Bulrush Horticulture Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 08 February 2018
• Neutral Citation: [2018] IEHC 58
• Date: 08 February 2018
• Court: High Court
• Docket Number: [2013 No. 398 J.R.]

IN THE MATTER OF SECTION 50 OF THE PLANNING OF DEVELOPMENT ACT 2000, (AS AMENDED)

IN THE MATTER OF SECTION 50 OF THE PLANNING OF DEVELOPMENT ACT 2000, (AS AMENDED)

BETWEEN

BULRUSH HORTICULTURE LTD

APPLICANTS

AND

AN BORD PLEANALA

RESPONDENT

AND

WESTMEATH COUNTY COUNCIL

FIRST NAMED NOTICE PARTY

AND

FRIENDS OF THE IRISH ENVIRONMENT

SECOND NAMED NOTICE PARTY

BETWEEN

WESTLAND HORTICULTURE LTD, WESTMEATH PEAT LTD

AND

CAVAN PEAT LTD

APPLICANTS

AND

AN BORD PLEANALA

RESPONDENT

AND

WESTMEATH COUNTY COUNCIL

FIRST NAMED NOTICE PARTY

AND

FRIENDS OF THE IRISH ENVIRONMENT LTD

SECOND NAMED NOTICE PARTY

[2018] IEHC 58

Meenan J.

[2013 No. 398 J.R.]

[2013 No. 424 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Environment, Transport and Planning - S.50 of the Planning and Development Act, 2000 - Environment Impact Assessment (EIA) - Art. 3 of the Directive 2011/92/EU ('EIA Directive') - Certiorari - S. 5(4) of the Act of 2000 (as amended) - 'Change of use' rather than 'works' - Appropriate Assessment (AA) - Local Government (Planning and Development) Act 1963 - Art. 11 of the Planning and Development Regulations, 2001

Facts: The applicants were granted leave to seek judicial review to apply for an order of certiorari for quashing the decision of the respondent/Board in respect of a referral made pursuant to s. 5(4) of the Act of 2000 (as amended). The applicants submitted that peat extraction was a 'use' development rather than 'works' development. The respondent held that both the material change of 'use' and 'works' had constituted development.

Mr. Justice Meenan refused the applicants' application. The Court held that the applicants were not entitled to an order of certiorari for quashing the decision of the respondent. The Court further held that the decision in Stadt Papenburg and other 'Pipeline Cases' were of no assistance to the applicants. The Court observed that the peat handling activities and access roads were connected with the peat extraction activities within the meaning of Environmental Impact Assessment. The Court found that in case of both the applicants, Environmental Impact Assessment and Appropriate Assessment were needed as the peat extraction and other ancillary works would likely have significant effects on the environment.

JUDGMENT of Mr. Justice Meenan delivered on the 8th day of February, 2018.

Background:

1 As can be seen from the above titles, these are two judicial review proceedings that essentially involve similar facts and issues of law.

2 In the first set of proceedings, the applicant is Bulrush Horticulture Ltd (hereinafter referred to as 'Bulrush'). Since 2003, Bulrush has operated a milled peat production facility at Camagh Bog, Doon Castlepollard, County Westmeath, which is located in the northwest of Westmeath between Lough Derravaragh and Lough Sheelin. The area including settlement ponds, yards, factory and peat extraction area is approximately 94 hectares. The actual area which is subject to peat extraction is approximately 80 hectares. The extraction of peat from the subject lands began in or about 1983.

3 By letter dated 14th November, 2011 the second named notice party sought a declaration from the first named notice party, pursuant to s. 5 of the Planning and Development Act 2000 (as amended) (the 'Act of 2000'), as to whether the drainage of bog lands, peat extraction, accesses from public roads, peat handling activities, and other associated activities and works carried out by Bulrush is or is not development and is or is not exempted development.

4 A report, dated 18th January, 2012, was prepared by the planning officer of the first named notice party which concluded inter alia that, given the legal complexity of the issues raised, the matter should be referred to the respondent for determination. A letter dated 24th January, 2012 referred the matter, pursuant to s. 5(4) of the Act of 2000, to the respondent for its decision.

5 Following an exchange of correspondence and submissions made by Bulrush, by order dated 15th April, 2013 the respondent determined that:-

'The drainage of boglands, peat extraction, accesses from public roads, peat handling activities and other associated activities and works at Camagh Bog, Doon Castlepollard, County Westmeath are development and were exempted development until the 20th day of September, 2012, after which it is development and not exempted development.'

