Oireachtas Joint and Select Committees
Tuesday, 20 July 2021
Joint Oireachtas Committee on Agriculture, Food and the Marine
Impact of Peat Shortages on the Horticultural Industry: Discussion
From the Department of Agriculture, Food and the Marine, I welcome Mr. Barry Delany, chief plant health officer, and Mr. Declan Harty, agricultural inspector. From the Department of Environment, Climate and Communications I welcome Mr. Philip Nugent, assistant secretary, and Ms Leslie Carberry, principal officer. I also welcome Mr. Brian Lucas from the Department of Housing, Local Government and Heritage. All the witnesses are joining the meeting remotely. They are very welcome. We have received their opening statements, which have been circulated to members. We are limited in our time due to Covid-19 restrictions so we will take the opening statements as read and will use the full session for questions and answers. The opening statements will be published on the Oireachtas website and will be publicly available. As with all meetings, members may not participate from outside the parliamentary precincts.
Before we begin, I will read an important notice on parliamentary privilege. Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence relating to a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Those participating in the meeting from a location outside the parliamentary precincts are asked to note that the constitutional protections afforded to those participating from within the parliamentary precincts do not extend to them. No clear guidance can be given on whether, or the extent to which, their participation is covered by absolute privilege of a statutory nature.
I thank the witnesses for coming in. To say there is huge frustration among the horticulture and nursery industries would be an understatement. Representatives from those industries have made representations to us and we had a briefing from them a few weeks ago. They are facing huge financial difficulties as they find themselves facing importation of peat for their industries. In my view, and I do not think anyone on the committee would argue with me, that is both environmental and economic madness. Organic industries in this country, both horticulture and nursery, including our mushroom industry, which is financially competitive, could be forced out of business. Some of them are even considering relocating. There will be robust questions for the witnesses. As a committee we want a solution to this impasse. We feel it is nonsensical. Hopefully the witnesses will enlighten us as to when we will get over this impasse at which we find ourselves. Until there is a viable economic alternative to peat we cannot see the logic of why we cannot have a licensing system for the limited amount of peat that would be needed for these organic industries.
I call Deputy Fitzmaurice.
I thank the witnesses for coming in. I will get straight to the point. The working group that was supposed to come back in May has now met. Has that group found a solution for the people milling peat on sites over 30 ha? I spoke to all parties earlier and I outlined the issue of the habitats directive that Michael D. Higgins signed in, whereby people have to have appropriate assessments, AAs, environmental impact assessments, EIAs, and all of that. Is that the big block, to cut it down to simple language?
Mr. Brian Lucas:
I thank the committee for the invitation to speak on behalf of the Department of Housing, Local Government and Heritage. The working group was established by the Minister of State, Deputy Malcolm Noonan, in March. It comprises representatives from the three Departments here today, as well as industry and environmental non-governmental organisations. Its remit was to address the issues identified during the review of the use of peat moss in the horticultural industry. It was appropriate, in the circumstances in which the horticultural industry found itself, that it consider that as well. Its meetings in March and April were effectively devoted to the preparation of an interim report and discussions and deliberations on that report, which was presented to the Minister of State in May and to which I referred in my opening statement.
On the legislative provisions, all developments require planning permission unless specifically exempted under the Planning and Development Act or associated regulations. Under the planning and development regulations 2001, peat extraction in a new or extended area of less than 10 ha or a new or extended area of 10 ha or more where the drainage of the bog commenced prior to 21 January 2002 is an exempted development. This exemption is subject to-----
Mr. Brian Lucas:
All these requirements under the Planning and Development Act and integrated pollution control licensing stem from EU law. The key requirement is whether a site loses its exempt development status. It would lose that status if an EIA was required so one would have to do a screening for an AA. Depending on the results, if that screening showed that a full EIA was required, the exempt development status would be lost and that would move it into a requirement for planning permission. In addition, peat extraction involving a new or extended area of 30 ha or more requires an EIA and, therefore, planning permission. If the site is 30 ha or more, that automatically requires an EIA and, therefore, it automatically requires planning permission. Peat extraction of an area greater than 50 ha requires both planning consent from a planning authority or An Bord Pleanála and integrated pollution control licensing from the Environmental Protection Agency, with reference to the Environmental Protection Agency Act 1992. Both of those regimes require EIAs to be carried out by their respective competent authority, which is the planning authority or the EPA, as well as an AA, if relevant. An AA or an EIA may not be required if the site is under 30 ha but the best thing to do would be to carry out the EIA screening and an AA screening as well.
I met Mr. Lucas fairly often in his former life, when he was with the National Parks and Wildlife Service. In fairness, he is pretty sensible. He is aware of the type of work we had to do. Consultants in hydrology, ecology and compensatory habitats were brought in. Articles 6(1), (2), (3) and (4) were involved. He knows the habitats directive inside out. Can something like that be achieved in the horticulture sector to resolve this issue?
My question for the Department of Environment, Climate and Communications is whether it has gone to Europe at any stage to talk about what we call a just transition and whether such a transition should be over five years or ten years. It is obvious that we do not have the solutions at the moment. Has the Department talked to Europe? Has it tried to prepare any legislation that would resolve this issue in the interim or wind things down as part of a just transition? I will tell both Departments represented here today that I do not buy into this idea. In Germany, 3,000 ha, including land on which there is housing, can be blown out for lignite up until 2039 or 2040. Other EU countries are sending peat and peat briquettes here. We seem to be the gatekeepers of Europe, if not the world, in the context of this type of legislation. How are they able to work around it while we are not? How are they able to keep working while we are not? How can they do so under their own legislation when we are in the same EU? I want the two Departments to answer the second question and I want Mr. Lucas to answer the first question about our previous work.
Mr. Brian Lucas:
By way of background, as I have said already, the planning and development regulations as regards exempt development and peat extraction have been in place since 2001. The provisions in the Planning and Development Act 2000 as regards environmental impact assessments and appropriate assessments have been in place since 2011. The regulations have been in place since 2001 and the Planning and Development Act provisions have been in place since 2011. Each provision has to be looked at separately. You have to ask yourself whether the exempt development provisions apply. You are looking at whether it is a new or extended area of less than 10 ha or a new or extended area of 10 ha or more where the drainage of the bogland commenced prior to 21 January 2002. You would then need to carry out an environmental impact assessment screening and an appropriate assessment screening. If these show that no environmental impact assessment or appropriate assessment is required, an application can be made under section 5 of the Planning and Development Act 2000 for a declaration to the planning authority that it is exempt development. As I said earlier, however, if a new or extended area of 30 ha or more is involved, an environmental impact assessment and planning permission are automatically required. The applicant would have to apply to the planning authority for planning permission. If the area involved is greater than 50 ha, planning permission and an integrated pollution control licence from the EPA are required. The law has been there for quite a while. There is no ban on peat extraction. The type of peat extraction you engage in does not matter. The law is the same across the board. I have tried to summarise the various legislative provisions. I believe I have answered the question Deputy Fitzmaurice asked.
Mr. Philip Nugent:
I thank the Chair and the members for the opportunity to speak today. May I clarify something for the record? At the discussion on 6 July, there were some suggestions that Departments had failed to respond to an invitation to attend which had been extended by the committee. We received no such invitation. I just wish to put that on the record. I do not believe any Department was invited.
With regard to the position on integrated pollution control, IPC, licensing, Mr. Lucas has hit the nail on the head. There is no ban and no restriction. There is just a clear requirement, which is common to all types of development, for operators to meet their legal obligations and to have the necessary consents in place. That is not the case and has not been for some time. The requirement to have an IPC licence is not new. In fact, peat extraction on sites of 50 ha or more became an activity subject to Part IV of the Environmental Protection Agency Act 1992 in 1994, meaning that it required an IPC licence. It has been a requirement for 27 years. I regard that as a fairly long transition.
