Basic Payment Scheme and GLAS: Discussion (Resumed)

The topic for discussion this afternoon is the uncertainty facing farmers regarding the eligibility of marginal land under the new basic payment scheme and issues concerning GLAS. I remind members, witnesses and those in the gallery to please turn off their mobile phones.

I welcome Dr. Kevin Smyth, assistant secretary in the Department of Agriculture, Food and the Marine, Dr. Al Grogan, senior inspector, Mr. Paud Evans, principal officer, Mr. Thomas Harty, assistant agricultural inspector, and Mr. Lorcan O’Shea, senior inspector. I thank them for coming before the committee today and for bearing with us while members had time to digest the documents. It was considered that it would be beneficial to the discussions for members to have a chance to review the documents, given that they are detailed and we received them rather late.

Witnesses are protected by absolute privilege in respect of their evidence to this committee. However, if they are directed by the committee to cease giving evidence in relation to a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I invite Dr. Smyth to make his opening statement.

Dr. Kevin Smyth

I would like to say at the outset that the reason for the late arrival of the documents is that there was an IT glitch this morning which prevented their transmission. In addition, there is a problem in that one cannot simply hand a USB stick over, and one cannot give it to someone to put in a computer for security and encryption reasons. I apologise for that, but it was a genuine mistake.

We are a parliamentary committee. A booklet was issued very early this morning, and my local radio station was able to give it to me before I, as a member of this committee, received it. Could it not have been arranged that the documents would issue to us on Friday so that we would have the weekend to study them? People talk about serious and detailed parliamentary scrutiny, but how are we meant to do that if the documents are bounced at us at the last minute? I have consistently objected over the years to people coming before a committee and giving documents at the last minute looking for urgent perusal or decisions on matters. Sometimes I come to Dublin on Monday night, but I happened to travel up this morning instead of last night. That is a three-hour journey. Obviously I could not print the document while I was on the way, so I could not print it until I got to Leinster House. That is totally unsatisfactory. I just do not understand how once again we have wound up in this mess. It is not for the first time. If the Department could not produce the documents on time, why did it not ask for a deferral of the meeting so that we could peruse the documents in detail? Through the good graces of the Chairman and the rest of the committee, in the hour we have been discussing the documents, many interesting questions have arisen that I could not have asked if I had not had an opportunity to read the document in detail.

Dr. Kevin Smyth

Could I respond and make a couple of points?

Dr. Kevin Smyth

The first thing is that the document would not have been available on Friday. It was only finalised yesterday evening. The second thing is that numerous attempts were made this morning to get the document over to the committee. We agreed to the meeting and we said we would try to get the documents over to the committee. I do not know how Deputy Ó Cuív would have felt about deferral for another week.

Absolutely, yes.

Dr. Kevin Smyth

One of the things that was said to us was about the need to have the document as quickly as possible. We did make an honest attempt to send it over.

This reminds me-----

Members should speak through the Chair. I ask Deputy Ó Cuív to hold on a second. I have indulged everyone. We had a deferral. The point has been made. Clarification has been provided on the timescale within which the document became available. Could we just leave it? I would rather go ahead with the opening statements.

There are plenty of questions. In future, we will make provision that if it is felt that a document is not going to be ready at least 24 hours before a hearing, we will seek to schedule a meeting in such a way that members of the committee have at least 24 hours to peruse the document, which in this case is of significant importance to the future of the entire CAP rural development programme. We will seek to adhere to such a protocol. Is that agreed? Agreed. I again invite Dr. Smyth to commence.

Dr. Kevin Smyth

Thank you, Chairman. I take the point. I thank the committee for the opportunity to address it today on the issue of land eligibility. As we are all aware, 2015 is an important year in the evolution of direct payment schemes, with the introduction of the basic payment scheme and the greening payment, which replaces the single payment scheme.

This year also sees the replacement of the disadvantaged area schemes by an area of natural constraint scheme, and the implementation of the new agri-environmental scheme, GLAS. In total, farmers in Ireland will benefit from payments in excess of €1.6 billion annually under these measures.

The implementation of these new schemes sees some changes to the requirements governing the eligibility of land and other related matters. Like many other member states, Ireland has worked closely with the European Commission during recent weeks and months with a view to establishing a set of requirements that are clear and workable from the point of view of individual farmers as well as other stakeholders, including this Department. We are also mindful of the need to ensure the implementing provisions are the most appropriate in the context of farming in Ireland, providing as much flexibility as possible to farmers. To benefit from payment under the direct aid schemes, the land must be eligible and must also be in a state fit for grazing. In Ireland, we have decided the most appropriate mechanism to provide for this is to define those characteristics to be met by an agricultural area to be deemed maintained in a state suitable for grazing. It was decided to use this approach having analysed and discussed all the other options open to member states under the regulations governing the direct aid scheme.

What does this mean in practice? It means the Department has set out the characteristics of the land if it is to be deemed maintained in a state suitable for grazing and cultivation. It would be a matter for individual farmers to decide how to best maintain their land in such a state. It can be achieved by growing crops on the land, grazing land in the normal traditional manner or using mechanical means to ensure the land is in the correct state. As regards eligibility, there are no issues with most of the land declared by farmers in Ireland. This is land used for production, rearing or growing of agricultural crops and products.

Questions arise in the case of some marginal land where, in some instances, very little maintenance is carried out by the applicants farming the land. To assist these farmers in particular, the Department is publishing an eligibility booklet in which details of the characteristics of the agricultural land that will be deemed to be in a state fit for grazing or cultivation will be outlined. A copy of this booklet will be issued in the coming days to all farmers. It will also be e-mailed to all agricultural advisers and consultants who assist farmers in submitting their direct payment applications. The Department is also arranging to hold training sessions on land eligibility for advisers and consultants starting this week.

The booklet deals with land that is and is not eligible for payment. It covers, for example, land with rushes, ferns and heather and outlines the characteristics of each land type that would deem it eligible or ineligible for payment. Individual farmers will be able to compare the characteristics of the land from the booklet and accompanying photographs with the state of their land and form the view of what is eligible or not for payment purposes under the basic payments scheme.

I would like to take this opportunity to clarify the eligibility requirements in respect of Natura 2000 lands. These include special areas of conservation, SACs, under the habitats Directive and special protection areas, SPAs, under the birds directive. Under the regulations the following Natura areas, while they are ineligible, will continue to benefit from payment under the basic payments scheme: the area in question was declared on the 2008 single payment form, the area was declared as eligible under the 2008 scheme, the applicant was paid under the 2008 single payment scheme, or the ineligible area was as a result of the SPA or SAC limitations under the habitat management plan.

There is also some flexibility on the inclusion of ineligible areas in parcels with scattered scrub. The EU regulations provide for the use of a pro rata system to facilitate area exclusions in areas with scattered scrub where it is not practical to measure and map them individually. The regulations provide for the use of a number of categories with fixed reduction coefficients for fixed ranges of scrub. There is also a provision whereby if scattered rock or scrub accounts for less than 10% of the area of the parcel, there is no reduction in the area eligible for payment.

Turning to the question of burning, let me emphasise my Department's total opposition to uncontrolled burning. Such burning damages the environment, puts lives at risk and damages property. The Department can accept burning that is carried out in a controlled manner in full compliance with all relevant environmental and any other lawful requirements, where the Garda and local fire services were first consulted and notified. In the case of non-controlled burning, the land that is burned will not be deemed to be in a state suitable for grazing or cultivation and will therefore be ineligible for payment in the year of burning.

As I have said before, this is a very important year for farmers submitting their applications under the direct payment scheme. Under the EU regulations, new payment entitlements will be allocated to farmers in respect of the basic payment scheme. The number of entitlements to be allocated will be based on the number of eligible hectares declared in 2013 or 2015, whichever is the lower. To protect their payments under the basic payment scheme for the duration of the regime, farmers should ensure the areas they declare for payment in 2015 are fully eligible. It is a matter for individual farmers to ensure they fully protect themselves in respect of the declarations that are made. The eligibility booklet will be of benefit to farmers in arriving at these conclusions.

Let us not forget that it is still open to all farmers to take the necessary actions, including by grazing or by mechanical means, to ensure the land they declare in 2015 is eligible for payment. I will now hand over to my colleague, Dr. Al Grogan, who will give a short presentation.

Dr. Al Grogan

I am delighted to have this opportunity to go through the document. It was suggested to me to prepare a presentation and there is a copy of that available. A photograph is a good way of trying to explain rather than a thousand words, so if the members are happy to proceed in this way, I will take them through the presentation. Unfortunately, the transmission system to send the presentation to committee members electronically failed but we have printed a copy for everyone here.

Ireland is a diverse country in terms of landscape. The first image in the presentation suggests all the diversity we try to address when we are coming to an inspection. We have mountain, scrub, good land, hedges and forestry. In like manner, the diversity of farming ranges from dairying to beef through to sheep - sheep lowland and sheep mountain - right through to cereal and cultivation. As regards land eligibility, today's focus is on the marginal areas rather than the green fields and wheat fields. This is the focus we have taken in the document we have prepared for issue to farmers and we hope we have covered everything with full clarity.

Moving on to features that would give concern or need clarification, to make it easy to understand, I will use the general term "ineligible features" when discussing these. We will cover the various features a farmer might meet when completing his application. From the Department's point of view, we will focus on operating controls in harmony with the EU regulations that underpin this. We have a series of ineligible features depicted in the presentation. There are lakes and ponds and, in one case, a turlough. A turlough is, in the main, eligible as the water disappears and for most of the year the ground is open, available and in a suitable condition for grazing. Permanent lakes and water as well as access roadways to houses and the like are excluded from areas eligible for payment.

The next main area is hard features which are there permanently - for example, rock. Rock is common in many parts but mainly in the more mountainous and marginal areas. Again, there is some guidance on how to deal with that and I will take the committee through that later, but we have addressed the issue of rock.

I have highlighted roads and have given two examples of farm roadways. The first example is a photograph from a dairy farm. The roadway has a fence and a hedge on either side. In that case, it is an ineligible feature and must be excluded under the current arrangements. We are in discussions with our EU colleagues and have put a case to them to the effect that, in many cases, inclusion may be justified. We are still working on the possibility of getting internal farm roadways into the system in some way.

The roadway in the second photograph is not fenced off. In that case, the rules allow us to take out the minimum. Therefore, we can allow all the green area and simply take out two strips in the case of the metalled or gravelled roadway. We are addressing the possibilities. There are many arguments to the effect that internal farm roadways are good from a cross-compliance point of view in that they protect the rest of the land and prevent poaching and so on. This is something we are continuing to work on but, as of the publication of this document, we were unable to get clearance to give freedom on that. Obviously, we cannot guarantee anything until we clear it with our Brussels colleagues.

The next area I will focus on includes drains, streams and rivers. In the past, drains and hedges were excluded in the main. We brought in the designation procedure. In essence, this allowed us to make them eligible for payment. The first photograph is of an internal farm drain dug by the farmer. There is a hedge beside it. Both of these features are now included in the area of the parcel and are eligible for payment. The second photograph shows a natural stream or river. That is not eligible. Again, this has been operating for years and farmers are perfectly familiar with it at this stage.

A more difficult area is probably the area of accuracy. Farmers are aware that scrub is an issue. It can be difficult to get some guidance or accuracy in terms of the estimation process for marginal land. I will try to take the committee through a process by which we hope to help farmers in the approach. The committee has two photographs in this regard. I am sure no one has difficulty accepting that there is an issue to be addressed and how it should be addressed in one of the photographs. The second photograph is of an open clear field, but at the back we can see intense scrub and bushes in the lower part. Then, as we go higher up onto the hill, it turns into forest. There is variation but, in essence, it is fully covered in scrub and, therefore, must be excluded.

