High Court of Ireland Decisions

1. On the 20th June, 1997 the Respondent (the Board) granted the first named Notice Party (Mr McEvoy) planning permission for a 200 sow integrated pig unit at Ballyconra, Ballyragget, Co Kilkenny. It is common case that in making this decision the Board did not require the submission of an environmental impact statement (EIS) by Mr McEvoy. Neither did it conduct an environmental impact assessment (EIA) prior to reaching its decision to grant the planning permission.

2. In these proceedings the Applicant seeks an Order of Certiorari to quash this decision of the Board. He does so on two alternative bases.

3. First, he says that there was a mandatory obligation imposed upon the Board to have an EIS submitted and to conduct an EIA pursuant to the thresholds set by the European Communities (Environmental Impact Assessment) Regulations 1989 (SI 349) (the 1989 regulations).

4. If he is incorrect in this assertion he says that in the light of the nature, size and location of the proposed development then pursuant to EC directive 85/337 or in the light of the likely significant effects on the environment of the proposed development then pursuant to Article 56(2) of the Local Government (Planning and Development) Regulations 1994 (SI 86) (the 1994 regulations) both an EIS and EIA should have been conducted.

5. The Applicant contends that a failure on the part of the Board to insist upon the submission of an EIS and a failure to conduct an EIA renders its decision bad in law and that it ought to be quashed.

6. On the 20th October, 1997 Moriarty J. granted leave to commence these proceedings. The Board did not oppose the application and accepted that a "substantial ground" within the meaning of Section 82(3B)(a) of the Local Government (Planning and Development) Act, 1963 exists as to the interpretation and application of the relevant regulatory provisions.

7. The Applicant is a principal teacher in a primary school. He resides together with his family in Ballyragget in the near vicinity of the proposed development.

8. He is a member of a group called the Noreside Environmental protection group (the group). The group objected to the second named Notice Party (the County Council) when Mr McEvoy first sought permission for the development. The group was one of the appellants against the grant of the permission by the County Council. The board does not take any issue with the Applicant's locus standi and it accepts that the issues raised in these proceedings are substantially the same as those raised by the group in its appeal to the Board.

9. Mr McEvoy made previous applications for planning permission for similar developments in the same locality. These applications were refused. However, these applications related to a different site in a different townland and they also included different spread grounds for the slurry likely to be generated by the proposed development. It does not appear to me that what happened on those occasions or the attitude adopted by the Board in relation to them has any bearing on the legal questions in suit. Neither do I consider to be relevant the fact that Mr McEvoy previously made an application for planning permission for a development on the precise site of the development the subject of these proceedings and withdrew his application before any decision was reached by the County Council.

10. This application falls to be considered on its own merits in the light of the relevant statutory provisions. As the judgment proceeds it will become apparent that the Board has not been consistent in its interpretation and application of the relevant statutory provisions. Again that is not a factor which has a bearing upon this application since it falls to me to decide whether or not in the present case the Board adopted the correct approach or not.

11. The Applicant contends that the proposed development includes spreading sites for pig slurry adjacent to and in the vicinity of the waters of the river Nore and its tributary the Grange river. He says that these waters are recognised as important spawning grounds for brook lampreys as well as being a habitat for the fresh water pearl mussel. He contends that both of these species are protected under the EU Habitats directive. He says that the site lies in a nature heritage area. The slurry generated by the development will be spread in an area overlying a major aquifer. It is a kirstified aquifer and has been classified as being extremely vulnerable. He says that this classification indicates that the time taken for a pollutant to reach the water table would be less than one week. In an area of low vulnerability the time taken would be in excess of twenty years. He also contends that the development will be sited in an area which was already seriously polluted and it must therefore have a significant effect on the environment posing a threat to the life, health and well-being of the inhabitants of the area and the flora and fauna of the locality.

12. He points out that the group requested the board to conduct an oral hearing prior to giving its decision. That request was refused on the 20th March, 1997.

