September 20th, 2019
The High Court has ruled that new regulations to take large-scale
peat extraction outside of the Irish planning regime are inconsistent with European
environmental law and must be dissolved.
The judgement, issued this afternoon by Mr Justice Garrett Simons, comes after a challenge by Friends of the Irish Environment (FIE) to new secondary legislation introduced in January.
The regulations exempted peat extraction on lands greater than 30
hectares from the need for planning permission, while also bringing extraction
on this scale under Environmental Protection Agency (EPA) licensing. Up to that
point, the EPA was only engaged when extraction reached 50ha.
While the exemption came into immediate effect in January 2019, there would be a lengthy transitional period within which large-scale extraction could continue before the EPA licensing regime came into full effect.
In July, Friends of the Irish Environment (FIE) brought Judicial Review proceedings against the decision and also sought a temporary injunction to stop the regulations from coming into force.
The group argued that, as the regulatory change would not occur for at least 18 months for unlicensed activities and 36 months for licensed extraction, an “enforcement holiday” would be created. At present, a high percentage of commercial large-scale peat extraction in Ireland is unlicensed.
In addition, FIE said that the regulations are a “flagrant breach” of EU law, and would suspend the obligation of peat extraction projects to comply with the Environmental Impact Assessment (EIA) and Habitats Directives.
Article 2(1) of the EIA Directive outlines that EU Member States must ensure projects likely to have a significant impact on the environment are made subject to a requirement for development consent through the likes of planning permission.
Projects may also need to be assessed under the Habitats Directives depending on proximity to, and potential impact on, protected nature areas.
Inconsistent with EU law
Mr Justice Simons granted the temporary injunction request from FIE, and today ruled that the amended legislation is “inconsistent” with both Directives.
One of the “offending features” of the regulations, he said, is the absence of any option to suspend extraction during the transition period to the EPA regime.
In addition, he said, no exceptional circumstances were presented by the State that would justify giving companies carrying out development in breach of EU law “an opportunity to regularise their legal status”.
“Developers who hold neither a planning permission nor a licence are to be allowed to continue carrying out peat extraction unabated during this transitional period,” his judgement reads.
He likened the “shortcomings” of the amended legislation to those
of the “old” planning legislation that was “condemned” by the Court of Justice
of the EU in 2006 following a legal challenge from the European Commission.
In July, the Commission indicated that it will
take action against Ireland for a continued failure to ensure that peat
extraction is properly assessed for environmental impacts as required under EU
law
In effect, Mr Justice Simons said, the new regime would have left projects that have not been properly authorised or assessed for the purposes of the EIA and Habitats Directives “undisturbed”.
In addition, Mr Justice Simons ruled that the regulations would “cut across primary legislation” enacted by the Oireachtas for the “precise purpose of giving effect to the two EU Directives” and as such, would be impermissible.
An order will now be made setting aside the regulations “in their entirety” and a Judicial Review hearing will proceed on a limited number of other issues raised in the case.
Both the Department of Climate Action (DCCAE) and the Department of Planning were contacted for comment, as well as the EPA, however, no reply was received at the time of publication.
10 years
of action
Reacting to the judgement, Tony Lowes, a director of FIE, said that today’s judgement is the culmination of 10 years of campaigning and legal challenges to bring industrial peat extraction under proper planning control.
He told The Green News that the practice is “not only damaging to the natural environment” but is also a “direct cause” of climate change and loss of Ireland’s greatest carbon sink.
Peatlands cover around 20 per cent of the State’s land area and an intact peatland will actively remove carbon dioxide from the atmosphere.
Globally,
they are estimated to store 20 to 30 per cent of the world’s soil carbon –
three times more than that stored in tropical rainforests.
“We have no right to
lecture Brazil on clearing their rainforests while we are digging up and
burning our own bogs,” Mr Lowes added.
He said that the judgement will see extraction properly examined through planning law to determine “if there is any future” for the industry.
He added that FIE will continue to push the State for a national strategy to restore our peatlands and a strong just transition plan for peat workers.
Impact on
the industry
The judgement will have a significant impact on Ireland’s large-scale
peat extraction sector that supplies peat for power-generation, horticultural compost
and growing medium for Ireland’s export driven mushroom industry.
Following the granting of the temporary injunction in July, some of the island’s largest peat operators ceased harvesting following a High Court ruling to temporarily suspend new regulations to remove large-scale extraction from the planning regime.
Westland Peat Limited, for example, wrote to FIE’s legal team at the end of July informing them that it had not harvested any peat since the decision by Mr Justice Simons.
The multi-million euro gardening company from Co Tyrone that started out selling compost is not engaged in commercial peat extraction on around 270 hectares at several locations in Co Westmeath.
According to the letter seen by The Green News, Westland “accepts that they must cease harvesting
peat” and has “not harvested any peat since the decision of the Court on
Tuesday [23 July 2019]”.
“Any loose peat (already harvested) on the fields presents an
immediate environmental risk and is being taken off the fields and stored
safely on site,” the letter continues.
FIE has also written to Local Authorities in counties where companies
are based, pointing out that councils must take enforcement action where they
are aware of unauthorised activities.
The
need for planning permission for large-scale peat extraction has been a
controversial topic for decades, with An Bord Pleanála only ruling in 2013 that
permission was in fact required.
The decision followed a referral from FIE as to the planning status of three separate large peat operations run by Westland, Bulrush Horticulture and an unnamed third company. FIE argued that the works were not exempted development and should be subject to an environmental assessment.
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