Irish Court of Appeal

THE COURT OF APPEAL

Neutral Citation Number: [2025] IECA 49

Appeal Number: 2024/61

Rec. Number: 2019 184JR

Noonan J.

Meenan J.

MacGrath J.

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

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 Wash Water......................... 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 broilers 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 Wash Water

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 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.

13.                   Section 83(2A)(b) of the 1992 Act provides that where the activity to which a licence, or revised licence, relates is likely to have a significant effect on the environment by virtue, inter alia, of its nature, size and location, the respondent is required to ensure ("shall") that the application is made subject to an environmental impact assessment in respect of the matters that come within the function of the respondent. Section 83(5) provides, inter alia, that the Agency shall not grant a licence or revised licence for an activity:

"(a)          unless it is satisfied that –

(iv)       any emissions from the activity will not cause significant environmental pollution, and

(vii)      having regard to Part III of the Act of 1996, the production of waste in the carrying on of the activity will be prevented or minimised or, where waste is produced, it will be recovered or, where that is not technically or economically possible, disposed of in a manner which will prevent or minimise any impact on the environment."

14.                   Section 86(1) specifies conditions which must be attached. It is provided,  inter alia, that:

"(1)          Without prejudice to the generality of section 83(1) conditions attached to a licence or revised licence under this Part -

                        (a)        shall -

(iii)       if necessary, and in all cases where the licence or revised licence relates to an industrial emission directed activity, specify requirements concerning protection of the soil and groundwater, and the management of waste generated by an activity."

15.                   Section 86(1)(b), is phrased in permissive terms and addresses, inter alia, conditions concerning the recovery and disposal of waste:

"(1)     Without prejudice to the generality of s. 83(1), conditions attached to a licence or revised licence granted under this Part -

(b) may (to the extent that the matter is not provided for by a condition under paragraph (a)) -

(xi) specify requirements in relation to the recovery or disposal of waste arising from the activity on land other than land on which the installation is situate and whether in the ownership or occupation of the licensee or not (including requirements with respect to the furnishing of information to the Agency in relation to the land for the time being, being used, or land proposed to be used, for the purpose of such recovery or disposal)."

The Issues

16.                   The trial judge described counsel for the appellant's opening remarks that you cannot have chicken production without also producing chicken manure as concisely capturing the essence of the case. The disposal of the chicken manure, therefore, is one of the key environmental issues arising from the enterprise. It is argued that it is not possible to separate intensive poultry rearing from its inevitable consequences and their use off-site. The appellant contends, inter alia, that manure and wastewater generated and disposed of on lands outside the installation constitute "emissions" and "waste" and therefore ought to have been assessed and addressed as such by the respondent prior to granting the licence.

17.                   The core issue on this appeal, therefore, relates to the extent of the obligations imposed on the respondent by legislation, domestic and European, to address what happens to poultry litter and wash water when exported off site.  While it is submitted that the case more particularly concerns the extent of activities authorised by the licence, the central point is the extent to which the respondent must address, in licensing conditions, what is to happen to these substances if and when they leave the installation, and, in that context, the extent of the respondent's obligations to assess sites (or what are sometimes referred to as downstream lands) on which spreading of poultry litter or wash water (fertiliser) might take place.

Communications and Representations Prior to the Granting of the Licence

18.                   Relevant background information is addressed in Mr Sweetman's affidavit sworn on the 27^th March 2019.  On the 17^th  August 2016, in the course of the licensing application process,  the Department Of Arts, Heritage and the Gaeltacht recommended that an Appropriate Assessment Screening ("AA screening") should be carried out, with the focus to include assessment of the spread lands' potential effects on any Special Area of Conservation (SAC) or Special Protection Areas (SPA's).

19.                   On the 26^th August 2016, the respondent sought further information by way of a Regulation 10 request including:

i.          A Natura Impact Statement ("NIS"),

ii.        Clarification of the annual tonnage of chicken litter generated, the proposed destinations and use of the litter and wash water, and

iii.       The volumes of wash water and maps of locations where wash water was to be spread as a fertiliser.

Maps of locations where wash water was to be spread as fertiliser were also sought.

20.                   In a response on the 15^th June 2017, it was stated that the total volume of poultry litter generated in 2016 was 775 tonnes, of which 269 tonnes was sent to Custom Compost and the remaining 505 tonnes was land spread on nine farms. These included farms with addresses in Kildare, Offaly and Wexford. The appellant avers that the actual location of the fields for land spread were not identified, that only three addresses specified town lands and that from such limited information it was not possible to assess impacts of land spreading on protected habitats, or to exclude the possibility for significant impact. As was referred to in exchanges between the notice party and the respondent prior to the granting of the licence, as of 2016, poultry litter was being transported off-site for land spreading on other lands. It is averred that while this may have been the case, the notice party's application was advanced to the respondent on the basis that the litter would be transported off-site for composting.

21.                   The notice party provided an AA screening report in June 2017, which it is alleged failed to consider land spreading of poultry litter and that it concluded, erroneously, there was no likely significant effect from the development, despite the earlier assessment by the respondent and the request for an NIS. A Baseline Screening Assessment Report was provided, which the appellant contends contained erroneous conclusions that no Baseline Assessment was required under the Directive. It is further contended that the report fell into error by failing to identify poultry litter as a hazardous substance, and by failing to consider land spreading of poultry litter.

22.                   On the 10^th October 2017, submissions were made by the appellant to the respondent that the remote spreading lands were captured by the Habitats Directive, Article 6(3). By letter dated the 24^th October 2017, the respondent sought further information from the notice party including  a suitably scaled map showing the furthest distance over which slurry was then supplied, the distance over which it was proposed to supply slurry or the distance to which 90% of slurry was intended to be supplied. The appellant contends that this request was not complied with in full. An NIS dated November 2017 was submitted by the notice party which relied on the "Scail Agricultural Model" for predicting the effect of air emissions and habitats, including Natura 2000 sites. While the accompanying guidance provided for the modelling of land spreading, it is pleaded that the spreading of chicken litter on land was not considered in the analysis conducted by the notice party. The NIS stated, inter alia, that:

"Based upon the assessment outlined above and the implementation of all environmental safeguards and mitigation measures, it is concluded that the project will not have the potential to result in likely significant effects to the integrity and conservation status of European Sites occurring within the sphere of influence of the project".

That the NIS did not have the required level of certainty of effects, the appellant contends, was  unsurprising.

23.                   By letter dated the 17^th July 2018 to the respondent, the appellant repeated the need for compliance with the Habitats Directive and referred to the decision in Case C323/17 People Over Wind and Peter Sweetman v Coillte Teoranta.

24.                   On the 5^th February 2018, in a reply made on behalf of the Notice Party, it was stated:

 "For clarification purposes, there is and will be no slurry produced at this facility.  Poultry litter from the Unit is supplied to Custom Compost of Ballyminaun Hill, Gorey, County Wexford for use in the production of mushroom compost.  The litter is removed off-site on the same day as the shed cleaning is carried out.  On this site, there are currently 2 no. 37.6m³ precise underground effluent tanks on-site which will hold all washings from the poultry houses and soiled water from the yards.  The tank construction conforms to the Department of Agriculture, Food and the Marine specification S123 minimum Specification for Bovine Units and Reinforced Tanks - March 2006."

An attached map identified areas within the Notice Party's lands only. As became apparent on the hearing of this appeal, if a condition confining the Notice Party to exporting such substances for composting had been attached to the IE licence, the appellant would not harbour the same concerns which he now has.

25.                   It is argued that the notice party only partially replied to the respondent's queries because he omitted to refer to land spreading of poultry litter and implied, incorrectly, that the only destination for poultry litter from the facility was composting. The appellant also alleges that from the limited information provided to the respondent, it was not possible to assess the impacts of land spreading on specific protected habitats or to exclude the possibility for significant impact. An identified farm in County Wexford is located in close proximity to a number of SAC's and priority sensitive habitats. Despite this, the appellant contends that none of the land spreading sites were considered by the respondent in either an AA Screening or in an Appropriate Assessment.

26.                   The appellant raises concerns as to the accuracy of replies received and points out that on the 8^th  August 2016, the Health and Safety Executive (HSE) erroneously assumed that all poultry litter was composted and that none was land spread. It is also contended that despite information to the contrary, which emerged in the course of the licensing process, this misconception was not corrected.

Summary of Legal Argument re what the IE Licence Authorised

27.                       The appellant fundamentally maintains that the IE licence, as a fact, authorised land spreading of fertiliser (poultry litter/wash water) on lands away from the installation, and therefore those lands ought to have been assessed to exclude environmental impacts, or a specific condition ought to have been included restricting the transporting of poultry litter and wash water off the site of the installation for composting only in accordance with what was stated by the Notice Party during the licensing application process. Failing this the spread lands ought to have been appropriately assessed. The former option is similar to a condition in a planning permission that the development must be carried out in accordance with the plans and specifications submitted with the application. It is contended that the failure to take such steps gives rise to illegality and invalidates the IE Licence.

28.                   The respondent disputes the appellant's claims. Its position may be summarised as follows.  As a matter of law, it not empowered by Part IV of the 1992 Act to authorise land spreading off site on other lands and as a matter of fact it did not do so. When the Notice Party made his application, it was stated that the substances in question were to be transported off-site for composting or spread on lands within the site. No reference was made to land spreading off site. The only activity that the respondent is empowered to licence under Part IV of the 1992 Act is that which it is authorised to licence under the First Schedule, that is the rearing of poultry at an installation where the capacity exceeds 40,000 places. Therefore, it follows that it had no obligation to conduct appropriate assessments of off-site spread lands.  

Summary of Legal Argument re Emissions

29.                       The appellant also submits that material transported off site and spread on lands constitute "emissions". The trial judge found that nitrates and phosphates were substances for the purposes of the IED. That finding is not challenged on this appeal. Thus, the starting point for the consideration of relevant legislation is the IED in which "emission" is defined  as meaning "any direct or indirect release of substances, including, waste". This is also the definition contained in the 1992 Act. Article 3 (37) of the IED provides that "waste" is as defined in point 1 of Article 3 of Directive 2008/98/EC (hereafter, "the Waste Directive") which in turn defines waste as "any substance or object which the holder discards or intends or is required to discard". This is also the definition of waste in the 1992 Act, s. 3.

30.                       Article 2 of the Waste Directive expressly excludes certain matters from its scope. Article 2 (1) excludes, in certain circumstances, faecal matter, straw and other non-hazardous agricultural and forestry material. Article 2 (2) excludes from the scope of the Waste Directive, "to the extent that they are covered by other Community Legislation", - "(a) waste waters; (b) animal by-products including processed products covered by Regulation (EC) No 1774/2002, except those which are destined for incineration, landfilling or use in a ... composting plant".  Regulation (EC) No 1774/2002 (the Animal By-products Regulations) has since been replaced by Regulation (EC) No 1069/2009.  These regulations were given legal effect in this jurisdiction by The European Communities (Animal By-Product) Regulations 2014 (SI No 187/2014). Animal by-products which are thereby excluded from the Waste Directive are not to be considered "emissions". The collection, transport, handling, treatment, transformation, processing, storage, placing on the market, distribution, and use and disposal of all animal products (ABP), including poultry litter, are governed by the Animal By Product Regulations.

