North Westmeath Turbine Action Group CLG v Westland Horticulture Ltd, Cavan Peat Ltd and Coole Windfarms Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bolger |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] IEHC 727 |
| Court | High Court |
| Docket Number | [2020/177 MCA] |
In the Matter of the Planning and Development Acts
And in the Matter of an Application Pursuant to Section 160 of the Planning and Development Act, 2000
[2022] IEHC 727
[2020/177 MCA]
THE HIGH COURT
Unauthorised development – Injunctive relief – Liberty to apply – Applicant seeking to restrain the continuation of unauthorised development – Whether unauthorised development had taken place
Facts: The applicant, North Westmeath Turbine Action Group CLG, applied to the High Court pursuant to s. 160 of the Planning and Development Act 2000 in respect of what they said were unauthorised works that were being carried out on the lands located on Clonsura Bog in Co. Westmeath. The applicant contended that the court should restrain the continuation of what it said was unauthorised peat development on Clonsura Bog ongoing since 2019 which had caused environmental damage. The applicant contended that what it claimed was the engrafting of the windfarm development on the unlawful peat extraction, breached the principle established in Cleary Compost and Shredding Ltd v An Bord Pleanála [2017] IEHC 458 that a development cannot be engrafted onto an unauthorised development. The applicant disputed the entitlement of the third respondent, Coole Windfarms Ltd, to rely on the exemption contained in Class 45 of Schedule 2 (Exempted Development), Part 1 of the Planning and Development Regulations 2001. The applicant relied on the public interest that they said was privileged in ensuring compliance with the planning code (Meath County Council v Murray [2018] 1 IR 189 and Morris v Garvey [1983] IR 319) and on the need, and the court’s obligation, to give effect to the requirements of EU law. They submitted there was no basis for the court to exercise its discretion against granting relief as there was no claim of employment or other arguable public benefit flowing from the works of either the first respondent, Westland Horticulture Ltd, or the third respondent.
Held by Bolger J that: (i) the unauthorised development on Clonsura Bog was at a minor scale consisting of normal winterisation measures of clearing silt pipes and ponds and was not extensive drainage over an extensive network of roads as was claimed by the applicant; (ii) she was told that cessation of the works may create a risk of environmental damage if the silt pipes and ponds were not cleared and that claim had not been disputed or adequately addressed by the applicant, other than to say the issue could be addressed in the application for substitute consent; (iii) an application for substitute consent remained live before An Bord Pleanála; (iv) the purpose of the unauthorised development was peatland management and it was not for the purpose of preserving the bog for the resumption of peat farming or preparing it for the construction of windfarm turbines.
Bolger J held that it was appropriate to exercise her discretion not to grant the injunctive relief sought restraining the first respondent’s winterisation measures; however such unauthorised development should not be permitted to continue indefinitely, particularly where the Court did not have independent expert evidence of what the first respondent said was the benefit afforded to the environment by the continuation of those measures, or indeed of the detriment the applicant claimed they caused. Bolger J granted the applicant liberty to apply to her to vary the exercise of her discretion in the event that the first respondent’s winterisation measures continued for an unacceptable period of time into the future without any progress on the application for substitute consent.
Application refused.
JUDGMENT of Ms. Justice Bolger delivered on the 21st day of December, 2022
This is the applicant's application pursuant to s. 160 of the Planning and Development Act 2000 in respect of what they say are unauthorised works that were and are being carried out on the lands located on Clonsura Bog in Co. Westmeath. For the reasons set out below, I am satisfied that some unauthorised development has taken place but I am exercising my discretion to refuse this application and am allowing the applicant liberty to apply.
Clonsura bog, located outside the village of Coole in County Westmeath, is owned by the second named respondent (“Cavan Peat”) and leased to the first named respondent (“Westland”). Westland commenced industrialised peat milling and harvesting on the bog in 1999. Coole Windfarm Ltd. (“Coole Windfarm”) is the recipient of planning permission to build thirteen wind turbines, four of which are to be located on the bog. The applicant is a company that was incorporated for the purpose of, inter alia, participating in the planning process and assisting the public in relation to local environmental concerns.
