Friends of the Irish Environment Ltd v Minister for Communications

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date18 October 2019
Neutral Citation[2019] IEHC 555
CourtHigh Court
Docket Number2019 No. 222 J.R.,[2019 No. 222 JR].
Date23 July 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 555

Simons J.

2019 No. 222 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Interlocutory injunction – Legislative provisions – Judicial review – Applicant seeking an interlocutory injunction – Whether certain legislative amendments introduced by way of Ministerial Regulations were invalid

Facts: The applicant, Friends of the Irish Environment Ltd, applied to the High Court for an interlocutory injunction in the context of judicial review proceedings. The applicant contended that certain legislative amendments introduced by way of Ministerial Regulations in January 2019 were invalid. The legislative amendments affected the development consent regime which regulates peat extraction. The applicant sought to restrain the operation of those legislative amendments pending the determination of the judicial review proceedings. The legislative amendments were attacked on a number of different grounds, including an allegation that the legislative amendments disapplied existing domestic statutory provisions which were intended to ensure compliance with the requirements of the Environmental Impact Assessment Directive (the EIA Directive) and the Habitats Directive. It was said that the effect of the legislative amendments was that the obligation to comply with the EIA Directive and the Habitats Directive is to be suspended for a temporary period in the case of certain peat extraction projects. This had been described by the applicant as an “enforcement holiday” which is contrary to EU law.

Held by Simons J that the grounds of challenge which were predicated upon an alleged breach of the EIA Directive and the Habitats Directive appeared to be very strong. He held that the breach of EU environmental law alleged by the applicant would—if well founded—represent an especially serious breach of the Irish State’s obligations as a Member State of the European Union. He held that if it were to transpire that the applicant’s complaints were well founded, then the refusal to grant an interlocutory injunction would have had the effect that unlicensed peat extraction would have been allowed to continue during the summer harvesting period in breach of the EIA Directive and the Habitats Directive. Having regard to these considerations, Simons J was satisfied that the greatest risk of injustice lay in refusing to grant some form of an interlocutory injunction.

Simons J proposed confining the terms of the interlocutory injunction to one restraining the implementation of the Planning and Development (Exempted Development) Regulations 2019. He proposed listing these proceedings for full hearing in the first week of September. To this end, he would hear counsel on an appropriate timetable for the exchange of affidavits and written legal submissions.

Order granted.

Appearances

James Devlin, SC, Oisin Collins and Margaret Heavey for the Applicant instructed by O'Connell Clarke Solicitors. Niamh Hyland, SC and Suzanne Kingston for the Respondents instructed by the Chief State Solicitor.

JUDGMENT of Mr. Justice Garrett Simons delivered on 23 July 2019.
SUMMARY
1

This judgment is delivered in respect of an application for an interlocutory injunction in the context of judicial review proceedings. The application is striking in its ambition. In contrast to most judicial review proceedings, wherein a stay is sought on the implementation of an impugned administrative decision, the interlocutory injunction sought in this case would restrain the operation of legislative provisions.

2

The Applicant contends that certain legislative amendments introduced by way of Ministerial Regulations in January 2019 are invalid. The legislative amendments affect the development consent regime which regulates peat extraction. The Applicant seeks to restrain the operation of these legislative amendments pending the determination of these judicial review proceedings. There is a heavy burden on an applicant who seeks, in effect, to suspend the operation of the law of the land. The jurisdiction to grant an injunction which would have the practical effect of preventing the operation of legislation pending the determination of proceedings is one which must be ‘most sparingly exercised’. See M.D. (An Infant) v. Ireland [2009] IEHC 206; [2009] 3 I.R. 690.

