1. The Applicant ("Mr Sweetman") seeks certiorari quashing the decision of the First Respondent ("the EPA") made on 22 June 2023 pursuant to s.90(2) of the Environmental Protection Agency Act 1992, [1] ("the EPA Act 1992"), to grant an Industrial Emissions licence (# P0040-03 - "the Impugned Decision") to the Notice Party ("Anglo Beef") for "the disposal or recycling of animal carcasses and animal waste with a treatment capacity exceeding 10 tonnes per day" at Christendom, Ferrybank, County Waterford ("the Rendering Plant" or "the Plant").

2. Mr Sweetman also seeks a declaration that the State has failed to properly transpose Articles 1 to 6 inclusive of the EIA Directive 2014/52/EU (the "EIA Directive" [2]) in the granting of development consent for projects requiring industrial emissions licences in circumstances such as those challenged.

3. At trial, counsel for Mr Sweetman indicated that this declaration was the primary relief which he sought. It became clear that he regarded the Impugned Decision and the environmental effects of the Rendering Plant as merely the occasion rather than the cause of this litigation - they are merely the vehicle for, and are not the substance of, his concerns. He maintained his claim for certiorari but it seemed, only on a precautionary basis in case its abandonment would imperil his claim for declaratory relief. I confess I did not entirely understand the submission and it was somewhat difficult to understand in the context of the modularisation of the claim against the State such that that claim is not, as yet at least, for decision.

4. However, Mr Sweetman also pleaded a claim for a "catch-all" relief by way of "Such declaration(s) of the legal rights and/or legal position of the Applicant and/or persons similarly situated and/or of the legal duties and/or legal position of the respondent(s) as the Court considers appropriate." I interpret his position as being that he would be satisfied with only a declaration of legal error by the EPA in not conducting an EIA or EIA screening - though how such limited relief could be reconciled with the State's remedial obligations at EU law to "nullify the unlawful consequences of breach of EU law" [3] was not explored.

Brief Account of the Rendering Plant

5. The EPA's Inspector records [4] that at the Rendering Plant, Anglo Beef now

"render animal by-products ... arising from the slaughtering and meat processing industry as well as fallen animals to produce meat and bone meal ... and tallow. The installation sources its raw materials from abattoirs and fallen animal licensed collectors." [5]

The Plant renders over 100,000 tonnes of raw material per year. It does so via processes including crushing of carcasses, continuous cooking, liquid removal to produce fats and tallow and sterilisation of both the removed tallow and the remaining solids. The main emissions to air are from a boiler, a recuperative thermal oxidiser and a biofilter. [6]

6. The Plant lies close to residential areas, including housing estates. The EPA's Inspector described the risk of odour as follows:

"Odour is the main concern in relation to air emissions from a rendering installation. There are a number of residential properties within 200m of the site and several housing developments within 500m of the site as shown in Figure 7.3.

The malodorous emissions from processing mainly arise from gaseous odour emissions from intake areas and discharges from cookers, presses and decanters/centrifuges. Other sources can include the displacement of malodorous air from the tallow and meat & bone meal storage tanks, condensate tank, pipework, manholes, spillages, building integrity, the cleaning of process equipment, and the operation of odour abatement infrastructure beyond its design specification." [7]

7. The EPA's Inspector described the complaints of odour and the 89 valid submissions in the licence review, as they relate to odour, as follows:

"since 2013, at the time of writing, there have been 109 complaints, 107 of which related to odour." [8]

The submissions in the licence review, as they related to odour were summarised as follows:

"1. The air quality and the obnoxious smell emanating from the rendering plant.

2. It can get so pungent at times that it makes people when outside/walking sick/nauseous to a vomiting point.

3. The smell can cause migraines also.

4. The windows need to be closed so the smell does not come in to the house.

5. Garden space can't be enjoyed because of the pungent smell coming from this factory and the trucks associated with the factory.

6. Can't hang clothes out to dry outside during the warmer weather when the smell is constant because the clean clothes smell of death and decay.

7. In calm weather, the heavy emissions linger and do not disperse for some time.

8. The requirement to cancel get togethers of family and friends due to the smell.

9. The gases that are omitted from the factory must be a health hazard.

10. Is there any research that has been carried out into the release of gases from the factory?

11. The requirement to block the air vents in homes to stop the smell coming into the home.

12. The smell is identifiable up to the Milepost area, Gyles Quay area, Abbey Park, Rockshire Road, Golf Links, the Quay in Waterford City, Newtown & Ardkeen area.

13. Pupils at the local schools are constantly subjected to the smell coming from the plant and also from trucks that pass during the day releasing a sickening smell that causes nausea on a daily basis.

14. Classrooms in the local schools and local residents keep windows closed due to the pungent smell.

15. Tourists cycling in Ferrybank/Greenway almost vomit due to the smells coming from the plant and trucks.

16. How do locals sell tourism offering and the attractions of the city to visitors if one of the most notable things about a visit to Waterford will be the air pollution a visitor will experience while walking through the city.

17. There are three retirement / Nursing homes in Ferrybank all of whom carry a significant number of elderly people who have contributed to building our community - they deserve the right (some with mobility restrictions) to enjoy the outdoors and open windows for fresh air in their living quarters.

18. Having to explain to visitors/friends/communion guests that the awful smell is from the meat plant which is mortifying and can't be healthy.

19. A submitter suffers badly with their oesophagus and can get quite a lot of inflammation as a result of the odour. Vomiting from the smell can cause a lot of issues for the submitter. When the submitter gets a bad attack, the submitter has serious difficulty breathing.

20. A submitter suffers from a stomach health problem. When this smell and polluted air is released he has to close all the windows.

21. The submitters have witnessed dead meat and carcasses dumped on a concrete slab opposite a factory entrance waiting to be processed, there were at least five hundred seagulls feeding off this waste. They brought this to the attention of ABP at the time. They cannot understand why this waste is not immediately processed in a sealed factory.

22. A submitter has a medically diagnosed lung condition and also suffers from asthma attacks, so they can't risk being outdoors when the smell occurs.

23. More recently, there have been public health concerns that odour sensations themselves, or perhaps the agents responsible for odour, may in fact cause health effects. Such odours often elicit complaints of respiratory irritation, headache, nausea and other adverse symptoms. While the mechanism for the production of these effects is not known, these effects have been noted at concentrations of substances that produce unpleasant odours. Postulated mechanisms include neurological changes in sensory nerves that could influence symptom production in the absence of other toxicological effects." [9]

8. As to odour sources in the Rendering Plant and the thermal oxidiser, the Inspector says:

"The non-enclosed biofilter [10] ... has been identified as the main source of the malodour at the installation. The biofilter is used to treat odour emissions from the intake buildings (raw material and crushing vapour), decanter vapours, tallow steriliser vapours, vapours from storage silos and storage tanks (incl. blood tanks, the MBM [11] tanks and tallow tanks), vapours from meat & bone meal off-loading and tallow off-loading. ... The biofilter is currently not enclosed and the RD [12] specifies to enclose the biofilter and channel the emission to a 10-metre stack within six months of the date of grant of licence to minimise odour from the biofilter.

Vapour emissions from the continuous cooker (13,000 kg/hr-rendering process) and other processes (7,000 kg/hr pressing process and MBM steriliser vapour) are extracted via an air collection vessel located above the cooker and are oxidised in the thermal oxidiser. There is also 20,000 kg/hr of combusted air (process air from the cooker area) oxidised in the thermal oxidiser. The thermal oxidiser is identified as contributing minor amounts of odour emissions. [13]

"Volatile Organic Compound (VOC), Particulate Matter (PM), Nitrogen Dioxide (NO2)

and Sulphur Dioxide (SO2) emissions arise from the combustion of fuel and oxidation of gases from the standby boiler and recuperative thermal oxidiser. A thermal oxidiser comprises a 3-unit system that consists of an oxidation chamber, where the gases are heated (in this case to 750°C); a retention chamber, where the temperature is maintained for the required time, e.g. 1 - 2 seconds; and a boiler. A chamber operating temperature of 850^oC shall be maintained as a minimum when using tallow as a fuel in accordance with European Union (Animal By-Product) 2011 Regulations, as amended. The oxidation chamber is designed to optimise mixing of flue gases, vapours and air from the processing plant. Operation of the system is controlled automatically to maintain the required process conditions. The recuperative thermal oxidiser recovers the heat from the process gases and recycles it back into the cooking process, thereby reducing fuel consumption and cutting costs."

9. The Inspector records [14] "Agency Response" to the submissions in terms which include:

"... use of a thermal oxidiser and a biofilter as odour abatement techniques is deemed BAT [15] and is commonly used in the many rendering installations throughout the EU."

"The licence review process included modelling of the emissions to atmosphere to determine the potential for off-site impact."

"The findings of each study found that the emissions to air from the activity would not lead to a breach of any air quality standard or indicative odour standard (at the nearest sensitive receptor) nor would it lead to any negative effect on human health."

"With regard to the impact on local amenities and tourism, the modelling confirms that the operation, monitoring and control of the thermal oxidiser and biofilter as required by the licence to achieve the limits specified in the licence will not lead to a deterioration in air quality in the vicinity of the plant and will not impact on human health.

In any case, Condition 5 requires that the emissions from the activity, including odours and dust, shall not result in an impairment of, or an interference with amenities or the environment beyond the installation boundary or any other legitimate uses of the environment beyond the installation boundary."

10. It is, with respect, difficult to understand the observation, at least in literal terms, that the "operation, monitoring and control of the thermal oxidiser and biofilter as required by the licence to achieve the limits specified in the licence will not lead to a deterioration in air quality." The cause of any posited deterioration in air quality would not, on any view, be the oxidiser and biofilter - it would be the operations, condition generally and emissions of the Rendering Plant. The very purpose of the oxidiser and biofilter is to mitigate that deterioration. The relevant question would seem to have been whether the oxidiser and biofilter would be effective to mitigate odour to an acceptable level. However, it seems to me that, taken as a whole and read reasonably in its general context with a view to its validity, the Inspector's report is to be read as expressing the view that the oxidiser and biofilter would be effective to mitigate odour from the Plant to an acceptable level.

Industrial Emissions Licensing - Historical Review & S.90 of the EPA Act 1992

11. I confess to having found the development over time of the industrial emissions licensing system confusing. At my request, counsel for the EPA provided a succinct and illuminating chronological account - if, doubtless somewhat simplified. Though at this stage the sequence is in appreciable degree of historical interest, it nonetheless seems to me to be worth recording. [16]

12. In 1992, creditably on its own initiative and it seems not in reaction to EU initiative or legislation, Ireland by the EPA Act 1992 created its own Integrated Pollution Control ("IPC") regime to regulate pollution by industrial emissions (of listed industrial activities) by means of IPC licenses issued by the EPA.

