SEPARATED FROM THE R394 near Derrycrave in Co Westmeath by a thin band of peat and the remnants of an old hedgerow, sits a large body of water.
The size of five Gaelic pitches combined, passers-by could be easily fooled into thinking that they were looking at one of the many small lakes that have dotted this part of the country for decades.
The inky waters are, however, relatively new. They formed a few years ago after the unlicensed extraction of peat by one of Ireland’s most prominent horticultural peat companies, Harte Peat Ltd.
According to the Environmental Protection Agency (EPA), the Monaghan-based company dug five metres down to the marl, leaving little to no vegetation, and scooping up over 561,000 square metres of peat.
The plot is one of four areas of operation near Finnea and Coole totalling 200 hectares on which the High Court recently found the company was engaging in large-scale extraction without authorisation in breach of strict EU law to protect the environment.
Harte Peat told the High Court that the mushroom industry requires the extraction of black peat from a deeper level for use as “mushroom casing” as opposed to milled brown peat from the surface for other horticultural uses.
The sites were subject to a recent failed licence application from Harte Peat as it engaged with the EPA in a bid to regularise its position. While the High Court acknowledged that the EPA licence refusal was defective for want of adequate reasoning, the court nevertheless banned further peat extraction as being in contravention of EU law.
The Court is set to hear arguments this Friday about a stay on works for the purpose of permitting an appeal to be taken against the court’s decision. The recent ruling came after a long-running legal battle with the environmental watchdog that largely went on under the radar since 2013.
As early as 2009, conservation groups also raised concerns about the company’s activities – as well as several other large-scale peat extractors – to little success. Today, there is still no large-scale peat company in the country with the legally required planning permission and licences.
How did we get here?
A big part of the problem has been the state of flux in the laws on peat regulation, with the High Court finding that, while Harte Peat was in breach of EU law, its level of engagement with that regulatory process should not be characterised as “mala fides” [bad faith] and that responsibility for the State’s failure of effective regulation “lies elsewhere”.
Our PEAT SAKE investigation into the regulation of the peat industry reveals a system of largely unregulated activity that continues to this day, including that:
- The EPA and local authorities do not maintain any form of register of peat companies or the amount of peat extracted for commercial purposes
- Despite various inspections, enforcement action and legal challenges by either the EPA, NPWS, or Westmeath County Council over the potential impacts of its operations, Harte Peat continued to extract peat until late 2021
- 12 other peat extractors operating without a licence are now also subject to ongoing enforcement action by the EPA
Noteworthy sent detailed questions to Harte Peat in early February, and provided several extensions to reply to the series of questions posed. The company did not answer any of our questions.
As part of the PEAT SAKE series, we have also examined the peat export trade and illegal cutting on protected bogs. You can read these articles here. This article was developed with the support of Journalismfund.eu.
Together with fragments of ancient woodlands scattered across the island, our peatlands – built up over thousands of years – are Ireland’s oldest surviving ecosystem and continue to punch above their weight in protecting the natural world and humans with it.
Peatlands are one of the world’s most vital ecosystems, supporting a range of rare plants and species, cleaning and filtering water, and mitigating flooding. While covering just 3% of the planet, they store twice as much carbon as all the world’s forests combined.
This is true in Ireland where we have the near perfect conditions for peat soils that cover 20% of our land mass yet contain 75% of all our soil organic carbon. Near-intact Irish peatlands are estimated to actively capture around 57,000 tonnes of carbon per year.
“They pack a big punch,” according to Dr David Wilson, a research scientist specialising in peat, as the amount of carbon they store “equates to the amount of carbon that’s in the atmosphere”. Yet, despite their vital role in tackling the dual biodiversity and climate crises, our peatlands are in bad and deteriorating condition and are now a net source of emissions.
This is almost exclusively due to human exploitation of this vital natural resource as our bogs have long been seen for their economic value, drained and dug up as a fuel source, as growing material for horticulture or home gardening and reclaimed for agriculture and forestry.
