Sweetman v The Environmental Protection Agency and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: MacGrath J
• Judgment Date: 28 February 2025
• Neutral Citation: [2025] IECA 49
• Docket Number: Appeal Number: 2024/61

Between/

Peter Sweetman

Applicant/Appellant

and

The Environmental Protection Agency

First Named Respondent

and

Ireland

Second Named Respondent

and

The Attorney General

Third Named Respondent

and

Michael Noel O'Connor

Notice Party

[2025] IECA 49

Noonan J.

Meenan J.

MacGrath J.

Appeal Number: 2024/61

Rec. Number: 2019 184JR

THE COURT OF APPEAL

NO REDACTION NEEDED

JUDGMENT of MacGrath J delivered on the 28 ^th day of February 2025

Table of Contents

Introduction	para. 1
No Collateral Challenge to Planning Permission	para. 3
The Production and Removal of Poultry Litter and Wastewater	para. 6
Relevant Provisions of the Environmental Protection Agency Act 1992	para. 9
The Issues	para. 16
Communications and Representations Prior to the Granting of the Licence	para. 18
Summary of Legal Argument re what the IE Licence Authorised	para 27
Summary of Legal Argument re Emissions	para. 29
Inspector's Report	para. 40
Specific Issues Raised	para 41
Appropriate Assessment	para. 43
Waste Generation	para. 45
Wash Water	para. 49
Proposed Determination	para. 51
Adoption of the Inspector's Report and the Decision to Grant the Licence………..	para. 52
The Decision of the Trial Judge	para. 53
The Reasoning of the Trial Judge	para. 56
The “gateway” to the respondent's jurisdiction	para. 57
No challenge to the EIA or AA which had been conducted	para. 59
Respondent's decision was not impugned by reference in the licence and in the Inspector's report to what may happen if end use should be disposal off-site by land spreading or otherwise	para. 62
Decided authorities	para. 66
Submissions on this Appeal	para. 68
Decision and Analysis	para. 69
Context and Circumstances	para. 99
Conclusions	para. 101
Appendix I – Submissions on Appeal
Appellant's Submissions	para. 115
Respondent's Submissions	para. 120

Introduction

1 . An Industrial Emissions License (“IE licence”) is required when more than 40,000 broiler chickens are reared at an installation. On the 6 ^th February 2019, in exercise of its powers under s.83 of the Environmental Protection Agency Act 1992, as amended (“the 1992 Act”), the respondent granted an IE licence to the notice party in respect of an intensive agricultural enterprise involving the rearing of 74,000 broiler chickens at his installation at Rathcahill, County Limerick.

2 . Mr Sweetman, the appellant, brought an application seeking, as primary relief, an order of certiorari quashing that decision. Various other ancillary declarations were sought. He asserts that the respondent erred in law in granting the licence. The focus of his challenge relates to land spreading of fertiliser, consisting of poultry litter and wash (or waste) water, which is generated as part of the broiler rearing process. Relief was refused by Bradley J in the High Court. Mr Sweetman now appeals that decision. Proceedings against the second and third respondents were discontinued prior to the hearing. The notice party did not participate.

No Collateral Challenge to Planning Permission

3 . On the 13 ^th August 2012, the notice party obtained planning permission from Limerick County Council (“the planning authority”) for the construction of an additional broiler shed, thereby increasing the capacity of his operation to 74,000 birds reared every six to eight weeks. The removal of poultry litter and the taking of materials off-site is addressed in planning conditions. Poultry litter has been removed from the site. Records maintained by the Department of Agriculture, Food and the Marine (“DAFM”), known as DAFM R3 returns, in respect of the removal of substances off-site by a transport company (a registered contractor) for the year 2016 were referred to in evidence and submissions.

4 . In 2013, the notice party informed the planning authority of an application to the respondent for a licence to operate the facility. Nothing appears to have come of this. As the level of activity on-site exceeded the threshold for unlicensed activity, on the 5 ^th July 2016 the notice party applied for a licence. When the respondent's inspector prepared her report, the notice party's installation was operating above the threshold of 40,000 broiler chickens and was accommodating 74,000 broiler chickens within three poultry houses. Conditions were attached to the planning permission concerning the reporting and recording of poultry litter movements; but without stipulating a requirement for the prior assessment of the impacts of land spreading on specific locations, habitats, spaces, the environment or human and animal health.

