JOINT COMMITTEE ON COMMUNICATIONS, NATURAL RESOURCES AND AGRICULTURE debate

EU Directives: Discussion

Chairman

Today we will have a discussion on the draft guidelines under the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 and the Planning and Development (Amendment) (No. 2) Regulations 2011. I welcome Mr. Eddie Downey, deputy president, Irish Farmers Association; Mr. Pat Farrell, chairman, IFA environment committee; and Mr. Thomas Ryan, executive secretary, IFA environment committee.

Witnesses are protected by absolute privilege in respect of the evidence they give this committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to 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 asked to respect the parliamentary practice to the effect that, where possible, they do not criticise or make charges against a person, persons or an 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 call on Mr. Downey to make his opening statement.

Mr. Eddie Downey

I apologise for the absence of the president of the Irish Farmers Association, Mr. John Bryan, who is out of the country. He is in Brussels working on the single farm payment and related issues.

I thank Deputies and Senators for giving us the opportunity to address the joint committee to outline the key issues which remain unresolved in the implementation of the land improvement regulations. I am joined by Mr. Pat Farrell, chairman of the national environment and rural affairs committee of the IFA, and Mr. Thomas Ryan, executive secretary of that committee.

As members of the committee are aware, agriculture and the agrifood sector are playing a key role in Ireland's export-led recovery. The positive growth in the sector in 2010 has continued into 2011, with output growth in primary agriculture and export growth in the food and drink sector far outpacing growth in the rest of the economy. However, this growth and the 300,000 jobs agriculture and the food industry support will only be sustained if the sector remains competitive. To this end, it is essential that implementation of the land improvement regulations does not add further costs, bureaucracy and an administrative burden to farming.

The association acknowledges the considerable work carried out by the Minister for Agriculture, Fisheries and Food, Deputy Simon Coveney; the Minister for the Environment, Community and Local Government, Deputy Phil Hogan; their staff and officials in the European Commission during the summer. This work has resulted in a considerable improvement on the thresholds initially proposed for screening and the completion of an environmental impact assessment.

Significant concerns remain regarding the threshold levels. The first is the timeframe that the threshold levels apply for, or the cumulative period as it is called. The guidance suggests that the thresholds are the areas, or lengths, of works undertaken in any one year or the sum of such areas over a five year period. The IFA proposes that threshold levels should be applied on a year-to-year basis. This is based on the assumption that crop regeneration will take place within a 12 month period on the working area and no environmental loss will occur.

An anomaly has also emerged regarding the interpretation of the area of lands being restructured by the removal of field boundaries. In the regulation a farmer must apply for screening above 5 ha. However if re-contouring is taking place as part of this restructuring then the screening threshold drops to two hectares. We propose that in situations where farmers are doing a combination of re-contouring and restructuring works on the same parcel of land, the higher threshold of 5 ha should apply.

The current consultation process which the Department of Agriculture, Fisheries and Food has put in place is an important measure in which the IFA will fully engage to ensure a level of logic and common sense is applied to the implementation of the regulation. The basic guiding principles which underline the association's views regarding this regulation are as follows: any farmer who wants to carry out necessary farm maintenance must not be restricted or forced to apply for consent to do the work; a clear understanding of the difference between wetland and wetlands must be provided; an appeals process must be put in place, when a farmer is refused consent to complete land improvement projects; serial objectors must not be allowed to prevent farmers from carrying out important farm improvement works; and farmers that commenced land improvement works, in advance of the introduction of the legislation must not be penalised.

The IFA believes farmers must not be required to apply for consent to complete the following basic farm maintenance: the restoration of lands to their original use; the removal of scrub; and the replacement of existing drainage networks. During the 1970s substantial land improvement works took place as part of the farm modernisation scheme, the western drainage scheme and the cross-Border drainage scheme. Farmers carried out these improvement works and adhered to standards and specifications set out by the Department of Agriculture, Fisheries and Food. Over time some of this drainage has broken down and requires replacement. The IFA considers it unreasonable that the Department would now request a farmer to fulfil an unnecessary bureaucratic procedure of applying for consent to carry out repairs to drainage works which were originally grant-aided by the same Department.

The proposed extension of drainage activity into the consent process on non-designated lands represents a designation by default and forms the basis for a justifiable claim for compensation. The IFA proposes farmers should not be obliged to seek consent from the Department where repair and replacement of existing drainage systems takes place. In addition, the association proposes that consent should not be required to restore lands to their maximum potential and original use.

Considerable confusion exists regarding the definition of wetlands, particularly given the new more onerous planning permission obligations introduced. The current definition of wetlands is too subjective and should be replaced with the definition agreed with the Department of the Environment, Community and Local Government for the purpose of the implementation of the habitats directive. Therefore, the IFA proposes the definition of wetlands should read as follows:

The area of land along the river which would be expected to flood for a period of some-time in the course of a normal year. The Department will use the best and most up-to-date information available in this regard.

A refusal by the Department of Agriculture, Fisheries and Food to grant consent to carry out re-contouring, restructuring or general farm improvement represents a designation of land and will limit and reduce the future productivity and margin return per hectare. The IFA proposes an appeals process is put in place, similar to the special area of conservation appeals board which allows a farmer to appeal an unsatisfactory decision by the Department. The appeals process should be limited to the direct landowner affected and the chairman of the appeals board should be at liberty to make recommendations regarding compensation for loss of productivity and margin.

Vexatious objectors should not be tolerated. In Food Harvest 2020, the national strategy for the development of the agrifood sector, industry leaders identified the potential of agriculture to increase farm gate output by €1.5 billion and to grow our export value to €12 billion. The achievement of these targets requires planning and expansion by farmers. This legislation provides scope for vexatious objectors to frustrate good and logical farm improvement works. We propose that serial crank objections must not be allowed; observations should be restricted to State bodies; an appropriate fee must accompany any objection; and the objector must be directly impacted by the proposed works.

Farmers must not be penalised retrospectively. The thresholds contained in the regulations became effective on 8 September 2011 and since then rainfall in September was above average almost everywhere, with the west and midlands areas receiving the highest percentages above normal for the time of year. The highest rainfall totals were recorded in Belmullet and the Valentia Observatory, which both recorded their wettest September since 2005 receiving 173% and 128% of their long-term averages, respectively. The poor weather has left land inaccessible and has resulted in many farmers not finishing work which commenced before the legislation was enacted.

We propose that farmers who had commenced land improvement works in advance of the introduction of the legislation must not be penalised retrospectively. Other matters which deserve consideration include a requirement that the Department of Agriculture, Fisheries and Food would deliver a decision to grant consent within a period of four weeks; the removal of species-rich grassland from the definition of uncultivated land or semi-natural areas; and ensuring farmers can cut turf on their own land without having to apply to county councils for permission.

I thank the committee for its attention and seek its advice and support to make this legislation workable and remove any unnecessary bureaucratic burden.

Chairman

I thank Mr. Eddie Downey. I do not know if Mr. Farrell and Mr. Ryan want to make any comments. The witnesses are going to the Commission office at 1 p.m. We hope to conclude the meeting at 12.30 p.m. There are two statements, one each from the Department of Agriculture, Fisheries and Food and the Department of the Environment, Community and Local Government. We wanted to give members an adequate chance to be informed and felt the witnesses should provide an overview at the start of the meeting because it would be helpful. We discussed this issue at length two weeks ago and sifted through the main items.

The fact there is no appeals process at the moment and the definition of a wetland were discussed. We have a list of other areas of concern, such as the definition of "intensive" and "semi-natural". Many areas are vague and guidelines need to show tolerance and common sense.

Senator Pat O’Neill

We discussed this matter at length. We hoped the Department would provide a definition of wetlands today. Could Mr. Downey expand on wetlands? He referred to an area that floods for some time in the course of a normal year, which could mean anything from one hour to a month or six months.

Mr. Eddie Downey

It means land along riverbanks that floods in a normal year.

Senator Pat O’Neill

We all know land that floods for a few hours. Would Mr. Downey define it as a wetland?

Mr. Eddie Downey

It is the definition the Department of the Environment, Community and Local Government is currently implementing. This is, in effect, because of the implementation of the Habitats Directive, about which there seems to be less confusion than about the present definition of wetlands. It confines the understanding of wetlands to land along the banks of rivers. The most significant concern among members of the Irish Farmers Association at present is whether water rising in the middle of a field makes that field wetlands. Based on the definition that is already in place and being implemented as part of the implementation of the Habitats Directive, it does not. That definition does not provide the full clarity we had hoped for but it goes some way towards providing a reassurance and a better definition of wetlands, and it is already in practice and accepted for the purpose of implementing another directive.