Our storied history with peat
While the idyllic image of families cutting turf by hand is still sharp in the collective Irish memory, by the early 20th century mechanised, large-scale peat extraction had reached the island, first with the Turf Development Board in 1934. The Board was succeeded by Bord na Móna a decade later and today it owns nearly 80,000 hectares of peatlands.
Over the decades, the semi-state was joined by a host of other commercial players, mainly extracting peat used in professional horticultural industries and the hobby gardening sector. According to Dr Wilson, this commercial extraction is the “grade one defiler or degrader” of peatlands in Ireland.
“Extraction by its very nature removes the substrate so it can never be replaced in any meaningful period of time that humans would associate,” he told Noteworthy. “Commercial extraction hits all the environmental qualities that we value in our peatlands and removes some of them forever”.
Speaking to the investigative team, UCD scientist Dr Florence Renou-Wilson emphasised the impact of the scale of removal on commercial bogs where virtually all plant life is taken away, leaving the peat underneath to dry and enter a state of constant carbon loss.
“Those commercial cutaways are stuck in perpetual autumn, constantly just decomposing, decomposing, decomposing.”
The regulatory rules for large-scale peat extraction have been clear since 1994, with commercial producers operating on over 50 hectares subject to a dual consent process and need both planning permission from a local authority and a licence from the EPA.
Bord na Móna obtained nine licences and is the only operator to have active licences to date. Several other big players have made failed applications for EPA licensing, including Harte Peat for its Shrubbywood and Derrycrave sites, as they did not have planning permission at the time. Harte Peat had argued that planning permission was unnecessary because peat extraction had existed at the site from before modern planning laws were introduced.
According to the recent High Court ruling, Harte Peat applied for an EPA licence in “good faith” under the law as it was at the time, when the need for planning permission was quashed, before the regulations under which it applied were struck down and planning was again required. The court also held the EPA decision was defective in not addressing Harte Peat’s case that planning permission was unnecessary in law.
The overall lack of regulation of the industry is a problem, according to George Smith, the principal ecologist at Blackthorn Ecology, as this means that there are no regular inspections of bogs to ensure that there are no significant impacts from the likes of water contamination.
Smith, who worked on Ireland’s largest raised bog restoration project, said a more significant issue is the “lack of any requirements to restore a site to put it back into some sort of ecological condition after you are done with your peat extraction”. Licensed companies must carry out rehabilitation work monitored by the EPA and post-extraction conditions can be applied through the planning process.
“Ireland has some of the best raised bogs left in Europe and we have an international obligation to look after these fantastic habitats,” Smith said. “Allowing an unlicensed regime of peat extraction is moving in the opposite direction.”
Despite the clear downsides of an unregulated system, there has been difficulty bringing companies in line. Philip Nugent, Assistant Secretary in the Department of Climate, told the Joint Committee on Agriculture last July that there is “a history of widespread non-compliance” with the consent process.
“With regard to sites greater than 50 hectares that are operating at the moment, none are operating lawfully,” he said. This includes Harte Peat, with the High Court ruling in March that it was operating outside of the regulatory system and in breach of EU environmental law at four sites at Shrubbywood near Coole and Derrycrave, totalling just over 200 hectares.
As discussed above, Harte Peat had recently sought to regularise part of its operations at Shrubbywood and Derrycrave through its failed application for an EPA licence.
Harte Peat was set up in the late ‘80s to supply peat to the mushroom industry. It also operates an important peat processing facility in Co Meath, as well as producing peat for livestock bedding and Bord Bia approved peat for horticultural purposes.
By early 2020, the company was, in its own words, “one of the market leaders” in supplying peat to the international mushroom industry, exporting to 18 countries on five continents. It made a post-tax profit of €905,000 that year.
The company prides itself on its eco-credentials, stating that its “peat extraction process is in line with strict environmental and industry best practice directives” and says that it only harvests from its own private bogs “of no scientific or natural heritage interest”.
Yet, these bogs in question are close to the River Inny that is hydrologically connected to the EU-protected Lough Derravaragh of major ornithological importance for several species, including the Greenland white-fronted goose and whooper swan.
Concerns over the impact of the company’s activities on the protected area, as well as the extraction techniques used and the scale of operations laid the foundations of the EPA’s recent legal challenge.
