McCaffrey v Minister for Agriculture, Food and the Marine

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 26 July 2017
• Neutral Citation: [2017] IECA 246
• Date: 26 July 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 246 Record No. 2017 No. 21

[2017] IECA 246

THE COURT OF APPEAL

Hogan J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 246

Record No. 2017 No. 21

BETWEEN:

JAMES McCAFFREY

APPELLANT / APPLICANT

- AND -

MINISTER FOR AGRICULTURE, FOOD AND THE MARINE

AND

CAILLAN CURRAN

RESPONDENTS/RESPONDENTS

Afforestation development – Consent – Refusal on discretionary grounds – Applicant seeking to quash a decision of the respondent to give consent to a particular afforestation development – Whether it would be just and proper to quash the approval decision

Facts: The applicant, Mr McCaffrey, appealed to the Court of Appeal against the decision of the High Court (Heneghan J) delivered on the 19th December 2016 whereby she refused to quash a decision of the first respondent, the Minister for Agriculture, Food and the Marine, to give consent to a particular afforestation development at Adoon, Gorvagh, Co. Leitrim ([2017] IEHC 731).

Held by Hogan J that the trial judge was entitled to refuse on discretionary grounds to quash the decision to grant approval for the afforestation application. Bearing in mind the dicta of McCarthy J in International Fishing Vessels Limited v Minister for the Marine (No. 2) [1991] 2 IR 93, Hogan J considered that the trial judge was entitled to reach that conclusion that it would not be just and proper to quash the approval decision because (i) the Minister did in fact belatedly address the substance of the applicant's concerns and he was given a hearing on the point and (ii) while that hearing was admittedly imperfect, it would be unfair on a third party on the particular facts of this case to quash the approval which the Minister granted the second respondent, Mr Curran, on 2nd March 2016.

Hogan J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 26th day of July 2017

1 This is an appeal from the judgment of the High Court (Heneghan J.) delivered on the 19th December 2016 whereby she refused to quash a decision of the Minister for Agriculture, Food and the Marine ('the Minister') to give consent to a particular afforestation development at Adoon, Gorvagh, Co. Leitrim: see McCaffrey v. Minister for Agriculture, Food and the Marine [2017] IEHC 731. The applicant has now appealed to this Court against that decision.

Background to the proceedings

2 The applicant, Mr. McCaffrey, is a farmer who is the owner of some 23 acres of land at Adoon. His family home is located at the end of a rather narrow private road and this road is also the access road to the lands of second named respondent, Mr. Curran. (Mr. Curran is, in fact, incorrectly named as a respondent when he should, in strictness, be named as a notice party. While nothing turns on this, I propose for convenience to refer to him as the notice party.)

3 In the summer of 2015 the notice party became aware of the existence of a forestry scheme run by the Minister. Mr. Curran engaged a forestry consultant with a view to planting forestry on some 9.33 hectares of his land and he duly completed the relevant application form on the 26th August 2015.

4 Once the Minister receives the appropriate application a screening exercise is conducted to determine whether an Environmental Impact Assessment ('EIA') is required. This exercise is originally based on the answers given by the applicant to certain questions contained in the application form in relation to matters such as existing forest cover, the acid sensitivity of the water course, potential impact on protected habitats and a variety of other kindred considerations. Although the initial screening exercise is desk based, if the proposed afforestation may have an impact on the landscape, environment or ecology, a field investigation is carried out.

5 Applicants are also asked whether the application relates to lands situate within a NHA (National Heritage Area), SAC (Special Area of Conservation), SPA (Special Protection Area) or a national park; whether the area contain an archaeological site or features within intensive public usage and whether the area is within a prime scenic area in the County Development Plan. If any of those questions are answered in the affirmative, the application is then advertised in local newspapers in addition to being published on the Minister's website.

6 As it happens, each specified question was (correctly) answered in the negative by Mr. Curran in his application. This meant that Mr. Curran's application was advertised on the Minister's own website – but only on that website - for a period of one month from the 2nd September 2015 - 2nd October 2015 in accordance with the provisions of Article 5 of the European Communities (Forest Consent and Assessment) Regulations 2010 ( S.I. 558 of 2010) (as amended) ('the 2010 Regulations'). I cannot help thinking that the restricted nature of the advertising obligations provided for in the 2010 Regulations have given rise to many of the difficulties which manifested themselves in this litigation. I will return to this point at a later stage in this judgment.

