Friends of the Irish Environment Ltd v Minister for Communications, Climate Action snd Environment & Ors [2019] IEHC 646 (20 September 2019)

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URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_646.html
Cite as: [2019] IEHC 646, [2020] 3 IR 162

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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 646
2019 No. 222 J.R.
BETWEEN
FRIENDS OF THE IRISH ENVIRONMENT LIMITED
APPLICANT
AND
MINISTER FOR COMMUNICATIONS, CLIMATE ACTION AND ENVIRONMENT
MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of Mr. Justice Garrett Simons delivered on 20 September 2019.
Summary
1.     These judicial review proceedings seek to challenge the manner in which large-scale peat
extraction is regulated under national law. The Applicant contends that legislative
amendments introduced in January 2019 are inconsistent with EU environmental law.
The legislative amendments have the effect of exempting peat extraction that involves an
area of greater than 30 hectares from the requirement to obtain planning permission.
Peat extraction on this scale will, instead, be subject to licensing by the Environmental
Protection Agency.
2.     Whereas the exemption from the requirement to obtain planning permission came into
immediate effect in January 2019, there is to be a lengthy transitional period before the
licensing regime comes into full force and effect. Peat extraction is to be allowed to
continue during the interregnum between the cessation of control under the planning
legislation, and the coming into force of the licensing regime. Developers who hold
neither a planning permission nor a licence are to be allowed to continue carrying out
peat extraction unabated during this transitional period. The only qualifying criteria is
that the peat extraction was being carried on immediately prior to 25 January 2019.
3.     The Applicant maintains that the amended legislation involves a “flagrant breach” of the
Environmental Impact Assessment Directive (“the EIA Directive”) and the Habitats
Directive. The Applicant has described the transitional period under the Ministerial
Regulations as amounting to an “enforcement holiday”. As an aside, it is noted that the
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European Commission has expressed concerns about the further delay in the application
of the EIA Directive, describing the legislation as leaving a legal limbo. It seems that the
Commission issued a Letter of Formal Notice to Ireland on 26 July 2019.
4.     The Applicant also says that the failure to conduct an environmental assessment of the
impacts of the legislative amendments prior to their adoption represents a breach of the
requirements of the Strategic Environmental Assessment Directive.
5.     The legislative amendments have been introduced by way of Ministerial Regulations. This
gives rise to a further ground of complaint on the part of the Applicant. It is alleged that
this use of secondary legislation to amend primary legislation is impermissible. The
Ministerial Regulations are said to go beyond the mere implementation of “principles and
policies” set out in the EU Directives, and that primary legislation was therefore required.
6.     The Applicant makes a final argument to the effect that the extension of the period of
grace during which peat extraction may be carried out to include the pendency of an
application for judicial review represents an unwarranted interference with judicial
independence.
7.     For the reasons set out in detail in this judgment, I have concluded that the application
for judicial review should be granted on certain grounds. By way of outline only, my
principal findings are as follows.
8.     First, the form of regularisation procedure provided for under the amended legislation is
inconsistent with the EIA Directive and the Habitats Directive. Whereas a Member State
does enjoy a limited discretion to make provision for the regularisation of development
projects which have been carried out in breach of the requirements of either or both of
the EU Directives, the amended legislation exceeds this discretion. The offending features
of the amended legislation include, first, the absence of any possibility of suspending peat
extraction during the transitional period; secondly, the absence of exceptional
circumstances which justify affording developers who have carried out—and continue to
carry out—development in breach of EU law an opportunity to regularise their legal
status; and, finally, the absence of proper legislative provisions to ensure that any
assessment is both prospective and retrospective.
9.     The shortcomings of the amended legislation are similar to the “old” planning legislation
which had been condemned by the Court of Justice of the European Union (“the CJEU”)
in Case C-215/06, Commission v. Ireland. The regime purports to leave projects, which
have not been properly authorised or assessed for the purposes of the EIA Directive and
the Habitats Directive, undisturbed.
10.     Secondly, the use of secondary legislation to amend primary legislation is, in the
circumstances of this case, impermissible. Secondary legislation which is inconsistent
with EU legislation cannot be said to give effect to the “principles and policies” contained
in the EU legislation. Nor can it be said to be “incidental, supplementary and
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consequential” to the EU legislation or “necessitated” by the Irish State’s membership of
the European Union.
11.     Even if—contrary to the finding above—the Ministerial Regulations could be said to be
consistent with the EIA Directive and the Habitats Directive, the use of secondary
legislation would still be impermissible. If the EIA Directive and Habitats Directive did
allow the broad discretion to Member States contended for on the part of the State
Respondents, then the policy choices permitted under the Directives should have been
made by the Oireachtas through the enactment of primary legislation. The Ministerial
Regulations entail a number of policy choices which are not only significant in objective
terms, but actually cut across primary legislation which had been enacted by the
Oireachtas for the precise purpose of giving effect to the two EU Directives.
12.     Thirdly, the grounds of challenge based on the Strategic Environmental Assessment
Directive are rejected. There was no legal obligation to carry out an environmental
assessment of the Ministerial Regulations prior to their adoption. This is because same do
not set the “framework” for development consent of EIA projects.
13.     Finally, the complaint of interference with judicial independence is not made out.
Procedural history
14.     The within proceedings were instituted on 12 April 2019. Shortly thereafter, the Applicant
issued a motion seeking interlocutory relief restraining the implementation of the
Ministerial Regulations. This motion was allocated an expedited hearing date by the
presiding judge in the Judicial Review List (Noonan J.). The application for interlocutory
relief was heard and determined in July 2019, and was the subject of a written judgment,
Friends of the Irish Environment Ltd. v. Minister for Communications, Climate Action and
the Environment [2019] IEHC 555. A limited form of stay was granted.
15.     An expedited hearing date was then fixed for the substantive application for judicial
review, and the application was heard before me over three days commencing on
Wednesday, 4 September 2019.
16.     For the sake of completeness, it should be noted that no objection has been taken to the
locus standi or standing of the Applicant to maintain these proceedings. Presumably, this
is because of the generous standing afforded to environmental non-governmental
organisations under article 11 of the EIA Directive, which, in turn, reflects the provisions
of the Aarhus Convention.
Structure of this judgment
17.     In an attempt to make this judgment more readable, it is proposed to structure it as
follows. Part 1 will set out the relevant legislative framework both pre-and post- the
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introduction of the Ministerial Regulations in January 2019. Part 2 will address each of
the four principal grounds of challenge advanced on behalf of the Applicant. Part 3 will
address the form of order to be made.
Part 1
The legislative framework pre- and post- January 2019
Overview of the ministerial regulations
18.     These judicial review proceedings seek to set aside two statutory instruments made in
January 2019, namely (i) the EU (Environmental Impact Assessment) (Peat Extraction)
Regulations 2019 (S.I. No. 4 of 2019), and (ii) the Planning and Development Act 2000
(Exempted Development) Regulations 2019 (S.I. No. 12 of 2019). For ease of exposition,
I will refer to these two statutory instruments collectively as “the Ministerial
Regulations”.
19.     The ultimate ambition of the Ministerial Regulations is that peat extraction which requires
assessment for the purposes of the EIA Directive will be subject to a single development
consent to be issued by a single competent authority, namely the Environmental
Protection Agency (“the EPA”). The new regime is to apply to the extraction of peat that
involves an area of 30 hectares or more.
20.     This represents a major change from the pre- January 2019 legislative regime whereby
peat extraction had, generally, been regulated under the Planning and Development Act
2000 (“the PDA 2000”). (There had been a parallel obligation to obtain an integrated
pollution control licence from the EPA in the case of the extraction of peat in the course of
business which involves an area exceeding 50 hectares. See paragraph 38 below).
21.     The first of the two Ministerial Regulations has been made pursuant to section 3 of the
European Communities Act 1972. This first set of regulations purports to introduce a
series of amendments to primary legislation, namely the Environmental Protection Agency
Act 1992 (“the EPA Act 1992”). It also purports to make a single amendment to the
PDA 2000. One of the issues which falls for determination in these judicial review
proceedings is whether the use of secondary legislation to amend primary legislation is
justified on the basis that the content of the regulations is “necessitated by the
obligations of membership of the European Union” for the purposes of Article 29.4.6° of
the Constitution of Ireland. This will require consideration of whether the Ministerial
Regulations do no more than fill in the details of “principles and policies” contained in the
EIA Directive and the Habitats Directive.
22.     The second of the two Ministerial Regulations has been made pursuant to section 4(4A) of
the PDA 2000. Section 4(4A) reads as follows.
“(4A)
Notwithstanding subsection (4), the Minister may make regulations
prescribing development or any class of development that is—
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(a) authorised, or required to be authorised by or under any statute
(other than this Act) whether by means of a licence, consent,
approval or otherwise, and
(b) as respects which an environmental impact assessment or an
appropriate assessment is required,
to be exempted development.”
23.     The Minister for Housing, Planning and Local Government has prescribed the following
class of development for this purpose.
“8H. (1)
(2)
(3)
Peat extraction within the meaning of the Act of 1992 shall be
exempted development.
Development necessary to enable compliance with a condition attached
to a licence or revised licence under Part IV of the Act of 1992 to carry
on peat extraction referred to in paragraph (1) shall be exempted
development.
In this article ‘Act of 1992’ means the Environmental Protection Agency
Act 1992 (No. 7 of 1992).”
24.     The fact that the same definition of “peat extraction” is used in both the amended
Environmental Protection Agency Act 1992 and the Ministerial Regulations has the effect
that the extraction of peat that involves an area of 30 hectares or more (i) is immediately
exempt from the requirement to obtain planning permission; and (ii) will ultimately be
subject to licensing by the EPA.
25.     The transitional provisions give rise to a lacuna in the governance of peat extraction
whereby the existing legislative regime under the PDA 2000 is disapplied with immediate
effect, notwithstanding that the new licensing regime has not yet come into full force and
effect. It is common case that many developers carrying out peat extraction had failed to
comply with the (now defunct) requirement to apply for and obtain planning permission.
In many instances, therefore, peat extraction is currently being carried out without the
benefit of either a planning permission or a licence.
Peat extraction and planning legislation
26.     To assist the reader in understanding the legal effect of the Ministerial Regulations, it is
necessary first to say something about the regulatory controls governing peat extraction
under national law.
27.     Peat extraction had traditionally been free from control under the planning legislation.
Section 4 of the Local Government (Planning & Development) Act 1963 had provided that
development consisting of the use of any land for the purposes of “agriculture” was
exempt from the requirement to obtain planning permission. The definition of
“agriculture” included the use of land for turbary.
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28.     It was necessary to amend domestic law in order to give effect to the original version of
the EIA Directive, Directive 85/337/EC. The deadline for implementation of this version of
the EIA Directive had been 27 June 1988. The benefit of “exempted development” under
section 4 of the Local Government (Planning & Development) Act 1963 was disapplied in
the case of “peat extraction which would involve a new or extended area of 50 hectares or
more”. (See Local Government (Planning & Development) Regulations 1990). The
carrying out of an environmental impact assessment was mandatory for peat extraction
on this scale. (See EC (Environmental Impact Assessment) Regulations 1989).
29.     The 50 hectares threshold was criticised in Case C-392/96, Commission v. Ireland.
Following on from the judgment of the CJEU in that case, the thresholds for peat
extraction under national law were revised downwards. The threshold for exempted
development was reduced to 10 hectares, and the threshold for a mandatory
environmental impact assessment was reduced to 30 hectares. (The definition of
“agriculture” under the PDA 2000 omits any reference to turbary). The exempted
development threshold was subsequently qualified by the Planning and Development
Regulations 2005, and the Planning and Development (Amendment) (No. 2) Regulations
2011.
30.     One of the curious features of the approach initially taken to peat extraction under
domestic legislation is that a distinction had been drawn between existing peat extraction,
and peat extraction involving “new or extended” areas. Although not stated in express
terms, the assumption underlying the legislation seems to have been that existing peat
extraction did not have to comply with the EIA Directive. In order to benefit from this
special treatment under domestic law, all that was necessary was that the drainage of the
bogland had commenced prior to the coming into force of the relevant parts of the
Planning and Development Regulations 2001 on 21 January 2002. (See Planning and
Development Regulations 2005). Thus, it was not necessary even that the peat
extraction had commenced prior to the implementation date for the EIA Directive on
27 June 1988.
31.     The generous treatment afforded to peat extraction under domestic law has since been
rolled back by amendments introduced under the Environment (Miscellaneous Provisions)
Act 2011 as follows.
(i)
Benefit of exempted development disapplied
32.     It is now provided that development shall not be exempted development under the
Planning and Development Regulations if an environmental impact assessment for the
purposes of the EIA Directive or an appropriate assessment for the purposes of the
Habitats Directive is required. See section 4(4) of the PDA 2000. Under the transitional
provisions, the loss of the benefit of exempted development does not apply where the
development is completed not later than twelve months after the date of the
commencement of the legislative amendment. Put otherwise, developers were allowed a
further period of grace until 21 September 2012 during which they could either
“complete” their development or apply for planning permission. From that date forward,
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any development—including peat extraction—which required environmental impact
assessment or appropriate assessment was subject to a requirement to obtain planning
permission.
33.     The implications of this change in the law for peat extraction have been considered in
detail by the High Court (Meenan J.) in Bulrush Horticulture Ltd. v. An Bord Pleanála
(No. 1) [2018] IEHC 58. Those proceedings came before the High Court by way of an
application for judicial review of a declaration made by An Bord Pleanála pursuant to
section 5 of the PDA 2000. The Board had ruled that the development involved in
continued works to extract peat from a site in County Westmeath required both an
environmental impact assessment and an appropriate assessment. The peat extraction
thus lost the benefit of exempted development which it had previously enjoyed under the
Planning and Development Regulations. The Board’s declaration is dated April 2013.
34.     The developer sought to challenge An Bord Pleanála’s declaration. One of the grounds of
challenge had been that the Board, in finding that the EIA Directive applied to peat
extraction which had (allegedly) commenced prior to the coming into force of domestic
legislation which gave effect to the EIA Directive, had erred in law. It was contended on
behalf of the developers that the requirement for an EIA only arose in the context of
development which involved a “new or extended” area. The developers relied in support
of this argument on case law of the CJEU to the effect that where a consent application
had been pending before a competent authority prior to the coming into force of the EIA
Directive, then the consent application was not subject to the EIA Directive. This
argument was rejected as follows by the High Court.
“41.
Both Bulrush and Westland relied upon a number of decisions of the
European Court of Justice in support of their submission that neither an
Environmental Impact Assessment nor an appropriate assessment was
required. These decisions included Commission v. Germany, Case
C-431/92, Burgemeester v. Gedeputeerde Staaten Noord Holland, Case
C-81/96, the Commission v. Austria Case C-209-04 and Stadt Penburg
v. Germany, Case C-2206-08. These cases are generally referred to as
the ‘Pipeline Cases’. The principles distilled from these decisions are
illustrated in Stadt Papenburg v. Bundesrepublik Deutschland, Case C-
226/08. In this case, a local authority (Stadt Papenburg) issued
consent to a shipyard to carry out dredging of the River Ems to allow
access from a shipyard to the sea in 1994. This decision had the effect
of granting permission for future dredging operations. In 2006 the
German government indicated that parts of the River Ems situated
down river could be accepted as a possible site of community interest
within the meaning of the “Habitats Directive”. The local authority
brought legal proceedings seeking to prevent the defendant giving its
agreement to the inclusion of part of the River in a list of sites of
community interest. The local authority was concerned that if parts of
the river were included in the list, the dredging operations required for
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the shipyard would in the future and in every case thereafter have to
undergo an Appropriate Assessment as required by the Habitats
Directive.
42.     The European Court of Justice held that if the dredging works could be
considered as constituting a single operation then the works could be
considered to be one and the same project for the purposes of Article 6
of the Habitats Directive. In that case, the project had been authorised
before the expiry of the time limit for transposition of the Habitats
Directive and, as such, was not subject to the requirement for an
Appropriate Assessment under the said Directive.
43.     In my opinion, the decision in Stadt Papenburg and other ‘Pipeline
Cases’ are of no assistance to Bulrush or Westland. These cases cover
situations were permission or consent for a project had been sought
before the expiry of the time limit for transposing the Directive in
question. This is not the case here. Neither Bulrush nor Westland had
any planning permission pending during the time allowed for the
transposition of either the Environmental Impact Directive or the
Habitats Directive. In my view, the submissions made by both Bulrush
and Westland that they are, in effect, ‘Pipeline Projects’ is an aspect of
the more general submission that the relevant legislation offends the
principle against legislation being retrospective.”