13. By the Integrated Pollution Prevention and Control ("IPPC") Directive 96/61, transposed in Ireland by the amendment of the 1992 Act by the Protection of the Environment Act 2003, "IPPC" licencing very largely replaced the IPC regime. New licenses issued thereafter were IPPC Licenses. However, and understandably, the legislation provided transitional arrangements in the form of the review and amendment of pre-existing IPC licenses by the EPA to render them compliant with the IPPC Directive. As I understand, in many cases the amendments required were minor. Instead of issuing replacement licenses, the EPA issued documents recording the amendments and added indorsements to the IPC licences. In the present case that indorsement read:

"This licence was amended on 24^thMay 2006 under Section 82(11) of the Environmental Protection Agency Acts, 1992 & 2003. The details of the amendment must be read in conjunction with this licence. The amendment document is entitled s82(11)Amendment A."

The practical consequences included that:

· To understand the licence one had to look at two documents.

· What remained on its face and in form an IPC licence was now in law and substance an IPPC licence.

14. The IPPC Directive 96/61 was amended over time and then codified by IPPC Directive 2008/1. In turn, the IPPC Directive was replaced by the Industrial Emissions Directive 2010/75 (the "IE Directive" or "IED"). It was transposed to Ireland by the Industrial Emissions Regulations 2013 [17] and so IE licenses replaced IPPC licenses. Again understandably, this transposition also provided for the review and amendment of pre-existing IPPC licenses by the EPA to render them compliant with the IE Directive. Again, as I understand, the amendments required were in many cases minor. Again, instead of issuing replacement licenses, the EPA issued documents recording the amendments and added indorsements to the IPC licences. In the present case that indorsement read:

"This licence was amended on 16 December 2013 under Section 82A(11) of the Environmental Protection Agency Acts 1992, as amended. The details of the amendment must be read in conjunction with this licence. The amendment document is entitled 'IED Amendment'".

The practical consequences included that:

· To understand the licence one had to look at two (or possibly three) documents.

· What remained on its face and in form an IPC licence or an IPPC Licence was now in law and substance an IE Licence.

15. I am unaware why the EPA opted for this form of accommodating old licences to new legal regimes, instead of simply issuing replacement licences. No doubt, once they understood the method, the cognoscenti were able to accommodate to it. But it does seem to have been a system designed for cognoscenti rather than simplicity and ease of public understanding.

16. Finally and as I understand, a licence in form an IPC licence or an IPPC Licence but in law and substance an IE Licence remained in that form until review of the licence. From that point, form at last followed substance and an overtly "Industrial Emissions Licence" issued - as occurred in this case as a result of the Impugned Decision in the form of Licence P0040-03.

17. S.90 of the EPA Act 1992 relates to review of IE Licences. It requires review of IE Licenses periodically, on the publication of new BAT Conclusions [18] or on consent of the licensee or in the event of promulgation of certain new regulations or standard. Also, s.90(4) empowers the EPA to review a licence in its own initiative in specified circumstances. S.90(4)(a)(i) [19] enables review if the EPA considers "that emissions from the activity to which the licence or revised licence relates are, or are likely to be, of such significance that the existing emission limit values, or equivalent parameters or technical measures specified in the licence or revised licence need to be reviewed or new such values, parameters or measures, as the case may be, need to be specified in the licence or revised licence ...". On completion of a review, the EPA may grant or refuse to grant a "revised licence".

History of the Present Licence, the Impugned Decision & Absence of EIA

18. In 1997 the EPA issued an IPPC licence P0040-01 [20] for the Rendering Plant to Waterford Proteins [21] - a predecessor of Anglo Beef. In 2001, it was revised to IPPC Licence P0040-02. In 2002 Anglo Beef advised the EPA of its intention to install a thermal oxidiser in the rendering Plant to treat odorous gasses from its rendering and product cooling processes and thereby to reduce odour emissions. In April 2003, Anglo Beef got planning permission to do so and in December 2003 it advised the EPA that the thermal oxidiser was installed and operating. No licence review ensued at that point. The IPC licence was amended in May 2006 under s.82(11) of the EPA Act 1992 to comply with the IPPC Directive and again in December 2013 under s.82(A)(11 of the EPA Act 1992 to comply with the IE Directive. Neither amendment addressed the thermal oxidiser.

19. The EPA indicated by counsel that it had in 2017, following a site visit and resultant report recommending corrective action, requested Anglo Beef to request a licence review to address the thermal oxidiser. Anglo Beef did not request a licence review – for reasons unknown to me. Accordingly, in what I am told is a relatively rare course of action, the EPA by letter dated 8 December 2020 itself initiated a review of the IE Licence in accordance with s.90(4)(a)(i) of the EPA Act 1992 [22] "due to material changes in the nature and extent of emissions at the installation." The documents emitting from the EPA at that time do not elaborate on the material changes or their source. However, the papers before me reveal that the EPA's main reason for the review was that the operation, control and maintenance of the thermal oxidiser was not regulated under IE Licence P0040-02. As the reader will no doubt have observed, and whatever the reason, a 16-year period had elapsed between the advent of the thermal oxidiser and the identification in 2017 of the desirability of a licence review by reason of its operation. I am unaware of what change of circumstance since 2003 rendered, in 2017, a licence review necessary by reason of the operation of the thermal oxidiser.

20. In public participation in the licence review and as recorded above, 89 valid submissions were received from members of the public. Many objected to odour nuisance from the Rendering Plant. Three called for an EIA. Of some significance, Mr Sweetman did not make a submission.

21. After information gathering, [23] the EPA's Inspector issued a report dated 12^th January 2023. It proposed to the EPA the content of an AA [24] confirming the absence of adverse effects on the integrity of European Sites and included a Recommended Proposed Determination to grant the licence - it also proposed both licence conditions and reasons. On 27 January 2023, the EPA published its Proposed Determination. Anglo Beef objected on 20 February 2023 citing certain technical inaccuracies and seeking certain changes for operational reasons. A Report of the EPA's Technical Committee dated 23^rd May 2023 ensued and the EPA on 30 May 2023, in its Impugned Decision, decided to grant an "Industrial Emissions review licence". It issued on 22 June 2023.

22. The Reasons recorded for the Impugned Decision include the following:

"EIA, as respects the matters that come within the functions of the Agency, was not required for the activities to which this decision relates. The requirements of Section 83(2A) and Section 87(1A) to (10 of the EPA Act 1992 as amended do not apply to a review of a licence carried out by the Agency under 90(4)(a)(i) of the EPA Act 1992 as amended. Therefore, this licence review has not been made subject to an Environmental Impact Assessment (EIA)."

23. It is common case that it is a feature of s.83(2A) of the EPA Act 1992 that, as to a project of a type listed in Annex I or II of the EIA Directive and its Irish counterpart, the 5^th Schedule of the PDR 2001, [25] the need for EIA or at least EIA Screening in IE Licence reviews is explicitly stated save, as occurred here, in those reviews initiated by the EPA under s.90(4)(a)(i) of the EPA Act 1992.

GROUNDS, MODULARISATION & ISSUES AT TRIAL

24. It was apparent at trial that Mr Sweetman's concern is not with the specifics of, nor with the specific environmental effects of, the licensed activity of the Rendering Plant or, considered more narrowly, of the thermal oxidiser. His concern is with what he considers to be a lacuna in the relevant legislation whereby EIA, in breach, he says, of the EIA Directive, is not provided for as to EPA-initiated IE licence reviews under s.90(4)(a)(i) of the EPA Act 1992. [26]

25. Mr Sweetman pleads Core Grounds as follows: [27]

1. The Impugned Decision is invalid because the EPA granted an Industrial Emissions Licence without having first assessed the significant effects on the environment of the project in accordance with Articles 1 to 6 of the EIA Directive. The EPA had before it no objective information to support a conclusion in EIA of no significant effects on the environment "and/or contained lacunae". [28]

2. The Impugned Decision is invalid because the EPA, in failing to carry out an EIA of the project, failed to comply with the IE Directive. [29]

3. The arrangements in the EPA Act 1992, for licence reviews initiated by the EPA are incompatible with the State's obligations under Articles 1 to 6 inclusive of the EIA Directive and Article 6 of the Aarhus Convention [30] in that they fail to make such licence reviews subject to the EIA Directive.

4. The State has failed to properly transpose Articles 1 to 6 of the EIA Directive in the granting of development consent for projects requiring IE licences such as the Impugned Decision.

26. The case against the State - for the declaratory relief described above, sought on Core Grounds (3) and (4) above - is pursued but modularised and deferred and will not be addressed in this judgment. So this judgment addresses only the claim on Grounds 1 & 2.

Issues

27. At trial counsel for Mr Sweetman acknowledged and the other parties did not disagree, that, in reality, all turned on Ground 1: if it succeeded, success on Ground 2 would be unnecessary; if it failed, Ground 2 would necessarily fail also.

28. Accordingly the trial in effect ran on three issues: a preliminary issue of standing and Ground 1, which comprised two sub-issues, as follows:

· Whether Mr Sweetman has standing to litigate the substantive complaints he makes?

· If so, is the Rendering Plant a project within the description of Annex II, Class 11(i) of the EIA Directive - the English version of which reads "Knackers' yards" - such that at least EIA Screening and possibly EIA would be required for development consent for a project consisting of a rendering plant?

· If so, is the impugned IE licence a development consent for a project consisting of a rendering plant?

STANDING

Standing - EPA Act 1992 s. 87(10)

29. By s.87(10) of the EPA Act 1992, and as relevant, Mr Sweetman has standing to seek judicial review of the Impugned Decision only if the High Court is satisfied that he has "a sufficient interest in the matter which is the subject of the application". A sufficient interest is not limited to an interest in land or other financial interest. It is also relevant to note that an NGO "the aims or objectives of which relate to the promotion of environmental protection", [31] generally has such standing.

Standing - Pleadings & Evidence

30. The EPA pleads that Mr Sweetman has not demonstrated the required "sufficient interest" and so lacks locus standi to maintain the proceedings. They plead:

"14. The Applicant is not entitled to maintain the proceedings as he does not have a sufficient interest in the matter which is the subject of the licence review within the meaning of section 87 (10)(c) of the 1992 Act.

15. The Applicant has not established the evidential or legal basis upon which he asserts

a sufficient interest in the matter which is the subject of the licence review within the meaning of section 87(10)(c) of the 1992 Act. The Applicant did not participate in the licence review process before the Agency and does not otherwise have a sufficient interest within the meaning of the 1992 Act."

31. The State Respondents also make this plea - as follows:

"7 By way of preliminary objection, the Applicant has failed to establish sufficient interest in the Agency's decision to grant the Licence to bring these proceedings ...".

32. Mr Sweetman pleads that he has sufficient interest "as he is an individual with a recognised and long-standing interest and involvement in environmental issues."^{^[32]}His evidence as to his standing is as follows:

"I say that I am deeply concerned about the protection of the environment and have a strong interest in the conservation of the natural environment and in the proper application by Irish decision-making bodies of the legal protections to the environment afforded under European and Irish law when making decisions on matters to do with industrial licensing. I say that I have brought a number of cases in both this Honourable Court and in the European Court of Justice in order to protect against inappropriate development and to protect against real and potential threats to the environment. I say that both this Honourable Court and the European Court of Justice have as a result, established very high standards of protection for the environment.

