Harte Peat Ltd v The Environmental Protection Agency, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 16 March 2022
• Neutral Citation: [2022] IEHC 148
• Court: High Court
• Docket Number: [Record No: 2021/14 JR]

In the Matter of Section 50B of the Planning and Development Act, 2000

In the Matter of the Environmental Protection Agency Act, 1992 (As Amended)

Between:

Harte Peat Limited

Applicant

and

The Environmental Protection Agency, Ireland and The Attorney General

Respondents

[2022] IEHC 148

[Record No: 2021/14 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Statutory injunction – Integrated pollution control license – Applicant seeking judicial review – Whether the respondent’s decision was properly reasoned

Facts: The first proceedings were the judicial review proceedings of the applicant, Harte Peat Ltd (HP), (2021 JR 14) as against the first respondent, the Environmental Protection Agency (the Agency), in which HP sought orders including certiorari quashing the Agency’s decision, dated the 24th November 2020, wherein it refused to consider HP’s application for an integrated pollution control license (an IPC license) having regard to s. 87(1C) of the Environmental Protection Agency Act 1992 (the judicial review proceedings). The second proceedings were the Agency’s proceedings (2021/33MCA) which comprised an application against HP for a perpetual prohibitory injunctive relief (the statutory injunction proceedings) pursuant to s. 99H of the 1992 Act. In the statutory injunction proceedings, the Agency sought various orders for the cessation and further prohibition of the extraction of peat and associated activity at specified areas. That activity was being undertaken without an IPC licence and planning permission had never been sought in respect of same. HP took the position that as the user was pre-‘64, they were not required to seek planning permission. They further maintained that while they agreed to make an application for an IPC licence in compromise of previous proceedings, this did not mean that the activity sought to be licenced was unlawful in the absence of a licence.

Held by Phelan J that it was no longer tenable for the State, be it through the Agency or the Court, to permit the extraction of peat without regulatory control as to its environmental impact. She concluded that in calculating thresholds and in exercising powers under s. 99H of the 1992 Act it was necessary to have regard to the full extent of the bog in terms of hydrological connection, rather than focusing on the specific areas from which peat was being harvested at a point in time. She concluded that this was the proper interpretation of domestic law having regard to the legislative intention and the requirement to give effect to EU environmental law in the State. She proposed making the orders sought at para. 1 of the notice of motion in respect of lands at G and F and at para. 2 in respect of lands at A, B, F and G. Although there was an application for a stay before the Court in the judicial review proceedings, that application was not addressed in oral argument pending a determination of the substantive applications. Whilst Phelan J would hear the parties in relation to the question of a stay, her preliminary view subject to hearing from the parties was that any stay should be strictly conditioned as to time and should be for the purpose of permitting an appeal to be taken against her decision. In view of her decision on the s. 99H application, it seemed to her that the question of a continuation of a stay beyond an initial short period related to the bringing of an appeal and having it listed before an appellate court should properly be a matter for the appellate court in the event that an appeal was pursued.

Phelan J held that HP’s application by way of judicial review had been partially successful in that whilst she had not found an error of law which would vitiate the decision communicated by letter dated the 27th November 2020, she did not consider that decision to have been properly reasoned.

Application granted.

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 16 ^th day of March, 2022

Table of Contents:

INTRODUCTION	2
CHRONOLOGY PERTAINING TO THE REGULATION OF PEAT EXTRACTION	4
THE LEGAL FRAMEWORK – DOMESTIC AND EU	8
THE AREA OF PEAT EXTRACTION ACTIVITY — THE EVIDENCE	29
DECISION ON LAND RECKONABLE FOR THE CALCULATION OF THRESHOLD	33
REFUSAL TO CONSIDER IPC LICENCE APPLICATION BY AGENCY	37
WHETHER THE REFUSAL TO CONSIDER IPC LICENCE IS VITIATED BY ERROR OF LAW	43
IS THE REFUSAL LETTER OTHERWISE DEFECTIVE CONSEQUENT UPON IRRELEVANT CONSIDERATIONS OR INADEQUATE REASONING?	51
APPLICATION FOR STATUTORY INJUNCTION	58
CONCLUSION	65

INTRODUCTION

1 . This is a composite judgment in respect of two sets of proceedings between the Environmental Protection Agency on the one part (hereinafter “the Agency”) and Harte Peat (hereinafter “HP”) concerning peat extraction activity carried out by HP on lands at Shrubbywood/Ballinaloe and Derrycrave, County Westmeath and further bog lands in Counties Cavan and Monaghan.

