High Court of Ireland Decisions

Judgment Title: Brady v The Environmental Protection Agency

Neutral Citation: [2007] IEHC 58


High Court Record Number: 1999 473JR

Date of Delivery: 09 March 2007

Court: High Court

[1999 No. 473 JR]

“5.5.4. Landspreading shall not take place on land identified in schedule 3(iv) lands where land spreading of organic waste from this facility are excluded.
5.5.7. The licensee shall ensure that no slurry/manure from the facility to which this licence relates is provided to lands in the land bank which receive waste from lands spreading from any other off-farm source which are not included in the Nutrient Management Plan, other than by agreement with the Agency.
5.5.9. All land spreading activities shall be undertaken in accordance with a Nutrient Management Plan which must be agreed with the Agency and submitted not later than six months from date of grant of this licence and each calendar year thereafter as part of the AER.
5.5.10. The applicant shall provide a copy of the REPS plans for all farms identified in the land bank which are included in the REPS scheme, to the Agency, within six months of the date of grant of the licence.
5.5.11. Landspreading shall be carried out in accordance with schedule 3(v) buffer zones for land spreading of organic waste and schedule 3(iv) code of practice for land spreading of organic waste. All land spreading activities shall be carried out in such a manner as to avoid contamination of surface and ground waters, and so as to minimise odour nuisance from the activity.
5.5.13. A register of land spread slurry/manure (“slurry/manure register”) shall be maintained on site on a daily basis and shall be available for inspection by authorised personnel of the Agency at all times. The register shall include details of … date of slurry … spreading, contractor… spreading slurry… weather and ground conditions … nutrient requirements for individual fields … volumes of slurry … applied.
7.1.5. The licensee shall within twelve months of the date of grant of this licence submit to the Agency for agreement the surface water monitoring programme for surface waters which bisect the land spread areas. The results generated by the agreed programme are to be reported annually as part of the AER.”

“… it appears that the Agency does in fact seek to control holdings outside the licensable installation and occupiers of holdings that are not licensable holdings. I say that the Agency appears in the impugned licence to require the applicant to accept a condition or conditions in his licence that would somewhat result in the applicant having a level of control over the customer farmer’s lands to enable them to carry out a scientific evaluation of the nutrient status of their lands and to take responsibility for implementing a fertilising regime on those lands based on such evaluation… [the respondent] appears to be concerned that if a farmer having purchased such animal manure proceeds to spread it and subsequently causes pollution that it is the applicant who is responsible and I say that this is I say and believe and dealt with by other legislation and is a matter over which the producer of the animal manure can have no control and in effect what the Agency are seeking to do is to make the applicant responsible for the acts of third parties.”

“52. It follows that the system of supervision and control established by Directive 75/442, as amended, it intended to cover all objects and substances discarded by their owners, even if they have a commercial value and are collected on a commercial basis for recycling, reclamation or re-use.
53. As the Advocate General points out in paras. 60 and 61 of his Opinion, deactivation process intended merely to render waste harmless, landfill tipping in hollows or embankments and a waste incineration constitute disposal or recovery operations falling within the scope of the Community legislation. The fact that a substance is included in the category of re-usable residues without any details being given as to its characteristics or use is irrelevant in that regard. The same applies to the grinding of waste.”

“29 First, Directive 75/442, as amended, applies, as is apparent in particular from Articles 9 to 11, not only to disposal and recovery of waste by specialist undertakings, but also to disposal and recovery of waste by the undertaking which produced them, at the place of production.
30 Second, while Article 4 of Directive 75/442, as amended, provides that waste is to be recovered or disposed of without endangering human health or using processes or methods which could harm the environment, there is nothing in that directive to indicate that it does not apply to disposal or recovery operations forming part of an industrial process where they do not appear to constitute a danger to human health or the environment.
31 Finally, it should be borne in mind that the Court has already held that the definition of waste in Article 1 of Directive 75/442, as amended, is not to be understood as excluding substances and objects which were capable of economic reutilization (Case C-359/88 Zanetti and Others [1990] ECR I-1509, paragraphs 12 and 13; C-422/92 Commission v Germany [1995] ECR I-1097, paragraphs 22 and 23, and Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, paragraphs 47 and 48).
32 It follows from all those considerations that substances forming part of an industrial process may constitute waste within the meaning of Article 1(a) of Directive 75/442, as amended.
33 That conclusion does not undermine the distinction which must be drawn, as the Belgian, German, Netherlands and United Kingdom Governments have correctly submitted, between waste recovery within the meaning of Directive 75/442, as amended, and normal industrial treatment of products which are not waste, no matter how difficult that distinction may be.
34 The answer to the second question must therefore be that a substance is not excluded from the definition of waste in Article 1(a) of Council Directive 75/442, as amended, by the mere fact that it directly or indirectly forms an integral part of an industrial production process.”