Much of the EPA’s argument in the injunction proceedings rested on evidence gathered during multiple site inspections between 2018 and 2021, released to our investigative team through Access to Information on the Environment (AIE) requests.
In September 2018, for example, the EPA documented the “large scale excavation of peat” to a depth of five metres on the area at Derrycrave where the large body of water now sits. Further excavation was documented at another plot just across the R394 road during inspections in January and February 2019, with “significant peat extraction” during various inspections in 2020 and early 2021.
In May 2021, the EPA noted “extensive excavation to the base of the bog” here with the marl underlying the peatland left “exposed”. The inspection report noted that, at this stage, only an area of peatland of 120 metres in length remained in place between the excavated area and the R394 roadway separating the two core blocks where Harte Peat operates at Derrycrave.
Further extraction was noted in September and October 2021 and, using a specialist drone to calculate the depth of the peat layer, the Agency estimated that 235,000m3 of peat was extracted from this area of the Derrycrave site between December 2018 and August 2021.
Between the two Derrycrave sites, the EPA estimated that 796,000m3 of peat was removed by the end of 2021. The Department of Agriculture (DAFM) recently estimated that the domestic mushroom industry – a key client for Harte Peat - needs around 112,000m3 of peat annually.
Noteworthy asked Harte Peat for any comments on the EPA’s findings during its inspections. The company did not answer any of our questions.
Action ‘long overdue’
The 2022 EPA injunction case is not the first time that the EPA has tried to shut down Harte Peat’s operations at Derrycrave, taking similar proceedings in 2013 in a bid to halt activity on one side of the R394 roadway that rumbled on until 2018.
The court agreed with the EPA in a 2014 ruling that peat extraction at a number of different sites must be aggregated together to calculate the 50 hectare threshold – making it clear that Harte Peat’s total operations would match the threshold and come under EPA licensing requirements. Yet, Harte Peat won an appeal on a procedural point and the Agency agreed to set aside the 2014 order.
The case remained dormant until the EPA brought interim injunction proceedings heard over three days in November 2018. The EPA told the court that it had been made aware of recent intensification of works at Derrycrave and needed to act immediately to halt works.
Mr Justice Charles Meenan refused to grant the injunction and in May 2019, the EPA settled the case. It was agreed that Harte Peat would apply for a licence for its Shrubbywood and Derrycrave sites and not extract on any other areas pending the determination of the licence application that was then refused by the EPA.
Harte Peat challenged the EPA’s decision to refuse its licence application. While the High Court found that the EPA had failed to “properly explain” how it reached its conclusion and proposed to grant Harte Peat declaratory relief on this point, it found that the EPA’s decision was the correct one.
Despite the Court’s ruling, Tony Lowes of Friends of the Irish Environment (FIE) said that there was a wasted opportunity to act over a number of years that could have seen peat stay in the ground. FIE has monitored large-scale peat extraction for several decades, and has made various submissions and complaints to State and EU agencies over the years.
Lowes said the ruling came years after it first provided the EPA and other State bodies with details of the “industry’s widespread unauthorised activities”, including what he described as intensification of works at Harte Peat’s bogs as early as 2009.
Although the EPA claimed this intensification of works in the injunction case, Harte Peat vigorously denied any intensification of peat extraction during the hearing, and said that it “has been extracting peat over a lesser area and at a lesser rate than prior to [the May 2019 compromise agreement with the EPA]”.
‘Deep excavation of peat’
Records released through AIE requests show letters from both FIE and An Taisce in February 2009 outlining concerns about works on Harte Peat’s bogs at Shrubbywood and the potential impact on raised bog habitats and Lough Derravaragh.
FIE’s letter to the EPA’s licensing unit on 23 February 2009 outlined its concern that more traditional peat milling techniques used at the site had evolved “into mass excavation of several metre[s] depth of peat”.
Harte Peat recently told the High Court that the mushroom industry requires the extraction of black peat from a deeper level for use as mushroom casing as opposed to milled brown peat from the surface for other horticultural uses.
