An environmental group has lost its Supreme Court appeal over An Bord Pleanála's refusal to decide whether peat extraction works on some 410 acres in Co Westmeath require planning permission.
The board refused to accept Friends of the Irish Environment’s referral concerning the status of the works on the basis of difficulties identifying the exact owners/occupiers of the lands and precisely who was engaged in peat extraction.
After the High Court upheld the refusal, Friends of the Irish Environment secured a "leapfrog" appeal direct to the Supreme Court on the basis it raised an issue of general public importance related to the steps required to be taken to identify the owners/occupiers.
In a judgment delivered electronically on Thursday, the five judge court unanimously dismissed the appeal.
Noting the protection of peatlands has been given a “high value”, it stressed the environmental group is not precluded from making a further referral if the identities of the owners/occupiers are established.
Giving the judgment, Ms Justice Elizabeth Dunne said the group's referral was made in August 2010 under section 5 of the Planning and Development Act 2000.
Additional information
It referred certain peat extraction works on 410 acres in the townlands of Lickny/Newcastle, Doon and Carlanstown in Co Westmeath to Westmeath County Council to seek a determination from the board whether such peat extraction activities were or were not exempted development.
After the board sought additional information concerning owners and occupiers, the ouncil provided 13 Land Registry folios indicating some nine parties were involved in ownership of the lands plus maps showing the lands contained numerous sub-divisions.
The board wrote to the nine parties but the responses did not advance its knowledge of the relevant owners/occupiers and, in some cases, there was no response.
Following an inspector’s report, the board dismissed the referral. It said, having regard to the different parcels of land identified which appeared to be in multiple ownership in varying size of individual holdings, with “numerous” parties involved, and the absence of certainty in regard to ownership or individual circumstances of the plots, the question referred was not detailed enough to enable the Board carry out its obligations.
Ms Justice Dunne said section 5 requires a referring party to provide “any information necessary” to enable a planning authority decide on a reference and the board clearly took the view it did not have sufficient information to deal with this matter. The problem was the board was asked to consider a referral in respect of three separate areas of land, the ownership of which was not clear and where it was not certain how many parties might be in occupation.
It “goes without saying” the board could not make a declaration under section 5 in respect of the land which would have an adverse impact on owners/occupiers without those being given an opportunity to be heard, she said. To do so would risk infringing their property rights.
‘Undue’ deference
She disagreed with the environmentl group’s argument that the High Court conclusions amounted to the court affording curial deference to the board.
There was no basis for impugning the High Court judgment on the basis “undue” curial deference was shown to the board decision, she held.
She also rejected arguments the board was obliged, under the EC Environmental Impact Directive, to exercise powers under section 250 of the 2000 Act to either affix notices on the lands or dispense with requirements for notice.
She could not see “what possible interpretation” of section 250 could give rise to a different outcome in this case.
The fundamental problem was identification of the owners/occupiers engaged in peat extraction on the relevant land and it would not have been reasonable for the board to have affixed notices to the “multiplicity of subdivisions”, she said.
Nor did she accept the board should have used power under section 250 to dispense with giving notice to those who might be affected by a referral under section 5. The interpretation of section 250 is a matter of national law and there was no basis for a reference to the Court of Justice of the EU, she further held.