I asked whether there had been any consultation with Europe. Let us face it; with regard to the Departments in this country, forestry - which is a total fiasco - roads, bogs, bridges, ports and anything else you want to mention are in bother due to this European legislation. Legislation was drafted before. Has the Department liaised with Europe? Let us look at Germany and many other European countries which are supposed to have the same legislation. They are supposed to have the same rules in respect of the 10 ha area and the 30 ha area and the same screening-out process if you are to go by the legislation. How are they able to resolve their issues while our Departments are not able to resolve ours? This is my second time asking the question. Has the Department liaised with Europe with regard to what we call a just transition? Has any Minister or anyone from the Department gone over to Europe about a just transition in horticulture or any other area? Has anyone liaised like we did years ago? We were over with those in Europe, not that I have great suss for them or anything. We were over to DG XI on numerous occasions. Deputy Carthy would be well familiar with it. The Department could then draw up legislation, which would basically have been blessed by Europe, that would bring about a just transition. Have any of the Departments done that?
Mr. Philip Nugent:
We have a system that is compliant with the EIA directive. It is a dual-consent regime. Other countries might have different systems. Our problem is based on non-compliance rather than on the system itself. The dual-consent system works. The competent authorities that operate that system, the EPA and An Bord Pleanála, say that the system is open for business.
Can I be honest with Mr. Nugent? I am not into milling peat but I know bogs better than anyone because I was reared in the middle of one. If any person with 80, 100 or 200 acres goes through the screening-out, EIA and appropriate assessment processes that apply to works over the 30 ha threshold, the council will be afraid to give him or her planning permission. That is the reality. Our Departments are not doing anything to make sure that this blockage is resolved for a transitional period. No one is talking about 20 or 30 years. We are talking about a five to ten-year transition period for the milled peat sector for the sake of jobs, for the mushroom industry down in Monaghan and all those areas, for the horticulture sector and for people who want to buy flowers, whether in cities or rural areas. Why are we not doing something? There is no point in codding ourselves. Councils around the country are afraid of the consequences of all of this different planning stuff. Something has to be done at a high level within one of the Departments.
I welcome our guests here today. We have had a lot of debate and discussion on the production of milled peat at this stage. We need to talk about solutions. As someone who has studied horticulture and who has worked in the horticultural sector most of my working life, I acknowledge that soft fruit production, forestry propagation and even nursery stock can manage without the same amount of intervention with regard to peat. There are loams and soil-based composts. There are other alternatives but there are no alternatives suitable for mushroom production.
With regard to mushroom production, there are no alternatives. I do not know if anyone heard or listened to "CountryWide" on Saturday. Mr. Dermot Callaghan, head of horticulture, Teagasc was on. It was a really good interview. He again convinced the audience there was no short-term alternative. We will need a transitional period, as Deputy Fitzmaurice talked about, of a minimum of ten years. We look at counties Monaghan and Cavan where most of the mushroom production is, though it is around the country but it is predominantly there. We know we have about 2,000 directly or indirectly involved in the industry. One of the first things I did when I was elected here was to go to visit County Monaghan and spend a day up there with Monaghan Mushrooms and go through all the various cycle of mushroom production. What struck me about it was from the very beginning, right out to transport and the fact they were sending mushrooms to the UK. Some 90% of our mushrooms go abroad. It is a vast industry with a sort of farm gate value in excess of €120 million in 2019. This is a wonderful industry. It needs to be protected.
One of the things I have been told by the people in this sector is that labour is cheap in Poland and other places for this industry. Many Polish, Latvian and other people worked here in the industry ten years ago, went back home and are now in this sector. The availability of peat there is easier. The costs of peat, production and wages are lower. It will clearly be a real alternative to move this industry out of Ireland. We have to wake up to that. We have to look again at Bord Bia and the amount of money it is spending. I am in support of Bord Bia but they are branded in Bord Bia with regard to Irish produce in mushroom production and it stands over it. Our demand for our production could increase. The market is huge. It has not been fully developed.
It is back to this medium of milled peat. Really, what I would like to hear today is what the alternatives are. What research is going on? Can the Department share with us where we are in terms of funding for research and innovation and alternatives? It will not happen in the next ten years. That is clear. We know that peat will be at the centre of various mediums for horticulture production but especially 90% for the mushroom centre. I want to hear where we are in terms of research. What funding has been put into that? Is there an international or European dimension to this innovation and research? Clearly we have to do something.
In the short term, we are told by the sector, and I can only go by what we are told, that we will be out of milled peat - forget about all this stockpiling - appropriate for mushroom production this autumn. That is what we have been told. What will we do about it? I want to hear what we will do about it? Deputy Carthy represents that constituency of those employees whose jobs are on the line. Deputy Fitzmaurice talked about just transition. We have to support these people and support this farm gate industry.
My real concern is where we are today. Can we put the pressure on to agree that we will have to accept peat will be there central to this food production but especially for mushroom production for the next ten years? Remember what our remit is in this committee. We are involved in the agrifood sector. We want to support the agrifood sector. We want to retain the jobs here. We want to support rural communities. It is a win-win-win for us if we can get some sort of movement on allowing milled peat to continue to be milled, albeit at a slightly reduced level. Let us call a spade a spade. We want free access to milled peat, especially for the mushroom sector over the next ten years. I am interested to hear what is happening and what negotiations are going on in the past few weeks especially with the mushroom sector in order that we can protect the industry, the product and the jobs.
Mr. Barry Delany:
I apologise. I was waiting to be let in. I hope the committee can hear me clearly. I am the head of horticulture and plant health. I thank the Senator for his questions and I take many of his points on board in terms of the importance of the sector. There is a difference between the peat that is used in mushrooms, black peat, as opposed to that which is used in the amenities sector, brown peat, which is harvested in a different way, comes from different bogs and is approached slightly differently. In terms of the peat for the mushroom sector, it is a matter of compliance. When one looks at the figures the horticulture sector is putting forward to us in terms of what is required domestically each year to produce that €120 million that is traded, it is 113,000 cu. m or ten to 15 ha. in total. The reality is it is a compliance issue here and we should be able to work towards that with the appropriate parties which are extracting. There does appear to be a route for that given what Mr. Lucas has said earlier on in explaining the approach that can be taken there.
In terms of the peat alternatives, as the Senator has said, the head of horticulture in Teagasc gave an interview on Saturday and outlined some of the issues and proposals it has done. We actively looked to alternatives on peat and we funded a number of research projects through the producer organisation scheme of which commercial mushrooms are part, as well as Monaghan Mushrooms. Within that, they are looking at stabilisation and peat-casing reduction, spent mushroom compost and the potential for blends and substitutes and partial peat replacers. That is ongoing. The Department of Agriculture, Food and the Marine is supporting that via the implementation of the producer organisation scheme. We also issued the 2021 research call. Within that one of the areas of research was to find alternatives to peat-based growing media for horticulture production which are available, affordable, sustainable and meet quality, environmental and productive requirements.
One is looking at evaluating each sector because, obviously, what will work in the ornamental sector is different to what will work in mushrooms at the amenities side in the vegetable sector as the Senator has outlined. One is looking at options around coir, green waste compost, rock wool and then further diluting and blending. That is all ongoing. Within all of that, there are further considerations around research beyond that as well. We hope that the research call will issue its approvals shortly and we will come back and let the committee know what is approved and update it on that. We are actively involved in that space but as the Senator pointed out, a period of time is required to get to the use of all these alternatives.
On the amenities side in particular, blends are already being used. When growing, peat with blends of 10% to 20% including wood fibre, coir and rock wool are being used. It is moving and steps have been made in that direction and it is conscious of needing to make a transition towards peat-free and has committed to doing so.
In terms of the other witnesses' engagement in these past two weeks, what is the level of engagement with the big mushroom producers? What is the current level of engagement that is going on? The witnesses might share that with the committee.
Mr. Philip Nugent:
I will go first and jump in ahead of Mr. Lucas. We are due to meet with representatives from the mushroom industry next week. In addition to that, we typically would not have a direct relationship anyway. I met with a number of representatives from Growing Media Ireland, GMI, back around November until January on a fortnightly basis. Separately, the three Departments have been in discussions around possible recommendations or actions that might supplement some of the recommendations that are in the draft report that is gone to the Minister of State, Deputy Noonan.
