Dáil Éireann Debate, Tuesday - 19 October 2021
489. Deputy Eoin Ó Broin asked the Minister for Housing, Local Government and Heritage if he is considering exempting peat extraction from the planning system for new developments and the substitute consent process for unauthorised developments; if so, the reason for considering such a move; the timeframe for a decision on this matter; and if such a move would be compliant with EU environmental law. [51326/21]
View answerAs it currently stands, Class 17 of Part 3 of Schedule 2 to the Planning and Development Regulations 2001, as amended ('the 2001 Regulations'), provides that peat extraction (which includes any related drainage of bogland) in a new or extended area of less than 10 hectares, or peat extraction in a new or extended area of 10 hectares or more, where the drainage of the bogland commenced prior to the coming into force of those Regulations, is exempted development.
This exemption is restricted by both article 9 of the 2001 Regulations, which places a number of general qualifications on the availability of exemptions, and by section 4(4) of the Planning and Development Act 2000 ('the 2000 Act'), whereby exempted development status is lost if an Environmental Impact Assessment (EIA) under the EIA Directive or Appropriate Assessment under the Habitats Directive is required in respect of that development.
Section 4(4A) of the 2000 Act gives me the power to exempt development from the planning system by regulation, notwithstanding that it might require Environmental Impact Assessment (EIA) or appropriate assessment, subject to the requirement that the development in question is authorised, or required to be authorised, by or under another statute (other than by the 2000 Act), such as by way of a licence, consent, approval or otherwise.
Peat extraction involving a new or extended area of 30 hectares or more requires EIA and therefore planning permission. Peat extraction below that threshold may require EIA if it is considered that it would be likely to have significant effects on the environment.
Any peat extraction which would be likely to have significant effects on a European Site (a Special Area of Conservation (SAC) or a Special Protected Area (SPA), or candidate area, designated under the Habitats Directive) requires an Appropriate Assessment and therefore planning permission.
In terms of unauthorised development carried out that required EIA or Appropriate Assessment, the substitute consent process set out at Part XA of the 2000 Act allows development that should have been the subject of environmental assessment, but was not, to be regularised where appropriate. An Bord Pleanála is precluded from granting substitute consent (whether subject to conditions or not) unless it is satisfied that exceptional circumstances exist that justify the grant of substitute consent.
As acknowledged by the Government’s National Peatland's Strategy 2015, the regulation of peat extraction activities under the planning code has been problematic. Practical implementation of the EIA Directive through planning law, particularly in relation to private turf extraction projects, has proved difficult for a variety of reasons such as uncertainty about the ownership of peatlands and the increasing trend towards peat extraction by contractors, whose scope of operations may span lands controlled by many individuals with turbary rights.
Furthermore, both the Government’s National Peatlands Strategy 2015 and the Just Transition Commissioner’s first progress report published in May 2020 highlight the complexity of the current dual consenting system for large scale peat extraction. The dual consenting system for large scale peat extraction comprises the requirement for both planning consents as well as licencing from the Environmental Protection Agency’s (EPA's) Integrated Pollution Control (IPC) Licensing system, which is under the remit of my colleague, the Minister for the Environment, Climate and Communications.
While I have no objection in principle to making such exempted development regulations in the Planning and Development Regulations 2001 with respect of peat extraction, this would be subject to the activity being regulated by an alternative legislative regime, other than the Planning system, that is fully compliant with EU environmental legislation, including the carrying out of all relevant environmental assessments for the activity, where applicable.
This would require an alternative legislative proposal to address peat extraction, and it is noted that a similar proposal was progressed in 2019, whereby exempted development regulations were made for the Planning regime (the Planning and Development Act 2000 (Exempted Development) Regulations 2019, Statutory Instrument No. 12 of 2019) to complement related EPA regulations (the European Union (Environmental Impact Assessment) (Peat Extraction) Regulations 2019) made by the then Minister for Communications, Climate Action and Environment, to allow the Environmental Protection Agency to be the sole competent authority for large scale peat extraction. However, those regulations were subsequently struck down by the High Court. This indicates that this area is a matter of particular complexity.
