In the recent judgment of the High Court in Friends of the Irish Environment v Minister for Communications, Climate Action and Environment and Ors, the High Court granted an interlocutory injunction restraining the coming into effect of the Planning and Development (Exempted Development) Regulations 2019.
The injunction will apply pending the outcome of a hearing to take place in early September, in which the validity of the Regulations, along with the EU (Environmental Impact Assessment) (Peat Extraction) Regulations 2019, together referred to as the 2019 Peat Regulations, are being challenged.
In giving judgment, Mr. Justice Simons stated that the discretion to grant such an injunction should be “most sparingly exercised”. We analyse the decision below.
The 2019 Peat Regulations are designed to replace the pre-2019 development consent regime for peat extraction, provided for under the Planning and Development Act 2000. The 2019 Peat Regulations provide that peat extraction which requires assessment for the purposes of the EIA Directive and is of 30 hectares or more in size will be subject to a single development consent to be issued by the Environmental Protection Agency (‘EPA’).
The core characteristic of the 2019 Peat Regulations for these proceedings was that they would introduce a transitional period of at least 18 months within which there would be no requirement to obtain development consent for large scale peat extraction activities (involving areas of at least 30 hectares).
Friends of the Irish Environment are challenging, by way of judicial review, the validity of the 2019 Peat Regulations. Pending this challenge being determined by the High Court, Friends of the Irish Environment applied for an injunction restraining implementation of the 2019 Peat Regulations.
Proceedings before the High Court
From the outset, both Friends of the Irish Environment and the State respondents were largely in agreement concerning the legal test for interlocutory injunctions in judicial review proceedings. It was accepted that:
The State Respondents asserted that a heavy burden lay on the Applicant, in circumstances where the relief sought included the suspension of legislative provisions.
Friends of the Irish Environment submitted that the decision of Dowling v Minister for Finance had an effect on the legal test applicable in this case. Essentially, they argued that some limited analysis should be carried out into the strength of the Respondent’s defence and the court must give consideration to whether an arguable defence is disclosed.
The core challenges raised by the Applicant were that:
The State Respondents claimed that:
Decision of the High Court
The Court partially granted the injunction sought. In doing so, the Court accepted that an injunction made against secondary legislation (i.e. regulations) should be sparingly made.
The Court accepted that normally consideration of the merits of the case in injunction applications is limited to confirming that an arguable case has been made out. However, the Court noted that at times it is appropriate to assess the strength of the underlying merits of the case and assess whether there is an arguable defence.
Ultimately the Court concluded that the greatest risk of injustice lay in refusing to grant an interlocutory injunction and that there were significant factors in favour of exercising the exceptional jurisdiction to suspend implementation of legislation. In its reasoning, the Court noted:
Order of the High Court
Ultimately, the Court granted an injunction restraining the implementation of the Planning and Development (Exempted Development) Regulations 2019 only. These are the Regulations that made the extraction of peat of an area of over 30 hectares, for which an EIA is required, exempted development. As the other Regulations introduced the new licensing regime and will not come into effect for a period of 18 months, there was no need to restrain the implementation of those Regulations prior to the hearing.
Mr. Justice Simons ruled that, given the exceptional nature of the injunction, it could not remain in place for long and he listed the full hearing of the challenge for the first week of September 2019.
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