Peat piled up for burning at Edenderry Power near Clonbullogue
BORD na Mona could soon be embroiled in a new legal battle which threatens the immediate future of the briquette factory in Derrinlough and its power station near Clonbullogue.
The energy company has said it will resist any move by Friends of the Irish Environment (FIE) to seek an injunction stopping it from supplying peat to both plants.
FIE is the environmental lobby group which won a landmark court case on the planning regulations governing peat extraction in 2019.
Bord na Mona had already launched its 'brown to green' strategy the previous year and last year announced it was ceasing turf harvesting on all its bogs.
In an unexpected move on Wednesday, FIE revealed that its solicitors had written a warning letter to Bord na Mona accusing the company of using “unlawfully extracted” peat at the power station, the briquette factory and at its horticulture facility in Co Kildare.
FIE told Bord na Mona that unless it stopped removing peat from its stockpiles by that evening (Wednesday, April 13) it would seek an injunction under the Planning Acts to ensure that planning permission is sought with an opportunity for public consultation.
The environmental group's demand was made as a result of a statement to an Oireachtas committee on March 23 last that Bord na Mona had 950,000 tonnes of peat in reserve.
FIE said that when Bord na Mona's representative Ger Breen was questioned by Sinn Fein TD Matt Carthy at the committee, Mr Breen agreed he was “absolutely satisfied” planning permission for the extraction of stock was not required.
The solicitor's letter from FIE to Bord na Mona said the peat was extracted without the required planning permission, and without an environmental impact assessment (EIA) or appropriate assessment and added: “Bord na Móna now seeks to profit from this unauthorised development by using the material unlawfully extracted. The excavation and removal of peat stockpiles amounts to ‘works’ within the Planning and Development Act 2000 that itself require planning permission and may also require EIA and/or appropriate assessment.”
Speaking to the Tullamore Tribune, FIE spokesperson Tony Lowes said Bord na Mona had not previously said publicly that it had nearly one million tonnes of peat in stockpiles and the information given to the Oireachtas committee prompted the threat of legal action.
Mr Lowes said FIE's move was motivated by its belief in the importance of public participation in planning and development matters.
“We all have to go through the planning process and the key thing about that is it gives everybody a chance to discuss it,” he said.
“We have to be pretty clear in the law on what we issue planning permission for and what we don't.”
In the context of the High Court ruling that large scale peat extraction needed planning permission, he said Bord na Mona had applied for substitute consent at a number of sites but then subsequently withdrew those applications.
In a response to this week's threat of legal action, Bord na Mona's solicitor outlined to their FIE counterpart how the energy company had already ceased all peat harvesting from its lands and had accelerated its decarbonisation strategy to deliver ambitious enhanced peatland decommissioning, rehabilitation and restoration targeting circa 33,000 hectares in over 80 of its bogs.
Bord na Mona's solicitor said FIE had previously welcomed all those developments.
The letter to FIE's solicitor went on: “In all the circumstances, we are surprised at your client’s demand for confirmation that excavation has ceased, and do not understand what further commitment is necessary. Further, we cannot understand why your client makes this demand now, at this time and with this short deadline.
“Our client has been transparent and clear with all stakeholders about its ongoing activities. There is nothing different or new in these activities. We believe that any and all ongoing activity is carried out under and in accordance with applicable laws, including under and in accordance with the several licences granted by the Environmental Protection Agency to our client."
The letter also told FIE that Bord na Mona had permission from An Bord Pleanala to continue using extracted peat at Edenderry Power Station for seven years from December 2016 and that Derrinlough briquette factory had been “constructed and opened” prior to October 1 1964.
“Since then, Offaly County Council have granted permission for amendments to the factory, including, most recently, for new workshop building on 2 February 2015... The use of peat at that factory is lawful.”
The legal letter also said Bord na Mona did not understand FIE's suggestion that lifting previously extracted peat into transport vehicles requires planning permission: “There is an important difference between extraction of peat from land, and mere transport of peat. The latter does not comprise development.
“We read your letter to suggest that permission is required to transport previously extracted peat, solely because the peat was, itself, unlawfully extracted. Your client has not identified or established that peat has been unlawfully extracted. Further, we do not understand how that could make any difference to the proper construction of what comprises development that requires planning permission. Bord na Móna plc has been careful to comply with applicable laws, across the entire of its 80,000 hectare land bank.
“We note your threat of an application to court. We do not believe that any such application is necessary or appropriate at this time. Any application based on the suggestions made in your letter will be resisted. We must insist that you bring this letter to the attention of the court.”
FIE is currently assessing the reply from Bord na Mona's solicitor in advance of a decision on seeking a court injunction.
In a statement released on Thursday night, Bord na Mona said it permanently ceased all peat extraction on its lands in January 2021 ensuring it is in full compliance with its legal obligations concerning the extraction of peat from its lands.
"The company has been advised that the movement of milled peat stockpiles does not require planning permission," said a spokesperson.
"The company continues to operate under and in accordance with its Integrated Pollution Control (IPC) licences, that are granted and administered by the Environmental Protection Agency (EPA). Those regulate peat stockpile management, including weather protection, loading and removal from its lands."
Bord na Mona has previously said it will cease supplying peat to Edenderry power station in 2023, at which point the electricity generation plant will be supplied by biomass wood chip only. It has been using both fuels for a number of years.
The energy company also plans to discontinue the manufacture of peat briquettes in 2024.
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