How do we help farmers to deal with this? I will try to explain this simply without spending too much time on it. There is a yellow outline on the parcel in the photograph. There are three areas where we believe there is a problem and where some reduction is needed. In the case of plot C, for example, we deem the land to be 100% ineligible. This is the traditional redline approach that most applicants and their advisers are familiar with. We are changing nothing here. This procedure is already in place. We deem the area in this example to be 100% ineligible. Plot B is 20% ineligible because of the small area to the right while plot A is 60% ineligible. The area is redlined and we can apply a reduction there.

What has happened under the new regulations? The new regulation has formally adopted a pro rata approach for reduction. In other words, we apply a reduction coefficient. In this case, which involves three redlined areas, we apply three coefficients of reduction to reflect the position on the ground. We can see from the orthoimage that the rest of the parcel looks to be relatively clear. In that sense, it is clear and 100% eligible. A percentage must be applied except in the case of the plot C, which is intense scrub and is, therefore, fully excluded.

What other advantages have we achieved in the reform under the new CAP? Let us consider the idea of pro rata calculation as we look at the photograph on the next page. We have had a similar system of applying percentage reductions and farmers are familiar with it. When farmers look at the shoulder or collar of their maps, they will see areas marked with Xs - for example, X01 or X02 - depending on the number of redlined areas within a parcel. Each area has a corresponding percentage reduction applied. In recognition of the difficulty in a farmer applying in that case, the Commission has given us guidance on how to operate. Some people have described the new guidance as tolerance. Anyway, it allows for an area of scrub to be in a parcel without the necessity for the reckonable area to be reduced and thereby reducing the area for which a farmer may claim.

In simple terms, if up to 10% of the parcel or the redlined area in a parcel - we will not redline where it is less than 10% - is ineligible, that parcel will be deemed fully eligible. The coefficient of reduction to be applied to that parcel is, in fact, zero. We have bands, for example, between 10% and 30%, between 30% and 50%, between 50% and 70% and between 70% to 100%.

Under the current guidance given to us, as implementers of the regulation, anything in excess of 50% should be fully excluded. We have difficulties with that. Given the realities of farming in Ireland, there are many cases where there is plenty of grazing activity on plots that may have more than 50% scrub. We have argued - I hope it will be accepted as to date it has been accepted - that we can go a little more than the 50% that the Commission recommends. We have chosen to run with a 50% to 70% block that would still allow a further 40% of the plot to be deemed eligible, as against the guidelines. However, we need to recognise that the Commission has a concern. We believe the Commission has accepted the position on the 70% to 100% block. Obviously, everything depends on the audit process afterwards. However, in terms of discussing this with our policy people, we are happy that it will run. Currently, from 70% up to 100%, the plot would be totally ineligible.

Having explained the process, the next question is how we deal with the conditions we meet on a farm. Scrub is one of the common features that has to be considered. Let us consider the photograph containing a cluster of scrub which is fairly dense. There is not much potential to carry out cultivation or grazing activity. In essence, that is 100% ineligible. Such plots that cover less than 0.01 per hectare come under the tolerance factor that has been in place traditionally.

Let us consider the second photograph. We are into open land, perhaps commonage country. In this case, the redlining comes into its own - for example, where there may be clusters of ineligible land, whether furze or scrub. There is an opportunity here and perhaps a little flexibility. If a farmer has a difficulty with this, the advisory system has been well trained in this regard. Following the issuing of this document, we have invited all farm advisory service advisers to sessions in the coming week to go through this again. We will reaffirm the process and how this works. This is essentially the guidance given to us by the Commission. In the case of the photograph, we can individually outline areas or take a cluster in an area and apply the pro rata reduction to the parcel - essentially redlining it. That can either be done online using the system or on paper by drawing on the map.

The next photograph is a representation of what might happen where there is low intensity of scrub. It is difficult to redline anything in particular in this case. In the case of the scrub, if we were to see the full plot and if the area in question were deemed to be greater than 10%, then we would apply a percentage reduction to the full plot or, if it was more convenient, we would redline a given area and apply the reduction to the redlined area. In this case, we would probably apply the reduction per se to the whole plot. If it is deemed to be less than 10%, there is no need to apply any reduction since it does not break the 10% threshold value.

In the next case, we probably have what looks like a hedge going out of control. We have to recognise there is a problem in this case in that it is 100% ineligible in the scrub area. Again, it is a red line case within the parcel as a 100% reduction is applied to that particular portion, which is all that is necessary from the farmer's point of view.

The third photograph probably reflects the position further up the hills, where things get a little intense in certain areas and there is furze spreading further out. Again, there is an intense portion there. For anything that would be greater than 10% red line, one would apply the percentage reduction, and if the remainder of the parcel is less than the 10%, one could ignore this and there would be no need to apply any reduction. Once it is less than 10%, there is no issue in that parcel.

Dr. Grogan keeps talking about these cases of 10%. Which is it? Is it less than 10% of the red lined area or less than 10% of the total parcel? It is a totally different figure and 10% of the area would be a lot.

Dr. Al Grogan

We will not be ten per centing a red line area. The red line area, to justify red lining it, has to be greater than 10%. Therefore, if the red line area is greater than 10%, the red line applies.

Greater than 10% of what? For example, if I have land, is the 10% Dr. Grogan is talking about 10% of the total LPIS parcel or 10% of the area that is red lined?

Dr. Al Grogan

If we have a parcel and the scrub is dispersed through the parcel and that scrub accounts for less than 10% of the parcel, then there is no need to apply a reduction.

This is an LPIS parcel.

Dr. Al Grogan

An LPIS parcel. If there is an area within the parcel, as in the first photograph, which is of a cluster of scrub or furze, and that is 30% to 50%, or 100%, one would red line and apply the-----

One hundred percent of what?

Dr. Al Grogan

Of the red lined area. It means 100% is covered with scrub.

To be fair, the map shows it.

That area is 100% ineligible and is taken off before the rest of the parcel is considered. There will be question time afterwards. Will the Deputy please-----

Very briefly, Dr. Grogan is saying that area is 100% of the whole parcel. However, if that area was smaller and was less than 10% of the whole area, is it okay?

Dr. Al Grogan

Under the procedure we are adopting and the guidance we are given, if an area within the parcel is 100% ineligible, we must recognise that it is 100% ineligible. The simplest way of getting the farmer to accommodate that is to allow him to red line that area and apply it to that area, if it is 100% or less.

That is clear. Can we move on?

I am totally confused. To me, percentages have to be percentages of something. A percentage does not hang in the air. I have to say Dr. Grogan has given two contradictory messages to us here as to of what it is a percentage. Is it of the whole parcel or of the little area that is taken out? Every sceach is 100% of itself. When would enough sceachaí get together so they would have to be red lined? That is the question.

I think the Deputy will get the picture when we see the photographs.

Dr. Al Grogan

In case there is any confusion, I will go back to the pro rata photograph. I will explain it in the context of plot C, which I started with before. This is for illustrative purposes as I was not on this plot. We deem the portion marked C-X03 to be 100% ineligible. When we walk into the plot-----

What page are we on?

Dr. Al Grogan

We have gone back to the pro rata page. It is convention on the maps we use to have this "X" nomenclature and here we have X03. We will suppose the inspecting officer deems there to be nothing there only totally dense scrub, as in the example photograph I used earlier. The question is how we best reflect that in terms of loading the LPIS to reflect the position on the ground. We draw a red line around that area and we choose a percentage reduction to apply to the area within that red line. In this case, we are applying this coefficient of 100%; in other words, there is no eligible land within that. However, we are not applying it to the whole parcel. We now come to plot A, which is 60%. Therefore, we deem 40% of the area within the second area, area X01, to have grass or to be available to carry out grazing or cultivation, in this case, presumably, grazing. We want to give the farmer the benefit of that. We then move to the third one, and we deem it to be 80% available and only 20% ineligible. Now, we have three coefficients and, on the system, the mathematics will then carry that together. If we take the alternative one, we have to come up with a way for the farmer to best estimate what proportion of the whole plot he now has to reduce to reflect the three areas of scrub. An alternative would be to pick a figure that would reflect that.

Can I ask a question on this?

I want to make one point on this before I let in Deputy Ó Cuív. As things stood up to 2014, that area C and area A would have been excluded anyway as they were greater than 50%.

Dr. Al Grogan

Area C goes-----

In the old system.

Dr. Al Grogan

In the old system, we had more flexibility in the sense that we had more percentages. We would apply this within the five categories that are now proposed as we could apply five, ten or 15. We evolved the system and-----

Area C would have been gone anyway.

Dr. Al Grogan

All of those percentages would have been gone in the old system-----

Even B, at 20%, would have been gone.

Dr. Al Grogan

All would go in the old system. However, in addition, in the old system, if there was another area that was 10% or under, we would still be making the reduction. The Commission is now recognising that it is difficult for farmers to make estimates of what is the ineligible proportion. The benefit we have achieved in the new system is to get a flexibility, if that is the word, although some others might say it is a tolerance, to reflect the fact it is very hard to estimate this low level of scrub. I will argue, and we have argued on numerous occasions, that in many cases when one looks at an orthoimage, one sees the crown of a tree. However, how many times does a person go out to a field and see the grass growing to the base? We have argued continually that an orthoimage looking down looks worse than a field visit on the ground. What we have achieved in this process is to recognise the reality on the ground. We now have a 10% freedom, or tolerance, that was not available prior to the beginning of this year. Have I explained it satisfactorily?

No. Let us suppose we did not have B and C but only A. We know that 40% of A is grazeable so 60% of A is not grazeable. However, when I take the 60% of that area as a proportion of the total field, it is much less than 10%, so if I do not red line it, I should be allowed to get a zero deduction. Is that right?

Dr. Al Grogan

The Deputy says he is talking about area C-----

No, I am talking about area A. Supposing the field did not have areas B or C, and it was all grass except for area A. That area A, the non-grazeable part, is less than 10% of the full field.

If the parcel was smaller, 100% of the field would be gone. It works both ways.

I am asking the question.

Sorry, there are other people in this room as well.

With all due respect, could we get through what they have to say and we will dissect it afterwards?

I will tolerate no more interjections until this presentation is finished. The Deputy can smirk away, if he likes. I have given him as much tolerance as I can.

It is not clear.

It is quite clear to me.

It is not clear to me and I can tell the Chairman it is not clear to the farmers.

I am a farmer and I think I understand it.

I do not think it is clear to everyone.

We will get there. The Deputy will get his chance after he asks his questions. I am making the point that I understand it.

The Chairman is also making the point that I do not.

That is fair enough. The Deputy will get his chance.

Dr. Al Grogan

I am happy to explain it again if necessary and I understand what the Deputy is getting to. Maybe the examples will help. According to the guidance to which we are working, when something is greater than 10% we have to recognise it in the LPIS database. The tolerance at which we will give the benefit of the doubt to the farmer is 10% of scattered scrub.

The next parcel of scrub was found by a Commission audit. The application was 100% ineligible but that is a very serious case. The following photograph with the furze probably reflects what happens in a lot of land, even in flat country, where it is hard to keep it under control. The field in the distance is fully clear but on the field in the foreground there is furze. To address the Deputy's point, the yellow point is 100% but if we include a lot more of the furze area it might drop to 60% or lower. If we were to omit the whole thing it would be less than 10%. The guidance given to us is that where there is intense scrub within an area and it is more than 10% of a proposed red line area, it is ineligible.

The next photograph is of more open country which an inspection found had no access. Given that it is a marshy area, no cattle or any other animal chose to go in. The area has a lot of scrub so it was a 100% rejection. The next one is of a fairly significant level of scrub near the upper ends of the scale. If in this parcel it is deemed that the level of scrub exceeds 70% then, under the guidance, we are obliged to deem it ineligible. We recognise that there is some grazing and the Commission wants the threshold to be at 50% but we are still arguing about that and we are hoping to successfully defend our position. We have indicated our intention to go with this threshold and, to date, we have not heard to the contrary but, as members are aware, all these things are ultimately decided in the audit procedure and we are all aware of the sanction that has been proposed against Ireland. We have to recognise that in how we implement the procedures on the ground.