Members and the Department officials will know I have been concerned about this issue, as all of us have been, especially since the early part of 2020. I have to say I am getting to the point where I am frightened for the mushroom industry in my county, as has been referenced. It is hugely important to our local economy and I am frightened because the opening statements we have before us appear to point to inaction and procrastination and I fear that will result in the mushroom industry in Ireland, as we know it, moving somewhere else. Probably across the water. I am also frightened as to what that will mean in the long term for anyone who is genuinely concerned about climate action because the position we are in, as I have said on countless occasions, is built upon tokenism and hypocrisy because this is not being done to preserve or protect the environment. This is to give a semblance that we are doing something.
To summarise the statements we had, in fairness to the Department of Agriculture, Food and the Marine, its opening statement outlines in a very fair way the crux of the issues. It recognises that there is difficulty but, essentially, it says the Department cannot do anything about it. The statement from the Department of Housing, Local Government and Heritage acknowledges that there are issues at play and goes through in detail some of the steps that have been taken in terms of working groups and review reports. It mentions that an interim report indicates that there is general agreement among the members that peat should be available for the professional horticultural sector until the target date of 2030 and a maximum date of 2035. The Department of the Environment, Climate and Communications essentially says that there is no problem at all and that this is an issue that is 27 years old. If I was depending on a job in the sector and I saw that on my laptop, the laptop would be out the window. It is frustrating that the Department is basically saying that this is all the industry's fault and there is nothing to see here in terms of the Department.
The question has been asked a couple of times and it has not been answered yet. We are facing an immediate problem in August. This is not a problem that we were not aware of; we have been aware of it for some time. The action that was warranted has not been taken to deal with the potential crisis we face. What do each of the three Departments see as the solution for them to resolve the crisis we face in the short term?
Mr. Philip Nugent:
I am from the Department of the Environment, Climate and Communications. We acknowledge straight up that we are conscious of the supply difficulties that are being experienced by the horticulture sector. We are acutely conscious of that. What we are conscious of is the distinction in the horticulture sector between those who have found themselves in this position through no fault of their own and those in commercial peat extraction who have found themselves in this situation, in large part, through non-engagement with the regulatory regime. That is an important point to put on the record. We are and have been extremely active in trying to find solutions. We have been active members of the group established by the Minister of State, Deputy Noonan, and we continue to take part in the discussions at senior level between the three Departments.
What we have been saying all along is that it is not open to the State to simply remove the requirement that operators must regularise their past unauthorised development. This derives from the EIA directive and we cannot get away from that. It was addressed in a High Court judgment of 2019. What we have said is there is a pathway to regularise activities and the route to reactivating peat extraction is through engagement with the dual consent regime. Actions may be required in the short to medium term, but the long-term solution is through engagement with the dual consent regime.
Does Mr. Nugent think it is the sector's fault that the substitute consent was continuously struck down? To go back to my question, what are the proposals of the Department of the Environment, Climate and Communications to resolve the short-term crisis we face?
Mr. Philip Nugent:
I do not want to prejudge the actions in the proposed supplemental measures that will go before the Ministers very soon, but they are focused on forensically looking at the potential for what would have been regarded as sub-optimal grades of peat in the past to see if they can be mixed or blended to tide us over for a further period. We are also looking at the existing expertise within various organisations around using their supply chains, international or otherwise, to try to source other peat in that way.
I am also conscious that other operators in the sector are looking at the possibility of identifying suitable sub-30 ha sites that could be brought on stream in a reasonably short period, subject to achieving all of the necessary consents.
Does Mr. Nugent understand my point about the frustration of people listening? Regarding the sub-30 ha sites, is Mr. Nugent aware that stakeholders have indicated to us that unrelated bogs on which harvesting occurs, perhaps by the same operator, are being linked so that they are not considered to be sub-30 ha? That again is presenting a challenge in terms of getting peat to where it is needed.
Mr. Philip Nugent:
If I understand Deputy Carthy correctly, what he is referring to is regarded as project-splitting, or salami-slicing. As far as the EIA directive is concerned, those sites would be considered as part of a larger complex. I understand Deputy Carthy's frustration, but does he understand that the State simply cannot set aside its requirements under the EIA directive?
I understand that there are 17,000 jobs at risk and what I see in response to that from the Department is flippancy. That is why I am frustrated and angry. We have called this meeting to try to get solutions. Reading between the lines of the opening statements from the other two Departments, I sense that there is at least a recognition that something needs to be done. What I get from Mr. Nugent's opening statement and response is that it is nothing to do with the Department and it needs to be specifically addressed by the sector.
Mr. Nugent referred to salami-slicing. Does he see how that would appear a bit strange when in some instances we are talking about several kilometres of a distance between one site and another, yet they are being linked and the analysis that has been carried out says they are essentially the same site? Nobody who is in the area would consider them anywhere close to the same site.
Mr. Philip Nugent:
I am not familiar with any specific sites that are under discussion. They may or may not be suitable. I am just saying that in general where there is a difficulty identified with a site that is linked to a larger complex, it is referred to as salami-slicing or project-splitting and has fallen foul of the EIA directive in the past. I have no knowledge of any specific site to which the Deputy may refer.
Mr. Brian Lucas:
As Mr. Nugent said, all three Departments are part of the working group. From the perspective of the Department of Housing, Local Government and Heritage, we provide secretariat services to the group as well as participating in it. We assisted the chairman of the working group with the interim report that was sent to the Minister of State, Deputy Noonan.
As Mr. Nugent also said, and as I indicated in my opening statement, following on from the interim report, the three Departments have been working on a suite of measures to address the short-term needs of the sector. My understanding is that the measures are being finalised at assistant secretary level in the three Departments with a view to going to the political level as soon as possible.
As Mr. Nugent said, it is difficult for any official to go into detail on something that has not been signed off at political level, but he has already outlined what is envisaged in the suite of measures and I do not think there is anything I can add to what he has already said in that regard.
Mr. Barry Delany:
Again, we point to the requirement for the domestic production of peat.
If we look in particular at the area Deputy Carthy is most concerned about, mushrooms, they suggest that they need approximately ten ha to 15 ha per year. Mr. Lucas has outlined the possibilities that are there to get through that process. We would hope that the extractors or the parties are trying to expedite that.
The amenities side is a little bit more difficult but, again, they are looking for approximately 126,000 cu. m. That totals approximately 262 ha. Again, the figures there are not enormous. The trade would say to us that accounts for 0.12% of total Irish peatlands.
As we pointed out, it is back to a regulatory issue, in particular on the mushroom side. The Bord na Móna piece and the exit of the party from supply is slightly different and that has been more difficult. We have, however, been working very closely with the Horticulture Industry Forum, the Irish Farmers Association, IFA, the Kildare Growers Group and the Commercial Mushroom Producers organisation. In addition to that, we have the horticulture grant aid funding and the producer organisation funding to try to help parties to maybe adjust some of their systems to accommodate some of the new material they are trying to work through. Again, I am afraid there are no easy solutions.
I am not suggesting there are any easy solutions but can any of our three guests point to a resolution within the next number of weeks? As I said, this is a unique situation for me to be in. I have listened to several members and representative organisations tell us in very vocal terms for the past two years, and certainly for the past year, that an entire sector can and will be wiped out unless action is taken. I see this merry-go-round. We all accept that every action has a consequence but we are facing a perilous moment. I need to know, and this committee needs to hear, that there is a drive within each of the witnesses' Departments, or at least one of their Departments, to actually sort this out. Is there any confidence among any of the three witnesses that this will be resolved in the next short while?
Mr. Philip Nugent:
I will come in again. There is absolutely a drive and commitment to delivering feasible measures to address the supply issue. They will not be easy and I anticipate that import will be a part of that. Beyond that at this stage, to go back to what Mr. Lucas said and what I said previously, we cannot really get into the specifics at this point because the supplemental measures we are talking about have to go to the political system for endorsement first.
Okay. I propose to the Chairman that we bring these guys' political masters in before us. I know members might not be too eager to hear of another meeting during the recess but if that is what it takes to actually get answers then that is what I propose we do.
I thank the Chairman and welcome our guests. At the outset, I will repeat the point I have made a number of times that I believe it is remiss that we do not allow our guests to read their statements into the record. We are unique among committees. All committees are operating under the same Covid regime with the two-hour limit but guests generally are allowed to read their statements into the record. We are skewing the discussion by not allowing that.
