Karen Walsh: High Court’s ruling on forestry project
The rules surrounding new forestry plantations were the subject of a 2016 High Court case.
One neighbour (described as the applicant) contended that, because he wasn’t notified about the application, it should be denied (McCaffrey v Department of Agriculture, Food & Marine, and another [2016] IEHC 731).
A summary of the facts: a forester sought to plant 9.33 hectares. He engaged a consultant and prepared the application.
The proposed projectinvolved use of a narrow, private road through which the applicant also accessed his home. Application questions included:
- Is the area within a National Heritage Area, Special Area of Conservation, Special Protection Area or National Park?
- Does the area contain an archaeological site or features within intensive public usage?
- Is the area within a prime scenic area in the county development plan?
Following EC (Forest Consent and Assessment ) Regulation 2010, an application is advertised in local papers as well as the departmental website, if any of these questions are answered ‘Yes’.
Since these questions were answered ‘No’, this particular application was advertised on the website alone.
The public consultation period was to last one month. People with an interest were not notified.
More than three months later, the applicant made representations in writing to government officials.
The forester began informal discussions with the applicant, which yielded no positive outcome.
An environmental impact assessor carried out a site visit, making an assessment of access to plots regarding road width, structure, surrounding water table and proximity to dwellings.
No reason was found to refuse permission to plant afforestation on the grounds of access.
Almost six months after the consultation period ended, permission was officially granted. An application to review the decision could be made through judicial review, under O. 84 of the Rules of the Superior Courts.
Legal proceedings were instigated, on the basis that:
- The applicant received no direct notification, had no means of knowing that the forester had made an application which affected his lands, and was not alerted to access to the ministerial website containing the relevant information about the proposed development.
- The public consultation period had expired by the time the applicant became aware of the proposed development.
- Any consideration of the applicant’s complaints by the Government Department after expiry of the public consultation period could not regularise his exclusion from participating in the public consultation process.
- The Government Department failed to carry out an environmental impact assessment, and/or failed to determine whether one was required. The screening process was entirely focused on the protection of the environment, to the exclusion of any consideration of the property rights or personal rights of persons, potentially impacted by the development.
- The Government Department failed to identify the criteria or factors taken into account to be satisfied that the application should be granted, thereby displacing any “presumption of regularity” in the decision-making process.
- In the absence of any engagement with the applicant by the Government Department, the decision could not have been concluded lawfully or rationally.
- The applicant was deprived of a meaningful opportunity to make representations and was deprived of his constitutional rights to fair procedures regarding decisions likely to impact on his personal and property rights under Article 43 and Article 40.3 of the Constitution.
The High Court held that Article 5 of the 2010 Directive required the minister to ‘publish’ notice of the applications and that this could be on the website or /and in periodicals.
The applicant did not demonstrate that he had been prejudiced by the manner of publication, or the short period of consultation.
No evidence that the use of the road by his neighbour would detrimentally affect the applicant, had been produced in court.
The other parties engaged with the applicant after the consultation period, and that window of time had not been used to demonstrate an argument against the proposed forestry development.
The court was to determine whether, on the facts, the applicant was given an opportunity to be heard, whether he was given an early and effective opportunity to be heard and whether he was given an opportunity to engage meaningfully with the Government Department.
Fair procedures were applied by the decision- making authority in the exercise of its statutory powers and functions.
In the view of the court, there was no departure from and no lack of compliance with the principles of constitutional justice by the decision making authority.
The court found that this was not a case where the applicant’s constitutional rights were breached, having regard to the facts as found in this case, and accordingly, he was refused the reliefs sought.
Analysis
The usual notice, displayed on the physical site, caused those who had business in the locality to be aware of a potential change.
To only display a notice on a website is, in my opinion, unreasonable.
What if their first indication of change was when they saw trees being planted?
Is it then too late to balance the property rights of both parties?
There is no discussion of ‘right of way’ in this case. Presumably, the right of way benefiting the forester’s land allowed such use of the road.
- www.agriculture.gov.ie/forestservice/publicconsultation/
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While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.