We have a definition that is already working and is effective. It has been in place since 1997 and provides much greater clarity and less ambiguity than we currently have. We are hoping that the logic that saw that definition being accepted in 1997 would also apply here.

Senator Brian Ó Domhnaill

I apologise to members of the IFA for my late attendance. I travelled from Donegal this morning, but I wanted to be here. It is important. The wetlands proposals are more than mere proposals. They were signed by the Minister on 8 September and subsequently circulated to all local authorities. Local authority planning sections must take cognisance of these proposals when deliberating on planning applications. The consequences are already having implications for farmers.

The Department's recommendations to reduce, for example, the development threshold from 20 ha to 0.1 ha, which is a quarter of an acre, along with the reduction of the threshold for mandatory environmental impact assessments, EIAs, for drainage and reclamation from 20 ha to 2 ha, have far-reaching consequences. Common sense must prevail here. The Department is making proposals but it must listen to the submissions being made. I hope we have an opportunity to question departmental officials today. It was worthwhile hearing the IFA presentation before we hear from the officials from both Departments, so that we can question them.

A number of years ago, the Department of the Environment and Local Government proposed that a special area of conservation, SAC, would cover 500 metres each side of the River Finn in County Donegal. The area was reduced to 30 metres, because common sense prevailed and people listened. If that protocol is followed in this case we may achieve something.

The Departments of Agriculture, Fisheries and Food and Environment, Community and Local Government seem to be trying to recreate the moon. They are going a step too far. There is already a definition of wetlands but the Departments are extending it to cover more ground. We do not know the full implications, in terms of the lands to be zoned as wetland. There is a lack of information in this regard. We know what wetland is, but what lands will the Departments or local authorities define as wetland in each geographical catchment? That is the alarming thing which is frightening many farmers and landowners at present.

Thank you, Chairman, for the opportunity to say a few words.

Chairman

I thank Mr. Downey, Mr. Farrell and Mr. Ryan for attending today. You are welcome to stay in the Visitors Gallery for the remainder of the meeting.

I welcome Mr. David Walsh, principal officer, and Mr. David Walker, assistant principal officer, from the Department of the Environment, Community and Local Government, and Mr. Bill Callanan, senior inspector, and Mr. Tony Reid, assistant principal officer, from the Department of Agriculture, Fisheries and Food.

I remind witnesses of the position regarding privilege. You are protected by absolute privilege in respect of the evidence you are to give to the committee. However, if you are directed by the committee to cease giving evidence in relation to a particular matter and you continue to do so, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given. You are asked to respect the parliamentary practice to the effect that where possible you 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 have already been reminded of the position regarding privilege.

We will hear both opening statements, because they are interlinked, and then proceed to members' questions.

Mr. David Walsh

Thank you, Chairman, and I thank the committee for extending an invitation to the Department and facilitating a discussion on the draft guidelines, which have been published for public consultation in the context of the Planning and Development (Amendment) (No. 2) Regulations 2011, which were signed by the Minister for the Environment, Community and Local Government on 8 September.

These new regulations, together with the new European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 which establish a new screening and consent system under the Department of Agriculture, Fisheries and Food, have been introduced primarily in response to a judgment of the European Court of Justice in Case C-66/06 which found that Ireland's system of environmental impact assessment, EIA, screening for certain categories of agriculture related projects was over-reliant on size thresholds and did not take other relevant criteria, such as the cumulative impact of development, location relative to sensitive sites and so on, into account.

We have been engaged with the Commission over the past two years since the judgment in developing an appropriate response to the European Court of Justice, ECJ, findings in terms of reducing both EIA and planning exemption thresholds for the categories of activities cited in the judgment and in putting in place a legal and administrative response that can be implemented effectively and efficiently by the farming community and planning authorities.

Notwithstanding the progress made, in June of this year the Commission announced that it was referring Ireland back to the European Court of Justice for failing to implement the court ruling. The Commission is seeking that the court impose a lump sum fine of more than €4,000 per day for the period since the first court ruling, 20 November 2008, which would equate to €4.2 million, as well as a penalty payment of more than €33,000 per day, the equivalent of about €12.5 million per annum, for each day after the second court ruling until the infringement ends.

In framing our defence to this new case it was vital that we finalise Ireland's legislative response as a matter of urgency, to fully address the ECJ findings and minimise the risk of fines being imposed. Both from a reputational and financial perspective, there is much to be lost if we fail to fully embrace all aspects of the European environmental directives to which we must adhere.

Accordingly, in response to the court's findings, the new Planning and Development (Amendment) (No.2) Regulations 2011, which were discussed last July at the Joint Committee on the Environment, Transport, Culture and Gaeltacht and subsequently approved by both Houses of the Oireachtas, have transferred responsibility for most of the activities covered by the judgment, such as the restructuring of fields and removal of boundaries, the use of uncultivated land or semi-natural areas for intensive agriculture and normal field drainage works, to a new separate consent system to operate under the aegis of the Minister for Agriculture, Fisheries and Food.

The only element of the judgment being retained within the planning system is on-farm development activity that impacts on wetlands. Given the environmentally sensitive nature of wetlands and the potential for even minor development works to have a significant environmental impact, the new regulations now set an exempted development threshold, that is, the threshold above which a planning permission and screening for EIA is required, of 0.1 ha or 1,000 square metres, thus allowing minor works such as access works to take place on wetlands without the need to seek planning permission. The mandatory threshold for EIA of drainage of wetlands has been reduced from 20 ha to 2 ha, in line with UK and Northern Ireland thresholds.

The Commission has cited numerous instances where significant damage to the environment has occurred on wetlands even at a very small scale, for example, where the lands are drained by a small ditch and this severely impacted on the local environment. In our discussions, it was concluded the only way to fully provide for EIA screening was to set the threshold at a level that would exempt only de minimis activities.

In making these regulations, the Minister, Deputy Hogan, indicated that the collective ambition was to meet our compliance requirement with the EIA directive and to facilitate reasonable activities by farmers in these areas, while also protecting our valuable environmental heritage. The changes to the legislation strike a balance between implementing fully our requirements under the directive and the need for a sensible approach to protecting our surrounding environment from the effects of development. Our response combines the reduction of appropriate thresholds for both mandatory EIA and planning exemption with a demonstration of how our planning system, natural and archaeological heritage and farm payments systems are collectively assessing and managing sub-threshold developments in order to protect the environment.

To facilitate a clear understanding and consistent implementation of the new legislative provisions, both Departments have prepared draft guidance to assist and advise planning authorities, farmers and other interested parties as to what issues and considerations should be taken into account when screening the type of projects referred to for EIA, including sub-threshold assessments.

In shaping the draft guidance on drainage and reclamation of wetlands, the Department has consulted with the National Parks and Wildlife Service. It is hoped that the wider consultation with key stakeholders including the farming bodies, planning authorities, environmental NGOs, this committee and any other interested parties, will help to identify best practice examples of which matters to consider when considering new development or activity on wetlands. The closing date for receipt of submissions is Friday, 21 October and all submissions will be assessed in the context of finalising the guidelines soon thereafter.

Chairman

I invite Mr. Callanan to make his presentation.

Mr. Bill Callanan

I thank the joint committee for this opportunity to discuss the regulations introduced to address the European Court of Justice judgment on Ireland's transposition of the environmental impact assessment directive.

Mr. Walsh has already provided the committee with details of the Planning and Development (Amendment) (No. 2) Regulations 2011. I propose to provide an outline of the European Communities (Agricultural Environmental Impact Assessment) Regulations 2011, introduced by the Minister, Deputy Simon Coveney, on 8 September 2011, to address the court judgment.

Prior to the introduction of these two sets of regulations, all the activities covered by the judgment were subject to the planning system. With the exception of the drainage and reclamation of wetlands, all other activities are now regulated by this Department. The Department of Agriculture, Fisheries and Food regulations provide for a screening and consent system that will not only satisfy the requirements of the directive but will also provide a practical and workable solution for farmers.