The EPA told us that it “does not agree that there was a lack of action on its part” as argued by FIE, and said that it carried out its own investigations and brought legal proceedings “as expeditiously as possible”.
Records released show that the EPA did contact Harte Peat by letter on 3 March 2009 stating it was the Agency’s view that “your company’s operations may fall within the scope” of the licensing regime and requested details on the areas being harvested, drained and under restoration.
In a reply on 12 March 2009, the company said it was active on five distinct sites “not contiguous to any other site”, with each below the 50 hectares threshold for an EPA licence. The five sites included three at Derrycrave, combined totalling around 53 hectares, 40 hectares at Shrubbywood and a further 23 hectares in Coole. It did not provide details of any areas under restoration.
“We have obtained specific legal and planning advice in respect of each of these sites and are not subject to obtaining an integrated pollution licence,” the letter stated.
On 16 June 2009, the EPA confirmed to FIE that the matter was with the enforcement team for investigation and led to evidence gathering for the EPA’s 2013 High Court challenge. The Agency said that the litigation process “requires due process and is often subject to significant delays” that are “outside the control of the Agency”.
FIE, other NGOs and peatland experts who spoke to Noteworthy also outlined concern that local authorities – responsible for the planning permission element of the dual regulatory system – have largely failed to play their role in tackling large-scale extraction.
Satellite imagery of extraction at Derrycrave over time
Local authorities ‘not pulling weight’
The need for planning permission largely hinges on rules from Brussels contained in the Environmental Impact Assessment (EIA) Directive, transposed into Irish law in the 1980s. The assessment must be carried out through a development consent process, and, in Ireland, this is the local authority planning system.
Since December 2001, the mandatory threshold for EIA for peat extraction has been set at 30 hectares, meaning that any extraction above this level must automatically go through the planning process. Below this level, the need for EIA is assessed on a case-by-case basis.
In 2020, An Taisce outlined its concern to the National Parks and Wildlife Service (NPWS) that companies are operating “outside any regulatory control to the extent that there is not even a register of the extent and annual tonnage of extraction from the different sites involved”.
Noteworthy asked all local authorities with large areas of peatlands if they kept any form of register to track the number of commercial operations and the amount of peat extracted on an annual basis.
None of the local authorities have any form of registry or accounting system, with many pointing us towards their planning portals even though it has been well established that no large-scale operator in Ireland has planning permission for peat extraction.
However, we have discovered that all local authorities were contacted by the Department of the Environment in June 2013 seeking information on the planning status of 126 extraction locations above 30 hectares.
The Department carried out the survey based on satellite data to try and identify peatlands under industrial extraction as part of its response to an infringement case brought by the European Commission for failure to ensure large-scale extraction was subject to EIA.
The satellite imagery was largely collated by Friends of the Irish Environment as part of a complaint to the Commission that influenced the infringement case.
The local authority replies were collated in a spreadsheet that was released to FIE and shared with Noteworthy. While no harvesting was noted in some locations, over 100 large sites were identified in four counties alone – Kildare (40), Offaly (31), Westmeath (18) and Tipperary (16).
While some sites had permission for roadways, loading areas, or peat processing facilities, none had permission for peat extraction. In almost 50 cases, Councils directly said that planning permission was required or that environmental impact assessment – and therefore planning – was required.
“So the information is there, in other words, held by central government, as part of a large exercise that they went through,” UCD’s Dr Andrew Jackson, an Assistant Professor at the UCD Sutherland School of Law, told us.
Dr Jackson, who recently published a book on EU environmental law, said it is “notable that enforcement action really does not appear to have followed from the local authorities”.
“So, whilst there is a welcome and positive apparent sort of ramping up of enforcement activity from the EPA, I don’t think that is matched on the local authority side. And the local authority side, of course, captures all peat extraction that needs EIA.”
In 17 of the 18 sites identified in Co Westmeath, the Council found that planning permission was required for the extraction of peat, with sites either over the 30 hectare threshold or very close to protected nature areas.
While the names of companies on the list are redacted, the investigative team identified a case related to one of Harte Peat’s sites in the spreadsheet. We did this by cross-referencing planning reference numbers, addresses and enforcement file numbers, with publicly available planning files and enforcement records released to Noteworthy by the Council.