35.     The High Court also confirmed that the amendments introduced under the Environment
(Miscellaneous Provisions) Act 2011 did not have an impermissible retrospective effect.
36.     The High Court subsequently refused leave to appeal to the Court of Appeal, holding that
one of the principal requirements for certifying leave to appeal, i.e. that the law in
question stands in a state of uncertainty, had not been met. See Bulrush Horticultural
Ltd. v. An Bord Pleanála (No. 2) [2018] IEHC 808.
(ii) No time-limit on enforcement proceedings seeking cessation orders
37.     The restrictions on the availability of the benefit of exempted development introduced
under the Environment (Miscellaneous Provisions) Act 2011 (discussed above) had been
complemented by another amendment under that Act. More specifically, the time-limits
governing the taking of enforcement action in respect of unauthorised peat extraction
were amended. The general position under the PDA 2000 is that there is a seven-year
time-limit on the taking of enforcement proceedings. In the case of development in
respect of which no planning permission has been obtained, the seven-year time-limit
generally runs from the date upon which the unauthorised development first commenced.
This seven-year time-limit is, however, modified in the case of peat extraction. An
application may be made at any time for an order directing the cessation of unauthorised
peat extraction. (A seven-year time-limit continues to apply to mandatory orders
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requiring the reinstatement of lands). A similar time-limit applies to quarrying activities.
See, generally, McCoy v. Shillelagh Quarries Ltd. [2015] IEHC 838, [86].
IPC licensing regime: position prior to january 2019
38.     The legal position, prior to the adoption of the Ministerial Regulations in January 2019,
had been that certain large-scale peat extraction was subject to licensing by the EPA
under Part IV of the Environmental Protection Agency Act 1992. The licensing regime had
existed in parallel to the requirement to obtain planning permission.
39.     The relevant threshold for the purposes of a licence application had read as follows.
“1.4
The extraction of peat in the course of business which involves an area
exceeding 50 hectares.”
40.     This threshold represented the gateway to the licensing regime. The EPA did not have
jurisdiction to entertain a licence application unless this threshold had been exceeded.
Once a licence application had been made, the EPA then had—since 2012—jurisdiction to
screen the application for the purposes of the EIA Directive and the Habitats Directive.
Unless and until the threshold of 50 hectares had been exceeded, however, the EPA had
no jurisdiction to entertain a licence application. Thus, in the hypothetical case of an
existing peat extraction development which fell below the threshold of 50 hectares, a
licence application to the EPA would not have been required even if a screening
determination would have indicated that the proposed development was likely to have a
significant effect on the environment and/or a European Site, and, consequently, would
have triggered a requirement for assessment as a matter of EU law.
41.     Put shortly, those projects which had required an IPC licence under domestic law pre-
January 2019 had represented merely a subset of those which require assessment for
the purposes of the EIA Directive and the Habitats Directive.
42.     The application of this 50 hectares threshold had proved difficult in practice. See, for
example, the judgment of the High Court (Barrett J.) in Environmental Protection
Agency v. Harte Peat Ltd. [2014] IEHC 308; [2015] 1 I.R. 462.
43.     It should also be noted that the CJEU had found that there was a lacuna in the pre- 2012
version of the EPA Act 1992 in that the EPA did not have jurisdiction to call for the
submission of an environmental impact statement in the absence of a parallel application
for planning permission. (See Case C-50/09, Commission v. Ireland).
Legislative regime pre- January 2019
44.     The legal position in respect of peat extraction prior to the operative date of the
Ministerial Regulations in January 2019 can thus be summarised as follows.
(i). There was an obligation to obtain planning permission in respect of any peat
extraction project which requires assessment under either the EIA Directive or the
Habitats Directive. An EIA had been mandatory, under domestic law, where the
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peat extraction would involve a “new or extended” area of 30 hectares or more.
(See Planning and Development Regulations 2001, Schedule 5, Part 2, paragraph
2(a)). In the case of sub-threshold development, a screening determination would
have to be made by reference to the detailed criteria set out at Schedule 7 of the
Planning and Development Regulations 2001. A screening determination for the
purposes of article 6(3) of the Habitats Directive would also have to be undertaken.
(ii). Peat extraction which was being carried out without the benefit of planning
permission, where required, was vulnerable to enforcement proceedings. Any
person is entitled to apply for orders pursuant to section 160 of the PDA 2000.
There is no time-limit on an application seeking an order which requires the
cessation of peat extraction. A planning authority is empowered to serve an
enforcement notice and/or to apply for orders pursuant to section 160 of the PDA
2000. Where a complaint is made and (i) a planning authority establishes,
following an investigation, that unauthorised development (other than development
that is of a trivial or minor nature) is being carried out, and (ii) the person who has
carried out or is carrying out the development has not proceeded to remedy the
position, then the authority is obliged to issue an enforcement notice and/or to
make an application pursuant to section 160 unless there are compelling reasons
for not doing so. (See section 153(7) of the PDA 2000 (as inserted by the
Environment (Miscellaneous Provisions) Act 2011)).
(iii). Section 5 of the PDA 2000 provides a simple procedure whereby the question of
whether a particular development (including peat extraction) requires planning
permission can be determined, initially, by the planning authority and, thereafter,
on review by An Bord Pleanála. By way of example, the proceedings in Bulrush
Horticultural Ltd. v. An Bord Pleanála (discussed at paragraph 33 above) arose out
of a section 5 declaration made by An Bord Pleanála in respect of peat extraction.
A section 5 declaration, which has not been challenged by way of judicial review,
can be relied upon to ground enforcement proceedings. (See Killross Properties
Ltd v. Electricity Supply Board [2016] IECA 207; [2016] 1 IR 541).
(iv). In the event that a developer carrying out peat extraction wished to regularise the
planning status of the activity—for example, in response to the threat of
enforcement proceedings—then the substitute consent procedure under Part XA of
the PDA 2000 would have to be invoked. Relevantly, there is no automatic
entitlement to apply for substitute consent; rather, a developer has to apply first to
An Bord Pleanála for leave to make an application for substitute consent. The
Board may only grant leave to apply if it is satisfied that “exceptional
circumstances” exist such that the Board considers it appropriate to permit the
opportunity for regularisation of the development by permitting an application for
substitute consent.
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(v). In parallel to the planning legislation, certain large-scale peat extraction involving
an area in excess of 50 hectares was subject to licensing by the EPA under Part IV
of the Environmental Protection Agency Act 1992.
legislative regime post- January 2019
45.     The operative date of the Ministerial Regulations is 25 January 2019. The legislative
regime post-January 2019 can be summarised as follows.
(i). Peat extraction that involves an area of 30 hectares or more is immediately exempt
from the requirement to obtain planning permission. This has the consequence
that the enforcement mechanisms under the PDA 2000; the section 5 reference
procedure; and the substitute consent procedure, all no longer apply.
(ii). Peat extraction which falls short of the threshold of 30 hectares is, in principle,
subject to a requirement to obtain planning permission. It should be noted,
however, that peat extraction in a “new or extended” area of less than 10 hectares
is exempted development, subject always to section 4(4) of the PDA 2000.
(iii). Peat extraction that involves an area of 30 hectares or more requires an IPC licence
from the EPA. Under the transitional provisions, however, an unlicensed developer
is entitled to continue to carry on peat extraction. This is subject to a requirement
to make a licence application not later than eighteen months after 25 January
2019. Provided a licence application is made within time, the peat extraction can
then continue until such time as the licence application is determined. If the licence
application is refused, and that refusal is challenged by the developer in judicial
review proceedings, then peat extraction can continue until such time as the
judicial review is determined by a final judgment. (See section 82B(7) of the
Environmental Protection Agency Act 1992 (as inserted by the Ministerial
Regulations)).
Parliamentary intervention / primary legislation
46.     One of the grounds of objection made by the Applicant is that the Ministerial Regulations
go beyond the mere implementation of “principles and policies” set out in the EU
Directives, and instead entail the making of policy decisions.
47.     As discussed in more detail at paragraphs 137 et seq. below, it is relevant to the
determination of the question of whether it is permissible to amend primary legislation by
way of secondary legislation to consider whether the content of the secondary legislation
cuts across policy issues which have previously been the subject of parliamentary
intervention by way of primary legislation. Accordingly, it may be useful at this stage to
summarise the engagement of the Oireachtas with precisely the same type of policy
issues which now feature in the Ministerial Regulations.
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48.     The parliamentary intervention of most immediate relevance is the introduction of a form
of retrospective development consent under the Planning and Development (Amendment)
Act 2010. This primary legislation was enacted in the aftermath of the judgment of the
CJEU in Case C-215/06, Commission v. Ireland. The judgment had condemned the
legislative regime governing retention planning permission under the original version of
the PDA 2000. The CJEU was especially critical of the fact that retention planning
permission could be obtained without any necessity to demonstrate “exceptional
circumstances”, and that the effect of a retention planning permission equated to that of
a conventional planning permission.
49.     The Planning and Development (Amendment) Act 2010 prohibited the grant of retention
planning permission in respect of projects which should have been—but were not—subject
to an EIA or to a screening for EIA prior to the commencement of works. The 2010 Act
introduced instead a form of retrospective development consent for EIA projects. This
form of development consent has been labelled as “substitute consent”. Crucially, the
regime governing the grant of substitute consent is much more stringent than that which
had governed the grant of retention planning permission or that which would govern peat
extraction under the impugned Ministerial Regulations.
50.     The key features of the substitute consent regime are as follows.
(i). There is no automatic entitlement to apply for substitute consent. In most
instances, a developer will have to apply to An Bord Pleanála for “leave to apply”
for substitute consent. Leave will only be granted where exceptional circumstances
exist such that the Board considers it appropriate to permit the opportunity for
regularisation of the development by permitting an application for substitute
consent. The concept of “exceptional circumstances” is defined under section 177D
of the PDA 2000. The definition is set out in full at paragraph 163 below.
(ii). A separate gateway to the substitute consent regime has been provided for in the
case of certain quarries. There are no special rules applicable to peat extraction.
(iii). An Bord Pleanála is empowered to issue a direction to the developer to cease
activity or operations pending the determination of an application for substitute
consent. (See section 177J of the PDA 2000). The Board may issue a direction
where it forms the opinion that the continuation of all or part of the activity or
operations is likely to cause significant adverse effects on the environment or
adverse effects on the integrity of a European Site.
(iv). Where An Bord Pleanála grants substitute consent, it can impose conditions inter
alia relating to remediation of all or part of the site on which the development the
subject of the grant of substitute consent is situated. (See section 177K(3)(b) of
the PDA 2000).
(v). Where An Bord Pleanála either refuses an application for leave to apply for
substitute consent, or refuses to grant substitute consent, it may issue a direction
Page 13 ⇓
to the developer (a) to cease activity or operations or (b) to take remedial
measures. The remedial measures may include measures to restore the site to a
safe and environmentally sustainable condition; and to avoid the deterioration of
natural habitats and the habitats of species or the disturbance of the species in a
European Site. (See section 177L of the PDA 2000).
51.     The second legislative intervention of note is the enactment of the Environment
(Miscellaneous Provisions) Act 2011. As discussed at paragraph 37 above, development
shall not be exempted development under the Planning and Development Regulations if
an environmental impact assessment for the purposes of the EIA Directive or an
appropriate assessment for the purposes of the Habitats Directive is required. See
section 4(4) of the PDA 2000. From 21 September 2012 forward, any development—
including peat extraction—which required environmental impact assessment or
appropriate assessment was subject to a requirement to obtain planning permission.
Part 2
Detailed Discussion of Grounds of Challenge
(1). regularisation procedure / ex post facto assessment
52.     The Ministerial Regulations purport to put in place a new licensing regime which will allow
for the regularisation of peat extraction which has been carried out in breach of the
requirements of the EIA Directive and the Habitats Directive. This licensing regime is
intended to replace the existing regularisation procedure provided for under Part XA of
the PDA 2000, i.e. the substitute consent regime. A developer who has been carrying out
unauthorised peat extraction will be able to apply for a licence under an amended Part IV
of the EPA Act 1992 instead of having to apply for substitute consent.
53.     The Applicant makes a series of criticisms of the new licensing regime. The gravamen of
the Applicant’s complaint, however, is that the form of regularisation procedure provided
for is inconsistent with the requirements of the EIA Directive and the Habitats Directive.
54.     In order to properly understand this complaint, it is necessary to consider briefly the
requirements of the EIA Directive and the Habitats Directive; and to outline the extent of
a Member State’s discretion to regularise development projects which have been carried
out in breach of those requirements.
55.     Each of the two Directives imposes a requirement to apply for and to obtain development
consent prior to the commencement of development works.
(i)
EIA Directive
56.     The EIA Directive obliges Member States to adopt all measures necessary to ensure that
prescribed projects are made subject to a requirement to obtain development consent.
This obligation was implicit in the original version of the EIA Directive (Directive
85/337/EC) and was made express by the amendments introduced in 1997 (Directive
97/11/EC).
Page 14 ⇓
57.     An EIA must be carried out prior to the commencement of development works. See Case
C-215/06, Commission v. Ireland (“Derrybrien No. 1”) as follows.
“51.
Given that this wording regarding the acquisition of entitlement is
entirely unambiguous, Article 2(1) of that directive must necessarily be
understood as meaning that, unless the applicant has applied for and
obtained the required development consent and has first carried out
the environmental impact assessment when it is required, he cannot
commence the works relating to the project in question, if the
requirements of the directive are not to be disregarded.
52.     That analysis is valid for all projects within the scope of Directive
85/337 as amended, whether they fall under Annex I and must
therefore systematically be subject to an assessment pursuant to
Articles 2(1) and 4(1), or whether they fall under Annex II and, as
such, and in accordance with Article 4(2), are subject to an impact
assessment only if, in the light of thresholds or criteria set by the
Member State and/or on the basis of a case-by-case examination, they
are likely to have significant effects on the environment.”
58.     Since 16 May 2017, Member States have been under an express obligation to provide
effective, proportionate and dissuasive penalties. See article 10A of the EIA Directive (as
inserted by Directive 2014/52/EU).
“10A. Member States shall lay down rules on penalties applicable to
infringements of the national provisions adopted pursuant to this
Directive. The penalties thus provided for shall be effective,
proportionate and dissuasive.”
59.     The carrying out of an EIA is mandatory in the case of projects listed in Annex I of the EIA
Directive. In the case of projects listed in Annex II, the Member State must determine
either on a case-by-case basis, or by the use of thresholds or criteria, whether the project
is likely to have a significant effect on the environment. If this screening determination is
“positive”, then an EIA must be carried out.
60.     A Member State has a limited discretion as to the identification of projects under Annex II
which are likely to have a significant effect on the environment and, accordingly, to
require development consent. (See, for example, Case C-72/95, Kraaijeveld). The
threshold for peat extraction above which the carrying out of an EIA is mandatory had
been fixed under national law as follows: “Peat extraction which would involve a new or
extended area of 30 hectares”. (See Planning and Development Regulations 2001,
Schedule 5). Under the impugned regulations, the qualifying words “new or extended”
have been removed and the amended threshold is now fixed as follows: “Peat extraction
that involves an area of 30 hectares”.
Page 15 ⇓
61.     The parties were agreed at the hearing before me that peat extraction on the scale
regulated by the Ministerial Regulations must, as a matter of EU law, be subject to a
requirement to obtain development consent. Indeed, the State respondents could
scarcely contend otherwise in circumstances where their justification for relying on
secondary—as opposed to primary—legislation is predicated upon an argument that the
legislative amendments were “necessitated” by EU law. (See paragraph 81 of the written
legal submissions). It is implicit in this argument that the carrying out of an EIA is
mandatory in respect of the category of development identified, namely peat extraction
involving an area of more than 30 hectares.
(ii). Habitats Directive
62.     The Habitats Directive is drafted in much less detailed terms than the EIA Directive.
Article 6(3) of the Habitats Directive provides that any project which is likely to have a
significant effect on a European Site must be subject to an “appropriate assessment”. It
is implicit in this that projects which are likely to have a significant effect must be subject
to a form of development consent. A Member State may not systematically and generally
exempt certain categories of projects from the obligation requiring an appropriate
assessment to be undertaken of their implications for European Sites. (See Case
C-538/09, Commission v. Belgium).
63.     As in the case of the EIA Directive, the application for development consent (the
agreement of the project) must be made, and the appropriate assessment, if required,
must be carried out, prior to the commencement of development works. (See Case C-
411/17, Inter-Environnement Wallonnie).