It is important to clarify why these regulations have been introduced. They are not there to hinder development works in agriculture. They have been introduced to ensure that before certain activities are carried out above certain thresholds, as outlined in Appendix 1, they are screened for their environmental impact. Activities under the thresholds set out in the regulations that do not have an adverse impact on the environment can proceed without having to be screened by the Department of Agriculture, Fisheries and Food. Above these thresholds, farmers will have to apply for screening to decide whether the proposed activity can proceed or if this will require an environmental impact assessment to be carried out. There will be no application fee involved for such screening applications. It will be a relatively straightforward process and each application will be adjudicated on a case by case basis in a timely manner taking into account the relevant criteria outlined in the directive. I envisage a turn around time for applications of between four and six weeks.

Mandatory environmental impact assessments will only be required for larger projects which are above specific thresholds set out in the regulations. Where the Department decides that the activity may have a significant effect on the environment, the person carrying out the activity must apply to the Department for consent. The consent procedure entails submission of an environmental impact or Natura impact statement, as appropriate. Public consultation and consultation with prescribed bodies is provided for in the legislation, in compliance with the EIA directive.

The regulations will be underpinned by a comprehensive guidance document, a draft of which has been published for public consultation. The closing date for receipt of submissions on the draft guidelines is Friday, 21 October and all submissions will be assessed in the context of finalising the guidelines soon thereafter. I am confident that we have a workable solution which will minimise the administrative burden on farmers, keep the process outside of the planning system, with the exception of drainage and reclamation of wetlands, and also ensure that Ireland should not be open to the imposition of very large daily fines for non-compliance with the European Court of Justice finding.

The document submitted to the committee has an appendix showing the thresholds.

Deputy Éamon Ó Cuív

I accept the European Court of Justice judgment but I am very concerned about the significant cost of compliance which has been imposed by Europe. I am also concerned regarding what is called the precautionary principle that seems to be taken at every level from the Department to the local authorities or to officials. The attitude seems to be that if there is any doubt that it might be needed, then it should be done because it is only the poor old farmers who will be paying the cost of all this environmental screening and so on.

I ask the delegation to clarify whether there is a legal definition of "wetland" and what is meant by it. At present most of the country is a wetland. Have the Departments mapped out what is defined as a wetland? Could a piece of land not considered as a wetland today be considered as a wetland in a couple of years because the goal-posts are changed? In my experience of this kind of situation those involved start off with good intentions with a promise that it will not be too rigorous but there is an inexorable process up to the point where the ordinary person is spending money on screening which then results in a doubt. How does this affect Natura 2000 sites? Is there a difference between Natura 2000 sites as regards fencing and so on and non-Natura 2000 sites, or is it all the same as regards screening and environmental impact assessments?

The Departments say that access works do not require planning permission. I refer to situations in the past such as a small forestry road and a grant but the individual is told to procure a letter from the planning authority to state that planning is not required. Of course, trying to procure a letter to say that planning permission is not required is as difficult as obtaining planning permission because there is no statutory limit on the time the planning authority can take to inform the applicant that planning permission is not required. In many cases where planning permission is not required, it would be quicker if it were required because it takes so long to get the letter from the local authority. We need to avoid all these pitfalls because matters are not as simple as the submission suggests.

The consent system in the Department of Agriculture, Fisheries and Food will take four to six weeks. There is a statutory objective of four months for An Bord Pleanála to make decisions but it can take 18 months. Will the Department consider amending the regulation to state that in the event of the consent not being forthcoming within six weeks, it will be given by default, as in the planning system? In other words, if the Department cannot process it within six weeks then it is its problem and not the punter's problem. Every experience of mine going back 30 years and longer, of dealing with public authorities, tells me that the time is extended and it is not worth the paper it is written on because it will not happen within the period of four to six weeks. Why is it not written into the regulation that the decision, like a planning decision, will and must be given within six weeks and, if not, it will go by default? That would put the onus on the Department to do its job in an efficient and effective manner. The only exception should be where further information is sought, in which case the clock would stop until it is provided. Anything less defined will once again leave farmers open to the difficulty of waiting an indeterminate period for a decision.

To summarise, we require a clear definition of wetlands. I asked about access works in terms of a possible conjunction with any other grant scheme and whether it will be a requirement to secure a letter indicating the exemption from planning. I am very concerned about the turnaround in that I am not confident it will happen in four to six weeks. The Department should put its money where its mouth is in this regard by writing that undertaking into the regulation.

Deputy Michael Colreavy

Perhaps it is because I am a first-time Deputy but I confess that I remain confused on this issue. It seems to be a case of closing the stable door after the horse has bolted in that the guidelines have already issued to local authorities and planning authorities, yet we are here discussing definitions. While I understand that the Department officials are working from a script, it is a pity they were not here to respond to the points raised by the IFA delegation.

I share Deputy Ó Cuív's concern that the definition of wetlands seems very loose. I would have liked to have seen the evidence on which the EU based its determination that Ireland was in breach of its obligations. Perhaps that evidence is available to members of the committee but I have not received it. I would have liked a discussion of the role of local authorities in terms of environmental protection and their activities in that regard. I had hoped for information on the issue of inadequate infrastructure, the impact it has on the environment and whether and how that can be taken into account. I would have liked details on the steps being taken by other member states in adhering to EU environmental directives. None of that information is available to me, which makes it difficult to discuss these issues.

Chairman

For the Deputy's information, the court judgment was circulated to members.

Deputy Michael Colreavy

I have that document, but I do not have the examples of bad practice that were behind the court judgment. Nor do I have examples of good or bad practice, as the case may be, by other member states. As I understand, that information has not been made available to committee members.

None of us wants a situation where farmers, who have done a good job as custodians of the land for centuries, are put through an administrative nightmare of box ticking in order to satisfy an official somewhere. We do not need or want that and nor does Europe. The points made by the IFA delegates this morning and previously are reasonable and should be incorporated into these proposals. However, given that the guidelines are already issued, I do not understand how our discussion can have any influence.

Chairman

They are draft guidelines, but I take the Deputy's point. We will ask the officials whether local authorities must have regard to draft, as opposed to finalised, guidelines. That issue has been raised several times.

Deputy Thomas Pringle

I thank the officials for their presentation. Like Deputy Colreavy, I am concerned that the regulations have already been passed by the Dáil. As such, I wonder how much scope there will be within the public consultation to amend them in any way.

In regard to the timeframe for decision, the delegates indicated it will be in the range of four to six weeks. That should be made part of the statutory instrument so that farmers can be confident of a turnaround within six weeks. Even with the best will in the world these types of processes tend to run on and before we know it, it will be taking three or four months or longer to make decisions. In terms of the definition of wetlands included in the explanatory document, there is a reference in respect of flood plains to "permanently or periodically". Will the delegates clarify what is meant by "periodically"? Does it refer to one day, one week, one month or something else? What impact will the regulations have on farmers cutting turf on their land holdings in respect of drainage and the definition of wetlands?

What is the situation in regard to works that may have commenced before the regulations were introduced and which are not yet completed? Is there scope to reduce the cumulative time period of five years, which could have a significant negative impact? In the case of activities which are under the threshold but which may nonetheless have a significant effect on the environment, there is a possible requirement for screening but it is at the discretion of farmers themselves to apply. A person might genuinely do something on the understanding that it will not breach the threshold only to find it has a greater impact than was anticipated. Will sanctions be imposed on such persons?

Deputy Pat Deering

I welcome the officials. Most of the members of this committee come from rural areas and we are all seeking practical solutions to the challenges that present. This proposal was signed off on 8 September and the consultation process will continue until 21 October. What happens in the interval? If somebody started work in early September, for example, when the weather was good, will he or she be liable for penalties? That must be clarified.

What is encompassed by the term "farm maintenance"? I understand what it means from the perspective of a farmer working the land but does it have a more convoluted meaning under the directive? In the case, for instance, where a drain bursts in a field and it is very wet for several weeks, that is farm maintenance in my opinion. However, is it such under the directive?

In regard to the five-year cumulative period, in the coming years, especially given the advent of Food Harvest 2020, farmers will be seeking to get every available piece of land up to the required standard in order to cultivate more produce. If we cannot have leeway in this regard, we will be in serious trouble.

I also have concerns about the timeframe in which decisions will be made.

Mr. Callanan referred to a period of four to six weeks. That can be a very long time, particularly at the end of the year when certain work might need to be done. If there is a spell of wet weather, for example, one might lose four to six weeks. When permission has been granted, for how long will the actual consent last? Will it be indefinite or will a time limit apply?

