Sweetman v The Environmental Protection Agency and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Conleth Bradley |
| Judgment Date | 23 January 2024 |
| Neutral Citation | [2024] IEHC 55 |
| Court | High Court |
| Docket Number | Record No. 2019/184JR |
and
[2024] IEHC 55
Record No. 2019/184JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Industrial emissions licence – Environmental Protection Agency Act 1992 s. 83 – Applicant seeking an order of certiorari quashing the decision of the first respondent to grant an industrial emissions licence to the notice party – Whether the first respondent correctly defined the ambit of its statutory and regulatory power
Facts: The applicant, Mr Sweetman, applied to the High Court seeking an order of certiorari quashing the decision of the first respondent, the Environmental Protection Agency (the Agency), dated 6th February 2019 to grant an Industrial Emissions Licence pursuant to s. 83 of the Environmental Protection Agency Act 1992 to the notice party, Mr O’Connor, for an intensive agricultural enterprise involving the rearing of 74,000 broiler chickens. Various related declarations were also sought. Intensive poultry rearing, the subject of the licence which was sought to be impugned, generates poultry litter and wash water. Mr Devlin SC for the applicant submitted that the poultry litter and wash water constituted ‘emissions’ and ‘waste’ (as those terms are defined in law) and that their application on lands outside of the installation where the poultry rearing occurred should have been assessed and addressed in the Licence which was granted. If he was incorrect in that regard, Mr Devlin SC said that intensive poultry rearing cannot be separated from its inevitable consequences, being poultry litter and wash water, and their use off-site. Whilst he accepted that the Nitrates Regulations and the Animal By-Products Regulations “provide some degree of regulation”, he contended that they are “not exclusive regulation” and what is more, there is a particular obligation on the Agency to assess, authorise and regulate ‘the consequences of poultry rearing’ namely the use of poultry litter for land spreading as fertiliser or its disposal as waste and the disposal of the wash water (away from the installation or off-site) especially having regard to: (a) the size and scale of the activity (involving 74,000 broiler chickens); and (b) the Industrial Emissions Directive, the Habitats Directive and the Water Framework Directive. It was common case that the Agency’s decision under challenge in the application for judicial review was that of 6th February 2019 which authorised the rearing of 74,000 broiler chickens at an installation in Newcastle West, County Limerick. The dispute which arose centred on whether that decision should have addressed and assessed off-site consequences of the intensive poultry rearing farming, namely the land spreading of organic fertiliser and the disposal of wash water on other lands.
Held by Bradley J that the Agency, when considering the application which was made to it from the notice party, correctly defined the ambit of its statutory and regulatory power in the 1992 Act, including ss. 83 to 86, as applying to the site of the activity for which the licence application was made, i.e., the intensive rearing of poultry within the installation boundary located at Newcastle West, County Limerick and that this did not extend to the authorisation of the possible end use of the poultry litter or wash water generated from the intensive poultry rearing as organic fertiliser or as waste on lands outside of the installation. While both the applicant and the Agency relied on observations made by the Supreme Court (Hogan J) in An Taisce – National Trust for Ireland v An Bord Pleanála [2022] IESC 8, Bradley J held that the relevant aspect of the judgment of Hogan J to the facts of this case was the court’s distinction between the required assessment (Appropriate Assessment and Environmental Impact Assessment) carried out in the context of the construction and operation of the cheese factory and the unnecessary requirement to do likewise in respect of the milk-production in the Glanbia farms and the other approximate other unknown farms estimated at 4,500 in number.
Bradley J refused the applicant the reliefs claimed in the application for judicial review.
Application refused.