With respect to his characterisation of the statement from the Department of Environment, Climate and Communications, Deputy Carthy said its view is that "there is no problem at all". That is absolutely not true in respect of Mr. Nugent's written statement. I have significant sympathy for Deputy Carthy and his constituents in County Monaghan. It is a serious issue and a crisis that requires all hands on deck. To be fair to our guests, we should accurately represent what they have sent into us.
What I am reading in Mr. Nugent's statement is that the Department is "acutely conscious of the supply difficulties being experienced by the horticulture sector." It goes on to state that its remit "relates to one aspect of the existing regulatory regime that applies to peat extraction on sites of over 50 hectares." It talks about:
A history of widespread non-compliance with this dual consent process, with many operators in the peat extraction sector lacking planning permission and / or an IPC licence while others have failed to engage or been slow to engage with these regulatory processes at all.
It goes on to state that:
Industrial scale peat extraction absent planning permission constitutes unauthorised development, [and] the onus has been on operators to first regularise their past activities and then secure the necessary consents before any recommencement can take place.
It states further that:
Not all of the relevant peat extractors have engaged, as required, with the planning system as they are required to do initially before seeking an IPC licence if successful in obtaining the necessary planning permissions.
The next point in Mr. Nugent's statement is perhaps the most important and I would like him to elaborate on that, if he could. He said that:
It is not open to the State to simply remove the requirement that operators must regularise their past unauthorised development, as this requirement is derived from EU law.
That is perhaps the bind that we are in. If I am to take Mr. Nugent's words at face value, the situation appears to be that there has not been a proper engagement between the sector and the regulatory system and that is the principle reason why we have the advice that we have. Our guests so far have suggested that there are interim solutions, particularly with regard to the sub-30 ha possibilities. Perhaps, however, Mr. Nugent might elaborate further on the bind the State is in with respect to its obligations under EU law.
Mr. Philip Nugent:
I thank the Deputy. He characterised it really well and laid it out very clearly. Essentially, there is no way for the State to remove the requirement that operators regularise their past unauthorised development. This is the substitute consent requirement. Substitute consent is how it has been dealt with through Irish legislation. This is something that is derived directly from the environmental impact assessment, EIA, directive and was very clearly addressed in the judgment of the High Court in 2019. That is why we I keep coming back to this point. The route to reactivating peat extraction is through the exiting dual consent process, which provides for the regularisation of past activities and then the authorisation of the prospective activity or the prospective development under both the planning and licensing systems. It is not, therefore, through a policy choice on the Department's part or through the introduction of a ban or a restriction. It is because of a requirement, which is common to almost all types of development, to have the consents in place.
I should also say that the dual consent aspect that applies to industrial heat extraction is not unique. More than 800 Environmental Protection Agency, EPA, licences are held by operators across all sections of the economy and with all those 800 plus licences there would also be a planning permission associated. There are, therefore, 800 licences issued by the EPA that also have planning permission attached. In other words, they have been subject to the dual consent regime and those operators have successfully navigated that system. We do not, therefore, accept that the dual consent regime is uniquely onerous. Industrial peat extraction is a significant intervention in the landscape and it is right and appropriate that there should be a reasonably proportionate bar for authorising that activity. The dual consent regime is not, therefore, unique and, as the Deputy said, it is not open to the State to walk away from its obligations under the EIA directive.
I thank Mr. Lucas for appearing before us again. I understood he was going straight into retirement. If he has come out of retirement to meet with us, I thank him for doing so.
Can Mr. Lucas speak about the possible solutions to this crisis relating to the sub-30 ha possibilities? Does he see major obstacles on plots of those sizes?
Mr. Brian Lucas:
As I said, under the planning development regulations, peat extraction in a new or extended area of 10 ha or more where the drainage of the bogland commenced prior to 21 January 2002 is exempted development. The best thing to do is to give a practical example. If I wish to engage in peat extraction and if I have a site which I think fits into the exempted development category, for example, an area of 10 ha or more where the drainage of the bogland commenced prior to January 2002, then I would first conduct an environmental impact assessment screening and an appropriate assessment screening. If the results of those screenings show that an EIA and AA are not necessary, then I would go to the planning authority and seek what I referred to earlier, namely, a section 5 declaration. My recollection of the Planning and Development Act 2000 is that the planning authority must respond to such an application within four weeks. It is open to anyone to pursue that process. However, it would be necessary to at least do an EIA screening and an AA screening and then provide the outcome of those to the planning authority as part of the application for a section 5 declaration.
During my time working in the area of peatlands, although it was for domestic turf cutting, as I mentioned, the planning regime and the law is the same no matter what type of extraction is involved. The Department sought section 5 declarations from planning authorities for peat extractions in the circumstances which I set out and received such section 5 declarations. In addition, for two sites where we felt there was a need for a full EIA, we applied for and received planning permission to develop those two sites for domestic peat extraction. To complete the picture, we applied for planning permission for one more site and we were refused. We appealed that decision to An Bord Pleanála, but it also ruled against us. Therefore, that there is still a requirement to go through a process of seeking consent and a section 5 declaration. It is then a matter for the planning authority to decide whether to grant that declaration.
I also welcome our guests. Some of them have said that they are conscious of what is going on in the sector and that there is a journey under way. After what we heard at several of our recent meetings and from talking to people in the sector, it does not appear that there is much of a drive going on between the different Departments.
I have some comments and questions. A major factor in this whole mess is timing. The Department has admitted that finding peat-free growing media alternatives is a challenge and that wood production is a particular challenge. The future of the sector is in the hands of the three Departments represented here today, but no workable solution has been forthcoming from any of them regarding the problem this sector faces. The Departments might have all the time in the world to deal with this issue, but the sector does not. The point has often been made, and especially since April, that time is running out fast.
Ultimately, if there is further resistance to reaching a resolution that works for all, then jobs, exports and communities will suffer the consequences. Recent comments from the Minister of State, Senator Hackett, encapsulate the problem. On one hand, she has told us that the harvesting of horticultural peat must stop in favour of alternatives, while, on the other hand, she has also stated that a stockpile of peat can be used during the time while research is being carried out into these alternatives. No one seems to be able to tell us what these alternatives are or if they will even work. This process could take years. We are being told that the stockpile of peat that the Minister of State has spoken about is unsuitable due to its age and that the source will run out at the end of September. That is according to those in the industry.
Meanwhile, the Department of the Environment, Climate and Communications seems to be totally resistant to amending the planning rules which could be tweaked to save jobs. The representatives of the industry have proposed the introduction of a fair and workable licensing system, similar to the single consent process that has been in operation elsewhere. It has also been proposed that an interim period be allowed for the phasing out of horticultural peat harvesting over a transitional phase to allow the alternatives to be developed. The sector is involved in trying to devise alternatives to what is being proposed and it is seeking to secure a supply of a growing media up to 2030, which is the period that has been suggested. Can the representatives from each of the Departments outline the obstacles which are delaying this approach for the sector?
Mr. Philip Nugent:
I am happy to go first. It is important for me to reiterate that we are not opposing viable solutions. We are not standing in the way of them. A suggestion was made at the meeting of 6 July that there was a dispute between the three Departments regarding solutions. There is not. We are working constructively together to try to develop solutions. The Deputy mentioned-----
Mr. Philip Nugent:
I understand that, and, as I said, we are very conscious of the predicament in which the horticultural sector finds itself. Returning to my opening statement, from which Deputy Leddin quoted, the reason we have ended up in this situation is because of a history of non-compliance by commercial peat extractors. It is also important to state that we do not have responsibility for the planning system. Mr. Lucas may wish to speak about that matter.
The Deputy spoke about the possibility of replacing the dual consent regime with a single consent regime. We do not regard that as something that will accelerate this process at all. A new consent regime would require primary legislation, which obviously takes time to prepare and get through the Oireachtas. It would also require the introduction of new systems and processes in whatever statutory body was given responsibility for such a new system. Only at that point could the regularisation process commence, that is, the application for leave to apply for substitute consent. That would then be followed by the application for substitute consent and then the application for the prospective consent. It is also important to bear in mind that, as we have seen in recent years, the process is very likely to be challenged along the way, possibly at several stages. It is for this reason that we think that following the route of a single consent regime would not allow for an earlier resumption than would engagement with the current system.