The regulations do not appear to make provision for an appeals process. If the Department was to refuse to grant consent, what would be the next course of action open to a farmer? Would he or she be obliged - as has been the case in recent times - to refrain from carrying out maintenance work? It is important that there be an appeals process in respect of refusals to grant consent.

Anyone could argue that the Department's interpretation is way more constrictive than what was intended under the law. That is the basis for our concerns. On each occasion a Department informs a committee that a definition is nice and tidy and that there is no cause for concern - I have experience on both sides of the fence in this regard - the NGOs tend to come along and push the envelope. When I served as a Minister of State at the former Department of Arts, Heritage and the Gaeltacht, on several occasions we thought we had defined the limits. However, each time we were dragged back, the definitions were reconsidered and the European Court of Justice took the decision to widen the limits. The definition to which Mr. Walsh refers covers the entire land area of the country and someone will make that argument sooner rather than later.

Chairman

Will our guests clarify whether the final guidelines will provide a clear definition of what constitutes a wetland?

Mr. Bill Callanan

I will briefly deal with one or two other issues raised. On the issue of works commenced before the regulations, in respect of any works that had commenced prior to 8 September, both works on wetlands or restructuring, the regulations do not have retrospective scope. If works began on 7 September, they fall outside the remit of this regulations. If they started on 8 September or 9 September, these regulations apply. They apply irrespective of whether the guidelines are fully drafted in draft form and the purpose of both sets of guidelines is to assist and clarify issues.

Deputy Thomas Pringle

If work started on 7 September and was not completed by 20 September, what would be the position?

Mr. David Walsh

Works were begun.

Chairman

That is fairly clear.

Deputy Thomas Pringle

That is fine.

Chairman

The issue of the six weeks period is more directed at the Department of Agriculture, Fisheries and Food in the first instance. I do not how we strayed back into the other Department.

Mr. Bill Callanan

I will answer that question and a number of other questions. In terms of my statement, the period of four to six weeks relates to the screening system, not to the consent system which is a much more involved one and, as the Deputy correctly pointed out, is subject to mandatory consultation. The vast majority of applications we receive are in regard to screening decisions. It is our ambition that those screening decisions would issue within four to six weeks. Where the screening is in regard to Natura areas, we have to enter into consultation with the Department of Arts, Heritage and Gaeltacht Affairs in regard to those areas. That is where the outer limits arise. We would not anticipate receiving many applications under the consent process. We will have to enter a public consultation phase on that, so it is not reasonable to apply a four to six weeks period for that.

I will move on to other questions that were put. We have addressed the definition of wetlands. The regulations are in place with effect from 8 September. We have entered a consultation process in terms of guidance. That guidance process will close on21 October and we will consider all submissions made in advance of preparing a final guidance document, which will be subject to discussion with the Commission.

We have identified for farmers, and I spoke to them at the ploughing championships, that the regulations are in place. If farmers have queries, we will encourage them to come to us and we will address any queries that arise. The vast majority of people were fully aware of the position when they were asking questions about the guidelines. They have not been finalised. We will add photographs etc. to the draft plus amendments as required.

In terms of the cumulative period, I accept this is an issue that has raised its head and raised concerns. Our ambition in setting a five year period is that it has been identified to us that a significant concern is that salami slicing of projects would not occur to avoid screening. In other words, that a little bit every year would incrementally result in a significant issue. The Commission has identified two issues that we need to reflect in the guidance. One is the question of cumulation and that salami slicing is avoided and the other is that we would have adequate protections for areas of particular value, species rich grassland which would be below threshold but outside a Natura area, because they have been identified as significant in Ireland. We had two options effectively in that respect. One was that the threshold would be reduced further and the other was that we would make provision for high quality species areas such as orchid rich grasslands. We have chosen the latter, which is to keep a reasonable threshold. For example, in Northern Ireland the threshold under that type of work is 2 ha, in France it is 2 ha and 4 ha depending on the type of habitat and, as I understand, it is 3 ha in Germany.

The issue of the identification of farm maintenance has been raised. From a practical point of view, open drains that require ongoing cleaning will be defined as maintenance. In other words, that will not be subject to these regulations and it is clear and understandable why that should be the case. Where there is drainage in larger areas, it is difficult to define whether the work should be maintenance or reconstitution and, in practical terms, instances will arise where a drainage system breaks down at one particular point. That will rarely if ever cover more than 15 ha, so the potential of it requiring screening is never going to arise. In practice, drainage outside of open drains tends to be put in place at a particular time and over generations the system tends to become poorer and to reduce in efficacy. It is generally replaced by new drains. We are of the view that requires screening because in such circumstances it cannot be defined as maintenance when new drainage, with new stone and new pipe, is being put in. It would be almost impossible to put a reasonable description of such activity before farmers because at what point does one say it is maintenance of old systems? For example, we are talking about drainage with stone and pipe that would be 20 to 30 years old. Clay pipes preceded those by 20 years, with box drains used in the 1940s and 1950s. Where does one define that as actual maintenance? In practice, when that happens a farmer generally will put in a new drainage herringbone system, and that is new drainage, but people should reflect that 15 ha is a substantial amount of land before screening is required in such instances. The number of times it will come to us, therefore, is not significant.

In terms of the timeframe identified, there is no direction in the guidance as to how long that would be if somebody is given approval. We will consider that.

On the question of the penalties, the penalties are outlined clearly in the statutory instrument and are subject to class A fines. The question of cross-compliance arises currently in regard to many of the practices covered within the Energy Institute, EI, regulations such as hedgerow removal, impacts in Natura lands and impacts on monuments. There is a number of additional areas that we are considering as to whether they should be subject to cross-compliance such as the drainage aspect. A final decision has not been taken on those. However, the current position is clear regarding the penalties set out in the legislation for non-compliance with the statutory instrument.

The question was asked as to who will pay. The Department of Agriculture, Fisheries and Food, in assuming responsibility in this area, had the clear ambition of having a practical and workable solution for farmers outside of the planning system. I believe we have delivered that.

We will have the expertise and already have the experience through the forestry regulations that require impact assessment to carry out those assessments in a timely fashion. Undoubtedly, there is a resource issue that accrues as a result but we have staff working in relevant areas which this work can slot in with efficiently to at least ensure that while we do not have a permanent capacity to deal with applications for screening, it is additional work of similar relevance and a similar area to work already conducted by this Department in areas such as the rural environment protection scheme, REPS, and agri-environment options scheme, AEOS, inspections and the like. It is a cost and resource issue for the Department of Agriculture, Fisheries and Food but a necessary one.

Chairman

I think it was Deputy Pringle who asked a question about turf.

Mr. David Walsh

Page 17 of the guidelines clarifies that the extraction of peat by turf cutting does not come within the meaning of the drainage reclamation of wetlands. Separate thresholds already exist in the planning regulations that relate to a planning exemption threshold of 10 ha or 25 acres and the mandatory environmental impact assessment, EIA, threshold of 100 ha.

Chairman

It is not part of this-----

Mr. David Walsh

It is not part of this and we have indicated that.

Deputy Pat Deering

We did not get an answer to the question on the appeals process.

Mr. Bill Callanan

We have considered the question of an appeals process and it is subject to ongoing consideration. In regard to the first instance which is for screening, a screening application is subject to two outcomes. The first is that approval is given for the works and no environmental consequences would arise. The second is that effectively we would not be saying "No" but rather that an impact assessment is required for that. What we will have in regard to that is an internal review process whereby a farmer can request a second officer to consider the original decision and make a further call on it.

On the consent system, it is provided for that somebody can have access to the legal system regarding a decision under the consent process. A number of suggestions have been made arising out of the consultation that will be considered as to the necessity of an appeals process for the screening element, and we will examine that. We have an agricultural appeals office. We have considered that but it predominantly and almost exclusively deals with refusal to grant aid or pay premiums, etc., under schemes applied by the Department of Agriculture, Fisheries and Food and generally does not examine the multitude of areas outside of that context. It is not appropriate, therefore, in terms of an appeals process for screening decisions.

Chairman

The next speakers are Senators O'Neill, Comiskey and Ó Domhnaill and Deputy Harrington.

Senator Pat O’Neill

I thank the officials. We are getting clarification today on some matters. I raised issues regarding the expertise and staffing levels which Mr. Callanan answered earlier, and Mr. Walsh touched on one of the points I had intended to raise. In his presentation Mr. Walsh stated:

However, page 18 of the guidance for planning authorities states:

Where the development proposed to be carried out is below the threshold for a planning application, it is a matter for the person who proposes to carry out the development to make an assessment in the first instance as to whether the development could potentially have a significant adverse effect on the environment.

