The High Court has ruled that separate peat extraction sites can count together when deciding whether a business crosses the 50-hectare threshold for an environmental licence. It also said land used for related purposes, including access, peat storage and sedimentation ponds, may count towards that area.
In a judgment delivered on 30 May 2014, Mr Justice Barrett answered agreed questions about the Environmental Protection Agency Act 1992 and its environmental impact assessment framework. The proceeding was an application under section 99H of the Act. The court did not decide whether Harte Peat Limited or Lismoher Limited required a licence on the facts of their operations; the agreed facts were submitted for these proceedings, and both sides reserved the right to argue different facts at a full hearing.
The companies carry out peat extraction and have common shareholders and some common directors and secretaries, according to the agreed facts. Harte Peat owns land at sites in several counties. Lismoher leases about 44 hectares in County Westmeath from Harte Peat, with a public road separating the leased land from adjacent land owned by Harte Peat. Together, those owned and leased lands exceed 50 hectares. The companies disputed what land should be counted.
The EPA submitted that the calculation should include not just the areas where peat is cut, but land used for purposes incidental to extraction. The companies argued that their separate corporate identities meant their operations should not be combined. Those were the parties’ submissions, not factual findings that the court made about the companies’ actual licensing obligations.
The court held that the threshold refers to the area of the business involved in peat extraction, and that a business’s sites can be aggregated even if they are not contiguous. It said the identity of the person or persons operating a business is relevant, and that courts may look beyond separate companies’ legal identities where needed to prevent the environmental regime from being frustrated. Related companies may also be treated as the same person in some circumstances, including where one acts as the other’s agent or both act for a common third party. The court did not set out a comprehensive rule for every case involving related companies.
The judgment also said an installation can include land used for activities directly associated with extraction, such as access roads, storage, buffer zones and sedimentation ponds. Whether an activity is technically connected to peat extraction turns chiefly on its practical relationship to the extraction, the court said; the activity must also be carried out on the site of the relevant business. In the abstract, the court answered that separate plots may form part of the same activity in several scenarios, while noting that plots operated by different companies may require further consideration of their relationship.
The ruling interprets how the statutory threshold and installation definitions apply. It does not record a final finding on whether the companies’ particular operations crossed the threshold or an order requiring either company to obtain a licence.