Environmental Protection Agency v Harte Peat Ltd and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrett
• Judgment Date: 30 May 2014
• Neutral Citation: [2014] IEHC 308
• Court: High Court
• Docket Number: [2013 No. 202 MCA]
• Date: 30 May 2014

[2014] IEHC 308

THE HIGH COURT

[No. 202 MCA/2013]

Environmental Protection Agency v Harte Peat Ltd & Lismoher Ltd

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 99H OF THE ENVIRONMENTAL PROTECTION AGENCY ACT, 1992 (AS INSERTED BY S.15 OF THE PROTECTION OF THE ENVIRONMENT ACT, 2003 )

BETWEEN:

THE ENVIRONMENTAL PROTECTION AGENCY

APPLICANT

AND

HARTE PEAT LIMITED AND LISMOHER LIMITED

RESPONDENTS

ENVIRONMENTAL PROTECTION AGENCY ACT 1992

EEC DIR 92/2011

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S82

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S3(1)

COSTA v ENTE NAZIONALE PER L'ENERGIA ELETTRICA (ENEL) 1964 ECR 585 1964 CMLR 425

PIGS & BACON COMMISSION v MCCARRON 1981 IR 451

MELLONI v MINISTERIO FISCAL 2013 QB 1067 2013 3 WLR 717 2013 2 CMLR 43

AKLAGAREN v FRANSSON 2013 STC 1905 2013 2 CMLR 46 2013 15 ITL REP 698

O'DOMHNAILL v MERRICK 1984 IR 151

VON COLSON & KAMANN v LAND NORDRHEIN-WESTFAHLEN 1984 ECR 1891 1986 2 CMLR 430

ADENELER & ORS v ELLINIKOS ORGANISMOS GALAKTOS (ELOG) 2007 AER (EC) 82 2006 3 CMLR 30 2006 IRLR 716 2006 ECR I-6057

MARLEASING v LA COMMERCIAL INTERNACIONAL DE ALIMENTACION 1992 1 CMLR 305 1993 BCC 421 1990 1 ECR 4135

PFEIFFER v DEUTSCHES ROTES KREUZ 2005 IRLR 137 2005 ICR 1307 2004 AER (D) 52 (OCT) 2004 ECR I-8835

OFFICIER VAN JUSTITIE v KOLPINGHUIS NIJMEGEN BV 1987 ECR 3969 1989 2 CMLR 18

CENTROSTEEL SRL v ADIPOL GMBH 2000 ECR I-6007 2000 3 CMLR 711 2000 CEC 527

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EL CORTE INGLES SA v BLAZQUEZ RIVERO 1996 ECR I-1281 1996 2 CMLR 507 1996 CEC 561 1997 CCLR 1

EVOBUS AUSTRIA GMBH v NIEDERÖSTERREICHISCHE VERKEHRSORGANISATIONS GMBH (NÖVOG) 1998 ECR I-5411 (CASE C-111/97)

ALCATEL AUSTRIA AG v BUNDESMINISTERIUM FUR WISSENSCHAFT UND VERKEHR 1999 ECR I-7671 2000 2 TCLR 894

IMPACT v MINISTER FOR AGRICULTURE FOOD 2008 ECR I-2483 2008 2 CMLR 47 2009 AER (EC) 306 2009 CEC 871 2008 IRLR 552 2008 PENS LR 323

CRIMINAL PROCEEDINGS AGAINST PUPINO, IN RE 2005 ECR I-5285 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142

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SUSSEX PEERAGE CASE, IN RE 1843-1860 AER 55 1844 8 ER 1034 1844 11 CL & FIN 85

RAHILL v BRADY 1971 IR 69

AG, PEOPLE v MICHAEL MCGLYNN 1967 IR 232

HEYDON'S CASE, IN RE 1584 76 ER 637 1584 3 CO REP 7A

DPP (GARDA IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998/16/5907

BLASCAOD MOR TEORANTA v CMSRS OF PUBLIC WORKS (NO 2) 2000 IR 1

CORK CO COUNCIL v WHILLOCK 1993 1 IR 231 1992/10/3239

FRASCATI ESTATES LTD v WALKER 1975 IR 177

NESTOR v MURPHY 1979 IR 329

INTERPRETATION ACT 2005 S5(1)

RAFFERTY v CROWLEY 1984 ILRM 350 1983/12/3442

EEC DIR 337/1985 ART 4(1)

EEC DIR 337/1985 ART 4(2)

INSPECTOR OF TAXES v KIERNAN 1981 IR 117 1982 ILRM 13

SALOMON v SALOMON & CO LTD 1897 AC 22 1895-1899 AER 33 1896-1897 TLR 46 1896-1897 WR 193

Environment – Licences – Statutory interpretation – Applicant seeking an IPPC licence for an area of land where peat extraction is carried out – Whether the principle of harmonious interpretation falls to be applied by the court in its consideration of domestic legislation

