McCaffrey v Minister for Department of Agriculture, Food and Marine
| Jurisdiction | Ireland |
| Judge | Ms. Justice Heneghan |
| Judgment Date | 19 December 2016 |
| Neutral Citation | [2016] IEHC 731 |
| Docket Number | [2016 No. 190 J.R.] |
| Court | High Court |
| Date | 19 December 2016 |
[2016] IEHC 731
THE HIGH COURT
Heneghan J.
[2016 No. 190 J.R.]
Agriculture – S. 5 of the European Communities (Forest Consent and Assessment) Regulations 2010 – Approval to plant forestry on lands – Objection – Legality of decision – Public hearing
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent granting permission to the second named respondent to develop forestry on the lands owned by the second named respondent subject to compliance with certain conditions. The applicant's main contention was that he was not provided any opportunity to lodge his objections. The first named respondent contended that the said approval was made after carrying out the detailed environmental impact assessment and full field inspection and made subject to fulfilment of certain conditions after the objection was lodged by the applicant, and thus the full procedure was engaged.
Ms. Justice Heneghan refused to grant any relief to the applicant. The Court found that the function of the Court was not to assess whether the decision made by a decision-maker was correct, rather it was to judge the legality and reasonableness of the decision. The Court held that there was no flaw in the procedure adopted by the first named respondent and it had duly advertised the grant of approval on its website in order to invite public comments, if any, which was not heeded by the applicant. The Court found that even after lodging the objection and sending a letter to the first named respondent, the applicant did not take any cogent steps to raise any dispute, if any. The Court found that the decision arrived at was apt, transparent and in compliance with European Communities (Forest Consent and Assessment) Regulations 2010.
The applicant is a farmer, and the owner of circa 23 acres at Adoon, Gorvagh, Co. Leitrim. The applicant's dwelling house is located at the end of a narrow private road, which is also the access road to the second named respondent's lands.
The fist named respondent is the decision making authority in respect of an afforestation development consent granted to the second named respondent.
The second named respondent is the legal owner of agricultural lands also situated at Adoon, Gorvagh, Co. Leitrim. Following the purchase of the said lands, the second named respondent invested in the lands, and carried out works to improve the lands. In his affidavit in these proceedings, at para. 7 thereof, the second named respondent avers that there was an undercurrent of animosity and acrimony towards him from neighbouring landowners in that area, that continued for a number of years resulting in a deterioration of his health and wellbeing. The second named respondent became aware of a forestry scheme, he engaged a forestry consultant with a view to planting forestry on the said lands, and he completed an application form which was received by the first named respondent on or about 26th August, 2015. The said application requested approval for afforestation of an area of 9.33 hectares.
Once such an application is received by the first named respondent, it is assessed to consider whether there are particular features associated with the particular site. That assessment is carried out on the basis of certain information provided in the application in answers to question 2.1, 3.1, and 4.1 of the environmental considerations. On 2nd October, 2015, a screening was carried out for and on behalf of the first named respondent to determine whether an ‘Environmental Impact Assessment’ [hereinafter; E.I.A.] was necessary. That screening involved the assessment of the proposed afforestation operations for potential impact on fisheries, fresh water pearl mussel, the Water Framework Directive, acid sensitivity of water course, Natura 2000 sites, NHA / pNHA sites, archaeology, protected habitats / species under the Habitat Directive, landscape sensitivity and existing forest cover. E.I.A. screening is a desk based screening, whereby the potential impact of afforestation to the landscape, environment and ecology can be detected. If the proposed afforestation may have an impact on the landscape, environment or ecology, a field investigation is carried out.
Question 2.1 in the afforestation application is as follows:-
‘ Is the area within a NHA (National Heritage Area), SAC (Special Area of Conservation), SPA (Special Protection Area) or National Park?’
Question 3.1 is as follows:-
‘ Does the area contain an archaeological site or features within intensive public usage?’
Question 4.1 is as follows:-
‘ Is the area 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 website of the first named respondent. In the application by the second named respondent, each specified question was answered in the negative. Thereafter, the application of the second named respondent was advertised on the website of the first named respondent for a period of one month from 2nd September, 2015 – 2nd October, 2015 in accordance with the provisions of s.5 of the European Communities (Forest Consent and Assessment) Regulations 2010 as amended [hereinafter; The Regulations].
On the basis of the E.I.A. screening, it was determined that a field investigation was not warranted, and a technical approval was granted by the first named respondent to the second named respondent on or about 5th October, 2015. Following that technical approval, a change of proposed species within the area originally applied for was sought on behalf of the second named respondent, this was approved by the first named respondent and the decision was notified to the second named respondent on 2nd December, 2015.
An objection to the second named respondent's application was received from an individual other than the applicant by way of letter dated the 21st October, 2015. On foot of that objection, Mr. Crane, the Forest Service District Inspector on behalf of the first named respondent, conducted a field inspection of the site of the proposed afforestation operations on 18th November, 2015, all plots were inspected on that date. Following that field inspection, the second named respondent was advised that certain portions of the site would be refused due to high water table and drainage issues. Thereafter, Mr. Crane, on behalf of the first named respondent, had no further concerns in relation to the suitability of the site, based on his field inspection.
Mr. Crane avers in his affidavit to a meeting unrelated to these proceedings, on 7th December, 2015, in the Bush Hotel, in Carrick-on-Shannon, where he met with the applicant, who raised non-specific concerns about an afforestation application during a very brief conversation. Mr. Crane avers in his affidavit at para. 9 thereof, which is uncontroverted, that he did not know what application the applicant was referring to, and therefore Mr. Crane could not comment, but advised that he would 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 of any voicemails from the applicant. He avers that any person raising objections by phone would be advised to put the matter in writing in order for it to be considered.
Mr. Crane stated that on or about 14th January, 2016, the first named respondent received an email on behalf of the applicant from the Irish Farmers Association.
That email reads as follows:-
‘Hi Jhan,
Happy New Year to you.
I have been contacted by Jim McCaffrey who is very concerned about an afforestation application by Caillin 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.
Thanks in advance for your assistance in this matter,
Kind regards,
Geraldine. (Geraldine O'Sullivan – Farm Forestry Executive).’
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.’
Following receipt of this email on behalf of Mr. McCaffrey, by letter dated 20th January, 2016, the first named respondent requested the second named respondent to liaise with Mr. McCaffrey. By letter dated 27th January, 2016, the second named respondent wrote to the first named respondent, as follows:-
‘I am writing to confirm that I spoke with Jim McCaffrey and that we could not come to any agreement as he does not want any planting done.
Yours sincerely,
Caillin Curran.’
Thereafter Mr. Crane avers that whilst the time period for public consultation pursuant...
To continue reading
Request your trial