I say that I am gravely concerned at what I perceive to be a major lacuna in the Environmental Protection Agency Act 1992 as amended whereby an apparently arbitrary distinction is made with regard to environmental impact assessment as between applications for an industrial emissions licence, including a review of an existing licence, initiated by the applicant or licensee and reviews of existing industrial licences initiated by the Agency. The former are subject to the EIA Directive whereas the latter are not. The statute thus requires that the same or similar projects be treated very differently with regard to EIA depending on the party initiating the licence review. This situation appears to be not only illogical and inconsistent but a breach of the purpose and intent of the EIA Directive."

33. The law on standing is in part directed at closing the doors of the court to cranks, busybodies or meddlesome or vexatious litigants - see for example Digital Rights [33] - Mr Sweetman began litigating environmental matters many years ago when, arguably, the importance of environmental protection and the requirements of environmental law were not appreciated as they are now. He may perhaps have been regarded by some or even many as a crank at that time. But it may be fair to suggest that he now fits, mutatis mutandis and having regard both to his failures and successes, into the category of litigant identified by Keane J in Lancefort [34] as "the citizen who is subsequently seen to have performed a valuable service ... who may at the outset be regarded by many of his or her fellow citizens as a meddlesome busybody." There may be a variety of views on that point even now and I do not take any. It suffices to note that the Respondents did not categorise Mr Sweetman as a vexatious litigant or dispute his assertion of a keen interest in matters environmental. I am prepared to take judicial notice that Mr Sweetman has prosecuted many environmental law cases over many years - some of which, whether he won or lost, have proved of importance for both environmental law and environmental protection. I also accept that he takes a keen and long-standing interest in such matters.

34. Of some note, Mr Sweetman does not explain why he did not participate in the licence review procedure before the EPA. Counsel sought on his behalf to say, but Mr Sweetman did not say in evidence, that he considered that it would have been pointless to submit to the EPA that they should perform an EIA when his complaint against the State is that the legislation providing for review of IE licences at the initiative of the EPA fails, in breach of EU law, to provide for EIA. This argument appears to me to ignore the point that, if his argument against the State is correct, the EPA would have been bound as an emanation of the State to have performed EIA in any event or, if not, to have halted the licence review process. Nor do I think it assists him to say that others raised the absence of EIA with the EPA to no avail so his participation would have been pointless. It is entirely possible, for example, that those others lacked his expertise and knowledge of EIA law and his capacity to make weighty submissions– we do not know. In any event, the point is made in hindsight: Mr Sweetman does not suggest that he knew before deciding not to participate (if he even did so decide - we do not know) that others could be relied upon to competently raise the EIA issue. Nor does Mr Sweetman assert proximity to the lands (he lives in Rossport, County Mayo), that he is or would in future be affected by the Plant or that he will be a victim of any adverse environmental effects of its operation pursuant to the licence. [35]

35. Indeed, counsel for Mr Sweetman made clear that the mischief his litigation seeks to address is "this particular system that's being operated by the State and the EPA" [36] - by which he means the exclusion of EIA from EPA-initiated IE licence reviews. He says:

· he is "somewhat indifferent as to the actual specific unit in this case"; [37]

· "I think the primary point in the case is one that transcends this particular development. It's one of general importance and one that is of general importance to my client, who is, as I said, a well-known environmental activist ..."; [38]

· "Grace v. Sweetman ... concerned hen harriers. There was a specific site-specific impact that was being dealt with in the context of a specific application for development consent and a specific Environmental Impact Assessment of that application. Here, Mr. Sweetman's complaint transcends the nitty-gritty of this application. ... We're not down in the weeds ... We're saying at a high level, as a matter of principle, the correct interpretation of the EIA Directive is contrary to the manner in which the EPA has been operating it and the manner in which the State has chosen to implement it. That's why I'm here seeking relief against the State and the EPA"; [39]

· "What we are interested in transcends the particular development. I'm not concerned in relation to the particular impacts, I'm not concerned with the amenities of the area, I'm concerned with the principled exception from the need to obtain EIA for this category of development. That's my case and I say that I have a peculiar or particular or personal interest in that case. I am not arguing about the emissions or the smells or the water impacts and so on and how they haven't been addressed, I am seeking declaratory relief also against the State and I'm using this as an example ..."; [40]

· "I am not making any complaint about any amenity value. My case is not about the effects of this development on the locality or the area as it was" and he accepted that he lacked standing to complain about the project"; [41]

· he is "not here complaining, as I was in Grace v Sweetman, about the individual impacts" and has "no concerns that the Bord should have modified the development." [42] He says - by counsel, but not in evidence - that the reason he made no submission to the EPA is because he had nothing to say to the EPA; [43]

· he has "said nothing about this development in these proceedings or otherwise. I have no complaint about this development. I am not criticising it"; [44]

· "the nature of the legal challenge that is mounted here is not site or fact specific at all. It is a generalised complaint about the licensing regime in this country. What Mr. Sweetman wants is a declaration that the manner in which these licences are being operated is incorrectly done"; [45]

· "While there is no physical proximity and he undoubtedly has an interest in environmental matters, generally, generally, he has placed no evidence before the Court to show there is any particular interest in the specific amenity value that is he is seeking to litigate". [46]

Standing - EIA Directive Article 11, & Aarhus Article 9

EIA Directive Art 11

36. Article 11 of the EIA Directive requires access to judicial review as follows

(1) Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(a) having a sufficient interest, or alternatively;

(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;

have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

(3) What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To that end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2) shall be deemed sufficient ...".

37. Article 1(2)(d) of the EIA Directive defines the "public" as meaning

"one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;".

Article 1(2)(e) of the EIA Directive defines the "public concerned" as meaning:

" ... the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2). For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest."

38. The parties agree that the IE Directive - primarily Article 25 - is not materially different in this respect.

Aarhus Convention, Art 9 & Art 2(4)&(5)

39. Article 11 of the EIA Directive and similar access to justice provisions of EU law have their origin in Article 9 of the Aarhus Convention which has influenced the interpretation of such provisions and which, in part, reads as follows:

2. Each Party [47] shall, within the framework of its national legislation, ensure that members of the public concerned

(a) Having a sufficient interest

or, alternatively,

(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,

have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of

this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention.

To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment."

40. Article 2 of the Aarhus Convention sets out definitions including the following

"4. "The public" means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups;

5. "The public concerned" means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest."

41. As Bobek AG states in LB, [48] the EU legislature intended to ensure the consistency of EU law with the Aarhus Convention, so the wording and aim of Aarhus must be taken into account in interpreting Article 11 of the EIA Directive. [49] As a result, in that case, Bobek AG found it most useful to assess the issue before him in Aarhus terms - that is a common approach.

42. As Bobek AG also states in LB, by Article 2(4) Aarhus, 'the public' means essentially everyone whereas by Article 2(5) Aarhus, 'the public concerned' is a subset of the public. It covers only 'the public affected or likely to be affected by, or having an interest in, the environmental decision-making'.

43. As will be seen from a comparison of Article 11 of the EIA Directive and Aarhus, Article 9 and as to access to justice, the EU legislature transposed only Article 9(2) Aarhus as to the public concerned, but not Article 9(3) as to the public. [50] However, apparently on the basis that Aarhus is part of the EU legal order, [51] the caselaw of the CJEU has nonetheless invoked Article 9(3) - see for example, LB [52] in which the court said that though Article 9(3) Aarhus permits the national imposition of "criteria" on access to justice, such criteria could not be such as to render ineffective judicial protection of EU environmental law rights or national environmental law rights. In LZ [53] the CJEU said that, though Article 9(3) is drafted in broad terms, it is intended to ensure effective environmental protection and that 'it is inconceivable [it] be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law'. The commission concluded in 2017 that Member States must "provide for legal standing to ensure access to an effective remedy for the protection of procedural and substantive rights conferred by EU environmental law even if the EU environmental legislation at stake does not contain specific provisions on the matter." [54] In Mr Sweetman's favour, I will assume that to be so despite the absence of a provision in the EIA Directive transposing Article 9(3) as to access to justice for the public as opposed to the public concerned.

Standing - The Law

44. In at least one sense, environmental law litigants are easy targets for sloganeering criticism: those from far away are decried as meddlesome outsiders with no genuine skin in the game or appreciation of local needs and conditions: those from nearby are decried as selfish NIMBYists. There can on occasion be truth in such accusations. But the general policy of the law is clear: by public participation in environmental decision-making and wide access to environmental justice in the courts, the public interests in environmental protection, good administration and legality of decision-making are in some degree "crowdsourced" - as Humphreys J put it in Atlantic Diamond . [55] The needs of environmental protection and those of necessary development to serve acute human and societal needs are often in tension and at times in conflict. Insistence on legality of decision-making and on "scrupulous rigour" and "detailed scrutiny" in decision-making (Weston [56] and Balz [57] - also Treascon [58]) can be seen (at times justifiably) as frustrating, delaying and even counter-productive. A balance must be found such that the best in bureaucracy and legality does not become the enemy of the good of society. Nonetheless, that insistence remains the only known means of arriving at solutions which command vital community support in a democratic society in which the vanquished must "accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live" (Balz). Quality and legality of decision-making are essential to both the achievement of vital, and often urgent, development and the avoidance of development which, experience has amply shown, society may come to repent at both leisure and great expense.

Onus of Proof of Standing

45. Importantly, applicants for judicial review bear the onus of proof of all matters necessary to their success in such proceedings. They must prove their standing to seek relief - Murphy. [59]

Actio Popularis & the General Rule

46. An actio popularis is an "Action at law of the people." It has been described as "A public or universal right to initiate a lawsuit or prosecution" [60] and as "a right resident in any member of a community to take legal action in vindication of a public interest". [61] McKechnie J in Digital Rights, [62] though not defining it, and in permitting an actio popularis in that case, described it as one in which a plaintiff seeks to litigate matters "which do not, or cannot, affect it personally and specially". In the environmental law context the EU Commission has described "actio popularis" as "a general legal standing in environmental matters for everyone". [63] Though the phrase was not used in Cahill v Sutton, [64] the concept was expressed in the observation that the general, though not invariable, rule is to require a person who impugns a particular legislative provision as unconstitutional "to show either that he has been personally affected injuriously by it or that he is in imminent danger of becoming the victim of it ... the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right."

47. In my view, on the pleadings, evidence and submissions adduced for Mr Sweetman as recorded above, he embarked in these proceedings on an actio popularis. There is no relevant distinction in this regard between a challenge to the constitutionality of legislation (as in Cahill) and an assertion that Irish law fails to properly transpose EU law in that it does not provide for EIA in EPA-initiated IE Licence reviews - which is, in the end, the central allegation in this case. Viewing the case as one of alleged failure by the EPA to properly apply EU Law or even Irish Law by failing to do an EIA or by refraining from deciding the licence review does not, in my view, alter the analysis in circumstances in which Mr Sweetman is self-professedly indifferent to the fate of this licence and, even, the particular environmental effects of the Rendering Plant.