31.                   Nevertheless, not everything which may be considered to be an animal byproduct is, on that account alone, excluded from the scope of the Waste Directive (see Kamstra Cases C-21/19 to C 23/19). The classification of a substance as "waste" is to be gleaned primarily from whether the holder discards, intends to discard or is required to discard the substance. That in turn may involve a fact specific consideration of whether the holder of the byproduct seeks to "discard" it, or whether, as stated by the CJEU in Brady v EPA (Case C- 113/12), he intends "to exploit or market it on terms advantageous to himself in a subsequent process... provided that such reuse is not a mere possibility but a certainty".

32.                   The appellant contends that the animal byproducts in this case are waste, and therefore emissions. On that basis, it is further argued that there was an obligation on the respondent under s.83(5) of the 1992 Act to satisfy itself that any emissions from the activity would not cause significant environmental pollution. Therefore, off-site land spreading of poultry litter and wash water should have been included in the scope of the appropriate assessment carried out by the respondent under the Habitats Directive, Article 6, implemented in the context of IE licences by the European Communities (Birds and Natural Habitats) Regulations, 2011 (SI 477/2011), .

33.                   The respondent submits that the licence application was advanced on the basis that poultry litter would be supplied to Custom Compost for use in the production of mushroom compost and, second, that wash water will be utilised on the notice party's farmlands, adjacent to the installation. The licence application included information that all poultry litter would be sent for composition and not some. It is also submitted that the reuse of the poultry litter and wash water in this case is a certainty and in the case of wash water as part of a lawful practice of spreading on clearly identified parcels of land and its use is limited to the needs of those spreading operations.

34.                   The respondent does not accept that the poultry litter and wash water, in this case, constitute waste, rather it contends that it falls to be considered as Category 2 material as defined in Article 9 of the Animal Byproducts Regulations and, therefore, may be disposed of in accordance with options provided in Article 13 of those regulations, one of which is land spreading. Article 9 of the same regulations defines byproducts as including "manure", and Article 3 defines manure as "any excrement and/or urine of farmed animals other than farmed fish, with or without litter". As they are not waste and are not emissions, it is contended that it was not incumbent on the respondent to conduct an appropriate assessment or other assessments in respect of the spread lands.

35.                   Further and as stated earlier, Article 2 (2) (b) of the Waste Directive excludes animal byproducts from its scope, "to the extent that they are covered by other Community Legislation". Here, the respondent argues that land spreading of fertiliser is governed by "other" legislation, being the Nitrates Directives and Regulations which have been implemented in this jurisdiction by the GAP Regulations and that once poultry litter and wash water is removed from the installation it is regulated by the Animal Byproducts Regulations and the Nitrates Regulations.

36.                   The respondent's position, therefore, is that land spreading, were it to occur, is subject to the GAP Regulations and that the assessment of the environmental effects of landscaping is a matter for the DAFM. The GAP Regulations, therefore, are relevant because of the trial judge's acceptance of the respondent's argument that land spreading of agricultural slurry which contains nutrients, such as phosphate and nitrate, is regulated by the DAFM under the GAP Regulations.

37.                   Nevertheless, a further argument is raised by the appellant about a policy of the DAFM not to assess lands in respect of which a derogation is sought. This arises as follows. A permit is not required where landowners land spread agricultural slurry which contain nutrients, at a level below 170 KG N. Land spreading above this limit, by way of derogation, requires a permit. The landowner must, in those circumstances, apply for to the DAFM for such permit, or derogation. When this occurs, prior assessment is required. The appellant maintains, however, that there exists a policy within the DAFM to not properly fulfil its functions by conducting appropriate assessments of individual applications by landowners who seek permits for land spreading above the 170 KG N limit. In support of this contention he relies on certain admissions/concessions referred to by Humphreys J in An Taisce - The National Trust for Ireland v Minister for Housing, Local Government and Heritage, Ireland and the Attorney General and Ors [2024] IEHC 248, where he observed that "The State says, with refreshing candour ' It is accepted that the Minister does not carry out AAs of individual applications for derogation in practice'".  The appellant is therefore critical of the respondent's decision, and its inspector's conclusion, that the role of the DAFM makes it possible for it to know and take account of the additional input of nitrogen and phosphorus from the activity with a view to ensuring that there is no downstream environmental pollution. It is also argued that the respondent, and its inspector, unlawfully screened out of an AA requirement, land spreading of poultry litter and disposal of wash water by referring to the application of the Nitrates Regulations as mitigation, contrary to the decision of the CJEU in People Over Wind and Sweetman v Coillte Teoranta (Case C-323/17, ECLI:EU:C:2018:244). Whether this is so, it seems, is also dependent on whether the respondent was required, as a matter of law, to conduct such assessment.

38.                   The essence of the argument relating to the Water Framework Directive is that it has an overlapping but wider scope than the Nitrates Directive. The Water Framework Directive provides a list of what are considered to be main pollutants. These include substances which contribute to eutrophication- nitrates and phosphates in particular. The appellant maintains that the key point of the Water Framework Directive is the effect of Article 4 on project authorisation. This was considered by the CJEU in Case C- 461/13 Wesser, in which it was held that a Member State is required, unless a derogation is granted,  to refuse authorisation for an individual project where it may cause a deterioration of the status of a body of surface water or where it jeopardises  the attainment of good surface water status or of good ecological potential. The appellant argues that the failure to conduct an appropriate assessment in the context of the Water Framework Directive deprived the respondent of jurisdiction. This is also predicated on the assumption that the respondent was required to conduct an appropriate assessment for the purposes of that directive, which the respondent contends it was not. The respondent's position is that while the licence authorises storage of such material on site until transported off-site for use as a fertiliser on identified spread lands, it does not authorise the spreading of the wash water as the land identified as spread lands is outside the boundary of the installation to which the licence relates. In essence, it is submitted that off-site land spreading of organic material was not, and could not, form part of the licence application.

39.                   Thus the position of the respondent is that the licence, as a whole, does not purport to authorise off-site activities, such as land spreading of fertiliser, or disposal of waste.

Inspector's Report

40.                   The respondent's Inspector prepared a report on the 5^th December 2008. Its contents were referred to at length in the High Court judgment. It is appropriate to consider it in certain detail. The Inspector, Ms. Godsil, recommended that a proposed determination be issued subject to specified conditions. She reported that the installation was currently operating above threshold, was accommodating 64,000 broilers within three poultry houses and that the main by-product of poultry rearing was poultry litter (organic fertiliser). She recorded that four submissions had been made on the application. A submission was made on behalf of HSE West, the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs, and two from Mr Sweetman, one of which was on behalf of  Wild Ireland. The Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs recommended that an Appropriate Assessment screening be carried out for the site, including an assessment of the potential effect of the spread lands on any European Sites, and that a map be provided of the proposed spread lands.  The response of the Inspector was that an Appropriate Assessment screening had been carried out.

 

Specific Issues Raised

41.                   Under the heading "Specific Issues Raised", the Inspector noted as follows:

"... Organic fertiliser generated by the activity will be sent off site for use in mushroom compost production facilities in accordance with the Nitrates Regulations and the European Animal By-product Regulations (EC Regulation No. 1069/2009 and Commission Regulation 142/2011), (Animal By-product Regulations).  The IE licence relates to the site of the activity for which the licence application is made and does not extend to the lands or facilities on which organic fertiliser may be used as fertiliser.  The use of organic fertiliser as fertiliser will be carried out in accordance with the Nitrates Regulations and Animal By-product Regulations and will be monitored and controlled by the DAFM and Local Authorities.  As outlined in Section 15 below, I consider that the use of organic fertiliser as fertiliser in accordance with the Nitrates Regulations will not cause environmental pollution and I am satisfied beyond reasonable scientific doubt that the use of organic fertiliser from the activity as fertiliser will not have a significant effect on any European sites."

42.                   The appellant made a submission regarding the inadequacy of information to enable the respondent to complete an Environmental Impact Assessment of the likely significant indirect effects on the environment in relation to the proposal to spread manure generated on lands remote from the site. It was submitted that no information had been provided on the potential for significant effects on European sites arising from such spreading, and that there was an absence of an appropriate assessment relating to this indirect effect of the proposed development. The Inspector responded that sufficient information had been made available to complete the assessment. She observed that:

"Section 12 of the IR [Inspector's Report] outlines the options for the management of litter manure from the installation.  In the application form the applicant has identified the transfer of litter manure to mushroom composters.  There is also the option of land spreading the organic fertiliser.  The organic fertiliser must be managed in accordance with the appropriate national and European legislation.  The RD requires the licensee to calculate/record the quantities of organic fertiliser generated and moved off site to provide for the appropriate handling of the material and the protection of the environment. 

The IE licence relates to the site of the activity for which the licence application is made and does not extend to the lands on which organic fertiliser may be used as fertiliser.  There will be no adverse significant effects on the environment from land spreading, which is subject to the controls of the Nitrates Regulations or from the handling onsite of organic fertiliser (poultry litter/wash water) from the activity or from its use in compost production.  If the activity is carried out in accordance with the RD and the conditions attached, the operation of the activity will not cause environmental pollution." (p.9)

Appropriate Assessment

43.                   Addressing the requirement for an Appropriate Assessment, the Inspector noted that , following receipt of a Natura Impact Statement and Appropriate Assessment, it was concluded that the proposed activity, individually or in combination with other plans or projects, would not adversely affect the integrity of any European site, inter alia, because:

"Wash water is used as a fertiliser on lands that are not within the installation boundary, in accordance with the Nitrates Regulations.  Poultry litter is transported by a contractor to composting facilities or may be used as an organic fertiliser on land in accordance with the Nitrates Regulations.

The licence relates to the site of the activity for which the licence application is made, i.e. the rearing of poultry within the installation boundary, and does not extend to the lands on which organic fertiliser may be used as fertiliser.  There are regulatory controls in place in relation to the transport and use of organic fertiliser as fertilisers on land beyond the installation boundary.  The Nitrates Regulations make it possible for DAFM to know and take account of the additional input of Nitrogen and Phosphorus from the activity, with a view to ensuring there is no downstream environmental pollution.  It is considered that the regulatory systems in place will ensure that cumulative impacts as a result of the use of organic fertiliser on land from this activity will not have a significant effect on any European sites. (Emphasis added) (para. 14, p. 28)

44.                   The Inspector recorded that poultry litter is transported by a contractor to composting facilities or may be used as an organic fertiliser on land in accordance with the Nitrates Directive. She repeated that the licence, if granted, relates to the site of the activity for which the licence application was made and did not extend to the lands on which organic fertiliser may be used. She again noted that there were regulatory controls in place in relation to the transport and use of organic fertilisers as fertiliser on land beyond the installation boundary, that the Nitrates Regulations made it possible for the DAFM to know and take account of the additional input of nitrogen and phosphorous from the activity with a view to ensuring that there is no damage or environmental pollution.

