The Supreme Court has ruled that Friends of the Irish Environment Ltd may rely on Article 2(1) of the Environmental Impact Assessment Directive in a limited way during its appeal over a planning referral concerning peat extraction in Co Westmeath.
The ruling concerns the scope of the appeal, not its substance. The Court did not decide whether the Board was required to determine the referral, whether the peat works were exempted development, or whether an environmental impact assessment was required.
The organisation had referred the question of whether peat extraction works on three sites were exempted development. An Bord Pleanála dismissed the referral on 3 May 2013, saying the question was not sufficiently particular or detailed given the different parcels of land and uncertainty about ownership. The Board did not reach the substantive planning issue.
The High Court refused the organisation’s judicial review challenge. It accepted that affected landowners and occupiers had fair-procedure rights and that their identities were difficult to establish. The judge held that the Board’s decision to dismiss the referral was not unreasonable and should stand.
On appeal, the Board objected to the organisation’s proposed reliance on Article 2(1). It argued that the specific claim—that the Directive affected the Board’s duties when deciding the referral or using its notice powers—had not been argued or decided in the High Court.
The Supreme Court accepted that the High Court had not been asked to determine how Article 2(1) affected the Board’s obligations or its powers under the Planning and Development Act 2000. But Justice Irvine said the Directive could be used to support an argument about the proper interpretation of sections 5 and 250 of that Act. The Court relied on earlier authority allowing a European Union law argument where it may be relevant to interpreting a statutory framework.
The permission is confined to that interpretive role. The organisation cannot advance a stand-alone argument based on EU law; it may use Article 2(1) only as part of a permissible refinement of its argument about the meaning of the 2000 Act. The Court proposed that both parties be given an opportunity to amend their submissions before the substantive appeal proceeds.