Bulrush Horticulture Ltd. v An Bord Pleanala & ors; Westland Horticulture Ltd. & orsv An Bord Pleanala & ors

Factual and Procedural Background

These proceedings comprise two judicial review applications involving similar facts and legal issues. The first proceeding was initiated by Plaintiff A, and the second by Plaintiffs collectively referred to as Plaintiff B. Both sought judicial review of decisions made by Defendant regarding the status of peat extraction and associated activities on lands in County Westmeath.

By orders dated May and June 2013, the Plaintiffs were granted leave to apply for judicial review challenging Defendant's decision that certain peat extraction activities were exempted development until a specified date, after which they were considered development requiring planning permission. The Plaintiffs sought orders quashing this decision, declarations that it was ultra vires and invalid, and that it was unreasonable.

The High Court heard these matters and dismissed the applications by judgment delivered in February 2018. Subsequently, Plaintiffs applied for certificates that the Court's decisions involved points of law of exceptional public importance and that it was desirable in the public interest for appeals to be taken to the Court of Appeal on specified points of law relating to the application of environmental impact assessment (EIA) and habitats directives to peat extraction activities.

Legal Issues Presented

1. Whether continuation of peat extraction on land exceeding 30 hectares, previously enjoying exempted development status before the transposition of the EIA and Habitats Directives, is subject to the requirements of those Directives or relevant provisions of the Planning and Development Act 2000 and associated regulations, thereby negating the exemption.
2. Whether peat extraction not occurring within a new or extended area can be regarded as sub-threshold development subject to environmental impact assessment obligations under the Act and regulations.
3. Whether the provisions of the EIA and Habitats Directives apply to peat extraction projects lawfully commenced as exempted development prior to the transposition deadlines of those Directives.
4. Whether an EIA can be required under the Act for peat extraction development other than that involving a new or extended area of 30 hectares or more.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the relevant statutory provisions, including section 4(4) of the Planning and Development Act 2000, which excludes exempted development status where an environmental impact assessment or appropriate assessment is required. The Court acknowledged the significant implications of its interpretation for the peat harvesting industry, recognizing the point of law as one of exceptional public importance.

However, the Court determined that the statutory requirement for certification also demands that the point of law be uncertain to the extent that it warrants resolution by the Court of Appeal. The Court found that its interpretation was consistent with established case law and that the alleged conflicting judicial views did not create sufficient legal uncertainty.

The Court further noted that the principal issue of whether an EIA is required for peat extraction involving new or extended areas of 30 hectares or more was clearly addressed in its judgment, negating uncertainty. The Court rejected Plaintiffs' submission that peat extraction constituted "use" development rather than "works" development, relying on Supreme Court precedent.

Additionally, the Court considered affidavits indicating ongoing legislative developments aimed at addressing the industry's concerns, concluding that the proper course for Plaintiffs was legislative change rather than further judicial clarification. Consequently, the Court refused to certify the points of law for appeal.

Holding and Implications

The Court DENIED the applications for certificates that its decisions involved points of law of exceptional public importance warranting appeal to the Court of Appeal.

The direct effect of this decision is that the earlier dismissal of the judicial review applications stands, and no appeal on the specified points of law will proceed. The Court indicated that the issues raised require legislative intervention rather than further judicial determination, and no new legal precedent was established by this refusal to certify.