13. The Applicant contends that in these circumstances (which were more fully outlined in the submissions made to the Board) it must have been clear to the Board that this development was likely to have significant effects on the environment which required further investigation in the form of an EIA prior to the giving of consent to the project.

14. EC Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment imposed a requirement on member states to implement measures to ensure that an environmental impact assessment is carried out by the appropriate competent authority before development consent is given for certain projects likely to have significant effects on the environment. Article 2(1) of the Directive reads

15. Article 4 divides the projects to which the Directive is applicable into two categories. Article 4(1) provides that the projects set out in Annex I of the Directive shall be subject to a mandatory environmental impact assessment before development consent is granted in all cases.

16. Article 4(2) provides that projects of the classes listed in Annex II shall be made subject to an assessment, where Member States consider that their characteristics so require. To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment.

17. Regardless of whether an assessment is to be carried out pursuant to Article 4(1) or Article 4(2) of the Directive such assessments must be done in accordance with Articles 5 to 10.

18. Annex II sets out the projects which are subject to Article 4(2). They include at paragraph 1(f) "Pig-rearing Installations".

19. Articles 5 to 10 set forth the procedures to be adopted where an environmental impact assessment is required. The most significant provisions in the present case are Article 5 which provides that the developer shall be required to submit certain information in accordance with Annex III of the Directive and Article 6 which provides for the provision of information to the public and a consultation procedure together with Article 8 which provides that the competent authority must consider the information gathered pursuant to Articles 5, 6 and 7 in the development consent procedure.

20. The Directive was implemented in Ireland by the 1989 Regulations as supplemented by the 1994 Regulations. In summary, the system adopted in Ireland provides that where an EIA is required, the developer must submit an EIS with his planning application. The EIS must contain the information specified in paragraph 2 of the second schedule to the 1989 Regulations and may contain the information specified in paragraph 3 of the second schedule.

21. If an EIS as submitted is inadequate the planning authority must inform the developer and require the submission of such further information as is necessary.

22. There are obligations placed upon a planning authority to publish notice of cases in which an EIS has been submitted or is required. Notification of any such application must also be given to the Minister for the Environment. In addition, bodies which are entitled to received notification of certain applications pursuant to Article 32 of the 1994 Regulations must be sent a copy of any EIS submitted to the planning authority. The EIS itself must be available for public inspection at the offices of the planning authority and copies of it or extracts of it must be available for purchase.

23. A planning authority is not entitled to determine a planning application in which an EIS has been submitted until at least 28 days after the information necessary to comply with the EIS requirements has been submitted by the developer. The usual minimum period which must elapse between receipt of an application and the making of a decision is fourteen days but extra time is given in the case of a development involving an EIS. This is intended to facilitate public comment on the contents of the EIS.

24. When an EIS is required it is submitted to the planning authority. If the decision of the planning authority is appealed to the Board, the EIS forms part of the material placed before the Board before it makes its decision. The Board, in determining an appeal, is required to have regard to the contents of the EIS and any submissions or observations thereon pursuant to Section 26(5)(d) of the 1963 Act.

25. Article 24 of the 1994 Regulations requires the submission of an EIS in relation to developments which are deemed to be "specified development" under Article 24(1) of the 1989 Regulations or developments which would be specified developments but for not exceeding certain thresholds or criteria and in respect of which an integrated pollution control (IPC) licence is required. I should digress here to indicate how the IPC licence comes into the picture. The measures required to be taken under the directive have been implemented in Ireland by integrating them into existing procedures. In part they have been integrated into the planning process and in part into the IPC licensing procedure under the Environmental Protection Agency Act, 1992.