 

Waste Generation

45.                   Waste generation is addressed in para. 8 of her report and organic fertiliser at para. 12.  She reported that the activity did not produce significant quantities of waste. There are no waste disposal or recovery activities undertaken on site.  She described poultry litter as an organic fertiliser/soil improver which is a valuable source of nutrients for farmers and that it can be disposed of by spreading on land. She noted, however, that it is subject to strict conditions to prevent adverse effects through nuisance, nutrient enrichment of natural waters and/or spread of disease. She also observed that the other main disposal routes for this material are composting and biogas plants or as a fuel for combustion.

46.                   Under the subheading of "Poultry Litter (Organic Fertiliser)", she proceeded as follows:

"The collection, transport, handling, treatment, transformation, processing, storage, placing on the market, distribution, and use and disposal of all animal products (ABP) including poultry litter is governed by the EU Animal By-product Regulation (EC), No. 1069 of 2009 and Regulation (EU) No 142 of 2011 which are given legal effect by the European Communities ( Animal By-Product) Regulations 2014 (SI No. 187/2014). Poultry litter is categorised as category 2 animal byproduct and the options for its disposal are set out in Article 13 of Regulation 1069/2009. Poultry litter must be transported by a haulier registered with the DAFM.

Poultry litter poses a direct and indirect risk of transmitting botulism to cattle. Outbreaks of botulism may occur, not just in the holding where the poultry litter is being spread, but also in neighbouring holdings. The DAFM provides detailed Codes of Practice for the handling and use of poultry litter." (p. 22, para 12.1)

47.                   The Inspector also recorded that the notice party proposed that the organic fertiliser would be sent off-site to mushroom compost production facilities in accordance with the GAP Regulations and the European Animal By-Products Regulations. The Inspector reiterated  that the poultry litter produced by the activity "may" be used for land spreading in accordance with the Nitrates Regulations (see para. 12, p. 23 of her Report). She further noted that the application included a letter from a transport company (M.J. Kehoe Ltd) confirming that they would take poultry litter from the installation to mushroom compost production facilities.  The Inspector referred to poultry litter as a Category 2 Animal By-Product and stated that the options for its disposal were set out in Article 13 of Regulation 1069/2009, which must be transported by a haulier registered with the DAFM. This company is a registered contractor with the DAFM for the transport of animal by-products, and it was further noted that all poultry litter would be transported in covered trailers.  The licensee was required to provided annual details in relation to the quantity of organic fertiliser exported on a Record 3 Form. She arrived at a similar conclusion to that expressed at para. 45 above:

"As outlined above, poultry litter will be sent for use in the mushroom compost production industry and may also be sent for landscaping.  It is important to note that the IE Licence relates to the site of the activity for which the licence application was made and does not extend to the lands on which organic fertilisers may be used as fertiliser.  The Nitrates Regulations specifies when organic fertiliser may be applied to land, the application rates et cetera and are enforced by the DAFM and local authorities ... Aside from potential pollution and nuisance, which are negative in nature, the application of organic fertiliser to land as fertiliser is a positive effect on the development." (p. 23)

48.                   The Inspector addressed the potential for significant effects of the project arising from land spreading of organic fertiliser in section 15 of her report entitled "Appropriate Assessment". She addressed the European Sites assessed in Appendix 1 (although it appears that this should be Appendix 3). European sites assessed included the Lower River Shannon SAC, the Stack's to Mullaghareirk Mountains, West Limerick Hills and Mount Eagle SPA, the Blackwater River SAC and the Moanveanlagh Bog SAC.  Her assessments did not include any potential spread land site. She also reported that "no land spreading of organic fertiliser is conducted and/or permitted within the installation boundary so nuisance from land spreading or direct impacts on soil, water and groundwater quality and habitats in the immediate vicinity of the installation and consequential indirect effects on flora and fauna and their habitats will not occur". While impacts could occur on or near the spread lands, the Inspector concluded that these would be indirect effects of the activity only and that the transport and use of organic fertiliser as fertiliser in accordance with the Nitrates Regulations and Animal By-Products Regulations would not cause environmental pollution.

 

Wash Water

49.                       With regard to "wash water", the Inspector stated that that following the washing down of the houses, the wash water is directed to storage tanks where it is contained until sent off-site for use as fertiliser. She noted at page 29 of the report that wash water is used as a fertiliser on lands that are not within the installation boundary, in accordance with the Nitrates Regulations. She observed that this wash water consists of water contaminated with poultry litter and small quantities of disinfectant and is considered suitable for use on land as fertiliser, such use being provided for by the Nitrates Regulation and the Animal Byproduct Regulations.

50.                   Again, she considered that the regulatory systems in place would ensure that cumulative impacts as a result of the use of organic fertiliser on land from the activity would not have a significant effect on any European site and that  activities which can take place within European sites are restricted by legislation. All persons must obtain the written consent from the relevant Minister before performing particular operations on, or affecting, particular habitats where they occur on lands/waters within the special area of conservation. She reiterated her conclusion that further regulatory controls exist for the spreading of fertilisers within European sites and that therefore, the agency considered that the use of poultry litter and wash water as fertiliser  "in accordance with the Nitrates Regulations will not cause environmental pollution and I am satisfied beyond reasonable scientific doubt that use of wash water and poultry litter as fertiliser from the activity will not have a significant effect on any European site".

 

Proposed Determination

51.                   On the 7^th  December 2019, the respondent wrote to the appellant enclosing a copy of its proposed determination. The appellant was satisfied that he had, in his earlier submissions, sufficiently raised his concerns about remote land spreading, the Habitats Directive, the effects of land spreading on European sites, Appropriate Assessment, Appropriate Assessment Screening and the use of mitigation measures.

Adoption of the Inspector's Report and the Decision to Grant the Licence

52.                   On the 6^th February 2019, the respondent adopted the Inspector's report (Recommended Decision/Determination (P1042-01)), and thereafter made the decision to grant the licence. The terms of the licence and the relevant conditions attached thereto are considered later in this judgment.

The Decision of the Trial Judge

53.                   The trial judge described the essence of the enquiry before him as being whether the respondent, as a public body, had correctly identified the ambit of its statutory and regulatory powers, whether emanating from an EU law measure, primary or secondary legislation, or all three. The issue was whether the respondent had acted within its jurisdiction. He phrased the central question for determination as follows:

"Did the Agency err, in defining the ambit of its regulatory powers under the EPA Act 1992 (including section 83), in not assessing, authorising and regulating the final end use off-site through land spreading (on other lands) of the poultry litter and wash water as organic fertiliser, or its disposal as waste, which were an inevitable consequence of the licensable activity under the EPA Act 1992 regarding the intensive rearing of 74,000 broiler chickens, having regard to requirements of the Industrial Emissions, Habitats and Water Framework Directives?"

54.                   The appellant's response to the question, thus framed, is that the respondent, (a) had the power to do so, (b) was obliged to do so, but (c) did not do so.

55.                   Following a detailed and careful consideration of the law, facts and submissions of the parties, the trial judge held that the respondent had correctly defined the ambit of its statutory and regulatory power and jurisdiction under the 1992 Act, including ss.83 to 86 thereof, in the manner in which it made its decision to grant the licence. He therefore refused the application for judicial review.

The Reasoning of the Trial Judge

56.                    The trial judge approached his decision by considering:

(a)                The "gateway" to the respondent's jurisdiction,

(b)               The absence of a challenge to the EIA or AA which was conducted,

(c)               Whether the respondent's jurisdiction was invalidated because of references   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, and

(d)                Decided authority.

The "gateway" to the respondent's jurisdiction

57.                    The "gateway" to the respondent's jurisdiction, Bradley J. reasoned, is contained in the 1992 Act, s. 83 (1) and in particular the First Schedule thereto which refers to activities to which Part IV applies. Paragraph 6 of the First Schedule addresses "intensive agriculture" and includes, at paragraph 6.1 (a), "the rearing of poultry and installations where the capacity exceeds 40,000 places".  He referenced Harte v The EPA, Ireland and The Attorney General [2022] IECA 276, where it was stated that the invocation of the First Schedule threshold (in that case Class 1.4) represented the "gateway to the licensing regime under the 1992 Act and the EPA [the Agency] does not have jurisdiction to entertain a licence application for a project under that threshold". In Brady v EPA [2007] 3 IR 232, Charleton J, when considering an application for a licence under s. 83 of the 1992 Act, stated the respondent was limited by its functions and that "any activity which is scheduled under the Act must have a licence from the respondent. The licence is granted under Part IV of the Act and the First Schedule thereto provides... the activity to which that part of the Act applies...".

58.                   The trial judge, having considered the definitions of activity and installation, also referred to condition 1.6 of the licence:

"This licence is for the purpose of IE licensing under the EPA Act, 1992 as amended only and nothing in this license shall be construed as negating the licensee' statutory obligations or requirements under any other enactment or regulations."

He was satisfied that the jurisdiction of the respondent related to the scheduled activity applied for and licensed - i.e. the rearing of poultry in an installation located at the notice party's premises where the capacity exceeded 40,000 places and comprised 74,000 broilers.

No challenge to the EIA or AA which had been conducted

59.                    The ambit of the appellant's challenge did not include a challenge to the Environmental Impact Assessment or the Appropriate Assessment which had been conducted by the respondent.  At paras. 70 and 71 of his judgment, the trial judge noted the appellant's clarification that there was "no EIA challenge" to the respondent's decision and that any reference to such matters was merely contextual. It was also confirmed that the challenge to the AA carried out by the respondent in relation to the licensed activity of rearing of 74,000 broiler chickens ("for example, of air emissions and ammonia levels") was no longer being pursued.

60.                   At para. 72 of his judgment Bradley J. observed:

"As I have found that the decision-making function of the Agency in this case, from a jurisdictional perspective, related to the scheduled and licensed activity of the intensive poultry rearing of 74,000 broiler chickens located in an installation located at Rathcahill West, Templeglantine, Newcastle West, County Limerick and it was confirmed at the hearing that there is no EIA or AA challenge to that decision-making process, it is strictly unnecessary to address those matters any further".

Nevertheless, he considered that the AA which was carried out (referred to in the decision of the 6^th February 2019 (at pages 6-9) and the section 15 Appropriate Assessment at pages 28-30 of the Inspector's Report) as being informative in understanding the balance of the appellant's case.

