The High Court has rejected judicial review challenges by Bulrush Horticulture Ltd and a group of companies referred to collectively in the judgment as Westland. The companies had sought to overturn An Bord Pleanála decisions on peat extraction operations in County Westmeath.
In a judgment delivered on 8 February 2018, Mr Justice Meenan upheld the Board’s determinations that environmental impact assessments and appropriate assessments were required for the continued works. He also upheld its treatment of associated peat handling and access works as part of the peat extraction projects. The court refused the companies’ requested orders of certiorari, which would have quashed the Board’s decisions.
The Board had ruled in April 2013 that the activities at the sites were development and were exempt from planning permission until 20 September 2012, but were development and not exempted development after that date. The first case concerned Bulrush’s operation at Camagh Bog, Doon Castlepollard. The second concerned lands at Lower Coole, Mayne, Ballinealloe, Clonsura near Coole, and Fineagh.
The companies argued that peat extraction was a change in land use, rather than “works”, and that the activities remained exempt. They also argued that removing the exemption would apply the law retrospectively. The judge rejected the distinction: peat extraction involved excavation and therefore constituted works, even where the bog had first been drained. He concluded that the companies could not rely on a transitional provision that would have applied if the development had been completed within 12 months of the relevant 2011 amendment.
The judge found a sound legal basis for the Board’s conclusions that the continued works were likely to have significant environmental effects and required an environmental impact assessment. He also upheld the conclusion that the works could significantly affect the Natura 2000 site at Lough Derravaragh, including through emissions to water, and therefore required an appropriate assessment. The judge said the removal of the exemption operated prospectively: it did not make previously lawful activity unlawful, but meant the companies now required planning permission for their activities.
The judgment records that the companies had operated at the relevant sites since 2003 in Bulrush’s case, and since 1993 or 1999 at the Westland lands. It does not grant planning permission or decide any later planning application.