Starting with the representatives from the Department of Housing, Local Government and Heritage, I noted with interest the second last paragraph of the opening statement. It acknowledges the opinions of the working group in respect of a phasing out to be undertaken up to 2030. Is this something that the Department sees as a possible solution to the problem we are facing?
Mr. Brian Lucas:
I am not quite sure if I understand the question. What was being said in the working group was that there was a consensus on a phasing out of peat extraction up to 2030 and possibly 2035. It would depend on the success of the research and development programmes. Mr. Delaney has gone through the research work being done by the Department of Agriculture, Food and the Marine.
I do not think that anyone here believes that there is going to be an alternative in place by September, at which point this sector will be in serious trouble. Is it possible that the date for this change can be stretched out to 2030 to let the sector come up with the solutions and alternatives that have been referred to? I wonder could such an approach be adopted instead of bringing materials from halfway around the world, with the resulting carbon footprint. What has been discussed so far is a crazy situation.
Mr. Brian Lucas:
Yes, it is clear there will not be an alternative to peat in place by September of this year. In the working group, however, the representatives from the Department of Housing, Local Government and Heritage outlined the current legislative provisions. I have gone through those already and Mr. Nugent has also spoken about them. We made it clear what those provisions are at the working group. Mr. Nugent referred to the dual consent system. This features in the report of the working group.
The report in question states that any system of regulation would need to provide for EIAs, AAs and subsidy consents in respect of previously unregulated peat extraction. The undertaking of an EIA will be mandatory in an application for consent to undertake large-scale peat extraction on a site of 30 ha or more. As a result of this, there has to be a consent system in place. It has to provide for EIAs and AAs. As already stated, in some cases, screening for AAs and EIAs would be possible. Both Departments have outlined all this in the current legislative provisions. I quoted directly from the interim report about an alternative system. There has to be consent system in place.
I listened back to the discussions the committee had with the industry representatives on 6 July 2021. There were discussions about emergency legislation. Again, the Department had made clear at the working group that if there is emergency legislation, there will be no EIA, no AA, no screening for EIA and no screening for AA. The view of both Departments is that would not be possible. Mr. Nugent has already outlined the requirements that Ireland is required to follow under EU law. It is not possible to have no consent system. It is not possible to do away with EIA and AA. At the very least, screening has to be undertaken. I have gone through this already. It is not possible to have a free-for-all with no consent system in place. That is the view of the Department of Housing, Local Government and Heritage. It is fair to say that it is the view of the Department of Environment, Climate and Communications also.
I have a question for the Department of Environment, Climate and Communications on this so-called stockpile of peat. Can the Department comment on the actions of the EPA regarding a certain company that sought to prevent it from accessing that? Does the Department see this as an appropriate way to act in light of the circumstances right now?
Mr. Philip Nugent:
I thank the Deputy for his question, but I cannot comment on that matter. Under section 79 of the Environmental Protection Agency Act, 1992, the Minister and the Department have no function in respect of the performance of the EPA under the particular circumstances of a function assigned to it under the Act. This relates to IPC licensing or any enforcement matter.
We will not get an answer to that question. I have a question for the Department of Agriculture, Food and the Marine. The Department seemed to be at great pains in its opening statement to say that it has no role in the regulation of peat extraction or planning. They said that is for the Department of Housing, Local Government and Heritage. They then said that IPC licences fall under the Department of the Environment, Climate and Communications. Is there a problem in the fact that there are three different Departments working on this from different angles? Eventually, the sector will lose out from the collective failure of the Departments to come together for the benefit of the industry and the environment.
Mr. Barry Delany:
We have been clear from the start that we fully acknowledge the issue at hand for the sector. We work closely with them. We have a role in their ongoing development. We have been working fully with the Department of Housing, Local Government and Heritage. We have been working closely on a daily basis with our colleagues in the two other Departments. The Deputy heard today about a short-term approach. He referred to the Minister of State at the Department of Agriculture, Food and the Marine, Senator Hackett, who has been clear on this as well. The immediate solution is to focus on small-scale extraction for the domestic commercial horticulture sector in the transition towards peat free. In the context of the larger-scale aspects, there could be a medium-term approach. We have come back to immediacy, a matter to which Mr. Lucas referred earlier. In the focus on small-scale extraction, we will find the solution.
All the Departments have been speaking about buying time to develop these alternatives. They seem to be forgetting, though, the whole sector and professionalism in that industry. They are already in the process of looking into alternatives. They are the ones who know their industry. They know what works right now and what does not work. Instead of Departments trying to buy time for themselves, they need to get these professionals on board and give them the time to adjust. I do not know if they would deal this, but the Department has to be realistic with the time-----
The horticultural sector values the planet and all it offers. We have got that message any time we have spoken to those involved in it. Sustainability is of vital important to them. So, work with them. Do not start dictating to them out of an idealistic stance that is in practice unrealistic. The Department needs to live up to its words and secure the thousands of jobs to which Deputies Carthy and Fitzmaurice and Senator Boyhan referred. There is a massive industry that needs to be looked after. Will the representatives from the Department say that they will actually do this? It does not seem to have been done up to this point.
No, there was not really. Instead of buying time, our guests need to work with the people who we have been talking to and who are involved in that sector on a daily basis in order that they can come to a conclusion. There will be a massive number of jobs at risk, if something is not done quickly. Buying time is not a solution.
We have been discussing this issue and many others. I appreciate the efforts that the Chair and committee staff have made to accommodate every party in respect of this issue. It is a crisis. I have been discussing this with the nurseries and the horticulture sector on a regular basis. They are pressurising us, as politicians, for results. I appreciate that we get ample time to question the witnesses and I welcome them here. I thank the Chair for not spending too much time on statements in order that we do not lose the valuable time we need to get our points across.
The point I want to get across is that I cannot understand for the life of me why this crisis has continued in the way it has. Who is in the wrong here? Why can it not be resolved temporarily until something is put in place? Somebody has got to put up their hand and take the blame. It is either Minister or the Department that needs to do so. Who in the name of God is going to take the blame? Will the buck be passed from one to the other? As Deputy Carthy said, maybe we will just have to come back here again to see if we can get to some kind of solution. I have no issue about coming back here; the nurseries are severely affected on the ground.
I only have a few questions. Many of those I was going to ask have already been dealt with. My argument is that there was a withdrawal from peat without a plan being in place. The nurseries have been left flat-footed. They were given no time to adjust. When other businesses are affected, there is some kind of compensation package put in place. Has the Department considered a compensation package? If it has, what kind of package is it?
The issue of the timeframe was raised. Can we have Irish peat for Irish growers? It is a simple question. The third question is whether some bogs can be redefined as no longer being peatland habitats. Is it possible to re-wet bogland and then have suitable peat that can be used for horticulture?
I have a fourth question and then I will leave it at that. Last week, the Minister of State at the Department of Agriculture, Food and the Marine, Deputy Pippa Hackett, released a statement to say that a stock of Irish peat will alleviate the immediate issue may have been secured. The industry would like to clarification on this stock of peat. If it is stockpiled peat, it will not be suitable for the casing layers used in mushroom growing. Is it stockpiled peat or is it not?
Mr. Barry Delany:
I can take the first question on the stock of peat. That matter was alluded to at the committee's meeting on the 6 July 2021 and in our engagements with the industry. We had understood that there were some indications of availability of peat stocks on hand but these were for the amenity side, not for mushrooms. Again, given that is a commercial matter, as Mr. Nugent outlined, we are not in position to comment further. However, as soon as there's anything clarified, we would be happy to come back to the committee and clarify that further. With regard to redefining bogs and the timeframe involved, I will have to leave that question to my colleagues.
