The High Court has granted judicial review of two 2019 regulations governing large-scale peat extraction, finding that they conflicted with EU environmental law and that their use of secondary legislation was impermissible. The court said it would set the regulations aside in their entirety, but reserved the precise form and legal basis of its order for further submissions.
Friends of the Irish Environment Ltd challenged regulations that took effect on 25 January 2019. They exempted peat extraction involving 30 hectares or more from planning permission and provided for licensing by the Environmental Protection Agency (EPA). During a transition period, extraction could continue without a planning permission or licence if it had been underway immediately before that date. An unlicensed operator had 18 months to apply for a licence; a licensed operator had 36 months. Extraction could continue while an application was decided and, in certain circumstances, while a judicial review of a licence refusal was pending.
The court held that the transition scheme did not provide a mechanism to suspend extraction while retrospective assessment and licensing took place. Nor did it require exceptional circumstances before allowing operators to seek regularisation, or set out adequate provisions for assessing past as well as future environmental impacts. The judge found the scheme exceeded the limited discretion available to regularise projects carried out without the consent and assessments required by the Environmental Impact Assessment and Habitats directives. The judgment said the absence of any possibility of suspension was a central defect, including for operators who already held EPA licences.
The court also found that the regulations made policy choices that had to be made by the Oireachtas through primary legislation. Those choices included giving peat extraction a more generous regularisation route and removing the possibility of enforcement action during the transition period. The judge said this conclusion applied even if the regulations were assumed to comply with the two EU directives.
The court rejected the challenge based on the Strategic Environmental Assessment Directive. It found that the regulations did not set the framework for future development consent and therefore did not require a strategic environmental assessment. It also rejected the claim that allowing extraction to continue while judicial review of a licence refusal was pending interfered with judicial independence, though it said that extension prolonged the scheme’s EU-law defect.
The proceedings were heard over three days from 4 September 2019. A limited stay had previously been granted in an interlocutory ruling. The court did not determine the exact jurisdictional basis for setting aside the regulations and invited further submissions on that question. It said the order would set both regulations aside in their entirety.