JUDGMENT of Mr. Justice Conleth Bradley delivered on the 23 rd day of January 2024
| INTRODUCTION | 2 |
| Preliminary | 2 |
| Licence P1042-01 dated 6 th February 2019 | 3 |
| THE APPLICANT'S CASE | 5 |
| The statutory basis of the decision dated 6 th February 2019 | 5 |
| The alleged ‘screening out’ of AA of Land Spreading as a mitigation measure | 5 |
| Waste | 9 |
| Water & the question of eutrophication? | 11 |
| THE RESPONSE OF THE AGENCY | 12 |
| ASSESSMENT & DECISION | 14 |
| PROPOSED ORDERS | 37 |
The principal relief sought by Mr. Sweetman, in this application for judicial review, is an order of certiorari quashing the decision of the Environmental Protection Agency dated 6 th February 2019 to grant an Industrial Emissions Licence 1 pursuant to section 83 of the Environmental Protection Agency Act, 1992 2 to Mr. O'Connor for an intensive agricultural enterprise involving the rearing of 74,000 broiler chickens. 3 Various related declarations are also sought and I address these matters later in this judgment.
At the commencement of the hearing, I was informed that the case as against the State parties has been discontinued and that Mr. O'Connor, the recipient of the licence (and joined by the Applicant as a notice party), has not participated in the proceedings.
This judicial review application dates back to 2019 and, as accepted by the parties, relied on an older format of ‘pleading’ and presentation which applied at a time before the innovations and more focused pleading in similar judicial review challenges which are now applied, for example, in the Planning and Environment List as per High Court Practice Direction HC 124. 4
James Devlin SC and Margaret Heavy BL appeared for Mr. Sweetman (hereafter also referred to as “the Applicant”) and Suzanne Murray SC and Caoimhe Ruigrok BL appeared for the Environmental Protection Agency (hereafter also referred to as “the Agency”).
While the applicable statutory and regulatory regime is somewhat complex, the essence of the question which the Applicant seeks to argue was concisely captured by Mr. Devlin SC, in his opening comments on the first day of the hearing of this case, as follows:
“… [t]he basic issue…here, is you can't have chicken production on any scale, and certainly not on this scale, without also producing chicken manure. Disposing of the chicken manure is one of the key environmental issues arising from an enterprise of this sort …”. 5
Intensive poultry rearing, the subject of the licence which is sought to be impugned, generates poultry litter and wash water. Mr. Devlin SC submits that the poultry litter and wash water constitute ‘emissions’ and ‘waste’ (as those terms are defined in law) and that their application on lands outside of the installation where the poultry rearing occurs should have been assessed and addressed in the Licence which was granted.
If he is incorrect in that regard, Mr. Devlin SC says that you cannot separate intensive poultry rearing from its inevitable consequences, being poultry litter and wash water, and their use off-site.
Whilst he accepts that the Nitrates Regulations and the Animal By-Products Regulations (which are referred to in detail later in this judgment) “… provide some degree of regulation …”, he contends that they are “… not exclusive regulation …” and what is more, there is a particular obligation on the Agency, as the Environmental Protection Agency, to assess, authorise and regulate ‘the consequences of poultry rearing’ namely the use of poultry litter for land spreading as fertiliser or its disposal as waste and the disposal of the wash water (away from the installation or off-site) especially having regard to (a) the size and scale of the activity (involving 74,000 broiler chickens) and (b) the Industrial Emissions Directive, the Habitats Directive and the Water Framework Directive.
It is, however, common case that the Agency's decision under challenge, in this application for judicial review, was that of 6 th February 2019 which authorised the rearing of 74,000 broiler chickens at an installation in Newcastle West, County Limerick. In summary, the dispute which arises centres on whether that decision should have addressed and assessed off-site consequences of this intensive poultry rearing farming, namely the land spreading of organic fertiliser and the disposal of wash water on other lands.
The Licence 6 was granted, subject to conditions, to Michael Noel O'Connor 7 as part of the Agency's decision dated 6 th February 2019 pursuant to section 83(1) of the EPA Act 1992 in respect of the following activity – “ (6.1) [t]he rearing of poultry in installations where the capacity exceeds 40,000 places” – occurring in an installation located at Rathcahill West, Templeglantine, Newcastle West, County Limerick which is delineated in red on a map
Licence P1042-01 defines “organic fertiliser” as “… any fertiliser other than that manufactured by industrial process and includes livestock manure, dung stead manure, farmyard manure, slurry, soiled water. Silage effluent, non-farm organic substances such as sewage sludge, industrial by-products and sludges and residues from...
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