Case law on regularisation procedure
64.     The case law of the CJEU establishes that a Member State has a limited discretion to allow
for the regularisation of development projects which have been carried out in breach of
the requirements of the EIA Directive and the Habitats Directive. Notwithstanding that
the Directives require that the assessment must be carried out prior to commencement of
development, it may be possible to regularise the status of a project by carrying out an
ex post facto assessment. To be compliant with EU law, however, the regularisation
procedure must meet certain minimum criteria. First, it must not offer an opportunity to
developers to circumvent EU law and must remain the exception. Secondly, the ex post
facto assessment must have regard to both the historic and prospective impacts of the
project. Thirdly, the more recent case law indicates that the regularisation procedure
must, at the very least, allow for the possibility of the suspension of development works
and the activity pending the carrying out of the ex post facto assessment. As discussed
presently, the State respondents dispute that this last requirement is a feature of EU law.
(See paragraph 71 et seq. below).
65.     It is proposed to consider the Ministerial Regulations by reference to each of these three
broad criteria. It should be noted from the outset, however, that the principal criticism
made of the Ministerial Regulations by the Applicant is directed to the transitional
provisions. Accordingly, the discussion of the third of the criteria identified above will be
Page 16 ⇓
much lengthier than that in respect of the first two criteria. I propose to address this
issue first. In other words, I will take this third criteria out of turn.
(i)
Suspension pending regularisation procedure
66.     The principal criticism made of the Ministerial Regulations concerns the transitional
provisions thereunder. One of the directors of the Applicant, Mr Tony Lowes, in his
affidavit of 9 April 2019, has identified four examples of what he describes as “industrial
scale” peat extraction which it is alleged would be permitted to continue during the
transitional period under the Ministerial Regulations.
67.     Mr Lowes has also exhibited, as part of a later affidavit, a letter dated 29 April 2019 from
the European Commission.
“We are aware of this new legislation which was communicated to us
by the Irish authorities in January 2019. Whilst we welcome the
creation of the new regime which it is hoped will finally bring Ireland’s
wide ranging peat extraction activities into line with EU law, we share
your concerns about the further delay that is now created in the
application of Directive 2011/92/EU on environmental impact
assessment (EIA). As a result of these concerns we have written
formally to the Irish authorities raising these concerns. In particular,
we remain concerned about the continued lack of application of the law
to peat extraction activities despite last year’s national court ruling in
the Bulrush and Westland case. Furthermore, the judgment of the
Court of Justice against Ireland in Case C-392/96, in September 1999
concerning the failure by Ireland to correctly transpose the original EIA
Directive 85/337/EEC with regard to peat extraction activities was
closed in December 2005 after the adoption of the Planning and
Development Regulations 2005 (S.I. 364 of 2005) and the subsequent
completion of designations of the Natural Heritage Areas to protect
peat bog sites. It appears that the new legislation now deletes that
legislation leaving a legal limbo until this new regime starts to apply.”
68.     It seems that the European Commission has since issued a Letter of Formal Notice to
Ireland on 26 July 2019.
69.     Leading counsel on behalf of the Applicant, James Devlin, SC, submits that a Member
State is obliged to nullify the unlawful consequences of a breach of the EIA Directive and
the Habitats Directive. This obligation, it is said, extends to the suspension or the
revocation of a development consent which has been granted in breach of the EU
Directives. Counsel draws attention to the fact that the breach which the Ministerial
Regulations purport to regularise is an even more fundamental breach, in that it involves
a failure to apply for and obtain development consent. The effect of the transitional
provisions, it is submitted, is that compliance with the requirements of the EU Directives
Page 17 ⇓
is to be put on hold for the transitional period, i.e. there is to be yet a further delay in
achieving compliance following upon numerous years of non-compliance.
70.     Counsel relies on the very recent judgment of the Grand Chamber of the CJEU in Case
C-411/17, Inter-Environnement Wallonnie. The judgment addressed the consequences of
a failure to comply with the EIA Directive and the Habitats Directive as follows.
“169.
However, neither the EIA Directive nor the Habitats Directive specify
what action should be taken in the event of infringement of the
obligations laid down by those directives.
170.
Nonetheless, under the principle of sincere cooperation laid down in
Article 4(3) TEU, Member States are required to nullify the unlawful
consequences of that infringement of EU law. The competent national
authorities are therefore under an obligation to take all measures
necessary, within the sphere of their competence, to remedy the
failure to carry out an environmental impact assessment, for example
by revoking or suspending consent already granted in order to carry
out such an assessment (see, to that effect, judgment of 26 July 2017,
Comune di Corridonia and Others, C-196/16 and C-197/16,
EU:C:2017:589, paragraph 35 and the case-law cited).
171.
That obligation is also incumbent on national courts before which an
action against a national measure including such a consent has been
brought. The detailed procedural rules applicable to such actions are a
matter for the domestic legal order of each Member State, under the
principle of procedural autonomy of the Member States, provided that
they are not less favourable than those governing similar domestic
situations (the principle of equivalence) and that they do not render
impossible in practice or excessively difficult the exercise of rights
conferred by the European Union legal order (the principle of
effectiveness) (see, to that effect, judgment of 28 February 2012,
Inter-Environnement Wallonie and Terre wallonne, C-41/11,
EU:C:2012:103, paragraph 45 and the case-law cited).
172 .
Consequently, courts before which actions are brought in that regard
must adopt, on the basis of their national law, measures to suspend or
annul the project adopted in breach of the obligation to carry out an
environmental assessment (see, to that effect, judgment of 28
February 2012, Inter-Environnement Wallonie and Terre Wallonne,
C-41/11, EU:C:2012:103, paragraph 46 and the case-law cited).
173.
It is true that the Court has also held that EU law does not preclude
national rules which, in certain cases, permit the regularisation of
operations or measures which are unlawful in the light of EU law
Page 18 ⇓
(judgment of 26 July 2017, Comune di Corridonia and Others,
C-196/16 and C-197/16, EU:C:2017:589, paragraph 37 and the case-
law cited).
174.
However, such a possible regularisation would have to be subject to
the condition that it does not offer the parties concerned the
opportunity to circumvent the rules of EU law or to refrain from
applying them, and should remain the exception (judgment of 26 July
2017, Comune di Corridonia and Others, C-196/16 and C-197/16,
EU:C:2017:589, paragraph 38 and the case-law cited).
175.
Consequently, in the event of failure to carry out an assessment of the
environmental impact of a project required under the EIA Directive,
although Member States are required to nullify the unlawful
consequences of that failure, EU law does not preclude regularisation
through the conducting of such an assessment while the project is
under way or even after it has been completed, on the twofold
condition, first, that national rules allowing for that regularisation do
not provide the parties concerned with an opportunity to circumvent
the rules of EU law or to refrain from applying them, and second, that
an assessment carried out for regularisation purposes is not conducted
solely in respect of the project’s future environmental impact, but must
also take into account its environmental impact since the time of
completion of that project (see, to that effect, judgments of 26 July
2017, Comune di Corridonia and Others, C-196/16 and C-197/16,
EU:C:2017:589, paragraph 43, and of 28 February 2018, Comune di
Castelbellino, C-117/17, EU:C:2018:129, paragraph 30).
176.
By analogy, it must be held that EU law does not preclude such
regularisation, subject to the same conditions, in the event of failure to
conduct a prior impact assessment of the effects of the project
concerned on a protected site, as required by Article 6(3) of the
Habitats Directive.
177.
It must be added that only the Court of Justice may, in exceptional
cases, for overriding considerations of legal certainty, allow temporary
suspension of the ousting effect of a rule of EU law with respect to
national law that is contrary thereto. If national courts had the power
to give provisions of national law primacy in relation to EU law
contravened by those provisions, even temporarily, the uniform
application of EU law would be undermined (see, to that effect,
judgments of 8 September 2010, Winner Wetten, C-409/06,
EU:C:2010:503, paragraphs 66 and 67, and of 28 July 2016,
Page 19 ⇓
Association France Nature Environnement, C-379/15, EU:C:2016:603,
paragraph 33).”
71.     In response, leading counsel on behalf of the State respondents, Niamh Hyland, SC,
submitted that EU law did not inevitably require that a development consent which had
been granted in breach of the EIA Directive or the Habitats Directive must be suspended
pending the carrying out of a regularisation procedure. Counsel further submitted that
such a requirement would represent a radical change in the case law and would be
inconsistent with the principle of the procedural autonomy of the Member States. Counsel
cited, by way of example, the judgment in Case C-348/15, Stadt Wiener where the CJEU
held that it is compatible with EU law to lay down, in the interests of legal certainty,
reasonable time-limits for proceedings which seek to annul development consents issued
in breach of the EIA Directive. It would be difficult, counsel suggested, to reconcile this
holding with the proposition that there must be an immediate cessation of development
works in order to apply to regularise a project.
72.     Counsel submitted that, on its correct interpretation, the overall meaning of the judgment
in Case C-411/17 is not that there is inevitably an obligation to suspend or annul a
project. The judgment does not impose a stand-alone obligation on a Member State in a
prescriptive fashion to suspend or annul a project. That was not the question which the
CJEU had been asked in the preliminary reference and that is not the answer that the
CJEU gave.
Discussion
73.     Approaching the matter from first principles, an attractive argument can be made that the
discretion of a Member State to provide for a regularisation procedure should extend to
discretion to permit the carrying out of development works or the continuation of
activities pending the carrying out of an ex post facto assessment. For example, it might
be unduly harsh to a developer who had applied for and obtained a development consent
in good faith, only for that consent to be set aside subsequently as a result in a deficiency
in national law, to be automatically required to suspend any development works or
activities pending an application to regularise the status of the project. A Member State
should, arguably, be entitled to balance the principles of legal certainty and legitimate
expectations of the developers against the objectives of the EIA Directive and the
Habitats Directive.
74.     This is the approach which had been recommended by Advocate General Kokott in Case
C-411/17.
“209.
Nevertheless, such decisions are not necessarily contrary in substance
to EU law when they are adopted in breach of procedural requirements
of EU law. EU law does not therefore preclude national legislation
Page 20 ⇓
which, in certain cases, permits the regularisation of operations or
measures which are unlawful in the light of EU law.
210.
Bearing in mind this possibility, it could be disproportionate in some
cases, on the basis of a finding of a procedural error, to eliminate the
effects of the decision concerned, with the result that the activity at
issue can no longer be carried out at least temporarily. Rather, it could
be necessary to weigh up the conflicting interests and, in some cases,
to maintain the effects of the decision until it is subsequently
regularised.
211.     However, a good degree of caution must be exercised.
212.
The possibility of a posteriori regularisation is limited to exceptional
cases and may not offer the opportunity to circumvent EU law or
dispense with applying it. However, there would be a danger of
circumvention especially if before regularisation the effect of decisions
adopted in breach of procedural rules was maintained too generously.
213.
It must also be ensured that maintenance of the effects of a decision
taken without the necessary environmental assessment does not result
in environmental damage which the environmental assessment is
specifically intended to prevent.
214.
Consequently, the effects of such a decision may be maintained only if,
on the basis of the available information and the applicable provisions,
it is highly likely that the decision will be confirmed in the same form
following the retrospective carrying out of the environmental
assessment. If, however, there is reasonable doubt as to such
confirmation, maintaining the effects should be ruled out. Crucial to
the assessment are the substantive conditions for the exercise of the
activity in question, in this case, aside from the applicable rules
governing the operation of nuclear power stations, Article 6 of the
Habitats Directive for example.”
*Footnotes omitted.
75.     As appears, the Advocate General recommended a pragmatic approach which would leave
over a limited discretion to the Member States as to whether to allow the development
works or activities, which had been authorised under a subsequently invalidated
development consent, to continue pending the completion of a regularisation procedure.
76.     The CJEU in its judgment seems to have taken a more hard-line approach. It is difficult
to read paragraph 172 of the judgment in Case C-411/17 as meaning anything other than
that a national court is required to suspend or annul development works or operations
Page 21 ⇓
where a project has been adopted in breach of the requirement to carry out an
environmental impact assessment. The only exception permitted to this requirement is in
the types of circumstances outlined at paragraphs [177] to [179] of the judgment,
i.e. a temporary suspension of the ousting effect of EU law may be allowed where there
are overriding considerations relating to the protection of the environment or relating to
the security of electricity supply.
77.     This outcome is not perhaps as radical as the submissions on behalf of the State
respondents might suggest. A requirement to suspend had been presaged as early as
January 2004 with the delivery of the judgment in Case C-201/02, Wells. See, in
particular, paragraph 65 of that judgment as follows.
“65.
Thus, it is for the competent authorities of a Member State to take,
within the sphere of their competence, all the general or particular
measures necessary to ensure that projects are examined in order to
determine whether they are likely to have significant effects on the
environment and, if so, to ensure that they are subject to an impact
assessment (see, to this effect, Case C-72/95 Kraaijeveld and Others
[1996] ECR I-5403, paragraph 61, and WWF and Others, cited above,
paragraph 70). Such particular measures include, subject to the limits
laid down by the principle of procedural autonomy of the Member
States, the revocation or suspension of a consent already granted, in
order to carry out an assessment of the environmental effects of the
project in question as provided for by Directive 85/337.”
78.     The more recent case law places much emphasis on whether national law provides for the
suspension of development works or activities. The judgment in Case C-215/06,
Commission v. Ireland held that the provision then made under Irish law for retention
planning permission deprived the enforcement system of any effectiveness. The
judgment was critical of the fact that it was possible to leave projects, which were not
properly authorised, undisturbed provided that an application for retention planning
permission was made before the commencement of enforcement proceedings.
“74.
It is undisputed that, in Ireland, the absence of an environmental
impact assessment required by Directive 85/337 as amended can be
remedied by obtaining a retention permission which makes it possible,
in particular, to leave projects which were not properly authorised
undisturbed, provided that the application for such a permission is
made before the commencement of enforcement proceedings.
75.     The consequence of that possibility, as indeed Ireland recognises, may
be that the competent authorities do not take action to suspend or put
an end to a project that is within the scope of Directive 85/337 as
amended and is being carried out or has already been carried out with
no regard to the requirements relating to development consent and to
Page 22 ⇓
an environmental impact assessment prior to issue of that
development consent, and that they refrain from initiating the
enforcement procedure provided for by the PDA, in relation to which
Ireland points out that the powers are discretionary.
76.     The inadequacy of the enforcement system set up by Ireland is
accordingly demonstrated inasmuch as the existence of retention
permission deprives it of any effectiveness, and that inadequacy is the
direct consequence of the Member State’s failure to fulfil its obligations
which was found in the course of consideration of the first two pleas in
law.”
79.     In Case C-196/16, Comune di Corridonia, the CJEU laid emphasis on the fact that the
activities of the biogas plants the subject of the national proceedings had been
suspended. The CJEU cited this as one of a number of features which favourably
distinguished the Italian legislation from the Irish legislation condemned in Case
C-215/06, Commission v. Ireland. See paragraph 41 of the judgment in Case C-196/16
as follows.
“41.
It is for the referring court to assess whether the legislation at issue in
the main proceedings satisfies those requirements. It is, however,
appropriate to mention to the referring court that the facts that the
undertakings concerned took the necessary steps to arrange for, if
need be, an assessment of the environmental impact of their projects
to be carried out, that the refusal of the competent authorities to
accede to those requests was based on national rules, the
incompatibility of which with EU law was only subsequently established
by a ruling of the Corte costituzionale (Constitutional Court), and that
the activities of the plants concerned were suspended appear rather to
indicate that the regularisations carried out were not permitted under
national law in conditions similar to those in the case leading to the
judgment of 3 July 2008, Commission v Ireland (C-215/06,
EU:C:2008:380, paragraph 61), and did not attempt to circumvent
rules of EU law.”
80.     As appears, express attention was drawn to the fact that the Italian regularisation
procedure allowed for the possibility of the suspension of the development consent.
81.     At all events, it is not necessary for the purposes of the resolution of the present case for
this court to reach a definitive view on whether or not there is a mandatory requirement
to suspend development works or activities pending the carrying out of a regularisation
procedure. This is because even if there is no mandatory requirement, there can be no
doubt but that national law must, at the very least, provide for the possibility of
suspension. National law must provide some mechanism for weighing up the conflicting
interests and to ensure that the carrying out of development in ongoing breach of the EIA
Page 23 ⇓
Directive and the Habitats Directive does not result in environmental damage which the
assessment is specifically intended to prevent. This was the approach which had been
recommended by Advocate General Kokott in Case C-411/17, Inter-Environnment
Wallonie.
