A composite judgment was delivered by Ms. Justice Phelan on 16 March 2022 ("the Judgment") in respect of two sets of proceedings between the Environmental Protection Agency (“the Agency”) and Harte Peat, a company which supplies its product to Irish mushroom growers. The proceedings concerned peat extraction activity carried out by Harte Peat on lands at Shrubbywood/Ballinaloe and Derrycrave, County Westmeath and further bog lands in Counties Cavan and Monaghan.
The Judicial Review Proceedings
The first set of proceedings concerned a judicial review by Harte Peat of the Agency's decision to refuse to consider Harte Peat’s application for an integrated pollution control licence ("IPC licence"). Harte Peat maintained that the activity involved development for which a grant of planning permission is not required, essentially because the relevant activity commenced before the 1st October 1964 and therefore did not require planning permission. The Court found that the Agency was correct in its conclusion that it could not consider the application under s. 87(1C) of the EPA Act 1992 in the absence of evidence of planning permission. The Court found that "development consent" in the form of planning permission was required for the development because of the requirements for an Environmental Impact Assessment ("EIA") under EU environmental law.
However, the Judgment held that the record of the Agency's decision-making did not provide sufficient explanation – because it did not specifically address the pre-64 user claim - to enable Harte Peat to understand the basis for the Agency's decision to refuse to consider the licence application. However, in light of the fact that the Agency's decision was legally correct, the Court did not quash the Agency's decision, but rather ordered declaratory relief in Harte Peat’s favour dealing with the Courts finding that adequate reasons had not been provided for its decision.
The Injunction Proceedings
The second set of proceedings were brought by the Agency and involved an application for perpetual prohibitory injunctive relief pursuant to s. 99H of the EPA Act preventing further peat extraction by Harte Peat on certain lands. The Agency sought various orders for the cessation and future prevention of the extraction of peat and associated activity at specified areas on the basis that the activity is being undertaken without an IPC licence or planning permission.
Ms. Justice Phelan was satisfied that Harte Peat was engaged in peat extraction in the course of business which involved an area significantly in excess of 50 hectares (the relevant threshold in the EPA Act 1992 triggering the requirement for an IPC licence). In this regard, the Judgment found that it was appropriate to have regard to the full extent of the bog in terms of its technical and hydrological connection, rather than to focus on the specific areas from which peat has been harvested, stating as follows:
"To proceed otherwise on the basis of the contrary argument of HP that the Court confine itself to the area where peat extraction is actively occurring is not permissible under EU law as at any given moment in time, a commercial peat extractor is likely to be working in one discreet area of the peat-lands under its ownership and/or control, and to focus solely on that that discreet area and snapshot in time in reckoning the threshold—as HP invite the Court to do—would defeat the legislative intent for regulation and circumvent the requirements of and purpose of EU environmental law."
Ultimately, the Court was satisfied on the basis of the evidence provided by the Agency to grant an injunction requiring Harte Peat to cease the extraction of peat, including all associated and/or ancillary works and the associated and/or ancillary processing of peat, on certain lands, and to refrain from carrying out future extraction of peat from other lands.
While the Judgment acknowledged the orders made would have an economic impact on Harte Peat, its employees and the mushroom industry (in which peat supplied by Harte Peat is used as a growing medium), it was held that these concerns could not outweigh the “very serious environmental consequences” of allowing it to continue carrying out unauthorised and unregulated peat extraction. The Judgment found that the contamination of Co Westmeath’s Lough Derravaragh and adjoining surface waters with peat from upstream extraction was a major environmental and ecological concern, and pointed out that peat has already been extracted down to the marl in certain areas, a depth of some five metres which, as the evidence suggested, means the bog is unlikely to ever regenerate.
Final orders in respect of both sets of proceedings were made on 8 April 2022, including a short stay on the injunctive relief taking effect, the stay to remain in place until 27 April 2022 for the purpose of allowing Harte Peat to bring an appeal, and, if applicable, to continue in place until the first return date of any appeal proceedings issued
You can find the judgment here.
Written by Zoe Richardson and Jonathan Moore.
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