Lorraine Costello v The Minister for Agriculture, Food & The Marine and The Forestry Appeals Committee
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cian Ferriter |
| Judgment Date | 24 November 2021 |
| Neutral Citation | [2021] IEHC 735 |
| Docket Number | Record No. 2020/481JR |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 735
Record No. 2020/481JR
THE HIGH COURT
JUDICIAL REVIEW
Judgment of Mr. Justice Cian Ferriter delivered this 24th day of November 2021
In these proceedings, the Applicant seeks to challenge by way of judicial review a Replanting Order made on 8th March, 2019 by the first named Respondent (“the Minister”) pursuant to s.26 of the Forestry Act, 2014 (“the 2014 Act”) and a separate decision of the second named Respondent (“the Forestry Appeals Committee” or “FAC”) made on 16th April, 2020 upholding a decision of the Minister made on 20th February, 2019 revoking the Applicant's tree-felling licence. Both decisions are challenged on the essential ground that the Minister, in the case of the Replanting Order decision, and the FAC, in respect of the Applicant's appeal against the Minister's licence revocation decision, acted in breach of fair procedures.
The material background to this case is as follows. The Applicant and her husband, James Costello, have a farm and land at Silvergrove, Kilbarry, County Cork. The Applicant submitted an application to the Minister for a General Felling Licence pursuant to s.49 Forestry Act, 1946 (“the 1946 Act”) on 31st January, 2017, to permit her to fell trees on the land. The application was made in circumstances where an earlier felling licence was about to expire. The application was accompanied by a letter from the Applicant's consultant forester, Mr. Sean McGinnis of Ecoplan Forestry Limited (“Mr. McGinnis”), which stated:
“Trees requiring a licence will be selectively thinned, removing any poor quality stems as necessary without opening large gaps in the existing canopy. Tree [sic] to be removed will be chosen on a priority basis with non-native to be removed first, and natives set to remain with Oak, Ash and Holly considered as most important. Any diseased or cankered stems will also be removed if found. It is expected that the majority of stems to be removed will be Birch. Thinning intensity will be 30%.”
As can be seen, it was asserted on the Applicant's behalf in support of the licence application that the “ thinning intensity” would be 30%. It is common case that the licence was granted by the Minister on foot of that representation.
The licence granted by the Minister on 7th April, 2017 authorised:
“In accordance with paragraph (a) of sub-section (1) of [Section 49 of the Forestry Act, 1946], the uprooting or cutting down of trees in the woods specified in the Second Schedule hereto on land owned by the Licensee in the ordinary course of thinning, in accordance with the practice of good forestry, that wood”.
The licence was for a period of 5 years. As can be seen from its terms, the licence authorised the Applicant to thin woods. It was not a licence for the clear-felling of a wood. Furthermore, the thinning activity permitted under the licence was required to be carried out “ in accordance with the practice of good forestry”.
A covering letter, accompanying the Licence, was sent to the Applicant, also dated 7th April 2017, which informed the Applicant that she was obliged to adhere to the following instruction:
“The licensee shall ensure that all felling and planting operations are carried out in accordance with Forestry and Water Quality, Forest Biodiversity, Forest Harvesting and the Environment, Forestry and Archaeology, Forestry and the Landscape and Forestry and Aerial Fertilisation guidelines and the Code of Best Forest Practice – Ireland and the Irish National Forest Standard published by the Department.”
The Applicant's husband, James Costello communicated on the Applicant's behalf at various stages in the interaction with the Minister's Department during the period in issue in these proceedings. Mr. Eugene Curran (a Forestry Inspector with the Department who was based with the Forest Service in Skibbereen, County Cork) says that he first met Mr. Costello on 13th October, 2017 after the Felling Section of the Department had received a number of complaints from a neighbour of the Costellos. (This is set out in a statement of evidence dated 26th February, 2019 which was part of the evidence before me in the judicial review.) Mr. Curran says that in a conversation with Mr. Costello, he told Mr. Costello that he felt enough trees had been felled. At that point, Mr. Curran says that all of the felling was north of the public road and that no work had taken place on the trees on the southern part of the road. Mr. Curran says that Mr. Costello told him he would like to clear some of the trees to facilitate cattle grazing in the area and that he (Mr. Curran) informed him that this was not compatible with the Felling Licence or the plan issued by Mr. McGinnis which indicated that woodland work was to facilitate natural regeneration.