The next topic is heather, which is a common ground cover in lots of marginal areas. Members will see tall woody heather in the background. This is one of my taller colleagues; he is 6 ft. 6 in. and he is there to give some indication of the height. We deem this to be ineligible as it is not being kept in a condition that any one would accept as suitable either for grazing or cultivation. The next photograph is of heather which is eligible. We can see certain areas, however, where the heather is getting a bit taller so we would caution the applicant that if they had heather beginning to grow into the woody stage it would need management to prevent it becoming ineligible.

In contrast, the following photograph shows perfectly eligible herbaceous species in the distance, made up of a variety of types, including heather, The heather, however, is not the predominant ground cover in this parcel so there is no difficulty from our point of view and it is 100% eligible. The next photograph, however, is a little bit further from the last but one photograph. We would be a little bit concerned that it will get into this state shortly and one could argue that it is already becoming woody in the distance.

We would caution applicants as to the importance of evaluating every one of their plots before they make a submission. We have tried to explain this in a picture instead of trying to describe it in words. Mr. Smyth spoke about us trying to describe what is required rather than telling members how to get there and that is the change we referred to in the context of easing up. We took criticism - I took some myself - for not telling people how many cattle will achieve A, B or C but everyone is different so we have chosen to go the descriptive route and to tell farmers what is the requirement. It is their choice as to how they meet the requirement but hopefully it makes it easier for farmers to have confidence that they will meet the requirements when submitting their application.

The next photograph, which I took myself, is of open commonage. There are plenty of sheep but unfortunately I did not get them in the picture. I did, however, get the farmer on his quadbike managing his sheep and keeping the land in good condition. As far as we are concerned, it is fully eligible for the purposes of drawing down payment. It would be an easy inspection; in, out, gone.

I took a winter photograph here. Maybe in the background things are different but, going by what is visible in this plot, there are content and happy sheep so it is fully eligible. The final photograph shows heather to reflect the reality that the marginal country farmer has a few sheep but keeps his land in a condition for grazing and, if he wants, for cultivation. The next photograph shows rushes. I will put it on hold until later on but I can tell members that it is eligible.

The next photographs are in Wicklow and show ferns. When auditors look at ferns, they get very concerned as they always give the impression of 100% ground cover and should immediately be declared ineligible. We argue with the auditors that one must know the sequence of how ferns grow in Ireland. In photograph No. 1 sheep are grazing happily and contentedly and there is plenty of grass in the part members can see, notwithstanding the large amount of shade coming from the heather. That is in late spring but in late summer we see that the ferns are dying off and the percentage ground cover by the grass is close to 100% - perhaps 96% or 97% - even though there seems to be a lot of fern. I went back to the same site in winter and it is obviously being grazed by sheep. The ferns have been killed off and there is, in essence, 100% grass cover.

That was sufficient for there to be no need for a reduction for farms in that case. However, in the next case, which will be the contrast, and we meet quite a lot of this, nothing, including animals, penetrates it and keeps it in a state suitable for grazing. We have no choice in the case of the second picture but to consider that totally ineligible to draw down payment.

The first picture shows a Tipperary farm. The farmer has cattle out grazing and has chosen to top as well as graze. The land is in very good condition. It is his routine practice to try to keep rushes under control on this type of land. As far as we are concerned, after two seconds in the field it was clear he was fully eligible from a land parcel point of view.

In contrast, I wanted to give some indication of the height to which rushes can grow. I was surprised they would grow so high, but another picture shows they are close to five feet high. There is no evidence of anything going on in the parcel. We have no choice as there is no evidence of access. I am sure no one would argue about the fact that it is 100% ineligible. The third picture is typical of many of the marginal areas around the country in the west, north west, south west, south and many other parts of the country. In my county, Offaly, there is plenty of land in this condition. We can see quite clearly that the farmer is making the best of the land he has. He is grazing it down and there is plenty of evidence that things are going on. We consider that to be 100% eligible and do not even demand it be topped. It is a choice.

As one becomes familiar with certain areas, one finds rush will become intense within a parcel of land. The discretion is open to the farmer to bring that into eligibility status simply by topping it and carrying out the so-called agricultural activity or whatever. I can appreciate that people do not want a flail harvester or topping machine dealing with this, but we have no difficulty where a genuine effort is being made to farm the land in the condition it is in and we deem that to be eligible.

I will try to give a wider view of the picture I skipped. It shows power lines running across the land and would typify land in many parts of the country. There are two sheep and we see evidence that the farmer has been doing work. The grass has been grazed on and the farmer is not allowing a mat of grass to be created. As far as we are concerned, he is 100% eligible. It is to be hoped, because we take a little bit of criticism, that this clarifies things in terms of dealing with rush and the idea that all rush is banned, and we also hope it makes it understandable from the point of view of farmers.

I will move on to other areas with which we deal. Bog is an interesting feature and is the focus of many difficulties in SPAs and SACs and the protection thereof. When we talk about bog, we are talking about the conventional understanding of bog. The first picture shows a typical bog, where a family cuts turf or it is cut commercially or otherwise, as in the second picture. We have all the variations in terms of organic matter and soil. We are not including raised bog or the bog on mountains in terms of ineligible bog. Rather, we include conventional bog cut for turf.

The picture on the right-hand side shows high organic matter ground, which I would say, if I knew the position, is probably bog. In essence, it is waterlogged and absolutely nothing is happening. It is probably too wet even to consider cutting turf. It is to be hoped there is no difficulty in terms of the interpretation that the bog would not be eligible to draw down payment, recognising blanket peat on mountains, be it surface comprising a few inches or one or two sleans or turf being cut, which probably does not happen as much now as did in the past. Bog on commonages on mountains is not included.

Other types of land include an inaccessible wet area. From the picture we can see that nothing is happening and there is a mat of grass. The land is not in any condition that one would consider suitable and does not meet the requirement in the legislation of being suitable for grazing and cultivation. The second picture hidden behind the Natura one shows a marshy area where nothing has happened in terms of accessibility. I included that one to reflect what we said earlier. The requirements under the SAC or SPA state that one does not cut until a certain time of the year. Once a farmer complies with any environmental conditions applied by the National Parks and Wildlife Service, that does not make land ineligible. It is to be hoped that we have clarified that, on the Natura side, there should not be a difficulty.

In most cases, for most of the conditions I have checked in terms of SACs and SPAs farmers are free to continue to farm in the traditional fashion. The things which are restricted include extracting rock, putting in drainage or applying organic fertilisers. Normally, traditions have not been interfered with too much, except that there can be delays if one wants to cut in the Shannon Callows and that sort of thing. A typical picture in the background shows land on a mountain that is fully eligible. There is evidence of cattle and sheep, and maybe it is lower commonage, but I am not familiar with where the picture was taken.

I included the picture on the left as a warning to all of us and perhaps as a warning of what can happen given the policies of the past. I am given to understand that picture reflects the amount of time it takes to recover land. In this case, I was told locally that the land was overgrazed during the reference period. The picture shows the effect of taking out ground cover. When ground cover is removed from certain soils with a high level of organic matter, the soil is not able to recover because of what happened previously. I presume it was overgrazing. Erosion was still happening when the picture was taken two months ago. It is a warning to us that we cannot consider the land to be eligible. The land is not in a condition we consider suitable for grazing. I understand the farmer is trying to recover the land, but it is almost impossible.

The last picture probably speaks for itself. Dr. Smyth has highlighted the recent concerns about burning. The focus was put on our Department in terms of how the issue can be addressed. I included the picture, which is of a place not too far from Dublin, as a shot that is typical of the problem. We have to be careful in terms of what we implement now to achieve the objectives. It is to be hoped we do not have to sanction too many people and that the warning will go out. There is a perception that burning makes land eligible. If it does the damage that overgrazing did, we have to be careful that we do not create a larger problem.

We all hear in the media about the damage done by burning, not from the point of view of getting rid of heather but from the point of view of biodiversity. While something might grow back within a number of months, biodiversity may be affected for years. I have heard some people say that the damage is measured in multiples of years. It is a warning we have to convey to farmers.

I thank the committee for its attention and will try, along with my colleagues, to answer questions as best we can. I hope I have been fairly clear in trying to explain the background to our booklet. As Dr. Smyth said, we only recently had it cleared and I again apologise for the delay. It is to be hoped we have presented a document that is fairly easy to understand from a farmer's point of view.

I thank Dr. Smyth and Dr. Grogan. Nearly every member wants to speak so I ask everyone to take five minutes initially so that we all get a chance to ask questions. There are nine members so it will take 45 minutes for the first round of questions if everyone takes their allotted time. We will start with Deputy Ó Cuív.

I thank the witnesses for their presentation but I have to say farmers are fed up with the guessing game they are playing with the Department. It is causing great grief and uncertainty for farmers, who think they have been told by the Department what the eligible areas are but are now being told it is a totally different game.

How accurate were the exclusions that the Department notified to farmers in 2013? If there has been no change to a farmer's marginal land since 2013, should that farmer accept that the Department has now identified the areas to be excluded? Should the farmer now go by the reference areas on this year's maps? This year's maps have figures like 10%, 20%, 70%, 80%, 50% and so on but they are all changed today. The reference areas have now changed because of the new way of calculating them under the pro rata system. Will the Department issue new maps to all the farmers who had exclusions on a percentage basis? The areas the Department originally gave them as the right reference areas are now incorrect. Are all farmers meant to do the recalculation for themselves?

I understood the regulation contained a requirement for a level of minimum farming activity. Has that now been dropped? I cannot find a reference to minimum farming activity anywhere in the submissions and this has been a cause of great contention in Slieve Aughty. Is it now purely a question of the condition of the land? If that was the case it would be a significant change.

What are the penalties for overclaim of land and for not having the minimum farming activity, if that now applies? What part of a land parcel is ineligible? Can one say that 5% or 10% of a total mountain is not eligible or do farmers have to physically redline them on the map?

Is the Department advising that every farmer get a professional planner to actually walk the land, despite the Bing maps and everything else, to make a professional determination and to ensure farmers have indemnity against mistakes? That will take them out of the guessing game and into reality and certainty. Under the rules of GLAS, could I find out that some land is eligible for GLAS payments but not eligible for BPS? Can the witnesses explain the logic of excluding scrub on marginal land and then forcing the likes of Deputy Barry to have ecological focus areas and to take some of the best land in the country and turn it into scrub and be paid for doing that? What is the European logic for that particular scenario? We are all anxious to hear that because I am sure Deputy Barry would love to keep his arable land while the hill farmer would be happy to keep his scrub.

Dr. Smyth said the 2008 SAC areas will continue to benefit from payments. If the Department excluded land under the Bing system in 2013, which brought in the new reference areas, but a farmer believes the land became newly ineligible at that time can the farmer put it back in again now? Do the rules relating to SPAs and SACs apply to NHAs? There are the same restrictions as NHAs but there is no mention of NHAs. If land became ineligible because of NHA restrictions can the farmers put it back in again?

I think burning is going to become a burning issue. What happens if somebody else sets a farmer's hill alight? Two questions arise. One is whether one will lose an entire hill. The other is whether, in the event that it comes back greener than ever, which it has a habit of doing, and green grass grows where there is scrub, it will still be excluded even in cases where the farmer had nothing to do with what happened.

The Department has created another guessing game. Supposing I put in an application for land that is 60% scrub then, under the rule of which we have been notified today, there will be a 60% penalty while the other 40% will be eligible. The Department, however, is saying that Europe might come along later and say that the rule is 50%. Are the witnesses saying the farmer might be penalised by the Department for following the Department's own guidelines because Europe decides later on that the Department got it wrong?