61.                    Counsel for the appellant clarified on appeal to this court that while there was no challenge to the AA which was carried out in respect of the installation site itself, the assessment should have gone further and included an assessment of "spread lands".

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

62.                    The trial judge was satisfied that references in the licence and the Inspector's report to what may happen if end-use is disposal off-site by land spreading or otherwise, did not affect the validity of the respondent's decision.

63.                   In addressing the contention that there had been an unlawful screening out of the Appropriate Assessment, the trial judge noted the finding of the Inspector, not challenged in the proceedings, that ... "[a]n Inspector's Appropriate Assessment had been completed and has determined, based on best scientific knowledge in the field and in accordance with the European Communities (Birds and Natural Habitats) Regulations 2011 as amended, pursuant to Article 6(3) of the Habitats Directive, that the activity, individually or in combination with other plans or projects, will not adversely affect the integrity of any European Site". The Inspector also concluded that the installation was not within a European site and, in terms of risk assessment, there was no surface water or groundwater pathway from where litter was generated at the installation.

64.                   The trial judge was satisfied that the references by the respondent in its decision and licence, or in the Inspector's report, to what may happen if the end use of the poultry litter or wash water was its disposal off-site by way of land spreading as a fertiliser and to the regulatory process under the Nitrates Regulations or the Animal Byproduct Regulations, "did not in any way impugn the decision which related to the "authorisation of the licensed activity of rearing 74,000 broiler chickens in a farm which activity was the subject of an AA and an EIA by the respondent as the Competent Authority" (para. 80).  He considered what he described as the important distinction between the terms "on-site" and "off-site" as used in the licence. Having conducted a detailed analysis of the IE licence conditions, he stated (at para. 104) that "the License, therefore, anticipates and acknowledges, in a number of conditions, that a potential use of the poultry litter may include that as a fertiliser for the purposes of land spreading and thereby regulated by the Nitrates Regulations 2017".  At para. 102 he concluded that :

"While the regulation of the poultry litter/organic fertiliser at the installation contemplated ultimate or future use, this does not mean that it regulates, authorises or assesses that ultimate or future use. It is a matter of good administration that one form of regulation understand the next possible stage in the process but that also does not mean that there is a gap or lacuna such as to warrant the court in a judicial review application intervening in the manner suggested on behalf of the Applicant."

End users intending to land spread poultry litter are obliged to comply with the requirements of the Animal By Products Regulations and GAP Regulations. The trial judge concluded (at para. 142):

"The applicant was, in my view, incorrect to assume that-because that (i) the decision of 6^th of February 2019 (which includes the Inspector's report) envisages that there may be or can be future land spreading of the poultry litter or wash water on lands outside of the installation, and because (ii) poultry litter and wash water can, on different occasions, be waste or not waste-the decision of 6 February 2019 was somehow an authorisation and regulation of land spreading. The applicant's approach was mistaken in assuming that the references to the possible future alternative end-uses of the poultry litter and wash water on different lands in the respondent's decision of 6^th  February 2019 approximates to an authorisation for that end-use or provides a basis for impugning the decision of 6 February 2019 to grant a licence to Mr O'Connor for the activity of intensive poultry rearing of 74,000 broiler chickens in an installation located at Newcastle West, County Limerick. Further, there is no lacuna as a suggested on behalf of the applicant, into which the agency must act."

65.                   The trial judge considered the definition of "organic fertiliser" in the Nitrates Regulations 2017 as meaning, inter alia, livestock manure. Livestock includes poultry kept for use or profit. He observed at para. 118 of his judgment that "livestock manure is defined as meaning waste products excreted by livestock or a mixture of litter and waste products excreted by livestock, even in processed form". He concluded that "poultry litter is, therefore, an organic fertiliser regulated by the Nitrates Regulations 2017".  He also considered the meaning of "soiled water" and noted that under Article 4 (2) of the Nitrates Regulations 2017, it has an assigned meaning which includes water from concreted areas, hard standing areas and holding areas for livestock where such water is contaminated by contact with, inter alia, livestock faeces or urine or silage effluent. Washed soiled water is also addressed by the Nitrates Regulations.

 

Decided authorities

66.                    The trial judge considered a number of authorities, including Joyce Kemper v An Bord Pleanala [2020] IEHC 610 and An Taisce - The National Trust for Ireland v An Bord Pleanala and Ors [2022] IESC 8, ("the Kilkenny Cheese Factory Case"). He also referred to the arguments based on Brady and the Commission v Spain (C-121/03) and spoke of their "context and circumstance" (para 133):

"In assessing whether or not the Agency acted within or outwith its jurisdiction in this case, the central context and circumstance is that which relates to the scheduled and licensed activity of intensive poultry rearing of 74,000 broiler chickens located in an installation located at Rathcahill West, Templeglantine, Newcastle West, County Limerick and not that which concerned the CJEU in a number of decisions, including Commission v Spain (C-121/03) ECLI:EU:C:2005:512; 2005 I-07569 and Brady v EPA (Case C-113/12) ECLI:EU:C:2013:627, which held that where the context and circumstance arise it is for the national courts to determine, taking account of all the relevant circumstances obtaining in the situations before them, to determine whether or not slurry meets the following criteria: (i) the producer intends to market the slurry on terms economically advantageous to himself in a subsequent process, (ii) such reuse is not a mere possibility but a certainty, without any further processing prior to reuse and as part of the continuing process of production."

67.                   In the circumstances, the trial judge was satisfied that the respondent had correctly identified the ambit of its statutory and regulatory powers. The appellant's arguments that there was an erroneous Stage 1 screening out of the Appropriate Assessment for land spreading by relying on the Nitrates regulations as a mitigation measure was also rejected.

Submissions on this Appeal

68.                   The submissions of the parties on this appeal supplement and re-iterate many of the arguments made to the trial judge. The submissions are outlined in detail in Appendix I to this judgment and have been summarised above at paras.  27-39.

Discussion and Analysis

69.                   The appellant does not challenge the lawfulness of the Appropriate Assessment which was conducted on the installation lands. The argument is that assessments ought to have been undertaken in respect of the spread lands. The gravamen of this contention is that when the legislative provisions are viewed in an integrated way, land spreading on third-party lands was contemplated as an authorised activity, if not expressly then by implication. It is also contended that in circumstances where poultry litter is destined for land spreading, such activity must be considered to give rise to "emissions" within the meaning of the legislation and must be viewed and treated as such. Therefore, land spreading ought to have been appropriately assessed as part of the licensing application process.

70.                   It seems to me that the appellant's appeal must involve, as a starting point, a consideration of the ambit of the respondent's powers to grant the IE licence to the notice party and to then consider the terms of the licence granted in purported exercise of those powers.

71.                   The power to grant or refuse a licence, or to grant a licence subject to conditions, is exercised by the respondent under the 1992 Act. The relevant provisions of the 1992 Act have been set out in detail above and need not be repeated. The trial judge described this as the jurisdictional gateway and basis for the respondent's decision.

72.                   It is necessary, therefore,  to consider the terms and conditions of the notice party's IE licence in light of the powers so exercised.  Part I of the IE licence, headed "Schedule of Activities Licensed", is as follows:

"In pursuance of the powers conferred on it by the Environmental Protection Agency Act 1992 as amended, the Agency hereby grants this industrial emissions licence to:

Mr Michael Noel O'Connor, Rathcahill West, Templeglantine, Newcastlewest, County Limerick under section 83 (1) of the said Act to carry on the following activity:

-     the rearing of poultry in installations where the capacity exceeds 40,000 places

at Rathcahill West, Templeglantine, Newcastlewest, County Limerick subject to the following 12 conditions, with the reasons therefore and associated schedules attached thereto."

73.                   Part II contains twelve conditions which are attached to the IE licence. Condition 1.3 describes the installation for the purposes of the IE licence as being the Notice Party's lands. This is outlined in red on a drawing (number 10  Rev 3) supplied during the application process. This condition expressly provides that "the licensed activity shall be carried on only within the area outlined".  Condition 1.6 states that: 

"This licence is for the purpose of IE licensing under the EPA Act, 1992 as amended only and nothing in this license shall be construed as negating the licensee' statutory obligations or requirements under any other enactment or regulations."

74.                   Particular emphasis is placed by the appellant on condition 8, in furtherance of his argument as to what is envisaged by the licence. It is headed "Materials and Handling" and provides, inter alia:

"8.1          The licensee shall ensure that waste generated in the carrying out of the activity shall be prepared for reuse, recycling or recovery or, where that is not technically or economically possible, disposed of in a manner which would prevent or minimise any impact on the environment."

75.                   The definition of waste in the licence accords with that which is contained in the Waste Directive. It focuses on "discard" and defines "waste"  as "any substance or object which the holder discards or intends or is required to discard".  The following subparagraphs of condition 8 have also been referred to in argument. 

"8.2          All waste that is not reused on site shall be sent off-site to an authorised facility for disposal or recovery or reuse.

Condition 8.3 stipulates the manner in which waste going off-site is to be transported by "an authorised waste contractor or an exempted person".

"8.4          The loading and unloading of materials shall be carried out in designated areas protected against spillage and leachate run off."

"8.10        Organic fertiliser movements.

8.10.1     The licensee shall record all organic fertiliser movements off-site in an 'organic fertiliser register' which shall be available for inspection on site by authorised persons.

8.10.2     The licensee shall maintain an 'organic fertiliser register' to the satisfaction of the Agency, showing, as a minimum, the name, herd number, and the herd number of the customer farmer receiving organic fertiliser, quantity of organic fertiliser, date of movement off-site, and details in accordance with Article 23 of S.I. No. 605 of 2017 European Union (Good Agricultural Practice for Protection of Waters) Regulations 2017 and as otherwise specified by the Agency or Department of Agriculture, Food and the Marine.  (Emphasised by the appellant as being inconsistent with the respondent's suggested understanding that in assessing the licence, poultry litter was to be sent for composting ).

8.10.3     The licensee shall, on or before the 31^st December annually, submit to the Department of Agriculture, Food and the Marine the completed records of movement of organic fertiliser from the installation (referred to as 'Record 3' by the Department of Agriculture, Food and the Marine).  The record shall be in accordance with Article 23 of S.I. No. 605 of 2017 European Union (Good Agriculture Practice for Protection of Waters) Regulations 2017 and as otherwise specified by the Agency or Department of Agriculture, Food and the Marine.  A copy of the records submitted should be maintained on site for inspection.

8.10.4     The licensee shall calculate and record by the 31^st January annually

(a) the quantity of organic fertiliser generated by the animals housed on site in the previous calendar year.

(b) the total quantity of organic fertiliser moved off site and recorded in the Organic Fertiliser Register and 'Record 3' as submitted to the Department of Agriculture, Food and the Marine in the previous calendar year.