Mr. Philip Nugent:
I can take a couple of the points mentioned. Mr. Lucas may want to talk about redesignation. To echo what Mr. Lucas said previously, the State cannot simply set aside its obligations under the environmental impact assessment, EIA, directive or the habitats directive. There is no way for extraction to take place legally on a site greater than 50 ha in 2021. The only way to reactivate sites like that is through engagement with the system. It may be difficult to hear that this is the case but the system is in place and has been for some time. The requirement to have an integrated pollution control, IPC, licence is not new. It has been there for a couple of decades at this stage. We are very conscious of the situation the horticulture sector finds itself in but the fundamental issue here relates to non-compliance.
I asked about nurseries and other businesses that have been heavily impacted. Has any consideration been given to a compensation package for these people whose businesses have been almost destroyed? There was no withdrawal plan and no time given to adjust. These nurseries have been caught out. As with everything else in this country, they can bring it in from abroad as long as we are not seen to be making it in Ireland. That seems to be the new Irish solution. Are there any plans to compensate the nurseries or other businesses that have been impacted? I would appreciate it if that question could be answered.
Mr. Barry Delany:
In the first instance, the way we support the horticulture sector is through the grant aid scheme. That has increased from €6 million to €9 million this year and offers strong support to the mushroom sector and to the amenities sector. These sectors receive a lot of funding through that route. To go any further than that, I would have to speak about the working group. I might leave that to Mr. Lucas to discuss. One of the areas for consideration related to just transition and so on. Again, that has not been fully teased out as yet. We are probably getting into the political realm at that point. I do not know if any of my colleagues would like to elaborate on that issue.
Mr. Brian Lucas:
I will just come in on the matter of the just transition. We have had discussions on this and the first thing one would need to do is to see whether the crisis the industry may end up in falls within the area of just transition. One would then need to see whether budgetary funding could be provided, with the just transition concept possibly fitting into that. I recall that, in the last session, Deputy Cowen referred to the just transition territorial plan. It is my understanding that this is being drafted by the Department of the Environment, Climate and Communications.
I thank the officials from the Departments for being here today. A lot of what I was going to ask about has been covered. I mean that loosely because, while the questions have been asked, they have not necessarily been answered to my satisfaction. I have a couple of questions. I note that Mr. Nugent has said there is no dispute between the Departments. We would probably be a lot nearer to a solution if the three Departments banged their heads together and if there was a bit of a dispute between them. That could be part of the problem. There is a bit of a laissez-faireattitude and a sense that it is everybody else's problem. Has anybody sat down and looked at what is happening on the ground? We can blame the High Court ruling and say that it caused a problem but the High Court ruling just set standards. What caused the problem was Bord na Móna walking off the pitch without bothering to follow through with the new standards for applications. That is accepted. Bord na Móna is now rewetting bogs. It walked away from them practically overnight. I presume many of these bogs will need manicuring before they are in an ideal position for rewetting. That manicuring may or may not require the removal of peat. Has anyone sat down with Bord na Móna and asked it to do an analysis of the bogs before wetting them to see if there is a surplus layer of peat that will need removal? Could that be used to solve, in the short term, the problem facing the horticulture people as part of a just transition while we are waiting for the development of these alternatives?
With regard to the applications for areas greater than 30 ha and areas greater than 50 ha, are there many, or any, applications in the system? If there are, how long have they been in the system and how long is it expected to be before a decision is made on them? How many applications from the private sector have been granted with the extraction now up and running? What kind of lifespan do they have? That is it for the moment. Depending on the answers, I might have a couple more questions.
Mr. Philip Nugent:
The first part of the question, which related to Bord na Móna, is for me. I can talk about sites greater than 50 ha. I do not agree with the characterisation of Bord na Móna walking off the pitch. Bord na Móna was affected in the same way as every other operator by the 2019 High Court judgment. It is not true to say that it voluntarily walked off the pitch. It was quite severely impacted by that decision. Bord na Móna has been a very active member of the working group Mr. Lucas talked about and has done quite a lot to support the horticulture sector. Since 2019, Bord na Móna has not harvested any peat. It cannot harvest peat without further regularisation. Since the judgment, Bord na Móna has actively engaged with all customers of professional grade horticulture peat and their representative organisations. Bord na Móna has been clear and transparent in communicating its exit from peat harvesting and the impact this will have on the sector but, to assist the sector, it ensured that Irish customers of professional grade horticulture peat were supplied with 40% more peat in 2021 than the equivalent period in 2020. It has also formally ceased the export of horticulture grade peat, which resulted in 94% of pre-existing and planned shipments to all export customers being cancelled. Bord na Móna is very active in this space and has been very supportive of the horticulture sector.
With regard to applications that are in the system, at the meeting on 6 July, the representative from Growing Media Ireland said that two or possibly three had engaged or had submitted applications to An Bord Pleanála. I am not entirely sure. That is a matter for it to address but it is a small number that have engaged with the system. With regard to sites greater than 50 ha that are operating at the moment, none are operating lawfully. Any that are operating are operating unlawfully because they do not have the required planning permission, IPC licence or either of them.
Does Mr. Nugent not believe that the solution to this problem, which would get us to the endgame as part of a just transition, is for Bord na Móna to engage with the system in respect of selected bogs? I am talking about a targeted tonnage specifically for the horticulture sector.
I am sorry. I know that. I am aware of the historical facts. I asked whether Mr. Nugent thought it would have been a solution, as part of a just transition and to get us through until alternatives are developed, for Bord na Móna to suspend operations and to engage with the system in respect of specific targeted bogs, which may even need some manicuring before wetting, with a view to extracting a targeted tonnage of peat for the horticulture sector.
Does Mr. Nugent not see how a reversal of that decision, or how the initial decision was made, is what has caused the problem for the horticulture sector? A reversal of that decision could be an interim solution until we come up with some of the alternatives that are being researched. If three individuals in the private sector were trying to solve a problem, at this stage I, or somebody else, would have brought them together, along with Bord na Móna, to address the situation. Specific, targeted bogs for commercial purposes, in the interests of saving another sector, would be something that could be considered. It could engage with the system for production of horticultural peat in designated bogs in the interim until we have alternatives. Does Mr. Nugent not think that is something the Department could have discussed, addressed or explored as part of its tripartite effort to come up with a solution?
Mr. Philip Nugent:
Again, a Department would be brought into a space of trying to influence a decision taken by Bord na Móna which operates on a commercial basis. It was affected in the same way as every other operator. It does not make sense to isolate it and say it should have done something at that point to respond to the High Court decision. All operators then, and many years previously, should have engaged with the system so that we could have avoided being in the situation we are in today. I should also add that Bord na Móna started the process of seeking substitute consent specifically for the horticultural peat sites.
In case I am accused of misleading the committee, let me recategorise my review of the Department of the Environment, Climate and Communications. Its view is not that there is not a problem; rather, it is not its problem. I presume that would be a fair assessment of what it said.
Mr. Nugent said this is essentially the fault of the sector not engaging with the process. He can correct me if I am wrong about any of the information I have. I could well be wrong, because this is a complicated process. The EIA directive was agreed at an EU level in 1992. Is that correct?
Mr. Leslie Carberry:
I thank the Chair. As I understand it, a planning Act was passed in 2011. The trigger for the requirement for planning permission for peat harvesting over 30 ha was based on a series of decisions by An Bord Pleanála in respect of specific sites. I believe, though I am open to correction on this point from Mr. Lucas, that those decisions were triggered by a request for determinations from third parties, in this case environmental NGOs.
Okay. Let us fast forward to 2018. If I understand the position, there was an 18-month derogation or time provided for regularisation. Is that a fair way of putting it? That was the subject of the 2019 Simons judgment. Would that be correct?
Mr. Leslie Carberry:
No. An Bord Pleanála ruled that planning permission was required in respect of peat extraction on specific sites. That was challenged through the courts up to 2018. In December 2018, as I understand it, that legal challenge was exhausted and at that point it was the law of the land that peat extraction over 30 ha would require substitute consent if the necessary consents were not already in place.
The Departments of Housing, Local Government and Heritage and the Environment, Climate and Communications brought forward the 2019 regulations, as they are referred to, which moved peat extraction from the planning system exclusively into the EPA licensing system. More importantly, that did away with the requirement for substitute consent. That is the key issue. It essentially tried to do what Deputies and the industry are asking for today. It got rid of that requirement for regularising previously unauthorised development and, as soon as the regulations were signed, they were promptly challenged by an environmental NGO. The case went to the High Court.
