The legal case of farmers seeking full compensation for loss of land value and farm earnings in areas designated for hen harrier bird protection is impossible to argue against, says barrister TD Willie Penrose.
Legal action against the state is a possibility, confirmed Jason Fitzgerald of the Irish Farmers with Designated Land (IFDL) organisation.
About 4,000 farmers, mostly in Cos Clare, Cork, Galway, Kerry, Laois, Limerick, Monaghan, Offaly and Tipperary, had their land designated as Special Protection Area (SPA) in 2008, by the National Parks and Wildlife Service of the Department of Culture, Heritage and the Gaeltacht.
They had a three-month window to object to the designation, but most farmers did not because they believed a compensation scheme, access to afforestation, and a land devaluation rebalancing solution were available.
However, only 370 managed to access the compensation scheme, which was suspended in the economic recession, less than two years after it was launched.
Afforestation has not been allowed on most of the farms, and the farmers say their land has been greatly devalued by designation.
When the IFDL presented their case recently at the Joint Oireachtas Committee on Agriculture, Food and the Marine, Mr Penrose said large tracts of land are effectively sterilised and made significantly less valuable. “Land designation that is put forward in this way, that is, by way of a State authority, namely, the National Parks and Wildlife Service, implementing an EU directive or regulation, absolutely is expropriation of land without an appropriate compensation mechanism.That is laid down in the Constitution, and in case law such as Dreher v the Irish Land Commission.”
“A significant corpus of constitutional law and case law makes the case of Irish Farmers with Designated Land impossible to argue against.”
Mr Penrose said designated farmers had a legitimate expectation they would be paid €350 per hectare up to 40ha, reducing thereafter.
“A fundamental European law principle applies and it cannot be disturbed. The farmers’ group has been treated in an illegal fashion, in my view.”
He said the farmers have a strong case against the State and the EU Commission. “The sterilisation of land is a matter the Supreme Court has followed carefully, and there is no doubt about its view.
“The State can step in, make compulsory purchase orders and sterilise land, provided there are adequate compensation mechanisms.
“The argument of the farmers’ group is reinforced by the fact that there is a significant opportunity cost in terms of not being able to explore alternatives. Afforestation alternatives would normally be available.”
Mr Penrose also said that once an area is designated, “the appeal mechanism available is not worth the paper it is written on. “Once designated, I have never seen an area de-designated as a result of an appeal,” said the Longford-Westmeath Labour Party TD, who is a practising barrister as well as being a TD.