Facts: The respondents, Harte Peat Ltd and Lismoher Ltd, carry out peat extraction. Harte Peat is the freehold owner of lands at a number of sites while Lismoher leases lands from Harte Peat. The aggregate area of these owned/leased lands exceeds 50 hectares. The applicant, Environmental Protection Agency (EPA), submitted that an "Integrated Pollution Prevention and Control Licence" (IPPC licence) is required where peat extraction is being carried out in an area of land exceeding 50 hectares; the parties disputed what areas of the lands should be reckoned for the purposes of calculating the 50 hectare threshold that arises under the Environmental Protection Act 1992. The agreed issues to be decided by the High Court included: (1) Is the threshold referable (i) to the area of the "business" involved in peat extraction, or (ii) to the area involved in peat extraction? (2) If a business carries out peat extraction at a number of different sites, should those sites be aggregated together for the purposes of calculating the threshold? (3) How is the definition of an 'installation' to be applied to peat extraction? (4) Does a requirement for a 'technical connection' mean that it includes (i) all bog-land which is hydraulically connected; (ii) the area of extraction and all lands used for purposes ancillary and incidental to the harvesting/extraction of peat; (iii) the area of extraction only; (iv) the area within the ownership and/or control of the operator; or (v) some other area? (5) Is the identity of the person carrying out the peat extraction relevant in calculating the threshold? Are related companies to be regarded as the same person? (6) Can two plots of land form part of the same activity where (i) they are separated by a road on lands (under the control of a third party/local authority) running across the bog (but not separating the bog hydraulically)? (ii) they are separated by a distance of over a kilometre but are located on the same bog? (iii) they are separated by a distance of several kilometres but are the subject of similar activities? (iv) they are owned by different companies but are the subject of similar operations? (v) one of the plots is used for the extraction of peat while the other is used for storage, transport, sedimentation, buffer and pollution prevention for the purposes of the extraction area?

Held by Barrett J, referring to Marleasing SA v La Comercial Internacionale de Alimentation SA C-106/89 [1990] ECR I-4135, that the central principle of EU law is that national courts are required to interpret national law in light of directives. Barrett J considered the applicable rules of statutory interpretation in assessing the agreed issues.

Barrett J held that, concerning (1), as Ireland has set a lower threshold for the IPPC regime than the mandatory 150 hectare threshold referred to in the Environmental Impact Assessment Directive, he prefers the interpretation that the 50 hectare threshold is referable to the area of business involved in peat extraction; it is the more exacting interpretation in terms of environmental protection and so is most consistent with EU law and the legislative intent of the Oireachtas to implement a rigorous domestic environmental impact regime. Concerning (2) Barrett J concluded that if a business carries out extraction at a number of sites, they must be aggregated together as it accords best with a literal reading of the first schedule of the 1992 Act. Regarding (3) he held that the Court must accord the term "installation" the widest possible meaning, namely including any land used for purposes incidental to peat extraction. In terms of (4), he held that what is contemplated by the legislation is whether the activity is ancillary, incidental or supplementary to the peat extraction, and that the legislation is more concerned with the practical nexus than the physical sites. Regarding (5), in determining whether a business involves an area exceeding 50 hectares, one must have regard to the true identity of the persons operating that business so as to determine whether separate businesses run on different sites are in truth a common business. Concerning (6), he held that the most natural reading of the reference in the definition of "plant" to "land" is that it can include entirely separate pieces of land, hence the answer to the limbs is "yes".

Judgment approved.

1 1. This case involves the interpretation of various aspects of the environmental impact assessment regime established by the Environmental Protection Act 1992, as amended, pursuant to the Environmental Impact Assessment Directive, i.e. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2012 on the assessment of the effects of certain public and private projects on the environment (O.J. L26, 28. 1.2012, p.1), considered here in the context of the peat extraction industry. The court has been required in this case to consider the extent to which the principle of harmonious interpretation that arises under European Union law falls to be applied by the court in its consideration of domestic legislation that has a European provenance and how this principle interacts with the traditional rules of statutory interpretation.

Facts

2 2. An agreed statement of facts and issues has been submitted to the court. The agreed facts are set out hereafter. Notwithstanding that these facts have been agreed for the purposes of the instant proceedings, the parties have each reserved the right to argue at the trial of the full issue that the facts are otherwise than as stated below.

3 3. Harte Peat Limited and Lismoher Limited carry out, inter alia, peat extraction. The two companies have common shareholders and some common directors and secretaries. Harte Peat Limited is the freehold owner of lands at a number of sites in different counties within the State which in aggregate exceed 50 hectares. Lismoher leases lands (the 'leased lands') from Harte Peat in County Westmeath. The leased lands are less than 50 hectares in total, comprising an area of circa. 44 hectares. Harte Peat owns lands adjacent to the leased lands. A public road runs between Harte Peat's lands and the leased lands. The aggregate area of these owned/leased lands exceeds 50 hectares. Part of the lands consists of an area from which peat has been cut; part consists of areas used for the storage of peat; the lands also include an access road...