In the case concerning Harte Peat, Westmeath County Council stated that the “extraction area is above threshold and therefore requires planning permission” and that there was also “extensive enforcement history on site”.
Analysis of records released to the investigative team show that there were extensive measures taken to examine Harte Peat’s planning status since the early 2010s but that much of this enforcement action went only as far as the issuing of warning letters to the company.
The records show that the NPWS was also hot on the heels of the company with persistent warnings sent to the Council over the past decade about both the Shrubbywood and Derrycrave sites.
NPWS concerns raised
The NPWS has had its concerns about Harte Peat for multiple years, highlighted publicly in a submission from its parent Department on Harte Peat’s failed 2019 application for an EPA licence.
Records released to Noteworthy show the local ranger Tríona Finnen tried to garner the local authority’s support as far back as April 2013 when she submitted a planning enforcement complaint to “investigate the planning status of peat extraction activities at Derrycrave”.
According to records released by the Council, a warning letter was subsequently issued to Harte Peat in June 2013 indicating that the company’s extraction activities may be unauthorised development.
In July, the company’s legal team, Wilkie and Flanagan Solicitors, replied to the Council, arguing that Harte Peat was exempt from the need for planning permission as peat extraction commenced on the site prior to the introduction of modern planning laws in 1964.
This argument was repeated by counsel for Harte Peat in the 2022 legal case, submitting first, that planning permission was unnecessary because peat extraction had existed at the site from time immemorial, and long before the modern planning regime; and second that it had applied for an EPA licence in “good faith” under the regulations in place at the time under which the need for planning permission was removed.
Although no further enforcement action was taken by the local authority in this instance, NPWS concerns remained in preceding years as claims surfaced that Harte Peat intensified works at its Derrycrave site – claims that Harte Peat denied in the High Court.
‘Down to the marl’
In notes from an inspection on 13 September 2016, Finnen wrote that peat excavation was already taking place vertically “down to marl”. Finnen elaborated on her findings in an email to Westmeath County Council, stating that, instead of harvesting the peat by ridge rows as they have done in the past, Harte Peat was now “excavating downwards creating a substantial hole covering about one-quarter of the site”.
“The underlying marl/gravel substrate is obvious in places,” she said, asking the Council to examine the issue due to planning and water quality concerns. Further inspections were carried out by Finnen over the coming months, sometimes accompanied by Council staff.
Harte Peat explained the necessity for excavating black peat by telling the High Court that the mushroom industry requires the extraction of black peat for ‘mushroom casing’ as opposed to milled brown peat.
In February 2017 Finnen told the Council she was concerned that, once extraction ceased, “the lands will flood leaving behind a significant hazard in the form of a deep lake adjacent to the undermined road”. The NPWS continued to inspect at Derrycrave until at least December 2019 where it found there was “no treatment” of “silt laden runoff” going into the drain to the weir which leads to the river Inny.
Noteworthy asked Harte Peat for any comments on the NPWS’s findings during its inspections. The company did not answer any of our questions. When asked what further action, if any, the Council took, it stated that due to the legal actions taken by the EPA over the course of several years, it was not in a position to take further enforcement proceedings.
Companies argue exemptions
Harte Peat and other large-scale peat extractors have long argued that they are exempt from the need for planning permission, irrespective of the EIA Directive, as peat was first cut on the bogs where they operate prior to 1964 when modern planning laws came into effect.
Certain exemptions are in place for some types of peat extraction where traditional hand-cutting occurred prior to 1964, with various legislation and regulatory changes over the years altering requirements to fall under the regulatory system.
In the alternative or in addition to these pre-1964 arguments, peat extractors would often try to rely on the complex ‘exempted development’ rules in the planning code to argue that their activities were exempt from the need for planning permission.
In her recent judgement, Ms Justice Siobhan Phelan did find that, while Harte Peat was in breach of EU law, its attitude to planning control and its level of engagement with that process, “while clearly not what it might have been, should not even now be characterised as mala fides”.
