The Environmental Protection Agency v Harte Peat Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 31 July 2024
• Neutral Citation: [2024] IECA 202
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2022/100

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

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

Between/

Harte Peat Limited

Appellant

and

The Environmental Protection Agency, Ireland and The Attorney General

Respondents

[2024] IECA 202

Collins J.

Faherty J.

Power J.

Record Number: 2022/100

THE COURT OF APPEAL

Judicial review – Integrated Pollution Control licence – Injunction – Appellant seeking judicial review of the decision of the first respondent to refuse to consider the appellant’s application for an Integrated Pollution Control licence – Whether the first respondent’s decision to refuse to consider the appellant’s licence application on the basis that its peat extraction activity required planning permission was a valid one

Facts: The High Court (Phelan J) delivered a composite judgment of 16 March 2022 in respect of two matters then before the High Court: first, the application of the appellant, Harte Peat Ltd (Harte Peat), for judicial review of the decision of the first respondent, the Environmental Protection Agency (the EPA), to refuse to consider Harte Peat’s application for an Integrated Pollution Control licence pursuant to the provisions of the Environmental Protection Agency Act 1992; and, secondly, the EPA’s application for an injunction pursuant to s. 99H of the 1992 Act restraining Harte Peat from extracting peat. The High Court duly granted an order in favour of the EPA pursuant to s. 99H. An application by Harte Peat for a stay on the injunction was heard by the Court of Appeal on 14 September 2022 and refused verbally on 22 November 2022. Harte Peat appealed to the Court of Appeal from the High Court’s decision in respect of the judicial review proceedings and the s. 99H injunction. Two principal issues arose in the appeal, namely: (i) whether the EPA’s decision to refuse to consider Harte Peat’s licence application on the basis that its peat extraction activity required planning permission was a valid one; and (ii) whether the High Court correctly interpreted the definition of Class 1.4 of the First Schedule to the 1992 Act, to wit, “the extraction of peat in the course of business which involves an area exceeding 50 hectares” in granting the injunctive relief sought by the EPA.

Held by Faherty J that Harte Peat required planning permission for its activities. She held that it lost its exclusion from planning permission once the threshold for environmental impact assessment was reached. She held that its pre-1964 claim, in any event, was without foundation. Essentially, she held that that claim was overtaken by the law and, in particular, EU law. She held that she would uphold the judgment and order of the High Court in the judicial review proceedings and dismiss Harte Peat’s appeal.

Faherty J was satisfied, in all of the circumstances of the case, that Harte Peat was correct in submitting that it was not the case when the injunction proceedings commenced in March 2021 that Harte Peat was extracting peat in an area exceeding 50 hectares. That being the case, she held that there was no legal basis for the order made by Phelan J on 8 April 2022 pursuant to s. 99H. However, Faherty J held that that order would remain in place pending final orders (including as to costs) being made by the Court.

Appeal allowed in part.

UNAPPROVED

Judgment ofMs. Justice Fahertydated the 31 ^st day of July 2024

1 . This appeal arises from a composite judgment of the High Court (Phelan J. hereinafter “the Judge”) of 16 March 2022 in respect of two matters then before the High Court, first, the appellant's ( “Harte Peat”) application for judicial review of the respondent's ( “the EPA”) decision to refuse to consider Harte Peat's application for an Integrated Pollution Control licence ( “IPC licence”) pursuant to the provisions of the Environmental Protection Agency Act 1992 ( “the 1992 Act”) and, secondly, the EPA's application for an injunction pursuant to s.99H of the 1992 Act restraining Harte Peat from extracting peat. The High Court duly granted an order in favour of the EPA pursuant to s.99H. An application by Harte Peat for a stay on the injunction was heard by this Court on 14 September 2022 and refused verbally on 22 November 2022.