82.     It is also the approach which had been adopted under national law prior to January 2019.
The regularisation procedure provided for under national law, i.e. the substitute consent
regime under Part XA of the PDA 2000, expressly provides for the possibility of issuing a
direction requiring a developer to cease activity or operations. This possibility arises at
two stages of the procedure. First, a direction can be issued pending the determination of
the application for substitute consent. Secondly, a direction can be issued consequential
to the refusal of the application for substitute consent. The legal test governing the
decision of whether or not to issue either type of direction is the same: the competent
authority, An Bord Pleanála, must consider whether the continuation of all or part of the
activity or operations is likely to cause significant adverse effects on the environment or
adverse effects on the integrity of a European Site.
83.     There are no equivalent provisions under the post- January 2019 regime. The practical
effect of the transitional provisions is that a developer, who had prior to January 2019
commenced peat extraction that involves an area of more than 30 hectares, is entitled to
continue that activity for a minimum period of eighteen months notwithstanding that the
developer does not have either a licence or a planning permission for the activity. The
enforcement provisions under neither the PDA 2000 nor the EPA Act 1992 apply during
this period. The period during which the activity can be carried out is extended in the
event that a licence application is made within eighteen months of January 2019.
84.     The post- January 2019 legislative regime thus suffers from the same type of deficiency
which had been condemned by the CJEU in Case C-215/06, Commission v. Ireland. The
regime purports to leave projects, which have not been properly authorised or assessed
for the purposes of the EIA Directive, undisturbed. Indeed, in one respect the post-
January 2019 regime is worse, in that enforcement action is not legally possible during
the transitional period. By contrast, under the regime for retention planning permission,
unauthorised projects were, in principle, amenable to enforcement action even if, as the
CJEU found, the competent authorities, in practice, often refrained from initiating
enforcement action.
85.     Given the similarity between the post- January 2019 regime and that condemned in Case
C-215/06, Commission v. Ireland, it is obvious that the introduction of the transitional
provisions represents a breach of the EIA Directive. The transitional provisions exceed
the limits of the discretion afforded to a Member State to provide for the regularisation of
projects which have been carried out in contravention of the requirement to obtain
development consent and to submit to an environmental impact assessment. The
absence of any possibility for the suspension of ongoing peat extraction during the
transitional period undermines the effectiveness of the EIA Directive and is contrary to EU
Page 24 ⇓
law. The procedural autonomy of a Member State is subject to the principle of
effectiveness.
86.     The position in respect of the Habitats Directive is potentially even more serious. In
contrast to the EIA Directive, the Habitats Directive imposes substantive or qualitative
requirements in the context of development consents. The national competent authorities
are generally precluded from granting consent for projects which would adversely affect
the integrity of a European Site. (This is subject to the specific requirements of article
6(4) of the Habitats Directive). A Member State is not entitled to exempt a priori
categories of development from the requirements of the Habitats Directive. See Case
C-241/08, Commission v. France. Yet this is precisely what the Ministerial Regulations
purport to do, albeit that the exemption is for a transitional period rather than on a
permanent basis. Peat extraction is to be allowed to continue on a temporary basis in
circumstances where the activity is not subject to any development consent or operating
conditions. The absence of a legislative provision whereby development works or
activities can be suspended pending the final determination of an application for a licence
gives rise to a risk that damage might be caused to a European Site.
Licensed v. unlicensed peat extraction
87.     There was some debate before me as to whether a meaningful distinction can be drawn
between the position of developers who held a licence as of January 2019, and those
developers who did not. It will be recalled that development consisting of the extraction
of peat in the course of business which involves an area exceeding 50 hectares has been
subject to an obligation to apply for a licence since June 1999.
88.     The Ministerial Regulations afford a longer transitional period to a developer who had
been carrying out peat extraction as of January 2019 in accordance with a licence or
revised licence issued by the EPA. A period of thirty-six months is allowed for the making
of an application for a (new) licence.
89.     The rationale for saying that there must be an automatic suspension of activities pending
the completion of a regularisation procedure is less compelling in circumstances where a
developer already holds a licence, albeit one granted at a time when the EPA did not have
statutory power to carry out an environmental impact assessment in the absence of a
parallel application for planning permission. (See Case C-50/09, Commission v. Ireland).
First, the ongoing peat extraction will be subject to the requirement to comply with the
conditions under the existing licence. This is to be contrasted with the position of
unlicensed peat extraction: such activity is, seemingly, to remain unregulated during the
transitional period.
90.     Secondly, the conduct of applying for and obtaining a licence demonstrates good faith on
the part of a developer. As against this, it should be noted that peat extraction which is
likely to have a significant effect on the environment and/or a significant effect on a
European Site has been subject to a statutory requirement to obtain planning permission
since, at the very latest, September 2012. The holding of a licence did not obviate the
Page 25 ⇓
necessity to apply for and to obtain planning permission following on from the
amendments introduced to section 4 of the PDA 2000 by the Environment (Miscellaneous
Provisions) Act 2011. In principle, therefore, the holder of an existing licence might
nevertheless have been carrying out peat extraction in breach of national law for a
lengthy period of time. (Of course, this would depend on the precise circumstances of the
particular project. There is no evidence before the court on these factual issues, and this
judgment does not purport to make any findings in this regard).
91.     The points of distinction identified above between licensed and unlicensed activities are,
in principle, matters which could be taken into account in deciding whether or not, in any
particular case, peat extraction should be suspended pending the determination of an
application for a (new style) licence. The difficulty, of course, is that the post- January
2019 legislative regime does not allow for the consideration of the individual
circumstances of any particular peat extraction activity. Rather, the blanket approach
adopted under the Ministerial Regulations is that both licensed and unlicensed activities
can continue during the transitional period. It is the absence of any statutory mechanism
by which the conflicting interests of the developer and the objectives of the EIA Directive
and the Habitats Directive can be weighed up that is fatal to the validity of the transitional
provisions. Even in the case of a licensed activity, it cannot be assumed a priori that to
allow peat extraction to continue for a period of in excess of thirty-six months will not
necessarily have any adverse environmental effects.
Summary
92.     My conclusions in respect of the transitional provisions can be summarised as follows.
First, it is a requirement of EU law that, at the very least, there be a possibility of
suspending development works and activities pending the determination of an application
for retrospective development consent. Secondly, the absence of any such provision
under the Ministerial Regulations renders same inconsistent with the requirements of the
EIA Directive and the Habitats Directive. This inconsistency arises in the case of the
treatment of both the licensed and unlicensed peat extraction.
(ii) No opportunity for circumvention / Exceptional circumstances
93.     The case law indicates that a regularisation procedure must not offer an opportunity to
circumvent EU environmental legislation nor to dispense with applying it. The
regularisation procedure should also remain the exception. See Case C-215/06,
Commission v. Ireland, [57] and [58].
94.     Some guidance as to the type of regularisation procedure which will pass muster under
EU law can be obtained by examining the features of national legislation which has been
considered by the CJEU. The judgment of most immediate relevance is that in Case
C-215/06, Commission v. Ireland. The judgment was delivered in respect of infringement
proceedings taken against Ireland concerning the provision then made under national law
for the grant of retention planning permission. The legislation has since been amended,
principally by the Planning and Development (Amendment) Act 2010. The shorthand “the
pre-2010 planning legislation” will be used to describe the former legislation.
Page 26 ⇓
95.     The CJEU condemned the provision made for retention planning permission under the
pre-2010 planning legislation. The CJEU singled out the following features of the
legislation for particular criticism. First, an application for retention planning permission
could be made without there being any requirement to demonstrate exceptional
circumstances. Secondly, a retention planning permission equated to a conventional
planning permission. Thirdly, there was no obligation to cease development works
pending the determination of the application for retention planning permission.
96.     The CJEU held (i) that the pre-2010 planning legislation offered an opportunity to
circumvent the EIA Directive, and (ii) that the availability of retention planning
permission deprived the enforcement system set up by Ireland of any effectiveness.
97.     An example of a regularisation procedure which falls on the other side of the line is
provided by Case C-196/16, Comune di Corridonia. The case came before the CJEU by
way of a reference for a preliminary ruling from an Italian Regional Administrative Court.
The reference concerned the legitimacy of an ex post facto assessment carried out in
respect of two power generating plants. The plants generated electricity on the basis of
biogas obtained from the anaerobic digestion of biomass. The developers had complied
with national law by submitting to a preliminary examination as to the need for an
environmental assessment of the proposed projects. The competent authorities had
decided that no assessment was required. The national rules relied upon were
subsequently held to be incompatible with EU law by the Italian Constitutional Court. At
this time, the construction of the projects, i.e. the two biogas plants, had been
completed. The operation of the plants was then suspended pending the carrying out of
an environmental impact assessment.
98.     The CJEU, while emphasising that it was ultimately a matter for the national court to
determine whether the regularisation procedure at issue was consistent with the EIA
Directive, identified a number of factors of the regime which it considered relevant as
follows. First, the developers had complied with the (then) national legislation. Secondly,
the operation of the plants had been suspended pending the regularisation procedure.
The CJEU gave a strong hint to the referring court that these factors meant that the
Italian legislation compared favourably to the pre-2010 planning legislation which had
been condemned in Case C-215/06.
Application of these principles
99.     The case law discussed under the previous heading indicates that the type of
considerations to be taken into account in determining whether or not a regularisation
procedure is compatible with EU law include (i) whether the developer had acted in good
faith in seeking to comply with national law; and (ii) whether national law makes
provision for the suspension of development works or activities pending the carrying out
of the regularisation procedure. This second requirement has been examined
exhaustively earlier in this judgment and that analysis applies mutatis mutandis to the
discussion of whether the regularisation procedure introduced by the Ministerial
Page 27 ⇓
Regulations facilitates the circumvention of the requirements of the EIA Directive and the
Habitats Directive.
100.     Applying the principles in the case law to the facts of the present case, I am satisfied that
the intended use of the licensing regime under Part IV of the EPA Act 1992 to allow for
the regularisation of ongoing peat extraction which has been—and continues to be—
carried out in breach of the requirements of the EIA Directive and the Habitats Directive
exceeds the limited discretion afforded to a Member State. The intended regularisation
procedure suffers from almost all of the deficiencies inherent in the pre-2010 planning
legislation condemned by the CJEU in Case C-215/06, Commission v. Ireland. In fact, in
certain significant respects, the regularisation procedure is even more deficient.
101.     The principal deficiencies of the regularisation procedure are as follows.
102.     First, the very requirement to apply for and obtain a development consent is to be
disapplied for a significant period of time. At least under the pre-2010 planning
legislation, a legal obligation to apply for and obtain planning permission remained in
force. A developer was thus on legal hazard of being subject to enforcement action, even
if, in practice, many local authorities chose not to institute enforcement proceedings. By
contrast, a developer who had commenced peat extraction prior to January 2019 in
breach of the EIA Directive and the Habitats Directive is to be allowed to carry on the
activity. Such a developer is to be relieved of the legal obligation even to make an
application for development consent for a further period of eighteen months. Once the
application is made, the developer is entitled to carry out peat extraction without any
conditions attached thereto pending the determination of the licence application and any
judicial review proceedings. This process could take years.
103.     Counsel on behalf of the State respondents gamely submitted that there was a
meaningful distinction to be drawn between the disapplication of the requirement to apply
for and obtain development consent, and a temporary deferral of same. It was further
submitted that whereas the former would represent a breach of EU law (by reference to
the principles in Case C-72/95, Kraaijeveld), the latter represents the permissible exercise
of the Member State’s discretion to regularise unauthorised development.
104.     I have already outlined my reasons for finding that the absence of any provision under
the intended licensing regime for possible suspension of peat extraction exceeds the limits
of a Member State’s discretion. (See paragraphs 66 et seq. above). The absence of such
a provision may also be analysed by reference to the question of whether the licensing
regime facilitates the circumvention of the requirements of the EIA Directive and the
Habitats Directive. To allow, as the Ministerial Regulations purport to do, unauthorised
development to be continued for a further period of time, which is measured in years
rather than months, can only be described as a circumvention of the requirements of the
two Directives.
105.     Secondly, a licence granted by the EPA ex post facto is treated as having precisely the
same legal effect as a development consent granted prior to the commencement of
Page 28 ⇓
development. Unlike the position in respect of substitute consent under Part XA of PDA
2000, there is no express entitlement on the part of the competent authority, namely the
EPA, to impose remedial type conditions. There is no express statutory basis upon which
an unlicensed developer can be required to remediate or reinstate lands to their condition
prior to the commencement of the unauthorised development. In short, there is no
sanction for the developer having failed to apply for development consent prior to the
commencement of development works.
106.     Thirdly, the regularisation procedure does not meet the “exceptional circumstances”
requirement under EU law. To qualify for the regularisation procedure, the developer
simply has to have been carrying out peat extraction prior to January 2019. The
entitlement to apply for retrospective development consent is thus available to any
person who had been carrying out unauthorised peat extraction on a scale in excess of
the threshold of 30 hectares. There is no necessity for any inquiry as to matters such as
the bona fides of the developer, nor as to whether the very ability to carry out a
meaningful environmental impact assessment has been undermined by the previous
unauthorised development.
107.     Counsel on behalf of the State respondents sought to argue that peat extraction is sui
generis and that, accordingly, the special treatment for the entire category is justified as
an exceptional circumstance. A number of factors were identified as being relevant in this
regard. These have been summarised as follows at pages 18 and 19 of the written legal
submissions filed on behalf of the State respondents on 2 September 2019.
108.     In the case of the single developer who currently holds IPC licences, namely Bord na
Móna, the following factors are relied upon.
“•
The long history of Bord na Móna’s peat extraction activities, much of which
was carried out at a time when peat extraction was considered to be
exempt from planning permission;
The fact that, since the time when the EPA was empowered to carry out an
EIA in its own right (2012), the planning status of peat extraction has
largely been uncertain due to litigation;
The uniquely extensive geographic area covered by Bord na Móna bogs;
and
The fact that certain environmental impacts had in fact been considered by
the EPA in granting the licences at issue and a variety of environmental
licence conditions had been imposed and were being monitored.”
109.     In the case of unlicensed developers, the following factors are relied upon.
“a.
It was necessary for these extractors to prepare an IPC licence application
and, accompanying that, an Environmental Impact Assessment Report
(“EIAR”);
Page 29 ⇓
b.
The optimum period for carrying out surveys upon which such EIARs are
based is a 12-month period in order, in accordance with relevant EPA and
European Commission guidance, to take account of the seasonal impacts of
peat extraction, which enables a 4-season survey of the site to take place
in order to establish a baseline for the assessment of the likely effects of
the activity on the local environment; and
c.
There had been some significant uncertainty about the regulatory status of
industrial peat extraction prior to the Challenge to Legislation.”
110.     The relevance, if any, of the distinction between those developers who currently hold
licences from the EPA and those who do not has already been discussed at paragraph 87
et seq. above. The point has been made that the licences currently held by Bord na Móna
were granted at a time when national law did not empower the EPA to carry out an
environment impact assessment in circumstances where the development was not subject
to a parallel requirement to obtain planning permission. The legislative gap in this regard
had been condemned by the CJEU in Case C-50/09, Commission v. Ireland. The point
has also been made that the fact that a developer might hold a licence from the EPA does
not per se obviate the necessity to hold planning permission. Again, it is reiterated that
no finding is made that this is the case in respect of any of the licensed activities carried
on by Bord na Móna.
111.     At its height, the fact that a developer currently holds a licence is something which could
certainly be weighed in the balance in determining whether or not peat extraction would
have to be suspended pending the carrying out of a regularisation procedure. It does not
obviate the necessity upon a Member State to put in place legislative measures which at
least allow for the possibility of suspension.
112.     The other factors relied upon in respect of Bord na Móna could not constitute exceptional
circumstances such as to justify, without more, an entitlement on the part of the
developer to apply to regularise the status of any development carried out in breach of
the requirements of the EIA Directive and the Habitats Directive. That peat extraction
has been carried out for a lengthy period of time over a uniquely extensive geographic
area is a factor which militates against a finding of exceptional circumstances. The
temporal and geographical scale give added urgency to ensuring that the activity is
properly regulated.
113.     Insofar as the alleged legal uncertainty is concerned, it is well established that a Member
State is not entitled to rely on its own default as a reason for failing to comply with EU
law. In any event, no attempt has been made to explain what the alleged legal
uncertainty is. As discussed earlier, the planning legislation was amended under the
Environment (Miscellaneous Provisions) Act 2011 to impose an obligation to obtain
planning permission in the case of development in respect of which an environmental
impact assessment or an appropriate assessment is required. The implications of this
legislative amendment for peat extraction were expressly addressed by An Bord Pleanála
in two section 5 declarations published in April 2013. A legal challenge to these
Page 30 ⇓
declarations was dismissed by the High Court in 2018, and leave to appeal to the Court of
Appeal was refused precisely because the legal position was not uncertain. See
paragraph 34 et seq. above.