In other words, farmers are being told they have to have an environmental degree. They must make an assessment as to whether they will have an adverse effect on the environment. The guidance further states:

If the development could have a significant adverse effect on the environment, it is not exempt from the requirement to obtain planning permission. In assessing whether the development would be likely to have a significant adverse effect on the environment, the person concerned should consider the matters set out at 6.3 and 6.4 ...

The 1,000 sq. m does not apply, therefore, if those two are put together because somebody is being asked to assess whether their proposal will have an adverse effect on the environment and to have the expertise. Ordinary farmers do not have the expertise and therefore they will have to bring in somebody to determine if the proposal would be exempted. What if they are then told that it will have an adverse effect?

Let us consider the hypothetical position of ten landowners in a row with less than a hectare each who want to carry out work. Under this guidance they should not have to have planning permission because it is less than 1,000 sq. m but if it will have a major effect on the environment as a result of the ten of them doing the work together they will have to have to have that determined. Is that not true? The exemption does not apply here because page 18 of the guidance states that if it will have an adverse effect on the environment they must get permission. Mr. Callanan clarified the position regarding Deputy Deering's question. I welcome the fact that if drains break down or if there are open drains they are allowed to be maintained. Could Mr. Walsh clarify the position regarding what he said in his presentation and page 18 of the guidance to planning authorities?

Senator Michael Comiskey

I thank the officials for attending. I welcome my colleagues from the Irish Farmers Association. I was a little late arriving and missed their presentation but I will read the Official Report later.

My first question on the maintenance of drains has been dealt with. That is the issue that comes up frequently where drains need to be maintained. A farmer asked me, in respect of a drain that was open until five or six years ago but which has become quite marshy, if he can open that drain now or if it would be regarded as maintenance, whereas other farmers would maintain drains every one or two years. That question has been answered and I am happy with that.

On the removal of field boundaries, the recontouring of farmland and so on, does that mean one could do that up to the limit annually or is it a once-off limit? Could 500 m of field boundary be removed annually, or could 5 ha be affected annually?

Senator Brian Ó Domhnaill

It is important that we have the opportunity to talk about this issue today. I am disappointed that wetlands categorisation is being imposed on agricultural land within the State. The imposition results from the European Court of Justice's judgment. It is the third such judgment to have an impact on farming and rural areas. The first concerns the septic tank charges, while the second concerns SPAs which are being designated across parts of the west and in my constituency. The third, pertaining to the wetlands directive, will have considerable consequences for farmers.

Deputy Deering has referred to the fact that Ireland has never been fined by the European Court of Justice. Since 1973, there have been only nine fines imposed on EU member states. Of the nine, four were imposed on Greece, three on France, one on Spain and one on Portugal. There has never been a fine imposed on Ireland by the court, yet we are now being told that if we do not get our house in order, it will take us to the cleaners and impose huge fines.

The Commission may well make a recommendation to the European Court of Justice that Ireland should face fines. However, as a member state, Ireland has a representative in the court. I am sure that, given the current economic climate in the European Union, it would be very improper for the court to impose fines of this nature on any member state. I fear the threat of fines by the court is being used for convenience. Particularly given the history of fines imposed on member states, I question this threat.

The definition of "wetlands" is addressed in some of the material circulated. Having read the guidelines circulated to local authorities and planning staff, I note that, while the definition of "wetlands" is as Mr. Walsh read out, there is additional information to be considered: "While the above are summary categories, a more detailed listing of wetland habitat types based on Fossitt (2000) is given at Appendix 4". That is very extensive and much more so than what was read out. It also states: "Relevant Habitats Directive Annex I habitats are listed at Appendix 5, while Appendix 6 lists the relevant Habitats Directive Annex II species". The guidelines which were sent to local authorities take on board SPAs, SACs and NHAs. I fear the appendix 4 and appendix 5 listings of relevant habitats would cover much greater areas of land than those proposed in the summary categories.

Ultimately, the land of landowners whose land will be categorised as wetlands will be devalued, as applies to SAC, SPA and NHA categorisation. I refer, in particular, to the land of productive farmers. While the Department has not written formally to each landowner whose land could be affected under the wetlands directive, does it intend to do so and afford those landowners a period in which to make submissions to both the Department of Agriculture, Fisheries and Food and the Department of the Environment, Community and Local Government?

The Department of Arts, Heritage and the Gaeltacht wrote to all the landowners whose land was to be categorised as an SPA. They were given a three month period in which to make submissions to the Department. They were offered an initial objection period and then the opportunity to have an independent objection period in which a submission could be made to an independent board comprising representatives of key stakeholders such as An Taisce and the IFA. Is this opportunity being afforded to landowners who will be affected under the wetlands directive? If not, why not?

There are three categories to consider: screening, EIAs and the local authority application for drainage and reclamation works. Farmers generally work around the weather, but it is very hard to plan around it in Ireland. If one must apply to the Department of Agriculture, Fisheries and Food, the Department of the Environment, Community and Local Government and the local authority, time constraints will be imposed on one's planned work. A period of four, six or eight weeks would have an impact on the work being planned by farmers, given that weather forecasts by Met Éireann generally do not cover periods four, six or eight weeks in advance. We must, therefore, consider a more pragmatic approach.

Let us consider the cost associated with farmers having to apply for screening. They may have to employ their REPS planners. A proper environmental impact assessment based on a large number of hectares, if required, could cost tens of thousands of euro. If a farmer must produce a proper ecological survey report which may be required by the Department of Agriculture, Fisheries and Food under the screening criteria, a further cost will be incurred, amounting to between a minimum of €500 and €3,000 or €4,000. I have researched this aspect because it affects SPAs. Would compensation be made available to farmers who would have to bear the aforementioned cost?

Restructuring of rural land-holdings would cover the removal of lengths of field boundaries such as hedgerows, hedgerows on clay banks, stone walls, clay banks and stone-lined clay banks. An example is given in the summary note which refers to "proposals to remove a hedgerow that separates two fields whose total gross area (including the hedgerows) exceeds 5 hectares". A field of 5 ha is not massive and may have a hedge or stone wall running up the middle. One must apply to the Department for screening and, if the field is in a special area of conservation, an ecological report may be required. The financial consequences for the landowner are excessive.

With regard to the area of land to be covered which is being reduced from 20 ha to 0.1 ha, the European Court of Justice has found that Ireland should ensure it does not rely solely on size thresholds to make a determination on EIA requirements. I am sure that, by extension, it refers to screening. Perhaps the delegation might explain the interpretation of the court's judgment that Ireland should not rely solely on size thresholds. Why are we seeking to reduce the threshold from 20 ha to 0.1 ha, that is, to 0.25 acres? The consequences for farmers whose land will be included are shocking. It is a bureaucratic step too far for landowners and farmers. What steps can the Department take to compensate farmers who will be affected?

I have asked many questions, but they are being raised by the public and need to be addressed. I share the views of some of the other contributors. I considered it wholly improper to have in place a system under which a Minister could sign a statutory instrument on 8 September and thereafter begin the process of public consultation. It is the wrong methodology to use. The consultation should come first and the consultation process should feed into the Minister's decision. I note these guidelines also were issued to local authorities and I have spoken to local authority planning staff who are implementing these on the basis of advice from the Department of the Environment, Community and Local Government. I fail to understand how that could happen when a public consultation process is running in parallel with that. If a planning application is submitted by a farmer who is deemed to be located in a wetlands area, it will be dealt with by the local authority on the basis that the regulation has been signed by the Minister and the guidelines are in place. While it appears as though the cart is being put before the horse in this regard, perhaps there is a rational explanation for it.

Deputy Noel Harrington

I welcome first the delegates from the IFA and the officials from the Department of the Environment, Community and Local Government and the Department of Agriculture, Fisheries and Food. I have a few general questions.

This is to deal with a compliance issue and a ruling from the European Court of Justice. I seek to have on record an acknowledgment that it will have an adverse effect or negative impact on farmers in some cases. There must be consequential support from the Departments to the farming community to make up for this. In many ways, the European Commission's attempt to rush forward a matter that was on the desk for a long time appears anomalous, but that is the position we face. It seems unfair that the farming community will be obliged to bear the brunt of either indecision or decisions taken for whatever reason not to deal with this matter. In the case of those farmers who eventually will be obliged to get ecological reports or environmental impact assessments, I can envisage a certain sector of the community, that is, ecologists or experts in this field, salivating at the thought of being back in business. I suggest the Department should set up some form of support mechanism for farmers, comprising suitably qualified people and further guidelines to approximate costs. It is not unreasonable to suggest a farmer could be taken to the cleaners in this regard by some people who would be sufficiently ruthless to decide this legislation presents an opportunity to make a killing.

