Cork landowner loses appeal against order to replant trees she felled on her land
A Department of Agriculture forestry inspector, Eugene Curran, noticed that trees, “including oak with fresh green leaves”, had been felled and cleared in 2018. File photo: iStock
A High Court judge has refused to overturn a replanting order issued to a Co. Cork landowner whose tree-felling activities allegedly caused “serious damage” to specified woodlands.
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Lorraine Costello, with land at Silvergrove, Kilbarry, Co. Cork, brought a challenge against a replanting order made by the Minister for Agriculture, Food and the Marine in March 2019, She also challenged a separate decision of the Forestry Appeals Committee upholding the Minister’s February 2019 revocation of her tree-felling licence.
In a judgment, Mr Justice Cian Ferriter said he was refusing to grant the relief sought.
Ms Costello’s essential ground for challenging the decisions was her claim the bodies had acted in breach of fair procedures, the judge said. Through the courts, she also sought an order prohibiting the Minister from prosecuting her for an alleged breach of the replanting order terms.
Mr Justice Ferriter noted that he was told during the judicial review hearing last month that the Minister had instituted criminal proceedings in August last for an alleged breach of the order, but these stood adjourned and unlikely to advance until after the High Court’s judgement.
Ms Costello and her husband James Costello were granted a five-year licence authorising them to “thin” woods “in accordance with the practice of good forestry”, the judge said, noting that it was not a clear-felling licence. In their licence application, a consultant forester from Ecoplan Forestry Limited had stated the applicants intended to selectively “thin” the intensity of the trees by about 30%, choosing to prioritise the felling of non-native species and any diseased or cankered stems, said the judge.
Following complaints by neighbours to the farm, a Department of Agriculture forestry inspector, Eugene Curran, met with Mr Costello in October 2017 and said enough trees had been felled, according to the judgement. Mr Costello said he wanted to clear more trees to facilitate cattle grazing, but the inspector said this was not compatible with the licence issued, the judge noted.
In September 2018, Mr Curran returned to the site after receiving further complaints. He said he noticed more trees, “including oak with fresh green leaves”, had been felled and cleared, according to the judgment. He said the land was being prepared for re-seeding with grass.
Mr Curran claimed he “cautioned” Mr Costello, informing him that no further damage to trees was to occur before a Department review, the judge noted.
Shortly after the licence was suspended, but it was lifted a month later following an apparent review of the file by the Forest Service. In an email to the Department, the Forest Service said the licence issued “contain[ed] no condition”, so therefore there “is currently no breach”.
However, in January of 2019 Ms Costello was informed the felling licence had been suspended again with immediate effect, the judge noted. On the same day inspectors arrived at the site and formed the view that “well in excess of” 80% of the site’s trees had been felled, it was claimed.
The licence was revoked in February 2019 after an investigation, and in March Ms Costello was ordered to replant sections of the land on the basis that the Minister for Agriculture was of the view that “serious damage” had been done to specified woodlands, the judge noted.
Mr Justice Ferriter said he was satisfied there had been no breach of fair procedure with regards to the Forestry Appeals Committee’s handling of a department file on her case challenging the licence revocation. Ms Costello said it had not been furnished to her, but the judge noted that she had separately obtained substantial material via freedom of information requests by the time of the hearing.
The judge also found that the applicant did not discharge the onus on her to provide a good and sufficient reason for not bringing her judicial review challenge to the replanting order sooner.
Ms Costello also complained that the Minister allegedly failed to allow her to make her case against a proposed replanting order, which can have significant financial consequences, the judge said. While noting the applicant was aware of the possibility of a replanting order shortly in advance of the Minister’s decision due to accessing internal documents through FOI, Mr Justice Ferriter said it was not always good for decision-makers to answer, as in this case, that relevant pre-decision material can be accessed through FOI.