“…the fact that a substance used as fuel is the residue of the manufacturing process of another substance, that no use for that substance other than disposal can be envisaged, that the composition of the substance is not suitable for the use made of it or that special environmental precautions must be taken when it is used may be regarded as evidence that the holder has discarded that substance or intends or is required to discard it within the meaning of Article 1(A) of the Directive. However, whether it is in fact waste within the meaning of the Directive must be determined in the light of all the circumstances, regard being had to the aim of the Directive and the need to ensure that its effectiveness is not undermined.”

“36 … having regard to the obligation recalled at para. 23 of this judgment to interpret the concept of waste widely in order to limit its inherent risks and pollution, the reasoning applicable to by-products should be confined to situations in which the reuse of the goods, materials or raw materials is not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process.
37. It therefore appears that, in addition to the criteria of whether a substance constitutes a production residue, a second relevant criterion for determining whether or not that substance is a waste for the purposes of Directive 75/442 is the degree of likelihood that the substance will be reused, without any further processing prior to its reuse. If, in addition to the mere possibility of reusing substance, there is also a financial advantage to the holder in so doing, the likelihood of reuse is high. In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to “discard”, but as a genuine product”.

“99. The Commission submits that slurry is a substance which has a deleterious effect on the taste and/or odour of groundwater and which therefore comes within list II in Directive 80/68. Authorisation procedures involving prior investigations and hydrogeological studies should, as a result, have been implemented in the areas affected by pollution where pigrearing farms were going to be built, in compliance with Articles 3(b), 5(1) and 7 of Directive 80/68, which did not happen. The existence of uncontrolled discharges and seepages of slurry is proved by the enforcement actions undertaken by the Spanish authorities against the managers of the farms in question.
100. However, it must be observed, first, that the use of slurry as fertilizer is an operation which usually complies with good agricultural practice, and is not disposal or tipping for the purposes of disposal of these substances' within the meaning of Article 5 of that directive.
101. Secondly, even if the spreading of the slurry has a deleterious effect on the taste and/or odour of the groundwater and could cause water pollution, the system of protection of waters from pollution by livestock effluent is not based, at Community level, on Directive 80/68 but on Directive 91/676. The latter's specific purpose is to counter water pollution resulting from the spreading or discharge of livestock effluent and from the excessive use of fertilizers. The scheme of protection for which it provides involves precise management measures which the Member States must impose on farmers and which take into account the more or less vulnerable nature of the environment receiving the effluent.
102. If Article 5 of Directive 80/68 were interpreted as meaning that the Member States must subject to prior investigation, involving, in particular, a hydrogeological survey, any use of slurry or, more generally, of livestock effluent as agricultural fertilizer, it would result in extensive investigation requirements, whatever the area concerned. Those requirements would be manifestly more rigorous than those which the Community legislature, by Directive 91/676, intended to impose on the Member States in agricultural matters. The scheme of protection established by Directive 80/68 would be substituted in part for that specifically instituted by Directive 91/676.
103. Such a construction of Directive 80/68 cannot therefore be upheld.”

“ … shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.”

“4(1)(a) In this Act ‘waste’ means any substance or object belonging to a category of waste specified in the First Schedule or for the first time being included in the European Waste Catalogue which the holder discards or intends or is required to discard, and anything which is discarded or otherwise dealt with as if it were waste shall be presumed to be waste until the contrary is proved.”

“52.—(1) The functions of the Agency shall, subject to the provisions of this Act, include—