6 In the second set of proceedings, the first named applicant has, at all material times since 1993 in relation to the lands at Coole, Mayne, Ballinealloe, and, since 1999 in relation to the lands at Clonsura, been engaged in peat extraction operations on a commercial scale. The first named applicant leases the subject lands from the second named and third named applicants respectively and owns a small land holding in its own right which abuts and adjoins the leased lands. The total area of the subject lands leased from the second and third named applicants is approximately 272 hectares. For ease of reference, I shall refer to the applicants in these set of proceedings as 'Westland'.

7 The second named notice party sent a letter to Westland in similar terms to that sent to Bulrush, referred to at para. 3 above.

8 As with the case of Bulrush, the first named notice party referred the matter to the respondent for determination. Following submissions and correspondences, by order dated 15th April, 2013 the respondent determined that:-

'The drainage of boglands, peat extraction, accesses from public roads, peat handling activities and other associated activities and works at Lower Coole, Mayne, Ballinealloe, Clonsura near Coole, and Fineagh, County Westmeath, are development and were exempted development until the 20th day of September, 2012, after which it is development and not exempted development.'

Judicial review proceedings:

9 By order of the President of the High Court, dated 30th May, 2013, Bulrush was granted leave to apply by way of an application for judicial review for:-

1 An order of certiorari quashing the decision of the respondent dated 15th April, 2013, in respect of a referral made pursuant to s. 5(4) of the Act of 2000 (as amended) whereby the respondent decided that drainage of boglands, peat extraction, accesses from public roads, peat handling activities and other associated activities and works at Camagh Bog, Doon Castlepollard, County. Westmeath are development and were exempted development until the 20th day of September, 2012, after which it is development and not exempted development;

2 A declaration that the said decision was and is ultra vires, invalid and of no legal effect;

3 A declaration that the said decision is so unreasonable as to be invalid.

10 By order of Feeney J., dated 6th June, 2013, Westland were granted similar reliefs in respect of its lands at Lower Coole, Mayne, Ballinealloe, Clonsura near Coole, and Fineagh, County Westmeath.

Legislation:

11 The relevant legislation is both domestic and EU legislation.

12 The provisions of the Local Government (Planning and Development) Act 1963 ('Act of 1963'), are the starting point.

13 Section 24 provides:-

'Subject to the provisions of this Act, permission shall be required under this part of this Act:

'(a) In respect of any development of lands, being neither exempted development nor development commenced before the appointed day and ...'

Section 3 defines 'development' as:-

'... save where the context otherwise requires, the carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land...'

Section 4 provides:-

'(1) The following shall be exempted developments for the purposes of this Act:

(a) development consisting of the use of any land for the purposes of agriculture...'

Section 2 defines 'agriculture' as follows:-

'includes horticulture, fruit growing, seed growing... the use of land for turbary...'

Thus it can be seen that the activities carried out by Bulrush and Westland on their respective lands fall within the definition of 'exempted development' and therefore no planning permission was required under the Act of 1963.

14 The Act of 1963 was repealed by the Planning and Development Act 2000 ('the Act of 2000').

15 As in the Act of 1963, the use of land for the purpose of agriculture was an exempted development. However, under the Act of 2000 the definition of 'agriculture' was amended so as no longer to include 'the use of land for turbary'.

16 Any possible negative effects on Bulrush or Westland by reason of the removal of 'the use of land for turbary' from the definition of agriculture were mitigated by reason of the provisions of Article 11 of the Planning and Development Regulations, 2001 (past pursuant to the Act of 2000) which provided:-

'development commenced prior to the coming into operation of this Part and which was exempted development for the purposes of the Act of 1963 or the 1994 Regulations, shall notwithstanding the repeal of that Act and the revocation of those Regulations continue to be exempted development for the purposes of that Act..'

Thus, in effect, the activities of Bulrush and Westland continued to be an 'exempted development' notwithstanding the provisions of the Act of 2000.

17 Domestic planning law was supplemented by legislation from the European Union. The EU legislation emphasised, in particular, the effects that planning and development may have on the environment. Two Directives are directly relevant to the issues to be determined in these proceedings. Firstly, Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (the Environmental Impact Assessment Directive) and Council Directive 92/43/EEC, on the conservation of natural habitats and of wild fauna and flora ('the...