The Supreme Court has dismissed Friends of the Irish Environment Limited’s appeal over An Bord Pleanála’s decision to dismiss a referral concerning peat extraction in three areas of County Westmeath. The Court held that the Board could not determine the referral without giving potentially affected owners and occupiers an opportunity to be heard.
The referral, made in 2010, asked whether peat extraction in Lickny/Newcastle, Doon and Carlanstown was exempted development under the Planning and Development Act 2000. FIE also maintained that the activities required environmental assessment. The lands were shown on maps, but the Board said it could not establish the relevant ownership and occupation well enough to determine the question and dismissed the referral in May 2013.
The High Court refused FIE’s application to quash that decision. FIE appealed, arguing that the Board should have used statutory powers to investigate further or serve notice by affixing it to the lands, or should have dispensed with notice. It also argued that Ireland’s obligations under the Environmental Impact Assessment Directive affected how those powers should be interpreted.
In a judgment delivered by Justice Susan Dunne, the Supreme Court said the referral covered three substantial areas with multiple ownership, subdivisions and potentially different occupiers involved in peat extraction. Some land was unregistered, further complicating efforts to identify those affected. The Court said a determination could affect their property rights and that the Board had to give them notice under the Act.
The Court concluded that affixing notices across the numerous land subdivisions was not a reasonable practical solution. Nor could the Board dispense with notice where it could not be satisfied that doing so would avoid injury or wrong to those affected. Article 2(1) of the Directive did not require a different interpretation of the statutory service provisions or allow the Board to proceed without notice.
The Court found no basis to set aside the High Court’s order on curial deference. It said the Board’s decision centred on fair procedures, rather than its specialist planning expertise, and declined to undertake a wider review of the doctrine because that issue did not arise on these facts. It also rejected the case for a reference to the Court of Justice of the European Union.
The appeal concerned the Board’s dismissal of this referral; the Supreme Court did not decide whether the peat extraction was exempted development or whether an environmental impact assessment was required. It noted that FIE could make a further, more focused referral if it could identify the relevant owners or occupiers.