2 . The first proceedings in time are Harte Peat's (hereinafter “HP”) judicial review proceedings ( 2021 JR 14) as against Agency in which HP seek orders including certiorari quashing the Agency's decision, dated the 24 ^th November 2020, wherein it refused to consider HP's application for an IPC license having regard to s. 87(1C) of the Environmental Protection Agency Act 1992 (“the EPA Act”) (hereinafter “the judicial review proceedings”).

3 . The second proceedings are the Agency's proceedings (record no. 2021/33MCA) which comprise an application against HP for a perpetual prohibitory injunctive relief (hereinafter “the statutory injunction proceedings”) pursuant to s. 99H of the EPA Act. In the statutory injunction proceedings, the Agency seeks various orders for the cessation and further prohibition of the extraction of peat and associated activity at specified areas. This activity is currently being undertaken without an integrated pollution control license (“an IPC licence”) and planning permission has never been sought in respect of same.

4 . HP take the position that as the user is pre-'64, they are not required to seek planning permission. They further maintain that while they agreed to make an application for an IPC licence in compromise of previous proceedings, this does not mean that the activity sought to be licenced is unlawful in the absence of a licence.

5 . The lands the subject of the proceedings span a total area of some 150 hectares composed of bog-lands in Counties Westmeath, Cavan and Monaghan. The lands in Co. Westmeath drain into the Inny River which in turn flows into the nearby Lough Derravaragh, a special protection area(SPA), which has been designated as a site for the protection of wild birds under the Habitat's Directive.

6 . There is a complicated factual and legal history to these current proceedings which is more fully set out below. In short, however, a previous application for interlocutory relief brought by the Agency [Record No. 2013/202 MCA] was unsuccessful and an application for final orders under s. 99H in those same proceedings was compromised on agreed terms which were then ruled by the Court and included terms that HP would apply for an IPC licence, could continue to extract peat at specified locations and would not extract peat at other specified locations.

7 . An application for an IPC licence was duly made by HP. Before it was determined two ministerial regulations, namely the EU (Environmental Impact Assessment)(Peat Extraction) Regulations 2019 (S.I. No. 4 of 2019) and the Planning and Development Act, 2000 (Exempted Development) Regulations 2019 S.I. No. 12 of 2019), were found to be invalid. These two regulations would have exempted HP from the requirement to obtain planning permission and would have provided for the Agency as licensor under the EPA Act to be the single competent authority providing development consent where peat extraction required assessment under the EIA and Habitat's Directives. Consequently, the Agency maintained, in short, that it was precluded by s. 87(1C) of the EPA Act from considering HP's application in circumstances where no application for permission within the meaning of Part IV of the EPA Act had been made and where HP could no longer rely on a ministerial exemption. When HP sought to challenge this refusal by way of judicial review, the Agency moved again to seek injunctive relief pursuant to s. 99H of the EPA Act.

8 . Inexplicably, in the papers grounding the application for statutory injunctive relief, the Agency made no reference to the fact that its refusal of an IPC licence was the subject of extant judicial review proceedings. Indeed, the application for a statutory injunction does not appear to have been preceded by a warning letter other than the letter of the 27 ^th November, 2020 refusing to consider the licence application where it is asserted that it is a breach of s. 82(2) of the EPA Act, 1992 (as amended) for a person to carry on a prescribed activity under Class 1.4 in the absence of a licence. This is the very decision letter challenged in HP's judicial review proceedings. In any event, the two sets of proceedings as well as an application for a stay brought in the judicial review proceedings in respect of the s. 99H injunction proceedings, have travelled together. Only the judicial review proceedings and statutory injunction proceedings were heard by me and are the subject of this judgment. The application for a stay has been adjourned pending the outcome of the substantive proceedings.

9 . HP contend that the stakes are very high in these joined proceedings. Their business consists of the extraction of peat to be used in the production of mushroom casing by mushroom growers. It is contended that the loss of wet peat as excavated for mushroom casing and as supplied by HP would have an immediate and catastrophic effect on the Irish mushroom industry, its domestic and...