The High Court has agreed to grant an injunction restraining a company from extracting wet peat from areas of its midland bogs after finding its unregulated activities were a “material and significant” breach of European Union environmental law.
In a judgment delivered on Wednesday, Ms Justice Siobhán Phelan said the public interest in ensuring peat extraction is carried out in compliance with domestic and EU environmental law “cannot be overstated”.
While she acknowledged the orders made against Harte Peat Limited would have a “significant impact and will likely result in large economic loss”, this cannot outweigh the “very serious environmental consequences” of allowing it to continue carrying out unauthorised and unregulated peat extraction.
The judge said the contamination of Co Westmeath’s Lough Derravaragh and adjoining surface waters with peat from upstream extraction is a “major environmental and ecological concern”. Peat extraction has already occurred in some parts of the concerned lands down to the marl at a depth of some five metres, which, the evidence suggests, means the bog is “unlikely to ever regenerate”, she said.
Harte Peat, which supplies its product to Irish mushroom growers, issued judicial review proceedings against the Environmental Protection Agency (EPA) over its refusal to consider its application for an Integrated Pollution Control (IPC) licence to extract some 80,000 tonnes of peat per year in Co Westmeath.
In response, the EPA applied for the injunction pursuant to the EPA Act as it said the unregulated activities were being carried out in ongoing breach of European law as the company was operating without an IPC licence and without planning permission.
Its counsel, Fintan Valentine SC, instructed by Fieldfisher LLP, told the court in January that the EPA refused to consider Harte Peat’s licence application as it should have been accompanied by an Environmental Impact Assessment (EIA) obtained via planning permission under EU law.
Harte Peat had argued it did not need planning permission as its extraction was currently limited to an area of land of about 26 hectares, which is less than the 50-hectare threshold. The EPA said the aggregated hectarage of the business’s “hydrologically linked” peatlands exceeds the limit.
‘Artificial’ divide
Ms Justice Phelan said it is “artificial” to treat lands on either side of a road that form part of a single bog beneath the road as separate entities. When calculating the threshold, it is proper to have regard not only to the footprint of the harvesting land but also to any area which is used for purposes incidental to extraction, she said.
She noted that if contiguity was necessary, a commercial operation could extract peat on “100s or 1,000s of hectares of boglands”, each less than 50 hectares, without being required to obtain an IPC licence.
She was satisfied Harte Peat’s activities were licensable on the basis that the 50-hectare threshold had been met under these conditions.
The agency was not only entitled to refuse to process the IPC application but was obliged to do so where it was satisfied the application concerned an activity for which development consent in the form of planning permission was required because of the need for an EIA, the judge said.
However, she found the EPA’s decision refusing to consider Harte Peat’s licence application was defective as it did not adequately address matters raised by the company and was not properly reasoned. She indicated a provisional view that declaratory relief in Harte Peat’s favour in those proceedings would be more appropriate than an order quashing the refusal decision in circumstances where she had already determined planning permission is required.
Ms Justice Phelan noted the firm had engaged positively with the agency in seeking to regularise its position and it is not its fault that the law relating to peat regulation in this State has been been “in a state of flux”.
However, even when attaching a lower culpability to the company arising from a historic lack of proper regulation due to the State’s “piecemeal and ineffective” approach, the judge was satisfied there was a “material and significant” breach of EU environmental law.
She said she would hear from the parties as to the appropriate form of orders and other matters.