(c) the opening quantity of organic fertiliser (1^st of January of the previous year) and closing quantity of organic fertiliser (1^st January of the current year).

These details shall be submitted to the Agency as part of the AER (Annual Environmental Return).

I should here note the submission of the appellant that a search of publicly available information does not disclose a record of any application by the notice party to the respondent for consent to send poultry litter to composting facilities, or approval for same, and that there is no mention by the notice party in its annual environmental returns to the respondent of details of recipients of poultry litter for recovery/disposal other than by land spreading. The respondent's reply is that since the issuing of the licence, the notice party had not sought to use contractors other than MJ Kehoe, and that a request to use composting facilities would only have to be made if the notice party was to use a different recovery option for the poultry litter than that assessed as part of the licence application.

8.11        Recovery of organic fertiliser by means other than use as fertiliser on land."

8.11.1        Where organic fertiliser is not used as a fertiliser on land, the licensee shall by the 1^st February each year submit details of all proposed recipients of organic fertiliser for recovery/disposal other than by land spreading.  Details required shall include method of recovery/disposal, location of recovery/disposal facility, permit/authorisation for recovery/disposal facility, agreements between recipient and licensee and quantities to be accepted by the recipient.

8.11.2        Recovery/disposal of organic fertiliser shall take place only by methods agreed in advance by the Agency and at agreed recovery/disposal facilities which have appropriate authorisation.

8.11.3        Agreements between the licensee and recipients of organic fertiliser for recovery/disposal, other than landscaping, shall not conflict with any conditions of this licence."

76.                   On the face of it, it is difficult to assail the conclusions of the trial judge at paras. 102 and 104 of his judgment (reproduced at para. 64 above) that while the regulation of the poultry litter/organic fertiliser at the installation contemplates its ultimate or future use, it does not mean that it regulates, authorises or assesses that ultimate or future use and that the licence anticipates and acknowledges, in a number of conditions, that a potential use of the poultry litter may include that as a fertiliser for the purposes of land spreading and is thereby regulated by the Nitrates Regulations 2017. This is particularly so in view of the authorities, now considered, which stress the necessary focus of the inquiry when considering assessment obligations. In a planning context, this is the "project" being authorised and in a licensing context, it seems to me by analogy, "the activity", being licensed. 

77.                   In An Taisce v An Bord Pleanala & Ors [2022] IESC 8, ("the Kilkenny Cheese Factory Case") the Supreme Court considered whether individual farms supplying raw material (milk) to a cheese factory operated by Glanbia ought to have been appropriately assessed as part of a planning application for a permission to install and operate the factory: i.e. whether the likely emissions from enhanced milk production ought to have been identified and assessed as part of a required Environmental Impact Assessment in respect of the cheese factory project. Hogan J addressed the matter as follows:

"Objection 2: No assessment of the effects of the milk supply production

It is true that the NIS did not in terms analyse the impact on the Natura sites of the potential impact of milk production from the individual 4,500 Glanbia farms: see paragraph 7.3 of the NIS. The authors of the NIS evidently adopted this stance because while they concluded that it was not practicable "to assess potential indirect effects on all Natura sites", they nonetheless took the view that:

"in general terms the continued implementation of the [Glanbia organised farm environmental] programmes and mitigation measures on dairy farms that will supply milk to the proposed development will mitigate potential indirect adverse effects on Natura 2000 sites."

The Inspector took a similar view, saying (at paragraph 12.29 and paragraph 12.30):

"The planning application provides a sufficient level of information surrounding the source of milk/milk supply to allow for the assessment of the indirect impacts to the required extent. There is no evidence of potential for direct habitat loss or fragmentation within designated areas associated with the project or for significant effects on the conservation objectives of any Natura 2000 [site].

While it is not practicable to assess potential indirect effects on all Natura sites, it can be concluded in general terms that the continued implementation of the above-mentioned programmes and mitigation measures on dairy farms that will supply milk to the proposed development will mitigate potential indirect adverse effects on Natura 2000 sites."

While it is true that the NIS, the Inspector and the Board all sought to some extent to assess the potential indirect effects of the milk production on the Natura sites, I consider that the short answer to this point is that they were not, as a matter of law, obliged to do so. To repeat, the project to be assessed for the purposes of Article 6(3) was the construction and operation of the cheese factory and not the 4,500 Glanbia farms or, for that matter, the thousands of other farms supplying non-Glanbia producers. (paras. 140-142) (Emphasis added)

78.                       While he there addressed the requirements of an EIA, he expressed similar sentiments at para. 115 in relation to the requirement for an Appropriate Assessment:

"The obligation for an AA arising under Article 6(3) is in respect of a "plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon". Such a plan or project must then be subject "to appropriate assessment of its implications for the site in view of the site's conservation objectives." One must, of course, stress that the project in the present case which requires the AA is the cheese factory itself and not the 4,500 Glanbia farms or, for that matter, those non-Glanbia farms which may be tempted to increase their milk production as a result of the switching of a large volume of Glanbia milk into meeting the proposed factory's requirements".

79.                       Thus, the project which required assessment was the cheese factory itself and not Glanbia farms, or indeed other farms, which might increase their milk production to meet the proposed factory's requirements. That the Inspector and An Bord Pleanala sought, to some extent, to assess the potential indirect effects of the milk production on Natura Sites did not mean that they were, as a matter of law, obliged to do so. It is true that the Supreme Court was there concerned with a planning application, rather than an application for an IE licence. It is also the position that the court was concerned with what might be described as "upstream", rather than, as here, "downstream" lands. Counsel for the appellant considered this to be a crucial distinction because with "upstream" activities, one is not concerned with potential "emissions"; whereas emissions become an issue in the context of "downstream" activities. It is also submitted, that in the Kilkenny Cheese Factory case, the court was concerned with thousands of potential farms, rather than, as here, a limited number.

80.                   In response, and in the context of downstream activities, the respondent relies on dicta of Allen J in Kemper v An Bord Pleanala [2020] IEHC  601, which involved a challenge to the grant of permission to Irish Water for the development of the Greater Dublin Drainage Project, comprising a new wastewater treatment plant, various facilities and a pipeline. The treatment process was designed to remove and treat all solids brought to a particular location where they were stored and eventually used as fertiliser. Part of the objection was that there was a failure to consider the impact on the environment of the eventual use of bio solids. The conclusions of Allen J on this point are outlined in paragraph 369 et seq of his judgment as follows:

"369. While it is common case that the Board did not conduct an EIA or an AA on the land spreading, the Board's position is that it was cognisant of, and took account of, the eventual use of the material both in its planning assessment and its EIA. It is submitted that it would have been impossible to do anything more than that because the customers to which it will be supplied are self-identifying and the lands on which the material is to be spread cannot be known until the farmer comes looking for it.

370.  It is acknowledged that the spreading of the material on lands within, or proximate to, or connected with, European sites will very likely give rise to the need for an AA but the need for an AA, it is said, is site specific. What can be done at this stage, and what has been done, is to make a high level Strategic Environmental Assessment of land spreading as an activity. Ms. Butler brought the court through the relevant passages in the Inspector's report.

Having considered extracts from the Inspector's report, Allen J continued:

"374.   The object of this careful exercise was, it was said, to show that account had been taken of the potential downstream effects of land spreading, which was consistent with national policy.

375.  Ms. Butler also emphasised that land spreading itself was subject to controls by the European Union (Good Agricultural Practice for the Protection of Waters) Regulations, 2017 which control the amount of nitrogen and phosphorous that can be applied to land by reference to the quality of the land, the crop to be grown and so on.

376.   Acknowledging that the applicant's argument equating the output of solids from this development to the input of fuel into the Edenderry plant was superficially attractive, Ms. Butler submitted that it was wrong for two reasons. The first was that on the facts of An Taisce v. An Bord Pleanála there was a particular link between the bogs and the power plant. The second was that in Edenderry no consideration at all had been given to the potential impact of the continued operation of the power station on the bogs.

377 .  I am satisfied that Ms. Butler's submission is correct. In this case it is impossible to establish a link between the RBSF and the lands upon which the material may be spread because the lands are not, and cannot be, identified until the purchaser is identified. Leaving aside the fact that the only ground of challenge in relation to the land spreading was the failure to carry out an EIA, the necessity and ability to conduct an AA is not linked to the storage of the material but will depend on the location and nature of the land upon which the material is to be spread. Furthermore, I am satisfied that An Taisce v. An Bord Pleanála is clearly distinguishable on the basis that in this case the Board identified, assessed, and took into account to the extent that it could the potential indirect effects of the eventual use of the material."

81.                   I should say that in this case there is no suggestion of a functional interdependence between the notice party's activity and the activities of downstream farmers who might spread manure as fertiliser on their land, such as led to the conclusion in O'Grianna v An Bord Pleanala [2017] IEHC 7 that assessment of other functionally interdependent sites was required.

82.                   While acknowledging the submissions made by counsel for the appellant, it is difficult to discern a proper basis for distinguishing or disapplying the approach adopted by Hogan J to the circumstances of this case. Fundamentally, what was required to be assessed in the Kilkenny Cheese Factory case was the "project"; in this case the "activity" being licensed. This is the notice party's installation lands and not any other lands on which poultry litter and wash water might be spread. It would seem to me that this principal must hold good, regardless of whether  one is concerned with upstream or downstream activities, and regardless of the number of potential upstream or downstream premises engaged in such activities. Even though the number of farms or spread lands might be more limited or defined than in the  Kilkenny Cheese Factory case, as a matter of principle, the obligation exists, or it does not.  What is of relevance in each case is the activity being licensed or authorised.

83.                   Two principal arguments are made concerning the conditions attached to the licence. The first is that the respondent has not ensured the objective outlined at condition 8.1 of the licence by carrying out its own assessment of the lands on which waste is to be spread. The second focuses on the absence of a condition regarding end-use.

84.                   Section 86 (1)(b) of the 1992 Act, which provides for the attaching of conditions to a licence, is couched in permissive terms. Counsel for the appellant refers to the wording of s.86 (3) (1)(b)(xi) as being illustrative of and supporting the proposition that the 1992 Act envisages circumstances in which the respondent can look beyond the red line boundary of the lands at the installation, particularly in the context of the specification of requirements regarding the recovery or disposal of waste arising from activity at the installation, whether those lands were in the ownership or occupation of the licensee or not. He submits that this must be viewed in the light of section 83 (5), which effectively prohibits the respondent from granting a licence unless it is satisfied that any emissions (which are further defined in the legislation as including direct and indirect emissions) from the activity will not cause significant environmental pollution. He submits that land spreading is in fact such an emission and in answer to a question posed by this court, indicated that in the circumstances of this case, it was mandatory for the respondent to impose a condition confining the notice party to exporting substances off-site for composting, and not for land spreading,  by reason of the obligation which is placed on the respondent to ensure that there would not be significant environmental effect.