7 As a result of the desktop exercise, the Minister determined that a field investigation was not warranted and a technical approval was granted to Mr. Curran on the 5th October 2015. As it happens, following that technical approval, Mr. Curran applied for a change of proposed species within the area originally applied and this consent was duly granted by the Minister on the 2nd December 2015.

8 There was, however, one objector – not Mr. McCaffrey – to Mr. Curran's proposal. That objection was received by letter dated the 21st October 2015. On foot of that objection, Mr. Jhan Crane, the Forest Service District Inspector acting on behalf of the Minister, conducted a field inspection of the site of Mr. Curran's proposed afforestation operations on the 18th November 2015. Mr. Curran was advised in the wake of the objection and the subsequent field inspection that certain portions of the site would be refused due to high water table and drainage issues. The site was otherwise deemed suitable.

9 It is agreed that Mr. Crane happened to meet Mr. McCaffrey at a meeting unrelated to these proceedings on the 7th December 2015, in the Bush Hotel, in Carrick-on-Shannon, Co. Leitrim. It seems that Mr. McCaffrey raised concerns about an afforestation application during a very brief conversation, but without giving details. As Heneghan J. noted in her judgment, Mr. Crane swore an affidavit which was not uncontroverted to the effect that he did not know to what particular application Mr. McCaffrey was referring. Mr. Crane said that while he could not comment, he would nonetheless be happy to discuss it if he had more detail. Mr. Crane stated that they did not discuss the application any further, and that he has no memory of any telephone discussions or any voicemails from the applicant.

10 There matters stood until mid-January 2016 when Mr. Crane received an email on 14th January 2016 on behalf of Mr. McCaffrey from Ms. Geraldine O'Sullivan of the Farm Forestry Executive of the Irish Farmers' Association. The email was in the following terms:-

'....I have been contacted by Jim McCaffrey who is very concerned about an afforestation application by Caillan Curran to plant forestry on both sides of a private laneway up to his house. I understand that he was speaking with you yesterday and that the application is "on hold", is that correct? Mr. McCaffrey would like to write to the Forest Service to formally outline his objections to the application on the grounds that the applicant does not have the required access to harvest the timber and therefore the application should not be approved. Please could you advise who Mr. Caffrey should address the letter and also the contract number.'

11 Mr. Crane replied by email dated 15th January 2016, as follows:-

'Hi Geraldine,

Mr. McCaffrey should address his letter of objection to proposed planting to:

Joanne Robinson, Approvals Section, Forest Service, EAFM, Johnstown Castle Estate, Wexford.

Before Christmas I requested that applicant / forester liaise with both house owners between plots one and two. I have received an email informing me that one house owner has been contacted (Edward McGarty) but not Jim McCaffrey. I shall ask Mr. Curran and his forester to make contact with Jim prior to any approval being issued.

Kind regards,

Jhan.'

12 In the wake of this correspondence Mr. Crane sent a letter dated the 20th January 2016 requesting Mr. Curran to liaise with Mr. McCaffrey. Mr. Curran responded by letter on the 27th January 2016 saying that he had spoken with Mr. McCaffrey, but that no agreement was possible as he ( i.e. Mr. McCaffrey) did not want any planting done. Mr. McCaffrey averred that it was only on the 26th January 2016 that he discovered that details of the application and approval process could be found on the Minister's website.

13 While all of this was going on, Mr. McCaffrey's solicitors wrote to the Forestry Services of the Minister on the 26th January 2016 to the following effect:-

'We have been consulted by Jim McCaffrey, Adoon, Gorvagh, Co. Leitrim in relation to the proposed forestry plantation by Caillan Curran at Adoon, Gorvagh which will necessitate the use of heavy plant and machinery over a narrow private roadway leading to and from our client's family home. We understand that our client has met with Jahn Crane to express his concerns if this development goes ahead and has been re-assured by him that the proposed forestry plantation has been 'put on hold.

However, this appears to be at odds with what he has been told recently by the owner of the property, Caillan Curran, that he is now ready to proceed with planting despite our client's objections. It appears from our instructions that the proposed area for planting is wholly unsuitable given...