26. To return to Article 24 of the 1989 Regulations, one finds that it provides that projects set out in Parts I and II of the first schedule to the regulations are "specified" for the purposes of the regulations. Part I of the first schedule corresponds with Annex I of the Directive. It covers those projects in respect of which an EIA is mandatory in all cases. Part II corresponds with Annex II of the Directive and sets thresholds in respect of the projects listed therein in accordance with Article 4(2) of the Directive. Projects which exceed these thresholds are deemed to be "specified development" within the meaning of Article 24 of the 1989 Regulations. The submission of an EIS in respect of such developments is mandatory under Article 24 of the 1994 Regulations.

27. Paragraph 1(e) of Part II of the first schedule to the 1989 Regulations sets the threshold above which an EIA is mandatory in relation to pig rearing installations. It reads as follows:-

28. In addition to circumstances where an EIS is mandatory by reason of the proposed development falling within a class listed at Part I of the first schedule or by virtue of exceeding a threshold set in respect of a class listed at Part II of the first schedule of the 1989 Regulations, the 1994 Regulations also make provision for the submission of an EIS where either the planning authority, or the Board on appeal therefrom, forms the view that the proposed development, although not covered by the first schedule, "would be likely to have significant effects on the environment" . The relevant provisions in this regard are contained in Article 56(2). It reads as follows:-

29. It is clear that the 1994 Regulations also envisage circumstances in which the submission of EIS was mandatory under Article 24 of the 1994 Regulations, but where the planning authority mistakenly did not require an EIS and one was not submitted by the developer. Article 56(1) of the 1994 Regulations gives the Board a power to require the submission of an EIS on appeal in such circumstances. It reads as follows:-

30. The first question which I have to decide is whether the proposed development exceeded the threshold set for developments of that class in paragraph 1(e) of Part II of the first schedule to the 1989 Regulations. If so, then the submission of an EIS was mandatory pursuant to Article 24 of the 1994 Regulations.

31. The Applicant contends that the interpretation which was given to paragraph 1(e) by the Board on this occasion was incorrect. The Board argues otherwise. In so doing however, it accepts that in considering previous appeals it adopted interpretations of the regulations at variance with the interpretation which it now believes to be correct.

32. In my view the question of the proper interpretation of the regulations is a matter of law which must be decided upon this application. The previous approach of the Board is not directly relevant nor shall I take it into account in considering the question. In fairness to the Board however, it must be said that it accepts that the submission of an EIS is mandatory once a proposed development exceeds the threshold and the interpretation of the threshold is a matter of law. The Board also accepts that it does not have discretion to err within jurisdiction in this regard. It follows therefore that if the Applicant's contention as to the interpretation of the threshold set by paragraph 1(e) is correct and Mr McEvoy's proposed development exceeds that threshold then the Applicant is entitled to an Order of Certiorari.

33. At paragraph 17 of his grounding Affidavit the Applicant says that on a proper calculation of the units produced by a 200 sow integrated unit, the total units produced by the proposed development would be in excess of 4,300. This would mean that the development would be well above the limit of 3,000 units which is permissible in respect of non gley soils. The basis for his calculation is as follows

34. Mr McEvoy's figures as to units are dramatically different. It was his figures which were accepted by the Board. In her Affidavit of 4th December, 1997 Elizabeth Dolan, a Senior Administrative Officer of the Board says as follows:-

35. From her Affidavit it is clear that in reaching the view which it did that the total capacity of the proposed development was 2,208 units the Board had regard to the environmental protection agency's 'BATNEEC' Guidance Note for the Pig Production Sector. In page 4 thereof it is noted that the definition of a sow includes her progeny. However, whilst the Board adopted the view that the approach of the Environmental Protection Agency was appropriate and correct in regard to the calculation of the equivalent unit value of the number of sows, the Board did not regard itself as bound by that. Having concluded that the number of units was well below the 3,000 threshold the Board concluded that this was not a case in which there was a mandatory obligation to have an EIS or to conduct an EIA. I must now examine this contention.

