Friends of the Irish Environment Ltd v Minister for Communications

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 20 September 2019
• Neutral Citation: [2019] IEHC 646
• Court: High Court
• Docket Number: 2019 No. 222 J.R.
• Date: 20 September 2019

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT LIMITED

APPLICANT

AND

MINISTER FOR COMMUNICATIONS, CLIMATE ACTION AND ENVIRONMENT MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IEHC 646

Garrett Simons

2019 No. 222 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Legislative amendments – EU environmental law – Applicant seeking judicial review – Whether legislative amendments were inconsistent with EU environmental law

Facts: The applicant, Friends of the Irish Environment Ltd, contended that legislative amendments introduced in January 2019 were inconsistent with EU environmental law. The legislative amendments had the effect of exempting peat extraction that involved an area of greater than 30 hectares from the requirement to obtain planning permission; peat extraction on that scale would, instead, be subject to licensing by the Environmental Protection Agency. The legislative amendments were introduced by way of Ministerial Regulations. The applicant maintained that the amended legislation involved a “flagrant breach” of the Environmental Impact Assessment Directive (the EIA Directive) and the Habitats Directive. The applicant described the transitional period under the Ministerial Regulations as amounting to an “enforcement holiday”. The applicant also said that the failure to conduct an environmental assessment of the impacts of the legislative amendments prior to their adoption represented a breach of the requirements of the Strategic Environmental Assessment Directive. It was alleged that the use of secondary legislation to amend primary legislation was impermissible. The Ministerial Regulations were said to go beyond the mere implementation of “principles and policies” set out in the EU Directives, and that primary legislation was therefore required. The applicant made a final argument to the effect that the extension of the period of grace during which peat extraction may be carried out to include the pendency of an application for judicial review represented an unwarranted interference with judicial independence.

Held by the High Court (Simons J) that the form of regularisation procedure provided for under the amended legislation was inconsistent with the EIA Directive and the Habitats Directive. Simons J held that the use of secondary legislation to amend primary legislation was, in the circumstances of this case, impermissible. He held that there was no legal obligation to carry out an environmental assessment of the Ministerial Regulations prior to their adoption. He held that the complaint of interference with judicial independence was not made out.

Simons J held that the application for judicial review should be granted. He held that an order would be made setting aside the Ministerial Regulations in their entirety. He held that he would, however, hear counsel as to the precise form of order and, in particular, as to the exact jurisdictional basis on which same should be made.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 20 September 2019.

Summary

1 These judicial review proceedings seek to challenge the manner in which large-scale peat extraction is regulated under national law. The Applicant contends that legislative amendments introduced in January 2019 are inconsistent with EU environmental law. The legislative amendments have the effect of exempting peat extraction that involves an area of greater than 30 hectares from the requirement to obtain planning permission. Peat extraction on this scale will, instead, be subject to licensing by the Environmental Protection Agency.

2 Whereas the exemption from the requirement to obtain planning permission came into immediate effect in January 2019, there is to be a lengthy transitional period before the licensing regime comes into full force and effect. Peat extraction is to be allowed to continue during the interregnum between the cessation of control under the planning legislation, and the coming into force of the licensing regime. 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. The only qualifying criteria is that the peat extraction was being carried on immediately prior to 25 January 2019.

3 The Applicant maintains that the amended legislation involves a “flagrant breach” of the Environmental Impact Assessment Directive ( “ the EIA Directive”) and the Habitats Directive. The Applicant has described the transitional period under the Ministerial Regulations as amounting to an “enforcement holiday”. As an aside, it is noted that the European Commission has expressed concerns about the further delay in the application of the EIA Directive, describing the legislation as leaving a legal limbo. It seems that the Commission issued a Letter of Formal Notice to Ireland on 26 July 2019.

4 The Applicant also says that the failure to conduct an environmental assessment of the impacts of the legislative amendments prior to their adoption represents a breach of the requirements of the Strategic Environmental Assessment Directive.

5 The legislative amendments have been introduced by way of Ministerial Regulations. This gives rise to a further ground of complaint on the part of the Applicant. It is alleged that this use of secondary legislation to amend primary legislation is impermissible. The Ministerial Regulations are said to go beyond the mere implementation of “principles and policies” set out in the EU Directives, and that primary legislation was therefore required.

6 The Applicant makes a final argument to the effect that the extension of the period of grace during which peat extraction may be carried out to include the pendency of an application for judicial review represents an unwarranted interference with judicial independence.

7 For the reasons set out in detail in this judgment, I have concluded that the application for judicial review should be granted on certain grounds. By way of outline only, my principal findings are as follows.

8 First, the form of regularisation procedure provided for under the amended legislation is inconsistent with the EIA Directive and the Habitats Directive. Whereas a Member State does enjoy a limited discretion to make provision for the regularisation of development projects which have been carried out in breach of the requirements of either or both of the EU Directives, the amended legislation exceeds this discretion. The offending features of the amended legislation include, first, the absence of any possibility of suspending peat extraction during the transitional period; secondly, the absence of exceptional circumstances which justify affording developers who have carried out—and continue to carry out—development in breach of EU law an opportunity to regularise their legal status; and, finally, the absence of proper legislative provisions to ensure that any assessment is both prospective and retrospective.

9 The shortcomings of the amended legislation are similar to the “old” planning legislation which had been condemned by the Court of Justice of the European Union ( “the CJEU“) in Case C-215/06, Commission v. Ireland. The regime purports to leave projects, which have not been properly authorised or assessed for the purposes of the EIA Directive and the Habitats Directive, undisturbed.

10 Secondly, the use of secondary legislation to amend primary legislation is, in the circumstances of this case, impermissible. Secondary legislation which is inconsistent with EU legislation cannot be said to give effect to the “principles and policies” contained in the EU legislation. Nor can it be said to be “incidental, supplementary and consequential” to the EU legislation or “necessitated” by the Irish State's membership of the European Union.

11 Even if—contrary to the finding above—the Ministerial Regulations could be said to be consistent with the EIA Directive and the Habitats Directive, the use of secondary legislation would still be impermissible. If the EIA Directive and Habitats Directive did allow the broad discretion to Member States contended for on the part of the State Respondents, then the policy choices permitted under the Directives should have been made by the Oireachtas through the enactment of primary legislation. The Ministerial Regulations entail a number of policy choices which are not only significant in objective terms, but actually cut across primary legislation which had been enacted by the Oireachtas for the precise purpose of giving effect to the two EU Directives.

12 Thirdly, the grounds of challenge based on the Strategic Environmental Assessment Directive are rejected. There was no legal obligation to carry out an environmental assessment of the Ministerial Regulations prior to their adoption. This is because same do not set the “framework” for development consent of EIA projects.

13 Finally, the complaint of interference with judicial independence is not made out.

Procedural history

14 The within proceedings were instituted on 12 April 2019. Shortly thereafter, the Applicant issued a motion seeking interlocutory relief restraining the implementation of the Ministerial Regulations. This motion was allocated an expedited hearing date by the presiding judge in the Judicial Review List (Noonan J.). The application for interlocutory relief was heard and determined in July 2019, and was the subject of a written judgment, Friends of the Irish Environment Ltd. v. Minister for Communications, Climate Action and the Environment [2019] IEHC 555. A limited form of stay was granted.

15 An expedited hearing date was then fixed for the substantive application for judicial review, and the application was heard before me over three days commencing on Wednesday, 4 September 2019.

16 For the sake of completeness, it should be...