The Court of Appeal has refused to pause a High Court order requiring a firm to cease wet peat extraction from parts of its midland bogs.
Harte Peat Limited argued justice favoured suspending the order’s effects on a 26-hectare area of bogland until its full appeal against the High Court’s ruling has been determined.
In May, the Environmental Protection Agency (EPA) secured an injunctive order against the company, after Ms Justice Siobhán Phelan found a “material and significant” breach of European Union environmental law due to a lack of planning permission, and an accompanying Environmental Impact Assessment (EIA), for the activities on some of the land.
She ruled Harte Peat, which supplies its product to Irish mushroom growers, must cease unauthorised peat extraction at some areas west of Castlepollard, in Co Westmeath.
There was a “major environmental and ecological concern” for Lough Derravaragh and adjoining surface waters which have been contaminated with peat from upstream extraction, the judge said.
Extraction from some parts of the land went down five metres to the marl, which means this portion of bog is “unlikely to ever regenerate”, she added.
On Tuesday, a three-judge appeal court found it was not appropriate to grant a stay at this stage, but Harte Peat should not be shut out from renewing its application later, as the complexion of the appeal could change.
Risk of environmental damage
Writing together, Ms Justice Mary Faherty, Ms Justice Ann Power and Mr Justice Maurice Collins considered there was a real risk of damage to the environment and to the public interest if the High Court’s injunction was paused, only for it to be subsequently upheld upon determination of the appeal.
To accede to Harte Peat’s request, the court would have to be positive the grant of a stay would not be permitting the firm to engage in further peat extraction in breach of EU law. The court had not reached this “no doubt” test.
The judges noted the appeal hearing has not yet concluded. After listening to some argument, the court decided it should hear from the Attorney General on certain issues, a step that has prolonged the determination of Harte Peat’s appeal.
The court said it cannot predict when it will give its overall ruling, as it may be appropriate to refer issues to the Court of Justice of the EU, which would further delay a conclusion.
The order may impact adversely on Harte Peat, said the court. However, there was nothing to outweigh the fact a stay would allow Harte Peat to extract peat from an area without planning permission when there was a “significant basis” for thinking this activity would be in breach of EU law, having regard to the High Court’s findings, the judges found.
Licence
The appeal arises from two sets of proceedings heard together. Harte Peat brought a case against the EPA seeking judicial review of its refusal to consider its application for an Integrated Pollution Control (IPC) licence covering 73 hectares of bog lands in counties Westmeath, Cavan and Monaghan.
The EPA responded by applying for the injunction, pursuant to the EPA Act, to stop alleged unregulated activities being carried out in ongoing breach of European law due to the company operating without an IPC licence and without planning permission, which works as the vehicle under which an EIA is carried out.
Harte Peat had argued it did not need planning permission as its extraction was currently limited to an area of land of about 26 hectares, which is less than the 50-hectare threshold where a need for such permission arises.
Ms Justice Phelan agreed with the EPA that the activities were licensable as the aggregated hectarage of the firm’s “hydrologically linked” peatlands exceeded the limit.
She also found the EPA failed to adequately reason its decision to refuse Harte Peat an IPC licence.
In appealing her orders and findings, Harte Peat argues, among other legal grounds, that the judge erred in law by considering the aggregation of bog lands. It also claims its activities do not require planning permission because they predate October 1964.
The appeal will resume on Thursday when the court is to hear from the Attorney General and further submissions from the parties.