I have a question about bog areas. In the pictures they look nice and brown but what time of year were the pictures taken? An awful lot of those areas are green in mid-summer so are they eligible or not? A lot of places look brown on a map in March or February, particularly where there is millennium grass, but in the summer they are green.

I thank Mr. Smyth and Mr. Grogan for their presentations. On the positive side it is encouraging to see some form of booklet going to farmers, to their advisers and to the people who work with them. They will at least give some indication of what is expected, though there will also be a lot of confusion. For example, in the photographs of an area which has tall rushes and is not accessible to animals a man is standing up to his waist in rushes while the one behind is eligible because the rushes are not so tall, but who determines the height? Does it depend on the eye of the inspector and is it at the inspector's discretion? It is going to cause a lot of confusion to the farmer and his advisers.

The Department also said it would be putting in place training sessions on land eligibility for agricultural advisers and consultants. That is welcome but the Department needs to know exactly what it wants to advise people. As with most other members, I have been dealing with land eligibility for a number of years and I have seen people being penalised on the basis of determinations made by an inspector using the naked eye. In such cases another inspector might have made a different determination.

Deputy Ó Cuív mentioned the issue of burning. In my own county there has been a significant increase in burnings in the past number of weeks. This made the national headlines but a lot of the burnings were started by other people and not by the farmers themselves. There is controlled burning and uncontrolled burning, the former done with consultation and within an authoritative framework, the latter not. Are we going to penalise people who are the victims of uncontrolled burning? How will that affect their entitlements?

Retrospective penalties regarding payments has been a major issue for all of us in recent months. There are people who firmly and sincerely believed they were compliant because of the previous mapping arrangements, and they then found themselves not to be compliant. They have had large penalties imposed on them. Such people are those living on the most marginal land who are most dependent on those entitlements for their family farms to survive.

Deputy Ó Cuív asked about it occurring as a consequences of the re-examination. If the Department is satisfied that a farm is compliant with the booklet framework it will issue, what happens to retrospective payments for people who have been penalised? Will they be recouped? There is only one way out of all this and that is to have an amnesty for people who have been penalised.

I have couple of questions regarding the Natura sites, an area of considerable contention, such as Slieve Aughty. The delegation listed four criteria. Do I understand that all four must be met? The criteria are that the area in question was declared in the 2008 single payment scheme form, the area was declared as eligible under the 2008 scheme, the applicant was paid under the 2008 scheme and the ineligible area was a result of the SPA or SAC limitations. If all four criteria must be met, what is the legal basis for that?

I understand that the single payment scheme operates under Article 34(2) of Regulation 73/2009, which is much less specific. It refers to "[A]ny area which gave a right to payments under the single payment scheme or the single area payment scheme in 2008", not that one had to declare information or that it had to be accepted and so on. It goes on to refer to cases where no land complies with the definition of ineligible or eligible as a result of the implementation of the birds directive, the habitats directive or the water framework directive. Compliance with the habitats management plan is not required. Is the Department intentionally trying to exclude Irish farmers or is it mere inadvertence on its part? I find it difficult to believe it is inadvertence because the Department has a great habit of coming down very hard on Irish farmers. Of course it rolls over for the big boys like the Larry Goodmans of the world. It knows smaller farmers will not take a judicial review because they do not have the money to do so.

I refer to appeals. I welcome the clarifications provided by the Department. Will they apply prospectively or retrospectively? I refer in particular to those who have appealed where areas that were declared eligible in good faith were found to be ineligible. A large number of people in my constituency and across the west, as well as other areas, are affected.

I am not being awkward, but I am still slightly confused by the figures of 70% to 100%. Is the Department saying that where a person has a parcel of land and there is any area within it with scrub, if the scrub is adjudged to be more than 10% of the area then it must be red lined? If that is the case, if the red lined area is more than 70% scrub, does that mean all of that area must be declared to be ineligible or only 70% of it as a portion of the total land area in determining whether the total land parcel is declared to be ineligible? The system is quite complex and I do not fully understand it. I would welcome clarification on my last point.

I understand Deputy Ó Cuív was given clarification that the relevant figure is 10% and it does not really matter. If an area is 100% ineligible, it does not matter whether it is more or less than 10% of the overall parcel. It still has to be excluded because it is ineligible. I welcome that clarification.

I thank the witnesses for their presentation. At least we now have a guide which will clarify the situation to some degree. We have all been dealing with queries since payments were made last year when people were penalised and many had questions.

I am very concerned about burning, a point which was raised earlier. In 2011, there were major fires across the country. In many cases it was not farmers who lit fires. Others lit them and burned large areas of mountains. A new house close to where I live was burned. I made representations on a couple of occasions on behalf of farmers who were penalised and did not receive payments. Such cases concerned instances where fences in forests were burned down and there was a need to determine who was liable where there was no insurance.

A lot of over-grazing has developed because of the de-stocking in the past. Farmers have asked us how to get the overgrown woolly heather under control. Can it be mulched? Can it be sprayed if it is in an NHA or SAC area? Can it be heavily grazed by horses or other animals? If sheep could, in time, manage it, is that acceptable? If the heather is fairly tall and one grazes sheep on it, over the years it is to be hoped it could be grazed back down.

Another major issue is land for which applications were not submitted in 2008 or before. Is there any way that land can be included? Young farmers are showing an interest in farming, which is a good thing. They have completed green certificates or agricultural courses and may come across mountains that have not been farmed or for which claims have not been made. Is there any way to include such land for younger people?

I welcome the witnesses and thank them for their presentations. I am glad to see the document states the Department needs independent and suitable access to all parcels of land. It is something that was not properly defined in the past and, as the witnesses know, has created significant problems. The definition of the boundaries could be explained better. Is barbed wire fence a boundary? I would like a written answer to my questions because I know many issues have been raised. Will some posts with binder twine constitute a fence? Are gaps allowed and, if they are, what width should they be? Appropriate fencing was mentioned. Could we get a definition of what it is? When there are difficulties, these things become real issues. I have come across too many such cases, which have caused too much distress.

Is there any possibility of maps such as those in the presentation being made available online? It is a new system, but it would be handy to have access to them privately. We would also love to have the software. If we agree to the use of the maps and farmers agree to the lines on them, will applications be accepted? In the past, maps have been issued and people have, in good faith, accepted them as good representations. However, an inspector then said he or she was not happy and a tape measure was taken out. Neither I nor inspectors are engineers, but could we get rid of tape measures and accept what is written here in good faith? Farmers accept a lot, especially as the system gets more complicated.

In the map, X01 is 60% and X02 is 20%. Is this going to be an annual measurement or could it be defined for the period of the CAP running from 2015 to 2020? Can we say that it is agreed and that is it? The trees and bushes grow every day but, if a farmer gets active and decides to start chopping, the area is being reduced and the definition is being changed. Can we have something fixed for a period rather than the person tripping up on the fact there has been growth during this period of the CAP?

If an applicant reckons an area is 60% scrub and it then transpires it is actually 75% scrub, he is only out by 15%. Given he was allowed a 10% variable at the start without any punishment, if a farmer defines it in a way that it is over the 10% variable, will the first 10% be allowed as goodwill? With all due respect, it is very hard to define this whole situation. Is there any possibility of getting sufficiently good satellite maps that would just do this the first time, and be done with it? Do the witnesses understand my point on the 10% variable, given the first 10% is not regarded?

With regard to the ineligibility of furze, I gather that over the years furze was used for bedding and feeding of horses, so it is not exactly a weed or a bad plant. If it was used for mulching, that would be a particular use for it. I ask that this issue be looked into.

There is some ground that is now deemed ineligible but which was deemed eligible in past years. If people had established a single farm payment on ground which was previously eligible, could there be some means to compensate them or to swap over to other land if that situation occurs? While I am not sure the situation arises often, it may arise.

On a point made by other members, it is unfair for people to be punished for accidental burning on lands or where there has been malicious burning.

On the question of rushes, to be fair, it seems a tolerance is allowed but I would be afraid the word would get out that people should clear rushes through the use of herbicides. There are three main herbicides, Glyphosate, MCPA and Trichlorfon, but all of those are absolutely the last resort and one does not want to be putting out sprays just for payments. I would like to hear it loud and clear from the witnesses that, unless they are a major problem, rushes will be passed as the witnesses' pictures suggest.

Given Mr. Lorcan O'Shea is present, I will make a brief point on GLAS. Can bird cover be used on permanent pasture ground and will there be a definition on that down the road?

An issue affecting the lands on my side of the country concerns the problems caused by wild deer. There are also the problems caused by crows and pigeons, which have gone out of all order. We have no way to control them and while in the past we had Alphachloralose, can anyone from the Department suggest a way to stop these pests? They are becoming a problem not only with regard to the crops that are growing but also those in storage.

I welcome the Department officials. I welcome the improved certainty the document provides through the pictures, notwithstanding the fact there are still some issues. Since the start of the single payment, or whatever it was originally called, many features were ineligible, such as rock, ponds, dense scrub and so on, and that is a given. The main concern I had recently was in regard to the re-evaluation of commonages. I see that the Department has in recent weeks changed the forage areas for places like Derrybrien and Roxborough, and Kilderry will hopefully be next.

The point on burning is important given there are various types of burning. There are people who carry out genuine controlled burning but there can be malicious burning and a neighbouring farmer might just decide to do something that could have unintended consequences, particularly if another farmer would lose their payments. There can also be accidental burning, for example, if someone throws away a cigarette or if there is a glass bottle in the sunshine. This is the type of thing that can happen and I have concerns in this regard. While I see where the Department is coming from in terms of stopping uncontrolled burning, the consequences of ruling it out entirely for payment is extreme, in my opinion. Some burning is accidental and there can be a forest fire that can just take off across thousands of acres. I have serious reservations about this and believe it needs to be looked at again because, within a short period, we see the burnt areas becoming green again.

The terms and conditions of the basic payment scheme state that a farmer must exclude bogland unfit for grazing and areas used for commercial turf production. However, today's document states that bogland, whether used for turf production or not, is not eligible. What exactly is meant in that definition of "bogland"? I understand the high bank of raised bogs has always been ineligible. Is the Department referring to areas where turf is spread on the land, which might sometimes happen. Are re-vegetated turf banks eligible? If it does not have some more in-depth description, the word "bogland" could lead to unjustified deductions.

With regard to the pro rata penalties, again, it is very hard to define whether a parcel has 10%, 11%, 12% or even 8% or 9%. One cannot be definitive and say it has exactly 10.1% and, therefore, it falls into a 20% reduction coefficient. I would be concerned about how it is possible to be so definitive. If the measurement is, say, 10.2%, there is suddenly a 20% reduction. It is like the case of over-declared areas, where if a farmer had 3.1%, it had a major impact. To go from zero to 20%, when one might be going from 10% to just 10.1% of ineligible area, is extreme.

I welcome the move on the SACs and SPAs and the fact that some certainty is given for those areas that were declared in 2008. Some farmers were caught out when they were not able to clear parts of SACs and SPAs that became scrubby because they did not have permission to clear them.

In his opening statement Dr. Smyth said: "Under the regulations the following Natura areas, while they are ineligible, will continue to benefit from payment under the basic payments scheme." Should this state "while they may be ineligible"? Can he explain why he said "while they are ineligible"?

On a question to Mr. Lorcan O'Shea, Deputy Barry referred to GLAS. NHAs are not eligible in the same way as the SACs and SPAs. Is that an oversight or is it something that has come from on high? Most NHAs are also SACs or SPAs but there are some NHAs that are not. Will there be any change on that?

I thank the witnesses for the presentation. I agree with Deputy Kyne that it is a good thing the problem at Derrybrien and Roxborough has been solved.