5 . The pleadings are fulsome and raise many issues. It is important to emphasise that this judicial review application does not concern issues relating to the validity or enforcement of the notice party's planning obligations; nor could it. That permission retains its validity. In his judgment, the trial judge referred to the decision of the Supreme Court in Sweetman v An Bord Pleanála [2018] IESC 1 and noted that the applicant/appellant accepted that the planning permission could not, on this application, be the subject of a collateral challenge. Thus, this case is exclusively concerned with the legality of the respondent's decision to grant the IE licence to the notice party. Nevertheless, the planning permission, and what occurred during the planning application process, form part of the background to the appellant's case.

The Production and Removal of Poultry Litter and Washwater

6 . The notice party's broiler rearing process may be described briefly as follows. Day old chicks are delivered from a hatchery and then reared in houses until they are removed approximately six to eight weeks later. At the end of the rearing cycle, the chickens are sold for processing and the houses are de-stocked. Chickens reared this way, exclusively for meat production, are known as broiler chickens. Over the next two weeks, poultry litter is removed and the floors are washed down with disinfectant and water. The process generates (1) poultry litter which contains straw, poultry faeces and urine, and (2) wash water generated during cleaning. The water contains a mixture of poultry litter and small quantities of disinfectant. Poultry litter and wash water thus generated are enriched by nitrates and phosphates. If not properly dealt with, they can give rise to eutrophication i.e. water pollution caused by too many nutrients, leading to a deterioration in water quality. They must be dealt with properly, therefore, whether on or off the site of an installation.

7 . The appellant submits that, at a fundamental level, the activity of poultry rearing at the scale in question is subject to the Industrial Emissions Directive 2010/75 (hereafter “the IED”) precisely because of its polluting potential, and that this is not confined to what happens within the boundary of the site where poultry is reared. The trial judge accepted that poultry litter and wash water are “substances” for the purposes of the IED.

8 . The statutory regime for the granting of IE licences is governed by the 1992 Act. Nevertheless, aspects of other domestic and European legislation arise for consideration in the context of the arguments advanced. These include Directive 2010/75 (the IED), Directive 2008/98/EEC (the Waste Directive), Directive 2000/60/EC (the Water Framework Directive), the Animal Byproducts Regulations, Council Directive 92/43/EEC (the Habitats Directive), Council Directive 91/676/EEC (the Nitrates Directive) and the Nitrates Regulations which have been implemented in this jurisdiction by the Good Agricultural Practices for Protection of Waters Regulations 2017 (S. I. 605 of 2017)(the “GAP regulations”). First, it is necessary to address the licensing regime under the 1992 Act.

Relevant Provisions of the Environmental Protection Agency Act 1992

9 . By virtue of s.82 (2) of 1992 Act, as amended, which is contained in Part IV of the Act, persons are prohibited from carrying on an “ activity”, other than in specified circumstances, unless a licence or revised licence under Part IV is in force in relation to the activity. Activity is defined in s. 3 as meaning “ any process, development or operation specified in the First Schedule and carried out in an installation”.

10 . The First Schedule to the 1992 Act contains a list of activities to which Part IV applies. Paragraph 6 of the First Schedule, which is relevant to the issues in this case, is entitled “ Intensive Agriculture” and includes, at paragraph 6.1 (a), “ the rearing of poultry in installations where the capacity exceeds 40,000 places”.

11 . The respondent is empowered by s. 83 to grant or refuse an IE licence in respect of an activity. When an IE licence is granted, certain conditions must be attached (s. 86(1)(a)) and others may be attached (s.86(1)(b)). It should be noted in passing that land spreading of poultry litter or other fertilisers is not an “ activity” which is expressly referred to in the First Schedule. Land spreading of fertilisers is, generally speaking, regulated by the DAFM in accordance with the requirements of the Nitrates Directive and Regulations which, as stated above, have been implemented in this jurisdiction by the GAP regulations.

12 . “Installation” is defined in s. 3 as meaning:

“…a stationary technical unit or plant where the activity concerned referred to in the First Schedule is or will be carried on, and shall be deemed to include any directly associated activity, whether licensable under this Part or not, which has a technical connection with the first mentioned activity and is carried out on the site of the activity.”

No issue arises on this. Mr O'Connor's premises is an installation within the meaning of the legislation.

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