114.     Finally, the fact that the preparation of the necessary paperwork for an application for
retention planning permission—and, in particular, the preparation of a four-season
environmental impact assessment report—cannot justify allowing peat extraction to
continue in the interim. At most, it indicates that the lead time for the determination of
an application will be lengthy. It does not follow as a corollary that unauthorised peat
extraction should be allowed to continue in the interim.
(iii) Assessment must be retrospective and prospective
115.     The judgment in Case C-196/16, Comune di Corridonia indicates that the assessment
must be both retrospective and prospective. It is not permissible to confine the
assessment to the future effects of the project. This requirement is expressly provided
for under the pre- January 2019 legislative regime. More specifically, express provision is
made under Part XA of the PDA 2000 for the preparation of what is described as a
“remedial” environmental impact assessment report, and a “remedial” Natura impact
statement. These reports must identify the significant effects, if any, on the environment
or the European Site, which have occurred or which are occurring or which can reasonably
be expected to occur because the development the subject of the application for
substitute consent was carried out. The reports must also identify any appropriate
remedial measures undertaken or proposed to be undertaken by the applicant for
substitute consent to remedy any significant adverse effects on the environment or the
European Site. (See sections 177F and 177G of the PDA 2000).
116.     There is also express provision for the imposition of conditions relating to remediation of
all or part of the site on which the development the subject of the grant of substitute
consent is situated. (See section 177K(3) of the PDA 2000).
117.     Where An Bord Pleanála refuses to grant substitute consent, it may issue a direction to
the developer (a) to cease activity or operations or (b) to take remedial measures. The
remedial measures may include measures to restore the site to a safe and
environmentally sustainable condition; and to avoid the deterioration of natural habitats
and the habitats of species or the disturbance of the species in a European Site. (See
section 177L of the PDA 2000).
118.     There are no equivalent provisions to be found under the EPA Act 1992, even as amended
by the Ministerial Regulations. Counsel on behalf of the State respondents submitted,
however, that the amended legislation should be interpreted in a manner which is
consistent or sympathetic with EU law, and that on this interpretation similar provisions
can, in effect, be “read in” to the EPA Act 1992.
119.     With respect, the obligation to transpose a directive is to do so in clear and precise terms.
This point has previously been made in the specific context of the EIA Directive by the
CJEU in Case C-50/09, Commission v. Ireland.
Page 31 ⇓
“46.
Whilst it is true that, according to settled case-law, the transposition of
a directive into domestic law does not necessarily require the
provisions of the directive to be enacted in precisely the same words in
a specific, express provision of national law and a general legal context
may be sufficient if it actually ensures the full application of the
directive in a sufficiently clear and precise manner (see, in particular,
Case C-427/07 Commission v Ireland [2009] ECR I 6277 -, paragraph
54 and the case-law cited), the fact remains that, according to equally
settled case-law, the provisions of a directive must be implemented
with unquestionable binding force and with the specificity, precision
and clarity required in order to satisfy the need for legal certainty,
which requires that, in the case of a directive intended to confer rights
on individuals, the persons concerned must be enabled to ascertain the
full extent of their rights (see, in particular, Commission v Ireland,
paragraph 55 and the case-law cited).”
120.     The legislative amendments introduced by the Ministerial Regulations fail to transpose
properly the EIA Directive and the Habitats Directive. This is because the new licensing
regime for peat extraction has simply been bolted-on to the existing IPC licensing regime,
with no amendments made to reflect the requirements prescribed under EU law for the
grant of retrospective development consent.
Remedy for breach of EIA Directive and Habitats Directive
121.     For the reasons set out above, I have concluded that the regularisation procedure
introduced for peat extraction under the Ministerial Regulations is inconsistent with the
requirements of the EIA Directive and the Habitats Directive. More specifically, the
proposed licensing regime exceeds the limits of the discretion afforded to a Member State
to provide a regularisation procedure for development which has been carried out in
breach of the requirements of the two Directives.
122.     The next issue to be considered, therefore, is the nature of the remedy to be granted.
One of the unusual features of this case is that the legislative provisions in place prior to
the making of the Ministerial Regulations in January 2019 appear to have been largely
compliant with the requirements of EU law. The substitute consent regime appears to
have all of the hallmarks of a proper regularisation procedure. These have been outlined
in detail at paragraph 50 above.
123.     (For the avoidance of doubt, this judgment has nothing to say in respect of the very
specific complaint made in a number of judicial review proceedings that the special
treatment of quarrying activities is inconsistent with EU law. Any determination as to
whether such special treatment is legitimate is a matter to be addressed in those other
proceedings).
124.     Certainly insofar as the regulation of peat extraction is concerned, the Ministerial
Regulations entailed a retrograde step. Were this court to make an order disapplying the
Page 32 ⇓
Ministerial Regulations, then this would appear to have the effect of restoring the
previously compliant legislative regime.
125.     The case law discussed earlier indicates that a national court has an obligation to disapply
national legislation which is in conflict with EU law. As explained presently, however, it is
possible that a similar result might be achieved by reliance on the national law principle of
ultra vires. I return to this issue at paragraphs 206 et seq. below.
(2). article 15 / use of secondary legislation
126.     Up until this point in the judgment, consideration of the Applicant’s case has been
confined to the allegation that the Ministerial Regulations are inconsistent with EU Law.
This, however, is only one strand of the Applicant’s case. The Applicant advances a
related argument to the effect that the making of the Ministerial Regulations is ultra vires
insofar as it involves the use of secondary legislation to amend primary legislation. It will
be recalled that the first of the two Ministerial Regulations, namely the EU (Environmental
Impact Assessment) (Peat Extraction) Regulations 2019, purports to make a number of
amendments to the EPA Act 1992 and a single amendment to the PDA 2000.
127.     The Applicant contends that the Ministerial Regulations are ultra vires on the grounds that
they trespass upon the exclusive legislative function of the Oireachtas. For ease of
reference, I propose to describe this argument as “the Article 15.2 argument”. It should
be noted, however, that this shorthand is not entirely accurate. This is because, strictly
speaking, a trespass upon the legislative function would result in the Ministerial
Regulations being set aside as ultra vires the European Communities Act 1972, rather
than struck down as unconstitutional by reference to Article 15.2.
128.     The State respondents’ answer to this argument is to say that the amendments to the
primary legislation are “necessitated” by EU law, or, in the alternative, that the effective
enforcement of EU law is “incidental, supplementary or consequential” to the obligations
arising from the EIA Directive and Habitats Directive. (See page 25 of the written legal
submissions of 2 September 2019). The phrase “incidental, supplementary or
consequential” echoes the language of section 3 of the European Communities Act 1972.
129.     The State respondents submit, in effect, that the Irish State enjoys very limited discretion
as to the manner in which it must implement the EIA Directive and the Habitats Directive.
Such choices as remain to be made do not involve the making of policy, and, accordingly,
do not require to be done by way of primary legislation enacted by the Oireachtas.
Judicial self-restraint
130.     Before embarking upon any consideration of the detail of this second head of challenge, it
is necessary first to address the following procedural point raised on behalf of the State
respondents. Counsel submitted that this court should have regard to the principle of
judicial self-restraint, and, accordingly, should only determine what she characterised as
the constitutional issues in the event that it is necessary to do so. Put otherwise, counsel
suggested that the court should approach the issues in the following sequence: first, the
Page 33 ⇓
EU law issues should be considered, and, it is only if the court’s decision in relation to
same is not dispositive of the proceedings, that the court should then move on to consider
the constitutional issues.
131.     The term “judicial self-restraint” is a shorthand for the principle that a court should only
determine a challenge to the constitutional validity of legislation if necessary to do so.
The principle has been stated with enviable clarity by the Supreme Court in State
(P. Woods) v. Attorney General [1969] I.R. 385 (at 399/400).
“The necessity for the Courts to exercise self-restraint in the exercise
of their constitutional jurisdiction to review legislation is due in part to
the inherent limitations of the judicial process. When a court is
presented with the question of the constitutionality of a legislative
enactment, it can do only one of two things; it can find it to be
constitutional, or it can strike it down as unconstitutional. If it finds it
to be constitutional, it merely gives to an already valid law a judicial
imprimatur. If it declares it to be unconstitutional, it holds it to be a
nullity; it leaves a void where what purported to be a statutory
provision was; but it cannot fill that void. It unmakes what was put
forth as a law by the legislature but, unlike the legislature, it cannot
enact a law in its place. It is clear that if this power, which may seem
abrogative and quasi-legislative, were used indiscriminately it would
tend to upset the structure of government: Rescue Army v. Municipal
Court. […]”
132.     Part of this passage has been cited with approval by the Supreme Court in its very recent
judgment in Mohan v. Ireland and the Attorney General [2019] IESC 18; [2019] 2 I.L.R.M. 1.
The judgment in Mohan was concerned with the locus standi requirement, and
not with the principle of judicial self-restraint in general. Nevertheless, the judgment is of
assistance in that it identifies the justification for prudential limitations on claims
challenging the validity of legislation by reference to the Constitution.
“11.
The decision in Cahill v. Sutton [1980] I.R. 269 contains an important
discussion on the justification for a rule of locus standi (and, indeed,
for the other prudential limitations on claims challenging the validity of
legislation by reference to the Constitution). Standing is not, as a
general rule, established by a simple desire to challenge legislation, no
matter how strongly the putative claimant believes the provision to be
repugnant to the Constitution. It is now clear that there is no actio
popularis (a right on the part of a citizen to challenge the validity of
legislation without showing any effect upon him or her, or any greater
interest than that of being a citizen) in Irish constitutional law,
although, of course, some jurisdictions do permit such claims. Rather,
in Irish law, it is necessary to show some adverse effect on the plaintiff
either actual or anticipated. Part of the rationale for this rule is
Page 34 ⇓
discussed in Cahill v. Sutton. Public general legislation exists because
a majority of the members of the Oireachtas considered, at some
stage, that the legislation was in the public interest. The particular
provision challenged may indeed still operate entirely beneficially and
helpfully for the great majority of cases. If such a provision is
invalidated, it is, in principle, of no effect in law and the area is left
unregulated, with the result that citizens may be deprived of the
benefit of the provision. The invalidity of legislation is therefore a very
significant disruption of the legal order which operates in a blunt and,
essentially, negative way. It simply removes a law or an aspect of the
law, can put nothing in its place, and yet can throw into question
transactions taken on foot of the provision. As Henchy J. in the High
Court put it more than a decade earlier in State (Woods) v. Attorney
General [1969] I.R. 385, at p. 399:-
‘It unmakes what was put forth as a law by the legislature but,
unlike the legislature, it cannot enact a law in its place. It is clear
that if this power, which may seem abrogative and quasi-
legislative, were used indiscriminately it would tend to upset the
structure of government.’.”
133.     Having carefully considered whether the principle of judicial self-restraint might be
applied to the present case, I have concluded that it does not apply for the following
reasons. First, there is no alternative argument advanced by the Applicant which would
allow the proceedings to be determined on a narrow ground without having to determine
the validity of the Ministerial Regulations. Rather, the entire thrust of the proceedings is
to set aside the Ministerial Regulations. The case can be distinguished from many other
planning and environmental cases where the thrust of the proceedings is directed to a
decision to grant development consent, and any challenge to the underlying legislation is
made in the alternative only. In such cases, a court will endeavour to determine the
proceedings on narrow administrative law grounds before embarking upon a consideration
of the challenge to the underlying legislation.
134.     Secondly, the approach advocated for on behalf of the State respondents would not, in
any event, avoid the necessity of making a ruling on the validity of the Ministerial
Regulations. It will be recalled that the submission is that the EU law issues should be
determined first. Of course, if these issues are determined in favour of the Applicant,
then this will bring about precisely the type of outcome that the principle of judicial self-
restraint is intended to avoid, i.e. the setting aside of legislation. The making of the
Ministerial Regulations would have been found to be ultra vires the European
Communities Act 1972. Secondary legislation which is inconsistent with EU legislation
cannot be said to be “incidental, supplementary and consequential” to the EU legislation
or “necessitated” by the Irish State’s membership of the European Union. Were the court
to move on to a consideration of the Article 15.2 argument, this would not actually make
Page 35 ⇓
matters any worse. The mischief which the principle of judicial self-restraint is intended
to address is that of setting aside legislation unnecessarily. It makes little practical
difference whether the Ministerial Regulations are to be set aside solely by reference to
EU law or by reference to both EU law and the Article 15.2 argument. The “disruption of
the legal order” inherent in setting aside legislation—which the principle of judicial self-
restraint is intended to avoid unless necessary to adjudicate on the proceedings—will
have arisen in either event.
135.     Thirdly, and perhaps most importantly, the EU law grounds and the Article 15.2 argument
are so enmeshed that same cannot be separated out. The critical issue which this court
has to determine is to identify the limits of a Member State’s discretion to provide a
procedure whereby the status of projects carried out in breach of the requirements of the
EIA Directive and the Habitats Directive can be regularised. The determination of this
issue will be largely dispositive of the proceedings. If, as the Applicant contends, the
discretion is narrow, then the Ministerial Regulations are liable to be set aside on the
basis that they exceed the limits of the Member State’s discretion. Conversely, if, as the
State respondents contend, the discretion is a very broad one, then the Ministerial
Regulations are liable to be set aside on the basis of the Article 15.2 argument. The two
arguments are, in a sense, the mirror image of each other. It would be artificial to
address one argument but not the other.
136.     Fourthly, it seems preferable that the High Court should seek to address both the EU law
issues and the Article 15.2 argument now, lest there be an appeal to the Court of Appeal.
If the High Court were to decide the present case solely by reference to the EU law issues,
only for its decision to be set aside subsequently on appeal, then it might be necessary to
remit the matter to the High Court for a rehearing and determination on the Article 15.2
argument. This would further delay the resolution of the dispute between the parties.
Given the urgency of the case, it seems preferable to avoid this contingency by
addressing both issues now. This would allow the parties to bring all relevant issues
before the Court of Appeal.
Overview of the “principles and policies” test
137.     In order to put the competing arguments of the parties in context, it may be helpful to
take a step back, and to outline briefly the manner in which European Directives are
transposed into the domestic legal order.
138.     European Directives, such as the EIA Directive and the Habitats Directive, are not
normally directly applicable in the domestic legal order of a Member State, but instead
require to be transposed by way of national legislation. (This is subject to a possible
exception in the case of those provisions of a Directive which have “direct effect”, but that
concept is not immediately relevant to this aspect of the present case). The CJEU has
consistently held that the provisions of a Directive must be implemented into the
domestic legal order with “unquestionable binding force”, and with the specificity,
precision and clarity required in order to satisfy the need for legal certainty. (See, for
example, Case C-50/09, Commission v. Ireland).
Page 36 ⇓
139.     The introduction of national implementing legislation is, therefore, necessary to transpose
Directives into the domestic legal order. EU law is largely indifferent to whether such
national legislation is primary or secondary legislation, provided that it is legally binding.
The distinction between primary and secondary legislation is, however, a matter of great
significance under Irish constitutional law. This significance arises as a consequence of
the fact that legislative power is exclusively vested in the Oireachtas. Article 15.2.1° of
the Constitution of Ireland reads as follows.
“1° The sole and exclusive power of making laws for the State is hereby
vested in the Oireachtas: no other legislative authority has power to
make laws for the State.”
140.     It is well established in the case law that this does not preclude the delegation by the
Oireachtas of a power to make secondary legislation. This is subject to the proviso that
the parent legislation must contain a sufficient statement of “principles and policies” to
guide the delegate in making the secondary legislation.
141.     This approach has been applied, in modified form, to secondary legislation which is made
for the purposes of implementing EU legislation. In effect, the EU legislation is treated as
the parent legislation. It is constitutionally permissible to employ secondary legislation to
implement EU legislation provided that the secondary legislation does no more than fill in
the details of “principles and policies” contained in the European Community or European
Union legislation. If, however, the European legislation leaves over significant policy
choices to the Member States, then primary legislation may be required as a matter of
constitutional law.
142.     The precise mechanism by which transposition of EU legislation is achieved is via the
European Communities Act 1972 (as amended). This Act authorises the use of secondary
legislation to give effect to EU legislation, including European Directives. Section 2
provides that acts adopted by the institutions of the European Union (and by the
institutions of what was formerly the European Communities) shall be part of the
domestic law of the State under the conditions laid down in the treaties governing the
European Union.
