The High Court set out orders to set aside two 2019 regulations concerning peat extraction, after an earlier judgment found both instruments invalid. The supplementary judgment, delivered by Mr Justice Garrett Simons on 18 October 2019, addressed the form of the orders and costs.
The judicial review was brought by Friends of the Irish Environment Limited against the Minister for Communications, Climate Action and Environment, the Minister for Housing, Planning and Local Government, Ireland and the Attorney General. It challenged the EU (Environmental Impact Assessment) (Peat Extraction) Regulations 2019 and the Planning and Development Act (Exempted Development) Regulations 2019.
In the principal judgment, delivered on 20 September 2019, the court concluded that both sets of regulations were invalid. It found they were inconsistent with the Environmental Impact Assessment Directive and the Habitats Directive. It also found that the policy choices needed to establish the new peat extraction licensing regime should have been made through primary legislation by the Oireachtas, rather than introduced by secondary legislation.
The supplementary judgment specified that the peat extraction regulations, S.I. No. 4 of 2019, should be set aside as ultra vires section 3 of the European Communities Act 1972. The court said this order should stand independently of the finding that the regulations breached the two EU directives.
The second instrument, S.I. No. 12 of 2019, was made under section 4(4A) of the Planning and Development Act 2000. The State respondents argued that the court should not set it aside on the ground that it exceeded that section’s authority because the argument had not been included in the applicant’s Statement of Grounds. The judge said there was merit in that submission and it was unnecessary to rely on section 4(4A) to dispose of the case.
Instead, the court proposed declaring the second instrument inconsistent with the two directives and setting it aside on that basis, using the court’s jurisdiction to disapply national legislation inconsistent with EU law. The judgment left open whether an appellate court would permit the applicant to make the section 4(4A) argument if there were an appeal; the High Court made no final determination on that issue.
The State respondents said they would not oppose an order for costs in the applicant’s favour. The court therefore did not decide which costs regime applied. Its proposed order directed the respondents to pay the applicant’s costs, including reserved costs and costs of two sets of written legal submissions, with two counsel and taxation in default of agreement.