July 23rd, 2019
The High Court has temporarily suspended the coming into force of new regulations that would remove industrial-scale peat extraction projects from the planning system due to concerns over breaches of European environmental law.
At present, projects of 30 hectares (ha) or more are subject to oversight from both the planning regime and the Environmental Protection Agency.
Earlier this year, however, the Minister for Planning Eoghan Murphy TD published new regulations to exempt large-scale projects from any requirement to obtain planning permission.
Friends of the Irish Environment (FIE) argued that the legislative amendments in these regulations would cause a suspension of the obligation of peat extraction projects to comply with EU environmental Directives.
The group sought a temporary injunction to stop the regulations coming into force until judicial review proceedings challenging Mr Murphy’s regulations are heard in September.
Mr Justice Garrett Simons said this morning that the injunction sought is “striking in its ambition” as it would restrain legislation provisions. He said that there is a “heavy burden” on the applicant as it seeks to “suspend the operation of the law of the land”.
Wholesale exemption
Despite the “highly unusual circumstances” of the case, Mr Justice Simons said that he would grant a limited injunction suspending the coming into effect of the legislation. The injunction will last until the judicial review proceedings are heard.
“The practical effect of [the regulations] is that certain peat extraction activities …. may continue for a period of in excess of 18 months without there being any obligations under domestic law to hold development consent,” Mr Justice Simons said in his judgement.
“Unlicensed peat extraction may thus be carried out without there being any risk of enforcement action,” he said, adding that the gap in the regulatory framework may also represent a breach of both the Environmental Impact Assessment (EIA) and Habitats Directives.
Peat extraction activities are required to be assessed as per requirements in the EIA Directive and may need to be assessment under the Habitats Directives depending on proximity to protected nature areas. Both the EIA and Habitats Directives are implemented under the Planning and Development Act 2000.
In addition, Mr Justice Simons said that a refusal to grant the temporary injunction could open the door for unlicensed peat extraction to continue into the summer harvesting season in breach of the Directives.
He said that he was not satisfied with the case put forward by the State as it failed to disclose an arguable defence as to how it intends to justify the temporary “wholesale exemption” of large-scale extraction projects from compliance with the Directives.
Based on these considerations, Mr Justice Simons said that he was “satisfied that the greatest risk of injustice lies in refusing to grant some form of an interlocutory injunction”.
Supreme Court ruling pending
The Supreme Court is due to make a judgment on Friday in relation to another case brought by FIE on peat extraction and the need for planning permission.
The case is related to three cases of
industrial peat extraction operations on up to 180 hectares that FIE submitted to
An Bord Pleanala in 2010, arguing that they required planning permission.
The Board determined that extraction on
bogs in Co Westmeath operated by Westland Horticulture and Bulrush Horticulture
required planning permission and environmental assessments.
However, in the third test case, the Board refused to require planning permission as the identities of all the owners of the bog sites in question could not be fully determined.
Fie challenged the decision in the High Court that ruled the decision lay within the discretion of the Board. An appeal application was refused, however, a ‘leapfrog’ appeal to the Supreme Court was accepted.
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