O'Connor v Minister for Agriculture

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael White
• Judgment Date: 02 June 2016
• Neutral Citation: [2016] IEHC 336
• Docket Number: [2013 No. 350 S.P.]
• Court: High Court
• Date: 02 June 2016

IN THE MATTER OF SECTION 11 OF THE AGRICULTURE APPEALS ACT 2001

BETWEEN

MICHAEL O'CONNOR

APPELLANT

AND

MINISTER FOR AGRICULTURE, FOOD AND THE MARINE

AND

JIM BYRNE

AND

MIRIAM CADWELL

RESPONDENTS

[2016] IEHC 336

White Michael J.

[2013 No. 350 S.P.]

THE HIGH COURT

ORIGINATING NOTICE OF MOTION

Agriculture –S. 11 of the Agriculture Appeals Act 2001 – Council Regulation 73/2009 – Single payment scheme – Commission Regulation 1122/2009

Facts: The appellant had filed a statutory appeal against the decision of the second named respondent to reject the appellant's entitlement for single payment scheme and exclude the commonage area. The appellant contended that the second named respondent's reliance on the inspection report submitted by the compliance inspector was an error of law as the procedures adopted for the said inspection were flawed.

Mr. Justice Michael White held that the appellant was entitled to payment of the subsidy in relation to the land for which he qualified for payment but not for the commonage area. The Court held that the appellant was liable for the sanction imposed on the cross compliance check. The Court however, held that there had been contravention of art. 32 (2) of the Council Regulation 73/2009 by the officers of the first named respondent as they failed to give any opportunity to the appellant to sign any report. The Court observed that the second named respondent was bound to address the legal issues and statutory non-compliance on review, which he failed to do. The Court however, held that despite there being a procedural flaw, the substantial findings by the second named respondent was correct to that extent of exclusion of the commonage area and hence, it was equitable for the Court to provide a judicial remedy to meet the justice.

JUDGMENT delivered by Mr. Justice Michael White on the 2 ^nd day of June, 2016

1 This is a statutory appeal pursuant to the provisions of s. 11 of the Agricultural Appeals Act 2001.

2 This is an Act to provide for the appointment of appeals officers to review, on appeal, decisions of officers of the Minister for Agriculture, Food and Rural Development in relation to certain schemes.

3 One of the schemes under the remit of the Act is the single payment scheme governed by EU Council Regulation 73/2009 of 19 ^th January, 2009. The SPS is an administrative scheme, part of the common agricultural policy which rewards farmers who farm to minimum standards. While it is an EU scheme, its implementation falls to the Member State and the Member State is answerable to the EU pursuant to Article 258 of the Treaty.

4 The action was commenced incorrectly by special summons on 18 ^th July, 2013. On 12 ^th January, 2015, this Court made orders amending the special summons so that it complied with the requirements for an originating notice of motion under O. 84C of the Rules of the Superior Courts and a further order pursuant to O. 84C, r. 25(b) on consent was made extending the time for bringing the statutory appeal.

5 The appellant wishes to challenge two decisions. The first decision being that of the second respondent of 20 ^th April, 2012, furnished to the appellant in writing. The second respondent was at the relevant time a designated appeals officer pursuant to the Act.

6 The second decision was that of the third respondent who at the relevant time was a director of the Agricultural Appeals Office who was requested by letter and submissions of 24 ^th September, 2002, to review the decision of the appeals officer of 20 ^th April, 2012.

7 The appellant is incorrect procedurally to have challenged both decisions. The third respondent did not revise the decision of the appeals officer and accordingly the appropriate challenge the court will consider is the decision of 20 ^th April, 2002, by the second respondent.

History of Application for Payment under the EU Single Payment Scheme

8 The appellant is a substantial farmer who farms at Nenagh, Co. Tipperary. In addition to lands held in his own name, he had rented a commonage from Mr. P.J. Ryan, a farmer of Kiltyrone, Capparoe, Nenagh, Co. Tipperary. This parcel of land which had the official designation number of V13714061 under the scheme was owned in the following shares: 11/14 by Mr. Ryan; 1/14 Mogul of Ireland (a mining company); Mr. Spillane 1/14; and Raymond O'Brien, 1/14.

9 The appellant rented a 4/14 share in the parcel of commonage from Mr Ryan.

10 The appellant prepared a written application for payment under the 2010 EU Single Payment Scheme, & Disadvantaged Area Scheme, on 17 ^th May, 2010.

