An Taisce fails to overturn permission for Kilkenny cheese plant

An Taisce has lost its legal action against An Bord Pleanála and the State aimed at overturning planning permission for a continental cheese manufacturing plant in Co Kilkenny.

The grounds of challenge included claims the environmental effects of the milk inputs for the cheese plant were not properly taken into account for the purposes of the Environmental Impact Assessment (EIA) and Habitats Directives.

Meeting the State’s climate targets requires reducing the national herd of cows, not increasing it, and the dairy industry overall is unsustainable due to the adverse environmental impacts created by it, it claimed.

An EIA report for the developer, Kilkenny Cheese Ltd, noted the dairy herd is expected to increase from 1.4 million to 1.7 million cows by 2025 with each cow projected to produce more milk in that time, giving a projected increase of about 1.6 billion litres of milk by 2025.

Code

In his judgment in the High Court on Tuesday, Mr Justice Richard Humphreys said An Taisce’s real grievance is with Government policy and the issues raised were not a basis for challenging this permission decision made under the planning code.

General programmatic polices are not capable of being subject to the same sort of site-specific regulation as individual planning applications, he said.

The Government’s objective seems to be to meet existing Paris Agreement targets on emissions at the lowest possible cost, reasonable people could disagree about these objectives, but the fact there might be a medley of views does not in itself suggest the official policy is incorrect, he said.

In our system, such policy questions have to be left to the electoral process and the political system in the absence of a much more explicit basis for review, he said.

Law impermissibly becomes “politics by another means” when it annexes, for inflexible judicial determination, territory that properly belongs to open and democratic debate, he said.

Courts can't get involved in deciding which premise is better without some justiciable instrument mandating forensic involvement and that had not been established in this case.

His view is that legal doctrine should be shaped with “careful regard” for consequences.

The mere fact something can be characterised as policy does not give it immunity for judicial scrutiny if there is some justiciable standard, whether in the Constitution and EU law, the ECHR, statute law or administration law, and provided the court gives appropriate recognition to the constitutional entitlement of the legislature and executive to formulate policy within the law, he stressed.

The reason he was not expressing any view on the matters raised was not because they were not beyond the scope of judicial consideration if a relevant context for review was established but because they are not a basis for challenging a particular decision under the planning code.

An Taisce, confronted with unchallenged policy documents and the highly regulated procedure for individual planning consent, is trying to use the latter process to challenge the former, he said.

Appropriate

That was “forensically understandable” but not legally appropriate because general programmatic polices are not capable of being subject to the same sort of site-specific regulation as individual planning applications.

Among various other findings, he held the permission was not invalid over the board’s failure to conduct an assessment of the upstream impact of milk production, even where the board did consider such matters at the broad level which, he said, it was not obliged to do.

The basic reason is that effects of raw material production, where such production is sufficiently removed from this project to be incapable of assessment in site-specific terms, are not to be considered part of the project for the purposes of an EIA or appropriate assessment, he said.

Such effects needed to be considered on a more programmatic basis and hence lay outside the direct scope of grounds for challenging an individual planning decision.

He also said An Taisce had not presented any contradictory scientific evidence to challenge various findings by the board inspector, including that treated effluent would not adversely affect European sites.