Supreme Court dismisses appeal against €140m Glanbia cheese plant in Co Kilkenny

Court says environmental directive should not be ‘conscripted’ into fight against climate change

The Supreme Court has dismissed an appeal aimed at overturning planning permission for a €140 million Co Kilkenny cheese plant.

The court ruled on Wednesday that upstream consequences of the proposed factory, specifically from milk production, were not indirect significant effects liable to be assessed under the EIA (Environmental Impact Assessment) Directive or the Habitats Directive.

In the unanimous judgment by the five-judge court, Mr Justice Gerard Hogan said the plant's effect on the milk supply in the State "remains entirely elusive, contingent and speculative" and cannot be the sort of significant indirect effect described in the EIA Directive.

He said the proper scope of the EIA Directive should not be “artificially expanded” beyond its remit requiring the identification and assessment of the direct and indirect significant environmental effects of a specific project.

He said the EIA Directive should not be conscripted into the general fight against climate change by being made to do the work of other legislative measures.

Environmental effects

An Taisce/ The National Trust for Ireland had appealed a High Court order refusing to quash An Bord Pleanála's June 2020 permission for Glanbia's €140 million cheese factory proposed for Belview.

It is to be developed under a joint venture between Glanbia and its Dutch partner Royal-A-Ware.

The court dismissed the central issue in the appeal questioning if An Bord Pleanála was obligated to assess the upstream consequences of the operation of the proposed factory, namely the potential environmental effects from milk produced across some 4,500 farms, for the purposes of an environmental impact assessment under the EIA Directive or an appropriate assessment under the Habitats Directive.

The court also dismissed An Taisce’s challenge as to the board’s obligation under the Water Framework Directive to assess the environmental impact of any discharge of pollutants on adjoining rivers.

Mr Justice Hogan noted that the existence of the factory is “likely to reinforce and strengthen the overall demand for milk if only in the particular sense that in its absence the demand for milk generally would be reduced”. Therefore, at “some macro-economic level”, one may say there is some link between the factory’s requirements for milk and the milk supply, he said.

The judge ruled out an “open-ended” interpretation of the wording of article 3(a) of the EIA Directive, as it would in principle lead to almost no limits to the range of possible inquiry required and “lead to the imposition of an impossibly onerous and unworkable obligation on developers”.

The court held that matters such as the construction of the plant or emissions from the plant must be identified and assessed but, generally speaking, not environmental impacts of inputs (such as milk production) or outputs of the factory (such as plastic wrapping on the cheese).

Mr Justice Hogan acknowledged that there may be “special and unusual cases” where the causal connection between certain off-site activities and the operation and construction of the project itself is demonstrably strong and unbreakable. In those particular cases the significant indirect environmental effects of these would fall to be identified and assessed, he said.

Farm families

Welcoming Wednesday’s ruling, Glanbia Ireland chief executive Jim Bergin said: “This project is in line with Government policy and is critical to our market diversification post-Brexit. Getting the plant into production as soon as possible is now of huge importance to our 4,500 farm families supplying their milk to Glanbia Ireland every day.”

Glanbia Ireland chairman John Murphy was hopeful that the ruling brings an end to uncertainty for farm families, along with “the significant extra costs, including income foregone by farmers, construction cost inflation, legal costs and business disruption that the delay has caused”.

During the appeal hearing last month, lawyers for An Taisce argued that the provision of some 450 million litres of milk to the plant each year should be treated as “significant indirect effects” of the development itself.

The board and developer Kilkenny Cheese Limited both submitted that the farms expected to supply milk to the Glanbia plant are not part of the development. Counsel for the board said the farms and the factory are not “structurally interdependent”, so there was not a requirement for their upstream impact to be assessed as part of this planning application.

The appeal was heard by Chief Justice Donal O'Donnell, Ms Justice Elizabeth Dunne, Mr Justice Séamus Woulfe, Mr Justice Peter Charleton and Mr Justice Hogan.