The Supreme Court has ruled that An Taisce may argue on appeal that the environmental assessment for a proposed cheese factory at Slieverue, Co. Kilkenny, should have considered effects linked to the milk supply and potential water pollution.
The ruling concerns the scope of An Taisce’s appeal against An Bord Pleanála’s June 2020 grant of planning permission to Kilkenny Cheese Limited, formerly JHOK Limited. It does not determine whether the permission should be quashed or decide the underlying environmental arguments.
An Taisce’s judicial review challenge was dismissed by the High Court in April 2021. The Supreme Court later granted leave for a direct appeal, but the parties disagreed about which grounds that leave covered. The preliminary hearing, addressed in a judgment delivered by Mr Justice Gerard Hogan on 7 December 2021, resolved that dispute about scope.
An Taisce says the assessment should have examined indirect environmental effects from the milk needed to supply the factory, including potential consequences for greenhouse gas and nitrate emissions. The judgment records that the project was expected to require 450 million litres of milk annually. An Taisce also challenges aspects of the habitats assessment, including the treatment of Atlantic salt meadows and treated effluent, and raises concerns about pollutant discharges into the River Suir under water legislation.
The Board and Kilkenny Cheese argued that the earlier leave determination was confined to how scientific evidence and argument should be treated in a habitats assessment. They said it did not refer to the Environmental Impact Assessment Directive or the Water Framework Directive.
Mr Justice Hogan said the Supreme Court should take a broadly liberal approach to interpreting the scope of its leave determinations. He concluded that An Taisce could pursue its arguments about off-site milk production and the general effects of Article 2(1) of the Environmental Impact Assessment Directive. He also allowed arguments under the Water Framework Directive that had been properly before the High Court.
The order leaves the respondents and notice party free to argue at the full appeal hearing that the Water Framework Directive point was not pleaded or raised in the High Court and should not be determined. The substantive appeal remains to be heard.