Mr. Leslie Carberry:
It was brought forward by the two Departments. The two regulations have to work in conjunction. The Department of Housing, Local Government and Heritage exempted peat extraction from the planning system and the Department of the Environment, Climate and Communications said it would be regulated exclusively through planning.
That was struck down by the High Court on the basis of two grounds. First, it was done by secondary legislation and the court ruled that it should have been done by primary legislation because it cut across the will of the Oireachtas. Second, and more fundamentally for the discussion here, the court was clear that, regardless of which consent process peat extraction was covered by at national level, it has to be regulated in compliance with the EIA directive. This meant that where there was previously unauthorised development it had to go through a process like substitute consent.
I can go to the process steps of what substitute consent requires. That is unavoidable.
Okay. Prior to 2019, the Departments came together and tried to find a solution. I give credit where it is due. That solution met the court system and the court system essentially said what it did. Is it fair to say that the Department said then, or at least now, that it is not its problem anymore and stopped trying to find legal or other solutions to these matters?
Mr. Philip Nugent:
Can I get back in there? This goes back to a point that I made earlier on a number of occasions when we talked about the possibility of removing either the planning element or the licensing aspect of it and what would be required in order to introduce that new regulatory regime which would be either planning or licensing. We are very much of the view that that would not improve the position in terms of the timeframes and that the fastest way to regularisation is through the existing dual consent regime.
The implication of the High Court judgment clearly was that one cannot get away with removing the substitute consent element. That needs to be part of either a single consent or dual consent regime. We are saying that legislating for a new single consent regime that also properly respects the environmental impact assessment directive and allows for substitute consent would not deliver decisions any more quickly than the existing dual consent regime.
Mr. Nugent mentioned earlier that part of the short-term solution will likely involve importation of peat. Does he accept in the first instance that provides no environmental benefit? As far as mother earth is concerned, whether the peat is extracted in Roscommon or Leitrim or in The Netherlands or Lithuania makes little difference.
Mr. Philip Nugent:
Import will need to be part of the solution, and is already happening because of the shortage of supply. There is obviously a carbon footprint associated with import but there is also a carbon footprint associated with hauling horticultural-grade peat from one side of the country to another. I have not seen the numbers on it but there are environmental implications both ways.
Just because it is taking place does not mean it is right. I thought I misheard Mr. Nugent earlier. I did not want to interrupt Mr. Nugent but to concede that importation is part of the solution is inexcusable from a Department official. I am horrified to hear that we will concede that we cannot produce peat here for organic industries. Mr. Nugent, you better go back to the blackboard because what you are saying here today is not a solution. I know we have go to the Ministers but to them we will be going. What we are hearing today is totally unacceptable.
I apologise to Deputy Carthy for interrupting him.
I agree entirely with the Chairman. What is more concerning is that there is not an explicit agreement that brings no environmental benefit.
I was going to make a second point. Has the Department carried out an analysis of the planning and EIA regulations in those countries from which it is suggested that we would continue to import peat to see how they play against ours in terms of the practicalities of monitoring, enforcement and delivery?
Mr. Philip Nugent:
The Department of the Environment, Climate and Communications is neither the competent authority for the EIA directive nor responsible for the planning system.
Chairman, I am sorry that you are horrified but I have outlined the steps. I outlined the way in which commercial peat extraction can be reactivated in Ireland and it is through engagement with the dual consent regime. That process takes time. Most members of the committee have stated that there is a requirement for solutions in the interim. Our responsibility is for the greater than 50 ha sites. The only way that they will be reactivated is through engagement with the dual-consent regime.
It is my opinion that import will probably be part of the solution. I would welcome other Departments' views on that but I do not think there will be any-----
I am sorry, Deputy Carthy, for a second. Mr. Nugent, you are not listening to anything this committee has been saying here today. We have people who are representing the constituencies which are deeply affected by this. They are saying that the industries there are considering relocation. If we stay doddering about, we will end up with the industries gone from this country. We can issue what licence we want after that because the industries will be gone, with the loss of employment and a home-grown industry. If that is progress, I am baffled.
I am sorry, Deputy Carthy. I am after interrupting you again.
Mr. Philip Nugent:
From what we have seen in recent years, the fact that the 2019 case was brought by Friends of the Irish Environment in the first place, I would expect that decisions coming through the substitute consent process one way or the other would be challenged either by those seeking consent if they fail to get it or by environmental NGOs if consent was given.
Does Mr. Nugent not see a problem here? Mr. Nugent has said that the onus is on the sector to engage with the process that is there but there is also an acknowledgement that that process, if it is engaged with, will be challenged at significant cost. There will be a significant time delay.
Absolutely. In this instance, does Mr. Nugent not accept that a substantial proportion of the challenges are being won and the problem must lie in the legislative basis on which the applications are made?
Mr. Philip Nugent:
The Deputy asked my opinion as to whether they will be challenged. There is a likelihood either way that decisions would be challenged because of the sensitivity in both ways, for the jobs and the economic consequences and also because of the environmental consequences on the other side.
Perhaps I am not phrasing this correctly. I am saying if there are ongoing challenges on the premise of a particular type of application and if those challenges are routinely successful, does Mr. Nugent not accept that there may be a problem in the premise of the legislation as opposed to the people who are making the applications in the first place?
Mr. Leslie Carberry:
On that point about the underlying legislation and the soundness of it, that was addressed by the High Court in 2019. In setting aside the 2019 regulations, the court noted that that was quite a serious matter for the courts to do and the reason the court was comfortable doing so in part was because the court's view was that the pre-existing dual consent, substitute consent based system was broadly legally sound. While any specific decision can be challenged on its merits, that was taken into account in the 2019 ruling. I do not want to say specifically it is in the judgment but certainly, in his oral remarks, the judge's view was that the substitute consent process is fundamentally sound.
One of the issues with introducing a new system is it would open up another front for legal challenge because one would not only have individual decisions through the dual consent system challenged on their own but no doubt one would also have this whole new legislative framework challenged. Given what we saw in 2019, it would give real cause to say that there is a straightforward way in which one can move unauthorised development from one regulatory system and try and regularise it in another, and do that in a way in which the courts will not object to.
I take the point about the number of legal challenges but the Department's view - I think it is shared by the Department of Housing, Local Government and Heritage - is that the current system is fit for purpose.
Mr. Leslie Carberry:
I cannot speak to that in that I am not a planner or a member of the Department in charge. My understanding is that each applicant must individually set out why there are exceptional circumstances in his or her case. An applicant cannot rely on a blanket ruling. Maybe Mr. Lucas has more information on that.
Mr. Brian Lucas:
I do not work on the planning side of the Department so it would be difficult for me to get into the details of the exceptional circumstance provisions of the legislation and whether they have been applied or not. I can take that question back to the Department and see if I can find an answer to it.
When Deputy Carthy was on about Bord na Móna walking off the pitch, Mr. Nugent said it did not do so. I would say it ran off the pitch. Every one of us have met Bord na Móna before and there was supposed to be this just transition to 2030. We were looking at a lovely book on it and then we got word about that High Court case. There was an opportunity for Bord na Móna to keep going if it wanted to but it was because of the threat of an injunction that it would not go any further. If I stopped at every threat I got in life then I would do nothing. Bord na Móna knew funding was coming to it for all the different things it is doing now so I do not accept that excuse.
Was it the Department of the Environment, Climate and Communications, under the former Minister, Deputy Bruton, that put together the legislation that got beaten in the High Court?
Mr. Leslie Carberry:
The legislation was an honest attempt to do exactly what Deputies were asking for, namely, to absent the requirement for operators to go through a substitute consent process. The courts roundly rejected that approach. I mention the requests for emergency legislation or some form of setting aside of environmental assessments that we have heard about. That was tried in 2019 to some degree and it did not stand up to legal scrutiny.