48. I therefore find that Mr Sweetman in these proceedings has embarked on an actio popularis.

49. But, while it makes his task more difficult, that finding does not of itself decide the standing issue. Indeed, as is observed in Grace & Sweetman [65] citing Cahill [66] (the leading case on standing at Irish law), the Irish courts broadly require that a challenger establish adverse effect causing or likely to cause injury or prejudice but have typically applied a reasonably flexible standing rule in all judicial review proceedings - not just those involving a constitutional element. Also, standing rules are rules of practice - subject to expansion, exception or qualification when the justice of the case so requires. [67] And, as Digital Rights demonstrates, an actio popularis may, if untypically, be permissible.

Aarhus & EU Environmental Law on Standing

50. As has been seen, the Aarhus Convention provides distinct definitions for "the public" and "the public concerned". While clearly providing for wide access to justice in environmental matters, the access to justice rights [68] Aarhus provides differ as between those to which "the public concerned" are entitled by Article 9(2) and those to which "the public" are entitled by Article 9(3). The "public" includes essentially everyone. [69] The public concerned are privileged by Article 9(2) as compared to the protection of the public by Article 9(3) and the State parties to Aarhus are free as to the latter to impose "criteria ... laid down in its national law". Of these provisions Sharpston AG said in Djurgården [70] that the Aarhus Convention and the EIA Directive:

"rejected introducing an actio popularis for environmental matters. Although Member States can opt to make such a procedure available in their domestic legal orders, neither international nor Community law has chosen in this instance to do so. However, it seems to me that, precisely because that course was rejected, the authors of the Aarhus Convention decided to strengthen the role of non-governmental organisations promoting environmental protection. That formula was adopted in an attempt to steer a middle course between the maximalist approach of the actio popularis and the minimalist idea of a right of individual action available only to parties having a direct interest at stake. Giving special standing to non-governmental organisations reconciles these two positions. It seems to me to be a very sensible compromise.

For these reasons I take the view that the Aarhus Convention and [the EIA Directive] have deliberately chosen to reinforce the role of non-governmental organisations promoting environmental protection. They have done so in the belief that such organisations' involvement in both the administrative and the judicial stages not only strengthens the decisions taken by the authorities but also makes procedures designed to prevent environmental damage work better."

51. Bobek AG in LB [71] agreed with Sharpston AG - "it was the choice of the authors of the Aarhus Convention not to introduce an actio popularis in environmental matters" and that is why they strengthened the role of NGOs. The Commission likewise acknowledges that Aarhus and EU legislation allow the Member States to impose certain conditions and so to avoid standing in an actio popularis. [72] Recently, in Case C-252/22 [73] the CJEU in effect agreed with Sharpston AG - holding that State parties to the Aarhus Convention "are not obliged to establish a system of popular action (actio popularis) in their national laws with the effect that anyone can challenge any decision, act or omission relating to the environment."

52. Returning to Djurgården, I note that the CJEU, in somewhat convoluted language, held, in effect that members of the "public concerned" cannot be denied standing to judicially review a decision as to EIA by reason of their non-participation in the EIA/development consent process. However, that stricture does not apply to those who are merely members of the "public".

53. The CJEU in Djurgården also shed some light on the issue of "interest". As has been seen, by Aarhus Article 2(5), to be "concerned" a member of the public must be either affected or likely to be affected by, or have an interest in, the environmental decision-making in question. Ignoring the concept of effect as irrelevant to Mr Sweetman's case, it follows that to be "concerned" he must have an "interest". Once concerned, Aarhus Article 9 requires that he be given standing only if he has "a sufficient interest". [74] The question arises whether Article 9, by introducing a concept of sufficiency not found in Article 2(5), imposed an incremental requirement. The CJEU in Djurgården appears to so suggest - stating that "persons who are members of the public concerned and either have sufficient interest, or if national law so requires, maintain that one of the projects covered by (the EIA Directive) impairs their rights, are to have access to a review procedure." Indeed, if the interest rendering one concerned within Article 2(5) was automatically sufficient within the meaning of Article 9, Article 9 as to impairment of rights would be otiose as all members of the public concerned would have standing in virtue of interest. On such a view, Article 9(2) would simply have read: "Each Party [75] shall, within the framework of its national legislation, ensure that members of the public concerned have access to a review procedure before a court of law ...". As Farrell J observes in Murphy, [76] the CJEU in WertInvest [77] appears to confirm that the requirement is incremental: it ascribes standing to "an individual who is part of the 'public concerned', within the meaning of Article 1(2)(e) of Directive 2011/92, and who satisfies the criteria laid down by national law as to 'sufficient interest' or, as appropriate, 'impairment of a right', referred to in Article 11 of that directive". In practice it will often suffice to consider the issues of the existence and sufficiency of interest as a composite question. But the observation does usefully isolate the issue of sufficiency as representing a hurdle of at least some degree.

54. In the view of Sharpston AG in Djurgården, NGOs are explicitly given standing where they promote environmental protection for the very reason that, even though they are associations and hence members of the "public" within Article 2(4), they would not, but for that explicit provision of Article 2(5), be entitled to standing as members of the "public concerned" by reason only of their promotion of environmental protection. That can only be because the promotion of environmental protection is not, of itself, an "interest" within Aarhus Article 2(5) - much less a "sufficient interest" within the meaning of Aarhus Article 9(2). Or at least, remembering that sufficiency of interest is determined at national law, State parties are not obliged to recognise "promotion of environmental protection" as, per se, a sufficient interest. Yet that is, in reality, the only basis on which, in these proceedings, Mr Sweetman asserts his standing.

55. It seems relevant to observe therefore, in a case in which Mr Sweetman seeks standing in an actio popularis to assert an EU law obligation in EIA, that:

· The fact that the Aarhus Convention and EU environmental law are committed to wide access to justice does not confer standing on all individuals in all circumstances involving issues of EU environmental law.

· Aarhus does not require, and the EU by its law as to EIA does not require, that environmental law generally, and EIA law and practice in particular, be protected by affording standing in actio popularis to individuals. Rather it requires that individuals show at least an "interest" beyond that in an actio popularis and limits standing in actio popularis to bona fide environmental NGOs who comply with relevant national requirements compliant with the general rule of wide access to justice.

· In that sense, Aarhus and EU environmental law carrying it into effect confer, ceteris paribus, wider standing in environmental litigation on bona fide environmental NGOs than on individuals. Standing based only on an interest in "promoting environmental protection" is confined to NGOs - though of course national law may confer such standing on individuals if member states chose to do so.

· The national rules as to standing in Ireland in planning and environmental cases are typically and, in any event, in this case by s.10 of the EPA Act 1992, framed in terms of "sufficient interest". They are clearly informed by the use of that phrase in the Aarhus Convention and in the EIA Directive and so represent the adoption of the "very sensible compromise" identified by Sharpston AG as permitting actio popularis only to bona fide environmental NGOs and not to even well-intentioned individuals.

· For these reasons, it seems to me that whatever the undoubted flexibility and liberality of standing rules as they relate to issues of constitutional law and rights and human rights, and the undoubted flexibility and liberality of standing rules as they relate to issues of environmental law, the standing of individuals as to environmental law issues may, at least where governed by the Aarhus Convention and EU legislation implementing its principles as to standing, be governed by somewhat more restrictive rules than those governing issues of constitutional law and rights and human rights. It seems to me that, while there was nothing inevitable about this, essentially political, "compromise", neither is it particularly surprising.

· For that reason, even though, per Grace & Sweetman, [78] the analytic method is of first assessing standing by reference to national rules and only if they deny standing thereafter checking if EU law rules require its provision, there is in the case of at least some explicit national statutory standing rules a feedback loop from EU standing rules to national rules where, as here, the latter are based on the former.

LB (Distressed Pigs C-826/18) - 2020

56. In LB, [79] veterinarian challenged in her personal capacity a permit for a large pig unit in the Netherlands. She stated that by her profession and the oath she took on being admitted to it, she was personally concerned with animal well-being. [80] She lived 20 km away - out of range of the environmental effects of the pig unit. The permit was also challenged by three environmental NGOs. The objection of all four was that no EIA had been done.

57. As in Ireland and in excess of Aarhus requirements, [81] Dutch law allowed anyone to participate in the permitting process. But it limited standing in judicial review to "interested parties" [82] - those whose interests are directly affected by the decision - who had participated in the permitting process. [83] Unlike in Ireland (where prior participation, without more, guarantees standing) the Dutch conditions were cumulative - standing required both interest and prior participation. [84] None of the four had participated in the permitting process. [85] The Dutch court was minded to dismiss the action - as LB was not an "interested party" and, though the NGOs were by law deemed interested parties, [86] they had not participated in the permitting process. But it referred questions to the CJEU.

58. The Dutch Government stated that the purpose of prior participation rule was "to enhance the efficiency of administrative procedures, and thereby the efficiency of legal procedures. Participation in the public preparatory procedure enables one to identify the contentious points at an early stage of the decision-making process, thus improving the quality of that process. It makes it possible to avoid legal proceedings, or, if they do take place, should help to make them more efficient." [87]

59. The CJEU, which inter alia considered relevant CFREU rights, found that [88]

· Article 9(2) Aarhus had the objective of giving only the "public concerned" wide access to justice. [89] And that access was only as to judicial review of "any decision, act or omission subject to the provisions of article 6" - in effect development consents for activities which may have a significant effect on the environment. [90]

· Member States may determine who falls within the circle of the "public concerned". But they must do so reasonably and in accordance with the objective of wide access to justice for persons affected or likely to be affected by the envisaged act or transaction. [91]

· A member of the "public concerned" (such as the NGOs) could invoke an Article 9(2) Aarhus right of access to justice whether or not it had participated in the permitting process. [92] In other words, making the access to justice of the public concerned conditional on prior participation is impermissible.

· A member of the public who was not member of the "public concerned", (such as LB) could not invoke Article 9(2). [93]

· Such a person, as a member of the "public", could invoke Article 9(3) Aarhus to avail of standing rights available to the public at Dutch law. [94]

· However as Article 9(3) Aarhus permits the national imposition of "criteria" on access to justice, and though such criteria/conditions could not be such as to render ineffective judicial protection of EU environmental law rights or national environmental law rights (for example to participate in the decision-making procedure), [95] the exercise by a member of the public of Article 9(3) rights could be made conditional on having participated in the permitting process save where non-participation was reasonable. That is so as such a condition may allow disputes to be identified and resolved quickly in the administrative procedure so that judicial proceedings become unnecessary. [96]

60. It is useful to add that Bobek AG considered that

· Article 9(2) Aarhus grants an independent, freestanding right of access to court for the public concerned. It leaves a significant discretion to the State Parties in defining what constitutes a sufficient interest but conditions that may reasonably set criteria for such access cannot deprive the right access itself of its content. (As has been seen, Article 9(2) Aarhus and Article 11(3) of the EIA Directive empower Member States to decide what constitutes a sufficient interest but they must do so consistently with the objective of giving the public concerned wide access to justice.) Bobek AG considered that a criterion of prior participation in the administrative procedure exceeds the scope of such national discretion allowed by Article 9(2) Aarhus [97] and Article 11(3) of the EIA Directive.

· LB 's assertion that her profession as a veterinarian and the oath she took on being admitted to it, rendered her personally concerned in the well-being of animals "does not amount, ... to any concern or interest under national law, which would give her the status of affected party."

