About this case:

• Citation:
  [2019] IEHC 555
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Stating that the transitional provisions gave rise to a “lacuna in the governance of peat extraction”, Mr Justice Garrett Simons said that to refuse the injunction would risk undermining the effectiveness of EU environmental law and also risked harm to the environment.

Enforcement holiday

In an application which Mr Justice Simons described as being “striking in its ambition”, Friends of the Irish Environment sought an interlocutory injunction to restrain the operation of two statutory instruments made in January 2019: The EU (Environmental Impact Assessment) (Peat Extraction) Regulations 2019 (S.I. No. 4 of 2019), and the Planning and Development Act 2000 (Exempted Development) Regulations 2019 (S.I. No. 12 of 2019) – referred to collectively throughout the judgment as “the Ministerial Regulations”.

FIE contended that the Ministerial Regulations were invalid, submitting that they disapply existing domestic statutory provisions intended to ensure compliance with the requirements of the Environmental Impact Assessment Directive and the Habitats Directive. FIE said the effect of the Ministerial Regulations was that the obligation to comply with the aforementioned EU Directives would be suspended for a temporary period in the case of certain peat extraction projects – described as an “enforcement holiday” contrary to EU law.

A letter from the EU Commission expressing concerns about the further delay in the application of EIA Directive was exhibited in the proceedings.

Lacuna in the governance of peat extraction

Prior to the Ministerial Regulations, peat extraction had been regulated under the Planning and Development Act 2000 (PDA 2000). The Ministerial Regulations purported to introduce amendments to the Environmental Protection Agency Act 1992 (EPA Act 1992) and a single amendment to the PDA 2000. As such, FIE inquired as to whether the use of secondary legislation to amend primary legislation was justified on the basis that the content of the regulations is “necessitated by the obligations of membership of the European Union” for the purposes of Article 29.4.6° of the Constitution.

Furthermore, the Ministerial Regulations had the effect that extraction of peat involving an area of over 30 hectares or more would be immediately exempt from the requirement to obtain planning permission, and would ultimately be subject to licencing by the Environmental Protection Agency. Mr Justice Simons said there “must be a question mark as to whether the exemption carved out for peat extraction goes beyond…section 4(4A) of the PDA 2000” which allows the Minister to exempt development the legislation where there is an alternative authorisation procedure in place to ensure compliance with the EIA Directive and the Habitats Directive.

Mr Justice Simons said peat extraction involving over 30 hectares will be subject to licensing and assessment under the EPA Act 1992, but that this would not occur for at least 18 months in the case of unlicensed activities, and 36 months in the case of licensed activities – therefore it was arguable that section 4(4A) may not be invoked until the alternative authorisation procedure is operative. Mr Justice Simons said the transitional provisions gave rise to “a lacuna in the governance of peat extraction whereby the existing legislative regime under the PDA 2000 is disapplied, notwithstanding that the new licensing regime has not yet come into full force and effect”.

Flagrant breach of the Directive

Mr Justice Simons said the overriding objective in ruling on an application for an interlocutory injunction was to ensure justice between the parties pending a full hearing and determination of the judicial review proceedings. He noted that there would inevitably be a significant lapse of time between the institution and determination of the proceedings.

The gravamen of FIE’s case in respect of the EIA Directive was that it is unlawful for the State to dispense with the obligation to comply with the directive even on a temporary basis, and that the legal effect of the transitional provisions is that “unlicensed peat extraction, which should have been subject to assessment for the purposes of the EIA Directive, is to be permitted to continue for a period of in excess of eighteen months” – representing a “flagrant breach” of the directive. It was pointed out that the deadline for implementing the EIA Directive expired in June 1988 – more than 31 years ago.

The State conceded that FIE had an arguable case, and therefore passed the threshold for the purposes of an interlocutory injunction.

Considering whether there was an arguable defence, Mr Justice Simons considered the effect of the transitional provisions under the Ministerial Regulations, and said that a legislative regime allowing “unlicensed activities to continue unabated would appear prima facie to breach the requirements of the EIA Directive”. He said the fact that, for over 18 months, the domestic legal regime would be less effective than that which had come before, represented a “retrograde step”. Mr Justice Simons said that where a Member State exceeds its discretion by exempting projects from assessment under the EIA Directive, the domestic law must be set aside.

In order to defend the proceedings, the State must establish that it is permissible to allow unlicensed peat extraction to continue on a temporary basis in breach of the EIA Directive. Considering CJEU case law, Mr Justice Simons said this would only ever be allowed where overriding environmental protection considerations exist. Stating that the State had offered no insight into how they intended to justify the wholesale exemption from the Directives, Mr Justice Simons was satisfied that the State had not yet disclosed an arguable defence to the grounds of challenge.

Stating that there was a risk of harm to the environment and a risk of undermining the effectiveness of EU environmental law, Mr Justice Simons said the greatest risk of injustice lay in refusing to grant the interlocutory injunction.

In all the circumstances, Mr Justice Simons granted  an interlocutory injunction restraining the implementation of the Planning and Development (Exempted Development) Regulations 2019, and listed the proceedings for full hearing in September 2019.

• by Seosamh Gráinséir for Irish Legal News