, has been proposed, agreed by the Agency and implemented. proposals shall be supported by odour measurement data (measurement data from the Applicant's site or measurement data that is demonstrably representative of the Applicant's site). Odour measurement data and air dispersion modelling shall be conducted in accordance with any guidance issued by the Agency.

9

5 4.4. The licensee shall within twelve months from the date of grant of this licence, and thereafter annually as part of the AER, report to the Agency on the ongoing study into the effectiveness of dietary control on odour emissions from the piggery unit.

10

6 4.5. The licensee shall ensure that there is no release of fugitive emissions to atmosphere resulting from the filling of slurry tankers at the site of the activity, at any time. specifically the licensee shall ensure that gases vented from slurry tankers on filling are not released directly into the atmosphere.

11

Reason: To provide for the protection of the environment by way of control, limitation, treatment and monitoring of emissions.

12

Schedule 1(i) Animal Numbers Housed at the Facility

Animal Class

COLUMN 2

COLUMN 3

Note 1, 2

Note 1, 2

Numbers from 12 months of the Date of grant of this licence

Numbers until 12 months from the Date of grant of this licence

Farrowing/Suckling Sows

200

250

Dry Sows

800

1000

Maiden Gilts

200

200

Boars

15

25

Weaners

3785

4900

Finishers

5000

6200

13

Note 1: This excludes sucking pigs maintained on site.

14

Note 2: Variation in these numbers requires prior written agreement from the Agency."

15

The challenge is on a number of alternative grounds, which may be summarised as follows:-

16

1. Condition 4 is in material part, ultra vires, the powers of the Agency under the relevant provisions of the Act of 1992.

17

2. Even if the Agency is in principle authorised by the Act of 1992 to impose such a condition on the grant of an IPC licence, Condition 4 ought to be quashed as an abuse of the powers of the Agency.

18

3. To the extent that the provisions of the Act of 1992 empower the imposition of a condition, such as Condition 4, those provisions are unconstitutional.

19

The factual background to the case is that on 3rd November, 1995 planning permission was granted by Limerick County Council for a 1, 000 sow breeding pig unit. The Applicant company was incorporated in 1996 for the purposes of operating the piggery. on 6th March 1998 application was made to the Agency for an IPC licence: the application was considered as incomplete and subject to requests for additional information to enable the Agency to validate the application pursuant to regulations and commence consideration thereof. In March 2000 the Applicant provided to the Agency the information required to validate the application and in particular on 9th March, 2000 a report of Effluvium Limited was furnished to the Agency on...

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