· By Article 2(4)&(5) Aarhus, LB was a member of "the public", but not of "the public concerned". So, Article 9(2) Aarhus conferred no right of access to justice on her. Nor did Article 9(3) per se - it is for national law to protect nationally given rights. [98]

Societatea Civilă Profesională de Avocaţi Plopeanu & Ionescu C-252/22 - 2024

61. Simplifying somewhat, it appears to me that the essential finding of the CJEU in case C-252/22 is that, in making standing dependent on the litigant having a legitimate private interest, such that actions by persons with no specific connection to the administrative measure they wish to challenge are inadmissible, Romania had avoided giving rise to a popular action without unduly restricting access to justice. Notably the CJEU cited caselaw [99] in which Article 11 of the EIA Directive was considered to implement Article 9(2) Aarhus as to the "public concerned" and in which the CJEU had held as to such litigants that national law may restrict standing to those alleging breaches of subjective rights, that is to say, individual rights. A fortiori, national law may similarly restrict the standing of members of the "public" reliant on Article 9(3) Aarhus. [100]

Grace & Sweetman - 2017

62. Mr Sweetman has been down this road as to standing more than once before - though he did not reach a destination on the standing issue in Grace & Sweetman. [101] Ms Grace and Mr Sweetman sought in judicial review to quash a wind farm planning permission. Neither had participated in the planning process. Ms Grace had standing, on the "sufficient interest" criterion [102] as she lived near the wind farm site and the protected European Site [103] in which it was situate. So the Supreme Court considered that it did not need to decide whether Mr Sweetman had standing. However, it did extensively canvass the standing issue.

63. The Supreme Court considered that the phrase in Article 11 of the EIA Directive which reads "in accordance with the relevant national legal system" (the similar phrase "within the framework of its national legislation" appears in Aarhus Article 9(2)) made it clear that standing, for the purposes of Article 11, does not involve an autonomous EU law concept. National standing rules apply - as to the content of which Member States have a material margin of appreciation subject to the important caveat that they must be consistent with the overriding obligation of providing "wide access to justice".^{^[104]} The Court cited Gruber[105] for the proposition that, subject to the overriding objective of ensuring wide access to justice for the public concerned, "Member States have a significant discretion to determine what constitutes 'sufficient interest." So, Irish standing rules were the starting point. In planning and environmental cases, Irish standing rules were generally liberal in allowing standing to those who either were at risk of being themselves adversely affected by a proposed development (for example by living near it^{^[106]}) or had participated in the planning process. Only if Irish standing rules denied standing would the question arise whether EU law required their further liberalisation. [107]

64. The Supreme Court concluded as to the Irish standing rules that

"standing in environmental cases involves a broad assessment of whether the legitimate and established amenity or other interests of the challenger can be said to be subject to potential interference or prejudice having regard to the scale and nature of the proposed development and the proximity or contact of the challenger to or with the area potentially impacted by the development in question."

Of some note here is the concept of "interest" as being that of the challenger and as being capable of being interfered with or prejudiced. However the court also emphasised that, interest apart, participation in the process will undoubtedly confer standing.

65. As to whether standing rules in planning and environmental cases were more liberal again, the Court considered that the broad assessment should have regard, in an appropriate case, to the legitimate interest of persons in seeking to ensure appropriate protection of important aspects of the environment or amenity generally. The example of Mulcreevy, [108] in which standing was affirmed, related to a national monument in circumstances in which the impugned decision had derived from a process which did not provide for public participation. Also, and as Barniville J later observed in Conway, there were in Mulcreevy "no obvious particularly directly affected persons to bring the proceedings". [109] Indeed, the Court in Grace & Sweetman said that Mulcreevy suggested that "the nature of the measure under challenge may be such as to confer a right to challenge on a very wide range of persons (and possibly, in some cases, on all persons not motivated by bad faith or the like)." [110]

66. Further, regard could be had to the nature and general importance of the site or amenities sought to be protected. Developments with potential for material and significant effect on the environment generally or raising questions of particular national or international importance may confer standing on a much wider range of persons. [111] There could be exceptional environmental cases which would require allowing a wide range of persons standing because otherwise an effective challenge would be unlikely for want of persons in a practical position to maintain appropriate proceedings even though there was a breach of legal or constitutional requirements. [112] That the wind farm development was proposed for a European Site "must carry significant weight in the assessment of standing. The protection of such sites involves the legitimate interests of, arguably, every citizen." Many are in sparsely populated areas and adverse effects on them may be unlikely to cause any personal prejudice or injury to the interests of individual objectors - who will be unable demonstrate that the proposed development will have any direct effect on their own affairs including their enjoyment of an amenity. In such cases "the interpretation of the requirement of 'sufficient interest' should be interpreted with a view to the necessity to protect the site against adverse effects. The legal protection of such sites could otherwise be gravely weakened." [113] One may perhaps add here reference to Humphrey J's observation in in Atlantic Diamond [114] that in some degree EU Law "crowdsources" environmental protection.

67. On the other hand a non-prejudiced/non-proximate non-participant in the planning process "is unlikely to have standing to make an argument more properly raised by a person more directly affected." [115] In this regard, it seems to me that it must be the existence of such persons which matters, not their failure to litigate as, ex hypothesi, the issue of standing will not in reality predominate if such persons do litigate. Indeed, the facts of Grace & Sweetman demonstrate that point. In the present case, there were no less than 89 participant objectors of whom many were local residents or at least within what I will call odour distance of the Rendering Plant. Of these, three had raised the issue of EIA. All would appear, at least in principle, to have been well-placed to make the arguments Mr Sweetman seeks to make.

68. Remembering that either will suffice to confer standing, the Court seems to have taken what one might call a "blended" or "holistic" view of the interaction of the proximity and prior participation bases of standing where the proximity criterion is not fully satisfied - asserting that non-participation will not per se exclude standing but "may be a factor" in doing so: "A failure to participate may (or may be likely to) leave the question of standing open to doubt particularly in the case of persons who cannot show either a physical proximity or a more general established interest in an amenity value of the site of the proposed development which may potentially be impaired." [116] It seems likely that the Court here had in mind also the need in this context to add to the balance the risk of non-protection of such as European sites and national monuments. As "The more general and more important the amenity which may be at stake, then the wider range of persons who may well be able to show that they have an interest in the amenity of the area which is the subject of the proposed development." [117] In that regard "the nature of the legal challenge ... will be relevant also." The non-prejudiced challenger who has not previously participated must show that his/her ground of challenge is "directed solely to the special protection of the site." [118]

69. Nonetheless, the Court also noted that at Irish Law "a mere interest in ensuring that the law is upheld is not, in itself, sufficient to confer standing (for if it were then there would, in all cases, be the potential for a so-called actio popularis and standing rules might be of very little relevance save for excluding abuse of process and the like)". [119]

70. The Court noted the "added factor in this case in that neither of the applicants put forward any significant explanation as to why they did not participate." [120] This seems to me a potentially significant factor in at least some cases in the particular context that the relevant administrative processes are publicly advertised and anyone, from near or far, with direct and acute interests or none, may participate. Participating is not difficult - it is certainly easier and cheaper than litigating - for both the objector and society generally. While access to justice is a vital backstop for those hopefully rare occasions when the administrative process goes wrong in law, public policy nonetheless favours dispositive decision-making by competent authorities - indeed for the reasons stated by the Dutch Government and upheld by the CJEU in Distressed Pigs. [121] As was said in ETI [122]

"As judges see only the pathology of life and given the size of the judicial review lists, we may form the impression - if subconsciously - that almost all or the majority of administrative decisions are challenged in judicial review. No doubt the opposite is in fact the case, and the vast majority of decisions are accepted for reasons including general public confidence in administrative decision-making processes. If, in a particular area of decision-making, a large number or proportion of decisions is not accepted, that may reflect the general acuity of the effect of administrative decisions of a particular kind on the persons affected, a general lack in the quality of decision-making in that area, a lack of public confidence in such decision-making, or a combination of such factors."

71. It seems to me that the Supreme Court in Grace & Sweetman, though they turned briefly to the position in EU law, [123] ultimately did not explore EU law on standing in any detail. As they conferred standing on Ms Grace on application of the Irish standing rules, they did not need to check if those rules offended EU law on standing and wide access to justice.

72. Though it did not decide his standing, as it did not need to, the Supreme Court did consider the position of Mr Sweetman "less clear" than that of Ms Grace and in the following terms:

"He does not have any physical proximity to the site. While he undoubtedly has an interest in environmental matters generally, he has placed no evidence before the court to show that he has any particular interest in the specific amenity value which is potentially impaired by this development. Nor has he given any real explanation as to why he did not participate. If someone had a broad interest in a particular amenity value which they asserted was sufficient to give them standing, it might be expected that their general interest in the issue would have led them to participate or, at a minimum, that there would be some reasonable explanation for non-participation. ... had he participated in the permission granting process or given the court some cogent explanation for non-participation, then it would have been much easier to resolve the standing question in his favour." [124]

73. It seems fair to characterise the Supreme Court as dubious of Mr Sweetman's standing. Indeed, at trial counsel generally confessed to mild surprise that the issues canvassed in this passage had not been revisited in the eight years since - whether or not as to specifically Mr Sweetman and subject of course to the fact that Murphy [125] was decided on the first day of the trial of the present case. [126] In fact, and as will be seen, Haughton J had held against Mr Sweetman's standing at about the same time as Grace & Sweetman.

Conway - 2019, McDonagh - 2017 & Sweetman - 2017

74. In Conway, [127] Barniville J concluded that Mr Conway lacked standing at Irish law and that EU did not require that he be given standing. Conway is notable for the similarity of the bases on which Mr Conway asserted standing to that on which Mr Sweetman now asserts standing. It is also notable for an extensive review of the authorities.

75. Mr Conway had, deliberately, not participated in the relevant planning process and lived in Dundalk, over 80km from the site in question. He did not assert that he would be directly prejudiced by the decision as he was in what Barniville J called the unique position of being an environmental activist seeking to quash a refusal of permission - for proposed development, which he supported, of a civic plaza at College Green, Dublin. As to standing, his affidavit said:

"I have a longstanding and passionate interest in the protection of the environment and am Director of Strategy for a representative environmental group or NGO known as the Louth Environmental Group whose objectives include to protect, preserve and enhance all coastal areas of Ireland, including its beaches and their environmental interests and amenities. I have previously taken legal proceedings in the interest of protection of the environment including enforcement and compliance by the Irish State with its obligations under the Aarhus Convention. Proceedings which I instituted were the subject of a relatively recent judgment of the Supreme Court concerning, inter alia, legal aid in respect of environmental matters. I strongly hold the view that public authorities should at all times comply fully with legislation concerning the carrying out [of] their duties, particularly where environmental matters are concerned".

76. It is unnecessary to recite the detailed grounds of Mr Conway's challenge. His general reasons for challenging the refusal were as follows:

"I find it upsetting that seemingly huge sums of money were spent by the [Council] and great effort put into the project by numerous parties, whether supportive of the project or not, all to be 'thrown away' as a result of what I perceive to be a flawed decision by the [Board]. I find it furthermore upsetting that there appears to be no public commentary on what I perceive to be a waste of public resources and no concerns aired concerning the apparent intention of the [Council] to make a renewed application along similar lines in the near future which, in my view, may well be doomed to fail if certain aspects of the legality of the impugned decision are not clarified for the benefit of all concerned, including the public at large. Had I accurately anticipated the course of events that have now occurred, I would have taken part in the planning process from an earlier stage".

