THE HIGH COURT has granted an injunction to halt a company from engaging in “unregulated” large-scale peat extraction in the Midlands in breach of strict EU law to protect the environment.
The Environmental Protection Agency (EPA) sought an order for the cessation of peat extraction and associated works by Harte Peat Ltd on 150 hectares in counties Westmeath, Cavan and Monaghan.
Currently, peat extraction above 50 hectares needs both planning permission and EPA licensing, with potential environmental impacts assessed under both regimes as required under EU law.
The lands in Co Westmeath where extraction has taken place drain into the River Inny which in turn flows into the nearby Lough Derravaragh that is protected under EU law.
Harte Peat argued that it has been extracting within one area only in Co Westmeath and the land it owned in that area equates to 26.53 hectares. Therefore, the company argued, it does not require a licence.
In her judgement delivered last Wednesday, Ms Justice Siobhán Phelan found that, in determining if the threshold is met, it is proper to also take into account any land used for purposes incidental to peat extraction such as access roads, storage, buffer zones and sedimentation ponds.
She also found that the areas in Co Westmeath subject to the proceedings “share a hydrological connection” and meet the 50 hectare threshold requirement.
She granted the injunction order for these four areas, totalling over 100 hectares. Two areas in counties Cavan and Monaghan totalling over 25 hectares where no peat extraction activity is occurring were not included in the order.
‘Exploitation and deterioration’ of peatland
Ms Justice Phelan said she was “satisfied on the evidence that HP [Harte Peat Ltd] is carrying out an activity in contravention of the EPA Act” and that the nature of the breach of EU law “cannot be considered as other than material and significant”.
She said that the EPA site visit reports and exhibited photographs “graphically evidence the continued exploitation and deterioration of the peat lands” at one of the Westmeath sites.
Peat extraction has already occurred in some parts of these lands “right down to the marl at a depth of circa five metres”, Ms Justice Phelan’s judgement states. “At this level of extraction,” she states, “the evidence is that the bog is unlikely to ever regenerate”.
Harte Peat is a major supplier of wet peat to be used as a casing material in the mushroom industry and argued during the January hearing that a decision in favour of the EPA would badly impact the industry. This was supported by affidavits from several members of the mushroom industry.
Ms Justice Phelan found that this “cannot outweigh the very serious environmental consequences of allowing HP [Harte Peat] to continue to carry on an unauthorised and wholly unregulated activity”.
Judicial review case
She also ruled on judicial review proceedings brought by Harte Peat seeking to overturn the EPA’s decision to refuse to process an application the company made in October 2019 for an EPA licence to extract peat in Co Westmeath.
The EPA refused as the company does not have planning permission from the local authority as required prior to seeking EPA licensing. Harte Peat argued it is exempt from the need for planning permission as peat extraction began on the sites in question prior to 1964 when there were no planning requirements.
While she found that the EPA’s decision was correct, Ms Justice Phelan judged that the decision was not “properly reasoned” as the EPA failed to “properly explain” how it reached its conclusion. She proposed to grant Harte Peat declaratory relief on this point.
She also found that Harte Peat engaged positively with the Agency during the licensing process and that it is not the company’s fault that peat regulations have been “in a state of flux” and changed while its application for a licence was pending.