I may have misunderstood Mr. Bill Callanan's points on the drainage issues and the infrastructure historically put in place over many years and decades by individuals and agencies for the drainage of wetlands. I understood him to state that historic drains could not be accepted and their replacement would come under this legislation. I submit to the officials present that there are protocols in place in the planning departments of many local authorities, as well as in the Department whereby existing infrastructure is taken into account seriously when exemptions are being requested or when there is no issue with development with regard to routes, rights of way or structures. It is not so much the drain but its impact that should be taken into account. There would be no difference in effect between what one would install today and what was installed 30 or 40 years ago. Indeed, many would suggest the drains that were put in place historically may have worked better, notwithstanding the present use of more modern and up-to-date materials. The impact of the drains should be taken into account and not the materials used or the manner in which it was done. Consequently, they should not come under the ambit of this instrument.

A compensation package for farmers who will be adversely affected already has been mentioned and I would like to think this will be supported. However, there is an elephant in the room that no one has mentioned. The witnesses talk about definitions of wetlands while Senator Ó Domhnaill and others have referred to special areas of conservation, SACs, natural heritage areas, NHAs, and special protection areas, SPAs, which are mapped. Ultimately, will the position be reached whereby wetlands or designated areas must be mapped? This is a difficult matter to discuss because once one begins to map something, some will be excluded and others will be included. If this is the case and if compensation issues arise, that precedent is there already. I do not believe broad consensus on the definition as discussed by Mr. David Walsh will ever be achieved.

I refer to the impact with which farmers must deal, particularly in the constituency I represent, as well as others in counties Donegal, Kerry and elsewhere. In such areas, SACs, NPAs, NHAs, candidate SACs or being adjacent to an SAC all come into account and have an impact. Moreover, the officials from the Department of the Environment, Community and Local Government may be aware that the Office of Public Works has issued extremely detailed mapping on flood risk assessments and areas. Will they be taken into account in this regard? I note they are already feeding into county development plans and, consequently, huge tranches of the countryside have suddenly fallen on the right or wrong side of a line, but this simply is not being discussed.

Weather issues and the impact of weather on farm practices also have been mentioned. For example, there has been a massive call from farming organisations and farmers in the south west to extend the nitrates directive deadlines. It is not as big an issue in areas such as east Leinster because they did not experience the same level of rainfall. Nevertheless, it is an issue, albeit not perhaps a national one, but it is causing huge difficulties. Farmers are spreading now, at a time when they really should not be, in advance of the deadlines. This is the kind of negative impact such regulations cause to farmers when issues such as the weather are not factored in. It is a difficult question and I seek more supports for farmers from the Departments in respect of flexibility or having something written into the instrument or the legally binding guidelines.

Chairman

I will allow the witnesses to respond to this round of questions and Mr. Callanan may begin.

Mr. Bill Callanan

I will deal with the questions pertaining to the Department of Agriculture, Fisheries and Food, while Mr. Walsh will deal with the questions remaining. Senator Comiskey raised a specific query regarding someone who had closed a drain five years ago and who now wishes to reopen it. Under the draft guidelines, we would not consider that as maintenance because effectively it constitutes a reopening. However, I wish to highlight that the drainage screening threshold before screening is required is 15 ha. In other words, a significant area must be involved before someone is required to engage, although the reopening of what might previously have been an open drain that subsequently was closed will be defined as new drainage work. I wish to be clear in this regard.

As for the accumulation issue, within the draft guidelines we have identified that the overall thresholds are applicable over a five-year accumulation period. The intention is to put in place a reasonable timeframe in terms of what activities should be cumulatively added up. Our reasoning for so doing is to address one of the specific issues raised by the court case, as Senator Ó Domhnaill has identified, which addressed the whole question of cumulation. Our concern, were it to be avoided completely, was that people would not perceive it as almost being a threshold for the individual for his or her farming existence. In other words, putting a five-year limit on it in respect of 5 ha sets a reasonable balance between some people's aspirations that it should be a threshold in perpetuity and others who would suggest it should be annual.

On the issue of fines, that was the subject of significant discussion but I will leave my colleague to deal with that. The question of farmers working around the weather and the time constraints certainly is an issue. Our ambition is to have a reasonably prompt turnaround time in terms of screening, which for the vast majority will be four to six weeks. That is not an unreasonable length of time at least to be planning what are fairly significant activities above the thresholds for this. We certainly are fully cognisant of costs that accrue in respect of environmental impact assessments, and a number of members have mentioned that. I fully concur with the Senator in identifying a potential cost of more than €10,000 in certain cases. However, I draw attention to the fact that at 50 ha, the thresholds in respect of the consent system are quite high with regard to the majority of activities, notwithstanding the lower thresholds in respect of wetlands. It has been proposed that we would have a simple system in this regard but we must have consistency. There are many projects in the agricultural field that currently are subject to environmental impact assessments, such as wind farms. Certain pig and poultry establishments that are IPPC licensed are already subject to these requirements and we must apply consistency across those areas.

Where somebody wishes to restrict the area they would be looking at in terms of that impact assessment, it is available that the Department would provide a scoping decision, in other words, identifying the primary issues an impact assessment should deal with. They may not have to deal with all elements then or beyond a cursory dealing. Such a scoping decision is available from the Department in advance of somebody embarking on carrying out a full impact assessment, and that is available already in other areas such as forestry.

The mapping of wetlands would be a significant task and I am not sure whether the Department would have the resources to conduct such a task.

On the reason the Commission is moving us back, it is an unexpected move. We had been engaging with it and in June it decided it was not satisfied with the progress being made. It will probably look for fines, notwithstanding the fact that we have taken these steps. It is about building that relationship with the Commission.

The fact is the court case is going ahead. The papers have been served, we have lodged our defence and this case will be heard before the European Court of Justice. As to whether the court takes the view of Ireland in its defence or of the Commission, if indeed it has any outstanding issues, is a matter for the court itself.

On the definition of wetlands, there is a bullet point list on page 17 and there is appendix 4. In the main body of the text, we refer to reservoirs, lakes and turloughs. Appendix 4 refers to dystrophic lakes, acid-oligotrophic lakes, limestone-marl lakes, mesatrophic lakes, eutrophic lakes, turloughs and reservoirs. Those elements are covered and captured. The point is to make appendix 4 more accessible. There is nothing within it that is not covered by the broader definitions in the main body of the guidelines.

I would like to move on. There are 28 minutes left as I intend finishing the meeting at 12.30 p.m. I will call Deputies Barry, O'Mahony and Heydon. I have a few questions I might ask if they are not asked in the meantime.

Deputy Tom Barry

I have 14 points and if the witnesses cannot get through them, they can respond to me in writing. I thank the officials for their presentations and the IFA for its submission. We need a sensitive approach because mistakes will be made on both sides. It needs to be practical as otherwise we will be open to fines which will lead nowhere. If it is not practical for the farmer we are all wasting our time. On screening, the four to six weeks is an issue. I would be anxious to have some sort of fast-track environmental impact assessment taking place. We are not talking about wind farms, which someone mentioned earlier; we are talking about basic drainage, etc.

Have the officials thought about training the inspectors, which is critical? An inappropriate person will not bring consistency across the system. I have come across cases where I have had to intervene for people where inspectors did not act professionally. That is the first requirement of any inspector coming on the land. As an active commercial farmer, I speak with some element of knowledge.

I have planted forestry on land that could have been considered wetland. It has changed the profile of that land and as Deputy Ó Cuív mentioned earlier, there is a change in the profile of land as it goes along. I also have land that takes a significant amount of water from the N72. If I blocked it up, it would be fairly dry, but obviously there is a safety issue here. The more that road has been widened, the more flooding is coming in. I am not responsible for it, but it is something that needs to be taken into account. It floods for three to four months each year so there is a change as we go along.

Mallow and many other towns have had flood schemes involving the erection of big embankments, which are very welcome as they stop flooding in the town. However, downstream where we farm we are getting faster waters, more extensive flooding and land erosion. Farming on that land is quite frustrating and it is adding to the issues here. Drainage works will be required in lieu of what is coming down; remediation works will be required.