“In my view it is not HP’s [Harte Peat’s] fault that the law in relation to peat regulation in the State has been in a state of flux,” she said. “The responsibility for the State’s failure of effective regulation lies elsewhere.”
Various State bodies may have also given the company the impression that there were no concerns with its operations. For example, throughout the EPA’s investigative processes, the Department of Agriculture continued to carry out inspections of Harte Peat’s processing facilities and issue phytosanitary certificates to declare if peat is free from pests or disease prior to export.
In a statement, the Department said that phytosanitary requirements “do not include a requirement to certify whether the peat was harvested legally”. It continued: “If peat is being extracted illegally it is a matter for the Local Authority and/or the EPA to investigate and deal with accordingly.”
The company has also been backed by Enterprise Ireland and brought on a 2008 trade mission to South Africa that resulted in the signing of a distribution deal to supply 35% of South Africa’s mushroom industry with peat casing.
Enterprise Ireland has also paid Harte Peat a little over €50,000 in grants and other material support since October 2012. It said that it undertakes a range of checks and verifications of companies when providing support, including, for example, commercial, market, financial and technical assessments.
Legal complexity of system
According to UCD’s Dr Andrew Jackson, however, the industry has used the complexity of the law to their advantage as a means to argue against the need for development consent. “You had an entire industry arguing ‘none of us need planning permission to do what we’re doing’,” he said.
Yet, at the same time, Dr Jackson said that planning requirements were clarified in 2011 with updated planning laws to the effect that any peat extraction operations could no longer be exempted development – exempt from the need for planning permission – if it was deemed that the peat extraction was likely to have significant effects on the environment.
This was tested by Friends of the Irish Environment through a little-used planning rule called a Section 5 determination that asks the relevant planning authority to make a formal determination as to whether a specific development is or is not exempt from the need to obtain planning permission.
FIE submitted Section 5s for Harte Peat, Bulrush Horticulture and Westland Horticulture in early 2012. In all An Bord Pleanála’s inspector reports, it is stated that peat extraction that requires environmental assessment does not amount to ‘exempted development’ from 21 September 2012 “even if they are being carried out on the same land and in the same manner as peat extraction works that were exempted development before that date”.
“From September 2012, I think it’s been pretty clear that large-scale industrial peat extraction is not exempted development because it’s hard to see how you could argue that it doesn’t need an environmental impact assessment,” Dr Jackson told us.
While the inspector’s report in the Harte Peat case stated that the activities required environmental assessment and planning permission, the Board found that, in the absence of certainty about ownership of the lands at the time, it could not make a conclusive decision and dismissed the case.
It did find that environmental assessment and planning permission were required in the cases of Bulrush and Westland who both challenged these decisions through the courts with the cases lingering on for several years.
Both companies argued that the Board had erred in law by finding that the EIA Directive applied to peat extraction whereas both companies claimed operations commenced prior to domestic legislation giving effect to the EIA Directive coming into force.
According to records released to Noteworthy, the potential for a ruling upholding the Board’s decisions was deemed a serious threat to the industry by the companies – and by the State.
State works on new regulations
As early as late 2016, with the legal cases still rumbling on in the background, the State sought to prepare new regulations to create a streamlined regulatory system, with input sought from the industry, as well as the EPA, NPWS and An Taisce.
The concerns expressed by the main industry players were summed up in a submission by Westland. It said that there was “a very real risk that the [High Court case] outcome would result in all major commercial peat extraction being adjudged to require planning permission”.
This, it feared, would lead to enforcement proceedings “against the entire industry” by planning authorities or “interested anti peat-extraction parties”. It added: “The knock-on effect of such a judgement, if it were to issue, would create an immediate mischief for the entire peat extraction sector.”
In February 2018, the court ruled against the companies, upholding An Bord Pleanála’s decisions. The companies also failed in an appeal bid in December 2018 and new regulations were swiftly brought in just one month later exempting all extraction from planning permission. It was under this system that Harte Peat has applied for its EPA licence in 2019.
Anything above 30 hectares would fall solely under a new EPA licensing regime and a grace period was put in place for companies to continue to operate without planning permission or EPA licences for up to 18 months.