85.                   The activity licensed by the respondent is clear in its terms and definition. It is the rearing of poultry at the notice party's installation.  It does not purport to authorise any other activity, such as land spreading on third-party lands away from the site of the installation. The respondent neither enjoyed the power to do so nor, I am satisfied, as a matter of fact did so.  In similar vein, the obligations placed on the notice party by conditions 8 .10 and 8.11 regarding the keeping of records and making of returns, in my view, while they may envisage off site activities, do not "authorise" such activity. I am satisfied that the conditions imposed go no further than to acknowledge that such activity might take place and, that if it should, what must be recorded and returned. In my view, when the licence is considered in its entirety, none of the provisions  of condition 8 detract from the clear terms of Part I of the licence regarding the "activity" licensed, the "scope" of the IE licence as defined in Part II, condition 1.1, or the expression of what is licensed as stated in condition 1.6.  Condition 8 is concerned with how materials are handled and transported and, I am satisfied, does not authorise any activity other than that expressly provided for in  the licence.  

86.                   On one view the above conclusion should be dispositive of the issues on this appeal. However, the appellant maintains that that what leaves the site of the installation (poultry litter and wash water) should not be considered as animal byproducts (which might therefore be governed by another legislative authority (the DAFM) or regime (such as the GAP regulations) and which can be land spread. He submits that they are  "waste" and, therefore, "emissions ", as defined. Therefore, it is contended that the respondent was obliged under s.83(5) of the 1992 Act to satisfy itself that any emissions from the activity would not cause significant environmental pollution and that off-site land spreading of poultry litter and wash water should have been included in the scope of the appropriate assessment carried out by the respondent under the Habitats Directive, Article 6. In this regard counsel for the appellant also argues that Kemper was not concerned with emissions and, therefore, is distinguishable.

87.                   As we have seen, "emission" is defined in the IED and s. 3 of the 1992 Act as "...any direct or indirect release of substances, heat or noise from individual or diffuse sources in the activity into the atmosphere, water or land....and includes (d) waste". "Waste" is defined as "any substance or object which the holder discards or intends or is required to discard". Article 2 of the Waste Directive excludes from the scope of that Directive faecal matter, straw and other non-hazardous agricultural and forestry material; and also animal byproducts, to the extent that they are covered by other legislation. Generally speaking, therefore, animal by-products, which are governed by the Animal By Product Regulations, are thereby excluded from the Waste Directive and are not to be considered "emissions". Nevertheless, as the authorities illustrate, not everything which may be an animal byproduct is excluded from the scope of the Waste Directive. This is because the classification of a substance as "waste" is to be gleaned primarily from whether the holder discards, intends to discard or is required to discard, the substance.  

88.                   The essence of the argument advanced is that the standard of required certainty to enable the conclusion to be reached that substances to be land spread are not to be considered waste has not been met. It is contended that there was no evidence before the respondent that land spreading was part of a "continuing process of production", that the substance would be marketed in economically advantageous terms having regard to the conditions attached to the licence, particularly condition 8.10, or that the lands on which spreading might take place were clearly identified parcels of land. Counsel for the appellant emphasises the requirement for the clear identification of parcels of lands on which poultry litter and wash water is to be spread as being central to the issue of whether the substance is or is not waste. It is argued that as the respondent did not know the location of where the substances were to be spread, there is absent evidence of "clearly identified parcels of land", which, on the authority of  Commission v Spain (Case C 121/03) and Brady v EPA (Case C- 113/12), is a necessary precondition for a substance which is to be land spread not to be considered "waste".  

89.                   In Brady the Supreme Court requested a preliminary ruling under Article 267 TFEU on the interpretation of the Waste Directive. Mr Brady challenged a licence which he had received from the respondent requiring him to ensure that farmers to whom he supplied pig slurry used it in strict accordance with the conditions set out in the licence. The Directive then under consideration was a previous Waste Directive, 75/442/EEC, which was replaced by Directive 2006/12/EC. This has since been replaced by Directive 2008/98/EC. He submitted that the slurry in question was not waste, rather a by-product of his farm which he sold as fertiliser and that, therefore, the respondent did not have the power to regulate its disposal or recovery in the manner laid down in the licence. The CJEU described the essence of the question referred as being;

"[T]o ascertain under what conditions slurry produced in an intensive pig farm and stored pending its transfer to farmers in order to be used by them as fertiliser on their land may be classified as a byproduct and consequently cease to be regarded as waste within the meaning of Directive 75/442; and in particular, what level of certainty is required as regards the reuse of the slurry envisaged."  

90.                   The CJEU considered the definition of "waste" in Article 1 (a) of the Directive. Because of the essential objective of the Directive and in light of the precautionary principal under Article 174(2) EC, the term 'discard' and, accordingly, the concept of 'waste' within the meaning of the Directive, could not be interpreted restrictively: see e.g. C‑194/05 Commission v Italy. That the European Waste Catalogue referred to animal faeces, urine and manure (including spoiled straw), effluent, collected separately and treated off-site was not decisive for the purpose of assessing the concept of waste. The Court referred to C 121/03 Commission v Spain, para. 66, as supportive of the proposition that the general mention of livestock effluent does not take into account the conditions in which the effluent is used, and which are decisive for the purposes of such an assessment. Classification as 'waste', within the meaning of Directive 75/442, was to be inferred primarily from the holder's actions and the meaning of the term 'discard' in the first subparagraph of Article 1(a) of the Directive. The judgment continued:

"The Court has held in particular that among the circumstances that may constitute evidence that the holder has discarded a substance or object or intends or is required to discard it, within the meaning of Article 1(a) of Directive 75/442, is the fact that a substance is a production or consumption residue, that is to say, a product which was not itself sought (see, inter alia, Case C 194/05 Commission v Italy, paragraph 34 and the case-law cited, and Commune de Mesquer, paragraph 41)." (para. 40)

Having addressed substances which require the taking of special precautions, the Court continued:

"In light of the guidance provided by the case-law as set out above, it must be held that effluent generated by an intensive pig farm, which is not the product primarily sought by the farmer and any recovery of which by spreading as fertiliser must, as is apparent in particular from the sixth recital in the preamble to Directive 91/676 and the mechanism established by that directive, involve the taking of special precautions owing to the potentially hazardous nature of its composition from an environmental point of view, is, in principle, waste (see, by analogy, Case C 194/05 Commission v Italy, paragraph 35 and the case-law cited, and Commune de Mesquer, paragraph 41). However, it is also clear from the case-law of the Court that, in certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process the primary aim of which is not their production may be regarded not as a residue, but as by-products, which their holder does not seek to 'discard', within the meaning of the first subparagraph of Article 1(a) of Directive 75/442, but which he intends to exploit or market on terms advantageous to himself in a subsequent process - including, as the case may be, in order to meet the needs of economic operators other than the producer of those substances - provided that such reuse is not a mere possibility but a certainty, without any further processing prior to reuse and as part of the continuing process of production (see, inter alia, Case C 121/03 Commission v Spain, paragraph 58; Case C 194/05 Commission v Italy, paragraph 38; and Commune de Mesquer, paragraph 42).

As regards, more specifically, livestock effluent such as that at issue here, the Court has already held that it may fall outside classification as waste if it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified parcels and if its storage is limited to the needs of those spreading operations (Case C 121/03 Commission v Spain, paragraph 60).

The Court has also stated that it is not appropriate to limit that analysis to livestock effluent used as fertiliser on land forming part of the same agricultural holding as that which generated the effluent. It is possible for a substance not to be regarded as 'waste' within the meaning of Directive 75/442 if it is certain to be used to meet the needs of economic operators other than the operator which produced it (Case C 121/03 Commission v Spain, paragraph 61).

It is for the national courts, taking account of the guidance provided by the Court's case-law and of all the circumstances of the situation on which they have to give judgment, to determine whether a by-product actually exists, while ensuring in this regard that classification as a by-product is limited to the situations that fulfil the conditions recalled in paragraph 44 of the present judgment.

So far as concerns determining that the reuse of the slurry stored pending spreading is sufficiently certain, it is to be pointed out first of all that, as follows from the case-law recalled in paragraphs 45 and 46 of the present judgment, the mere fact that such reuse will not, as a matter of fact, become absolutely certain until the spreading operations envisaged have in fact taken place through action by the third-party purchasers concerned does not preclude classification as a by-product." (paras. 43-48) (Emphasis added)

Later, the court observed:

"For the purpose of determining whether the reuse of the slurry through spreading by other farmers, as envisaged by the appellant in the main proceedings, is sufficiently certain to justify its storage for a period other than that necessary for its collection with a view to disposal, it is incumbent, on the other hand, on the referring court, as is apparent from the case-law recalled in paragraph 45 of the present judgment, to satisfy itself, in particular, that the plots of land of those farmers on which that reuse is to take place are, from the outset, clearly identified. Such identification is capable of showing that the quantities of slurry to be delivered are in principle actually intended to be used for the purpose of fertilising the plots of land of the farmers concerned.

Therefore, if the producer of the slurry wishes to store it for a longer period than that necessary for its collection with a view to disposal, he must have firm commitments from operators to take delivery of the slurry for the purpose of using it as fertiliser on duly identified plots of land." (paras. 52-53)(Emphasis added)

The answer which the Court provided to the question posed was follows: 

"In light of all the foregoing, the answer to the first part of Question 1 is that the first subparagraph of Article 1(a) of Directive 75/442 must be interpreted as meaning that slurry produced in an intensive pig farm and stored pending delivery to farmers in order to be used by them as fertiliser on their land constitutes not 'waste' within the meaning of that provision but a by-product when that producer intends to market the slurry on terms economically advantageous to himself in a subsequent process, provided that such reuse is not a mere possibility but a certainty, without any further processing prior to reuse and as part of the continuing process of production. It is for the national courts to determine, taking account of all the relevant circumstances obtaining in the situations before them, whether those various criteria are satisfied." (para. 60)

 

 

 

91.                        In referring  to "identified parcels of land", the Court cited Case C-121/03 Commission v Spain. There, the Court stated at para. 60:

 "As the Spanish Government correctly maintains, livestock effluent may, on the same terms, fall outside classification as waste, if it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified parcels and if its storage is limited to the needs of those spreading operations."

92.                   The respondent highlights the reference to "discard" and submits that this case does not concern the storage of slurry, which was of central concern in Brady. Further, counsel for the respondent suggests that the answer provided by the Court in Brady did not expressly refer to spreading on clearly identified parcels and further submits that Article 5 of the Waste Directive does not expressly mandate use on clearly identified lands.

93.                   The decision in C-121/03 Commission v Spain concerned an application by the Commission for a declaration that by failing to take certain measures to ensure that waste from pig farms was not disposed of without harming the environment or without endangering human health in an area in Gerona, Spain had failed to fulfil its obligations under a number of directives, including Directive 85/337/EEC (on the assessment of the effects of certain public and private projects on the environment) and various water related directives.