The submission stated: "The Commission has numerous instances where significant damage to the environment has occurred on wetlands even at a very small scale." Have we examples of a small-scale intervention causing a major problem? It is very easy to say something without giving examples.

On the issue of drainage versus artificial watercourses, I know of many farms where artificial watercourses would have been built up over the years to water cattle. They need to be maintained because they are the only existing source of water. It is not feasible for cattle not to have ready access to water.

I would discourage haste and sudden decisions in the matter. It is good practice and good manners to consult with farmers. An appeals process is obviously needed, as others have said. There may be serial objectors, who may have plenty of time on their hands and basically want to stick their noses in everybody else's affairs. If we get such people, they should also be inspected to check what public funds they are getting. If costs are identified, they will need to bear some of those.

The EU is guilty of some double speak with regard to farm maintenance. Decoupling basically took away the need for productivity - it gave the payment without being coupled to production. The EU is now considering reintroducing set-aside. Those two schemes mean that land falls into poor repair as does drainage. On the other side we are saying that farmers need to get permission if it is 15 years or so out. We need to be aware that too many anomalies are cropping up.

We need to be practical when it comes to the removal of hedgerows. The existing hedgerows are not very useful for people who have 80 ft. or 24 m sprayers which are quite common in our part of the country. Can there be a situation where the removal of a boundary, which may have suited agriculture 200 years ago, could be put back in position with a separate hedgerow that would suit current farming practice? In effect there would be no net loss of hedgerow. We are all anxious to keep the environment right, but we must move ahead with the times. We have machines of such a scale, which we need in order to be able to make a profit.

Another issue not addressed is that of partnerships. Many dairy farms are entering into partnerships. They will need to restructure their holdings, which needs to be taken into account. We need to be careful not to repeat the mistakes of the past. I farm on the banks of a river, which is possibly the most fertile land we have. We found that we were not allowed to winter plough. It was even suggested that we might not be allowed to cultivate there. This was done on the back of no scientific data. I am a member of the Teagasc tillage commodity team and we were not consulted on any of this, which is very frustrating.

Recontouring of land happens all the time and I have done it myself. We have recontoured where old quarries had been dug out. This recontouring has been going on over a period of years. One is always filling away and is basically trying to improve it because someone previously dug a great big hole in the ground which needs to be filled. It serves no practical purpose and in many cases these holes are quite unsafe.

Another issue is the field boundaries of 500 m or less than 5 ha. This would be a very unusual field. One would throw more fertiliser into the ditch than one would onto the field with a large machine. I do not want people to leave this room with the idea that we all spread fertiliser with Viscount spreaders. We do not. We do it with 10 tonne Bredal spreaders which are capable of covering a few hundred acres a day. This is modern and practical farming. We need to consider what we are asking.

With regard to recontouring land, I live in an area with a limestone base where some places do not have a huge level of topsoil, perhaps only 1 ft or 2 ft. Does this impact on stone raking and picking stones, which is something we have done for generations to ensure we do not make bits of what machines we have?

Perhaps some clearing of existing vegetation or uncultivated ground should be allowed. I am not a great lover of thistles, ragwort or wild oats contaminating a neighbouring farm. Land which has remained uncultivated for 15 years was mentioned. Many of us have elderly neighbours who entered into a passive farming routine perhaps because of their health and they are well entitled to do so. However, perhaps there may be a future need to tidy it up when their time passes.

Will this be applied to the vast areas of land of the largest landowners in the country, namely, the local authorities? This morning, as I do many days, I drove up the motorway and saw a reservoir of noxious weeds the whole blasted way up the road and this is completely unacceptable. After a few years it will become uncultivated land but it needs to be sprayed. What is sauce for the goose must be sauce for the gander.

With regard to the definition of "wetlands", I do not want anyone to leave the meeting thinking the planning process with regard to flood plains has been a success. It has not. Cork County Council had a major issue because homology contour modelling, which is computer modelling of an area, was asked to decide what was a wetland and what was not. It was used because it was cheap - it cost €37,000 - and it affected a huge area. Anyone in the flood plain has major issues with regard to housing planning and sale value. However, major mistakes were made and the OPW has examined it. We were told the maps were drawn up for a one in 100 years and a one in 1,000 years situation. I do not care if it was for a one in 1 million years situation because water will never flow uphill, but this is what was shown in the maps and I can provide them to the Department later if the witnesses wish. It was an absolute disaster and householders were up in arms. The same issues will arise with regard to landowners. The maps showed water flooding areas which never flooded and showed flooding stopping on a downhill slope. They do not make any sense.

We also had a situation whereby the OPW had one set of maps while Cork County Council had another. The most upsetting point is that Cork County Council obtained its maps from a company which had drawn them up for an insurance company. This causes obvious conflicts of interest because where there is a flood risk one will have insurance claims.

I have raised many points and I do not expect the witnesses to comprehensively deal with them immediately. I will submit them in writing and I would like to receive replies.

Deputy John O’Mahony

I will be brief because all of the questions have already been asked. The legislation has been passed and we are speaking about its implementation, interpretation and definitions. I agree with the points made on the wetlands. What type of flexibility do the Department officials think would be acceptable to the Commission with regard to the definition of "wetlands"? As Deputy Ó Cuív stated, the difference in the effect of a wetland in Spain or another Mediterranean country and Ireland is that in one it is devastating and in the other it is negligible. What adjustments would be acceptable to the Commission? Is much flexibility possible?

The more I hear today, the more concerned I am about people in wetland areas. They might as well shut up shop and leave it there for the wildlife. In fairness, the witnesses have clarified many issues, which is very helpful. The interpretations and definitions of the minutiae that have been raised will be crucial.

Deputy Martin Heydon

I thank the delegations for coming before the committee. It strikes me that much comes down to interpretation and an element of discretion on the part of whoever adjudicates on this. This reinforces the need for an appeals process. Everybody in this room can sing off the same hymn sheet but the person acting as judge and jury may have a different interpretation. It would be important that such a review process be independent. If two officials work in the same office and official A makes a judgment and official B then deals with the appeal, official B is unlikely to overrule the person who sits in the same office every day. A level of independence would give farmers some comfort.

The period of four to six weeks allowed for screening applications is long, and I suggest it is too long. It would be a disaster if the process was any longer than this. I seek commitments that this is the maximum period of time rather than an aspiration.

The issue of serial objectors was raised. Who would be allowed to object or make submissions? I contend any objector should be directly involved or directly impacted upon by the proposed works. Otherwise the process will be very unwieldy and stacked very much against the farmer. We need to make this as farmer-friendly as possible and couch it as best we can in dealings with Europe and make it as easy as possible to implement.

I welcome the witnesses' comments on land drainage for regular maintenance. This is particularly important.

Chairman

There is general concern about wetlands, the cost of biodiversity impact assessments and the general approach that will be taken on the screening process. We have spoken about the use of uncultivated land and we need to take a pragmatic approach to what is uncultivated and semi-natural in view of some of the facts outlined by Deputy Barry on previous rules applying to set-aside and, more recently REPS, which meant some land was not intensively farmed. What constitutes a change from this to intensive farming? Does it mean improving pasture sward quality as part of an agri-environment options scheme, AEOS, scheme involving a natural species of grass? Would this be considered uncultivated? These issues need to be addressed.

At the end of the process, will the Department of Agriculture, Fisheries and Food provide a summary document or guidelines to be circulated on the website or through the use of a helpline to describe what constitutes an agricultural remit as opposed to an environmental remit? As to the significance of being under 0.1 ha, if people had information they could come to a reasonable decision without needing to pay someone to give them an opinion. This was Senator O'Neill's point.

Mr. Bill Callanan

I will try to address Deputy Barry's points briefly. From the outset, the Department's involvement has highlighted an understanding of the need to be sensible and practical. For this reason, the matter is before the Department and not the planning system. In terms of screening, it is our commitment to deal with cases within four to six weeks. As to the training of inspectors, we intend to ensure a consistency of approach nationwide. The inspectors in question have expertise in environmental and agricultural works, given that they have been involved in the rural environment protection scheme, REPS, and the agri-environment options scheme, AEOS. The Department has the necessary competence. I do not know how to address the specific issue of the water from the N72 without knowing all of the details.