While Mr Conway's somewhat strategic reasons were at some remove from the development proposed in that case, Mr Sweetman's concern in the present case as to a systemic flaw in the relevant legislation is even more removed from the environmental effects of the Plant.

77. Barniville J's summary of the facts, [128] as relevant, included the following:

· (1) The applicant has a significant interest in environmental matters, generally, both in a personal capacity and as Director of Strategy with the Louth Environmental Group.

· (2) The applicant has previously brought environmental proceedings in his personal capacity and as a co-applicant with the Louth Environmental Group.

· (3) The applicant and the Louth Environmental Group have a particular interest in the protection, preservation and enhancement of coastal areas of Ireland including its beaches and associated environmental interests and amenities.

· (4) The applicant has a strongly held view that public authorities should comply fully with legislation, particularly where environmental matters are concerned.

· (5) The applicant does not reside in Dublin but rather in Dundalk, Co. Louth, more than 80 kilometres away from College Green in the centre of Dublin city.

· (7) The applicant did not participate in the planning process before the Board.

· (11) It is not suggested by the applicant that there is any particularly sensitive protected or European site which would be adversely affected by the Board's refusal to grant the approval sought by the Council.

· (12) The applicant has not suggested that he has any particular connection or interest in the College Green area of Dublin or that it is of any particular amenity value to him which is or might arguably be impaired by the Board's refusal to approve the proposed development.

78. I pause here to note that, to this point, it seems to me that Barniville J's summary is of facts closely analogous to Mr Sweetman's position in the present case. As to point 11, in the present case, while an AA was done, Mr Sweetman does not impugn it or assert any risk to the relevant European Sites. As had been observed in Grace & Sweetman, that the proposed development was to take place on a site protected by EU law "must carry significant weight in the assessment of standing" (as the protection of such sites "involves the legitimate interests of, arguably, every citizen". [129] Clearly, Mr Conway lacked, and Mr Sweetman lacks, that "significant weight" in favour of standing.

79. Barniville J's summary of the facts, as relevant, also included the following:

· (8) The applicant provided an explanation for his non-participation. He thought that the Council's application would be granted by the Board. The applicant did not suggest that he was in any way precluded or prevented from participating in the process.

Barniville J did not "find that explanation cogent or remotely convincing". [130] In this respect, Mr Conway's position is certainly no weaker than Mr Sweetman's - the latter has not even attempted to identify his factual reason for non-participation - much less to excuse it. I do not consider that his counsel can fill this gap by submission in hindsight that his participation would have been pointless.

80. Barniville J also observed that a non-prejudiced/non-proximate non-participant in the planning process "is unlikely to have standing to make an argument more properly raised by a person more directly affected." [131]

81. He also cited McDonagh [132] and Sweetman. [133] In McDonagh, an objector to a data centre was refused standing in judicial review, for want of a "sufficient interest", as he lived remotely from the site, had not participated in the planning process, had not explained his non-participation, had supplied no evidence of had any "local and conservation interest" in the destruction of forests near where he lived, and there was no evidence of risk to any European Site.

82. Barniville J in Conway records that in Sweetman, Haughton J, had [134] refused the present applicant standing as he lacked "sufficient interest "to make a freestanding and general challenge to the validity" of s.5 PDA 2000 on the basis that it infringed EU law. I add that so doing Haughton J had considered that

· "sufficient interest" required "some real connection between an applicant and the matter in suit to give the 'interest' relevance or foundation ... it is not 'sufficient' to bring a free-standing challenge to a statutory provision without such connection. The leave must engage a particular planning decision."

· Mr Sweetman "had no role in the particular s.5 planning referrals. He has no direct or indirect relationship or proximity, physical, legal, commercial or otherwise", to the windfarm in question. But that involvement cannot give him "sufficient interest" in the earlier, different, s.5 referrals. He will not be impacted personally by the windfarm project. Absent any leave to challenge the s.5 referrals his only interest is an individual with a general and well-informed interest in protection of the environment and ensuring that the State and planning authorities comply with their EIA/AA obligations under domestic and EU law. In my view this is not "sufficient interest" to entitle him to make a general attack on s.5 itself."

· The same conclusion derived from a consideration of Mr Sweetman's standing by reference to Cahill v Sutton, [135] The State (Lynch) v Cooney [136] and Nawaz. [137]

· Mr Sweetman had "singularly failed to establish how he personally (or any other person on whose behalf he might be entitled to speak) can maintain that he has been or would be adversely affected by the s.5, as a matter of fact or law, if leave to challenge the particular s.5 declarations is set aside."

83. Barniville J in Conway records also that in Sweetman, Haughton J,

· in certifying an appeal on the issue of standing, [138] considered that Grace & Sweetman had left open the questions whether Irish law

o allowed that a person with a general interest in environmental matters, but insufficient proximity or connection to/or specific interest in the amenity value of the site in question, may have standing as an exceptional case.

o disallowing standing to person such as Mr Sweetman should be disapplied or reinterpreted to comply with 'wide access to justice' requirements of Article 11 of the EIA Directive.

· in certifying appeal on the issue of standing, identified possibly relevant factors as follows:

o the proposed development fell within and adjacent to European sites and the habitat of protected species and might threaten protected species;

o part of the proposed development might be remote with few, if any, residents who could directly point to injury, adverse effect or proximity;

o Mr. Sweetman had not become aware of the relevant s.5 declarations within the required period for seeking judicial review and had attempted to appeal the s.5 declarations

o Mr. Sweetman had made observations to the Board in a related application.

Barniville J noted that none of these factors were present in Conway. That is also true of Mr Sweetman in the present case.

84. Barniville J concluded that Mr Conway very clearly lacked standing at Irish law for want of the required "sufficient interest", inter alia as

· no European site or protected species was at risk. That is so in the present case.

· there was an obvious candidate to challenge the Board's decision - the Council, which had chosen not to challenge.

85. In the present case, none of the 89 objectors to the Impugned Decision have chosen to challenge it - including the three who objected, as Mr Sweetman now does, to the lack of an EIA. However, while the absence of other potential objectors may weigh strongly in favour of standing (as in Munnelly) it does not seem to me necessarily to follow that their presence weighs equally against standing. It understandably did so in Conway where the Council could broadly be described as a statutory and funded guardian of the environment. But where the other potential objectors are private individuals or NGOs there may be many collateral and good reasons why objectors may not go to law . In this case, their presence seems to me to be a relevant factor in the balance but not decisive in itself.

86. Importantly, Barniville J also concluded that he was not in any doubt as to the scope of EU law on standing and saw no need for a reference to the CJEU to clarify the conformity of Irish standing rules with EU law, particularly, in view of the "wide access to justice "requirement. [139] He was "quite satisfied that neither Article 11 nor any other provision of EU law requires the court to interpret Irish national standing rules in such a way as to confer standing on the applicant." [140]

87. While Barniville J's view as to the relevance to standing of prior participation in the development consent process of a member of the "public concerned" within the meaning of Aarhus Articles 2(5) and 9(2) may need revisiting in light of LB, that is clearly not so as to members of merely the public within the meaning of Aarhus Articles 2(4) and 9(3) - in respect of whom Member States are free to impose prior participation requirements. Subject to that observation, I respectfully agree with the general conclusion of Barniville J that Aarhus and EU law do not impose or require more generous standing rules than does Irish law.

88. I particularly agree that there is no anomaly in a situation in which an NGO had standing to bring proceedings under Irish and EU law but an individual member of that NGO might not have standing. [141] In my view, that is precisely the "very sensible compromise" to which Sharpston AG referred in Djurgården [142] as the basis on which Aarhus and EU law refrained from requiring standing in actio popularis.

89. Conway was described in Kelly [143] in the following terms:

"It seems to me particularly notable that in Conway neither of the two factors identified in Grace & Sweetman as conferring standing as of course - physical proximity to the site and prior participation in the planning process - were present. .... Barniville J was clearly and particularly influenced by the non-participation aspect of the case. [144] Conway is perhaps best viewed as a decision on whether the other facts of that case compensated for the absence of proximity and prior participation so as to confer standing. Unsurprisingly in the circumstances of that case, Barniville J found they did not and, as to the application of the explicitly "reasonably liberal" national rules as to standing, it does not seem to me that Barniville J purported to identify any new principles. The case is an orthodox application of those rules. So too was the consideration by Barniville J of the question, recognised in Grace & Sweetman, whether in the particular case the application of national rules as to standing conformed to EU Law requirements of wide access to justice and his conclusion that EU law does not preclude national standing rules from taking account of the challenger's non-participation in the administrative process which led to the impugned decision."

It does not seem to me necessary to consider Kelly any further for present purposes.

Murphy - 2025

90. In Murphy [145] Farrell J, having carefully reviewed the cases, refused standing to an applicant to quash a planning permission for a gas-fuelled power station. He lived 26km from the site and accepted that he would not be directly affected by the power station. He had not participated in the planning process and proffered no explanation for his non-participation. He alleged material contravention of renewable energy policies of the applicable development plan, EIA law deficits and deficits as to protection of European Sites in the Malahide Estuary - which was 42km from his home. The applicable standing rules [146] were the same as in the present case. The requirement was of a "sufficient interest in the matter which is the subject of the application".