36. The reason for the discrepancy between the two unit figures is easy to discern. The Board has decided that in the calculation of pig numbers it will proceed on the basis of the Environmental Protection Agency's 'BATNEEC' Guidance Note for the Pig Production Sector where the term "sow" includes progeny. If that is so it follows that the Board does not take into account the individual finishers and weaners in calculating the number of pigs and indeed the number of units. This means in effect that the Board excludes certain types of pigs from the test set down in the regulations. The reason for this is given at paragraph 7 in the Affidavit of Elizabeth Dolan. She says:-

37. There was a good deal of Affidavit evidence adduced as to which approach was correct from the point of view of agricultural practice. For example, on behalf of the Applicant, Mr John O'Malley, an Agricultural Consultant, said that it is normal for a sow to give birth to approximately 2½ litters per year. A litter will contain between 8 and 12 pigs. It is accepted in the industry that a sow will produce on average 23 finished pigs in any given year. Accordingly a 200 sow integrated unit can be expected to produce approximately 4,600 finished pigs in any year. A piglet normally suckles a sow for the period of three to five weeks. Once they are weaned from the sow the pig is termed a "weaner". It is usual practice in integrated units that at this stage the weaner will be housed in separate weaner houses or units. When a pig reaches the liveweight of about 35kgs it becomes known in the industry as a "finisher". A finisher is normally kept at the unit until it reaches the weight of approximately 85 to 100 kgs. Other categories of the pig family include the gilt and the boar. The term gilt is applied to female pigs prior to and including their first pregnancy. In his experience it is the practice of State and other agencies in assessing the unit capacity of integrated pig units for the purpose of determining whether an EIS is required to assess a gilt selected for breeding as equalling ten units in similar manner to a sow. Unlike the sow, however, the gilt is not nursing piglets and so it follows that the ten unit assessment results from the potential environmental impact of the gilt herself. He went on to say that the capacity of a unit determines the number of categories of pigs housed in the unit and the number of pigs and pig types determines the quantity of manure produced by the unit. In terms of neat excreta, as a single environmental impact issue, the sow produces a daily average of 9 litres whilst a growing pig produces 3.5 litres. On average therefore the sow produces more that twice the daily neat excreta of the growing pig. For these and other reasons he expressed the view that the ten units accorded to a sow under the regulations could neither in common sense nor as a matter of agricultural science be deemed to encompass the environmental impact of the progeny of the sow i.e. 23 pigs at various stages of development - approximately 10 in the final stage to slaughter. He says that by simple analogy, if one applied this method of assessment to all pig units then one could only conclude that specialised finishing units could never be required to conduct an EIA by reference to the unit capacity alone of the finishing unit as they would be accorded zero units.

38. In her Affidavit of 26 March, 1998, Elizabeth Dolan accepts and agrees with Mr O'Malley that a sow will give birth to an average of 2½ litters per year and that each litter will contain an average of 8 to 12 piglets. But she points out that whilst it is correct to state that an average sow will produce 23 finished pigs per year and that a 200 sow unit will produce 4,600 finished pigs in the same period, those figures are misleading as all 23 piglets produced by an average sow in any given would never be alive and present in an integrated pig unit at any one time.

39. She also accepts and agrees that a finisher is a young pig weighing between 32kgs and 85-100kgs and that finishers are usually aged between 3 and 5 months. She says that in the industry finished pigs are usually sold for slaughter at the age of approximately five months. In general therefore finished pigs produced by a sow in any one litter are usually ready to be sold for slaughter at roughly the same time as the sow is due to farrow her new litter. Therefore any overlap between the presence of a sow's last litter and her new litter in an integrated pig unit is necessarily short and in many cases may not arise at all.

40. She also accepts that the relevance of the number of pigs present in an integrated unit arises from the amount of slurry or neat excreta produced by each animal and the effect of such slurry on the surrounding environment.

41. Whatever may be the relative merits of these different points of view what I am asked to consider on this application is a question of interpretation of regulations.

