The High Court has refused Bulrush Horticulture Ltd and Westland Horticulture Ltd and others certificates to appeal its earlier dismissal of their judicial review cases concerning peat extraction in County Westmeath.
In a judgment delivered on 7 December 2018, Mr Justice Meenan said the court accepted that its interpretation of planning law had important, far-reaching implications for the peat harvesting industry and involved a point of law of exceptional public importance. But that was only one part of the statutory test. The court also had to be satisfied that an appeal was desirable in the public interest, which required sufficient uncertainty in the law.
The companies sought certificates under section 50A(7) of the Planning and Development Act 2000 on questions concerning the application of EU environmental assessment directives to peat extraction that began as exempted development, and whether environmental impact assessment could be required for extraction outside a new or extended area of 30 hectares or more.
The underlying judicial review proceedings challenged An Bord Pleanála decisions about peat extraction and related activities at Camagh Bog and other Westmeath sites. In February 2018, the High Court dismissed both judicial review applications. The December judgment dealt only with the subsequent requests for appeal certificates; it did not reopen or change the earlier decisions.
The applicants argued that the court’s treatment of the EU Court of Justice’s Stadt Papenburg decision conflicted with observations by Mr Justice Charleton in An Táisce v Ireland. Justice Meenan considered the relevant judgments and concluded that the claimed conflict did not establish the level of legal uncertainty required for certification. He also found no uncertainty about whether an environmental impact assessment could be required following a case-by-case examination, including in relation to extraction involving an extended area of 30 hectares or more.
The judge noted evidence from Westland’s technical department head that the interpretation could lead to commercial peat extraction above a threshold having to stop pending planning applications, with potentially significant effects on employment and rural areas. He said the industry implications were important, but concluded the applicants were seeking a change in the law rather than a Court of Appeal ruling to resolve uncertainty.
The court therefore refused the certificates sought by both applicant groups.