On 15 April 2013 An Bord Pleanála made a declaration pursuant to s.5 of the 2000 Act that the activities of Westland at Clonsura were development but were not exempted development. Westland and Cavan Peat issued judicial review proceedings challenging that declaration. In Bulrush Horticulture Ltd v. An Bord Pleanála; Westland Horticulture Ltd v. An Bord Pleanála [2018] IEHC 58. Meenan J. upheld the s.5 declaration and held that
“the drainage of boglands, peat extraction, accesses from public roads, peat handling and associated activities and works at… Clonsura near Coole,… County Westmeath, are development and were exempted development until 20 September 2012 after which it is development and not exempted development”.
Following that decision, the Planning and Development (Exempted Development) Regulations 2019 were introduced. Peat harvesting on bogs was permitted, pending an application for an Integrated Pollution Prevention and Control licence. Westland resumed peat harvesting operations until July 2019 when those Regulations were successfully challenged by Friends of the Irish Environment CLG (“FIE”) [2019] IEHC 555, [2020] 3 IR 162. By judgment delivered 23 July 2019 the High Court granted an interlocutory injunction restraining the implementation of the Regulations. Peat extraction on Clonsura bog was rendered unlawful and Westland says it immediately ceased its milling activities.
There is disagreement between the parties about the extent of Westland's works at Clonsura since July 2019. The applicants claim to have identified the following activities but the existence of all but the three in italics are disputed by Westland:
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(i) The removal of stockpiled milled peat from the development by heavy goods vehicles to an off-site location and then to the company factory (said to continue up to 7 May 2020);
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(ii) The maintenance of all production fields;
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(iii) The collection of loose peat from production fields;
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(iv) The maintaining of the extensive drainage system on the bog, though a process of excavation and deposition that it describes as “ditching of drains within the bogs”;
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(v) The maintenance of drainage infrastructure and outfalls;
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(vi) The maintenance of silt ponds;
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(vii) The removal of spoil;
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(viii) The storage of milling machinery;
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(ix) lorry movements to and from the lands;
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(x) The maintenance of an internal road by the deposition of crushed stone.
Westland's activities on Clonsura bog was the subject of a separate s.160 application by Friends of the Irish Environment CLG (“FIE”) against Westland and Cavan Peat (High Court Record No. 2018/200 MCA), which was settled on the basis that Westland would cease excavation but would continue to carry out ‘winterisation measures’ pending its application to An Bord Pleanála for substitute consent. Westland say that an order was made by the High Court in December 2018 reflecting that settlement agreement.
In May 2020 An Bord Pleanála granted Westland leave to apply for substitute consent. Westland subsequently applied for, and was granted, an extension of time for making the application due to the existence of court proceedings. Those proceedings were not identified in An Bord Pleanála's extension of time but were identified by Westland during the hearing as FIE's challenge to the regulations and other proceedings in which the legislation on substitute consent is being challenged. The applicant claims that Westland is improperly securing an ‘enforcement holiday’ by seeking to postpone its obligation to apply for substitute consent.
The applicant claims that what Westland's winterisation measures are unlawful activity coming within the s.5 declaration including construction and excavation of drains. The applicant claims that this activity, along with what the applicant says is Westland's failure to properly clear and maintain silt ponds and drains, is causing pollution and damage to the local environment.
Westland and Cavan Peat entered into a commercial arrangement with Coole Windfarm to site four wind turbines on Clonsura bog. The applicant unsuccessfully opposed Coole Windfarm's application to An Bord Pleanála for planning permission for the wind farm but was given leave by the High Court to challenge that grant of planning permission. In May 2019 a stay was placed on the implementation of the planning permission and the substantive case was heard in 2020. Final written submissions were filed in September 2020 and judgement was reserved. At the time of this decision, judgment was still awaited.
There is a dispute between the applicant and Coole Windfarm as to the nature of the agreement between Westland, Cavan Peat and Coole Windfarm that will enable the construction of the windfarm turbines on Clonsura Bog. The applicant claims that there is an agreement to integrate Coole Windfarm's wind farm...
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