143.     Section 3 of the European Communities Act 1972 insofar as relevant provides as follows.
“3.(1) A Minister of State may make regulations for enabling section 2 of this
Act to have full effect.
(2) Regulations under this section may contain such incidental,
supplementary and consequential provisions as appear to the Minister
making the regulations to be necessary for the purposes of the
regulations (including provisions repealing, amending or applying, with
or without modification, other law, exclusive of this Act).”
Page 37 ⇓
144.     As appears, regulations under the section can, in principle, be used to repeal or amend
other legislation, including primary legislation.
145.     The Supreme Court in Meagher v. Minister for Agriculture [1994] 1 I.R. 329 held that
these powers are constitutional by reference to what was then Article 29.4.5° of the
Constitution of Ireland. See page 351/52 of the reported judgment as follows.
“The power to make regulations contained in section 3, sub-s. 1 of the
Act of 1972 is exclusively confined to the making of regulations for one
purpose, and one purpose only, that of enabling s. 2 of the Act to have
full effect. Section 2 of the Act which provides for the application of
the Community law and acts as binding on the State and as part of the
domestic law subject to conditions laid down in the Treaty which, of
course, include its primacy, is the major or fundamental obligation
necessitated by membership of the Community. The power of
regulation-making, therefore, contained in s. 3 is prima facie a power
which is part of the necessary machinery which became a duty of the
State upon its joining the Community and therefore necessitated by
that membership.
The Court is satisfied that, having regard to the number of Community
laws, acts done and measures adopted which either have to be
facilitated in their direct application to the law of the State or have to
be implemented by appropriate action into the law of the State, the
obligation of membership would necessitate facilitating of these
activities, in some instances, at least, and possibly in a great majority
of instances, by the making of ministerial regulation rather than
legislation of the Oireachtas.
The Court is accordingly satisfied that the power to make regulations in
the form in which it is contained in s. 3, sub-s. 2 of the Act of 1972 is
necessitated by the obligations of membership by the State of the
Communities and now of the Union and is therefore by virtue of Article
29, s. 4, sub-ss. 3, 4 and 5 immune from constitutional challenge.”
146.     In its subsequent judgment in Maher v. Minister for Agriculture [2001] IESC 32,
[2001] 2 IR 139, the Supreme Court reiterated that there are limits to the entitlement
to make regulations under the European Communities Act 1972. In particular, if
regulations went further than simply implementing details of principles or policies to be
found in a European Directive or Regulation, and instead determined such principles or
policies, then such regulations would be ultra vires.
147.     Fennelly J. summarised the findings in Meagher as follows. (See page 254 of the
reported judgment in Maher).
Page 38 ⇓
Meagher v. Minister for Agriculture [1994] 1 I.R. 329 is clear authority
for the proposition that, where a provision of Community law imposes
obligations on the State, leaving no room (or perhaps no significant
room) for choice, then Article 15.2.1 of the Constitution is not infringed
by the use of ministerial regulation to implement it. Both the judgment
of the court and that of Denham J. expressly preserve the force of that
provision, as it has been interpreted, for cases where such an
obligation does not exist. The ‘principles and policies’ test applies
mutatis mutandis where the delegated legislation represents an
exercise of a power or discretion arising from Community law
secondary legislation. It applies with particular clarity to the case of
directives where Article 249(EC) leaves the choice of forms and
methods to the member states.”
148.     Keane C.J. stated that it was “almost beyond argument” that the choice of a statutory
instrument—rather than primary legislation—as a vehicle for implementing the detailed
rules required under EU legislation was not in any sense “necessitated” by the obligations
of membership of what was then the European Community (now the European Union).
(See pages 181/82 of the reported judgment in Maher).
149.     The Chief Justice went on to state that the “essential inquiry” must be as to whether the
making of the impugned regulations was in breach of Article 15.2. This involved an
application of the test in City View Press Ltd. v. An Comhairle Oiliúna [1980] I.R. 381,
treating the relevant EU legislation as the “parent legislation”. (See page 183 of the
reported judgment in Maher).
“However, in applying that test to a case in which the regulation is
made in purported exercise of the powers of the first respondent under
s. 3 of the Act of 1972, it must be borne in mind that while the parent
statute is the Act of 1972, the relevant principles and policies cannot
be derived from that Act, having regard to the very general terms in
which it is couched. In each case, it is necessary to look to the
directive or regulation and, it may be, the treaties in order to reach a
conclusion as to whether the statutory instrument does no more than
fill in the details of principles and policies contained in the European
Community or European Union legislation.”
150.     As illustrated by the case law, whereas the “principles and policies” test can be shortly
stated, its application in practice is not always straightforward. Even in the leading case
of Maher itself, Keane C.J. expressed himself as having experienced “some difficulty” in
arriving at a conclusion as to how the issue was to be resolved in the circumstances of the
case, but was ultimately persuaded by a detailed analysis of the relevant European
Regulation in question that the choices as to policy available to the Member States had, in
truth, been reduced almost to “vanishing point”.
Page 39 ⇓
151.     More recently, the “principles and policies” test has been described as “not without its
difficulties” and as “somewhat elusive” in O’Sullivan v. Sea Fisheries Protection Authority
[2017] IESC 75; [2017] 3 I.R. 751. O’Donnell J., delivering the judgment of the Supreme
Court, emphasised that the entire concept of subordinate regulation depends upon and
contemplates a delegate making decisions between a range of options.
“39.
However, it is in my view an error to approach the issue on the basis
that the parent legislation must be scoured to provide detailed
guidance for the subordinate rule maker. As observed in Bederev v
Ireland, Attorney General [2016] IESC 34, every delegate must make
some choice. If the parent legislation dictated the outcome, then there
would be no benefit gained by the delegation of the task to the
subordinate: the parent legislation could, and therefore should, include
the provision in the first place. Thus the entire concept of subordinate
regulation depends upon and contemplates decisions being made
between a range of options. Any decision involves consideration of
what the decision-maker considers is the best solution in the
circumstances. The question is the scope of the decision making left to
the subordinate rule maker.
40.     The test can be approached negatively. Is the area of rule making
delegated, so broad as to constitute a trespass by the delegate or
subordinate on an area reserved to the Oireachtas by Article 15.2.1?
This involves a consideration of a number of factors including the
function of the parent legislation and the area in which the subordinate
has freedom of action. An apparently wide delegation may be limited
by principles and policies clearly discernible in the legislation. On the
other hand, a very narrow area of delegation may require very little in
terms of principles and policies in parent legislation, on the basis that
by delegating an area with only a limited number of possible solutions
the Oireachtas was plainly satisfied that any one of those outcomes
could be chosen consistent with the policy of the Act, and properly be
decided on by a subordinate body which might have access to further
detailed information, or indeed on the basis that the outcome might be
more easily adjusted within the scope left to the subordinate, in the
light of changing circumstances. To take a simple example, if a body is
given authority to fix all the terms of a licence, that is a power which
may on its face appear unlimited, and it may be necessary to consider
if there are sufficient policies and principles in the parent legislation to
narrow the scope of subordinate decision making, and guide the
decision-maker. If however the delegation is merely to fix a licence fee
within a minimum and maximum already identified, it may follow that
the Oireachtas has already contemplated a range of possible outcomes
and considered them compatible with the statutory objective, and was
content to leave the decision as to what precise point within that scale
Page 40 ⇓
was the most appropriate in the light of changing circumstances, to a
subordinate body. It would not be necessary to look in addition for
detailed principles and policies to guide that task.”
152.     O’Donnell J. also drew attention to the fact that section 3 of the European Communities
Act 1972 sets its own test. Regulations under the section may contain “such incidental,
supplementary and consequential provisions” as appear to the Minister making the
regulations to be necessary. O’Donnell J. indicated that it can be useful to approach the
question in this way.
153.     The judgment went on then to analyse the EU Regulations at issue. The Supreme Court
held that the choices remaining to the Member States were “severely limited” in terms of
the overall regulatory scheme. A choice does not imply a capacity to determine policy.
The matters dealt with under the secondary legislation were “incidental, supplemental and
consequential” to the provisions of the EU Regulations, and raised no issue of broad policy
that required a determination by the Oireachtas.
Application of the “principles and policies” test
154.     The case law discussed above prescribes the legal test for determining, in any particular
instance, whether the use of secondary legislation to transpose EU legislation is
permissible, or whether it trespasses upon the exclusive legislative function of the
Oireachtas. The application of this test entails identifying the extent of the policy choices,
if any, left over to the Member States under the relevant EU legislation. If there are
significant policy decisions to be made by the Member States, then it will not be
permissible, as a matter of constitutional law, to rely on secondary legislation.
Conversely, if the discretion to be exercised is so constrained by principles and policies
set out in the EU legislation as to leave no real choice to a Member State, then the use of
secondary legislation will be legitimate. As Keane C.J. put it pithily in Maher, the
discretion may have been reduced almost to “vanishing point”.
155.     In the circumstances of the present case, the State respondents find themselves caught
in a pincer movement. In order to defend the charge that the Ministerial Regulations are
inconsistent with the EIA Directive and the Habitats Directive, the State respondents have
had to argue that the two Directives confer a very broad discretion upon the Member
States. On the State respondents’ analysis, this discretion extends to allowing a Member
State to disapply the requirement to comply with the two Directives for a lengthy period,
to be measured in years rather than months. This choice is, seemingly, afforded to the
Member States notwithstanding that they were required to have implemented the two
Directives in full decades ago.
156.     Yet in order to defend the separate charge that the Ministerial Regulations trespass upon
the exclusive legislative function of the Oireachtas, the State respondents have had to
downplay the discretion afforded under the two Directives. In particular, it has been
argued that there are no significant policy choices left over to the Member States.
Page 41 ⇓
157.     These two positions are irreconcilable. For the reasons set out in detail earlier in this
judgment, I have concluded that the discretion afforded to the Member States to provide
for a regularisation procedure is limited, and that the Ministerial Regulations exceed that
discretion. It follows that the Ministerial Regulations are inconsistent with the EIA
Directive and the Habitats Directive. If this conclusion is correct, then the making of the
Ministerial Regulations is ultra vires the European Communities Act 1972. Secondary
legislation which is inconsistent with EU legislation cannot be said to give effect to the
“principles and policies” contained in the EU legislation. Nor can it be said to be
“incidental, supplementary and consequential” to the EU legislation or “necessitated” by
the Irish State’s membership of the European Union. Rather, it is contrary to EU law.
158.     Lest I be incorrect in these conclusions, I propose to address the alternative argument,
namely that the Ministerial Regulations trespass upon the exclusive legislative function of
the Oireachtas. It bears repeating that the Article 15.2 argument will only ever be
relevant if the content of the Ministerial Regulations is consistent with EU law. Put
otherwise, the working assumption for any analysis of the Article 15.2 argument must be
that EU law affords a Member State, such as Ireland, a significant discretion as to the
precise form of regularisation procedure which it may introduce for the purposes of the
EIA Directive and the Habitats Directive.
159.     During the course of argument before me, much energy was expended in arguing that the
Ministerial Regulations contain measures which were within the range of choices open to
the Member States under the two EU Directives. Whereas this is directly relevant to the
question of whether the Ministerial Regulations are consistent with EU law, it is not the
correct legal test for the purposes of the Article 15.2 argument. It is a sine qua non to
the exercise of the power to make regulations under the European Communities Act 1972
that the regulations are consistent with EU law. A set of regulations which are consistent
with EU law may nevertheless be invalid as a matter of national constitutional law
precisely because they take the form of secondary rather than primary legislation. Put
otherwise, EU law is concerned with the content of the measure. Provided that the
content is consistent with EU law, it is largely a matter of indifference to the EU legal
order as to whether same has been introduced by way of primary or by way of secondary
legislation. For the purposes of Article 15.2 of the Constitution of Ireland, however, that
distinction is crucial.
160.     The Ministerial Regulations entail a number of policy choices which are not only significant
in objective terms, but which actually cut across primary legislation which has been
enacted by the Oireachtas for the precise purpose of giving effect to the two EU
Directives. This may be illustrated by reference to the following two examples.
161.     The first and most obvious policy choice under the Ministerial Regulations is that peat
extraction is now to benefit from a uniquely generous regularisation procedure. A
developer who has been carrying out unauthorised peat extraction is to be entitled to
apply for development consent retrospectively, without any requirement to demonstrate
“exceptional circumstances” as defined. This puts such development in a privileged
Page 42 ⇓
position when compared to all other categories of EIA projects. All other EIA projects
(save quarries) are subject to the full rigours of Part XA of the PDA 2000. Quarrying
activities may access the substitute consent procedure via a different gateway,
i.e. section 261A, but are still subject to the possibility of a direction to cease operations
or activities under section 177J. The modified treatment of quarrying activity is
supposedly justified by reference to the fact that such development had been subject to
an earlier regulatory intervention under section 261 of the PDA 2000. Even then, a
quarry operator is required to demonstrate that the works had the benefit of some form
of authorisation, either an old planning permission or a pre-1964 user.
162.     The preferential treatment afforded to peat extraction under the Ministerial Regulations is
not a policy choice which can be said to be “necessitated” by EU law. EU law does not
mandate that any particular category of project is to have access to a regularisation
procedure on more favourable terms than all other projects. This choice to prefer peat
extraction is one which can only be justified by reliance upon an argument that Member
States enjoy a very broad discretion under the EIA Directive and the Habitats Directive.
The exercise of such a broad discretion entails policy-making, and is something which is
reserved to the Oireachtas. This is especially so given that the Oireachtas has expressly
addressed the position of peat extraction, and has enacted legislation which indicates that
it is to be subject to a more rigorous enforcement regime than all other development (bar
quarrying activity). As explained at paragraph 37 above, the seven-year time-limit on
enforcement proceedings has been modified in the case of peat extraction. An application
may be made at any time for an order directing the cessation of unauthorised peat
extraction. (See Environment (Miscellaneous Provisions) Act 2011).
163.     The special treatment afforded to peat extraction also cuts across the legal test
introduced by the Oireachtas under the Planning and Development (Amendment) Act
2010 which identifies the type of exceptional circumstances which would justify the
regularisation of projects which have been carried out in breach of the EIA Directive
and/or the Habitats Directive. The criteria governing an application for leave to apply for
substitute consent are defined under section 177D(2) of the PDA 2000 as follows.
“(2)
In considering whether exceptional circumstances exist the Board shall
have regard to the following matters:
(a) whether regularisation of the development concerned would
circumvent the purpose and objectives of the Environmental
Impact Assessment Directive or the Habitats Directive;
(b) whether the applicant had or could reasonably have had a
belief that the development was not unauthorised;
(c) whether the ability to carry out an assessment of the
environmental impacts of the development for the purpose of
an environmental impact assessment or an appropriate
assessment and to provide for public participation in such an
assessment has been substantially impaired;
Page 43 ⇓
(d) the actual or likely significant effects on the environment or
adverse effects on the integrity of a European site resulting
from the carrying out or continuation of the development;
(e) the extent to which significant effects on the environment or
adverse effects on the integrity of a European site can be
remediated;
(f)
whether the applicant has complied with previous planning
permissions granted or has previously carried out an
unauthorised development;
(g) such other matters as the Board considers relevant.”
164.     As appears, the issues identified by the Oireachtas as relevant include the bona fides of a
developer, i.e. whether a developer had or could reasonably have had a belief that the
development was not unauthorised; and whether either the ability to carry out an
assessment or to provide for public participation in such an assessment has been
substantially impaired as a result of the carrying out of the development.
165.     The blanket treatment of unauthorised peat extraction provided for under the Ministerial
Regulations is inconsistent with the nuanced approach endorsed by the Oireachtas.
166.     The Ministerial Regulations, if allowed stand, would produce an outcome contrary to that
intended by the Oireachtas. Peat extraction would move from being one of the most
strictly regulated categories of development to the least regulated. It would represent a
serious breach of the separation of powers, and a disregard of Article 15.2, were this to
happen.
167.     A second example of a broad policy decision purportedly made under the Ministerial
Regulations is in respect of the balance to be struck between environmental protection
and the interests of developers. The Ministerial Regulations purport to recalibrate the
regularisation procedure in favour of developers. There is, for example, no possibility of
enforcement action against unauthorised peat extraction pending the making of and
determination of licence applications. This approach is in marked contrast to the
sophisticated regime which the Oireachtas had put in place under Part XA of the PDA
2000. This regime expressly allows An Bord Pleanála to direct the developer to cease
activity or operations. The removal of this possibility in the case of peat extraction
represents a significant change in policy which could only lawfully be made by the
Oireachtas.
