'There is an element of brass neck' — Kerry farmer fined for building track on protected land

The matter against the track machine contractor was struck out

The site in question was not inside the Killarney National Park but it was part of the ‘Killarney National Park, MacGillycuddy’s Reeks and Caragh River Catchment SAC’, a special Area of Conservation protected under the regulations.

Serious damage was caused to a wet heath habitat in a remote area near the Gap of Dunloe, Killarney, after a sheep farmer brought in a heavy machine to construct a three-metre wide track, a court was told.

Tim O’Connor of Dunloe Upper, Beaufort, Killarney, has been convicted and fined €2,500 after he pleaded guilty to constructing a track with a track machine in a Special Area of Conservation at Dunloe Upper without permission.

Mr O’Connor had hired a track machine to carry out the work in an area between Tomies Mountain and the Gap of Dunloe which the court was told was "a scenic and remote part of Co. Kerry". Summons were issued by the Minister for Housing, Local Government and Heritage on both Mr O’Connor and the track machine contractor.

However on Tuesday morning, Killarney District Court was told by Tom Rice, prosecuting counsel for the Minister, no evidence was being offered in the case of James Johnson of Gurtcullinane, Beaufort, Killarney, the track machine contractor.

A plea of guilty was being entered by Tim O’Connor, Mr Rice advised the court. It was a single summons, and the offence was contrary to Regulation 35 (19a), the European Communities (Birds and Natural Habitats) Regulations 2011.

The construction of a track with a track machine had a significant "adverse" effect on the integrity of a European site, Mr Rice said.

Conservation ranger's evidence

In evidence, Daniel Buckley, conservation ranger with the National Parks and Wildlife Service (NPWS) said the site in question was not inside the Killarney National Park but it was part of the ‘Killarney National Park, MacGillycuddy’s Reeks and Caragh River Catchment SAC’, a special Area of Conservation protected under the regulations.

The site was on the western side of Tomies Mountain, he agreed with Mr Rice. In December 2020, a member of the public contacted the National Parks and Wildlife Service and said there was a track machine working in this remote and scenic part of Co. Kerry.

The ranger visited the site and met Mr O’Connor. He had dealt with Mr O’Connor the previous May about turning a sod in the area. In December 2020, he admitted using the track machine to build a track "so he could put fencing up," Dr Buckley said.

"He had no permission from the NPWS," he added. In May, he had been sent a site pack for the Catchment SAC from the NPWS designations unit, by registered post, Dr Buckley said.

The extent of the unauthorised track was 353 metres in length and three metres in width and it encompassed 0.1 hectares, the court heard. The land would be considered ‘marginal land’ from an agricultural point of view. However, it had a qualifying interest as an SAC habitat called ‘wet heath’.

This was a peatland habitat, with a shallow peat layer, and the track machine was used to excavate the soil. A substantial amount of soil was excavated. Photographs of the damage were handed into court, while a regional ecologist with the NPWS had also visited and assessed the damage.

There had been direct impact on the heath. "But the more serious impact was the indirect impact," Dr Buckley said. The track was acting now as a drain, he said.

The court was told that there had been no previous drain on the land, but the track had now formed a drain, and water was running off the surrounding wet heath onto it. The track is now forming a drain of the wet heath.

"The damage was permanent,’" Dr Buckley replied to Mr Rice. Dr Buckley also said Mr O’Connor maintained he was unaware permission was not needed, but he did not accept that. He was co-operative and stopped work immediately and had no previous convictions.

Sentencing

The penalties included a substantial fine, and or six months in custody, Mr Rice told Judge Waters.

Pleading for mitigation, solicitor Padraig O’Connell, said this was a man "who has lived in the area for generations". "He is a sheep farmer and he believes a passageway always existed for sheep to be brought down for dipping and shearing," Mr O’Connell said.

The matter was put back briefly to allow Mr O’Connell to ascertain if the accused accepted the evidence that he knew in May he would need permission but still went ahead. He had believed the May matter related to another person’s lands, not his, Mr O’Connell said.

"Generations of his family have lived in Dunloe, sheep farming. He has lost out considerably in the context of grants — these have been frozen," the solicitor said.

Judge Waters indicated a substantial fine was appropriate. But for the plea of guilty, and the lack of previous conviction he would be considering a custodial sentence, the judge said.

"There is an element of brazenness and brass neck. Serious damage was caused," Judge Waters said. The judge imposed a conviction and fine of €2,500 with one day to pay. Recognizances were fixed in the event of an appeal.

The State was not seeking costs, Mr Rice said, after consulting with Department and NPWS officials. The matter against the track machine contractor, Mr Johnson, was struck out.