11 The appellant made two amendments to his application, the first on 27 ^th May, 2010, and the second on 31 ^st May, 2010. The parcel of commonage was included in his amended application of 31 ^st May, 2010 and is designated as follows: town land Shallee – land parcel No. 13714061; share of commonage claimed 4/14, total digitised area 162.11, area of parcel that is declared for payment 46.00, designated as rented.

12 The total area declared by the appellant for financial assistance under the scheme was 220 hectares.

13 The application form contained the following declaration:-

'I hereby declare that all the details contained in this application are true, accurate and complete to the best of my knowledge. I confirm that I am aware of the conditions attaching to the schemes for which application is made, as set out in the 2010 Help Sheet/Terms and Conditions and agree to comply fully with these requirements. I confirm that all the land declared in this application will be at my disposal on 31 ^st May, 2010, and I accept that I will be responsible for any breach in cross compliance with regard to that land up to 31 ^st December, 2010. I accept that lands I declare as being available on 31 ^st May, 2010, must be maintained as agricultural land (or afforestation planted in 2010) for 2010 calendar year and undertake to inform the Department of any change in the status of that land. I further agree that the details supplied on this application, whether written or submitted online, along with any supporting documentation, may be made available to any other Department or Agency for the purpose of cross-compliance controls. I understand the Department of Agricultural, Fisheries and Food is subject to the provisions of the Freedom of Information Act (FOI).'

14 Certain of the lands, the subject of the appellant's application were inspected by officers of the first respondent without prior notice on 3 ^rd August, 2010, and 13 ^th August, 2010. On 16 ^th September, 2010, further inspection was conducted on the lands, the subject matter of the application and in addition, the officers conducted a cross-compliance control test on the appellant's cattle herd. There was some notice of this inspection as the appellant accepts that he received a call to his mobile phone number on the morning of 16 ^th September, 2010, and when he received the message he met the officers of the first respondent on the afternoon of 16 ^th September, 2010. It is unclear if the inspections of 20 ^th and 21 ^st September, 2010 were unannounced or by appointment, but the court believes they refer only to inspections on cross-compliance issues with the cattle herd.

15 There is no evidence on affidavit about the interchange between the appellant and the first respondent's inspectors, John Vaughan and Gerard Byrne on 16 ^th September, 2010 or 21 ^st September, 2010. While John Vaughan was present at the oral hearing before the appeals officer on 23 ^rd February, 2012, it is not clear if he gave sworn evidence to the appeals officer or if his evidence was summarised by Mr. Con O'Brien who set out the case of the first respondent before the appeals officer.

16 In any event, there is no dispute that the first written notification to the appellant was by a notice of non-compliance of 21 ^st September, 2010. This notice brought to the attention of the appellant, that animal tags were missing and also that there may be a reduction in the areas allowed for certain plots in the SPS application and in reference to the commonage, the notice stated:

'Commonage may be rejected from earlier inspection.

Referring to possible sanctions the notice stated 'penalties may apply to SPS and DAS'.

An ER96 Declaration in respect of bovines temporarily tagged dated 10 ^th October 2010 signed by John Vaughan District Superintendant, was furnished to the appellant.

A remedial action notice was served on the appellant dated 12 ^th October 2010 in respect of the cross compliance inspections of 16 ^th September, 20 ^th September and 21 ^st September, referring specifically to the following 'animals with one tag, heifer and cow in Gortshane also tag no's 33197870776, 331197890704, 331245720939. Shellee. Please refer to the notice of non-compliance (NF) issued to you by the inspecting officer for further details of the non-compliance.'

You have the option to remedy this breach within three calendar months of the date of inspection i.e. by the 21/12/ 10, otherwise a sanction will be applied for such non-compliance.'

17 The appellant addressed this notice in a letter sent to Mr John Vaughan on the 5 ^th December 2010.

18 On the SPS entitlements, a formal decision was issued to the appellant on 18 ^th November, 2010. The decision referred to an inspection carried out on the lands on 16 ^th September, 2010, in relation to the Single Payment Scheme and the Disadvantaged Area Scheme.

Under the heading of Single Payment Scheme, the formal decision stated

'Total Area Declared =220.17 Ha, Total Area Found at Inspection =160.57 Ha. As per chapter 17 of the terms and conditions, no reduction will be imposed if the number of entitlements is less than the Area Found. Otherwise, the Area Found is compared to the Area Claimed, or the Number of...