Seeing the Wood and the trees.

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 My most favourite place is in a forest. They are full of energy, they smell lovely, they shield you from outside noise, there is birdsong and the occasional chatter of squirrels, you might see deer or other forest creatures, and there is often the burbling brook just to top it off. Forests make you feel alive and recharge your batteries for future use.

 

My research has taught me that by the early 1900s, forest cover in Ireland had been reduced to 1 per cent of the land area of the country. Tree felling was finally regulated with the introduction of the Forestry Acts of 1928 and 1946. By 2014, the area of the national forest estate in Ireland was over 730,000 hectares or almost 11 per cent of the total land area (Dail debates). While this had expanded significantly since the early 1980s with the introduction of grant schemes aimed at encouraging private landowners, mainly farmers, to become involved in forestry, it was accepted that this was still relatively low compared to other EU member states given that about 40 per cent of total land in the European Union is under forest cover.

 

It was noted in 2014 (Dail debates) that more than 54 per cent of the national forest estate was in public ownership, mainly through Coillte Teo (established under the Forestry Act of 1988), with the remaining 46 per cent in private ownership. This contrasted with the position in the 1990s when 70 per cent was in public ownership and only 30 per cent was in private ownership. In 2014, there were more than 19,000 private forest owners throughout Ireland, the majority of whom were farmers. Ireland’s forests were also widely used by the public for amenity and recreation, with an estimated 18 million recreational visits to Irish forests each year.

 

What is the position now? The official position, according to the Department of Agriculture, Food and the Marine (DAFM) in their 2020 report “Forest Statistics” is that:

  • The area of forest is estimated to be 770,020 ha or 11% of the total land area of Ireland (National Forest Inventory 2017);

  • Forest cover is estimated to be at its highest level in over 350 years;

  • Of the total forest area, 391,357 ha or 50.8% is in public ownership, mainly Coillte ;

  • The forest estate is comprised of 71.2% conifers and 28.7% broadleaves;

  • Nearly three quarters of the stocked forest area is less than 30 years of age.

 

Despite the glowing language, there has in fact been little progress in the last six years, and Ireland is still lagging markedly behind the rest of Europe, with marginally more forest than we had in 2014 (an increase of about 40,000 hectares in six years)

 

The forestry industry lays the blame squarely at the government’s feet. Teige Ryan, of None So Hardy forest nurseries, was quoted in the Irish Times (15/08/2020) as saying the forestry industry in Ireland, after years of decline, was now in a severe crisis. He compared the industry to “a patient with a long-term, serious illness who has just had a heart attack”. Mr Ryan said administration of forest services and licensing by the Department of Agriculture had never been accompanied by a sense of urgency, with the result that many farmers decided against planting trees, and Government targets for planting have been repeatedly missed.

 

In fact, the performance of the state body, Coilte, has been extremely disappointing. As previously noted, Ireland has sat on the 11% forestation for quite some time now, despite having a target of 18 per cent by 2050. That target in 30 years’ time is still well under half the European average.

 

To achieve this relatively modest target, it has been calculated that Ireland requires an annual afforestation programme of 15,000 hectares, according to the Wood Marketing Federation.

 

But government targets dating from 2014-2016 were for annual planting of just 8,000 hectares.

 

The government in turn points a finger at the decision of the European Court of Justice in case C-323/17 People Over Wind and Peter Sweetman v Coillte, (the famous River Nore Pearl Mussel case) where the Court of Justice ruled that mitigation measures could not be taken into account at the screening stage of an appropriate assessment. In other words, mitigation measures must be considered at the appropriate assessment stage, rather than screening. To do otherwise would completely undermine the Habitats Directive.

 

The DAFM complained that the decision had created the need for many more ecologists and administrative staff to implement the proper assessments. It takes a special type of warped logic to blame a court for pointing out that you are breaking the law.

 

That was three years ago. What has been done by the DAFM? Have more experts been hired and are proper assessments being carried out more efficiently and effectively?  Clearly not, if you speak to the forestry industry. Not only the industry, but other government departments, like the Department of Culture, Heritage and the Gaeltacht, who felt the need to remind the DAFM of their duties with regard to forestry.