Summary
168.     As the case law discussed earlier indicates, in some instances it can be difficult to identify
the line between merely implementing policy, and actually making policy. As O’Donnell J.
emphasised in O’Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75;
Page 44 ⇓
[2017] 3 I.R. 751, every delegate of a power to make secondary legislation must make
some choice, and a choice does not imply a capacity to determine policy.
169.     In the case of the Ministerial Regulations, however, the application of the legal test is
straightforward. The choices made are significant and trespass upon matters which have
already been the subject of law-making by the Oireachtas. The position can be
contrasted with that posited by Denham J. in Meagher. The secondary legislation at issue
in that case was upheld on the basis that to require primary legislation would be
“artificial” and would result in a “sterile debate” before the Oireachtas. This was because
there was no “policy or principle which can be altered by the Oireachtas”. See Meagher v.
Minister for Agriculture [1994] 1 I.R. 329 at 367 as follows.
“In the Directives herein the policies and principles have been
determined. Thus there is no role of determining policies or principles
for the Oireachtas. While the Directive must be implemented there is
no policy or principle which can be altered by the Oireachtas, it is
already binding as to the result to be achieved.
That being the case the role of the Oireachtas in such a situation would
be sterile. To require the Oireachtas to legislate would be artificial. It
would be able solely to have a debate as to what has already been
decided, which debate would act as a source of information. Such a
sterile debate would take up Dail and Senate time and act only as a
window on community directives for the members of the Oireachtas
and the nation. That is not a role envisaged for the Oireachtas in the
Constitution.
Consequently, solely because the Minister is making a regulation which
repeals a statute, does not of itself invalidate the regulation which as a
vehicle, as a choice, can be intra vires the Constitution under Art. 29.4.
To say that the regulations breach Art. 15.2.1 simply because it
repeals or amends a statute is to hold the false premise that the
Minister is determining principles or policy.”
170.     By contrast—and on the working assumption that the EU Directives confer the very wide
discretion contended for by the State respondents—there are genuine policy choices to be
made. Not only could these be meaningfully debated by the Oireachtas, these very issues
have already been the subject of primary legislation.
171.     Finally, for the avoidance of any doubt, this judgment is not intended to suggest that
secondary legislation can never be employed to transpose EU environmental legislation.
This can only be determined by considering the extent of the discretion left over to the
Member States in each instance. A practical example of the type of EU legislative
provisions which might properly be transposed by way of secondary legislation is to be
found in Directive 2014/52/EU. This Directive made a number of amendments to the
Page 45 ⇓
previous version of the EIA Directive. In some instances, the amendments were highly
specific and left little choice to the Member States. For example, a new definition of
“environmental impact assessment” has been introduced under Directive 2014/52/EU.
Given that a Member State is required to implement such provisions faithfully (see, by
analogy, Case C-50/09, Commission v. Ireland), it would seem legitimate to do so by way
of secondary legislation.
172.     An example of the proper use of secondary legislation to implement aspects of the
Habitats Directive is provided by O’Connor v. Director of Public Prosecutions [2015] IEHC 558;
[2015] 2 I.R. 71. The High Court (O’Malley J.) concluded that the choice left over to
the Member State had been narrowed down.
“[89] In those circumstances, it seems to me that the introduction of
criminal sanctions, almost 20 years after the Habitats Directive came
into being, can fairly be said to have been necessary for the proper
implementation of that directive. The fact that it does not, in terms,
call for the creation of criminal offences is not, in my view, decisive,
since directives by their nature leave the choice of implementation
methods to the member states. No authority has been referred to
which might suggest that criminal sanctions cannot be created unless
the ‘parent’ directive calls for them. Other measures to bring a stop to
the deterioration of raised bogs have been tried. If they have not
succeeded, as appears to be the case, then the choices of the State as
to how the Habitats Directive is to be implemented may narrow down
to the point where the criminal law has to be invoked. In my view that
situation has been reached in relation to this issue. It is not open to
the State to stand by and permit further damage to be done – that
would be a breach of its legal obligations under the Habitats Directive.”
173.     By way of contrast, the policy choices purportedly made under the Ministerial Regulations
in the present case are broad, and, unlike those at issue in O’Connor, operate to preclude
the taking of enforcement action for the transitional period.
(3). Strategic environmental assessment directive
174.     I turn now to consider the Applicant’s argument that the making of the Ministerial
Regulations should have been subject to an assessment for the purposes of Directive
2001/42/EC on the assessment of the effects of certain plans and programmes on the
environment (“the Strategic Environmental Assessment Directive” or “the SEA Directive”).
This argument can be disposed of shortly in circumstances where, for the reasons
explained below, I am satisfied that the Ministerial Regulations do not set the framework
for future development consent. The Ministerial Regulations do not, therefore, trigger the
requirement for an assessment.
175.     The SEA Directive applies to certain types of plans and programmes. In brief, to trigger
the requirement for an assessment under the SEA Directive, a measure—to use a neutral
Page 46 ⇓
term—must, first, meet the definition of “plans and programmes” prescribed under
article 2, and, secondly, must fulfil one or more of the criteria prescribed under article 3.
As discussed presently, the parties are in disagreement as to whether the Ministerial
Regulations fulfil either of these qualifying criteria.
176.     The term “plans and programmes” is defined as follows by article 2(a) of the SEA
Directive.
“(a)
‘plans and programmes’ shall mean plans and programmes, including
those co-financed by the European Community, as well as any
modifications to them:
which are subject to preparation and/or adoption by an
authority at national, regional or local level or which are
prepared by an authority for adoption, through a legislative
procedure by Parliament or Government, and
which are required by legislative, regulatory or administrative
provisions;”
177.     The circumstances in which a strategic assessment is required are then set out at
article 3. The dispute between the parties to the present case centres principally on the
interpretation of article 3(2) as follows.
“2. Subject to paragraph 3, an environmental assessment shall be carried
out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy,
industry, transport, waste management, water management,
telecommunications, tourism, town and country planning or
land use and which set the framework for future development
consent of projects listed in Annexes I and II to Directive
85/337/EEC, or
(b) which, in view of the likely effect on sites, have been
determined to require an assessment pursuant to Article 6 or 7
of Directive 92/43/EEC.”
Submissions of the parties
178.     Leading counsel on behalf of the Applicant, James Devlin, SC, submits that the Ministerial
Regulations fulfil the conditions under articles 2 and 3 of the SEA Directive. Counsel
draws attention to the fact that the condition under article 3(2) that the plan or
programme must be “required” by legislative, regulatory or administrative provisions has
been given an expansive interpretation. It was held in Case C-567/10, Inter-Environment
Bruxelles that any plan or programme whose adoption is regulated by national legislative
Page 47 ⇓
or regulatory provisions, which determine the competent authorities for adopting them
and the procedure for preparing them, must be regarded as “required” for the purposes of
the SEA Directive. On this interpretation, it is said that it is not necessary that the
making of the plan or programme be compulsory.
179.     The condition under article 3 of the SEA Directive is said to have been met in that the
Ministerial Regulations set the framework for future development consents of a category
of project under the EIA Directive, i.e. peat extraction. Counsel placed emphasis on the
fact that—as a result of the Ministerial Regulations—a consent application for peat
extraction will not now be determined by reference to the development plan. This is
because, unlike the position under the PDA 2000, the EPA in determining a licence
application is not under an express statutory obligation to have regard to the
development plan for the area. This, it is suggested, represents a change in the criteria
and detailed rules for the grant of development consent.
180.     In response, leading counsel on behalf of the State respondents, Niamh Hyland, SC,
helpfully summarised the grounds for saying that an assessment is not required under
two broad headings as follows. First, it was submitted that the making of the Ministerial
Regulations is not “required” under national law. Rather, Ministers have a discretion as to
whether or not to invoke the power under section 3 of the European Communities Act
1972 to make regulations. Counsel submits that it is not sufficient that the making of
regulations are “regulated” by the 1972 Act. Reference was made to the European
Commission Guidance on the Strategic Environmental Assessment Directive (2003), in
particular at §3.4 to §3.31.
181.     Reliance was also placed in this regard on the judgment of the UK Supreme Court in
R. (On the application of HS2 Action Alliance Ltd) v. The Secretary of State for Transport
[2014] UKSC 3. That judgment had been sharply critical of the judgment of the CJEU in
Case C-567/10, Inter-Environment Bruxelles which had given an expansive interpretation
to the concept of “required”.
182.     Counsel opened in particular the following passages from the judgment of Neuberger SCJ.
“[183]
However that may be, the [CJEU] concluded that ‘required’ means
‘regulated’, so as to catch even cases where no plan was required to be
prepared. The only reasons it gave were (at para 29) that to read
‘required’ as meaning ‘required’ would ‘have the consequence of
restricting considerably the scope of the scrutiny’ or (at para 30)
‘compromise, in part, the practical effect of the directive, having regard
to its objective, which consists in providing a high level of protection of
the environment’ and ‘thus run counter to the directive’s aim of
establishing a procedure for scrutinising measures likely to have
significant effects on the environment …’
[184] If, instead of ‘required’, one must read the word ‘regulated’, the
question arises what it means. Is it sufficient that legislative,
Page 48 ⇓
regulatory or administrative provisions grant powers to some authority
wide enough to permit a plan or programme to be prepared? Or must
such provisions actually refer to a possibility that such a plan or
programme will be prepared? Or must they specify points and/or
conditions that such a plan or programme, if prepared, must address
and/or fulfil? The Chamber referred (at para 31) to provisions which
‘determine the competent authorities for adopting them [i.e. the
relevant plan or programme] and the procedure for preparing them’.
[185] If this is what is meant by ‘regulated’, then not all plans and
programmes can on any view be covered by the SEA Directive, and the
desire for comprehensive regulation of plans and programmes ‘likely to
have significant effects on the environment’ cannot be met. In any
event, it follows from the fact that the SEA Directive only applies to
plans and programmes ‘which set the framework for future
development consent of projects’, that it is not exhaustive and does
not cover every form of plan and programme simply because it could
be said to be likely to have significant environmental effects: see Lord
Carnwath and Lord Reed’s judgments. The SEA Directive and its terms
must be read as a whole.
[186] Any condition attached to the scope or application of a legislative
measure is capable of affecting its impact. As we have already noted,
legislators cannot always agree everything that the most ardent
supporters of its general objectives would like them to have achieved.
On the court’s own approach, the SEA Directive cannot and does not
cover all plans and programmes. They must be ‘regulated’ by
legislative, regulatory or administrative provisions.”
183.     Counsel submitted that the term “required” meant that something more was necessary
than simply that a particular measure was taken pursuant to a legislative provision.
Rather, the legislative provision must actually refer to a possibility that such a plan or
programme will be prepared.
184.     Secondly, it was submitted that the Ministerial Regulations do not set the framework for
future development consent of EIA projects. The legislative amendments introduced by
the Ministerial Regulations merely established a broad procedural scheme within which
development consents could be granted. The legislative amendments do not guide the
choices which the EPA must make in respect of licence applications. They do not
represent a strategic framework, and there is nothing concrete which could be the subject
of an environmental assessment.
185.     Finally, counsel confirmed that the State respondents were not making the case that
legislation could never be subject to strategic assessment.
Page 49 ⇓
Findings of the court
186.     As is apparent from the summary of the submissions of the parties above, there are two
principal areas of dispute in respect of the SEA Directive. The first concerns the meaning
of the condition, under article 2, that a plan or programme must be “required” by
legislative, regulatory or administrative provisions. The second concerns the concept,
under article 3, of setting the framework for future development consent for EIA projects.
I propose to address these in reverse order.
187.     The CJEU has considered what is meant by the concept of setting the framework for
future development consent in a number of judgements. The principles are summarised
as follows in the recent judgment in Case C-305/18, Verdi Ambiente (8 May 2019).
“50.
As to whether national legislation, such as that at issue in the main
proceedings, sets the framework for future development consent of
projects, it must be noted that, according to settled case-law, the
notion of ‘plans and programmes’ relates to any measure which
establishes, by defining rules and procedures for scrutiny applicable to
the sector concerned, a significant body of criteria and detailed rules
for the grant and implementation of one or more projects likely to have
significant effects on the environment (judgments of 27 October 2016,
D’Oultremont and Others, C-290/15, EU:C:2016:816, paragraph 49; of
7 June 2018, Inter-Environnement Bruxelles and Others, C-671/16,
EU:C:2018:403, paragraph 53; and of 7 June 2018, Thybaut and
Others, C-160/17, EU:C:2018:401, paragraph 54).
51.     In that regard, the words ‘a significant body of criteria and detailed
rules’ must be understood qualitatively. It is necessary to avoid
strategies which may be designed to circumvent the obligations laid
down in the SEA Directive by splitting measures, thereby reducing the
practical effect of that directive (judgments of 7 June 2018, Inter-
Environnement Bruxelles and Others, C-671/16, EU:C:2018:403,
paragraph 55, and of 7 June 2018, Thybaut and Others, C-160/17,
EU:C:2018:401, paragraph 55).
52.     Such an interpretation of the notion of ‘plans and programmes’, which
not only includes their preparation but also their modification, is
intended to ensure that provisions which are likely to have significant
environmental effects are subject to an environmental assessment
(see, to that effect, judgment of 7 June 2018, Inter-Environnement
Bruxelles and Others, C-671/16, EU:C:2018:403, paragraphs 54 and
58).”
188.     As appears, the legal test is whether the measure establishes, by defining rules and
procedures for scrutiny applicable to the sector concerned, a significant body of criteria
and detailed rules for the grant and implementation [of development consents] for
Page 50 ⇓
projects likely to have significant effects on the environment. The rules are to be
considered qualitatively (rather than quantitively).
189.     A sense of the type of rules and procedures which trigger the requirement for a strategic
assessment can be obtained by examining the detail of the national measures at issue in
the four leading cases of the CJEU as follows.
(i).
(ii).
(iii).
C-290/15, D’Oultremont
This case concerned a regulatory order which contained various provisions which
had to be complied with when administrative consent was being granted for the
installation and operation of wind turbines. The regulatory order addressed matters
such as the location of wind turbines in relation to housing; technical standards;
operating conditions (particularly shadow flicker); the prevention of accidents and
fires; noise level standards; and restoration and financial collateral for wind
turbines.
Case C-671/16, Inter-Environnement Bruxelles
This case concerned regional zoned town planning regulations. The contested
measure contained detailed rules capable of having significant effects on the urban
environment. These included inter alia provisions concerning the number, location,
height and surface area of buildings; construction-free spaces; rainwater collection,
including the construction of stormwater collection tanks and storage tanks; and
the design of buildings in line with their potential use.
Case C-160/17, Thybaut
This case concerned the adoption of a town planning measure described as a
“consolidation area”. The national court which had made the reference to the CJEU
explained that a “consolidation area” differed from an “urban development plan”. It
appears that the principal legal consequences of designating an area as a
“consolidation area” were as follows: first, a different competent authority is
empowered to issue planning permission; secondly, planning permission for land
within the area may depart from other plans and programmes (including the
sectoral plan, the municipal development plan, local planning rules or an alignment
plan); and, thirdly, immovable property within a “consolidation area” may be
expropriated in the public interest.
Notwithstanding that the designation of a “consolidation area” did not in itself lay
down any positive requirements, it did, however, allow for derogation from existing
plans and programmes which had themselves been subject to assessment for the
purposes of the SEA Directive. The CJEU suggested that given that a “consolidation
area” amends the framework laid down by those plans and programmes, the
designation of a “consolidation area” comes within the scope of article 2(a) and
article 3(2)(a) of the SEA Directive.
(iv). Case C-305/18, Verdi Ambiente
Page 51 ⇓
The national legislation at issue in this case comprised primary legislation and
secondary legislation which revised upwards the capacity of existing waste
incineration facilities, and which provided for the construction of new installations.
The national legislation allowed for the determination of the number, capacity and
regional location of incineration installations to be constructed.
The CJEU rejected an argument that the national legislation did not constitute a
framework of reference. The fact that national legislation expressed some abstract
ideas, and pursued an objective of transforming the existing framework was held to
be illustrative of its planning and programming aspect and did not prevent it from
being included in the definition of “plans and programmes”.
190.     As appears from the summary of the case law above, national rules or legislation which
have been held to constitute a plan or programme typically contain criteria which are
more specific than those to be found under the Ministerial Regulations. The purported
effect of the Ministerial Regulations is to transfer the regulation of peat extraction from
the PDA 2000 to the EPA Act 1992. (This transfer will only be fully achieved following a
lengthy transitional period). This will have the result that the statutory criteria against
which an application for development consent is to be determined will be different. The
most striking difference is in relation to the role of the development plan. A decision on
an application for planning permission under the PDA 2000 must have regard to the
development plan. By contrast, there is no express statutory requirement upon the EPA
to have regard to the development plan.
