Bar­ris­ter-TD backs IFDL farm­ers’case

Irish Examiner - Farming - - FRONT PAGE - Stephen Cado­gan

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 Cul- ture, 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 manag ed 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 De­sign a t e d La nd im p o s s i b l e to ar gu e 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. Af foresta­tion a l t e r n a t i ve s wo u l d n o rm a l l y be avail­able.”

Mr Pen­rose also said that once an area is des­ig­nated, “the ap­peal mech­a­nism avail­able is not wor th the pa­per it is writ­ten on. “Once des­ig­nated, I have never seen an area dedes­ig­nated as a re­sult of an ap­peal,” s a i d t h e L o n g f o r d - We s t m e a t h Labour Party TD, who is a prac­tis­ing bar­ris­ter as well as be­ing a TD. Land de­val­u­a­tion im­pact worst: p3 But one landowner not so badly af­fected: p2

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