On 16 March 2022, Ms Justice Phelan (Phelan J), delivered judgment in the High Court in Harte Peat LTD -v- Environment Protection Agency & Ors [2022] IEHC 148.

As set out below, in this case the High Court considered the discretion open to the Court in deciding whether or not to order the cessation of peat extraction. It decided to do so, taking into account the public interest in environmental protection served by making the order sought.

Background and procedural history  

At issue in the judgment were two sets of proceedings between the Environmental Protection Agency (EPA) and Harte Peat Limited (HP) relating to peat extraction carried out by HP on lands in Westmeath, Cavan and Monaghan.

The first set of proceedings concerned a judicial review taken by HP against the EPA in which they sought to quash the EPA’s decision to refuse HP’s application for an integrated pollution control licence (IPC licence). The second set of proceedings were taken by the EPA against HP, relative to section 99H of the Environmental Protection Agency Act 1992 (EPA Act), seeking injunctive relief and other various orders for the cessation and further prohibition of the extraction of peat without an IPC licence and planning permission by HP on the above mentioned lands.

HP contended that, as the user was pre-1964, they were not required to seek planning permission. They also argued that its application for an IPC licence was in compromise of previous proceedings and did not mean that the extraction activity was unlawful.

Section 99H of the EPA Act

Section 99H of the EPA Act allows on application by any person:

“to the High Court or the Circuit Court, that Court is satisfied that an activity is being carried on in contravention of the requirements of this Act, it may by order—

(a) require the person in charge of the activity to do, refrain from or cease doing any specified act (including to refrain from or cease making any specified emission),

(b) make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate”.

Phelan J neatly summed this procedure up as “a self-contained statutory procedure whereby the Circuit Court or High Court can make orders for the cessation and prohibition of any specified act where satisfied that an activity is being carried out in contravention of the EPA Act”.

High Court decision

Phelan J stated that the two main issues for her determination were as follows:

1. Whether the EPA was correct to conclude when dealing with the IPC licence application that planning permission was required for the extraction of peat by HP at the sites it operated, regardless of the sites pre-1964 user, consequent upon the scale of the operation and the acknowledged requirement that such extraction is subject to Environmental Impact Assessment (EIA)
2. Whether the operation of HP’s business without an IPC licence was in breach of the EPA Act such that she had jurisdiction to make the orders sought by the EPA.

Phelan J concluded in turn:

1. As a matter of EU law, planning permission was required for the extraction of peat activity to which the IPC licence application related once it was accepted that an EIA is required
2. An IPC licence was required for HP’s extraction activity as the threshold under the EPA Act (50-hectares) was met. Therefore, HP was carrying on an activity in contravention of the EPA Act

Exercise of Court discretion in granting statutory injunctions

As Phelan J was satisfied that HP required an IPC licence, and that an activity was being carried on in contravention of the EPA Act, she had to decide whether or not to exercise the power vested in the court under section 99H of the EPA Act, to:

(a) “require the person in charge of the activity to do, refrain from or cease doing any specified act (including to refrain from or cease making any specified emission),

(b) make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate.”

Phelan J noted that the jurisdiction of the court under section 99H of the EPA Act was analogous to that of the court under a section 160 planning injunction under the Planning and Development Act 2000 (PDA). Therefore, she considered the various authorities cited to her in relation to the exercise of discretion under section 160 of the PDA to be of persuasive force in guiding the principled exercise of her power under section 99H of the EPA Act.

In considering the exercise of discretion Phelan J noted it was “well established that there is an onus on the Court to ensure conformity with EU environmental law”. In relation to the discretionary factors applicable Phelan J cited those identified by the Supreme Court in Meath County Council v Murray [2018] 1 IR189 and amplified in An Taisce v McTigue Quarries [2018] IESC 54. A summary of which is as follows:

1. The nature of the breach
2. The conduct of the infringer
3. The reason for the infringement
4. The attitude of the planning authority
5. The public interest
6. The conduct of the applicant
7. The issue of delay
8. Personal circumstances of the respondent
9. The consequences of an order

Phelan J duly considered each of the above factors and applied them to the facts and circumstances of the second set of proceedings. Notwithstanding the factors that militated against making orders requiring the peat extraction to cease, Phelan J considered the countervailing factors that supported making the orders sought under section 99H of the EPA Act to be persuasive. In particular, the public interest in safeguarding the environment and the duty on the court to ensure compliance with the requirements of EU environmental law.

Therefore Phelan J concluded the court was required to intervene and make orders under section 99H of the EPA Act in respect of the peat extraction activity, and invited submissions from the parties in relation to the appropriate form of same.

Conclusion

At the time of writing we understand that this decision is the first such judgment in Ireland concerning section 99H of the EPA Act and the exercise of judicial discretion in a manner consistent with EU law making it significant.  A link to the full judgment can be found here.

For more information on this topic, please contact Alison Fanagan, Consultant, Síofra Heffernan, Solicitor or any other member of ALG’s Environmental & Planning team.

Date published: 26 July 2022