Generally speaking, artificial water courses are where someone has created access for drinking water. If drinking points are open, they are subject to cleaning and maintenance and do not fall within the environmental impact assessment, EIA, regulation. We have had many issues with serial objectors, but two matters arise. First, if someone brings to our attention that improper or inappropriate work is occurring, we are required to investigate. Second, if it is a question of screening, the Minister for Agriculture, Fisheries and Food adjudicates on it. We will consult our colleagues in the Department of Arts, Heritage and the Gaeltacht where Natura areas are concerned, but the wider consultation that encourages submissions from various people applies to the consent process, which is at a significant threshold, for example, 50 ha of hedgerows. We do not anticipate many of these matters coming through the system, notwithstanding the cost.

I accept the point on the removal and replanting of hedgerows. They are included as landscape features under the single farm payment and, as such, are afforded a level of protection. This was done because, after a previous audit identified that the single farm payment should not have been paid in respect of such areas, agreement was reached on including them as landscape features. This not only made them subject to protection, but made them eligible components for the single farm payment.

Notwithstanding tillage areas, the court was told that the average field size was 2.4 ha, although they are often larger. Hence, the threshold of 5 ha allows for the potential amalgamation of two average-sized fields, notwithstanding the fact that their sizes vary significantly across the country. Stone raking is normal practice in, for example, potato planting and does not constitute recontouring, as the stones are not being removed from one part of a field. Typically, stone raking does not change the profile of land enough to classify it as recontouring.

The question of uncultivated ground, for example, dealing with thistles, was raised. Normal cutting of hedgerows, briars, and so on is not deemed to be subject to an EIA because the ground is not being cultivated as a result. However, scrub removal generally involves heavy mechanisms and a certain amount of soil disturbance. Soil is considered uncultivated if it has been subject to minimal intervention and little fertiliser usage for a period of 15 years. This is how it relates to AEOS. We are conscious that the support for uncultivated land was a popular measure and two situations pertain. First, if someone has land that has not been cultivated for a substantial period, he or she is supported under AEOS. Second, a farmer may have amended his or her farming practice to create "uncultivated land". In the first case, it will not make a difference whether the farmer is supported under AEOS because the land is not cultivated. In the second case, though, many farmers who have changed their practice to satisfy the "uncultivated land" criterion will not have done so for the requisite 15 years. Categorisation as "uncultivated land" depends on meeting the 15-year threshold before land can be subject to the EIA regulations.

Deputy O'Mahony asked about flexibility. In the Department's ambition to implement the regulation, we were of the view that we wanted a practical, workable situation. It is well known publicly that the question of thresholds was subject to significant discussion this summer with Ministers and others. The discussion was helpful in trying to ensure our thresholds were reasonable and practical and reflected both sides of the argument.

Deputy Heydon asked what constituted "significant". I accept that it is not always a question of black and white when dealing with the environment - there are greys. It is a continuum. However, the Commission is concerned about two outstanding aspects, those being, accumulation and protection for species-rich areas that fall outside Natura's remit and are generally small in nature. One must reach a balance between setting a threshold low enough to create de facto protection and setting a reasonable threshold. Where high-quality areas fall below the threshold, the guidance must make provision for their protection. The review process is independent. When a second officer examines the process, he or she takes everything into consideration before deciding to agree with the first officer or amend the decision.

In our guidance, we have attempted to be clear in the definition of wetlands. There are few disputes about the interpretation of "turloughs", "swamps" and "marshes". We will endeavour to increase clarity concerning flood plains and the definition will be expanded somewhat. It has been brought to our attention that other definitions exist. We will consider them in consultation with other Departments to ensure consistency.

A question was asked about a summary document on the responsibilities of the Departments of Agriculture, Fisheries and Food and the Environment, Community and Local Government. It is a matter we can consider. Once the guidance has been agreed, it will be brought to the attention of those involved in farming circles - farming organisations, consultants, Teagasc, and so on - to seek their opinions, just as the draft was. The finalised document will be provided to everyone. We will also provide briefing and guidance in regard to its implementation.

Deputy Tom Barry

Mr. Callanan did not respond to the questions on a fast-tracked EIA and road flooding, of which I gave an example. While motorways tend to have large loughs at the side to take excessive water, water on national secondary roads runs into farmers' fields, which requires the good will of both parties involved. I do not believe we should be locked in time with regard to our boundary profiles. We should be as opened-minded as people were 200 years ago and should adapt them to farming practice today. We protect the amount of hedging we have but not necessarily its location. Many existing boundaries have not been maintained. There are now in place good guidelines in regard to the laying of ditches and copses. We should be flexible in this regard.

Mr. Callanan did not speak about homology modelling or say whether the Department will go down that road in regard to flood plains. I hope not. Will exemptions for forestry which goes below the thresholds for planning be introduced? All forestry, based on work in this area during the past number of years, involves contouring the land and digging large drains and mounds thereon for the planting of trees, which some would argue also contributes to flooding.

Mr. Bill Callanan

I would like to clarify a particular point to ensure no misinterpretation. Forestry and conversion of land to forestry is not subject to the agricultural regulations. They are subject to current forestry EIA regulations. All applications in respect of forestry schemes are considered under current EIA regulations.

On homology modelling, we will be basing our definitions on the guidance on wetlands. As regards the removal and replanting elsewhere of hedgerows, hedgerows are protected under the single farm payment. There is provision in exceptional circumstances for movement of hedgerows. We will be working independently of that because the decision before us is whether actual removal has an impact on the environment. The Department has been active in supporting replanting, with almost 10,000 km having been replanted or rejuvenated through REPS and AEOS. It is reasonable to consider that a person who is replanting would in doing so take this into account. All good teams need young blood at some stage. That is understandable.

Some hedges, in terms of rarity and so on, are of significant value and we must take that into account, which fits into the significant impact in terms of particular hedgerows.

Mr. David Walsh

Deputy Barry asked about small scale works cited by the Commission in its judgment. I do not have a copy of the relevant papers before me but I recall that one related to a 5 m hole that had been dug in a ditch and drained three fields. The Commission is, therefore, saying that one small piece of work, depending on where it takes place, can have a major impact up-stream, down-stream or on a wider basis. That is one of the points considered by the court. The court has made its judgment and we are now dealing with the aftermath.

Deputy O'Mahony raised the issue of Commission flexibility. As stated by officials from the Department of Agriculture, Food and the Marine, while the issue of thresholds was important the Commission was clear in pointing out that it was not only thresholds that were at issue. The Commission is happy that the guidelines will clarify matters and will set out as clearly as possible what is required to ensure a consistent application across the entire country and that as far as is possible there are not different interpretations in this regard. The Commission recognises the difference between wetland and wetlands and is happy that, following examination of the submissions received, we will return to have further discussions with it. On the basis that it is broadly happy with the level of thresholds and the steps we have taken to date, we are hopeful that following the court case the Commission will be broadly agreeable that we are now compliant. The main issue then will be to stop any future €33,000 a day fines.

Chairman

I thank Mr. Walsh, Mr. Walker, Mr. Callanan and Mr. Reid for attending today. I am sure many of the issues raised here today have come to their attention by way of submissions. The issues of concern can be summarised as flexibility, cost, concern and anything that would unnecessarily hold up land and farmer development and improvement.

It is proposed to circulate to members a summary of the main issues raised by them with a view to making a submission to the Department by Friday week. The matter will be discussed and agreed at either our next meeting or the one following it, following which a submission will be forwarded to the Department.

The joint committee adjourned at 12.35 p.m. until 9.30 a.m. on Thursday, 13 October 2011.

JOINT COMMITTEE ON COMMUNICATIONS, NATURAL RESOURCES AND AGRICULTURE debate - Wednesday, 12 Oct 2011

EU Directives: Discussion

Mr. Eddie Downey

Mr. Eddie Downey

Mr. Eddie Downey

Mr. David Walsh

Mr. Bill Callanan

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. Bill Callanan

Mr. Bill Callanan

Mr. Bill Callanan

Mr. Bill Callanan

Mr. Bill Callanan

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. Bill Callanan

Mr. David Walsh

Mr. David Walsh

Mr. Bill Callanan

Mr. Bill Callanan

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. David Walsh

Mr. Bill Callanan

Mr. Bill Callanan

Mr. Bill Callanan

Mr. David Walsh

Mr. Bill Callanan

Mr. Bill Callanan

Mr. Bill Callanan

Mr. David Walsh

JOINT COMMITTEE ON COMMUNICATIONS, NATURAL RESOURCES AND AGRICULTURE debate -
Wednesday, 12 Oct 2011