Mr. Curran says that he inspected the site again on 14th September, 2018 with a Forest Service colleague, Mark Twomey, after receiving a number of complaints from the public. He says that he could “ clearly see more trees, including oak with fresh green leaves, had been felled and cleared. The land was being prepared for re-seeding with grass. At this stage, tree clearance had finished on the northern side of the road”. He says that he met Mr. Costello and “ cautioned him” and explained that he was there due to further public complaints and on the instruction of the Felling Section of the Department. He also says that there was “ a chainsaw operator just starting work on the southern part of the road” and that he cautioned that operator and the work ceased.
Shortly after this visit, Mr. Curran prepared a statement dated 18th September, 2018. In that statement Mr. Curran said as follows in relation to his inspection of the site on 14th September, 2018:
“On arrival, I met Mr. Costello and cautioned him and explained that there had been complaints. I also cautioned Mr. Wayne Delaney who was cutting trees at the time and requested that felling should cease until the Department had time to review the situation. I also cautioned Mr. Jerry O'Sullivan who was operating a Hymac and requested that no further damage to trees was to occur until the Department had reviewed the situation”.
On 20th September, 2018, a letter was written from the Felling Section of the Forest Service of the Department to the Applicant advising her as follows:
“As a result of a recent inspection of the above site, a number of issues have arisen.
In line with the management plan submitted by your forester, Mr. Sean McGinnis, which was the basis for issuing the Thinning Licence GFL20650, it states that any scrub on the ground or shrub layer not requiring a licence will be removed by Ms. Sheehan, this will scarify the ground and facilitate natural regeneration of the nature broad leaves. It stated trees would be removed without opening large gaps in the existing canopy. It also stated that native trees were said to remain with Oak, Ash and Holly considered most important.
The inspector noted that the detail set out in the management plan is not being adhered to. Large gaps in the canopy were clearly seen and also the removal of Oak trees from the site. The areas that were left clear to encourage natural regeneration appear to be reclaimed for grass.
You must immediately cease and desist from any further felling at the above lands while this matter is being reviewed by the Department of Agriculture, Food & Marine.
The Department will be in touch with you in due course”.
This letter was responded to by a letter dated 27th September, 2018 from Mr. McGinnis. He made representations on the Applicant's behalf to the effect that there was no valid reason for a suspension of the licence and demanding that the suspension “ be lifted immediately”. Among the complaints contained in that letter was an allegation that the Applicant had been “ denied fair treatment and due process”. This letter concluded as follows:
“If Lorraine Costello does not receive confirmation, in writing, of this [i.e. a lifting of the suspension], by 05/10/18, a solicitor's letter will be sent directly to the Minister holding the Department responsible for the considerable expense, mental anguish, and damage to her reputation”.
The Forest Service replied to Mr. McGinnis by letter of 1st October, 2018 reaffirming that the licence suspension remained in place “ pending the submission of a management plan as outlined in our letter to Ms. Costello on 27th September, 2018. Under Section 7(2) of the Forestry Act, 2014, a tree felling licence may be suspended where there are substantial grounds warranting that course of action”. The letter also referenced the management plan submitted with the licence application and pointed out that “ the area which has been cleared with the stated intention to ‘facilitate natural regeneration of the native broad leaves’ now appears to have been reclaimed for agricultural use. This is a substantial change to what was proposed at licensing stage”.
In the early hours of 2nd October, 2018, Mr Costello e-mailed the then Minister for Agriculture (Minister Tom Creed) by way of apparent follow-up to a phone conversation with the Minister earlier that day. This e-mail (which was signed “ James and Lorraine Costello”) called upon Minister Creed for help on the basis that neighbours had suggested they contact him directly as he was “ the Minister in charge of this department and a local man”.
This e-mail alleged that the Costellos were being harassed by the Department's Inspectors. Mr. Costello followed up with a further e-mail to Minister Creed later on in...
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