It is a sad day when farmers must get together to get justice for themselves, when common sense did not prevail until we headed for the steps of the court.

I refer to the pictures. I am a fair while around looking at land. Is there any guide to tell a person what height heather that is or what is or is not acceptable because ten different people can make ten different assumptions out of pictures? I do not know whether that is 1 ft., 18 inches or 6 inches high. If that is going out to a farmer, with all due respect we are heading down a road that involves us putting more cost on them with planners or others. Someone will have to explain to the farmers what that is because I do not know. I could not put my hand on my heart and say that is 1 ft. or 18 inches high.

As for the burning, there have been a lot of gorse fires around the country and this seems to be a knee-jerk reaction. It seems to be heading towards the blaming of farmers for this burning, which I do not agree with whatsoever. If a tourist throws a butt of a fag out a window and sets someone's area on fire, the Department is now saying it is bye-bye to that farmer's single farm payment. The solution to the knee-jerk reaction to the gorse fires that were around the country is not to penalise the person who is not responsible for it.

In rock areas, for example, in the mountains, how do we quantify or who will tell a farmer how much area is in rock or whatever that he or she must take out? Obviously, they were getting this payment previously and the Department is saying now they will not get paid.

I welcome the position on the SPAs and SACs. However, there is one point the officials must remember. There must be a bit of joined-up thinking in this regard for the simple reason that there is good ecological value to be had and here we have the Department of Agriculture, Food and the Marine on the other side. We have a great organisation, the National Parks and Wildlife Service, going around the country telling farmers what to do and then it runs to the hills. They told farmers to de-stock. They told farmers that they could not dig a drain. If a farmer cannot dig a drain in a designated area, common sense will tell him or her that it is worse the ground around it will get. I note the Department is on about bits of wetlands and marshy areas. Such a farmer will be in trouble straightaway. Will there be a bit of joined-up thinking employed where, if the farmer has land in a designated area, an ecological expert will be supplied by the Department to advise the farmer on the best way to get around such serious problems in designated areas?

I have received representations from farmers with enclosed areas in Mayo. They tell me that they are being prevented because the heather is too long. There is a problem in Sligo and, indeed, in parts of Mayo and Galway. The officials spoke of land needing fencing or farmers ensuring that they are able to outline their parcels, and about commonage not needing fencing. However, there are parts of the country where farmers cannot put up a fence because they must get planning permission and environmental impact assessment, EIAs. This has been going on for approximately two years. What is the Department's take on that? I refer to land that is private property, not commonage, but is not fenced. How will the Department solve that problem? This problem is evident in several counties where there are persons objecting to a fence going here or there. I would be grateful if the officials could answer those queries.

Like the other members, I welcome the officials and the clarification and booklet on the different types of eligibility.

If one looks at the situation from the area where I come from in west Cork which was particularly hard hit by the eligibility issue, where the farmers stand now and what is ahead of them, more than 33,000 over-claim letters have gone out from the Department. Many of those recipients were able to offset the implications of those, maybe, with excess land or other lands, many have accepted proposed penalty arrangements and approximately 10,000 have appealed. From a starting figure of 33,000, there are 10,000 who would have appealed. Obviously, it is a significant amount of appeals. Where do they stand? Will the Department go right back to see whether the clarified land eligibility criteria fit in with respect to those farm payments? Many of those farmers are already repaying or have repaid. Some in my area are mounting a locally funded legal challenge to the issue, and I do not know how that will pan out. However, many are still terrified of the prospect of retrospective penalties. Some would not recover from that and, potentially, would be put out of business. They would be driven from the land. Where do they stand, on 28 April 2015, having first known or heard about this only 18 months ago?

The clarification booklet that the Department will send out to every farmer will go a long way in clarifying to a farmer, in preparation for his or her application in 2015, what should and should not be included as eligible land, but there is still an element of subjective analysis that would be required. I refer to the mapping system with the red line area where a farmer can bring in his own red marker. If a farmer had a bit of dense rush, scrub or furze on a parcel, the red line could become a mathematical exercise where he could include a lot of eligible land within that red line to reduce the dense nature of the rush, scrub or furze and not affect the overall eligibility of the parcel. While that is there, the red line could become a moveable feast here in terms of how a farmer would assess how to work around it. It is not fixed. There is also the subjective nature of the upland, for instance, with the height and woodiness of heather. I live in an area where there is a considerable amount of commonage and uplands. One could almost describe the entire area on the western part of west Cork, the peninsulas and the island areas, as marginal lands. I still have a concern that the farmers, their planners and Department officials will never be on the same hymn sheet on the subjective nature of that land and if they are not to face further penalties, particularly given the importance of this year, they will need further supports.

I agree with the concerns raised about burning. Unfortunately, we have seen a spike in it. That is merely my own opinion. From my own observations around west Cork, it has been quite prevalent when there has been a fine spell. It is a most contentious area. If the Department is to exclude somebody's single farm payment because lands that he or she owned were burned, it will be difficult to see that through. When the local authorities are looking to send out invoices for their efforts, all of a sudden they find out the issue that is involved with respect to who is responsible. I would be very careful about falling into that quagmire of liability with respect to lands being burned.

I welcome the booklet, which will give further clarity. I do not think it will satisfy everything. I am concerned that thousands of farmers are facing punitive measures. Where do they stand?

I have allowed 40 minutes of questions. I thank the members for adhering to my request for conciseness. Who wants to open up the responses? It seems that burning has come up frequently.

Dr. Kevin Smyth

It has. I will deal with that.

Deputy Ferris had a particular query about whether the land will be excluded if the burning was authorised and all the rest of it. I might make some comments about that at the end. The issue of the red line was also raised. How does land that might have had a small red line around it stand now? Under the new regime, that could come back into eligibility. Questions were also asked about bogland. Those are the three main issues. Many questions were asked over the past 40 minutes.

Dr. Kevin Smyth

I know.

Very few comments were made, actually.

Dr. Kevin Smyth

We want to answer all the questions as best we can. All five of us will speak about different areas. Mr. Thomas Harty will talk about reference areas and maps. Mr. Paud Evans will deal with special protection areas, special areas of conservation and other areas. I will talk about some general areas, including burning. Dr. Al Grogan will give some clarification on bog and fencing. Mr. Lorcan O’Shea will answer the questions that were asked about the green low-carbon agri-environment scheme. Is that okay with the Chairman?

Dr. Kevin Smyth

The system is never going to be simple. It was not designed to be simple. It is a complex system to reflect the different types of land that exist. However, the system is being made simpler from today. Basically, we are talking about changes in favour of the farmers. It will now be a question of whether the land is eligible or ineligible and if it is ineligible, the degree to which it is ineligible. Simpler rules will come into effect from today. An Irish solution is being used to deal with this. We are looking at the characteristics of Irish farming. This has to be a good thing.

Deputy Ó Cuív asked about agricultural activity. We are not prescribing agricultural activity. We are not telling farmers how to achieve the characteristics - that is up to them. We are saying what the land should look like. It is up to the farmer to achieve it by whatever means he considers appropriate.

Will there be any more going out, taking photographs and saying there are no sheep on the land?

Dr. Kevin Smyth

No.

That is gone now.

Dr. Kevin Smyth

It is up to the farmer. We are not going out there counting sheep.

That is great news.

Dr. Kevin Smyth

At least the Deputy got something out of the meeting.

Dr. Kevin Smyth

The Deputy also asked about the issue of burning. He is absolutely right when he says no farmer should be a victim. No farmer who is a victim of burning, with somebody else having set the fire, will be penalised. I know that a number of the fires had nothing to do with gorse removal. Some them were sheer vandalism and nothing else. We will deal with such cases on the basis of force majeure. I can give the Deputy an assurance in that regard. However, the converse also applies. If we find that a farmer has deliberately started an uncontrolled fire without notifying the relevant authorities, he will be penalised. It operates from that point of view. I can make it absolutely clear that innocent farmers will not be penalised. The Deputy also spoke about the 50% rule. The Minister has decided that it is a 70% rule. We have fought the auditors in Brussels on this. The Minister's decision is that it is a 70% rule.

What if the Department is overruled by the auditors?

Dr. Kevin Smyth

We will take the consequence of that. We are telling farmers that the pro rata table as set down is what the Minister has just determined.

Are they immune from penalty? I think we need clarity on this.

Dr. Kevin Smyth

I will put it this way - it will be a fight between the Department and the auditors.

Dr. Kevin Smyth

Farmers will not be-----

I ask Deputy Ó Cuív to show some respect to the Chair.

I know. If the auditors win, will the Department continue to refuse to penalise them for taking this? A simple "Yes" or "No" will suffice.

Dr. Kevin Smyth

The answer is "No". The farmers operated in good faith on the 70% rule. It would be unfair of the Department to penalise them.

Dr. Kevin Smyth

Is that clear enough?

Dr. Kevin Smyth

Okay. I will hand over to my colleague, Mr. Harty, on the issue of mapping.

Mr. Thomas Harty

I would like to respond to a couple of the points that were made about maps and changes in areas. Someone already mentioned our use of Bing imagery. We were asked a direct question on whether, as a general principle, a farmer can take the reference areas we put in a map to be fixed and not moveable. I suppose the direct answer is "No" for two reasons, one of which is positive. A farmer can bring land back in and make it eligible, for example through scrub removal or topping. The mulching of rushes has already been mentioned. We accept that the reference area can increase at any time, for example where scrub has been removed or there is an issue with rushes. There is a positive acceptance of the fact that reference areas can increase. Obviously, one cannot make a carpark eligible without ripping it out.

Changes can also be made on the negative side. Members will appreciate that what we are talking about is characteristics-driven. They will also appreciate that if someone closes the gate and walks away from the land, in time the characteristics of that land will be such that we cannot make a payment in respect of it. We are saying that the areas are there. They can go up and down for positive reasons in terms of a farmer who wants to bring land back in. As I have explained, the potential also exists for someone to walk away from a farm to such an extent that the necessary characteristics are not met.

I would like to talk about what we do with regard to imagery. The imagery that was sent out or provided in our recent set of maps was Bing imagery. It will be replaced over time, if I can use that word, because we are required to get new imagery over time. The regulations allow us to try to build in a tolerance to deal with what some members have referred to as parcel shifts, twists or moves that have happened even though the land has not changed, in essence. There is a 2% stability threshold in the regulations to deal with cases in which that issue arises even though there has been no real-world change, in essence. We are going to implement and use that threshold to try to counter or manage the circumstances in which the imagery changes.

I was also asked about the related issue of the red lines expanding and shrinking. That can happen for valid reasons; for example, because the area is changing. As we operate the system, we will endeavour at all times to ensure we do not constantly go back. We have taken on board the criticism that has sometimes been made by farmers to the effect that when we draw the field for a second time, the area has changed. We are endeavouring to build stability into the system. If there is stability on the ground, we are not going to try to reassess it. We will use the stability threshold concept to try to keep the area stable.

A question was asked about the availability of access to the imagery. The imagery that the Department has primarily used over the years is called Bing imagery. It has been mentioned already. It is publicly available, albeit without the red lines on it. If people want to see what we are using, they can use the Bing public portal viewer at www.bing.com. If they put in the relevant townland and scroll around, they will see the imagery on the basis of which we have made the determination. That is publicly available. As it stands at the moment, only the farmer himself or his adviser can actually look at the map for the farmer's own land. Technically, the relevant webpage is www.bing.com/maps. If one searches for any townland and zooms in, one will be able to see what we have used to make our determination. I think I have picked up on the main mapping area-related issues that were mentioned. If there are any others, I will come back to them.

I know that Deputy Barry and perhaps others have questions on maps. If we do it this way, each of the officials who deals with a specific section will be able to answer the questions of relevance to him. Deputies Barry and Kyne have indicated that they would like to come in.