3

The legislative amendments are attacked on a number of different grounds. Relevantly, the grounds of challenge include an allegation that the legislative amendments disapply existing domestic statutory provisions which are intended to ensure compliance with the requirements of the Environmental Impact Assessment Directive (‘ the EIA Directive’) and the Habitats Directive. It is said that the effect of the legislative amendments is that the obligation to comply with the EIA Directive and the Habitats Directive is to be suspended for a temporary period in the case of certain peat extraction projects. This has been described by the Applicant as an ‘enforcement holiday’ which is contrary to EU law. A letter from the EU Commission dated 29 April 2019, which expresses concerns about the further delay in the application of EIA Directive, has been exhibited.

4

The fact that the challenge is predicated upon EU law grounds has the consequence that the legal test for an interlocutory injunction requires that some consideration be given to the strength of the case. Specifically, it is appropriate to assess whether there is an arguable defence to the proceedings. See Dowling v. Minister for Finance [2013] IESC 37; [2013] 4 I.R. 576, [100].

5

For the reasons set out herein, I have concluded that—in the highly unusual circumstances of the present case—a limited form of interlocutory injunction should be granted. By way of summary only, the principal reasons for this finding are as follows.

6

First, the grounds of challenge which are predicated upon an alleged breach of the EIA Directive and the Habitats Directive would appear to be very strong. The Ministerial Regulations purport to exempt, with immediate effect, large scale peat extraction projects from existing provisions of domestic legislation which implement the EIA Directive and the Habitats Directive. However, the replacement development consent procedure will not be fully in force for a significant period of time thereafter. The practical effect of this is that certain peat extraction activities—which require to be assessed for the purposes of the EIA Directive and might need to be assessed for the purposes of the Habitats Directive—may continue for a period of in excess of eighteen months without there being any obligation under domestic law to hold a development consent. Unlicensed peat extraction may thus be carried out without there being any risk of enforcement action. This appears prima facie to represent a breach of (i) the EIA Directive, and, in particular, article 2 and article 10A thereof, and (ii) article 6(3) of the Habitats Directive.

7

It cannot be said, at this interlocutory stage of the proceedings, that the State respondents have disclosed an arguable defence to these grounds of challenge. The written legal submissions on the interlocutory injunction application did not address the merits of the case at all, other than to concede that the Applicant has established an arguable case. The State respondents have not yet filed a substantive affidavit supporting their formal statement of opposition. The content of the anticipated affidavit, when filed, may well increase the prospects of a successful defence of the proceedings. On the basis of the evidence, materials and argument currently available, however, no insight has been offered by the State respondents as to how they intend to justify the wholesale exemption—albeit for a temporary period only—of large scale peat extraction projects from compliance with EU Directives which were to have been implemented by June 1988 and May 1994, respectively.

8

None of this is to say that the State respondents might not ultimately succeed at trial. The State respondents might well persuade the court at the full hearing that this temporary disapplication of the obligation to comply with the EIA Directive, three decades after the implementation date, is justified by reference to the ‘exceptional circumstances’ of peat extraction. At this interlocutory stage, however, it is not obvious that there is an arguable defence to this aspect of the proceedings.

9

Secondly, the breach of EU environmental law alleged by the Applicant would—if well founded—represent an especially serious breach of the Irish State's obligations as a Member State of the European Union. On the Applicant's case, the Ministerial Regulations involve a retrograde step whereby existing domestic legislation, which properly transposes the EIA Directive and the Habitats Directive, is to be disapplied in the case of peat extraction. This will have the legal consequence that—during the transitional period—the Irish State's transposition of the EU environmental legislation will be less effective than that which had gone before.

10

Thirdly, if it were to transpire that the Applicant's complaints are well founded, then the refusal to grant an interlocutory injunction would have had the effect that unlicensed peat extraction would have been allowed to continue during the summer harvesting period in breach of the EIA Directive and the Habitats Directive. The absence of a requirement to obtain any development consent during this period could, in at least some instances, create a risk of harm to the environment.

11

Having regard to these three considerations, I am satisfied that the greatest risk of injustice lies in refusing to grant some form of an interlocutory injunction....

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