The Attorney General’s new litigation principles for public bodies have been cited by two local residents to bolster their argument that An Bord Pleanála should concede in their challenge to its permission for a €40 million Chinese-backed meat factory in the midlands.
The High Court was on Monday told that Desmond Kampff and Gwen Wordingham had called on the planning board to concede in their case on the basis that it stopped contesting a similar point in another judicial review planning action.
The board’s counsel, David Browne, said it seems to be the applicants’ position that the board, as “an arm of the State”, has “some duty to concede” in the case based on the Government’s State litigation principles issued last month by Attorney General Rossa Fanning. The board does not accept that it should concede in this case and wants an opportunity to respond to the applicants’ latest points, Mr Browne added.
Among the 15 principles drafted by Mr Fanning is one stating that public bodies should “be consistent across claims”.
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Speaking last month, Mr Fanning said the State should act in the public interest and consider the broader public interest before taking certain procedural steps in litigation. The guidelines, he said, “do not create rules of law”, “do not have any binding legal effect” and “are not intended to radically change how the State conducts litigation”.
In their judicial review, Mr Kampff and Ms Wordingham, represented by barrister John Kenny, instructed by FP Logue solicitor Eoin Brady, say they are “critically concerned” about the potential environmental impacts of the proposed processing plant at a site 3km southeast of Banagher, Co Offaly.
The facility would discharge its domestic and wastewater into the nearby Feeghroe stream which, they say, does not have the capacity for this.
Permission for Banagher Chilling Limited to expand a pre-existing disused plant was upheld by An Bord Pleanála in June 2022 following an appeal lodged by Mr Kampff and Ms Wordingham against Offaly County Council’s grant of permission.
The new facility will have the capacity to slaughter 36,000 animals a year.
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An Bord Pleanála’s inspector found the development proposed by Banagher Chilling Limited would “not be likely to have a significant negative environmental impact in terms of climate”.
However, Mr Kampff and Ms Wordingham, who have separate addresses in Banagher, claim it was not open to the board to make this finding as, they say, the evidence demonstrates that the additional biochemical oxygen demand levels would be sufficient to render the adjacent Feeghroe stream incapable of attaining good status. The discharge would also lead to significantly elevated nitrogen levels, they allege.
The board could not have arrived at its conclusion that there would be no significant environmental effect in circumstances where the adjacent Feeghroe stream has not been assigned a quality status by the Environmental Protection Agency (EPA).
The applicants also allege invalidity occurred because the Environmental Impact Assessment (EIA) report was allegedly not uploaded on to the board’s website.
The pair say the permission breaches a section of the water framework directive and surface water regulations.