The witnesses talk about not going down the route of a single consent system in legislation and they say the route we are on at the moment would be better because one route would take as long as the other. I mention someone who has 50 ha and has to get an IPC licence and go through all of this. This is similar to the quarry situation that the Departments are involved in, which is a total fiasco and mess. Ordinary people do not have money to be running in and out given the cost that is involved in all of this. Is it the case that the Departments are basically trying to export things out of our country or that they are trying to look after big business alone? If you look at quarries, it is the big quarries that will survive and the small ordinary person will be thrown out on top of his or her head with the stuff we have in and with what it is costing to get all these licences.
We might have lost a court case but why were we not prepared to go back and bring it to a higher level? Ordinary people lose cases in the District Court and they head to the Circuit Court because they believe they are right. If the Departments believed they were right to put in the legislation, why was it not challenged?
Mr. Philip Nugent:
The Department of the Environment, Climate and Communications is not responsible for the regulation of quarrying. That comes firmly within the remit of the planning system. Mr. Carberry has pointed out the reason the judgment was not challenged. It was because it was felt that there was not a realistic prospect of success, given the robustness of the judgment. It is certainly the case that-----
The witnesses heard Deputy Carthy outline it well. The system that is there at the moment is loaded against you, to put it simply. The Departments are happy and the witnesses have admitted that there is some coming in from other countries.
There are certain EPA licences for which you do not have to go through the same rigmarole as when you are going through EIA and appropriate assessment on the bogs. I have done all this and Mr. Lucas can vouch for everything we have gone through on the bogs.
I have one question for all the witnesses and Mr. Lucas will be familiar with this. Under the habitats directive, you had to say whether a bog was degraded or restorable. Even though they are talking about rewetting bogs, there are an awful lot of degraded Bord na Móna bogs that it will not be possible to restore. That is my experience and anyone involved in bogs would agree. This system does not even give you the opportunity to state that the bog is degraded. The drains could be every 12 m apart and the bog would be a degraded bog. The projection under the EU habitats directive was - and Mr. Lucas can correct me if I am wrong on this - that the bog had to be restorable inside a period of 30 years. With the best will in the world, many of them would not have been restorable, including the likes of the Bord na Móna bogs, if we call a spade a spade. From everything I have looked at in legislation under EIA, appropriate assessment and the whole lot, there is nothing to state that a bog can or cannot be restored inside a 30-year period. That is laid down in EU law. Why is there not something on that?
I know all of that. I am saying that when the Department is judging a bog, it has to see if it is degraded or restorable within a 30-year period. That is set down by the EU. Am I right or wrong in that?
Mr. Brian Lucas:
When the sites were designated as special areas of conservation, you would have looked at whether they were restorable or not.
If we just take, for example, the non-designated bogs for a moment, even if they cannot become carbon stores, by blocking the drains we can still prevent more carbon from being emitted, so that is good from an environmental perspective.
Mr. Nugent and I have outlined the legislative provisions that are in place. I think I have answered the question, but I am not quite sure. The designated sites are being restored. My understanding is that at the moment there is not a requirement to restore the non-designated bogs and there are provisions under law for peat to be extracted from them.
What I am making very clear is that there comes a stage to make a decision on whether a bog is restorable or not, regardless of whether it is designated. A lot of those bogs are degraded, and they will never be restorable. We were better off getting a bit of milled peat off them and making sure that we saved the jobs in those areas and introducing whatever legislation was required to make sure of that rather than seeing boats coming in to ports in this country full of peat from other EU countries that do not appear to have to follow the same regulations or court judgments.
To be honest, the season is nearly gone. We are heading into August and all we had was a talking shop for the past three months. To be frank about it, it is putting a ferocious onus and probably a load against it because the environmental lobby, Government bodies and Departments seem to be more interested in closing things in this country than in keeping workers producing stuff. I do not accept that Germany and other countries can be working away and that the Department has not looked at peat coming here in terms of the environmental footprint and regulations in the same EU that they all love? We are looking at the boats coming in when we have the product here. If you tried to sell oil to an Arab he would tell you fairly quickly where to go.
The Departments must look at ways to resolve this by going to Europe. I asked the question earlier, but it was not answered, as to whether anyone has gone to the European officials and explained the situation we are in. Have they gone to DG 11, climate action or environment, about this situation? Could someone please answer the question?
Mr. Barry Delany:
We have no remit to engage given that we have no competence in the legislation. We still think that the immediate solution here is the regularisation of the sub-30 ha sites and to have small-scale extraction for the domestic market. As Mr. Lucas has outlined a number of times today, that is the quickest way to get it regularised.
Mr. Brian Lucas:
Article 2(4) of the EIA directive provides for limited exceptions to the full requirements of the directive in exceptional circumstances. These are provided for in section 172(3) of the Planning and Development Act 2000. I read the provisions and, to me, they seem to require, first, an application for planning permission to be in place. An Bord Pleanála may grant an exemption from the requirement to prepare an environmental impact statement. In doing so, An Bord Pleanála must consider whether the effects on the environmental development should be assessed in another forum and made available to the public. An Bord Pleanála must make available to the public relevant information, including the reasons to grant the exemption.
I do not know on what basis any of the three Departments would go to Brussels. Mr. Nugent, and to some extent myself and Ms Carberry as well, set out that what is specified in Irish law is in compliance with the directive and ensures compliance with the EIA directive. There is a provision in the directive for exceptional circumstances and they are also set out in Irish law in section 172(3) of the Planning and Development Act 2000.
Mr. Lucas is familiar with Brussels and with DG 11. He is also familiar with going back to the officials there to talk about different matters. Would it not have been a good thing for the Minister for the Environment, Climate and Communications especially, to go to DG 11 and outline the serious situation we are in and also to outline a just transition system that we would be prepared to put in place and the need for it? As Mr. Lucas has outlined, it is in agreement with the terms of the working group that has been set up. Would it not have been sensible to outline the situation so that we would have Europe's backing? We should also find out how Germany is able to do it, and how other countries in Europe are able to produce as much peat as they want, yet here in Ireland production is being shut down. In all of those countries, they are well over the 50 ha limit.
I have a quick question. Deputy Fitzmaurice's frustration is evident. We are totally frustrated that this has been going on since February. Three Departments are in today, but I do not know if we are anywhere near getting answers from them or a resolution. I can imagine those in the sector looking at today's meeting were hoping we would get answers or some resolution to how the situation could be moved on. I do not know if we are farther away than ever from a resolution.
Does the Department have any idea of how many licences and planning applications are in the system as we speak? I am not sure whether Senator Paul Daly got an answer to his question earlier. Could we be furnished with the information?
Mr. Philip Nugent:
As I understand it, from the statement of Growing Media Ireland, GMI, at the meeting on 6 July, there are two or possibly three operators who have engaged with the planning system and sought leave to apply for substitute consent. We can come back to the committee with confirmation on that.
Mr. Brian Lucas:
Based on my experience of many trips to Brussels on peatlands issues, in response to what Deputy Fitzmaurice asked as to whether I saw any point in a virtual delegation going there, the short answer is there would be no point.
The first thing the Commission will say is that we have a dual consent system in place and that this is in compliance with the directive. It will then ask what we want to do instead. As I said earlier, if we try to say that we want to bring in a temporary system that would not be in compliance with the directive, with no appropriate assessment and no environmental impact assessment screening, the Commission would say, "There is the door, please leave". I do not think that would be a runner.
Mr. Brian Lucas:
Going by the interim report, the understanding of the working group is that the dual consent system is only in place in Ireland. Each country has to decide how it will comply with the directive. All member states must all comply with the directive, be it Germany, Ireland or any other country.
On behalf of the committee, I thank the officials from the Departments of Agriculture, Food and the Marine, the Environment, Climate and Communications and Housing, Local Government and Heritage for engaging with us today on this urgent issue for the horticulture and nursery sectors. We are not happy after our engagement. I am not throwing stones at the officials, but we are not happy. I am seriously worried for the future of those industries in this country. We will have a private meeting in the morning and we will have to discuss, as a committee, what we can do to advance the situation. At the moment, however, I am seriously concerned about the financial viability and survival of those industries. I know the members of the committee share my views. I propose that we hold a private meeting on Microsoft Teams tomorrow at 9 a.m. Is that agreed? Agreed. That concludes our proceedings for today.