I would like to mention one small thing. It is good to hear about www.bing.com. I had never heard of it. I can see where the officials are trying to get to. I just think we are almost going to the point of instant mapping. There has to be some sort of line in the sand, or time delay, to allow for practicality here. I think the officials are creating a mountain of work for themselves and a mountain of worry for everybody else. Anytime someone has shown me a letter they have received from the Department saying a certain area has been overclaimed by 0.01 ha or something desperately tiny, I have told them to accept it because if there is a review, their payment is delayed indefinitely until the matter is sorted. I have assured them that they do not want to get stuck in a mapping issue. There needs to be some kind of constant here.

Especially in the case of land that is predominantly scrub, every year one will be worried that with the best will in the world one will get it wrong. Getting it wrong - even if one is confirmed to be correct - means that payment is delayed. I ask the Department to consider some form of time threshold, even if evaluations were to be every two years, as this would give people a chance to get this right.

The witness said that the victim of fire is not penalised. Does that mean that there would be a need for Garda reports or reports from the fire services? How is it proved if a dispute arises as to whether a fire was accidental?

Dr. Kevin Smyth

It is an issue of basic justice. There has to be a way of proving that somebody caused the fire. In a situation where a person carried out a controlled burn and accidentally burned down somebody else's land, that second farmer is innocent of this and that is the basis on which the Department would proceed. There is a burden of proof if one is to penalise a farmer; it must be proved that the farmer actually set the fire and did so outside the rules that require controlled burning. There is an onus on the Department to ensure that the evidence is there to prove that the guilty farmer is guilty and also that innocent victims of fires are not penalised.

Is the burden on the farmer to prove that it was accidental rather than the Department to prove that it was done on purpose?

Dr. Kevin Smyth

This can only be done on a case-by-case basis.

I can see it being tied up with Department appeals and the agricultural appeals office.

I think Mr. Smyth answered the question in the affirmative but I wish it to be absolutely clear. This is a particular problem with hill land. The Department has completed and issued its Bing map. It has taken out the rock and the scrub. Allowing that there is no significant change in the land - allowing that the Department did that from the sky and allowing an agricultural officer was to come out and walk the land and decided that parts that had been declared eligible were now ineligible even though the Department had said they were OK for the reference area - will the farmer be penalised for that? That is the big question. I accept that if a farmer has two fields and he stops grazing them and the grass is up and there is no agricultural activity, that is a black and white case. I am talking about hill land where there is no change of any significance but when an agricultural officer walks the hill he may decide that big areas that had been declared from the maps as being eligible, are suddenly ineligible. That is what worries farmers. Can that happen now?

Mr. Thomas Harty

I have already discussed and explained that we are not saying that our reference areas are explicitly correct. I refer to a point mentioned by the Deputy. Is the farmer explicitly required to red-line out these issues and provide the map or is he just required to adjust his claim? The farmer's obligation is merely to ensure that he is claiming the eligible area; he does not have to explicitly map them for us. We would always encourage people to map simply because when they map they often realise that maybe the ineligible feature is larger than they may have thought. The ultimate obligation is for a farmer to ensure that he is declaring only land that is eligible for payment. Putting a reference area on a parcel, as the Deputy said, is carried out in the office using Bing imagery. Dr. Al Grogan has already referenced that it is an office-based assessment.

I refer to one practical example where it turns out that we are wrong and have not taken out enough. This may occur where we look at something from above, assess there is a grazable area within scrub but when we walk the land we see that it is fenced off. The reference areas cannot give that ultimate clearance to say that we can guarantee it is right but within the issues of stability thresholds and the 10% we hope to remove the fact that a farmer would have got stuck by attempting as best he can to identify these features. There is more flexibility in the system but not a guarantee that what we see is the ultimate eligible area because it can change both positively and negatively.

The negative side is the worry because a positive change means the farmer just has more land but does not get paid for it.

Mr. Thomas Harty

A buffer within the system for himself.

When it is negative he gets penalised if it is 3%. Here is my question. The Department does the map and sends out a reference area. It decides that a certain area of heather is grand and it measures 20 hectares. Then the inspector comes out and decides that it is marginally too high and too woody and he takes it out. The farmer winds up with a 20% error rate and that is the end of the grant for the whole year. I think this uncertainty worries farmers because it is very difficult to say exactly say what is the magic height of heather, when it stops being grazable and starts being woody. I think farmers should be given an assurance on a year-to-year basis that the reference area would be accepted as being acceptable. If the inspector thinks it is marginally too high, then it is corrected for the following year. The uncertainty factor is the big problem here. Farmers actually accept an ineligible feature being taken out when they put in the application in good faith and they have accepted the Department's judgment from the sky. The land is accepted as eligible but then an inspector comes out and decides that it is marginally too high. That is what happened in Slieve Aughty. That is when the lid blows off this. That issue needs to be dealt with.

The year 2013 was a salutary lesson. Every farmer thought that once they got the map out every year that these would be inspected and passed and everything was more or less hunky-dory. None of them thought they were ever going to lose payments back over five years as a result. I always think there is a massive difference between a genuine error or a judgment call error and intentional fraud. Taking away a guy's livelihood for an unintentional error because one guy says the heather is high and another says it is low, that is an awful frigging penalty. If this happened in the PAYE sector they would be bloody marching down O'Connell Street.

Mr. Thomas Harty

The Deputy has raised a number of issues. He is correct that the legal basis for the penalty system which we have to work within, does not, unfortunately, distinguish as to whether it was a judgment call. Once the feature is determined to be ineligible, unfortunately, the consequences follow on. We have taken this point and it was on the agenda for simplification. Once it goes above 20% the penalty structure means no payment. It is a ramping up and it can hit people. I refer to the basic issue of whether what we put on the map as being the reference or eligible area, whether that is set in stone and we guarantee it. The manual sets out characteristics. However, many of these characteristics are only to be conclusively determined on the ground. It would be wrong to let a farmer imagine that he or she was conclusively guaranteed the area because we have not been there on the ground in all cases. The manual will now hopefully allow that case of heather and making that call because we work on the basis of the imagery.

I have one question about maps that was not answered. The reference area is now the red-lined areas. Where there were percentage deductions the percentage deduction has now changed. Will the farmers get new reference areas before the closing date for applications? For example, where it was 80% the last time, the farmer could put in 20% and now it is 0%. Where it was 60% it is still 60% but if it is 50% it is now 60% and if 70% it is now 60%. Will the Department reissue the maps where all of those occur and tell a farmer that his reference area is now adjusted and he had better readjust his application because it will have an effect on his reference area?

Mr. Paud Evans

We are discussing land eligibility and the booklet. We must realise that our purpose is to make payments to farmers. For this reason, we must ensure the system we have put in place is controllable and, more important, is controllable in an efficient and quick way that enables us to make payments in the autumn.

Both Deputies referred to the idea of specifying a height for heather. While this is a valid point, if we were to go down the route of setting heights and trying to determine heights on the ground, farmers would not be paid this year and may not even be paid next year. We must bear in mind that the Department wants to make valid payments to farmers as quickly as we can.

On the issue of new reference areas, we have more than 1 million parcels on our land parcel identification system, LPIS. While some of these cover ten fields, more contain only one field or in any case fewer than five fields. We cannot make an ongoing assessment of every parcel as to do so would require an inspection rate of 100%. With such an inspection rate, no issues would arise about anything. We made clear when issuing maps in 2010, 2011 and 2012 that it was a matter for farmers to identify ineligible areas and features, mark them on their maps and submit the maps to the Department.

Mr. Evans misunderstands my question. The left-hand side of the map features red-lined areas of exclusion and the headings "Gross Area", "Claimed Area" and "Reference Area", as well as boxes X01, X02, X03, X04, X05, X06 and so forth. Applicants can then tick off a percentage such as 20% or 30% of a particular area on the map, which would reduce eligibility in the relevant area to 80% or 70%. Does Mr. Evans understand this?

Mr. Paud Evans

Yes.

It is a simple matter of recalibrating the programme that generates the maps in areas of 5%. This recalibration would involve having the full area entered where the area in question is 5%, entering 0% where the area in question is 80% and so forth. This process of recalibrating the computer programme would allow a corrected map of reference areas to be re-issued, as per the Bing system and the new calculation. Many farmers find the calculations required complicated. The Department could make the change required with a flick of a switch and subsequently re-issue the maps.

I am looking at the photograph which I showed earlier. With all due respect to Mr. Evans who stated he is not anyone's keeper, while I understand the amount of work the Department does, many assessments are straightforward. Guidelines are required as otherwise we will have many more cases such as the Derrybrien case. An inspector will visit a site and arrive at a conclusion that may differ from the findings of a planner or farmer and someone else will visit the site subsequently and conclude that the land is ten times worse or better than the inspector concluded. One cannot conclude from viewing a photograph that heather is at ankle or knee height.

Dr. Al Grogan

I will respond to Deputy Fitzmaurice as this issue has arisen a few times. I return again to the evaluation we had to consider when we made the change. The document makes few references to the issue the Deputy raises in respect of farming activity. We have moved away from stipulating that a farmer must have a certain number of animals, whether ten, 20 or 1,000. We want to achieve the objective that the land is such that we can be satisfied that, under an audit, it will meet the requirement of having been maintained in a suitable condition. This wording is staring us in the face.

We provided an evaluation. Since we are moving in that direction, let us recall the change that was made. Until December last year, farmers were required under the good agricultural and environmental condition, GAEC, to maintain a minimum stocking rate. I did not highlight this earlier but the GAEC is now separate from eligibility. When discussing the GLAS we discussed the possibility of including a minimum stocking rate and moving forward from that in terms of the commonage management plan. This idea was set aside on receipt of clarification from Brussels. The Deputy will recall, however, that it was never a minimum requirement and we provided that farmers could stock. As an aside, we are deliberately not mentioning chemicals in view of the risk to water as being highlighted in areas. That is a good point which is not in the document. We purposely decided not to treat it as a management tool.

To return to the analysis of trying to come to a conclusion on the point the Deputy raises, I highlighted in my presentation an area where heather is becoming a little taller. What could we or would we do if we were to visit a farm and find a problem? The farmer could ask us where we measured the height of heather. We will have viewed the heather and may even have measured it using a tape measure. What would 30 cm, 60 cm or 1 m in height look like? Our Northern colleagues opted for a height of 50 cm. This is a relatively low threshold as it would not reach too far up the leg of my taller colleague. If we had to take the 50 cm route that our colleagues in Northern Ireland took, the field shown in the picture would have been excluded long ago. As with many things, one must be careful what one looks for. We did not specify a height, which would be difficult in any case, because we believe it is in the interest of farmers to leave a little discretion. While one could argue this is vague or a case of eyeballing, providing for a little discretion would allow for flexibility in the case we are discussing.

What would I have to do under the proposed model? The Deputy argues that I would have to measure the height. We concluded that in the case of an audit we would have to pre-select the location to measure the height. How would one approach this issue on a random site? Would I allow the inspector on the audit to walk around the area in question? Would the Deputy be happy if he were to do so or would he argue with us about where he should walk?

We would start to sample before going out. It would take a long time to walk across 500 ha of commonage. In that context, we concluded that the best approach was to describe the area in terms of accessibility and whether animals are keeping it. Deputies should recall the wording used is "maintaining the land in a suitable condition". As all speakers highlighted, we do not want to pay on land on which nothing is happening. For this reason, something must be done on the land to maintain it in a state suitable for grazing or cultivation. That is the philosophy behind our efforts to develop the system. We want to make life easier for farmers, controllers and myself when I try to explain to the controllers the path we must weave through the auditor, on the one hand, and the political world we inhabit, on the other. We must also be fair to the citizens of Europe by ensuring money is disbursed in the way they intended. That is the reasonable and rational reason we would not prescribe a height. If I specified a height threshold of 1 m, my auditor friend would describe it as an Irish solution to an Irish problem and I do not believe I would get anywhere with it. If I prescribed a height of 50 cm, this scheme would be thrown out and half the heather in the country would vanish. I rest my case, if I have made one.

