Tuesday 13 March 2018

Court Ruling Leaves Land Use Uncontrolled

The High Court has confirmed An Bord Pleanala’s ruling in 2013 which dismissed a request to determine if industrial peat extraction required planning permission on raised bogs in the midlands because the owners are unknown.
The decision means that industrial peat extraction can continue indefinitely on  a 167 hectares raised bogs undergoing extraction at in County Westmeath in spite of comprehensive judgment on 8 February, 2018 which determined that industrial peat extraction requires planning permission.
In that judgement, Justice Meenan rejected the arguments of Bulrush Horticulture Ltd and Westland Horticulture Ltd. that planning permission was not required for their industrial peat extraction. The companies’ industrial extraction have been ongoing on 365 hectares of raised bogs in the northwest of Westmeath between Lough Derravaragh and Lough Sheelin.
The Court concluded that it was ‘very difficult to see how the “excavation” of peat can be anything other than “works” under the Planning Acts.’ The companies were the subject of referrals to An Bord Pleanala by Friends of the Irish Environment [FIE] in 2012. The companies informed the Court on Friday that they will be seeking leave to appeal these decisions to the Supreme Court.
These cases are considered landmark judgments in relation to the ongoing industrial extraction of peat from the raised midlands bogs which had to date been considered exempt from planning permission.
FIE based their test cases on site visits initiated in 2009 and a satellite survey of exposed peatlands commissioned by them from University College Cork in 2010. More than 126 sites of over 30 hectares were identified and substantially confirmed by a 2013 questionnaire sent to 19 local authorities by the Department of the Environment.
However, Justice Meenan dismissed the groups referral in this third case because the statutory provisions require that those affected by the determinations of An Bord Pleanala ‘have an opportunity to make observations or submissions as they may wish.’  ‘A determination that was once an exempted development is no longer exempt can have serious consequences for the owners/occupiers involved’, the High Court said.
During the referral by FIE to determine the planning status of the lands involved in this case, Westmeath County Council had submitted 13 land registry folios which indicated 9 parties involved with numerous subdivisions which ‘may have a different occupier engaged in the extraction of peat.’ Therefore the Court concluded that there was ‘inadequate information to determine the owner and ensure their landowners constitutional rights were not breached.’
FIE had argued that in cases where the ownership of land was uncertain, the Board had the statutory powers to obtain the necessary information, failing which provisions existed whereby notice could be given to the relevant persons by affixing a sign ‘in a conspicuous place on or near the land’.
Justice Meenan ruled that the Boards refusal to do so was not unreasonable, ‘given the situation that presents itself from the folio maps in question.’
In a statement, FIE said that ‘The impact of the industrial extraction of turf in the midlands on this scale has been devasting to wildlife and to water quality, destroying some of Ireland’s most valuable archaeological sites as well losing vast wetlands which act as sinks absorbing carbon to control climate change.’
‘The Courts decision gives a green light for these companies to continue this destruction without any assessment, conditions, or control, in spite of last month's ruling that the activity requires planning permission.’


9 March Judgment requiring land owners to be notified
8 February Judgment confirming planning permission required

Article by Tony Lowes of Friends of the Irish Environment

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