191.     Notwithstanding this difference, I am not satisfied that the legislative amendments
brought about by the Ministerial Regulations can be said to set the “framework” for future
development consent in respect of peat extraction. The legislation is not specific in
relation either to the geographical area or the nature of the development itself. Rather,
the alleged amendments are confined to the procedural requirements for an application
for development consent. Whereas the EPA must, of course, have regard to the statutory
considerations, this does not establish the legislation as a plan or programme.
192.     The matter can be tested by asking what issues could usefully be taken into account were
a strategic assessment to be carried out in respect of the Ministerial Regulations. The
Ministerial Regulations consist of a small number of pages setting out legislative
amendments. They consist of what might be described as “black letter” law. The
legislative amendments are concerned largely with the procedures governing the licensing
regime. There is nothing remotely similar to the type of guidance on environmental
issues which features in the case law of the CJEU summarised at paragraph 189 above.
There is no obvious environmental issue raised which could be assessed in accordance
with the type of strategic assessment envisaged under the SEA Directive, by reference to
the criteria set out in Annex I thereto which governs the type of information to be
included in the “environmental report”. As counsel for the State respondents correctly
submitted, there is “nothing concrete” which could be the subject of a meaningful
strategic assessment.
Page 52 ⇓
193.     In light of my finding that the Ministerial Regulations do not meet the conditions
prescribed under article 3 of the SEA Directive, it is not, strictly speaking, necessary to
consider the separate question of whether the condition under article 2 has been met.
This is because my finding in relation to article 3 is sufficient to dispose of this aspect of
the proceedings. For the sake of completeness, however, I should observe that the
interpretation of the term “required” under article 2 advanced on behalf of the State
respondents is difficult to reconcile with the case law of the CJEU. Whereas the State
respondents’ interpretation appears to coincide with the literal meaning of article 2, the
CJEU has adopted a purposive approach to the interpretation of same.
194.     This interpretation was first advanced in Case C-567/10, Inter-Environnement Bruxelles.
Advocate General Kokott had concluded in her Opinion in that case that the word
“required” in article 2(a) of the SEA Directive must be construed as meaning that the
definition does not include plans and programmes which are provided for by legislative
provisions but the drawing up of which is not compulsory.
195.     The CJEU in its judgment reached precisely the opposite conclusion. The CJEU held that
any plan or programme whose adoption is regulated by national legislative or regulatory
provisions, which determine the competent authorities for adopting them and the
procedure for preparing them, must be regarded as “required” for the purposes of the
SEA Directive.
196.     This approach has been confirmed more recently by the CJEU in Case C-671/16, Inter-
Environnement Bruxelles ASBL.
“36.
Article 2(a) of the SEA Directive defines the ‘plans and programmes’
covered by that provision as being plans and programmes that satisfy
two cumulative conditions, namely (i) they have been prepared and/or
adopted by an authority at national, regional or local level or have
been prepared by an authority for adoption, through a legislative
procedure, by Parliament or Government, and (ii) they are required by
legislative, regulatory or administrative provisions.
37.     The Court has interpreted that provision to mean that plans and
programmes whose adoption is regulated by national legislative or
regulatory provisions, which determine the competent authorities for
adopting them and the procedure for preparing them, must be
regarded as ‘required’ within the meaning, and for the application, of
the SEA Directive and, accordingly, be subject to an assessment of
their environmental effects in the circumstances which it lays down
(judgment of 22 March 2012, Inter-Environnement Bruxelles and
Others, C-567/10, EU:C:2012:159, paragraph 31).
38.     Excluding from the scope of the SEA Directive those plans and
programmes whose adoption is not compulsory would compromise the
Page 53 ⇓
practical effect of that directive, having regard to its objective, which
consists in providing for a high level of protection of the environment
(see, to that effect, judgment of 22 March 2012, Inter-Environnement
Bruxelles and Others, C-567/10, EU:C:2012:159, paragraphs 28 and
30).”
197.     This was so notwithstanding that Advocate General Kokott had suggested, in her Opinion
in that case, that the issue should be revisited.
“41.
However, I would note that the case-law of the Court may have in fact
extended the scope of the SEA Directive further, as was intended by
the legislature and the Member States were able to foresee. In my
view, however, this does not follow from the definition of the two terms
‘plans and programmes’, but from the interpretation of the
characteristic set out in Article 2(a), second indent, in accordance with
which those plans and programmes must be required by legislative,
regulatory or administrative provisions.
42.     As has already been said, the fact that a measure is regulated by
national legislative or regulatory provisions which determine the
competent authorities for adopting them and the procedure for
preparing them should be sufficient. Therefore, a rather rare
requirement to adopt the measure in question is not necessary; rather,
it suffices if it is made available as a tool. This extends the obligation to
carry out an environmental assessment significantly. As I have already
stated, this interpretation that is based on the legitimate objective of
applying an environmental assessment covering all relevant measures,
is contrary to the recognisable intention of the legislature. The
Supreme Court of the United Kingdom has therefore strongly criticised
this, without, however, making a request for a preliminary ruling to
that effect to the Court.”
*Emphasis added.
(4). Alleged interference with judicial independence
198.     The transitional provisions under the Ministerial Regulations purport to allow peat
extraction to be carried out—not only pending the determination by the EPA of a licence
application—but also pending any subsequent judicial review proceedings which seek to
challenge a decision on the part of the EPA to refuse a licence.
199.     The practical effect of this is that a developer who has been carrying on unauthorised
development will be entitled to continue to do so for a period which could, on a
conservative estimate, last for several years. I will use the shorthand “the period of
grace” to refer to this period. The Applicant has already criticised this period of grace as
Page 54 ⇓
part of its general complaint that the transitional provisions are inconsistent with the
requirements of EU environmental law.
200.     The Applicant makes a separate complaint that the prolongation of the period of grace
during the pendency of an application for judicial review represents an unwarranted
interference with judicial independence. It is submitted that the determination of whether
the existence of judicial review proceedings should operate as a “stay” on the
implementation of an administrative decision, such as a decision to grant or refuse a
licence, is a matter exclusively for the courts. It is suggested that the effect of the
Ministerial Regulations is that a “stay” on a decision to refuse a licence arises
automatically, and that this is an affront to judicial independence.
201.     For the reasons set out below, I am satisfied that this attempt to call in aid the principle
of judicial independence does not advance the Applicant’s case, and, in truth, only serves
to muddy the waters.
202.     There could be no principled objection, on the grounds of judicial independence, to
legislation which provided that a decision of an administrative body would not have
binding legal effect until such time as legal proceedings challenging that decision had
been heard and determined. Such a provision would ensure that any legal proceedings
were not rendered nugatory by dint of the impugned decision having been acted upon
pending the determination of those proceedings. This could scarcely be characterised as
an attack on judicial independence.
203.     In practice, however, legislation is often silent as to what is to happen to administrative
decisions made under that legislation pending the determination of legal proceedings. To
take a relevant example: the special statutory judicial review procedure governing
challenges to planning decisions under the PDA 2000 does not expressly address the
question of a stay on the implementation of a planning permission pending the
determination of judicial review proceedings. In the absence of any express statutory
provision, the High Court has discretion under Order 84 of the Rules of the Superior
Courts and as part of its inherent jurisdiction to make such interlocutory orders as it
considers appropriate. These could, in principle, include an order restraining the
implementation of a planning permission pending the determination of judicial review
proceedings. Indeed, the case law of the CJEU indicates that a national court must have
jurisdiction to grant interlocutory relief in order to ensure the full effectiveness of the
judgment to be given on the existence of the rights claimed under European Union law
(Case C-416/00, Krizan).
204.     The Ministerial Regulations purport to address the legal status, pending the determination
of judicial review proceedings, of a decision of the EPA to refuse a licence. The period of
grace during which peat extraction can be carried out is extended. It is not entirely
accurate for the Applicant to seek to characterise the effect of the Ministerial Regulations
as analogous to a stay in judicial review proceedings. It would be very unusual to seek a
stay on the refusal of a development consent in judicial review proceedings for the
Page 55 ⇓
obvious reason that a negative decision does not authorise steps which might otherwise
be carried out during the pendency of judicial review proceedings.
205.     Whereas there are good grounds for criticising the extension of the period of grace
pending the determination of judicial review proceedings, the strength of this criticism
stems from the breach of the EU environmental legislation rather than from any
interference with judicial independence. The crucial flaw in the amended legislative
scheme is that the Ministerial Regulations make no provision for the possibility of the
suspension of peat extraction during the period of grace. The fact that the period of
grace is to continue pending the determination of judicial review proceedings means that
the disapplication of the EU environmental legislation is further prolonged. For the
reasons outlined under the previous headings, I have already concluded that this
represents a breach of the requirements of EU law, or, in the alternative, represents the
making of a significant policy decision which brings the Ministerial Regulations outside the
scope of the European Communities Act 1972.
Part 3
Form of Order and Conclusion
Form of order
206.     For the reasons set out herein, I have concluded that the Ministerial Regulations are
invalid. This conclusion is premised on two principal findings as follows. First, the
Ministerial Regulations are inconsistent with the requirements of the EIA Directive and the
Habitats Directive. Secondly, even if—contrary to the first finding—the Ministerial
Regulations could be said to be consistent with the EIA Directive and the Habitats
Directive, the use of secondary legislation to introduce the legislative amendments
required to give effect to the new licensing regime is ultra vires. This is because if the
EIA Directive and Habitats Directive do, indeed, afford the very broad discretion to
Member States contended for on the part of the State Respondents, then the policy
choices should have been made by the Oireachtas through the enactment of primary
legislation.
207.     The case law of the CJEU discussed earlier indicates that a national court has an
obligation to disapply national legislation which is in conflict with EU law. Were this court
to make an order disapplying the Ministerial Regulations, then this would appear to have
the effect of restoring the previously compliant legislative regime under the PDA 2000.
This is because the Ministerial Regulations entailed a retrograde step insofar as the
regulation of peat extraction is concerned.
208.     As discussed below, however, it is possible that a similar result might be achieved by
reliance on the national law principle of ultra vires. The conflict between the Ministerial
Regulations and the EIA Directive and the Habitats Directive arises principally as a result
of their exempting peat extraction from control under the planning legislation with
immediate effect, notwithstanding that there will be a lengthy interregnum before the
new licensing regime comes into full force and effect. The Ministerial Regulations purport
to exempt peat extraction involving an area of more than 30 hectares from the
Page 56 ⇓
requirement to obtain planning permission. This is achieved under the second of the two
regulations, namely the Planning and Development Act 2000 (Exempted Development)
Regulations 2019.
209.     These regulations were made pursuant to section 4(4A) of the PDA 2000 which provides
as follows.
“(4A)
Notwithstanding subsection (4), the Minister may make regulations
prescribing development or any class of development that is—
(a) authorised, or required to be authorised by or under any statute
(other than this Act) whether by means of a licence, consent,
approval or otherwise, and
(b) as respects which an environmental impact assessment or an
appropriate assessment is required,
to be exempted development.”
210.     As appears, the section empowers the Minister for Housing, Planning and Local
Government to exempt development from the planning legislation where the development
is “authorised, or required to be authorised by or under any statute” (other than the PDA
2000). Section 4(4A) thus allows for an exemption where there is an alternative
authorisation procedure in place which will ensure compliance with the EIA Directive and
the Habitats Directive. Whereas peat extraction involving an area of more than
30 hectares will, in the fullness of time, be subject to licensing and assessment under the
Environmental Protection Agency Act 1992, this will not occur for a period of at least
eighteen months in the case of unlicensed activities, and thirty-six months in the case of
licensed activities.
211.     If this court were to give section 4(4A) an interpretation consistent with or sympathetic to
the objectives of the EIA Directive and the Habitats Directive, then the section could be
read as meaning that the power to exempt development may not be invoked until the
alternative authorisation procedure is operative. On this interpretation, the Planning and
Development Act 2000 (Exempted Development) Regulations 2019 would have to be set
aside on the basis that they were ultra vires section 4(4A).
212.     Counsel on behalf of the State respondents has pointed out that the Applicant has not
pleaded that the Planning and Development Act 2000 (Exempted Development)
Regulations 2019 are ultra vires section 4(4A) of the PDA 2000. However, counsel did
accept—on the authority of the judgment of the Supreme Court in Callaghan v. An Bord
Pleanála (No. 1) [2017] IESC 60 —that it might be open to this court to consider the
correct interpretation of the section notwithstanding that no express plea has been raised
in this regard.
Page 57 ⇓
213.     The judgment in Callaghan addressed the question of whether it is open to a court to take
into account, even on its own motion, provisions of EU law where those provisions might
have an impact on the proper interpretation of national measures under consideration.
“4.4
Where an Irish court is considering the proper interpretation of a
statutory measure it may well take into account any constitutional
principles which might impact on the proper construction of the
legislation concerned. Indeed, it is fair to say that a court might very
well be reluctant to disregard such constitutional questions of
interpretation even if they were not specifically raised by the parties. A
court, and in particular a court of final appeal, is, as a matter of
national law, required to give a definitive interpretation of a legislative
measure which comes into question in the course of proceedings
properly before it. It could not be ruled out, therefore, that a court in
such circumstances would be reluctant to give a construction to
legislation without having regard to any constitutional issues which
might impact on the proper construction of the measure concerned in
accordance with East Donegal principles. This might well be so where
there would be a real risk that the Court would give an incorrect
interpretation of the legislation in question if it did not itself raise the
constitutional construction issue. It must be recalled that the proper
interpretation of legislation is objective and is not dependent,
necessarily, on the arguments put forward by the parties.
4.5 By analogy it seems to me that it is at least arguable that an Irish
court, in order to comply with the principle of conforming
interpretation, would be required to have regard, even on its own
motion, to provisions of Union law where those provisions might have
an impact on the proper interpretation of national measures under
consideration.”
214.     The judgment in Callaghan is, obviously, not on all fours with the present case.
Nevertheless, the statement that the proper interpretation of legislation is objective and is
not dependent, necessarily, on the arguments put forward by the parties, appears to me
to have a particular resonance.
215.     It is at least arguable that the appropriate order for this court to make would be to set
aside the second of the Ministerial Regulations on the basis that same are ultra vires
section 4(4A) of the PDA 2000.
216.     The position in respect of the first of the two Ministerial Regulations seems to be more
straightforward. These regulations appear to be ultra vires section 3 of the European
Communities Act 1972.
Page 58 ⇓
217.     I do not propose to make any final determination on these various issues now, but I will
hear counsel in due course on the form of the order which should be made in this case.
In particular, the parties will be invited to make submissions as to the precise
jurisdictional basis on which the orders setting aside the Ministerial Regulations should be
made.
218.     I understand from submissions made at the hearing before me earlier in September that
there is no suggestion that the Ministerial Regulations should be severed in the event of a
finding of invalidity. More specifically, it does not seem that the State respondents intend
to argue that the court should take a metaphorical blue pencil to the regulations and to
strike out only those parts which are found to offend against EU law. Rather, it seems to
be accepted that if the Ministerial Regulations are found to be invalid in any respect, then
the entire should be set aside. This is, presumably, on the basis that had the respective
Ministers known that certain aspects of the proposed regulations would be invalid, they
would not necessarily have proceeded to make the regulations in an identical form (save
with the offending provisions omitted). See, by analogy, the approach to severability
discussed in cases such as Bord na Móna v. Galway County Council [1985] I.R. 205.
219.     Finally, counsel for the State respondents confirmed at the hearing before me that it is no
part of the defence to these proceedings to suggest that either of the exceptions
discussed in Case C-411/17, Inter-Environnement Wallonnie applies to these proceedings.
It will be recalled that this judgment indicates, at paragraphs [177] to [179], that a
temporary suspension of the ousting effect of EU law may be allowed where there are
overriding considerations relating to the protection of the environment or relating to the
security of electricity supply. Even then, the effects of the measure are exceptionally
maintained only for the period of time which is strictly necessary to adopt the measures
enabling the irregularity to be remedied.
conclusion
220.     The application for judicial review will be granted by reference to the limited grounds
identified in the summary set out at the start of this judgment.
221.     An order will be made setting aside the Ministerial Regulations in their entirety. I will,
however, hear counsel as to the precise form of order and, in particular, as to the exact
jurisdictional basis on which same should be made.
Appearances
James Devlin, SC, Oisin Collins and Margaret Heavey for the Applicant instructed by O’Connell
Clarke Solicitors.
Niamh Hyland, SC and Suzanne Kingston for the Respondents instructed by the Chief State
Solicitor.



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