This system did not last long, however, following a legal challenge in April 2019 from Friends of the Irish Environment, arguing that the new system was not in line with EU environmental law and would have essentially provided peat companies with an “enforcement holiday”.
In July 2019, the European Commission also expressed concern that the new regulations “gives operators more time for extraction activities that are in breach of EU law” and in September 2019 the High Court quashed the regulations, deemed incompatible with EU environmental law.
The judgement reaffirmed that commercial peat extraction absent planning permission constitutes unauthorised development, following which several large players ceased operations. The ruling also played a major role in Bord na Móna’s decision to shut up shop on its bogs last year.
Despite the clear decisions from An Bord Pleanála and the High Court reaffirming the regulatory requirements since at least September 2012, there is still strong support for the industry based on concerns raised by peat companies and its clients in the horticultural sector that supports 17,000 jobs.
This concern culminated in widespread political and media attention last September when almost four tonnes of peat imported from the Baltic region arrived at Drogheda Port destined for the horticultural sector. Reporting of the shipment led to a wave of calls from politicians for emergency legislation to allow the industry to recommence harvesting in 2022.
With the State now baulking following the 2019 High Court ruling, a group of Fine Gael and Fianna Fail Senators launched a Bill last November that proposed a planning derogation for extraction for horticultural purposes potentially as far out as 2030. It also proposed to pause any pending enforcement action while the derogation was in place.
‘Serious legal issues’
The Bill was slammed by legal experts as incompatible with EU law and fell after the Government opposed it. Speaking in the Seanad at the end of November 2021, the Minister of State with responsibility for horticulture Malcolm Noonan said that the Attorney General identified “serious legal issues with the Bill in terms of EU environmental law”.
While the State did not support the Bill, it did start a working group in 2021 on the future of horticultural peat. The group included big industry players such as Bord na Móna and Growing Media Ireland, as well as farming bodies, trade unions, the mushroom sector and environmental groups.
It recommended that peat be allowed to be extracted “from existing ‘ecologically destroyed’ bogs” already prepared for harvesting. This would require legislative amendments to allow for large-scale extraction that it said is “absolutely critical for the 2022 season”.
Conservation groups in the working group have distanced themselves from its findings, with FIE and the Irish Peatland Conservation Council stating that they do not support the report.
It is also set to commission an independent expert to ascertain the level of horticultural peat stocks available to growers. Bord na Mona recently said that it has up to 2,000 tonnes of high grade horticultural peat available in stockpiles that will be made available.
Looking to the future
In the case of Harte Peat, the High Court is set to hear arguments this Friday about any potential delay on the stay on works at Derrycrave and Shrubbywood to allow for an appeal from the company.
The State is facing its own potential legal challenge, with fresh infringement proceedings brought by the European Commission last year. The Commission told Noteworthy that its main concern remains “the lack of any environmental impact assessments for peat extraction activities in Ireland”.
One thing is clear with the recent High Court rulings – the regulatory system for large-scale extraction is robust, on paper at least. Now, if any companies wish to operate within legal parameters, they must go through a multi-stage process to gain retrospective planning permission from An Bord Pleanála, followed by fresh planning permission for any further activities, and then EPA licensing.
The industry has criticised this process as it can take several years to complete, but UCD’s Dr Andrew Jackson finds little sympathy for companies, most of whom have extracted peat for decades without any form of permission or environmental impact assessment, and who he doubts would secure permission now due to the statutory tests they would need to pass.
“While the legislature and regulators are clearly not blame free, in my view, the situation the peat companies find themselves in now is objectively of their own making. They fought regulation for years rather than engaging with it. And once they were forced to engage with it, they found themselves in a fix because they’d operated without permission for years.”
The EPA is currently weighing up taking action against other companies operating on areas above 50 hectares, with 12 operators inspected in 2021. The Agency said it “will be considering enforcement action against such operators where they continue to extract peat in the absence of an EPA licence”.
As part of its PEAT SAKE series, Noteworthy has already examined extraction of peat for horticultural use and illegal peat cutting on protected bogs without State permission. You can read these articles here.
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