The Court of Appeal will overturn an order preventing a firm extracting wet peat from parts of its bogs in the Midlands.
In a ruling this week, Ms Justice Mary Faherty said Harte Peat was correct in submitting that it did not need an Integrated Pollution Control (IPC) licence for extraction limited to an area of land of about 26 hectares. The need for such a licence is triggered when an extraction area reaches 50 hectares.
The Environmental Protection Agency (EPA) had contended, and the High Court agreed, that the extraction activities were licensable as the aggregated hectarage of the firm’s “hydrologically linked” peatlands exceeded the 50-hectare limit.
In the appeal, Harte Peat argued some of the land considered by the High Court was not being extracted when the EPA brought its application. The EPA submitted past and likely future activity was relevant.
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Ms Justice Faherty said a plain reading of the relevant law requires the actual activity to be taking place at the time the order is sought. It does not account for whether activity has occurred in the past or is intended in the future, she said.
There was “no legal basis” for the High Court to grant the injunction as the extraction area did not exceed 50 hectares when the EPA’s injunction application was initiated in March 2021, the court ruled. Ms Justice Faherty said the High Court injunction, granted in the spring of 2022, will remain in place pending final orders in the appeal.
In the same ruling, the three-judge court found in favour of the EPA in a separate case brought against it by Harte Peat over the authority’s refusal to consider the firm’s application for an IPC licence to extract some 80,000 tonnes of peat per year in Co Westmeath.
The EPA said it could not consider the application as it should have been accompanied by an Environmental Impact Assessment (EIA) obtained via planning permission under EU law.
Harte Peat, which supplies its product to Irish mushroom growers, agreed its work needs an EIA but argued this did not need to be obtained through the regular planning process. The company submitted it does not need planning permission as the lands have been used for peat extraction since “well before any planning legislation” and, therefore, fall outside of the scope of the 2000 Planning and Development Act.
The Court of Appeal held that the potential environmental effects of Harte Peat’s activities needs to be considered via an EIA, which can only be done through the regular planning process. Ms Justice Faherty said the requirement for an EIA is the trigger for needing planning permission.
She said Harte Peat’s claim of being exempt on the basis of operating for more than 60 years is “without foundation”. Her decision was supported by Mr Justice Maurice Collins and Ms Justice Ann Power.
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