Appendix 1 General observations

When faced with this sort of criticism about their bad performance, or any performance for that matter, the government did what it always does, it sought to throw a blanket over the whole process and exclude the public.

 

How did it do this?

 

It quietly published the Draft Agriculture Appeals (Amendment) Bill 2020 as an attempted cover up and stifling of the forestry appeals process, giving the public a month to comment.

 

When this Bill first came out I was completely bewildered as I have always known the Agriculture Appeals Act to be a mechanism whereby farmers could appeal if they were unhappy about the allocation of farming grants.

 

The Agriculture Appeals Act of 2001 provided an appeals mechanism to deal with appeals by farmers wishing to challenge decisions of officers of the then Department of Agriculture, Food and Rural Development regarding their entitlement to benefit under any of the specified schemes.

 

The Act established the Agricultural Appeals Office (AAO).  Appeals were dealt with by appeals officers appointed by the then Minister for Agriculture, Food and Rural Development. The chief appeals officer, a senior public servant, was known as the Director of Agriculture Appeals.

 

The list of specified schemes set out in the Schedule to the Act is surprisingly long but generally deals with livestock and its by-products, as well as the subsidising of various operational systems, like irrigation and waste management.

 

It is noticeable that apart from the mention of horticulture and agri-tourism, there seems to be little connection with forestry.

 

This changed in 2017 with the Forestry Act of 2014, which commenced on 24 May 2017. Part 11 of the 2014 Act, comprising Section 35 only, amended the Agriculture  Appeals  Act  of 2001 to extend its remit to a number of forestry activities and to provide for the establishment of a forestry appeals committee. As a result, the Agriculture  Appeals  Act 2001 (Amendment of Schedule) Regulations 2017 (S.I. No. 219 of 2017) updated the Schedule of Schemes which may be referred to the Agriculture Appeals Office for appeal under the Agriculture  Appeals  Act  2001 and also provided for the appeals procedure under the Forestry Act 2014, including the Forestry Appeals Committee. The Agriculture  Appeals  Act 2001 (Amendment of Schedule) Regulations 2017 came into force on 24 May 2017.

 

In other words, the Forestry Appeals Committee was now effectively a subsection of the Agriculture Appeals Office, and governed by the Agriculture Appeals Act. The specific remit of the Forestry Appeals Committee was to hear appeals against decisions made in terms of Section 7 of the Forestry Act 2014 (which deals with the granting of licences by the Minister); Regulation 3 of the European Communities (Forest Consent and Assessment) Regulations 2010 ( S.I. No. 558 of 2010 ); and Regulation 3 of the European Communities (Aerial Fertilisation) (Forestry) Regulations 2012 ( S.I. No. 125 of 2012 ).

 

This is the link between the Agriculture Appeals Act of 2001 and the business of forestry in Ireland. It explains why those who are interested in the conservation of our indigenous forests and the proper management and harvesting of our commercial forests are reacting to the proposed amendments to the Agriculture Appeals Act.

 

Planning Law and Forest Conservation? Hmmm.

 

It is therefore time to look at these proposed amendments, and their potential impact on our forests.

 

The stated objective of the Agriculture Appeals (Amendment) Bill of 2020 (‘the Bill”) is “to align the forestry licencing and appeals processes with similar planning processes”. This objective in itself is a bit of a head scratch as it would seem to be an attempt to align processes that should not, or at least do not need to be, aligned: planning and forestry licences. Why exactly is it necessary for these to be “aligned”?

 

The first part of the Bill adds to Section 14 of the Agriculture Appeals Act (“the 2001 Act”) and requires  the Chairperson of the Forestry Appeals Committee to issue an annual report similar to that of the Director of the Agriculture Appeals Office. Nothing to see there.

 

The next part of the Bill quite substantially amends Section 14A of the 2001 Act as it sets out who is entitled to lodge an appeal against a decision of the Minister or an officer acting for the Minister (known as a “relevant person” who has “standing”). Again, this is pretty standard fare and includes a person who applied for a licence and that licence was refused or granted with conditions; a person who made representations about that person’s application; a person who owns or has an interest in adjoining land to the land affected by the licence application; a member of the public who should have been consulted about the licence application; an “environmental body” when the application requires an EIS or Natura Impact Statement.