94.                   It was held, inter alia, that by failing to carry out impact assessments prior to the construction or alteration of pig farms, Spain had failed to fulfil its obligation under Directive 85/337/ EEC. It was also found that by exceeding the maximum admissible concentration for nitrate parameters provided in Annex IC of Directive 80/778/EEC, Spain had failed to fulfil its obligations under that Directive.

95.                   A complaint in relation to animal carcasses was rejected because Directive 75/442 was found not to apply to them. The Commission had, in that context, pleaded infringement of that Directive alone. That para. 60 is contained in that part of the judgment in which the court addressed the allegations of infringement of Directive 75/442 (a Directive addressing Waste), in respect of which a breach was not found, does not seem to me to detract from its relevance to the overall issue of required assessments. It may, nevertheless, provide context for the Court's observations. 

96.                   The complaints alleging infringement of Directive 85/337 were upheld by the Court. It was necessary to address the issue by considering farms created or altered before the 14^th March 1999. At para. 76 of the judgment, the argument of the Commission is recorded - i.e. that because of the negative effects of pig farms on the environment, in particular water pollution and odours, and because of their location to zones declared vulnerable by the Spanish authorities themselves, prior assessment should have been undertaken. The Court agreed. At para. 80 it stated that "the characteristics of the farms concerned required that they be subjected to an impact assessment",  with emphasis being placed by the Court on Article 2(1) of Directive 85/337.

97.                   It was determined that the characteristics of the farms in question, including their size, location in a vulnerable zone, the high number of farms in the same zone and the particular difficulties connected to that type of livestock, necessitated them being subjected to impact assessments (see para. 88). Spain was also found to have been in breach of its obligations in relation to the maximum admissible concentration of permitted nitrates in various public water distribution networks in the area in question.

98.                   It is perhaps of contextual relevance that Commission v Spain concerned an enforcement action against a Member State for failing to ensure that farms on which pig slurry was to be spread were properly assessed. Further, while as contended by the appellant, the CJEU's answer in Brady did not expressly refer to spreading on clearly identified parcels of land or that Article 5 of the Waste Directive does not expressly specify such identification requirement, and while I do not believe that this is determinative, nevertheless, it provides further context for the consideration of the issues in this case.

Context and Circumstances

99.                   The trial judge spoke of context and circumstance. I refer to para. 133 of his decision, reproduced at para. 66 above, where he referred to the central "context and circumstance" being "that which relates to the scheduled and licensed activity of intensive poultry rearing of 74,000 broiler chickens located in an installation located at Rathcahill West". His jurisdictional conclusion was that the IE licence related to the site of the activity for which the licence application was made, namely the intensive poultry rearing of 74,000 chickens located at the installation, and that it did not extend to the lands on which organic fertiliser may be used as fertiliser. He continued at para. 135 as follows:

"As indicated earlier in the judgment, the question of the manner in which the Agency interpreted its jurisdiction in this case is directly related to the scheduled activity applied for prescribed by the provisions of the EPA Act 1992 and subsequently licensed, namely the intensive rearing of poultry in an installation located at Rathcahill West, Templeglantine, Newcastle West, County Limerick which capacity comprised 74,000 broilers and not the future land spreading of poultry litter or wash water on other lands or its possible treatment as waste, as contend for on behalf of the Applicant."

In reaching his conclusion, he emphasised dicta of Hogan J previously referred to in this judgment.

100.               The appellant's challenge concerns the legality of an authorisation issued by a licensing body. Spreading of fertiliser on land is regulated in this jurisdiction by the DAFM. This regulatory regime, or how it is adhered to or implemented, is not the subject of challenge in this case; nor is the State a continuing party to these proceedings. Assessments are required to be conducted where the amount to be spread exceeds the stated threshold. This also provides further context and circumstance regarding the exercise by the respondent of its power to grant the IE licence to the notice party.

Conclusions

101.               Ultimately, the trial judge found that the manner in which the respondent made its decision correctly defined the ambit of its statutory and regulatory powers and jurisdiction under the 1992 Act, including section 83 (1), 83 and 86 thereof and that the respondent had acted lawfully.  I am satisfied that the trial judge was correct in concluding that the respondent properly defined the ambit of its statutory and regulatory power under the legislation as applying to the intensive rearing of poultry within the installation boundary. The trial judge found that the respondent's power did not extend to the authorisation of the possible end use of the poultry litter or wash water generated from the notice party's activity as organic fertiliser or as waste on land outside the installation. I am satisfied that he was correct in so doing and that the obligation of the respondent did not extend to screening out/conducting an appropriate assessment of non-installation lands on which such organic fertiliser or waste might be spread. The trial judge concluded, correctly, in my view, that the licence, including its conditions did not authorise or regulate either the use of poultry litter in mushroom compost or land spreading and that the respondent, by imposing conditions on the licence, was not purporting to regulate its end-use on other lands.

102.               The conclusion of the trial judge, with which I agree, as to what the respondent authorised, as opposed to what it did not, is also an answer to any contention that there was an obligation on the respondent to assess the effects of land spreading of organic material on any of the spread lands under the Water Framework Directive. In An Taisce v An Bord Pleanála, Hogan J observed at para.152 that it would be "entirely unrealistic to say that the principles of Weser could be applied beyond the confines of anticipated discharges from the factory (whether in the course of construction or its operation) into watercourses". He stated:

 "[T]he suggestion that the Board should consider and examine discharges from each of these 4500 farms in order to ascertain compliance with the requirements of Article 4 (1)(a) of the WFD prior to granting planning permission in the present case is, again with great respect, simply divorced from reality." (para. 152)

103.                Again, in this context, it is important to reiterate what the licence authorises and what it does not authorise. The "activity" being licenced is that being conducted at the installation. In those circumstances, I am not satisfied that to impose an obligation on the respondent to conduct an assessment of destination, or end use lands, is one which is envisaged by the legislative regulatory framework or, in  my view, supported by the authorities.  I am not satisfied that an error has been identified in the approach or reasoning of the trial judge, particularly in light of the decision of Hogan J in An Taisce v An Bord Plenanala, or Allen J in Kemper.

104.               The above conclusions as to what is authorised by the IE licence, in my view, also answers the arguments centred on the suggested effect of the conditions. The structure of s. 86 of the 1992 Act makes it clear that there are certain types of conditions which must be attached and there are others which may be attached. The imposition of conditions  in relation to the recovery or disposal of waste arising from the activity on land other than land on which the installation is situated is a permissive, not mandatory, power and I am not persuaded, in the circumstances of this case, that it ought to be construed in mandatory terms.

105.               I am also satisfied that when considering an application for a licence, the respondent is entitled to have regard to the statutory and regulatory framework which imposes obligations on other statutory bodies.  On the issue of mitigation, the trial judge observed at para. 89 of his judgment that:

"In this regard, my finding that the Agency, when considering the application which was made to it from Mr. O'Connor, correctly defined the ambit of its statutory and regulatory power in the EPA Act 1992, including sections 83 to 86 thereof, as applying,to the intensive rearing of poultry within the installation boundary and 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, addresses and rejects the Applicant's argument that there was an erroneous Stage 1 screening out of the appropriate assessment for land spreading by relying on the Nitrates Regulations as a mitigation measure".

I do not see any good reason to disagree with this analysis.

106.                To the extent that it is contended that it is a policy of the DAFM not to enforce provisions of the Nitrates Directives and Regulations, this case does not concern a challenge to any such policy. The DAFM is not a party to these proceedings. This action is not, nor can it be, a vehicle through which to mount such a challenge. Nor, in my view, is it an issue which falls to be considered by the respondent in the exercise of its statutorily defined and confined licensing powers. A failure on the part of another statutory body or governmental department to properly comply with its obligations, or to adopt a policy which eschews any such obligation is a matter to be addressed with that body in an appropriate manner, or in appropriate proceedings should they become necessary.

Summary  

107.               The trial judge approached the central legal test to be applied in jurisdictional terms. The issue was whether the respondent, in not assessing, authorising and regulating the final end use, off-site, of those substances, through land spreading on other lands, or its disposal as waste, had correctly defined the ambit of its statutory and regulatory power. I am satisfied that the trial judge was correct in thus identifying the legal issue and was also correct in his conclusions that the respondent had acted within jurisdiction and had not acted unlawfully when granting the licence.

108.               I am also satisfied that the trial judge was correct in determining that the licence authorised, and only authorised, on-site activities at the installation and not on other lands. That we are here concerned with an IE licence, rather than a planning permission, or that the number of "off-site" lands may be fewer does not, in my view, provide a basis for distinguishing the principles outlined by Hogan J in An Taisce v An Bord Pleanala, and by Allen J. in Kemper. The essential point is that the activity to be assessed is the activity capable of being licensed under the  First Schedule to the 1992 Act - "the rearing of poultry in installations where the capacity exceeds 40,000 places" .

109.               While the licence may have addressed what was to happen to poultry litter and wash water which was taken off-site, this was no more than a recognition and acknowledgement of permissible means of disposal, including land spreading, under the relevant legislative regime. It was not an authorisation of land spreading. Condition 8 does not have the effect of authorising off site activities when the licence is considered and interpreted as a whole.

110.               When issuing an IE licence, the respondent is entitled to have regard to the statutory and regulatory framework which imposes obligations on other statutory bodies.

111.               That the respondent did not conduct individual assessments of destination off site lands on which poultry litter and wash water might be spread is not unlawful and does not invalidate the licence.

112.               The appeal must therefore be dismissed.

113.            The appellant has not been successful on this appeal. The court notes from the perfected order of the High Court that no order was made in respect of costs. My preliminary view is that a similar order should be made on this appeal and in so doing, I make certain assumptions regarding the Aarhus Convention.  Should the parties wish to contend for any other order in relation to costs, they are at liberty, within 21 days from the date of electronic delivery of this judgment, to file and serve a short written submission, limited to not more than 1,500 words, setting out the order sought and the basis for it, in which event the other party will have a further period of 14 days thereafter in which to file and serve replying submissions, again limited to not more than 1,500 words.

114.                   As this judgment is being delivered electronically, Noonan and Meenan JJ. have authorised me to say that they agree with it and with the orders proposed above.

Appendix I - Submissions on Appeal

The Appellant's Submissions

115.                   The appellant submits that there are three issues to be decided on this appeal.

(1)         Does the impugned licence as a whole, and in particular condition 8.10 therein, authorise poultry litter or wash water to be disposed of off-site by way of land spreading as a fertiliser or disposal as waste?

(2)         Did the High Court correctly define the scope of the respondent's jurisdiction to make the impugned decision?

(3)         Do the GAP Regulations justify the respondent's approach?

