Judgment: 2022-12-06 · Court archive

Court of Appeal refuses Harte Peat’s bid to resume extraction at Area G

The court found the company had arguable grounds in its appeal, but said the environmental risks of allowing extraction before the appeal was decided outweighed the financial prejudice shown in its evidence.

Court of Appeal · [2022] IECA 276

Who, what, where, when and why

Who
  • Harte Peat Limited (Appellant)
  • Environmental Protection Agency
  • Attorney General (Respondent)
What

The court found the company had arguable grounds in its appeal, but said the environmental risks of allowing extraction before the appeal was decided outweighed the financial prejudice shown in its evidence.

Where

Places mentioned in the report

  • Area G
  • Areas A, B, F and G
  • Areas A
When

Judgment:

Other dates in the report
  • 8 April 2022

    Harte Peat appealed High Court orders made on 8 April 2022 after proceedings brought by the Environmental Protection Agency (EPA). Those orders required the company to cease extraction and related activity in Areas F and G and barred extraction in Areas A, B, F and G. The High Court also refused to quash the EPA’s decision not to consider Harte Peat’s application for an integrated pollution control licence, while declaring that the EPA had inadequately explained that decision.

Why

Reasons reported in the judgment

In weighing the stay request, the court considered the potential injustice to both sides. It found Harte Peat’s evidence about financial harm limited: the company had not quantified its losses or explained its capacity to absorb them. Its evidence also did not establish the claimed risk of collapse of the domestic mushroom industry. The court noted that Area G’s peat could still be extracted if Harte Peat ultimately won its appeal, subject to any other restraint.

The Court of Appeal has refused Harte Peat Limited’s application to suspend an injunction stopping peat extraction at Area G while its appeal is pending. The decision concerns only the requested stay for about 26.53 hectares in Area G; it does not decide the underlying appeal or finally determine whether extraction there requires planning permission or an environmental impact assessment (EIA).

Harte Peat appealed High Court orders made on 8 April 2022 after proceedings brought by the Environmental Protection Agency (EPA). Those orders required the company to cease extraction and related activity in Areas F and G and barred extraction in Areas A, B, F and G. The High Court also refused to quash the EPA’s decision not to consider Harte Peat’s application for an integrated pollution control licence, while declaring that the EPA had inadequately explained that decision.

The Court of Appeal said Harte Peat had arguable grounds concerning the High Court’s aggregation of bog lands when applying the statutory threshold for a licence. It stressed that this did not indicate the appeal would succeed. The appeal remained unfinished, with further submissions due from the parties and the Attorney General.

In weighing the stay request, the court considered the potential injustice to both sides. It found Harte Peat’s evidence about financial harm limited: the company had not quantified its losses or explained its capacity to absorb them. Its evidence also did not establish the claimed risk of collapse of the domestic mushroom industry. The court noted that Area G’s peat could still be extracted if Harte Peat ultimately won its appeal, subject to any other restraint.

By contrast, allowing extraction while the appeal continued could cause irreversible damage to the bog and downstream environmental sites, the court said. The High Court had found that the activity required planning permission and an EIA, and that it posed serious environmental concerns. The Court of Appeal did not decide those substantive questions, but considered the High Court’s findings and orders relevant to the balance of justice. It said there was a significant basis for concern that resuming extraction without development consent or an EIA could breach EU law.

The court therefore refused the stay, without prejudice to Harte Peat applying again if the appeal’s progress made that appropriate. It reserved the question of costs for a later hearing.

Read the original court judgment

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