91. I will not repeat Farrell J's helpful review of the cases and much of her judgment relates to alleged risk to European site (which does not arise here). But I record that Farrell J noted that

a. Failure of the Applicant to participate in the planning process is not a bar to standing, but it is a factor relevant to standing. [147]

It and his failure to explain it weighed heavily against Mr Murphy in the particular circumstances of that case. [148]

b. At Irish law, the class of litigants with standing to litigate environmental issues is not necessarily limited to those who might be expected to suffer a direct and personal adverse effect, prejudice or injury as it "is not in the public interest that decisions of questionable validity should wholly escape scrutiny because the applicant for judicial review cannot show that he is personally affected, in some sense peculiar to him, by the decision." However, that was said in Mulcreevy, in which the decision impugned had not been preceded by an opportunity of public participation - which situation was contrasted with the planning code in which "the legislature had provided an elaborate appeals procedure and by other legislative provisions has sought to ensure that the judicial review procedure should not be availed of as a form of further appeal." [149]

c. At Irish law, "a mere interest in ensuring that the law is upheld is not, in itself, sufficient to confer standing (for if it were then there would, in all cases, be the potential for a so-called actio popularis and standing rules might be of very little relevance save for excluding abuse of process and the like)". [150]

d. At Irish law, the relevance of proximity of a challenger to the proposed development site is not related to distance per se but to whether (s)he is within the envelope of risk of significant environmental effect of the proposed development. That will vary, possibly greatly, from case to case. [151]

e. Only if an applicant of judicial review is found not to have standing under the national rules, is it appropriate to consider whether EU law requires that he be given standing. [152]

f. She was "satisfied that the Irish rules do ensure" the "wide access to justice" required by Aarhus and EU law. [153] Sha was "satisfied, as Barniville J was in Conway (No. 1), that it is not necessary to suspend or disapply national rules to give effect to Article 11 of Directive 2011/92, nor is the Court required to disregard the non-participation of the Applicant in the planning process." [154]

g. As Aarhus, the Public Participation Directive [155] and the EIA Directive, recognise Member States' entitlement to apply their national rules relating to standing, it follows that EU law recognises that Member States may restrict standing. Wide access to justice does not require to unlimited access to justice. Nor does Aarhus or EU law require standing in actio popularis. For which views Farrell J cites LB. There is no authority that every member of the public has standing or a sufficient interest once merely an issue of EU law arises. [156]

h. In Aarhus/EU Law/EIA law terms, Mr Murphy was a member of the public at large and not of the public concerned. [157]

i. Mr Murphy "cannot distinguish himself from any other member of the public who had not participated in the process and was not sufficiently proximate to the relevant sites to give rise to the inference that his interests may be affected thereby. Unlike Mr. Sweetman, or Mr. Conway, he does not even assert a general interest in environmental matters nor a history of involvement in the protection of the environment." [158] And he had adduced no evidence "of any previous interest in, or history of striving to protect the environment generally, or the European sites."

j. None of the factors listed by Haughton J as having lead him to certify an appeal in Sweetman were present in Murphy. [159]

I have already observed that Barniville J had noted that none of these factors were present in Conway and the observation is also true of Mr Sweetman in the present case.

k. "I do not consider that it is necessary to interpret the requirement to have a sufficient interest so broadly as to confer standing on any person who seeks to bring judicial review proceedings to challenge a grant of permission on environmental grounds. The requirement of standing was amended to reflect the Aarhus Convention by replacing the requirement to have a 'substantial interest' with a 'sufficient interest' and by removing the bar on a person who had not participated in the process from instituting proceedings. ... The State was entitled, as a matter of EU law, to impose a requirement of standing, or sufficient interest once that provides a wide access to justice." [160]

In the context of the approach in Grace & Sweetman, of considering Irish Law first, I have already referred above to the "feedback loop" from EU to Irish Law in this respect.

Standing - Decision

92. Some of the following observations as to Mr Sweetman's standing in the present case have already been made above:

a. Mr Sweetman seeks to litigate an actio popularis as to an issue of law.

b. Litigation of an actio popularis by an individual is permissible only exceptionally at Irish law. Merely that an EU law issue arises, or that an environmental law issue arises does not, per se, render the circumstances exceptional. I see no circumstances in the case which would allow Mr Sweetman, on an exceptional basis to litigate, that actio popularis.

c. Mr Sweetman has - indeed actively professes - no interest of consequence in the environmental effects of the Rendering Plant. Much less does he have a "sufficient interest" in it. Mr Sweetman's concern as to a systemic flaw in the relevant legislation is removed from the environmental effects of the Plant.

d. Mr Sweetman lacks proximity to the site and the rendering plant - in terms both of distance from it and of coming within the envelope of its environmental effects.

e. Mr Sweetman neither participated in the licensing process nor explained his non-participation. His counsel's attempt by argument to plug that gap in his evidence does not avail.

f. Cahill established that the "general rule" is "to require the person who challenges a particular legislative provision to show either that he has been personally affected injuriously by it or that he is in imminent danger of becoming the victim of it". That rule is liberally interpreted - the more so in environmental law cases. Grace & Sweetman establishes that

§ "standing in environmental cases involves a broad assessment of whether the legitimate and established amenity or other interests of the challenger can be said to be subject to potential interference or prejudice having regard to the scale and nature of the proposed development and the proximity or contact of the challenger to or with the area potentially impacted by the development in question."

§ "In an appropriate case", "that broad assessment should have regard, to the legitimate interest of persons in seeking to ensure appropriate protection of important aspects of the environment or amenity generally."

g. On the facts, I cannot see relevant distinctions between the present case and the position in Conway and (perhaps unsurprisingly) in Sweetman. [161] Mr Conway's failed reliance on his general environmental interest, activism and history of environmental litigation resonates strongly with Mr Sweetman's argument here. Haughton J ruled in Sweetman that he had no standing "to make a freestanding and general challenge to the validity" of s.5 PDA 2000 on the basis that it infringed EU law. Here Mr Sweetman makes a similar freestanding allegation of infringement of EU law. Haughton J did certify an appeal on the point but by reference, as I have said, to factors which Mr Sweetman cannot call in aid in the present case.

h. Mr Sweetman's case for standing lacks the "significant weight" of posited risk to a European Site - the protection of which sites "involve the legitimate interests of, arguably, every citizen". [162]

i. This is not a situation, such as Mulcreevy, in which

· the process which lead to the Impugned Decision had not included opportunity for public participation.

· there is no-one better situate than Mr Sweetman to impugn the Impugned Decision. There are at least 89 such persons and almost certainly many more. I consider this a relevant, though not decisive, factor weighing against his standing.

j. In EU law terms, Mr Sweetman is a member merely of the public - he is not a member of the public concerned. The factual basis on which Mr Sweetman asserts standing seems to me analogous to that of the veterinarian in LB. He cannot call Article 9(2) Aarhus or Article 11 of the EIA Directive in aid and reliance on Article 9(3) Aarhus does not avail him against domestic law on standing. Ireland is free to apply its national law standing rules as to prior participation in the planning process. That is to say, non-participation and failure to explain it weighs significantly against his having standing. Not least, Mr Sweetman makes no substantive argument in these proceedings which he could not have made to the EPA. Public policy weighs significantly here against standing for the reasons given by the Dutch Government and upheld by the CJEU in LB. In LZ terms, such national rules do not "make it in practice impossible or excessively difficult to exercise rights conferred by EU law'".

k. More generally, EU law imposes no obligation to afford Mr Sweetman standing. Not least, Aarhus and EU Law refrained from requiring that individuals be given standing to prosecute an actio popularis. That an NGO may do so is not anomalous: it is precisely the balance decided upon in Aarhus and in EU Law.

93. In my view, the application of Irish law denies Mr Sweetman standing to prosecute these proceedings. EU law does not require that he be afforded such standing.

Remaining Issues

94. Given my finding on standing, it is unnecessary, and in my view would be undesirable in this case, to express a concluded view on the question whether the Rendering Plant falls within Annex II, Class 11(i) of the EIA Directive and the equivalent class of the 5^th Schedule to the PDR 2001.

95. However, and without deciding that issue, I will make two observations:

a. First, the EPA's initial emphasis on Irish statutory provisions as to the meaning of the English-language phrase "knacker's yard" and cognate words and as to their contradistinction from rendering plants was, in my view and once doubt and dispute had arisen, misconceived in its insularity. As to the meaning of Class 11(i) of the EIA Directive, it was misconceived at very least in its degree of that emphasis. That Class can have only one, EU-wide, meaning at EU law - and that an autonomous EU law meaning. As to the discernment of that meaning, all language versions of the EIA Directive are equally authoritative. Indeed, "even where the different language versions are entirely in accord with one another, EU law uses terminology which is peculiar to it. Legal concepts do not necessarily have the same meaning in EU law and in the law of the various Member States." [163] Of course, the starting presumption is that each language version is the faithful translation of all the others and so can ordinarily be relied upon. But where, as here, doubt or dispute arises, wider inquiry is required. In that respect, the papers by van der Jeught and Bobek, [164] to which the parties drew my attention, while academic in much of their content, also contained much of practical use. So too the relevant EU Commission guidance. [165]

b. Second, and lest there be doubt on the issue, the caselaw, undoubtedly correctly, holds that EIA is required, if at all, only of projects within the classes listed in Annexes I and II of the EIA Directive. As to projects not so listed, EIA cannot be required on the basis of a freestanding application of the objective of Article 2 of the EIA Directive that projects likely to have significant effects on the environment be subjected to EIA. However, that does not imply that the wide scope and breadth of that objective of Article 2 and of the EIA Directive generally should not inform a broad, purposive and inclusive interpretation of the project descriptions in the classes listed in those annexes. The contrary is clear on general principle, is recorded in the EU Commission guidance and is established in the caselaw: see Kraaijeveld^{^[166]} and Ryan. [167]

96. I similarly consider that I should not express a view whether the revised IE licence is a development consent and, if so, for what project - in this case whether the entire Rendering Plant or, discretely, the Thermal Oxidiser.

Conclusion

97. As Mr Sweetman lacks standing to prosecute them, I dismiss the proceedings.

98. I provisionally consider that there should be no order as to costs. The case will be for mention on 24 March 2025 for final orders.

David Holland

14/3/25

[2] The plea should refer to the EIA Directive 2011/92/EU as amended by Directive 2014/52/EU but the meaning is tolerably clear.

[3] Cases C-196/16 and C-197/16 Comune di Corridonia & others ECLI:EU:C:2017:589. See also Carrownagowan Concern Group v An Bord Pleanála & Futureenergy Carrownagowan [2024] IECA 234.

[9] These are presumably a representative sample of the complaints as to odour in the licence review process.

[10] The Inspector records at pp11 and 27 that the air-cooled biofilter consists of a 500m² concrete bed of 1m deep wood chip media. It removes odour by absorbing odorous gases onto the media.

[12] Recommended Determination - made by the inspector in her report.

[15] Best Available Technique. By Article 3 of the Industrial Emissions Directive (see below), 'best available techniques' means the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole. By Article 14(3 of the Industrial Emissions Directive. BAT conclusions are deemed the reference for setting IE licence conditions. Article 13 of the Industrial Emissions Directive provides for the adoption of BAT conclusions, which are defined By Article 3(11)&(12) as, essentially, conclusions on what constitutes BAT in respect of defined activities.

[16] See also, Scannell on Environmental and Land Use Law, 2006, §11.01.

[17] S.I. 138/2013 European Union (Industrial Emissions) Regulations 2013.

[19] "(4) ... a licence or revised licence — (a) shall be reviewed by the Agency if the Agency considers— (i) that emissions from the activity to which the licence or revised licence relates are, or are likely to be, of such significance that the existing emission limit values, or equivalent parameters or technical measures specified in the licence or revised licence need to be reviewed or new such values, parameters or measures, as the case may be, need to be specified in the licence or revised licence, ...".

[20] Integrated Pollution Prevention and Control Licence.

[21] Munster Proteins Ltd t/a Waterford Proteins.

[23] The EPA requested information of Anglo Beef in December 2020, and again in November 2021 and 6 January 2022. It issued reminder notices in May 2022, September 2022, and 2 and 9 November 2022. Anglo Beef supplied information in September 2021, January 2022, August 2022, October 2022, and 1 and 11 November 2022.

[24] Appropriate Assessment for purposes of the Habitats Directive. In December 2021, the EPA, by AA screening determination, had decided that that AA was required of the activities the subject of the licence review.

[25] Planning and Development regulations 2001.

[27] I have slightly edited the Grounds without changing meaning.