The problem arises in respect of mountainous areas. If a farmer has a green field on which he does not do anything for one year, it will go wild with thistles and so forth. This is clearly a case of neglect. Where an area of a mountain is not grazed, however, the reason is sheep selection. In other words, farmers let sheep out on a mountain and they choose where to graze, unlike in Austria and other countries where herds are pushed on to one or other pasture. As the witnesses are aware, farmers let their sheep out and they graze the mountain as they please. They find the bits they like and leave the bits they do not like. The Department has ruled certain areas ineligible, which is fine.

The problem is that the Department, having viewed an area of heather from a height, will decide it looks fine and on that basis the farmer on the ground will decide it is eligible for payment. The risk, however, is that an inspector will subsequently walk the area and decide it is not eligible. If the area of land reclassified as ineligible exceeds 3% of the total claim, the farmer will face a substantial penalty. This is the problem.

If an area of heather on the Bing map, that is, the reference area, is approved by Mr. Harty, for example, and subsequently shown not to be eligible, it could be adjusted for the following year after appeals and so forth. No one would argue with the decision in that case.

It is not a question of a farmer deciding not to graze on a hill.

If the farmer decides not to graze it, that is his or her decision but it is the blasted sheep or cattle, but mainly sheep, that make that decision on a hill. If a farmer has fewer sheep, the Department will not be too fussy about the Bing map or the farmer's basic payment; it is just going for the sweetest grass and the best place to graze.

To be helpful, as Deputy Fitzmaurice said, there is a lot of good land about which this issue does not arise. The Deputy is talking about marginal land. It goes back to the point made earlier that the Department will brief all the advisory services and, I presume, its own inspectors. With regard to the applications, 90% of the time they will be submitted with the assistance of a professional planner who will need to take a lead on this and offer guidance. I appreciate that the officials are trying to allow flexibility. I would consider that photograph to be fairly straightforward. More often than not it will arise in a commonage, although not exclusively, and there may be a plan stating that this forms part of the nature of the terrain and it is part and parcel of the eligible area. There may be a proper vegetation management plan, for which the Department of Agriculture, Food and the Marine officials acknowledged pragmatic protocols with respect to burning should be in place, similar to what is in Scotland where no one can argue about the biodiversity being intact. To take the example of the extreme case of the Burren, a regime was put in place initially which would have damaged the environment because there was not meant to be any livestock grazing during the winter and the early spring when the hazel gets out of control and upsets the entire balance of the ecosystem. It is technically not grazing land for some of the time when it is grazed. It goes back to the mapping and the photograph. It depends on the time of year the photograph is taken, and the fern is probably the best example of that. A common-sense approach is required. The basic point is that the people who will assist farmers in making the application - not all the land will be subject to the 1 million parcels audit under the land parcel identification system - will be very familiar with the guidelines. We could short-circuit many of the concerns people have, and this is a critical year for everyone in terms of setting the base line.

I ask that we would move on. I am conscious that we have not reached the area on the inspections. A question was posed by Deputy Fitzmaurice about rock outcrop. Was rock outcrop always excluded?

Dr. Al Grogan

Yes. I have it on my list with a number of other items and one of them is a rock outcrop. It is difficult, and I purposely showed the shot of the mountain. In essence, it would be very difficult to get an inspector to walk over the tops of all the mountains so we have to use the best mapping and, in many cases, because of cloud cover or whatever, Mr. Harty's team would look at a range of maps to try to get a good impression or good idea of the percentage. I will link that in with the other question members raised in the context of this being out by 1% or 2%. Having seen what we were doing previously and the difficulty in that one would look at it and say it is 7% but I could look at it and say it is 11% - it is very easy to be wrong if there are 100 categories or even only ten categories - the Commission, in its wisdom, said it would change it to five categories. In its case it stopped at 50 and then there is no difficulty. It is likely that an error would be triggered if it is above 50 and that one would be out by a percentage. The term it uses is "repeatability", which is a statistical term that I will not go into, but the repeatability of it is good. It might be like classifying cattle and the difficulties that existed until mechanical means were brought in. The question is how one repeats the measure using a different pair of eyes. By having a smaller number of categories, the chances are that we repeat the evaluation, independent of person. When there is an outcrop of rock, it works fairly well. In terms of rock, I understand we do not have too many difficulties. It gets a bit more difficult with scrub where we are trying to distinguish from an ortho-image the difference between a green this, that and the other. Often when we say it needs ground verification, we have to go to ground to verify.

A member mentioned getting clarification with respect to a bog. Again, there is no issue with a bog that has been grazed but we do not want to give the impression that bog per se is ineligible. It is not agricultural land. Most of us would agree that bog per se is not agricultural land. Where it has been grazed, where someone is on the side of a bog or where it has been cut away and they have rejuvenated it in terms of growing grass or whatever, there is no difficulty. However, to give the impression that bogland is eligible would be dangerous from our point of view. From an audit point of view, for that to appear in a guidance would be dangerous as well. We chose our words carefully. Having clarified it, and nobody has a difficulty with this, most commonages have blanket peat.

The convergence issue was mentioned. That importance of the 2015 measures is that one can consolidate. If people are concerned that they have a problem, and linking it in with Deputy Ó Cuív's question about the need to have a planner, they do not have to have a planner, but we try to make sure they are up to speed on the latest information. The farmer would get whatever skills the planner has in terms of the training they got, but it is not a requirement. However, in many cases, with the online system, farmers use a planner but because the 2015 measures are very important, it is important the farmer's pot of money is put into something that is reliable and sound, and that is likely to be eligible land. That is the only caution we would advise. The Deputy spoke about accommodating it in some way. It can be accommodated if one can manage it with respect to 2015, hence the importance of this document and the importance of us getting the message out. It is unfortunate that it took time but we had many negotiations. We are always asking questions in Brussels and getting answers that can take some time but, touch wood, we got it within a month of getting in the application.

Fencing was mentioned. It is not possible to fence under certain rules. Traditionally, when a person is operating, they are abutting their commonage land and there is no need for fencing. We have concerns about fencing. Members are aware of the issue of leasing, people wanting to access land for nitrate reasons or whatever. Without going into it in too much detail, the members will have a fair understanding of the reason we need to be sure the person who should be farming is farming. Nitrates are an important factor when it comes to audits and controls, which comprise a serious area.

Is there any joined-up thinking with the Department of Arts, Heritage and the Gaeltacht on all this? With all due respect to the witnesses, they do their job, and I understand that fully, but before they arrive, another crowd will have landed out at a farm and will have told the farmer to do X, Y and Z and that he cannot do X, Y and Z. He or she will have complied with that only for the delegates to come along and the person has to adhere to their set of guidelines. It is as if the right hand does not know what the left hand is doing, and it is causing major problems throughout the country. I am not saying it is the fault of the delegates. The problem is that they are the people with the money to pay farmers the single farm payment or whatever. These other people come and tell the farmer what he or she can and cannot do, run off to the hills and are never seen again. That is a problem and it has to be addressed because I see it happening day in, day out.

I appreciate that with respect to the 2015 measures, getting it right is important. With regard to boundaries, which I raised earlier, can Mr. Harty define what he regards as a boundary, especially for splitting crops in arable areas, which was my point? Does the person need poles and wire or-----

Dr. Al Grogan

I would use the word "permanency".

Mr. Harty understands the point I am trying to make.

Dr. Al Grogan

Yes, I know what the Deputy is getting at. "Permanent" means something that is put down into the ground. A plastic electric fence is not permanent but I would say-----

They are not allowed.

Dr. Al Grogan

No. The Deputy mentioned tillage and to give him an example-----

Would wire be acceptable over bailer twine?

Mr. Thomas Harty

Yes, but the terms and conditions go into some more detail on that. It refers to being appropriate to the stock that is present. We would not expect sheep wire to be used where there is cattle. The Deputy mentioned an arable crop. We have found difficulty where there is one field and two farmers declare it. At times we find the tram lines running straight across the land. The Deputy can appreciate that, from our point of view, that shows no sense of a separation and the one sprayer would be used across all the area.

If it is a tillage question, there would need to be a very obvious separation of the two crops and the respective managers. The typical situation in which there is a problem is when one farmer is farming the whole thing.

I get the point. I referred to a situation in which a fence is running with the tram lines. If two farmers split it and they both sowed winter barley, could they run a fence with the tram lines or would they have to leave a physical gap?

Dr. Al Grogan

When the question was put to me, I advised that while one can turn off one coulter, when one turns off a couple of coulters, one should create something that one is declaring upfront before one ever has an inspection. If one knocks off three coulters or does a split on that particular run, one should move the GPS a couple of metres, then one is clear. One should not try to recreate it after the event. If one is drawing a line for a temporary split, the location of the line is not very accurate. My advice is to turn off at least another two coulters.

Could spraying it off afterwards be defined? Dr. Grogan knows the problems.

Dr. Al Grogan

I do not want to recommend using chemicals.

We are getting into a very technical discussion.

It is very important.

Dr. Al Grogan

It is a very real thing rather than just a tram line.

Does Dr. Grogan have something else to say regarding inspections?

Dr. Al Grogan

That word, "inspections".

Dr. Kevin Smyth

Regarding the joined-up thinking, the National Parks and Wildlife Service has welcomed the booklet and commented on it, and we have taken its comments on board. We should move on to the special protection areas, SPAs, and special areas of conservation, SACs, and what is happening regarding Natura.

Regarding the 2008 reference, there were some questions, particularly from Deputy McNamara on the wording of the directive.

Mr. Paud Evans

The provision in the booklet and in the system for Natura land is very important for Natura farmers. As we stated in our document, and as Dr. Smyth said at the start of the meeting, giving a right to a payment means the land appeared on an application form in 2008, the year in which the provision was introduced as part of the CAP health check, it was declared by the farmer as eligible in 2008, and the farmer received a single payment scheme, SPS, payment. It does not necessarily mean the farmer received the payment for that land. The farmer could have declared 100 ha and had only 60 entitlements. This means the land can come into the system for payment purposes. It is associated with a designation. Deputy Fitzmaurice made a very good point about a farmer not being allowed to put a drain in the land, in which case the scrub will spread because of the designation. There are very clear-cut rules regarding this. We can continue to pay on ineligible land in Natura areas under these rules. Deputy Kyne asked what we mean by "ineligible". Ineligible land is scrub and is ineligible under the scheme but is eligible for payment. These are very important points for Natura farmers.

Is there a limit to the areas?

Mr. Paud Evans

No, there is no limit. The land has to have been declared as eligible in 2008 by the farmer, who classifies it as grassland moved to permanent pasture, the farmer is paid in 2008, and the resulting scrub, which is now a feature, is associated with the designation and we can continue to pay the farmer on that scrub. There is no limit to the areas they are in.

We have a right to payments under the single farm payment scheme. Who has said it means it must have been declared in a 2008 single payment?

Mr. Paud Evans

The regulations say-----

They do not. I am reading the regulations, which specify "any area which gave a right to payments under the single payment scheme or the single area payment scheme in 2008". This is not the same as saying an area in question must have been declared in a 2008 single payment scheme application and paid under the 2008 scheme.

Mr. Paud Evans

No.

The area was declared as eligible under the 2008 scheme and the applicant was paid. It is an entirely different matter.

Mr. Paud Evans

The applicant needs to have been paid, and this is the distinction.

It is an entirely different matter to give "rights to a payment" under the single payment scheme.

Mr. Paud Evans

On this basis, the Commission has interpreted that to give "rights to a payment" meant it was on an application, the farmer was paid and the land was declared eligible by the farmer. It does not mean that particular land was paid.