42. The Board's own evidence demonstrates that the interpretation of the regulations which is urged upon me by the Applicant is one which they shared until quite recently. The Affidavit of Paula McHugh of the 10th September, 1998 demonstrates this. That departure seems to rely upon the 'BATNEEC' Guidelines which treat a sow as including her progeny. In so doing the EPA which produced these guidelines make it clear that the test is not a legal one. The explanation for this change in approach on the part of the Board is accounted for by inter alia the fact that a different interpretation of a pig and a sow prevailed at the time when the original attitude was adopted by the Board. Indeed Elizabeth Dolan's Affidavit of the 20th October, 1998 makes it clear that the Board's interpretation of the regulations "has evolved over time in light of judicial authority and of consultations with the Environmental Protection Agency ... and publications by the EPA and other public bodies". The Board says that its present interpretation "best reflects the legislative intention and best achieves the objective of the said Regulations".

43. The Applicant contends that the plain and ordinary meaning of the word "pig" and "sow" in the context of the regulations requires the Board to take account of each pig within the unit in calculating the thresholds in question. It is to be noted that no definition of the word "pig" is given in the directive or indeed in the implementing regulations.

44. The Board accepts that in normal course when approaching the interpretation of a regulatory provision a Court should give the ordinary and natural meaning to the word or phrase under consideration. However, it says that there are circumstances where the adoption of an overly literal construction of a particular word or phrase will result in an ambiguity or inconsistency in the context of a provision as a whole. In this context the Board submits that whilst it might at first sight appear logical to give the word "pig" a literal interpretation to cover any porcine animal of any age, such interpretation is ambiguous when taken in the context of paragraph 1(e) as a whole. The Board further says that the interpretation advanced by the Applicant is contradictory in that whilst seeking to have "weaners" and "finishers" treated as pigs in their own right, the Applicant concedes that suckling piglets prior to weaning are not intended to come within the definition of "pig". Such a concession the Board says is an acknowledgement that the word "pig" is not intended to cover all pigs and that the definition of sow is intended to include the progeny of a sow. What is in issue therefore between the parties is the extent to which a sow's progeny are included within the definition of sow and encompassed within the ten pig units assigned to a sow under the regulations.

45. The Applicant counters by saying that there is a distinction to be drawn between a piglet and a pig. The piglet is associated with the mother and largely dependant upon her. It then moves from the mother to become a weaner and must then be regarded as a pig in its own right. It moves to a production unit which in the case of an integrated unit will form part of the overall. If however, the weaner were to move to a production unit which was a little distance further from the breeding unit it would have to be regarded as a pig in its own right and would reckon as a single unit for the purpose of the regulations.

46. Leaving aside any European element in the case, it appears to me that the most elementary rule of construction of legislation has been stated by Lord Reid in Pinner -v- Everett [1969] 1WLR 1266, 1273 when he said:-

47. Applying this approach it seems to me that the term "pig" is a generic one to describe several categories of the swine species. The concise Oxford Dictionary defines a pig as "any omnivorous hoofed bristly mammal of the family Suidae" . Accordingly, in my view, applying the literal test, the term "pig" covers boars, weaners and finishers and would apply to sows were it not for the fact that they are separately identified as such in the regulations. The application of this literal test would of course mean that piglets would also be included and would have to be accounted for as representing one unit each. Applying the test enunciated by Budd J. in Rahill-v-Brady ( supra) I have to ask myself does such a literal interpretation give effect to the real intention of the Legislature? In my view it does not.

48. The principal reason for so concluding is the separate identification of sows from pigs and the attribution to them of 10 units rather than 1. The attribution of the number of units per head is quite clearly associated with the excreta of the animal. The attribution of 10 units to a sow is in my view a clear acknowledgement by the regulations that her progeny are taken into account in assessing the 10 units. But the question then arises as to whether the progeny so included go beyond mere piglets and also include weaners and finishers derived from an individual sow. The resolution of this question can in my view be best achieved by resorting to the teleological or "purposive" approach to interpretation.

