Large scale peat extraction: High Court places a stay on implementation of new Regulations

Introduction In the recent judgment of the High Court in Friends of the Irish Environment v Minister for Communications, Climate Action and Environment and Ors, the High Court granted an interlocutory injunction restraining the coming into effect of the Planning and Development (Exempted Development) Regulations 2019. The injunction will apply pending the outcome of a hearing to take place in early September, in which the validity of the Regulations, along with the EU (Environmental Impact Assessment) (Peat Extraction) Regulations 2019, together referred to as the 2019 Peat Regulations, are being challenged. In giving judgment, Mr. Justice Simons stated that the discretion to grant such an injunction should be “most sparingly exercised”. We analyse the decision below. Background The 2019 Peat Regulations are designed to replace the pre-2019 development consent regime for peat extraction, provided for under the Planning and Development Act 2000. The 2019 Peat Regulations provide that peat extraction which requires assessment for the purposes of the EIA Directive and is of 30 hectares or more in size will be subject to a single development consent to be issued by the Environmental Protection Agency (‘EPA’). The core characteristic of the 2019 Peat Regulations for these proceedings was that they would introduce a transitional period of at least 18 months within which there would be no requirement to obtain development consent for large scale peat extraction activities (involving areas of at least 30 hectares). Friends of the Irish Environment are challenging, by way of judicial review, the validity of the 2019 Peat Regulations. Pending this challenge being determined by the High Court, Friends of the Irish Environment applied for an injunction restraining implementation of the 2019 Peat Regulations. Proceedings before the High Court From the outset, both Friends of the Irish Environment and the State respondents were largely in agreement concerning the legal test for interlocutory injunctions in judicial review proceedings. It was accepted that:

• Friends of the Irish Environment had reached the threshold of an “arguable case”;
• damages were an inadequate remedy in the circumstances; and
• following Pesca Valentia v Minister for Fisheries and Forestry, that the courts have jurisdiction to suspend, by way of interlocutory injunction, the operation of legislative provisions.

The State Respondents asserted that a heavy burden lay on the Applicant, in circumstances where the relief sought included the suspension of legislative provisions. Friends of the Irish Environment submitted that the decision of Dowling v Minister for Finance had an effect on the legal test applicable in this case. Essentially, they argued that some limited analysis should be carried out into the strength of the Respondent’s defence and the court must give  consideration to whether an arguable defence is disclosed. The core challenges raised by the Applicant were that:

• It was unlawful for a Member State to dispense, even temporarily, with the obligation to comply with the EIA Directive.
• The legal effect of the 2019 Peat Regulations’ transitional period was that unlicensed peat extraction, which should be subject to an assessment under the requirements of the EIA Directive, would be allowed to continue for at least 18 months. The Applicant claimed that this was a flagrant breach of the Directive and that there was no arguable defence to it.
• The prolonging of unauthorised and unassessed peat extraction had the potential to damage the environment and human health.

The State Respondents claimed that:

• Granting the injunction sought would result in the suspension of legislation which is presumed to be valid. They argued there was a heavy burden on the Applicant to demonstrate why the legislation should not to be enforced.
• The injunction would lead to uncertainty. It would take time for the planning authorities to investigate and bring enforcement actions pursuant to the pre-2019 regime and these actions would be unlikely to conclude before the full hearing of this matter.

Decision of the High Court The Court partially granted the injunction sought. In doing so, the Court accepted that an injunction made against secondary legislation (i.e. regulations) should be sparingly made. The Court accepted that normally consideration of the merits of the case in injunction applications is limited to confirming that an arguable case has been made out. However, the Court noted that at times it is appropriate to assess the strength of the underlying merits of the case and assess whether there is an arguable defence. Ultimately the Court concluded that the greatest risk of injustice lay in refusing to grant an interlocutory injunction and that there were significant factors in favour of exercising the exceptional jurisdiction to suspend implementation of legislation. In its reasoning, the Court noted:

1. Much of the EIA Directive and CJEU caselaw appeared to support the Applicant. The practical effect of the 2019 Peat Regulations appeared to be prima facie in breach of the EIA Directive, in particular Articles 2 and 10A, and Article 6(3) of the Habitats Directive. The Court noted that the European Court of Justice suggests that a temporary derogation from EU environmental law, like the transitional period here, would only be permissible if overriding considerations linked to environmental protection arose. The Court considered it unlikely that such considerations would arise here.
2. The Court observed that, at this interlocutory stage, it was unclear whether there was an arguable defence to the challenge. It said that the Respondent’s submissions at the interlocutory stage did not address the Applicant’s substantive allegations at all, other than to concede that the Applicant had established an arguable case. Justice Simons concluded that the Respondents had not, as of the injunction hearing, offered any insight into how they intended to justify the effects of the 2019 Regulations.
3. The Court observed that the EPA’s enforcement powers would not apply during the transitional period and this would have the effect of giving rise to a lacuna in the regulation of peat extraction in the State.
4. If well-founded, the alleged breach of the EIA Directive would constitute a significant failure by Ireland to meet its obligations as an EU Member State.
5. If the injunction was refused, unlicensed peat extraction would be allowed to proceed throughout the summer harvesting period without any requirement to obtain development consent. The Court considered that this could have damaging environmental effects.

Order of the High Court Ultimately, the Court granted an injunction restraining the implementation of the Planning and Development (Exempted Development) Regulations 2019 only.  These are the Regulations that made the extraction of peat of an area of over 30 hectares, for which an EIA is required, exempted development.  As the other Regulations introduced the new licensing regime and will not come into effect for a period of 18 months, there was no need to restrain the implementation of those Regulations prior to the hearing. Mr. Justice Simons ruled that, given the exceptional nature of the injunction, it could not remain in place for long and he listed the full hearing of the challenge for the first week of September 2019.