An Taisce - The National Trust for Ireland v An Bord Pleanala & ors (Approved)

Factual and Procedural Background

The Appellant commenced judicial review proceedings seeking to quash a planning permission granted on 30 June 2020 to the Notice Party for the construction of a cheese factory in The City. The Respondent planning authority had found the development acceptable, but the Appellant contended that downstream environmental consequences had not been properly assessed.

In the High Court, Judge [Last Name] dismissed the claim on 20 April 2021. An application for leave to appeal to the Court of Appeal was refused, after which the Supreme Court granted direct leave to appeal under Article 34.5.4 of the Constitution. The present judgment does not resolve the substantive environmental dispute; rather, it determines what issues may be argued in that forthcoming appeal.

Legal Issues Presented

1. Whether the scope of the Supreme Court’s earlier leave determination permits the Appellant to advance arguments concerning the indirect environmental impacts of off-site milk production under Article 2(1) of the Environmental Impact Assessment Directive.
2. Whether the leave determination also encompasses arguments based on the Water Framework Directive as they relate to the assessment of scientific evidence of potential pollution.
3. The proper method for interpreting and, where necessary, clarifying or modifying a Supreme Court leave determination issued under Articles 34.5.3 and 34.5.4 of the Constitution.

Arguments of the Parties

Appellant's Arguments

• The leave determination should be read broadly, allowing consideration of indirect (off-site) environmental impacts associated with sourcing 450 million litres of milk annually for the proposed factory.
• Failure to assess those impacts violates the Environmental Impact Assessment Directive, the Habitats Directive and the Water Framework Directive.
• A narrow construction of the leave determination would undermine EU-law supremacy and the public interest in comprehensive environmental review.

Respondent Planning Authority's Arguments

• The leave determination expressly refers only to issues under the Habitats Directive concerning scientific certainty in appropriate assessment; it says nothing about the Environmental Impact Assessment Directive or the Water Framework Directive.
• Permitting the Appellant to widen the scope would exceed the constitutional threshold for leave and introduce issues not certified as of general public importance.

Notice Party's Arguments

• The determination granted leave solely on the question whether, in the absence of contradicting evidence before the authority, the Appellant could contend that all scientific doubt had not been removed under Article 6(3) of the Habitats Directive.
• No reference was made to indirect milk-production impacts or to the Water Framework Directive; those matters therefore fall outside the appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court adopted a “broadly liberal” interpretative stance, emphasising that:

• Leave determinations should not be read “as written in stone”; subsequent clarification is permissible, particularly after full oral argument.
• The Supreme Court’s role extends beyond error correction to addressing issues of general public importance, often implicating EU-law supremacy.
• Denying consideration of indirect environmental impacts could hamper the Court’s obligation to ensure conformity with EU directives.
• Because the High Court judgment centred on off-site milk-production impacts, silence in the leave determination about that issue did not signify exclusion; otherwise, explicit refusal would have been stated.
• Arguments under the Water Framework Directive are sufficiently analogous to the Habitats-Directive issue already within scope, and a restrictive approach could impede proper statutory interpretation aligned with EU law.

Consequently, the Court clarified that both the off-site milk-production argument and Water Framework Directive issues fall within the permissible ambit of the forthcoming appeal. It noted, however, that Respondents remain entitled to argue at the full hearing that any particular contention was not pleaded or argued in the High Court.

Holding and Implications

HOLDING: The Appellant is permitted to advance arguments concerning (i) indirect environmental impacts of off-site milk production under the Environmental Impact Assessment Directive and (ii) scientific-evidence obligations under the Water Framework Directive in the pending appeal.

Implications: The judgment expands the range of issues for the substantive appeal and affirms a flexible, EU-law-compliant approach to interpreting Supreme Court leave determinations. While it sets no new binding precedent on environmental assessment, it signals that the Court will not confine appeals to an unduly narrow reading of earlier determinations, thereby influencing future case-management and environmental-law litigation.