a) keep itself informed of the policies and objectives of public authorities whose functions have, or may have, a bearing on matters with which the Agency is concerned,
b) have regard to the need for a high standard of environmental protection and the need to promote sustainable and environmentally sound development, processes or operations,
c) have regard to the need for precaution in relation to the potentially harmful effect of emissions, where there are, in the opinion of the Agency, reasonable grounds for believing that such emissions could cause significant environmental pollution,
d) have regard to the need to give effect, insofar as it is feasible, to the "polluter pays" principle, as set out in Council Recommendation 75/436/EURATOM, ECSC, EEC of 3 March, 1975 , regarding cost allocation and action by public authorities on environmental matters,
e) ensure, in so far as is practicable, that a proper balance is achieved between the need to protect the environment (and the cost of such protection) and the need for infra-structural, economic and social progress and development.
30. Section 83 of the Act allows the Agency to grant a licence and to attach conditions thereto. In considering any application for a licence, the Agency is limited by its functions and bound by its objectives. Of particular relevance here, the respondent must have regard to “such other matters related to the prevention, limitation, elimination, abatement or reduction of environmental pollution”’ as it considers necessary. Under s. 83(3) the Agency should not grant a licence unless it is satisfied that any emissions from an activity that comes within its scope will not contravene the relevant quality standard for water and, further, that the activity will not cause significant environmental pollution. Where such risks appear to be possible, the Agency is entitled to attach conditions which are related to the protection of the environment from those risks. Any activity which is scheduled under the Act must have a licence from the respondent. The licence is granted under Part IV of the Act and the First Schedule thereto provides that the activities to which that part of the Act applies include, under para. 6.2, “the rearing of pigs in installations… where the capacity exceeds 1,000 units on gley soils or 3,000 units on other soils.” For this purpose, a pig is counted as one unit and a sow as ten. On any reading, the applicant comes under scope of the Act. Under s. 84, conditions may be attached to the licence which, among other matters, can specify limits to the effects of an emission. An emission is defined in s. 3 as including “the disposal of waste”.
31. Under Article 10 of the Treaty of Rome and Article 29 of Bunreacht na hÉireann I am obliged to define the concept of waste in the same way as defined by Council Directive 75/442 EEC as amended by Council Directive 91/156/EEC, as described above. In the event of any ambiguity, the interpretation of national legislation must provide for our European obligations. Section 84 of the Environmental Protection Agency Act, 1992 allows the Agency to provide for conditions to be attached to a licence relating to the location of an emission; the periods during which it may be made; the limits to the effect on emission; the rate of concentration of a pollutant in an environmental medium; any matters relating to the construction of outlets; the means to be used for controlling an emission; the limits in relation to the amount or composition of a substance produced or utilised; the maintenance of measuring apparatus; the taking and analysis of samples; the furnishing of information to the Agency; the measures to be taken if there is a breakdown of any equipment; the type of fuel to be used; the nature of the treatment to be applied to waste; and the measures to be taken when the activity ceases.
32. Under s. 87 the Minister may make regulations in relation to applications for licences: these are, in fact, the Environmental Protection Agency (Licensing) (Amendment) Regulations, 1996.

Limits and Consequences
33. Despite the wide powers apparently given to the respondent through the Environmental Protection Agency Act, 1992, as amended, an administrative body is not entitled to impose arbitrary conditions on a licensee. In Hanrahan Farms Ltd v. The Environmental Protection Agency, Ireland and The Attorney General, (Unreported, High Court, Smyth J., 21 July, 2005) an issue arose as to whether particular conditions in a licence granted by the respondent were within the powers conferred on it under the Act. Smyth J. commented:-

“While the nature of the power in s. 83(1) is general in character, the respondent did not contend that its power was unrestricted, it was properly accepted that a condition must be for a legitimate environmental purpose under the relevant legislation and that it must fairly and reasonably be related to the licensed activity. That stance accords (in a planning context) with the judgment of Lord Denning in Pyx Granite, infra at p. 572:-
“… the law says that conditions attached to a planning decision, to be valid must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however, desirable that object may seem to them to be in the public interest”.

“ … the intention of the legislature is best construed from the words of the Act. If the words are clear and unambiguous then they should be given their ordinary and natural meaning. In this case the words of the statute are clear and unambiguous and the meaning of the statute appears clearly from the words. The words themselves do not create an offence of strict liability. On the words of the statute there is no exclusion of the requirement of mens rea. As it is only if the words are not clear that one may proceed to a construction by implication, the second step does not arise if one applies the general rules of interpretation of statutes to this section.”

1. A non dangerous substance that is used in farming (I would hold that it is in fact dangerous to the environment and to human health);
2. that special environmental precautions do not need to be taken when it is used (I would hold that special environmental precautions are essential if it is properly to be discarded);
3. that it is certain to be used correctly as an organic fertilizer as opposed to becoming a pollutant (I would hold that the certainty of its use in this respect is far from established and is, indeed, uncertain); and


4. that the material is spread in accordance with good agricultural practice pursuant to regulations laid down by a competent authority (I would hold that the respondent is the competent authority and that the regulation of this activity is essential).