Drainage of wetlands
Drainage reclamation and infill of wetlands is subject to planning permission under planning law. Wetlands include lakes reservoirs and ponds rivers canals floodplains peatlands wet woodlands salt marshes and other waters. Planning permission is required where the area impacted by the works exceed .1 ha by the works may have a significant effect on the environment.
Works in this context include installation of open drains or closed drains (field drains), opening of a watercourse, infilling with earth etc. Cleaning of watercourses and other normal maintenance works are not covered by the Regulations.
Where the development proposed to be carried out is below the threshold for a planning application, it is a matter for the person who proposes to carry out the development to make an assessment as to whether the development is likely to have a significant effect on the environment. If the development would have a significant adverse effect on the environment, it is not exempt from the requirement to obtain planning permission.
n assessing whether the development is likely to have a significant effect on the environment, the person concerned should consider the matters set out in Annex 2 of this document. It is likely that you will need to obtain professional advice in this regard (e.g. local NPWS staff, agricultural advisor, ecologist).
In a 2018 case, the High Court decided that peat excavation constitutes works not just use so was not exempt from planning permission. In January 2019, two pieces of legislation were made intended to amend the regulation of large-scale peat extraction from a planning point of view. The European Union (environmental impact assessment peat extraction) regulations and Planning and Development (Exempt Development) regulations 2019. The effect of the exempt development regulations was to declare that peat extraction which will involve the extraction of peat would be exempted. Development by extraction above an area of 30 ha threshold would be subject to a licence under the Environmental Protection Agency act.
Exemption regarding planning permission was introduced and the licensing was to be introduced over a period. The effect of the changes was that once peat extraction commenced before 25 January 2019 it could be continued after cessation of control under between the cessation of control under planning permission and the introduction of the new licensing.
The validity of the regulations was challenged in a case Friends of the Irish Environment v the Minister for Community Climate Action and the Environment. The High Court concluded that the regulations were inconsistent with the environmental impact directive and the habitats directive and that in any event secondary legislation could not be used to introduce new licensing regime. There are matters for the Oireachtas. The case set aside the EU peat extraction regulations 2019.
Peat Extraction Background
The judge in the above case set out the background to regulation of peat extraction
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.
- It was necessary to amend domestic law in order to give effect to the original version of the EIA Directive, Directive 85/337/EC. (As noted earlier, 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.
- The 50 hectares threshold was subsequently 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 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.
- 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 implication of 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.
- 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
- 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.
(ii) No time-limit on enforcement proceedings
38.. More specifically, the time-limits governing the taking of enforcement action in respect of unauthorised peat extraction were amended.. 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 development. (A seven-year time-limit continues to apply to mandatory orders requiring the reinstatement of lands).
STATUS QUO ANTE : LEGISLATIVE REGIME PRE-JANUARY 2019
- 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 peat extraction would involve a “new or extended” area of 30 hectares or more. See Planning and Development Regulations, 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. 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 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 order which requires the cessation of peat extraction.
(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 Pleanala. By way of example, the proceedings in Bulrush Horticultural Ltd. v. An Bord Pleanala (discussed at paragraph 34 above) arose out of a section 5 reference made by An Bord Pleanala 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  IECA 207;  1 I.R. 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 Pleanala 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.
(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 nvironmental Protection Agency Act 1992.
Post January 2019
LEGISLATIVE REGIME POST-JANUARY 2019
- 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 operator 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 operator 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).
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