 

An “environmental body” is defined as

“a body or organisation (not being a state authority)-

(i) the aims or objectives of which relate to the promotion of environmental protection,

(ii) which has, during the period of 12 months preceding the appeal, pursued those aims and objectives.”

 

This certainly aligns with current planning law, with the State putting up as many hurdles to public participation as it can legally get away with. Given the Aarhus scrutiny to which Ireland is currently subject, and the damning indictment of the executive by the Supreme Court in the recent Friends of the Irish Environment decision regarding the general lack of public consultation on environmental policy, this is an aspect of the Bill that needs to be redrafted to ensure maximum public participation when it comes to conserving public forests.

 

It doesn’t end there. The attempt to block or at least restrict public participation in the conservation of public forests is a two-pronged strategy. It is the next amendment that I am assuming is the reason there are so many angry faces concerning this proposed Bill, because the next amendment involves the payment of fees.

 

Section 5 of the Bill says that:

“The Principal Act is amended by the insertion of the following sections after section 14A:

“14B (1) The Minister may charge such fees as he or she may prescribe for an appeal under section 14A(4) and different fees may be charged for different classes of such appeal.”

 

This is why  planning law and forest conservation should not be aligned. Their underpinning policies and objectives are completely different.

Essentially the argument for imposing a fee when one objects to an application for planning permission is that the objector is interfering with the owner’s constitutional right to enjoy his private property as the owner sees fit.

That argument does not apply to public forests. They are public forests and accordingly the public has a direct interest in them. Why should you pay to protect your given interest?

 

It gets worse. Section 14C (created by the Bill) says the following:

“(1) Where the Chairperson of the Forestry Appeals Committee is of the opinion that the case is of such a nature that it can properly be determined without an oral hearing, the Forestry Appeals Committee may determine the appeal summarily.”

“(4) Where the Forestry Appeals Committee is requested to hold an oral hearing of an appeal and decides to determine the appeal without an oral hearing, it shall serve notice of its decision on the person who requested the oral hearing, on each other party to the appeal and on each person who made submissions or observations to the Forestry Appeals Committee in relation to the appeal.”

 

In other words, the FAC can decide to not hear a person or persons in public, and there is no stipulation that they must give reasons for their decision. Section 14 of the original Act provides for an extremely limited form of relief, namely an appeal to the High Court on a point of law. Take note, an appeal, not a review. In other words, if you wanted to challenge a decision to not hold a public hearing, you would need to show that the opinion of the FAC Chairperson was wrong as a matter of law. Given that the new section does not stipulate what the criteria are that will determine whether a hearing should be in public or in camera, how can you prove the decision wrong?

 

The handling of public forests is governed by the EU Habitats Directive and the EIS Directive. Both of these Directives emphasise the importance of full public participation in all decisions involving the environment, especially when it concerns public land. This is even more so when read with the Aarhus Convention. The European Court of Justice, under case C-243/15 Lesoochranárske zoskupenie, (8 November 2016) interpreted Article 6 of the Habitats Directive in light of the Aarhus Convention to give Environmental NGOs public participation rights. The Court also confirmed that NGOs must be able to access the courts to enforce these rights by virtue of Article 9 of the Aarhus Convention and Article 47 of the EU Charter of Fundamental Rights.

 

I would suggest that the proposed Bill is in clear violation of those legal requirements.

But that is my opinion. Have your own say, and send those comments to the Department of Agriculture Food and the Marine before 28 August 2020 to their email: ForestryBill2020@agriculture.gov.ie

 

 

 

 

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, EIA Directive 2014/52/EU, Legal Costs; Access to Justice; Courts, lobbying; democracy; political process; general election, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty and tagged , , , , , . Bookmark the permalink.

1 Response to Seeing the Wood and the trees.

  1. Pingback: More on Forestry | The Law is my Oyster

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