The Commission has stated that the first three criteria must be satisfied to give a right to a payment. Has the Commission also stated that the limitation must have been imposed under a habitat management plan?

Mr. Paud Evans

Whatever is regarded as being associated with the designation.

Mr. Evans has told us that the Commission has interpreted to give a "right to a payment" under the single payment scheme as Nos. 1, 2 and 3 here. Is that the Commission rather than the Department?

Mr. Paud Evans

Yes, and I would have the same interpretation.

That is good to know. Has the Commission said the ineligible area was the result of the SPA or SAC limitations imposed under a habitat management plan? Many people who could not get into habitat management plans were-----

Mr. Paud Evans

I would phrase it as "associated with a designation".

My question is clear. Has the Commission said the fourth criteria here is required, or is it the interpretation of the Department of Agriculture, Food and the Marine?

Mr. Paud Evans

The Commission has said it must be associated with a designation.

Mr. Paud Evans

Yes.

The Commission has said it must have been imposed under a habitat management plan.

Mr. Paud Evans

I would say, associated with the designation of a habitat-----

While I hear what Mr. Evans is saying, it is not what I am asking.

This is not a court of law.

Could Mr. Evans answer the question as to whether the European Commission has required that the limitation be imposed and a habitat management plan?

Mr. Paud Evans

The answer is no.

Is this an additional stipulation being introduced by the Department of Agriculture, Food and the Marine to exclude Irish farmers?

Mr. Paud Evans

No.

Then why is it being introduced?

If land is not deemed ineligible, or the ineligibility has not been caused by the restriction, what is the problem?

The ineligibility could be caused by a farmer meeting the requirements of an SPA or SAC but not doing so otherwise than because he or she was required to do so under a habitat management plan. He or she could have done it under his or her own volition or allowed the lands to fall into a state that would meet the requirements of an SPA or SAC, but not because it was ordered by a habitat management plan. Many farmers in SACs and SPAs-----

A farmer with an SAC or Natura site is subject to a management plan by definition.

Mr. Paud Evans

Yes, in general.

Dr. Al Grogan

It is subject to meeting the actions requiring consent to provisions that are laid out for each designated site. While a commonage management plan might be under GLAS, it is moving towards actions requiring consent, and each site has its own actions requiring consent.

While we did not have commonage framework plans in some parts of Wicklow, there are Natura and SAC sites that have restricted activities imposed on them by virtue of the fact that an SAC exists on the property. This applies mainly to national park land but also to private land. If the area deemed to be ineligible was or is part of an SAC, as determined in 2008, I presume the payment to the farmer is the same as any farmer - being defined as a farmer who is entitled to draw down any sort of payment - must have been paid, in this case in 2008. By definition, a Natura site puts those restrictions on activity regardless of whether it is part of a plan. Am I wrong?

In respect of my understanding of an SAC, it was slightly different in the commonage areas where there were commonage framework plans. Other than that, in an SAC a person was given a list of notifiable actions in order that if he or she wanted to dig in a quarry, he or she had to get permission. In most cases, it did not impose any farming regime. The list indicates that if a person wants to do certain things, he or she must notify the Department to get permission, but other than that, he or she is as free as a bird.

On Deputy Michael Fitzmaurice's point about how a person could not drain land and how the lack of drainage caused land to become ineligible, one could not drain land, regardless of whether there was a plan.

That was because if a person wanted to drain land, he or she had to get permission and if he or she was refused, he or she could not drain it. In most cases a person was not refused permission to do anything. It was indicated he or she had to notify the Department and the National Parks and Wildlife Service, NPWS, if he or she wanted to do any of these things, including draining. If the Department or the NPWS said "No", he or she could not do it, but until he or she asked them, it was not stated he or she could not do it.

One example is Cloneen near Longford where there is an SAC raised bog. There is no management plan for that land and the problem relates to the raised bog. It has been developed into green land on which one can cut the meadow. Those involved are now being refused permission to clean a drain. The land is getting worse because of this problem, which is why I say one crowd is-----

The land has been drained and turned into grassland?

Yes. It is an SAC raised bog, even though a person can cut silage on it.

Were the actions taken for it to become green fertile land notifiable actions?

No, it was done years ago. The Department would have given grants-----

It is part of the one area. Will Dr. Smyth clarify the point?

Dr. Kevin Smyth

I have heard the points made by various Deputies. We should look at this issue again and come back to the committee. Is that fair enough?

The introduction of clear criteria is welcome, as is the fact that the Department will re-examine this point which has many implications in the area of Slieve Aughty. Many farmers in the area had management plans, while others were left outside at the time, but they were still involved in the hen harrier SAC. The legal criteria are still the same. It is the same regulation - Council Regulation (EC) No 73/2009. Will these criteria be used in appealing decisions made in the past? It is still an interpretation of the same law and the criteria are exactly the same.

Mr. Paud Evans

We will have to look at that matter.

Are natural heritage areas, NHAs, included or excluded?

Mr. Paud Evans

They do not come under the birds or habitats directives.

If a person's land was ineligible because he or she had to comply with the rules applying to an NHA and a commonage framework plan, it cannot be included.

Mr. Paud Evans

No.

That seems a little unfair. Will the Department look at that issue also?

Mr. Paud Evans

We would have to change the European regulation, but we will have a look at it.

Dr. Kevin Smyth

We will look at the three points raised. Does the Chairman want Mr. O'Shea to deal with-----

No. The other question from Deputy Noel Harrington concerned the penalty arrangements. A total of 33,000 parcels of land were subject to inspection and there were 10,000 appeals. Some people have already agreed to the penalty arrangements. The Deputy more or less asked whether the criteria had changed in such a way as to materially affect the determinations.

Dr. Kevin Smyth

The answer is no because it has been through the appeals process. We have carried out verification checks, the aim of some of which was to reduce the penalties imposed or eliminate them in some cases. There is no basis on which to revisit them.

As Mr. O'Shea was expected to comment, I presume he had something to say.

Mr. Lorcan O'Shea

A question was asked by Deputy Éamon Ó Cuív about areas eligible for the GLAS scheme vis-à-vis areas eligible for the basic payment scheme, BPS. In respect of the GLAS scheme for commonage land only, areas deemed to be ineligible under the BPS will be included for payment under the GLAS scheme. Hard features will be excluded. The commonage data set which Mr. Harty has prepared contains the area for which payment will be made. It is not necessarily the same as the BPS reference area.

That is the point we are trying to raise. There is a gross and a net area, but there may be some land in between that can be added in the case of the GLAS scheme. The same applies in the case of Deputy Tom Barry's area in respect of ecological focus areas, EFAs. There may be orchards that are excluded from the reference area for land usage. Could they reasonably be added as part of an EFA?

Mr. Paud Evans

Deputy Éamon Ó Cuív mentioned greening in the context of EFAs and paying for scrub land under the BPS. One of the things I can say about greening, having been very much involved in the past 18 months, is that in arable country there is greater emphasis on hedgerows than ever before such that it has a positive impact.

The Deputy mentioned EFAs which in general are very restricted. One can have land being used for the production of protein crops, cash crops, short-rotation coppice and forestry which has been eligible since 2008. Apart from coppices - a group of trees on less than 0.3 of a hectare and which must be situated on or adjacent to an arable parcel, hedgerows, drains and buffer strips - there are no other ineligible areas that can be counted in the case of greening. It is a very restricted provision that is very clear on the different types of area or landscape feature that can be included. Unfortunately, there is no further scope for us.

I wonder about the logic behind it. It is about the love of nature and farming and they then start to cut the ribbons as soon as a person does it. I do not get the Europeans; I do not understand their logic. They come and drool over the mountains, but they do not want to pay a few bob for them.

Mr. Paud Evans

I cannot say I disagree with the Deputy.

Dr. Kevin Smyth

All I can add is "welcome to my world."

Regarding NHAs eligible for-----

Mr. Lorcan O'Shea

I think that point was also raised by Deputy Eamon Ó Cuív. Under the rural development regulation, one can have a Natura 2000 or an agri-environment measure. One can have both, but we have traditionally operated it as one scheme because there is one farm and it is more practical to operate it under the umbrella of the agri-environment measure. Many member states do this. Under the regulation, SACs and SPAs, under the birds and habitats directives, and areas where a management plan is in place under the water framework directives are the only areas that qualify as Natura 2000 sites. An NHA carries a national designation and is not recognised under the regulation.

Can we drop the national designation? It seems for farmers there is pain but no gain.

I have dealt with SACs and NHAs. We were told on numerous occasions that when adjustments had to made, clearance had to be obtained from the European Union.

One is subject to the same notifiable actions on an NHA as on an SAC or an SPA. Why is there a differentiation, notwithstanding the fact that the people concerned being left with harsh conditions under which they are supposed to work? If one went to the European Union to ask about the NHAs, it would be said it had to give its blessing for any adjustment. I would look for a lot of blessings, but that is what officials here say. Let us nail this one down. People involved in NHAs are deserving.

There was a relevant court ruling in Brussels that took the Department hugely by surprise. It was ruled that the NHA restrictions stuck and that it was not just a matter for national governments. I am sure if the delegates check in the Department, they will find the relevant ruling. On that basis, it will be possible to get the NHAs in under the same thing as SPAs and SACs. My understanding is that the European Court of Justice ruled that NHAs were subject to the same restrictions.

Is it possible to have that matter clarified?

That was the excuse given for forcing people with bogland in NHAs to stop cutting turf. When we wanted to take this out, there was a European Court of Justice ruling that we could not do it under national legislation as European legislation did not permit it. European legislation cannot stop us doing something while also stating a person will not be paid. It is not fair.

It is an interesting point. Does Mr. O'Shea have anything to add?

Mr. Lorcan O'Shea

No. As Dr. Smyth says, we will revisit the issue.

Does Mr. Evans have something to add on the last issue?

Mr. Paud Evans

No. Mention was made of land not claimed for in 2008 and it was asked whether it could now be brought into the system.

That would happen under new ownership or management.

Mr. Paud Evans

There is provision for new entrants. We have lots of new entrant applications under the new regime. Provision will also be made in the next few weeks for the so-called Scottish derogation which relates to people who were farming in 2013, including those who had submitted an application because they were participating in the REPS or a similar scheme, as well as those who had not submitted an application. As such, new land will be brought into the system. I note that Deputy Éamon Ó Cuív raised the question of farmers increasing their reference areas. By all means, if their land is eligible, they did work in recent times and want to restore things, they should declare it. The number of entitlements will be based on the position in 2013 or 2015, whichever is the lower. It is very important that farmers have a buffer. If they were allocated 50 entitlements in 2015, they are declaring 60 hectares and if there is an issue about land subsequently, any resulting reduction will be based on the number of entitlements held or lands declared, whichever is the lower. That provides farmers with a buffer, which is very important for them.

There is also the issue that if farmers are converging upwards, it lowers their baseline a little. Even if one is above the national average, it reduces the amounts which brings one nearer to the original figure.

We have given this issue a fair hearing, by both members and non-members. I will call them non-members rather than visitors. I thank everybody for what I hope has been an engaging discussion. I also thank the officials for coming. They will appreciate that, from everybody's point of view, there was a benefit in having ongoing engagement as the documents only arrived this morning. I hope that they can come back to us on the issues that have been raised and which need to be clarified. I am not saying we will have to assemble everybody again, but if Dr. Smyth, Dr. Grogan and Mr. Evans want to come back to clarify matters, we will be more than happy to facilitate them.

This has been one of the more productive meetings. We have received more answers at this meeting that we did at many meetings with the Department. I am grateful for this as some issues have been clarified. Where issues have not been clarified, we look forward to having them clarified.

I thank members. We will not have a meeting next week. We will adjourn sine die as I am not sure when the next meeting will be scheduled.

The joint committee adjourned at 6.15 p.m. until 2.15 p.m. on Tuesday, 12 May 2015.