116.                   Strictly speaking, while the first issue was a matter of dispute between the parties, it was not central to the judgment as the trial judge approached the case as one of jurisdiction - i.e. what could be authorised rather than what was. The trial judge observed that poultry litter would be sent for use in the mushroom compost production industry and may also be sent for land spreading. Reliance is placed on the representations of the National Parks and Wildlife Service (within the Department of Arts, Heritage and the Gaeltacht) both in the context of the planning process and in the application for the licence, and the failure of both the planning authority and the respondent to act on those representations.  It is submitted that it is evident that the licence expressly envisaged the use of poultry litter and wash water as organic fertiliser. There is no condition prohibiting such use. There is nothing equivalent to the standard provision in planning decisions that the project be carried out in accordance with that which was proposed in the application. The licence does not require poultry litter to be sent for composting. Condition 8.10 of the licence required the Notice Party to record, in a register, the movement of poultry litter to customer farmers off-site, which is inconsistent with the respondent's claim that it assessed the application on the understanding that all poultry litter would be sent for composting, rather than land spreading. The licence, at paragraph 8.11.1 and 8.11.2, required the licensee to annually report to the respondent occasions when poultry litter is managed in ways other than spreading on land and prohibits the direction of poultry litter to composting or other such outlets without its prior approval. No record exists of any application by the Notice Party to the respondent for consent to send poultry litter to a composting facility, or approval for same. There is no mention by the Notice Party in its Annual Environmental Reports (AERs) of details of recipients of poultry litter for recovery/disposal other than by land spreading. In the operation of the licence, the common understanding between the respondent, in its regulatory role, and the developer, in its licensee role, appears to be that land spreading is the default permitted methodology for managing such material. This is consistent with the wording of the licence itself. An audit of poultry litter records and the poultry litter plan conducted by the respondent on the 1^st  September 2020, found compliance with condition 8.10 of the licence, relating to land spreading of poultry litter by "customer farmers", rather than condition 8.11, which concerns composting. It is clear from the conditions which were attached to the licence, in particular conditions 8.10 and 8.11, that the respondent has inserted conditions about the use of the poultry litter for land spread; and therefore it does not lie with the respondent to contend that this was not contemplated or authorised by the licence.

117.                   With regard to the second issue - whether the trial judge correctly defined the scope of the respondent's jurisdiction to make the impugned decision - the appellant submits that, as the destination of the poultry litter or wash water generated by the licensed activity is not separable from the licenced activity, emissions do not necessarily stay within the boundary of a licenced site and do not cease to be emissions once they leave that site, the answer to this question must be "no". The generation of poultry waste is central to the inclusion of intensive poultry farming within the scope of the IE Directive. Nitrates are polluting substances and are precisely what the respondent is meant to be regulating.

118.                   Poultry litter and wash water constitute waste, rather than animal by-product. There is no indication that the standard of certainty identified in Brady, that the substances to be spread or composted, were not waste within the meaning of the legislation in circumstances where the respondent did not know the location of spread lands; and where there was no evidence before the respondent that the land spreading of poultry litter was part of a continuing process of production or that the substance was being marketed in economically advantageous terms. Further, in determining whether a substance is waste or otherwise, reliance is placed on dicta from Commission v Spain, referred to at para 7 of Brady, that:

"As regards, more specifically, livestock effluent such as that at issue here, the Court has already held that it may fall outside classification as waste if it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified parcels and if its storage is limited to the needs of those spreading operations (Case C‑121/03 Commission v Spain, paragraph 60)." (Emphasis added). As the lands on which spreading are not clearly identified, it is submitted that the spread substances must be considered to be "waste".

119.                   The appellant reiterates on this appeal arguments made to the trial judge, including that:

i.    The failure to conduct an appropriate assessment went to the jurisdiction of the respondent to grant the permission. Reliance is placed on decisions of the High Court in Eamonn (Ted Kelly v An Bord Pleanala and Ord [2014] IEHC 422 and Connelly v An Bord Pleanala [2018] IESC 31, that an appropriate assessment is necessary in respect of all aspects of the plan or project.

ii.  An Appropriate Assessment cannot be "screened out" by reference to mitigation measures and that this is precisely what occurred because the respondent had placed reliance on regulatory measures associated with the Nitrates Directive.

iii.    The trial judge did not ask himself the right question when he concluded that the legal test which he had to consider and apply was not the test for Appropriate Assessment screening under Article 6 (3) of the Habitats Directive. What was required to be addressed in the appropriate assessment were all aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site's conservation objectives. Excluding the disposal of the poultry litter and disposal of wastewater from the scope of the assessment was fundamentally at odds with existing and applicable jurisprudence.

iv.    The GAP regulations have a much wider scope than poultry litter which does not make them suitable to deal with emissions generated from an operation that requires an IE licence. Those regulations do not justify restricting the scope of the assessment under the licence procedure. The appellant repeats the argument that the GAP  regulations do not require a permit for land spreading under 170 Kg N, and that even though a permit is required above that level, in practice no farm level AA or AA Screening is carried out, a matter which was candidly accepted by the Minister in An Taisce v Minister for Agriculture. Any suggestion that it is possible for the Department to know and take account of the additional input of nitrogen and phosphorus from the activity with a view to ensuring that there is no downstream environmental pollution, is unfounded.

v.  A competent national authority may authorise an activity on a protected site only if it has made certain that the activity will not adversely affect the integrity of that site. Reasonable scientific doubt remains as to the absence of such effect. The Inspector's report contained a number of errors, and it lacked the required certainty beyond reasonable scientific doubt of no effect on European sites.

 

The Respondent's Submissions

120.                   The respondent submits that:

i.          The trial Judge correctly held that the jurisdiction of the respondent related to the scheduled activity applied for, and subsequently licensed, specifically the rearing of poultry in an installation located at the Notice Party's premises where the capacity exceeds 40,000 places and comprises 74,000 broilers.

ii.        Land spreading is not an "activity" listed in the first schedule of the 1992 Act, it is not carried out on the site of the activity; the activity with which the respondent is concerned for the purposes of the licence is poultry-rearing with a capacity exceeding 40,000 places.

iii.        The licence as a whole, and in particular condition 8.10, does not authorise poultry litter or wash water to be disposed of by way of land spreading as a fertiliser or waste outside of the boundaries of the installation. While the licence does include conditions relating to the movement of organic fertiliser off the site, that, per se, does not authorise land spreading of organic fertiliser on third-party lands. Condition 8.10 is not limited to cases where litter is to be used for land spreading, it applies to the movement of all materials off site, including material that is to be sent for composting.

iv.      Land spreading, were it to occur, is subject to regulation under the Nitrates Regulations. The assessment of the environmental effects of land spreading is a matter for the  DAFM. This is evident from the licence itself, which records the respondent's Appropriate Assessment.

v.        The licence authorises storage of wash water on-site until transported off-site to be used as a fertiliser on identified spread lands. The licence does not authorise the spreading of wash water, as the land identified as spread lands is outside the boundary of the installation to which the licence relates.

vi.       The information supplied by the Notice Party confirmed that poultry litter would be removed from site. DAFM Record 3 returns for 2016 included details of farms to which poultry litter had been supplied. It did not alter the fact that the Notice Party, as part of the licence application, had stated that all of the poultry litter would be sent to Custom Compost for use in the production of mushroom compost. On the 26^th of August 2016, the respondent sought information in respect of the spread lands for slurry and the Notice Party confirmed that wash water would only be spread on land identified on a map, amounting to approximately 5.8 ha.

vii.     Land spreading is not the default permitted methodology for managing poultry litter, as asserted by the appellant. Land spreading of organic fertiliser is not authorised under the licence. The licence requires that all organic fertiliser be removed from the installation and that records of same are maintained and submitted where necessary to the DAFM. The licence imposes conditions on the movement of organic fertilisers from the site, and where it is to be used, other than as a fertiliser.

viii.    Poultry litter and wash water are not "emissions" or "waste" as defined in the 1992 Act, or in the Waste Directive. They fall to be considered as Category 2 Animal By-product material. The Animal By-Product Regulation classifies byproducts into categories. Poultry litter and wash water are categorised as Category 2 material being "manure, non-mineralised guano and digestive tract contents". "Manure" is defined as "any excrement and/or urine animals other than farmed fish, with or without litter". The Animal By-Product Regulations identifies options for the disposal of category 2 material, which include use for the manufacturing of organic fertilisers or soil improvers, composted, biogas or land application without processing in certain identified circumstances. Animal byproducts are excluded from the Waste Framework Directive. The appellant has not identified any reason why poultry litter and wash water do not fall within the scope of the Animal By Product Regulations. Waste waters are excluded from the Waste Directive to the extent that they are covered by other Community legislation and therefore, they become excluded on the basis that they are Category 2 Animal By- Product. Poultry litter and wash water are organic fertilisers which may be used for land spreading in accordance with the Nitrates Regulations, which are enforced by the DAFM. In the application, the Notice Party proposed that the poultry litter would be sent off-site to mushroom compost facilities. The Inspector also recorded that poultry litter may also be sent off-site for use as fertiliser by farmers in accordance with the Nitrates Regulations. However, the licence related to the site of the activity in respect of which the application had been made. The licence did not extend to lands on which poultry litter may be spread.

ix.      Even if poultry litter and wash water fall within the scope of the Waste Directive, neither falls within the definition of waste on the facts of this case. The definition of "waste" turns on the concept of "discard" and must be interpreted in light of the aim of the Waste Directive, being a broad definition focused on the intention to discard, where all circumstances should be taken into account. The licence application included the detail that all poultry litter would be sent for composting.  The reuse of the poultry litter and wash water is a certainty, and the use of wash water is part of a lawful practice of spreading on clearly identified lands and its use is limited to the needs of those spreading operations.

x.        As the application was for a licence for intensive poultry rearing at the installation, the respondent was not required to conduct an Appropriate Assessment in respect of land spreading. The appellant's contention regarding the GAP regulations fails to appreciate that it is the requirements of the 1992 Act that restricts the scope of the assessment to the licence granted in respect of an activity listed in the First schedule and which is carried out in an installation. The licence does not extend to lands on which poultry litter and wash water may be spread as an organic fertiliser. As such, an appropriate assessment was not required in respect of land spreading. The respondent does not regulate or monitor land spreading.

xi.      The environmental impact assessment and the appropriate assessment carried out by the respondent considered and addressed the fact that poultry litter and wash water will be generated as a result of the licenced activity. The licence contains conditions to ensure:

a. that adequate storage of an appropriate quality is provided for such material on-site, that such material would be handled in an environmentally safe manner, and

a.                                                        that licenced transporters would be used for the transport of such material off-site and that proper records be kept of all third parties to whom such material is transported.

For these reasons, the respondent submits that it was not required to carry out an Appropriate Assessment of third-party lands.

Result:     Appeal dismissed.