Move to take peat out of planning system challenged in High Court
July 17th, 2019
A challenge to new peat regulations exempting industrial-scale extraction from the need for planning permission was heard in the courts this week.
The case brought by Friends of the Irish Environment (FIE) was heard at a High Court sitting in Cork on Monday, with Mr Justice Garret Simons concluding proceeding in less than a day and reserving judgment until next Tuesday.
On 25 January, the Minister for Planning Eoghan Murphy TD published new regulations to exempt peat extraction of 30 hectares (ha) or more from any requirement to obtain planning permission.
This coincided with the introduction of another set of regulations by the Minister for Climate Action Richard Bruton TD to make the extraction of 30ha or more exclusively subject to licensing by the Environmental Protection Agency (EPA).
The watchdog regulates harvesting through the Integrated Pollution Control (IPC) system, with the regulations lowering the threshold from 50ha to 30ha.
According to the EPA, around 23 Mt of soil carbon was lost between 1990 and 2000 through industrial peat extraction. Today, 84 per cent of raised bogs have been affected by peat extraction.
FIE, which is also challenging the State’s climate mitigation and national development plans, argues that the new rules eliminate the legal right for the public to take enforcement action against large scale unauthorised commercial peat extraction.
The Irish planning regime currently allows for concerned citizens to log concerns over unauthorised development to their local authority, following which the Council is obliged to investigate the matter.
In addition, citizens can lodge submissions for any planning permission applications for peat extraction operations and make an appeal to An Bord Pleanála where it disagrees with a local authority’s grant of planning permission.
The planning authority is then tasked with examining the planning decision afresh and making a decision to refuse planning permission or to allow it, often with certain conditions.
Under the new regime, however, appeals against EPA decisions for IPC licences may only be challenged by way of judicial review in the High Court, an often costly and time-consuming process.
Applying for a stay on the application of the new regulations pending a full hearing of the matter, the group’s counsel, James Devlin SC, argued that the new legislation also creates a significant time gap within which existing unauthorised operators can continue extracting peat in the absence of any proper environmental assessment of their activities.
Mr Devlin explained to the Court that the new rules created a “limbo period” that could extend to four or five years when the right of appeal process is taken into account.
The new legislation regime has been in the pipelines for years, with many environmental and conservation groups raising concerns with delays in bringing in the threshold changes with both the Departments for Planning and Environment and the EPA for a number of years.
The delay has impacted legal proceedings, with a 2013 court case against several peat companies adjourned five times on the grounds that new regulations would be brought before the Oireachtas.
A High Court ruling in 2018 confirmed that peat extraction on bogs in Co Westmeath operated by Westland Horticulture and Bulrush Horticulture required planning permission and environmental assessments.
Tony Lowes, director of FIE, welcomed Mr Justice Simons resolve to deal with the matter as expeditiously as possible as some operators have been “extracting peat for decades without compliance with EU environmental rules”.
“There is a real public health risk of cancer-causing chemicals in drinking water from sites where there is uncontrolled runoff of peat solids to drinking water sources, not to mention the climate change effects and the damage to habitats,” he warned.
“The new regulations seek to set aside important protections that Irish citizens and the environment have under EU law. Hopefully, the High Court will provide much-needed clarity on the issue of the State’s obligation to apply EU law to peat extraction.”
More streamlined approach
The Department for Planning previously told The Green News that the combined intent of the new regulations is to put a new regime in place that will get rid of the current “twin-track approach” and provide a more “streamlined regulatory approach” building on the EPA’s expertise in this area.
The new system will bring in stronger protections, the department said, as it is mandatory to carry out an environmental impact assessment under EPA licensing and further assessment is required where any proposed extraction site may impact on a protected nature area.
FiE has questioned the bite of the environmental watchdog to bring companies in line, with the EPA slow to respond to its 2009 warnings of unlicensed activity by Harte Peat at sites in Co Westmeath above the then 50ha threshold.
While the EPA is currently embroiled in a legal challenge with the company, an injunction brought last November to halt extraction up to five metres deep at a Harte Peat site was adjourned. Mr Justice Charles Meenan found that the agency was aware of extraction for at least five years and as such could have acted sooner.
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