The Environmental Protection Agency v Harte Peat Ltd

CourtCourt of Appeal (Ireland)
JudgeFaherty J.,Power J.,Collins J.
Judgment Date06 December 2022
Neutral Citation[2022] IECA 276
Docket NumberRecord 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)

Harte Peat Limited
The Environmental Protection Agency, Ireland and The Attorney General

[2022] IECA 276

Faherty J.

Power J.

Collins J.

Record Number: 2022/100



Stay – Injunction – Environmental Protection Agency Act 1992 s. 99H – Appellant seeking an order staying an injunction granted to the first respondent pursuant to s. 99H of the Environmental Protection Agency Act 1992 – Whether the appellant had arguable grounds of appeal

Facts: The appellant, Harte Peat Ltd (Harte Peat), applied to the Court of Appeal for an order staying an injunction granted by the High Court to the first respondent, the Environmental Protection Agency (EPA), pursuant to s. 99H of the Environmental Protection Agency Act 1992 (as amended). Harte Peat’s position was that it had compelling grounds for appeal in respect of the aggregation of bog lands engaged in by the Judge for the purpose of determining that the EPA met the requisite threshold for the s. 99H injunction proceedings. It said the requisite threshold was not met in circumstances where it was effectively the common case that Harte Peat was not carrying out an extraction of peat in excess of 50 hectares. That threshold could only be met if the Court came to the view that the High Court was justified in taking into account bog land located some 10 or 20 kilometres away from Area G (so described in the EPA’s statutory injunction proceedings), an approach which Harte Peat said was manifestly wrong as a matter of law. Harte Peat thus asserted that the High Court’s determination of the injunction application was rendered untenable in light of the 50 hectares requirement before the EPA could move for injunctive relief (which Harte Peat asserted the EPA could not establish). Harte Peat said the High Court order was effectively granted on a quia timet basis which, it contended, was not permissible having regard to the terms of s. 99H itself.

The Court was satisfied that Harte Peat had made out an arguable case and had stateable grounds of appeal in relation to the aggregation of bog lands issue which would, if accepted, lead to the outcome that the injunctive relief granted by the High Court ought not to have been granted. The Court was not satisfied that the grounds of relief relied on by Harte Peat were such as to compel the Court to allow its appeal. The Court held that if it were to grant the stay, then for as long as it remained in place, Harte Peat would be free to extract peat from Area G without planning permission, without any requirement at all to have obtained prior development consent and without any environmental impact assessment having been conducted by a competent authority in circumstances where there was a significant basis for thinking that such activity would be a breach of EU law (having regard to the finding to that effect made by the High Court). The Court held that this was a very significant factor weighing in favour of refusing the stay. The Court held that there was a striking lack of evidence as to the actual financial impact of the s. 99H order on Harte Peat to date or how the order would affect it in the future in the event that a stay was refused. Absent such evidence, the Court held that there was nothing capable of outweighing the factors weighing against the grant of the stay. The Court considered that the balance of justice clearly favoured the refusal of the stay.

The Court decided to refuse Harte Peat’s application, without prejudice to its entitlement to renew that application if that appeared appropriate in light of the manner in which the appeal proceeded.

Application refused.


Judgment of the Court dated the 6 th day of December 2022


. This is an application by the Appellant (“ Harte Peat”) for an order staying an injunction granted by the High Court to the Respondent (the Environmental Protection Agency ( EPA)) pursuant to section 99H of the Environmental Protection Agency Act 1992 (as amended) ( “the 1992 Act”). In terms of timing, the application for the stay is somewhat unusual, coming as it does after arguments on the substantive issues in the appeal have been heard.


. It is important to emphasise, however, that the hearing of the appeal has not concluded in that the Court has decided that it should hear from the Attorney General in relation to certain issues canvassed in the course of the appeal to which further reference is made below. Further argument has been listed for 7 December 2022. While the issues before the Court on that date are not directly related to the section 99H injunction, the Court is not in a position to reach a final view on any of the issues in the appeal at this stage and has not done so. The necessity (from the Court's perspective) to hear from the Attorney General has unavoidably prolonged the determination of Harte Peat's appeal. At this point, the Court cannot confidently predict when it will be in a position to give its decision on the appeal. It may be appropriate to make a reference to the CJEU. Moreover, once it gives its decision, there is the possibility of a further appeal to the Supreme Court. These are some of the contextual issues to which the Court must have regard in determining the application for a stay on the Order of the High Court.


. The Court has in fact, already, communicated its decision on the stay application to the parties. On 22 November 2022 it informed the parties that it did not consider it appropriate to grant a stay at this stage. However, the Court noted that the complexion of the appeal might change and indicated that Harte Peat should not be shut out from renewing its application at a later stage.


. This judgment, to which all members of the Court have contributed, sets out the Court's reasons for refusing the stay sought by Harte Peat.

The background to the stay application

. 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 Integrated Pollution Control licence ( “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. For ease of reference, the bog lands 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”).


. 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.


. Harte Peat applied for the IPC licence against the backdrop of an already complicated factual and legal history which is summarised below. Before setting out that history, however, in order to best explain the backdrop to the judicial review and statutory injunction proceedings, and to provide context for the arguments that are made in the stay application, it is useful to refer briefly (purely by way of overview) to the legislative regimes, both at the EU and domestic level, which govern the licence application in issue here and the grant of planning permission involving the extraction of peat.


. Firstly, peat extraction is a prescribed activity for the purposes of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (to which, as amended, is hereafter referred to as “ the EIA Directive”). The first iteration of the EIA Directive was Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. Directive 85/337/EEC was amended three times, in 1997, in 2003 and in 2009. Subsequently, this Directive and the amendments thereto were codified by Directive 2011/92/EU, itself amended in 2014 by Directive 2014/52/EU. Peat extraction where the surface area of the site exceeds 150 hectares is designated as an Annex I project, in respect of which an environmental impact assessment (EIA) is mandatory. Peat extraction below that threshold is included in Annex II and an EIA is required if the project is assessed as likely to have a significant effect on the environment. In fact, as we shall see, the threshold fixed in Irish law for triggering a mandatory EIA of new or extended peat extraction projects is significantly lower than the threshold in Annex II of the EIA Directive.


. The 1992 Act governs the licencing of peat extraction in the State and is one of a number of legislative enactments which give effect to the EIA Directive. The legal position is that with the exception of a period in 2019 when subsequently nullified ministerial regulations applied, large scale peat extraction is subject to licencing by the EPA under Part IV of the 1992 Act.


. Section 82 of the 1992 Act provides that a person shall not carry on a licensable “ activity” unless a licence or a revised licence under Part IV of the...

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