2 . The Court's reasons for refusing the stay are set out in a judgment delivered on 6 December 2022 ( [2022] IECA 276). In essence, the Court determined that whilst Harte Peat had made out an arguable case and had stateable grounds of appeal, the balance of justice nevertheless lay in favour of refusing the stay application. A highly relevant factor was that Hate Peat's activity involved significant peat extraction such that if the Court were to grant the stay and subsequently uphold the High Court decision, “the injustice that would arise, both as a matter of law and fact, is that irreversible peat extraction from Area G would occur. In such scenario, peat extraction would have been in breach of domestic and EU legislation” (para. 120). As the Court stated: “[t]he harm from unlawful peat extraction cannot be reversed or undone”, “if peat extraction is now to be resumed in Area G… there is a very significant risk that there will be adverse environmental consequences and a failure to enforce national and EU environmental law” (para. 122). On the basis of the High Court's findings in the judicial review proceedings, that risk was “a near certainty” (para. 122). As mandated by the approach of O'Donnell J. (as he then was) in Krikke v. Barranafaddock Sustainability Electricity Ltd.[2020] IESC 42 (“ Krikke”), the Court was of the view that “the importance of both protection of the public interest in the enforcement of planning and environmental law protecting the environment cannot be underestimated”, thus “the implementation of a decision made under a statutory scheme for the protection of the environment must attract significant weight, and, as was also emphasised in Krikke, significant weight has to be given to the fact that the High Court has upheld the EPA's decision after a lengthy hearing” (para.131).

3 . I turn now to Harte Peat's appeal of the High Court's decision in respect of the judicial review proceedings and the s.99H injunction. In broad brush, two principal issues arise in the appeal, namely (i) whether the EPA's decision to refuse to consider Harte Peat's licence application on the basis that its peat extraction activity required planning permission was a valid one and (ii) whether the High Court correctly interpreted the definition of Class 1.4 of the First Schedule to the 1992 Act, to wit, “ the extraction of peat in the course of business which involves an area exceeding 50 hectares” in granting the injunctive relief sought by the EPA. These issues fall to be addressed by reference to the background to the proceedings and the relevant legislative provisions (both at EU and domestic level) which govern the type of activity in which Harte Peat is engaged.

Background

4 . By way of judicial review proceedings bearing Record No. 2021/14/JR, Harte Peat sought orders, including certiorari, quashing the decision of the EPA made on 24 November 2020 refusing to consider Harte Peat's application for an IPC licence in respect of its wet peat extraction activity at bog lands in Counties Westmeath, Cavan and Monaghan. While, altogether, the lands in issue span a total area of some 150 hectares of bog lands, the application for an IPC licence was in respect of some 73.33 hectares, with a stated peat extraction area of circa 49 hectares. That decision of the EPA was made pursuant to section 87(1C) of the 1992 Act, of which more anon. For ease of reference, the bog lands in issue here will be referred to as Areas A, B, F and G, as they are so described in the EPA's statutory injunction proceedings. The lands in County Westmeath drain into the Inny River which in turn flows into the nearby Lough Derravaragh, a designated Special Protection Area (“ SPA”) and a National Heritage Area (“ NHA”).

5 . The excavation of wet peat (sometimes referred to as black peat) by Harte Peat is for the supply of mushroom casing which is the growing medium for Ireland's commercial mushroom production, and which consists of a mixture of wet peat and other products including a form of straw compost containing mushroom sporium on which mushrooms are grown and from which they are harvested. Harte Peat is a supplier of mushroom casing to a number of mushroom growing enterprises.

6 . Harte Peat applied for the IPC licence against the backdrop of an already complicated factual and legal history which I now propose to briefly set out.

The previous proceedings

7 . In 2013, the EPA commenced proceedings (Record No. 2013/302 MCA) against Harte Peat and another company pursuant to section 99H of the 1992 Act (hereafter “ the 2013 Proceedings”).

8 . In those proceedings, Harte Peat sought the determination of a preliminary issue in relation to the meaning of the phrase “ extraction of peat in the course of a business which involves an area exceeding 50 hectares” as appears in Class 1.4 of the First Schedule to the 1992 Act. The EPA consented to this preliminary issue being determined.

9 . On 30 May 2014, the High Court (Barrett J.) delivered a judgment ( [2014] IEHC 308) on the preliminary issue which upheld the EPA's position as to the interpretation of “ extraction of peat in the course of a business which involves an area exceeding 50 hectares”. Harte Peat appealed that judgment to this Court. On 25 November 2016, the EPA agreed to set aside the Order and judgment of Barrett J. on consent in circumstances where this Court ruled that the preliminary issue should not have proceeded in the absence of agreement as to the underlying facts.

10 . In November 2018, a 3-day hearing for an interlocutory injunction took place before Meenan J. in the High...