49. The regulations in suit have their genesis in an EU Directive. They therefore fall to be interpreted in accordance with the underlying purpose of the Directive. In this regard the decision of the Supreme Court in Nathan-v-Bailey Gibson [1996] ELR 114 at 124 is apposite.

50. The Supreme Court quoted from the European Court of Justice in the case of

51. In the present case Directive 85/337/EEC proceeds on the basis that the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects. It affirms the need to take effect on the environment into account at the earliest possible stage in all the technical planning and decision making processes. It recites that it is necessary to achieve one of the Community's objectives in the sphere of the protection of the environment and the quality of life. It goes on to point out in the recital that general principles for the assessment of environmental effects should be introduced with a view to supplementing and coordinating development consent procedures governing public and private projects likely to have a major effect on the environment. The recitals to the Directive also provide that development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out. It also provides that the effects of a project on the environment must be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life.

52. Given that the regulations fall to be interpreted in the light of these recitals in the Directive can it be said that the Board's approach to the interpretation of the regulations is correct? That approach means that all the progeny of a sow, both piglets, weaners and finishers are captured in the attribution of 10 units to such sow. I do not think that this is the correct interpretation to be given to the regulations.

53. It is clear that the regulations are principally concerned with the detrimental effect which effluent from pigs is going to have on the environment. When dealing with the prospect of damage to the environment it is prudent to be cautious. This is so because frequently damage done to the environment is either irreparable or takes many years to repair. That is undoubtedly so in the case of the discharge of pig effluent or slurry.

54. It seems to me that the intention of the regulations in attributing 10 units to a sow was intended to take account of the polluting impact of her litter before weaning. At that time the piglets are dependant on their mother and whilst on a literal construction are pigs, the effluent discharged by them would be of such a quantity as to be captured within the 10 units assigned to the mother. When however they move on from being dependant upon her and are producing an ever greater quantity of effluent as they develop I cannot see any merit in the argument advanced by the Board that they should still be reckoned as falling within the 10 units assigned to the mother. I do not find any sound basis for the argument that the units accorded to the sow are intended to account for the environmental impact of that sow and her progeny right up to slaughter.

55. The evidence satisfies me that generally when piglets become weaners, that is having been weaned from the sow, they are moved to independent units where they are fattened so as they become finishers prior to slaughter. Indeed a perusal of the actual application for permission in the instant case demonstrates that separate weaning and finishing houses were envisaged. It would indeed be ironic if simply because these finishing and weaning houses are accommodated on the site of an integrated unit neither the weaners nor finishers were to be reckonable for an award of points under the regulations whilst if they were housed a short distance away from the integrated unit they would each attract 1 point. Regardless of their geographic situation whilst in or out of an integrated unit they still produce the same amount of effluent. Yet in one case that effluent would not be reckoned for points purposes under the regulations but on the other they would. In my view it cannot have been the intention of the Legislature that such an anomalous situation would arise particularly having regard to the intent of the regulations which in turn find their roots in the European Directive.

56. It follows that the Board ought to have regarded the weaners and finishers as being "pigs" for the purposes of the regulations. They ought to have been reckoned as attracting one point each. Such being so, the project exceeded the threshold.

57. I conclude that the interpretation by the Board of the threshold requirement in paragraph 1(e) of Part II of the First Schedule to the Regulations of 1989 is legally incorrect. It follows therefore that an EIS was required for the proposed development. As it was not forthcoming and no EIA was carried out the planning permission granted by the Board is fatally flawed. It follows that the Applicant is entitled to an Order of Certiorari directing the Board to send up to this Court for the purpose of being quashed its decision of the 20th June 1997 to grant planning permission to Mr McEvoy.

58. In such circumstances it is neither necessary nor I think desirable that I should consider the alternative grounds which were advanced in support of the application.

59. The Applicant succeeds and an Order of Certiorari will issue to quash the decision in suit.