[29] Article 5(3) of the IE Directive states: "3. In the case of a new installation or a substantial change where Article 4 of Directive 85/337/EEC applies, any relevant information obtained or conclusion arrived at pursuant to Articles 5, 6, 7 and 9 of that Directive shall be examined and used for the purposes of granting the permit." Directive 85/337/EEC was the predecessor of the EIA Directive.

[31] And has, for the 12 months preceding the application for leave to seek judicial review, pursued those aims or objectives.

[33] Digital Rights Ireland Ltd v Minister for Communications [2010] IEHC 221, [2010] 3 IR 251.

[34] Lancefort Ltd v An Bord Pleanála (No. 2) [1999] 2 IR 270.

[36] Transcript Day 2 p206 - and again at 207.

[48] LB & Stichting Varkens v Echt-Susteren, C-826/18, [2021] PTSR 735 Bobek AG §44.

[49] Bobek AG §§36 & 37 citing Judgment of 16 April 2015, Gruber (C‑570/13, EU:C:2015:231, §34).

[50] See Eliantonio & Justine, Access to Justice in Environmental Matters in the EU Legal Order: The "Sectoral" Turn in Legislation and Its Pitfalls, European Papers, Vol. 9, 2024, No 1, p261 http://www.europeanpapers.eu/. Inter alia, and as to the absence of a general transposition of Aarhus Article 9 to EU law, they state that the case law of the CJEU "has certainly served to compensate the lack of a legislative transposition...".

[51] Commission Notice on access to justice in environmental matters (2017/C 275/01) §94 states: "By virtue of Article 216(2) of the TFEU, the Aarhus Convention is part of the EU legal order (94). The requirements of the EU legal order, which are binding for the Member States in the implementation of Article 9(3) of the Convention, include the uniform application and interpretation of EU law."

[53] Case C-240/09 LZ §45 et seq; Commission Notice on access to justice in environmental matters (2017/C 275/01) §§93 & 106.

[54] Commission Notice on access to justice in environmental matters (2017/C 275/01) §95.

[55] Atlantic Diamond Limited v An Bord Pleanála & EWR Innovation Park Limited [2021] IEHC 322.

[56] Weston Ltd v An Bord Pleanála [2010] IEHC 255, [2010] 7 JIC 0102 (Charleton J).

[57] Balz & Heubach v An Bord Pleanála and Cork County Council and Cleanrath Windfarms Ltd [2019] IESC 90, [2020] 1 ILRM 367.

[58] Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2022] IEHC 700 (Humphreys J).

[59] Murphy v An Bord Pleanala & Kilshane Energy [2025] IEHC 117.

[62] Digital Rights Ireland Ltd v Minister for Communications [2010] IEHC 221, [2010] 3 IR 251 §79.

[63] Commission Notice on access to justice in environmental matters (2017/C 275/01) §72.

[65] Grace & Sweetman v An Bord Pleanála, ESB Wind Development & Coillte [2020] 3 IR 286 §§28 & 29.

[68] The Convention is not directly effective in Irish law but is transposed to Irish law by various legislative provisions, including Article 11 of the EIA Directive.

[69] Societatea Civilă Profesională De Avocaţi Plopeanu & Ionescu (C-252/22) EU:C:2024:13, [2024] Env LR 26, Medina AG §37.

[70] Case C-263/08 Djurgården-Lilla Vartans Miljoskyddsforening v Stockholms Kommun Genom Dess Marknamnd ECLI:EU:C:2009:421; and in Case C-644/15 Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation EU:C:2017:760, §81.

[72] Commission Notice on access to justice in environmental matters (2017/C 275/01) §72.

[73] Societatea Civilă Profesională De Avocaţi Plopeanu & Ionescu (C-252/22) EU:C:2024:13, [2024] Env LR 26 §55 citing the 'The Aarhus Convention: An Implementation Guide' (2^nd Ed'n, 2014).

[74] The criterion of impairment of an administrative procedural law right does not arise here. It generally contemplates administrative procedural law rights afforded by some civilian legal systems. See Grace & Sweetman §21.

[76] Murphy v An Bord Pleanála & Kilshane Energy [2025] IEHC 117.

[77] C-575/21 WertInvest Hotelbetriebs GmbH v Magistrat der Stadt Wien (25 May 2023) §71.

[79] LB & Stichting Varkens v Echt-Susteren C-826/18, [2021] PTSR 735 - the case is known variously as "LB", "Stichting Varkens" and "Distressed Pigs".

[80] Bobek AG §94. She was also a board member, secretary and chairperson of various animal welfare interest groups - but had invoked these factors too late at Dutch law. - Bobek AG §26, CJEU §§21 & 22.

[82] Which phrase equated to 'members of the public concerned having a sufficient interest' - Bobek AG §15.

[83] Unless the challenger could not reasonably be criticised for not having participated. By Dutch case-law, this was the case, for instance, if the notification of the draft decision is flawed; if the issued decision is different from the notified draft decision and that difference has negative consequences for the 'interested party'; or if a person, due to a relocation, becomes an 'interested party' only after the expiry of the deadline to submit observations to the draft decision see Bobek AG §18.

[84] Bobek AG §1 - i.e. mere participation in the permitting process did not give standing in judicial review to a non-interested party.

[85] Bobek AG §24 et seq. They said the public notice had been defective but this issue did not loom large in the case before the CJEU.

[86] In accordance with Article 2(5) Aarhus.

[88] What follows here is a simplified and abbreviated account of the Court's findings.

[90] Some of which are listed in Aarhus Annex I.

[95] CJEU §49 & 50, citing Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C–664/15, EU:C:2017:987, §§46 and 48, and Wasserleitungsverband Nördliches Burgenland and Others, C–197/18, EU:C:2019:824, §34. Bobek AG at §134 located this limitation on Member States' discretion under Article 9(3) Aarhus to make national rules limiting access to justice in the CFREU - "the compatibility of such a rule depends on whether it complies with the right to an effective remedy in Article 47 of the Charter, which corresponds to the principle of effectiveness, and the conditions for restrictions to this right set out in Article 52(1) of the Charter."

[97] Bobek AG §§137 - 140 & 144. Citing Djurgården; Commission v Germany C‑137/14, EU:C:2015:683; and Gruber C‑570/13, EU:C:2015:231, §38.

[99] Land Nordrhein-Westfalen (C-535/18) EU:C:2020:391, §57 and case-law cited. Case C-260/11 R (Edwards and another) v Environment Agency and others (No. 2) [2013] 1 WLR 2914 ECLI:EU:C:2013:221, [2013] 1 WLR 2914, [2014] All ER (EC) 207, [2013] 3 CMLR 459, [2013] All ER (D) 95 (Apr) is authority that Article 11 of the EIA Directive is closely related to and must be "properly aligned with Article 9 of the Aarhus Convention."

[101] Grace & Sweetman v An Bord Pleanála, ESB Wind Development & Coillte [2020] 3 IR 286.

[102] Set by Section 50A(3)(b)(i) of the Planning and Development Act 2000.

[103] Within the meaning of section 177R of the Planning and Development Act 2000 - essentially a site protected by the Habitats and/or the Birds Directive.

[105] Gruber v Unabhängiger Verwaltungssenat für Kärnten (Case C-570/13) EU:C:2015:231.

[106] Nearness or proximity is context-dependent - Grace & Sweetman §43.

[108] Mulcreevy v Minister for Environment [2004] IESC 5, [2004] 1 IR 72.

[109] Conway v An Bord Pleanála & Dublin City Council [2019] IEHC 525 §40.

[114] Atlantic Diamond Limited v An Bord Pleanála & EWR Innovation Park Limited [2021] IEHC 322.

[121] Bobek AG §17 & CJEU §63 - see above.

[122] Environmental Trust Ireland v An Bord Pleanála & Cloncaragh [2022] IEHC 540.

[127] Conway v An Bord Pleanála & Dublin City Council [2019] IEHC 525.

[132] McDonagh v An Bord Pleanála [2017] IEHC 586 (McDermott J).

[133] Sweetman v An Bord Pleanála & ESB Wind [2017] IEHC 133 (Haughton J - 3/3/17). Grace & Sweetman had been decided on 24 February 2017.

[134] In an earlier judgment in the same case - Sweetman v An Bord Pleanala [2017] IEHC 46. §18.

[136] [1982] IR 337 - Walsh J stated at p369:- "The question of whether or not a person has sufficient interest must depend upon the circumstances of each particular case. In each case, the question of sufficient interest is a mixed question of fact and law which must be decided upon legal principles but, it should be added, there is greater importance to be attached to the facts because it is only by an examination of the facts that the court can come to a decision as to whether there is a sufficient interest in the matter to which the application relates."

[137] Nawaz v Minister for Justice [2013] 1 IR 142.

[138] I have been unable to ascertain that the appeal certified ever proceeded.

[142] Case C-263/08 Djurgården-Lilla Vartans Miljoskyddsforening v Stockholms Kommun Genom Dess Marknamnd; and in Case C‑664/15 Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, EU:C:2017:760, §81.

[143] Kelly v An Bord Pleanála [2022] IEHC 238 §86.

[145] Murphy v An Bord Pleanála & Kilshane Energy [2025] IEHC 117.

[149] Murphy §§31 & 32, Citing Grace & Sweetman and Mulcreevy v Minister for the Environment [2004] 1 IR 72, [2004] IESC 5.

[150] Murphy §64 citing Grace & Sweetman §41 et seq.

[152] Murphy §27. Citing Grace & Sweetman and Conway v An Bord Pleanála (No. 1) [2019] IEHC 525. Also §40.

[161] i.e. Sweetman v An Bord Pleanála & ESB Wind [2017] IEHC 46 & [2017] IEHC 133 (Haughton J).

[163] Case 283/81 Cilfit EU:C:1982:335 §18, cited by Tanchev AG in Case C-881/19 Tesco Stores ČR a.s. v Ministerstvo zemědělství ECLI:EU:C:2021:830, Opinion delivered 6 October 2021, Judgment delivered 13 January 2022.

[164] van der Jeught, Current Practices With Regard To The Interpretation Of Multilingual Eu Law: How To Deal With Diverging Language Versions?, European Journal of Legal Studies, Vol. 11 No. 1 p5 (2018); Bobek, "The Multilingualism of the European Union Law in the National Courts: Beyond the Textbooks", Chapter 7, Linguistic Diversity and European Democracy, Ed. Kær & Adamo, Routledge, 2011. See also Cilfit and Tesco cited above and Case C-63/06 UAB Profisa v Muitines departamentas prie Lietuvos Respublikos finansu ministrerijos [2007] All ER (D) 131 (Apr), ECLI:ECLI:EU:C:2007:233, [2007] ECR I-3239. A useful historical account of the law as to the licensing of knackers is found in R (Barking UDC) v Justices of Essex [1916] 1 KB 665, and [1916] 2 KB 406.

[165] "Interpretation of definitions of project categories of annex I and II of the EIA Directive", 2024.

[166] Case C-72/95 Aannemersbedrijf PK Kraaijeveld BV ea v Gedeputeerde Staten van Zuid-Holland, Judgment of 24 October 1996.

[167] Ryan v An Bord Pleanála & Ors [2025] IEHC 111 §177 et seq.

High Court of Ireland Decisions

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 14 March 2025

INTRODUCTION

Relief Sought